This application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) has been before me for some months: first, as an application for preliminary orders on 18 May 2016 and, most recently, as an application on 2 December 2016 for an extended supervision order (ESO) of 4 years and 6 months. As my previous judgments demonstrate, this otherwise straightforward matter has been bedevilled by the logistical complication that the defendant is currently refused bail on a pending allegation of a serious sexual assault: State of New South Wales v McLeod [2016] NSWSC 1052; and State of New South Wales v McLeod (No 2) [2016] NSWSC 1354.
The effect of that pending allegation has been and is that it is impossible to determine when Mr Keiron McLeod (the defendant) will actually be released. On the one hand, if convicted at trial, he will not be released for many years. On the other hand, it may be that, pursuant to an application for bail, he will be released virtually immediately. (After I reserved, I was informed in writing with the consent of both parties that he had not applied for bail at a recent callover in the District Court; whether he will do so in the near future is not clear).
I sought to accommodate that problem by conducting the final hearing very soon after the time when (it was hoped) the trial of the pending allegation would be concluded. Regrettably, on the date fixed for trial, 28 November 2016, the complainant was unable to be located, and the trial was adjourned. If the trial is to proceed, I am informed that that will not occur before July 2017.
When it became clear that the trial would not proceed and that the allegation would remain pending, counsel for the State of New South Wales (the plaintiff) submitted that the hearing date should be vacated: see transcript of Monday 28 November 2016, T1.32-37. I saw the force in that. But I could not accept that the application could be permitted to burden a judge of this Court, with virtually no notice whatsoever and as a matter of great urgency, if the defendant were to be unexpectedly granted bail. For that reason, I took the view that, despite all of the uncertainties, the final hearing had to proceed, as listed, on Friday 2 December 2016.
In the past, with the consent of the parties, I had made a very short interim detention order (IDO), in order to cover the period between the putative trial date and the date of the final hearing before me, a period during which the defendant was to be bail refused in any event. On the latter date, as against the possibility that the defendant could be granted bail in the days before delivery of this judgment, I imposed a short interim supervision order (ISO), again with the consent of both parties.
Background
The circumstances that led to the initiation of the proceedings against the defendant are set out in my judgment in State of New South Wales v McLeod at [1] - [30], and need not be repeated at length. Indeed, for convenience this judgment should be read in conjunction with that earlier judgment.
Suffice to say, the defendant is a middle-aged Aboriginal man who has shown a longstanding proclivity to violence, including with weapons. He has a similarly entrenched problem with alcohol and prohibited drugs. Since August 1987, he has spent no more than 16 continuous months in the community, as opposed to in a prison. One can safely infer that he is thoroughly institutionalised. He has been convicted of serious sexual offences in the past, and, despite the fact that he has never been convicted of any sexual offence committed in custody, there have been many suggestions to that effect. Indeed, the pending allegation is precisely that.
The defendant has never really worked, and has little or no support in the community. If he were released now, he would have nowhere settled to live (he having been refused structured accommodation provided by the Department of Corrective Services) and would need to obtain emergency housing.
Evidence
A deal of material was placed before me at the final hearing that had not been available at the preliminary hearing.
An affidavit of Angela Rybak, senior electronic monitoring officer, of 14 September 2016 outlined the electronic monitoring that could be utilised as part of the conditions of an ESO.
An affidavit of Samuel Ardansinski, registered psychologist, of 15 September 2016 established that Mr Ardasinski maintained the opinions expressed in his earlier report, including the opinion that the defendant fell into the high risk category of violent re-offending. Mr Ardasinski also expressed the view that the defendant may struggle to live in the community on an ESO, and recommended that the violent offender's treatment program in custody was the best chance of success for the defendant.
An affidavit of Kevin Makar, corrective services officer, of 16 September 2016 outlined the mechanism of supervision of offenders by the ESO team, and discussed the conditions proposed for the defendant if an ESO were to be granted.
An affidavit of Danielle Matsuo, registered psychologist, of 16 September 2016 outlined and discussed programs that would be available to the defendant in custody, as well as programs that would be available to him in the community.
An affidavit of Valentino Musico, solicitor for the plaintiff, of 16 September 2016 placed before me the remarks on sentence for the index offence; offender integrated management system (OIMS) notes; court attendance notices and facts sheets for the most recent charges against the defendant; the bench sheets of the Local Court at Wagga Wagga in relation to the most recent charges; and the Court Order Notice of the District Court at the Downing Centre in relation to the most recent charges. An affidavit of Mr Musico of 18 November 2016 placed further OIMS notes in relation to the defendant before me. A further affidavit of Mr Musico of 30 November 2016 provided an update in relation to the status of the trial of the defendant on the most recent charges.
An affidavit of John Devoy, corrective services unit leader, of 30 November 2016 provided more recent information about the accommodation inquiries that had been made by the ESO team further to the previous affidavit of Mr Makar. The recent affidavit shows that the defendant had been rejected for accommodation from multiple locations because of his pending charges.
As I have said, I received the remarks on sentence of 30 September 2014 of Magistrate Fleming with regard to the index offence (and other offences). As one would expect, her Honour emphasised the seriousness of the violence that the defendant had meted out to a defenceless woman. Her Honour also noted that the defendant had shown "no real commitment" to finding a way to refrain from committing offences of violence.
The two expert reports that I ordered were also placed before me.
The first was the report of Patrick Sheehan, forensic psychologist, of 5 September 2016. Mr Sheehan concluded that the defendant would meet the diagnostic criteria for a moderate cannabis use disorder, a severe alcohol use disorder, and an ongoing synthetic opioid use disorder. He also concluded that there was clear evidence to suggest that the defendant has a personality disorder, in particular an antisocial personality disorder, and traits of narcissistic personality disorder. Mr Sheehan used a violence risk scale to assess the defendant, and estimated that the defendant's risk for violence in the future is within the high category.
Mr Sheehan stated that the defendant had "an enduring history of using violence behaviour to establish dominance, resolve difficulties, and express anger", and noted that this violence extended to strangers, family, associates, and partners. He further concluded that the defendant has a number of characteristics of a criminal personality, and criminal attitudes that support his pattern of antisocial behaviour.
Mr Sheehan noted that the defendant had a negligible work history, and that association with criminal peers was a clear problem for the defendant. He noted that the defendant has the potential for positive supports in the community, but that they will be unavailable to him in the absence of an ESO.
Mr Sheehan concluded that the defendant remains in the high risk category of violent offending, his substance use disorder remains unresolved and, in the absence of intensive supervision, he would be a high risk of returning to "a lifestyle where acts of violence would seem almost inevitable". He added that the recklessness of the defendant's previous violence adds to the likelihood of the commission of a serious violence offence.
The second expert report was of Dr Andrew Ellis, forensic psychiatrist, of 5 September 2016. Dr Ellis has diagnosed the defendant with antisocial personality disorder, and stated that he meets the criteria for a serious substance abuse disorder. He further noted that there was a possibility that, given the history of head injuries and substance use, the defendant has brain damage which could be considered a mild neurocognitive disorder, but stated that that thesis would have to be investigated further. He also noted that the defendant had a "clear history of problems with serious violence beginning in childhood and persisting in adult life"; a history of problems in relationships; and a poor record of study and employment.
Dr Ellis stated that anticipated future problems associated with violence include: the lack of easily accessible personal supports; accommodation where the defendant will be exposed to criminal associates; and likely problems engaging in consistent treatment. He considered that the diverse pattern of serious violence in the background of the defendant indicates that there would be a number of different potential victim types. He concluded that the risk of serious violent offending was high, whilst noting that it could be reduced through specific treatment and supervision.
Submissions
In short, the expert evidence placed before me suggests that the risk of the defendant re-offending in a violent way is a high one. One can readily accept that such predictions are imprecise; that they are largely based on a number of broad and static factors; and that one should be cautious about drawing conclusions about the behaviour of an individual founded upon observed behaviour of a group of persons. But the plaintiff submitted that the inevitable conclusion to be drawn from the evidence placed before me - the most significant of which is the criminal record of the defendant, detailed in my earlier judgment - is that the defendant, if released without supervision, would in all likelihood simply return to his well-established way of life. As I have said, that is a way of life that has featured the repeated infliction of violence upon others.
The simple submission of the plaintiff was that the test for the making of an ESO has been made out, and there is no reason why I should exercise my discretion not to do so.
The logistical problem that I have already identified has a number of effects. The parties were agreed that, pursuant to s 18 of the Act, if a continuing detention order (CDO) were to be imposed, it would commence, and continue to run, if the defendant were incarcerated for any other reason. In contrast, however, if I were to impose an ESO, pursuant to s 10 of the Act it would be stayed until the defendant were released from custody. In other words, if the defendant is convicted in the future and sentenced to imprisonment for many years, and I were now to impose an ESO of considerable length, the practical effect would be that I would be presuming to make predictions about how things should be many years from now.
As well as that, evidence was given by the expert witnesses, Dr Ellis and Mr Sheehan, that a risk assessment has a "limited life span" of approximately a year.
The submission of defence counsel about all of that was that, in light of the ongoing uncertainty about the custodial position of the defendant, I simply could not be satisfied that the central test to be found in s 5E of the Act had been established.
She also submitted that, as against the possibility that the defendant will be incarcerated for many years pursuant to a fresh sentence, it would be quite wrong for me to impose a potentially "cumulative" ESO of many years' duration. She also submitted that, if that were to occur, one cannot assume that the defendant would be represented at public expense in litigation in which he seeks to reduce any inappropriately lengthy ESO.
Separately, she submitted that it is one thing to identify a risk of the commission of a violent offence; it is quite another to establish a risk of the commission of a serious violence offence, as that concept is defined in s 5A of the Act. In other words, she questioned the utility of the expert evidence to my task of assessment in accordance with the statute.
Finally, and in the further alternative, she impugned a number of the proposed conditions of the ESO, on the basis that they were not appropriate and therefore not liable to be imposed, in accordance with s 11 of the Act.
Determination
Should an ESO be made?
I accept that the solution to the logistical conundrum that I adopted - having the matter proceed to final hearing - is not a perfect one. The hearing of an application under the Act, whilst serious criminal charges are pending against a prisoner whose pre-existing sentence has expired, does not seem to be a circumstance that the Act envisages (in saying that, I make no criticism of the plaintiff). But I repeat that I could not accept that it would be in the interests of justice for an application such as this, based as it is upon voluminous documentation, to be placed before the Duty Judge, for urgent determination and with very little notice, if the defendant were unexpectedly granted bail.
Turning to my approach to the underlying uncertainty for the purposes of the application, whilst accepting that one cannot predict the course of criminal litigation with precision, I think that I must decide the matter on the assumption that the defendant will be granted bail in the next few weeks or months. I say that because the refusal of bail on the pending charges is the only thing holding the defendant in custody at the moment; my understanding is that the sexual allegation against him is (apart from the possibility of tendency evidence) uncorroborated; the matter has been listed for trial in the District Court once already; and the complainant has been unable to be located by the Crown. I think that that combination of factors means that it is quite possible that the defendant could be granted bail quite soon (in saying that, I do not of course intend to fetter in the slightest any judicial officer who decides the question of bail).
Having made that assumption, I wish to state clearly that, if my assumption is incorrect, and the defendant is not released on bail pending his trial, and the trial results in him being imprisoned for many years, I accept the assurance of counsel for the plaintiff, given to me from the Bar table on 2 December 2016, that the whole question of the conditional liberty of the defendant pursuant to an ESO would be revisited, on the application of the plaintiff.
As I have said, I proceed to analyse the matter on the assumption that the defendant will be released shortly.
Assuming that to occur, I have no doubt that the test to be found in s 5E of the Act has been amply made out. Regrettably, the defendant has been violent on many occasions in the past; his entrenched abuse of alcohol and other drugs is long-standing and criminogenic; there is no reason to doubt that he will return to the abuse of those substances once released; he is very much lacking in insight into his own need for help; and he enjoys very little support in the community. In light of his offending against others over the past many years, I believe that, were the defendant simply released shortly, restricted only by conditions of bail, there would certainly be an unacceptable risk of the commission of a serious violence offence if he were not kept under supervision.
And I say that well appreciating that he has been convicted of only one serious violence offence as defined in the Act, and that a serious violence offence is of something of a higher order than an offence of violence in general.
My approach to the first of those propositions is that that factor is relevant but not determinative; it is overwhelmed by the multitude of adverse factors.
My approach to the second proposition is that the definition of a serious violence offence is, in fact, surprisingly broad: as I remarked in State of New South Wales v Lynn [2013] NSWSC 1147 at [16], it encompasses far more than the intentional infliction of death or grievous bodily harm. In other words, whilst I accept that the distinction drawn by counsel for the defendant is correct, I do not accept that it is a significant one.
Turning to discuss briefly the matters that are mandated for my consideration pursuant to s 9(3) of the Act, the safety of the community powerfully argues in favour of the making of an ESO. The reports received pursuant to court order speak with one voice with regard to the undoubted risk that the defendant presents. Whether one considers actuarial analysis, or analysis of the defendant individually, that risk is established. The applicant is able to be managed in the community by way of an ESO. The proclivity to violence of the defendant that has shown itself over many years has not been effectively addressed. The defendant has repeatedly failed on conditional liberty. The criminal record of the defendant discloses an entrenched pattern of violence against other persons. The views of Magistrate Fleming when sentencing the defendant on 30 September 2014 are adverse and pessimistic. Finally, taken as a whole, the evidence placed before me strongly supports the proposition that an ESO should be imposed.
Because of my firm satisfaction of the central proposition, there is no basis upon which I believe I should exercise a discretion not to impose an ESO, in accordance with s 5F(1) of the Act. And I say that having reflected on the undoubtedly serious fetter on the liberty of the defendant that an ESO will constitute.
Length of ESO
As for the length of any ESO, I think that the submission of counsel for the defendant is well-founded: I should err on the side of brevity rather than length, ignorant as I am of whether the ESO will commence quite soon, or many years in the future.
I also accept her submission that it should not be incumbent upon a citizen to apply to have an inappropriately lengthy ESO shortened; rather, it should be incumbent upon the plaintiff to apply to have an inappropriately short ESO lengthened.
Those considerations lead me to reject without difficulty the proposition that I should impose an ESO of 4 years and 6 months, or anything like it. Rather, I do not consider that any ESO imposed in the current conditions of uncertainty about the custodial position of the defendant should extend beyond 2 years. If that is inconvenient to the Court, the plaintiff, and the defendant, I regret that it is an inevitable consequence of the uncertainty in which I am called upon to determine this application.
Conditions of ESO
Section 11 of the Act speaks of conditions being imposed that "the Supreme Court considers appropriate". That phrase has been interpreted as encompassing conditions that are fit and proper in the context of the scope of the Act: State of New South Wales v Tillman [2008] NSWSC 1293 at [68]. One should bear in mind that breach of an imposed condition is a criminal offence: State of New South Wales v Ali [2010] NSWSC 1045 at [88]. Such conditions should not be "unjustifiably onerous or simply punitive": State of New South Wales v Green (Final) [2013] NSWSC 1003 at [37].
The first of the impugned conditions was the curfew to be found in proposed condition 11, which is as follows: "The defendant must be at his approved address between 9pm and 6am, or such other times as directed by the DSO [Department Supervising Officer]".
That was said to be unduly restrictive. I accept the submission of counsel for the plaintiff, however, that that condition is to be read as importing a degree of flexibility reposed in the supervisor. Read in that way, the condition is not inappropriate.
The next was proposed condition 19, which is as follows: "The defendant must not attend any place where alcohol or drugs are illegally sold".
But, in short, I cannot see how it can be inappropriately onerous for the defendant to refrain from visiting places where prohibited drugs or alcohol are illegally sold. Indeed, the former are self-evidently always sold illegally.
Conditions 20 and 21 were impugned as well. They are as follows:
20. 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.
21. The defendant must not start any job, volunteer work or educational course without the approval of his DSO.
That criticism was in accordance with the evidence of Mr Sheehan, forensic psychologist. He expressed the opinion that they are unnecessarily onerous, and should not be able to form the basis of criminal prosecution (and a return to custody) if the defendant were to breach them.
That may be true in some cases; here, because of the violent past of the defendant; his institutionalisation; the fact that he has worked in the community for a total of 11 days over his entire life; and because the aspects of his life and character that have led to his offending have been barely addressed over the past decades, I do not regard such conditions as inappropriate.
Proposed condition 26 was impugned on the basis that it would extend to (for example) a breakfast café that happened to be licensed to serve alcohol in the evening. The condition is as follows: "The defendant must not enter any licensed premises without the approval of his DSO".
There is force in that criticism made by counsel for the defendant. But the defendant is a 47 year old man who has been abusing alcohol and prohibited drugs since he was aged 15, a period of at least 32 years. There must be places where, as a starting point, the defendant can enjoy a convivial coffee or a meal but where alcohol is never served.
Furthermore, it can be seen that the proposed condition contains flexibility depending upon the discretion of the supervisor of the defendant, and one could expect the condition to be applied in a common sense way. In short, I do not regard the condition as inappropriate.
As for condition 32, which was also impugned, it is as follows:
32. If the defendant commences to live with someone:
a. he has to tell his DSO [Department Supervising Officer] before commencing to live with the person; and
b. if required by his DSO [Department Supervising Officer], he must either:
(i) tell the person of his criminal history; or
(ii) give consent for the DSO [Department Supervising Officer] to tell the person of his criminal history.
But the simple fact is that the defendant has in the past repeatedly inflicted violence on intimate partners, the most recent example of which was kicking a woman in the mouth with sufficient force to dislodge three of her teeth. In those circumstances, I regard proposed condition 32 as perfectly appropriate.
Finally, proposed conditions 43 and 44 were impugned on the basis that they could be unnecessarily intrusive. Those conditions are as follows:
43. The defendant must not change his appearance without the approval of his DSO.
44. The defendant must let CSNSW [Corrective Services New South Wales] photograph him.
Yet again, I expect those conditions to be implemented in a common sense and reasonable way. Yet again, in light of the importance of the defendant being very closely supervised when first released, I do not assess them as being inappropriate.
In short, contrary to the submissions of counsel for the defendant, I propose to impose the entirety of the conditions sought by the plaintiff as part of the ESO.
Orders
I make the following orders:
1. The interim supervision order imposed on 2 December 2016 of 1 month's duration is quashed.
2. The defendant is subject to a high risk violent offender extended supervision order, pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), for a period of 2 years to date from 14 December 2016 and expire on 13 December 2018.
3. During the period of the extended supervision order specified in order 2, pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant must comply with the conditions set out in the Schedule to the Further Amended Summons (129 KB, pdf) filed by the plaintiff on 2 December 2016.
[2]
Amendments
30 April 2024 - Publication restriction lifted
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Decision last updated: 30 April 2024