State of New South Wales v Michael Lidster

Supreme Court of NSW|2020-03-09|Before: Rothman J

Judgment

HIS HONOUR: By Summons dated 11 December 2019, the State of New South Wales applies for orders pursuant to the terms the Crimes (High Risk Offenders) Act 2006 (hereinafter "the Act") that the defendant, Michael John Lidster, be subject to an Interim Supervision Order (hereinafter "ISO"), pursuant to the terms of section 10A of the Act. Further, the defendant seeks ancillary orders for the appointment of two psychiatrists and prescribing the conditions under which the supervision would occur.
The defendant does not oppose the making of an ISO, but does take issue with some of the conditions, or the terms of some conditions, that the plaintiff seeks. Notwithstanding the consent of the defendant, the jurisdiction of the Court to bind the defendant to an ISO depends upon the formation of a view by the Court and that view cannot be abrogated on account of the consent of the parties.
The defendant is a 47 year old man who has been convicted of murder, which offence is the index offence in the proceedings before the Court. Prior to the commission of the murder, the defendant had committed a number of assault offences. The murder and the assault offences were committed in the context of domestic violence. At the time of the commission of the murder, the defendant was heavily intoxicated.
The murder was committed when the defendant was 29 years of age and he was sentenced in November 2003 to an aggregate sentence of 18 years, with a non-parole period of 12 years that was due to expire on 21 March 2014. The index offence expires on 21 March 2020 and orders must be made, if they are to be made, by 21 March 2020.

Principles

The imposition of an ESO is governed by the terms of Part 2 of the Act. The Court has already dealt with some of the technical requirements for the making of an ESO. The satisfaction of the Court as to the technical requirements also includes the pre-trial procedures governed by the provisions of s 7 of the Act, namely, service of the appropriate documentation.
The determination of an application for an ESO is governed by the terms of s 9 of the Act and it grants the Court the discretion either to make an ESO or to dismiss the Application. The paramount consideration in the exercise of that discretion is the safety of the community: s 9(2) of the Act.
The terms of s 9(3) of the Act requires the Court to have regard to a number of matters, some of which would be unavailable at the time that an ISO is sought or made. It is unnecessary to repeat each of the criteria in s 9(3) of the Act.
The jurisdiction of the Court to impose an ESO depends upon the evaluation by the Court that the offender, who is sought to be the subject of the order, "poses an unacceptable risk of committing another serious offence if not kept under supervision under the order": see s 5B(d) of the Act. The foregoing satisfaction is not a technicality and has not yet been dealt with by the Court.
The satisfaction of the Court must be to "a high degree of probability" (s 5B(d) of the Act) but the Court "is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk": s 5D of the Act.
The determination of whether an offender poses an unacceptable risk has been the subject of much authority. The Court of Appeal discussed the issue in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. See also State of New South Wales v Thurston [2018] NSWSC 421.
Because of the agreement between the parties that the defendant poses an unacceptable risk (at least for the purposes of the interim order), it is necessary only to summarise the principles that I apply.
The determination of an "unacceptable risk" involves consideration of a number of factors that form a matrix and include the probability that the risk will result and, further, that the seriousness of the harm that will ensue is such that the risk becomes unacceptable. The unacceptable risk is the unacceptability of the risk of committing a serious violence offence, as defined in section 5A of the Act. The harm that may manifest and to which the risk refers is the harm occasioned by the commission of a serious violence offence.
A risk that is insignificant is not a risk with which the Court should be concerned. Once a risk is not insignificant, the Court is required to look at whether the result of it manifesting would involve serious harm.
The unacceptability of risk balances the likelihood that a serious violence offence may occur and the seriousness of the outcome of that occurrence. This results in somewhat of a continuum in which the seriousness of the harm which may eventuate is balanced against the probability that the serious violence offence will occur.
As the seriousness of the harm that may eventuate increases, the required degree of likelihood of the commission of a serious violence offence decreases. Conversely, as the seriousness of the harm that may eventuate decreases, the required degree of the likelihood of the commission of a serious violence offence must increase.
The task upon which the Court embarks is to be satisfied to a high degree of probability that the defendant poses such an unacceptable risk: see Lynn, supra. The interference with the liberty of the defendant is not a factor that the Court considers in determining the issue of the unacceptability of the risk.
Nevertheless, the effect, particularly if the conditions are draconian, of the imposition of an order on a defendant is a matter that the Court can and should take into account in determining whether, in its discretion, it should make an ESO. Notwithstanding that capacity, as earlier stated, the Court must give paramount consideration to the safety of the community in that assessment.
While the foregoing deals with the requirements for the making of an ESO, those requirements are a necessary consideration in the making of an ISO, because the Court's jurisdiction to make an ISO is conditioned on the Court being satisfied that the current custody or supervision will expire before the proceedings are determined and that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO: s 10A of the Act.
In examining whether the "matters alleged" "would, if proved, justify an ESO", it is insufficient for the plaintiff to allege boldly a conclusion and rely on the provisions of s 10A(b) of the Act to require the Court to accept the conclusion would be justified.
In my view, the matters alleged, as that term is used in s 10A(b) and in s 7(4) of the Act, is a reference to matters of fact, not conclusions. Matters of fact include expert opinions.
First, the plaintiff must allege facts that are capable of being proved. Secondly, the matters alleged do not refer to a conclusion; they refer to the facts that would lead the Court to a particular conclusion.
Notwithstanding that qualification, the requirement for the Court to assume that the matters alleged are proved, for the purpose of determining whether to issue an ISO, is a different process to the finding of a "prima facie case", as it has sometimes been described.
Further, there are significant difficulties in exercising discretion, at a preliminary hearing for an ISO, that is the same as that which is reposed on the Court at the time that the Court considers whether an ESO should issue. This is because the degree of probability of the risk of a future serious violence offence is, at best, a matter alleged or the subject of preliminary opinion.
In any event, as earlier stated, the discretion as to whether an ISO and an ESO should issue requires the Court to give paramount consideration to the safety of the community. As a consequence, it would be most unusual for the Court to conclude that the defendant posed an unacceptable risk but, at the interim stage, for the Court to choose to exercise its discretion not to impose an ISO.
The foregoing is sufficient for an outline or summary of the principles that the Court, as presently constituted, has applied in the determination of this matter. As earlier stated, the parties are in agreement that the technical requirements for the making of an ISO have been satisfied.
Further, there is no disagreement between the parties that, at least for the purposes of an Interim Order, the defendant poses an unacceptable risk. Independent of the agreement of the parties, the Court, as will be seen below, on the material before it, is satisfied that an unacceptable risk is posed by the defendant and that an ISO should issue.

The risk

Before the Court is a report, prepared in 2002, by Psychiatric Registrar, Dr Luke Murphy (exhibit CL-1, Tab 35) and a 2003 report prepared by Dr Stephen Allnutt, a Forensic Psychiatrist (exhibit CL-1, Tab 36). Both reports examine the defendant's likely mental state at the time of the index offence.
As earlier stated, the defendant has a history of domestic violence. His offending began, relevantly, in 1990 at the age of 18. There are juvenile offences with which the Court does not deal at this point.
On 26 January 1990, the defendant was arrested for malicious damage and assaulting the arresting police officer. A recognisance was imposed for those two offences. Offences of stealing and making false instrument were also dealt with in the same manner, but are irrelevant for the purposes of assessing a serious violence offence.
On 15 October 1992, the defendant injured 2 former friends by driving his car at an estimated 20 to 30 km/h at them, seemingly because they had stolen money from him, or so he thought. For that, the defendant was put on a 3 year good behaviour bond. With those charges, the defendant also had the Court deal with two counts of assault.
On 16 October 1992, when police asked for identification from the defendant at his home, he threatened the police with an iron bar and told them that he would knock their heads off (expletives deleted). He lunged at the police. He was charged with assault and placed on a good behaviour bond for 3 years.
On 14 January 1996, police attended the residence of the defendant in relation to a domestic violence issue. He was asked to leave. He refused and was arrested. He was charged with various offences.
On 19 May 1996, after drinking two bottles of bourbon, the defendant grabbed his then partner by the throat and grabbed her daughter by the neck, also hitting the daughter's boyfriend with a kettle. For that offence (or those offences), the defendant was incarcerated.
On 18 July 1996, the defendant, who again was drunk, committed further domestic violence offences. Further domestic violence offences were committed on 20 October 1996, when the defendant threatened to kill his partner and assaulted her; on 23 August 1998, damage to furniture in a domestic violence context; on 25 October 1998, damage to property, assault and contravention of an Apprehended Violence order (hereinafter "AVO"); on 9 October 1999, assault of his former partner, being assault occasioning actual bodily harm and contravention of an AVO.
On 8 May 2001, the defendant again breached an AVO; on 8 October 2001, an AVO was taken out by another former partner, being the victim of the index offence, after only some months in a relationship, on an allegation of an attempt to strangle the partner; and other offences both in breach of an AVO and/or relating to assault occured. Each of the foregoing offences and almost all of the offending of the defendant occurred at a point in time that the defendant had been abusing alcohol.
The index offence, as stated, is murder. The background to that is that the defendant's partner of a few months had been the subject of various assaults. In August 2001, the defendant attempted to strangle the victim, manually. In March 2002, the defendant began to live with the victim and within weeks, if not days, serious fighting occurred, also related to alcohol.
The defence case for the murder was substantial impairment of the mind, which defence was rejected by the jury. The judge, on sentence, found that the defendant strangled the deceased by putting an electric hairdryer cord around her neck and using it as a ligature. The deceased was found unclothed from the upper chest down and there had obviously been a struggle in the premises.
After strangling the deceased, the defendant drove into town at excessive speed; rang his mother and confessed to having killed two people (the deceased and a bloke); and was seen drinking more alcohol.
The defendant has committed further offences on parole, some of which have been referred to earlier in these reasons. Further, the defendant has continued to possess and use drugs in custody and, during his imprisonment, engage in a number of fights or other combative behaviour and also to possess offensive weapons. In prison, he was dealt with for intimidation and for damage to property.
There is no issue that the defendant has serious mental or psychological issues, including traumatic injury to the brain and/or head. There are a number of historic psychiatric and psychological reports to which the Crown has referred.
Dr Allnutt's report of 8 June 2003 was prepared for the purpose of assessing the defendant's mental state for the substantial impairment defence that was an issue in the trial for the index offence. It contains a fairly comprehensive history of previous admissions in relation to psychiatric issues. Dr Allnutt could not give a definitive diagnosis of Attention Deficit Disorder but opined that there was minimal degree of impairment of the defendant's ability to judge whether his actions were right or wrong.
Dr Jolly's report of 10 June 2003 concluded that there was substantial evidence of permanent brain damage.
In 2019, Dr Richard Parker, Psychologist, prepared a Risk Assessment Report for the purposes of the Summons now before the Court. For that purpose, Dr Parker interviewed the defendant on 18 July 2019. Dr Parker concluded that: 1. "All three of the defendant's significant relationships have been marred by violence; 2. The index offence appears to have differed from earlier similar behaviour only in the degree of harm inflicted and it may have been luck that his earlier partner had not been more seriously injured; 3. The defendant appears to be capable of restraining from violence when sober but under the influence of alcohol or amphetamines appears to have few restraints against violence; 4. The defendant appears to have made genuine attempts to resolve his underlying issues and addictions, but relapsed after varying periods of sobriety; 5. It seems likely that his offending is fuelled by a number of factors, which each reinforce each other. His learned patterns lead him to be drawn to people with dysfunctional coping patterns, including substance abuse. His substance abuse and antisocial behaviours distance him from prosocial people; 6. Actuarial instruments place the defendant at a high risk of violent recidivism, most likely in the context of relationships or people he interacts with closely; and 7. The defendant would benefit from intensive supervision and case management, but if subject to a CDO [Continuing Detention Order] would be unlikely to access further treatment, having already completed the VOTP [Violent Offenders Therapeutic Program]." (Plaintiff's Written Submissions at [67]).
Dr Parker undertook static assessment and an assessment of criminogenic needs of the defendant and concluded that he would benefit from Intensive Supervision and case management, including monitoring, weekly schedules, assistance finding accommodation, scrutiny of social contacts, employment and leisure activities and attending treatment to address his criminogenic needs.
Statistical assessments were undertaken but, as all of the experts have for many years adumbrated, there are serious limitations on the actuarial assessment of risk, particularly where static and dynamic factors are utilised on an historic basis. Nevertheless, the defendant was assessed as medium/high risk of reoffending, with 67% of offenders rated in that way returning to prison within a two-year period.
Further, Dr Parker undertook a Violence Risk Appraisal Guide-Revised Assessment, which also looks at static risk factors, but, in which, the defendant's score was equal to or higher than 98% of offenders. Statistically, 76% of violent offenders with such a score reoffend violently within five years.
There are a number of risk assessment reports completed by Corrective Services, all of which confirm the significance of the risk of further serious violence offences and the consequences of unsupervised liberty of the defendant.
Having read the material, the Court, as presently constituted, is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, if not kept under supervision under the terms of an ISO. The index offence is the most serious in the criminal calendar. The consequences of further serious offending are likely to be as a result of abuse of alcohol and/or drugs, in a domestic violence context, and likely to have consequences which include, or may include, the death of a victim.

Conditions under s 11

The issues between the parties relate to certain conditions, rather than any of the material already discussed as to the preconditions for the imposition of an ISO or the unacceptability of the risk of a serious violence offence being committed by the defendant.
As earlier stated, the defendant was on parole from 19 June 2017, which parole was revoked on 24 February 2019. The incarceration for his current index offence will conclude on 21 March 2020.
The degree of cooperation between the defendant and the plaintiff, and particularly their legal representatives, is to be commended. There are very few conditions that are in issue between the parties.
In dealing with the disagreement, confined as it is, I take the view that the defendant's liberty should be constrained no more than is appropriate, having regard to the safety of the community, which is the predominant purpose of the Act and the circumstances that are particularly apposite to the defendant. The Court is entitled to have regard to all relevant factors in determining what are appropriate conditions to ameliorate the unacceptability of the risk: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at [47] and following (per Beazley, P, McColl and Ward JJA).
The plaintiff proposes Condition 27 and the defendant, in answer thereto, proposes the deletion of the second sentence of Condition 27 as originally proposed by the plaintiff. That proposal is agreed.
The next condition that was in issue is Condition 29, which requires the defendant to notify the DSO prior to joining or affiliating with any club or organisation. The defendant seeks an exception for his local gym.
The difficulty with such an exception is that, in the experience of the Court, some gyms can be the source of the provision of illicit drugs. That may be able to be remedied by a provision that the defendant notify the DSO within 24 hours of joining the gym, but such a condition, if the gym were ultimately disapproved, may cause significant cost to the defendant.
Condition 29, as proposed by the plaintiff, does not specify a time within which or before which the defendant must notify his DSO before joining the club. As a consequence, and on a strict view of the condition, the defendant could notify his DSO seconds or minutes before the club was joined.
Further, the conditions as proposed, and as agreed, include a condition for electronic monitoring and for the provision of a weekly plan of the schedule of movements. As a consequence, a visit to a gym would be required to be notified by the defendant to his DSO.
Moreover, the mischief identified by the Court does not withstand scrutiny. The defendant could visit the gym without "joining". As a consequence, it seems to the Court that the requirement to provide a schedule of movements, which would and must include a visit to the gym, is sufficient to enable the DSO to validate the bona fides and assess the risk associated with a particular gym in question. As a consequence, the Court will add the words suggested by the defendant, "other than his local gym".
The next issue between the parties is that concerned with the terms of Condition 32 and, by extension, part of Condition 35. Condition 35 relates to a search of the defendant or items in his possession, which includes an examination of the contents of electronic devices. Condition 32 allows the DSO to inspect remotely any Internet account used by the defendant including his email in order to monitor compliance with the ISO.
The defendant points out, accurately, that the defendant's past offending does not include issues associated with the use of electronic devices. Nevertheless, the history of offending commences as early as 1990 and the index offence was committed, as stated, in 2002. Many years have passed.
The circumstances of domestic violence are, unfortunately, too well known by the courts and include intimidation and other misconduct that occurs or may occur on social media, the Internet or by email. The remote access to Internet accounts is, in my view, an appropriate condition and the provisions of Conditions 32 and 35 will be imposed as proposed by the plaintiff.
Lastly, I turned to the issues associated with the imposition of Conditions 49 and 50 as proposed by the plaintiff. Condition 49 requires the defendant to agree that his healthcare practitioners will share information including reports on his progress with the DSO. No objection is taken as to the sharing of information between the healthcare practitioners. Objection is taken to sharing the information with the DSO.
Condition 50 deals with a requirement that the defendant consent to information being shared between the different agencies that are involved in his supervision, including the DSO and Corrective Services.
The defendant disagrees with Condition 50 only in so far as it would allow the sharing of the contents of discussions and treatment administered by healthcare practitioners, including psychologists and/or psychiatrists, directly with the DSO and Corrective Services. In other words, the objection to Condition 50 seems to depend upon the Court not agreeing to that which is proposed by the defendant in relation to Condition 49.
There can be no doubt that it is in the interests of the community and the defendant, particularly relating to the rehabilitation of the defendant, for the defendant to be frank and open with his healthcare practitioners. No issue could be taken with that proposition. The difficulty arises because that which is said to the psychiatrist or psychologist or other medical practitioner may be such that the risk factor is heightened.
It is necessary, in my view, for the defendant to enjoy the trust of his medical practitioners and for the defendant to trust them. A guarded or incomplete disclosure by the defendant to his medical practitioners would be counter-productive to the whole process of seeking to have the defendant rehabilitated.
At the same time, it is necessary that the DSO, and to a lesser extent Corrective Services generally, be aware of all the risk factors associated with the conditional liberty of the defendant.
I am most grateful for the discussion between counsel and the Court in relation to this matter. The Court is satisfied that Condition 50 should remain in its current form.
As to Condition 49, it should have deleted from it the last four words, being the words, "and with his DSO". A further sentence shall be added to Condition 49 in the following terms: "The defendant must also agree to his healthcare practitioners sharing information, including reports on his progress and information he has told them, with his DSO, in circumstances where the said healthcare practitioner reasonably believes that the disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety. Such reasonable belief of a serious threat does not need to be immediate or specified in order for information to be disclosed."
Those are the only conditions that are in dispute and the Court makes the orders in the Summons, including the Conditions, as amended by the terms noted in these reasons for judgment.

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: 20 March 2020

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