HIS HONOUR: On 2 June 1994 Justice Wood, as he then was, sentenced the defendant for murder under s 18 of the Crimes Act 1900. The murder involved a felony murder and the discharge of a weapon during an armed robbery. Mr Mills, the defendant, was sentenced to a maximum term of 16 years' imprisonment and an additional term of 7 years' imprisonment, that is 23 years as a head sentence. Mr Mills was denied parole, as a consequence of which Mr Mills has been in gaol for the last 23 years. His sentence will expire on 17 August 2016. It is now 9 August 2016.
Pursuant to the terms of the Crimes (High Risk Offenders) Act 2006 application is made by the State of New South Wales for an extended supervision order relating to Mr Mills. The issues with which I must deal at this point are issues relating to whether I appoint a qualified psychiatrist and a qualified psychologist to assess Mr Mills and whether I make orders ordinarily referred to as interim supervision orders. Final orders are not currently before the Court.
Nevertheless, the test that the Court must adopt in determining whether to make an interim supervision order for a high risk violent offender is set out in s 10B of the Crimes (High Risk Offenders) Act, (hereinafter "the Act"), to be, firstly, that the offender's current custody or supervision will expire before the proceedings are determined and, secondly, that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order.
State of New South Wales v Mills [2016] NSWSC 1165 | Case summary | Zoe
There is no doubt to me that the current custody of the defendant will expire before the proceedings are finally determined. The fundamental issue is whether the matters alleged in the supporting documentation would, if proved, justify the making of a final order. In making a final order there are a number of matters that need to be dealt with.
A serious violence offence is a serious indictable offence that is constituted by a person 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 an attempt in any of those regards. We don't have to worry about attempt or conspiracy. We are dealing with the provisions of subs 5A(1)(a) of the Act.
Interestingly, the index offence for which Mr Mills was sentenced was a felony murder in which it was accepted that there was no intention, premeditated or otherwise, to cause the death or grievous bodily harm or actual bodily harm of any person. Up until June of this year, of itself, that would mean that the index offence, so called, would not be a serious violence offence as defined by s 5A of the Act.
In June of this year, an amendment was passed to the Act introduced by the Attorney-General in the Lower House, which provided that a reference in subsection (1)(a) of the Act, to which I have just referred, to 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 in an attempt to commit or during or immediately after the commission of a serious crime.
In other words, as the second reading speech and the explanatory memorandum make clear, the Act was amended so that felony murder, or constructive murder as it may be called by some, is included in what otherwise would be the definition of serious violence offence in s 5A(1)(a) of the Act. As a consequence of that amendment Mr Mills had committed a serious violence offence, namely felony murder, for which he has spent 23 years in gaol.
The question that the Court must deal with is whether the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order. There does not seem to be a definition of supporting documentation, no question as to whether that includes the submissions of the State has been raised, but for present purposes, I will assume it means the documentation upon which those submissions are based. They are contained in Exhibit A.
Exhibit A includes a number of items, the sentencing remarks, the judgment on appeal to the Court of Criminal Appeal, risk management reports, a report being a psychiatric report of Dr Stephen Allnutt and risk assessment report of a psychologist, Mr Samuel Ardasinski. There are the usual, and I don't mean that in any way disrespectfully, supporting information such as the bail report giving us the criminal history relevant to the offender, some of the notes made by Corrective Services during the course of Mr Mills' incarceration, reports of rehabilitation programs completed or started and not completed and other such issues, including earlier psychological reports and assessments upon which the latter reports are based.
There is a prerelease report compiled by Corrective Services and a supplementary prerelease report and there is the transcript of parole hearings in which the Parole Authority dealt with the issues before it. The issues before the Parole Authority and the issues before this Court are different. The difference in respective tests creates an imperfect world, because there is an hiatus between the test to be applied by the Parole Authority as to whether parole should be granted and supervised release into the community occur, and that which is required in order to obtain an extended supervision order either on an interim basis or on a full-time basis.
Many of the aspects of the report that are before me were provided earlier and the Court has had some limited time to read some of them. There is no doubt that Mr Mills' conduct in custody has not been "perfect". He has committed a number of offences in gaol and in the context of that environment has expressed serious threats to custodial officers and their families.
Dr Allnutt at page 22 of his report dated 20 May 2016 at page 70 of Exhibit A says this:
"Overall he [being a reference to Mr Mills] would be diagnosed with an antisocial personality disorder. He manifests a history of disregard for and violation of the rights of others since adolescence, failure to conform to social norms with respect to lawful behaviours, impulsivity, aggressiveness, reckless disregard for the safety of others, repeated failure to sustain consistent behaviour and a tendency to rationalise his behaviour."
…
"It was thought likely that he would obtain fewer benefits than most offenders from therapeutic interventions and required additional support which suggests that he scores on a number of criteria on the psychopathic checklist. His antisocial personality disorder is persistent as is the case with all personality disorders. However, antisocial behaviours generally decline with age and there does appear to have been some reduction in his antisocial and oppositional behaviour more recently while in prison."
At page 23 of the same report, page 71 of Exhibit A, Dr Allnutt says the following:
"He [being Mr Mills] has remained incarcerated since the age of twenty-two to date. His institutional course has been characterised by recurrent threats, impulsive aggression, institutional rule breaking, inappropriate sexual behaviour, intermittent substance use, poor engagement with rehabilitation programs, limited advancement in security levels and institutional charges."
The synthesis of his statements is described by Dr Allnutt in the following terms:
"He falls into a group of offenders at high risk of violence as compared to other offenders".
However, Dr Allnutt says:
"Given the ongoing persistent difficulties within the gaol, it is unlikely that, outside of the aging process, aggressive behaviour generally diminishes with age, his propensity of the sorts of behaviours he demonstrated will dissipate in the shorter term. However there has been a reduction in physical violent behaviour over the past 5-years or more and there has been a reduction in the frequency of other forms of violent behaviour in the past 3-years. This suggests improvement and is consistent with attenuation."
The pre-sentence or risk assessment report conducted and compiled by Mr Ardasinski, who is a forensic psychologist of some note, recites the history in terms of criminality, refers to his other aspects and in particular the substance abuse, which he describes as having been said to him to be "problematic or recreational." It also refers to his custodial record, suggesting he has been seen as having serious issues with security management in regard to drug or alcohol abuse. He considered that:
"Use of illicit substances especially cannabis will pose an ongoing issue for Mr Mills into the future particularly in relation to his likely capacity to exist in the community without exposure to the criminal element."
Nevertheless as Corrective Services in this report has repeated at 31 of the report, the defendant's current attitude as expressed in interview was that he has a firm resolve to remain offence free and live a prosocial existence post release. However, the report opines:
"It has been so long since Mr Mills existed in the community and he has never led a prosocial life previously so it is considered that a law abiding life-style would be quite alien to him".
He acknowledges "I'm not perfect" but also reminded the author "there's gaps" and "if something does happen I'm not using my head thinking clearly if something is going to happen, it's inevitable" which to the author appeared "fatalistic". Ultimately the risk assessment says:
"It is not scientifically possible to accurately predict whether or not an individual offender will or will not actually reoffend".
With that I agree. Nevertheless, the report comes to a conclusion (at 47) that Mr Mills' true potential for serious violence remains, since he has spent the past 22-years in an unsafe violent context, that is prison, which has likely tainted his impression of what is and is not acceptable.
Until the June amendments, and I am not denigrating them by their recency, Mr Mills had not committed a serious violence offence. His conduct in gaol, although deplorable and although effecting violence, is not conduct that is even under the new amendment a serious violence offence.
As a consequence we have this situation. We have Mr Mills as a defendant, who is serving time in gaol, having been refused parole for a murder in which he intended neither to kill nor to inflict grievous bodily harm. It cannot therefore be said that on his past behaviour, he would have the intention of causing or inflicting a serious violence offence.
That, however, is not the test. Particularly, it is not the test for an interim supervision order with which I am here concerned. It is unfortunate, and not to be commended, that ultimately what seems to be the greatest factor in assessing the safety of the community, a factor I hasten to add which the Court is required to take into account under s 9 of the Act, is a factor caused by the circumstance that Mr Mills has not been granted parole.
The foregoing is not a criticism of the Parole Authority. Mr Mills had it within his own control, or possibly had it within his own control, as to whether or not he conducted himself in a way that would have caused the Parole Authority to come to a conclusion that parole was appropriate. Nevertheless, the largest single factor involved in an assessment of Mr Mills' risk of a serious violence offence or risk to the safety of the community, seems to be the circumstances of his imprisonment and the circumstances of his release without appropriate supervision. There are a number of factors involved in the kind of risk of which we are here speaking.
The material before the Court suggests that the risk of serious violence or the risk of violence is almost entirely reactive. That means Mr Mills does not react peacefully to stressful situations or to conduct that may be perceived by him to be inconsistent with his interests or threatening in its effect.
Secondly, there is no suggestion that any part of Mr Mills' offending relates to any sexual offences.
Thirdly, the whole of his criminal history, which is not short given his age of 45 and the fact that he spent 23-years in gaol, involves no kind of domestic violence.
Mr Johnson submits on Mr Mills' behalf that Mr Mills is not at risk of reoffending as a serious violence offender. There is much force in his argument. On Mr Johnson's submission, the State of New South Wales has not satisfied the much lower onus required for an interim supervision order and the matters that he alleges, even if proved, would not amount to that which would allow the Court in the exercise of its discretion to grant an extended supervision order that was not interim.
I have considered that submission and take the view that it is accurate in so far as it goes except, unfortunately, for the seemingly environmental violence factors caused by Mr Mills' continued incarceration over the last 23-years.
As a consequence it seems to me that an interim supervision order ought be granted, but I make clear two matters.
First, I will make the interim supervision order for as short a time as I think is appropriate to obtain the psychiatric reports and have them before the Court to be dealt with. Secondly, I will ask that those psychiatric reports deal with the manner in which Mr Mills has acclimatised to a non-prison environment. That last factor seems to me to be the most relevant in dealing with what are said to be the risks associated with Mr Mills' release.
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Decision last updated: 22 August 2016