Mr Brian Nason (the defendant) was born in August 1977, and accordingly is 39 years of age. He is single, and lives in a boarding house in Petersham, in the inner west of Sydney, accommodation that he tolerates but hardly finds attractive. He has a longstanding problem with narcotics, and receives methadone regularly from a clinic in an inner suburb of Sydney. He has recently commenced seeing a psychologist regularly. Although unemployed, he is actively seeking work. Some weeks ago, with regard to a position in the construction industry, he was one of the final few applicants under consideration, but unfortunately was unsuccessful.
By far the most significant aspect of the life of the defendant is that he is subject to a strict interim supervision order (ISO) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). That order was imposed by Campbell J on 23 August 2016: see State of New South Wales (for the Attorney General of NSW) v Nason [2016] NSWSC 1171. The ISO has been extended by other judges of this Court since then, and will expire absolutely on 20 December 2016.
That ISO was based upon the following "index offence". On 28 March 2010, the defendant entered the home of a family who had been neighbours of his when he was a boy, and who were still the neighbours of his parents. He was armed with a loaded crossbow, along with three knives, and dressed in camouflage gear.
He confronted the occupants, an elderly woman and her middle-aged son. He explained that he was there to exact vengeance upon their son and brother, who the defendant claimed had sexually assaulted him when he was a child. When informed that that person had been deceased for years, he fired an arrow from the crossbow in the direction of the elderly woman. Thankfully, the arrow did not penetrate her body, but it came very close to doing so, in that it passed through the dress she was wearing. After that, the defendant and the man became involved in a struggle, during which the defendant stabbed the victim to the torso with sufficient depth to inflict a laceration to his liver of 5 centimetres.
After that, the defendant demanded that his own father help him to escape, a demand that was refused.
On arrest, the defendant confirmed that his intention had been to kill, and he expressed to police his regret that he had not done so.
As I have said, the motivation for those grave acts of violence was the deeply held belief of the defendant that he had been sexually assaulted as a child. I shall explore later in this judgment whether that is actually true or not.
Quite apart from that belief, the defendant claims that he was badly mistreated as a child by his own family. Indeed, he claims that the mind of his mother was manipulated by the mother of the perpetrator, so that she became adverse to her own son. What is noteworthy is that both the mother of the defendant and his late brother are recorded in the evidence as having denied that his childhood was marked by deprivation or mistreatment; to the contrary, their position is that his was an unremarkable suburban Australian upbringing.
Although he pleaded guilty to one count of wounding with intent to do grievous bodily harm (contrary to s 33(1)(a) of the Crimes Act 1900 (NSW))) and one count of using an offensive weapon with intent to intimidate (contrary to s 33B(1)(a) of the Crimes Act), the defendant has never expressed remorse for what he has done. To the contrary, he has spoken of the injury to the male victim as "collateral damage" (a well-known military euphemism for civilian injury or death). He has also described the position between himself and the family of the man who he believes sexually assaulted him as being "it's even".
On 8 March 2011, Judge Delaney sentenced the defendant for those two offences in the District Court of New South Wales at Sydney. In the remarks on sentence, his Honour noted that the defendant had first needed to be found fit to stand trial before he had entered the pleas of guilty to the two offences. His Honour referred to the acts of the defendant as "these terrible offences". Amply satisfied that the defendant suffered from a psychiatric illness, his Honour regarded protection of the public as an important consideration.
Ultimately, the defendant was sentenced to an overall head sentence of 6 years and 6 months to commence on 28 March 2010, with an overall non-parole period of 4 years to expire on 27 March 2014.
In fact, the defendant was not released to parole on 27 March 2014. That was chiefly because he had declined to enrol in the well-known Violent Offenders Treatment Program (VOTP). He was eventually released to parole on 23 December 2015. Up until the expiry of his sentence in its entirety on 27 September 2016, he was subject to an extremely strict form of parole that equated to being on an ISO.
The offences of 28 March 2010 are not the only offences that the defendant has committed. He has been burdened with a dependence upon heroin and benzodiazepines for many years, and has committed a large number of property offences as a result. Due to the nature of these proceedings, I shall not detail them further.
As for offences of violence, he was convicted of assault occasioning actual bodily harm in 1998. That offence occurred when he was detected stealing from a shop, and punched a store worker a number of times to the head in an effort to escape, thereby causing a split lip to the victim. The defendant was sentenced to 80 hours of community service as a result.
On 7 December 1998, the defendant breached an apprehended violence order (AVO) that had been taken out against him by his mother and father. He did so by knocking loudly on their front door, demanding to be let in, on the very day on which the AVO had been granted. No one was injured. For that offence the defendant was sentenced to a 12 month bond.
More concerningly, on 3 June 2001, the defendant engaged in an agitated dispute with his parents at the family home. Armed with a crossbow, he threatened his father by pointing it at him; no doubt the victim was terrified. The defendant then discharged an arrow into the ceiling of the home. No one was injured. On arrest, the defendant was found to be in possession of a number of items, including two compound bows, three arrows, one pair of numchukas, camouflage clothing, a hunting knife, and a black balaclava.
The defendant was convicted of the offences of intimidation with intent to cause fear and possession or use of a prohibited weapon. He was sentenced to two suspended sentences of imprisonment for 6 months.
That is the extent of the offending against the person of which the defendant has been convicted. Having said that, as recently as June 2015, his mother is recorded as having claimed that the defendant has committed many other acts of violence against members of his family. Furthermore, he has more than once found to be in possession of a knife in a public place.
As I have said, the defendant has been subject to conditional liberty since his release on 23 December 2015. That has been extremely rigorous, and has included urinalysis and electronic monitoring (though concomitant scheduling has recently been dispensed with). Before moving to the boarding house, he was living at the Nunyara Community Offender Support Program (COSP), which is run by the Department of Corrective Services and is adjacent to the prison complex at Long Bay. His response to supervision (whether whilst living at the COSP or the boarding house, and whilst on parole or the ISO) has been very positive: there have been no breaches whatsoever, or even matters of any concern. To the contrary he has been living quietly, seeking work, taking his methadone, abstaining from prohibited drugs, and approaching his relationship with his supervisor as a constructive aid to rehabilitation, rather than a burden. Furthermore, whilst at the COSP he was threatened by another resident with a knife; far from responding violently, he diffused the situation.
Application
It is in that context that, at the final hearing before me on 1 December 2016, the State of New South Wales (the plaintiff) moved upon a Second Further Amended Summons that was filed in Court on that day.
Two orders were sought. The first was order 5. It permits the mandatory reports prepared in accordance with the order of Campbell J to be promulgated beyond the Court. Senior counsel for the defendant did not oppose the making of that order. I accept that that order would further the rehabilitation of the defendant and the interests of the community, and propose to make it.
The other order sought was that the defendant be subject to an extended supervision order (ESO) of 13 months' duration. The proposed conditions feature some amelioration of the restrictions placed upon the defendant over the past 12 months, but are nevertheless stringent.
Senior counsel for the defendant conceded that the ancillary statutory preconditions for the making of such an order had been established. In other words, he accepted that the offence of wounding with intent to do grievous bodily harm contrary to s 33(1)(a) of the Crimes Act is a serious violence offence as defined in s 5A of the Act. He also accepted that the defendant is currently a supervised violent offender, as defined in s 5J(2) of the Act.
He firmly disputed, however, that the central test contained in s 5E of the Act had been established. In other words, he submitted that I could not be 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.
If I were against him on that, his ancillary submission was that, pursuant to s 5F of the Act, I would exercise my discretion not to make the ESO sought by the plaintiff.
If I were against him on that, his further ancillary submission was that a number of proposed conditions of the ESO were "not appropriate", and therefore not within the test for their imposition to be found in s 11 of the Act.
The position of the plaintiff
The plaintiff relied upon a risk assessment report of Dr Richard Parker, a senior psychologist within the Department of Corrective Services. In a nutshell, whilst accepting the inevitable difficulties in seeking to predict the future conduct of an individual person not only from actuarial analysis of groups of people but also from a number of static factors, Dr Parker assessed the risk of the defendant committing a further act of violence, if subject to no further supervision, as being high.
Dr Anthony Samuels, psychiatrist, and Mr Patrick Sheehan, psychologist, each prepared reports in accordance with the preliminary orders made by Campbell J. Mr Sheehan noted the disarray that had marked the life of the defendant in the past, arising at least to some degree from his abuse of prohibited drugs. He noted that the relationship between the defendant and his parents has recently improved; indeed, his plan is to spend a number of days with them at Christmas of this year. Mr Sheehan also expressed reticence about the necessity of some of the proposed conditions. Nevertheless, Mr Sheehan assessed the risk of violence as high.
Dr Samuels took the view that it is neither easy nor necessary to determine whether the defendant was actually sexually assaulted as a child. He did express the concern, however, that there remains a component of mental illness suffered by the defendant, in the form of a delusion, or a personality disorder, or both.
In particular, Dr Samuels was troubled by the fact that the defendant has never expressed any remorse for his actions of 28 March 2010. That fact, combined with the particular reference to "collateral damage", has led Dr Samuels to query whether the defendant continues to suffer from persecutory ideation, upon which he may act in the future.
The position of counsel for the plaintiff may be summarised as follows. It was accepted that the defendant does not have an overly lengthy criminal record for violence. It was also accepted that he has progressed very well over the past 12 months.
On the other hand, it was said that the offences of 3 June 2001 and 28 March 2010 against family and neighbours demonstrate a purposeful readiness to endanger seriously the lives of others.
It was also said that the strict conditional liberty to which the defendant has been subject for the past 12 months has played an important deterrent and rehabilitative role in his success.
In summary, it was said that the central test for making an ESO has been established, and that there is no basis upon which I should exercise my discretion not to do so.
The position of the defendant
Senior counsel placed emphasis on the following factors.
First, the defendant does not have a lengthy record for violence.
Secondly, the index offence, whilst undoubtedly a serious act of violence, is not the most serious that can attract the operation of the Act.
Thirdly, the defendant has proceeded extremely well over the past 12 months.
Fourthly, the evidence is that the former neighbours have moved interstate, and it would be difficult and impractical for the defendant to locate them. In any event, the defendant regards the matter as finished.
As for his family, the evidence is that the relationship of the defendant with them has improved markedly.
Fifthly and finally, there is nothing to suggest that the defendant would offend violently against a random person. Regrettably, the defendant has neither close friends nor an intimate partner. In all of the circumstances, I would not be satisfied that the fundamental test has been made out. In particular, whilst there is always some risk that a person who has offended in the past may offend in the future, the risk of that occurring, on the evidence in this case, is not an unacceptable one.
Determination
Turning to my determination, it is perfectly true that the defendant has progressed very well indeed on conditional liberty; the fact that the plaintiff seeks an ESO of only 13 months' duration is a reflection of that.
Having said that, I think there is force in the submission of the plaintiff that the rigour of that conditional liberty has played a rehabilitative role, and has also been something of a deterrent.
It is also true that the defendant does not have an extensive, chronic record for violence. To be weighed against that is the fact that the offences against the former neighbours occurred six years ago, in 28 March 2010, and the offence against his family occurred as long ago as in 2001. In other words, violence - admittedly sporadic - first appeared as an aspect of the conduct of the defendant 15 years ago.
As well as that, it is not irrelevant that his mother is recorded as saying that there have been many more acts of violence against family members that have never resulted in convictions.
Furthermore, the presentation on both occasions of a crossbow; its discharge on both occasions; the possession on both occasions of a knife; the possession of a black balaclava on the first occasion; the wearing of camouflage gear on the second occasion; and the reference to the serious injury to one of the victims on the second occasion as "collateral damage", in combination raise a real concern in my mind about whether the defendant has a disturbed and untreated interest in military violence.
Thirdly, it is impossible for me to determine whether the defendant was in fact sexually assaulted as a child. But it does seem clear that, whether he was or was not, he regarded and regards the invasive violence that he committed on 28 March 2010 as justified.
Fourthly, on all of the evidence, I believe that the longstanding problem with prohibited drugs of the defendant is well managed by his use of methadone. But I accept the force of the concern expressed by Dr Samuels before me in the witness box: I think there is a significant possibility of an underlying mental condition that is in the nature of a delusion or persecutory ideation.
Turning very briefly to discuss the factors that s 9(3) of the Act requires me to consider: despite the sound progress of the defendant, I think that the safety of the community remains a question of considerable importance. The reports received from Dr Samuels and Mr Sheehan are guardedly optimistic; as I have said, the opinion of Dr Samuels, in particular, concerns me. Statistical and other risk analysis suggests a need for caution about the future. So far the defendant has been managed constructively and positively in the community, and I believe that that can continue. In a sense, the period that the defendant has already spent on parole and subject to an ESO has been a rehabilitation program, and it has borne fruit. For the reasons that I have discussed, the pattern of bizarre offending in the past plays a significant role in my determination. The remarks of Judge Delaney show that his Honour sought to balance, on the one hand the mitigatory effect of psychiatric illness with, on the other hand, the inevitable question of the protection of the community.
Giving weight to all those factors, I have come to the view that the basal test has been established. Despite the sound progress that the defendant has made, I am satisfied that there is an unacceptable risk of him committing a serious violence offence if he is not kept under supervision.
Turning to the discretion to be found in s 9 of the Act, it is true that the continuation of an ESO will place a heavy burden of restriction upon a person who has been progressing very well. On the other hand, the entirety of the period for which the plaintiff contends is a little over a year, in the context of the defendant already having been subject to conditional liberty for the same period. As I have said, I think that that period on balance has been beneficial to the defendant. In the circumstances, I see no discretionary basis upon which I should decline to impose an ESO. Having said that, I consider that 12 months from today would be sufficient.
Turning to the dispute about particular conditions, s 11 of the Act speaks of conditions being imposed that "the Supreme Court considers appropriate". That phrase has been judicially considered, and has been understood as encompassing conditions that are fit and proper when one considers the scope of the Act: State of New South Wales v Tillman [2008] NSWSC 1293 at [68]. It has also been said that such conditions are not to be "unjustifiably onerous or simply punitive": State of New South Wales v Green (Final) [2013] NSWSC 1003 at [37]. Finally, one should bear in mind that breach of an imposed condition constitutes a criminal offence: State of New South Wales v Ali [2010] NSWSC 1045 at [88].
Contrary to the submissions of counsel for the plaintiff, I do not accept that electronic monitoring remains appropriate, as things stand. I say that because, as I have said, the defendant is no longer subject to a regime of scheduling. Nor is he prone to random violence. Monitoring does nothing to prohibit him from obtaining and using prohibited drugs. If he were to abscond, I believe that the authorities would promptly become aware of that. Finally, the authorities are proposing in any event to delete that condition shortly. For all of these reasons, I do not propose to impose condition 5.
As for condition 16, with regard to employment, I accept the opinion of Mr Sheehan that, in the circumstances of this particular case, such a condition should not be the basis of a criminal prosecution if it is breached. And in any event, the evidence is that the defendant is assiduously seeking employment; indeed, once employed, he will be able to afford more salubrious accommodation than the boarding house, something that he would very much like to achieve. Because it is not necessary, I do not propose to make condition 16.
As for condition 17, which requires that the defendant must not start any job, volunteer work or educational course without the approval of his DSO, I think that has an important role to play, and I propose to make it.
Finally, proposed condition 28 is as follows: "If the defendant starts a close or intimate relationship with someone, he has to tell his DSO [Departmental Supervising Officer] who may want to tell the person about his criminal history." Counsel for the plaintiff explained that the concern is, that in the past, the defendant has committed acts of violence against people with whom he had a longstanding relationship (family members, neighbours) and who, he believed, had done him serious wrong. The concern of the State is that that may happen again.
One may seriously doubt whether, in the next 12 months, the defendant will be able to commence and maintain a close relationship of intimacy or indeed friendship. I say that because, regrettably, he has been isolated, socially and romantically, for many years. On the other hand, that ongoing isolation argues in favour of the defendant being called upon to inform the authorities if such a relationship were unexpectedly to develop. On balance, I consider that proposed condition 28 is appropriate.
Orders
I make the following orders:
1. The interim supervision order that was renewed on 22 November 2016 and that expires on 20 December 2016 is quashed.
2. The defendant is subject to a high risk violent offender extended supervision order of 12 month's duration to date from 14 December 2016 and expire on 13 December 2017.
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 (41.9 KB, pdf) attached to this judgment.
4. The reports of Dr Anthony Samuels of 13 October 2016 and Mr Patrick Sheehan of 20 September 2016 may be provided to Corrective Services New South Wales, any agency involved in the defendant's supervision, and the defendant's treating clinician(s) or health care practitioner(s).
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Amendments
22 December 2016 - Minor amendments to conditions attached at order 3.
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Decision last updated: 22 December 2016