State of New South Wales v Noack

Evidence tendered on the application

1. On 11 May 2017, the following evidence was tendered: A. Affidavit of Joanne Mooney, Solicitor, sworn 12 April 2017 exhibiting 2 volumes of material regarding the defendant's criminal record, custody record, and associated documentation, and two detailed Risk Assessment Reports completed by Samuel Ardasinski, psychologist dated September 2016 and March 2017. B. Affidavit of Joanne Mooney sworn 3 May 2017 attaching formal documents and case management notes of the defendant for the period 6 April to 7 May 2017. C. A Risk Management Report of Deborah Maree Thompson dated 15 October 2016. This was augmented by the following material read at the adjourned hearing on 23 May 2017: D. Affidavit of Deborah Maree Thompson sworn 19 May 2017. E. Affidavit of Samuel Ardasinski sworn 19 May 2017. F. Affidavit of Joanne Mooney sworn 19 May 2017. and further affidavits were tendered by the plaintiff at the adjourned hearing on 7 June 2017. These were as follows: G. Affidavit of Paul Edward Bonnett, affirmed 1 June 2017; H. Affidavit of Joanne Mooney, sworn 2 June 2017.

Procedural history and gaps in the evidence presented by the plaintiff

1. The preliminary hearing commenced on 11 May 2017. It became clear during cross-examination of Ms Thomson, Senior Community Corrections Officer, Extended Supervision Order Team, that there were gaps in the evidence relevant to the feasibility of an interim supervision order. The question of available supervision in the Riverina area has not been addressed in the evidence tendered. Given that in October 2016 the defendant had informed staff of the plaintiff that his brother was prepared to provide accommodation at his home in Coolamon (a town about 40 minutes' drive from Wagga Wagga) the suitability of this proposal should have been investigated. Evidence was provided of a small number of unsuitable supervised living options in Sydney only. Ms Thomson confirmed in her evidence that she had not yet commenced the enquiries in relation to the suitability of family's proposed accommodation at Coolamon (T11.30-40), although she had been requested to commence the enquiries. She was unable to explain why this had not been done between October 2016 and May 2017 (T11.34).
2. To allow this to be attended to I stood the matter over part-heard to 23 May 2017. Orders were made for further evidence to be filed and served. Orders facilitating the necessary psychiatric and psychological assessments were made. The issue for determination on 23 May was to be limited to whether I should make an interim detention order or an interim supervision order, counsel for the Crown noting that the adjournment provided an opportunity "to complete further investigations and put some additional evidence as to the Riverina area" (T13.15-16).
3. Rather than directing additional evidence to this outstanding issue, a lengthy affidavit of Mr Ardasinski was tendered which largely re-stated with added emphasis material that was already before me in the reports of Mr Ardasinski tendered on 11 May. On 23 May, Mr Ardasinski was examined regarding the participation of the defendant in available programmes and his view about the defendant's unsuitability for community supervision based on what he had read. He was cross-examined by counsel for the defendant with a particular focus on whether the defendant was likely to ever participate in the type of inmate therapeutic programmes Mr Ardasinski was arguing should be pursued before the defendant is fit to rejoin society.
4. The affidavit of Ms Thomson sworn 19 May 2017 annexed a report authored by a senior community corrections officer local to Coolamon and approved by his supervisor. No affidavit was provided by either of the authors of the report. Ms Thomson was called to give supplementary evidence regarding the asserted unsuitability of the defendant residing in Coolamon with his brother. The defendant's counsel (understandably) took objection to that course and the hearing was stood over part heard to 7 June 2017 to allow that evidence to be provided in proper form.
5. On 7 June 2017, an affidavit of Paul Bonnett, a senior officer from Community Corrections in Wagga Wagga was tendered. He gave oral evidence and was cross-examined by counsel for the defendant. This evidence addressed the availability of supervision for the defendant should I make an interim order for supervision involving residence at his brother's home in Coolamon, and addressed the bases of the "unsuitable" determination. One of the bases was reliance upon "intelligence" which was later withdrawn by the plaintiff as no evidence could be placed before my about that matter. I reserved my decision.

Issues for determination at preliminary hearing

1. The authority for me to make the orders sought arises where the person in question is a "high risk offender" within the meaning of the Crimes (High Risk Offenders) Act 2006 (NSW) s 5E(1). As stated in the submissions filed on behalf of the plaintiff, an offender is a high risk offender if he is a violent offender and the court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.
2. Before final orders can be made, the court must conduct a preliminary hearing into the application. If the court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making the orders sought, then the court must make orders appointing two qualified persons to conduct separate psychiatric or psychological examinations of the offender and to furnish the reports to the court. If, following the preliminary hearing, the court is not satisfied in these terms, the court must dismiss the application.
3. The defendant conceded in its written submissions (and orally) that the court could be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order. The position as to whether a Court should make such orders on final hearing was expressly reserved.
4. As stated in Attorney-General for New South Wales v Tillman [2007] NSWCA 119 at [98], there is no requirement at this stage to weigh up the documentation or predict the ultimate result or to consider what evidence the defendant may call at final hearing. Based on the evidence tendered on 11 May 2017 including the two Risk Assessment reports of Mr Ardasinski, psychologist, dated September 2016 and March 2017, the Risk Management report of Debbie Thompson of 15 October 2016 and the extensive records exhibited to Ms Mooney's affidavit of 24 April 2017 which included the defendant's criminal antecedents and custodial history records with multiple incidents of violence whilst in custody, I am satisfied that the concession made by counsel for the defendant is correctly made. Accordingly, I made orders on 11 May 2017 appointing one specialist psychiatrist and one registered psychologist to assess the defendant and directed that the defendant attend examinations by those specialists, together with orders for service of evidence and submissions for the final hearing on 4 August 2017.
5. The issue remains as to whether the appropriate interim order should be for continued detention or for supervision. This is a difficult issue. As the test involves consideration of the Court's task on final hearing, it is necessary to have regard to the s 17(4) criteria (Attorney-General of New South Wales v Tillman [2007] NSWSC 605). Relevantly to this question, those criteria are: (a) the safety of the community, (b) the reports received from the persons appointed under section 15 (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 interim supervision order or an 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 continuing detention order) or serious violence offences (in the case of an application for a high risk violent offender continuing detention order), (j) in the case of an application made on the basis that the offender has been found guilty of an offence of failing to comply with the requirements of an extended supervision order or interim supervision order-the nature of the failure to comply with those requirements and the likelihood of further failures to comply, (k) in the case of an application made on the basis that circumstances have altered since the making of an extended supervision order or interim supervision order against the offender-whether circumstances have altered since the making of the order and whether those altered circumstances mean that adequate supervision cannot be provided under an extended supervision order or an interim supervision order.
6. The safety of the community is of course a primary concern, but the release of any offender is a risk.
7. There have been periods of calm and progress and cooperation in custody interspersed with incidents of aggression and threats of violence, sudden escalations and non-cooperation with officers, programs and initiatives. There have been no serious violence offences since the index offence. In fact, the only "serious violence offence" as defined in s 5A the Act was committed by the defendant whilst in custody in 2012. It involved an attack on an inmate asserted to have been involved on a sexual attack on a child as the defendant understood it at that time. The defendant is antagonistic to sex offenders as he holds the view that his mother committed suicide after participation as a complainant in a rape trial where the alleged perpetrator was not convicted (report of Ms Duffy, Psychologist, September 2014, page 3). This in no way excuses the attack but was a matter taken into account on sentence by Chief Judge Blanch.
8. Given one of the matters for consideration pursuant to s 17(4) of the Act is the likelihood of commission of a serious violence offence, it is relevant that the defendant is more likely to be aware of and come into contact with known sex offenders in detention rather than on interim supervision in the community.
9. There was little emphasis, if any, applied by the plaintiff in submissions and Mr Ardasinski in his evidence to any positive interactions, incidents and reports in the defendant's OIMS notes. Mr Ardasinski said in his evidence that he had not seen any. This is surprising as there were many. The OIMS records do indicate however that his behaviour fluctuated and it markedly deteriorated after April 2017. It was acknowledged by Mr Ardasinski, that learning of a summons for a continuing detention order filed against him probably would have a destabilising effect on the defendant, or "anyone that it is put against" (T38 1-17).
10. These more recent behavioural concerns are set against a background of many years of violent offending as set out in the risk assessment report of Mr Ardasinski prepared in June 2016:

• 11 June 1999 - whilst inebriated, assaulting police officers in execution of their duty as well as property damage to his father's Department of Housing accommodation and a vehicle parked in the golf club car park at Leeton
• 10 December 1999 - in Rockhampton, Queensland, convicted of assault police officer after being asked to stop for a breath test after running a red light.
• 8 May 2000 - convicted of intimidation and low-range PCA
• 8 April 2002 - convicted of assault occasioning actual bodily harm, affray, being armed with intent to commit an indictable offence, and carrying a cutting weapon upon being apprehended having custody of an offensive implement in a public place as well as some property damage offences which all appear to have arisen out of the defendant cruising the streets of Wagga Wagga with associates and being embroiled in a fight which included the defendant pulling a 10 centimetre knife on a group of men and women in a threatening manner.
• 31 May 2004 - the defendant was arrested after committing some damage to property outside a pub, and then on inspection by police officers was, found to have in his possession a small knife. It is asserted the defendant threatened the arresting police officer and the officer's family during the journey back to the police station.
• 11 April 2005 - the defendant was convicted of assault occasioning actual bodily harm involving a street brawl in Leeton in which the victim suffered facial lacerations requiring 12 stitches.
• 6 May 2005 - the defendant was convicted of having custody of a knife in a public place and it is asserted he secreted two throwing knives in his trousers which dropped onto the roadside when he exited a vehicle having been searched by police.
• 24 November 2008 - in Western Australia, he was convicted of assaulting a public officer, namely a Greyhound Bus driver, where he missed his connecting bus to Perth because of bus delays. The assault involved punching the driver in the head and then retrieving a sock containing billiard balls from his bag and striking the victim a number of times with this weapon.
• 9 January 2008 - convicted of recklessly cause injury, as well as possessing a controlled weapon without excuse, being drunk in public and resisting arrest. (There is no explanatory material relating to the set of interstate offences).
• 8 October 2010 - convicted of assault with intent to take/drive motor vehicle. This involved the defendant grabbing an 18 year old male exiting his vehicle in the Albury Myer car park, demanding his keys, and driving the man's car away. He was convicted of being in possession of an unauthorised firearm, namely a pump-action shotgun which was reasonably suspected of being stolen.
• 16 December 2011 - convicted of assault occasioning actual bodily harm where he punched the victim in retaliation for the victim badmouthing him in Leeton. The defendant placed him in a chokehold and was interrupted by an associate who went to the victim's aid when he started to lose consciousness. It is alleged that the defendant returned to the victim with a claw hammer, but did not further assault the victim. The defendant handed himself in to police after his associate was arrested for his involvement in the offence.

1. It is also asserted that the defendant has a number of criminal charges relating to driving offences including drink driving, car thefts as a younger man, obstruction of justice, goods in custody, and drug offences. It is asserted that there are a number of other uncharged acts and allegations of more violence against other inmates ranging from minor assaults involving throwing water or other objects at staff or other inmates and involvement in "prison riot" behaviour. The number and frequency of all of these offences is a concern.
2. Mr Ardasinski's view of risk was, in summary, that there is a high risk of violent offending based on the application of various statistical models. He had only a 15-minute discussion with the defendant. The defendant had refused an assessment by Mr Ardasinski. He did not conclude that there was a risk of commission of a serious violence offence, and it is the latter with which s 17(3)(i) is concerned. Mr Ardasinski was however concerned about how the defendant would function on release.
3. On the question of previous compliance with parole, Ms Abreu, in her report of 24 February 2016, notes having been told by the defendant that he was struggling in 2013 to deal with the routines of living in a COSP with conditional liberty, but documents drawn up at the time indicate the concerns he held were not that simple. A letter to the State Parole Authority dated 13 March 2013 and a Breach of Parole report dated 13 March 2013 evidence that the defendant indicated the outstanding Court matters had him "sitting in limbo", "delaying the inevitable" as well as concerns that he was not fitting in with society and could not cope.
4. As submitted by counsel for the Defendant, the circumstances of the request for revocation of parole and return to custody in February 2013 were due to the inevitability of his return to custody associated with that offence. It was submitted that in the circumstances, the request to return to custody indicated a degree of maturity and insight. Also at the time, the defendant had no family support. That situation does not currently apply.

Determination as to whether there should be interim detention or supervision.

1. The legislative purpose of the Act is protective, not punitive, and as appears from the terms of s 3, the protective purpose is fundamental: State of New South Wales v Burchell [2017] NSWSC 712, [3] per Adamson J. Section 3 of the Act provides that the primary object of the Act is to provide for the extended supervision and continuing detention of high risk violent offenders so as to ensure the safety and protection of the community. It also notes another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.
2. There have been limits to the rehabilitation undertaken by the defendant, but a number of those limits relate to issues with the programs beyond the defendant's control, both in terms of general availability and his permission to attend given security concerns that did not necessarily relate to conduct of the defendant, but included security concerns and conduct of other inmates .
3. The position adopted by the plaintiff in its evidence and submissions was that appropriate supervision could not be provided to the defendant in the community, and accordingly a continuing detention order was required. The evidence suggested however that it could be provided, but would be difficult. It was also argued that a continuing detention order would provide the defendant with rehabilitation opportunities. However, the evidence did not show that rehabilitation would in fact be provided for the defendant even if he remained on a continuing detention order.
4. There is no guarantee that the defendant would ever be accepted into the "VOTP", a 12 month "Violent Offenders Treatment Program. He has refused participation in the past. The current OIMS records annexed to the affidavits of Ms Mooney covering April, May and June 2017 contain repeated references to the defendant being a high-risk inmate and being segregated for the good order of the facility. It was submitted on behalf of the defendant that, based on the evidence, there can be no confidence, let alone certainty, that the defendant would ever commence the VOTP, let alone complete it. I accept that submission. It is clear that a number of requirements would need to be met before the defendant could be accepted into the VOTP, including that the defendant make an application, that there is a referral and a positive review for eligibility and suitability as well as security assessments, intel checks, and canvassing of non-association alerts with other offenders housed in the MSPC (Exhibit D, pp 23-24). Counsel for the plaintiff conceded that there was no "absolute guarantee" that the defendant would be accepted into the VOTP, but the evidence goes further than that and suggests it is unlikely that the defendant will be accepted into that program or to follow it to completion.
5. The secondary position of the plaintiff was that any extended supervision ought to be administered by residence in Sydney, although no appropriate accommodation option in Sydney was identified, and the defendant has no family supports in Sydney. In addition to personal family support, there was evidence before me that the defendant's brother was prepared to provide accommodation and practical support to attend necessary therapies and reporting to Community Corrections.
6. Evidence was provided in Mr Bonnett's affidavit that an officer had conducted a pre-release home visit to the defendant's brother's house. The evidence indicated that whilst the accommodation and support to be provided by the brother and housemate was potentially beneficial, the accommodation was held to be "unsuitable" in discussion between Mr Neville and his supervisor Mr Bonnett because of concerns as to the staff safety, a "one-man" and on occasion unmanned police station at Coolamon and a question mark as to whether appropriate therapies could be made available.
7. There was evidence from Mr Bonnett that after this determination he made inquiries with a local psychologist in Wagga Wagga who confirmed that she would be prepared to undertake assessment of what interventions she might be able to offer on an ongoing basis for the defendant, if necessary by AVL, and that she had experience working in prison.
8. A number of triggers for the defendant's behaviours arise from his detention situation. It is clear that the defendant's behaviour deteriorated after April 2017 and, it seems, in the context of these proceedings. Mr Ardasinski acknowledged a number of times throughout his reports that "being detained in custody after the expiry of his sentence may also foster Mr Noack's anti-authority grievances further." It was argued on behalf of the plaintiff that this did not bode well for stress reactions if the defendant was on supervision in the community and faced difficulties. I do not agree that this assertion is necessarily correct. As stated by McCallum J in State of New South Wales v Bugmy (preliminary hearing) [2016] NSWSC 1128 at [47], "the implicit assumption of the Act (that high risk offenders can be turned into safer people while being kept in gaol) may warrant closer testing".
9. Evidence was placed before me regarding the unsuitability of various residential centres in Sydney, yet the plaintiff submitted that I should make an order that the defendant must live at an address approved by his departmental supervising officer, and that should be in Sydney rather than in Coolamon.
10. I find this submission difficult to understand and lacking in practicality or valid rationale. In Coolamon, the defendant has the support of his brother and the residence itself has been assessed as not inappropriate. The reason the plaintiff argues that the defendant should not be released to reside in Coolamon is a concern that the Wagga Wagga Community Corrections Centre may not have capacity to adequately supervise the defendant in that community given his past criminal history, the recent custodial behaviour, Mr Ardasinski's opinions about the defendant being an untreated person at high risk of violent offending (not serious violent offending), a history of non-compliance with supervision orders, and the capacity of community corrections officers to conduct planned and unplanned visits.
11. Evidence from a senior community corrections officer from Wagga Wagga, Paul Bonnett, spoke of the need to have two correctional officers assigned to conduct home visits on the defendant and that for the first six months and that the officers would need to be accompanied by a police officer for support. This is based on his experience arranging two other violent offenders on suspension so clearly this has been able to be done in the past. Whilst there was some evidence that "the ESO team" based in Sydney has "police officers" assigned to it, there was no evidence before me as to what that involved and how that would differ in practice to what would be able to be provided to the defendant at Coolamon, assisted if necessary by Wagga Wagga Police. Mr Bonnett gave evidence that Wagga Wagga police have not "always" been available to immediately assist in the event that an unplanned attendance was required but I have no evidence before me that the same situation would not apply to any such resource where assistance is sought without notice, whether this is in country New South Wales or in the Sydney Metropolitan area.
12. There was a submission made by counsel for the plaintiff that Sydney has "more psychologists" and therefore more options for psychological support for the defendant. This is not a submission that is of any assistance in a vacuum where the suburb in which it is proposed the defendant resides is unknown, the availability and/or strain on psychological resources is unknown, and how the defendant will be able to pay his bills and conduct his life in Sydney is also unknown.
13. In my view, the support of family has potentially great value for the defendant and is something that was not available to him last time he was released from custody. It was submitted on behalf of the defendant that Mr Bonnett's evidence indicated that police have, in the past, assisted with visits to two offenders on an extended supervision order in the Wagga Wagga district. It is clear that arrangements can be made for planned visits, and on the occasion when there is the need for an unplanned visit, there may be delays in police availability if the police officer stationed in Coolamon is unavailable and there has to be assistance brought in. It was submitted on behalf of the defendant that the potential for police to take time to accompany a response is not itself a sufficient factor to refuse to place the defendant with his family in a rural environment which he has been used to since childhood. I accept that submission.
14. A local psychologist has indicated that she is prepared to assess the defendant. That local psychologist has had experience with violent offenders. I also accept the defendant's submission that, in contrast to the situation in custody, pursuant to an ESO, conditions can be put in place requiring a defendant to attend upon treatment and services and if he fails to do so, the implications for him are severe.
15. In the circumstances, I have determined that adequate supervision can be provided in that community and it is appropriate to make an interim supervision order with a requirement that the defendant reside at his brother's address in Coolamon.

Conditions of the interim supervision order and other protective factors

1. The constellation of conditions prepared by the Crown are, in my view, appropriate with a modification to condition 12, to provide for the defendant to reside at Coolamon.
2. It was submitted on behalf of the defendant that difficulties are created by proposed condition 24 precluding the defendant from entering any licenced premises without the approval of his DSO. It was submitted that many premises are licenced and that there is already an obligation upon the defendant not to drink alcohol. It was submitted that in those circumstances, the prohibition on entering licenced premises without approval is unnecessarily restrictive and inappropriate in the circumstances.
3. I do not accept that submission. Certainly from the point of view of interim conditions, it is preferable and protective of the community and the defendant himself to avoid licenced premises where other persons have been drinking alcohol. It is appropriate given the terms of the interim supervision order that the defendant remain mindful at all times of his requirement to focus on his conduct, avoiding situations where there is any risk that he may breach the conditions with which he must comply.
4. In those circumstances, I make the following orders: 1. Pursuant to ss 10B and 10C of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant should be subject to an interim supervision order from 21 June 2017 for a period of 28 days. 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is directed to comply with the conditions set out in the Schedule to these orders which I will initial and date and place on the court file for the duration of the order made in order 1. 3. Condition 12 of the Schedule to these orders is modified to state "the defendant must live at his brother's home in Coolamon". 4. The parties have liberty to relist the matter on one working day's notice.

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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: 19 June 2017