State of New South Wales v O'Hara

The HRO Act

1. I described the operation of the HRO Act in the State of New South Wales v Baldwin [2019] NSWSC 1882 in [5] to [20] ("Baldwin") and State of New South Wales v GJO (Final) [2020] NSWSC 1412 at [5] to [23]. I will not repeat that discussion, it should be read together with this judgment. At this point I note two further matters.
2. First, as this is an application for an ISO and to appoint two psychiatrists or psychologists to examine the defendant, it is to be assessed on the basis of whether the matters alleged in the supporting documentation would, if proved, justify granting the relief sought (s 10A(b); s 7(4)).
3. Second, given the debate on this application was principally concerned with the appropriate conditions attaching to an ISO then the follow passage from Lynn v State of New South Wales [2016] NSWCA 57 at [124] ("Lyn") concerning the relationship between the potential conditions that might be imposed and the identified risk is apposite. "The exercise required by the statute in considering an application for an extended supervision order can be broken down into four steps, which are not appropriately described as temporal stages, one consequent on the other; rather, they interlock. The steps are to identify (i) the nature and seriousness of the risk posed by the offender with respect to further serious violence offences, (ii) the appropriate conditions which might be imposed as part of an extended supervision order, (iii) the likely effect of such an order in removing or diminishing the risk and (iv), if an order is otherwise appropriate, whether there are factors personal to the offender which would militate against making the order."

Offending History

1. The defendant is just under 46 years of age. The material tendered on this application indicates that he has a long history of committing crimes of violence, most of which involve him having made a disproportionate response, sometimes grossly disproportionate, to an actual or perceived threat.
2. The State's submissions on this application summarise the applicant's upbringing as being marked by physical abuse, both within his home and in boys' homes. The material that was tendered bears out that assessment.
3. The defendant's criminal record commences with a number of convictions for assault, stealing and threatening police in 1989 when he was nearly 14 years of age. Some of these charges arose out of an incident on 4 July 1989 when he attempted to steal money from an opal shop in the centre of Sydney and absconded. At one point while being chased he threatened two shop assistants and others with a smashed bottle. The various sets of police facts that were tendered in relation to the other assault convictions reveal that they arose out of either interaction with the police or attacks on members of the public. Between 1989 and 1995 the defendant accumulated convictions for offences of dishonesty and violence. As an indication of how his offending was escalating, in August 1994 he was charged with possession of a pistol and a month later charged with assault with intent to rob.
4. Of much greater significance is that on 1 November 1996 the defendant pleaded guilty to an indictment that charged him with committing murder on 5 March 1995. For that offence, on 11 December 1996 Sully J sentenced him to imprisonment for 12 years and 10 months with a minimum term of eight years and 10 months. The sentence was fixed to commence on 31 May 1997. It seems that the defendant had been arrested on 18 March 1995 on the charge of murder, refused bail, but on or about 31 May 1996 commenced serving a sentence of 12 months for two offences of assault occasioning actual bodily harm committed in custody. Hence, Sully J reduced the sentence imposed on the defendant for murder by one year and two months, being the period from March 1995 to May 1996, but fixed it to commence on 31 May 1997. Were it not for that adjustment the sentence imposed on the defendant would have been 14 years' imprisonment.
5. The facts found by Sully J in relation to the crime of murder essentially comprise the following. On about 3 March 1995, five individuals burgled a house in Roseville and triggered an alarm before managing to get access to a safe. The following night, some of them returned. They persuaded the defendant to join them and asked him to bring a gun. He went to the house with two co-offenders but in the meantime the homeowner had arranged for a security guard to be present. The security guard intercepted a co-offender and held him down. The co-offender called out to the defendant in an attempt to get assistance. The defendant fired a warning shot to dissuade the guard to stop holding the co-offender. The offender later claimed to police that he feared being shot in the back as he left the scene, so he shot at the guard from a distance of about 20 metres but aimed down towards the ground. Sully J accepted the defendant did not intend to kill but found that he acted with reckless indifference to human life by discharging a shot into the darkness in the direction of the victim. Otherwise, it should be noted that Sully J's reasons contained a very careful analysis of the defendant's subjective case which involved mostly a full acceptance of the difficult upbringing he had experienced.
6. It seems that at some point the 12 month sentence imposed for actual bodily harm committed in custody was increased on appeal to 18 months. One of those offences involved the infliction of what was said to be a burn mark on another prisoner. Further, the defendant was convicted of assaulting a prison officer in the execution of his duty in 1998 and was sentenced to a fixed term of six months' imprisonment.
7. On 1 October 2009 the defendant committed the index offence, that is the offence of causing grievous bodily harm with intention to commit grievous bodily harm. It seems that the offence was preceded by an argument between the defendant and the victim, who was another prisoner. It seems that the victim was a champion kick boxer who was on remand for drug importation. The defendant had possession of a pillowcase in which he concealed a sandwich press. The two of them were separated following an argument during which there was some evidence that the victim had tried to choke the defendant in the cell. In any event, the victim sat downstairs in the pod area of the gaol. He was approached from behind by the defendant who swung the pillowcase two-handed at the victim's head knocking him unconscious to the ground. A second blow was landed in an overhead fashion before the defendant was restrained. The victim suffered hearing loss, disfigurement to his right ear and neurological difficulties. When he was interviewed the defendant said the victim had made a threat to him and "so I was going to kill him first before he got to me".
8. On 3 September 2010 police attempted to arrest the defendant and charged him with the index offence when he reported on bail for another matter. However, he fled, and he was not arrested until November 2010 when he was formally charged.
9. The defendant was convicted at trial of causing grievous bodily harm with intent to cause grievous bodily harm but was acquitted of causing grievous bodily harm with intent to murder.
10. It is clear from the above narrative that, even though the offence was committed in October 2009, the defendant was not formally charged until November 2010. In the meantime he had been released from custody on the expiry of his murder sentence. After he was arrested in November 2010 and charged, he was released on bail again on 13 January 2011. His freedom did not last long as on 29 January 2011 his bail was revoked after he was charged with committing offences while out of custody including reckless wounding on 8 November 2010, break enter and steal on 20 January 2011 and 26 January 2011. The reckless wounding charge arose out of an argument between the defendant and another patron at a pub who was playing poker machines. The defendant stabbed him.
11. For the offences committed in November 2010 and January 2011, the offender was convicted in October 2012. He was sentenced to 7 years' imprisonment with a 3½ year non-parole period commencing 1 January 2011.
12. In the meantime, on 14 December 2012 a jury convicted the defendant of the index offence. For that he was sentenced on 19 July 2013 to nine years' imprisonment commencing 26 November 2012 with a non-parole period of four and a half years. It is that sentence which expires on 25 November 2021. It seems the defendant has not been released on parole in the meantime.
13. Otherwise, I note that, in his careful submissions, counsel for the defendant, Mr Kerkyasharian, pointed to the material indicating that, at least for a period when he was on release, he was offence free and that those offences that were committed in November 2010 were committed while the client was aware that he was wanted for the index offence. The material that was tendered for the State also indicated that after he committed the offence in November 2010 the defendant was himself attacked.
14. Since these events, the defendant has accumulated two further convictions of violence. On 13 July 2017, he was involved in the assault of another inmate at a correctional centre. Another inmate had stabbed the victim in the back and a third inmate had tried to stop the victim leaving a yard after which it is said the defendant removed his shirt and shaped up to the victim. He was initially charged with reckless wounding, but that charge was withdrawn and instead he was sentenced to 10 months' imprisonment for assault, to date from 15 July 2018.
15. On 17 December 2016, the defendant recklessly caused grievous bodily harm to another inmate at the correctional centre. He attacked the victim from behind in a communal kitchen striking the right side of the head and causing a fracture of the face including the cheek bone, eye socket and sinus, all of which required surgical fixation. For this offence, on 1 November 2018 he was sentenced to 3 years' imprisonment to date from 25 May 2017 with a non-parole period of 1 year. The total sentence expired on 24 May 2010.
16. Three further matters should be noted at this stage. First, the State's submissions refer to various instances where the defendant was charged with offences of violence but not ultimately convicted. Beyond what I have already stated, it is not necessary to address the relevance of those matters because the material that did result in convictions is more than sufficient to justify an ISO and the material concerning the unproven charges does not assist in the resolution of the debate about what conditions are appropriate.
17. Second, the material tendered by the State reveals numerous instances of institutional misconduct by the defendant while he was incarcerated.
18. Third, in terms of the progress in rehabilitation while in custody, the defendant attempted to complete the Violent Offenders Therapeutic Programme ("VOTP") while in custody but was unable to do so. An assessment undertaken this year determined he was unsuitable for the programme. The defendant has completed three "EQUIPS" programmes (Explore Question Understand Investigate Practise and Succeed), being the core or foundation programme and the aggression addiction programmes. He undertook them during the period 2018 to 2020. The material also indicates he has engaged in employment in custody for about 14 months since 2018. He also completed a cognitive behaviour therapy based programme in 2003.
19. Mr Kerkyasharian drew the Court's attention to a Corrective Services case note dated 11 June 2021 which recorded what appeared to be a considered assessment by a staff member that the defendant had "turned the corner" and was "addressing his previous bad behaviours".

Psychological and Psychiatric Reports

1. The State tendered numerous psychological and psychiatric reports which went back over many years. I have considered them. Overall they paint a relatively depressing picture of someone with a violent history which appears to largely stem from numerous personal disadvantages and who is at risk of being institutionalised, if he has not already. For example, in a report dated 12 June 2018 by a psychologist, Ms Anne Lucas, it was stated (at [76]): "His lengthy imprisonment has left him with functional deficits which will need to be addressed. He is 'institutionalised' and poorly equipped to manage life outside a custodial environment. If he is released without addressing adaptive functional deficits it is suggested that the trajectory of his community rehabilitation will be extremely poor. His natural defensiveness and mistrust of authority will make it difficult for him to seek help in an appropriate manner and most probably drive him back to old patterns of association and behaviour if a viable pathway is not offered."
2. Two particular reports should be noted. The first is a Risk Assessment Report prepared on or about 1 April 2021 by a senior psychologist within the serious offenders assessment unit, Samuel Ardasinski. The report comprehensively reviews the available material concerning the defendant. Under the heading "Risk Scenario" it is observed that (at [45]): "Mr O'Hara's most likely scenario for further violent offending would involve his feeling threatened, either through some perceived slight or being challenged, and retaliating or engaging in some pre-emptive strike to avoid being harmed himself. Considering his capacity for serious violence, both when using weapons or without them, [there] remains a considerable likelihood that Mr O'Hara may engage in serious violence in such a scenario."
3. In the conclusion section of the report Mr Ardasinski notes that, in his view, the defendant's risk of violent reoffending is in the high risk category relative to other men who have offended violently. He adds that "with an appropriate risk mitigation plan Mr O'Hara's risk can be adequately managed in the community provided he is supervised closely".
4. To that end, he notes that in the event the defendant was considered suitable for an ESO the defendant "would be subject to intensive supervision, strict monitoring and case management" by Corrective Services New South Wales which would include various measures which largely reflect the proposed conditions and include electronic monitoring.
5. In his submissions, Mr Kerkyasharian focused on the scenario described above of this report as something that epitomised the relevant risk suggested by the material as being posed by the defendant. Mr Kerkyasharian did so in the context of contending that the relevant conditions attaching to any ISO should be addressed to that scenario.
6. The material that was tendered on this application bears out Mr Ardasinski's assessment as to "the most likely scenario for further violent offending". However that is not the only realistic scenario involving the commission of serious violence offences by the defendant that is suggested by the material. That scenario does not address the events surrounding the defendant's conviction for murder and does not appear to describe the knife attack that was perpetrated in November 2010.
7. The second report to note is the Risk Management Report dated 6 May 2021 prepared by members of the supervision team within Corrective Services New South Wales. This report notes the defendant did not cooperate in its preparation, although this appears to be in part related to his disgruntlement as it seems unlikely at this stage he may be able to live near his mother. Subject to that constraint the report outlines the terms of the management plan for the defendant which is largely reflected in the proposed conditions. Mr Kerkyasharian noted that the risk management plan proposes various means of monitoring the defendant other than using electronic monitoring which is covert surveillance and home visits. In relation to electronic monitoring this report stated (at p 4): "Electronic monitoring would assist Community Corrections to monitor Mr O'Hara's adherence to his schedule of movements and enable regular movement audits to be conducted which would assist the ESO team to identify any concerning patterns in his behaviour that may be related to his identified risk factors. Additionally, electronic monitoring is necessary to enforce exclusion zones for the defendant in regard to potential victims or identified locations which may place the defendant at a higher risk of serious reoffence."
8. This passage refers to addressing "identified risk factors". Those factors are identified earlier in the report as being "hypervigilance to threats, perceiving a slight or threat, feeling challenged, substance abuse, limited pro-social support network, considering level of institutionalisation, lack of pro-social history, poor coping skills".
9. Consistent with his earlier submissions Mr Kerkyasharian submitted that, properly analysed, electronic monitoring does not truly address these risk factors as identified. He submitted that it has the potential to exacerbate those risk factors in that the wearing of ankle bracelets is likely to impact upon the defendant's ability to form a pro-social relationship. There is considerable force in that submission. It is a submission that might be accepted at a final hearing. However, at this point it suffices to state that, consistent with what I have stated earlier, I do not accept that the risk profile is as limited as the report suggests. The starting point for any assessment of future risk is past events. The defendant's past events include a conviction for murder that is not confined to the exact risk profile and represents a scenario that is something that could be addressed, albeit without the elimination of the risk, by electronic monitoring.

The ISO Should be Made

1. Division 1 of Pt 2 of the HRO Act specifies various preliminary matters and the requirements for the making of an ESO which are also applicable to an ISO. Subsection 6 (1) provides that the application must be made in the last nine months of the offender's current custody or supervision. That condition has clearly been complied with. Subsection 6(3) provides that the application must be supported by various forms of documentation, a condition which has also been complied with. Subsections 7(1) and 7(2) impose requirements concerning the timing and service of documents and they have been complied with. Subsection 7(3) requires that a preliminary hearing is to be conducted by this court within twenty eight days of the application being filed or within such further time as the Supreme Court may allow. I understand that such orders have been made.
2. As already noted, s 7(4) and s 10A direct attention to whether the matters alleged in the supporting documentation would, if proved, justify making an ISO. This in turn directs attention to s 5B of the Act. There is no doubt the defendant is an offender. He is also a "supervised offender" (s 5B(d)) in that he is in custody. As to whether he presents an unacceptable risk, the various assessments that I have referred to demonstrate that he represents a high risk to the community of committing a serious offence, specifically a serious violent offence. As for whether the risk is unacceptable if he is not kept under supervision and whether to make the ISO, two further topics need to be addressed.
3. First, there are the various factors in s 9(3). Section 9(3)(b) refers to the reports received under s 7(4) which is of no relevance at this point. Subsection 9(3)(c) refers to the results of other assessments prepared by qualified psychiatrists, psychologists or medical practitioners. I have already described those assessments. Section 9(3)(d) refers to the results of statistical or other assessments and the likelihood of the person's history and characteristics similar to those of the defendant committing a further serious offence. The reports to which I have referred all contain the outcome of such assessments and they are uniform in suggesting that he represents a high risk.
4. Section 9(3)(d1) requires that consideration be given to reports prepared by Corrective Services New South Wales, specifically the risk management report, which I have already discussed. Section 9(3)(e) requires that reference be made to the offender's participation and treatment in rehabilitation programs, a matter I have also referred to. Subsection 9(3)(e)(1) refers to the options that are available if the offender is kept in custody or in the community and will reduce the likelihood of the offender re-offending over time. Subsection 9(3)(e)(2) refers to the likelihood the offender will comply with the obligations of an ISO. The material referred to is fairly equivocal about the likelihood of the defendant complying with conditions attaching to an ISO. He has spent little time in the community over the last twenty five years. His period of freedom in 2010 commenced being unsupervised. The case notes adverted to earlier provide some cause for optimism.
5. Section 9(3)(f) refers to the offender's compliance with the obligations to which he has been subject while released on parole. So far as I can ascertain, he has never been released on parole. Section 9(3)(g) refers to various obligations under legislation that has no relevance to him. Subsection 9(3)(h) requires consideration of his criminal history, a matter I have already outlined. Subsection 9(3)(h)(i) requires that consideration be given to the views of the sentencing court, a matter I have already referred to.
6. The second point to note is that, consistent with the above passage from Lyn, the proposed conditions to which I have referred have to be considered when making an ISO. Overall, I have no doubt that, unless supervised, the matters alleged in the supporting documentation demonstrate that there is an unacceptable risk of the defendant committing another serious offence. In that regard, the proposed conditions provide a regime of close supervision and, subject to the points that I will address, are appropriate having regard to the risk he poses from the material I have described.
7. In his submissions, Mr Kerkyasharian disputed the imposition of five aspects of the proposed conditions. In considering whether they should be imposed three matters should be noted at the outset. First, the test for the imposition of the condition is not whether the condition is "necessary" but whether the condition is "appropriate" (s 11). Second, in this case, the material uniformly describes the risk of further violent offending being committed by the offender as high. Third, just because a condition merely aids in the enforcement of other conditions does not mean that it is not "appropriate".
8. The first condition disputed by Mr Kerkyasharian is proposed condition 4 which, if imposed, would require the defendant to wear electronic monitoring equipment if directed to do so. The second condition addressed by Mr Kerkyasharian is proposed condition 8 which, if imposed, involves the imposition of a curfew between 9pm and 6am. As already stated, Mr Kerkyasharian's principal objection to the electronic monitoring is that it is not a measure that is related to the risk posed by the defendant in that the risk he poses does not appear to arise from him moving from to any particular locality or premises but is more a risk that arises from potential disproportionate responses to slights or other stressors (State of New South Wales v McGorm [2019] NSWSC 485 at [271]). As noted, Mr Kerkyasharian stressed the potential stigmatism of the defendant that might arise from his wearing an ankle bracelet (State of New South Wales v Mikua [2021] NSWSC 1240 at [99]).
9. It follows from what I have already stated that I consider the material suggests that at least some aspects of the risk posed by the applicant can be attenuated to some degree by electronic monitoring. The defendant murdered someone at night during an organised break in. At least at this stage, electronic monitoring, a curfew of some length, and other forms of surveillance, would appear to address that aspect of the risk he poses. I will impose proposed condition four concerning electronic monitoring. As for the curfew, the real debate concerned the length. I will impose proposed condition 9 except that the curfew will commence at 10pm and not 9pm.
10. Third, Mr Kerkyasharian took issue with proposed condition 27 which purports to oblige the defendant to agree to his supervising officer disclosing his criminal history to another person if the disclosure is considered reasonably necessary. Mr Kerkyasharian noted that other proposed conditions, namely 53, 54 and 55 concern information sharing between various treatment providers, various healthcare professionals and State agencies. The debate about proposed condition 27 became slightly mired in the complexity of the privacy legislation. Ultimately, the State contended that this condition was appropriate because it facilitated a means of addressing the relevant risk and allowing for disclosure of the defendant's criminal history to those who safety might be affected.
11. The State submitted that the utility of the condition was to avoid any potential breach of s 257(1) of the Crimes (Administration of Sentencing) Act 1999 which relevantly provides: (1) A person must not disclose any information obtained, or to which the person otherwise has or had access, in connection with the administration or execution of this Act unless that disclosure is made - (a) with the consent of the person from whom the information was obtained, or (b) in connection with the administration or execution of this Act, or (b1) in connection with the administration or execution of a law of some other State or Territory in its application to an inmate who has been, or is to be, transferred to that State or Territory pursuant to - (i) a direction referred to in section 45, or (ii) a warrant referred to in section 49, or (iii) an order of transfer under the Prisoners (Interstate Transfer) Act 1982, or (c) for the purposes of any legal proceedings, or (d) in accordance with a requirement of the Ombudsman Act 1974 or with any request made by the Ombudsman, or (d1) to the Commissioner of Fines Administration in connection with the administration or execution of the Fines Act 1996 (including for the purpose of the imposition, administration or enforcement of a fine), or (e) with other lawful excuse.
12. Mr Kerkyasharian submitted that the proposed condition was unnecessary and futile. He submitted that a consent to disclosure procured by conditions such as this would in truth be no consent at all and have no effect. I reject that contention (see Baldwin at [80]); Baldwin v State of New South Wales [2020] NSWCA 112 at [65]). Mr Kerkyasharian also contended that the consent from the defendant would be irrelevant for the purposes of s 257 as it would not be a consent from the person from whom the information was obtained within the meaning of s 257(1)(a). There is some force in that. However, whether that is so will depend on who seeks to disclose and how they obtain the relevant information. The possibility that the information came from the defendant in a particular scenario cannot be excluded.
13. Mr Kerkyasharian also submitted that this clause was not calibrated to the relevant risk posed by the defendant in that he did not have a "history of targeting victims in a planned manner". I do not agree. The defendant has a history of carrying out pre-emptive strikes for perceived slights. Warning someone at risk of such a strike appears to be very much of the heart of protecting the public and mitigating the risk posed by the defendant. While I accept that this clause may need to be considered further before it is included in an ESO, I am, nevertheless, satisfied at this stage that it is appropriate.
14. Mr Kerkyasharian also submitted that the addition of the words "as is reasonably necessary" at the end of the proposed condition are of uncertain scope and it might be unclear in a particular case whether the defendant had complied with a condition. Again there is some force in that, but it must be remembered that this provision is to protect the defendant's interests. It means he is not subject to such disclosures merely at the whim of the DSO ([2020] NSWCA 112 at [65]).
15. Fourth, Mr Kerkyasharian raised a concern about proposed condition 28 which requires the defendant to obtain written permission from the DSO prior to joining or affiliating with any clubs or organisations. Proposed condition 16 places restrictions on the defendant visiting places or districts without permission. Proposed condition 18 imposes similar restrictions in relation to places of work. The particular concern raised by Mr Kerkyasharian is that proposed condition 28 would prevent the defendant obtaining work on his release at a boxing gym which is, apparently, what he did last time he was released. The concern is completely understandable given the history of the defendant and the risk he poses. It is also appropriate that the relevant place be approved by the DSO. I would impose condition 28.
16. Lastly, Mr Kerkyasharian took issue with proposed conditions 42 and 43 which provide: 42. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is travelling or which is under his effective control, any computer, electronic and communication device or any storage facility, garage, locker or commercial facility, and to the seizure of any object located during a search. 43. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out pursuant to this Order.
17. To the extent that these clauses concern the seizure of objects they are amply justified by the defendant's past use of weapons which, as I have stated, included a pistol to murder someone. The connection between his risk profile and his computer use is more tenuous but the potential for weapons to be sourced via the internet is sufficient to also make that course appropriate. I will impose that condition.
18. Lastly, I note two matters. First, whether any of these conditions will be imposed in a final ESO will be a matter for the judge who finally determines the matter. No doubt, that may at least in part depend upon the level of compliance on the part of the defendant in the meantime. Second, for someone such as the defendant who has been in custody for so long, there is obviously a risk that he is institutionalised. He has very few pro social relationships. I mentioned earlier the position of his mother. It seems to me to be in the interest of everyone, especially the defendant, that every effort be made to enable him to live near, or at least often see, members of his family.

Orders

1. Accordingly, I make the following orders: 1. Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (the Act): 1. Two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) be appointed to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the court; 2. The defendant is directed to attend those examinations. 1. Pursuant to s 10A of the Act, the defendant be subject to an Interim Supervision Order from midnight on 25 November 2021, ("the Interim Supervision Order"). 2. Pursuant to s 10(C)(1) of the Act, the Interim Supervision Order be for a period of twenty eight days. 3. Pursuant to s 11 of the Act, the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule attached to the summons, save that condition 9 will refer to a curfew operating between 10pm and 6am. 4. The parties be granted liberty to apply to me on forty eight hours' notice including for the purposes of obtaining a final hearing date.

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 November 2021