State of New South Wales v O'Hara - [2022] NSWSC 155 - NSWSC 2022 case summary — Zoe

NSWNSWSC

State of New South Wales v O'Hara

[2022] NSWSC 155

Supreme Court of NSW|2022-02-16|Before: Lonergan J, Beech-Jones CJ, Wright J, Garling J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-02-16

Before

Lonergan J, Beech-Jones CJ, Wright J, Garling J

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Judgment

The State of NSW seeks final orders against the defendant under the Crimes (High Risk Offenders) Act 2006 (NSW) Act ("the Act"). The defendant has been in the community under an interim supervision order (ISO) with conditions since midnight 25 November 2021. The last extension of those orders that is available under the Act expires on 24 February 2022.
The State seeks an order in its Amended Summons filed in Court on 16 February 2022 that the defendant be made subject to an extended supervision order (ESO) for a period of 4 years commencing at midnight on 24 February 2022.
The defendant contended that the evidence does not justify an ESO being made at all and the alternative, it should be limited to 1 year. There was also argument about the form of and need for some of the proposed conditions.
For the reasons that follow, I have decided that an ESO of 18 months length should be made on the conditions set out in the Schedule to this judgment.

[2]

The preliminary hearing and interim orders

The Summons filed on 23 July 2021 initially sought a 5 year ESO. Mr O'Hara's term of imprisonment for an offence of causing grievous bodily harm with intent to cause grievous bodily harm was to expire on 25 November 2021. Beech-Jones CJ at CL made an interim order for supervision with a small adjustment to one of the proposed conditions. He also made orders under s 7(4) of the Act for the defendant to be examined and reported upon by two experts.

[4]

The legislative scheme and principles

The primary object of the Act is stated in s 3(1): The primary object of this Act is to provide for the extended supervision and continuing detention of high-risk sex offenders and high-risk violent offenders so as to ensure the safety and protection of the community.
A secondary object of the Act is to encourage rehabilitation of offenders. This is a feature of the legislation that has some importance to the issues debated at final hearing as a question mark was raised by the defendant over the extent to which conditions proposed by the State may be counterproductive to that object and are not conditions that have any real role in potentially reducing the defendant's risk of violent offending.
At a final hearing for an ESO, the Court must first determine whether it is satisfied to a high degree of probability that Mr O'Hara poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d).
The making of a ESO requires a state of satisfaction "to a high degree of probability". This indicates a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA).
The expression "unacceptable risk" is to be understood according to its everyday meaning in the context of ss 5B(d) and 5C(d), and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, at [58], per Beazley P.
The right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an "unacceptable risk" (at [44] per Beazley P), however consideration of an offender's circumstances, including the offender's interest in liberty and privacy may influence the ultimate exercise of discretion as to whether or not to make an order: Lynn at [131] per Basten JA and at [149] per Gleeson JA.
In State of New South Wales v Simcock (Final) [2016] NSWSC 1805, Wilson J observed at [71] that "unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate"; see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15].

[6]

Criminal history, pattern of offending and views of the sentencing court at the time of sentencing

I adopt the summary of the offending history (which included the index offending) set out in State of New South Wales v O'Hara (Preliminary) [2021] NSWSC 1484 at [7]-[18] and [20]-[21]: "[7] 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. [8] 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. [9] 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. [10] 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. [11] 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. [12] 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. [13] 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". [14] 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. [15] 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. [16] 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. [17] 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. [18] 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. … [20] 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. [21] 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."
When sentencing Mr O'Hara for murder in 1996, Justice Sully referred to Mr O'Hara's genuine remorse, found that he did not intend to kill the victim and that it was a "robbery gone wrong" and noted that Mr O'Hara had entered an early guilty plea, also reflective of remorse.
In October 2012, Judge Charteris SC DCJ sentenced Mr O'Hara for the reckless wounding on 8 November 2010 and the break and enters in January 2011. He made positive comments about Mr O'Hara having good prospects for rehabilitation and that his life to date had been a difficult one. He noted that Mr O'Hara seemed to be a genuine man who had the potential to live in the community and obtain employment.
When sentencing Mr O'Hara in July 2013 for grievous bodily harm with intent to cause grievous bodily harm, (the attack with the sandwich press in custody) Coorey DCJ found extreme provocation in that the victim had threatened Mr O'Hara, called him a "dog", and as a world champion kickboxer, had the potential to kill Mr O'Hara.

[7]

Court appointed experts

The Court obtains substantial assistance from recently conducted, thorough and independent assessments by appropriately qualified psychiatrists and psychologists. The need for these assessments and the centrality of their role is enshrined in the Act as they must be obtained if a final order is to be considered. Given the Court has to assess the current risk presented by a defendant, old and differently directed expert assessments would often need to be given less weight than recent assessments.
Issue was taken by counsel for the defendant about the validity of risk assessment tools used by Dr Eagle, Dr White and Mr Ardasinski referred to in their reports, in particular, the HCR-20 Version 3. It was submitted that: "[44] In the absence of evidence concerning those tools, the Court is left with no way to assess their accuracy, reliability, utility and application to this particular offender. Without knowing, that is, without admissible evidence going directly to the issue, the Court cannot come to the view that any of the tools which have been applied are '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 serious offence'. [45] The Court is in effect asked to presume that the dataset of any particular tool includes only persons with histories and characteristics similar to the offender. How many of them were indigenous? How many had the resolve of the defendant to not be in prison at the time of their mother's death is not known? Indeed, almost nothing is known about them at all." [1]
On that basis, objection was taken to large tracts of the reports of Dr White, Dr Eagle and Mr Ardasinski. I rejected the argument that there needed to be extraneous evidence about the risk assessment tools to make those parts of the reports using those tools admissible. It is no different to the application of any other medical knowledge and literature used to underpin an expert opinion. As argued by counsel for the plaintiff, an x-ray report is not invalidated by a radiologist's inability to describe how the x-ray machine was built and it did not undermine that expert's opinion on what the x-ray shows.
There is also no valid basis to exclude the material under s 135 of the Evidence Act 1995 (NSW) as it is not unfairly prejudicial to the defendant and the reports have strong probative value on the issues for decision under the Act, even though they are only a part of the mandatory material to consider.
What I needed to know about the assessment tools and their role and limitations was addressed within the experts' reports. Dr Eagle's structured professional judgment approach was further explained by her in her evidence: Q. You considered a structured professional judgment approach is the most reliable form of risk assessment, is that correct? A. Yes, I do. Q. Why is that? A. Well, it's considered by a number of commentators internationally (who are the authors of risk assessment tools and are highly experienced forensic psychiatrists and psychologists) and they believe that there are limitations with the actuarial risk assessment processes (which is your standard tick‑box or empirical form of risk assessment process). And there are limitations with an unstructured clinical assessment, in the sense that it's unreliable, and that a structured professional judgment tool combines the reliability of and the transparency of the actuarial risk assessment, with the use of expertise, to be able to individualise the approach in a way that they consider to be much more reliable. And then, in addition to that, the individual structured professional judgment tools, one of which is the HCR‑20 V3, have been extensively studied in terms of the reliability for risk management and they have been considered, in relation to those studies, to be reliable and favourable to the more, to the more other types of tools, if I should put it that way. Yep. [2]
Further elucidation on the limitations associated with a "high risk" categorisation utilising the HCR-20 Version 3 risk assessment tool was obtained by counsel for the defendant during cross-examination of Dr Eagle: Q. On page 7, under the heading Implications of study? A. Yes. Q. The first sentence is: "After controlling for time at risk, patients judged to be high risk by SRAI". What's SRAI? A. The specific abbreviation used by the study they have referred to as Structured Risk Assessment Instrument. Q. That would be the type that HCR is? A. HCR is one of those. It doesn't specify structured professional judgment, too. So, it would include other tools. Q. What this study found is: "After controlling for time at risk, the rate of violence in patients judged to be high risk is not constant, varying considerably and systematically within and between instruments"? A. Yes. Q. Would you agree with that? A. Yes. Q. It therefore does not seem possible to use them; to use a predetermined numerical probability? A. That's correct. Q. It goes on to say: "This raises the question whether, if practitioners cannot make a reasonable estimate of base rate for the population in question and hence cannot estimate the likelihood of future violence from a member of a category, they should be using high risk categories at all." A. That' correct. Q. You would agree with that? A. Absolutely. Q. And you are not able to make an assessment for the estimate of base rate of likelihood of violence for this population? A. No. Actually HCR‑20 suggests we should formulate risk, look at the risk factors, then use them to inform risk management plans. Q. What the HCR is actually directed at is not an assessment of risk but, rather, the formulation of management plans? A. No. I mean, that's how, I mean, it's not a probability. I don't believe the HCR does not support probability estimates of risk. Risk assessment is a process, and the process involves the formulation of risk so that we can identify relevant risk factors that may result in violent behaviour in the future so as to consider the types of scenarios that might be consistent with an increased risk and then formulate management plans to manage that risk. But in some cases, there may well ‑ well, there may not be interventions that can manage that risk. [3]
This was a specific illustration in my view of the type of limitations around such tools, candidly highlighted by Dr Eagle at the beginning and the end of her report which I deal with below. It should also be borne in mind that the risk assessment tools are not directed to the risk of committing a "serious violence offence" but just "violent offending" more generally, and so the conclusions reached by any expert by application of that tool does not purport at any level to pre-determine the Court's conclusion on the issue of the risk to which the legislations is directed.

[8]

(i) Dr Eagle

Dr Eagle acknowledged in her January 2022 report the limits of the risk assessment process required to be undertaken: "[9] There are inherent limitations in any cross-sectional psychiatric assessment. The opinions in this report are based, to some extent, on a cross sectional assessment of Mr O'Hara. Collateral information was provided and has been taken into account in forming my opinions. The sources of information relied upon are identified above and, where relevant, in the body of the report. [10] Any risk assessment process also has inherent limitations. A structured professional judgment approach is considered the most appropriate and reliable form of risk assessment with a view to identifying evidence based risk factors that can be relied upon to formulate a person's individual risk for the purpose of developing a risk management plan. The limitations associated with the risk assessment tools utilised in this report are discussed in the risk assessment section below." … "[147] There are inherent limitations in any process of risk assessment, although the best evidence supports a structured professional judgment approach. Risk assessment is most effectively used to develop a risk formulation utilising evidence based risk factors for the purpose of informing ongoing management and rehabilitation (rather than for prediction of reoffending). [148] The HCR 20 version 3 has been used to assess Mr O'Hara's risk. The HCR 20, version 3 is a structured professional judgment risk assessment tool designed to assist in the risk assessment and risk management of forensic and offender adult populations. The instrument has been evaluated as suitable for use in correction-al, civil and forensic psychiatric, whether community or institutional based. The instrument assesses the risk of interpersonal violence and that is defined as "actual, attempted, or threatened infliction of bodily harm on another person." The HCR 20, version 3 user guide states that serious physical harm clearly meets the general definition of violence used in the instrument. The guide further notes that violence of differing severities and forms are correlated in the research, such that a person who is at an increased risk of violence will be at an increased risk of more serious forms of violence, and that the difference between violence that causes serious harm and violence that does not is often fortuitous (at page 37 of the HCR user guide). Reference is made to a meta-analysis on the HCR 20 version 2, that indicated that the instrument predicted serious and less serious forms of violence with comparable accuracy. [149] The HCR 20 version 3 does not provide statistical information regarding the likelihood of persons with histories and characteristics similar to those of Mr Davis committing a further violent offence. Recent research has indicated that assigning probabilities to future violent risk on the basis of structured risk assessment is not particularly reliable or useful and that summary risk ratings based on a formulation of risk had greater predictive validity than numerical scores based on ratings of the presence of risk factors."
Dr Eagle outlined her diagnosis of Mr O'Hara: "[144] Mr O'Hara did not display any signs or symptoms of a major mental disorder Such as a psychotic illness or major disturbance of mood, at the time of this assessment. He has displayed periods of mood disturbance in response to stressors. He has previously been diagnosed as an adjustment disorder, with depressive symptoms. He is at risk of serious mood disturbance and fluctuations in mood due to underlying psychological vulnerabilities such as emotional instability, maladaptive coping skills, low self-esteem, hyper vigilance and poor frustration tolerance. These psychological vulnerabilities have developed in the context of an invalidating and traumatic childhood upbringing and ongoing repeated exposure to physical and psychological abuse. Psychological vulnerabilities have likely contributed to problems with interpersonal interactions, and difficulty developing and maintaining stable relationships, in addition to his offending behaviour. [145] Mr O'Hara has a substance use disorder on opioid maintenance treatment (methadone). He has engaged in the use of cannabis, heroin and opportunistic substances. Despite spending much of his life incarcerated, Mr O'Hara has used illicit and unprescribed substances in the community and in custody to manage emotional distress. He has been reported to have diverted methadone and pre-scribed medications. He has unsuccessfully tried to control his substance abuse. [146] Mr O'Hara has displayed pervasive behaviours and attitudes consistent with an antisocial personality disorder. He has engaged in repeated unlawful behaviours. He has displayed impulsivity and aggressiveness, including engaging in repeated physical fights. He has shown a reckless disregard for the safety of others and has not sustained consistent work behaviour or demonstrated any sense of social responsibility in the community. He has displayed behaviours consistent with conduct disorder prior to the age of 15 years old. Antisocial personality traits and attitudes have likely arisen in the context of a disrupted and dysfunctional childhood upbringing characterised by a lack of positive role models, exposure to parental and institutional abuse and early incarceration in correctional institutions."
Under the heading "Clinical Factors", Dr Eagle made reference to currently present positive and negative matters: "[153] Mr O'Hara appears to have shown an improvement of insight into his offending, mental state and psychological needs over the last six months. He has continued to display cognitive distortions, such as justifications for violence, a heightened perception of threat and a distorted attribution of responsibility for past behaviours. This reflects ongoing problems with insight and cognitive instability. His level of emotional and behavioural instability has significantly lessened, and this appears to have been sustained following his release into the community. He does not appear to have displayed any violent ideation over the last six months and has been compliant with the interim supervision order. He has not shown any active signs or symptoms of mental illness. Although, Mr O'Hara continues to display some clinical risk factors (problems with insight and cognitive instability), he appears to have improved clinically over the last few years and this has been sustained during his transition into the community under the conditions of an ISO."
With respect to fluctuating or dynamic risk factors, Dr Eagle observed: "[159.5.8] Mr O'Hara has spent a lengthy period of time in a correctional facility. He has displayed an improved attitude towards his offending, supervision and his behaviour. He has not previously been able to maintain a prosocial lifestyle in the community for any period of time. His ability to develop a prosocial lifestyle and avoid reoffending in the community is yet to be tested. He is likely to require considerable support and encouragement to tolerate the inevitable stressors associated with community living, including exposure to substances, interactions with the public and association with pro-criminal peers. If he is able to develop prosocial relationships, establish a stable lifestyle and living situation, secure employment and avoid antisocial peers, his risk of committing a further serious offence is likely to reduce."
Dr Eagle concluded that Mr O'Hara is in a category of offenders at a high risk of violent reoffending with predominant factors being "entrenched antisocial cognitions regarding the world and others", his emotional instability and a susceptibility to substance abuse and peer influence. She noted a significantly elevated risk of reoffending without appropriate support and interventions.
Dr Eagle concluded that it was "likely to take at least 4 years of supervision and support for Mr O'Hara to address his risk factors for offending and sustain his lifestyle, allowing for a gradual withdrawal of supervision".

[9]

(ii) Dr White

Dr White is a psychologist who carried out a s 7(4) assessment of the defendant in January 2022.
Under the heading "Mental Health", Dr White took this history: "Mr O'Hara reported experiencing fear and distress as a child in response to his father's violence at home. He commented that he resented his father for years, but later in life came to understand that his father was raising him "the way he was taught" and that this had helped him to "toughen up" for his time in institutions. He discussed a profound impact of the reported physical and emotional abuse suffered at the boys' home. He expressed an intense fear of being sexually abused there and said that he had used physical violence to protect himself from any perceived threat. Mr O'Hara said that through violence he garnered respect from other boys and "got a feel for it [fighting]" and a sense of identity as well as being feared by others. He also recognised that this meant others would "always try and take you down", and made him hypervigilant. He said that his time in boys' homes had resulted in "normalising of extreme violence". He said that his experience of adult prison had been a "giant version of boys' homes". He commented that he dealt with bullies though violence. Mr O'Hara denied that he bullied others, saying he was "never a bully" and was always reacting to a situation." [4]
Like Dr Eagle, Dr White pointed out the limitations in attempting, as a clinician, to accurately predict whether a person will reoffend: "At present, it is not scientifically possible for a clinician to accurately predict whether an individual offender will or will not reoffend. The forensic field has developed instruments from which an estimate can be calculated, that is derived from the empirical literature specifying features associated with risk and clinical examination and formulation of how those present features might operate in the individual to the assessment. It has been demonstrated that this allows for a more accurate evaluation of risk rather than using clinical judgment alone.The risk assessment process is multifactorial, drawing on actuarial methods and structured professional judgement tools to evaluate static (unchangeable) and dynamic (changeable) factors that have contributed to violent offending behavior. Dynamic risk factors are also important to consider in terms of treatment planning and risk management." [5]
Dr White added: "Assessment combining both static and dynamic risk factors which allows for consideration of information about likelihood, imminence, frequency and severity of risk is currently considered one of the best practice approaches." [6]
In addressing risk formulation, Dr White observed: "Mr O'Hara has a chronic history of violent offending and antisocial behaviour commencing at an early age across multiple contexts (school, home, community and institutions), inclusive of critical developmental stages. His acts of violence have resulted in serious physical injuries and death. He has had little opportunity to establish prosocial and meaningful relationships of both an intimate and non-intimate nature, with most of his associations being with offenders. From an early age Mr O'Hara had violence modelled and encouraged as a way to resolve conflict, manage his emotions and protect himself from perceived or real threat. Violence and aggression garnered him respect in the institutional setting during his formative years when one's sense of identity is being established, and a reputation and status which he came to seek out and need. His violence and reputation have given him his identity and formed a large part of his character, and has been entrenched for over 30 years. He was a victim of emotional and physical abuse at home and then at boys' homes. He never felt safe and developed a deep anger and resentment towards those who were in positions of authority and those meant to "care" for him. He entered the criminal justice system at a young age and has spent the overwhelming majority of his life in custody. In the world he has known, he has found violence a means of survival and used this as an effective coping strategy. He is destabilised by perceived injustices, sometimes considering himself as an avenger, punishing those he determines 'bullies'. He will react if challenged or provoked, with reduced self-regulation in these circumstances. He has a low level of education and no significant employment history. He has a history of substance use reflecting poor coping mechanisms and it is likely this is still a relevant issue for him. He self-discloses a constant state of anger and heightened hypervigilance, suspicion and defensiveness, which have fed into his cycle of violent offending and are likely underpinned by personality dysfunction typified by antisocial traits. His trauma response and violent tendencies have been reinforced through his experiences. He is yet to develop a sense of identity outside the prison context, has limited exposure to life in the community, and is yet to develop an awareness and understanding of potential triggers, stressors or challenges in this setting, and how to respond. Without adequate outlets and ways to identify and manage hypervigilance and perceived threats, he is likely to respond with violence. He has not yet ascertained the level of assistance required to address trauma and alter his thinking. He presents with some longstanding cognitive distortions, some of which appear to be starting to shift but would benefit from further exploration and fostering. He demonstrates a history of minimising his role in violent acts and externalising issues. In recent years there appears to have been a reduction in violence, better engagement, a shift in his cognitive thinking, and motivation to change the course of his life. Largely, this hinges on a promise made to his mother that he would not return to gaol and resolve to keep his word. He presents with reduced insight into his triggers for aggression and need for treatment to address his violent offending and risk, and perhaps at best a naïve view that he has his behaviour under control and will not relapse. His level of responsiveness to more intensive psychotherapy to address his violent offending cycle and trauma is yet to be determined, although history suggests some resistance to the intensive nature of this and the level of work required. Overall, Mr O'Hara does not present with any well-formed plans regarding treatment, or the amount and intensity required to address his level of risk." [7]
These are similar concerns to those voiced by Dr Eagle in particular regarding "minimising his role in violent acts" and "externalising issues".
Dr White's conclusions and recommendations are: "Overall, results from the current assessment indicate that Mr O'Hara currently requires a high level of intensive intervention and supervision to prevent further violent offences. Despite apparent improvement over the past few years and evidence of reduced violence, Mr O'Hara has significant risk factors which place him at risk of further violence for which he has not received adequate treatment. In particular, these include ingrained response to utilise violence and aggression, particularly in response to perceived threats and trauma. It is anticipated that he will face challenges transitioning to the community and his support network is limited. However, it is important to recognise that an individual's overall risk level is dependent upon the level of supervision being received and can fluctuate over time depending on the presence or absence of certain factors. Currently under his ISO he is receiving a high level of supervision. As noted above, Mr O'Hara also possesses several mitigating factors that may serve to reduce his risk including family support and contact, abstinence from substances which can destabilise his thought processes and routine, and engagement in the community, which if fostered and sustained will likely assist to reduce his risk of violence over time." [8]
Dr White referred to both 2 and 3 years as appropriate periods for supervision in her report but in a follow up email, prompted by an email from the plaintiff's solicitor, she stated that she had concluded a period of 3 years supervision was appropriate.

[16]

Should an ESO be made?

Mr O'Hara has spent nearly all of his adult life in custody. He has had a complex and traumatic upbringing which has left him with cognitive distortions around violence. He - to an extent understandably - has hypervigilance. A lot of his offending has its origins in that hypervigilance and his sudden violent responses to perceived (and actual) threats.
I am satisfied that he has shown remorse for his past violent offending and a determined and positive approach to avoiding violence in his last few years in custody. There has been a marked reduction in offences in custody over the last five years.
He is intelligent. He is optimistic that he can avoid trouble. As observed by Dr Eagle, he has a number of positive factors, namely strength of character, the fact that he is articulate and intelligent, and that he is in regular contact with his family and has their support.
It is worth noting that Mr O'Hara attended Court for his hearing and throughout the day calmly observed, occasionally instructing his solicitor and counsel in an appropriate manner.
The question as to whether to impose an ESO is a complex one, involving as it does a weighing and balancing of risk and unknowns, against incursions into the liberty of a person who has already served his or her sentence(s) for prior offending.
This is aptly described by Gleeson JA said in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57at [148]-[149]: "[148] It can be readily accepted that orders for the supervision or detention of a "high risk violent offender" involve a significant restriction on the personal liberty of the subject outside the ordinary principles of the common law. The basis for that interference with liberty in specific cases is to be found in Parliament's determination that such orders may be made for the protection of the public. The pre-condition for the making of such orders is that the offender is a "high risk violent offender": s 5E(1), Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). It would subvert the language of the statute if the interests of the offender in liberty and privacy were to be taken into account in the assessment of the threshold of "unacceptable risk" in s 5E(2) of the Act. There is no "balancing" exercise involved in the court's assessment of the threshold of "unacceptable risk". [149] The interests of the offender in liberty and privacy are to be taken into account in the exercise of the court's discretionary power under s 9 of the Act to either make an extended supervision order, or dismiss the application for such an order. Although not explicit in the Act, conceptually the exercise of the discretionary power can be viewed, as Basten JA has suggested, as involving an intermediate stage of considering the appropriate conditions which might be imposed as part of an extended supervision order, before considering whether such an order is otherwise appropriate. I agree with Basten JA that consideration of the possible intrusions on the offender's liberty and privacy are appropriately taken into account at that intermediate and final stage of exercise of the discretionary power. Contrary to the appellant's submissions in the present case, there is nothing inherently artificial in separating the adverse consequences for him and dealing with them only after the threshold assessment of unacceptable risk has been made."
I have concluded that an ESO should be made, but because of the positive factors already exhibited by Mr O'Hara, that order should be significantly shorter in time than the length contended for by the plaintiff.
I am satisfied that to do so serves both the safety of the community and promoting rehabilitation of the offender in providing for a focussed period to demonstrate his capacity to remain free from violent offending, but with the assistance of focused supervision and monitoring for that shorter period. Mr O'Hara would be well aware that the plaintiff can apply for a further order if there is a basis demonstrated for it to do so. Mr O'Hara has the power over that prospect, depending on his compliance and engagement in the ESO.

[17]

Conditions and length of the ESO

Section 11 of the Act provides for the Court to impose conditions that it considers appropriate, and sets out a series of the types of conditions that could be considered to be appropriate.
The reality of applications under the Act brought to this Court is that almost invariably, the plaintiff submits the same or a very similar suite of conditions in every case. The common sense and interaction of those proposed conditions, in terms of reducing the risk presented to the community by a defendant, is sometimes very evident and sometimes not.
In this case, substantial challenge was made by counsel for the defendant to the appropriateness of a number of the conditions. As observed by Beech-Jones CJ at CL at the preliminary hearing, in Lynn, Basten JA at [124] made some apposite remarks concerning the relationship between the potential conditions that might be imposed and the identified risk: "[124] 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."
To that I would add the following observations of Basten JA at [129] to [130] as applying to my task at this stage of my decision: "[129] The second step, not reached until the court is comfortably satisfied that the offender presents a heightened risk of further offending, absent supervision, involves a determination of what conditions may be imposed with the purpose of diminishing the risk to an acceptable level. It is self-evident that this will involve a "balancing" exercise, in the sense that the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective. If the evidence suggested that effective supervision (described as "adequate supervision" in s 5G(1)) would not be provided by an extended supervision order, the State might consider an application for a continuing detention order: none was sought in the present case. [130] The submission that this step engages a balancing exercise involving possible intrusions on the applicant's liberty and privacy should be accepted and they will properly be treated as relevant considerations in ensuring that unjustifiable conditions are not imposed."
Obviously questions of incursions into a defendant's liberty include evaluating with care the appropriate length of an ESO. The plaintiff contended four years was appropriate, and the defendant, one year. I am satisfied something much closer to the defendant's position is appropriate given in particular the positive matters demonstrated by the defendant over the last few years. The length of the ESO will be 18 months.
Counsel for the defendant argued that the Court should impose only a small number of selected conditions, none of which would provide for monitoring and checking on Mr O'Hara or much of a basis to require him to comply with supervisory steps and strategies. The argument posed was that anything more than that would be unduly intrusive. However the package of limited conditions proposed by the defendant would in my view amount to no more than the defendant "checking in" weekly and telling his DSO what he had been doing.
It would not be consistent with the purposes of the Act to impose a package of conditions that has no synergy to provide adequate supervision of an offender because there is no in-built basis for a DSO to monitor and manage Mr O'Hara's behaviour, should he begin to stray into potential risky behaviours or associations. For that reason I have imposed many of the conditions contended for by the plaintiff, some with adjustments to take into account accepted submissions made by counsel for the defendant.