State of New South Wales v Partington

Supreme Court of NSW|2022-11-01|Before: Adamson J, Walton J

Solicitors: Crown Solicitor's Office (NSW) (Plaintiff) Legal Aid Commission of NSW (Defendant) File Number(s): 2019/133855

Introduction

By further amended summons filed in Court on 1 November 2022, the State of New South Wales (the plaintiff), relevantly seeks an extended supervision order (ESO) in respect of Shane Partington (the defendant) for a period of five years on conditions set out in the Schedule to the further amended summons. In the course of the hearing, the plaintiff altered its position with respect to some of the conditions which are reflected in a second further amended summons which I granted leave to file after the conclusion of the hearing. The plaintiff filed the second further amended summons electronically on 1 November 2022.
All references to legislation in these reasons are, unless otherwise stated, references to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).
The defendant accepted that the statutory conditions for making an ESO (set out in s 5B) had been met and that the evidence established to a high degree of probability that there is an unacceptable risk that the defendant will commit a serious offence if not subject to an ESO. I have independently satisfied myself that this is the case.
It was contended on behalf of the defendant that the ESO should be of no more than three years' duration. He also opposes some of the conditions sought by the plaintiff.

The commencement of these proceedings

The plaintiff commenced these proceedings by summons filed on 30 April 2019. At that time, the defendant was serving a sentence of imprisonment, which was due to expire on 15 June 2019, for the offence of causing grievous bodily harm with intent (see table below). This offence falls within the definition of serious violence offence in s 5A(1) of the Act.
Following a preliminary hearing on 6 June 2019, Walton J made orders on 18 June 2019 which included an interim detention order (IDO) for 28 days and orders for the appointment of experts pursuant to s 15(4): State of New South Wales v Partington (Preliminary) [2019] NSWSC 732. As the defendant was in custody, the IDO was suspended pursuant to s 18C.
The plaintiff filed an amended summons dated 16 August 2021, deleting prayers 4 and 5, which sought a continuing detention order (CDO) followed by an ESO. This document has been further amended as referred to above.

The defendant's background

The defendant was the only natural child of his parents. He has older half-siblings from his mother's previous relationship. His natural father conducted an extra-marital affair with his mother, which his father broke off when he learned of the pregnancy. While she was pregnant, the defendant's mother was injured in a serious motor vehicle collision which affected her brain and her mobility. The defendant was born in January 1970. His mother raised him as a single mother until he was six years' old. During this period, various men visited the house as a result of which the defendant was exposed to sexual activity between his mother and these men.
When the defendant was aged between four and six years, he was repeatedly sexually abused by a teenage male who lived across the road.
When the defendant was six years' old, his mother formed a relationship with his stepfather, who was very violent, abusive and alcoholic. The defendant's stepfather would regularly assault the defendant and his mother, who was also alcoholic.
The defendant's mother died when he was 11 years' old. Initially, he remained with his stepfather as he had nowhere else to go. However, an older half-sister moved into the home to look after him and caused the stepfather to leave, much to the defendant's relief. The defendant's half-siblings pretended that their father was also the defendant's father, which enabled the defendant to form a relationship with his putative father. When the man died, the defendant felt enormous loss and grief. When he subsequently learned that the man was not his real father, he was devastated by the disclosure.
At about this time, when the defendant was in Year 8, he was physically and sexually abused by a sports teacher. The defendant was bullied mercilessly when he was at school: a student urinated in his school bag and, at times, he was hit on the head. When the defendant was 17, he was anally raped by one of the peers who had bullied him.
The defendant attained his Year 10 certificate before leaving school to commence employment.
The defendant left home at the age of 21 and formed a relationship, as a result of which a child was born. The relationship lasted for two years. When he was 23, the defendant formed another relationship in the course of which four children were born. The relationship ended when the defendant assaulted his partner and threatened to kill her. When he was 33 years' old, he formed another relationship, during the course of which he assaulted his partner. On 27 August 2004, when he was 34 years' old, he became involved in an altercation which resulted in the death of a friend. The defendant was arrested, taken into custody and charged with murder. At the first trial, he was acquitted of murder but convicted of manslaughter. His conviction was overturned by the Court of Criminal Appeal. At the retrial he was acquitted of manslaughter and released on 16 December 2009, after more than five years in gaol.
The defendant was unable to care for his children, who are now adult, because of his lengthy periods in custody. He has engaged in self-harm and has tried, on more than one occasion, to end his life. He has abused alcohol and illicit substances, although he appreciates that he is violent when disinhibited.

The defendant's criminal and custodial history

The defendant's offending conduct began in 1986, when he was 16 years' old and has continued to the present.
The salient aspects of the defendant's criminal and custodial history are summarised in the table set out below (which does not include sentences of imprisonment which were suspended or penalties other than of full-time custody). Date of offending Offence/ section of Crimes Act 1900 (NSW) Sentence of imprisonment/ non-parole period Date of release/ re-admission to custody 27 August 2004 Manslaughter (subsequently acquitted) 13 years commencing 27 August 2004 and expiring on 26 August 2017, with a non-parole period of 8 years expiring on 26 August 2012. The Court of Criminal Appeal quashed the conviction and ordered a re-trial on the charge of manslaughter. On 16 December 2009, the defendant was acquitted by the jury on the retrial and was, accordingly, released on 16 December 2009. (Set aside following quashing of conviction.) 7 February 2013 Assault occasioning actual bodily harm/ s 59(1) (The defendant pleaded guilty.) 16 months commencing on 16 December 2013 and expiring on 15 April 2015 with a non-parole period of 10 months expiring on 15 October 2014. See below. 7 February 2013 Cause grievous bodily harm with intent to cause grievous bodily harm/ s 33(1) (The defendant pleaded guilty.) 5 years commencing on 16 June 2014 and expiring on 15 June 2019 with a non-parole period of 2 years and 6 months, expiring on 15 December 2016. 15 December 2016 released to parole/ re-admitted to custody on 4 January 2017 following further offending for which he ultimately entered into a bond/ released to parole on 11 November 2017/ further offence in February 2019 (see below) which led to revocation of parole on 1 March 2019 and his re-admission to custody until 15 June 2019. He remained in custody pursuant to the IDO (see above) until 16 July 2019. 28 February 2019 Reckless wounding/ s 35(4)(b) 3 year and 9 months commencing 28 May 2019 and expiring on 27 February 2023 with a non-parole period of 2 years and 6 months which expired on 2 November 2021. Released to parole on 18 December 2021/ parole revoked on 22 June 2022, to date from 6 June 2022 due to offending set out below. 8 May 2022 Assault occasioning actual bodily harm/ s 59(1) (The defendant pleaded guilty.) Sentenced on 31 October 2022 to a term of imprisonment to commence on 6 June 2022 and expire on 5 June 2023 with a non-parole period of 5 months expiring on 5 November 2022. Bail granted following arrest on 1 June 2022 but subsequently refused on this charge following breach of apprehended violence order. (Charge withdrawn and dismissed on 31 October 2022) Stalk/intimidate intend fear of physical harm/ s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) Not applicable Bail granted following arrest on 1 June 2022 but subsequently refused on this charge following breach of apprehended violence order. 6 June 2022 Breach of apprehended violence order/ s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) Defendant pleaded guilty on 7 June 2022. On 31 October 2022, conviction recorded but no penalty imposed under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Bail refused on this charge.

As appears from the first entry on the table and as referred to above, the defendant spent over five years in gaol for a crime of which he was subsequently acquitted. During his period of imprisonment, he was traumatised several times, including when he was stabbed with a needle. Because he was in prison for such a long time, he lost contact with his children. Despite this extended period of trauma, he did not re-offend until 7 February 2013, which was over three years after his release on 16 December 2009. He was arrested and charged on 20 February 2013 and taken back into custody, where he remained until his release on 15 December 2016. As set out above, there was further offending in 2017 and 2019, as well as in May 2022.
Because of the concession made on behalf of the defendant, it is not necessary to narrate the circumstances of all of these offences, the detail of which appears from the remarks on sentence (in the case of the offences for which the defendant has been sentenced) and the facts sheets (in respect of the matters which have been recently finalised).
The circumstances of the offences committed on 7 February 2013 (to which the defendant pleaded guilty) appear from the remarks on sentence of Sides QC DCJ: "The victim Kosak was 61 years of age at the time of these offences and was working as a contractor delivering milk. At about 5am on the day of the offences, 7 February 2013, he parked his milk truck in Joseph Street opposite the Railway Hotel and then went to a café and ordered a coffee. He left the trolley outside the door and went into the café and ordered a coffee. As he was waiting for the barista to make his coffee, the Offender ran into the store and his right shoulder struck the victim on the back. The barista heard the victim say: 'What are you doing?' Another customer heard the victim say: 'Prick'. The Offender responded by saying: 'Prick, prick' and then [he] punched the victim Kosak to the left cheek/eye area, causing the victim to fall backwards and experience extreme pain in his jaw area. He also felt dizzy and disoriented. The victim struggled towards the front of the shop. The Offender said: 'See you later' and walked out into the street. The victim followed him, but the Offender turned and said: 'Yeah, yeah, cunt; come on, kill me, yeah; do you want some more?' The victim returned to the entry of the café and, as he was attempting to close the sliding door, the Offender continued to yell and scream at the victim. The Offender then grabbed a milk crate and raised it above his head, walked closer to the victim and used it to strike the left side of the victim's head. The victim hunched down and placed his arms in front of his face to protect himself. The Offender ran across the road. The other victim, Mark Kearney, was parked in a Landcruiser on the opposite side and, having witnessed these events involving the victim Kosak, used his mobile phone to dial triple-0. The Offender approached him and grabbed him by his clothing, unsuccessfully trying to pull him through the car window. He then punched this victim to the right side of his face, causing his glasses to come off. He punched this victim another time, hitting the right side of his forehead. The victim raised his hands to protect himself and received a further two punches to his right forearm. The Offender took a couple of steps back and began to shadow box and make a 'rah-ing' noise. A security guard came onto the scene, took hold of the Offender, guided him to the southern footpath of Railway Street and then, apparently, let go of him. At this stage the police sirens could be heard. Afterwards, a witness who had seen the Offender leaving saw a light coloured Commodore reversing out of a car parking bay and recorded the registration details, which were relayed to the police over triple-0. He saw the vehicle progress along Railway Street, but lost sight of it. About two minutes later, after the security guard had returned to work, he was standing outside the hotel and saw the Commodore drive past and recognised the driver as the Offender. There was no one else in the car. He also thought the registration plates were similar to what in fact they were, although [he] got some of the letters wrong. As a result of the attack the victim Kosak suffered a fractured cheekbone requiring fixation under general anaesthetic and a fractured left orbital floor or eye socket. The other victim, Mr Kearney, suffered bruising to the right facial area and right forehead, as well as on the rear of his elbows. He felt pain and discomfort for close to a week after the events that give rise to the offences."
The circumstances of these offences serve to demonstrate the risk posed by the defendant, who has resorted to violence spontaneously without discernible provocation.
In 2021, while the defendant was in custody, he engaged with the Violent Offender Treatment Program (VOTP). This consisted of three or four 2-hour sessions. In a Department of Communities and Justice report dated 4 January 2022, his participation and behaviour was assessed as follows: "3. Mr Partington commenced the VOTP on the 11th March 2021. His attendance and contributions to session discussions were of appropriate standard and did not raise any cause for concern. He completed all required tasks and worked on additional self-paced tasks on emotion regulation, self-worth, and substance use. 4. Although Mr Partington was motivated and engaged with treatment from the outset, he later commented that his initial engagement was somewhat superficial as he remained dubious about what he would gain from treatment. However, throughout treatment, he benefited from the inclusive and supportive environment provided and made further insights and observable changes on [his] treatment goals. Towards the end of treatment, he acted as a mentor to other group members and volunteered to remain in sessions to assist in maintaining the positive and productive culture the group had formed."
During the first few months of 2022, when the defendant was on parole, he engaged with VOTP maintenance sessions, became involved with the Centre for Addiction Medicine with a view to obtaining treatment for his alcohol misuse and negative relationships, joined two church groups and an associated men's group and worked in construction at Brookvale Oval. However, on 8 May 2022, the defendant again committed a violent offence which was resolved on 31 October 2022.
As referred to above, the defendant's parole (in respect of the sentence imposed for reckless wounding) was revoked on 22 June 2022, to date from 6 June 2022 due to the subsequent offending. But for the revocation of parole, he would otherwise be entitled to be released on 5 November 2022. I accept that it is preferable that, when he is released, he be released subject to an ESO rather than merely to parole since the supports and resources dedicated to those who are subject to an ESO are greater than for those on parole.
It is sufficient, for present purposes, to note that the defendant would appear to be unable to control his propensity for violence, which has led him to spend a significant part of his life in prison. There have, however, been significant gaps in his offending, which serve to indicate that there are real prospects of rehabilitation with appropriate supports.

Expert reports

As referred to above, Walton J appointed experts to report to the Court following a consultation and assessment with the defendant. The Court has had the benefit of two reports of Dr Katie Seidler, clinical and forensic psychologist, dated 26 July 2021 and 29 August 2022 respectively and two reports of Dr Yolisha Singh dated 30 July 2021 and 29 August 2022 respectively.
Both experts gave concurrent evidence in the hearing, both as to the duration of the ESO and as to the proposed conditions. Their evidence, to the extent relevant to these two issues, is referred to below.

Consideration

The Act's primary object is "to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders to ensure the safety and protection of the community": s 3(1). A further object is to encourage high risk offenders to undertake rehabilitation: s 3(2). The legislative purpose of the Act is protective and not punitive. The protective purpose is fundamental. The protective purpose and the rehabilitative purpose are closely related. If the defendant is rehabilitated, then he will not re-offend. If he does not re-offend, the public will be protected from him.
Section 9(3) lists the matters which the Court must take into account when determining whether or not to make an ESO. I have taken into account the experts' reports (referred to above) and the level of the defendant's participation in the examinations which were the subject of those reports; the results of other risk assessments and the defendant's willingness to participate in such assessments as well as his level of participation; the results of such assessments; reports by Corrective Services NSW as to the extent to which the defendant can reasonably and practicably be managed in the community; the treatment and rehabilitation programs which the defendant has engaged with and the level of his participation; options that might reduce the likelihood of the defendant's re-offending; the likelihood that the defendant will comply with the obligations of an ESO; the level of his compliance when on release to parole; the defendant's criminal history and pattern of offending; the views of the sentencing courts when imposing sentences on the defendant and the documentary material tendered by the plaintiff, to which no objection was taken.
As referred to above, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. The reasons for this satisfaction appear from the circumstances of the defendant's childhood and upbringing which have made him vulnerable and rendered him unable to control his emotions or express them in a proper way. Thus, absent supervision, he is apt to resort to violence, particularly when his emotions are engaged. A slight trigger is all that would appear to be required before he attacks someone. The community requires protection from the defendant. The defendant needs supervision in order to avoid engaging in serious offending. If no order were to be made, it would, in my view, be almost inevitable that he would re-offend in a violent way, thereby inflicting serious injury or death on another person.
There are two remaining issues: the duration of an ESO and the conditions to which the defendant, under the ESO, ought be subject.

The duration of the ESO

The defendant, for whom Mr Wilcox appeared, submitted that three years was a sufficient period for the ESO. He helpfully extracted the relevant evidence of the experts which is reproduced below.

Dr Singh

In her first report, Dr Singh said: "There is no empirical method to determine the appropriateness of the duration of an ESO. However, given his age, psychiatric formulation, including a risk formulation, the enduring nature of his psychiatric conditions and his previous non-compliance with supervision conditions of his parole, a period of five years appears to be an appropriate duration for an ESO. I form this opinion on the basis that it will take at least 3-4 years of consistent psychological intervention to address Mr Partington's personality disorders and trauma symptoms. I note that he has not, to my knowledge, commenced any of this type of psychotherapy in the past, despite reporting the experience of childhood sexual abuse at least as early as 2003, to Dr Takas. Thereafter evidence of therapeutic efficacy, evidenced by reduced hyperarousal and impulsivity, including abstinence from substance use and prosocial patterns of behaviour, safe and effective community reintegration and opportunities for further assessment of Mr Partington's violence risk and care needs under less stringent supervision, will need to be undertaken."
In her second report, Dr Singh said: "As stated in the original report there is no empirical method to determine the appropriateness of the duration of an ESO. However, given his age, current psychiatric formulation, including a risk formulation, the enduring nature of his psychiatric conditions and his recent noncompliance with supervision conditions of his parole, a period of five years appears to be an appropriate duration for an ESO. I form this opinion on the basis that it will take at least 3-4 years of consistent psychological intervention to address Mr Partington's personality disorders and trauma symptoms. I note that despite attempts to do so during his recent period on parole, to my knowledge, he has not commenced any of this type of psychotherapy, despite reporting the experience of childhood sexual abuse at least as early as 2003, to Dr Takas."
In Dr Seidler's first report, she said that an ESO was not necessary as the defendant then had 15 months left on his parole order. She said: "Given the recent and lengthy history of incarceration in this case, in addition to the significance of Mr. Partington's past violent offending and the recency of his completion of relevant treatment, it is important that he have access to supervision, structure and support in the community to maximise Mr. Partington's success in implementing his release and future risk management plan. However, I note that Mr. Partington has 15 months left on his current Order, which he will serve on parole. This is appropriate and provides a reasonable timeframe to ensure that Mr. Partington is compliant with conditions and supervising authorities and is able to establish the plan for his release and ongoing management that he has developed. For this reason, although risk remains for Mr. Partington and is significant, I do not consider that an Order additional to his parole period is warranted at this time and that the parole period will be important in evaluating Mr. Partington's capacity to actively manage his risks going forward, which will include involvement with professional therapeutic and support services."
In her second report, Dr Seidler considered an additional period of supervision under an ESO was appropriate and said, as follows: "Given the chronicity of Mr. Partington's offending and the ongoing nature of his risks, and recognising the recent alleged reoffence in very similar ways to previous offending and in the context of similar risks, it is respectfully recommended that an Order of a minimum of three years would be appropriate."
While Mr Wilcox accepted that there was an "undoubted need for a reasonably long period of supervision in the community before the defendant would be considered to no longer present an unacceptable risk of committing a serious offence", he argued that it was significant that the defendant has never had the benefit of intensive supervision under the Act, either under an interim supervision order (ISO) or ESO, as his supervision has been confined to parole supervision. He submitted that the defendant appears to be motivated to make the most of the opportunities for rehabilitation which an ESO would present.
Mr Wilcox submitted: "Taking into account the contrasting expert opinions; the defendant's right to personal liberty; the fact the defendant is yet untested under the intensive supervision provided under the Act and the fact that an additional ESO can be sought if the circumstances justify it in due course, it is submitted that an ESO of three years' duration is appropriate at this time."
While I accept that the supervision which can be provided under the Act to an offender such as the defendant is capable of preventing future offending (which is its purpose) by changing an offender's attitude to triggers and encouraging responses which exclude violence, this process takes time. Conditions which may be required at the outset may be relaxed if the defendant proves that he can control his responses. The success of an ESO cannot be measured except in hindsight. At the time of the hearing, the defendant has exhibited a terrible tendency to react violently, not only to the detriment of members of the public but also to his own detriment. Violent crimes tend to lead to imprisonment, which, in the context of the defendant's circumstances, has shown itself to be almost wholly unsuccessful in rehabilitating him.
An ESO of three years would tend to give the defendant hope (which may prove to be forlorn) of unrestricted liberty at the end of the three years. Were I to grant an ESO for three years, the defendant's rehabilitation could be substantially disrupted by the almost inevitable prospect that the plaintiff will apply for another ESO. Any such application would require the defendant to be subjected to another round of assessments by experts, which would require him to revisit and re-narrate the various traumas which he has suffered in the course of his life, particularly those inflicted when he was a child and adolescent and had no, or little, power against which to protect himself. If a further ESO were granted after three years, the defendant may despair which, in itself, could lead to further offending. Both Dr Singh and Dr Seidler agreed that the court processes, which could be "quite intrusive", might destabilise the defendant's rehabilitation.
Further, I accept Dr Singh's opinion (with which Dr Seidler agreed) that it will take time for the defendant to achieve "sustained learning" from the therapy. She observed that his desire to be viewed as a "positive person ... may interfere with the nature of that therapeutic alliance." She also opined that: "[I]t takes time for that trust [in a therapeutic situation] to build, particularly when someone has had a life that has taught him to be mistrustful of situations."
Dr Singh also noted that it "take[s] time to establish … a sense of community, a sense of purpose, a sense of belonging, a reconnection with the church, with his family, all of those things which will bolster and scaffold his potential for recovery; and the opportunities to live an offence-free and meaningful life."
I consider that the risk that the defendant will commit a serious violence offence will remain unacceptable, absent supervision, for at least five years. An ESO for a lesser period would be not only insufficient to protect the public, but it would also not be in the interests of the defendant.

Conditions

Section 11 of the Act confers a significant power to order conditions on an ESO and provides as follows: "Conditions that may be imposed on supervision order (1) An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender - (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name, or (k) to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender's residential address, or (l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or (m) to comply with specified requirements in connection with the offender's access to and use of the internet, or (n) to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender. (2) An extended supervision order or interim supervision order must include a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services."
I have considered and been assisted by the affidavit of Kelli Grabham affirmed on 24 October 2022. Ms Grabham is currently employed by Corrective Services New South Wales as a High Risk Offender Applications and Operational Governance Officer with the ESO Team and On-Call Manager. She was not cross-examined. In her affidavit she explained the rationale of the conditions proposed by the plaintiff and the role played by the Departmental Supervising Officer (DSO) in enforcing the ESO.
There are, in effect, two categories of conditions: those that ameliorate the risk posed; and those that enable the conditions to be enforced. Section 12 provides that breach of a condition is an offence. It is therefore particularly important to ensure that conditions are worded clearly.
Many of the conditions proposed by the plaintiff were not opposed by the defendant. I am satisfied that the conditions in this category ought be imposed and are "appropriate" within the meaning of s 9(3). For this reason I propose only to address those conditions which remained in issue.

Schedule of movements: proposed conditions 5, 6 and 7

The respective versions of condition 5 are as follows: Plaintiff's proposal Defendant's proposal If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. If directed, the defendant must provide an honest summary of his anticipated movements each week, limited to places he intends to travel to, the purposes and means of his travel to those places, and the dates of travel, but unconfined by any travel route or timetable and this is to be provided 3 days before it is due to start.

Both experts considered the provision of a schedule to be useful to promote accountability, responsibility, predictability and to assist with monitoring. I consider that condition 5, as proposed by the plaintiff, is appropriate and desirable. The defendant's proposal is insufficiently clear to be readily enforceable.
The respective versions of condition 6 are as follows: Plaintiff's proposal Defendant's proposal If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period. If the defendant departs from any summary provided to his DSO in accordance with condition 5, the defendant must notify his DSO of his change of plans before doing so unless in an emergency situation.

The difficulty with the defendant's proposal is that it would permit him to change the schedule at will as long as he notifies the Departmental Supervising Officer (DSO) before departing from the schedule. I do not consider this to be sufficient to ameliorate the risk. Further, it would tend to thwart monitoring. I consider the plaintiff's proposal to be appropriate.
The plaintiff proposes the following condition 7: "The defendant must not deviate from his approved schedule of movements except in an emergency."
I consider this proposal to be appropriate since it incorporates any changes which the DSO has approved. The exception for an emergency is appropriate. However, I consider that it should be clarified so as to read as follows: "Except in an emergency or with prior approval of his DSO, the defendant must not deviate from his approved schedule of movements."

Part B: Accommodation

The respective versions of condition 10 are as follows: Plaintiff's proposal Defendant's proposal The defendant must be at his approved address between 9.00pm and 6.00am unless other arrangements are approved by his DSO. The defendant must be at his approved address between 9.00pm and 6.00am unless other arrangements are approved by his DSO, or he is attending alcohol and other drug relapse prevention therapy, for example, Alcoholics Anonymous meetings.

Mr Wilcox argued that it was necessary and appropriate that the defendant have the freedom to attend a therapy session or Alcoholics Anonymous meeting (AA meeting) without needing to obtain prior approval from his DSO. Drs Singh and Seidler considered that the words "alcohol and other drug-related therapy" were redundant since it was nigh impossible that such therapy would be available after 9pm and before 6am in any event. They both accepted the possibility that an AA meeting could be convened after 9pm and before 6am. Mr Fraser contended that the proposed carve-out for AA meetings was too broad (since an AA meeting could potentially occur anywhere and at any time) and would make the condition difficult to enforce. I accept Mr Fraser's submission. If the defendant has an urgent need to attend an informal AA meeting at a particular time (between 9pm and 6am) and location, then he can contact his DSO to seek approval.

Part D: Employment, finance and education

The plaintiff proposes the following condition 19: "The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO."
Ms Grabham explained that this condition would be used if the defendant presented as unable to manage his own finances or engages in unexplained spending. She said: "The condition will be utilised if the Defendant presents as not being able to manage his own finances, has unexplained spending or presents in such a way that the DSO is suspicious of potential alcohol or other drug use. The Defendant has a lengthy history of both alcohol and illicit substance use. Further alcohol or substance abuse may be detected through reviewing his financial statements for unexplained patterns of cash withdrawals or transactions at particular locations, in combination with close monitoring of his general compliance with other conditions, his ability to manage himself in the community and his willingness to share this information truthfully when questioned or challenged by a DSO."
Mr Wilcox opposed such a condition. He submitted that it constituted an unwarranted intrusion into the defendant's liberty and autonomy and that it was not germane to any risk. While the experts accepted that such monitoring may give the DSO an idea of whether the defendant was, for example, purchasing alcohol, they accepted that there was nothing in the defendant's past offending to suggest that impulsive spending or difficulties managing money were related to the offending. Both experts considered the condition to be of questionable utility in the present case. Further, they pointed to other conditions, such as the alcohol abstention condition, which were directed towards the amelioration of the risk of re-offending. The experts also expressed concern that the condition would tend to undermine the defendant's autonomy for no good reason.
The defendant's offending appears to occur impulsively in situations of high emotional stress. His inability to control himself in these circumstances, leads to violent offending in the heat of the moment, often when he is inebriated. I do not consider that the proposed condition ameliorates the risk posed by the defendant or that it would assist in relevant monitoring. Accordingly, I am not persuaded that such a condition ought be imposed on the ESO.

Part F: Non-association

The plaintiff proposes the following condition 26: "If the defendant commences or continues an intimate relationship with someone: a. if asked about his relationship status, he must tell his DSO the name of the person with whom he is in an intimate relationship; and b. if required by his DSO, he must either: i. tell the person of his criminal history; or ii. give consent for the DSO to tell the person of his criminal history; and c. he must tell his DSO before commencing to live with that person; and d. he must obey any reasonable direction from his DSO not to live with that person."
The defendant's objection is to paragraph b, which he contends ought be deleted.
Ms Grabham explained the purpose of paragraph b as follows: "54. Proposed condition 26(b) provides that if the Defendant commences or continues an intimate relationship with someone, a DSO may direct him to tell that person about his criminal history or to give consent for the DSO to tell that person about his criminal history. 55. Given the Defendant's historical domestic violence history, ensuring that a disclosure (when deemed necessary) is completed at the earliest possible opportunity by a DSO (or other person as requested by the DSO) is vital to ensuring that any potential partners are fully informed of the Defendant's offending and identified risks so they can make a fully informed decision regarding if they should continue in a relationship with the Defendant."
Both experts considered (and I accept) that a person with whom the defendant forms an intimate relationship has a right to know about his criminal history since it was a highly relevant matter as his past offending includes acts of domestic violence against former intimate partners. However, each expert was concerned to ensure that the disclosure was made in an appropriate way to ensure that it did not heighten the risk of the defendant re-offending. They agreed that if the disclosure was made without appropriate "scaffolding" (to used Dr Singh's word), there was a risk that the relationship would not proceed further and that the defendant would be left feeling utterly bereft and extremely isolated. These feelings might destabilise any rehabilitation. They said further that the intimate partner would also need some support at the time of the disclosure so that she did not experience loss of self-worth at having made an inappropriate choice. They considered that these competing concerns could be resolved if the disclosure took place following consultation with one of the defendant's therapists.
The plaintiff proposed that the following words be added after "if required by his DSO" in the opening words to b: "and after taking reasonable steps to consult with a treating practitioner"
I consider that this amendment is sufficient to address the experts' concerns and note their agreement to this course.

Part H: Access to the internet and other electronic communication

The plaintiff proposed the following conditions: "29. The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. The defendant must also give the DSO the details of telephone numbers, service provided account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed by the DSO. 30. The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order. 31. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet."
Ms Grabham explained that these conditions were important because they would enable the DSO to monitor the defendant's communications with partners, potential partners, drug and alcohol suppliers and others. She said that they would also assist in "general compliance and ensuring that the defendant is being truthful in the information which he provides to the DSO."
Mr Wilcox submitted that none of these conditions was necessary as there was no indication that the defendant's offending conduct was associated with the internet or that he became disinhibited as a consequence of online activity. I accept this submission. There is no suggestion that the defendant has engaged in grooming online, internet gambling or has used pornography. As the experts have noted, the defendant's offending has occurred during personal altercations and confrontations at moments of high emotional stress. The experts considered these conditions to be unnecessary and that they were unlikely to do good and might even do harm. I am not persuaded that these conditions are either necessary or appropriate and decline to impose them on the ESO.

Part K: Medical intervention and treatment

The plaintiff proposed the following condition 42: "The defendant must agree to any treating psychologists, psychiatrists, counsellors or other mental health specialists and his general practitioner sharing reports on his progress with each other as considered appropriate by his treating medical practitioners, counsellors or other mental health specialists for the defendant's rehabilitation and/or risk-mitigation in relation to a serious offence."
Mr Wilcox submitted that the following words ought be added to the condition: "This condition does not apply to treatment providers employed by Corrective Services, Community Corrections or Justice Health."
Mr Wilcox explained that the reason for the qualification was that once information could be shared with treatment providers and assessors employed by Corrective Services, Community Corrections or Justice Health, the defendant's DSO would have access to all of that information. He explained that the public treatment providers' information would be stored on a portal to which the DSO would have access. He argued that this would tend to disrupt the therapeutic relationship between the defendant and his private treatment providers.
Both experts considered the plaintiff's proposal to be appropriate. They emphasised the benefits of a holistic approach and considered that it was very important that all of the plaintiff's treatment providers, whether public or private, had access to all relevant information if one of them sought it for the prescribed purpose (for the defendant's rehabilitation and/or risk mitigation in relation to a serious offence). I accept their evidence and the rationale behind the condition as proposed by the plaintiff.
The plaintiff also proposed condition 43 as follows: "The defendant must agree to any treating psychologists, psychiatrists, counsellors or other mental health specialists and his general practitioner sharing reports on his progress with his DSO as considered appropriate by his treating medical practitioners, counsellors or other mental health specialists for the defendant's rehabilitation and risk-mitigation in relation to a serious offence."
The experts' concern about the proposed condition was that it might tend to disrupt the therapeutic relationship between the defendant and his treating practitioners to require him to agree to the latter disclosing reports on his progress with his DSO. It was suggested to them that this potential harm could be ameliorated if the words "after consultation with the defendant" were added before the word "sharing". Both agreed that this amendment was sufficient to overcome their initial reservations. The plaintiff continued to press condition 43 in its original form. I am persuaded that the amendment approved by the experts ought be made.

Numbering of conditions

It is preferable that the conditions of an ESO be numbered sequentially rather than that they reflect the paragraphs in the schedule to the second further amended summons. The changes to the numbering are accounted for by my refusal to make conditions 19, 29, 30, 31 and 32 and the circumstance that proposed condition 40A is now numbered 36. Apart from the conditions referred to in the table below, the conditions referred to in these reasons have the same numbers as in the schedule to these reasons. Condition referred to in reasons Condition in schedule to reasons 26 25 42 38 43 39

Orders sought

In addition to an ESO for a period of five years on the conditions proposed, the plaintiff seeks the following ancillary orders: 1. An order permitting any reports prepared by court-appointed experts pursuant to order (2) made by Walton J on 18 June 2019 to be provided to Corrective Services NSW, any agency involved in the defendant's supervision, and the defendant's treating clinician(s) or health care practitioner(s). 2. An order restricting access to the Court's file in this proceeding such that access would be permitted to a non-party only with the leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.
I am satisfied that each of these orders ought be made. Proposed order (1) above would assist the defendant's rehabilitation by providing additional information to such agencies and treating clinicians and proposed order (2) would protect the defendant's rehabilitation by ensuring that only those with an interest in knowing about his offending and the risk he poses will have access to the Court's file, including the evidence adduced in these proceedings.

Orders

For the reasons given above I make the following orders: 1. Order, pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), that the defendant be subject to an extended supervision order for a period of 5 years from the date of the order. 2. Direct, pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), that the defendant comply with the conditions set out in the Schedule to these reasons for the duration of the extended supervision order in (1) above. 3. Authorise the provision of any reports prepared by court-appointed experts pursuant to order (2) made by Walton J on 18 June 2019 to Corrective Services NSW, any agency involved in the defendant's supervision, and the defendant's treating clinician(s) or health care practitioner(s). 4. Order that non-parties are not permitted to access the Court's file in this proceeding unless a judge of the Court has, after having provided an opportunity for the parties to be heard, granted leave.

SCHEDULE OF CONDITIONS OF SUPERVISION SHANE JOHN PARTINGTON Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW)

Monitoring and Reporting

Corrective Services NSW (CSNSW) will administer this Extended Supervision Order (Order).
The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
The defendant must comply with any reasonable directions given by his DSO, or their delegate from CSNSW, for the enforcement and implementation of the Order or any conditions of the Order. Where a direction may conveniently be given in writing (or is required to be given in writing), it may be given electronically including by SMS or other messaging service.

Electronic Monitoring 4. The defendant must wear electronic monitoring equipment as reasonably directed by the DSO or any other person supervising him.

Schedule of Movements 5. If directed, the defendant must provide to his DSO a weekly plan (called a schedule of movements) 3 days before the week covered by the plan is due to start. 6. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period. 7. Except in an emergency or with the prior approval of his DSO, the defendant must not deviate from his approved schedule of movements. 8. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about: a. where he is, where he is going and what he is doing, and b. where he has been and what he has been doing, and c. who he is with, or has been with, and d. the name of any other person staying overnight.

Part B: Accommodation 9. The defendant must live at an address approved by his DSO. 10. The defendant must be at his approved address between 9.00pm and 6.00am unless other arrangements are approved by his DSO. 11. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 12. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. 13. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions 14. The defendant must not leave New South Wales except with the approval of the Commissioner of Corrective Services. 15. The defendant must surrender any passports held by the defendant to the Commissioner. 16. The defendant must comply with any reasonable direction from his DSO to not go to a particular place.

Part D: Employment, finance and education 17. If the defendant is unemployed, the defendant must make himself available for employment, education, training or participation in a personal development program as directed by the DSO. 18. The defendant must not start any job, volunteer work or educational course without the approval of his DSO.

Part E: Drugs and alcohol 19. The defendant must not possess or use: a. illegal drugs or medications, other than as prescribed or available over the counter; and b. alcohol, without the prior approval of his DSO. 20. The defendant must submit to testing for drugs and alcohol as reasonably directed by his DSO. 21. The defendant must not enter any licensed premises, excluding cafes, cinemas and restaurants, but including hotels, bars and licensed clubs, without the prior approval of his DSO. 22. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by his DSO, including a residential rehabilitation program if made available to him and must not discharge himself from such programs and courses without prior approval of his DSO.

Associations with Others (not children) 23. The defendant must not associate with people that his DSO tells him not to. 24. The defendant must not associate with any person(s) who he knows to be: a. consuming or under the influence of illegal substances; or b. consuming or under the influence of alcohol, without the prior approval of his DSO. 25. If the defendant commences or continues an intimate relationship with someone: a. if asked about his relationship status, he must tell his DSO the name of the person with whom he is in an intimate relationship; and b. if required by his DSO, and after the DSO has taken reasonable steps to consult with a treating practitioner, he must either: i. tell the person of his criminal history; or ii. give consent for the DSO to tell the person of his criminal history; and c. he must tell his DSO before commencing to live with that person; and d. he must obey any reasonable direction from his DSO not to live with that person. 26. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service.

Part G: Weapons 27. The defendant must not possess or use any firearm within the meaning of s. 4 of the Firearms Act 1996 or prohibited weapon as defined in s. 4 and Schedule 1 of the Weapons Prohibition Act 1998.

Part H: Search and seizure 28. If the DSO reasonably believes that a search (of the type referred to in subparagraphs d. to g. below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO (or any other person requested by the DSO) may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person. For the purposes of this condition: i. a search of the defendant means a garment search or a pat-down search. ii. to the extent practicable a pat-down search will be conducted by a DSO (or any other person requested by the DSO) of the same sex as the defendant. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 29. During a search carried out pursuant to condition 28 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 30. 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 conditions 28 and 29 above.

Part I: Personal details and appearance 31. The defendant must not change his name from "Shane John Partington" or use any other name (aside from Shane John Partington), or change his appearance such that his visual appearance changes significantly, without advising his DSO of his intentions. 32. The defendant must let CSNSW photograph him when reasonably directed to do so. 33. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details within 7 days.

Part J: Medical intervention and treatment 34. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend, unless he provides a reasonable excuse to his DSO for non-attendance. 35. The defendant must take all medications that are prescribed to him by his healthcare practitioners only in the manner prescribed. 36. The defendant must notify a DSO promptly within 24 hours if he ceases to take or declines to commence taking any medication as referred to in condition 35. 37. The defendant must agree to his healthcare practitioners sharing information with the DSO as to the fact of his attendance at appointments and his overall progress in therapy or counselling including the practitioner's general opinion as to his development of insight into offending risk factors and strategies to abstain from substance abuse. 38. The defendant must agree to any treating psychologists, psychiatrists, counsellors or other mental health specialists and his general practitioner sharing reports on his progress with each other as considered appropriate by his treating medical practitioners, counsellors or other mental health specialists for the defendant's rehabilitation and/or risk-mitigation in relation to a serious offence. 39. The defendant must agree to any treating psychologists, psychiatrists, counsellors or other mental health specialists and his general practitioner sharing reports on his progress with his DSO after consultation with the defendant and as considered appropriate by his treating medical practitioners, counsellors or other mental health specialists for the defendant's rehabilitation and risk-mitigation in relation to a serious offence. NOTE: In deciding whether to request information the DSO must take into account that a relationship of trust and confidentiality with healthcare practitioners is fundamental to the defendant's engagement with and treatment by healthcare practitioners. 40. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW. 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: 08 November 2022

At a glance

Court

Decision date

Before

Source

Judgment (36 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (1)