State of New South Wales v Peters

The index offending

1. The circumstances of the murders and the discovery of them were outlined in the sentencing judgment of Wood CJ at CL on 20 December 2002: 2. The two offences came to light following a conversation between Jillian Nash and police, on 29 August 2001, when she related her concerns as to the whereabouts of Akai, who had not been seen for some time. In particular, she indicated that the defendant had mentioned to her that Akai was dead, that he had killed him six months ago, and that he had cut up his body and disposed of it down the toilet, or in bins. He also mentioned cutting the hands of the deceased, knocking out his teeth, and putting peroxide and chemicals on his hair in order to burn it, so as to prevent his identification. He mentioned additionally that he had been collecting Akai's pension using his bank card, but that it had been stolen. She said that he had asked her to go to the bank with a letter, with his name on it, saying that she had been asked to collect the rest of the money because the card had been lost and cancelled. 3. Police and Ms Nash went to the residential unit where she lived in Redfern. They were there provided with a Centrelink card in Akai's name. A bag containing clothing and medication in the name of the defendant, as well as a St George Bank statement in the name of Akai, were also collected. 4. A search warrant was obtained in relation to the premises at Flat B9/15 Northcott Flats, where Akai and the defendant had lived. When the premises were entered, they were found to have been ransacked. Blood stains and smears were observed in various locations, and an external window frame was seen to have been shattered. Other residents at the flats indicated that Akai had not been seen for some months. 5. Inquiries were made in relation to the St George Bank account in Akai's name, which revealed that there had been six withdrawals, via ATMs between 7 June 2001 and 16 August 2001, totalling $1650. In some instances, the video camera attached to the ATM's showed that the withdrawals had been made by the defendant. 6. On 30 August 2001, the defendant was spoken to by police at Langton Clinic. Later he participated in an electronically recorded interview, in the course of which he admitted to having been the person responsible for the withdrawals. In the course of this interview, he claimed to have been given Akai's bank card as a "gentlemen's agreement", under which, if he stayed and looked after his flat, and looked after their dog, he could withdraw moneys from the account, and keep any balance, after paying the rent and electricity. The money paid into the account, against which the withdrawals were made, he acknowledged had come from Akai's disability pension. 7. He claimed that this agreement had been made about six months earlier, when Akai had said that he was going away for a while, as he needed a break from the Northcott flats. He said that he had not heard from him since, and, as a result, he was "tearing [his] hair out". He added that he did not know where he was. 8. In the course of this interview, he mentioned that Bevan Frost was his "best friend''. He also said that he had turned Akai's flat upside down because he had been upset, and, in the course of doing it, he had cut his hand when breaking a pane of glass. The blood which was there, he suggested, was his own blood. 9. Inquiries revealed that the defendant had been in a homosexual relationship with Akai for some 3 years or so. Evidence given by the defendant showed that they had met at the Langton Clinic Half Way House, and had lived together for some time, with periodic interruptions when Akai had asked the defendant to leave. He blamed Akai for having infected him with HIV, Akai also having the virus, which had developed into AIDS by the time of his death. The defendant indicated that Akai had not warned him of his HIV status, and in fact had not admitted it until he was seriously ill. He claimed to have nursed him for a year, without getting any thanks for it. 10. The defendant was charged with the offences of obtaining money by deception, which later came to be included on the Form 1, and he was released on self-bail. 11. On 5 September 2001, a listening device was installed and activated in Ms Nash's apartment. A number of conversations between the defendant and Ms Nash were thereafter intercepted and monitored, until the device was deactivated on 7 September 2001. 12. In the course of one such intercepted conversation, on 5 September 2001, the defendant, while obviously suspicious as to the source of information which had led to him being interviewed by police, expressed his appreciation to Ms Nash for " sticking up" for him, indicating that he had told police that he did not know where Akai was, but that he had obtained the money under a gentleman's agreement. At one point, he clearly admitted to having killed Akai. Otherwise the tenor of the conversation was consistent with him having done so, and of being concerned that the police would arrest and charge him. 13. On 11 September 2001, police attended the residential unit 3 block A, level 1, Northcott Flats, where the deceased Frost had been living, and where, it was understood, the defendant might be found. Upon being admitted to the unit by the defendant, police observed that it too had been ransacked. The defendant was informed that he was under arrest for the murder of Akai. In the course of inspecting the premises, police discovered smudges of blood on the carpet and walls of the bedroom, as well as a pattern of blood on the mattress of a bed forming the outline of the upper torso of a body. In the bathroom they found a decapitated body in the bath. 14. The defendant informed the police that the body was that of Frost, and that he had killed him 2 days earlier with a knife, after a fight. He indicated that the knife had been placed under the carpet near the front doorway. A blood stained carving knife, 320 mm in length was found in this location. 15. The defendant was placed under arrest for the murders of both Akai and Frost and taken to Surry Hills Police Station, where he later participated in an electronically recorded interview. 16. In the course of this interview he admitted to having killed Akai, eight months or so earlier, by stabbing him in the neck. He claimed that Akai had manipulated him into sleeping with him, had been responsible for infecting him with HIV and, had experienced many mood swings, in the course of which he had been violent and abusive, and had put him down. At the time of the killing, he claimed, Akai had been screaming at him and calling him "stupid', to the point where, being "revved up", he had had enough, and had been unable to help himself. At that point he said that he had gone into the kitchen to fetch a knife. On his return he stabbed Akai twice in the neck while he was sitting on the lounge. He claimed to have been on methadone and coming off crystalline methamphetamine, ("Ice") at the time of the killing. 17. He said that he had placed the body on the floor of the bathroom, where he had disembowelled it, and cut it up, over the succeeding days, with a hacksaw. He had then disposed of the various parts, which were concealed in plastic or leather bags, and then placed into garbage bins. 18. He disclosed that he had removed the hands of the deceased, and had made cuts across them, in order to prevent fingerprint identification, and for the same reason he had removed the teeth from the body, which he had then flushed down the toilet, along with the liver. He had snapped the pelvis and leg bones in order to get them into the bag. The disembowelment of the body, he said, took about 6 hours. 19. He said that apart from methadone, he had not been on drugs at the time, and that he had been aware of what he had been doing. He explained that he had not informed police because he had been scared, and had not wanted to return to gaol. 20. The interview then progressed to the finding of the body of Bevan Frost. The defendant again agreed that it was he who had killed this man, saying that it had occurred about 2 days before the police had attended at the flat. 21. He explained that Frost had manipulated him as much as Akai, and that he had been unable to handle it. He claimed that he had been on drugs and had stabbed him in the back, chin, and then in the neck, two nights earlier, while he was lying on his bed. He acknowledged having had a sexual relationship with Frost, but said that he "got sick of being used for sex''. He described his mood as "frustrated, angry", and said that he did not think Frost had been awake when he stabbed him. He claimed to have taken about 40 of the deceased's tablets, several hours before he killed him, and said that "the mixture of them both sent me a bit crazy". 22. He acknowledged, in this interview, that two minutes or so before killing Frost, he had placed the knife under the pillow of the bed. When asked why he had killed Frost, rather than leave him, he said: " ... cause I had a dog I've got nowhere else to go and I've got to think about the dog". In his evidence he raised a question as to whether he had in fact placed the knife under the pillow or had gone out to the kitchen to fetch it. 23. When asked why he had killed Akai, he had in fact offered a similar reason, indicating that the dog was the only thing which he loved. Akai, he claimed, used to ill-treat the dog, and he suggested that this was one of 1 the reasons for killing him. 24. After killing Frost he said that he had dragged the body to the bathroom, where he had disembowelled it, and flushed the intestines and other organs down the toilet. He had then cut off the head and placed it, together with segments of the lungs, into a plastic bag, which was found by police in that room. He had intended to cut up the remainder of the body in similar fashion to the earlier murder, and had in fact begun to cut the soft tissue from one leg. However, he had felt sick, and had taken a large number of drugs, with the consequence that he had been unable to complete the task. He claimed also to have taken a number of tablets before this killing, and said that what had happened had occurred "in a haze, a daze, head full of pills". 25. In relation to each murder he asserted, in effect, that the decision to stab the victim had been a spur of the moment event. However, he conceded, in each case, that his intention had been to kill the victim…."

Three failed releases to parole

1. The non-parole component of the defendant's sentence for the murders of the two men expired on 10 September 2014. He has been released to parole on three separate occasions, but each time was returned to custody because of breaches of parole.
2. The first release in November 2016 was the most successful in that he was able to remain in the community for 16 months until a combination of drug use, destruction of his monitoring bracelet and a failure to attend an appointment with his psychologist led to revocation of parole in March 2018. There had been multiple earlier breaches during 2017, including ongoing drug and alcohol use, tampering with the monitoring device and incidents of aggression, including a threat to kill his father conveyed to a cousin in November 2017.
3. The next release in July 2018 was very short - 4 days - and parole was revoked due to intimidatory behaviour with his community corrections officer including a threat that if the officer did not do what he wanted, he would slit his own throat.
4. The defendant was again released in December 2018, but parole was revoked 4 months later due to substance use, deviating from his schedule of movements and removing his monitoring bracelet. He was returned to custody on 3 May 2019 and has remained in custody since.
5. I was informed that the defendant's case was to be listed before a private meeting of the State Parole Authority ("SPA") on Friday 11 February 2022, the day after this hearing.
6. The interaction of parole decisions and the operation of this Act was appropriately set out in the defendant's written submissions as follows:

• It is anticipated that SPA will adjourn any consideration of the defendant's potential release to parole until this Court has reached a determination on whether an IDO, an ISO or neither will be imposed upon the defendant. The reason for this is that if this Court imposes an IDO, the defendant is no longer considered eligible for release on parole: s.126(4)(b) Crimes (Administration of Sentences) Act 1999 (CASA).
• It is possible that while a decision is pending in this Court, the State Parole Authority could grant parole, but if an IDO is later granted it will automatically suspend the grant of parole pursuant to s.160A(1)(b) CASA and it would mean the defendant is returned to custody.
• If this Court grants an ISO and the SPA then grants parole, the conditions of the ISO are taken to also be the conditions that attach to the parole order: s.160A(2) CASA.
• Alternatively, if this Court grants the ISO and the SPA refuses parole, the ISO will remain suspended and will only come into force upon the defendant's release from custody in September 2022.
• It is clear from CASA that the legislature intended the high-risk offender regime to take primacy over parole. This is made clear by the inclusion of section 135(3)(i)(i) of CASA, that makes it mandatory for SPA to take into account the fact that an application has been made (but not determined) for a post sentence order. The defendant therefore respectfully submits that this Court should proceed with a decision as soon as practicable and not delay for future decision from SPA.

1. It was common ground between the parties that the Court must make its own decision under the Act, independent of any concerns or considerations as to what the SPA may decide. That is the approach I have taken in determining this application.

The evidence

1. The plaintiff relied upon two affidavits of Lucy Nichols, Solicitor, dated 15 December 2021 and 7 February 2022 and a volume of material addressing s 17(4) and s 9(3) factors. The later affidavit included extracts from recent case notes that revealed, in my view, some ongoing attitudinal problems that underpin risk that have also featured in reports prepared by psychologists and psychiatrists who have reviewed the defendant, particularly more recently.
2. The defendant relied upon an affidavit of Karen Espiner, Solicitor, dated 7 February 2022 providing some information regarding the RUSH (Real Understanding of Self Help) program currently being undertaken by the defendant as well as a Corrective Services protocol which discusses the impact of COVID-19 restrictions on programs in custody, including group size limits, delays and problems of that type.

Operation of the Act and summary of the defendant's position on the interim orders

1. First the Court needs to be satisfied that the statutory pre-conditions s 5C(a) to (d) of the Act are satisfied. These are first, that the defendant is an offender serving a sentence of imprisonment for a serious offence, second, that he is a "detained offender" and third, the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious offence if not kept in detention (or under supervision) under the order.
2. If so satisfied, the Court must make an order appointing two experts to assess the defendant: s 15(4). The Court must then determine whether to impose an IDO or an ISO or neither. If the Court imposes an ISO, the Court must impose such conditions as are appropriate: s 11.
3. The purpose of the Act is protective, the primary object being to ensure the safety and protection of the community. Another object - obviously enough a secondary one - is to encourage offenders to undertake rehabilitation.
4. In his written submissions, the defendant asserted that the risk of committing a violence offence was rated only as moderate, that his risk is "likely to be able to be managed in the community" according to Mr Ardasinski who reviewed him in 2021 as well as in 2013, that "over-treatment" should be avoided, that his behaviour in custody has been good and any offences were not relating to violence, that he has done many programs in custody, and that the proposed 57 conditions of the ISO, about which no issue is taken, will ameliorate any risk to an acceptable level.

The nature of a preliminary hearing

1. The purpose of and processes entailed in a preliminary hearing were appropriately set out in the State's written submissions as follows:

• A purpose of the preliminary hearing is to allow the Court to filter out unmeritorious applications at an early stage. Another purpose is to give the Court the benefit of independent expert opinion before making a final decision: State of New South Wales v Manners [2008] NSWSC 1242 at [9] (Johnson J).
• The approach is to take the State's case at its highest to determine if there is merit in the application.
• The Court proceeds on the assumption that the asserted facts are proved, including the expert opinions, and then considers whether, on that assumed basis, the Court is satisfied as to unacceptable risk: State of New South Wales v McGee (preliminary) [2019] NSWSC 53 at [10] (per Fullerton J); State of New South Wales v Sancar [2016] NSWSC 67 at [74] (per Garling J).
• In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, in the context of s. 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW) (which reads the same as s. 10A), Rothman J (at [7]) rejected a submission that 'prima facie' proof is required of the "matters alleged" and explained that "matters alleged" in s. 27 referred to the facts sought to be established by the State, not the conclusion to be drawn from them. His Honour said (at [9]) that "it is necessary for the State of New South Wales to allege certain facts, which, if proved, would lead to a conclusion that would justify the making of an ESO". This approach was quoted and endorsed by Justice R A Hulme in State of New South Wales v Golding (preliminary) [2018] NSWSC 1041 and Justice Latham in State of New South Wales v Strong, Robert [2018] NSWSC 1113 in the context of s. 10A.

1. Whilst some issue was initially taken in the defendant's written submissions regarding the role of opinions of experts in the context of preliminary hearings, it is clear in my view that at this stage, the Court does not assess, weigh, evaluate, accept or reject the expert opinions, but must take them as the factual expression of assessments that have been made at those times of matters relevant to the defendant's risk.

Principles for the evaluative task in s 5C(d) - "unacceptable risk"

1. These principles have been collected and accurately and usefully summarised in the plaintiff's written submissions as follows:

• The unacceptable risk test in s. 5C(d) is an evaluative task and requires the exercise of a discretionary judgment: Lynn v State of New South Wales [2016] NSWCA 57 (Lynn) at [82] (Basten JA). The objects of the Act should be held in mind when undertaking this evaluative task: Lynn per Beazley P, at [55].
• Intrusions on a defendant's right to liberty and privacy by the ordering of a CDO are not relevant considerations for the first stage analysis: Lynn per Beazley P at [44]; Basten JA at [127].
• A risk is "unacceptable" if it is intolerable or outside society's parameters of norms, expectations or standards: Lynn per Beazley P at [50] and [51].
• As Basten JA stated at [127]: "A finding of unacceptable risk provides the basis for imposing control on the offender" and "The concept of "risk" clearly involves a risk to the community; although the qualifier "unacceptable" could be read in an extended sense as meaning deemed unacceptable by the Court, it is still the composite phrase which must be understood as referring to a risk to the community".
• The nature of the risk posed by Mr Peters is to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be considered in the absence of supervision: Lynn per Basten JA at [126] and Beazley P at [51].
• Determining what is an "unacceptable risk" includes a consideration of the type and nature of the offences that have been committed absent supervision. In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43] Harrison J observed: "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
• Justice Fagan in State of New South Wales v Barrie (second final) [2019] NSWSC 1161 stated at [32], after examining the judgment of Lynn that: "The determination of whether a risk of future offending by an individual is unacceptable can only be made by reference to a standard. The generality of s 5C(d) necessarily requires the Court to measure the degree of risk that has been established in respect of the defendant against the level that the Court considers the community must accept. Is the likelihood of the defendant re-offending so high and the harm from an offence he is likely to commit so great that the community should not be expected to live with the risk? The judgment is to be made using the Court's experience of the incidence of violent and sexual crime generally, the range of seriousness of crimes that may be committed and the effects of various forms of offending upon victims and the wider community. .."
• The Court may legitimately find a person poses an unacceptable risk for the purpose of the unacceptable risk test, even if the likelihood of them committing a further serious offence is determined to be low: State of New South Wales v Kamm (final) [2016] NSWSC 1 per Harrison J at [43]; State of New South Wales v Sleeman (preliminary) [2018] NSWSC 562 per R A Hulme J at [13].
• There is no requirement when considering whether s. 5C(d) is met to consider whether the unacceptable risk would be diminished by the making of an order. That analysis is invoked at the second stage of considering whether a CDO or ESO should be granted: Tannous v State of New South Wales [2020] NSWCA 261 at [59].
• The standard to which the Court must be satisfied that Mr Peters poses an unacceptable risk of committing a further serious offence is higher than the civil standard of proof and is "beyond more probably than not": Cornwall v Attorney-General for New South Wales [2007] NSWCA 374. However, the court does not need to find that Mr Peters is more likely than not to commit a serious offence to find he poses an unacceptable risk: s. 5D.

Relevant statutory considerations in determining whether to make an ISO or IDO (s 9(3) and s17(4)) of the Act

1. As noted above, in determining whether to make a CDO or ESO under the Act, the safety of the community must be the paramount consideration of the Court: s 17(2). Obviously that mandatory consideration applies equally to interim orders.
2. Section 17(4) of the Act (for a CDO) and s 9(3) (for an ESO), set out the matters to which the Court must have regard when determining whether the defendant presents as an unacceptable risk if not kept under supervision (or detention) under the order.
3. The statutory considerations relevant to the evidence tendered on this preliminary application here are: (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW or the NSW Police Force as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) if the offender is kept in custody or is in the community (whether or not under supervision) - any options available that might reduce the likelihood of the offender re-offending over time, (e2) whether it is satisfied that the offender is likely to comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which the offender is or has been subject while on release on parole or while subject to an interim supervision order or an extended supervision order. (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence,

Evidence in the supporting documentation of the matters required to be considered under s 9(3) / s 17(4)

Prior criminal history and pattern of offending - s 9(3)(h) / s 17(4)(h)

1. This history is set out at [12] and [13] of this judgment. There is little of significance in the prior criminal history other than that it featured drug use as well as offending relating to obtaining drugs. There was one previous conviction in 1998 for assaulting one of the men he murdered. An assertion was made at the sentencing hearing that that relationship was the subject of violence on the part of both the defendant and Mr Akai.
2. The murders which comprise the index offending were horrific, sudden, violent and macabre. The lack of empathy and coldness with which the defendant conducted the dismemberment of each man and the chilling way he discussed it with his friend that led to police involvement. Whilst these crimes were committed 20 years ago, the ongoing victim blaming and transference of responsibility are important matters when considering current risk.

Views of the sentencing court: s 9(3)(h1) / s 17(4)(h1)

1. The sentencing judge took the view that the defendant had a reduced criminality given the evidence of emotional and physical abuse caused to him during the relationship with each man, as well as his underlying personality disorder. His Honour made the following comments and findings:

• While provocation in law was not open to the degree that may have reduced murder to manslaughter, that is not to say that these factors are not of considerable relevance for an assessment of the defendant's objective criminality, in relation to each killing. They clearly are of significant relevance, particularly in the light of his background, and the personality disorder found to have been present by both Drs Ellard and Nielssen, and conceded by Dr Skinner to possibly have been present.
• Upon any view of the objective circumstances of the two killings, they are exceedingly serious, and they were aggravated by the very disturbing subsequent dismemberment or partial dismemberment of each body. The deliberate and cold blooded way in which the defendant went about this activity, his attempts to clean Akai's flat, his attempts to prevent identification of Akai through fingerprint or dental records, his use of Akai's credit card to access his pension, and the charade which he subsequently adopted as the reason for his disappearance, all speak of a man cerebrating relatively clearly, and acting very callously, despite his continuing abuse of drugs. They also speak of a man lacking, at that time, in much, if anything, in the way of remorse or insight into what he had done.
• In his favour, however, I accept that the defendant was provoked to a degree by each victim, in the case of Akai by his pattern of physical and mental abuse, and in the case of Frost by his sexual manipulation or abuse. I also accept that he was heavily affected by drugs at the time of the killings, that he did not mutilate or torture either deceased before his death, and that neither killing was premeditated or planned in any way.
• I also accept that, in each case, the defendant found himself to be the submissive partner in somewhat disastrous relationships of the kind into which he had repeatedly entered, and from which he had found great difficulty escaping. That was in part due to his background and to his personality profile. The relationships were made all the more difficult by his contracting HIV, which had a very significant impact on his life, as well as a not unexpected anger for, and resentment of, Akai, and by the fact that had nowhere to go, and no family to turn to for help. I also accept that at the time of the killings he was significantly depressed. To some degree that was attributable to the fact of his HIV condition but more relevantly and significantly, it was the result of his use of crystalline methamphetamine, the ingestion of which illegal substance was a matter of choice on his part.
• In combination, I am satisfied that these circumstances and the matters referred to by the psychiatrists and psychologists reduce his objective criminality to a degree, and that his situation is somewhat akin to the position of those offenders who fall into the category of the "battered woman syndrome".

1. His Honour concluded that were it not for those matters, a life sentence for the murders was "a real possibility". His Honour also concluded that there had been significant progress towards rehabilitation while in custody and some reconciliation with family and a wish to be drug free which would require "encouragement through long-term supervision on parole".

Compliance with parole and supervision obligations: s 9(3)(f) / s 17(4)(f)

1. This has been a significant issue. The defendant has been non-compliant with requirements of parole causing revocation of parole three times. He was given multiple chances before parole was revoked, particularly during the first release to parole. Constantly blaming others for this - in particular Corrections staff - is an ongoing feature of his interactions with and reports to psychological/psychiatric and other assessors.
2. Whilst it is true that the defendant did has not breach parole by violently offending, breaches include drug use, removal of his monitoring device together with refusing to comply with his movement schedule and aggression to corrections staff.

Violent offender treatment or rehabilitation programs: s 9(3)(e) / s 17(4)(e)

1. The defendant has engaged in the EQUIPs program modules addressing drug and alcohol use and domestic violence. He has however repeatedly refused to complete the VOTP (Violent Offenders Therapeutic Program) which he has been offered four times in the last four years, offering various excuses including that he did not want to be transferred to another correctional facility to complete the course and did not want to have to do a course with sex offenders whom he sees as "manipulative", and that he prefers to remain in the mainstream where "men are men".
2. The defendant is now completing the RUSH Program which if one adopts a cynical view, has been engaged in recognising his prospects of release on parole and avoiding an IDO would be better if he attended. Having said that, there is no evidence he is doing anything other than engaging appropriately in that program although no reports are yet available and it has only been proceeding for a week or two.

Expert assessments by psychologist or psychiatrist and the results of any statistical or other assessment as to the likelihood of the offender committing a further serious offence: s 9(3)(c) and (d) / s 17(4)(c) and (d)

1. Three psychiatrists assessed the defendant in the context of sentencing in 2001 and 2002. There was no particular focus in those assessments on the likelihood of committing a further serious offence, although each offered a view on the question of whether the defendant had a mental illness or disorder.
2. Dr Ellard made a diagnosis of borderline personality disorder. Dr Skinner made a diagnosis of substance abuse disorder in remission and the possibility of an underlying personality disorder that was not evident at the time of the assessment. She concluded that it was essential that he remain abstinent from drugs and avoid abusive relationships. Dr Nielssen diagnosed adjustment disorder with depression in partial remission, substance abuse disorder and personality disorder with borderline traits. He also noted that "… depressed mood in a person with Mr Peters' personality vulnerabilities is likely to have substantially affected his perception of the events and his capacity for self-control".
3. In 2013 Mr Ardasinski and Ms Delbaere, both psychologists, prepared a report for the Special Offenders Review Committee. They noted that his risk of violent offending was assessed as high in 2006 and when they reassessed him in 2013, it was moderate. In terms of substance use he was noted to have said that he "will stop when the time is right" and that he has "taken responsibility for his drug use" and that it is "his choice". Identified risk factors and treatment targets were listed as emotional control, substance abuse, stability of relationships, cognitive distortions and a clear violence cycle. Poor work ethic and impulsivity and lack of goals were also noted as was criminal personality and criminal attitudes.
4. In November 2015 Ms Luketic and Ms Langton, both psychologists, assessed the defendant as being in the "moderate" risk range for future violent offending. They noted rudimentary insight into his offending and limited assessment of his own dynamic risk factors and that he engaged in victim- blaming, criticising others and externalising blame more generally. They identified specific risk as relationship(s) with an older male where there is a perception of exploitation or rejection.
5. In 2016 the defendant was assessed by Dr Chew, psychiatrist, who concluded that the defendant has a Cluster B Spectrum Personality with features of affective instability, intense relationships, impulsivity, intense rage and possible psychopathy. Dr Chew concluded that the defendant may also have a mood disorder. Dr Chew noted historical risk factors for violence and the need to remain abstinent from any illicit drugs which will in turn reduce the risk of violence and the risk of developing mood episodes. Dr Chew noted that relationships need to be carefully monitored.
6. In November 2018 psychologists Gubarevski and O'Neill assessed the defendant at high risk of violent re-offending. They recommended he undertake VOTP which he refused stating that "violence is no longer a problem" for him and that he has not reoffended or used violence which "proves that (he) is not violent any more". His drug use on parole was noted. The report writers recorded concerns regarding the way the defendant minimised his increasingly aggressive behaviour in the community when he was on parole, his lack of insight into this and his blaming others for it.
7. His current assessment of risk of committing further violent offences was assessed as within the moderate range in 2017, and in the high range under the HCR-20 administered in 2018. The risk factors of substance abuse, relationship dependence, fluctuating emotional control and mental health problems - in particular frequent bouts of depression but with limited insight -, limited insight into violence, cognitive distortions, limited community support, withdrawal and isolation, impulsivity, poor work ethic and parasitic lifestyle where he expects others to support him, signs of psychopathy and the lack of remorse or empathy for his offending. Superficial engagement, deceitfulness and poor cooperation with supervision and treatment particularly while on parole were all still present concerns.
8. Risk scenarios were identified as where the defendant is in an intimate relationship but feels exploited or abused or support is withdrawn as he will then be unable to deal with his emotions, will likely use drugs and/or alcohol, become angry and violent and this could involve weapon use. This was described as a potentially lethal risk.
9. Dr Elliott, psychiatrist, assessed the defendant in August 2019. He noted narcissistic features and that the defendant has personality pathology which is, by its nature, enduring and entrenched, and that he must remain abstinent from all substances because a relapse into substance use "will exacerbate all of the maladaptive features of his personality".
10. In his report dated October 2021 Mr Ardasinski noted the current risk assessment tool indicated that the defendant posed a moderate risk of violent re-offending. He proposed some risk management strategies in his 2021 report that could be deployed including referral to a community-based psychologist, scrutiny of social contacts and victim safety planning within any intimate relationships, unannounced home visits and drug swabs, electronic monitoring equipment, movement schedules and nightly curfew, although he noted that monitoring and a curfew will not do anything to guard against the risks which are greatest within the home situation based on the history of the offending.

Report from Corrective Services NSW as to management in the community: s 9(3)(d1) / s 17(4)(d1)

1. There are multiple reports in the tendered material dealing with the difficulties encountered by Corrective Services staff in managing the defendant in the community. A troubling feature is transference of blame to Corrections staff for his own breaches and behaviours and anger when things do not go his way.
2. In the Risk Management Report prepared by Mike Glover of Community Corrections ESO Team dated 19 November 2021, ongoing risk factors from Mr Ardasinski's report were noted to include - substance abuse, difficulties with stability of relationships with significant others, emotional control, sexuality issues, mental health instability, violence cycle, cognitive dissonance, impulsivity, poor work ethic and lack of goals. Mr Glover proposed parameters for supervision which are referred in the proposed conditions.

Options available for reducing likelihood of reoffending: s 9(3)(e1) / s 17(4)(e1)

1. The RUSH course was recommended as targeted therapy that may well contribute to reduction in the likelihood of reoffending. It is based on Dialectical Behaviour therapy principles which it is said to have been found to help prepare offenders for more involved forms of group treatment. It is only available in custody. The defendant has been attending this course over the last week or two and indicated via his solicitor that he preferred to attend this course rather than attend the hearing of this HRO application. This course was recommended as an alternative to VOTP which the defendant continues to refuse to attend.

Likelihood of compliance with ESO: s 9(3)(e2) / s 17(4)(e2)

1. I consider this to be a significant issue. As demonstrated in the past in the three periods on parole, the defendant seems to be selective with what requirements he will meet and when. He has limited if any insight into risks associated with his drug use and no demonstrated insight into his offending for which he continues to blame his victims. I consider it is almost inevitable he will take drugs to manage his moods, refuse to comply with requirements when it suits him and remove his monitoring device if he feels the monitoring is intrusive.

Decision - Unacceptable risk - an order will be made

1. I have concluded that the supporting documentation would, if proved, justify the making of a CDO or ESO. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious violence offence if not kept under supervision under a CDO or ESO.
2. The index offending involved sudden, violent use of an available weapon in the home. Both murders entailed the gruesome dismemberment of men with whom the defendant lived. He admitted that he dismembered them and flushed parts of Mr Akai into the toilet and disposed of other parts of him in rubbish bins to get rid of evidence that he had killed him. Not as much progress had been made with Mr Frost's body at the time the defendant's murder of Mr Frost was discovered eight months after he killed Mr Akai.
3. He has been assessed as in the moderate to high risk category for violent reoffending, although I acknowledge the very significant limitations around the risk assessment tools utilised to date.
4. He has a personality disorder with psychopathic traits and has no insight into his mental health issues.
5. He has demonstrated on parole that he would take drugs and use alcohol to manage stress, anxiety and depression. He downplays the relevance and role of his drug use. He is not abstinent, even in custody. On parole he acknowledged using cannabis and amphetamines turning up drug intoxicated and agitated despite drug use being in breach of his parole. He is a risk to the community because he does not acknowledge, understand or take responsibility for the impact his drug use has on his violence cycle, despite his narcissistic assertions and pretences to the contrary.
6. I am satisfied that the risk the defendant presents of committing a serious violence offence is unacceptable in that the seriousness of the potential harm is high, given the defendant's proven capacity for extreme violence, which is likely to be impulsive and sudden, and likely committed in an unobserved situation such as a home or domestic situation where a seemingly peaceful scenario suddenly turns due to some perceived slight or abuse.

IDO or ISO?

1. The plaintiff submitted that all the matters that underpin why an order should be made militate towards an IDO rather than an ISO. The proven failure to cooperate with parole requirements, conduct in custody indicating that drug use continues, the lack of cooperation with recommendations for programs in custody, the current risk reports, and the background reports that indicate underlying risk, in particular his personality disorder with psychopathic traits.
2. The defendant argued that the defendant's level of risk is "much reduced", he has an excellent custodial record with no violence, he has engaged in treatment including psychological treatment as well as relevant programs, there is a lack of utility in the current RUSH program and Mr Ardasinski has specifically recognised that conditions of the proposed ESO are able to satisfactorily manage risk.
3. Secondarily it was argued that other factors, namely the defendant's HIV status, the prevalence of COVID-19 and its potential to interrupt programs and activities in custody, and the effect of institutionalisation on the plaintiff are other considerations I should take into account in favour of an ISO.

Decision

1. I am not persuaded the secondary factors are of any particular relevance. There is no evidence that the defendant's HIV cannot be appropriately managed in custody. Nor is there anything other than generalised evidence about theoretical interruptions to programs if they become COVID-19 affected.
2. Institutionalisation is an unfortunate consequence of the sentence imposed for the very serious index offending and the opportunities for parole that the defendant chose to squander.
3. Safety and protection of the community is the paramount consideration under the Act and in my view that is met at this stage by an IDO, not an ISO.
4. Making such an order based on the available evidence at this stage in no way pre-determines the final outcome which will be a matter for the judge at the final hearing based on the evidence then available. That evidence will by then inevitably include the reports of the two Court-appointed experts and reports as to progress made by the defendant in the RUSH program.

Orders:

1. I make the following orders: 1(a) Two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) as agreed by the parties are to conduct separate psychiatric or psychological examinations of the defendant and are to furnish reports to the Supreme Court on the results of those examinations by a date to be agreed by the parties. 1(b) The defendant is directed to attend those examinations. 2(a) The defendant is to be the subject of an interim detention order ("the interim detention order") for a period of 28 days from 17 February 2022. 2(b) Pursuant to s. 20(1) of the Act, the Court is to issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim detention. 3 Liberty is granted to the parties to approach the Common Law List Clerk to obtain hearing date for any application to extend the interim order, for the final hearing of the matter and to fix a timetable for the filing and serving of evidence and submissions.

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: 21 February 2022