State of New South Wales v Phillips

EVENTS LEADING UP TO THE PRESENT APPLICATION 3Before dealing with the application itself, and consistent with what I said to the parties at the commencement of the preliminary hearing, it is necessary for me to make a number of observations about the events leading up to the making of the present application. 4On 24 April 1991 the defendant was found guilty by a jury of the murder of Irene Glanville. On 21 May 1991 he was sentenced by Mathews J to a minimum term of 15 years imprisonment to date from 10 March 1990 and to expire on 9 March 2005, with an additional term of 9 years imprisonment to date from 10 March 2005 and to expire on 9 March 2014. The defendant has not, at any time, made an application for parole. Indeed on the evidence before me he has, on more than one occasion, expressed a desire to serve the entirety of the sentence which was imposed. 5In these circumstances, the fact that the defendant was due for release at the expiration of his sentence on 9 March 2014 could hardly have come as a surprise to anyone. Notwithstanding that, the evidence before me establishes that the Attorney-General's Department did not seek advice from the Crown Solicitor about the merits of an application under the Act until 27 November 2013. Having regard to the provisions of s. 6(2) of the Act, if an application under the Act were thought appropriate it could have been brought as early as September 2013. In circumstances where the imminent release of the defendant was obvious, no explanation has been forthcoming as to why it was that advice was not sought from the Crown Solicitor until some months after that. 6That unexplained delay in seeking advice was then compounded by what occurred, or more accurately what did not occur, when instructions were received by the Crown Solicitor. For the reasons to which I have already referred, the imminent release of the defendant, and the resultant necessity to deal with matter urgently, must have been obvious. However on the evidence before me, and instructions having been received in the Crown Solicitor's office on 27 November 2013, no step was taken by anyone on behalf of the Crown Solicitor until 8 January 2014, at which time orders were issued pursuant to s. 25 of the Act. In other words, in circumstances where it was obviously urgent, the matter lay completely dormant in the office of the Crown Solicitor for a period of almost 6 weeks following the receipt of instructions. 7Between 10 January 2014 and 13 February 2014 the Crown Solicitor's Office received a number of documents, reports and other information in response to the orders issued pursuant to s. 25. A risk management report was received on 3 February 2014. Following receipt of that material counsel was briefed to provide advice on 14 February 2014. Advice was provided by counsel on 27 February 2014. On the same date, the Crown Solicitor received instructions from the Attorney-General to commence the current proceedings. 8Those instructions having been received, the matter came before Garling J on 28 February 2014. On that occasion, his Honour made a number of orders, one of which required that the summons, affidavit and notice of motion be served on the defendant on or before 4:00 pm the following day, 1 March 2014. According to the record of the proceedings on that day, that order was made with the consent of the plaintiff. It is therefore to be assumed that the plaintiff had come to the view that service could be effected within the time ordered by his Honour. Notwithstanding this, I am given to understand that service of the material was not effected on the defendant until Monday 3 March 2014, in circumstances where a preliminary hearing had been listed to take place on Friday 7 March 2014. 9At the time of service of the various documents the defendant was in custody in Junee. He was obviously required to be in Sydney for the preliminary hearing. The necessity for him to travel from Junee to Sydney over the ensuing days rendered it impossible for him to speak with his legal representatives and provide instructions about the orders being sought by the plaintiff. It was for this reason that when the matter came before me on the morning of 7 March, I delayed its commencement for a short period to provide counsel with an opportunity to confer with the defendant. This was the very first occasion on which counsel had been given that opportunity. 10The combination of events to which I have referred gave rise to a situation which was highly unsatisfactory. The cause of that situation can be traced back to the circumstances surrounding the provision of instructions to the Crown Solicitor, and the events which followed in the weeks thereafter. 11This is not the first occasion on which I have been forced to express my concerns about delays in the bringing of applications under the Act. I am also aware that a number of other Judges of the court have expressed similar concerns. In the context of the present case, a number of specific matters warrant comment. 12Firstly, an application under the Act in respect of the present defendant could have been brought as early as September 2013. Advice as to the merits of an application could have been sought even earlier than that. In those circumstances, and given that the defendant's impending release cannot have been a surprise to anyone, I am not able to understand why it was that advice was not sought from the Crown Solicitor until the latter part of November 2013. 13Secondly, and in circumstances where there was an obvious necessity to deal with the matter urgently, not a single step was taken in the office of the Crown Solicitor for a period of 6 weeks after instructions were received. The explanation (such as it was) for that delay was that "this was a very busy period in the office and the office was closed for Christmas...". The fundamental inadequacy of that explanation needs no further comment. It must (or at least it should) have been apparent to the relevant person(s) within the Crown Solicitors office that the advice sought could not be provided until such time as there had been a response to the orders issued pursuant to s. 25. It must have been equally apparent that the recipients of such orders would require some time to respond. All of these matters, as well as the defendant's impending release, highlighted the need to give the matter priority and deal with it urgently. Allowing a period of almost 6 weeks to elapse without a single step being taken is, in my view, wholly unacceptable. It is also at odds with the expectation that the Crown will act as a model litigant. 14Thirdly, and even though the order relating to the service of material upon the defendant was made with the plaintiff's consent, the plaintiff apparently did not comply with it. As a result, the defendant was served with the relevant documentation only a matter of days before the preliminary hearing was to come before the Court. The fact that he was in custody in a facility which was a considerable distance from Sydney simply compounded the difficulties which already existed. 15All of these circumstances combined to place the defendant in a position which was both invidious and unfair, and gave rise to two particular consequences. Firstly, the various delays to which I have referred resulted in the preliminary hearing coming before the court only 48 hours prior to the defendant's scheduled release from custody, necessitating the making of a decision virtually immediately. That created a number of difficulties with the court's administration, not the least of which was ensuring the availability of a Judge to hear the application. 16Secondly, the defendant was placed in a position in which he had, to say the least, a limited opportunity to consult with his lawyers. I regard the position in which he was placed as one which bordered on being procedurally unfair. 17Tardiness of the degree which has been exhibited by the plaintiff in the present case is unacceptable. This is particularly so when the issue which is being litigated bears upon a person's liberty. As a matter of common sense, the release date of any offender to whom the provisions of the Act might apply is obviously known, or can at least be readily ascertained, well in advance. In my view, there is no reason why, in a case which is identified as being one to which the Act might apply, instructions cannot be given by the Attorney-General's Department to the Crown Solicitor far earlier than they were in the present case. Moreover, it is imperative that those lawyers within the office of the Crown Solicitor who are responsible for the supervision and carriage of applications under the Act deal with them far more expeditiously than they did in the present case. It is to be hoped that future applications under the Act will not exhibit similar tardiness in preparation. 18I should perhaps make it clear that none of the observations I have made should be regarded, in any way, as a reflection upon counsel who appeared on behalf of the plaintiff. On the contrary, had it not been for the diligence and assistance of both counsel, the resolution of the matter would have been rendered even more difficult. The comprehensive written submissions provided by both counsel have been of considerable assistance in determining the issues.

BACKGROUND 19I have already noted the sentence imposed by Mathews J and her Honour's sentencing remarks are in evidence before me. Whilst I do not propose to recount the entirety of those remarks, it is necessary for me to outline the circumstances surrounding the commission of the offence of which the defendant was found guilty. 20In February 1990 the defendant lived with his parents on a property known as "Pleasant View" at The Rock. That property adjoined a property known as "Timbarra" at which Mrs Glanville lived with her husband and family. The defendant had not met Mrs Glanville prior to her death, although he had met her husband on two or three occasions when discussing a problem of straying sheep. 21On the morning of 27 February 1990 the defendant watched a movie entitled "Nightmare at Shadow Woods", which was described by her Honour as "an unpleasant, violent film in which the major character was a psychopath who roamed the area with a large knife killing a number of people in extremely ghoulish circumstances". The defendant then took a knife and walked across to Mrs Glanville's home, where he spoke with her at the front door about straying sheep. Although he left the premises the defendant did not actually return home, but waited outside Mrs Glanville's property. Five minutes later he removed a fly screen from a bedroom window and climbed into the premises. He encountered Mrs Glanville in a hallway. She ran towards the kitchen in an unsuccessful attempt to reach the telephone. The defendant killed her by repeatedly stabbing her. 22The defendant initially denied any involvement in Mrs Glanville's murder when spoken to by police. However, he later made a number of admissions. The defence raised at trial, and which was ultimately rejected by the jury, was one of diminished responsibility. 23The principal evidence in the defendant's case at trial was given by his father, along with a psychiatrist, Dr Westmore. The evidence of the defendant's father, which was described by her Honour as "lengthy and compelling", recounted the defendant, as a 7 year old, being prone to violent outbursts, often lasting some hours. The defendant's parents sought medical assistance. A psychiatrist found no sign of mental illness and a neurologist found no evidence of organic damage. A CAT scan and an EEG were both reported as normal. 24The defendant's family was then referred to an organisation associated with Westmead Hospital known as Redbank House, where an assessment was made that the defendant's problems were behavioural and did not reflect any underlying psychiatric or organic illness. It was concluded that his outbursts were manipulative in nature. The family received counselling, along with education in techniques for physically restraining the defendant in the case of an outburst. 25Her Honour found that for a period of time after this assessment, the defendant's behaviour improved. However, a subsequent EEG demonstrated epileptiform features. 26Dr Westmore gave evidence that in his opinion the defendant was suffering from an underlying organic condition consisting of an electrical disturbance in the brain. He expressed the view that the abnormal EEG supported that diagnosis and that the disturbance was likely to be triggered if the defendant became emotionally aroused, at which time he would lose all control over his actions but would be subsequently amnesic as to any events which had occurred during the episode. 27Dr Milton, psychiatrist, gave evidence for the Crown at trial. He disputed Dr Westmore's diagnosis, although he did agree that it was not inconsistent with the defendant's history. Dr Milton's opinion was that the defendant had no organic or psychiatric illness and that his problems were caused by feelings of inferiority, combined with fantasies of violence. He expressed the opinion that the defendant resorted to killing Mrs Glanville because it gave him a sense of power and that he enjoyed it because through violence, he was able to overcome feelings of inferiority. 28In circumstances where there was other evidence which supported Dr Milton's assessment her Honour thought that the jury's verdict was unsurprising. That said, her Honour found that the defendant was significantly more disturbed than Dr Milton's assessment tended to indicate. Whilst not so disturbed so as to reduce his culpability from murder to manslaughter pursuant to the provisions of s. 23A of the Crimes Act 1900, her Honour concluded that evidence given at the trial clearly indicated that the defendant was a "very disturbed young man, both before and after he committed this offence". She found that there were special circumstances within the meaning of the relevant legislation as it then stood which justified an adjustment being made in terms of the proportion to the minimum term to the overall sentence. However, as I have outlined below, the defendant repeatedly expressed a desire not to be released on parole, but to serve the entirety of his sentence.

THE RELEVANT LEGISLATION 29The summons seeks orders that the defendant be subject to: (i)a continuing detention order; or alternatively (ii)an extended supervision order. 30In her written submissions, counsel for the plaintiff took me to the various statutory provisions. The necessity to set out the entirety of those provisions has been alleviated by the fact that counsel for the defendant did not take issue with the fact that the defendant fell within those provisions, and did not dispute that it was open to the plaintiff to make the present application. 31In short, although the defendant opposed the making of a continuing detention order, he did not oppose the court appointing two Psychiatrists for the purposes of examining the defendant and furnishing reports to the Court and similarly did not oppose the making of an extended supervision order. Counsel for the defendant submitted that adequate supervision would be provided by the making of such an order, and that such supervision would adequately address the relevant risk. THE EVIDENCE 32Two large volumes of documentary material have been placed before the court in support of the plaintiff's application. Whilst I do not propose to canvass the entirety of that material, the following matters are relevant. 33Firstly, but for two days the defendant has served the entirety of the 24 year sentence imposed by Mathews J. That sentence has been served, in large measure, in protection. 34Secondly, although his non-parole period expired some 9 years ago, the defendant has not sought parole at any time. On the contrary, he has consistently stated that he wished to serve the entirety of the sentence imposed. He has done so notwithstanding reports from the Offenders Review Council as far back as 2011 in which release on parole was recommended on the basis that his custodial reports were good, family support was strong and employment was available, such that it was considered that supervised conditional liberty was both available and appropriate. 35Thirdly, the defendant has undertaken what have been described as "short based therapeutic programs" whilst in custody. These have included programs directed towards relapse prevention, anger management, alcohol and drug awareness, and reintegration into the community. The evidence before me makes specific reference to the fact that the defendant demonstrated a high level of participation and engagement in those programs. Although the defendant has not undertaken the Violent Offenders Treatment Program, this came about because he was fearful that if he did so, he might lose his protected status. He did express a willingness to move to another facility where the course could be undertaken whilst he remained on protection but this request apparently could not be met. It might also be noted that it was ultimately determined that the defendant was unsuitable for the Violent Offenders Treatment Program in any event because his complex personality factors were beyond the scope of the program. In this regard it is of some significance that the defendant expressed a continued willingness to engage in psychological treatment. 36Fourthly, the defendant has participated in periods of day leave, as well as periods of supervised work release. No adverse reports have been received in respect of any of these periods of leave. 37Fifthly, although the defendant had originally expressed a desire to return to his family property, his mother and sister have now moved to the outskirts of Sydney where it is proposed that the defendant would reside if released. Returning to the family property, which as I have noted is remote and located adjacent to that previously occupied by Mrs Glanville, would not have been satisfactory for a variety of reasons, not the least of which would have been the practical difficulties in implementing close supervision. However, those issues have now been overcome. 38Finally, the conditions which would attach to any extended supervision order are necessarily strict. In this regard, a report of Megan Donaldson, Forensic Psychologist, dated 25 February 2014 notes the following (at [100]): "In the event that Mr Phillips is subject to an Extended Supervision Order, it is likely that he would be subject to ongoing intensive supervision and case management by the CSNSW. Under such supervision, Mr Phillips would be encouraged to reside in one location, with little scope for spontaneous travel. His social contacts would be scrutinised, with the aim of increasing pro-social influences. He would be subject to unannounced home visits and breath-analysis/urinalysis. He may be obliged to wear electronic monitoring equipment or to provide a schedule of his daily activities. He may be referred to a community based treatment program; however, I am unaware of any community-based violent offender program currently operating that would be considered sufficiently intensive to meet his treatment needs. Successful management would involve containment of those behaviours associated with risk (such as impulsivity, emotional dysregulation, and cognitive distortions). The goal would be to encourage the development and maintenance of a stable and sustainable lifestyle, so that new habits can be formed that might endure beyond supervision. Such supervision could minimise risk of behaviour that may otherwise result in a violent offending scenario. Conversely, effective supervision may also contribute to lowering risk by encouraging Mr Phillips to develop a way of living that is inconsistent with violent offending, with stable pro-social relationships, satisfying employment and healthy recreation".

THE SUBMISSIONS OF THE PARTIES 39Counsel for the plaintiff advanced, in broad terms, four matters in support of the submission that I should make an interim detention order pending a final hearing at which the Court would, amongst other things, have the benefit of psychiatric evidence. Those four matters were: (i)the defendant's criminal history; (ii)the assessed risk; (iii)the defendant's failure to undertake treatment whilst in custody; and (iv)the uncertain accommodation arrangements which were originally proposed. 40Counsel submitted that if I were not persuaded to make an interim detention order, an interim supervision order imposing the conditions to which I have referred should be made. 41Counsel for the defendant submitted that in circumstances where a rigorous regime of supervisory conditions was proposed, there was nothing exceptional about the risk posed by the defendant which would cause me to conclude that adequate supervision would not be provided by an interim supervision order. He did raise issues about the terms of some of the proposed conditions but it is not necessary for me to deal with those matters. It is sufficient for present purposes to note that in my view, the terms of the proposed conditions are, in the main, appropriate. CONSIDERATION AND CONCLUSION 42One of the obvious considerations in a matter such as the present is that of risk avoidance (see Attorney General v Winters [2007] NSWSC 311 at [7]). However, if I am satisfied that appropriate measures can be put in place to address any risk which might exist, it is open to me to make an extended supervision order (see generally State of New South Wales v Irwin [2013] NSWSC 1773; State of New South Wales v Atkins [2013] NSWSC 1988). 43At the present time, if the making of such an order were otherwise thought to be appropriate, it would be made on an interim basis only. The relevant question in those circumstances is whether, during that interim period, the arrangements which are able to be put in place would adequately address the risk of the defendant re-offending (see State of New South Wales v Irwin (supra) at [11]). In Tillman v The Attorney General for the State of New South Wales [2007] NSWCA 327 Mason P said at [6]: "If the Court perceives itself able to devise a regime of extended supervision that will make it unlikely that the particular offender will relevantly re-offend, then the combined effect of subsections (2) and (3) is that the lesser control is to be chosen. But if re-offending remains likely despite an extended supervision order, then the power to impose the more stringent control of a continuing detention order is engaged." 44On the evidence before me, and having regard to the proposed conditions which, if implemented, would establish a strict regime of supervision, I am satisfied that an extended supervision order is appropriate. I have come to that view for a number of reasons. 45Firstly, although the defendant obviously has a criminal history, it is limited to the offence for which he is currently in custody. He has not committed any further criminal offences and although there is some evidence of disciplinary issues whilst in custody, I am satisfied on the evidence that for the last several years there has been virtually no aspect of his behaviour which has given rise to specific cause for concern. In particular, there have been no recent instances of violent behaviour. Perhaps even more importantly, the periods in which he has been absent on short term release have not met with any adverse reports, be it in relation to his ability to interact with others, or in relation to his behaviour generally. 46Secondly, whilst there has been some failure on the part of the defendant to undertake treatment whilst in custody, that failure has been largely limited to a failure to undertake the Violent Offenders Treatment Program. The reasons for that failure have, in my view, been adequately explained. This is certainly not a case in which the defendant has refused to undertake treatment. On the contrary, he has satisfactorily completed a number of courses and has expressed a willingness to engage in psychological treatment to assist his rehabilitation. 47Thirdly, the plaintiff's justifiable concern at the prospect of the defendant returning to live at his family property has now been alleviated by his mother's decision to move to Sydney. 48Finally, the conditions which will attach to the order that I propose, the nature of which are outlined by Ms Donaldson, will necessarily be strict. I am satisfied that those conditions constitute a regime which supports the implementation of the "lesser control" to which Mason P referred in Tillman (supra).

ORDERS 49For the forgoing reasons, I made the following orders at the conclusion of the hearing before me on 7 March 2014: (1)Pursuant to section 15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): (a)the Court appoints two qualified psychiatrists, namely Jeremy O'Dea and Sampson Roberts, to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 2 April 2014; (b)the defendant is directed to attend those examinations. (2)Pursuant to section 10A of the Act the defendant is subject to an interim supervision order from 9 March 2014 for a period of 28 days. (3)Pursuant to section 11 of the Act, the defendant is to comply with the conditions annexed hereto for the period of the interim supervision order referred to in order 2 above. (4)The proceedings are listed before the Duty Judge on 2 April 2014 to hear the State's application to extend the interim supervision order and conditions referred to in orders 2 and 3 above. (5)The plaintiff is to file and serve any evidence for the final hearing by 23 April 2014. (6)The defendant is to file and serve any evidence for the final hearing by 7 May 2014. (7)The plaintiff is to file and serve written submissions 5 days prior to the final hearing. (8)The defendant is to file and serve written submissions 1 day prior to the final hearing. (9)The parties are granted leave to approach the Listing Manager in the Supreme Court Registry to obtain a date for the final hearing, noting: (a)the parties estimate of 1 - 2 days; and (b)there is some need for urgency/expedition as the matter concerns the liberty of the defendant and must be heard and determined prior to 1 June 2014. (10)Liberty is granted to either party to apply on one day's notice by contacting my Associate.

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: 12 March 2014