State of New South Wales v Prince

Supreme Court of NSW|2017-12-11|Before: Hulme J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2017/255883

Judgment

HIS HONOUR: The State of New South Wales ("the State") filed a summons whereby it sought a high risk violent offender extended supervision order for a period of two years against Mr Ian Prince ("the defendant") under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act").
The Act was amended by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) ("the Amendment Act") effective from 6 December 2017. The amendments apply to the present proceeding: Pt 10 of Sch 1 of the Act. One of the effects of the amendments is that the order sought by the State is now simply for an "extended supervision order" ("ESO").

Construction of some of the terms of s 5B

In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 the Court of Appeal considered the term "high degree of probability" in the context of an application for a continuing detention order for a high risk sex offender. The term appeared in s 17 of the Act but its construction in that context may be applied to the same term in the current s 5B. The Court (Mason P, Giles and Hodgson JJA) said (at [21]): "The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt."
The term "unacceptable risk" was considered in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. It was held that the determination of whether a risk is unacceptable is an evaluative task (at [51] per Beazley P; Gleeson JA agreeing). The evaluation to be made is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection (at [61]). Her Honour was concerned with the language in the former s 5E(2), but it is relevantly identical to that now appearing in s 5B(d). This was said in the context of the primary object of the Act referring to the making of extended supervision and continuing detention orders "so as to ensure the safety and protection of the community". Safety of the community is given further emphasis with the new requirement to have regard to safety of the community as the paramount consideration: current s 9(2).

The proceedings

The defendant is serving a sentence of imprisonment of 5 years 6 months with a non-parole period of 3 years 6 months commencing 20 July 2012 for an offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). This is an offence that falls within the definition of a "serious violence offence" in s 5A of the Act.
The non-parole period of the defendant's sentence expired on 19 January 2016. However, the State Parole Authority has twice refused to release the defendant on parole, so he has remained in custody and will do so until the total term of the sentence expires on 19 January 2018.
These proceedings were commenced with the filing of a summons on 22 August 2017.
On 16 October 2017, Bellew J made an order under s 7(4) of the Act appointing a qualified psychiatrist and a registered psychologist to conduct examinations of the defendant and to furnish reports to the Court: State of New South Wales v Prince [2017] NSWSC 1404. Dr Adam Martin, forensic psychiatrist, and Mr Patrick Sheehan, forensic psychologist, have furnished reports to the Court which will be discussed later.
The defendant contests that there is an unacceptable risk and submits that the court would not be satisfied that the requirement of s 5B is made out. Accordingly, he contends that the State's application should be refused.

The evidence

The State read a number of affidavits and tendered voluminous documentary material concerning the defendant's general background, his criminal and custodial history, various assessments of him by experts and therapeutic programs he has undertaken. The material is also relevant to the proposed conditions of the order sought by the State. There was no evidence in the defendant's case.
The following review of the evidence will be structured by reference to the matters required by s 9(3) to be taken into account.

Criminal history and any pattern of offending behaviour disclosed by it (s 9(3)(h))

One of the experts referred to the defendant's criminal history as "generally … impulsive violence directed to various people including police officers, intimate partners and others, frequently in association with intoxication". Despite its brevity, that is an accurate description of his criminal history. An important point to note is that the index offence of wounding with intent to cause grievous bodily harm is the only offence in the defendant's lengthy history that qualifies as a "serious violence offence".
The defendant's history includes various convictions for offences of break, enter and steal; receiving; take and drive conveyance; administer prescribed restricted substance; supply a restricted substance; offensive behaviour; driving unlicensed, intoxicated or whilst suspended; and various matters involving failure to appear or breaching conditional release orders.
However, of particular significance to the present proceeding is the history of violent and related offences. The details of the offending are set out below, including the facts (where available) in relation to some of the more significant matters. Date Court Offence Outcome 18.9.85 Moree Local Court Assault police (x 2) Committed to an institution in general terms Assault police (x 2) 16.12.86 Mungindi Local Court Assault police (x 2) Fine 29.3.88 Mungindi Local Court Offensive behaviour (fighting) Fine Resist arrest (x 2) 6.12.90 Moree District Court Assault Community service order ("CSO") 200 hours 8.3.93 Moree District Court Breach CSO Recognizance s 558 21.2.91 Mungindi Local Court Resist arrest (x 2) Recognizance s 556A 4.7.91 Boggabilla Local Court Assault Recognizance s 558 20.1.94 Mungindi Local Court Assault occasioning actual bodily harm ("AOABH") Imprisonment 8 months NPP 2 months 28.12.93: the defendant ("D") was with his partner and their three small children at the home of D's mother. For no apparent reason he punched his partner in the back of the head, saying "you know what that's for". He then punched and kicked her. She fled to a bedroom. He grabbed her by the hair and dragged her back to the lounge room where he punched her again. She went outside and he commenced to throw objects at her and demanded that she come back into the house. She came back and took hold of the youngest child and decamped. 7.10.94 Moree Local Court A. Breach apprehended violence order ("AVO") A. Imprisonment 3 months B. Assault Police (x 2) B. Imprisonment 13 months NPP 10 months 23.11.95 Mungindi Local Court Assault Recognizance s 558 Malicious damage to property 7.11.95: D got into an argument with his sister's husband. He picked up a length of iron rod and threw it in the victim's direction but it missed and caused a large hole in a wall. The victim ran away and D caught him in the rear hard. He picked up the victim and threw him to the ground twice, saying "put me into the coppers, I'll put you in hospital crippled". 9.2.96 Moree Local Court AOABH CSO 100 hours (Nb. On 20.2.97 - Breach CSO) Imprisonment 3 months 19.1.96: D punched his partner to the face and mouth while they were drinking at a hotel. She ran away and stayed the night at a friend's house. At 6am the next day D burst into the house, grabbed her by the arm and brought her home where he pushed her to the ground, causing her to cut her arm on glass. There was bleeding and a laceration to her arm, a laceration to her lower lip, bruising and swelling on her cheek and face and other parts of the body. 17.6.96 Moree Local Court Assault (x 2) Imprisonment 1 month 26.5.96: D punched his partner to the face and kicked her to the right and left shin causing her to fall to the floor. He made verbal threats including to "fucken kill you". 17.6.99 Mungindi Local Court A. Hinder Police A. Imprisonment until the rising of the court B. Assault police (x 2) B. (Re-sentenced on appeal) 16.2.00 Newcastle District Court (appeal) Assault police (x 2) Recognizance s 558 A..Assault A. Bond s 9 B. Assault police (x 2) B. Bond s 9 12.10.01 Downing Centre Local Court C. Assault C. Bond s 9 D. Assault D. Imprisonment 1 month E. Maliciously inflict grievous bodily harm ("GBH") E. Imprisonment 11 wks The facts for the maliciously inflict GBH offence are unavailable. The other charges relate to several different events in a domestic context. 1.11.00: D had been out drinking with a female and his cousin in Petersham. At 2.30am they were walking home and she asked him to hurry up. He slapped her across the right side of the face with an open hand and then grabbed her by the arm and walked her down the street. He then chased and grabbed her from behind with both arms. She fell to the road and hit the side of her face. 22.8.00: D was staying at his aunt's house with the victim. He punched her in the face with a closed fist causing her nose to bleed. She ran into the lounge room. He grabbed her around the shoulders and dragged her along the ground towards the kitchen. He walked into the kitchen and obtained a knife. A. Destroy/damage property A. Imprisonment 6 months 11.9.02 Central Local Court B. AOABH B. Imprisonment 12 months NPP 6 months C. Drive vehicle recklessly/furiously or speed/manner dangerous C. Imprisonment 6 months About 3.5.02: D assaulted his partner who was 4 months pregnant. After an argument in bed, he slapped her across the head, grabbed her by the hips and pushed her back onto the bed, grabbed her by the throat and attempted to choke her. He punched her in the right eye and then went outside in an attempt to calm down. She ran away and he gave chase in his car, driving on the wrong side of the road, knocking over a tree and crashing into a fence. She sustained bruising to the right eye and a small abrasion to the left eye. 11.4.03 Moree Local Court A. Assault police A. Imprisonment 2 months B. Stalk/intimidate with intent to cause fear physical/mental harm B. Imprisonment 2 months 2.12.03 Mungindi Local Court Contravene apprehended domestic violence order ("ADVO") Fine A. Assault (x 3) A. Imprisonment 15 months NPP 6 months B. Assault (x 2) B. Imprisonment 12 months NPP 6 months 11.3.04 Tamworth District Court (appeal) C. Contravene ADVO (x 2) C. Imprisonment 6 months D. Intimidate police (x 2) D. Imprisonment 6 months (The latter three were sentences imposed in the Local Court which were confirmed.) 17.12.03: D was driving to Boggabilla with his partner and two daughters in the car. He stopped the car just outside Boggabilla and tried to get something from the rear seat of the car. He became angry when he thought his daughter was trying to stop him. He verbally abused his partner who then asked him to stop the car. He refused but later stopped the car. She started walking towards Boggabilla. He followed her, grabbed her by the arm and slapped her face. She tried to run away but fell over on the road. He put her back into the car. She tried to get out of the car but could not. He said, "You're an evil woman, doing this to me. We're not going to do this, we're not going to Boggabilla". He turned the car around and drove away from Boggabilla but the car stopped. She escaped while he was trying to fix the car. He ran after her and slapped her in the face again. She returned to the car with him but as he continued trying to fix the car she escaped again. He caught up to her, grabbed hold of her arm, causing her pain and pulled her back into the car. 24.12.03: D was yelling at one of his daughters and then turned his anger towards his partner. He threw a bottle of water at her but she moved out of the way and it caused a hole in a wall. He then slapped her. She escaped out of a window and hid. She then ran to the police station. When police attended later that day D said "I know where youse live, when I get out I am going to come and get youse and kill you, you fucken white cunts". A. AOABH A. Imprisonment 6 months B. Contravene ADVO B. Imprisonment 1 month 3.2.06 Sydney District Court (appeal) C. Assault police C. Bond s 9 D. Assault police (x 3) D. Bond s 9 E. Intimidate police E. Bond s 9 9.3.05: (While on parole) D was sitting in the back seat of a car with his partner. He lashed out for no apparent reason and hit her in the face. That night he continually threatened to hit her with a stick and assault her again if she left. He held her down and hit her in the head four times. Police arrived and had to use capsicum spray to prevent him from causing harm to himself. He then spat at police and made verbal threats to them including, "I'm coming after you Dowse, you cunt, I'm gunna kill you. I'm gunna cut you up at your house in front of your kids. I'm gunna wait til I get out of gaol and I'm gunna cut you into pieces. I should have got you when I got out last time. I'm gunna get you the day I get out". 14.5.07 Moree Local Court A. Contravene ADVO (x 2) A. Imprisonment 9 months NPP 3 months B. Assault B. Imprisonment 3 months 26.12.06: D followed his partner to a bedroom and verbally abused her in relation to her choice of friends. She became fearful and approached a neighbour's house with her children. He followed and grabbed the phone from her, causing cuts to fingers on both hands. A. AOABH A. Imprisonment 6 months 11.8.08 Moree Local Court B. Contravene AVO B. Imprisonment 4 months C. Contravene AVO C. Imprisonment 6 months 15.1.08: D accused his partner of being a "slut" and threw a brush at her which hit her beneath the left eye causing her nose to bleed. She was later seen with bruising and swelling beneath her eye. 20.3.08: D breached an AVO imposed on 17.3.08. He was drinking with his partner at a motel and he verbally abused her. The manager called police. 21.8.09 Parramatta District Court (appeal) Assault officer in execution of duty (x 2) Imprisonment 18 months NPP 2 months 23 days 21.3.08 at Moree: D was in custody, having been bail refused the previous day (re the contravene ADVO above). He refused to comply with directions when asked to get into a truck that was to take him to Tamworth Correctional Centre and had to be carried. In the process, he spat at two Corrective Services officers. 30.9.09 Tamworth Local Court A. Affray A. Imprisonment 9 months NPP 3 months B. Assault B. Imprisonment 3 months 1.7.09: D arrived with his mother at his brother Damien's home. He was calling his mother, "mother fucker" and "an old cunt". She asked him to leave. He said he was going to find their other brother, Leon, to "kick his cunt in". He then approached Leon and began throwing punches. He pulled a branch from a nearby tree and began to hit Leon with it. Damien tried to intervene and he hit Damien with the branch and punched him. Their mother called police. When police arrived they saw two males wrestling on the ground. D picked up a tree branch and swung it towards Damien. He pointed at Damien and said, "I'll kill you, lock him and me up in a cell together". 19.1.10 Moree Local Court A. Destroy/damage property A. Imprisonment 3 months B. Contravene ADVO B. Imprisonment 3 months 16.1.10: D's partner asked him to leave their home. He punched a hole in the wall. An AVO was in force prohibiting him from damaging her property or approaching her within 12 hours of drinking alcohol or taking drugs. 17.11.10 Tamworth Local Court Resist police Fine 8.3.12 Penrith Local Court A. Custody knife in public place A. Fine B. Contravene ADVO B. Fine 23.12.11: D was in custody at Penrith police station, having been arrested for assault and breach of bail conditions. He was found to have a multi-tool containing a knife. An AVO was imposed on 18.1.12 to prohibit D from approaching or contacting his partner and from going within 100 m of an address in Cranebrook. The following day he visited his partner at that address. (The police fact sheet has a handwritten addition to the effect that the victim picked up D from his place and took him to the Cranebrook address so that they could attend Penrith Local Court the next day to vary the AVO.) Later that night he and the victim engaged in a verbal argument. (A handwritten addition adds that the argument was about D not having a drink with his partner.) The argument continued for several hours until D contacted police. 18.11.13 Court of Criminal Appeal A. Affray A. Imprisonment 18 months from 20.1.12 B. Wound with intent to cause GBH B. Imprisonment 5 yrs 6 months NPP 3 yrs 6 months from 20.7.12 20.6.10: D was in a park where he and a Mr Peterson were yelling at each other. Mr Peterson fled. He was followed by a number of people including D. They were armed with various weapons, including a machete-like weapon and sticks, bottles and bricks. An affray ensued in which D was involved. A Mr Waters was struck on the head and wounded. D was criminally responsible as being among the men who were armed and who acted together with the intention of inflicting grievous bodily harm upon the victim. The Court of Criminal Appeal (by majority) held that the Crown had not established beyond reasonable doubt that it was D who inflicted the wound.

Views of sentencing courts at the time sentences of imprisonment were imposed (s 9(3)(h1))

In sentencing the defendant for the offences of affray and wounding with intent to cause grievous bodily harm on 4 May 2012, his Honour Judge King SC noted that there was no remorse. He also did not consider that there was any significant hope of rehabilitation. He said: "Hopefully during [the] time that the offender is in custody he will become aware of the significant changes that he needs to make to his attitudes and lifestyle in order to cease being one of those who because of his conduct rotates on a regular basis through the prison system". (ROS 15-16)
The defendant appealed in respect of both conviction and sentence and the judgment of the Court of Criminal Appeal was handed down on 18 November 2013: Prince v R [2013] NSWCCA 274. The grounds of appeal against conviction included that the verdict on the charge of wounding with intent to cause grievous bodily harm was unreasonable and incapable of being supported by the evidence. It was held that the jury should have had a reasonable doubt about the defendant's guilt on the primary basis upon which the Crown put its case, namely that it was he who inflicted the wound to the victim. However, the majority held that there was no reasonable doubt that the defendant was involved in the joint criminal enterprise on which the Crown's alternative case rested and accordingly the ground of appeal was dismissed. (Schmidt J at [102]-[106], Gleeson JA agreeing at [1]; McCallum J dissenting at [2]).
In relation to the appeal against sentence, Schmidt J said that the sentencing judge's finding of no remorse and little prospect of rehabilitation was properly available on the evidence ([111]). She said that it was apparent that the defendant required extended supervision once released ([112]).
Schmidt J said the following (at [127]-[128]; [141]) about the defendant's attitude to the offence: "The appellant also reported a history of animosity between the families in the area in which the offences occurred [Tamworth], but denied any responsibility for the offences. He claimed that his own relatives were responsible and that they had not owned up to their involvement. This had caused a rift in the family unit. He could not accept punishment for an act which he did not commit. … He revealed fixed beliefs that his co-accused should be punished and that he would seek revenge, if given a long period of incarceration. … The appellant acknowledged his presence at the time of these offences, but denied his involvement in them. He expressed a strong feeling of having been 'hard done by and wanting revenge' against his co-offender and a strong sense of injustice."
The following from the judgment is also noteworthy: "[150] …The evidence of the appellant's awful childhood experiences of violence and drug and alcohol abuse, cast significant light on his ongoing problems with anger management, violence and criminal conduct throughout his adult life, so as to reduce his moral culpability for his inability to control himself. To be weighed against this is not only his serious lack of control, which has resulted in his extensive criminal record, but also his lack of remorse and expressed desire for revenge and retribution, particularly on his co-accused and family members. This aspect of the evidence points strongly to an increased need to protect the community from the appellant. … [152] These observations are pertinent to the sentencing exercise which must be undertaken in this case, given the evidence that the offending in which the appellant and his co-offenders were involved on this occasion was premeditated. All of these matters must be weighed in the balance when the instinctive synthesis discussed in R v Markarian is undertaken. [153] Given the evidence I have discussed as to the nature of this affray and of the appellant's involvement in the attack on Mr Waters, the evidence of the appellant's attitude to the others involved with him in that offending, his stated desire for revenge upon them and his general attitude to violence, in my view in this case both general and specific deterrence must feature in the sentence imposed, even though it must be accepted that the appellant's moral culpability for his inability to exercise self-control is reduced by the ongoing effects of his deprived upbringing and social deprivation, which must also be taken into account. [154] In the result, I have concluded that after a finding special circumstances to permit the type of ongoing supervision which the appellant will clearly require once released into the community, the appellant should be sentenced to a total term of imprisonment of 6 years, with a non-parole period of 4 years and a balance of term of 2 years. The sentence must have regard to the 19 days that he spent bail refused in relation to these offences."

The defendant's general background

The defendant was born to Aboriginal parents and was raised in and around the township of Mungindi. He is the eldest of eleven children. Two of his siblings died during his own childhood and one died later in a motor vehicle accident.
The family lived on an Aboriginal reserve for the first 13 years of the defendant's life where conditions were described as very basic; they lived in "tin shacks" with few amenities. He shared a bed with his siblings. There were problems with alcohol in the local community and directly affected his own father. Drunken brawls were a regular feature of life. As a young child the violence was frightening, but according to Mr Sheehan the defendant became habituated and accepted this as part of normal life.
The defendant's father worked as a farmhand and a shearer. The defendant said there was structure and discipline in family life and he was never neglected. He was, however, exposed to regular domestic violence in the form of his father physically abusing his mother.
At the age of 13 the defendant's family relocated into the township of Mungindi. His social conditions apparently worsened with more regular alcohol abuse, violence in the community and pervasive cannabis use. He witnessed various episodes of extreme violence. He also reported having been regularly beaten when he misbehaved. He denied experiencing any sexual abuse.
When the defendant was aged 15 his father died in a motor vehicle accident. He was present in the vehicle at the time and is described as having worn a heavy burden of guilt because his father was driving him to a football game. He said that he was deeply affected and regarded this event as a critical turning point toward a negative life trajectory. It coincided with the onset of heavy alcohol consumption. At around this time he moved to live with an aunty in Sydney and thereafter moved backwards and forwards between his mother's home and the home of extended family members. He has however maintained links with his mother and family throughout his life. His mother is aged in her seventies and lives in Tamworth. He speaks with her by telephone a few times per week.
In terms of education, he said that his literacy developed normally but he struggled with other subjects. He fought with peers and incurred several suspensions. He attended Mungindi High School in Year 7 but was expelled in Year 8 for fighting. He reattempted Year 8 at Moree High School but was expelled once again for fighting and thereafter did not return to complete his education.
In terms of employment, he described a history of taking seasonal employment as a cotton chipper throughout most of his life. In off seasons he would travel to Sydney and take casual labouring work. He has said that his alcohol use, unreliability and arguing with employers have been the main barriers to maintaining stable employment.
The defendant has had several intimate partner relationships in his life. He had four children to his first partner and six to his most recent partner, the latter children now being aged six to twelve years. His most recent partner died in 2014 whilst he was serving his current sentence and his children are now cared for by their maternal uncle. He maintains contact with them by telephone and is said to be highly motivated to work towards gaining custody of these children in the future. He said that this was his primary motivation for him to "do everything right and make no more mistakes". He said he needed to prove to Community Services authorities that he was fit to look after the children.
The defendant's eldest daughter, from his first long-term relationship, died whilst he was in custody in May 2017. He was reluctant to discuss the details but said the loss was still very fresh in his mind and he was grieving.

Assessments by psychiatrists and psychologists (s 9(3)(c)-(d))

Ms Rima Nasr

A report by Ms Rima Nasr, forensic psychologist, dated 13 April 2012 was tendered in the sentence proceedings before King SC DCJ. Ms Nasr summarised the position with the defendant as follows: "Formulation: Mr Prince, a 44 year-old Aboriginal man, has come to the attention of the Courts for one charge of Wound with Intent and one charge of Affray. He has a history of antisocial behaviour, which also includes previous acts of violence. He expressed limited insight or accountability for his offences and the problematic nature of his lifestyle and poor decisions. Rather, Mr Prince attempted to externalise responsibility and expressed a strong sense of feeling victimised and wrongly accused. He presents as a man with a dysfunctional early life, coloured by exposure to substance abuse, mental illness, and disturbed attachments. He described being an 'uncontrollable' child, who displayed serious behaviour problems, including repeated aggression towards siblings and peers, which made it difficult for him both at school and at home. As such, he spent much of his adolescence and adulthood in and out of institutions, living an increasingly unstable and itinerant lifestyle. He descended into, and maintained, an alcohol and cannabis dependency. He reveals little stability with regard to employment and intimate relationships; both of which were regularly disrupted by periods of incarceration. At present Mr Prince, has limited positive personal supports in the community and he exhibits poor insight and commitment with regard to his rehabilitative needs. Psychologically, Mr Prince presents as a complex individual with disturbed attachments and exposure to anti-social peers and family members, violence and substance abuse during his formative years which has likely contributed to serious fragmentation in his personality function. These factors have impacted on all aspects of his functioning, such that his ability to maintain stability, employment or relationships is limited, as are his coping skills. Such concerns can be expected to have had a profound impact on his behaviour, including contributing to illicit drug dependence, impulse control problems, aggression and ultimately crime."
Ms Nasr opined that the defendant's rehabilitation and management needs were extensive and he would require long-term treatment and management that is both intensive and comprehensive. However she said that his motivation to commit to treatment seemed poor. She recommended that he engage in long-term rehabilitation in relation to substance dependence in a structured environment given his lack of success in such programs in the community. She said that he would need to progress through a structured pre-release program in prison whereby he would be allowed to experience being in the community in a staged and supported way. She recommended that offence-focused intervention by way of the Violent Offender Treatment Program ("VOTP") would best meet his needs. Ms Nasr also suggested the long history of incarceration to date had done little in terms of prevention and she recommended that there be a long period of community based supervision on parole in order for the defendant to develop the skills he would need to survive in the community. She said: "Further, as part of this process, Community Offender Services ("COS") would be well placed to coordinate his supervision and offer him support in his transition from a holistic prospective that addresses a wide range of Mr Prince's needs from employment to housing to budgeting."
Ms Nasr concluded her report by stating: "In sum, Mr Prince appears to be a vulnerable man, who has been institutionalised, with limited experience of adaptive functioning within the community. As such, he will require a high level of supervision, coordinated support and comprehensive intervention if he is to be able to make a meaningful transition to the community and lead an offence-free life."

Dr John McMahon

A report by Dr John McMahon, clinical psychologist, dated 20 April 2013 was prepared in relation to a proposed victim's compensation claim being made by the defendant in relation to him having been assaulted in January 2012. The report includes suggested diagnoses of Chronic Adjustment Disorder with Anxiety (Axis I) and anti-social and paranoid traits (Axis II). Under the heading "treatment and prognosis" Dr McMahon said: "In my opinion Mr Prince's prognosis is poor, he will likely remain moderately symptomatic, with angry acting out, and consequently repeat incarcerations."

Dr Richard Parker

Dr Richard Parker is the Senior Specialist Psychologist with the Serious Offender's Assessment Unit of Corrective Services NSW. He interviewed the defendant on 1 March 2017 and provided a Risk Assessment Report dated 14 March 2017.
The defendant gave a history of using cannabis since the age of 13. Whilst there had been some short periods of abstinence, he had used cannabis for all of his life since then. He also reported experimenting with alcohol from around the same age but his use escalated after the death of his father when he was aged 15. He gave a history of alcohol consumption through his adult years to the effect that it varied depending upon such things as whether he was employed or not. He denied drinking daily when unemployed but said he would binge drink to the point of intoxication about once every two or three weeks. He also said that he had experienced numerous blackouts as a result of his drinking. The defendant has attended residential rehabilitation programs but has not been able to manage significant periods of sobriety outside of custody. He attributed his offending to alcohol, saying "I've never been in a police cell while sober".
Dr Parker carried out a risk assessment and his report includes a discussion of the utility of various tools available in this respect. With the use of the Level of Service Inventory - Revised ("LSI-R") and the Violence Risk Appraisal Guide - Revised ("VRAG-R"), the defendant was assessed as being at high risk of further violent offending.
Dr Parker identified three dynamic risk factors (criminogenic needs) believed to have a causal role in the defendant's offending. They were: criminal peers, substance abuse and criminal thinking.
In discussing the defendant's risk of further offending Dr Parker noted that, while the worst of his past violence had occurred in conjunction with substance abuse, his behaviour in custody suggested that the underlying motivations for this violence are independent of substance abuse. Substance abuse may simply reduce the defendant's inhibitions against violence, increasing the frequency and/or intensity of it.
It was noted that, at 49 years of age, the defendant is well past the peak age of violent offending according to some literature. However, other literature indicates that this is not necessarily a significant predictor. It was noted that the actuarial instruments had placed the defendant at high risk of violent recidivism and general recidivism notwithstanding the defendant's age.
Dr Parker said that it was likely that situational factors would be relevant to whether a particular situation would lead to violence or serious violence. He referred to the index offence including the use by a member of the defendant's group of a machete that happened to be available. There was also a previous incident involving the defendant's brother where the defendant had used a tree branch in the attack. Dr Parker said, "If a more deadly weapon had been available, that offence may also have reached the criteria for serious violence".
In concluding his report, Dr Parker said that even if the defendant completed the VOTP it was likely that he will need an extended period of strict monitoring to implement and consolidate the skills and attitudes he learns in that program. In the event that he became the subject of an ESO, it was likely he would benefit from intensive supervision and case management by Corrective Services NSW ("CSNSW"). He said that the higher level of supervision involved in an ESO, compared to standard supervision (parole), would assist in helping the defendant to develop a pro-social lifestyle in the community.
In the event that the defendant was released at the expiration of his sentence on 19 January 2018 without an ESO having been made, Dr Parker said: "[I]t is considered likely that he would gravitate to old acquaintances and resume his previous lifestyle. Whether the potential risk of Mr Prince being left unsupervised in the community would be considered 'unacceptable' is a matter to be determined by the court."
Dr Parker was provided with a body of additional documentary material including the judgment of the Court of Criminal Appeal and various statements of facts in relation to past offending. He provided a supplementary report dated 17 November 2017. He acknowledged that he was now aware that the Court of Criminal Appeal had held that the Crown could not prove that the defendant was the offender who wielded the weapon in relation to the index offence. He noted, however, that it was held that the defendant was a member of the group that intended to inflict serious injury to the victim. Having referred to this and all of the other documents provided, Dr Parker said that nothing caused him to alter his earlier assessment that the defendant is a high risk of further violent offending. He confirmed this in his oral evidence (T4).
Dr Parker agreed in cross-examination that whether an assault, for example, becomes a serious violence offence can be influenced by environmental variables. He also agreed that it was not possible to account for such variables in prediction. (T6)

Report as to the extent to which the defendant can be managed in the community (s 9(3)(d1))

A Risk Management Report was provided by Mr Mahmoud Elsayed, Community Corrections Officer, dated 20 June 2017. Mr Elsayed noted the three risk factors identified in the Risk Assessment Report of Dr Parker (criminal peers, substance abuse and criminal thinking). His report addresses how these matters might be managed within the terms of an ESO. These matters are relevant to the conditions of an order if one is to be made and will be discussed later in that context.

Treatment and rehabilitation programs (s 9(3)(e))

A proposal for the defendant to enrol in the VOTP was initiated in January 2014. Over the next two years there were a series of offers of placement which were not accepted by the defendant for various reasons. They usually concerned his classification and the location of the correctional centre, him being concerned that he would be unable to continue receiving visits from his children. Ultimately the defendant signed a form giving his consent to participate in the VOTP on 16 March 2016. He completed 22 sessions before being suspended due to fighting with another inmate on 20 July 2016. CCTV footage reportedly showed that he initiated the fight by striking the other inmate.
After his suspension was lifted he attended a further 19 sessions and his participation during this period was described as satisfactory. However on 29 November 2016 he assaulted another inmate, with the CCTV footage showing that he initiated the fight by striking the inmate three times in the face with a closed fist during a card game. After initially denying it, he later said that he did not like how the other inmate was speaking to him and he felt teased. He minimised personal responsibility and presented as "entitled". In the course of being spoken to about this he also disclosed that he had been violent towards another inmate during the suspension in July 2016, saying he had "throttled him by grabbing him around the neck and choking him".
The defendant re-entered the VOTP on 11 April 2017. He was again suspended after receiving an institutional conduct charge of disobeying a direction. In the course of doing so he reportedly made threats towards sex offenders in his wing. He re-entered the VOTP on 27 July 2017 and remains in that program.
In a report by his treating psychologist, Ms Sarah Brann, dated 10 November 2017 the following appears as to his progress in the VOTP: "Overall, Mr Prince appears to have made some, though limited, progress in specific treatment areas … while he has engaged with aspects of the program, his participation and engagement has limited the extent to which he has been able to make therapeutic gain. He appears to be making little effort to make changes to negative behaviours beside feedback. Mr Prince has participated in approximately 70 hours of treatment … Mr Prince lacks insight into or accountability for the lack of his progression in treatment. He has demonstrated poor ability and motivation to action feedback about using identified strategies to assist him complete written work in a more timely fashion. Mr Prince also demonstrates limited accountability for the impact of his numerous suspensions on his progression through the program. The VOTP typically takes 12 months to complete. At the time of commencing his engagement in the VOTP in April 2016 he had sufficient time to complete the program prior to his sentence expiration date … Mr Prince has been assessed as being High risk of future violent offending. He is still considered to be in the early stages of treatment at the VOTP and has not yet sufficiently addressed his individual risk factors for violence. … Mr Prince has stated that he would be motivated to work with VOTP Outreach and Maintenance staff in the community to address outstanding dynamic risk factors (should he continue to be under the supervision of CSNSW past his sentence expiration date), as he would like to be able to demonstrate to FACS that he completed the VOTP to assist him pursue greater access to his children." (Original emphasis)

Previous compliance with parole (s 9(3)(f))

As noted previously, the defendant has not been granted parole in relation to his present sentence. He was first eligible for release on parole on 19 January 2016. In a pre-release report by a Community Corrections officer dated 27 October 2015 it was recommended that parole be refused on the following basis: "Until such time as Mr Prince participates in a therapeutic program to address his outstanding criminogenic factor of violence, improves his custodial behaviour and gains some insight into the ramifications of his actions, both past and his current threats of harm to others, release to the community is not recommended."
The State Parole Authority accepted that recommendation at a meeting on 20 November 2015. The notification of the refusal of parole provided the following reason: "Need to complete a program to address offending behaviour [violence (VOTP) and alcohol and other drugs] and need for structured post-release plans and/or accommodation to be finalised."
The defendant requested a review of that determination but it was confirmed.
It is notable that the defendant signed the consent to participate in the VOTP a few months later, on 16 March 2016.
The defendant was next eligible for release on parole on 19 January 2017. In a pre-release report dated 8 November 2016 a senior Community Corrections Officer said, "Mr Prince does not wish to be considered for release to parole on this occasion. He stated that he would seek release upon completion of the Violent Offender Therapeutic Program (VOTP)." It was noted that the defendant had re-commenced the VOTP on 10 October 2016 but it was "too early to comment on any major gains". The report concluded: "Completion of the VOTP is Community Corrections preferred program pathway for the inmate given his assessed risk and that 'based on Mr Prince's history it is evident that he has a number of criminogenic needs which have not yet been adequately addressed by treatment'."
The defendant has been released on parole on a number of occasions in the past. His custodial history shows releases on parole in March 1994, July 1995, November 2002, May 2003, June 2004, June 2007 and September 2009. That history also shows that the Parole Authority revoked parole on two occasions, February 2003 and February 2010. No detail as to the basis of the revocations is apparent from that document although, given the regularity of offending, it is likely to have been caused by the commission of further offences whilst on parole.

Any other information as to the likelihood the defendant will commit a further serious offence (s 9(3)(i))

It is consistent with the defendant's history of persistently offending whilst in the community that he also has a lengthy history of breaching internal disciplinary rules whilst in custody. The record includes institutional offences of fighting, assaults and intimidation from 1995 through to 30 November 2016.

Report of Mr Patrick Sheehan

Mr Sheehan's report is dated 3 November 2017. In addition to the documentary material with which he was briefed he had the benefit of an interview with the defendant on 26 October 2017 which lasted for about three hours. The defendant participated appropriately in that interview. Mr Sheehan's report is lengthy and it includes reference to a number of matters which have been mentioned elsewhere and will not be repeated here.
In relation to the defendant's relationships and associates, Mr Sheehan wrote in part: "Mr Prince described problems with his social milieu from very early in life, being immersed in an environment where the subjective definition of normal was alien to the expectation of the broader community. Whilst he was able to nominate a few exceptions, his associates, friends and extended family followed a pattern of using substances, becoming embroiled in violent conflict and being arrested. These early experiences have been damaging in informing Mr Prince's expectations of what his adult life should look like. He has been able to maintain friendships over the long term, but described his "best mate" as a negative influence. I note that his current offence was also committed in a group environment. In terms of future risk management,, there remains an uncomfortable tension between Mr Prince's important ties with his community and the contextual cues for violence in that environment. There are no simple solutions to resolve that tension, but encouraging Mr Prince's engagement with positive and responsible role models in his community would go a long way towards improving his prospects."
In discussing the defendant's past performance whilst on parole and attitude to supervision, Mr Sheehan said that the defendant "acknowledged a repeated history of parole failures but sought to view these failures as being largely an artefact of parole staff having an agenda to breach him as opposed to work with him".
In relation to his post-supervision plans, the defendant told Mr Sheehan that he planned to move to Mungindi and take possession of a large home that he believes his mother will sign over to him. He envisages undertaking some repairs to the home and he also wants to gain custody of his young children. Other plans include obtaining his driver licence and obtaining some occupational certificates. Mr Sheehan commented: "His plans are prosocial and achievable, but are threatened by his entrenched habit of returning to impulsive antisocial behaviour in the community. There is a large gulf between Mr Prince's enduring pattern of impulsive living and the careful, patient and strategic approach required for him to achieve his goals. At this stage his plans contained no details about how he intends to overcome failing into the same habits of the past. It may be that this element of his post release plans will be more developed when he completes the relapse prevention stage of his current treatment program."
Mr Sheehan discussed the defendant's history of alcohol abuse as well as substance use. The defendant repeated what he had said to others, namely that his past episodes of aggression were alcohol related. Mr Sheehan was of the view that the defendant "will require some form of ongoing AOD [alcohol and other drugs] counselling support in the community, perhaps in the form of fortnightly individual counselling sessions".
As to substance abuse, Mr Sheehan considered that the history indicated the defendant would meet the criteria for substance use disorder.
In terms of other mental/personality issues Mr Sheehan considered that the defendant would meet the criteria for Anti-Social Personality Disorder which he said is "defined as a pervasive pattern of disregard for and violation of the rights of others, occurring since the age of 15 years".
He added: "The disorder generally runs a chronic course, but outward acts of anti-sociality tend to remit as the individual moves into middle age. Mr Prince's age of 49-years may be a relevant prognostic consideration. It is too early to emphasis[e] the extent of any protective role played by Mr Prince's age, and his actual behaviour in the community will be a more reliable indicator."
Mr Sheehan considered the defendant's involvement in the VOTP and said: "In my view, after assessing Mr Prince, I would regard him to be at the contemplative stage of the change process, with an emerging understanding of the patterns of thought and behaviour that underlie his violent offending history, but much still to learn and not yet able to apply these insights reliably to everyday situations. For Mr Prince to succeed he will need to challenge fundamental beliefs that he has held throughout his life and have been instrumental in forming his identity. It is an onerous and disorienting task before he will be able to define himself through positive attributes that will assist his adjustment, nor hinder it."
Mr Sheehan used the Violent Risk Scale ("VRS") as an actuarial tool to assess risk. Mr Sheehan appropriately drew attention to the utility and limitations of various assessment tools such as this. In the overall result of the VRS it was estimated that the defendant's risk for violence was within the High range, relative to the sample population used in the formulation of that tool.
Mr Sheehan said that the re-offending considered in the VRS was not necessarily required to meet the criteria of "serious violence offence" as defined in the Act. However, he anticipated that recidivism rates specific to a serious violence offence would be lower than that identified for general violent recidivism.
Mr Sheehan proceeded to discuss the various dynamic risk factors identified in the VRS as they relate specifically to the defendant. Three matters are of note. First, Mr Sheehan noted that the index offence did involve the use of a weapon and that there were previous violent offences involving the use of other objects that were available at the time. He said: "Ready access to weapons or objects that could be used as weapons in the community would escalate his risk of a serious violence offence".
Secondly, in relation to the defendant's insight into violent behaviours, Mr Sheehan observed that the defendant "over emphasises the role of alcohol in his violence offending, failing to appreciate that intoxication has disinhibited a pre-existing belief system".
Thirdly, Mr Sheehan observed that the defendant had a poor history of compliance with supervision. He noted: "He attributes community corrections with hostile intent, which allows him to subvert or circumvent directions of supervision that are designed to reduce his likelihood of re-offence. Until he arrives at a view where he can appreciate some shared goals with community supervisors, he is unlikely to benefit from supervision in a way that will promote his good adjustment in the community."
Finally in relation to the level of risk, Mr Sheehan said: "In general, I would regard Mr Prince to be at the contemplative stage of the change process. That is, he has some awareness that he has a problem with violence and that there is a need and benefit in changing, but is at only the early stages of fully appreciating where he needs to intervene and then translating these insights into enduring change."
Mr Sheehan then discussed "risk scenarios and formulation". In the course of this he said: "The type of violence that Mr Prince is vulnerable to varies from situation to situation, mostly consisting of punching, kicking and wresting, but also to using objects that happen to be immediately available at the time that conflict emerges. This seemingly random use of weapons is in my experience common with this type of impulsive, emotion-based violence."
Under the heading "overall risk", Mr Sheehan expressed the following conclusion: "In my view the overall totality of evidence suggests that Mr Prince would be considered to be within the high risk category of violent offending relative to other adult male offenders. It is difficult to predict to what extent that any violence would approach the threshold of a "serious violent offence" as defined in the Crimes (High Risk Offenders) Act 2006. In these cases, the extent of injury in an assault can be influenced by environmental variables that cannot be accounted for in prediction. I note that most of Mr Prince's violence convictions are not serious violence offences. However, the use of weapons (such as in the current offence) would seem to add to the likelihood of a serious violence offence should Mr Prince follow his prior pathways to violence. He may continue to present a high risk until his risk factors remit through intervention or over time. His age of 49 years might suggest that some reduction in risk may occur over the following decade and then further decrease over time as the moderating effects of maturation take place."
In cross-examination Mr Sheehan was taken to the reference in this passage to the "use of weapons (such as in the current offence)". He had not picked up at the time of writing his report that the Court of Criminal Appeal had found that the jury should have had a doubt about whether the defendant was the offender who was armed with the machete.
In the course of expressing his conclusions at the end of his report, Mr Sheehan said: "Whether or not Mr Prince successfully completes the VOTP by his sentence expiry, it is in my view unrealistic that he will be capable of immediately being able to independently making the type of pervasive changes to his thinking and behaviour in the community. Such a process takes time and guidance, even with a motivated person. Without the influence, support and containment of supervision, there is in my view a high risk of relapse into a lifestyle associated with his previous acts of violence. Mr Prince remains vulnerable to deterioration in the social milieu where he is most comfortable. Whether any relapses in violent behaviour would be a serious violence offence is uncertain (noting that most of his prior violence convictions are not serious violence offences), but the recklessness of his index offence violence and his use of a potentially deadly weapons does increase the risk of serious injury … My expert view is that if administered effectively, an ESO could be impactful in reducing risk of a serious violence offence by interrupting the preceding factors (such as substance use, unstable lifestyle, association with destabilising social influences, and not taking prescribed medication) at an earlier stage."
Mr Sheehan made useful comments in relation to the proposed conditions of an ESO and they will be discussed later. As to the term of an order he said: "The chronicity of the risk-related issues would point towards suitability for an order towards the upper end of the available five-year range. There may be some benefit for imposing an order of less that the maximum if it helps Mr Prince to feel that his efforts in treatment and willingness to accept supervision is recognised. However, any order of less that three years would be unrealistic in terms of meeting the rehabilitation targets for community life."

Report of Dr Adam Martin

Dr Adam Martin provided a report dated 14 November 2017 after having received the documents provided by the State and having interviewed the defendant on 28 October 2017 for 75 minutes. I do not propose to repeat matters of history that are recounted elsewhere. However the following matters are noted.
Dr Martin referred to the defendant as having expressed openness to engaging in ongoing treatment and supervision under the proposed ESO. He reported that the defendant had said in that regard, "If I've got not choice then there is not much I can do". He is also reported to have said, "I suppose I should do this course because of past violent offence[s]".
Dr Martin said that the defendant would qualify for diagnoses of substance use disorder and anti-social personality disorder. He also said: "Given his reported traumatic developmental history and the evidence pointing to him having long-standing problems with emotional dysregulation, low mood and anxiety, he could also be described as having complex post-traumatic stress disorder. This is a description of a person having enduring problems with regulation of mood, control of anger and self-destructive behaviour, which is often associated with severely disrupted attachments and chaotic development."
After indicating that he did not think that the defendant had a major mental illness, he said that he considered the defendant's major problems [to be] having long-standing difficulties with controlling his emotions and behaviour which have been exacerbated by his predisposition to substance misuse. Dr Martin said that "these are enduring conditions, which are not likely to resolve quickly or without significant intervention".
On the subject of future risk, Dr Martin said" "Mr Prince should be considered as continuing to pose a risk of committing further serious violent offending. It is obviously impossible to accurately predict whether he will or will not commit a serious violent offence, but he falls into a group of people who would be considered at high risk. I will consider this in more details in the next question. To summarise, he has a high historical loading of multiple empirically-derived risk factors for violence, which should be seen as static, historical and not changeable. The most obvious dynamic risk factor which might fluctuate over time is the issue of substance misuse and to summarise, in my view, if he were to be abstinent from substances, this factor could be expected to reduce to an extent his likelihood of committing further violent offences. Going against this is that while in custody and presumably in forced abstinence from substances, he has been reported as being threatening and aggressive to other inmates. Generally, a person's risk for future violence could be expected to reduce with age, although it is difficult to know in Mr Prince's individual case whether this will materially result in a significant reduction over the coming few years." (Emphasis added)
In cross-examination at the hearing, Dr Martin's attention was drawn to the above passage and the reference to "a risk of committing further serious violent offending". He said that, on reflection, it would be more appropriate to say, "he's at risk of committing further violent offending". He explained that it was difficult to predict exactly what level of seriousness the violence might take because it depends on so many variables. (T8.45)
Dr Martin used the HCR-20 Version 3 structured professional judgment tool for risk assessment and management. His conclusion as to the results included: "Mr Prince has a high loading of historical factors and a moderate loading of current dynamic factors and clinically he would be considered to be a person who would fall into a group of people at high risk of future violence. Risk assessment tools cannot be used to predict an individual's specific risk of re-offending. However, his history is one where there are multiple risk factors for future violence. Crucial issues which might mitigate this risk will be in attempting to obtain stability of accommodation, minimising the influence of external causes of stress or anti-social peers and minimising substance use".
In relation to management of the defendant's risk in the community under an ESO, Dr Martin said: "My view is that the proposed stringent conditions of an extended supervision order are likely to reduce future risk by enabling stability of his situation, reducing dynamic factors for violence such as substance use and providing ongoing monitoring and supervision such that intervention can occur in the event of deterioration in his behaviour. It would be impossible to eradicate all risk of future violent offending, but in my view, proposed conditions of an extended supervision order would significantly mitigate such risk."
Dr Martin concluded his report with a comment to the effect that he considered the proposed conditions of an ESO to be appropriate and he had no specific comments or criticisms of them. He also indicated that the defendant's "risks are unlikely to change dramatically over the next few years and his psychological problems are enduring. In my view, it is reasonable for him to be supervised over two years as proposed."

Concurrent evidence of Mr Sheehan and Dr Martin

Mr O'Neil showed Mr Sheehan and Dr Martin a letter that had been written by the defendant in relation to his application for parole in 2015. In that letter the defendant spoke of being motivated to address his problem with alcohol and rehabilitate so as to enable him to get his young children back. Dr Martin agreed that being able to visit the children, if not take care of them, would be a strong motivating factor for the defendant to rehabilitate himself. Mr Sheehan could not agree completely; he said it was potentially a strong motivating factor but experience had shown that other inmates have made previous statements without necessarily changing their behaviour. He also pointed out that since writing that letter in 2015 the defendant had engaged in violence in the form of assaults upon fellow inmates (albeit relatively minor in the scheme of things). (T10-11)

Options (if any) available if offender is kept in custody or in the community (whether or not under supervision) that might reduce the likelihood of re-offending over time (s 9(3)(e1)) and likelihood the defendant will comply with the obligations of a ESO (s 9(3)(e2))

These are two new mandatory considerations added to s 9(3) of the Act by the Amendment Act.
The written submissions for the State include that the defendant has limited options in the community that might reduce his risk of re-offending. He has spent a considerable period of time in custody. If an ESO is made he will receive support from Community Corrections to remain abstinent from alcohol, to continue to engage in VOTP programs, drug and alcohol counselling, and to maintain pro-social relationships.
However, and somewhat ironically given the State is seeking an ESO, the written submissions also include in relation to s 9(3)(e2) that "the evidence does not support a finding that he would likely comply with the conditions of an ESO".

Submissions for the State

Ms Wright of counsel submitted that the defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision under the order sought. She referred to the following matters: 1. The expert opinions of Dr Martin, Mr Sheehan and Dr Parker that the defendant presents a high risk of violent recidivism. 2. The defendant's violent offending in the past has been persistent and has sometimes involved the use of weapons or objects. 3. The fact that parole has not been granted means that the defendant will reach the end of his sentence without supervision in the community. Both the sentencing judge and the Court of Criminal Appeal said that there was a need for ongoing supervision. There was opinion evidence at the sentence hearing that the defendant requires a high level of supervision, coordinated support and comprehensive intervention if he is to make a meaningful transition to the community. 4. The defendant has consistently denied responsibility for the index offence and said that members of his family were the true perpetrators of the offence. Moreover, he has said that he would seek revenge. 5. The defendant's substance abuse issues are unresolved. Supervision under an ESO would moderate that behaviour. 6. The defendant's emotional regulation and anger management issues are also related to his risk of re-offending and need for supervision. An ESO may provide for mandatory community-based psychological treatment and the development of a structured and productive personal routine.
In relation to (d) above, Ms Wright's submissions referred to the Risk Management Report of Mr Elsayed, the Court of Criminal Appeal judgment and also the parole pre-release report of 27 October 2015. For example, the defendant told Mr Elsayed that he was "getting angry just talking about it" and said he will "boot them [the nephews who he blames] up the ass if they deny they commit the offence". There was also a note by a psychologist (Exh CP-2 p190) that the defendant had "explained that his anger was directed mostly to one individual in particular and stated [he] the planned to 'sort it out' upon release". He explained, "in the bush, my mob fight with our fists to sort out disagreements".
Ms Wright referred again to the observation of Button J in State of New South Wales v Lynn (see above at [9]) about the range of criminal conduct within the definition of "serious violence offence" in s 5A. She referred to there having been six offences of assault occasioning actual bodily harm in the defendant's criminal history. There had been past offences in which the defendant had used a nearby available object as an offensive instrument: a tree branch, a brush, a stick, a bottle, and a length of iron rod. Further, even if no object was used, a single punch intending or being reckless as to actual bodily harm could inadvertently result in really serious bodily harm.
Reference was also made to the many instances in which the defendant's violence had been brought to an end not by his choosing, but because either victims removed themselves from the situation or the police intervened. This, it was submitted, prevented potential escalation of the level of violence.
It was submitted that whilst the vast majority of offences had not involved serious violence (as defined in the Act), they nonetheless shed light on the risk of such an offence being committed in the future.
Alcohol has been a factor in many of the defendant's offences in the past. However, Ms Wright pointed out the uncontroversial fact that during periods of enforced abstinence from alcohol while in custody there were still repeated instances of violent conduct.
Ms Wright pointed to the various risk factors identified within the body of the expert evidence about which there was consensus; matters such as alcohol abuse, association with antisocial peers, the instability of his accommodation and anger management issues.

Submissions for the defendant

The following seem to be the essential elements of Mr O'Neil's opposition to the making of the order sought by the State: 1. There is only one prior serious violence offence. 2. In the notoriously violent environment of prison the defendant's disciplinary record is relatively good. 3. The defendant has been involved in the VOTP (currently) and EQUIPS (2015) rehabilitation programs. 4. He has exhibited positive conduct in his wing. 5. He has family support, including approval to live with his parents-in-law upon release. 6. He is well past the peak age for violent offending and has expressed a motivation of wanting to be available for his children. This was particularly important since the death of his partner in 2014.
Mr O'Neil also made submissions about the assessments of the experts and pointed to various uncertainties inherent in such a task. This was said to be particularly so in relation to "environmental variables"; for example, Mr Sheehan saying that they cannot be accounted for in prediction. It was submitted that to take such variables into account was to enter the realms of speculation.
Reference was also made to various statements to the effect that an ESO should not be used as a substitute for parole: for example, State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [131] per N Adams J.
In relation to the defendant's breaches of institutional disciplinary rules that include offences of violence, Mr O'Neil emphasised that they cannot be regarded as serious as they did not result in criminal charges and the sanctions imposed were relatively minor.
It was submitted that mitigating against the risk of the defendant committing a serious violence offence were the following factors: 1. The defendant's expressed motivation to rehabilitate. 2. He is well past the peak age for violent offending. 3. He has expressed a desire to engage in employment. 4. He receives visits from family members. 5. He is not currently in an intimate relationship. 6. He has engaged in treatment and has been receiving psychopharmacological treatment over the past six months.
For these reasons it was submitted that the State had failed to establish that there was a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if not kept under supervision.

Consideration

I have no doubt that the defendant presents as an unacceptable risk of committing further violent offences. Actuarial assessment tools are not required for that conclusion to be reached. The fact is that the defendant has committed so many offences of violence in the past that there is a high likelihood of him doing so again until there is drastic change. The various risk factors identified in the expert reports, which I am satisfied continue to the present day, further confirm the high likelihood of this risk. However, a high degree of probability that the defendant poses an unacceptable risk of committing a further violent offence is of course not the test.
In assessing the risk of the defendant committing a "serious violence offence", it is relevant that on the many occasions of violence in the past where it is known that no object has been used as an offensive instrument (the vast majority) he has not once caused grievous bodily harm.
There are about 40 prior offences that include an element of "assault". Five of those had the additional element of "occasioning actual bodily harm". With reference to the offences by the court date (see table above at [27]), the injuries sustained were: * Bruising and grazes (20 January 1994). * Laceration to the inside lower lip, bruising and swelling to the cheek and face, laceration to an upper arm, and bruising to other parts of the body (9 February 1996). * Bruising to an eye (seen the following day as a "large black eye"), small abrasion to the other eye, sore back and sore throat (11 September 2002). * Swollen and bruised right eye and bruising and soreness to the back of the head (3 February 2006). * Bruising and swelling beneath the right eye and a nose bleed (11 August 2008).
While these injuries, and the circumstances in which they occurred, were no doubt distressing for the victim, the injuries are a long way from the level of grievous bodily harm.
There was also the offence of maliciously inflicting grievous bodily harm for which the defendant was sentenced to 11 weeks' imprisonment on 12 October 2001. No facts in relation to that offence are available but, given the charge was dealt with in the Local Court, it may be assumed that the offence was regarded as being of a relatively low level of seriousness for an offence of its type.
There is clearly a concern about a prospect that the defendant may - possibly in a fit of rage (he clearly has anger management problems) and probably disinhibited by alcohol (his abuse of alcohol is an entrenched problem) - take up an item nearby and use it in a fashion that may result in grievous bodily harm, whether it is his intention to cause that level of harm or not. However, the fact is that he has been involved in a great many violent incidents in the past and, aside from the index offence, that has never occurred.
An object has been used on the following occasions (including reference to the court date for referencing to the table at [27] above): * In the course of an argument with his sister's husband, the defendant picked up a length of iron rod that was lying near his feet and threw it at him. It missed him but caused damage to a wall. (23 November 1995) * The defendant threw a bottle of water at his partner. She moved and the bottle caused damage to a wall. (11 March 2004) * The defendant threatened to hit his partner with a stick. (3 February 2006) * The defendant threw at his partner a plastic brush that was sitting on the bed beside him. It struck her beneath the eye and caused her nose to bleed. (11 August 2008) * The defendant assaulted his brother with a tree branch. No injuries appear to have been caused, although it is noted that others, including police, intervened. (30 September 2009)
None of these incidents indicate that there was a serious attempt to cause grievous bodily harm or a risk that such a level of harm might have been caused inadvertently.
Mr Sheehan gave the following evidence: "His tendency to use weapons that are at hand, or objects that are at hand, does increase the likelihood of an offence becoming serious." (T13.20)
I accept that evidence. But while there might be an increase in the likelihood of an offence becoming serious, the history indicates that the prospect of this occurring is not high.
In relation to the index offence which was committed in 2010, while the defendant was not the person armed with the machete, he was a member of a group that included that person, and others in the group were armed with other objects. His criminal liability was founded upon him sharing the intent to cause grievous bodily harm. This, and the offence of maliciously inflicting grievous bodily harm in 2001 (for which the facts are unknown), are the only offences in a dreadfully long history of violent offending that involved grievous bodily harm being caused.
The State has identified a concern that the defendant may seek vengeance against others who he regards as truly responsible for the index offence of which he has persistently proclaimed his innocence. I accept that is a concern but there is insufficient evidence to infer that he may be cause grievous bodily harm to such persons. I accept he may be angry as a result of his perception that he has served a substantial prison term for something others are responsible for. I accept that he may vent that anger by assaulting one or more of the persons who he thinks should have taken responsibility and absolved him. The likelihood of this happening is difficult to assess. It is of note that there was no mention of it in the history obtained by Mr Sheehan and also, it seems, in that obtained by Dr Martin. The worst the State was able to identify was an assertion made by the defendant to Mr Elsayed that he would "boot them up the ass".
It would have been highly desirable that the defendant not be released without supervision. The need for an extended period of supervision was clearly identified by King SC DCJ who sentenced the defendant for the index offence and by the Court of Criminal Appeal. The State Parole Authority took a different view but its decision was based largely on how the defendant had progressed in custody since sentencing. Counsel for the defendant, Mr O'Neil, was correct (with respect) to point out that the making of an ESO is not a substitute for parole. I make no criticism of the decisions to refuse the defendant's release on parole, but the practical effect is that he will be released without any supervision with issues of substance abuse, anger management and a demonstrated propensity for violence that are, at best, partially treated.
There are some factors that may serve to ameliorate the risk of further violent offending as Mr O'Neil pointed out. The defendant does have the support of his parents-in-law who have indicated a preparedness to provide accommodation for him, although whether he takes up the offer if not required to do so remains to be seen given he has expressed a wish to return to Mungindi (see above at [72]). More significantly is his concern about his children whose mother passed away in 2014 while he was in custody. He has been allowed to receive visits from them, so there must be some hope in his mind that he may be able to continue with access and, possibly, gain custody at some stage in the future. His prospects of doing so would obviously be enhanced if he were to address the issues identified in the reports. If he reverts to the lifestyle he led in the past he must realise that such prospects would be negligible. This seems to be a strong motivating factor, but the scepticism of Mr Sheehan is realistic.

Conclusion

For the foregoing reasons, I am not satisfied that there is a high degree of probability that the defendant poses an unacceptable risk of committing another serious violence offence if he is not kept under an extended supervision order.

Order

I make the following order: The application by the State for an extended supervision order is dismissed.

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: 15 December 2017

Crimes (High Risk Offenders) Amendment Act 2017(NSW)s 5B

Crimes Act 1900(NSW)s 33(1)(a)

At a glance

Court

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Before

Source

Judgment (27 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (7)