By summons filed 31 October 2018 the State of New South Wales (the plaintiff or the State) seeks an extended supervision order for a period of two and a half years against the defendant, Guillermo Marcelo Schmidt. Mr Schmidt resists the making of any such order and, in the alternative, asks that the conditions proposed by the State be modified and relaxed. Mr Schmidt has been subject to a similar order for the past three years. There have been some difficulties with compliance that he says arise from a combination of the unnecessary strictness of the conditions and the unreasonable or inconsistent enforcement of those conditions by those charged with the responsibility of administering the order. Both of those assertions are controversial and denied by the State.
To understand the disputes between the parties, and the decision I have reached, it is appropriate to set out as briefly as possible the history of the matter in terms of Mr Schmidt's engagement with the criminal law and previous decisions of judges of this court under the high-risk offenders' legislation.
[2]
Background
Mr Schmidt was born in March 1969 in Germany and was raised in Chile. He had a troubled childhood as a result of family issues and the brutal conduct of the fascist Pinochet regime which then ruled over Chile. His family came to Australia in 1989 when the defendant was 20 years of age. Since then he has had a significant interaction with the criminal law and has committed a number of offences, including two particularly serious offences of violence. In 2003 he was convicted of an offence of malicious wounding and sentenced to imprisonment for 4 years and 6 months with a non-parole period of 2 years. Then, in 2004 he was convicted of an extremely serious rape offence committed in 1997. For that offence, he was sentenced to a term of imprisonment of 9 years and 6 months with a non-parole period of 7 years. It will be necessary to consider more closely the facts and circumstances of those two offences.
Prior to his release from custody in relation to that sentence, the State made an application for a continuing detention order or, in the alternative, for an extended supervision order. There were a series of interim orders made before the case came on for hearing before Button J on 4 February 2016. His Honour made orders on 9 February 2016 by which the defendant was subjected to an extended supervision order for a period of 3 years commencing on 9 February 2016. [1] That order was due to expire on 8 February 2019 but because the defendant was in custody from time to time during the currency of that order, it is yet to expire.
The criminal history of the defendant demonstrates that there are ongoing difficulties with compliance with the extended supervision order. While the evidence in the case demonstrates that Mr Schmidt has committed no offences of violence during the three years since he was placed on the supervision order, there were a number of occasions when he was alleged or proved to have breached the specific requirements of the order. This has resulted in Mr Schmidt being incarcerated from time to time for conduct that would not ordinarily result in a custodial sentence if it constituted an offence at all. However, the conduct was criminal because it constituted a breach of the conditions of the supervision order. Those conditions were calculated to ensure that Mr Schmidt did not engage in activities or conduct that increased the risk that he would commit violent or sexual offences. Again, there is a significant factual dispute between Mr Schmidt and those responsible for the administration of the orders (and the State itself) as to where the blame lies for some of these transgressions. Mr Schmidt would argue that the conditions to which he has been subjected were either unreasonable in themselves or have created an environment which has so restricted his freedom as to be counter-productive to his rehabilitation. The State would argue that the conditions were simple enough to comply with and that Mr Schmidt has, from time to time, simply failed to comply.
Towards the end of the period stipulated in the supervision order made by Button J, both parties made applications that were heard together by Walton J on 14 and 15 November 2018. [2] Mr Schmidt made an application to vary the supervision order by bringing forward its date of expiry. In practical terms, this was an application to revoke the order effective from the date of the application, hearing or orders. Meanwhile, the State filed its present summons.
Walton J rejected the defendant's submission and application that the supervision order should come to an end. In doing so, he made a number of adverse factual findings against the defendant who had given evidence at the preliminary hearing. At one stage the State suggested that I may be estopped from revisiting those factual questions but, in the course of argument, instructions were taken not to press that submission. It is unnecessary to resolve that issue given that it was not pressed by the State but, in my view, the State's revised position was correct. No such issue of estoppel arises in a case like the present and it would put a judge hearing the final application of this kind in an impossible position if it were to be suggested that they were bound to take the same approach as a judge who made findings in the course of a preliminary hearing, or application to revoke an existing order, based around different evidence and different statutory criteria. It runs contrary to the exercise of judicial power and has potential to do violence to the concept of judicial independence. However, those comments are strictly obiter musings made without the benefit of full submissions.
Walton J made the orders sought by the plaintiff. There was an interim supervision order to take effect at the conclusion of the supervision order that had been made by Button J and his Honour ordered that expert reports be prepared. The matter was listed for final hearing on 8 April 2019 and, in due course, allocated to me. In the meantime Mr Schmidt was incarcerated for breaches of the supervision order. Between the first day of the hearing (9 April 2019) and the final day of the hearing (8 May 2019), Mr Schmidt was released from custody on 24 April 2019, only to be locked up again the next day because he failed a breath test to determine whether he had consumed alcohol. He entered a plea of guilty and was sentenced to a fixed term of imprisonment for three months which will expire on 25 July 2019.
[3]
A scanty overview of the legal framework governing the application
The provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) have been considered in many cases decided both at first instance and by the Court of Appeal. Those cases can be found in the reports, on Caselaw and other legal resources. I will not refer to any of them by name or citation. The principles are no longer controversial. A number of general propositions emerge from the cases but their application is to be determined based on the peculiar circumstances of the individual cases.
The starting point is the objective of the legislation. The primary object of the Act is to ensure the safety and protection of the community by allowing for the continued detention or extended supervision of high risk offenders. Another objective is to encourage such offenders to undertake rehabilitation. The Act provides definitions of the offenders who are subject to the legislation. These definitions bring in further definitions of serious sex offence and serious violence offence. The Act provides statutory pre-requisites before an order can be made. Assuming the Supreme Court is satisfied that an order should be made at all, the Act provides for two alternative forms of order. One is to order that the offender be detained in custody for a specified period beyond the expiration of their sentence. The other is to order that the offender be subject to supervision within the community.
The legislation requires the Court to make a predictive assessment of risk. Before an order can be made, the Court must be satisfied "to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence" if they are not supervised or detained. The content of the legal test has been considered in a number of cases. The Act provides a list of criteria that the Court must take into account, along with "any other matter it considers relevant". An offender who is placed on an extended supervision order can be subject to conditions and directions that the Supreme Court considers to be appropriate including a number of specific and identified directions. These can be extremely onerous and result in a substantial interference with the offender's personal freedoms and liberty.
The Act provides for various pre-trial procedures and interim orders as well as functional provisions concerning the commencement dates of orders and duration of the orders.
[4]
The evidence
As has become customary in cases of this kind, the State tendered what can only be described as an overwhelming, not to say preposterous, amount of material. How much of this was at the insistence of the lawyers for the defendant I do not know. A great deal of this material was repetitive and superfluous. In percentage terms, by reference to thousands of pages presented to the Court, the parties referred to very little of it. It appeared that every interaction the defendant has had with those supervising him, or running the establishments in which he has resided, was subject to a note that the parties felt compelled to tender into evidence. It would be disingenuous for me to suggest that I have read all of this material closely. I haven't.
The Judges who regularly preside over these matters are not provided with reading time to scrutinise and examine every document tendered in such matters. Similar complaints have been made by judges in earlier cases. No doubt those complaints, and this one, will have no impact. However, the Crown Solicitor's Office should consider implementing some kind of protocol that reduces the volume of material tendered. Those appearing for defendants should co-operate to ensure that the amount of material tendered is both sensible in its volume and relevant to the issues in dispute. It is, to speak bluntly, simply dumb and unhelpful to tender every OIMS note [3] made over a three year period. Further, it is of no assistance to the Court to include in the bundles of material multiple copies of the same documents. I was grateful to counsel for the State for providing a schedule which detailed the many duplications, but the better course is for the parties to co-operate to put together a joint tender bundle that does not include duplications and excludes material that is not significant to the matters in dispute.
Having relieved myself of that exasperation, counsel in this matter have provided helpful written and oral submissions, summaries, chronologies and more compendious evidence allowing the Court to focus on the important material and be in a position to make reasoned and informed decisions on the controversial aspects of the case.
Included in the material were reports going back many years which explain the opinions of various experts concerning the defendant's psychology and pathology as well as providing reasoned assessments as to the extent of his risk of re-offending and the triggers or risk factors that might lead him to re-offend. The material also concerned information about Mr Schmidt's criminal and custodial history, the remarks on sentence and facts relating to a number of his earlier crimes, and the evidence that was tendered in the sentencing proceedings. There is also evidence concerning his compliance and non-compliance with the extended supervision order imposed by Button J, his engagement with counselling and other rehabilitation services and his behaviour during those periods when he has been in gaol. In a nutshell, the material shows that Mr Schmidt committed two extremely grave and chilling offences of violence some years ago, was punished severely for those crimes, has been at times indifferent or inconsistent with his attempts at rehabilitation and often frustrated at the strictures of the supervision order to which he has been subject since February 2016.
[5]
Two serious offences of violence and other criminal history
Mr Schmidt was the perpetrator of two horrendous acts of violence with awful consequences to his victims. These took place some years ago but were of such gravity that they remain at the forefront of any sensible assessment of the proper orders, if any, to be made in order to advance the primary object of the High Risk Offenders legislation.
[6]
A brutal rape
The first of these offences occurred in June 1997. Judge Berman described the victim's experience in his remarks on sentence delivered on 15 October 2004:
In the early hours of 15 June 1997 a young woman was walking home. She had had an enjoyable night out with a work colleague. She got the nightrider-bus which dropped her next to a park known as the Darryl Jackson Gardens at Summer Hill. She lived with her parents in a house on the other side of the park and so she began to walk through it. As she was walking she noticed someone approaching from behind her. She stopped to get her house keys out of her bag. Her intention was that she would run home and she wanted to be able to get into the front door without delay.
The man behind her approached her, grabbed her from behind and pushed her into the bushes. He then started to take her clothes off, ripping her bra as he did so. She was kicking him and screaming out. At one stage she managed to get onto her knees and started to crawl away but the man behind her, who was this offender, grabbed her hair and banged her forehead onto the ground a few times. He said he was going to kill her. He pushed her onto her back and slapped her face. He then began to strangle her. The young woman began to lose consciousness. The offender then removed the young woman's pants and underpants and penetrated her vagina with his penis. She could not move as he had his hand on her neck and was pinning her down. After two or three minutes the offender got up and left. The young woman put her clothes on, at least those that she could find and went to the police station.
She was taken to Royal Prince Alfred Hospital where her injuries were recorded. She was bruised to her jaw, her throat, her forehead and had suffered abrasions to her left wrist, her legs, her neck and her buttocks.
The identity of the perpetrator went undiscovered for many years. However, once the defendant's DNA was available, it matched the DNA on semen found on a vaginal swab taken from the victim when she was in hospital. He was charged and prosecuted. He denied any involvement in the offence. He was put to trial and found guilty of aggravated sexual assault.
When he was sentenced, the defendant pleaded guilty to a further offence involving malicious damage to property committed on 24 August 2003.
In sentencing Judge Berman said of the aggravated rape offence:
This was a very serious offence. All offences of aggravated sexual assault are serious of course but this was a serious example of it.
The injuries were such that the doctor who examined the young woman at the hospital had an independent recollection of the examination, notwithstanding the intervening period of seven years. She said in her evidence that this was a particularly severe assault and "I certainly remember her injuries."
It was also a serious offence because it was accompanied by threats to kill the victim and, as I have said at one stage, she was strangled until she began to lose consciousness. It was a serious offence as well because the attacker was a stranger to her. He ejaculated inside her vagina and so the young woman was no doubt concerned about the possibility of pregnancy or disease.
His Honour referred to horrific experiences the defendant had when he was a child and young man in Chile. He described the execution of his father and the fact that the defendant was tortured by members of the Pinochet regime. His Honour thought that Mr Schmidt was "capable of living a valuable lifestyle" but was not satisfied that he had good prospects of rehabilitation and could make no finding "one way or the other as to the likelihood of him committing a further offence of this nature if the opportunity presented itself again."
Mr Schmidt was sentenced to a total term of imprisonment of 10 years with a non-parole period of 7 ½ years. That sentence commenced on 11 December 2003. It expired in December 2013 by which time Mr Schmidt was serving a sentence for a second offence of extreme violence.
[7]
A vicious domestic assault
In December 2003 Mr Schmidt committed another brutal offence. The target of this offence was a woman with whom he was in some kind of relationship. He was staying at her flat when the incident occurred. After drinking a large amount of alcohol Mr Schmidt and the victim became involved in an argument and a physical altercation. At some stage police attended the premises but the victim sent them away. The victim had a knife which she gave to Mr Schmidt causing him to cut his hand. He yelled at her, punched her in the head, chest, ribs, face and legs. He used belts to bind her legs and hands and put her on the bed. Then he did this:
He stabbed V7 in the neck, chest, leg, face and the middle of the back with a large kitchen knife.
He then picked up a lamp with a heavy metal base and hit V7 with it around the face and chest and back.
The offender then went to the loungeroom, sat in a chair and continued drinking. V7 asked him to let her go to the hospital, but he refused.
After a while V7 managed to untie her hands. She got to the bathroom in order to get a drink of water but the offender followed her in and hit her in the face.
The victim managed to escape when the defendant fell asleep. She was taken to hospital. The victim's injuries included:
Stab wounds to mid and upper left chest area.
Bruising to right thigh area.
Two stab wounds to right knee area.
Injuries to left facial area including stab wound to left neck area and above the eye.
Injuries to right side of face and neck including stab wound to right neck area, nose and right forehead and extensive bruising to face and neck.
Extensive bruising to face and neck.
Injuries to top of head.
Bruising to back and both arms.
It needs hardly be said that the capacity to perpetrate such violence is both unusual and troubling. Mr Schmidt was charged with a more serious offence but following negotiations entered a plea of guilty and was sentenced for malicious wounding and a stealing offence was taken into account in the sentencing process. On 3 June 2005, Judge Bell imposed a sentence of 4 ½ years with a non-parole period of 2 years. The sentence was ordered to commence 11 May 2011, part way through the sentence imposed by Judge Berman for the aggravated rape.
The sentence imposed by Judge Bell expired on 10 November 2015. Since then, Mr Schmidt was subject to an interim detention order under the Act and, since 9 February 2016, the extended supervision order made by Button J. As I have said, he has also been locked up for various breaches of that order.
[8]
Criminal history before he was incarcerated for the two most serious offences
While the two offences just described are by far the most serious crimes that Mr Schmidt has committed, they are by no means isolated instances of violence and other criminality. His criminal history, in the form of a bail report, describes a number of other offences committed since he was a young man. These include:
An assault in 1990.
An assault and carrying a cutting weapon in 1992.
An assault occasioning actual bodily harm in 2000.
The contravention of an apprehended violence order (AVO) in 2000.
Further offences of assault and breaching AVOs in 2000.
An assault occasioning actual bodily harm in 2003.
[9]
Convictions for breaches of the extended supervision order
The bail report records a number of offences of failing to comply with the terms of the supervision order. These breaches have resulted in bonds, convictions with no further penalty, community service orders, suspended sentences and terms of imprisonment.
[10]
The facts of some of these offences
The facts sheets relating to a number of the offences referred to in [29]-[30] were tendered. I do not propose to recount all of the facts but have perused each of those documents. While many of the offences were relatively minor, it is the repeated nature of the offending, its connection with abuse of alcohol and drug abuse, the number of victims and harm done to them, and the defendant's indifferent response to supervision and failed attempts at rehabilitation that causes concern.
Three particular offences worth mentioning occurred in 1990, 2000 and 2003. The first involved the assault of his ex-wife at a time when Mr Schmidt was on a bond for assault. This occurred within about a year of Mr Schmidt arriving in Australia. The assault of his ex-wife was very nasty, including bashing her head and face against a wall. He was very drunk when this happened. The second offence, committed in June 2000, involved a male flatmate (who may have been a domestic or intimate partner). This involved punching the victim several times to the face, pulling his hair, and hitting his head on the floor. The victim was taken to hospital and found to have sustained bruises to his eye, carpet burns and a small cut to his back and arm. The third offence (in 2003) involved the assault of a staff member at the Cardinal Freeman refuge for homeless people. The offender punched the victim repeatedly.
The fact that Mr Schmidt has not committed any offence of violence since late 2003 is important, but it must be remembered that during that period of 15 years he has either been incarcerated or subject of the onerous conditions of the extended supervision order imposed by Button J.
[11]
Expert opinions and other assessments of risk
As I have said, the six volumes of material contain a number of psychological, psychiatric and risk assessment reports going back many years. Some of these were tendered in earlier criminal proceedings. Others were prepared as part of the process leading to decisions concerning whether Mr Schmidt should be released from custody and/or placed on supervision and other such orders. I will not attempt to summarise all of this material.
It seems quite clear that Mr Schmidt's experiences in childhood and as he grew to adulthood in Chile were formative. As I have said, his father was murdered by the government and Mr Schmidt was detained and tortured. His mother turned to alcohol and prostitution. It is difficult for those raised in a peaceful democracy to fathom the psychological impact of the terror of a fascist regime, particularly on those who are the particular targets of the brutal tactics of the government and its henchmen. It is impossible not to feel considerable sympathy for Mr Schmidt whose resort to violence, and whose past proven capacity to inflict suffering on others, is no doubt at least partially, if not entirely, the result of his family being the victims of systemic oppression and violence. Even so, the cause of his pathology is not the issue that needs to be determined. Rather, the question is whether it has been established to a high degree of probability that he represents an unacceptable risk of committing further offences of violence and/or sexual violence.
Mr Schmidt had a number of admissions to hospital with depression and drink issues from 2001 through to 2003. He spent two months at Rozelle Hospital in 2003. In 2004, Dr Westmore's psychiatric report referred to long standing depression and a mood disorder which, when combined with alcohol consumption, impacted on his "impulse control problems".
A risk assessment report was prepared for the preliminary hearing. It is dated 8 October 2018 and was written by Mr Ardasinski. The executive summary said that Mr Schmidt was assessed to be at a "moderate high risk" of violent offending and a "moderate" risk of sexual offending. Other parts of the report, based on different kinds of testing and assessment, placed him at a "medium risk". Mr Ardasinski gave evidence and explained the basis of his assessments. He uses well known tools for the assessment of risk. These can only be so precise and Mr Ardasinski did not suggest otherwise. Mr Ardasinksi was challenged as to the results, and taken through the risk factors with considerable care. While the witness made some concessions in relation to the improvements in Mr Schmidt's more recent engagement with services and acknowledged the lack of offences of violence over a lengthy period, he stood by the assessments of risk provided in his report.
A risk management report was prepared by a Community Corrections Officer (Amanda Cardan) and dated 18 October 2018. The report proceeded on an assumption of the correctness of Mr Ardasinksi's report and provided a further, similar, list of risk factors. Ms Cardan noted that Mr Schmidt may appear "aggressive, hostile, threatening, intimidating, argumentative and disengaged" during assessments and interviews. The report also described the defendant as "manipulative" at times. A number of risk factors were identified and management plans outlined. The thrust of the report was that a further period of supervision was indicated.
An ESO Completion Report (dated 17 July 2018) and a report to the Attorney General (dated 19 June 2018) were created towards the end of the extended supervision order imposed by Button J. These reports noted his initial "resistance and hostility" to the order and to those responsible for administering it. Some of the opinions concerning his risk of re-offending seemed to be based on the reports presented in 2015. At that stage his statistical risk of recidivism was high. Both reports recommended a further period of supervision.
Two court appointed experts provided reports and gave evidence at the final hearing.
Dr Adam Martin, Forensic Psychiatrist, provided an opinion in his report couched in double negatives namely that "it is not possible to say that Mr Schmidt is not at significant risk of further problematic behaviours or offending". In evidence he described the risk of further offending as "significant". The major risk factor was the defendant's vulnerability to drug and alcohol abuse. He said Mr Schmidt exhibited an anti-social personality disorder and that, in some cases, the risks associated with such a disorder diminished with age. However, this was not predictable or consistent across all offenders. He also posited risk laden scenarios such as domestic disputes and arguments leading to physical assaults. Dr Martin acknowledged there was only one prior sexual offence but noted its extreme seriousness and Mr Schmidt's failure to take responsibility for that offence (at least for many years). Dr Martin also gave Mr Schmidt credit for his more recent engagements with counselling and other services and was circumspect in his attitudes to the breaches of the ESO, showing some understanding that some of the breaches appeared to have been born out of frustration and the restrictive nature of the conditions. Dr Martin acknowledged the improvements in Mr Schmidt's conduct and the reduction of his risk of re-offending but maintained the view that ongoing psychiatric and psychological support was required.
Miriam Wyzenbeek, Psychologist, provided a detailed report and gave evidence. She described the defendant as "[endorsing] hostile beliefs about women, and he perceives them as being deceptive in their interactions with men, untrustworthy and as sexually promiscuous". He has "entrenched problems in his relationships", is "indifferent to the welfare and rights of others", and "is primarily motivated by his own self-interest and he is likely to engage in aggression to get his own way." "Overall", she concluded that he presents "a high risk of serious sexual and/or violent reoffending". She expressed concern about his level of non-compliance noting that "rejection of supervision has consistently been shown to be a significant predictor of recidivism". She is of the view that Mr Schmidt requires long term supervision and psychological intervention. In her evidence, she expressed the view that the supervision order was an effective way of managing the risk factors and triggers that might lead to further serious offences. The breaches were not of themselves of concern but Dr Wyzenbeek said that the breaches led to interventions that served as circuit breakers to the pattern of behaviour that might, or was likely to, lead to violent offending. Ms Wyzenbeek acknowledged more recent positive interactions with a particular counsellor and a demonstration to undertake the early stages of the community based "CUBIT modules". However, she said that CUBIT is usually a far more intensive group therapy programme and remained of the opinion that Mr Schmidt had a long way to go in his progress to rehabilitation.
Theresa Britton is a treating psychologist who has been seeing Mr Schmidt for risk management sessions for a little under two years. She described his recent and enthusiastic undertaking of the CUBIT treatment modules. He has completed the first stage(s) of the programme and she has had to get him to slow down because she needed time to assess his work and they needed time to talk about the "work he had done on his background factors". She was of the view there was significant recent improvement in Mr Schmidt's attitude and response to counselling but, when pressed in cross-examination, to provide an opinion as to risk she expressed the opinion that "clinical judgment is no better than tossing a coin apparently when it comes to risk."
[12]
The history of non-compliance
The evidence is littered with examples of Mr Schmidt breaching the terms of the extended supervision order and coming into conflict with those responsible for administering and supervising the orders. He has breached the orders in various ways and fairly consistently throughout the period of supervision. I accept that his initial response to supervision was poor and that he has, until recently, failed to engage seriously with the opportunities for counselling and other services designed to assist in his rehabilitation. I accept that he can be manipulative and became aggressive at times. However, he has not resorted to actual violence in spite of his frustrations.
I generally accept Ms Wyzenbeek's opinion that these transgressions and failures are of concern in making an assessment of his risk factors. I also accept her opinion that the interventions following the breaches have provided a "circuit breaker", prevented the situation from escalating and reduced the risk of Mr Schmidt resorting to violence.
Even so, it is clear that in spite of his frustrations, he has not resorted to violence albeit that his behaviour has been threatening to some of the people with whom he has interacted.
I also accept that at least some of the strictures of the supervision order are potentially counterproductive in terms of his rehabilitation. There is a tacit acknowledgement of this in some of the evidence presented by the State. For example, Mr Ardasinski said:
At times in his ESO when Mr Schmidt has been given this 'leeway to interact' (e.g. when he was approved to go with Gary to the club on weekends: 16/8/17), he has presented as happy, more compliant and more stable. His mental health declines appear to have coincided with occasions when he has felt restricted from engaging in, or maintaining, friendships (eg when told that he could not use the gym at the Campbelltown ISC or interact with any of its residents after he had relocated to Woodbine).
One example of this concerns a relationship that Mr Schmidt attempted to develop with a woman from Queensland. I will not identify her but will refer to her as M49 (as she was in the evidence). She and the defendant met over the internet and he disclosed certain information to her about his criminal record. According to enquiries made by authorities he had in fact exaggerated his record. M49 believed he had a murder conviction on his record. In any event, the relationship developed to the point where they were attempting to arrange for M49 to visit from Queensland and spend three weeks staying with the defendant. When this was disclosed to Mr Schmidt's case officer, it was decided that she could not stay at his home, or at least not initially. The authorities were also concerned that M49 had been involved in a previous relationship involving domestic violence. M49 was advised that she would have to find alternative accommodation, such as a hotel or motel. She could not afford this and the visit was abandoned. This caused distress and disappointment to the defendant and is potentially detrimental to his rehabilitation. The experts seemed to agree that building relationships is likely to have a positive impact on Mr Schmidt's rehabilitation. In this instance, the practical impact of the Department's actions was to frustrate the possibility of a relationship being developed. None of this is to doubt the good intentions of those administering the supervision order. It is merely to highlight that at times the stricture of such orders can be counterproductive to the objective of fostering an offender's rehabilitation. At the same time, such interventions may serve to protect the public and individuals such as M49. It is a fine balance.
There are other examples of this in the material. There are no doubt two sides to all of the stories. At one stage, Mr Schmidt was assisting staff members at his accommodation (the ISC) by providing them with personal training. At another he developed a relationship with the manager of the ISC. It was decided that Mr Schmidt was not respecting boundaries and that these relationships and interactions were inappropriate. There is no suggestion that he was acting inappropriately but the theory seemed to be that it was his responsibility, rather than the staff of the facilities at which he lived, to determine where those boundaries should be drawn. He has been told that he is not to loiter in common areas of the apartment blocks he lives in for fear that he may come into contact with other past offenders. Again, this is a restriction that limits the possibility that he may form or develop positive relationships.
I have oversimplified these issues, and perhaps unfairly to the State, but I am merely trying to emphasise that while the restrictions and enforcement of the conditions by the relevant agencies and officers is clearly designed to protect the community, some of the strictures of the orders may have been deleterious to Mr Schmidt's attempts to move on with his life and to rehabilitate. That has certainly been his perception.
Even allowing for these matters, Mr Schmidt himself has not assisted by, at times, taking an aggressive and argumentative stance with staff members and officers whose job it is to enforce the orders.
When all is said and done, the relevance of these breaches of the ESO is that Mr Schmidt has not taken full advantage of the opportunities he has had to engage in rehabilitation. While some of his frustrations are understandable, he has not assisted his own cause if his desire was to complete the term of the ESO and be allowed to move on with his life. It is difficult to escape the conclusion that the recent engagement with the rehabilitation programme and counselling is, to use a cliché, too little, too late.
[13]
Should an order be made? Statutory criteria and assessment of risk
There is no dispute that (a) Mr Schmidt has served a sentence of imprisonment for a serious offence, (b) is a supervised offender as that expression is defined in s 5I of the Act and (c) that the application was made in accordance with s 5I. [4] The issue is whether I am satisfied to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under the supervision of an extended supervision order. [5] The defendant submits that I would not be so satisfied and relies upon the fact that it has been such a long time since he committed any act of violence. He also relies on the recent positive signs in terms of his engagement with counselling and the fact that many of the breaches of the current extended supervision order have either been quite minor or the result of unreasonable strictures in the enforcement of the ESO.
I am satisfied to a high degree of probability that Mr Schmidt poses an unacceptable risk of committing another serious offence. In reaching that conclusion, I have been influenced by the brutality of the two most serious offences on his criminal history and the repeated incidents of violence recorded in that history. I have also considered the opinions of the various experts, while taking into account that predictions about future conduct are fraught with difficulty. It is also highly relevant that Mr Schmidt has not engaged with counselling and rehabilitation services, at least without any enthusiasm until relatively recently. I am also satisfied that some of the breaches of the ESO, especially his use of alcohol in the context of a history of committing violent offences when drunk, makes him vulnerable to recidivism.
I have considered each of the mandatory criteria in s 9(3) of the Act. For the most part, a consideration of those matters militates in favour of the making of a further extended supervision order. In particular, the contents of the expert reports, the criminal history and the information concerning the capacity for Mr Schmidt to be managed within the community, favour the making of an order. While there is some issue around whether the defendant will comply with the conditions of the order, this arising as a result of his numerous breaches, his attempt to engage with counselling more recently is a positive sign. Mr Schmidt must by now know that a failure to comply will result in his further incarceration for what are relatively minor transgressions.
I have taken into account the fact that the paramount consideration is the safety of the community. There is little doubt that the safety of the community is best served by making the order.
For those reasons, and based on all of the evidence, I will make an extended supervision order.
[14]
Duration of order
The plaintiff pressed for an order of 2½ years duration. This was based on the opinions of Ms Wyzenbeek and Dr Martin. However, this period appears to have been more of an acceptance of the State's proposal rather than the result of any independent assessment. That is not clear from Ms Wyzenbeek's report but is quite clear from Dr Martin's response: "… the proposed two and a half years duration in probably appropriate …" There is no criticism intended or implied here - it is appropriate for the State to seek the experts' opinions as to the appropriateness of particular conditions or the specific duration of the order. However, it is not the case that some scientific, psychological or psychiatric opinion or formula has led to the suggestion that 2 ½ years is the appropriate length of the order.
The defendant asked that any order should be of much shorter duration. Reliance was placed on his recent engagement with counselling services and the effluxion of time since his last serious violence offence.
My conclusion is that Mr Schmidt should be provided with some incentive to continue with the positive steps taken in the last few months. Notwithstanding the recent breaches of the order, I think he has reached a point in his life where he is willing to confront with honesty his difficulties.
The order will have effect for two years.
[15]
The conditions
The conditions are guided by, but not restricted to, the matters referred to in s 11. That section does not require there to be a demonstrated link to the past offending. Rather, the conditions must be calculated to address the risk of future offending that forms the basis of making the order. The conditions must not be unnecessarily strict or go beyond those appropriate to address that risk.
I am firmly of the view that the conditions of the extended supervision order should be relaxed in order to foster Mr Schmidt's rehabilitation. Dr Martin acknowledged the stress that the strictness of the conditions were having on the defendant. Mr Aradasinski commented that Mr Schmidt responded better and was more stable when given more leeway.
The State fairly proposed a number of amendments to the conditions it originally sought. It filed an amended summons with a more relaxed set of conditions. These included, subject to the approval of the Departmental Supervising Officer (DSO), relaxation on the absolute prohibition on him consuming alcohol and allowing him to associate with others who consume alcohol. It also restricted the occasions when the Department would disclose Mr Schmidt's criminal record to third parties. It allowed him to access some pornography (again subject to the approval of the DSO).
Even with those amendments, the defendant argued that the conditions were too strict. However, the debate was in a relatively narrow - if important - compass. Without prejudice to the submission that no order should be made at all, but on the assumption that an order would be made, there was no contest in relation to most of the conditions proposed. [6]
One of the most controversial aspects of the conditions proposed by the State was the requirement that Mr Schmidt provide a weekly schedule of movements and that he not deviate from that schedule without approval from the DSO. A related complaint concerned the requirement that Mr Schmidt wear an electronic monitor. I do not accept that these two conditions necessarily go together. There was no objection to a number of conditions by which the defendant was required to stay at his own home and not spend nights elsewhere without the approval of the DSO, and that he not go to any place that the DSO "tell him he cannot go." Electronic monitoring would allow such directions and conditions to be monitored and enforced. The evidence suggested that the electronic monitoring condition is ordinarily relaxed over the currency of the order. There has not been very much relaxation in the present case, no doubt because of the defendant's history of non-compliance.
I have concluded that the condition requiring weekly schedules ought not to be imposed. The conditions otherwise provide sufficient stringency in terms of the defendant's movements and these conditions can be enforced by use of the electronic monitoring system. I will impose a condition requiring the defendant to wear an electronic monitor but not impose the conditions requiring the weekly schedule of movements in advance.
I otherwise generally accepted the defendant's position on the conditions and propose to make some modification to those sought by the State.
The conditions remain very strict and impose significant limitations on the defendant's freedoms. As recent events have shown, no conditions can guarantee that the risk of re-offending is removed altogether. However, the conditions that will be imposed are designed to minimise that risk for the safety and protection of the community. At the same time, the relaxation of the conditions, and the reduction in the length of the order, should provide Mr Schmidt with real incentive to comply with the order and to engage in intensive counselling and rehabilitation programmes.
Accordingly I make the following orders:
1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 ("the Act") the defendant be subject to an extended supervision order for a period of 2 years from the date of the expiration of his current extended supervision order.
2. Pursuant to s 11 of the Act, the defendant is to comply with the conditions set out hereunder and in Schedule A for the period of the extended supervision order.
Schedule of conditions (168 KB, pdf)
[16]
Endnotes
State of New South Wales v Schmidt [2016] NSWSC 41.
State of New South Wales v Schmidt (Preliminary) [2019] NSWSC 52.
The Offender Integrated Management System ('OIMS')
Section 5B(a)-(c).
Section 5B(d).
See transcript (8 May 2019) pp 44-48.
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Decision last updated: 21 June 2019