State of New South Wales v Silapa

A brief background

1. The defendant is a 32-year-old man and was raised in Western Sydney, his parents having emigrated from Western Samoa. His parents separated before his birth and he is the only child of that union. When the defendant was around 3 or 4 years old, his mother re-partnered and had two more sons, the defendant's half-brothers. That relationship ended when the defendant was in primary school.
2. The defendant reported suffering physical and sexual abuse as a child from his stepfather, who was also reported to be a member of an outlaw motorcycle gang. The stepfather was often violent, including towards the defendant's mother. After the defendant's mother separated from the stepfather, the defendant spent substantial time in the care of his grandmother whilst his mother worked as a nurse.
3. Prior to entry into custody, the defendant had a series of manual jobs in labouring, demolition and picking and packing. In custody, he had roles as a groundskeeper and a cleaner.
4. The defendant is the father of twins born in 2016 to his former partner, that relationship having ended shortly after their birth, which also coincided with his entry into custody. He had also been the stepfather to his former partner's child from a previous relationship. He had limited contact with his biological children from birth and presently has no contact with any of his children.

A brief outline of the offending - the index offence

1. The index offence was committed on 8 December 2015 when the defendant was 24 years old. The offence comprised one count of wound person with intent to cause grievous bodily harm pursuant to s 33(1)(a) of the Crimes Act 1900 (NSW) to which he pleaded guilty. This offence carries a maximum penalty of 25 years and a standard non-parole period of 7 years. Other charges of reckless wounding in company pursuant to s 35(3) of the Crimes Act and one count of affray pursuant to s 93C(1) of the Crimes Act were withdrawn by the prosecution.
2. The charges arose from an altercation at a residence. The victim, a man of 22 years of age, was picked up in a car by a man and a woman and driven to a house where the defendant and another man were waiting. On arrival, the victim was set upon by the defendant, the other man who had been waiting, and a third man who had been driving the car. The defendant actively participated in the attack which was committed in the company of three others. He brandished a knife which he had taken from the kitchen of the house where the attack was occurring. He and another accused grabbed the victim, ripping off his singlet. The defendant kicked him and stabbed him with a knife. Before the defendant and the others fled, the defendant ran back into the yard to retrieve the knife.
3. The victim was admitted to hospital by ambulance suffering a 2cm wound in his left posterior chest that caused a collapsed lung. He required sutures and the insertion of a drain. The defendant was arrested and charged on 30 August 2016. He entered a plea of guilty before the Local Court and pleaded guilty at the earliest opportunity on 28 April 2018.

More recent charges

1. The defendant committed an offence in November 2021 resulting in his parole being revoked, and I will refer to this offence as "the November 2021 offence". This took place outside a hotel when he and his friend were denied permission to remain by the hotel security guard at the direction of the licensee. The defendant assaulted the victim by punching him once with a clenched right fist to the left side of the head and jaw. On leaving, the defendant shouted at the victim, "We are going to come back and put a bullet in your head. We will shoot this place up". He was convicted of this offence and received a sentence of 18 months' imprisonment with a non-parole period of 10 months. This sentence commenced on 13 January 2022 and expires on 12 July 2023. This sentence is partly concurrent and partly consecutive with the sentence for the index offence.
2. His parole was revoked in relation to this offence on 1 March 2023 and the revocation was backdated to 6 February 2023, being the date of a subsequent allegation.
3. This subsequent allegation involves an assault alleged to have occurred on 6 or 7 February 2023. The allegation is of assault occasioning actual bodily harm. It arises from an incident alleged to have occurred during the defendant's most recent period on parole. It is alleged that following a heated argument breaking out between the defendant and the complainant, the complainant being the defendant's current partner, the defendant pushed her to the kitchen floor, stood over her, and punched her multiple times for almost 20 seconds resulting in a number of bruises to her face.
4. It is further alleged that the defendant lifted the complainant to her feet, pushed her into the corner of the kitchen, held her against the kitchen wall, grabbed a large silver kitchen knife and held it in close proximity to her torso. The complainant is said to have been pregnant at the date of the incident.
5. I am informed that the hearing for this matter has been adjourned to 17 October 2023 and the defendant remains bail refused. I note that s 10C(1A) has the effect that an ISO is suspended while a defendant is in lawful custody. The allegation though, is relevant even though it is not formally proved in a Court, as I am to take the material put before me as if proved under s 10A of the Act.

The statutory scheme

1. Turning now to the statutory scheme. It is now well known the Act provides a comprehensive statutory scheme outlining the legal test for both preliminary and final supervision orders. Section 10A of the Act provides that: The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court - (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b), that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
2. Section 5B of the Act provides that the Supreme Court may make an extended supervision order if it is satisfied: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I [what is now agreed to be s 6], and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
3. A supervised offender is defined in sub-ss (2) and (3) of s 5I to include someone who was in custody or on parole while serving a sentence for a serious offence.
4. A serious offence is defined in s 4 and includes a serious sex offence and a serious violence offence.
5. A serious violence offence is defined in s 5A and includes a serious indictable offence (relevantly, within the meaning of the Crimes Act) that is constituted by a person: (a) engaging in conduct that causes the death of another person, or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit or conspiring with or inciting another person to commit an offence of a kind referred to in paragraph (a).
6. An application for an ESO is to be supported by the documentation specified in s 6(3). This includes a risk assessment report from a qualified psychiatrist, registered psychologist or registered medical practitioner and documentation addressing each of the matters referred to in s 9(3) of the Act.
7. Section 7(4) of the Act provides that if, following the preliminary hearing, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, I must make orders appointing two qualified psychiatrists and/or registered psychologists or any combination of two such persons to examine the defendant and to furnish reports to the Court.
8. Section 5D of the Act provides that the Court is "not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence".
9. The meaning of unacceptable risk is not defined in the Act. Its meaning was considered by Beazley P in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]-[51] ("Lynn"): "As the respondent pointed out in its submissions, by reference to dictionary definitions, the word 'unacceptable' requires context in which, or parameters against which, the 'unacceptable' risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is 'so far from a required standard, norm expectation, etc as not to be allowed'. The Oxford Dictionary defines the word by reference to its antonym 'acceptable'. Something is 'acceptable' if it is 'tolerable or allowable, not a cause for concern; within prescribed parameters'. What the court, therefore, must find to be unacceptable is the 'risk' that the offender poses 'of committing a serious violence offence if … not kept under supervision'. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made."
10. In Lynn, Basten JA stated at [126]: "The nature of the risk he posed had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community […]"
11. The unacceptable risk inquiry is not discretionary, but it does involve an evaluative balancing exercise to be undertaken in the overall context of the primary object of the Act, that being to ensure the safety and protection of the community: s 3(1) of the Act. Unacceptability of risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J); and State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J).
12. An offender may pose an unacceptable risk even where the likelihood of committing another serious offence is low if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43] (Harrison J); and State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73] (Dhanji J).

Statutory preconditions

1. I note that the defendant accepts that the Court could be satisfied that the statutory preconditions for the making of an order are met. In particular, it is accepted that the Court could be satisfied that: 1. The defendant is an "offender" (as defined in s 4A) who has served a sentence of imprisonment for a "serious offence" in custody: s 5B(a). Specifically: 1. He is over 18 years of age (being 32 years old): s 4A(a); 2. He has been sentenced to imprisonment to be served by way of full-time detention following his conviction for a serious offence (namely the sentence of 6 years' imprisonment imposed for the offence of wound person with intent to cause grievous bodily harm commencing 21 October 2016 and concluding 20 October 2022, the index offence: s 4A(b). This is a serious violence offence in accordance with ss 4, 5A(1)(a) and 5A(2A)(c), being a relevant indictable offence that is punishable by imprisonment for life or a term of imprisonment of 5 years or more. 1. He is a "supervised offender" within the meaning of s 5I; s 5B(b). Specifically, he is an offender who, when the application for the order was made, was in custody serving a sentence of imprisonment for a serious offence (namely, the index offence, which was extended to 15 November 2022 following the revocation of parole). 2. The application for the order was made in accordance with s 5I, which is to be read as s 6(1) - that is, the application has been brought within the requisite time period, namely on 9 November 2022, that date being within the last 9 months of the defendant's current custody.
2. Further, pursuant to s 10A(a), I am satisfied that the defendant's current custody or supervision will expire before the proceedings are determined, namely on 12 July 2023.
3. The only remaining question in order to determine whether the ISO and the orders for examination by experts should be made under ss 7 and 10A of the Act is the question of whether, on the final hearing of this summons, if the matters appearing in the materials now provided to the Court are accepted and prove the facts to which they refer, whether the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision: s 5B(d) of the Act.
4. I have considered the factors set out in sub-ss 9(2) and (3) of the Act. In my view, that proposition has clearly been established by the material tendered and it is not in dispute by the defendant who, as I have indicated, is represented by counsel.
5. The material tendered before me at the hearing includes material which shows that the defendant had committed acts of violence on several occasions against several different people, ranging from close family members to strangers. He has been assessed as being at high risk of further violent offending. He has had his parole revoked on two separate occasions. The judge who sentenced the defendant for the index offence noted the defendant's unstable upbringing, his propensity towards violence in intimate relationships, his poor compliance with previous community service orders, his past association with an outlaw motorcycle gang, his long periods in custody relative to his age, and his several acts of violence whilst in custody. He noted the significant need for specific deterrence arising from the defendant's persistent, continued, and repetitive threats of violence, acts of intimidation and physical assaults together with his overall criminal history.
6. The defendant's criminal history dates back to the age of 19. A number of violent crimes are set out, including an affray in 2012 in a licensed premises, an assault in 2013 involving his then partner which involved kicking her and throwing her against a car and slamming her head into the car, an assault of his mother in 2013, an assault of his then pregnant former partner in 2013 where he pushed her more than once ultimately rendering her unconscious, an offence of contravening an apprehended domestic violence order in 2016 in the presence of his children, offences in 2016 in an apartment building where a resident of the apartment made eye contact, then tried to walk away from the defendant after the defendant asked him if he had a problem with him and the defendant ended up chasing the victim and also swinging a steel sharpening tool towards him, slashing his stomach.
7. The offending has often involved a weapon, including a knife. In several violent incidents he used a weapon available to him in the immediate vicinity, including a knife found in the kitchen where the incident occurred, in another, a small glass vase which he smashed, and in another, a steel sharpening tool.
8. In several instances, his offending has been accompanied by or precipitated by illicit drug taking. The defendant has acknowledged a connection between his drug taking and his violent offending and the risk assessment report also acknowledges the link. The defendant also acknowledged that he struggled to cope upon his recent release to parole and the author of the risk assessment report has identified the principal risk scenario as being a return to his pre-custodial lifestyle on release which might trigger a cascade of consequences, culminating in violent offending as a result of a deterioration of his mental health leading towards maladaptive coping techniques. This in turn would heighten his tendency to impulsive and reactive aggression.
9. The defendant has successfully completed several custodial training programmes but has refused to participate in the Violent Offenders Therapeutic Programme or VOTP. As noted, he has a poor history of compliance with conditions imposed under other regimes although he has never been the subject of an ESO.
10. I am satisfied that if the material that has been provided, which also includes risk assessment reports and risk management reports prepared by psychological professionals of Corrective Services, is made good on final hearing, the Court would be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision.
11. It is appropriate therefore to make orders 1 and 2 as sought by the plaintiff in the summons, together with the ancillary relief sought in order 4. As order 2 makes clear, the ISO is subject to conditions and the plaintiff has proposed a number of conditions. The defendant accepts some of those conditions but opposes some in part or in whole. I have had the benefit of detailed written and oral submissions in relation to those contested conditions and I have also been provided with a document which helpfully explains the differences between the two parties. I will now deal with the contested conditions.

Condition 5

1. Condition 5 involves electronic monitoring. The plaintiff proposes this, "the defendant must wear electronic monitoring equipment as directed by a Departmental Supervising Officer (DSO) and must not tamper with, or remove, the equipment". The defendant suggests this should be modified by only making it a condition if the DSO directs it in certain situations including if the defendant is charged with an offence of breaching the ISO or ESO or charged with a serious indictable offence involving violence, or the DSO is reasonably of the opinion that it is required because of a significant increase in the defendant's risk of committing a serious offence.
2. I am of the view that the original condition is the appropriate condition. The relevant time of the risk assessment is now, when I am considering it, not at some future time when the DSO might be considering it. Authority for the fact that it should be regarded as a determination now and that the provisions are in the present tense is available in Tannous v State of New South Wales (2020) 103 NSWLR 183; [2020] NSWCA 261 at [17] (Basten JA, McCallum JA agreeing at [72], Simpson AJA agreeing at [73]).

Condition 6

1. The next contested condition is condition 6. That relates to providing a weekly plan. The proposal by the plaintiff is this, "if directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start". The modification suggested by the defendant is in similar terms to the modification in relation to condition 5 and I reject it for the reasons I rejected the modification suggested in relation to condition 5, but also because the current wording suggested by the plaintiff includes the words "if directed". I note that those words not only provide discretion, but that discretion is, in some ways, guided by departmental guidelines.

Conditions 7 and 8

1. Modifications are suggested in relation to condition 7 and condition 8 but because I have accepted the original wording of number 6, in my view the original wording of 7 and 8 is the appropriate wording. Condition 7 would read: "If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from the DSO about the change 24 hours in advance, unless the DSO approves the shorter period."
2. Condition 8 should read: "The defendant must not deviate from his approved schedule of movements except in an emergency."

Conditions 4, 11, 23 and 24

1. I note just for completeness that condition 4 was originally opposed but the State does not press it. Condition 11 was originally opposed but the State does not press it. I go to condition 23 and I note that conditions 23 and 24 have been modified in a way that is acceptable to the defendant and there is now no contest. Condition 23 would now read: "The defendant must not possess or use prohibited drugs or drugs unlawfully obtained. The defendant must not abuse lawfully obtained drugs or medication."
2. And in relation to condition 24, that should now read: "The defendant must not possess or consume alcohol without the prior approval of a DSO."

Condition 28

1. The next contested condition is condition 28 involving the association with children. The plaintiff proposes that it should read: "The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, which requirements are in each case to include that the contact takes place in the presence of an adult who has been approved in writing by a DSO."
2. The defendant opposes this on the basis that there is no allegation in the defendant's history ever of interfering with children in any way or being violent towards children albeit acknowledging that sometimes offending has occurred in the presence of children. In my view, condition 28 is more appropriate in a case of someone who has a history of offending against children or has an interest in some way in children in an unlawful manner. I am not of the view that this condition is required in the circumstances of this case and I decline to make condition 28.

Condition 30

1. Proposed condition 30 is agreed but it should read "without limiting condition 29", instead of "27".

Condition 31

1. The plaintiff agrees to the defendant's proposed amendments such that condition 31 now reads: "The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary to address a risk of the commission of a serious offence. Before any disclosure is made, the defendant must first be informed and given the opportunity to make the disclosure himself."

Condition 36

1. The next condition, which actually was not contested, but I raised concerns with part of it, is condition 36. There is a slight typographical alteration at the beginning which should read "without limiting or altering condition 35" rather than "32" in its current iteration. But the more substantive change to the condition, which both parties agree is appropriate after submissions, is this. I will read out the condition 36 as it would currently read: "Without limiting or altering condition 35, the defendant must not possess or use any of the following without a DSO's prior approval: (a) an article or device, not being such a firearm, that is designed or intended as a defence or anti-personnel spray and that is capable of discharging by any means: (i) any substance capable of causing bodily harm. (b) a knife (other than one designed for use in connection with food preparation or consumption and being used in the course of food preparation or consumption), a machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened; (c) any other implement made or adapted for use for causing injury to a person; (d) anything intended, by the person having custody of the thing, to be used to in injure; or menace a person or damage property."

Conditions 37 to 48

1. I now turn to a number of contested conditions all involving computers, mobile phones and other communication devices and related matters. It is to be noted that the proposed condition 37 is not opposed by the defendant. That reads: "The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices and applications used, method of communication, access to the internet, user and internet provider information, allowing remote access and restrictions on deleting information."
2. The plaintiff proposes a series of individual conditions to include further and more detailed conditions in relation to those matters that have already been generally dealt with in the proposed condition 37.
3. Conditions 38, 39 and 41 go to providing that the defendant should comply with detailed conditions involving identification requirements. Condition 43 provides a condition that a defendant must not use any coded or encrypted messaging application or service without prior approval. And condition 44, that the defendant must provide any code or encryption key for any electronic data or any electronic communication if discovered on any device as a result of a search or remote inspection.
4. Proposed condition 46 provides that the defendant must provide consent for a DSO or any delegate to remotely inspect any internet account used by the defendant, including any internet service provider or account, email accounts and social media accounts in monitoring compliance with this order.
5. The defendant makes the point that condition 37, which is not opposed, adequately deals in the circumstances of this case with the risks posed by this defendant and that the additional conditions suggested by the plaintiff are overly complicated and lack clarity and simplicity. That is the case in a circumstance where there has never been an allegation that the defendant has been involved in offending involving false names, encryption and the like.
6. I am of the view that the defendant makes a cogent point and, given the nature of the risk posed by this particular defendant, that the proposed condition 37 is more than adequate, as the Court is currently informed, with dealing with his risks. I decline therefore to make conditions 38, 39, 41, 43, 44 and 46, noting that the plaintiff already did not press conditions 40, 42, 45, 47 and 48.

Condition 52

1. I now turn to condition 52 and I note that the plaintiff accepts the defendant's proposed amendments such that condition 52 would now read: "The defendant must, as soon as reasonably practicable, notify a DSO of any significant change in his appearance."

Condition 58

1. I now go to condition 58 and, again, the plaintiff agrees with the proposed amendment by the defendant such that condition 58 would now read: "The defendant must notify a DSO as soon as reasonably practicable if he ceases to take or declines to commence taking any medication as referred to in the above condition."

Conditions 59, 60 and 61

1. I now turn to the final three contested conditions and they are conditions 59, 60 and 61. These relate to the provision of information, broadly speaking, between healthcare practitioners, service providers and also, in certain circumstances, to the DSO, the police and to Corrective Services, and also in relation to his criminal history in certain circumstances to healthcare professionals.
2. The defendant proposes amendments which would essentially pare back these conditions. Condition 59 currently reads: "The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with the DSO."
3. The defendant proposes that the relevant service providers and health care practitioners should be restricted to psychologists or psychiatrists and only to the extent that is relevant to his risk of re-offending or rehabilitation.
4. I am of the view that, given the nature of the risk posed by this defendant, that it is too restrictive to restrict it to psychologists or psychiatrists or even to a larger group, for example people who provide drug rehabilitation or even GPs because, for example, healthcare practitioners could also include pharmacists and no doubt people who administer buprenorphine and the like. I am of the view that if one restricted these conditions to all of those specified roles, it would be so complicated that it would not be a useful condition in those terms.
5. I am of the view that it is appropriate to impose a condition in the original terms sought by the plaintiff, but with the added words "to the extent that it is relevant to his risk of re-offending or rehabilitation". Those words are added in part to give comfort to the defendant that that information, whilst being shared and is otherwise intrusive, is not at large and appropriately deals with the risk as identified.
6. As to proposed condition 60, the plaintiff proposes that it reads: "The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, New South Wales Police Force and Corrective Services NSW."
7. The defendant seeks that the words be added, after some discussion, "to the extent that it is relevant to his risk of re-offending or rehabilitation". I am of the view that that is an appropriate qualification and would give, again, some comfort to the defendant that there is some restriction albeit there is still the appropriate ability to share information as required to mitigate risk.
8. The final condition is 61, the plaintiff seeks or suggests a proposed amendment to its own original condition in these terms: "The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him to the extent that a DSO considers it is relevant to his risk of reoffending or rehabilitation."
9. The defendant wishes to restrict healthcare professionals to those who are only psychological or psychiatric professionals. I am of the view that it is appropriate to keep the healthcare professionals at large given that healthcare professionals would be treating the defendant in a number of different scenarios and it is appropriate to craft the condition in wider terms to appropriately address the risk posed by this defendant.
10. Otherwise, I impose the conditions as sought and not opposed by the defendant, and I will set them out in the written copy of the judgment when it is published.

Orders

1. Accordingly, I make the following orders: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): 1. Appointing two qualified psychiatrist or psychologists (or any combination of two such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. Directing the defendant to attend those examinations. 1. An order: 1. Pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order ("the interim supervision order"); 2. Pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days; and 3. Pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this judgment. 1. An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. Schedule of Conditions (Silapa Preliminary) (22511, docx)

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: 04 July 2023