State of New South Wales v Silapa - [2024] NSWSC 1151 - NSWSC 2024 case summary — Zoe

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State of New South Wales v Silapa

[2024] NSWSC 1151

Supreme Court of NSW|2024-09-03|Before: Walton J, McNaughton J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2024-09-03

Before

Walton J, McNaughton J

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

JUDGMENT

By way of a Summons filed on 9 November 2022 the plaintiff, the State of New South Wales ("the State") sought interim, interlocutory, ancillary and final relief against the defendant, Tum Silapa ("the defendant").
After a preliminary hearing, McNaughton J granted interim and interlocutory relief by the appointment of two qualified psychiatrists or psychologists and the making of an interim supervision order ("ISO"): State of New South Wales v Silapa (Preliminary) [2023] NSWSC 760 ("the preliminary judgment").
The present proceedings concern the application for final relief. By that final relief, the plaintiff sought: 1. An order pursuant to ss 5B and 9(1)(a) of Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") that the defendant be subject to an extended supervision order ("ESO") for a period of 3 years (order 3(a) of the Summons); and 2. An order pursuant to s 11 of the Act, directing that the defendant, for the period of the ESO, comply with the conditions set out in the amended schedule to the summons (order 3(b) of the Summons).
I will commence with some background considerations which require explanations in the light of the agreed facts provided by the parties.
The defendant is a 33-year-old male with an extensive history of violent offending in a domestic context, including being convicted of a 'serious violence offence' (as it is defined in s 5A(2A)(c) of the Act). That offence (the index offence) involved one count of wound person with intent to cause grievous bodily harm. In that respect, the defendant was sentenced to a term of imprisonment for 6 years which commenced on 21 October 2016 and expired on 22 October 2022. This was followed by a further conviction for common assault and stalk/intimidate which were committed on 27 November 2021 ("the November 2021 offences"). That latter sentence resulted in a sentence of 18 months imprisonment that concluded on 12 July 2023. That sentence was made partly concurrent and partly consecutive with the index offence.

[3]

Subsequent offending

The Police Facts of the November 2021 offences alleged the following: The victim was a security guard at a hotel who informed the defendant he was not welcome in the hotel. Without warning, the defendant punched the victim in the head. As the defendant was leaving he yelled "we are going to come back and put a bullet in your head. We will shoot this place up".
On 7 February 2023, the defendant was charged with further offences (assault occasioning actual bodily harm, common assault and stalk/intimidate), involving his partner (H 75755875). He was convicted of assault occasioning actual bodily harm and stalk/intimidate and sentenced on 17 October 2023 to an aggregate sentence of 16 months imprisonment, with the non-parole period of 12 months to expire on 5 May 2024. An appeal was subsequently unsuccessful. An ADVO was also made, for a period of two years.
The facts of this offence are described in the hearing transcript from the Local Court proceedings. On 6 February 2023, the defendant was at his partner's apartment. During this time the defendant and his partner got into an argument and the defendant punched the victim six to seven times (the assault occasioning actual bodily harm charge). After this the defendant acquired a knife from the kitchen and was standing over the victim (the stalk/intimidate intend fear of physical etc harm (domestic) charge).
On 8 January 2024, the defendant was charged with contravention of the ADVO and was remanded in custody, bail refused. He pleaded guilty to this offence on 28 May 2024 and was sentenced to a 12-month Community Corrections Order commencing on 28 May 2024 and concluding on 27 May 2025.
On 29 May 2024, the defendant was charged with further offences, namely, contravene restriction/prohibition in ADVO and stalk/intimidate intending to cause fear of physical or mental harm (domestic violence) (H 81669763). The defendant has pleaded not guilty in relation to this offence. He has not applied for bail and is consequently bail refused in relation to these offences. These matters are listed for hearing on 16 October 2024 before the Local Court at Kempsey.
On 31 May 2024, an ADVO application was made for the protection of the defendant's partner and a provisional order was made (orders 1, 2, 9 and 10).
The defendant has outstanding charges for contravene prohibition/restriction in ADVO and stalk/intimidate intend fear physical harm (domestic violence) (H 81669768) and contravene prohibition/restriction in ADVO (H 96807006). The defendant has entered a plea of not guilty in relation to each of these charges and they are both next listed before the Local Court at Kempsey on 16 October 2024 for hearing. The defendant has not applied for bail in relation to these offences and consequently is bail refused. As a result, the defendant's ISO made by McNaughton J at the preliminary hearing remains wholly suspended.
An application for an ADVO has been taken out against the defendant for the protection of his partner and a provisional ADVO is in place. This matter has been listed for mention on 16 October 2024 before the Local Court at Kempsey.
The defendant's first violence conviction was recorded in 2010 (common assault), with an accompanying stalk/intimidate conviction. He has subsequently had convictions for affray, common assault (x3), breach ADVO (x6), stalk/intimidate (x3), and armed with intent to commit an indictable offence.
The defendant has refused offers to participate in the Violent Offenders Therapeutic Program ("VOTP") in custody, most recently in 2020 and 2021. He also has a history of illicit drug use and has also failed to maintain consistent engagement with the need for Buvidal injections in the community and has a history of parole breaches. The defendant's violence has been perpetrated in various contexts, including the domestic context, against his partner, acquaintances and strangers.
Whilst in custody, the defendant incurred 25 institutional misconduct charges the majority of which related to intimidating, fighting, assaulting and possessing offensive weapons/instruments.

[4]

The statutory scheme

The Act provides a comprehensive statutory scheme outlining the legal test for final supervision orders.
Section 5B of the Act provides that the Supreme Court may make an ESO if it is satisfied: 1. 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 2. the person is a supervised offender (within the meaning of section 5I), and 3. an application for the order is made in accordance with section 5I, and 4. 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.
A supervised offender is defined in subs (2) and (3) of s 5I of the Act to include someone who was in custody or on parole while serving a sentence for a serious offence.
A serious offence is defined in s 4 and includes a serious sex offence and a serious violence offence.
A serious violence offence is defined in s 5A of the Act and includes a serious indictable offence (relevantly, within the meaning of the Crimes Act) that is constituted by a person: 1. 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 2. attempting to commit or conspiring with or inciting another person to commit an offence of a kind referred to in paragraph (a).
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".
Reference should also be made to ss 6 and 7 of the Act which are in the following terms: 6 Requirements with respect to application (1) An application for an extended supervision order against an offender may not be made until the last 9 months of the offender's current custody or supervision. (2) (Repealed) (3) An application must be supported by documentation - (a) that addresses each of the matters referred to in section 9 (3), and (b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a serious offence. (4) An application may indicate the kinds of conditions (in addition to the condition referred to in section 11 (2)) that are considered to be appropriate for inclusion under section 11 in the event that an extended supervision order is made. 7 Pre-trial procedures (1) An application for an extended supervision order must be served on the offender concerned within 2 business days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (2) The State must disclose to the offender such documents, reports and other information as are relevant to the proceedings on the application (whether or not intended to be tendered in evidence) - (a) in the case of anything that is available when the application is made, as soon as practicable after the application is made, and (b) in the case of anything that subsequently becomes available, as soon as practicable after it becomes available. Note - Section 21A (6) provides that the State must not disclose a victim statement to the offender unless the person who made the statement consents to the disclosure. (3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders - (a) appointing - (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application.
The principles applicable to the determination of applications for an ESO are set out in my judgment in State of New South Wales v Ryan [2023] NSWSC 1138 ("Ryan") (at [12]-[19]). I adopt those principles for the purposes for this judgment.

[5]

Pre-Conditions for the making of an ESO

I accept that the preconditions for the making of an ESO in subs 5(a), (b) and (c), 6 and 7 are satisfied in this matter essentially on the basis identified by the parties in a Joint Memorandum of Facts and Issues document.
I am satisfied that: 1. The defendant is an "offender" (as defined in s 4A of the Act) who has served a sentence of imprisonment for a "serious offence" in custody (subs 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 index offence): s 4A(b). 1. The defendant is a "supervised offender" within the meaning of s 5I (s 5B(b) is met). 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 his parole). 2. The application for the order is made in accordance with s 5I: s 5B(1). 3. The application has been brought within the requisite time period (namely, on 9 November 2022), being within the last 9 months of the defendant's current custody: s 6(1).
There was no dispute in these proceedings that the Court may be satisfied of the precondition in s 5B(d). Nonetheless, it is a matter for the Court to 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: subss 5B(d) and 7(4).
I have nonetheless formed the view that the precondition in subs 5B(d) is satisfied. As a preliminary to the basis for that conclusion I note my acceptance of the summary of factors provided by the defendant in the preliminary hearing (albeit without concession in the final hearing) as follows: 1. The defendant's criminal history and pattern of offending: s 9(3)(h). 2. The defendant's poor compliance when previously released on parole: s 9(3)(f). 3. The assessment that the defendant's risk of further violence offending is high using the Violent Risk Scale assessment tool ("VRS") and his score on the Violence Risk Appraisal Guide - Revised being equal to, or higher than, the score of 77% of the construction sample: s 9(3)(d). 4. The assessment that the defendant has a range of criminogenic needs: s 9(3)(c).

[7]

Expert Reports

Before turning to the particular considerations arising with respect to my conclusions under s 5B I propose to summarise the reports of the experts appointed through the orders of McNaughton J.
On 21 February 2022, Ms Cherice Cieplucha, Chief Psychologist of the Risk Management Programs, prepared a Risk Assessment Report ("RAR") pursuant to subs 6(3)(b) of the Act. Ms Cieplucha interviewed the defendant for 3 hours. Ms Cieplucha: 1. Assessed Mr Silapa as posing a high risk of committing further violence based upon the following risk assessment results: 1. Level of Service Inventory Revise ("LSI-R"): medium risk category. 2. Violence Risk Appraisal Guide - Revised ("VRAG"): seventh out of nine "bins" (the ninth "bin" being the highest). 3. VRS: high risk range. 1. Found that the following dynamic factors were relevant when considering the defendant's risk of violent reoffending: 1. Violent lifestyle and criminal peers 2. Criminal attitudes and cognitive distortions 3. Interpersonal aggression, emotional control and impulsivity 4. Substance abuse 5. Relationship instability 6. Poor mental health 7. Violence during institutionalisation and weapon use 8. Violence cycle, insight into violence, release into high-risk situations 9. Compliance with supervision and work ethic 1. Considered that the most likely risk scenario involved violence re-offending in the context of poor coping, contact with criminal and substance-using peers and return to an antisocial lifestyle. Under such circumstances, Ms Cieplucha considered that the defendant would be more likely to act out aggressively or violently in response to perceived provocation or to demonstrate loyalty to a family member. Ms Cieplucha considered that a lapse into substance use and/or a decline in his mental health would indicate a heightened risk of violence or reactive aggression particularly when disinhibited by substances. Ms Cieplucha considered that future acts of violence could involve the opportunistic use of a weapon. Ms Cieplucha considered that such violence could also occur in the context of an intimate relationship if he is not managing his mental health, experiencing stress and abusing illicit substances. Early warning signs including controlling and intimidating behaviours, including the use of threats and verbal abuse.

[9]

Report of Mr Sheehan

Mr Sheehan summarised his opinion at page 5 of his report in these terms: "[The defendant has a] history of repeated recorded violence since the age of 19 years, having been sentenced on 13 occasions for violence related offending, including a serious violence offence as per the Crimes (High Risk Offenders) Act 2006. He has offended in the context of family violence, gang violence, partner violence, and violence against strangers. His violence offending has been underpinned by a composite of factors, including: trauma symptomology (particularly affective instability, hyperarousal and exaggerated threat perception), personality variables (antisocial personality characteristics, insecurity, grievance), a social milieu permissive of violence (particularly gang affiliation) and substance use disorder (further destabilising him emotionally and disinhibiting impulses). I have assessed Mr Silapa as being in the high risk category for violence reoffending. Although his highest risk relates to less serious violence offences, his risk also extends to a serious violence offence, as per the Act".
In identifying the pattern of the defendant's return to offending after release, Mr Sheehan added that "I see no evidence to suggest that Mr Silapa is better prepared to adapt to lawful community life at the present time, than he has at his past few releases" and indicated that in his view standard parole supervision had fallen short and more intensive supervision was required.
Mr Sheehan found no evidence of a neurodevelopmental disorder.
The defendant was raised by his mother and grandmother with two half-brothers and his father ceased contact when the defendant was aged 8. He then suffered ongoing violence from his stepfather and sexual abuse from an unnamed person between the ages of 6-8. His mother was named as the person in need of protection in an AVO in the defendant's late teens. They have now resumed contact. He mainly lived with his partner when in the community, at a non-approved address. One of his brothers has a criminal record and gang affiliation.
The defendant completed year 12 at High School but said he concentrated on rugby league (playing in Melbourne under contract for a year). He has never held a driving licence and has not worked for the last ten years (spending most of it in custody). He has had some employment in custody, but institutional misbehaviour has limited this.
Once his rugby league career faltered, he became sergeant at arms for the Hells Angels OMCG, then moved to the Outcasts gang, with which he maintained an association in custody. He acknowledged keeping contact with drug associates after his last two releases and said that, if it were not for parole or an ESO, he and his partner would move to Melbourne to escape negative influences.
The defendant presently maintains an association with church. He has recently been charged with offences relating to his interactions with his partner, which he had been advised not to discuss. He reported problems over the years with despair and reactive anger and in Mr Sheehan's opinion reported symptoms consistent with PTSD, which he believed were now interwoven into the defendant's personality and perception of himself. He denied feelings of depression since 2013 and had no suicidal ideation since then either.
The defendant has a significant polysubstance history, primarily injecting methylamphetamine in the community and using buprenorphine in custody. He relapsed to drug use on release on the last two occasions and is currently taking Buvidal as an opioid replacement therapy. He completed the 'Explore, Question, Understand, Investigate, Practice, Succeed ("EQUIPS") Addiction program' in 2020.
Mr Sheehan considered that the defendant met the criteria for polysubstance use disorder. He did not consider a diagnosis of Antisocial Personality Disorder should not be made.
Mr Sheehan considered that the defendant continued to struggle with personality vulnerabilities, leading to poor decision-making, insecure personal relationships and intermittent poorly controlled anger reactions where he perceived he was being belittled or wrongly treated. The defendant's explosive temper was directly linked to his risk of a serious violence offence and Mr Sheehan recommended consulting with a skilled GP or psychiatrist to discuss mood stabilising medication.
Mr Sheehan noted the defendant's criminal record was almost exclusively for violence offences, mostly expressive violence and acting out aggressively, towards people both known to him and towards strangers, as well as domestic violence. Some offences involved weapons, and some appeared to be instrumental violence (including the index offence).
Mr Sheehan noted the conditions of a Community Correction Order to which the defendant is subject until May 2025. He described the defendant's institutional behaviour as "poor", with the majority of the infractions related to aggression and most of the violence directed at other inmates in the context of gang violence.
Mr Sheehan noted that the defendant was among a group of inmates allegedly involved in an attack on an inmate who suffered nine stab wounds, a facial fracture and head injury. The defendant does not appear to have been charged by police in relation to this matter. In August 2018 the defendant was involved in another attack and was found in possession of a "shiv". In May 2019, he was a 'witness' to an attack where three "shivs" were used. Mr Sheehan noted a reduction in frequency of institutional charges in recent years.
Mr Sheehan regarded the defendant as having poor compliance with supervision. He noted breaches and revocation reports in 2013, 2014 and 2015 and 2016; poor compliance in 2021 and 2022 on parole and being charged in February 2023 with domestic violence offences.

[10]

Treatment

Mr Sheehan noted the defendant's completion of the EQUIPS Aggression program and the EQUIPS Foundation program in 2019 but noted that the defendant had declined to participate in the greater intensity VOTP program in 2019. The defendant stated that he would need to defend himself physically from other violent offenders on the program. He refused offers to participate again in 2020 and 2021. Mr Sheehan noted that Community Corrections notes suggest that the defendant had also refused to enter treatment for psychological support and anger management in the community.
Mr Sheehan noted the limitations of these risk assessment tools. Mr Sheehan administered the VRS, which assesses both static and dynamic risk factors. The defendant scored in his risk for violence in the high range.
The following dynamic risk factors were identified: 1. The defendant has a 'violent lifestyle', using it instrumentally (to obtain what he wants), to establish dominance, resolve difficulties, express anger and protect those close to him; 2. He has upheld a value system embedded in criminal subculture and although he has expressed ambivalence about this, has yet to demonstrate this in the way he lives; 3. His recent lifestyle has been parasitic, with sporadic institutional employment. There is only partial evidence of a well-developed work ethic; 4. Association with criminal peers remains a key feature of his risk profile; 5. Interpersonal aggression used habitually and extensively across contexts including family and relationships; 6. Emotional "dyscontrol" appears to be a feature of the majority of the defendant's behaviours, with an explosive temper the primary factor in domestic violence; 7. The defendant had displayed 'violence during institutionalisation'; 8. The defendant has a significant history of 'weapon use', with the index offence involving a stabbing, and he has a history of threatening to shoot people and had a firearms prohibition order made against him in 2014; 9. The defendant showed only partial insight into his violence history, nominating external factors such as drug intoxication, unfair treatment or the need to protect people, and has offended violently since completing relevant treatment. There was a sense of helplessness in how to take direct action to offset his correlates of violence; 10. Mr Sheehan drew an association between mental disorder and violence, noting previous depressive disorder and hospital admissions, with a trauma-related disorder secondary to childhood trauma. The defendant, in Mr Sheehan's view, has an unresolved trauma-related hyperarousal, exaggerated threat perception and aggressive behaviour; 11. The defendant has a 'substance use' problem linked to violence, including creating links with other antisocial men, causing him to stand over other inmates and destabilising him emotionally. Prior releases into the community have seen rapid relapse; 12. The defendant's 'stability of relationships' has been characterised by instability and partner violence and he remains poorly equipped to meet the emotional demands of relationships; 13. While the defendant has 'community support', he has been reluctant to engage with professional community supports; 14. The defendant's proposed release to live with his partner suggested a 'high risk situation'; 15. The defendant's violence remains embedded in a cycle of fearfulness/insecurity, overcompensated for by a need to present as powerful/fearless, further disinhibited by drug use, avoiding responsibilities, engaging in unstructured spontaneous activity and associating with antisocial influences; 16. The majority of the defendant's violence has been associated with 'impulsivity'; 17. The defendant's 'cognitive distortions' revolve around disrespect and dominance, legitimising violence; 18. The defendant has a poor history of 'compliance with supervision'; and 19. The defendant's 'security level of release institution' was regressed to medium security this year.
The defendant, in Mr Sheehan's view, could be described as being in the contemplative stage of working towards change of target issues, for several years. The defendant did have protective factors but has shown poor capacity to use these supports, and he has similarly shown problems translating his desire to overcome his self-defeating patterns into actual behaviour change.
Mr Sheehan concluded that there was little evidence to show that, in the absence of intensive supervision, the defendant would be capable of independently establishing a lifestyle that could protect against his violence risk factors. The defendant was mostly at risk of violence offences that would fall short of a "serious violence offence", however, there were several elements that made a "serious violence offence" more probable, including weapon use, group assaults, assaulting women when they are pregnant and the defendant's tendency to pursue victims when they run away.

[13]

Report of Dr Dayalan

Dr Dayalan recorded a broadly similar background history to that disclosed by the defendant to Mr Sheehan. However, the defendant clarified that his stepfather had been the perpetrator of the childhood sexual abuse. The defendant disclosed a few suicide attempts around the age of 20. A history of panic attacks was noted. The defendant said that when he gets anxious, he becomes irrational in behaviour and gets in trouble with the law. There was no history of psychotic symptoms.
The defendant reported difficulty in trusting people. He admitted that his anger management had worsened as an adult. He attributed his present low and anxious mood to being incarcerated. His self-esteem was low. He wanted to start a family with his partner on release and to secure a legitimate job. He expressed concerns that he would associate with antisocial peers if he returned to his old neighbourhood and wished to move to Victoria.
The defendant said he used illicit drugs to stop intrusive thoughts. He said he started drinking alcohol at age 15 but did not regard his use as problematic. He started using cannabis at age 17 and progressed to cocaine, benzodiazepines and methylamphetamine at the same age. He began using intravenously around the time he lost contact with his children. His plan for avoiding relapse was to move away from his usual area of residence.
The defendant recalled his first conviction had been in relation to a family friend, in a domestic context, affected by substances. He was also intoxicated by alcohol for the affray. He claimed that his domestic violence charges related to child access with his ex-partner and accepted that his behaviour was impulsive and reactive. He denied having assaulted his most recent partner.
As for the index offence, the defendant said that his cousin had got into an altercation with the victim and the defendant had stepped in. He said he had been under the influence of cocaine, methylamphetamine and benzodiazepine. He picked up the knife in the kitchen. He considered that the victim may have been "deeply impacted" by the assault. He claimed that the fights in custody were largely related to self-defence. He claimed to be motivated to change but also accepted that he continued to be quite reactive and hot-headed.
Dr Dayalan considered that from the information provided the shame and guilt associated with the sexual abuse had hindered access to appropriate support. Dr Dayalan considered that the defendant had an impaired ability to regulate his emotions and behaviour, with emotional instability, poor impulse control, difficulty controlling anger, and a pattern of unstable relationships all being characteristics of Borderline Personality Disorder ("BPD"). Dr Dayalan also considered that the defendant suffered from PTSD and a substance use disorder, with a strong craving to use substances to reduce emotional distress noted. There was insufficient evidence to support a conduct disorder in childhood and accordingly a diagnosis of antisocial personality disorder could not be made.
The defendant said that he regretted not doing the VOTP course, claiming that he had been reluctant to transfer to Sydney because of gang affiliations.
Dr Dayalan noted the limitations associated with risk assessment tools. He used a structured clinical judgment tool (HCR-20 V3) and the Violence Risk Appraisal Guide (VRAG-R) to assess risk.
As to VRAG-R: Dr Dayalan considered that the defendant fell in the high-risk category for future violent behaviour.
As to HCR-20 V3: Dr Dayalan identified the relevant historical and clinical factors and future risk management variables as follows: Historical risk factors were problems with violence and other antisocial behaviour, problems with relationships and employment, substance use disorder, BPD, traumatic childhood experiences, problems with violent attitudes and with treatment and supervision response. Dr Dayalan described this as a high loading of historical risk factors.
Clinical risk factors included partial insight into the risk of violence and substance use, that there appeared to have been some reduction in the defendant's violent intent in recent months and that the defendant presented with ongoing emotional, behavioural and cognitive instability. Problems with supervision and response to treatment were noted in the last six months. Dr Dayalan considered that the defendant had a moderate to high loading of clinical risk factors.
Assuming the defendant was released in the next six months under a supervision order, Dr Dayalan considered that the defendant's fluctuating attitude towards engaging in treatment and rehabilitation and perception that the receipt of mental health treatment would be negatively perceived by his peers, could pose challenges to professional services and plans. Problems with living circumstances could also be anticipated given his itinerant lifestyle and unstable relationships.
Whilst there was personal support from his partner and family, there was a risk of association with antisocial peers if the defendant is not closely supervised. The defendant's response to supervision and treatment in the future would be influenced by the level of monitoring and support received. Intermittent problems with compliance were anticipated and the defendant had limited strategies to manage stress and had largely relied on substances in the past. The defendant was also institutionalised and community placement would result in increased stress levels.
Dr Dayalan considered that the defendant had a high loading of static and historical risk factors and presented with a number of unaddressed dynamic risk variables. The defendant's violent behaviour had been pervasive in nature. Dr Dayalan thought that a more comprehensive approach to supervision and support may improve the prospects of engaging the defendant in interventions to address his criminogenic needs.
Dr Dayalan concluded that the defendant "presents with a high loading of historical/static risk factors and sufficient number of dynamic risk factors to cause concern that he has an increased risk of committing a further serious violence offence". External circumstances could significantly influence the level of risk, including strained relationships with his partner and parents, association with antisocial peers, unstable accommodation and lack of supervision, which would all increase the risk of the defendant committing a serious violence offence. Relapse into substance use and disengagement from treatment would also increase the level of risk.
Dr Dayalan considered that increased irritability and propensity for aggression were factors common to PTSD and BPD. Substance use had been associated with some of the past violent behaviour. The defendant would benefit from acquiring distress tolerance skills before undertaking any trauma related work and would also benefit from antidepressant medication. Dialectical behaviour therapy was recommended, along with Buvidal injection and a drug rehabilitation program. Effective treatment of these issues may reduce the level of risk.
Dr Dayalan's view was that the risk factors relevant to the defendant committing a serious violence offence were unlikely to be managed in the community without an ESO being imposed, but that it could not be stated with certainty that the relevant risk would be managed under an ESO. The comprehensive conditions and close/regular monitoring would be the most effective means of managing that risk.

[15]

Section 5B(d)

The fact that the defendant may have been convicted of a single serious violence offence under the Act does not preclude a finding that the conditions under s 5B(d) are satisfied. Each case will turn on its own facts and the Courts assessment of the likelihood of risk and consequences should the offence eventuate.
In State of New South Wales v Kamm (Final) [2016] NSWSC 1, Harrison J (as his Honour then was) repeated a submission made by the State in his Honour's judgment which has relevance, namely (at [41]): "The determination of what is an unacceptable risk may require consideration of various factors (such as the perceived likelihood of recidivism and the type and nature of offences that may be committed absent supervision), and may entail a balancing of factors in cases where they might point towards differing outcomes (such as a low risk of recidivism versus likely drastic consequences to the victim if an offence occurs). Clearly, any analysis of the concept of unacceptable risk involves recognition that there will be a range of factors affecting risk and some cases that are more obvious examples of unacceptability than others."
The defendant's conviction of a "serious violence offence" (as defined under the Act), occurred against a background of diverse instances of violent offending, some involving weapons (including a knife in the index offence), unresolved issues, repeated breaches of parole, domestic violence and drug use.
The Court-appointed experts have each assessed the defendant as being a high risk of further violent offending. Mr Sheehan considered that the risk extended to serious violent offending. Dr Dayalan considered that the defendant "presents with a high loading of historical/static risk factors and sufficient number of dynamic risk factors to cause concern that he has an increased risk of committing a further serious violence offence".
Mr Sheehan concluded that there was little evidence to show that, in the absence of intensive supervision, the defendant would be capable of independently establishing a lifestyle that could protect against his violence risk factors. The defendant was mostly at risk of violence offences that would fall short of a "serious violence offence". However, there were several elements that made a "serious violence offence" more probable, including weapon use, group assaults, assaulting women when they are pregnant and the defendant's tendency to pursue victims when they ran away.
Dr Dayalan's view was that the risk factors relevant to the defendant committing a serious violence offence were unlikely to be managed in the community without an ESO being imposed, but that it could not be stated with certainty that the relevant risk would be managed under an ESO.
Whilst the defendant has completed an EQUIPS Aggression program in custody, he has not completed the VOTP, having declined to enter it.
In identifying the pattern of the defendant's return to offending after release, Mr Sheehan added that "I see no evidence to suggest that [the defendant] is better prepared to adapt to lawful community life at the present time than he has at his past few releases" and indicated that in his view standard parole supervision had fallen short and more intensive supervision was required.
In all of those circumstances, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of further serious offending if not supervised under an ESO.

[17]

Duration of ESO

Counsel for the defendant made the following submissions on the duration of the ESO: 1. The defendant accepted that he required supervision and further rehabilitation. He is willing to submit to an ESO for these reasons. However, a balance needed to be struck between the need to mitigate risk in the short term and the benefit to community safety from the defendant's successful rehabilitation in the long term. 2. An ESO places severe restrictions and obligations upon an individual which, if they were not necessary and sanctioned by legislation, would amount to an extraordinary interference with human rights and personal autonomy. A three-year ESO is likely to be perceived by the defendant as oppressive and may adversely impact his hopes for undertaking rehabilitation and participating in a normal lawful life at the conclusion of the ESO. A shorter duration would afford a greater incentive to the defendant to approach his rehabilitation conscientiously. 3. The defendant has not previously been subject to either an ISO or ESO and as such, has not received the benefit of the intensive supervision offered by the high-risk offender regime. In circumstances where the defendant's likely response to supervision is untested, it is submitted that a shorter duration is appropriate. 4. It is acknowledged that both experts agree with a three-year term. That said, it is submitted that both experts refer to there being a need for a graded reduction in the conditions of the ESO over time. The best means to ensure that the conditions of the defendant's ESO are being appropriately reduced over time (provided there are no problems with his supervision or compliance) is by reducing the length of the ESO imposed. If there are concerns with the defendant's response to supervision or compliance, nothing prevents the plaintiff from seeking a further order at the expiration of the ESO pursuant to s.10(3) of the Act.
The State submitted that the matters of continuing concern would persuade the Court that it should exercise its discretion to make an ESO, for a period of three years.
As is acknowledged in the defendant's submissions, both of the court-appointed experts supported the imposition of an ESO of three years' duration.
Both experts considered that, from a clinical perspective, such a duration would better achieve stability through rehabilitation and mental health treatment. There is a greater opportunity for the development of positive habits. The object of a graded reduction in conditions, recognised as desirable by both experts, can be achieved over the course of a three-year ESO. Ms Slattery-McDonald has explained in her affidavit the graded approach taken to types of conditions.
Further, the risk factors identified in the judgment indicate the desirability of a cautious approach to the release to mitigate matters of ongoing concern. As Mr Sheehan observed, there is little evidence to suggest that the defendant is more able to adjust to community life now than he was under parole supervision. The same may be said for compliance with ADVO's.
In my view, there remains significant concerns as to risk factors and those concerns are ongoing. They require management over time.
In my view, the Court should, in the exercise of it's discretion, make an ESO for a period of 3 years.

[18]

CONDITIONS

As earlier mentioned, the scope of the dispute between the parties as to appropriate conditions was greatly reduced by the final stages of the proceedings. Those positions are, in large part, reflected in the table in exhibit 2 in the proceedings. This schedule contained three columns - the first being the condition sought by the State, the second concerning the position adopted by the defendant (being by way of refinement of the State's position or outright opposition) and the third reflecting any modifications of the State's position with the light of any modifications of the defendant's position in the second column.
The conditions sought may be divided into three broad categories:
The first class of conditions are those which were wholly agreed: 1 - 3, 7 - 9, 11 (in the sense that the condition was not pressed by the plaintiff), 12, 13, 14 (with respect to the amended version of the condition appearing in the third column of exhibit 2), 15 - 19, 21, 24 - 25, 27, 28 (in the sense that the condition was not pressed by the plaintiff), 30 (with respect to the amended version of the condition appearing in the third column of exhibit 2), 31 - 32, 35 - 36, 41 - 48 (in the sense that the condition was not pressed by the plaintiff) and 50 - 58.
The second class of conditions were those which were amended by the entry in the third column of exhibit 2 and formally opposed by the defendant. In oral submissions, the defendant accepted that it would not advance further submissions with respect to this group of matters in the light of the decision of this Court in the State of New South Wales v Lett (Final) [2019] NSWSC 1210 ("Lett") applying the decision of Button J in the State of NSW v Farringdon [2018] NSWSC 874 ("Farringdon"). In Lett, the Court found at [132] - [135]: "132. In State of NSW v Farringdon [2018] NSWSC 874 ("Farringdon"), the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements. 133. In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant reoffending "and thereby aiding his rehabilitation" (at [37]). In applying the "test" set out in Wilde at [53]-[54], his Honour bore in mind "that one can expect the 'Departmental Supervising Officer' (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion" (at [46]). 134. His Honour imposed the disputed conditions for the reasons outlined at [47]-[58]. Button J held (at [59]): [59] …Those of them that do not directly relate to his prior offending do nevertheless relate to preventing its recurrence indirectly, in my opinion. As I say, I am relying upon his DSO to exercise his or her discretion with regards to them in a practical and common sense way. [Original emphasis.] 135. With respect, I accept Button J's statement of principles in Farringdon."
The significance of Farringdon in this respect was that the essential dispute as between the parties in these conditions was the extent to which the discretion of the Departmental Supervising Officer ("DSO") with respect to electronic monitoring, schedule of movement and a curfew (conditions 5, 6 and 10).
The acceptance of the significance of Lett by the defendant may be readily understood having regard to the context of the dispute as to conditions 5, 6 and 10. The dispute between the parties was not whether conditions addressing those matters would be made but rather, essentially, what should be the scope of the discretion afforded to the DSO in the operation, maintenance or relaxation of the condition. The defendant had sought to govern the exercise of that discretion with prescriptive conditions.
In the absence of evidence suggesting the likely misapplication of the discretion, the Court in Lett proceeded upon the basis that the DSO would be expected to undertake the exercise of the discretion in a reasonable, common sense, practical and constructive manner.
It follows that condition 5, 6 and 10 will operate in accordance with the third column of exhibit 2. A similar issue arose with respect to condition 20 but, given the nature of the submissions put in that respect, I will deal with that condition in the course of dealing with disputed conditions.
The third class of conditions concerns disputed conditions per se. Those conditions were: 4 (reporting and monitoring obligations); 22 (finance); 23 and 26 (drugs and alcohol); 29 (association with others); 33 and 34 (gambling); 37 - 40 (access to internet and other electronic communications); 49 (search and seizure) and 59 - 61 (medical intervention and treatment).
I will deal with each of those disputed matters below after dealing with relevant principles. In concluding with those matters, the order of dealing with the parties' submissions may vary depending upon the subject matter under consideration and the way that the parties written and oral submissions were developed.

[19]

Principles

The principles applicable to the imposition of conditions were set out in Ryan at [76]-[77]. I adopt those principles for the purposes of this judgment which are as follows: "76. In considering the imposition of conditions, I note the following principles from Wilkinson set out by Hoeben CJ at CL (as his Honour then was) at [44]: [44] i) Having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however this right is not absolute: State of New South Wales v Donovan [2015] NSWSC 1254 at [83]. ii) In imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [68]. iii) A relevant consideration in imposing conditions is that a breach gives rise to criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]. iv) Conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53]. v) Conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36] to [38]. vi) Conditions must not be unjustifiably onerous or punitive, "[n]either may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision": State of New South Wales v Bugmy [2017] NSWSC 855 at [89]. vii) Conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice": State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]. viii) To ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [129]-[131]. 77. Despite the current matter being a final hearing, I adopt the approach set out in my decision in Boney at [119]-[127], in which the principles for the imposition of conditions are applicable. Those principles are as follows: [119] The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 ("Wilde") held that s 11 vests the Court with a "broad" discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). As mentioned, the purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]). [120] Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to "facilitating rehabilitation" even when they do not personally require an offender to "undertake" rehabilitative steps (at [49]). [121] The Court of Appeal further held at [53]-[54]: [53] Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order. [54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a 'demonstrated' link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30)12 provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant's serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant's association with such groups. [112] During the final hearing, submissions were advanced by the defendant as to State of New South Wales v Sturgeon (No 2) [2019] NSWSC 883 ("Sturgeon") at [99]: [99] The bases upon which conditions are to be regarded as appropriate have been discussed in many cases. It seems that the following matters are regarded as relevant in determining what conditions ought be imposed: (1) an appropriate condition may be one which constrains particular conduct, or else imposes positive conduct obligations which are to be fulfilled: Attorney-General for NSW v Tillman [2007] NSWCA 119 at [10]; (2) the imposition of conditions involves striking a balance between relevant considerations so as to provide an outcome which is "fit and proper": State of NSW v Ali [2010] NSWSC 1045 at [88]; State of NSW v Fisk [2013] NSWSC 364 at [96]; (3) as a breach of a condition has the consequence that an offence is committed, for which a term of imprisonment of up to 5 years may be imposed (s 12 of the HRO Act), there is a need for a proper basis to be demonstrated for a condition to be made in the first place: Ali at [88]; Wilde v State of NSW [2015] NSWCA 28 at [48]; (4) ordinarily, it will be necessary for any condition which is imposed to be related to the mitigation of the identified unacceptable risk which led to the Court's conclusion that the person was a high risk offender: State of NSW v Burns [2014] NSWSC 1014 at [59]; Wilde at [53]; (5) any condition attached to an ESO must address issues relevant too identified risk factors in relation to future commission of serious offences and not criminal offending generally: State of NSW v Green (Final) [2013] NSWSC 1003 at [36]-[38]; Wilde at [45]; (6) any condition which is imposed is not to be unjustifiably onerous or simply punitive: Green at [37]; (7) a condition cannot be simply an expression of the State's paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense, or because it might be a convenient or resource-efficient means for the Department exercising supervision under the ESO: State of NSW v Bugmy [2017] NSWSC 855 at [89]. [123] Counsel for the defendant placed particular reliance on (4), as appears within the above extract from Sturgeon, in conjunction with the principles of Wilde to contend that for each condition imposed "there must be some sort of identification of the unacceptable risk and how that condition goes to it". [124] In light of that submission, I turn to the decision of Button J in State of NSW v Farringdon [2018] NSWSC 874 ("Farringdon"). In Farringdon, the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements. [125] In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant reoffending "and thereby aiding his rehabilitation" (at [37]). In applying the "test" set out in Wilde at [53]-[54], his Honour bore in mind "that one can expect the 'Departmental Supervising Officer' (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion" (at [46]). [126] His Honour imposed the disputed conditions for the reasons outlined at [47]-[58]. Button J held (at [59]): [59] …Those of them that do not directly relate to his prior offending do nevertheless relate to preventing its recurrence indirectly, in my opinion. As I say, I am relying upon his DSO to exercise his or her discretion with regards to them in a practical and common sense way. [Original emphasis.] [127] With respect, I accept Button J's statement of principles in Farringdon."

[22]

Submissions for the defendant

The defendant made the following written submissions in relation to the imposition of condition 4: 1. Condition 4 was deleted by consent at the preliminary hearing. It is now being sought in circumstances where it is alleged that the defendant made threats to harm his then DSO in a recorded gaol telephone conversation with his partner on 28 May 2024. This allegation is contested by the defendant and is listed for hearing at Kempsey Local Court on 15 October 2024. 2. Notwithstanding this allegation, condition 4 is opposed on the basis that it does no more than reflect the ordinary criminal law that applies to every person in New South Wales. 3. In support, reference is made to the decision of KW at [14]-[15]. There, his Honour was dealing with a condition in identical terms and commented, amongst other things, that "the effect of imposing such a condition would be to create an offence, namely a contravention of s 11, with a penalty of five years, in circumstances that would not constitute an offence for any other citizen". His Honour went on to say at [15]: "Recognising the entitlement of the officers to carry out their duties without abuse and the need to support them in their work, nevertheless it is apparent that to impose a condition that would expose the defendant to imprisonment for up to five years if he should adopt an abusive manner that may be perceived as impeding his supervision, would be extreme and out of proportion to the risk. So long as s11 remains in its present form with, no gradation of penalties or exposure to prosecution, the Court is obliged to exercise great caution in imposing conditions that would criminalise conduct that would not be criminal on the part on any other member of the community." 1. The defendant notes that Fagan J's comments in KW have subsequently been followed by McNaughton J in Ayoub at [27]-[28].
These submissions were the subject of expansion in oral submissions which I will refer to in my conclusion that now follows.

[23]

Conclusion

The amended form of condition 4 proposed by the plaintiff was in the following terms: "The defendant must not engage in any threatening or abusive behaviour towards CSNSW or electronic monitoring staff involved in his supervision that could cause a reasonable staff member to fear for their safety and/or interfere with or impede supervision"
The underlining represents the change to the original form of condition 4 proposed by the plaintiff at the preliminary hearing.
Condition 4, in its original form, was not made a condition in the conditions imposed in conjunction with the ISO. That is because the condition was deleted by consent at the preliminary hearing.
As was made clear in the submissions of the parties, the plaintiff now re-agitates for the imposition of the condition because of alleged threats made to the defendants then DSO in a recorded telephone conversation with his partner on 28 May 2024 and his aggressive behaviour towards his "ESO TL" in a phone interview on 25 June 2024.
In the first instance, the plaintiff is alleged to have said in a recorded telephone call to his partner that if he saw his former DSO "I'll fucking blade him". He is also alleged to have said "they think I care I don't care, what are they going to do? fucking throw me in gaol, you fucking gronks?". Finally, it is alleged that the plaintiff stated "that David Ford is a fucking gronk, I'll fucking stab that dog when I see him".
Those alleged statements are derived from a Police Fact Sheet in a Court Attendance Notice with respect to charges laid against the defendant under the Crimes (Domestic and Personal Violence) Act 2017 (NSW) ("CDPV Act") for, inter alia, stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offence) contrary to s 13(1) with respect to his partner. Those events were alleged to have occurred during the course of recorded telephone conversations with his partner on 28 May 2024 which correspond to the allegations concerning the former DSO.
The material concerning the interview of 25 June 2024, is contained within a Case Note report of the New South Wales Department of Corrective Services (NSWCS). The report contained statements that the defendant was yelling at the officer, calling him a liar, talking over the top of the officer and ultimately resulting in the telephone interview being terminated.
It is plain why the plaintiff has revisited the imposition of this condition in these circumstances, not only because there are threats to the safety of a DSO, but also because the defendant was, on the evidence before this Court, impeding his supervision.
However, those considerations need to be assessed in the light of the judgments in KW and Ayoub. In KW, Fagan J was mindful of the need for DSO's to carry out their duties without abuse and threats to their safety and for the effective supervision of persons the subject of an ESO but nonetheless refused the very condition proposed in this matter (or a condition very similar to that condition) upon the basis that the condition would expose the defendant to imprisonment for up to 5 years for a breach if the defendant were to act in an abusive manner. His Honour took the view that, so long as s 11 of the Act remained in its present form without any gradation of penalties, the condition could be extreme and out of proportion to the risk. However, his Honour's ultimate view was that the Court should exercise great caution in imposing conditions that would criminalise conduct that would not be criminal on the part of any other member of the community.
The force of his Honour's observations were readily apparent when reference is made to the circumstances of the interview of 25 June 2024 which did not appear to elevate above aggressive behaviour in the form of yelling although it must be acknowledged that parts of the record refer to threats to officers other than the interviewer on other occasions.
The allegations of threats made on 28 May 2024 are obviously of heightened concern, but the defendant's counsel is correct to submit that the alleged conduct may still fall short of that which may be successfully prosecuted under the CDPV Act.
That position is arguable because, whilst s 13 of the CDPV Act fixes upon conduct akin to that allegedly engaged in by the defendant, the provisions of s 13(1) concern the intention of the person causing another person to have fear of physical or mental harm. In the case of the allegations concerning the telephone conversation of 28 May 2024, the defendant's counsel is correct to fix upon the fact that the gravamen of the allegation concerned the subjective state of mind of the victim.
There are two other considerations that must be taken into account, in this respect. The first is that the condition may not be conducive to a good therapeutic relationship between the defendant and the DSO. The second related consideration, as counsel for the defendant submitted, the condition may simply set the defendant up to fail. That is because one of the essential remedial features of the intensive supervision provided by the ESO is the control and modification of the defendant's largely spontaneous aggressive outbursts and behaviours.
The plaintiff did not contend that the Court should do other than follow KW and Ayoub. However, it was submitted that the application of those judgments would seem to depend on the facts and circumstances of the particular case. That submission must be accepted because, as I have observed, in KW, Fagan J did not create an absolute limitation but suggested the Court was obliged to exercise great caution in imposing conditions that would criminalise conduct that would not be criminal on the part of any other member of the community.
The particular features of this matter which the plaintiff submitted might nonetheless compel the inclusion of the provision such as the one proposed were as follows: 1. The conduct alleged against the defendant involves very significant issues relating to the safety and welfare of DSO's and other persons such as electronic monitoring staff. In the first case, as previously mentioned, the defendant allegedly threatened to stab his former DSO. In the record of the interview of 25 June 2024, the defendant accepted that he had threatened to stab his former DSO on more than one occasion although he denied that he had threatened to kick the person who was to fit him with an electronic monitoring device. 2. Both the circumstances of the telephone interview and the reference to the threat to the officer installing the electronic monitoring device, let alone more severe threats to DSO's, impedes or interferes with the very supervision which is designed to rehabilitate the defendant as well as providing protections to the community at large. Hence, the provision has been incorporated for the control and management of the behaviour of the defendant. 3. There is a significant difference between persons expressing frustrations or anger because of the restrictions imposed by an ESO but quite another matter if their conduct rises to the level of causing fear for safety of DSO's and thereby directing interfering with their supervision and its concomitant role in rehabilitation. 4. It is commonplace that breaches of ESO's will occur without criminal charges being laid. It is not the case that a breach of this provision will automatically result in criminal charges having the consequences referred to in KW.
In accepting the observations made by Fagan J in KW, as I do, I consider that the plaintiff has established, on the facts and circumstances of the present case, that the proposed condition in its modified form is not out of proportion to the risk and is appropriate in all the circumstances.
The present circumstances involve, on the material before the Court, instances of serious threats made directly to a DSO and threats to another to harm the DSO. Both threats were made in consequence of the DSO discharging his function.
There is a further dimension. The conduct complained of by the plaintiff has at its centre intimidatory, threatening or abusive conduct which has the effect of directly impeding the supervision of the defendant thereby exposing risks as I have earlier discussed to the community and diminishing the prospects of rehabilitation. The counterpoint to the proposition advanced by the defendant - that a condition of this kind might undermine the therapeutic relationship between the DSO and the defendant - is that the defendant's very conduct, if not checked, may itself create a significant impasse to rehabilitative efforts by the DSO.
A further illustration may be given in support of that conclusion. An application for revocation of parole after release dated 29 May 2024 identified that the defendant refused to permit the ESO team to fit his electronic monitoring equipment and refused to reside in the temporary accommodation organised by Community Corrections. The defendant was alleged to have been "too aggressive, intimidating and threatening towards staff which rendered him unable to be safely escorted from the pod to the office where the telephone contact could be facilitated."
I have determined to make the condition set out in the third column of exhibit 2 for condition 4.

[24]

Condition 20: Employment

Counsel for the plaintiff made the following submissions in respect of the imposition of condition 20: 1. Mr Sheehan considered that this condition with oversight was necessary, given that the defendant had previously expressed an interest in working in unsafe roles, such as club security. Dr Dayalan felt that this condition may potentially result in the defendant missing job opportunities, which may adversely affect his rehabilitation. The plaintiff agrees with Mr Sheehan's view, that some oversight over employment opportunities is warranted. At the final hearing of the matter the plaintiff pressed for condition 20 set out in third column of exhibit 2.
Counsel for the defendant made the following submissions in that respect: 1. The defendant proposes alternative wording for condition 20 such that he is only required to notify his DSO of any job, volunteer work or educational course that he starts for the first six months of the ESO. Support for this variation is found in the experts' reports. 2. At page 20 of his report, Dr Dayalan commented: "…the stipulation that he takes reasonable steps to participate [in employment] would assist with engagement in pro-social activities. Seeking prior approval from DSO [sic] could potentially result in him missing opportunities and adversely affect his rehabilitation. This condition may be necessary in the early stages given the extent of institutionalisation and limited capacity to identify high risk situations. It can be lifted after the initial transition phase." 1. In turn, at [101] of his report, Mr Sheehan comments: "Whilst it would certainly be advantageous for Mr Silapa to seek employment, I think this would be more realistically approached as a case management strategy than an enforceable condition of his order. It is hard to imagine that failure enter [sic] employment would be reasonable grounds to breach his ESO and would be more effectively addressed through motivational interviewing than the threat of sanction. Given Mr Silapa's previous expression of interest in working in unsafe roles such as club security, some oversite [sic] as to the nature of his employment is required."
Counsel for the plaintiff made the following reply submissions: 1. The plaintiff has proposed a further version of Condition 20. The plaintiff submits that the version proposed by the defendant does not sufficiently address the defendant's risk as it: (a) requires notification only; and (b) only applies for six months. 2. The alternative proposed by the plaintiff only requires the defendant to obtain approval from his DSO if he is directed to do so. 3. Mr Sheehan's observations at [101], referred to at DS [31], appear to misunderstand the nature of the condition. Mr Sheehan appeared to think that the condition would have the effect of requiring the defendant to undertake employment, and on that basis suggested that this would be more properly approached as a case management strategy. The condition does not have that affect. Rather, it involves the oversight identified as appropriate by Mr Sheehan. 4. It is true that requiring pre-approval could lead to the defendant missing an employment opportunity. That would require the opportunity to be one where the offer of the role and acceptance needed to occur within an extremely short timeframe. 5. The risk of the defendant missing a pro-social opportunity must be balanced against the possibility of the defendant accepting employment that may escalate his risk. The defendant has raised the prospect of working in a role such as security at a club, and has former anti-social affiliations. The alternative proposed by the defendant does not sufficiently address this risk.

[25]

Conclusion

If the misconception by Mr Sheehan, as to the operation of the plaintiff's condition, is put to one side, the difference in approach between the experts is, after the 'early stages' in which restrictions provided would apply, there should be a complete relaxation of the condition in the case of Dr Dayalan and some ongoing supervision contemplated by Mr Sheehan. The former approach emphasised the prospect of losing job opportunities and the pro-social engagement that would come with employment. Mr Sheehan's view was predicated upon the need for the management of risks because of the prospect of seeking unsuitable employment.
This exposition of the differences between the experts represented, in my view, a fair balancing of the issues which arise in the consideration of this condition, namely, a balance between the risk of losing engagement and resultant pro social activities and the risk associated with the defendant being engaged in unsuitable employment.
In my view, the proposal by the plaintiff should be accepted. That approach is more closely aligned to the management of the risks which I have found in this judgment. Those risks are significant, and, in my view, the balancing of considerations should lie in favour of those which are protective of the community.
That is particularly so when three further considerations are taken into account: 1. It is true that requiring pre-approval for job positions could lead the defendant to missing an employment opportunity but the prospects of that, in my view, are not high if the approval process is handled efficiently by the DSO. That process may be more difficult in the case of casual labouring positions but, in my view, it is not beyond the capacity of the DSO to manage that difficulty. 2. The prospects of adverse impacts upon the defendant would seem, in all likelihood, to be greater if he obtains a position under the defendant's proposal only to find that permission is not given by the DSO to undertake or maintain that work. 3. The period of 6 months, on any account, must be considered entirely arbitrary.
These considerations are of even greater strength when considered in the light of the judgment in Lett which I have earlier discussed in the context of providing a discretion to the DSO.
In all the circumstances, I make condition 20 in terms of the conditions set out in the third column of exhibit 2.

[28]

Condition 23: Drugs

Counsel for the defendant made the following submissions in respect of the imposition of condition 23: 1. The defendant proposes the amendment of condition 23 by the insertion of the following note after the condition as sought by the plaintiff: "Note: The Court recommends that if it appears the defendant has failed to comply with this condition, in deciding what recommendation to make about the breach, the DSO should take into account whether the defendant disclosed any drug use to the DSO and/or whether the defendant took any steps in relation to AOD counselling/courses/programs/other medical intervention." 1. In support, reference is made to the decision of Walton J in Ryan, where his Honour imposed such a note for the following reasons: "[35] In any event, I consider that the amended version of condition proposed by the defendant further reduces any concerns raised regarding overcriminalisation and the thwarting of rehabilitation progress for the defendant. The alternative condition provides some further urging upon the future personnel dealing with the defendant over the next three years, when exercising their discretion, to account for any disclosure he has made and any steps that he may have taken in seeking help. [36] The amended version of condition 13 proposed by the defendant, ensures, in my view, the appropriate balance of the objectives under s 3(1) of the Act, namely, exercise of protection of the community as well the rehabilitation of the defendant."
Counsel for the plaintiff made the following submissions: 1. The plaintiff presses for this condition with the removal of a typographical error. 2. The question of whether to include an annotation of the kind recommended is a matter for the Court. However, the plaintiff is concerned that the annotation is proposed in circumstances where the defendant is also seeking to constrain the information-sharing conditions to apply only to psychologists and psychiatrists. Those involved in the defendant's supervision would consequently have very limited capacity to confirm whether the defendant has taken steps of the kind identified.

[32]

Condition 29: Non-association

The defendant proposed an alternative to the plaintiffs proposed condition in this respect which incorporated additional words as follows: "In relation to intimate partners, the DSO must only make such a direction in the terms of any current ADVO"
The ultimate form of condition proposed by the defendant was as follows: "The defendant must not associate with any person or persons specified by a DSO. In relation to intimate partners, the DSO must only make a direction in terms of any current ADVO"
During the course of argument, the State opposed the form of the condition sought by the defendant but modified the order it sought. The plaintiff sought the following condition: "The defendant must not associate with any person or persons specified by the DSO on the basis that the DSO forms a view on reasonable grounds that the non-association is necessary to address his risk of committing a serious offence or breaching the extended supervision order."
The substance of the defendant's submissions appear in the oral submissions of Ms G Marsden of counsel as follows: "Yes, so 29, I do have things to say beyond what was put in writing which is essentially the real thrust of our submissions here is that we are seeking, and I believe my friend sought to clarify this in her written submissions in reply, our submission is directed towards ensuring that there is uniformity between any current ADVO in place and the terms of the ESO. It is submitted that consistency is important primarily in not setting Mr Silapa up to fail by the imposition of confusing and inconsistent conditions. Subject to your Honour's ultimate decision, Mr Silapa is going to be subject to the conditions on this order which will number in excess of 50, and there will be no doubt other orders in place, for example, ADVOs which also will place him at risk of criminal offence and further periods of imprisonment if there is a breach, and in those circumstances, there is a real utility into the extent possible having there being uniformity between the orders he's on. I further just submit that an apprehended domestic violence order is something which is sought by police and confirmed by magistrates in the Local Court or in the District Court, and is subject to criminal penalty in respect of breaches. With respect, permitting inconsistent conditions serves in a way to second‑guess the decisions made by police or the judicial officer who makes an ADVO, and in my respectful submission, goes to circumvent procedural fairness in that regard, in essence, where a decision has already been made in respect of an ADVO, then an alternative glean being put on it through the imposition of a different inconsistent condition by a DSO. I have nothing further to add."
In written submissions, the plaintiff made a submission at least partially directed to the alternative condition proposed by the defendant. It was submitted, in that respect, that the alternative position appeared to have the effect that, if the defendant posed a serious risk to an intimate partner, but an ADVO had not been obtained, then no direction could be made. If it is intended only to apply to intimate partners where an ADVO is in place, the defendant has not explained why uniformity is required. A DSO may receive information that makes it appropriate to give a non-association direction indifferent to the terms of an ADVO.
In oral submissions, Ms R McEwan of counsel for the plaintiff submitted the following: "I should explain two matters. The first is the fact that the condition does not deal with the ADVO carve out that your Honour raised and I wanted to explain why. So your Honour the reason for that is the starting position, of course, is that I accept and understand why there are concerns about competing obligations. The concern about including a carve out of the type proposed by your Honour is that as your Honour will be aware it would be entirely possible, for example, for a type 1 ADVO to be made in relation to a person and that would be the form of you must not stalk, harass, intimidate et cetera. An ADVO of that nature could be in place and there might be a sudden escalation in behaviour from a defendant or risk to that person, and in those circumstances if there was a carve out of the type your Honour raised with me, the DSO would not be able to respond to that to go beyond what the Court had imposed and in those circumstances my submission would be it's not that the direction of the DSO would be cutting across something that a court had considered and decided. It's that there may be circumstances where an ADVO has been made on circumstances as they exist. There's then a significant escalation in risk to that person and it would be undesirable, in my submission, if the DSO was unable to step in at that point and make a non‑association direction that went beyond what was contained in an ADVO. That's all I wanted to say in relation to that unless your Honour has further questions."
Whilst there is some force in the respective arguments of both parties with respect to this condition, I consider that the condition proposed is reasonable and proportionate to the risk. Ultimately, the final form of the condition proposed is concerned with regulating the historically anti-social associations of the defendant. Mr Sheehan stated that the defendant's associations would seem a key factor in his past supervision failure and most of his violent activities.
It is conceivable that the condition may intersect with areas covered by an ADVO. However, as the plaintiff well submitted the ADVOs are made in a particular context in court proceedings regulating domestic violence of a particular kind at a particular time. It may well be the case that the DSO is required to act in circumstances where an ADVO is not sufficient to provide adequate supervision of the defendant and manage escalating risk falling within the purview of the DSO.
I make condition 29 in terms of the first column of exhibit 2.

[34]

Conditions 37 to 40: Internet access and other electronic communication

McNaughton J at the preliminary hearing deleted conditions 38 to 48, as her Honour considered that the remaining condition 37 was adequate to deal with the State's concerns.
The plaintiff has adopted an amended version of McNaughton J's wording in condition 37 but also sought to reintroduce modified versions of conditions 38, 39 and 40. It said it was necessary to do so in order to deal with issues that have emerged subsequently and in line with Mr Sheehan's views more broadly.
McNaughton J's decision, in that respect, was as follows (at [52] - [57]): "52. 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." 53. 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. 54. 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. 55. 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. 56. 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. 57. 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."
Mr Sheehan considered that the full suite of conditions were necessary to maintain 'visibility' of the defendant's associations, as he believed that this would be an important dimension of the defendant's successful management in the community.
The defendant opposed the imposition of any conditions 37 to 40 upon the basis that the defendant does not have a history of internet-based offending and there was nothing to suggest that the high level of monitoring of his internet use provided for in conditions 37 to 40 was necessary to mitigate his risk. Rather, it was submitted that such conditions are overly intrusive and prescriptive and are of some complexity such that the defendant may face difficulties in compliance.
The difficulty with the defendant's contentions and ultimately Dr Dayalan opinion, in this respect, is that recent developments would in fact illustrate a need for supervision of this kind.
The defendant was charged with contravene prohibition/restriction in ADVO for conduct which allegedly occurred on 5 June 2024 when there was an ADVO preventing contact with his partner. The defendant contacted his cousin and had that individual then establish contact with the defendant's partner on 13 June 2024. The defendant expressed a concern that the defendant would use third parties or borrow other persons' phones to make contact, even when prohibited from doing so, or to contact associates.
Further, during the defendant's period on parole, he was frequently uncontactable. The proposed conditions would allow the defendant's DSO to direct him to have a mobile phone with him at all times. It would also allow the defendant's associations to be monitored.
The defendant submitted that, if the court was minded to maintain some level of oversight over the defendant's internet use and electronic communications, it is submitted that condition 37 is sufficient (as held by McNaughton J at the preliminary hearing).

[38]

Conditions 59 to 61: Medical intervention and treatment

The plaintiff made the following submissions in relation to the imposition of conditions 59 - 61: 1. The plaintiff agreed to the amended versions of these conditions, as previously imposed by McNaughton J and, in the case of condition 61, previously agreed to by the plaintiff. 2. The plaintiff noted that Mr Sheehan supported the retention of these conditions, arguing that these conditions are necessary in the defendant's case because there is a confluence of medical and psychiatric factors that intersect with his risk, requiring an integrated multidisciplinary biopsychosocial approach to case management (at [109]). 3. Similarly, Dr Dayalan supported the conditions, and stated that they are appropriate to managing the defendant's risk of committing a serious violence offence and do not significantly impact on his rehabilitation prospects.
The defendant made the following submissions in relation to the imposition of conditions 59 - 61: 1. The proposed amendments allow for information sharing only between psychological or psychiatric healthcare practitioners and only where the information is relevant to the defendant's risk of reoffending or rehabilitation. This appropriately balances the defendant's supervision needs as against his entitlement to have confidential relationships with his healthcare professionals. 2. Condition 60 has been further amended on the basis that there is no apparent need for the defendant's sensitive health information to be shared with the New South Wales Police Force or Corrective Services New South Wales without his consent. 3. It is acknowledged that these amendments were sought by the defendant at the preliminary hearing and were rejected by McNaughton J for the reasons set out at [60] to [69] of the Preliminary Hearing Judgment.
Counsel for the plaintiff made the following submissions in reply: 1. The plaintiff presses for the inclusion of the original condition. The difficulty with the amendments proposed is that health practitioners other than a psychologist or a psychiatrist may receive information of relevance to the defendant's risk of reoffending or his rehabilitation. The condition already constrains the information-sharing to information of that character. This achieves a sufficient balance between privacy and the purpose of the information sharing.

[39]

Conclusion

McNaughton J's ruling in the preliminary judgment on these conditions was as follows (at [60] - [68]): "60. 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. 61. 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." 62. 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. 63. 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. 64. 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. 65. 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." 66. 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. 67. 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." 68. 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."
The various amendments included by her Honour are retained in the current proposal by the plaintiff. Save for one residual matter, I agree, with respect, with her Honour's reasons for decision as to those conditions.
It would not appear that her Honour addressed the question raised in these final proceedings as to whether reference to "NSWPS and CNSW" should be excluded from condition 60. It would appear that this issue was not raised by the defendant in the preliminary hearing. The defendant's submissions, in this respect, have some force and I accept them.
I make conditions 59 to 61 in the terms proposed by the plaintiff in the first column of exhibit 2, save for condition 60 where the form of the condition proposed by the defendant shall in the second column of exhibit 2 be applied.

State of New South Wales v Silapa

At a glance

Court

Decision date

Before

Source

Judgment (41 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (22)