State of New South Wales v Simcock

Supreme Court of NSW|2016-12-09|Before: Wilson J

Judgment

Jai Simcock is due to be released from prison on 21 December 2016, having served a sentence of imprisonment for 5 years 6 months for the offence of recklessly causing grievous bodily harm. The State of New South Wales argues that he is a high risk violent offender who should be made subject to a continuing detention order such that he would remain in prison for a further period of 12 months. The State's application for such an order is brought by Amended Summons filed on 8 December 2016.
The State's application is made pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") and seeks the following orders: "Continuing detention order "3. An order pursuant to section 17(1)(b) of the Act that the defendant be the subject of a continuing detention order for a period of twelve months from the date of the order. 4. An order pursuant to section 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the period specified in paragraph 3 above. Extended supervision order 5. An order pursuant to section 9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of three years and six months that commences upon the day that the continuing detention order made pursuant to paragraph 3 above expires. 6. An order pursuant to section 11 of the Act that the defendant is directed to comply with the conditions set out in the Schedule attached to this Amended Summons for the duration of the order made pursuant to paragraph 5 above. 7. In the alternative to paragraphs 3, 4, 5 and 6 above, an order pursuant to section 9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of five years from the date of the order and, pursuant to section 11 of the Act, that the defendant is directed to comply with the conditions set out in the Schedule attached to this Amended Summons for the duration of the order." [1]

The Legislative Framework

Part 1A of the Act provides for the supervision and detention of high risk offenders. Division 2 of Part 1A provides for the extended supervision and continuing detention of high risk violent offenders.
Having been convicted of a serious violence offence (the offence of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW) for which a conviction was recorded on 14 September 2012) the defendant is a violent offender within the meaning of s 5A of the Act. In that he is presently serving the sentence imposed upon him for that crime, he is both a "detained violent offender" within the meaning of s 13C(2)(a), and a "supervised violent offender" within the meaning of s 5J(2)(a).
The State may make an application for a continuing detention order in respect of a "detained violent offender", and there is no issue that the defendant is a detained violent offender. The requirements imposed by s 14 of the Act have been met.
The State may make an application for an extended supervision order in respect of a "supervised violent offender", and there is similarly no issue that the defendant is a supervised violent offender. The requirements set out by s 6 have been met.
An order such as that sought by the State can only be made if the defendant is found to be a high risk violent offender, as provided by s 5E: "5E High risk violent offender (1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender. (2) An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence."
The definition of a "serious violence offence" referred to in s 5E(2) is found at s 5A of the Act, and is as follows: "5A Definition of "serious violence offence" (1) For the purposes of this Act, a "serious violence offence" is a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (2A) A reference in subsection (1) (a) to: (a) conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and (b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and (c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person. (3) A "serious indictable offence" is: (a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900 ) at the time that it was committed, or (b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or (c) an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were committed at the time an application for an order against the person is made under this Act."
The power to make a continuing detention order is found at s 5G: "5G Continuing detention orders for high risk violent offenders (1) The Supreme Court may, on application under this Act, make an order for the detention of an offender if the offender is a high risk violent offender and the Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order. (2) An order made under this section is a continuing detention order. (3) A continuing detention order made under this section may also be referred to as a high risk violent offender continuing detention order."
The power to make an extended supervision order is found at s 5F: "5F Extended supervision orders for high risk violent offenders (1) The Supreme Court may, on application under this Act, make an order for the supervision of an offender if the offender is a high risk violent offender. (2) An order made under this section is an extended supervision order. (3) An extended supervision order made under this section may also be referred to as a high risk violent offender extended supervision order."
The defendant disputes that he is a high risk violent offender, or that there is any basis upon which the Court could make the substantive orders sought by the State.

The Evidence

(As seems to be typical for a matter of this nature, the hearing was listed to take place only a very short time - less than two weeks - before the defendant is due to be released at the expiration of his sentence and, in this instance, only a week before the end of the court term. The evidence led by the State is voluminous. Time restrictions prevent a summary of all of the evidence. I have endeavoured to refer to what I regard as the most significant evidence.)
On 2 September 2016 Fagan J heard preliminary proceedings relevant to the State's application and made orders appointing a psychiatrist and a psychologist to separately examine the defendant and report to the Court, and directing the defendant to attend upon examinations by each. [2]
The reports of Dr Andrew Ellis and Mr Patrick Sheehan were before the Court as a consequence of his Honour's orders, and each of Dr Ellis and Mr Sheehan gave evidence before me. A further witness, Mr Walid Elguindy, also gave evidence at the hearing. There was additionally a volume of reports and other documentary evidence before the Court tendered in support of the State's application.

The Defendant's Criminal Antecedents

The defendant's first encounter with the criminal courts came when he was aged 15 years, when he appeared before the Children's Court (on 13 February 1989). The defendant was subsequently dealt with in that jurisdiction for a number of offences committed prior to his 18th birthday.
On 21 December 1991 the defendant was first charged as an adult, and he has made regular appearances before (principally) the Local Court thereafter. The convictions recorded against him are largely for offences of dishonesty, although there are also convictions for offences of violence. Whilst this is not an exhaustive list, and excludes entries from 4 September 2012, his convictions in New South Wales include those for: 1. steal motor vehicle (February 1992; April 1992; March 1996); 2. possess implements (February 1992; April 1992; May 1993; May 1994; August 1994; March 1996; June 1998; December 2009); 3. stealing / larceny (April 1992; March 1996; June 1998); 4. malicious damage (April 1992); 5. assault (August 1994; January 1997); 6. assault occasioning actual bodily harm (March 1996); 7. escape lawful custody (January 1997); 8. armed with intent (January 1997); 9. take and drive conveyance (March 1996; January 1997; June 1998); 10. carry cutting weapon (January 1997); 11. goods in custody (December 2009); and 12. possess prohibited weapon (December 2009) [3] .
In Queensland, the defendant has convictions including: 1. supply dangerous drug (March 1999) 2. fraud (August 1999; September 2006); 3. receiving (August 1999); 4. stealing (August 1999; October 1999; September 2000); 5. unlawful use of a motor vehicle (October 1999) 6. enter dwelling/premises commit indictable offence (October 1999; November 1999; January 2001); 7. break, enter commit indictable offence (October 1999; January 2001; September 2006); 8. enter dwelling with intent whilst armed (October 1999); 9. wounding (October 1999); 10. enter vehicle with intent (September 2000); 11. wilful damage (September 2000); 12. possess tainted property (January 2001; September 2006); 13. common assault (May 2004; September 2006); 14. assault occasioning bodily harm (May 2004); and 15. possess knife in public place (September 2006). [4]
The regularity of the defendant's encounters with the criminal justice system and consequent imposition of terms of imprisonment is such that he has spent about 21 of his 24 adult years in custody.
The offences dealt with in Penrith District Court on 14 September 2012 include the defendant's only convictions for strictly indictable offences, and his only conviction for an offence of serious violence. His record otherwise is for summary offences or offences capable of being dealt with summarily.
The more serious offences, the index offence of recklessly inflict grievous bodily harm, and an offence of aggravated enter dwelling with intent to intimidate whilst armed, contrary to s 111(2) of the Crimes Act, occurred on 17June 2011.
According to the facts found by the sentencing judge, [5] the defendant set out on that date to assault his victim, whilst armed with a crowbar. He went to the victim's home and, encountering him at an exterior location to the house, struck him several times with the crowbar. The injured victim fled into the house, followed by the defendant, who battered against a bedroom door in an effort to get to the victim. Arming himself with a knife the victim confronted the defendant, and the defendant left, taking a wallet containing a sum of cash as he departed (before the sentencing judge as a charge of steal from dwelling).
The victim of the attack was grievously injured, sustaining some nineteen fractures to an arm, together with puncture wounds where the crowbar had penetrated the flesh of the arm. Surgery was required, repair of the arm being effected only by the insertion of a number of plates and screws.
There was a complicated background to the offence but, in brief, the attack launched by the victim was intended by him to be something of a pre-emptive strike directed at an individual who he believed had threatened harm to a friend of his, and his friend's children. However, as the sentencing judge observed: "The fact that [the victim] sowed the seed for his own misfortune is not an excuse, either for the prisoner nor for this Court to minimise the sentence. The actions of the prisoner were completely wrong although triggered by [the victim's] intemperate and threatening communications. He did not appreciate that by employing or by engaging in such unwise, unpleasant and potentially unlawful behaviour he was calling down on himself the wrath of this prisoner." [6]
Both for the victim, and other persons present in the house, the incident would have been terrifying: "The terror felt by [the victim] and his wife must have been extreme. A crowbar-wielding stranger battering against the door inside one's own home would clearly be extremely intimidating." [7]
The offences were regarded by the sentencing judge as falling at least in the mid-range of objective seriousness.
A report from a forensic psychiatrist, Dr Richard Furst, was before the sentencing judge. Dr Furst regarded the defendant as probably psychotic, and diagnosed him as likely suffering from an anti-social personality disorder. The defendant himself did not accept that he had any psychiatric disorder. The sentencing judge noted: "Whatever be the mental state of the prisoner, it is apparent that he represents a threat to the community. Absent treatment which he refuses and/or the removal of the threat he fears, he is likely to remain unstable and predisposed to react with violence to any situation in which he or those he treasures seem to be at risk." [8]
The offences dealt with by his Honour Acting Judge Freeman involved serious violence, but they stand alone for offences of such a nature in the defendant's antecedents. Other offences of violence recorded against him, whilst troubling, do not approach the June 2011 offences for the level of violence employed.
Of the other violence offences, the circumstances of some more significant matters are referred to below.
On 15 August 1993 the defendant was involved in an altercation with a prison officer at the John Morony Correctional Centre, where he was a prisoner. After being confronted about some graffiti, the defendant approached the officer and spoke aggressively. When the officer tried to move the defendant away from him, the defendant pushed him, subsequently striking the officer to the groin and back. He was restrained when other officers intervened. [9]
On 26 December 1993 the defendant was stopped by police in Waverton. He was searched and a 14 centimetre blade knife was found in a pouch on his belt. He was carrying a screwdriver in a bag. When asked about his possession of the screwdriver the defendant said "I would use it to stab someone if they grabbed my knife". [10]
On 30 November 1995 the defendant was discovered by the owner of a Commodore sedan as he was attempting to steal it. The owner tried to restrain the defendant but he struck out at the man, landing a number of blows to his face and head. A witness called police, and a number of neighbours intervened to assist the car owner. The defendant struggled against the men who had secured him, striking at the car owner to the eye with a closed fist and biting him to the chest. Police arrived and arrested the defendant. They noted severe bruising and redness to the victim's eye. [11] The victim was later awarded $7000 in victims compensation for his various injuries, which amounted to actual bodily harm. [12]
On 24 October 1996 the defendant was arrested for minor transport offences. After his arrest, he broke away from the arresting officers and ran off. A railway employee challenged the defendant, apparently taking hold of him to halt his flight. The defendant lashed out at the man and was able to free himself by pulling out of his upper clothing. When the railway officer tried to take hold of the defendant again, the defendant tried to punch him, causing his pursuer to step back. Although the defendant ran off, he was arrested soon after. He was convicted of assault of the railway employee. [13]
On 30 August 1999 the defendant broke into a dwelling in Sarina in Queensland. The occupier woke up and, on discovering items missing from his home, followed some wet footprints he found outside his home to a location where he found the defendant sitting inside a stolen car. When the occupier tried to restrain the defendant, the defendant lashed out at him with a knife, causing severe lacerations to the man's arms. He escaped, but was later arrested. [14] The defendant was convicted of wounding.
On 16 October 2005 the defendant was with another male who assaulted an elderly man in the street in Cairns in Queensland. When a passer-by attempted to intervene to protect the elderly man, the defendant intercepted him and placed a large hunting knife to the man's throat, warning him "Stay out of it, it has got nothing to do with you". The victim retreated to a nearby restaurant to call police. The defendant came after him, threatening him, "We know where you live. We'll kill your fucking family". When the defendant was arrested two days later he was carrying a large hunting knife. [15]

Risk Assessment

As part of the preparations for these proceedings a Risk Assessment Report, dated 1 March 2016, was prepared by Samuel Ardasinski, a senior psychologist with the Department of Corrective Services.
Mr Ardasinski prepared his report in the absence of co-operation from the defendant. On being advised of the possibility of an application of this nature being made against him, the defendant refused to speak to a parole officer who attended the gaol to see him, and refused to sign an acknowledgement of receipt of documentation relevant to it. Mr Ardasinski spoke with the defendant on 15 February 2016 using a video-conferencing facility, but the defendant refused to consent to a psychological assessment. In the 20 or so minutes Mr Ardasinski spent trying to engage the defendant, the defendant displayed no observable signs of thought or mood disorder, and he was coherent in his speech. There was no overt display of psychosis, although Mr Ardasinski thought the defendant expressed some paranoid ideation which focused on the Department of Corrective Services and its staff.
On refusing his consent to the assessment process, the defendant threatened Mr Ardasinski, saying, "If I break the law you can't stop me…all it's going to do is put a target on your head…I got nothing more to say to you." [16] Necessarily, the risk assessment report was prepared from documentary records relating to the defendant.
Corrective Services records note the defendant to be a socially isolated individual who deals with Corrections staff in a hostile and belligerent manner. He has generally refused during the period of his current sentence to participate in custody based rehabilitative programs, or to engage with psychology services. He is noted to display a poor work ethic and attitude. The defendant has incurred 12 institutional misconducts during his current sentence and, over other periods of incarceration, a further 27 misconducts, between 1992 and 1998. Mr Ardasinski notes: "The literature (Zamble & Quinsey, 1997) indicates that an offender's compliance with custody-based supervision can be predictive of their capacity to engage fully with community supervisors. Mr Simcock's previous record under parole supervision has been described in the file material as very poor, with his often failing to make any contact with his local Community Corrections office at all. Mr Simcock's institutional adjustment and compliance with his supervision across all settings has been very poor." [17]
The defendant has similarly been hostile to community based supervision in the past, to the extent where, on sentence for the index offence, he instructed his lawyer to seek the imposition of a sentence that did not incorporate a period of parole, so desirous was he of avoiding supervision. Mr Ardasinski reports: "Mr Simcock apparently holds negative attitudes towards the supervision process in the community, inasmuch as he does not believe that his itinerant lifestyle would be supported by receiving the supervision of Community Corrections. He has gone to efforts during his most recent custodial sentences to serve out the entirety of his sentence in custody, ultimately being released with no parole and then usually coming to Police attention for new offences and returning to custody within months of having been released to the community. His last period at liberty was one of his longest, existing in the community for almost eighteen months. His prior parole file case‑notes suggest that he has engaged with a few officers in the past, but the majority of the file information speaks to Mr Simcock's supervision failures and struggles to accept reasonable direction. There are several entries which suggest that Mr Simcock refuses to engage at all with his local Community Corrections office upon his release from custody, with parole officers unable to contact him despite several attempts to have him report to the local office." [18]
The defendant's resistance to engage with psychological services has led to him being untreated in custody, despite some suggestion from psychiatrists who have seen him through Justice Health that he may be psychotic. The most consistent diagnosis is one of anti-social personality disorder with paranoid features.
During his present incarceration, the defendant has refused to undertake the Violent Offenders Therapeutic Programme ("VOTP").
The defendant has been recorded over the years uttering violent threats or expressing homicidal thoughts, none of which have been explored or addressed because of his absolute refusal to engage with psychology or other offender services. He has been observed to be an angry person, who is hostile to authority. In November 2012 he gave his favourite sport or hobby as: "Stealing cars, robbing houses and killing cops." [19]
It should be noted however that, whilst the defendant has frequently engaged in the first two stated past-times, he has never acted out the third.
As regards risk assessment, Mr Ardasinski prefaced his conclusions by noting that: "It is not scientifically possible to accurately predict whether or not an individual offender will or will not actually reoffend. The best that can be offered is an estimate that is anchored to empirical literature specifying features associated with risk and sound clinical analysis and formulation of how those present features might operate in the individual subject to the assessment." [20]
Actuarial tools have been used as a means of assessing the risk the defendant poses upon release to the community.
In custody, the defendant has been assessed by means of the LSI-R instrument (Andrews & Bonta 1995). This tool provides an indication of the risk of general and violent recidivism within 12 months of release. At the time of his entry to custody in 2012 the defendant was assessed (without his participation) as falling within the medium - high range of risk. The same test repeated by Mr Ardasinski, also without the defendant's participation, yielded the same risk rating.
Another risk assessment measure, the VRS (Wong & Gordon), was also administered relevant to the defendant in February 2016, similarly without his co-operation, and found him to be in the high risk range for further violent offending.
Actuarial tools such as these rely to some extent upon comparative data, and the results must be approached with some care. As Mr Ardasinski notes: "When comparing group data to individual cases however it is important to note that factors and circumstances unique to this individual may not have been captured within the normative group and therefore caution must be exercised when making such a comparison. A further issue in Mr Simcock's assessment on the VRS is with regard to the cited reconviction rates, the reoffending considered in the VRS study was not necessarily required to meet the criteria of serious violent offence as defined by the NSW Crimes (High Risk Offenders) Act 2006. The recidivism rates specific to a serious violence offence (e.g. homicide or GBH) are known to be lower than that identified for general violent recidivism (Steadman, 1983). The majority of Mr Simcock's criminal violence has not reached the 'serious' threshold under the HRO Act, until his most recent violent offence." [21]
There are a number of risk factors identified relevant to the defendant, including his criminal thinking, lack of work ethic, aggressive demeanour, lack of emotional control, lack of insight, lack of community support, and historical resort to the use of weapons. The fact that the defendant has refused all therapeutic intervention can only deepen the concern. Mr Ardasinski concluded: "[…] For most factors, Mr Simcock is described as being in the Pre-Contemplation stage of change, meaning he has no appreciation of his risk factors for violence or any intention to change his attitudes or behaviour. His refusal to engage with any staff to address his offending behaviour and his desire to be released with no supervision is evidence that he is not ready to desist from a life of offending once he is released from custody." [22]
For Mr Ardasinski, the defendant remains at risk of continuing his life of crime: "Mr Simcock is a self-professed "career crook". His criminal history demonstrates that he has the capacity for serious violence, however his criminal trajectory is more suggestive of a petty thief and as being more at risk of general offending than violent offending. Having been abandoned by his mother in his formative years and then oscillating between foster care placements as a Ward of the State throughout his early adolescence, Mr Simcock readily learned that nobody could be trusted, and to rely on himself solely. He has lived most of his life either in prison, or on the streets, committing petty crime 'to survive'. There is no evidence that this trajectory is plateauing, with Mr Simcock refusing to participate in any programming which might provide him with the skills or insight into ways to address his criminal ways." [23]
The main identified concern involves a scenario in which the defendant, being armed with a weapon, such as a knife or screwdriver, was interrupted in the commission of crime, and lashed out at the intervener with a weapon, causing serious injury.
Overall, Mr Ardasinski has concluded that the defendant falls in the medium-high to high risk category of violent offending relative to other adult male violent offenders. He concluded: "The evidence before me suggests that Mr Simcock would likely struggle to live in the community without regard to his risk factors, and since he has legitimised criminal offending as a necessary means of surviving in society, he would likely return to Police attention and to prison before too long. This would not automatically mean he would be involved in further violence, since much of his criminal history has been non-violent. However, within his lengthy general offending history is a catalogue of violence which has been steadily escalating over recent years and recently escalated to include serious violence. If an unwitting victim of Mr Simcock's stealing challenges him in the course of a new theft offence, he may respond with violence, and considering he has carried a knife in the community for many years, this may be serious violence. Whether this would be considered "unacceptable" in the context of the Crimes (High Risk Offenders) Act 2006 is a matter to be determined by the Court." [24]

Risk Management

A risk management report was also prepared, by Recquel Smith on 1 June 2016, for these proceedings. Ms Smith also found the defendant wholly unco-operative with the process, noting: "Mr Simcock's attitude towards Community Corrections is one of disdain, demonstrated by his refusal to engage with Community Corrections on two separate occasions for the preparation of this report. In addition, Mr Simcock has failed to participate in the pre-release process with Community Corrections in the gaol environment and thus his release to Parole was denied in 2015." [25]
Ms Smith noted that the defendant refused to speak to her ("I don't talk to Parole") [26] , and has refused to engage with all efforts to assist him with post-release plans. The defendant has no support in the community at all. His only known relative is his mother, and each would appear to have disowned the other. He has no friends who might aid him on his release. He has no home to go to, and yet he has refused all attempts to link him with accommodation services, such as Nunyara COSP. His complete lack of community support heightens the risk he poses in Ms Smith's opinion.
Ms Smith has noted the following strategies to manage that risk in the community: 1. Weekly interviews with the defendant at his home or a Community Corrections Office; 2. Monthly home or "field" visits to the defendant by Corrections staff; 3. The use of a schedule of movements to monitor the defendant's activities and contacts; 4. Electronic monitoring; 5. Referral to psychological and other therapeutic services; and 6. Random breath analysis and urinalysis to monitor and detect illicit substance use.
All of these strategies are subject to limitations to their efficacy, not least being the defendant's historical and currently stated refusal to engage with or accept any form of supervision.
His recent participation in and completion of the EQUIPS Aggression Programme does not, in the opinions of Mr Ardasinski [27] or Ms Danielle Matsuo, psychologist and Director of Programs for Corrective Services [28] lessen the risk posed by the defendant, or the need for significant intervention to manage his behaviour.

The Court Ordered Expert Reports

Both Dr Ellis and Mr Sheehan, who each saw the defendant at the request of the Court, had better luck in achieving the defendant's participation in the assessment process than did Corrections officers.
Dr Ellis saw the defendant on 30 September 2016, interviewing him for about 2 hours via audio-visual link. The doctor took a history from the defendant as to his personal circumstances, health, and offending conduct. Of the latter, the following is recorded: "He says that all his offences, apart from the index offence have been motivated by a lack of money, not caring about society, having no goals, being an opportunist and liking the criminal lifestyle. He says that prison has been "fun" for him. He says that he would regularly carry knives for the purpose of intimidating others. He says that in the past he "wasn't a nice person and would hang with bad crowds". He says on reflection that he has wasted his life." [29]
Dr Ellis expressed the view that the defendant has an Antisocial and Paranoid Personality Disorder. He noted: "He presents with a lack of remorse for previous violent behaviour and consistent irresponsibility for his actions. He has a history of anger with associated physical aggression. There is a history of repeated unlawful behaviour in a variety of domains. There is a history consistent with conduct disorder in childhood. He would therefore meet criteria for antisocial personality disorder. This is consistent with his report of neglect and loss in his childhood. He has severe distrust of others particularly relating to loyalty and fidelity, a distorted sense of justice, bearing grudges and constant questioning of the motives of others as pervasive personality traits across his lifespan. This is consistent with his report and others observations of inconsistent parenting and time at crucial developmental stages spent in orphanages and institutions. Personality disorders are chronic conditions resistant to treatment and rehabilitative efforts." [30]
The defendant also meets criteria for a serious Substance Use Disorder.
In considering the issue of the risk posed by the defendant, Dr Ellis, like Mr Ardasinski, noted the limitations of risk assessment tools: "With current risk assessment techniques in behavioural science it is not possible to determine whether an individual person will reoffend with a violent offence, or more specifically a serious violent offence as defined by law. It is possible to identify risk factors associated with group violent re‑offending established in the published literature in order to manage reoffending risk. […] No tool specifically assesses for serious violent offending which could or does result in significant injury or legal consequences. These types of offences are rarer, and thus statistical methods are unable to reliably detect them in large samples." [31]
Relying upon both clinical judgment and the HCR-20 V3 structured professional judgment tool, Dr Ellis noted that the defendant has a "high loading of historical risk factors associated with violence in the longer term", and a moderate to high loading of "modifiable risk factors". [32] He concluded that the defendant falls into a group of persons with a statistically high risk of serious violent offending, which is greater than a theoretical average offender.
Whilst Dr Ellis initially thought that there might be some benefit in a 6 month CDO, by giving the defendant access to the VOTP and day and work release from custody, in evidence before the Court he gave considerably less support to the efficacy of a CDO in reducing risk. That change was in light of the defendant's custodial classification, which is most unlikely to change in the next 12 months, and which prevents any form of leave, and the fact that participation in therapeutic or vocational courses requires consent.
Mr Sheehan saw the defendant via audio-visual link for about 2 hours on 6 October 2016. Like Dr Ellis, Mr Sheehan thought the defendant has a personality disorder, noting "clear evidence to suggest the presence of a severe disorder of personality". [33]
Mr Sheehan assessed the defendant by means of the Violence Risk Scale, a conceptual actuarial tool to assess the risk of violence in forensic inmates. The defendant's rated risk of violence was in the high range. Risk factors included the defendant's historically violent lifestyle, with Mr Sheehan noting that violence remained a feasible option in the defendant's thinking. Further risk factors are the defendant's criminal personality, his criminal attitudes, lack of work ethic, aggressive manner of dealing with others, poor emotional control, lack of community support, poor insight, impulsivity and readiness to resort to weapons.
As to overall risk, Mr Sheehan reached the following conclusion: "The overall totality of evidence suggests that Mr Simcock would be considered to be within the high risk category of violent offending relative to other adult male offenders. A number of the key correlates of his violent offending remain unchanged. It is difficult to predict to what extent that any violence would approach the threshold of a "serious violent offence" as defined in the Crimes (High Risk Offenders) Act 2006. In these cases, the extent of injury in an assault can be influenced by variables that cannot be accounted for. However, the use of weapons (heavy striking implements and knives) would seem to add to the likelihood of a serious violence offence should Mr Simcock follow his prior pathways to violence. He may continue to present a high risk until his risk factors remit through intervention or over time. His age of 43 years might suggest that some reduction in risk may occur over the following decade and then further decrease over time as the moderating effects of maturation take place." [34]

Consideration

Having considered all of the evidence, the task for the Court is an evaluative one to be undertaken in the overall context of the primary objective of the Act, that being to ensure the safety and protection of the community. The evaluative task involves a prediction: the Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if not kept under supervision. It is not to the point if the Court is satisfied to that degree of probability that the defendant will re-offend more generally.
The standard of proof is greater than that applicable to civil matters but less than that required in proof of a criminal offence. [35]
In Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340, McClellan CJ at CL said at [34], of an earlier version of the Act: "[…] The caution that an order can only be made "if and only if" the Court is relevantly satisfied emphasises the care with which the Court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person's liberty."
Unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate.
At the outset, it must be borne in mind that the defendant has only ever been convicted of one serious violence offence, the index offence of recklessly inflict grievous bodily harm.
That offence occurred in the context of a specific, and quite unusual, set of circumstances. It did not occur incidental to, or as a corollary of, the commission by the defendant of some other crime, such as a property offence.
Whilst the defendant generally displays a profound lack of insight into his offending conduct in the past, he has expressed some measure of regret for the index offence, albeit no regret or remorse for the injuries he inflicted upon his victim. Dr Ellis recorded the following: "He says that he feels this action [the commission of the index offence] was "dumb". He says that it was dumb because there was no way he could "get away with it" and that he had gone to confront the man for the wrong reasons. He says that he had been influenced to think that the man was a more proficient fighter than he was and that he was not in fact an immediate threat to the family. He came to this conclusion when he subsequently learned that this was not the case when in prison. He reports that the consequences of his action are now that he has done five years in prison, has become more distrustful of others and feels like an idiot. He says that he now has no support in the community. […] He said that he would not behave in this manner again in future." [36]
That may indicate some comprehension of the negative consequences, if only to himself, that the defendant now has as to the commission of crime such as the index offence. It does not necessarily suggest that he will repeat his actions of that time.
Given the unusual nature of the circumstances that surrounded the commission of that offence, that there could be a repeat of them is highly unlikely.
There is some evidence that points to some positive change in the defendant's attitude. Despite his history of a poor work ethic, including occasions when he was terminated from custodial employment, the defendant has in more recent times worked in the print shop at Wellington Correctional Centre and received favourable assessment. In 2013 he completed a vocational education traineeship, the Certificate II in Process Manufacturing.
The defendant has also participated in the EQUIPS - Aggression program between 28 April 2016 and 7 July 2016 and was regarded as having a good understanding of the matters there discussed. That program involved attendance at 20 two hour sessions designed to address aggressive behaviour and aid participants to develop a self-management plan. Whilst Ms Matsuo considered EQUIPS - Aggression insufficient to reduce risk, the defendant's completion of it - particularly against a background of his prior absolute refusal to undertake any therapeutic course - must be a favourable indication. [37]
Finally, the defendant told Dr Ellis that he has taken up studying the Bible, an interest that might be regarded as more positive than his previously given hobbies of robbing houses and the like.
The evidence of actuarial assessment is of some assistance in evaluating the risk posed by the defendant, but I am mindful of the limitations that apply to such tools in the present instance.
Actuarial tools provide a basis for risk assessment, but cannot provide any indication as to whether a particular individual will reoffend or not; much less can they point to the nature of any reoffending. The defendant has been assessed using a number of actuarial tools, but the limitations to them include that such tools assess the risk of recidivism without necessarily confining that assessment to risk of violent recidivism, and none assess the risk of the future commission of serious violent offence as relevant to considerations under the Act. As a general statement, it is simply not possible to make an accurate prediction as to whether any offender will reoffend and, if so, the nature of the offending.
As Mr Sheehan noted: "Actuarial risk assessment tools provide explicit rules for combining risk factors and summing these into a total score. This score can then be associated with group‑based probabilities for recidivism. Therefore actuarial assessments provide information about how similar a given individual is to a group of offenders who did re‑offend, but they do not provide any indications about whether this particular individual will actually re‑offend or not. […] When comparing group data to individual cases however it is important to note that factors and circumstances unique to this individual may not have been captured within the normative group and therefore caution must be exercised when making such a comparison. I also note with regard to these reconviction rates, the reoffending considered in the study was not necessarily required to meet the criteria of serious violent offence as defined by the NSW Crimes (High Risk Offenders) Act 2006. I would anticipate that recidivism rates specific to a serious violent offence would be lower than that identified for general violent recidivism." [38]
The actuarial tools establish a considerable risk that the defendant will reoffend, but not that he will reoffend by committing an offence of serious violence. Particularly having regard to his criminal history, it seems more likely that, should he return to a criminal lifestyle, the defendant will return to the commission of the sort of summary criminality that comprises the majority of his criminal history. In that respect, Mr Ardasinski noted: "It is considered unlikely that the most imminent form of offending Mr Simcock would engage in would be a violent offence which approaches the threshold of a "serious violence offence" as defined in [the Act]. He is most likely to return to custody for new stealing and other general offending." [39]
The Act does not provide for orders to be made against an individual as a means of preventing crime generally.
Supervision following upon discharge from prison would no doubt assist the defendant (assuming he would submit to it) in successful reintegration into the community. Supervision for that purpose however is a function of parole, not of an order under the Act.
An order under the Act may only be made if the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if not kept under supervision. I am not so satisfied.
There is every likelihood that, upon release from custody, and particularly in circumstances where the defendant will be - by his own choice - without any support or assistance, he will resume the lifestyle of a thief and ne'er-do-well. I am not able to conclude on the evidence to a level beyond more probably than not that his future criminality will go beyond that, and certainly not that that there is an unacceptable risk that it will involve serious violence. The s 5E gateway to the power to make an order under s 5F or s 5G has not been opened. The summons must be dismissed.
Since this application was properly brought before the Court for its consideration, and both parties are funded by the State, I do not propose to make any order for costs.

orders 1. Amended Summons filed 8 December 2016 dismissed. 2. No order as to costs.

Endnotes

Amended Summons, [2]-[3]
State of NSW v Jai Simcock, unreported, 2 September 2016
Exhibit EK-1.1
Exhibit EK-1.2
Exhibit EK-1.18
Exhibit EK-1.18, at p 7-8
Exhibit EK-1.18, at p 8
Exhibit EK-1.18, at p 6
Exhibit EK-1.34 - EK-1.36
Exhibit EK-1.33, at [3]
Exhibit EK-1.30 and EK-1.31
Exhibit EK-1.32
Exhibit EK-1.29
Exhibit EK-1.47
Exhibit EK-1.55
Exhibit EK-1.3, Report of Samuel Ardasinski of 1 March 2016, at [5]
Exhibit EK-1.3, Report of Samuel Ardasinski of 1 March 2016, at [13]
Exhibit EK-1.3, Report of Samuel Ardasinski of 1 March 2016, at [15]
Exhibit EK-1.3, Report of Samuel Ardasinski of 1 March 2016, at [26]
Exhibit EK-1.3, Report of Samuel Ardasinski of 1 March 2016, at [28]
Exhibit EK-1.3, Report of Samuel Ardasinski of 1 March 2016, at [36]
Exhibit EK-1.3, Report of Samuel Ardasinski of 1 March 2016, at [40]
Exhibit EK-1.3, Report of Samuel Ardasinski of 1 March 2016, at [41]
Exhibit EK-1.3, Report of Samuel Ardasinski of 1 March 2016, at [58]
Exhibit EK-1.4, Report of Recquel Smith of 1 June 2016, at p 44
Exhibit EK-1.4, Report of Recquel Smith of 1 June 2016, at p 44-45
Exhibit A, Affidavit of Samuel Ardasinski of 25 August 2016
Exhibit B, Affidavit of Danielle Matsuo of 25 August 2016
Exhibit J, Report of Dr Andrew Ellis of 13 October 2016, at p 7
Exhibit J, Report of Dr Andrew Ellis of 13 October 2016, at p 9
Exhibit J, Report of Dr Andrew Ellis of 13 October 2016, at p 10
Exhibit J, Report of Dr Andrew Ellis of 13 October 2016, at p 11
Exhibit H, Report of Patrick Sheehan of 9 October 2016, at [48]
Exhibit H, Report of Patrick Sheehan of 9 October 2016, at [86]
Cornwall v Attorney General for New South Wales [2007] NSWCA 374, at [21]
Exhibit J, Report of Dr Andrew Ellis of 13 October 2016, at p 8
Exhibit B, Affidavit of Danielle Matsuo of 25 August 2016, at [14]
Exhibit H, Report of Patrick Sheehan of 9 October 2016, at [55] and [61]
Exhibit EK-1.3, Report of Samuel Ardasinski of 1 March 2016, at [49]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2016

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