State of New South Wales v Sotheren

Supreme Court of NSW|2019-02-04|Before: Campbell J, Johnson J, Beazley JA, Wood CJ

Judgment

The State of New South Wales ("the State") by Amended Summons filed in Court, without objection, on 4 February 2019 applies for an extended supervision order requiring the defendant, Mr Sotheren, to comply with onerous conditions under ss 9 and 11 Crimes (High Risk Offenders) Act 2006 NSW ("the Act").
Mr Sotheren is subject to an Interim Supervision Order under s 10A of the Act which commenced on 25 May 2018 (State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 745, Johnson J). The order made by Johnson J was suspended by dint of s 10C (1A) when Mr Sotheren was taken into lawful custody on charges under s 12 of the Act of having breached the conditions of the ISO and for the offence of malicious damage to property. The parole he had been serving when Johnson J made the ISO was revoked on 5 June 2018. When the additional term he was serving expired on 14 July 2018, Mr Sotheren remained in custody on remand in respect of the new charges until he was released to bail granted by me on 20 November 2018 on condition that he strictly and completely comply with the terms of the ISO which re-commenced its operation after his release.
The ISO has twice been extended under s 10C(2) of the Act and expires on 8 February 2019. No further renewals are permissible under the Act.

Mr Sotheren's concessions were properly made - The s 5B statutory preconditions

When the summons seeking an Extended Supervision Order was filed on 13 April 2018, Mr Sotheren had been released to parole (on 9 April 2018) and was serving the balance of the sentence of imprisonment in the community which had been passed on him by his Honour Judge Craigie SC in the Parramatta District Court for an offence of aggravated robbery inflicting grievous bodily harm. That offence had been committed on 1 March 2012 while Mr Sotheren was on parole (since 4 January 2012). This parole formed part of a sentence passed on Mr Sotheren after a successful Crown Appeal to the Court of Criminal Appeal (Beazley JA (as the President then was), Wood CJ and CL and Carruthers AJ agreeing) for the offence of manslaughter by unlawful and dangerous act. The manslaughter offence was one of a number of violent offences for which he was sentenced at the same time. The total effective sentence imposed by the Court of Criminal Appeal was one of 12 years imprisonment expiring on 6 September 2012. The non-parole period was one of 6 years. The sentence imposed by Judge Craige was partially accumulated on these earlier sentences to commence on 1 June 2012 and expire on 14 July 2018.
These facts satisfy the three pre-conditions established by s 5B(a) - (c): Mr Sotheren is an offender who has served a sentence of imprisonment for a serious violence offence: s 5A(1)(a) and (2A),(b); he was a supervised offender within the meaning of s 5I at least because he was serving a sentence of imprisonment by way of release on parole for another offence (the aggravated robbery of 1 March 2012) that was being served partly concurrently and partly consecutively (accumulated) with the sentence imposed for the manslaughter by unlawful and dangerous act: s 5I(2)(a)(iv) and (3); and the application was made in accordance with s 5A(1), that it is to say when it was made (on 13 April 2018) Mr Sotheren was a supervised offender.

Unacceptable risk

The fourth pre-condition is that established by s 5B(d). The Court "may" make an extended supervision order if I am satisfied to a high degree of probability that Mr Sotheren poses an unacceptable risk of committing another serious offence if not kept under an extended supervision order. Although this is conceded it is necessary for me to set out why I agree that the concession was properly made.
As the use of the word "may" in the chapeau of s 5B makes clear, the power to make an Extended Supervision Order under s 9 of the Act is discretionary: see also s 9(1)(a). But the question of whether Mr Sotheren poses an unacceptable risk if not kept under supervision in the statutory sense involves an evaluative judgment having regard to all of the evidence properly admitted at the hearing. This evidence will extend to evidence of the matters listed in s 9(3) as mandatory considerations to which the Court must have regard. Although those considerations are not mandatory for the purpose of making the evaluation required by s 5B(d), it is apparent that they are pertinent to the assessment of risk and the means by which it may be controlled, if at all.

Personal background

Mr Sotheren was born on 14 January 1972 and is now 47 years of age. He is of indigenous background.
The circumstances of his childhood and upbringing were extremely disadvantaged. Because of his mother's inability to care properly for him and the violence inflicted by her partners from time to time, Mr Sotheren was placed into State care in a government institution at about the age of 6. He was a victim of child sexual abuse in this institution. His long history of self-harm dates from this period.
He has no dependents and his long and regrettable history of incarceration has denied him the opportunity of forming a permanent domestic relationship. However, since his release on bail on 20 November 2018 he is said to have formed a relationship with a woman he has known for a number of years which is progressing well.

Criminal history

Mr Sotheren's criminal history is very significant. For present purposes it may be taken to have commenced on 14 May 1990 when he was 18 years old and he was convicted in the Northern Territory of offences of stealing, criminal damage and aggravated assault.
On 13 July 1990 he committed the offences of assault and robbery. He stole a motor vehicle by violence, punching the victim in the face. The victim suffered a broken nose, lacerations and bruising. The victim had offered Mr Sotheren a lift when the latter was in an apparent state of intoxication. Mr Sotheren claimed that the offending was a response to a sexual advance made to him by the victim. He failed to appear in answer to the charges. A bench warrant was executed at the time of his arrest for other offending on 18 April 1993.
He had apparently absconded to Queensland in the interval because there, on 19 November 1991, he committed a serious assault on a police officer and an assault occasioning actual bodily harm for which he was convicted and sentenced to a term of imprisonment of 8 months. He escaped from custody on 3 April 1992 and committed a further offence of occasioning actual bodily harm. He was sentenced to an additional term of six months imprisonment.
After his release from custody in Queensland he returned to New South Wales, but was soon re-offending. On 23 January 1993 he committed the offence of robbery with striking, and an assault occasioning actual bodily harm. He had agreed to a proposition to engage in paid sex acts with a 56 year old male at Kings Cross. The victim took Mr Sotheren back to his home. After payment, Mr Sotheren returned to the apartment demanding further payment, which was forthcoming. He returned again seeking a much larger payment. When the victim refused, Mr Sotheren punched him in the face with sufficient force to knock him out cold. The victim suffered serious head and facial injuries. Mr Sotheren stole an additional sum from him while he was unconscious.
On 24 February 1993, at knifepoint, he demanded that his victim withdraw cash for him from an ATM. The victim suffered a wound but was able to escape before payment.
On 17 April 1993 Mr Sotheren befriended a male and a female at a park in Wollongong. He was invited back to their home where the female offered to cook a meal. The male left to obtain the ingredients and in his absence Mr Sotheren snatched the female's purse and made off with it. The purse contained $100.
Later that same day, Mr Sotheren robbed and assaulted a 56 year old man in a carpark. As a pretext, Mr Sotheren asked the driver of a parked car for a light for his cigarette. When the victim exited the vehicle to oblige, Mr sotheren punched him with sufficient force to render him unconscious and stole his car.
He was arrested for these 1993 offences and for the 1990 offence on 18 April 1993. At the proceedings on sentence before his Honour Judge Court QC in the District Court on 1 November 1993, a report of Dr Olav Nielssen, Forensic Psychiatrist, was read on behalf of Mr Sotheren. Dr Nielssen diagnosed borderline personality disorder characterised by instability of mood with episodes of depression and anger. Self-harm by way of self-mutilation was a feature of his symptom complex.
He was sentenced to a term of imprisonment of 7 years and 1 month, with a non-parole period of 2 years backdated to his arrest on 18 April 1993. An application for leave to appeal against the severity of the sentence was abandoned.
While on parole for the 1990 and 1993 offending, on 9 and 10 May 1999, Mr Sotheren committed two offences of robbery inflicting grievous bodily harm, three aggravated robbery offences and the manslaughter offence. This series of serious offences was committed between 9:40 p.m. on the 9th and 4:45 a.m. on the 10th. It involved attacks on five separate victims. Each victim was punched to the face or head and their wallets stolen. Each incident involved significant, excessive violence. The first victim suffered fractures to his skull, nose and eye socket. The second victim was attacked while waiting to be picked up by his wife after work. He was knocked to the ground by a blow to the head. Mr Sotheren stomped on his head while he lay defenceless on the ground. He stole the victim's wallet containing $1,900. This second victim died from his severe brain injury giving rise to a murder charge, initially, for which the Crown accepted a plea of guilty to manslaughter in full discharge of the indictment. The fourth victim was attacked with a rock and knocked to the ground suffering facial fractures. And the fifth victim was struck repeatedly about the head suffering a fractured pallette. Mr Sotheren stole $800 from him. The third victim was the most fortunate of the five, suffering lacerations and bruising only.
After this violent rampage, Mr Sotheren fled to Melbourne where he was arrested on 4 June 1999 for other offences before being extradited to New South Wales.
He was sentenced on 15 June 2001 on his guilty plea to all offences by Dowd J. A Crown appeal, as I have said, at [5] above, was successful. The total effective sentence for all offending was one of 12 years imprisonment with a 6 year non-parole period.
In the course of her judgment Beazley JA said (at [23]): "There is no way in which these offences could be described as falling into the category of "uncharacteristic aberration". On the contrary, serious and violent crime has been the characteristic behaviour of the respondent for over a decade. The significance of this criminal history for the proper sentencing process required in this matter is even more apparent when considered with the next matter raised by the Crown, namely the fact that the subject offences were committed whilst the respondent was on parole during the additional term imposed on 1 November 1993 ….". And at [56] her Honour said: "... In the sentences which I propose and the manner in which I consider they should be structured, the respondent will be sentenced to a lengthy period of imprisonment. The respondent has significant personal and behavioural problems, including his drug addiction and his aggression, for which he clearly needs treatment. The recent [psychiatric evidence] … indicates that for the first time over a long period, the respondent has gained some insight to his problems and behaviour and that there are now prospects of rehabilitation which were not apparent previously. Those prospects should both be acknowledged and accommodated …"
Mr Sotheren was not released on parole for these offences until 6 September 2008. Within a period of only a little over two months, on 27 November 2008, he committed a break and enter offence, not involving violence, which led to the revocation of his parole after his arrest on 16 January 2009.
He was released to parole again on 4 January 2012 for the 1999 offending. But he committed yet another crime of violence on 1 March 2012 while on parole, the offence being one of aggravated robbery. As I have said above, this is the offending which led to the sentence imposed by Judge Craigie.
The offence was one of significant violence. As seems usual with Mr Sotheren's past offending the victim was unknown to him. Violence alone seems to have been the initial motivation. Judge Craigie assessed the assault as "particularly brutal". On the material available to me, I agree. As the victim passed by Mr Sotheren, the latter struck him hard enough on the left side of his face to knock him to the ground. Mr Sotheren then kicked him in the upper body and dragged him toward a garage where he attempted to bash the victim's head against the door. He attempted to knee the victim in the head. The victim suffered injuries to his left eye and upper cheek, a deep laceration to his scalp and cuts and grazes to his limbs. The most serious injury, however, was a left orbital floor blow-out fracture requiring surgery to fix the complex fracture with the insertion of a metal plate.
Mr Sotheren had been consuming large quantities of crystal methylamphetamine at the time of this offending which caused sleep deprivation.
A number of psychiatric reports were read at the proceedings on sentence from Dr Martyn Patfield, Dr Bruce Westmore (from 1993), Dr Jonathon Adams and Dr John Taylor. All, perhaps apart from Dr Westmore, diagnosed borderline and anti-social personality disorder. It was obvious that he also suffered from a substance use disorder involving psycho-stimulants. One infers that the expert regarded Mr Sotheren's prognosis as problematic, in as much as each was somewhat pessimistic about the risk of recidivism and the need for ongoing supervision, management and support in the community upon release.
Dr Westmore did not in terms diagnose a personality disorder. He described Mr Sotheren's condition as a conduct disorder and a substance abuse disorder. He also identified a co-morbidity of Post-Traumatic Stress Disorder with depression. From other evidence I have received at this hearing, this is probably due to Mr Sotheren's exposure to childhood sexual abuse.
As I have said, Judge Craigie assessed the attack as a "particularly brutal one". It was characterised by "persistent, considerable and utterly gratuitous violence." His Honour said the following when assessing the risk of re-offending: "Whilst episodes of offending in a person such as the offender presents raises the further implication of continued defiance of the law, I do not find the matter to be quite that simple. He is a person in whom the foundations of stable living have never really been laid down. I accept that the psychiatric history shows a number of features that spring from this reality. Unfortunately, the dominant feature now is one over which the offender must exercise some control himself if there is to be any realistic prospect of lowering his risk of re-offending. That matter relates to the frequency with which when encountering problems, he resorts to the use of illicit drugs."

Engagement in rehabilitation programs

Despite the long years Mr Sotheren has spent incarcerated, he has not had the benefit of much by way of intensive rehabilitation. As Mr Samuel Ardasinki pointed out in his Risk Assessment Report of 15 December 2017, prepared in conjunction by Ms Janelle Farroway, the High Risk Offender Applications and Operational Governance Officer within Corrective Services, who gave oral evidence at the hearing, Mr Sotheren was initially resistant to participation in programs which may have been available to him. Later in his sentence when he became more receptive to the prospect of rehabilitation there was insufficient time for him to complete intensive courses.
On 17 August 2015, he commenced group sessions in the Self-Regulation Program for Violent Offenders ("SRP-VO"). He attended eleven sessions before withdrawing. There were a number of difficulties encountered by him during the program. First, Mr Sotheren's symptom of self-harm in the form of ingesting sharp objects resulted in two admissions to hospital for surgery, the first on 8 September and the second on 17 October, 2015. Secondly, during this period he became involved with the Royal Commission into Institutional Responses to Child Sexual Abuse. Those who were engaging with him from the Commission thought it inappropriate for him to engage in high intensive therapy such as the SRP-VO program due to the risk of re-triggering his childhood trauma.
He had previously engaged in the lower intensity course of Getting SMART to assist with rehabilitation from the abuse of alcohol and other drugs and the Controlling Anger and Learning to Manage it Program. However, these were back in 2008, quite a long time ago now. His offending since has shown that he not derive long-term benefit from either.

Progress and compliance with conditional liberty

I have already dealt with Mr Sotheren's inability to comply with parole until he was sentenced by Judge Craigie for the 2012 offending. He was released to parole again on 14 July 2016, initially to the Nunyara COSP, later living independently in temporary accommodation in Wollongong. On 28 January 2017, he was charged with intimidation after his eviction from the temporary accommodation. He was in an intoxicated state and became agitated over the refusal of his re-entry to the premises. He threatened to harm the nightshift attendant. He was arrested by police within the curtilage of the premises. His parole was revoked and he was returned to custody. Charges arising out of this misconduct were discharged under s 32 Mental Health (Forensic Provisions) Act 1990.
He was last released to parole on 9 April 2018. It was a condition of the parole that he undertake Koori SMART sessions and live at Victory House Residential Rehabilitation Centre at Tweed Heads in northern New South Wales. While en route to the residential centre he apparently decompensated and ingested metal fragments. This lead to his admission to the John Hunter Hospital in Newcastle for a short period. Upon his discharge from hospital he was redirected to supported accommodation in Wollongong and given a verbal direction to remain the Wollongong area. Notwithstanding this direction, he stayed overnight on 1 May in the Nowra area, albeit informing Community Corrections of his intentions.
Although he had attended the Aboriginal Medical Service as required on 19 April 2018, there was a waiting list for counselling treatment and none was then available. On 30 April 2018 he admitted to Corrective Officers that he had not taken his mental health medication since release and on 3 May 2018, he tested positive for amphetamine-type drug and admitted to Corrections Officers that he had used both cannabis and ice. Again, on 25 May 2018, the day Johnson J made his orders, Mr Sotheren admitted to Community Corrections Officers that he had been using cannabis as self-medication for pain. He was warned to desist from cannabis use and again referred to a drug and alcohol counselling service. He was directed to attend his GP for pain management.
On 3 June 2018, police were called to Mr Sotheren's accommodation. When they attempted to speak with him, he refused to open the door. While police were attempting to persuade Mr Sotheren to let them in, they heard the smashing of glass inside the unit.
Mr Sotheren also had barricaded himself inside the accommodation. In their attempts to force entry to the premises, police introduced capsicum spray generally into the unit leading to Mr Sotheren granting entry. Police noticed a laceration to his hand, presumably related to the smashing glass, and two hypodermic syringes in his pocked. On questioning he responded, "I've taken cannabis and ice". The use of drugs was of course a breach of the conditions of the ISO made by Johnson J and the defendant was arrested and charged with this contravention under s 12 of the Act together with damage to property. He was returned to custody and his parole was revoked on 5 June 2018.
As stated above, he remained in custody until granted bail by this Court on 20 November 2018, bail having been refused in the Local Court on 4 September 2018. The charges for which he had been on remand were subsequently withdrawn by the prosecuting authorities before hearing in January 2019. As I have stated already, the conditions of his release to bail on 20 November were that he comply strictly and completely with the terms of the ISO made by Johnson J on 25 May 2018.

The course of events in custody between 3 June 2018 and 20 November 2018

There seems to have been a very sharp decline in his mental health condition while in custody from 3 June 2018. After the expiration of his head sentence on 14 July 2018, Mr Sotheren was exhibiting a recrudescence of his self-harming behaviour which led to an admission to the Acute Crisis Management Unit (ACMU) at Long Bay Correctional Complex. He had had admissions to this unit for the same reason, once in 2015, and again in 2017. On 20 July 2018, he was admitted to the Prince of Wales Hospital for treatment following the suspected ingestion of foreign objects, but discharged himself on the same day.
He was assessed on 27 July 2018 by Ms Cieplucha, a psychologist employed at ACMU. She assessed Mr Sotheren to be a low immediate risk of deliberate self-harm. In her opinion, Mr Sotheren's current self-harming behaviour resulted from maladaptive coping strategies to regulate to his distress. She regarded his risk as chronic, but was of the view that prolonged placement in a restrictive environment like ACMU would exacerbate the risk. Accordingly he was discharged from the unit that day to the Metropolitan Special Program Centre (MSPC) at the correctional complex. He was reassessed on 6 August 2008 and although mildly agitated he was assessed not to have decompensated since his discharge from ACMU.
Following the refusal of bail on 4 September 2018, Mr Sotheren was reported to have ingested wire in his frustration or distress at being kept in custody. He was admitted to the Long Bay Hospital on 5 September 2018 for treatment and transferred to the ACMU on 6 September. While in the ACMU he was agitated, in a heightened emotional state, and was sometimes abusive to staff.
On 30 October 2018 he was found to have poor frustration tolerance and a tendency to "vent to staff" when frustrated but was "responsive to a calm, and emphatic approach".

Progress since his release to bail on 20 November 2018

Given what can only be described as his poor history of compliance with parole conditions and for the brief period he was subject to it, the ISO prior to 3 June 2018, Mr Sotheren appears to have improved in his compliance since 20 November 2018. However it must be borne in mind that for much of that period he was hospitalised, and because of the bail condition to reside in somewhat restricted accommodation, he has only been permitted to live independently since 25 January 2019, a matter of eleven days before the hearing.
Regrettably he continues to suffer from medical complications affecting the contents of his abdomen related to his past history of self-harm by ingestion of sharp objects. He was admitted to Campbelltown Hospital from 23 to 24, and 27 to 28, November 2018 due to abdominal pain. He was re-admitted on 2 December 2018 for acute bowel pain, was found to have a septic, perforated bowel, which necessitated him undergoing a laparotomy and small bowel resection urgently on 3 December 2018. A further exploratory operation was required on 6 December 2018. The likely sharp object which caused the perforation was not located at either operation.
While recuperating in hospital on 13 December 2018 he was psychiatrically assessed and was found to be settled in mood and behaviour. He was receiving psychotropic medication with which he was compliant. Notwithstanding this he found his time in hospital, and the nature of the treatment, stressful and he was anxious to be discharged. This did not occur until 29 December when his medical condition, including his surgical wounds, had stabilised.
After his discharge from hospital and while living in the Campbelltown Integrated Support Centre conducted by Community Corrections, Mr Sotheren suffered complications with his surgical wound necessitating his return to hospital on 8 and 9 January 2019. Understandably he was very agitated about this development, and given his experience on 3 June 2018, was most anxious that the police not be called. He seemed to accept the explanation given by the workers at the Centre that they had no control over such matters and emergency services followed their own procedures. In the event the police did attend and arrived before the ambulance, but fortunately there was no "incident". When he arrived at the hospital medical staff were concerned about his mental state and there is a suggestion in the Offender Information Management System ("OIMS") case notes that he was "scheduled" under the Mental Health legislation to keep him in hospital until his mental state could be assessed. He also underwent a CT scan which apparently showed some lesions in his bowel requiring further investigation.
Mr Sotheren became very agitated about being "scheduled" and rang the officers at his accommodation to complain about it mainly because he believed, from what he had been told at the hospital, that Community Corrections had requested that step be taken. He seemed to respond to the explanation he was given that this was not so and the step was taken by the doctors at the hospital on their own initiative. I interpolate that the OIMS case notes demonstrate that although he is liable to become agitated or frustrated from time to time with constrains on him he is generally prepared to listen reasonably to explanations provided and respond appropriately.
As I have said he has only been living independently for a short time. Too short a time to draw any inferences from. He was appropriately very excited about the prospect of gaining independence and having responsibility for leading his own life.
He has formed a personal relationship with Antoinette Gaudoloisi, whom he first met about 3 years ago during an earlier short period on parole. Although Community Corrections have concerns about Mr Sotheren's ability to form a positive relationship, the evidence before me is that generally Community Corrections regard the formation the relationship as "pro-social" and a "protective factor" for Mr Sotheren (20.40 - .45T). Mr Sotheren consented to officers of Community Corrections speaking with his partner to explain his criminal history and the constraints inherent in the ISO. Although both he and his partner have been understandably, I think, somewhat guarded about what they doubtless regard as intrusive inquiries by Community Corrections Officers into the nature of their relationship, they both have been prepared to answer questions about it when asked.
It is also apparent that during the time since his discharge from hospital he has re-engaged with Aboriginal support groups in the community, including men's groups, alcohol and other drug counselling and the Aboriginal Medical Service. All of this has occurred with the approval, co-operation and facilitation of Community Corrections officers who also regard this involvement as "pro-social".
The officers of Community Corrections are concerned that Mr Sotheren's current rented home unit at Kingswood is beyond his means. When this was discussed with him before he took up residence there, he indicated that his partner would assist financially. Ms Gaudoloisi told Community Corrections officers that she would not contribute to the rent, but would assist in other ways.

Current status

It is important to observe that since 20 November he has been compliant in all respects with the conditions of the ISO, and has accepted directions as required by the ISO from Community Corrections officers. Importantly, he appears to have been entirely sober from both alcohol and illicit drugs. He has contacted officers promptly when there has been a need to depart from his schedule. And it must be said officers have generally been flexible in these situations. Although the conditions of the ISO are burdensome, notwithstanding his occasional frustration, he ha,s as I have said, complied and accepted explanations about the need for compliance.

Dr Ellis

Dr Ellis examined Mr Sotheren on 25 October 2018. On presentation, Mr Sotheren exhibited no psychotic symptom and said he was compliant with the medication he had been prescribed for various medical and mental conditions. He seems to have provided a relatively full and frank history. He was open about his history of attempted suicide and other forms of self-harm which he said found difficult to control. He recognised that his offending behaviour was associated with drug abuse and he told Dr Ellis that he was motivated to remain free of drugs.
Dr Ellis diagnosed a severe Personality Disorder, Post-Traumatic Stress Disorder probably related (as I have said), inter alia, to child sex abuse and other trauma at crucial stages of his development, and Substance Use Disorder. There was no evidence of obvious gross cognitive impairment. Dr Ellis assessed Mr Sotheren's risk of committing a serious violent offence in the future. He administered actuarial guides familiar in this area including the Violence Risk Appraisal Guides - Revised (VRAG-R), the Historical Clinical Risk 20 (HCR-20) and the Violent Risk Scale (VRS). Dr Ellis acknowledged the limitations of these actuarial tools or scales which, in practice, he did not regard as superior to unaided clinical impression.
In Dr Ellis' opinion is that absent treatment or supervision, "the defendant falls into a group of persons with a risk for violent offending that is statistically high in frequency with potential for serious consequences in his case". Treatment and supervision "would likely reduce the risk" (page 13). The factors informing this conclusion included profound disadvantage and exposure to violence in childhood, impoverished insight into his own propensity for violence, the uncertainty about Mr Sotheren's ability to transition into a fully pro-social life situation, particularly having regard to his vulnerability to stress, and his past pattern of serious violence offences.
Dr Ellis considered the applicant needed substance abuse treatment. He reviewed the risk management plan embedded in the ISO and considered that this regime of supervision would significantly reduce the risk. Appropriate accommodation was an important consideration.
Dr Elllis was of the view that any extended order should be of the maximum five year duration. Given the chronicity of Mr Sotheren's personality disorder and his co-morbid psychiatric conditions, stabilising him in the community could take as long as three years. A further 24 months of programmed activity and monitoring would be advisable.

Ms Jenny Howell

Ms Jenny Howell, forensic psychologist, assessed Mr Sotheren on 5 November 2018. She did not observe psychotic features in his presentation and Mr Sotheren expressed no suicidal ideation to her. She formed the impression that he had difficulty identifying protective factors against further offending and had become agitated at his ongoing incarceration. He seems to have provided, again, with a full and frank history.
Ms Howell administered the VRS, and the HCR-20 V3. In her assessment Mr Sotheren's scores on both tests put him in the high risk category for future violence. The risk factors included his past history of violence, chronic substance abuse, major mental disorder, personality disorder, lack of insight and "extremely harmful coping strategies" by way of self-harm. She too regarded the plan embedded in the ISO as reasonable and appropriate (page 11). She considered an order of not less than 5 years would be required to address the risks.

Risk assessment report by Samuel Ardasinski dated 15 December 2017

Mr Samuel Ardasinski is a senior psychologist employed by Corrections New South Wales. As I have mentioned already, he prepared a risk assessment report as long ago as 15 December 2017. His affidavit sworn on 14 December 2018 was also read in the proceedings. For the purpose of the affidavit he reviewed other relevant evidence read in the proceedings and the OIMS case notes. He has summarised the salient features of the history I have set out since 25 May 2018. None of the developments to the time of swearing his affidavit in December altered the opinions expressed in his earlier report.
Mr Ardasinski formed the opinion that Mr Sotheren was overall in a "high-risk category for violence when compared to other male offenders". He too administered the actuarial tools I have already referred to obtaining results in the same range as the court appointed experts. Given what I would regard as Mr Sotheren's institutionalisation. Mr Ardasinski is concerned about his ability to establish a pro-social life. He did consider that Mr Sotheren had "likely started on his trajectory away from serious violent offending, but he was not very far along it". He was of the view that intensive supervision of the type generally imposed by an ESO would assist Mr Sotheren to establish a pro-social structure. I infer that in his view the risk would remain, but would be reduced.

Community Correction's ability to manage Mr Sotheren

I have received affidavit evidence from not only Ms Faraway, but also Ms Karen Langden, a Community Corrections Officer regarding the proposed plan of management for Mr Sotheren. Ms Angel Ryback has also provided an affidavit, sworn on 18 December 2018. She is the Senior Electronic Monitoring Officer and describes the system of electronic monitoring and its purpose. I am satisfied that the plan developed by Community Corrections is capable of reasonably and practicably managing Mr Sotheren in the community. It involves a multi-faceted approach including electronic monitoring, movement schedules, curfew, counselling, referral to appropriate psychiatric and rehabilitation services, random drug and alcohol testing and spot checks on compliance.
Mr Sotheren's compliance will be reviewed bi-monthly and his progress quarterly by a multi-disciplined team.
Although the best available plan is unlikely to be entirely risk free, what is proposed is in my view adequate to appropriately and reasonably control and manage the risk that Mr Sotheren presents.
Given Mr Sotheren's good progress during the limited time that has elapsed since the end of December 2018 and his stated determination to continue to comply, I am of the view, so far as these things may be judged prospectively, that there are good prospects that he will comply with the obligations of an Extended Supervision Order, if made. I have come to this view notwithstanding the difficulties he has exhibited in the past in complying with the terms of parole. An Extended Supervision Order provides a different level of supervision and requires an additional degree of engagement from the offender.
Mr Sotheren's December hospitalisation resulted from a life-threatening condition from self-harm which, so far anyway, seems to have had a salutary effect upon Mr Sotheren's thinking. I accept the sincerity of his determination to turn his life around.
The aforegoing covers the matters to which I am required to have regard under s 9(3) of the Act.

Finding as to unacceptable risk

I am satisfied to the requisite statutory high degree of probability that Mr Sotheren poses an unacceptable risk of committing another serious offence if he is not kept under an Extended Supervision Order. Notwithstanding the recent positive developments and progress that Mr Sotheren has made, it would certainly be premature to decide that he currently posed a risk of further offending that was reduced below the level of unacceptability. To put it another way, notwithstanding recent developments, the risk he presents is not acceptable. I say this having regard to the primary object of the act to ensure the safety and protection of the community.
This finding results from a combination of factors, his profound childhood deprivation leaving him bereft of the skills that persons not so afflicted acquire, as part of the process of attaining maturity, to cope with disadvantage and stress in a lawful and pro-social way; the effects of his serious personality disorder and mental disorders including importantly his substance abuse disorder; his past criminal history; his history of poor compliance with conditional liberty; and the results of the actuarial assessments coupled with the clinical judgment of the court appointed experts. My impressions drawn from all of these matters have been set out above.

Should an extended supervision order be made?

I approach the question of whether an extended supervision order should be made, by bearing in mind: the discretionary nature of the judgment called for; the primacy of community safety as a factor governing the exercise of that discretion; the s 9(3) factors discussed above; and the conditions available and their impact upon Mr Sotheren's general right to be at liberty.
All of the reasons I have given so far leave no serious question about whether an order should be made. The concession made on behalf of Mr Sotheren was properly made. Despite the burdensome nature of the conditions to which he is subject under the ISO and their serious restrictions upon his liberty, I am of the view not only that they are necessary from the standpoint of community safety, given the nature of the risk I have assessed, but also they have provided, in the short time to which he has been subject to them in the community, an important spur to his engagement in a pro-social, law abiding and drug-free lifestyle. I am satisfied that an extended supervision order should be made.

Duration of the order

Mr McGorey of Counsel, for the State contends for an order for the maximum duration of five years and in so contending relies upon the opinions of the court appointed experts, Dr Ellis and Ms Howell. Ms Cook argued that the positive progress made by Mr Sotheren in adopting a pro-social lifestyle and the encouragement of his rehabilitation suggested something less than five years only was necessary. She suggested three years was a maximum appropriate term. She frankly submitted that this submission was partly based upon the positive effects of "a light at the end of the tunnel".
I appreciate fully that both community safety and the related object of Mr Sotheren's rehabilitation may be promoted by leaving Mr Sotheren with the sense that the end is in sight. On the other hand, the provision of false hope is no hope at all and is likely to be counter-productive. It is no answer to this to say that if the risk Mr Sotheren presents has not been sufficiently mitigated to the level of acceptability within three years the State can always apply for a further order.
In considering this question I have borne in mind that notwithstanding the apparent stringency of the conditions usually imposed in an Extended Supervision Order, they are subject to internal review frequently in the case of a compliant offender. They are applied flexibly; and depend in no small measure on the exercise of a discretion by Community Corrections officers. This means that in the case of a compliant offender who is progressing well, the burden of them can be greatly reduced as time goes on.
It is too early for me to tell whether the good progress made so far can and will be sustained in the medium to long term. I accept that the question is not one purely for the court appointed experts, but their rational approach to the question is worthy of some weight. In my judgment, in Mr Sotheren's case, a term of five years is appropriate.
Ms Cook urged upon me that I can have confidence in Mr Sotheren's prospects of rehabilitation by reference to his self-referral to services available to him, mainly as an indigenous person, in the community and the protective factor presented by his pro-social partner. I accept these may be important considerations, but it is too early to tell how effective they will prove to be in future. It should also be recorded, as I have said, that Mr Sotheren's engagement with these services has not been entirely self-referred and the OIMS case notes show that he has obtained assistance from Community Corrections officers in making contact with these services and facilitating his attendance.
I have no reason to doubt the sincerity of the applicant's partner or her positive effect upon his sense of well-being. Doubtless an important matter to reduce the risk of self-harm. However, Mr Ardasinski did point out that Mr Sotheren's partner was not convinced that he was "high risk". This is probably an understandable aspect of the human condition when people are forming attachments. But, it does legitimately cause some reservations about how protective a factor the relationship will prove to be when she may have a different view from that formed by me.

Conditions

I accept that the power to impose appropriate conditions is to be exercised for the purpose of addressing the unacceptable risk identified and having regard to the general rights to be at liberty and to privacy which members of the community, including Mr Sotheren, generally are entitled to enjoy. I also accept that the regime imposed should not be punitive. It may be onerous, but not unjustifiably so. The regime established by the body of conditions together ought not "simply be an expression of State paternalism": State of New South Wales v Bugmey [2017] NSWSC 855 at [89]. A number of the proposed conditions remain in issue.
Since the ISO was made the legal representatives of the parties have agreed to some changes. Other matters remain in dispute. A new version of the conditions proposed is attached to the Further Amended Summons. For identification I refer to these as the "new conditions".

Electronic monitoring and schedule of movements

Mr Sotheren objects to the requirements for electronic monitoring and providing a schedule of movements.. He points out that electronic monitoring was not a condition of his parole and has not shown to be required.
I fully appreciate that electronic monitoring is onerous and intrusive. However, it is an effective risk management tool, particularly when coupled with a schedule of movements. I am of the view that these matters are necessary for management of the risk. That Mr Sotheren's past offending has been spontaneous, and involves the infliction of gratuitous violence upon strangers, mainly for the purpose of robbery suggests a need to monitor his movements as a spur against backsliding. The OIMS case notes demonstrate that he is aware that his movements are monitored in this way and that he needs to contact a Community Corrections Officer to obtain approval for deviation from his previously approved schedule. The case notes also demonstrate, according to my eye, that in every case when approval was sought for cause it was granted. On one occasion only a time limit was sought to be imposed upon a deviation that Mr Sotheren asked approval for, leading him to decide to abandon the proposal. I did not regard the time limit as unreasonable.
The schedule of movements is a valuable tool for at least two reasons. First, it assists Mr Sotheren, who has been on any reckoning a very long time an inmate, to plan his activities while in the community. Secondly, it enhances the ability of Community Corrections to carry out monitoring of what are essentially flexible movements in his case. There's no suggestion that these measures have unreasonably impeded any activity in which Mr Sotheren has expressed an interest.
More importantly, I am persuaded by the evidence in the case, including the oral evidence of Ms Faraway that the electronic monitoring and schedule of movements conditions are designed to be flexibly applied. There is a bi-monthly review by the responsible Community Corrections Officer and a quarterly review by the multi-disciplinary committee. So far as these measures promote rehabilitation the intent is to move a compliant offender through four stages before the expiration of the ESO, the last stage of which involves no electronic monitoring or schedule of movements. On the evidence before me I am satisfied that this intent will underpin the application of the conditions.
Ms Cook has proposed a sunset clause on electronic monitoring, the import of which requires the progression of Mr Sotheren to the next higher stage of the program if he remains of good conduct for a period of 15 months. I understand that this is to ensure progress. However, it seems to me that given what I have said, the matter of progress ought to be left to those responsible for assessing it under the regime that the ESO imposes. I am of the view that new conditions 4 to 8 should be imposed. I wish to add only that in practise from my reading of the OIMS case notes greater flexibility has been permitted in practice than is suggested by condition 6 which requires 24 hours advanced notice of any proposed change. From my reading of the case notes, the Department Supervising Officer ("DSO") has frequently approved changes at short notice. On appropriate occasions I think this should continue.

New conditions 10 and 13 - curfew and persons staying overnight.

Mr Sotheren opposes the curfew which requires him to be at his approved address between 9 p.m. and 6 a.m. unless other arrangements are approved by his DSO. Given the pattern of his past offending, a curfew may be an important means of managing future risk. The terms of the curfew involve flexibility in as much as other arrangements may be approved. It would be my intention that such approval should be given readily when asked for good reason. And I would add to Condition 10 "which approval shall not be denied except for good reason". Condition 13 requires Mr Sotheren to "not permit any person to stay overnight … without the prior approval of his DSO". As I have said, he has formed a relationship (apparently at this stage it is not a sexual relationship) with an appropriate person, who has been informed of his record and the nature of his offending, and they intend that she will stay with him 3 or 4 nights a week. She normally resides in Wollongong. It seems to me unnecessary that Mr Sotheren should need to obtain approval each time Ms Gaudoloisi stays. I will add at the end of new Condition 13 that this condition does not apply to Antoinette Gaudoloisi.

Employment, finance and education

Mr Sotheren objects to new conditions 18, 19 and 20. Ms Cook argues that as he is a Disability Support Pensioner, it is unreasonable to make him subject to a power of direction to undertake employment or vocational training. Likewise the requirement that he notify Community Corrections of any job, volunteer work or educational course he seeks to undertake or has commenced. Moreover, a requirement that he can be required to provide information as to his financial affairs is objected to on privacy grounds.
In so far as new condition 18 is concerned, in my judgment the difficult that Ms Cook has adverted to can be overcome by adding to the end of it, the following: "The DSO is not to direct the defendant to make himself available for any employment or vocational training, unless he has been certified as fit for the employment or training as the case may be by a medical practitioner treating the defendant for his general medical or mental health conditions".
I am not satisfied there is any need to amend new condition19. As Ms Cook has pointed out the Mr Sotheren has engaged with community organisations mainly through the indigenous community and he may well be offered a job, voluntary work or an educational course which he is desirous of taking up. It's not unreasonable that Community Corrections should be informed of any such development., which is all the condition requires.
Concerning new condition 20, there are legitimate concerns about Mr Sotheren's financial position. I have already referred to the concerns that his rent is too high and he has taken advantage of low interest loans to purchase white goods and the like. Part of his past offending pattern was of course his use of illicit drugs. A reasonable suspicion about his relapse in that regard might justify the inspection of his financial records to detect expenditure which may be referrable to the purchase of illicit drugs. His right to privacy, I think, can be accommodated by amending the condition to add the following: "No direction under this condition may be issued other than on reasonable grounds explained to the defendant when the direction is made".
Mr Sotheren's concern about residential rehabilitation facilities should be assuaged by the consideration that the State is no longer requesting former conditions 27 and 28.

Medical reports

Mr Sotheren is concerned about his right to privacy in relation to the consent he is required to give by new condition 46 to enable his DSO and "other persons involved in his supervision" to obtain medical reports on his progress. He is particularly concerned about any treatment he might receive for the consequences of the child sex abuse to which he was subject when a ward of the State. I am satisfied that his concern in that regard is legitimate. Although that matter, on the evidence I have read, probably contributes to his Post-Traumatic Stress Disorder, it's not obvious that it is a factor which informs the unacceptable risk that I have identified. I propose that new condition 46 be amended by interpolating in the third line after the word "information" the following matter: "excluding communications with any health or para-health professional in relation to the matter of his experience of childhood sexual abuse". To my mind, Mr Sotheren's right of privacy in relation to that matter should be protected

Orders

For these reasons my orders are: 1. Under s 9 of the Crimes (High Risk Offenders) Act 2009 Darren James Sotheren is subject to an Extended Supervision Order for a period of 5 years commencing today 8 February 2019 and expiring on 7 February 2024. 2. Under s 11 of the said Act direct that Darren James Sotheren comply with the conditions set out in the schedule to these orders for the duration of the Extended Supervision Order.

This is the schedule setting out the conditions referred to in Order 2 pronounced on 8 February 2019

SCHEDULE A PROPOSED CONDITIONS OF SUPERVISION SCHEDULE OF CONDITIONS OF SUPERVISION Darren James Sotheren Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) Part A: Reporting and Monitoring Obligations Monitoring and Reporting The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO. The defendant must follow all reasonable directions by his DSO or any other person supervising him. Electronic Monitoring The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period. The defendant must not deviate from his approved schedule of movements except in an emergency. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Part B: Accommodation The defendant must live at an address approved by his DSO. The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO, which approval shall not be denied except for good reason". The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. The defendant must not permit any person to stay overnight, at his approved address, without the prior approval of his DSO. This condition does not apply to Antoinette Gaudoloisi.

Part C: Place and travel restrictions The defendant must not leave New South Wales without the approval of CSNSW. The defendant must surrender any passports held by the defendant to the Commissioner. The defendant must not go to a place if his DSO tells him he cannot go there. The defendant must not attend any place where alcohol or drugs are illegally sold.

Part D: Employment, finance and education If the defendant is unemployed, the defendant must make himself available for employment, education, training or participation in a personal development program as directed by the DSO. The DSO is not to direct the defendant to make himself available for any employment or vocational training, unless he has been certified as fit for the employment or training as the case may be by a medical practitioner treating the defendant for his general medical or mental health conditions". The defendant must notify his DSO of any job, volunteer work or educational course he seeks to undertake or has commenced. The defendant must provide any information as to his financial affairs, including income and expenditure if directed by his DSO. No direction under this condition may be issued other than on reasonable grounds explained to the defendant when the direction is given.

Part E: Drugs and alcohol The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed. The defendant must submit to testing for drugs and alcohol as directed by his DSO. The defendant must not enter any licensed premises without the prior approval of his DSO. The defendant must attend and participate in programs and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO and any persons treating the defendant in those programs.

Part F: Non-association The defendant must not associate with people that his DSO tells him not to. The defendant must not associate with any people who he knows will be or are consuming or under the influence of illegal drugs or alcohol without the approval of his DSO. The defendant must obtain that approval as soon as the defendant knows or becomes aware that persons he is associating with are or will be consuming alcohol. If the defendant starts a relationship with someone involving sexual or intimate contact, he must tell his DSO knowing the DSO may tell that person about his criminal history. Club affiliations The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation.

Part G: Weapons The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998.

PART H: Mobile phone and electronic communications The defendant must give his DSO a list of all mobile phone devices he possesses (identified by their make, model and identification number) and a list of all SIM cards and telephone numbers associated with the SIM cards that he possesses. The defendant must advise his DSO of any changes or updates to this list as soon as practicable. The DSO (or any other person requested by the DSO) may remotely inspect any mobile phones in the defendant's possession or that has been or is being used by the defendant and any electronic devices listed in condition 30 above. The defendant must obey any reasonable directions by his DSO about the use of his mobile phone including any reasonable directions relating to his access to his internet on any tablet devices, data storage devices, computers and any other electronic devices. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO for the purpose of the DSO supervising whether the defendant has contacted any persons to purchase illicit drugs or alcohol. Part I: Search and seizure If the DSO reasonably believes that a search (of the type referred to in sub- paragraphs d to g below) is necessary: for the safety and welfare of residents or staff or persons present at the defendant's approved address; to monitor the defendant's compliance with this order; or because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: search and inspection of any part of, or any thing in, the defendant's approved address; search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or search and examination of his person. For the purposes of the above condition: a search of the defendant means a garment search or a pat-down search. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. During a search carried out pursuant to condition 34 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: the safety of residents or of staff at the defendant's approved address; the welfare or safety of any member of the public or any other person; or the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to condition 34 above. Part J: Personal details and appearance The defendant must not change his name from "Darren James Sotheren" or "Darren James Donley", or use any other name without the approval of his DSO. The defendant must not change his appearance without the approval of his DSO. The defendant must let CSNSW photograph him. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Part K: Medical intervention and treatment The defendant must notify his DSO of the identity and address of any healthcare practitioner, any psychologist, psychiatrist or counselling service that he consults. The defendant must attend all psychological and psychiatrist assessments, therapy, support and treatment that his DSO tells him to attend for the purpose of addressing the defendant's risk of reoffending. The defendant must take all medications that are prescribed to him. If the defendant knowingly ceases to take mediation that has been prescribed to him, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. The defendant must agree to the persons referred to in condition 42 above sharing information including reports on his progress and information (excluding communications with any health or para-health professional in relation to the matter of his experience of childhood sexual abuse) he has told them with each other and, with his DSO and with any other persons involved in his supervision. 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: 08 February 2019

At a glance

Court

Decision date

Before

Source

Judgment (33 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)