State of New South Wales v Turk

Supreme Court of NSW|2017-05-31|Before: Davies J, Bell J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid (NSW) (Defendant) File Number(s): 2017/29939

Judgment

The State of New South Wales seeks an Extended Supervision Order in respect of the Defendant on the basis that he is a high risk violent offender. The Summons originally sought that the order be in place for two years. However, in the light of the evidence given by the two experts (a psychiatrist and a forensic psychologist) appointed to examine the Defendant, the Crown sought to amend the order to seek a period of five years. That amendment was not opposed by the Defendant and I granted leave to the Plaintiff to amend the Summons in that regard.

Legislation

The Crimes (High Risk Offenders) Act 2006 (NSW) relevantly provides: 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. 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. … 5J Application for high risk violent offender extended supervision order (1) An application for a high risk violent offender extended supervision order may be made only in respect of a supervised violent offender. (2) A supervised violent offender is a violent offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's current custody or supervision): (a) while serving a sentence of imprisonment: (i) for a serious violence offence, or (ii) for an offence under section 12, or (iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or (b) pursuant to an existing extended supervision order or continuing detention order. (3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention, intensive correction in the community or home detention and whether the offender is in custody or on release on parole.
Section 5A defines a "serious violence offence". That section provides: 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.
Section 9(3) lists the matters to which regard must be had in determining whether or not to make an Extended Supervision Order. That sub-section provides: (3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order).
In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 the Court said: [21] The expression "a high degree of probability" indicates something "beyond more probably than not"; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion "likely" as explained in TSL.
What amounts to an "unacceptable risk" in s 5E(2) was explained in Lynn v State of New South Wales [2016] NSWCA 57 as follows: [50] As the respondent pointed out in its submissions, by reference to dictionary definitions, the word "unacceptable" requires context in which, or parameters against which, the "unacceptable" risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is "so far from a required standard, norm[,] expectation, etc as not to be allowed". The Oxford Dictionary defines the word by reference to its antonym "acceptable". Something is "acceptable" if it is "tolerable or allowable, not a cause for concern; within prescribed parameters". [51] What the court, therefore, must find to be unacceptable is the "risk" that the offender poses "of committing a serious violence offence if … not kept under supervision". The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made. … [55] This Act provides, as stated in its Long Title, for the extended supervision or continued detention of high risk offenders. The purpose of the legislation, as the primary object of the legislation states, is to "ensure the safety and protection of the community". The evaluation of whether an offender is a "high risk violent offender" has to be undertaken in that context. The further context in which that evaluation is undertaken is provided by s 5E(2) itself, namely, whether the offender poses an "unacceptable risk" of committing a serious violence offence, when regard is had to the safety and protection of the community, unless the person is kept under supervision, either by way of making an extended supervision order or an extended detention order. As this Court pointed out in State of New South Wales v Donovan [2015] NSWCA 280 at [24], a finding that a person poses an "unacceptable risk" within the meaning of s 5E(2): "… is the gateway to the power to make an order under s 5F or s 5G … and applies to an assessment of likelihood ('unacceptable risk') in the absence of any supervision." (original emphasis) … [57] To the extent that there are differing approaches in the first instance authorities to the determination of whether a person is a "high risk violent offender" within the meaning of s 5E(2), I am of the opinion that the approach of Davies J in Richardson should not be followed insofar as that approach includes having regard to: "… the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order …" [58] Rather, the proper approach is to give the words of s 5E(2): "… their everyday meaning, in the context of the provision in which they appear, and having regard to the objects of the Act" as stated by R A Hulme J in Thomas (Final) at [38], and as I have explained above. [59] Before departing from the first instance authorities, it is appropriate to refer to a further matter. In Thomas (Preliminary) R A Hulme J made the following observation, at [20]: "Whilst bearing in mind the second of those two objects, I would regard the test in s 9(2) as being satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made." (emphasis added)
Justice Gleeson said in Lynn: [148] It can be readily accepted that orders for the supervision or detention of a "high risk violent offender" involve a significant restriction on the personal liberty of the subject outside the ordinary principles of the common law. The basis for that interference with liberty in specific cases is to be found in Parliament's determination that such orders may be made for the protection of the public. The pre-condition for the making of such orders is that the offender is a "high risk violent offender": s 5E(1), Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). It would subvert the language of the statute if the interests of the offender in liberty and privacy were to be taken into account in the assessment of the threshold of "unacceptable risk" in s 5E(2) of the Act. There is no "balancing" exercise involved in the court's assessment of the threshold of "unacceptable risk".

The Defendant's criminal history (s 9(3)(h))

The Defendant's offending began when he was about 13 years old. It first consisted of property offences but on 13 March 1985 he was given a suspended committal to an institution for 18 months for assault and rob.
Other offences of violence include assault occasioning actual bodily harm (1985, 1993 and 1995), assault and rob (1985), malicious injury (1987) and, significantly, attempting to discharge a loaded firearm with intent to prevent apprehension. For that offence, which involved him attempting to fire a rifle at police officers, he was sentenced to imprisonment for eight years in 1989 with a non-parole period of five years.
It may be accepted that none of the prior offending falls within the definition of a serious violence offence but the offence of attempting to discharge the loaded firearm must be regarded as significant because if the Defendant had succeeded in what he was attempting to do the result may have been death or grievous bodily injury to the police concerned. It is, therefore, necessary to summarise the circumstances of this offence.
On the evening of 31 August 1988 the Defendant was drinking at a hotel in Nyngan with two friends. A dispute broke out between them when the Defendant noticed a woman he was with talking to another man. He punched her, took her by the throat and shook her. The other friend tried to intervene but the Defendant pushed her to the floor where she hit her head as she fell. The publican's wife went to break up the fight but the Defendant pushed her to the floor causing her some bruising and an injury to the wrist.
The Defendant then left the hotel by a side door kicking in three glass door panes as he left. He went to the nearby home of one of the friends he had been with and took possession of a .22 calibre single shot Lithgow rifle and a quantity of ammunition.
The licensee of the hotel and his son walked towards the house which was behind the hotel. The Defendant came out into the lane way and pointed the rifle at the publican and his son saying "come and make my day". The Defendant admitted in the sentence proceedings that the rifle was loaded at the time and that he intended to use it to shoot the publican because he and his son were coming after him.
The police had been notified and two police officers came to the hotel. The Defendant ran across a street and discharged the rifle into the air. The police saw him and followed him to the railway goods yard. The Defendant then attempted to fire the rifle into the air but it failed to discharge. He re-cocked the rifle, stood up and pointed it at one of the police officers and said, "Here I fucking am, what are you going to do about it?" He again pulled the trigger but for the second time the rifle failed to discharge. The police withdrew to a position of safety and the Defendant attempted to fire another shot into the air but again the rifle failed to discharge. After some negotiations the Defendant threw the rifle down and invited the police to "blow him away".

The Defendant's time in custody

During the sentence for murder the Defendant incurred the following breaches of prison discipline: 16 September 2001 - smoking in a non-smoking area 2 March 2007 - smoking in a non-smoking area 19 June 2011 - failing to comply with corrective centre routine 17 March 2012 - intimidation 20 September 2012 - fail prescribed urine test 17 December 2012 - fail prescribed urine test 27 June 2015 - create or possess prohibited goods.
The Defendant was released on parole in October 2014. He breached his parole conditions in April 2015 as a result of a urinalysis showing that he had ingested methamphetamine. His parole was revoked on 13 April 2015. He was again released to parole on 11 November 2015 but another urinalysis during that time showed that he had again ingested methamphetamine. That parole was revoked on 6 May 2016. He thereafter served out the balance of his sentence which concluded on 16 March 2017 (s 9(3)f)).
After the Defendant was returned to custody he somewhat reluctantly commenced involvement in the Intensive Drug and Alcohol Treatment Program (IDATP). During part of the program he mentioned to facilitators on various occasions that he was considering self-discharging from the program due to lack of motivation and difficulty with managing his drug use. However, he continued with the program although he failed to attend four group sessions. During the program he was subjected on 37 occasions to drug testing. There were a total of 11 negative samples, four failures to attend, one occasion of failing to supply a sample and 21 occasions of positive samples for either Buprenorphine, methamphethamine/amphetamine or morphine, or a combination of those substances. Buprenorphine was the primary substance detected.
The conclusion of the senior psychologist was that the Defendant's motivation to address his drug use continued to be poor. She said: Overall, Mr Turk's continued externalisation of blame, minimisation of drug use and anti-authoritarian attitudes highlight a lack of insight and demonstrate a need for intensive intervention. (s 9(3)(e))
In the meantime these proceedings were commenced. They came before Rothman J for the making of an Interim Supervision Order. On 10 March 2017 Rothman J granted an Interim Extension Order which has been renewed three times and expires on 15 June 2017. His Honour also ordered that the Defendant be examined by two experts being a psychiatrist and/or a psychologist. Pursuant to those orders the Defendant was examined by Dr Andrew Ellis, a forensic psychiatrist, on 9 May 2017 and by Mr Patrick Sheehan, a forensic psychologist, on 1 May 2017.

Expert reports (S 9(3)(b), (c), (d) (e))

The Defendant was interviewed by Dr Richard Parker, a senior psychologist with the Serious Offenders Assessment Unit, on 24 August 2016. Dr Parker said that the Defendant had been assessed on three risk assessment instruments during 2016. The first of these is known as the Level of Service Inventory - Revised (LSI-R). This is an actuarial risk instrument consisting of both static and dynamic risk factors related to general reoffending. It is said to be a good predictor of general reoffending but a modest predictor of violence.
When the Defendant was last administered that instrument on 4 February 2016 he scored 36 out of a possible 54. On that basis he was assessed as medium/high risk with 67% of offenders who were assessed as medium/high risk of reoffending and returned to custody within two years.
Dr Parker administered a second instrument known as the Violence Risk Appraisal Guide - Revised (VRAG-R). This is an actuarial risk assessment tool specifically developed to assess the risk of violence for serious offenders. It assesses static risk factors to provide a probability of an individual's risk for violent (including sexually violent) offending over longer periods of time.
The Defendant's score was equal to or higher than the score of 87% of the construction sample. That placed him in the eighth of nine "bins" which would classify him as a high risk compared to other serious violent offenders. 58% of violent offenders with a similar score reoffended violently within five years and 78% within twelve years.
Dr Parker also administered an instrument called a Violence Risk Scale (VRS) on 5 August 2016. That is an actuarial risk assessment tool specifically developed to assess the risk of violence for forensic clients. It assesses both static and dynamic risk factors over the life-course to provide a probability of an individual's risk for violence.
The Defendant's score was classified as moderate risk and was similar to a group of offenders that had a violent recidivism rate of 34.5% after 4.4 years at risk.
Dr Parker then discussed the three instruments and concluded as follows: 40. While the VRAG-R is composed entirely of static items, the VRS has a maximum score of 18 for the static items and a maximum score of 60 for the dynamic items, giving the dynamic items more than three times the weight of the static items. The VRS was designed to incorporate changes resulting from treatment, whereas the VRAG-R was designed for the sole purpose of assessing risk. 41. Harris and Rice (2003), who were co-developers of the VRAG-R, argue that static items alone are best for the long term prediction of violence, as instruments such as the VRAG-R had reached a level of accuracy that "… leave little room for further improvement in long term risk prediction by dynamic risk factors" (p 199). Part of the reason for that is that dynamic factors (by definition) can change, and their status at the time of assessment may well be different at some point in the future, when the offender is at risk of reoffending. 42. Consequently, this assessment will favour the VRAG-R over the VRS, while noting that the LSI-R predicts a medium/high risk of further general offending.
Dr Parker noted that the Defendant had participated in a number of programs during his sentence. These included Think First - a cognitive program that aims to teach offenders skills needed to desist from offending; the Personal Effectiveness Program - a preparatory program for offenders entering the Violent Offenders Therapeutic Program (VOTP) in both 2002 and 2006; an Anger Management Program and the Getting SMART Program.
Dr Parker noted that since completing the VOTP the Defendant had engaged with the VOTP Maintenance and Outreach team.
Dr Parker noted that the Defendant grew up in an area where substance abuse and violent behaviour was relatively common. Once he was introduced to substances his use quickly became problematic. He noted that the Defendant's acts of violence had generally occurred in the context of substance abuse. He noted that, whilst the Defendant appeared to have some intention to avoid returning to his old lifestyle, his repeated use of amphetamines while on parole suggested that he either lacked the desire or the skills to carry that out.
Dr Parker's conclusion was that the Defendant was at high risk of further violent offending and that he would need an extended period of strict monitoring to implement and consolidate the skills and attitudes he learnt in the IDATP.

Dr Ellis

The Defendant told Dr Ellis that he started drinking alcohol at the age of 13 and would often drink four days out of every week. He said that he would black out and could not recall events that happened while drinking. He would often fight when he was intoxicated with alcohol.
He said he began smoking cannabis at the age of 16 but ceased doing so some 25 years ago. Between the ages of 30 and 32 he said that he injected speed and ice, and used heroin intravenously in those years.
In relation to his criminal history he said that he could not remember it. He said also that he could not remember committing the murder other than that it happened at night. However, he did not dispute the facts as set out in Bell J's judgment which I have earlier summarised.
Dr Ellis diagnosed him as suffering from a mild neurocognitive disorder, an anti-social personality disorder and a substance use disorder.
When considering the risk of the Defendant committing a further serious violence offence Dr Ellis said that actuarial measures such as the V-RAG or structured professional judgment tools such as HCR-20 V3 or VRS are able to allocate individuals with particular characteristics to risk groups, and those groups have been identified as possessing greater or lesser numbers of persons who have reoffended. He said the difficulty with this approach was that it did not discriminate between those in a particular risk group who do reoffend and those who do not. There was no particular advantage to actuarial scales over structured professional judgment scales but both were superior to unaided clinical impression. The scales tended to identify more correctly low risk groups who do not offend rather than high risk groups who do go on to offend.
Dr Ellis said that in reaching his opinion he had made reference to the HCR-20 V3 structured professional judgment tool. That tool identifies historical, largely unchangeable factors associated with violence risk, current clinical factors and anticipated future risk management items which are more amenable to change. He said there was a strong correlation between the HCR-20 V3 and the VRS which was used by Dr Parker in terms of violence risk prediction. He said those tools aided in the identification of fluctuating risk factors which moderate overall risk. Dr Ellis said that the Defendant's history including his criminal record, problems in relationships with short lived intimate relationships, the poor record of sustained employment and serious substance abuse all indicated a high loading of historical risk factors associated with violence in the longer term compared to the general prison population.
In relation to the Defendant's position when Dr Ellis assessed him, Dr Ellis noted that he displayed limited insight into his propensity for violence and little understanding of the need for treatment and management. He said that the Defendant's claim of amnesia for his offences was at odds with prior performance in the VOTP. He showed instability of mental state in the form of affective and cognitive instability (ambivalence, anger, stress and avoidance) in response to rehabilitative programs, particularly the IDAPT. Dr Ellis said that the Defendant had used substances in response to instability whilst in custody and in the community, and had not identified a strategy to control his emotional response and manage associated stress. All of these matters indicated a moderate to high loading of modifiable risk factors that rendered internal control of base line historical risk problematic.
Dr Ellis said that anticipated future problems associated with violence were limited personal community supports, likely problems consistently engaging in treatment and supervision indicated by substance abuse and other infractions in custody, together with likely subversion of rehabilitation and the problems coping with stress. Dr Ellis said that there was some evidence that his pattern of potential for violence had reduced with age but that conclusion was tempered by the fact that the Defendant had been subject to supervision or custody at all times since the index offence.
Dr Ellis said that the most likely violent acts would be impulsive and without weapons. In the absence of any treatment or supervision the Defendant would fall into a group of persons with a risk for violent offending that is statistically high in frequency with potential for serious consequences in his specific case and greater than a theoretical average offender. Specific treatment and supervision would likely reduce that risk.
Dr Ellis thought that the treatment and supervision plan in the Corrections Risk Management Report generally addressed the relevant risks posed.
Dr Ellis thought that from a psychiatric risk management perspective a period of five years' supervision was reasonable. A period of three years would be required to consolidate stable independent accommodation, maintain a stable mental state and regular meaningful activity both occupational and social in the community with a further 24 months of regular programmed activity coupled with regular review of medication as prescribed.
Finally, Dr Ellis noted that substance use was clearly a factor of concern associated with the violent offences and the general offence history. Dr Ellis thought the Defendant required psychosocial substance use treatment and monitoring, and referral to a forensic psychiatrist experienced in prescribing medication in the Defendant's population.

Mr Sheehan

Mr Sheehan's lengthy and detailed report is adequately summarised in the Executive Summary at the beginning of the report. That summary relevantly provides: Mr Turk is a 48-year old male who has recently served a custodial sentence of 18 years for 'murder', committed in 1999. This conviction is recognised as a serious violence offence as defined in the Crimes (High Risk Offenders) Act 2006. I understand that the State of NSW is applying for Extended Supervision Order of up to five years. Mr Turk's personal background remains somewhat obscured by his unreliability as a historian, but there are indications of poorly controlled behaviour in childhood, with early involvement in the criminal justice system, evolving into a pattern of substance abuse, antisocial lifestyle and disinhibited violence behaviour into adulthood. There are clear indications that Mr Turk's episodes of interpersonal violence has been heavily influenced by alcohol intoxication (embedded in a background of antisocial behaviour, hostile attitudes and an antisocial peer group). The role of other drugs (such as amphetamines and opiates) in precipitating his violent behaviour is less clear. His violent behaviour has tended to occur spontaneously, impulsively and expressively and is not contained to any particular gender or interpersonal relationship. In most circumstances of violence Mr Turk has felt that he had been wronged in some way immediately preceding the offence. Mr Turk has not engaged in any known violent or threatening behaviour since 1999. He has completed an intensive violent offender treatment program in custody and made good progress through the security classification system. However, his ongoing use of illicit drugs has undermined his ability to make any forward momentum during parole, incurring two revocations and ultimately serving the balance of parole in custody. He was released in March 2017 to an Interim Supervision Order and I have no reports to suggest there have been any difficulties over the past few months. Mr Turk's risk of committing a serious violence offence is estimated to be in the Medium to High risk category relative to other men who have offended violently. In the event that he shows the capacity to abstain from substance use and association with antisocial influences, I would revise his risk down the Medium range. His substance use and associates in the community are a live risk issue that were unable to be resolved in the course of his sentence for the index offence of murder. Until Mr Turk can demonstrate some autonomy in abstaining from substance use over time, he remains vulnerable to falling into scenarios where the risk of violence is heightened. Given his use of lethal force in the index offence there is a realistic likelihood that any future violence could escalate to a serious violence offence. In my view, an ESO of three years would be advantageous to assist Mr Turk to achieve the gains required stable community life. This period of supervision and support can work towards establishing and habituating him to a pro-social lifestyle until this behavioural repertoire becomes second nature. By assisting him to achieve this stable lifestyle as he moves into middle age, this may be sufficient to attenuate his risk in an enduring way beyond the expiry of supervision.
Mr Sheehan was the only one of the three experts who specifically considered the risk of the Defendant committing a serious violence offence as defined in the Act. In that regard he said this: 83. The overall totality of evidence suggests to me that Mr Turk would be considered to be within the medium to high risk category of violent offending relative to other adult male offenders. I have increased his risk estimate from that reached using the VRS due to the ongoing problems with substance use that have plagued his efforts at parole supervision. Whilst there is no evidence that he has used alcohol (which I find encouraging), his use of amphetamine-type substances brings him into contact with antisocial associates and increases the chance of heightened agitation, aggression, impulsivity and impaired decision-making. These are risk factors for violence such as that observed in his past. It is difficult to predict to what extent that any future violence would approach the threshold of a "serious violent offence" as defined in the Crimes (High Risk Offenders) Act 2006. However, Mr Turk's lethal force in the index offence suggests that the likelihood of a serious violence offence would be realistic should he follow his prior pathway to violence.
I note also, in the light of the Defendant's criticism of the experts for their heavy reliance on historical or static factors, Mr Sheehan dealt extensively in his report with the dynamic risk factors (paragraphs 60-80) and he found a number of those dynamic factors to be positive in the Defendant's favour.

Submissions

The Defendant submitted that the Court would not be satisfied to the requisite high degree of probability that he poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision. The Defendant pointed out that he had committed only one serious violence offence and his record in prison was good. He had completed a number of appropriate courses and had committed no offences of violence whilst on work release (prior to his parole period) or when he was released on parole.
The Defendant submitted that the way the experts had relied on the various protocols was flawed and pointed particularly to the failure of the experts to give sufficient weight to the dynamic factors, many of which were positive for the Defendant. The Defendant submitted that too much emphasis was placed on historical matters, particularly in relation to alcohol, where the Defendant had not drunk alcohol for the 18 years he was prison or when he was on parole or more recently on the Interim Supervision Order.
The Defendant submitted that the material, particularly from Corrective Services, showed that he has developed insight into his problems and particularly into the problems that alcohol had caused in the past.
The Defendant submitted that the analyses of the experts so far as they were was based upon statistical evaluation and the protocols related to general reoffending and violent offending as distinct from serious violent offending as the Act requires. The Defendant submitted that the sort of offences that constitute offences of serious violence make up a very small part of criminal offending and the risk of him getting involved in an incident that would escalate to that extent must be regarded as a remote risk.
The Defendant submitted that the experts had approached the matter on the basis of whether supervision would be of some therapeutic benefit to him or whether it might remove whatever risk does exist. The Defendant submitted that that was not the appropriate approach in order to comply with the test set out in the Act.
The Defendant submitted that little or no consideration had been given to the family support that he had both from his own partner and her children and his brothers and sisters. That support is demonstrated, it was submitted, in the case notes both before his release to the ISO and during the time he has been on the ISO.

Should an Extended Supervision Order be made?

I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision. My reasons for that satisfaction follow.
First, it may be accepted that the Defendant has committed only one serious violence offence being the index offence. In relation to that offence I have regard to what Bell J said in Turk at [23]: Notwithstanding that the deceased had earlier committed an unprovoked assault upon the prisoner, the killing remains objectively a very serious offence. It was the prisoner's account that he was scared of the deceased and that he wished to keep out of the deceased's way. The evidence showed that in the short period following the assault upon him he deliberately sought out the deceased. Rather than inform the police of his fears, he chose to exact private revenge. That is a view to which I must have regard: s 9(3)(h1). Further, and it is probably unnecessary to say, murder is one of the most serious offences in the criminal calendar.
Secondly, although the offence of attempting to discharge a firearm with intent to avoid apprehension is not strictly a serious violence offence, I cannot ignore the fact that (as I noted earlier) if the Defendant had succeeded in what he was attempting to do his actions may have then amounted to a serious violence offence. The position is, therefore, that the prisoner has committed or attempted to commit two offences which would have constituted serious violence offences.
The circumstances of that offence are enlightening because they show the extent to which the level of violence employed by the Defendant could escalate so quickly and to such a point that he would discharge a firearm at a police officer who was endeavouring to apprehend him. In many ways, this offence points more clearly to the risk with which I am concerned, and to how unacceptable that risk is, than the index offence where the victim had twice, without provocation, assaulted the Defendant. This offence, and the circumstances surrounding it, also bear out Dr Ellis's view that the violence that the Defendant may perpetrate is likely to be impulsive but, as with the index offence, it shows that the Defendant is prepared to use weapons if they are available. This is a matter very relevant to the safety of the community. s 9(3)(a))
Thirdly, the Defendant has a lengthy criminal record commencing at the time he was almost aged 14 years. That criminal history contains a number of offences of violence, although I accept that they were not serious violence offences, commencing when the Defendant was 16 years of age. I accept also that the unacceptable risk is not one of merely committing offences of violence but I am required to take into account the Defendant's criminal history and any pattern of offending behaviour disclosed by the history (s 9(3)(h)).
Fourthly, there is no doubt that the Defendant was a heavy user of alcohol, that his use in that regard forms part of the basis of the diagnosis of substance use disorder, and that alcohol was related to a great deal of his offending and particularly his violent offending.
The Defendant placed much weight on the fact that he has not consumed alcohol since going into custody for the index offence some 18 years ago, and to his stated intentions with regard to alcohol consumption in more recent times. Although his abstinence must be taken in his favour, there is no similarity between the conditions under which the Defendant lived in custody as far as the availability of alcohol is concerned and his circumstances living in the community where alcohol is freely available.
Even if I accept that the Defendant has an honest intention not to consume alcohol in the future, given that his substance use disorder has not been resolved there remains a risk that he will not be able to maintain the intention he now expresses. His use of methamphetamine twice while on two separate periods of parole supports that view. None of the expert witnesses considered that the risk of resorting to alcohol had been removed by the Defendant's abstinence and his stated intention not to consume alcohol.
Fifthly, the three experts were all of the opinion that the Defendant was at least a medium to high risk of committing further offences of violence if he was released without supervision and two though he was a high risk (s 9(3)(b) & (c)). Whilst only one of those experts, Mr Sheehan, expressed the risk in terms of the Defendant committing a serious violence offence, Dr Parker pointed out that the same behaviour involving violence on the part of the Defendant might or might not amount to a serious violence offence depending on the circumstances in which the events unfolded. There is some justification for that view. As Dr Parker pointed out, a one punch attack on a person might only result in what the criminal law would constitute an assault, it might constitute a more serious form of assault or it might constitute a serious violence offence because grievous bodily harm occurred or indeed death. In that way there is only a fine line between violence and the violence which the law designates as a serious violence offence. The two things are quantitatively not qualitatively different.
Moreover, although Dr Ellis' conclusion was that the Defendant would fall into a group of persons with a risk for violent offending that was statistically high in frequency he added that the offending had potential for serious consequences in his specific case.
Although the Defendant was critical of Dr Parker for preferring the VRAG-R over the VRS I do not think that this makes much difference to the ultimate outcome. There is no doubt that Dr Parker considered dynamic factors which the VRAG-R does not consider but his report did not indicate that he did not have regard either to the results on the LSI-R nor the VRS. Further, Mr Sheehan's different emphasis, and very detailed consideration of the dynamic factors, led him to the conclusion that the Defendant was within the medium to high risk category. Even if the Defendant's criticisms of Dr Ellis' assessment are taken into account, including his recording of factors such as weapon carrying and threat use in institutional charges, and a more positive slant is given to his consideration of dynamic factors, the risk of further violent offending is still medium to high.
Sixthly, quite apart from the conclusions of the experts, two of the instruments used to assess the Defendant rated him at medium/high and high risk of offending (s 9(3)(d)). Dr Ellis accepted that the various protocols and tools at a group level only predict a defined violent outcome which is usually a conviction for violence. But he went on to say that it is the same factors that predict violence that predict the offender's version of serious violence (at T15). That was a similar view to that expressed by Dr Parker (at [66] above).
The Defendant was critical of the heavy reliance on the instruments partly because they gave too much emphasis to static factors, partly because they did not provide risk assessments for serious violence offences as opposed to violence generally, and partly because, as the experts acknowledged, they used a statistical base to predict reoffending rather than dealing with the individual. In that regard it is worth quoting what Mr Sheehan had to say in his report about these instruments: 55. Contemporary violence risk assessment tools combine static and dynamic risk factors for a comprehensive approach to risk prediction and treatment planning and have been demonstrated to have moderate predictive accuracy (Campbell, French & Gendreau, 2009; Yang, Wong & Cold, 2010). The combination of an individual's static and dynamic risk factors has been described in the literature as representing their fluctuating "risk state", which reflects an increasing understanding of violence as a transactional process that likely has multiple causal risk factors and pathways (Douglas & Skeem, 2005).
Seventhly, there is no doubt that the Defendant's substance use disorder remains (s 9(3)(i)). Not only were there the two occasions when he was released to parole that he was detected as having used methamphetamine, account must be taken of the numerous occasions during the IDAPT when the Defendant returned positive samples for various drugs, his failure to supply a sample and failures to attend.
The drug use whilst on parole and during his time in custody whilst undertaking the IDAPT not only demonstrate that the substance use disorder is ongoing but is a concern because of what it demonstrates about co-operating and following rules. In that regard, Dr Ellis gave this evidence (at T11-12): … but the behaviours of difficulty cooperating and difficulty following rules are indications that his personality and thinking is still not one that gives confidence that he's changed the pattern in a significant way. O'NEIL: What's the relationship if any between interacting and cooperating and the likelihood of serious violent offending? WITNESS ELLIS: So there's - these are not necessarily causes of serious violent offending but they're often markers of other problems that are more causally related to violence and serious violence. So, you know, an example being in most studies of violent offenders people who don't cooperate with supervision conditions are in the group that have higher likelihood of offending. Now not cooperating with supervision conditions in and of itself you're right, is not a direct relationship. But someone who has underlying personality traits associated with violence often also has difficulty cooperating with supervision. Somebody who has difficulty regulating emotional states often also has that kind of problem, and someone who's got attitudes that are supportive of violence often also has that problem. So the - it's a substantial marker of concern in assessing someone's risk of violence.
In relation to the ongoing use of drugs Dr Ellis said that if drug use was detected early and there is able to be an intervention, one can act in a way that reduces the risk of violence. If early detection is not possible the pattern of drug use could accelerate. He said substance use is a general risk factor for violence.
Mr Sheehan agreed that if the Defendant was left unsupervised there was a fair likelihood that his methamphetamine use would increase and become chronic and there would be cumulative effects that went towards risk of violence (at T28). Mr Sheehan said also in relation to both the Defendant's use of alcohol and drugs that the Defendant's time on parole indicated that the three month mark after release from custody appeared to be the time the Defendant was most likely to fail in any resolve to be abstinent if he was not supervised. The unannounced home visits and the requirement for drug and alcohol testing in the conditions of supervision were likely to minimise the risk in that regard.
Two further matters should be mentioned in the light of the Defendant's submissions. The first relates to the insight the Defendant is said to have developed into his condition. I accept that in some of the material (Ms Haddad for example) reference is made into the insight which the Defendant has acquired. However, Dr Ellis thought the extent of his insight was somewhat limited. Dr Parker said that while having insight was useful it will not be sufficient to prevent further offending. The Defendant's history on parole was someone who would not or could not respond appropriately to the situations that presented themselves with drugs. Having been returned to custody once for a drug offence ought to have been sufficient to prevent a repeat occurrence if insight and control had been present but it was not. Those events suggest three problems: substance use not under control, lack of insight into the consequences or lack of control, and a refusal or inability to adhere to what the experts described as a pro-social attitude of obeying the law.
The second matter was the support the Defendant is said to have from his wider family. The experts considered that his relationship with his partner was a positive matter and it was taken into account. There was, however, limited other evidence about other family members. Certainly, the case notes contained mention of siblings with whom the Defendant was keen to see, and children of his partner with whom he seemed to have a positive relationship in the passing references made to them in those notes. Even ignoring the position of a brother of the Defendant who had himself been incarcerated, there was too little information about the family support for it to take the matter very far for the Defendant.
The as yet unresolved substance use disorder when considered in conjunction with the neuro-cognitive and personality disorders, the link of alcohol and violence in the Defendant's history, the level of violence shown by both the index offence and the attempted shooting offence, together with the difficulty the Defendant has shown in dealing with rules and authority, point to the presence of a risk to a sufficient degree that the Defendant will commit a serious violence offence so that the safety and protection of the community cannot be ensured unless he is subject to supervision: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [20]; approved in Lynn at [59].2

The length of the ESO

As noted at the outset, the Plaintiff originally sought a two year period for the ESO. That was no doubt principally based on the report of Dr Parker and Mr Kevin Makar, the Senior Community Corrections Officer who prepared the risk management report.
Mr Sheehan thought that a three year period would be appropriate. Dr Ellis thought that five years was needed and was reasonable to improve function in the community "and refine the appraisal of risk".
It was in those circumstances that the Plaintiff sought leave to amend to seek a five year period. That was the period ultimately argued for in submissions by the Plaintiff for the reasons Dr Ellis gave. The Defendant submitted that if an order was to be made it should be no longer than three years.
The basis for Dr Ellis' view about the need for a five year period was this: From a psychiatric risk management perspective a period of five years supervision is considered reasonable in order to improve function in the community, and refine the appraisal of risk. Personality disorders are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts. His comorbid psychiatric conditions of substance use and cognitive deficits impacts upon likely treatment and supervision response. It is most likely that a period of of 36 months will be required to consolidate stable independent accommodation, maintain a stable mental state and regular meaningful activity both occupational and social in the community, given the restrictions-on persons subject to extended supervision orders. A further 24 months of regular programmed activity, coupled with regular review of medication if prescribed would be necessary. This period is estimated based on his current mental state, personality disorder, cognitive status and current attitudes to supervision that will be unlikely to change in the short term.
Mr Sheehan said that he thought three years was the appropriate period for three reasons. The first related to the goodwill and desire of the offender to cooperate with the supervision which was in place. If the period was too long there was less likely to be cooperation and observance of the conditions. Secondly, Mr Sheehan thought that three years on parole would have been an appropriate length of time to ease the Defendant back into the community so that he could live unsupervised. Thirdly, he thought that a period less than five years was appropriate because the Defendant is now older and there is some evidence that older offenders were less likely to reoffend than younger offenders.
Dr Ellis agreed that he was making the recommendation of a five year period as a clinician and on the basis of a clinical evaluation. He considered that five years took into account the amount of time he would estimate the Defendant's clinical conditions would require clinical intervention to manage. That seems to me to be a different approach from what the Act requires. As State of NSW v Colin John Fisk [2009] NSWSC 778 at [27] and Tillman v Attorney-General for the State of New South Wales (2007) 70 NSWLR 448; [2007] NSWCA 327 at [8] make clear, the likelihood which I must evaluate is the period when the risk is unacceptable. It may well be the case that after three years the Defendant will need further clinical management and assistance, but I am satisfied, particularly from Mr Sheehan's evidence, that the likelihood of an unacceptable risk is for a period of three years.

Conditions

The conditions proposed by the Plaintiff are as follows: Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) Part A: Reporting and Monitoring Obligations Monitoring and Reporting 1. The defendant must accept the supervision of officer/s employed in the Corrective Services NSW (CSNSW) until the end of the Order. 2. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO. 3. The defendant must follow all reasonable directions by his DSO or any other person supervising him except to the extent that such directions deal with or seek to impose conditions in the schedule to the summons not approved by the Court. 4. The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order. 5. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements 6. 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. 7. 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. 8. The defendant must not deviate from his approved schedule of movements except in an emergency. 9. 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 10. The defendant must live at an address approved by his DSO. 11. The defendant must be at his approved address between 9:00pm and 6:00am unless other arrangements are approved by his DSO. 12. 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. 13. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. 14. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO. Part C: Place and travel restrictions 15. The defendant must not leave New South Wales without the approval of CSNSW. 16. The defendant must surrender any passports held by the defendant to the Commissioner. 17. The defendant must not go to a place if his DSO tells him he cannot go there. 18. The defendant must not attend any place where alcohol or drugs are illegally sold. Part D: Employment, finance and education 19. If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO. 20. The defendant must not start any job, volunteer work or educational course without the approval of his DSO. 21. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO. 22. The defendant must not sign any legal instrument that gives the defendant control of any money or assets of another person or organisation, without prior approval of the DSO. 23. The defendant must not form any corporation, partnership, unincorporated association or register any business names without prior approval of the DSO. Part E: Drugs and alcohol 24. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed. 25. The defendant must submit to testing for drugs and alcohol as directed by his DSO. 26. The defendant must not enter any licensed premises without the approval of his DSO. 27. The defendant must attend and participate in programmes 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. Part F: Non-association Associations with Others (not children) 28. The defendant must not associate with people that his DSO tells him not to. 29. The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol. 30. If the defendant commences to live with someone: a. he has to tell his DSO before commencing to live with the person; and b. if required by his DSO, he must either: i. tell the person of his criminal history; or ii. give consent for the DSO to tell the person of his criminal history. 31. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service. Part G: Gambling 32. The defendant must not gamble. 33. The defendant must, seek assistance in controlling his or her gambling, if directed by the DSO. Part H: Weapons 34. 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. 35. The defendant must not carry on his person, at any time after he has left his residence, any knife or other cutting instrument unless permission has been granted in advance by the DSO. Part I: Access to the internet and other electronic communication 36. The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed. 37. The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order. 38. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet. 39. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. 40. The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately. Part J: Search and seizure 41. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to g below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. 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: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. 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 g. search and examination of his person. 42. For the purposes of condition 41: a. a search of the defendant means a garment search or a pat-down search. b. 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. 43. During a search carried out pursuant to condition 41 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: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. 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. 44. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 45. 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 conditions 41-44 above. Part L: Personal details and appearance 46. The defendant must not change his name from "Andrew Turk" or use any other name without the approval of his DSO. 47. The defendant must not use any alias, log-in name, or a name other than "Andrew Turk" or use any email address other than those known to the DSO, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email. 48. The defendant must not change his appearance without the approval of his DSO. 49. The defendant must let CSNSW photograph him. 50. 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 M: Medical intervention and treatment 51. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 52. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. 53. The defendant must take all medications that are prescribed to him by his healthcare practitioners. 54. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. 55. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. 56. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.
I have included the conditions in a form showing what the Plaintiff originally sought. The conditions were amended after some were disallowed by Rothman J when his Honour made the ISO and after negotiations between the lawyers.
The italicised words in condition 3 were added by Rothman J when his Honour made the ISO. Before me, the Plaintiff submitted that the words were unnecessary because the conditions themselves only allow a DSO or any other supervising officer to do what the conditions allow them to do. In that way, the DSO does not have the power to make a direction that is not contained with the conditions. The Defendant did not press for the words to be included on the basis that any directions the DSO gives must be reasonable directions.
I agree with both those submissions. In the necessary haste with which the interim orders needed to be made it does not appear any arguments were addressed about those words. With great respect to Rothman J I consider that the words should be deleted.
The disputes in relation to the remaining conditions concerned condition 5, conditions 6-8, condition 14 and condition 29. In addition, I raised with counsel the proposed omission of condition 26.

Condition 5 - Electronic monitoring

The Plaintiff accepted that this condition was not needed at the present time but submitted that it may be needed in the future. In that way the DSO ought to be given a discretion to require it if it is needed.
The Defendant has not been required to wear electronic monitoring equipment whilst he has been under the ISO. None of the experts consider that the condition is necessary and, indeed, Mr Sheehan considered that it would be counterproductive to require the Defendant to wear electronic monitoring when he has been living within the community without it. He said it would do more damage than good.
In my opinion, there should be no condition requiring the Defendant to wear electronic monitoring equipment. Such equipment may be useful in relation to high risk sex offenders where there are particular restrictions on the movement of the offender to keep that person away from schools, playgrounds or similar places. Nothing in the evidence suggests that there is any particular place or type of place that the Defendant should not be in except perhaps some licensed premises although it should be noted that the Plaintiff does not seek such a condition.
There is nothing in the evidence to suggest that the Defendant is a flight risk. The two periods of time spent on parole (approximately 12 months in total) were unremarkable except for the breaches by the consumption of methamphetamine. It cannot be reasonably suggested that electronic monitoring would be useful in preventing a further similar breach.
Moreover, the Defendant is permitted to reside with his partner in a fairly remote property some distance out of Nyngan. The plan is that he should live and work on or near that property. His regular movements are likely to be confined to travelling to Nyngan and/or Dubbo to meet with various persons assisting in his rehabilitation and supervision. Even Mr Kevin Makar who prepared the risk management report dated 3 November 2016 and gave evidence in the proceedings accepted that he had been advised by those who administer the electronic monitoring that there may be issues with GPS communication at such a remote location. Further, Mr Makar, although continuing to support a condition in relation to electronic monitoring, accepted that it was not required at the moment but might be required if the Defendant was to regress to his old ways.
Where it is accepted that there is no present need for electronic monitoring I do not consider there is a proper basis for delegating the decision to the DSO at a future time simply because the need for it may arise. Although the Plaintiff resisted the suggestion that it should make a further application if the need arose, I consider that electronic monitoring is such a serious curtailment of liberty that a further application should be made with appropriate evidence to justify a variation in that regard.
I am not satisfied in all the circumstances that the condition is required.

Conditions 6-8 - Schedule of movements

Dr Parker thought a schedule of movements was not necessary in the present matter. Mr Sheehan said that he did not see a burning need for such a schedule but he thought that they were useful and effective in assisting people who have anti-social histories. He, like Dr Ellis, saw that such a schedule had therapeutic value but should not be used as a punitive measure. Dr Ellis saw it being used in particular within a casework framework. That approach was agreed by Mr Sheehan.
The Plaintiff submitted that such a schedule would assist the Defendant to adapt to a less structured environment than he was used to in prison. So much may be accepted. By making it a condition, however, penal consequences flow from a breach of the requirements associated with a schedule of movements.
Having regard to the evidence of the experts, to the circumstances in which the Defendant will be living and working and given the control available to the DSO in conditions 2, 3, 9 - 13, 15 and 28 I do not consider that a schedule of movements is appropriate in the present case. The matter is better approached, as Dr Ellis said, within a casework framework.

Condition 14 - Other persons staying over

The Defendant submitted that this condition was not necessary because it was covered by the power given in condition 28. That is to some extent true but the identity of persons who reside permanently or temporarily with the Defendant is a separate significant consideration. The present residence has been approved on the basis of the person or persons whom it is known reside there. That arrangement should not be surreptitiously or otherwise overcome by somebody being able to move temporarily or permanently into the premises without the knowledge of the DSO.
On the other hand, the words "or to stay overnight" are unnecessarily restrictive given the remote location of the property. Nor do I see a particular significance in a person staying overnight compared with spending the day with the Defendant. The Plaintiff submitted that the point of the condition was to prevent antisocial persons from having ongoing contact with the Defendant. Merely staying overnight is no more ongoing than spending the day with someone.
The condition should be modified so that it does not prevent, for example, other family members staying for short periods of time if they are visiting. The remoteness of the property makes this a more likely and necessary occurrence than if the Defendant lived in, say, the suburban area of Sydney. The condition should be amended to read: The defendant must not permit any person to enter and remain for more than three nights at his approved address without the approval of his DSO. The position is otherwise governed by condition 28.

Condition 29 - Association with drug and alcohol users

The Plaintiff submitted that the condition was important both in reference to illegal drugs and alcohol because being with people who were drinking was a risk factor which I understood to mean by way of temptation. The Defendant submitted that there was a problem relating to whether there was a mental element in the condition. That is to say, is the condition only breached if the Defendant knows that the other person has consumed or is under the influence of illegal drugs or alcohol. If the condition was to be included it should at least include the words "must not knowingly associate", which Mr O'Neil of counsel for the Defendant described as the old DUI test. However, the Defendant's principal submission was that the condition should not be included.
Given the fact that the Defendant is likely still to have some form of problem with drugs (the parole breaches and the failures on testing during the IDAPT are sufficiently recent to suggest this) the condition should remain in its present form as far as illegal drugs are concerned. In one sense, alcohol is in a different category of drug because first, it is legal and secondly, a large number of people in the community are able to use it responsibly. In itself there is not a problem with the Defendant associating with someone who is consuming alcohol. It may be a family member at meal time. The difficulty is that, despite what the Defendant has said about his attitude to alcohol in more recent times and the fact that he has not consumed it during the time he was in custody for 18 years, there can be no certainty that he might not again use alcohol in the light of his pre-custodial history. The risk is emphasised because his history makes clear that it is alcohol that has been directly connected with his violence.
In my opinion, Condition 29 should be amended so that it reads: The defendant must not associate with any people who are consuming or whom he reasonably believes are under the influence of illegal drugs.
In addition, there should be a further condition in these terms: The Defendant must not knowingly associate with any people who are under the influence of alcohol and must not, without the consent of his DSO, associate with any people who are consuming alcohol.

Condition 26 - Licensed premises

During the course of submissions I expressed to the Plaintiff surprise that condition 26 was not pressed. Mr Fernandez of counsel for the Plaintiff said that the principal reason was that "licensed premises" covers a wide variety of places and includes restaurants. The suggestion appeared to be that it was not intended that the Defendant be prevented from going to restaurants. The Defendant took a similar approach and pointed to the fact that some cafes have liquor licenses and supermarkets frequently have bottle shops attached to them. In that way it was submitted that there was a difficulty with excluding the Defendant from entering licensed premises.
As I noted earlier when dealing with condition 29, historically the matter most connected to the Defendant's violence was alcohol. If he is not permitted to drink alcohol, and condition 24 prevents that, it does not seem to me at all appropriate, nor is it necessary, for him to enter licensed premises particularly bottle shops, hotels and bars in licensed clubs. Excepting restaurants from such a proscription is a fairly blunt tool because many or most hotels and all licensed clubs have restaurants. Frequently, and more often in country areas, the restaurants in hotels are not separate from the bars.
Where the conditions appropriately prohibit the Defendant from not associating with people who are under the influences of alcohol and, by what I have provided earlier, prevent the Defendant from being in the company of people consuming alcohol without the consent of his DSO, I consider that it should also be the case that the Defendant should not be permitted to enter any licensed premises without the consent of his DSO. It is appropriate to impose this condition so as to address a risk of future offending of the type which was the basis of the order: Wilde v State of NSW [2015] NSWCA 28 at [53].
One would expect that the DSO would act reasonably if the request was to attend a restaurant not inside in a hotel or registered club. The DSO may on occasions feel that it is appropriate to permit the Defendant to attend a restaurant in a hotel or a registered club but in all the circumstances the Defendant should not have the freedom to do so without approval from the DSO.
I do not consider that there is any problem in relation to supermarkets. With one notable exception in a suburb of Sydney, supermarkets are required to keep their bottle shops separate from, although they may be accessible to, the supermarket itself. The Defendant would not be in breach of condition 26 by entering the supermarket. He would be in breach if he went into the bottle shop. In all the circumstances, that is an appropriate restriction.

Conclusion

Accordingly, I make the following orders: 1. Pursuant to s 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the Defendant is to be subject to a High Risk Offender Extended Supervision Order (ESO) for a period of 3 years from 9 June 2017; 2. I direct, pursuant to s 11 of that Act that for the period of the ESO in (1) above, the Defendant comply with the following conditions: Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) Part A: Reporting and Monitoring Obligations Monitoring and Reporting 1. The defendant must accept the supervision of officer/s employed in the Corrective Services NSW (CSNSW) until the end of the Order. 2. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO. 3. The defendant must follow all reasonable directions by his DSO or any other person supervising him. 4. The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order. 5. 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 6. The defendant must live at an address approved by his DSO. 7. The defendant must be at his approved address between 9:00pm and 6:00am unless other arrangements are approved by his DSO. 8. 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. 9. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. 10. The defendant must not permit any person to enter and remain for more than three nights at his approved address, without the prior approval of his DSO. Part C: Place and travel restrictions 11. The defendant must not leave New South Wales without the approval of CSNSW. 12. The defendant must surrender any passports held by the defendant to the Commissioner. 13. The defendant must not go to a place if his DSO tells him he cannot go there. 14. The defendant must not attend any place where alcohol or drugs are illegally sold. Part D: Drugs and alcohol 15. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed. 16. The defendant must submit to testing for drugs and alcohol as directed by his DSO. 17. The defendant must not enter any licensed premises without the approval of his DSO. 18. 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. Part E: Non-association Associations with Others (not children) 19. The defendant must not associate with people that his DSO tells him not to. 20. The defendant must not associate with any people who are consuming or whom he reasonably believes are under the influence of illegal drugs. 21. The Defendant must not knowingly associate with any people who are under the influence of alcohol and must not, without the consent of his DSO, associate with any people who are consuming alcohol. 22. If the defendant commences to live with someone: a. he has to tell his DSO before commencing to live with the person; and b. if required by his DSO, he must either: i. tell the person of his criminal history; or ii. give consent for the DSO to tell the person of his criminal history. Part F: Weapons 23. 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. 24. The defendant must not carry on his person, at any time after he has left his residence, any knife or other cutting instrument unless permission has been granted in advance by the DSO. Part G: Search and seizure 25. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to g below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. 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: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. 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 g. search and examination of his person. 26. For the purposes of condition 25: a. a search of the defendant means a garment search or a pat-down search. b. 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. 27. During a search carried out pursuant to condition 25 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: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. 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. 28. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 29. 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 conditions 25-28 above. Part H: Personal details and appearance 30. The defendant must not change his name from "Andrew Turk" or use any other name without the approval of his DSO. 31. The defendant must not change his appearance without the approval of his DSO. 32. The defendant must let CSNSW photograph him. 33. 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 I: Medical intervention and treatment 34. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 35. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. 36. The defendant must take all medications that are prescribed to him by his healthcare practitioners. 37. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. 38. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. 39. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

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