State of New South Wales v Wainwright

Supreme Court of NSW|2020-02-17|Before: Adams J, Payne J

Judgment

By further amended summons filed in court on 17 February 2020, the State of New South Wales seeks an order that the defendant, Trent Wainwright (also known as Trent Scruse), be subject to a high risk offender extended supervision order ("ESO") for a period of 12 months under s 5B of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). The original summons was filed on 25 September 2019.
The defendant is now a 37-year-old man who violently assaulted his 19 year old girlfriend over 10 years ago, on 16 January 2010. He pleaded guilty to inflicting grievous bodily harm with intent to cause grievous bodily harm ( the "index offence") contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 25 years imprisonment with a standard non-parole period of seven years imprisonment. He was sentenced to a term of imprisonment of 8 years and 1 month with a non-parole period of 5 years. That sentence expired on 30 November 2019.
The defendant opposes the imposition of an ESO. He earlier opposed the imposition of an interim supervision order ("ISO") before Payne J (sitting in the Common Law Division) at the preliminary hearing on 20 November 2019. His Honour was satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. On that basis his Honour placed the defendant on an ISO and made orders under s 7(4) of the Act appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and furnish reports.
The final hearing in this matter proceeded before me on 17 February 2020. The State relied upon two folders of evidence and both parties provided detailed written submissions, as they had also done before Payne J. In addition, three expert witnesses gave evidence at the hearing: the two court-appointed experts, Dr Richard Furst and Dr Kerrie Eagle (who gave evidence together), as well as the defendant's psychologist, Mr James Filshie. Before turning to consider that supporting material it is necessary to first have regard to the relevant terms of the Act and the statutory task the court is required to undertake.

The Legislative Scheme

The primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community: s 3(1) of the Act. Although this is the primary object, s 3(2) of the Act provides that "another" object is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.
The Court's power to make an ESO is discretionary. Section 5B of the Act provides that the Court "may" make an order for a supervision of a person in the community if four pre-conditions are made out.
First, the person must be an "offender" who is serving (or who has served) a sentence of imprisonment for a "serious offence" either in custody or under supervision in the community: s 5B(a) of the Act. "Offender" is defined in s 4A of the Act as a person who is at least 18 years of age and who has at any time been sentenced to imprisonment for a "serious offence" either by way of full-time detention or intensive correction in the community.
Section 4(1) of the Act defines "serious offence" so as to include a "serious violence offence". "Serious violence offence" is comprehensively defined in s 5A of the Act which relevantly provides as follows: (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). … (2A) A reference in subsection (1) (a) to: ... (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.. …
As stated above, on 20 June 2014 the defendant was sentenced for an offence of grievous bodily harm with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act. That offence is clearly a "serious violence offence" within the meaning of s 5A of the Act. The defendant accepted that this first statutory pre-condition was satisfied. I am satisfied that he is an "offender" who has served a sentence of imprisonment for a "serious offence".
Secondly, the person must be a "supervised offender" (within the meaning of s 5I): s 5B(b) of the Act. The definition includes an offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for a serious offence: s 5I(2)(a)(i) of the Act. The defendant was on parole with respect to the index offence when this application was made by the State. I am satisfied that the defendant is a "supervised offender" and he did not contend otherwise.
Thirdly, an application for an ESO must be made in accordance with s 5I: s 5B(c) of the Act. Section 5I provides that the defendant must be a "supervised offender" at the time that the application is made. Given that the summons was filed before the expiry of the defendant's term of imprisonment I am satisfied that an application was made in accordance with s 5I and the defendant did not contend otherwise.
The fourth statutory pre-condition to the making of an ESO is that the Court must be satisfied to a "high degree of probability" that the offender poses an "unacceptable risk" of committing another "serious offence" if not kept under supervision: s 5B(d) of the Act. It was this fourth statutory pre-condition that was the subject of dispute in this matter.
Section 9(1) of the Act provides that an application for an ESO may be determined by either the making of an ESO or by dismissing the application. Section 9(2) of the Act provides that in determining whether or not to make an ESO, "the safety of the community must be the paramount consideration of the Supreme Court".
Section 9(3) of the Act provides that in determining whether or not to make an ESO the court "must" have regard to the matters enumerated in s 9(3) "in addition to any other matter it considers relevant." Given the mandatory requirements in s 9(3) of the Act I propose to summarise the material relied upon by the State by reference to those matters. Before I do so I will first set out a brief chronology of the events in the defendant's life relevant to this application and then consider them in more detail under the s 9(3) headings.

Chronology

The defendant was born on 15 February 1982. On 19 October 1996, he was convicted of malicious wounding in the Children's Court and placed on probation.
Nearly 10 years later, on 27 February 2005, the defendant was placed on a section 9 good behaviour bond for glassing a person in a "pub fight". On 25 June 2006, the defendant was fined $300 for being in custody of an offensive weapon. On 30 November 2007, an apprehended violence order (AVO) was obtained against the defendant for two years in relation to his ex-girlfriend.
On 16 January 2010, the defendant committed the index offence and was arrested and refused bail. The details of this are set out below at [44]-[53]. On 20 September 2011, the defendant was found unfit to be tried in the New South Wales District Court in relation to the index offence. The defendant was granted bail in relation to the index offence on 17 February 2012.
On 15 March 2012, the Mental Health Review Tribunal ("MHRT") found that the defendant was fit to be tried. On 20 February 2013, the defendant pleaded guilty in the District Court before Norrish QC DCJ to one count of assault with intent to cause grievous bodily harm contrary to s 33 of the Crimes Act 1900 (NSW). He remained on bail.
On 25 October 2013, the defendant was charged with an assault, which was subsequently dismissed. On 20 January 2014, an AVO was granted in relation to his then partner for 12 months. On 6 February 2014, the defendant was granted Supreme Court bail. On 14 March 2014, bail was refused.
On 20 June 2014, the defendant was sentenced for the index offence to a head sentence of 8 years and 1 month with a non-parole period of 5 years. On 7 March 2016, the defendant's appeal to the New South Wales Court of Criminal Appeal against his sentence was dismissed.
On 30 October 2016, the defendant was released to parole. On 8 April 2017, the defendant was returned to custody for breaching his parole (non-attendance at counselling and moving without notifying parole officer).
On 22 February 2018, the defendant was again released on parole.
On 25 September 2019, the present application was commenced. On 12 November 2019, the interim hearing was conducted before Payne J.
On 20 November 2019, an ISO was made by Payne J and reports from two court-appointed psychiatrists were ordered: State of New South Wales v Wainwright (Preliminary) [2019] NSWSC 1603. On 16 December 2019, the ISO was extended to 25 January 2020 and on 14 January 2020 it was again extended to 22 February 2020.

Brief overview of the defendant's personal circumstances

The defendant is an only child, although he has a sister as a result of an affair his father had with another woman. He experienced abuse from an early age. This included witnessing his mother's domestic abuse at the hands of his father and also his own physical abuse by his father. The instances of his father's physical abuse include being held upside down from a crane hoist and/or his father trying to drown him in a family bathroom at the age of four. His father left soon after.
There were other traumatic events in the defendant's childhood. He was both physically and sexually assaulted. This included sexual abuse by a neighbour at the age of seven and abuse by teenage boys (including an anal rape) whilst a teenager as well as being physically assaulted at ages 16, 19 and 20.
As a child, the defendant was diagnosed with epilepsy at the age of seven and with Attention Deficit Hyperactivity Disorder ("ADHD") at the age of 11. He was medicated for both of these conditions. He left school in Year 11.
After leaving school he commenced working at a computer gaming shop. He remained there until the business closed down in 1996 following the murder of the owner of the business. He subsequently commenced a carpentry apprenticeship and eventually worked as a carpenter for about 12 years. In the early 2000s, he managed three Blockbuster stores and studied business/events management at TAFE. He worked for the Fairfax Group until his incarceration.
At the time of the application for the ISO the defendant was in an intimate relationship with a woman who was present in Court before Payne J. That relationship had commenced over a year earlier. By the time of the final hearing that relationship had ended.
The defendant has a good, although complex, relationship with his mother. He has a carer's allowance to look after her, which he does attentively. The defendant's mother was present at court for the hearing before me and is clearly supportive of her son.
The defendant has a strong interest in music. He wishes to pursue work in clubs and manage artists in the music industry. He started playing guitar at about 16 years old and has been writing and producing music and managing several aspiring musicians in the past 20 months. He runs a company 'Unchained Entertainment' and has also organised a music event in Nowra last year.
At the time of the application for the ISO the defendant was residing with his then partner but would stay a few nights a week with his mother to look after her. Prior to the final hearing that relationship had broken up, and he had returned to reside with his mother. By the time of the final hearing he was residing with his ex-partner, on a platonic basis, whilst he looked for other independent accommodation.
At the time of the application for the ISO, the defendant was employed in the fitness industry. He was still employed part time at the time of the final hearing.
The State placed particular focus on the defendant's relationships with his mother and ex-partner and his accommodation as potential risk factors requiring an ESO to be imposed for a period of 12 months.

Section 9(3)(h): Criminal History

I am required to have regard to the defendant'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".
The defendant has a criminal history in the Children's Court.
On 31 July 1995, the defendant was charged with malicious wounding and assault occasioning actual bodily harm (AOABH). No Facts Sheet was provided but the background of the offence is set out in the psychiatric report of Carolyn Quadrio, consultant psychiatrist, dated 2 January 1996. The history of the alleged assault suggests that the defendant was spending the morning with his two friends. One of them was playing on the computer and he played a game with the other one, winning three times. They then went outside to play basketball and the defendant won again, at which point his friend threw a ball at his head, ran inside and slammed the door in the defendant's face. The fight ensued that was briefly broken by his mother but continued when she left. His friend got stabbed as a result with the defendant not being able to remember anything and reporting "going totally blank - everything was black" after the victim grabbed him by the testicles. His mother stated that when she came back she saw the defendant on the floor and "he was obviously having a seizure".
On 9 October 1996, the defendant was sentenced to 18 months' probation without conditions in relation to the malicious wounding offence with the offence of AOABH being dismissed.
On 13 June 1998, the defendant was charged with maliciously destroying or damaging property and resisting officer in the execution of duty. According to the Facts Sheet, his mother and he were at home when he approached his mother asking to borrow some money. Following a verbal argument he became aggressive and his mother agreed to give him the money. When she came back from her bedroom with the money he said "stick your money up your arse I'll go roll some cunt". He then walked out of the premises slamming the door and then kicked the screen. He then came back into the house and said to his mother "fuck you and fuck your door you can pay for it". He then left. When the police arrived a short time later to speak to his mother he returned. He was placed under arrest but broke free and began to run before he was apprehended. On 21 August 1998, he was sentenced to 12 months supervision. According to the Risk Assessment Report dated 16 July 2019 (explained at [81]) his supervision was suspended early, in April 1999, due to his positive response.
As an adult, the defendant had two criminal matters prior to the index offence.
In 2005, he became involved in a verbal confrontation with another customer in a bar. The defendant approached the victim from behind and smashed two glasses of beer into his head and face, causing lacerations to his face, head and lower back. He pleaded guilty to one count of malicious wounding contrary to s 35(1) of the Crimes Act. He was placed on a section 9 bond with 2 years supervision which included conditions for psychiatric and psychological counselling.
About 18 months later, in 2006, the defendant was observed by police to be walking on a public street carrying an axe. When approached by police he told them that it was for his own protection. He was charged under s 11B(1) of the Summary Offences Act 1988 (NSW) with carrying an offensive implement in a public place. He was fined $300.
Thus, as at the date of the index offence, when he was 27 years old, the defendant had never been sentenced to any form of custody.

The index offence

The index offence is by far the most serious offence ever committed by the defendant. It is very serious indeed. I have taken the following summary from the Remarks on Sentence of Judge Norrish on 14 June 2014.
The defendant was in a relationship with a 19 year-old woman. One night the defendant went out drinking without her and when he got home the two of them had an argument. After a dispute the victim went to bed. The defendant returned to the room, turned the lights on and then commenced arguing with her again. He told her he was "breaking up with her". When she got upset and told him not to leave her he yelled at her, "[g]et out of the fucking house".
After yelling at the victim the defendant physically threw her out the front of the house. She lost her balance and fell down, hitting her head on the concrete steps. This rendered her unconscious. The defendant continued to yell at her.
As the victim lay on the ground unconscious, the defendant, whilst wearing shoes, stomped on her head with "considerable force," "at least three times". He said to one of his flatmates, "she's trying to kill me, she deserves this". The flatmate tried to push the offender away at which time the defendant picked up a clay pot and threw the pot down on the victim's head smashing it. The pot was approximately 60 centimetres tall, 30 centimetres wide and 4 centimetres thick. It weighed over 6 kilograms. He told his flatmates that the victim had tried to "stab" him and left the house. As he left the premises he stopped next to the victim and stomped on her head again.
The above events were witnessed not only by the flatmates but by a number of other witnesses. When arrested by police the defendant showed no remorse. He said to police, "[f]uckin dumb bitch deserved it. She came at me with a knife. I'm the only reason she's here from Tasmania anyway. She's a fuckin psycho. I want to go, my mum's coming." The defendant was informed he was not going anywhere.
As to the defendant's claim of self-defence, no knife was ever found despite an immediate search by police. In any event, as Judge Norrish observed, even if the victim had pulled a knife in the bedroom no issue of self-defence could have arisen in circumstances where, as a number of eye witnesses observed, the victim was unconscious when the defendant stomped on her head.
The victim was taken to Hospital. Her injuries were summarised by Judge Norrish as follows: 1. She received lacerations on her scalp and face. These included a 2 centimetre laceration to the side of the right eye, a 3 centimetre laceration to the left eyebrow and a 5 centimetre laceration over the left mandible. 2. She had two loose teeth and two chipped teeth. 3. She received a fracture through the right mandible and an undisplaced fracture measuring 10 millimetres to the left inferior orbital rim (eye socket), with significant facial swelling and haematomas. 4. She underwent an operation to reduce the internal fixation of the right mandible and to repair the lacerations. 5. The victim was on a liquid diet for four to six weeks, unable to open her mouth or chew.
Judge Norrish also referred to the victim impact statement. The victim had ongoing dental problems, namely, "extreme sensitivity in part of her dental structure". She required "more extensive treatment, particularly root canal therapy and possible removal of teeth in the future to repair the damage that is immediately attributable to the actions of the prisoner". She also suffered psychological trauma.
It goes without saying that this was an extremely serious act of domestic violence on a defenseless young woman.
In addition to these criminal matters the defendant has been subject to a number of apprehended violence orders ("AVOs") and been subject to some prison discipline as follows:

AVOs

Some of the evidence regarding previous AVOs was objected to by the defendant. It was submitted that the apprehended violence telephone interim order of 24 September 2009 is an ex parte order without any further information as to the evidence upon which it was made. It was submitted that the AVO in 2007 does not disclose the basis for the order. I am satisfied that it is in relation to the AVO grated on 30 November 2007 in relation to the defendant's ex-girlfriend. Although the AVO dated 16 March 2010 would appear to relate to the index offence, the basis for it is not apparent on its face. During the hearing counsel for the State conceded that the circumstances of the 2010 AVO were unclear.
There is no dispute that in 1998 an AVO was taken out against the defendant by his mother. He was still a juvenile at time. He now is his mother's carer and it was not suggested in any of the material before me that his mother was at any risk from him.
In January 2010, an AVO was taken out against the defendant to protect the victim of the index offence. In circumstances where the defendant was in custody at that time I am not persuaded that this AVO adds more than is already covered by the shocking violence of the index offence itself.
In October 2013, the defendant was charged with Stalk/Intimidate intending to cause fear of physical or mental harm whilst on bail for the index offence. The charge was dismissed, although an AVO was ordered to protect his then partner (not the victim of the index offence).

Conduct in custody

The State also relied upon the defendant's conduct in custody in that he incurred three misconduct charges during that time. The defendant challenged the evidence in relation to these matters and submitted that I would not find that they amounted to crimes of violence.
On 10 April 2011, whilst the defendant was on remand for the index offence, he is said to have assaulted an inmate whilst two inmates held the cell door shut. The victim presented with a black puffy eye and red marks around his head. It was submitted that the only evidence of this is the hearsay report from an officer to the Governor. Despite this, I am satisfied that it appears on the Corrective Services printout as: "Assaults (131) 28d Off amenities 28d Off Buy-Ups 28d Off contact visit 28d Partake at Leisure Time Activity".
On 5 December 2013, it is alleged that the defendant was heard to be yelling and refused to be quiet. He punched the window of his pod, verbally abused staff, refused to move to his cell and threw a biro at the complainant. The conduct was described as "strange". This incident also appears on the Corrective Services printout as: "FAIL TO COMP CORR CDTN ROUT (36) 21d Off Buy-Ups DISOBEY DIRECTION (120) 7D Off Buy-Ups"
There is no recorded institutional misconduct since 2013. The defendant was sentenced on 20 June 2014 so these incidents occurred whilst he was on remand.
As will be seen below, there was disagreement between the two court-appointed experts as to the significance of these custodial breaches.

Section 9(3)(h1)

I am required to have regard to the "the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender". I have already recounted the facts from the decision of Judge Norrish in R v Wainwright [2014] NSWDC 368 above at [43]. His Honour delivered a lengthy and detailed judgment explaining how he arrived at the ultimate sentence. Some of his Honour's observations and findings are as follows:
As for the defendant's risk of re-offending his Honour observed (at [29]): "The Community Corrections officer assessed the prisoner as at a medium risk of re-offending with a large number of needs to be addressed, including matters relating to his education, his associations, his consumption of alcohol, his emotional and personal relationships, amongst other matters, his supportive mother and his acknowledgement of his mental health conditions requiring assistance was noted, but he maintained his denial which is described as "categorical" concerning using excessive force against the victim. Another example of the prisoner failing to take responsibility for his conduct."
His Honour further observed at [30]: "The facts are overwhelming. Whatever the prisoner would say about the matter, he caused serious injury to the victim when she was in absolutely no condition to defend herself. He was considered at risk of reoffending should he consume alcohol and disengage from mental health treatment in the community and the Community Corrections officer said that particular attention on release to parole would need to be taken to his mental health."
As for the defendant's complex medical history his Honour observed at [32]: "In relation to the prisoner there have been tendered, apart from Dr Jacmon's report which is a psychologist's report, many medical reports in this matter. Many of these predate the entering of the plea of guilty by the prisoner. A great deal of this material is material that was provided for the benefit of the Mental Health Review Tribunal. The material presents a complex and to some extent conflicting picture. It is very difficult to reconcile the various opinions that are expressed by different people."
Judge Norrish then spent considerable time (from [37]-[57]) examining the various expert material placed before him pertaining to the defendant's mental health history. Given the significance of this issue to the assessment of risk I propose to refer to that material in some detail.
His Honour noted that the defendant was diagnosed with ADHD when he was seven years old and medicated for that until he was 14. He was also prescribed medication for epilepsy when he was seven years and has had epileptic episodes since then. He attended a mental health facility in 2005 for post traumatic stress disorder ("PTSD") problems arising out of his childhood abuse. He subsequently took medication for these problems (anti-depressant and anti-anxiety).
His Honour noted, significantly, that the defendant had no history of any psychotic illness or psychosis before entering custody. He presented with "persecutory and grandiose views and expressions" when entering custody but these were considered to be related to personality issues rather than any psychotic illness. He was not prescribed any particular treatment and was cleared to return to the general prison population.
His Honour then considered the reports of Dr Adam Martin, Dr Dall and Dr Olav Nielssen. Dr Dall opined, and Judge Norrish accepted, that at the time of the offence the defendant's actions were: "..a rage" from a person with a "personality disorder, a tendency to impulsivity, poor coping skills, a history of threats and violence whilst intoxicated, rather than a direct result of psychosis in the context of a schizophrenic type illness".
Judge Norrish noted that there was no other evidence to support Dr Nielssen's opinion that the defendant suffered from a "schizoaffective disorder with relating features of both schizophrenia and bipolar disorder". His Honour also noted that Dr Nielssen's opinion that the defendant was mentally ill at the time of the offence was a claim "never made in any Court" by the defendant.
Dr White reported to the Mental Health Review Tribunal. His opinion was that the defendant was not suffering any psychotic symptoms at the time of assessment. Rather, his presentation was consistent with people who had been abused in childhood. He diagnosed, inter alia, borderline personality disorder. He described the defendant as "persecuted and grandiose" but still fit to be tried.
Mr Jacmon was the defendant's treating psychologist at the time of sentence. He diagnosed borderline personality disorder which he described as a "lifelong disorder with no effective treatment other than management". The defendant also had symptoms of PTSD. He had also treated the defendant's mother who had suffered severe psychological trauma due to the same domestic violence the defendant witnessed. Mr Jacmon observed that his mother "tended to be overprotective and he thought in some ways that she was trying to control him as though he was still a child."
Judge Norrish's conclusion was that the defendant had "mental and psychological issues" that may be seen as relevant to the offending, emanating primarily from "his borderline personality disorder and the possible complications arising from the symptoms of post-traumatic stress disorder". Significantly, his Honour noted at [57]-[58]: "There is no contemporaneous observation or record of psychotic symptoms and in my view no reliable evidence of any psychotic illness underlying or causing the prisoner's conduct. I appreciate it is reported that the prisoner has from time to time had delusional beliefs after the event, but in the context of the observations of the eyewitnesses and the conduct of the prisoner that is established through the facts, the conduct of the prisoner subsequently very much falls within the realm of self-justification and the avoidance of responsibility. This is emphasised by the many versions that the prisoner has given to different people."
His Honour went on to observe at [64]: "In any event, the prisoner's reaction to whatever claimed provocation of the victim was clearly completely disproportionate. Pushing her out of the house may be one thing. As she fell and struck her head on the steps that was not an intended consequence by the prisoner. But the evidence is overwhelming that from then on the prisoner acted deliberately in the face of pleas by people to stop. He acted deliberately in stomping on her head and hitting her with a clay pot when she could not protect herself."
As for the psychological evidence his Honour observed at [89]: "Having regard to the medical evidence, pointing as it does in some parts in differing directions, whilst I accept the general analysis of the Crown, one of the issues that I conclude in favour of the prisoner is that contributing to the prisoner's reaction to circumstances, that were not as he would assert them to be, were the underlying psychological conditions arising from both the borderline personality disorder and the history of post-traumatic stress disorder, and his inability thus to control himself."
Finally, his Honour observed at [104]: "In sentencing the prisoner of course I have had regard to the purposes of sentencing. There is a need for an element of general deterrence and specific deterrence. At the moment I do not believe the community needs protection from the offender and I do not believe the prisoner presents a risk to the victim."
The defendant had been arrested on 16 January 2010 and remained in custody until 17 February 2012. He was returned to custody on 25 October 2013 when he was charged with the intimidation charge which was subsequently dismissed. He pleaded guilty on 20 February 2013 but was not refused bail on the index offence until 16 December 2013. He was granted Supreme Court bail on 6 February 2014. He was refused bail by Judge Norrish on 14 March 2014 and remained in custody until the time of sentence. His Honour calculated that there was 2 years, 7 months and 12 days of pre-sentence custody. The sentence was backdated to commence on 31 October 2011 accordingly.
The defendant appealed unsuccessfully to the Court of Criminal Appeal against this sentence: Wainwright v R [2016] NSWCCA 19. The sole ground of appeal was a contention that Judge Norrish "erred in his approach to the effect of the applicant's mental health conditions upon sentence". The Court dismissed the appeal. It held that it was open to the sentencing judge to find that the assault was not perpetrated under the influence of delusional beliefs.

Section 9(3)(c): Expert reports other than court-appointed experts

I am required to have regard to 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 serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment".
When these proceedings were commenced, significant reliance was placed on the Risk Assessment Report ("RAR") of forensic psychologist, Samuel Ardasinski, dated 16 July 2019. Mr Ardasinski is employed by Corrective Services NSW and regularly prepares these RARs for the State for the purpose of commencing either ESO or EDO applications. In the present matter his RAR was, as usual, comprehensive. It traced through the defendant's mental health history, criminal history, custodial history, rehabilitation courses and various risk assessment tools. His executive summary was as follows: "Mr Scruse has been assessed as posing a Moderate-High risk of future violent offending, based on empirical actuarial measures of risk prediction. He completed a high-intensity treatment program in 2016 whilst in custody, and a shorter program aimed at domestic violence specifically in 2017. He was released to parole in late 2016, and that parole was revoked in April 2017. Mr Scruse was re-released in early 2018 and he has responded reasonably well to supervision since then. His is working, providing occasional care to his elderly mother, and has been in a new intimate relationship for over a year. ... "…with stable housing, employment and a new relationship, there would appear to be evidence that his risks can be adequately managed in the community without posing an undue risk of imminent serious re-offence. However, given recent events in which an episode of conflict resulted in Mr Scruse questioning the future of his relationship and needing to remove himself from the situation and call his Community Corrections Officer for support, it may be that he requires more time under supervision to fully moderate the risk he poses within domestic contexts. Any ESO would need to be tailored to match his level of progress to date and not impede his current positive momentum."
Mr Ardasinski recounted the defendant's medical history which has included epilepsy, ADHD, conduct disorder, borderline personality disorder and PTSD. He confirmed that the basis for the diagnosis of PTSD is the events of his childhood such as witnessing his father inflict violence on his mother and himself, being sexually abused at age seven by a neighbour and being anally raped by teenagers when he was older. In 2012, it was noted that the defendant's childhood events have "left their mark" on him and "the trauma is long term and resistant to treatment".
Mr Ardasinski was of the view that the defendant's relationship with his mother was "complex" as his mother is "very dependent" on him, "highly protective and overly involved in his life and decision-making".
It is standard procedure in RARs for the author to discuss the index offence with a potential target of an ESO or EDO. Mr Ardasinksi did so with the defendant and concluded that he tended to rationalise his behaviour and engage in victim blaming such as suggesting a knife was produced, that his ex-girlfriend attacked him, that his drink was spiked and that he was acting in self-defence.
Mr Ardasinki recounted a conversation he had with the defendant in which the defendant explained his risk aversion approach for the future. He is reported as saying: "Now, if I see any warning signs, I'll call my parole officer, and get out of there… Am I sorry? Yes - do I have to keep saying it? Did I cry? Yes… Never want to hurt no one again. I'm trying to be a better person."
This circumstance whereby the defendant described his coping mechanism as being able to contact his parole officer was relied upon by the State as evidence that the defendant would not have any such "back-up" if he was not to be placed on an ESO. I shall return to this issue below in my consideration.
The defendant's attitude to the offence led Mr Ardasinski to express the following opinions: "50.c. Mr Scruse continues to maintain a victim stance and fails to accept responsibility for his part in the serious violence he committed in 2010. … without his taking full ownership of his actions within intimate relationships, there is the potential of his returning to the 'See What You Made Me Do' mentality which is common within domestic abuse. … 56. … Mr Scruse's most likely scenarios for further serious violence would involve reactive and/or domestic violence. It would likely involve Mr Scruse perceiving that he had been disrespected, or be in retaliation for some perceived wrong, and based on his history, the 'righteous anger' response may include some violence. 57. … Whether Mr Scruse's actions in 2010 were indeed attributable to an epileptic event, or he is using his diagnosis as an excuse for his actions and to allow him to maintain that he has no recollection of the serious violence he perpetrated, the effect is potentially equivalent. In either event, there would be a significant risk that he may engage in further domestic violence, or other reactive violence, if he is appropriately triggered. 58. … The overall totality of evidence suggests that Mr Scruse falls within the Moderate to High risk category for violent offending relative to other adult male violent offenders. (Emphasis in original.) … 62. The goal of any ongoing case management would be to encourage the development and maintenance of a stable and suitable lifestyle, so that newly formed habits can be maintained … If Mr Scruse can maintain his current forward momentum, there is every likelihood that he will be able to avoid a return to criminal violence provided that he accepts the support and supervision to work through his significant trauma history and the risk factors associated with this." (Emphasis added.)

Community Corrections Reports

The defendant was assessed as having a medium to high need for intervention in a Pre-Sentence Report prepared on 13 May 2013.
The defendant was assessed as a medium to high risk in a Breach of Parole Report dated 22 December 2016.
In a Pre-Release report of 15 August 2016, the defendant was classified as suitable for a medium level of intervention.
On 2 February 2018, in a Pre-Release report, the defendant was assessed as requiring a medium to high level of intervention and presenting no serious management issues.

James Filshie, psychologist

Shortly after his release on parole, the defendant commenced seeing a general psychologist, Jim Filshie. Mr Filshie provided a report dated 11 February 2020 and also gave evidence at the hearing before me. He outlined his experience working with the defendant as his psychologist since June 2018.
Mr Filshie stated that in his opinion the defendant has accepted responsibility for his actions, regretted the assault and was eager to put it all behind him. The defendant was frustrated in that he saw the proceedings as being "one sided" and felt that he was being portrayed "as something of a monster".
Mr Filshie's impression was that the defendant was someone trying to put his life back together under the supervision of Corrective Services. He found that even though the defendant was suffering from anxiety and stress he did not meet the criteria for mental disorder: as per the Diagnostic and Statistical Manual of Mental Health Disorders (5th ed, 2013, American Psychiatric Association) ("DSM-5").
Mr Filshie initially saw the defendant fortnightly and then about every three weeks. He has provided counselling related to managing the defendant's day-to-day stresses with treatment goals including continuing to meet parole conditions and caring for his mother, finding meaningful work, managing and maintaining relationships and managing finances. He observed that the defendant enjoyed a fitness instruction course at TAFE that he commenced in September 2018 "which seemed to provide him with a new sense of direction and hope".
In relation to the challenges experienced by the defendant he noted these involved looking after his mother and trying to find work as someone who has a criminal record. Mr Filshie noted the positive steps the defendant takes when facing challenges. These steps include leaving the house, going for a walk and "debriefing with others via the phone". He does this when disagreements with his mother begin to escalate or when he shows "great persistence" in attempting to find employment. Mr Filshie stated that focusing on goals and positive emotions and achievements enables the defendant to "stay on course and avoid being overwhelmed by the stresses he sometimes experiences".
In his summary, Mr Filshie opines that in the time he has been seeing the defendant "he has shown a high level of intrinsic motivation and commitment in consistently working towards his goals" and that "he has continued to manage disagreements without resorting to rage or violence". He believes that it is within the defendant's ability to manage and resolve in time the challenge of his ongoing relationship with his mother while making efforts to be more independent.
Mr Filshie observed, "it strikes me as highly unlikely that someone who has shown so much respect, diligence and determination in meeting his parole conditions should then, having attained his autonomy, re-offend once the state's close scrutiny is withdrawn." He also stated that "he has enough insight to recognise when pressure is mounting and reach to others, be they friends, colleagues, or professionals."
In his opinion the defendant does not have pervasive mental health problems and does not need further ongoing treatment but that he would be happy to continue to be there for him should the need arise.
Mr Filshie gave evidence at the hearing on 17 February 2020. He repeated that the defendant has made excellent progress and does not necessarily need further counselling but he would be happy to provide counselling should the need arise and that if there was a moment of crisis the defendant could call him (although he may not be available "24/7" given his family commitments).
He stated that the defendant's treatment goals have either been largely met or he is successfully working towards them, elaborating that the main improvements are in managing day-to-day stresses. He observed that the defendant's relationship with his mother needs to be looked at in the context of his stress of managing parole and that his mental health would improve by having his supervising conditions removed. He described their relationship as both supportive and destabilising given that they live together and that he is her carer stating that in his opinion it would be in the defendant's best interest to become more independent.
Mr Filshie described the defendant's relationship with his former partner as a stable one with tensions from time to time that never resulted in violence.
Mr Filshie also stated that he was impressed by the defendant's persistence and determination in trying to find work, stating "he got knock-backs again and again and he just got back up repeatedly". He observed that part of the problem is trying to fit in work around his supervising conditions.
In cross-examination Mr Filshie stated that his observation was that the defendant accepted his responsibility in relation to the offence but also felt "sort of demonised" and depicted as a "monster". He denied observing an element of victim mentality in the defendant, only that he felt upset that there was nothing good said about him throughout the process, he was seen as a complete villain; an observation that has not changed.
Mr Filshie denied observing in the defendant hostility towards women or fear of rejection. He stated that he talked with the defendant about the difficulty his parole conditions were placing on his relationship with his ex-girlfriend but did not observe a tendency in him to shift responsibility onto others.
In terms of the defendant's fractious relationship with his mother, Mr Filshie added that he was thinking in terms of them living in the same house and that in his opinion their relationship would be not fractious but largely supportive if he were to live independently.
He agreed that even though he thought that the defendant would be willing to continue the treatment he did not know whether he would continue to see him with his impression being that it would be less frequent if he did. He disagreed that the defendant articulated to him directly that he used his supervising officer as a coping mechanism, but thought that it could be implicit.

Bob Tsapilis, psychologist

The defendant was also engaged in ongoing treatment in the community with psychologist Bob Tsapilis whose report dated 1 July 2017 included this opinion: "In terms of long term rehabilitation, Mr Scruse will need both the benefits of group therapy such as the quips [sic] program that is provided in the community setting, as well as individual therapy, such as the one that we have been doing together….I would doubt that an intervention received whilst in jail would be of as much benefit to him in the long term in curtailing impulsivity or improving interpersonal behaviours as would be if he received it within the community setting. In the time spent in the community and whist receiving community based treatment, Mr Scruse made significant gains such as obtaining employment on his own, got out of an abusive relationship (where he was the actual victim), he worked on relationships with estranged family members, such as his half-sister, and started to work on long term goals. Furthermore, as noted in the first report, Mr Scruse has shown gains in being able to regulate his emotions when challenged. Mr Scruse made significant gins [sic] whilst in the community and it is important that it is recognised rather than punished for it. I am still of the opinion that given the support of his family and the gains made whilst on parole, prognosis is very good for Mr Scruse."
And later on 26 November 2017: "I am still of the opinion that given the support of his family and the gains made whilst on parole, prognosis is very good for Mr Scruse."

Section 9(3)(d): Statistical assessments

I am required to have regard to "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 serious offence".

Statistical measures of risk

The relevant tests for quantifying the defendant's risk of committing a future violent offence include the Level of Service Inventory-Revised ("LSI-R"), Violence Risk Scale ("VRS"), the Violence Risk Appraisal Guide - Revised ("VRAG-R") and the Domestic Violence Risk Appraisal Guide ("DVRAG").

LSI-R

According to the Mr Ardasinski's report, the defendant was last assessed according to the LSI-R on 28 June 2019 and was classified as fitting in the moderate range. Mr Ardasinski explained in his report that the LSI-R is an actuarial risk assessment tool which addresses the risk of general and violent re-offending within the 12 month post-release period. It also assesses an individual's needs in terms of supervision in custody and on parole.
In State of New South Wales v Wainwright (Preliminary) Payne J gave the LSI-R little weight because of a 2011 Corrective Services NSW Research Bulletin which indicated a "paucity" of rigorous testing with the LSI-R in the corrective services content in Australia. Furthermore, his Honour observed at [51.(2)] that: "The 2011 study examined 11,051 offenders with custodial sentences equal to or shorter than two years who were re-incarcerated within two years following release. While the Research Bulletin opines that the LSI-R performs "similarly to its use internationally", I harbour significant doubts about the evidential value of that conclusion in this context. A study of offenders whose custodial sentences were equal to or shorter than two years may or may not provide probative evidence about the statutory task, being the likelihood or risk of this defendant committing a further serious offence as defined."
His Honour also took into account a 2010 report cited by Mr Ardasinski which stated that the LSI-R is only moderately effective and should not be used as a primary or single means for predicting risk in criminal justice decision-making.

VRS

The VRS is another actuarial tool which is used to assess an offender's static and dynamic risk factors and their capacity for post-release violence. The defendant was placed in the high range for re-offending in both pre and post release assessments.
Payne J addressed the value of this assessment tool in his preliminary judgment at [42]-[43]. Despite the fact that Mr Ardasinski's report noted that the tool is increasingly being used internationally, the studies used to validate it are all from Canada. It appears that it has not been repeatedly verified by studies which used clients with different demographic characteristics.

VRAG-R

The VRAG-R is an actuarial risk assessment tool which contains 12 static risk factors which, when scored, provide the possibility of an offender committing further violence. The defendant was classified as high risk on 3 August 2016.
In the judgment of Payne J, his Honour made the following observation about this tool: "On the face of Mr Ardasinski's report the VRAG-R has not been subject to any of the "repeated empirical validation with client groups that differ in demographic characteristics" suggested in the Yang, Wong and Coid study. There has not been any apparent validation based on an Australian study. I propose therefore to give the VRAG-R little weight."

DVRAG

This tool contains 14 static factors which assess the risk of future domestic violence in offenders. According to Mr Ardasinski's report, the defendant required a "moderate-high" level of intervention and/or supervision. 100% of offenders in the sample whose score fell within the same group as the defendant re-offended. Payne J observed in his preliminary judgment that "this assessment appears to have been devised in Canada. There is no reference to Australian data validating the application of DVRAG to offenders with any of the defendant's characteristics."
Overall, I have had regard to these tools but accept their limitations as identified by Payne J.
It is significant that the court-appointed experts Dr Furst and Dr Eagle placed less emphasis on the LSI-R, VRS, VRAG-R and DVRAG. Rather, they both used the risk factors contained in the Historical Clinical Risk Management 20 scale, Version 3 ("HCR-20-3"). This tool is not purely actuarial. Rather, it involves structured professional judgement. Dr Furst observed that it provides a "useful and structured professional judgement approach to risk assessments, incorporating multiple risk factors commonly identified in the literature as being associated with increased risk of future violence". The risk factors that the HCR 20 identifies have been empirically validated over the course of 20 years of research.
Dr Furst gave evidence that the veracity of any assessment tool is reduced when the baseline event of the serious offence declines. After this, the problem of false positives and false negatives becomes so great that it is difficult to predict such events with any accuracy. In his report, he summarises this as "meaning those approaches to risk assessment for serious violence are essentially meaningless". He also confirmed in oral evidence that the DVRAG and VRAG tests were based on overseas studies only.
Although both Dr Furst and Dr Eagle used the risk factors in the HCR-20-3 to measure risk assessment. Dr Furst measured these risk factors numerically with a score of 0, 1 or 2 whereas Dr Eagle did not attach any numerical value to these risk factors. In her oral evidence, Dr Eagle commented that she was familiar with commentary which recommends against using a scoring system to quantify risk. Dr Eagle explained that this new approach to not use a scoring system prioritises identifying risk factors based on empirical study and, in the context of an individual person's behaviour and their presentation, consequently formulating the level of risk.
Dr Furst responded by stating that although identifying risk factors, rather than a scoring system, may be the clinical approach to risk, consistent with a desire to treat patients, "in this Court, we are dealing with risk and whether someone is high risk or low risk". On this basis he indicated that risk was most accurately determined by a scoring system.
The relevant risk factors in the HCR-20-3 are as follows: 1. There are ten historical factors including history of problems with: violence, other antisocial behaviour, relationships, employment, substance misuse, major mental disorders, personality disorder, traumatic experience, violent attitudes and treatment or supervision response. 2. There are five current clinical (dynamic) factors including recent problems with insight, violent ideation or intent, symptoms of mental disorder, instability and treatment or supervision response. 3. There are five future risk management factors including future problems with professional services and plans, with living situation, with personal support, with treatment or supervision response and with stress or coping.

Section 9(3)(b) - reports of Court-appointed experts

I am required to have regard to "the reports received from the persons appointed under s 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination".
As stated above, on 20 November 2019, Payne J made orders appointing two qualified psychiatrists to conduct examinations of the defendant and furnish reports pursuant to s 7(4) of the Act. Dr Richard Furst and Dr Kerri Eagle provided reports following assessments of the defendant.

The report of Dr Furst dated 16 January 2020

Dr Furst examined the defendant and noted his history of severe childhood trauma caused by the defendant's exposure to childhood sexual abuse including witnessing domestic violence at home and suffering physical abuse and harsh treatment at the hands of his father. He also made a number of diagnostic conclusions which are summarised below.
Dr Furst's conclusion was as follows: "In my opinion, an ESO is not indicated for Mr Scruse as his assessed risk of future violence on current clinical assessment is in the low-moderate range, the review of his conduct, both in custody and in the community over the last 10 years, and a review of the categories outlined on the HCR-20 are not of sufficient concern to warrant an ESO." (Emphasis added.)
Earlier in the report, he had observed: "Although it is not possible to provide categorical assessment as to whether any particular individual will act in a violent manner in the future or not, a number of historical, clinical and risk management factors that are associated with future risk of violence have been identified. The Historical Clinical Risk Management 20 scale, Version 3 (HCR-20-3), provides a useful and structured professional judgment approach to risk assessments, incorporating multiple risk factors commonly identified in the literature as being associated with increased risk of future violence. With respect to the risk of future serious violent offending, assessment of future risk at the individual level also carries inherent limitations, including a significant degree of predictive uncertainty. However, the approach of structured professional judgement seeks to increase the reliability of such assessments by combining historical static factors, current dynamic factors and future risk management factors. Furthermore, the HCR-20 (version 3) assists clinicians and decision-makers in identifying known risk factors, classifying individuals into risk categories and assisting in decision making about leave and release and treatment interventions, including forensic psychiatric patients, general psychiatric patients and prison populations."

The report of Dr Kerri Eagle dated 17 January 2019

Dr Eagle also provided a history of the offender which covered his relationships, current presentation, past psychiatric history, substance use history and criminal record. She observed that: "There are inherent limitations in any process of risk assessment, although the best evidence supports a structured professional judgment approach. Risk assessment is most effectively used to develop a risk formulation utilising evidence based risk factors for the purpose of informing ongoing management and rehabilitation (rather than for prediction of reoffending)."
Her conclusion was that: "Overall, Mr Wainwright's risk of engaging in a further serious violence offence if unsupervised in the community could be considered to be moderate in that he would not be a person in the highest or lowest risk category. His risk would be reduced if he continued to engage in psychological interventions to address his psychological vulnerabilities and achieved stable independent accommodation. His risk would increase if he were to disengage from psychological interventions, continue to reside with his mother and/or become involved in unstable intimate relationships." (Emphasis added.)
Given the significance of the evidence of these experts and the difference in their ultimate opinion I have considered their areas of agreement and disagreement as follows.

Presentation

Both Dr Eagle and Dr Furst indicated that the defendant was co-operative with their assessments. Both described him as logical and coherent, although Dr Eagle observed in her written report that "his thought processes displayed a lack of goal directed thinking at times and strayed from the subject matter".

Physiological or organic brain conditions

Both Dr Eagle and Dr Furst agreed that the defendant has a history of epilepsy and that this is characterised by recurrent seizures. The defendant's epilepsy was previously managed with the anticonvulsant medication Kepra (Levetiracetam). The defendant reported that his last seizure was four years ago.

The need for continued psychological intervention

Additionally, in oral examination, both Dr Furst and Dr Eagle agreed that the defendant's method of calling counsellors, parole officers or mental health services as a method of de-escalating or avoiding a tense environment was "positive". To them, it showed that the defendant had some recognition that he has difficulties regulating his emotions or coping with stress. Both also agreed psychological interventions would probably be one of the most important risk mitigating strategies for the defendant, given his presentation.

Insight into the offending

Both Dr Eagle and Dr Furst were in agreement that the defendant shows limited insight. Dr Furst gave the defendant a score of one out of two for insight. In oral evidence, Dr Eagle commented that the defendant had some "ongoing/some problems with his insight, which is a complex concept, and has ongoing/some emotional instability in response to interpersonal interactions and cognitive distortions". Both weighted insight differently in terms of importance in their respective scoring methods.

The level of risk posed by the defendant

Dr Eagle and Dr Furst agreed that the defendant's historical, clinical and future risk management scale factors meant that he was in the low-moderate risk of future violence. Dr Eagle noted that the defendant has a moderate loading of historical, clinical and risk management factors associated with future violence. She stated in her written report of 17 January 2019 at [129.4] that "[g]iven his previous pattern of aggression, he is most at risk of engaging in aggression towards an intimate partner or family member in the context of interpersonal conflict."

Psychiatric or psychological conditions

Dr Furst and Dr Eagle differed slightly in their diagnosis of the defendant. Both were of the opinion that he met the criteria for Borderline Personality Disorder which is a personality disorder characterised by functional impairment in interpersonal relationships, perceptions, depth and variability of moods, feelings of emptiness, fear of abandonment, self-harming behaviour, reckless and self-destructive behaviour. Dr Eagle was also of the view that the defendant suffers from complex PTSD. Dr Furst's preference for classifying this as borderline personality disorder was the lack of the intrusive flashbacks and other hyperarousal. He acknowledged, however, that the overlap of symptoms between the two proposed diagnoses is quite broad. He was also of the opinion that the defendant met the criteria for ADHD. Despite this difference, the two experts did not consider themselves to be far apart on the question of diagnosis when they gave evidence together in court.
Dr Furst and Dr Eagle also differed in their opinion of the defendant's history of mood disorders. In Dr Eagle's report she noted that: "Mr Wainwright has a history of problems with violence and problems with intimate family relationships, problems with major mental disorder (mood disorder), a diagnosis of personality disorder, a history of traumatic experiences and a history of problems with treatment or supervisory response."
Dr Furst indicated in his evidence that he "could" disagree with this, as he was hesitant about whether there could be an overlap between PTSD and Borderline Personality Disorder. He thought that they were mutually exclusive: "[i]f you have a PTSD score as a mental disorder, then you have no personality disorder. If you have no mental disorder, then it's a personality disorder."

The defendant's custodial record

Dr Eagle was of the opinion that the defendant had a history of problems with treatment or supervision response. This was on the basis of a parole infraction that occurred in 2016 and led him to be returned to custody in April 2017. There were also some infractions in custody, the last of which occurred on 5 December 2013. She classified this as a "historical risk factor". Dr Furst, on the other hand, opined that this was still "very good" as it only amounts to three minor problems in custody. He stated in oral evidence that the infraction on parole was "...common. They are minor. I stand by my opinion. That is a very minor infraction, and a technical infraction rather than a serious infraction. Would it constitute in what is a HCR 20 failure to comply with supervision requirements? I wouldn't regard it."

Living arrangements

The defendant's living arrangement was another area of slight disagreement between Dr Furst and Dr Eagle. In oral evidence, Dr Furst indicated that he did not see the defendant's relationship with his mother as a "red flag". Rather, he thought that the defendant generally had interpersonal difficulties and such issues "would be the same even if he lived in shared accommodation, a hostel or even by himself". Dr Eagle, on the other hand, identified the defendant's living situation with his mother as a significant ongoing risk factor. She noted that any difficulties with stress, particularly interpersonal stress, had the potential to be a destabilising factor when someone has a history of emotional instability or problems controlling their emotions. She thought that it would be beneficial if the defendant could have independent, stable accommodation.

Whether an ESO is warranted

Dr Furst indicated that, in his opinion, the defendant should not be subject to an ESO, as his assessed risk of future violence on current clinical assessment was in the low-moderate range, the review of his conduct, both in custody and in the community over the last 10 years, and a review of the categories outlined on the HCR-20. He indicated that the defendant would certainly benefit from psychological therapy to address his trauma and borderline personality traits/disorder but that this was would not require ESO provisions. He stated that continued supervision had made the defendant's relationships difficult in the past and might affect his chosen career as a personal trainer.
Dr Eagle, on the other hand, was of the opinion (as noted above) that the defendant posed a moderate risk of re-offending and this risk could be managed by an ESO. She was of the view that an appropriate management plan would mandate ongoing regular psychotherapy (fortnightly or as otherwise required) for a period of 12 months or longer. She also stated that the defendant should be periodically assessed by a psychiatrist.

Section 9(3)(d1): Risk Management Report

I am required to have regard to "any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community". To meet this statutory requirement a Risk Management Report ("RMR") was prepared by Danielle Ottaway on 2 August 2019 detailing various programs that the defendant could undertake in the community.
At [54] of his decision Payne J observed the following in relation to this report: "To the extent it is relevant, the report tends against the making an ISO. The report makes clear that the defendant's supervision will be transferred from the Corrective Services officers with whom he has built a good rapport. This seems at odds with the careful and nuanced recommendation by Mr Ardasinski that 'any ESO would need to be tailored to match his level of progress to date and not impede his current positive momentum'".
I agree with this observation of his Honour. Ms Rouse's report runs counter to Mr Ardasinski's recommendation.
No particular emphasis was placed on this report in the State's submissions. In fact, during the hearing of the appeal counsel for the State observed: "[t]his is a document, with due respect, which is of limited use to your Honour because it effectively sets out standard conditions for ESOs."
Although I am required to have regard to this report, I do not consider that it is of any real assistance in this matter.

Section 9(3)(e): Participation in rehabilitation programs

I am required to have regard to "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."
The Violent Offenders Therapeutic Program (VOTP) is a cognitive-behavioural therapy (CBT). It is based on Risk, Needs and Responsivity principles and addresses the empirical risk factors for violent offending. According to Corrective Services, the VOTP includes dialectical behaviour therapy as well as acceptance and commitment therapy.
A Treatment Report was prepared by Tara Rouse dated 10 August 2016 in relation to the defendant's participation in this course. She noted that the defendant does not accept responsibility for the offence explaining that his drink was spiked, witnesses conspired against him and he has epilepsy.
Mr Rouse later stated: "To his credit, he seemed to reflect on his presentation and the expectation of facilitators and other group members. He asked to present his Understanding (of his offence) task again. When he did, he … made small gains in accepting responsibility."
In relation to future risk of violence, Ms Rouse opines: "Mr Wainwright will remain at a considerable risk of violence until his underlying trauma is resolved… Remarkably, Mr Wainwright is rarely violent in custody; a place which would be deemed high risk for perceived threats. It seems Mr Wainwright has been successful in this environment by diffusing conflict early, not acting on his compulsions and distancing himself from others. If he can transfer these skills to the people he interacts with in the community, his risk for violent behaviour would be reduced."
At [39] of his reasons Payne J observed the following in relation to this passage, with which I agree: "It is difficult to know what this opinion means, even for the limited purposes relevant at this stage of the proceedings. The first sentence is at odds with the remainder of the paragraph. Put another way, in identifying the matters "alleged" in the supporting material to the application, the internal inconsistency noted means that I am not confident that Ms Rouse's opinion, at its highest, adds anything to the material I am required to take into account."
The defendant continued to attend VOTP follow up in the community when re-released to parole in February 2018.
The defendant also completed other courses in custody including the Real Understanding of Self Help ("RUSH") program and three shorter EQUIPS programs: the EQUIPS Addiction Program on 6 May 2015; the EQUIPS Foundation Program on 5 July 2017; the EQUIPS Domestic Abuse Program on 20 December 2017.

Section 9(3)(f): Past compliance with obligations

I am required to have regard to "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".
The defendant was not on any form of parole or ESO until 2017. He was released on parole on 30 October 2016. He breached that parole by failing to attend his VOTP maintenance group meetings and three out of the first four sessions in the EQUIPS Domestic Abuse Program. In addition he moved back with his mother without prior approval. His parole was revoked and he spent almost another year in custody.
The defendant was released on parole a second time on 21 February 2018. All of the evidence before me indicates that since that time he has made commendable steps to rehabilitate himself. As counsel for the State submitted to the court at the hearing: "Your Honour, can I start by stressing that Mr Scruse should have considerable credit for the progress that's been made over the last two years especially."
By the time of the hearing he had recently lost his job as a personal trainer but he was working part-time in another job. Although he had broken up with his partner, he had done so without any significant conflict and was in fact residing with her as a friend at the time of the hearing.
He has also participated in regular individual counselling with Mr Filshie who spoke highly of him and attends his VOTP maintenance group meetings.
The State relied upon his recent employment change, relationship breakdown, move back to reside with his mother and allegation of "death threats" (to which see below) as potential risk factors. The background to these changes and how the defendant has coped with them is contained in the recent OIMS notes which are summarised in some detail below.

OIMS notes

A number of Offender Information Management System ("OIMS") notes taken by the defendant's supervision officers at Burwood and Blacktown Community Corrections were before the Court. It has been the practice to place large quantities of these notes before the Court in these applications. Commendably, the parties agreed that only a small number was relevant. Most of them came into existence since the ISO was first imposed. These OIMS notes disclose the following.
On 29 October 2019, it was reported that the defendant experienced "an episode of turbulence" in his relationship that was managed by Community Corrections.
On 6 November 2019, the defendant attended VOTP maintenance session where he expressed feelings of being overwhelmed with his parole hearing and a potential ESO asserting that he has not re-offended and is doing everything since release on parole so that an ESO would not be required. He also stated that he has reconnected with his old pro-social friends with children and has been helping his mum in the house. The defendant stated that he changed his job due to a disagreement with his previous boss about what he wanted him to do and was observed to handle well unsolicited advice from another member of the group that initially came across as disrespectful and accusatory.
On 25 November 2019, the defendant's mother was contacted and commented that she believed that he was doing well in the community, is making a good effort to engage in social norms, is helping her with the mortgage and working hard to establish his fitness career. She reported observations of low mood symptoms in him which she thought was because of him breaking up with his girlfriend for whom he did not "have the same feelings" and did not want to "waste her time". She expressed the opinion that it would be beneficial to him to remain engaged in counselling with Jim Filshie.
On 26 November 2019, the defendant presented in a "heightened state of stress" describing how the ESO application and his parole has taken its toll on the relationship with his girlfriend and that he has discussed ending it with her as a result. He stated that he completed his Certificate IV course in fitness and wants to pursue his own business whereas she wants him to travel to Brazil to meet her parents and settle down. He stated that he remained faithful to her despite working in the fitness industry and being hit on by other women. It was noted that, after the interview, the author of the note crossed paths with the defendant at a shopping centre in the area where he was observed holding hands with a young female that did not resemble his girlfriend and that this information was not disclosed to him at the meeting.
On 4 December 2019, the defendant attended a VOTP maintenance session and expressed his frustration at the prospect of continuing supervision stating that he broke up with his partner because he did not "want to drag her through the ESO". He reported living with his mother but also looking for his own accommodation as well. He stated that "trying to make other people happy is difficult".
On 26 December 2019, the defendant reported and stated that he "had a talk" with his mother about her behaviour towards him warning her that he may have to move out and did not appear to particularly acknowledge the advice that his mother is unlikely to change given her age and that the question for him is whether he could adapt or may need to move out and come here when necessary. The defendant discussed his most recent relationship interest. In relation to his offending he admitted that he was substance affected at the time of the offence but claimed that his drink was spiked and that he does not drink alcohol anymore because of his epilepsy and the anti-convulsant medication that he is taking.
On 18 January 2020, at a home visit the defendant disclosed that his employment at the gym was terminated due to threats they received for having him there and that he also received "14 death threats" the week before that he reported to the police. He also stated that he was informed by his boss that someone from Community Corrections had called to advise that the defendant should not be working for them. He accepted the explanation that it was not the Community Corrections that called and his mother stated that it could have been one of his ex-girlfriends that got someone to impersonate a Community Corrections officer.
On 23 January 2020, the defendant was denied approval to attend a licensed venue where a potential client was performing and accepted that. He was "ok" to stay with his mother who had back issues and needed him there.
On 29 January 2020, there were a number of contacts with his supervising officer. They followed a complaint made by his mother that he took her phone away to intervene when she attempted to negotiate a time extension on her loan repayment. Temporary accommodation was arranged at his former partner's address who confirmed that he could stay with her as long as he wanted.
On 5 February 2020, the defendant attended the VOTP where he discussed stressors he was facing that included being unemployed, "financial duress", the ESO, being "the black sheep of the family" and supporting a friend through a break up. He appreciated the support he receives from friends and reported that he "ditched fake people" and spent time with people he believed to be genuine. He also shared strategies he finds useful for coping with stress such as meditation, yoga and cooking.
On 6 February 2020, the defendant, who was thinking of returning to his mother's home for one to two nights a week, accepted denial of approval to "constantly" move between locations. He claimed to be looking for his own accommodation and advised that the police were looking into death threats he had received. He had not received any new threats and he was looking for a job elsewhere in the fitness industry. He had a casual employment and also had a job interview. He was encouraged to call his psychologist.
On 12 February, 2020, he emailed alternative accommodation options and sent a follow up email on 13 February 2020 in relation to approval.

Section 9(3)(e1): Available community programs on ESO

I am required to have regard to "options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time.
The evidence I have already considered above indicates that the same community programs available to him on the ISO would be available on an ESO.

Section 9(3)(e2): Likelihood of complying with an ESO

I am also required to have regard to "the likelihood that the offender will comply with the obligations of an extended supervision order".
I am satisfied, based on the material before me, that it is "likely" that the defendant would comply with the terms of any ESO. His response to both parole and the ISO imposed on him last November has been good. In particular, the evidence of Dr Furst and Mr Filshie supports this finding.

The State's submissions

It was the State's position that the recent events indicate that the defendant continues to make progress in a manner that is "very much to his credit". Despite this, it was submitted that there remains a risk of circumstances developing which may lead to him committing another serious violence offence. Given the potentially grave consequences of that the risk should be considered to be "unacceptable".
It was acknowledged that the evidence indicates a number of matters in the defendant's favour but it was submitted that an unacceptable risk remains. Although it was conceded that the risk is "not necessarily high" the consequence for a victim or victims should such a risk eventuate could be very great.
It was conceded that Dr Furst's evidence does not support the making of an ESO but Dr Eagle's evidence, on the whole, supports such an order. Reliance was also placed on the recent evidence of potential instability arising out of the defendant's breakup with his ex-partner, the ongoing friction between him and his mother, and the recent termination of his employment. It was submitted that these three risk factors warranted the making on an ESO.

The defendant's submissions

The defendant relied upon the fact that he had been living continuously in the community for nearly two years without engaging in any violence and without breaching any conditions of his parole or ISO.
He noted that Dr Eagle's opinion as to his risk extracted above at [138] has not materialised in the last two years while he has been living in the community. He has actively and continually engaged in psychological intervention and, it was submitted, there was no reason to accept that that would not continue. He was able to sustain a stable relationship which ended without acrimony.
It was submitted that whereas Dr Furst and Mr Filshie considered the adverse effect of the ISO on the relationship, Dr Eagle did not. Nor did she give weight to the substantial period of time without a violent incident.
It was submitted that, consistent with the observations of Payne J, the court would be reluctant to give more than "little weight" to the assessment tools relied upon by Mr Ardasinski in his RAR. The court was invited to adopt the same "careful and persuasive assessment of the studies" as Payne J and ascribe little weight to them. It was noted that Mr Ardasinki's report is now seven months old and further progress has occurred since that date.
He relied upon the evidence of Mr Filshie whose opinion was that the defendant had developed strategies and techniques to deal with pressure and conflict and which would allow him to avoid resort to violence in the future.
It was submitted that the careful analysis of Dr Furst and Dr Eagle should be given greater weight than the report of Mr Ardasinksi because they both used a structured clinical tool to consider the circumstances that apply to defendant. Although these two experts did not reach the same conclusion on the issue of risk, the task undertaken is "essentially evaluative". That is, their opinions falling to a category of evaluation where reasonable professional minds might differ.
It was submitted that the difference of opinion between the court-appointed experts removes the basis for the court to be satisfied that there is a "firm foundation" for a conclusion that the defendant is an unacceptable risk of committing another serious offence.

CONSIDERATION

When the State first brought this application it sought an ESO for two years. After receiving the court-appointed expert reports, the Summons was amended to seek an ESO for a period of only 12 months and the proposed conditions sought were reduced.
As stated above, the determination of this application turns on whether I am satisfied to a "high degree of probability" that unless the defendant is placed on an ESO he poses an "unacceptable risk" of committing a "serious offence of violence" as defined. It is important to have regard to the task this court is required to undertake when determining applications of this nature, namely, to evaluate the risk of re-offending in a particular respect based on the material put before the court.
It has been held that the term "high degree of probability" constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 the Court of Appeal observed at [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..."
The phrase "unacceptable risk" is not defined in the Act, although s 5D provides: For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
It has been held that the phrase "unacceptable risk" in the Act should be given its everyday meaning within its context and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Beazley P at [58], with whom Gleeson JA agreed). The test is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82] (Basten JA).
In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed (at [43]): "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
These observations were echoed by Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 (at [71]), where her Honour observed that "[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate."
More recently in State of New South Wales v Holschier (No 3) [2019] NSWSC 341, Campbell J said this about "unacceptable risk" at [53]-[57]: "Section 5D is an important legislative marker. For it makes clear that the degree of probability of materialisation of the risk need not be evaluated as more likely than not for the risk to be adjudged unacceptable. As Beazley P pointed out in Lynn the antonym of unacceptable is acceptable. An offender may pose a risk of committing another serious offence which is not unacceptable i.e. the risk is one which even having regard to the consideration of community safety may be accepted or tolerated: Lynn at [50]. This of course begs the question; does the process of evaluation require quantification of the risk in terms which are familiar in the law of negligence, always allowing that the statute itself provides the legal relevant standard or norm? Is the risk of committing another serious offence unacceptable if it is real, more than trivial, of substance or significant? Or are expressions like low, moderate, or high apposite so that anything which is moderate or higher is unacceptable. I am of the view that a risk is unacceptable if there is a real or substantial chance of it materialising. I repeat the chance of materialisation need not be more likely than not: s 5D; State of New South Wales v Naaman (No2) [2018] NSWCA 328 at [29] and [67]-[69]. Something is real or substantial if it is more than merely minimal. In some areas of discourse it may be said that a low risk of the materialisation of a catastrophic consequence is unacceptable. But here the statute, as I have said identifies the risk by reference to the definition of serious offence. The question is what degree of risk of materialisation of that consequence is unacceptable, having regard to the object of securing public safety. … In my judgment the question to be determined is whether I am actually persuaded that the facts and circumstances proved provide a firm foundation for me affirmatively drawing the conclusion that there is a real or substantial chance of Mr Holschier committing a serious violence offence if he is not subject to an ESO." (Emphasis added)
In determining the present application "the safety of the community must be the paramount consideration" of the Court and regard must be had to the matters enumerated in s 9(3) "in addition to any other matter it considers relevant." I have had regard to all these factors, which I have summarised above. I have had particular regard to the expert evidence of Dr Eagle, Dr Furst, Mr Ardasinki and Mr Filshie as well as the defendant's recent progress as reflected in the OIMS notes.
Counsel for the State quite properly observed that the defendant is to be commended for the recent progress he has made. Despite this, an ESO for a period of 12 months is sought because of concerns on the part of the State that, due to three risk factors, the statutory test is still made out. Those three factors are: his employment, the recent break-down of his relationship and his accommodation. In addressing these three concerns I note from the outset that there are many positive features of the defendant's case.
Starting with the two court-appointed experts, Dr Furst's opinion was that an ESO was "not indicated" for the defendant as his assessed risk of future violence on current clinical assessment is in the "low-moderate range". Dr Eagle's opinion is that the defendant's risk of engaging in a further serious violence offence if unsupervised in the community "could be considered to be moderate in that he would not be a person in the highest or lowest risk category". Dr Eagle went on to opine that the defendant's risk would be reduced if he "continued to engage in psychological interventions to address his psychological vulnerabilities and achieved stable independent accommodation". On the other hand his risk would "increase if he were to disengage from psychological interventions, continue to reside with his mother and/or become involved in unstable intimate relationships."
I have already identified the areas of difference and agreement between these two experts. They both identified that the defendant has some historical risk factors, some clinical (dynamic) factors and possibly future risk management factors. The differences between the two experts were subtle rather than significant. On balance, I preferred a number of the opinions expressed by Dr Furst to those of Dr Eagle. Dr Eagle identified the fact that the defendant was living with his mother when she saw him as a risk factor but he was no longer doing so by the time of the final hearing. Another difference was the significance placed on the defendant's custodial infractions whilst on remand in 2011 and 2013. Dr Eagle relied upon these as a risk factor whereas Dr Furst was not of the opinion that these were serious breaches describing them as "common" in the custodial setting. Some support for Dr Furst's opinion can be found in the report of Ms Rouse from the VOTP who observed: "Remarkably, Mr Wainwright is rarely violent in custody; a place which would be deemed high risk for perceived threats. It seems Mr Wainwright has been successful in this environment by diffusing conflict early, not acting on his compulsions and distancing himself from others."
I also accepted Dr Furst's evidence about the potential negative impact of an ESO at this stage of the defendant's rehabilitation. Overall, although I was not persuaded of any significant difference between these two court-appointed experts, Dr Furst's explanation for his opinion that an ESO was not "indicated" was persuasive.
I was also impressed by the evidence of Mr Filshie, which I have set out above in some detail. He struck me as someone who has built a good rapport with the defendant and is encouraging of him. His observation that, "it strikes me as highly unlikely that someone who has shown so much respect, diligence and determination in meeting his parole conditions should then, having attained his autonomy, reoffend once the state's close scrutiny is withdrawn," has some force. Although, as counsel for the State pointed out, Mr Filshie is a general psychologist rather than a consultant psychologist; he is the person who has had the greatest opportunity to observe the defendant out of all of the experts in this matter.
There was evidence that the defendant has developed coping mechanisms to deal with mounting stress. This is particularly evident from the OIMS notes and the evidence of Mr Filshie. Although the defendant explained to Mr Ardasinski in the middle of last year that he would call his parole officer if pressure mounted, it is clear that he now has other people he could call instead, including Mr Filshie. One strategy he has, by way of example, is that he no longer drinks alcohol, which was a triggering factor for the index offence. He explained to his DSO that when he is in a pub and people are drinking he simply explains that alcohol clashes with his epilepsy medication and that explanation is accepted. Although the evidence as to whether he was still on this epilepsy medication is unclear (the court-appointed experts did not believe so), the fact is that this example demonstrates how he manages his risk factors.
Although the State expressed concern as to the recent break-up of the defendant's relationship with his live-in partner, it is a positive factor that there is no acrimony between them and she has in fact recently offered her home as temporary accommodation for him as he continues to find independent accommodation. There were inconsistent explanations for the break-up, as detailed in the OIMS notes, but in circumstances where the defendant is considered to be the most risk in a domestic context, this amicable relationship between him and his ex-partner is promising. Nor is there evidence of any violent conduct occurring during their relationship which lasted 18 months.
As all of the experts concede, the risk assessment tools pertain to the risk of re-offending for violence generally rather than for a "serious violence offence". As Dr Furst noted it is more difficult to predict "serious violence" than violence per se stating that approaches to risk assessment for "serious violence" are "essentially meaningless" (see above at [122]). Although the index offence was a very serious incident of domestic violence, it was the only "serious violence" offence he has ever committed and the only time he has ever been incarcerated. This is relevant to the question of whether there is an unacceptable risk that he would commit a "serious violence" offence rather than any other act of violence.
The statutory test would not be met in this matter if the court was satisfied that the defendant poses an unacceptable risk of committing an offence of violence unless supervised; it must be a "serious" violence offence. This means that an unacceptable risk that he would commit a common assault (s 60 of the Crimes Act), assault occasioning actual bodily harm (s 59 of the Crimes Act) or wounding (s 35(3) or (4) of the Crimes Act), by way of example, would not be a "serous violence offence". (Wounding whilst reckless as to causing actual bodily harm is not a serious violence offence within the Act). This is illustrative of the high test to be met; the risk contemplated is the unacceptable risk of the defendant committing an offence of a similar or more serious nature than the index offence (s 33 of the Crimes Act).
The index offence occurred nearly 10 years ago. Not only has the defendant avoided any convictions for any violence offence since the index offence he has no convictions at all since that time.
The defendant has been compliant following orders in the community for nearly two years. His breach of parole in 2017, after being paroled in 2016, was based on a number of supervision breaches and pertained primarily to his poor attendance at counselling. It is significant that the breaches were not as a result of criminal offending or any violence. Often when ESOs are sought in this Court there has been insufficient time under supervision for this Court to be in a position to assess a defendant's behaviour in the community. This case differs in that regard.
The defendant has made considerable efforts to remain employed. As Mr Filshie described it "he got knock-backs again and again and he just got back up repeatedly." The OIMS notes suggest he lost a recent job after his employer was contacted and told the defendant should not be working there. The defendant complained to police of death threats made to him after that time. These threats had ceased by the time of the hearing. I am satisfied that the defendant is determined to remain employed which, as the experts agree, is a relevant factor in the assessment of risk. He also has an interest in his music business. The OIMS notes on 23 January 2020 show that when he was denied approval by his DSO to attend a licensed venue where a potential client was performing he accepted that. This is a significant detail given the evidence that he is very keen to combine his work in the fitness industry with his interest in the music industry.
As for the defendant's accommodation circumstances, I do not consider it to be a significant ongoing risk factor. The evidence is that when he left his partner late last year (after the ISO was granted) he moved in with his mother and there was some friction. His aim is to live independently but stay with his mother a few nights a week to care for her. Emails before the court show he is actively looking for independent accommodation, including in a share house. In the meantime he is residing with his ex-partner. The weight of the expert evidence is that the best option would be for him to live independently and visit his mother. This is what he is seeking to do.
It was common ground that the relationship between the defendant and his mother is a complex one but he does provide good care for her. She has her own health issues and was subject to domestic violence at the hands of the defendant's father. She sat in court all day at the hearing before me and she clearly supports her son. The OIMS notes show incidents of tension between them but there is no suggestion in the material before me that she is at any risk of personal violence at the hands of the defendant.
It seems to me from a careful reading of the decision of Payne J that central to his decision, having regard to the different statutory test his Honour was required to apply, was Mr Ardasinki's report. Since then, the court-appointed experts have opined that the risk is not as high as assessed by Mr Ardasinki. In addition, further material from Mr Filshie and the OIMS notes has been placed before the court. It seems to me that this material is relevant to whether Mr Ardasinski's conclusion in his RAR can in fact be established to a high degree of probability. This more recent material paints a more positive picture than that at the time of the RAR on 16 July 2019. That is not meant in any way to be critical of Mr Ardasinki, it is the product of further material that has come into existence subsequent to his report
There was expert evidence from Dr Furst and Mr Filshie that being on an ESO may impact on the defendant's capacity both to gain employment and maintain a relationship. That is, there is a risk that continuation of supervision may be ultimately counter-productive. The Act provides that in determining whether to make an ESO in this matter the safety of the community must be the "paramount consideration". It is difficult to see how an order that may be counter-productive would be consistent with giving paramount consideration to community safety. On the contrary, the safety of the community will be best met if the defendant is able to continue the positive steps he has already taken without impediment.
The most troubling aspect of the material before me is the defendant's continued attempts to deflect blame for the index offence. The Remarks on Sentence of Judge Norrish show he did so at the time of sentence and has continued to do. The experts agree that he has poor insight in this regard which is a dynamic risk factor. Mr Filshie did not perceive this in his dealings with the defendant but he explained that he did not discuss the index offence with him. There is no doubt that whenever the defendant is asked to explain the index offence he minimises his conduct. As I understand it, the reason that he keeps being asked about it is to see whether he can identify the risk factors involved. As disquieting as it is that he continues to deflect when asked to discuss the index offence, the fact remains that he has identified the relevant risk factors and has developed mechanisms for coping with them.
The defendant has a borderline personality/PTSD as a result of childhood trauma. His personality disorder cannot be "cured" but the defendant can strive to continue to manage the risk factors which arise from it. Similarly, his PTSD symptoms are unlikely to disappear at his age given their longevity but the defendant is striving to manage them as well. The material before the Court shows perseverance on the defendant's part in this respect. The experts, including Dr Eagle, agree that the defendant's risk of re-offending will be reduced if he continues with these coping techniques, continues to see Mr Filshie when needed, remains employed, has a stable relationship and refrains from alcohol.
I have had regard to all of the defendant's risk factors and how they are being managed. Although the ultimate question is for the court and not the experts, the weight of the expert evidence in this case does not favour an ESO. Having carefully considered the supporting documentation before me I am not satisfied to a high degree of probability that there is an unacceptable risk that the defendant will commit a serious act of violence if unsupervised.

ORDERS

In consideration of the above, I make the following orders: 1. The Further Amended Summons is dismissed. 2. The Interim Supervision Order due to expire on 22 February 2020 is revoked. 3. The plaintiff is to pay the defendant's costs of these proceedings.

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: 21 February 2020

At a glance

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Judgment (42 paragraphs)

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