The State of New South Wales ("the State") applies for an Extended Supervision Order (ESO) under s 5B Crimes (High Risk Offenders) Act 2006 ("HRO Act") directed to the defendant, Mark Stephen Whaley, who opposes the making of the order.
Section 5B Act provides for the conditions which must be satisfied before the Court is empowered to make the orders sought. There is no question that the conditions expressed in s 5B(a)-(c) of the HRO Act are satisfied: first, Mr Whaley is an offender who has served a sentence of imprisonment for a serious offence, namely murder committed on 21 February 1992; secondly, he is a supervised offender under an existing Interim Supervision Order (ISO) which commenced on 3 March 2018; and thirdly, the application has been made while he was a supervised offender.
The only question in dispute is whether on the evidence before me I am satisfied to the necessary high degree of probability that Mr Whaley poses an unacceptable risk of committing another serious offence, if not kept under supervision under an ESO (s 5B(d)). Mr Whaley strongly disputes this. If contrary, to his opposition I am so satisfied, there remain issues about the duration of the order and the conditions to be imposed under s 11 of the HRO Act.
In resolving the question in dispute I will bear in mind s 5D. I am not required to find that the risk of Mr Whaley committing a serious offence is more likely than not before determining that there is an unacceptable risk of him committing such an offence.
In Mr Whaley's case, a serious offence is a serious violence offence within the meaning of s 5A of the HRO Act. The primary meaning of that expression is a serious indictable offence that is constituted by a person 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 bodily harm to another person. There are other elaborations which need not be stated for present purposes. A serious indictable offence is one carrying a maximum penalty of imprisonment of 5 years or more. By way of example only, assault occasioning bodily harm is a serious indictable offence: s 59 Crimes Act 1900 (NSW).
Section 9 of the HRO Act empowers me to dispose of the application by either making an ESO or by dismissing the application. Importantly, under s 9 the safety of the community must be the paramount consideration.
Section 9(3) sets out mandatory considerations to which I must have regard in forming an evaluative judgment about whether, or not, an order should be made. These mandatory considerations must also inform the determination of whether Mr Whaley poses an unacceptable risk, if I may put it that way, for the purpose of s 5B of the HRO Act.
[3]
The terms of imprisonment
Prior to the expiration of his term of imprisonment on 3 March 2018, Mr Whaley had been serving 3 terms of imprisonment. The first two of these sentences were the murder sentences imposed by Sully J on 5 November 1992. The 2 murder victims were an elderly married couple who were murdered by the offender in their own home. The husband was aged 81 years and the wife 67 years. As I have said, this offending occurred on 21 February 1992. But Mr Whaley was not arrested until 4 March 1992 and Sully J backdated the sentences he imposed to commence at the date of arrest. His Honour imposed two concurrent sentences, each having a non-parole period of 20 years and an additional term of 5 years. Each total effective sentence of 25 years would have expired on 3 March 2017.
While in custody awaiting trial on the murder charges and on 26 April 1992 he committed the offence of maliciously inflicting grievous bodily harm upon a fellow inmate by assaulting him with a billiard cue, inflicting a linear skull fracture. This too was a serious indictable offence. His Honour Judge Shillington sentenced Mr Whaley on 17 February 1995, after his plea of guilty. To ensure there was additional punishment for this separate offending, his Honour imposed a sentence having a non-parole period of 1 year commencing on 4 March 2012, that is to say the expiration of the non-parole period for the murder charges, and an additional term of 5 years commencing on 3 March 2013 and expiring on 3 March 2018.
It should be pointed out that Mr Whaley was not released to parole when he was first eligible on 3 March 2013. Rather he was given the opportunity of preparing himself for release into the community through a program of day work release. Regrettably for him, he failed to return to custody at the end of his work release on 28 March 2014. He was taken back into custody on 29 March 2014, making the excuse that he did not return due to fears for his safety. He said other inmates were pressuring him to bring drugs back into the gaol and he was afraid of the consequences if he failed in this endeavour. He was sentenced to a fixed term of imprisonment of 3 months from 29 April 2014 to 28 July 2014. He was given other opportunities to engage in work release but he was not finally released to parole until 25 October 2017, only a little over 4 months before the expiration of the total effective sentence.
Since his release, while on parole and subsequently under the interim supervision order he has progressed from the Nunyara Community Offenders Support Program (COSP) to independent living in the community. And he is holding down a full-time job. These things, of course, are in his favour and great reliance was placed upon them and the absence of any crime of violence on his record for nearly 25 years prior to the expiration of his sentence.
[4]
The nature of Mr Whaley's serious offending
Mr Whaley was born on 17 June 1968 and was aged about 23 and a half when he committed the two murders to which he pleaded guilty. It is fair to say that on the whole of the evidence before me, he is a person whose background may be characterised as one of profound social deprivation, which no doubt explains the circumstance that he became habituated to illicit drugs and alcohol at a very young age. His earliest offending occurred at about the age of 12 with stealing in March 1981. This quickly escalated so that a pattern emerged of property, driving, assault and robbery offences. He also showed disregard for the processes of the law by absconding from lawful custody and resisting arrest. By the time he was charged with the murders in 1992 his criminal history and bail report ran to 12 pages and the punishments imposed upon him included terms of full-time custody.
An example of this is that on 30 April 1987, a sentence of 4 years penal servitude (as it was then styled) with a non-parole period of 18 months was imposed by the District Court at Sydney for an offence of robbery in company. The commencement of that sentence was backdated to 2 January 1987 and the non-parole period expired on 1 July 1988. Although released to parole when first eligible he soon returned to gaol, according to his custodial records, on 25 November 1998 and was not released to parole again until 3 May 1990. By then he had served nearly 3 years of the 4 year term. He had been at liberty then for somewhat less than 2 years before the murders were committed.
As I have indicated above, the victims of these crimes were an elderly couple. The murders happened at their home in Arncliffe. At one time Mr Whaley had rented the house next door to them. He had moved out by the time of the murders, but from an account given much later when in custody, while undertaking the Violent Offenders Therapeutic Program (VOTP), under the influence of drugs and alcohol he decided to murder the elderly couple for reasons of his own.
He drove to their home, waited until their son left for work, approached the home and rang the doorbell. The husband answered the door and recognised Mr Whaley and invited him in for a cup of tea. While enjoying their hospitality, according to this account, he took hold of a heavy piece of timber which happened to be available and bashed both the husband and the wife to death. He then decided to make the crime look like a home invasion gone wrong. He then stole the colour TV, video-player and the couple's car. He also stole the husband's wallet and the wife's purse.
This account, if true, is of a pre-meditated, cold blooded murder, the only motive for which was an apparent desire to return to custody to escape the distress of his chaotic life on the outside.
A quite different account was contained in the agreed facts put before Sully J for sentencing purposes. That account was based upon the version given to police on 4 March 1992 in the interview he agreed to after his arrest. On that version his intention was to break-in to steal the television and the video-player, although he said he did not know whether the house was occupied. He broke in through the backdoor using a credit card to ease the lock open. While he was in the process of loading goods into the victims' car, they apparently returned to their home and demanded to know what he was doing. He asserted, "I just panicked and that was it". He said he saw the piece of wood nearby, picked it up and just started hitting them. He described the bludgeon as a piece of round hardwood timber, indicating it was about 1 metre in length. He can't remember how many times he struck each of the victims. After they were disabled he finished loading the stolen goods into the victims' car and left. Some of the goods were sold, some were discarded and he fled to the Nowra region.
Sully J, a very experienced criminal judge, described the detail of the crime as disclosed by the post-mortem reports and photographs as "horrifying". He said "it is quite clear that [the elderly couple] were the victims of a callous, brutal and frenzied assault in which they were, quite simply, beaten to death" (ROS, 05/11/1992). Nonetheless, his Honour accepted that the crimes "were committed in the course of and by reason of the antecedent burglary" (ROS). (I interpolate that given the later version there must now be a question about this.) He concluded his assessment of the objective seriousness of the offending by saying:
"His acts constitute, therefore, the deliberate taking of the lives of two harmless and defenceless old people who had the misfortune to walk into their own home at a time when it was being systematically plundered by [Mr Whaley]. In terms purely of objective criminality, I consider that the present case is among the very worst of its kind."
Sully J did not, however, regard it as a case calling for the maximum penalty of life imprisonment. He referred to Mr Whaley's comparative youth, the early admission of guilt to the police, the plea of guilty when arraigned and a degree of genuine contrition and remorse his Honour thought these matters bespoke. He also referred to what I have referred to Mr Whaley's upbringing of profound social deprivation, saying, "it does seem that the prisoner has never had much of a chance in life and he is entitled to some properly sympathetic consideration in that regard" (ROS). His Honour also referred to the addiction to alcohol and drugs observing that this cannot possibly be accepted in any civilised society as an excuse for crime, especially not in the commission of very serious crime.
Psychiatric evidence was lead in the proceedings on sentence from Dr W. John Taylor and Dr William Barclay. Perhaps because of his deprived upbringing, both psychiatrists were of the view that Mr Whaley had an anti-social personality disorder which was then quite severe. Dr Taylor said, "He is prone to bouts of acting out behaviour and is also likely to engage in illegal activities" (ROS).
In his remarks on sentence in the District Court in February 1995 Shilllington DCJ observed that the victim of the serious assault charge was struck with the billard cue while he was looking away. This, of course, implies in part a cowardly act. His Honour found that the commission of the offence in a custodial situation was an aggravating circumstance.
[5]
The Court appointed experts
The Court has had the benefit of the opinion of two experienced consultant forensic psychiatrists appointed as Court Appointed Experts by Beech-Jones J under the provisions of s 7(4) of the HRO Act. They are Dr Adam Martin and Dr Martin Adams.
Dr Martin produced a report dated 26 March 2018 prepared after a lengthy consultation with Mr Whaley and the review of four folders of relevant information. He took a detailed history and conducted a mental state examination. Mr Whaley was co-operative and answered questions directly and in a forthright manner. As I understand his opinion, the expert was not able to arrive at a firm diagnosis. He noted that Mr Whaley had been diagnosed as possibly schizophrenic in custody and continued to be treated with anti-psychotic medication. On balance, Dr Martin thought it likely that Mr Whaley has a psychotic vulnerability, reasonably diagnosed as schizophrenia. I formed the impression that he was of the view that psychotic symptoms may have been made manifest by the use of multiple illicit substances in the past. He also thought, like others before him I have mentioned, that it was likely that Mr Whaley suffered from an anti-social personality disorder.
On his clinical judgment, having examined Mr Whaley and considered the historical material, Dr Martin was of the view that Mr Whaley fell into a group of people who would be considered at a high risk of serious violent offending. He administered the Historical Clinical Risk Management-20, Version 3 HCR-20 V3, a risk assessment tool "designed to assess a person's likelihood of engaging in violent conduct, and to help guide management strategies" (Exhibit A, p13). He again referred to Mr Whaley's history of violence, anti-social behaviour, substance abuse, probable schizophrenia, personality disorder, history of violent attitudes and problems with treatment and supervision. Dr Martin thought without supervision, he would be at risk of disengaging from treatment, leading to problems in the community. Given historical, static and unchangeable factors, Dr Martin opined that Mr Whaley had a relatively low threshold for mental decompensation rendering him liable to disordered or violent behaviour in the absence of intensive supervision (Exhibit A, p14).
He regarded it necessary for Mr Whaley to engage with psychological treatment, a violent offender maintenance program and to continue with his anti-psychotic medication. Given what he clearly regarded as the intractable factors at work here, he considered it reasonable for the supervision to continue over the maximum period of 5 years available. In oral evidence-in-chief, Dr Martin confirmed that he regarded the present regime of supervision under the ISO would ameliorate many of the risk factors he had identified (10.20 - 10.50T).
In cross-examination Dr Martin accepted that the process of assessment of the risk whether in terms of empirical considerations or as clinically assessed carried, what I would understand to be, a large loading for historical factors. He regarded Mr Whaley as having an enduring instability related to his personality, notwithstanding he was apparently stable. He accepted that Mr Whaley had done very well since his release from custody in maintaining stability as evidenced by him finding accommodation and a full-time job. He agreed that Mr Whaley's antisocial behaviour could moderate with age. Notwithstanding these encouraging circumstances, it was difficult to say whether his stability now was related to the current supervision or simply to his desire not to re-offend (14.45 - 15.5T). He said (15.50T):
"… I think given his, given the very high nature of the historical factors, which can't be negated, Mr Whaley is probably a person…[for whom it] wouldn't take much to tip him over the edge, and therefore it would be appropriate to have significant supervision around that."
Freedom from violent offending while in custody, notwithstanding the evidence of continuing substance abuse was in a sense encouraging in Dr Martin's view. But "you can't negate that serious violence, that doesn't go away from his history, and that's one of the problems that he is, obviously dealing with" (16.25T). The expert thought Mr Whaley had responded well to a structured environment in custody (16.25-8T), but he has "…an enduring predisposition to … [violent] behaviour given the wrong circumstances" (16.40 - 16.45T).
Dr Adams carried out the same type of detailed review as Dr Martin. Dr Adams explained that Mr Whaley was continuing to take his psychiatric medication even though he was not seeing a psychiatrist, but was keen to stop as he did not believe he required it. Dr Adams said that Mr Whaley engaged in the assessment reasonably well, but did express some reluctance to discuss certain aspects of his history. He was never hostile.
On Dr Adams' review of the documents he was unsure whether the records of Justice Health psychiatrists clearly established that Mr Whaley is suffering from schizophrenia, notwithstanding the prescription of anti-psychotic drugs. There was a question about whether the occasional recording of apparently psychotic symptoms really was a manifestation of drug-induced psychosis given the evidence of his ongoing abuse of drugs in custody. Dr Adams accepted the accuracy of the history of Mr Whaley's chaotic and deprived childhood. Like Drs Taylor, Barclay and Martin, in his view Mr Whaley satisfied the criteria for a diagnosis of an anti-social personality disorder. There were aspects of psychopathy about his history which was important in terms of risk assessment and management. Dr Adams thought the history of psychotic symptoms was vague but accepted there may have been a substance-induced psychotic disorder.
Like Dr Martin, Dr Adams accepted that there is a significant loading of historical factors in the assessment of Mr Whaley's case. However, his administration of the HCR-20 V3 lead him to say that "[t]here are reasonable grounds to conclude that Mr Whaley poses a risk of committing a further serious offence if he fails to engage positively with an appropriate risk management plan or his current presentation varies" (21.25T). In his report of 12 April 2018 (Exhibit B, p18), he accepted that Mr Whaley was "not currently presenting with a significant loading of clinical violence risk factors". However, he regarded it as reasonable that Mr Whaley would require psychiatric monitoring and violence risk management over several years. If Mr Whaley is currently stable, as he on all the evidence seems to be, Dr Adam's thought "it…reasonable to conclude that his level of risk can be managed in the community under an [ESO]" (Exhibit B, p19).
In Dr Adams's evidence-in-chief he made it clear that his assessment that there was no present loading of clinical violence risk factors is related to the efficacy of the current supervision regime (21.5 - 21.50T). He said:
"I think there's a clear enduring pattern of problematic behaviour leading up to his incarceration, there's a clear history of a number of empirically derived risk factors which we know are associated with violence, and that's based upon the reported stability currently and how he's presenting with the management plan in his current environment. I think there's reasonable evidence to say if you strip that back and took that away, given what we know of his behaviour previously to say that his violence risk would change and most likely elevate." (22.10 - 5T). (Emphasis added.)
His opinion as there expressed did not change despite careful and thorough cross-examination by Ms Hawkins of Counsel, who appeared for Mr Whaley.
Dr Adams agrees that currently Mr Whaley presents as quite stable (24.45T). He attributed that stability both to Mr Whaley's own efforts and to the supervision. Clinically he would weight them both equally. He accepted the sincerity of Mr Whaley's account of being determined "to live a pro-social life". The doctor thought it would be difficult to look at that in isolation from the "support, monitoring and management" going on around him (25.10 - 25.15). Although the doctor thought it theoretically possible that Mr Whaley would remain stable without supervision, he regarded it as unlikely (26.10T).
[6]
Other psychiatric evidence
I reiterate that Mr Whaley was in full time custody, other than for short periods of day release, from March 1992 until October 2017. During that time, for his sentencing proceedings, and as part of his management in custody he was examined by a large number of psychiatrists. This material runs to many volumes. I have referred to the diagnosis of anti-social personality disorder which has frequently been made with confidence, even by psychiatrists who have seen Mr Whaley to assist with the presentation of his case. This is a factor, notwithstanding its possible origins in his deprived childhood, which indicates the potential for a degree of dangerousness if entirely at large.
I was also impressed by Dr Adams' review of the Justice Health psychiatric material. In particular I am concerned by what he says about the uncertainty surrounding the relevant diagnosis of psychotic illness. I doubt that schizophrenia is an accurate diagnosis. Nonetheless assuming that it is, untreated that condition also is capable of rendering him dangerous. If rather he has a tendency to suffer from drug induced psychosis, this is no more comforting. What is clear from his custodial history is that he has a long history of breaches of prison discipline relevant to drug abuse in custody. Between February 2015 and February 2017 there are seven breaches recorded related to drug abuse in custody, and many many more over the long years previously. The recent breaches included failing a prescribed drug test and being in possession of a drug. A condition of his current ISO requires abstinence from illicit drugs. And there is positive evidence that he is compliant. But the recent history is concerning given that drug abuse is a criminogenic factor in his case, as it commonly is in others.
If one accepts that the history given to Justice Health psychiatrists of auditory hallucinations and persecutory delusions are symptomatic of a drug-induced psychosis, there is a clear contribution to a risk of future violence. For example, if Mr Whaley is unsupervised and descends into frequent drug abuse, this combined with the other risk factors identified in the evidence will increase the risk of him committing a serious violent offence. These matters are important in the assessment of the risk and favour of the making of an order.
[7]
Statistical assessments
A recent statistical assessment was carried out on 24 July 2017 by Dr Richard Parker, a Senior Psychologist within the Serious Offenders Assessment Unit. I note in passing that Dr Parker gave oral evidence before Beech-Jones J on the preliminary hearing, and the transcript is before me. Dr Parker administered a battery of risk assessment instruments including Level of Service Inventory - Revised (LSI-R), Violence Risk Appraisal Guide - Revised (VRAG) and Violence Risk Scale (VRS). He also considered Mr Whaley's criminogenic needs. He concluded as follows:
"Mr Whaley is estimated to be at high risk of further violent offending. This assessment is anchored by static, unchangeable factors and backed up by the identification of a number of criminogenic needs. While he has completed the VOTP, and engaged in an extended period of maintenance counselling, it is likely he will need an extended period of strict monitoring to implement and consolidate the skills and attitudes he learned in that program."
His LSI-R results placed him in the medium/high risk. His VRAG-R results were such that 76 per cent of violent offenders with a similar score reoffended violently within 5 years. Clearly a high risk. Mr Whaley's VRS score of 50 rates the risk as moderate. In evidence before Beech-Jones J Dr Parker explained that a score of 51 puts an offender in the high range for violent reoffending (18.30T; ROS, 09/02/2018). Dr Parker said 50 is the highest score in the moderate range and is similar to a group of offenders that had a violent recidivism rate of 34.5% after 4.4 years at risk. He said VRAG-R is a more accurate instrument than VRS.
[8]
Corrective Services Risk Management Report
Pauline Jeffress, a Senior Community Corrections Officer attached to the Metropolitan Extended Supervision Order Team prepared a risk management report on 17 August 2017. She reviewed the Corrective Services material including risk assessments and identified areas requiring management, and identified possible limitations to the strategy being developed. The limitations mainly relate, as I understand it, to questions of Mr Whaley's compliance. The report sets out a detailed strategy for managing the various risks identified. I infer that she is of the view that provided that the plan is implemented and adhered to, Mr Whaley can reasonably and practicably be managed in the community.
Her affidavit of 25 January 2018 was also read. There she said Mr Whaley has been compliant with his supervision requirements since his release into the community, initially on parole, as I have said from 25 October 2017. He has generally been compliant including with the requirement of requesting permission to depart from conditions in advance. All alcohol and drug testing have returned appropriate negative results. After his release to the Nunyara COSP he was said to be not problematic, but he could become agitated about rules, presumably with those he disagreed with. He found full-time employment on 9 November 2017 with the employer for whom he had worked in the Works Release Program. The employer apparently values him as an employee. He has attended his maintenance sessions with the VOTP therapist and appears to be engaged and making progress. There was an incident of association with other known offenders in December 2017, but after a written warning there has been no further breach. Ms Jeffress was satisfied that Mr Whaley appears to have been compliant with the majority of his parole conditions, including with the directions properly issued by his departmental supervision officer, i.e. Ms Jeffress.
[9]
Treatment and Rehabilitation Programs
The State read the affidavit of Ms Fiona Mason, a Senior Psychologist and team leader with the VOTP. Ms Mason gives evidence that she became aware of Mr Whaley in 2012 after he had completed his first attempt at the VOTP. She says that his involvement had been, at least at times, sporadic and disengaged. He re-engaged from 29 April 2015 and attended monthly sessions as required via video link. She noticed a change of attitude then. He became more open in sessions focusing on management of risk, relapse prevention strategy and other important criminogenic factors in his case. She has had monthly contact with him since.
After his release on parole on 25 October 2017, he has attended individual and group sessions as required. He has complied with his conditions of supervision so far as she is aware. He has also volunteered to assist with police programs to support young people at risk. He has proactively sought guidance and support when confronted with difficult situations. When he was warned for consorting in December 2017 he telephoned Ms Mason seeking advice for dealing with similar situations in future. She was of the view that he had learnt from his experience.
Ms Mason regards substance abuse as the primary risk factor. She says he has demonstrated significant progress and currently appears open and willing to engage in the program. He has formed concrete pro-social goals in regard to maintaining abstinence, full-time employment, obtaining a driver's licence and the like.
[10]
Other options
Mr Whaley has completed his sentence and there is no application for a continuing detention order. The options seem to be release from supervision or the making of an ESO.
[11]
Likelihood of compliance
Given the evidence I have already recounted and in particular his appropriate engagement with the VOTP program at least since 2015, his very substantial compliance with parole conditions and the current ISO, and his recent firm expressions of a determination not to re-offend and return to custody, I am of the view that there is a high degree of likelihood Mr Whaley will comply with the obligations of an ESO.
[12]
Criminal history, views of the sentencing court and other matters
I have already referred to Mr Whaley's criminal history, the views of Sully J in particular and other information perhaps not strictly relevant to the mandatory considerations. His past criminal record is bad and is a governing consideration when assessing his risk of re-offending. However, Sully J did not regard his prospects of rehabilitation, a secondary object of the act, as completely hopeless. And although his compliance with prison discipline is not a very promising indicator of future good behaviour, and his initial engagement with available programs was perhaps sluggish, things have certainly looked up in recent years and in particular since his release to parole. I have recounted that there were relevant breaches relating to substance abuse in custody as recently as February 2017, however, the evidence of Ms Jeffress and Ms Nathan is that he has been compliant in all respects with the abstinence conditions as imposed. Beech-Jones J relaxed the alcohol abstinence condition in February of this year. His Honour allowed Mr Whaley to drink a minimal amount of beer each week. There has been no evidence of any breaking out or binging since then.
[13]
Consideration
Despite the positive factors that Ms Hawkins has identified in Mr Whaley's favour, I am satisfied to the requisite high degree of probability that absent appropriate supervision Mr Whaley poses an unacceptable risk of committing a serious violence offence.
The matters which have persuaded me of this, in no particular order, are:
1. his bad criminal history including crimes of violence before the index offences;
2. his profound social deprivation which seems to be bound up with his anti-social personality disorder;
3. whichever versions one accepts, the wanton violence associated with the brutal index offences;
4. his non-compliance with the strict conditions of the work release program. This demonstrates he is perhaps at risk when left to his own devices;
5. the ongoing vulnerability to substance abuse, its probable affect upon his mental state, the uncertainty about whether he has a mental illness, and if so the appropriate diagnosis;
6. the opinions of the Court Appointed Experts and the other professionals in the field in terms of risk assessment and management.
Taking all these together I am satisfied to the degree required that I should accede to the State's application for an ESO.
[14]
Duration
Ms Hawkins of Counsel submitted that were I persuaded that an ESO should be made, its duration should be 3 years rather than 5. She relied upon a number of factors. In particular, the absence of any crimes of violence in custody since 1992 (notwithstanding ongoing substance abuse), as I have referred to above, and the progress Mr Whaley seems to have made over the last couple of years towards leading a pro-social life. She pointed to those aspects of the evidence of Drs Martin and Adams where they acknowledged this progress, his apparent current stability and the apparently absence of the probability of an immediate realisation of the risk with supervision.
Mr Aitken of Counsel for the State relied upon the direct expressions of opinion of the experts, to the effect that absent strong supervision, Mr Whaley could decompensate.
I accept that rehabilitation is another, if secondary object of the HRO Act: s 3. However, when determining whether to make an order, as I have said, the safety of the community is the paramount concern. Obviously that concern is also bound up with the question of the duration of the order. It is quite clear to me from the evidence I have reviewed and the findings I have made that some of the factors which render the risk of Mr Whaley committing a serious violent offence unacceptable are likely to be intractable. This is the opinion of the Court Appointed Experts that I have summarised above. At the same time considering the evidence of Ms Jeffress and Ms Mason as well as the objective circumstance of the progress Mr Whaley has made since his release on parole, there may be some cause for mild optimism. His current level of stability in terms of residence, work and substance abuse is probably much better than at any time in his life. However, it has only been 7 months since he was released to parole and it may be said this is insufficient a time to justify any confident favourable prognostication.
Ms Hawkins's argument may be characterised as 'a light at the end of the tunnel' submission. I accept that there is a place for such considerations in the statutory regime. While concentrating upon the primary consideration of the safety of the community there is scope when giving effect to the purposes of the statute for encouraging rehabilitation. If the shorter period is fixed, it remains open to the State to apply for an extension when its expiration approaches just as it is with an order of 5 years duration.
In the event I have been persuaded that given Mr Whaley's very encouraging progress that an order of 3 years and 6 months duration is appropriate. In arriving at this conclusion, I repeat I have not lost sight of what may be certain negative intractable features informing the risk to the community.
[15]
Appropriate conditions
Section 11 of the HRO Act empowers the Court to "direct [the defendant] to comply with such conditions as [it] considers appropriate". I fully appreciate that in Lynn v State of New South Wales [2016] 91 NSWLR 636; [2016] NSWCA 57 Basten J (at [129 - 130] and Gleeson JA at [149]) regarded the consideration of what conditions may be appropriate as "an intermediate stage" before finally determining whether an ESO should be made under s 9(1) of the HRO Act. As a matter of practice, at first instance however, the appropriateness of specific conditions is usually considered at this final stage of the determination. Obviously the ability of community corrections to manage the apparent risk presented by an offender is considered as part of the mandatory considerations to which the Court has regard. This involves, at least in a general sense, considering the nature of the conditions to which an offender has been subject to either on parole or under an ISO and their effectiveness in practice.
I bear in mind that the interest of the defendant in liberty and privacy are matters to be taken into account in the assessment of the appropriate conditions to be imposed and in the final exercise of the Court's power in either imposing the order or dismissing the application. Given all I have said, however, about the nature of the risk and the intractable or irreducible risk elements personal to Mr Whaley, I am persuaded that comprehensive and stringent conditions are appropriate. From the descriptions contained in the annexure to Ms Jeffress' Risk Management Report of 17 August 2017, I am satisfied that the conditions in any event are subject to appropriate flexibility in their application by the department supervising officer. The conditions proposed are expressed in language which facilitates flexible application. In oral submissions.
Ms Hawkins challenged the need for the condition requiring electronic monitoring and the provisions of the curfew.
[16]
Electronic Monitoring
Electronic Monitoring is dealt with in conditions 5, 6, and 7. The requirement in this case is much more limited than in other cases I have seen. I will set out these conditions in full.
Electronic Monitoring
5. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.
6. If the defendant is not charged with any offence of breaching the ESO, or with any other criminal offence, for a period of 12 continuous months from the date of the commencement of the ESO, the defendant will no longer be required to wear the electronic monitoring equipment and condition 5 will cease to apply.
7. If electronic monitoring is removed because of condition 6 and the defendant is then charged with any offence of breaching the ESO, or with any other criminal offence, the DSO or any other person supervising the defendant may reapply condition 5.
From this it can be seen that if Mr Whaley remains of good behaviour in terms of compliance with the ESO and the criminal law for a period of 12 months from the commencement of the ESO it will be no longer be required, at least while he continues to be of good behaviour.
As I understand the position, he has been subject to electronic monitoring since his release to parole. Other than the one incident of consorting, which has been dealt with there has been a high degree of compliance with the conditions of parole and then ISO and, of course, the criminal law. Ms Hawkins submitted that a further period of 12 months "would be quite onerous" (39.19T). It's notorious that the presence of the monitoring anklet can become obvious, attracting comment or even offence from other members of the community. It can be counter-productive in terms of the secondary object of rehabilitation. At the same time I regard it an important check on an offender's movements and activities during the early period of release under supervision. Despite submissions to the contrary in my view it has a deterrent effect on the wearer.
I am persuaded that condition 6 should be amended so that the period of 12 months runs from the commencement of his parole. That will leave another 5 months for him to demonstrate that he can continue to be of good behaviour.
Condition 7 adequately takes care of any subsequent default and should present an appropriate stick to the carrot offered by condition 6, even as amended.
[17]
Curfew
The second condition challenged by Ms Hawkins is condition 13 which provides for a curfew between the hours of 9:00 pm and 6:00 am unless other arrangements are approved. I acknowledge the flexibility inherent in the condition. I also bear in mind the one instance of inappropriate consorting which seems to have been appropriately dealt with not only by community corrections but also by Mr Whaley in his response to being pulled up about it.
Apparently a cause of particular concern is that Mr Whaley has taken to attending home games of his local NRL team whose home ground is near his residence. Games are often played on a Saturday night. I am sure that attendance at these particular games could be adequately managed by obtaining prior approval from his department supervising officer. At the same time in the case of a working person who has shown stability of employment and residence and otherwise complied with onerous conditions, 9:00 pm seems a little early to be insisting on him being home for the night. Such a requirement may unreasonably curtailed perfectly innocent entertainments in the evening. I appreciate the risk this condition addresses relates to the opportunity for inappropriate associations leading to more serious breaches. But it does seem to me notwithstanding the degree of flexibility inherent in the language of the condition that more structural leeway is appropriate in Mr Whaley's case. I would therefore vary condition 13 by providing for a curfew between 10:30 pm and 6:00 am. All of the conditions have to be read together as providing a suite of measures to manage the risk. This variation does not in my judgment detract from the likely effectiveness of the whole regime.
[18]
Orders
For these reasons my orders are:
1. Under s 5B and s 9(1) of the Crimes (High Risk Offenders) Act 2006 Mark Stephen Whaley is subject to an extended supervision order for a period of 3 years and 6 months commencing from 26 May 2018 and expiring on 25 November 2021.
2. Under s 11 of the said Act direct that Mark Stephen Whaley comply with the conditions set out in the schedule to these orders for the duration of the Extended Supervision order.
[19]
SCHEDULE OF CONDITIONS OF SUPERVISION
Mark Stephen Whaley
Departmental Supervising Officer (DSO)
Corrective Services NSW (CSNSW)
[20]
Part A: Reporting and Monitoring Obligations
Monitoring and Reporting
The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.
The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
The defendant must follow all reasonable directions by his DSO or any other person supervising him.
The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order.
Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.
If the defendant is not charged with any offence of breaching the ESO, or with any other criminal offence, for a period of 12 continuous months from the date of the commencement of his release to parole on 25/10/2017, the defendant will no longer be required to wear the electronic monitoring equipment and condition 5 will cease to apply.
If electronic monitoring is removed because of condition 6 and the defendant is then charged with any offence of breaching the ESO, or with any other criminal offence, the DSO or any other person supervising the defendant may reapply condition 5.
Schedule of Movements
If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.
If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period
The defendant must not deviate from his approved schedule of movements except in an emergency.
The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.
[21]
Part B: Accommodation
The defendant must live at an address approved by his DSO.
The defendant must be at his approved address between 10:30pm and 6:00pmam unless other arrangements are approved by his DSO.
The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
The defendant must not spend the night anywhere other than his approved address without the approval of his DSO.
The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.
[22]
Part C: Place and travel restrictions
The defendant must not leave New South Wales without the approval of CSNSW.
The defendant must surrender any passports held by the defendant to the Commissioner.
The defendant must not go to a place if his DSO tells him he cannot go there.
[23]
Part D: Employment, finance and education
If the defendant is unemployed, he must make himself available for employment, education, training or participation in a personal development program as directed by the DSO.
The defendant must not start any job, volunteer work or educational course without the approval of his DSO.
The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.
[24]
Part E: Drugs and alcohol
The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.
23A. The defendant must not consume alcohol to the extent that his blood alcohol level will exceed 0.05.
The defendant must submit to testing for drugs and alcohol as directed by his DSO.
The defendant must not enter any licensed premises without the approval of his DSO.
The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.
[25]
Part F: Non-association
Associations with Others (not children)
The defendant must not associate with people that his DSO tells him not to.
The defendant must not associate with any people who are consuming or under the influence of illegal drugs.
The defendant must not associate with any people who are consuming or under the influence of alcohol without the prior approval of the DSO.
If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.
[26]
Part H: Weapons
The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998.
[27]
Part I: Access to the internet and other electronic communication
The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.
The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.
The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.
The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
[28]
Part J: Search and seizure
If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary:
for the safety and welfare of residents or staff or persons present at the defendant's approved address;
to monitor the defendant's compliance with this order; or
because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;
then the DSO may direct, and the defendant must submit to:
search and inspection of any part of, or any thing in, the defendant's approved address;
search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant;
search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or
search and examination of his person.
For the purposes of the above condition:
a search of the defendant means a garment search or a pat-down search.
to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO.
NOTE:
"Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body.
"Pat-down search" means a search of a person where the person's clothed body is touched.
During a search carried out pursuant to condition 36 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:
the safety of residents or of staff at the defendant's approved address;
the welfare or safety of any member of the public or any other person; or
the defendant's compliance with this order;
or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.
The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 36 to 39 above.
[29]
Part K: Access to violent and classified material
The defendant must not purchase, possess, access, obtain, view, participate in or listen to:
a. material classified or material that would be classified as Refused Classification;
b. material classified as R18+ (for reason of violence) unless permitted by the DSO; or
c. other material as directed by the DSO.
[30]
Part L: Personal details and appearance
The defendant must not change his name from Mark Stephen Whaley or use any other name without the approval of his DSO.
Unless otherwise approved by his DSO, the defendant must not use any alias, log-in name, or a name other than Mark Stephen Whaley or use any email address other than those known to the DSO under condition 32 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.
The defendant must not change his appearance without the approval of his DSO.
The defendant must let CSNSW photograph him.
If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.
[31]
Part M: Medical intervention and treatment
The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.
The defendant must take all medications that are prescribed to him by his healthcare practitioners.
If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.
The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.
The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.
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: 25 May 2018