State of New South Wales v Wynne

Supreme Court of NSW|2021-04-26|Before: Wilson J, Davies J

Judgment

HER HONOUR: Shayne Wynne, the defendant to a summons filed on 25 September 2020 by the State of New South Wales ("the State"), is a man with a lengthy history of committing sexual and domestic violence offences against women with whom he has been in a relationship. The State contends that he poses an unacceptable risk to others of committing such offences in the future, and asks the Court to make an order subjecting him to extended supervision (an "ESO"), pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act").
The State's summons came before the Court at a preliminary stage in November 2020, at which time the defendant was in custody, serving the balance of parole for offences of assault occasioning actual bodily harm ("AOABH"), three counts, three counts of common assault, and two counts of aggravated sexual assault, the circumstance of aggravation being the intentional infliction of actual bodily harm. On 25 November 2020 Davies J made orders subjecting the defendant to an interim detention order ("IDO") under the Act, and appointing two expert medical professionals to examine him, and provide reports to the Court: State of New South Wales v Wynne (Preliminary) [2020] NSWSC 1650 ("the preliminary decision").
The IDO was subsequently extended and, when the final hearing of the matter came before the Court on 26 April 2021, the defendant remained in custody, despite his sentence having expired on 30 November 2020.
The final orders sought by the State at that hearing are: "5. […] an order: a. pursuant to ss 5B and 9(1)(a) of the Act that the defendant be the subject to an extended supervision order ("the extended supervision order") for a period of five years from the date of the order; and b. pursuant to s. 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in [sic] Schedule to this Summons."
At the hearing, the defendant did not dispute that the weight of the evidence well supported a conclusion that he poses an unacceptable risk of committing a serious offence if he is not subject to supervision in the community, and thus that there is a basis for the Court to make an ESO. That was a realistic concession.

The Expert Reports

Pursuant to s 7(4) of the Act, Dr Michael Davis and Dr Jeremy O'Dea each saw and assessed the defendant, and provided a report of their respective conclusions to the Court.
Dr Davis is a Consultant Psychiatrist. Dr Davis saw the defendant on 18 March 2021 via video-link. At the time of the psychiatric assessment, the defendant was a 51 year old man, who was at Mid North Correctional Centre. The doctor additionally interviewed the defendant's mother. He was briefed with the extensive documentary record that now exists concerning the defendant. His very thorough and helpful report is dated 31 March 2021.
Dr Davis took a history from the defendant. The defendant reported that he had a good education, being in advanced classes throughout primary school. His mother reported that the defendant was "above average at everything". He grew up in a comfortable home not marred by domestic violence; he did not want for anything, and he was never abused.
When he was in year six at school the defendant learned he had been adopted at birth which caused him to feel "crushed". He described feelings of abandonment and reported that he didn't "fit in in the school… and in the family… even to this day". The defendant attributes his feelings of not belonging as the cause of outbursts at home, when he would lash out at family. He reported arguments where he would say to his adopted parents "What do you care? I'm only adopted."
Whilst in custody, the defendant was assisted to contact his natural mother, and he wrote to her but received no response.
Although the defendant's adopted father is now dead, he and his adopted mother, who is 83 years old, have "almost daily" contact. Whilst he gets on with his younger adopted sister, they have "very little" contact.
Despite doing well at school the defendant left halfway through year nine and took up a position at a department store where he worked for three years. He then worked as a sales representative at a paint company for eight years. Prior to his incarceration, he worked as a labourer but found it difficult to obtain work when he was on parole due to his convictions. Whilst in custody, the defendant has worked at the various prisons in which he has been housed, in the kitchen and canteen, and reported enjoying the work.
Whilst in custody, the defendant told Dr Davis that he has completed several courses, including "Certificate III (in) Warehousing, a forklift certificate, a test-and-tag certificate, first aid courses…[and] heaps of short courses as well."
Dr Davis noted that the defendant had completed the High Intensity Sex Offender Programme ("HISOP") in 2019 and, whilst the record established that he had made some progress in the programme, he reportedly "struggled with the more nuanced components". When asked whether he thought the programme had assisted him, the defendant replied "I believe so, yeah, definitely, it's just given me a range of tools... being able to identify me emotions and feelings... and being able to (describe it)".
Dr Davis opined that the defendant's responses, both during the interview with him and as reported in the documentary record, suggested that the defendant had acknowledged his problems and understood his need to address the issues he confronted. With respect to the defendant's treatment, Dr Davis noted: "He has a positive attitude towards the possibility of personal change, the value of therapy, and the importance of personal responsibility. However, the nature of some of his problems also suggested that treatment would be fairly challenging, with a difficult treatment process and the probability of reversals. If treatment were to be considered for Mr. Wynne, he may have initial difficulty in placing trust in a treating professional as part of his more general problems in close relationships."
Dr Davis noted that the defendant's previous difficulties while on parole, including allegations of further sexual and violent offending against his then intimate partner and the defendant's self-report that he had experienced anxiety and depressed mood while on parole. Dr Davis observed that the defendant had struggled to obtain work while on parole, and was living alone in a suburb he described as one of the "biggest drug areas in Sydney", where he was exposed to drug users.
Whilst on parole, the defendant told Dr Davis he had consumed one beer at Christmas time and that despite, not being permitted to gamble by a condition of parole, put $5 into a machine three times per week so as to qualify for "three free soft drinks". The defendant reported no gambling problems.
Many psychiatric and psychological assessments have been made of the defendant over time, including by Dr Davis. The doctor considered all of the material and the results referred to are summarised below.
The Personality Assessment Inventory Examination ("PAI") is a self-report questionnaire which Dr Davis himself administered to assess the defendant's mental state and personality features. According to Dr Davis, the defendant's PAI results marked difficulties with substance and alcohol use, and borderline and antisocial personality features, and suggested some experiences of anxiety, and an interest in treatment.
Of the defendant's score on the PAI, Dr Davis stated: "Mr. Wynne's results on the clinical scales of the PAI were marked by significant elevations across a number of different scales, indicating a broad range of clinical features and increasing the possibility of multiple diagnoses. The configuration of the clinical scales suggested an individual with a history of polysubstance abuse, including alcohol as well as other drugs. When disinhibited by the substance use, other acting-out behaviours may become apparent as well. The substance abuse is probably causing severe disruptions in his social relationships and his work performance, with these difficulties serving as additional sources of stress and perhaps further aggravating his tendency to drink and use substances. In addition to his substance use issues he is impulsive and emotionally unstable. Substance use is likely to be part of a more general pattern of self-destructive behaviour and probably exacerbates an already erratic approach to life. An unpredictable and hostile style of interaction has probably strained most relationships, and these will likely have deteriorated even further as a consequence of his substance abuse."
Also on the basis of the PAI results, the doctor observed: "Problems associated with substance abuse are likely to be found across several life areas. His responses suggested that he has little ability to control the effect that substances have on his life. In addition, Mr. Wynne's responses suggested that his use of alcohol has had a negative impact on his life."
Concerning the defendant's anger management, again with respect to his scores on the PAI, Dr Davis opined: "[…] Mr. Wynne's pattern of responses suggested that aggressive behaviours play a prominent role in the clinical picture and that such behaviours may represent a potential treatment complication. His responses suggested that he is an individual who is easily angered, has difficulty controlling the expression of his anger, and is perceived by others as having a hostile, angry temperament."
Dr Davis referred to the results of the defendant's responses to the Vindictive Rape Attitude Questionnaire ("VRAQ"), a 15-item self-report questionnaire designed for research purposes to identify beliefs held by people who engage in particular types of rape behaviour. Dr Davis noted: "Mr. Wynne's responses on the VRAQ included some endorsement of three of the 15 items. These were "women who play with men's sexual feelings make me angry;" "when women come on to me, I look out for danger;" and "I get really angry when I think about women lying and cheating on their partners."
Regarding the Sexual Sadism Scale ("SESAS"), a set of structured professional guidelines developed to assist in the identification of sexually sadistic offence behaviours and the diagnosis of Sexual Sadism Disorder, Dr Davis noted: "Generally speaking, as more of the 11 crime scene behaviours in part one of the SESAS are present, the more sexually sadistic the offences are likely to be. The authors have suggested that a minimum of four behaviours can be indicative of sexual sadism. Mr. Wynne had evidence of six of the items (sexual arousal during the crime scene actions; exertion of power, control, domination; torturing the victim (i.e., eliciting mortal fear); degrading, humiliating behaviour towards the victim; expressive physical violence; and confinement of the victim). There was no evidence of the remaining five items (mutilation of sexual parts of the victims' body; mutilation of other parts of the victims' body; insertion of objects into victims' bodily orifices; ritualistic behaviour; or taking trophies)".
Notwithstanding the clinically significant number of behaviours present for the defendant, the doctor did not diagnose a Sexual Sadism Disorder, concluding: "The results of the SESAS indicate that Mr. Wynne's offence behaviours include several indicators of sexual sadism. However, it is my opinion that this is not indicative of a diagnosis of Sexual Sadism Disorder. Rather, it reflects a somewhat different motivation."
Dr Davis thought that the defendant's motivation to offend was vindictive. Where a vindictive motivation arises in the commission of offences: "Such offences are characterised by a high level of aggression and gratuitous violence that is directed specifically at females, both in sexual offending and otherwise. Their anger is misogynistic and there is usually no history of pervasive anger towards males. While there are some clear overlaps with sexually sadistic behaviour, vindictive rapes involve little in the way of planning or rape fantasies. In Mr. Wynne's case, his sexual and violent offences against intimate partners can be seen as an interaction between his disordered personality structure and his misogynist views regarding females. Indeed, he has strong fears of abandonment that he identifies as the sequelae of being given up for adoption at birth. Mr. Wynne also has a low threshold for sexual jealousy. His violent and sexually violent offences appear to have occurred in the context of prominent sexual jealousy and fears of abandonment. While even he can now see that these fears were largely imagined, it is perhaps clear that Mr. Wynne preemptively attacked his intimate partners before they could leave him and punished them with his fists, his penis, and the use of weapons. The use of alcohol and substances at the time served to lower his inhibitions and his ability to tolerate these emotions and his overall levels of frustration."
Having administered the Hare Psychopathy Checklist-Revised (PCL-R) Dr Davis opined that the defendant had some "problematic personality features, but not overtly psychopathic".
In assessing the defendant's risk for sexual recidivism, Dr Davis used the Static-99 actuarial instrument and noted: Mr. Wynne is considered to fall in the moderate-high risk category relative to other male sexual offenders, with a score of five (scores of six and greater are indicative of the high-risk category). In the studies on which this measure was developed, the percentage of offenders with a score of five who went on to be convicted of sexually reoffending ranged from 33% over 5 years, to 38% over 10 years, to 40% over 15 years. This was higher than the base rate for sexual re-offending in the development sample (which was 18%, 22%, and 26% respectively)."
To assess the risk of the defendant committing further sexual violence, Dr Davis used the structured professional guidelines contained in the Risk for Sexual Violence Protocol ("RSVP") and noted the defendant would pose different risks for different scenarios. Dr Davis noted that all of the defendant's sexual offences were committed against intimate partners and regarded the defendant's risk of sexual offending outside relationships as low-to-moderate.
To assess the defendant's risk of general violence, Dr Davis utilised the HCR-20 assessment, a set of structured professional guidelines, which covers three domains of risk factors specifically related to general violence: Historical (past), Clinical (present), and Risk Management (future). Dr Davis found that: "Mr. Wynne had definite evidence of two of the items in this scale (future problems with living situation and stress or coping). There was also partial evidence of the remaining three (professional services and plans, personal support, and treatment or supervision response). These are all areas that will require some attention before Mr. Wynne is released to the community."
The defendant has an "elevated number of historical risk factors" and poses a "high risk of violence against an intimate partner". Much like his sexual offending, Dr Davis noted that the defendant poses a low-to-moderate risk of violence towards persons outside of the context of an intimate relationship.
The risk factors relating to the offender committing future violent offences as identified by the HCR-20 assessment are similar to those Dr Davis identified as part of the RSVP, being the defendant's "living situation, personal support, and stress or coping". The defendant's previous violence, personality disorder, substance use and violent attitudes are historical risk factors. Dr Davis noted the relevant clinical risk factors include "insight, violent ideation or intent, depressed mood, and instability."
Another assessment tool is the Spousal Assault Risk Assessment Guide ("SARA"), a set of structured professional guidelines designed specifically for assessing the risk of intimate partner violence. On this assessment the defendant evidenced two of the three risk factors, being "severe and/or sexual assault and violation of no-contact order". Dr Davis also noted partial evidence of the third risk factor, being "use of weapons and/or credible threats of death".
Dr Davis noted that an important relevant consideration for the SARA was the defendant's "choking and strangling of his most recent victim, to the point of damaging her larynx". Dr Davis identified the defendant as having a "high number of risk factors" for intimate partner violence.
Further, Dr Davis used the SARA to identify "critical items" of particular relevance to the defendant's risk of future intimate partner violence. Dr Davis noted: "The most relevant risk factors for Mr. Wynne are relationship problems, sexual jealousy, substance use, homicidal ideation, personality disorder, violation of conditional release, use of weapons and credible threats, and severe assault. Unsurprisingly, these overlap considerably with the most relevant considerations on the RSVP and the HCR-20. The results of the SARA […] underscore how high Mr. Wynne's risk of violence, and sexual violence, is with specific regard to intimate partners. Accordingly, it is my opinion that he currently poses a high risk for intimate partner violence."
Dr Davis found that the defendant fell within the "medium" range of risk and need on the Level of Service / Risk, Need, Responsivity Assessment (LS/RNR) and noted: "One of the eight areas was considered to be particularly problematic (i.e., a high or very high need). This was the area of companions. A further two areas were of medium need (criminal history and leisure/recreation). Four of the remaining areas were of low need (education/employment, family/marital, alcohol/drug problem, and antisocial pattern). The remaining area was of very low need (pro-criminal attitude/orientation). The areas of family/marital, education/employment, and pro-criminal attitude/orientation were considered to be areas of at least partial strength. Similarly, Mr. Wynne's recent lack of substance use was considered positive, but the prison environment may have resulted in this being artificially low. Mr. Wynne's LS/RNR results indicated that his risk for general criminal recidivism is comparable to that of the average offender. Nonetheless, the identified areas of need can serve as treatment and management targets to improve his life and further reduce his risk over time."
Dr Davis diagnosed the defendant with Borderline Personality Disorder and noted: "This is a chronic condition characterised by a pervasive pattern of unstable interpersonal relationships, self-image, and emotions; along with impulsivity, inappropriately intense anger, and transient stress-related paranoia. Mr. Wynne has had this condition for decades. While there can certainly be some personality maturation over time, particularly with appropriate treatment, it is perhaps clear that Mr. Wynne's personality at the age of 51 years is quite entrenched. Nonetheless, during our assessment interview he appeared open to exploring and understanding this so some amelioration, particularly at the level of the behavioural manifestations of this condition, is possible over time."
Taking each of the assessments into account, with respect to risk of reoffending, Dr Davis opined that the defendant poses a high risk for intimate partner violence. He said: "The most likely scenario for future spousal assault will be one in which Mr. Wynne begins to suspect, rightly or wrongly, that his partner is being unfaithful or is about to abandon him. This may take the form of physical violence or a combination of physical and sexual violence. This is perhaps most likely, though not necessarily, to occur in the context of alcohol and/or substance intoxication. This does not cause Mr. Wynne to act violently to his intimate partners, but it does further lower his already compromised inhibitions and his impoverished ability to tolerate thoughts of betrayal or abandonment. I note that his offences have involved the use of knives as well as strangling and choking. Accordingly, any future intimate partner violence certainly has the potential to involve very serious physical violence."
With respect to the defendant's likelihood of committing a further serious offence, Dr Davis noted: "[…] all of his violent and sexual offending has occurred against intimate partners. As such, it is my opinion that Mr. Wynne poses a high risk for both serious violent and serious sexual offending against intimate partners (i.e., considerably higher than that of the average violent and sexual offender respectively)."
The most important risk factors for sexual and violent offences are: "[…] relationship difficulties, substance use, sexual jealousy, vindictive attitudes regarding females, use of weapons, previous violence, personality disorder, depressed mood, coping difficulties, violent attitudes, poor supervision response, poor insight, violent ideation or intent, and emotional and behavioural instability, living situation, and limited personal support."
With respect to an ESO over the defendant, Dr Davis recommended: "[…] there would have to be a considerable focus on any intimate relationships that he may have. The relationship that he plans on pursuing has thus far been characterised by one instance in which Mr. Wynne has admitted to slapping his partner. Moreover, this partner also alleged serious physical and sexual victimisation that I understand was subsequently recanted. Accordingly, if Mr. Wynne was made subject to an Extended Supervision Order, there would have to be significant monitoring of his intimate relationships and ideally consultation and safety planning with his partners."
In the doctor's opinion it is important that the defendant's alcohol and substance use is closely monitored. He would also benefit from ongoing individual sessions with a forensic psychologist to address the defendant's abandonment issues, his sexual jealousy, and his "vindictive and misogynistic views that have contributed to his violent and sexually violent punishment of intimate partners."
Dr Davis regarded the conditions of the ESO that were sought by the State as appropriate.
With respect to the duration of an ESO, Dr Davis opined: "[…] given the circumscribed nature of Mr. Wynne's risks, and the lengthy period of offending behaviour in intimate relationships, one would have to see a period of stability of at least two-to-three years before his risk for violence and sexual offending to intimate partners could be considered anything other than high. Five years of stability would almost surely necessitate a reduction to moderate risk. However, this is highly dependent upon the status of recognised risk factors at the time, so I unfortunately cannot be very precise."
Dr O'Dea, Forensic Psychiatrist, saw the defendant on 19 March 2021 and 29 March 2021 via audio-visual link while the defendant was based at the Mid North Coast Correctional Centre. The interviews lasted for two hours in total.
The defendant presented as a physically fit and healthy, clean shaven and bald man of reportedly Aboriginal and Irish descent. He was engaging and co-operative throughout the interviews and expressed remorse for his offences. He has two adult children from a previous relationship (with a victim of one of his previous sets of offences) and was living in Port Macquarie with his then female partner (one of the victims of the index offences) prior to his arrest for those offences on 21 October 2008.
Dr O'Dea took a history from the defendant and noted his Aboriginal heritage, derived from his mother, who was about 16 years old when she gave birth to him. The defendant reported that his adopted father died in August 2019 at the age of 86 from lung disease, whilst his adoptive mother is alive but ill, and living with his sister (the biological daughter of his adoptive parents). In custody, the defendant has daily telephone calls with his family and his current partner. He has little contact with his sister which he presumes is because of his behaviour, stating "… my sister doesn't tolerate that kind of rubbish".
The defendant described his childhood as "pretty good". He and his sister were well provided for and there was no abuse. The defendant said that he missed mid-year exams in year nine due to a bout of glandular fever, and he did not return to school thereafter. He expressed a wish to return to study to obtain his School Certificate.
The defendant reported that his use of illicit drugs began in his early teenage years because of his need to fit in after discovering at the age of 12 that he was adopted. The defendant told Dr O'Dea he felt "not black enough for the black fellas… not white enough for the white fellas". From the age of 13, the defendant commenced using cannabis which led to using other illicit drugs including amphetamines. The defendant reported he used amphetamines by intravenous injections weekly for the first six months when he was about 18 years old and then daily until he was about 40 years old and went into custody. He also reported trying a number of other illicit substances, including cocaine, heroin, "Magic Mushrooms", and "ice" while on parole in June 2019, but reported "speed was [his] everyday normal job" and that he also smoked cannabis "almost every day".
The defendant reported that he began drinking at around the age of 13 and "had drunk alcohol in a binge pattern approximately 3 times each week". When asked whether he was intoxicated at the time of committing the index offences, the defendant reported to Dr O'Dea "I would say yes…as it was a day with a y in it… it was pretty constant".
Dr O'Dea noted the defendant's criminal history and outlined five sets of offences, aside from the index offences, in which the defendant was convicted for various violent offences against previous female partners, including: common assault, breach of recognisance, stalking or intimidation, assault occasioning actual bodily harm ("AOABH"), and contravene apprehended domestic violence order.
The doctor referred to one of the AOABH offences in the defendant's criminal history, for which the defendant was sentenced in the District Court on 26 June 2002 by Freeman QC DCJ. When committing this offence, the defendant became aggressive and pushed a glass shower screen door onto the victim while she was showering. He verbally abused her, kicked and punched her in the presence of two young children, and directed the children to refer to the victim as "Slut". His Honour observed: "kicks and blows too numerous to identify and number were rained by [the defendant] on the whole of the body of his victim, and as well, [the defendant] held his victim in a headlock and pushed the lighted end of a cigarette into her forehead, burning her…"
Dr O'Dea referred also to the index offences, including AOABH, assault, and aggravated sexual assault committed in August 2007 against his then de facto partner of six months, and further offences of assault and sexual assault against his longer-term de facto partner. A further offence of assault, committed on 24 August 2007, against his de facto partner's 17 year old daughter also made up the index offences. The circumstances surrounding these very serious offences are found at [29] - [50] of the preliminary judgment. They are disturbing.
Dr O'Dea reported the defendant acknowledged his offences, stating: "I have to be honest… all my assaults have been against partners… the same irrational logic […] I don't know why… but I get in my mind… I think they're cheating on me…"
In relation to the index offences, the defendant told Dr O'Dea he wasn't sure what he was thinking at the time of offending but remembers being insecure and jealous and "… mixed up with that much drugs and alcohol".
Regarding the defendant's psychiatric history, Dr O'Dea reported that he had been prescribed with various medications leading up to his 2008 incarceration and had spent a night in hospital for depression 18 months before his arrest. Between 2008 and 2010 he was prescribed antidepressant medication and around December 2019, whilst on parole, he was prescribed Zyprexa, and Olanzapine, the latter being "a major tranquilising, antipsychotic and mood stabilising medication", because he reported experiencing "panic attacks".
With respect to his progress in custody, Dr O'Dea noted the reports prepared by various authorities between September 2017 and June 2020. In September 2017, a report of a Corrections Officer noted the defendant "was not a management issue" and had only been involved in one misconduct charge when attempting to break up a fight between inmates. A subsequent report prepared by a psychologist in the Serious Offenders Assessment Unit in April 2020 described the defendant as a "model inmate".
Dr O'Dea reported the defendant's results on various psychiatric assessments including: falling within the Medium risk category for general and violent offending pursuant to the Static-99R assessment he undertook in March 2020; and scoring 13 on the STABLE-2007 assessment which suggested "a High density of criminogenic needs relative to other male sexual offenders". Combining the scores on those assessments, it was noted by the psychologist in the Serious Offenders Assessment Unit that the defendant was "in the Above Average risk level" and would "require a Medium level of intervention and/or supervision".
The defendant reported participating recently in the "Free to mind" programme at Parklea Correctional Centre, the "positive lifestyles programmes", and a "journey programme through the Church". Prior to that, Dr O'Dea noted the defendant's willingness to participate in the HISOP in 2019 and the EQUIPS addiction programme in July 2017. When asked about what he had learnt over the 10 months he participated in the HISOP, the defendant reported: "…my insane fear of abandonment and insecurities are something I can control…and I have choices… I need to take a step back from the moment and see if I have any rational thought processes… be in touch with my emotions…".
The defendant acknowledged "control was a real factor in all [his] offending behaviour". The "Getting Smart" and "Smart Recovery" programmes to assist people with alcohol and illicit substance abuse were also reportedly completed by the defendant.
Dr O'Dea referred to the alleged offences, pursuant to the NSW Police Service Facts Sheet, which the defendant committed against his then domestic partner of 12 months. These are the matters referred to in the preliminary judgment as "the new offences", and which are described at [51] - [65] therein.
Dr O'Dea noted that the police Fact Sheet records that the defendant detained the victim and violently attacked her over the course of two days. The defendant told the doctor that he had not used illicit substances whilst on parole but, when pressed by Dr O'Dea, he conceded he had consumed one beer over Christmas and smoked some "ice" but "didn't like it".
The defendant told Dr O'Dea that, for the future, he was keen to "go to the COSP at Long Bay", continue in a relationship with his current partner, start his own business selling Aboriginal artwork, and remain abstinent from alcohol or illicit substances. The defendant also said that he intended to continue attending the Forensic Psychology Services Sex Offender Treatment Programme on a weekly basis when in the community.
Dr O'Dea concluded that the defendant met the criteria for a diagnosis of Substance Use Disorder and satisfied the psychiatric diagnostic category of a Personality Disorder. With respect to his Substance Use Disorder, the doctor noted that even individuals with commitment, support, and treatment to assist in maintaining abstention often experience relapses. A Personality Disorder is generally enduring and is: "considered to have a limited amenability to treatment and fundamental change, but are often considered manageable and therefore modifiable, particularly with external supportive controls, such as those described in the "Schedule of Conditions of Supervision" as set out in the affidavit of Jessica Murty of 25 September 2020".
Dr O'Dea recommended that the defendant explore in more detail, with an experienced forensic psychiatrist, his sex offending behaviours to "better manage his overall sexuality and his specific risk of engaging in further sex offending behaviours in the community".
In general, to manage and minimise his risk of engaging in further sexual or violent offences, Dr O'Dea noted the defendant would have to "remain totally abstinent from alcohol and other illicit drug use, in the community in the long term". Structured and supervised drug and alcohol counselling, and perhaps medications to assist with controlling alcohol cravings, will be important.
Dr O'Dea concluded that the defendant should be subject to longer term supervision. He said: "As [the defendant's] risks, and their associated management needs, are long term, and of at least 5 years duration; any community risk management programme, including the above, should be long term, and of at least 5 years duration, and should be regularly monitored and modified accordingly".

Evidence for the State

The Court had regard to the evidence read and relied upon by the State, being the affidavits of Jessica Murty of 25 September 2020, producing the material exhibited as JM-1; a further affidavit of Ms Murty of 6 November 2020; and a third affidavit from the same deponent of 6 April 2021. In the latter affidavit Ms Murty provided records relating to the disposition of the charges laid against the defendant on 20 June 2020, being five counts of common assault, one of choking a person, one of taking a person intending to commit a serious indictable offence, one of destroying property, and one of AOABH. All charges were withdrawn. Of the 193 counts of contravening an apprehended domestic violence order ("ADVO") laid against the defendant on 5 September 2020, which relate to attempts to contact the protected person in breach of an ADVO, four counts proceeded as pleas of guilty, with the balance withdrawn. Four terms of 4 months imprisonment to be served concurrently and to date from 12 October 2020 were imposed upon the defendant following conviction.
Recent OIMS notes produced by Ms Murty indicate that the defendant has been working well since returning to custody.
Ms Murty affirmed her last affidavit in this matter on 26 April 2021: in it she produced email correspondence from Dr Davis correcting a typographical error.
An affidavit of Angela Rybak affirmed on 18 March 2021; and an affidavit of Kelly Grabham affirmed on 31 March 2021 were also read. The two latter affidavits were not before Davies J at the time of the preliminary proceedings.
Ms Rybak is the Senior Electronic Monitoring Officer of the External and Electronic Monitoring Group within CSNSW. She is responsible with others for the monitoring of all offenders subject to orders requiring electronic monitoring, assisting with the case management of such individuals. Ms Rybak provided information as to the purpose, utility, and mechanisms for electronic monitoring of offenders within the community, electronic monitoring being a means of ensuring compliance with supervision orders. The relevant device used with offenders is known as a "Smart Tag" and Ms Rybak explained how the tags work, and how monitoring of them is effected.
Kelli Grabham is a High Risk Offender Applications and Operational Governance Officer with the Extended Supervision Order Team of CSNSW. Ms Grabham has not met the defendant, but has reviewed the CSNSW documentary record, and risk assessment and management reports relevant to the present application. She has provided information as to the practical measures that are likely to be put in place for the defendant's supervision if an ESO is made, noting that a designated officer will be responsible for oversight of the defendant day to day, and outlining what is involved in that process. Ms Grabham observed that, whilst orders tend to be strictly enforced at their commencement, officers typically use their discretion and conditions are relaxed over time as the offender demonstrates compliance and rehabilitation. Risk assessment tools are used on an ongoing basis during the period of supervision.
Ms Grabham has reviewed information concerning the defendant's circumstances recently, noting that he was returned to custody on 20 June 2020 after being charged with a series of domestic violence offences, with parole subsequently revoked, and expiring on 8 December 2020. On 24 February 2021 the defendant was convicted for contravening ADVO and sentenced to 4 months imprisonment, a sentence which expired on 11 February 2021. An outstanding application for an ADVO is listed for hearing on 7 October 2021. The defendant has indicated that he intends to reconcile his relationship with his former partner, the woman at the centre of "the new offences".
Ms Grabham provided information as to the purposes of the proposed conditions of supervision.
Two statements pursuant to s 21A(2) of the Act were received, one of which was read to the Court by its author. The Court is grateful for that insight, and notes the views of the two victims of the defendant's grave crimes.

Evidence for the Defendant

The defendant did not call a case.

Determination

As noted, the defendant did not dispute that the evidence was such that the Court would be satisfied of those matters set out in s 5B of the Act, and I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing other serious offences if not kept under supervision pursuant to an ESO.
The defendant's past conduct points to the high risk that he poses to others, and specifically to any woman with whom he is emotionally involved. Recent events, following the defendant's release to parole, and after his return to custody, only underline that risk. The opinions of Dr Davis and Dr O'Dea provide further evidence of the extant risk that the defendant presents to romantic partners. The whole of the evidence is such that there must be real fears for any woman who may be in a romantic relationship with the defendant.
The dispute between the parties is as to the length of the order, and its conditions.
As to the duration of the order, although the defendant argued that his efforts to rehabilitate himself in custody point to an order of shorter duration, I have no hesitation in ordering that the defendant is to be supervised for five years rather than the three years he contends for.
It is firstly relevant to consider the length of time over which the defendant has committed physically and sexually violent offences against women with whom he has been involved. In that regard, the defendant's criminal history and the details of the offences of violence recorded there evidence a consistent and persistent pattern of serious and destructive offending against romantic partners. That long term pattern points to a need for supervision of greater duration rather than shorter. The problematic alcohol use which has been present for much of his life is also indicative of a need for a long term order.
Also pointing to a longer order is the nature of the personality disorders that affect the defendant. Dr Davis concluded that he has a borderline personality disorder, a condition which is entrenched and enduring. Whilst Dr Davis noted that treatment could have some ameliorating effect on the defendant's behaviour in the future, he has had the disorder for decades and it will continue. Dr O' Dea's opinion was consistent with that of Dr Davis, and he too noted that a borderline personality disorder is an enduring and largely treatment resistant condition. Although neither Dr Davis nor Dr O'Dea diagnosed a sexual sadism disorder, the defendant is regarded as exhibiting behaviour reminiscent of such a disorder. Entrenched disorders or personality traits of this nature point to a need for extended supervision and management.
Finally, the expert evidence is in favour of a longer order. The defendant relied upon the opinion of Dr Davis in submitting that a three year order was adequate to manage risk, but the doctor's opinion does not support that submission. Dr Davis referred to a need to see a period of stability of at least two or three years before the risk posed by the defendant could be anything other than high. He concluded that a period of five years of stability was required before any reduction in risk below high level risk might be expected. Dr O'Dea also concluded that the supervision and treatment of the defendant should be long term, observing that a period of at least five years was required.
Whilst I accept that the defendant has undertaken a number of rehabilitation programmes in custody and engaged well with them, and that his conduct in a custodial setting has been exemplary, those positive features do not translate automatically to a community setting where the defendant will pursue romantic attachments. Events following his 2020 release to parole, and the most recently entered convictions against the defendant give real substance to that conclusion.
Those features - the many years of pervasive violence towards all female partners, the entrenched and enduring personality disorder, and the expert evidence as to the need for long term treatment - readily support a conclusion that the defendant must be supervised in the community in the longer term if there is to be any realistic hope of safeguarding his romantic partners from sexual and other violence at his hands.
The order will thus be made for a period of five years.
As to the conditions, the area of dispute focused principally on four of the conditions of the order sought by the State, being conditions enumerated in the Amended Schedule as 10, 49, 50, and 61.
Condition 10 is a curfew condition which, in the terms sought, would require the defendant to be at his home address by 9 o'clock each evening, remaining there until 6 o'clock the following morning. The State contends that these specific hours, and a period of nine hours during which the defendant is required to be at home, assist in the proper monitoring of the defendant's whereabouts. It is submitted that the condition is necessary in the terms sought. The defendant argues that, whilst a curfew may be considered necessary, it should not commence until 10pm because the additional hour would facilitate appropriate social activities, such as an evening at the cinema, which would be prevented by a 9pm commencement to the curfew.
Although the need for a curfew is clear, I can see little reason to distinguish between a curfew commencing at 9pm and one commencing at 10pm. I accept the defendant's submission that the additional hour would permit him to participate in ordinary adult social life without being placed in jeopardy of breaching a curfew. The later time is not one which would ordinarily be viewed as being so late as to encourage anti-social behaviour, such as late night drinking. The curfew condition will thus require the defendant to be at his home between 10pm and 6am each day. It is condition 10 on the Schedule to the Court's orders.
Conditions 49 and 50 of the Amended Schedule provide for a requirement that the defendant submit to a search of his person or premises and permit seizure of any relevant items found. The defendant submitted that a general search and seizure power is too broad, and any such power must relate to specific risk. The defendant and the State each suggested alternative wording for a search and seizure power, both of which more clearly link any search undertaken to a specific concern relating to risk, with any item seized similarly linked to a relevant risk.
The condition that will be imposed largely adopts the alternative wording suggested by the State, although incorporating the defendant's proposal as to seizure. It is important that those supervising the defendant can conduct a search of his person or premises where it is believed on reasonable grounds to be necessary for the management of risk, and equally important that objects which evidence or relate to risk can be seized. The relevant conditions are 43 and 44 on the Schedule to the Orders.
The final condition in dispute is proposed condition 61, which requires the defendant to agree to treatment and service providers sharing information on the defendant's progress in treatment with each other and the supervising officers. The State contends that it is necessary for this information to be shared between those persons and service providers responsible for supervising the defendant to support and facilitate that supervision. The defendant submits that the condition is unduly invasive of his privacy and could be counterproductive in terms of rehabilitation, in that it may inhibit his willingness to be open with treatment providers, or even to seek treatment at all. The Court was referred to the decisions of State of New South Wales v Hardie [2021] NSWSC 323 and State of New South Wales v Church (Preliminary) [2021] NSWSC 246 on this point.
Given the clear nexus between the defendant's personality disorder and his excessive alcohol consumption on one hand, and the commission by him of serious crime on the other, there is a legitimate basis for information sharing among those treating the defendant, and his supervisor, which goes beyond mere attendance. It is important for those engaged in the defendant's treatment and supervision to be fully informed of his attendance upon treatment programmes, but also of his engagement and progress with such programmes. That information is necessary for the nature and level of any specific risk to be adequately monitored. I appreciate that it represents an invasion of the defendant's privacy, but in my judgment it is a necessary breach of privacy, given the seriousness and heightened nature of the risk posed by the defendant to female partners. The relevant condition is condition 55 of the Schedule to the Orders.

The State's Notice of Motion of 22 April 2021

On the date of hearing the State also moved on a Notice of Motion that had been filed on 22 April 2021.
The Motion sought orders revoking the IDO to which the defendant had been subject since the orders for his detention were initially made by Davies J in November 2020, and subsequently extended. In lieu, an order was sought for the defendant's interim supervision, until 11 May 2021. It follows that, because the Court intended to make orders for the defendant's extended supervision, the orders sought by the Motion were made on 26 April 2021.

ORDERS

The Court orders that: 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 ("the Act") the defendant is subject to an extended supervision order for a period of five years from 11 May 2021; and 2. Pursuant to s 11 of the Act, the defendant is directed, for the period of the extended supervision order, to comply with the conditions set out in the Schedule to these Orders. 3. Access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

SHAYNE GEOFFREY WYNNE Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) In these conditions: "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services "Defendant" means Shayne Geoffrey Wynne, the defendant in these proceedings and the subject of the order. "Electronic Identity" means each of the following: (a) an email address, (b) a user name or other identity allowing access to an instant messaging service, (c) a user name or other identity allowing access to a chat room or social media on the internet, (d) any other user name or other identity allowing access to the internet or an electronic communication service. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Material" includes: 1. any written or printed material; 2. any picture, painting or drawing; 3. any carving, sculpture, statue or figure; 4. any photograph, film, video recording or other object or thing from which an image may be reproduced; 5. any computer data or the computer record or system containing the data; and 6. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced. "NSWPF" means NSW Police Force. "Associate" includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "Search" includes: 1. A garment search, being 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; and 2. A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.

Monitoring and Reporting

The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.
Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.
The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.

Electronic Monitoring 4. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.

Schedule of Movements 5. 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. 6. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period 7. The defendant must not deviate from his approved schedule of movements except in an emergency. 8. In addition to and without limiting any of the other conditions, the defendant must not go within 1km of Sydney and Bankstown Airports and Sydney Cove Passenger Terminal, or any point of departure for an international destination, except for the purpose of reporting to a DSO as directed, attending upon a Community Corrections office in accordance with his approved schedule or as directed, or attending upon other government services in accordance with his approved schedule or as directed.

Part B: Accommodation 9. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements. 10. The defendant must be at his approved address between 10pm and 6am unless other arrangements are approved by a DSO. 11. The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant. 12. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 13. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO. 14. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.

Part C: Place and travel restrictions 15. The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports. 16. The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW. 17. The defendant must not frequent or visit any place specified by a DSO. 18. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO.

Part D: Employment, finance and education 19. The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs. 20. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO. 21. The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his next interview with a DSO. 22. The defendant must not sign any legal instrument that gives the defendant control of any money or assets of an intimate partner or prospective intimate partner, without prior approval of a DSO.

Part E: Drugs and alcohol 23. The defendant must not use prohibited drugs, or abuse drugs unlawfully obtained. 24. The defendant must not: a. Possess or consume alcohol without the prior approval of a DSO. b. Possess or use prohibited drugs or abuse drugs unlawfully obtained. 25. The defendant must submit to drug and alcohol testing. 26. The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO. 27. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO.

Associations with Others (not children) 28. The defendant must not associate with any person or persons specified by a DSO. 29. Without limiting condition 28, the defendant must not: a. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO. b. associate with any people who he knows are consuming or under the influence of illegal drugs. c. associate with any person held in custody without prior approval of a DSO. 30. The defendant must not engage the services of sex workers, without the prior approval of a DSO. 31. If the defendant starts a romantic relationship with a woman or has a sexual relationship with a woman, he has to tell his DSO within 24 hours the name of that woman ("the woman") and truthfully answer any questions that the DSO asks regarding that relationship. 32. If the defendant starts an intimate relationship with someone, he has to tell his DSO who may want to tell the person and/or their family members about his criminal history. 33. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation

Part G: Weapons 34. The defendant must not possess or use any of the following: i. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996, ii. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, iii. a spear gun, 35. Without limiting or altering condition 34, the defendant must not possess or use any of the following, without a DSO's prior approval: a. any article or device, not being such a firearm, that is designed or intended as a defence or anti-personnel spray and that is capable of discharging by any means: i. any irritant matter in liquid, powder, gas or chemical form or any dense smoke; or ii. any substance capable of causing bodily harm. b. a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened c. any other implement made or adapted for use for causing injury to a person; d. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property; or

Part H: Access to the internet and other electronic communication 38. If directed by a DSO, the defendant, must provide a list of electronic devices he uses to communicate with intimate partners or uses to attempt to initiate relationships with intimate partners. 39. If directed, the defendant must produce any such device to his DSO for the purpose of a DSO accessing any communication with an intimate partner or prospective intimate partner. 40. The defendant must take all reasonable steps to permit that access described in condition 39 including providing any passwords or login details if necessary. 41. If the DSO, having viewed communication in condition 39, reasonably suspects the commission of an offence or that a communication gives rise to an increased risk of the defendant committing a serious offence or to the safety and welfare of any person, the defendant must permit the DSO to: a. take the device for a period of no more than 48 hours, for the purpose of downloading only that communication; or alternatively b. the DSO to photograph the communications. 42. The defendant must not delete or alter any data relating to communications with an intimate partner or prospective intimate partner without the permission of his DSO.

Part I: Search and seizure 43. If the DSO forms a reasonable suspicion that a search is required, either to monitor the defendant's compliance with this Order, or for the safety and welfare of any other person, or because the DSO suspects the defendant of having engaged in behaviour or conduct associated with an increased risk of committing a serious offence, the defendant must submit to a search by a DSO (or any other person as directed by the DSO) of person or residence, or any vehicle in which he is travelling or which is under his effective control, or any storage facility, garage, locker or commercial facility in his possession or under his control and to the seizure of any object located during the search which gives rise to an increased risk of him committing a serious offence. 44. 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 this Order.

Part J: Access to pornographic, violent and classified material 45. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence.

Part K: Personal details and appearance 46. The defendant must not change his name from "Shayne Wynne" or use any other name without notifying a DSO. 47. The defendant must not significantly change his appearance without the approval of a DSO. 48. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance. 49. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.

Part L: Medical intervention and treatment 50. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order. 51. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults. 52. The defendant must attend, upon the direction of a DSO, any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order. 53. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed. 54. The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition. 55. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO. 56. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW. 57. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him or any other treatment and service provider.

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: 07 May 2021

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)

Cited By (1)