State of NSW v DAA

[2023] NSWSC 832

Supreme Court of NSW|2023-05-29|Before: Campbell J

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Court

Supreme Court of NSW

Decision date

2023-05-29

Before

Campbell J

Catchwords

[2011] HCA 39 R v DL [2008] NSWSC 1199 R v Way (2004) 60 NSWLR 168
P Aitken (06/07/23) (Plaintiff) J Brock (29/05/23)
C Akthar (06/07/23) (Defendant)

Source

Original judgment source is linked above.

Catchwords

[2011] HCA 39 R v DL [2008] NSWSC 1199 R v Way (2004) 60 NSWLR 168P Aitken (06/07/23) (Plaintiff) J Brock (29/05/23)C Akthar (06/07/23) (Defendant)

Judgment (25 paragraphs)

[1]

JUDGMENT

By summons filed on 1 March 2023, the State of New South Wales ("the State") by way of final relief seeks an order under s 9(1)(a) Crimes (High Risk Offenders) Act 2006 (NSW) that DAA be subject to an extended supervision order ("ESO") for a period of 3 years and comply with the conditions set out in Schedule A to the summons pursuant to s 11 of that Act. All references to legislation in this judgment, unless otherwise specified are references to that Act.
By way of interim relief, the State seeks an order under s 7(4) appointing two relevantly qualified experts to conduct examinations of DAA and to furnish reports to the Court on the results of those examinations together with an order directing DAA to attend those examinations. Moreover, the State seeks an interim supervision order under s 10A and 10C for a period of 28 days with a direction that DAA comply with the same conditions set out in the Schedule.
As will become clear, DAA was a child when he committed the index offence and publication of his name or anything tending to identify him is prohibited by dint of s 15A Children (Criminal Proceedings) Act 1987 (NSW) ("CCPA").

[2]

The index offending

DAA committed the offence of murder on 19 July 2005 when he was 16 years of age. His victim, whose identity is also protected under s 15A CCPA by use of the pseudonym TB, was a 15 year old female year 10 student who attended the same high school as DAA. DAA stabbed TB 48 times with a short knife to the upper torso, face and head soon after she had alighted from the school bus and just minutes from her home on the NSW Central Coast. DAA fled the scene after the attack but before her death TB uttered his first name to passers-by. DAA lived near the scene of the crime.
DAA exercised his right to silence after his arrest. He chose not to give evidence at his trial maintaining his innocence. He had volunteered some inconsistent accounts while in juvenile detention including the claim that he was a passer-by who had intervened unsuccessfully to stop the attack by a unknown third party. This and other different versions were proffered to explain a bad incised stab wound to his own hand which the prosecution asserted was sustained in his frenzied attack on TB.
He was tried by RS Hulme J and a jury and convicted on 27 March 2008. He was sentenced on 14 November 2008 to a term of imprisonment, having a non-parole period of 17 years commencing on 19 July 2005, with an additional term of 5 years commencing on 19 July 2022. The total sentence imposed would have expired on 19 July 2027. When the sentence was passed, a standard non-parole period of 25 years was prescribed for a murder where the victim was under 18 years of age. In accordance with the then prevailing jurisprudence established by R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131, Hulme J felt compelled to give primary significance to the standard non-parole period in fixing the sentence.
A good deal of conflicting psychiatric evidence was led at the sentencing hearing and Hulme J preferred the opinion of Dr Olav Nielsen who expressed the view that at the time of his offence, DAA was in the prodromal or emergent phase of schizophrenia, even though frank psychiatric symptoms or psychosis had yet to emerge by the proceedings on sentence more than three years after the event. Hulme J thought it probable that DAA "was acting under the influence of some psychosis at the time of the murder": R v DL [2008] NSWSC 1199 at [38]. Notwithstanding the apparent ferocity of the attack on TB, because of the view his Honour formed of DAA's mental state at the time, he was not satisfied beyond reasonable doubt that he intended to kill TB. Nonetheless, the ferocity and persistence of the attack pointed to an assessment of objective seriousness "well above the mid-range" ([47]). However, in the absence of premeditation and an intention to kill, his Honour's preferred view of the contested medical evidence and DAA's youth supported the conclusion that "the offence is a little below the midrange".
After R v Way was, more or less, overruled by Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, DAA belatedly appealed his conviction and his sentence. His conviction appeal was unanimously rejected: DL v The Queen [2017] NSWCCA 57; as was his sentence appeal, but by a majority: DL v The Queen (No 2) [2017] NSWCCA 58 (Leeming JA and Wilson J; Rothman J dissenting). Special leave to appeal was refused by the High Court of Australia for the conviction appeal but granted for the sentence appeal. The Justices unanimously upheld DAA's sentence appeal and remitted the matter to the Court of Criminal Appeal for redetermination of the appeal to that court: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32.
Upon remitter the sentence appeal was allowed on 21 December 2018 and DAA's sentence was reduced to one having a non-parole period of 13 years, commencing on 19 July 2005 with a further term of 5 years, a total of 18 years imprisonment: DL v R [2018] NSWCCA 302 (Basten JA, Schmidt and Fagan JJ). The date of judgment post-dated the date of DAA's first eligibility for parole. In the event, DAA was not released to his parole until 1 August 2022. His sentence will expire on 18 July 2023.
It remains a salient fact, if the matters alleged in the supporting documentation referred to in s 6(3) are proved at the final hearing, that DAA has always denied and refused to accept responsibility for the murder of TB. On occasions he has said he has no recollection of the events. The murder of TB is the only offence on his criminal record.

[3]

The nature of the statutory test

There is no issue that the requirements as to form in s 6 are satisfied. The application was filed within the last 9 months of DAA's current sentence or supervision on parole which expires on 18 July 2023. The application is supported by the affidavit of Jessica Van Lieven affirmed on 1 March 2023 to which is exhibited documentation (Exhibit JVL-1) addressing each of the mandatory considerations for making an ESO in s 9(3) and a risk assessment report of Samuel Ardasinski, Senior Psychologist, Serious Offenders Assessment Unit, dated 31 October 2022 (Exhibit JVL-1, Tab 4): s 6(3).
After the bringing of an application, it is necessary for the Court to conduct a preliminary hearing within 28 days or within such further time as the Court allows: s 7(3). In the case at hand, the latter requirement is applicable. The preliminary hearing was conducted by me on 29 May 2023.
By dint of s 7(4), if I am satisfied the matters alleged in the supporting documentation would, if proved at the final hearing, justify the making of an ESO, I am required to make the orders the State seeks appointing two relevantly qualified experts and directing DAA to attend for separate examination by each of them.
Under s 10A the Court has a discretion to make an ISO: "if in proceedings for an [ESO], it appears to the Court - (a) that the offender's current custody or supervision will expire before the proceedings are determined; and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an [ESO]."
There is no doubt that DAA's current supervision on parole will expire before the proceedings claiming an ESO are finally determined. Having said that, DAA was arrested on 22 June 2023 on a charge of failing to comply with his reporting obligation under s 17(1) Child Protection (Offender's Registration) Act 2000 (NSW) ("CPORA") and he has been in custody on remand since with bail refused. The matter wis next before the Local Court on 13 July 2023. Any ISO I make will be suspended during the period the offender remains in lawful custody. (Since writing this I have been informed that DAA was released to bail on 13 July 2023.)
It can readily be seen that the s 10A(b) test is to substantially the same effect as the s 7(4) test. Again, the phrase, "if proved" means, "if proved at the final hearing". However, unlike s 7(4), even if the conditions expressed in s 10A are satisfied, the Court retains a discretion either to make or refuse the ISO. This residual discretion arises from the expression the Court "may make an order" in the chapeau to s 10A.
Mr Brock of counsel directed detailed submissions to me concerning the nature of the task at the preliminary hearing (see for example defendant's written submissions pp 2-7). Given that this is a preliminary hearing, not finally determinative of DAA's obligations, with every respect to counsel's argument, I think it unnecessary to analyse all of the decisions to which Counsel has referred me.
The State contends for a somewhat different approach to the application of the statutory test at the preliminary hearing (see plaintiff's written submissions pp 30[4.1] - 31[4.6]). I will not analyse all of these cases. Suffice it to say my own view accords with that propounded by the State in particular by reference to State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11] (RA Hulme J) and State of New South Wales v Sturgeon [2019] NSWSC 559 at [5]-[6] (Garling J). In the latter case Garling J said: "[5] A preliminary hearing does not require the Court to be satisfied that the matters in the supporting documentation will be proved. The Court is only required to be satisfied that if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely "a high degree of probability": s 5B and s 5C of the HRO Act. [6] The Court, in undertaking this exercise, is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is no part of the Court's function to predict the ultimate result, or assess the likelihood of the ultimate result. If on the matters alleged in the supporting documentation it is open to the Court at a final hearing to make a CDO or and ESO, then a conclusion that the Court would be justified in making the order, is inevitable. The issue is to be resolved without considering what evidence might be called by the defendant at a final hearing, and without taking into account any evidence which may be called by a defendant at an interim hearing, because such evidence would not cast light upon what is alleged in the supporting documentation: Attorney-General (NSW) v Tillman [2007] NSWCA 119 at [98] ."
The reference to "a high degree of probability" by Garling J in Sturgeon at [5] is, of course, a reference to the elevated standard of proof imposed by s 5B(d) for the determination of the central question of whether an offender, here DAA, "poses an unacceptable risk of committing another serious offence if not kept under" an ESO. That standard of proof is for the final hearing, not the preliminary hearing. Section 7(4) and 10A(b) provide the standard applicable at the preliminary hearing.
The making of an ESO depends upon satisfaction of each of the conditions specified in s 5B(a)-(d) before turning to a consideration of the s 9 mandatory factors. It is convenient to interpolate that in the present case there is no issue that the s 5B(a)-(c) conditions will be satisfied at the final hearing on the usual civil standard. That is to say, DAA is an offender who is serving a sentence of imprisonment on parole in the community for the serious violence offence of murder: s5B(a). For the same reason, DAA is a supervised offender: ss 5B(b) and 5I. The same circumstance satisfies the condition in s 5B(c).
The only s 5B matter in dispute is whether the matters alleged in the supporting documentation, if proved at the final hearing, would justify the Court being satisfied to a high degree of probability that DAA poses an unacceptable risk of committing another serious offence if not kept under an ESO. To make my view of the law quite clear, when approaching that statutory question at the preliminary hearing stage, I am not of the view it is necessary for me to apply any particular standard of proof, including the high degree of probability standard required for the purpose of the unacceptable risk condition imposed by s 5B(d). However, the comparative stringency of that standard needs to be borne in mind when one is determining whether the matters alleged, if proved, would justify the making of an ESO. The word "justify" where used in ss 7(4) and 10A(b) does not equate in meaning with either "necessitate" or "require". Rather it connotes that an ESO would be open if the matters alleged were proved at the final hearing. The test is not predictive. It is a matter for the judge at the final hearing exercising the judicial power under s 9 then engaged to decide whether to accede to the application or dismiss it. Were I satisfied, however, that an essential element underpinning the power to accede to the application is legally incapable of proof by the matters alleged, the proper exercise of my discretion would require me to refuse the interim application for an ISO. Likewise, there would be no basis to make an order appointing experts. The proceedings would be required to be dismissed.

[5]

The Risk Assessment Report

As is usual, the Risk Assessment Report (Exhibit JVL-1; Tab 4) is very comprehensive providing, inter alia, a summary of salient records created during DAA's time in custody. I will not refer to Mr Ardasinski's summary of this matter here because important aspects of it are required under succeeding topics. For now, I will focus upon the statistical and clinical assessments made by Mr Ardasinski in relation to risk. I bear in mind the evidence will be that risk assessments as one would expect, are not intended to be predictive of outcome. Moreover, they clearly have limitations. Should this matter proceed to a final hearing, those limitations may well be of particular relevance in DAA's case because he was aged 16 when he committed the index offence. The statistical cohort underpinning the various tools utilised by Mr Ardasinski cannot be taken as focusing on juvenile offenders. The cohort of juveniles who murder other juveniles is, I am glad to say, vanishingly small. As Mr Ardasinski pointed out various statistical or actuarial assessment tools had been used to assess DAA over his period of imprisonment producing various results such as Medium risk/needs, Low-risk category and Moderate risk range (Exhibit JVL-1 pp 31- 32).
Mr Ardasinski administered the Violence Risk Appraisal Guide - Revised ("VRAG-R"), an actuarial risk assessment tool measuring static risk factors designed to assess the risk of future violence in offenders. The expert stated that "the norms" for this tool suggest that of those offenders who scored like DAA in the fifth of nine risk categories, 26 percent re-offended violently within 5 years and 51 percent within 12 years, justifying an assessment placing DAA in the middle, or Moderate category of risk.
Mr Ardasinski also utilised the HCR-20 Version 3, the results from which indicated that DAA would require "a Moderate level of effort to prevent further violence". The relevant matters included the nature of the index offending, evidence of problems with insight, instability and symptoms of a major mental disorder and suggestions of likely future problems with DAA's post-release treatment/supervision response. I interpolate there is a paucity of evidence of that currently. Criminogenic factors included DAA's poor insight into violence and cognitive distortions. This is largely centred on DAA being an adamant denier that he murdered TB, although he has at times since the completion of the appellate process said he "accepted" the jury's verdict. Evidence of interpersonal aggression and poor emotional control based largely on DAA's behaviour in custody and lack of work ethic were also identified as relevant.
The matters alleged in the custodial records indicate that DAA was a poor worker in custody. He preferred to state his preference for work rather than performing the work assigned and needed close supervision. Having said that, the final report to the State Parole Authority made no criticism of his then current performance in his then position. DAA told Mr Ardasinski that he was applying for a Disability Support Pension due to his "mental health" conditions rather than actively seeking work. The use of a weapon in the commission of the murder which was never located apparently also increases the likelihood of further offending.
A further factor was DAA's compliance with supervision and community support. He has complied with his parole conditions, but not with obligations under CPORA. Important protective factors included the strong and loving support of his parents, who have been prepared to and are providing a stable home environment. However, it is notable that DAA's parents support him in his proclamation of his innocence. There is also the consideration that he has been free of substance abuse. He has breaches of prison discipline for the possession of homemade alcohol distilled in custody, or "gaol brew". Interestingly, when challenged he denied that he was responsible for the illicit product. He maintained he had been compelled to store it in his cell. Since his release to parole, he has not entered to the workforce, which Mr Ardasinski thinks may take some time given his degree of institutionalisation. He has joined a gym and generally has kept appointments.
Mr Ardasinski found it difficult to postulate a risk scenario absent a decline in DAA's mental health. The expert focused on the finding of Hulme J that DAA was psychotic at the time of the index offending and the evidence which strongly suggests "that psychotic disorder has since resolved or remitted entirely" (Exhibit JVL-1, p 35 [51]). The risk of an opportunistic assault, if he formed a strong dislike to a victim and felt aggrieved, having regard to the index offending and a history of violence in custody was considered to be low.
Overall, Mr Ardasinski assessed DAA's risk of further violent offending to be in the moderate risk category relative to other men who have offended violently. He also referred to "a well-known criminological finding that the commission of serious violence, such as homicide, is far rarer than the commission of other violence, such as assaults". He made observations about the availability of risk management techniques under an ESO and contrasted them to the relative lack of actual supervision likely to be applied under COPRA. He made some interesting observations about the "deep freeze" effect of incarceration which may be relevant, to which I will return (Exhibit JVL-1, p 38 [61]).

[7]

Treatment or rehabilitation in custody

Section 9(3)(e) requires consideration of rehabilitation programs undertaken by an offender in custody. DAA was slow to take up available rehabilitation programs in custody. The supporting documentation would support a finding that this was because such programs were not available to him during the four years that he had been housed at the Metropolitan Remand & Reception Centre correctional facility in the "Hamden" wing where such programs are not available. His housing in that environment was at his own request due to his complaints of mental health symptoms of depression and anxiety. Also, he was unaware that he would need to undertake those courses prior to parole, bearing in mind that his sentence was not reduced until the second Court of Criminal Appeal judgment in December 2018. This resulted in hie eligibility for parole being backdated to July 2018, as I have said. When he became aware of the need for him to undertake available rehabilitation programs, the supporting documentation would justify a finding that he performed with appropriate engagement undertaking the EQUIPS foundation in late 2018 and the EQUIPS aggression in early 2019. He participated well in the RUSH program based on dialectical behaviour therapy ("DBT") in 2020 but was disqualified from further participation after being charged in relation to the "gaol brew" on 3 September 2020. He undertook the CONNECT program also based upon the DBT approach in early 2021 and was able to complete the RUSH program, finally, on 7 July 2021. He has apparently undertaken 2 sessions with a CSNSW senior psychologist since his release to parole. Mr Ardasinski comments (Exhibit JVL-1, p 30 [35]): "It is to [DAA's] credit that he was reported to have engaged well in these programs, given his staunch denial of the index offence. This is somewhat atypical, since categorical deniers often refuse to engage willingly in programming because they assert that they have nothing to change".
He was assessed as being ineligible to engage in the Violent Offenders Therapeutic Program. There are competing explanations for this in the supporting documentation. Mr Ardasinski accepted this was because of his relatively low risk rating. However, other documents suggest his ineligibility was due to his denial.

[13]

Other available information

Under s 9(3)(i), the Court is entitled to have regard to other information that is available as to the likelihood that an offender will commit a further serious offence. I should point out that Mr Ardasinski observes, that an offender may deny his offence does not of itself increase the risk of recidivism. This is so, at least in relation to sex offenders, according to the scientific literature (Exhibit JVL-1, p 21[10]). The picture is less clear in relation to homicide offenders. Mr Ardasinski said this is because homicide offenders constitute a very small population and homicide is a rare event. He repeats that homicide is exceedingly rare "and denial of the event post-conviction rarer still". It seems to me that given the perceived wisdom of sentencing courts in relation to the essentiality of remorse to rehabilitation, DAA's status as a "denier" is capable of being considered as relevantly indicating risk at the final hearing.
At the final hearing, the Court will not be bound by the rules of restraint that limit the fact-finding powers of courts of criminal appeal. While Mr Ardasinski explains why it may be open to find that DAA was subject to a short-lived psychosis at the time of his offending (Exhibit JVL-1, p 24[15]), in my view such a finding is not inevitable. Having said that, Hulme J's conclusion was not supported only by Dr Nielssen. Professor Greenburgh was also of the view that "psychotic disorder", or "prodromal illness" were amongst the differential diagnoses available to explain DAA's offending. However, it is more than abundantly clear that, notwithstanding his family history, DAA has not gone on to develop schizophrenia or any other significant psychiatric illness.
He was seen by Dr Olav Nielssen at the request of his then solicitors again on 19 June 2019 (Exhibit JVL-1, Tab 15 pp 192ff). Dr Nielssen opined that DAA "was not found to meet the accepted criteria for the diagnosis of any psychiatric disorder". Nor did he regard DAA as reporting or displaying "the essential features of autism disorders" as has sometimes been suggested. He did accept that DAA had experienced anxiety symptoms and periods of severe depression in custody. Dr Nielssen said (p 197): "I note my earlier diagnosis of a probable schizophrenic illness. That diagnosis was based on his own concern that he had schizophrenia and the assumption that his presentation around the time of his arrest was due to an early episode of what would probably become the full syndrome of relapsing psychotic illness. However, that assumption has not proved to be correct, as he has been regularly assessed and closely observed during his years in custody and has not reported symptoms or shown objective features of psychosis in those years".
As I have said, Dr Nielssen did not diagnose any other mental illness or impairment at the time of his most recent examination. He did not regard DAA as exhibiting "the main risk factors for future offending". And he made the observation that "the probability of a recidivist homicide offence is very low" as a general statement of what I would refer to as the background risk of "recidivist homicide offence". Dr Nielssen also said (p 198): "The original offence remains something of a mystery, as a frenzied attack on a younger female acquaintance with no obvious motive, for example, by any kind of grievance, sexual motive or apparent delusional belief about the deceased." Dr Nielssen recorded DAA's denial. He also recorded that DAA "accepted the verdict".
In his report of 8 May 2020, Dr Gordon Elliot concluded that there is no evidence that DAA suffers from a chronic psychotic illness. He also excluded a diagnosis of an autistic syndrome disorder, notwithstanding "mild social oddities, rigidity and repetitiveness of thinking" (Exhibit JVL-1, Tab 13 p 185). Dr Gerald Chew, in his report of 11 November 2019, expressed the opinion that DAA suffered "a mild neurotic disorder, in particular depressive disorder in the context of multiple stresses particularly in custody". He found no evidence of a psychotic disorder. He considered any autistic spectrum disorder was minor, if present at all. He regarded institutionalisation, having spent a large part of his life including all of his adult life in prison, the more relevant consideration (Exhibit JVL-1, Tab 14 p 190).
Another issue is the suggestion in neuropsychological and other psychological testing that DAA is of low IQ and of borderline or low intellectual functioning. DAA disputes these assessments. Dr Chew was of the opinion that DAA appeared to be of low intelligence but did not regard that as a function of autistic syndrome disorder.
Perhaps potentially significantly, Mr Ardasinski could not exclude a Personality Disorder (Exhibit JVL-1, Tab 4 p 25). I acknowledge that none of the legally qualified specialist psychiatrists seems to have posited such a diagnosis.
Finally, Mr Ardasinski also said the following (Exhibit JVL-1, Tab 4 p 38 [61]): "The criminological literature refers to prison being like a "deep freeze" where putting offenders in prison is equivalent to storing food in the freezer - "incarceration is a 'behavioural deep freeze' that puts a person's self-destructive propensities on hold until renewed opportunities are presented for these propensities to be freely exercised" (Maruna & Toch, 2005). According to this theory, given his age when taken into custody, [DAA] will be more like a teenager than an adult in his thinking. And if it is considered that [DAA] has concealed the true nature of his involvement in the index offence for all these years, denying and waiting until he is no longer under supervision, he may indeed pose an ongoing risk of serious violence."

[14]

Would the matters alleged justify a finding of unacceptable risk

This is a complex case. It is by no means inevitable that if the matters alleged are proved, a final order by way of ESO, in the exercise of the Court's discretion will be made. There are many different and competing factors. However, this is not the test. It is not my role, as I have said, to predict or even forecast the outcome. The question for me is whether the matters alleged if proved would justify, in the sense of leaving open, the making of an ESO, bearing in mind the high degree of probability required for satisfaction of the unacceptable risk test. In applying this test, I am required to take the matters alleged most favourable to the State's application at their highest. I must also keep the paramount consideration of community safety front of mind (s 9(2)). It is not my task to attempt to reconcile those matters with other matters running in favour of DAA or to anticipate evidence that may be called on his behalf. Applying this test, in this way, I am satisfied that the matters alleged in the supporting documentation would, if proved at the final hearing, justify the making an ESO. In particular, I am satisfied that the matters alleged, if proved at the final hearing, would justify, that is to say leave open, a finding made on the application of the standard of a high degree of probability that DAA poses an unacceptable risk of committing another serious violence offence if not kept under an ESO.
The conclusion of Mr Ardasinski of a moderate risk of the commission of another serious offence is in my view of itself sufficient to justify an ESO even if it does not necessitate or require it. A moderate risk of the commission of a serious violence offence, even if it falls short of homicide, is in my judgment, unacceptable.
I have taken into account the circumstances of the index offending, bearing in mind that with the benefit of hindsight, 18 years since the offending, the predominant expert opinion is that DAA was not suffering from a psychosis temporary or otherwise when he murdered TB. I have also taken into account his denial. In lay terms, this is a potentially significant factor. It is certainly significant as to his prospects of rehabilitation for the reasons explained by Basten JA. I have also given weight to his recalcitrance in relation to his obligations under COPRA. This is somewhat mystifying but strongly suggests a lack of insight into the nature of his offending. I appreciate that Dr Nielssen seems to have accepted that DAA accepts the jury's verdict. I am not of the view that that is the only conclusion open. I am of the view that the matters alleged justify a finding that DAA has not accepted responsibility for his offending. If this is so, this is, in my judgment, potentially a very poor prognosticator in relation to his future conduct.

State of NSW v DAA

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Judgment (25 paragraphs)

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