State of NSW v Holschier

Factual background

1. The defendant is currently subject to an ESO which was made for three years on 8 December 2014 (State of NSW v Holschier [2016] NSWSC 234 (Holschier 1). Following convictions for subsequent offences referred to below, the defendant's ESO was suspended. It recommenced when he was released from custody and is calculated to expire on 13 January 2019.
2. The defendant's factual background before the date of the ESO is set out in Holschier 1 at [8]-[11]. Accordingly, this judgment should be read with Holschier 1.
3. The defendant's criminal history commenced when he was 14 years old with offences involving dishonesty, firearms and violence (Holschier 1 at [8]). The index offence was the murder of his partner, for which he was convicted in 1991, and sentenced to life imprisonment. He was convicted at the same time of inflicting grievous bodily harm upon their 13 month old daughter. (Both of these sentences have expired.) On 14 December 1998, the defendant's life sentence was re-determined as a sentence of 25 years with a 17 year non-parole period.
4. As set out in Holschier 1 at [12]-[18], the defendant had a poor history of compliance with parole, including convictions for assault and intimidation of his wife.
5. The defendant also has a poor history of compliance with the conditions of his ESO, including: 1. Committing a common assault upon his wife, for which he was sentenced on 10 March 2016 to 7 months imprisonment with a non-parole period of three months. 2. Breaching an AVO by calling his wife, for which he received a 12-month good behaviour bond on 6 July 2016. He was resentenced to one month imprisonment after being called up on 11 May 2018 for breaching that good behaviour bond, following the offences below. 3. Failing to comply with the ESO by failing to maintain his electronic monitoring equipment, for which he was sentenced on 10 February 2017 to five months imprisonment; 4. Falling to comply with the ESO by refusing to undergo a drug test, for which he was sentenced on 11 May 2018 to 7 months imprisonment with a non-parole period of 2 months. 5. While in custody on 15 August 2016, the defendant was disciplined for refusing to provide a urine sample.
6. Despite these lapses, the offences for which he was convicted in 1991 remain the only serious offences, as defined in the HRO Act in the defendant's criminal history.

Recent events

1. On 3 April 2018, two forensic psychologists in the Serious Offenders Assessment Unit prepared an ESO Completion Risk Assessment Report (the Completion RAR), recommending no further application be made because the improvements in the defendant's presentation suggested that a further application would be unsuccessful.
2. On 6 April 2018, Community Corrections prepared an ESO Completion Report (Community Corrections Completion Report) also recommending against making a further application.
3. These reports were prepared before the defendant's most recent offence of failing to comply with the ESO by refusing to provide a drug sample, an offence committed on 28 April 2018.
4. The State has obtained a Supplementary Risk Assessment Report (Supplementary RAR) dated 30 November 2018.

Purpose

1. The Act is designed to address the "almost intractable problem" of how "the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release" (State of NSW v Donovan [2015] NSWSC 1254 at [3]).
2. The primary object of the Act is "to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community" (s 3(1)). Another object of the Act is "to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation" (s 3(2)). It follows that ESOs are protective, not punitive (Attorney-General for NSW v Tillman [2007] NSWCA 119 at [5]). This protective purpose is "fundamental" (Attorney-General for NSW v Gallagher [2006] NSWSC 340 at [21]).
3. Section 5B of the HRO Act provides that the Court can make an ESO in respect of an offender only if: 1. The offender is serving, or has served, a sentence of imprisonment for a serious offence; and 2. The offender is a supervised offender within the meaning of s 5I; 3. An application is made in accordance with s 5I; and 4. The Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious offence if he or she is not kept under supervision.
4. As can be seen from the above, the defendant satisfies the first three requirements. He has served a sentence of imprisonment for a serious offence as defined, being murder. He is a supervised offender within the meaning of s 5I. The application has been made in accordance with s 5I.

Unacceptable risk

1. An important question for the Court will be whether the Court is satisfied "to a high degree of probability" that the defendant poses an unacceptable risk of committing a serious offence unless an ESO is made.
2. The expression "high degree of probability" indicates something beyond "more probably than not". The existence of the risk needs to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard (Cornwall v Attorney General [2007] NSWCA 374 at [21]).
3. While the Court must be satisfied to a high degree of probability that there is an unacceptable risk, that does not require the Court to conclude that the defendant is more likely than not to commit a serious sex offence (s 5D).
4. As to the meaning of the phrase "an unacceptable risk", the case law establishes the following: 1. What the court must find to be unacceptable is the "risk" of the offender "committing a serious [sex] offence if he or she is not kept under supervision" (see Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [51] (Beazley P)). 2. The word "unacceptable" - which means, relevantly, "so far from a required standard, norm, expectation etc as not to be allowed" - is one that "requires context in which, or parameters against which, the unacceptable risk can be measured" (see Lynn at [50]). 3. While the HRO Act does not specify "the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made", this "must be so" because "[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made" (see Lynn at [51]). 4. The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community (see Lynn at [55]). 5. The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk (Lynn at [44], [55]-[58], [128], [148]). Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO.
5. The "unacceptable risk" inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: New South Wales v Simcock [2016] NSWSC 1805 at [71].

Preliminary hearing

1. The Court's role at a preliminary hearing is similar to that governing the Court's power to make interim orders: Attorney General v Hayter [2007] NSWSC 983 at [6]. The test as to whether the supporting documentation "if proved" would justify the ESO is similar to the requirement for a prima facie case to be made out in committal proceedings (NSW v Thomas [2011] NSWSC 118 at [11]. The Court does not weigh the documentation or predict the ultimate result. The test has been held not to be a stringent one, but is rather akin to the "prima facie case" test (State of NSW v Baldwin [2016] NSWSC 1141 at [7]).
2. The Court must have regard to the matters set out in s 9(3) of the Act in performing its task at the preliminary hearing (Attorney General v Tillman [2007] NSWSC 605. In dealing with interim orders, the Court should give weight to the avoidance of risk (Attorney General v Winters [2007] NSWSC 611 at [7]).

Risk posed by the defendant

1. The unacceptable risk needs to be established to a high degree of probability and it must be an unacceptable risk of committing another serious offence. The State accepts that a likelihood of committing some further offence is not enough. There must be an unacceptable risk of the defendant committing a serious offence as defined.
2. On this issue, it has to be acknowledged that the defendant has not been convicted of a serious offence since 1991. The Completion RAR and the Community Corrections Completion Report are also significant matters in the defendant's favour.
3. Despite this positive support, the events of 29 April 2018 and the records since that time, do raise some doubts on this conclusion in the two Completion Reports. A subsequent test "confirmed a faint positive detection of methamphetamines/amphetamines". That having been said, the defendant's explanation is a reasonable one, i.e. that he was taking a cold medication that may well have had pseudoephedrine in it. In any event, the failure to have a supplementary test constituted a breach of the ESO for which the defendant was convicted.
4. Subsequent reports continued to be largely supportive of the defendant. Of particular note is the restraint and maturity with which he received information that the State was going to apply for an ESO when earlier he had understood that such was not the case. There was oral evidence before the Court (Fiona Mason the team leader of the violent offenders therapeutic program) as to the significant improvements in all aspects of control and compliance with medication which had been achieved over the last few years, as a result of the ESO supervision.
5. There was a supplementary RAR which despite what had occurred on 29 April 2018 expressed the opinion that "there was insufficient evidence that the opinions expressed by a previous report about Mr Holschier's progress with regard to drug abstinence are no longer valid and I stand by them".
6. In all of the reports prepared in 2018 relating to the defendant, there is a common theme identifying a risk of domestic violence should the defendant enter into another personal relationship. That has not happened thus far but it remains as a concern to those who have reported on him.
7. It should be noted that both the Completion RAR and the Community Corrections Report recommended against a further ESO, even though the authors were aware that there had been lapses in the past and that the defendant did not have a good record of compliance. Nevertheless, those reports identify a number of important considerations in the defendant's favour, including addressing mental health issues and developing a support network of family and friends. Importantly, the defendant no longer remains in the volatile relationship which led to the 2016 domestic abuse offending. The reports make clear that his present condition and state of health represent a significant improvement on the circumstances when the ESO was made in 2014.
8. The effect of the reports can be summarised as follows: (a) The defendant's compliance has oscillated over the course of the ESO. (b) There are many supports set up tor the defendant in Sydney now which were not there in the past. (c) The defendant's mental health has stabilised. (d) There remains some residual risk issues pertinent to domestic violence which may pose some concern.

Court's discretion and the criteria in s 9(3) HRO Act

1. In this preliminary hearing, when exercising its discretion whether to grant an interim supervision order, the Court must still have regard to the matters set out in s 9(2) and (3) of the HRO Act.
2. As earlier indicated, the primary object of the Act and the paramount consideration is the safety of the community. In the present case, the index offence was a very serious one. While the defendant has been relatively stable for some time, the paramountcy of the safety of the community dictates a cautionary approach. Drugs, which were one of his major risk factors, are still a potential problem. The harm to the community that may result if the defendant were to destabilise could be severe. All these considerations operate in favour of making an ISO so as to enable comprehensive medical evidence to be collected to better assess whether or not an ESO should be granted.
3. An examination of the criteria in s 9(3) produces the following: (a) The reports pursuant to s 7(4) and s 9(3)(b) of the HRO Act have not yet been obtained. When they are obtained, they may better assist the Court at a final hearing to assess the extent of the defendant's risk. (b) The results of any other assessment prepared by a qualified psychiatrist/psychologist. (c) The Completion RAR and the Community Corrections Report operate in the defendant's favour, even though they do not take into account the offence of 29 April 2018. This is taken into account in the Supplementary Risk Assessment Report of 13 November 2018 which also assists the defendant. (d) The results of any statistical or other assessment. As of the date of the Completion RAR, statistical assessments placed the defendant at a moderate-high range for repeat violent offending but no longer in the high risk range. (e) Any report prepared by Corrective Services as to the extent to which the offender can be practically managed in the community. The Community Corrections Completion Report indicates that the defendant could reasonably and practicably be managed in the community. (f) Any treatment or rehabilitation programs in which the defendant has had an opportunity to participate and the quality of his participation. While in custody, the defendant completed the CALM and Domestic Abuse programs satisfactorily. (g) Options available if offender is kept in custody. There is no suggestion that the defendant should be kept in custody. (h) The likelihood that the offender will comply with the obligations of an ESO. The defendant's compliance with the existing ESO has been patchy, although over the last 15 months there has only been one breach, i.e. 29 April 2018. (i) The offender's criminal history and any pattern of offending. The defendant's history is set out above. The poor history of compliance supports ongoing supervision but the fact that recent offences have been at the lower end of seriousness, operates against the making of an ESO. (j) The views of the sentencing court at the time the sentence of imprisonment was imposed. The relevant sentence of imprisonment was imposed over 25 years ago. Given the passage of time, no significant weight should be placed on those remarks in the present application.

Discretion

1. The mandatory considerations are set out above. Many of them operate in the defendant's favour but some do not. If anything, the balance favours the defendant.
2. As earlier indicated, the test for the making of an ISO is not as stringent as that for an ESO in that the Court does not assess the documentation or predict the ultimate results. The Court only has to be satisfied on a prima facie basis as to the matters favouring the granting of an ESO. It should also be noted that further reports will be provided by independent psychiatrists/psychologists which are not presently available to the Court
3. Taking those matters into account, I concluded that an ISO should be made. In doing so, I have altered the terms of Order 1 so that the matter is returnable to the Court on 8 February 2019. I have also altered the conditions with which the defendant has to comply from those described in Order 2 in the Summons to those contained in Exhibit A.
4. Accordingly, the orders which I make are:
5. The Court pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (the Act) orders: (a) Two qualified psychiatrists or registered psychologists (or a combination of such persons), as agreed between the parties, are appointed to conduct separate examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by 14 February 2019; and (b) The defendant is directed to attend the examinations in order 1 a.
6. Pursuant to section 10A of the Act, the defendant is subject to an interim supervision order from midnight on 13 January 2019 (the time at which the defendant's current extended supervision order expires) for a period of 28 days.
7. Pursuant to section 11 of the Act, the defendant is directed to comply with the conditions set out in the Schedule annexed to this Order for the period of the interim supervision order referred to in order 2 above.
8. The matter be listed on 8 February 2019 at 9.30am to hear the plaintiff's application for a renewal of orders that the defendant be subject to interim supervision for a period of 28 days.
9. Access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a justice 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.
10. Liberty to apply to relist the matter on one day's notice.

Amendments 05 February 2019 - Typographical error in para [40]. 05 February 2019 - Typographical in par [36] 07 February 2019 - Typo in para [36] 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 February 2019