State of NSW v Reay

Judgment 1Pursuant to a summons filed on 29 August 2014, the plaintiff seeks a number of orders. Only orders one, two, three and eight are pressed at this interim stage. In a nutshell, the plaintiff seeks an order that appoints two psychiatrists to examine the defendant, and requires the defendant to attend at those examinations (order one); an order that he be subject to an interim detention order for 28 days, and that a warrant of commitment issue to that effect (orders two and three); and, in the alternative to an interim detention order, an order that the plaintiff be subject to an interim supervision order for 28 days (order eight). 2The position of the defendant is that he accepts that the statutory preconditions for mandatory psychiatric examinations have been made out, and he does not oppose the first order sought. He also accepts that the statutory preconditions for an interim supervision order have been made out, and he does not, as a matter of formality, oppose the making of such an order for the period for which the plaintiff contends. However, the defendant opposes the making of an interim detention order of any duration. 3The three issues calling for determination by me are therefore as follows. First, am I myself satisfied that the preconditions for mandatory psychiatric examinations have been established? Second, am I myself satisfied that the preconditions for an interim supervision order have been established? Third, am I satisfied, contrary to the submissions of the defendant, that the preconditions for an interim detention order have been made out? 4The matter was heard by me on Tuesday, 30 September 2014. The sentence to which the defendant is currently subject expires completely at midnight on Sunday, 5 October 2014. I indicated to the parties upon reserving that I would deliver my judgment on Friday, 3 October 2014. In light of the urgency of the situation, the position of the defendant with regard to two of the three orders, and the fact that an important aspect of the circumstances of the defendant if he were to be released in a few days is not in dispute, I will be concise. Overview of evidence 5The defendant was born on 12 July 1974, and accordingly is now 40 years of age. He grew up in the Newcastle area of New South Wales in unhappy circumstances. His parents separated when he was a teenager. He left school when he was 16 years old. In his early teens he commenced to abuse alcohol and prohibited drugs. At the same time he began to come to the attention of the criminal justice system. His criminal record commenced with offences against property, offences to do with prohibited drugs, and offences of unlawful driving. 6In August 1997, at 23 years of age, he commenced to commit offences of violence, by way of assaulting a police officer. Since that time he has been convicted of assault or assault occasioning actual bodily harm on very many occasions in New South Wales and Queensland, and has been fined or imprisoned repeatedly as a result. 7Whilst accepting that none of those offences were deemed sufficiently serious to be dealt with in the higher courts, and that none of them led to the imposition of a lengthy sentence, the plaintiff submits that some of them could have had catastrophic consequences, featuring as they did the use of a weapon to the head of a victim. The plaintiff also submits that some of those common assaults and assaults occasioning actual bodily harm featured irrational, indeed inexplicable, attacks upon strangers. 8In 2003, in the Newcastle area, the defendant struck a man with a baseball bat to the head, seemingly for no reason. At the time he remarked to a woman who was present that, if she had not stopped him, he could well have proceeded to kill the victim. The result was that the victim suffered "extensive bruising to his left eye causing it to be closed, a bloodied nose and a complex fracture to the left-hand side of his jaw" (extracted from the remarks on sentence, to which I shall return). The defendant was charged with maliciously inflicting grievous bodily harm with intent to do so. 9After that assault the defendant had travelled to Queensland. There he committed a number of offences; the precise charges and their circumstances are not clear on the evidence placed before me. It seems from his criminal record in Queensland that he was eventually convicted of entering a dwelling with intent to commit an indictable offence whilst armed; bringing stolen goods into Queensland; a number of counts of wilful damage to property; two counts of deprivation of liberty; two counts of unlawful use of a motor vehicle; a count of entering a dwelling and committing an assault occasioning actual bodily harm whilst armed; and a number of counts of assault occasioning actual bodily harm. In the event, it seems that he was sentenced to an overall head sentence of imprisonment for five years six months, with a backdate to reflect some non-continuous periods in custody. Although it is not entirely clear on the evidence, his counsel submitted that the defendant has been in custody continuously since April 2004. 10Whilst the defendant was in custody in Queensland, the New South Wales authorities commenced proceedings to have him extradited to this State to face the charge of inflicting grievous bodily harm with intent. He returned to New South Wales on 6 August 2010, pleaded guilty, and was sentenced by his Honour Judge Lakatos SC in the District Court of NSW on 11 March 2011. 11The remarks on sentence of his Honour have been placed before me. It suffices to say that his Honour took into account the delay in resolution of the matter caused by the incarceration of the defendant in Queensland; expressed a thankfulness that the injury to the victim was not far more serious; applied a 25% discount for the usefulness of the early plea of guilty; and gave voice to significant reservations about the prospects of rehabilitation of the defendant. His Honour imposed a head sentence of imprisonment for four years two months with a non-parole period of two years six months, to date from 6 August 2010. Thereafter the defendant declined to apply for release to parole pursuant to that sentence, and none was ordered. It is that head sentence that will fully expire in a matter of days. 12That offence is the offence upon which the summons is founded, pursuant to the definition of "violent offender" in s 4 and the definition of "serious violent offence" in s 5A(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). It is also the most serious offence of which the defendant has been convicted. However, the evidence about the behaviour of the defendant extends beyond matters of which he has been formally convicted. It also extends beyond his actions in the community, and includes his behaviour throughout his years of incarceration in New South Wales and Queensland as well. 13There is evidence that the defendant has been violent whilst in custody on many occasions. There is material that suggests that he assaulted a dental nurse; attacked police while in the dock of a criminal court; assaulted prison officers more than once; and assaulted other prisoners on many occasions. As recently as September 2014, it is said that he punched another prisoner to the face, thereby fracturing his jaw. Although that conduct is not admitted by the defendant in these proceedings, the evidence that he committed that assault is strong, because it is said that CCTV product shows the offence occurring, and that the defendant admitted it to a prison officer. It is noteworthy that that act is alleged to have been committed at a time when the defendant must have been well aware that these proceedings were to be brought against him. 14Quite apart from his tendency to violence inside and outside of gaol, the defendant has behaved bizarrely whilst in custody. On occasions in the past he has (amongst other things) flushed his clothes down the toilet of his cell; imbibed from his toilet bowl and used it to "shower"; smeared faeces, blood, and semen on the walls of his cell; and masturbated persistently in the presence of others. Not surprisingly, he has presented a serious management problem over the years. The expert opinion has been expressed that his long-standing behavioural problems in custody are the result of a significant anti-social personality disorder. 15The defendant has not availed himself of psychological treatment or counselling with regard to his tendency to violence whilst in custody. Having said that, he did recently complete 10 of 12 modules of a program directed towards avoiding substance abuse. I accept on the balance of probabilities his instructions, conveyed from the Bar table, that he missed one session due to a lockdown, and the other because he was transferred to a different gaol. I also accept that he is now willing to enrol in the Violent Offender Treatment Program (VOTP),a prison based residential therapy program for men who have a history of committing serious violent offences. I also accept the assurance of counsel for the plaintiff that the defendant could start that program in three weeks or thereabouts. 16Mr Samuel Ardasinski, a psychologist within the prison system, conducted a risk assessment of the defendant, and formed the opinion that the defendant's "risk of future violence would likely include the real potential for further 'serious' violence". He also came to the view that the defendant "seemed unable to comprehend the severity of his violent conduct over the years", and that he is "unlikely to invest effort into ameliorating the aspects of his personality that contribute to high risk situations." 17To conclude my brief conspectus of the evidence, a very significant aspect of it is that, if he were released from prison first thing on Monday morning, the defendant would literally have nowhere to live. That is because the only Community Offender Support Program (COSP) now operating in New South Wales focuses on sex offenders, and accordingly for security reasons does not accept offenders with a tendency for violence. Enquiries have been made of two supported accommodation centres in the inner western suburbs of Sydney; neither is prepared to have the defendant as a resident because of concerns about "staff safety". His counsel suggested that, if the defendant were to live alone but strictly supervised in a Housing Commission flat, that would not be markedly different from supported accommodation. But I do not need to assess the correctness of that submission, because no such flat is available to the defendant as things stand now in any event. Order seeking mandatory examination 18Turning to the first order sought, s 15(4) of the Act is to the effect that I must make it if I am satisfied that "the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order". That test has been equated with whether there is a prima facie case established for the making of such an order: see Attorney General (New South Wales) v Tillman [2007] NSWCA 119; Attorney General (NSW) v Hayter [2007] NSWSC 983 at [6]; State of New South Wales v Manners [2008] NSWSC 1242 at [8]; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]. 19Section 5E of the Act is as follows: 5E High risk violent offender (1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender. (2) An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence. 20There is no dispute that the index offence complies with the definition of a "serious violence offence" contained in s 5A of the Act, and that the defendant is a "violent offender" as defined. The real question is whether there is a prima facie case for the proposition that the offender is a "high risk violent offender". 21In R v Steadman [2013] NSWSC 170, I summarised the approach that I took in determining the substantive question in the highly analogous context of determining an application for a high risk sexual offender extended supervision order. Neither party having sought to dissuade me from that position in these proceedings, I maintain the following analysis: [65] I have approached the requirement of satisfaction "to a high degree of probability" as constituting an elevated standard of proof that falls between the criminal standard and the civil standard, in accordance with Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; (2007) 178 A Crim R 133. [66] As for what is involved in the concept of "unacceptable risk of committing a serious sex offence" I respectfully adopt what was said by Davies J in State of New South Wales v Richardson (No. 2) [2011] NSWSC 276 at [90]: "Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. That is also because s 17(3) [of the Crimes (Serious Sex Offenders) Act 2006, the predecessor of s5B of the Act] provides for the further assessment that if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk a supervision order will not be adequate to meet the risk." 22As for the meaning of a "serious violence offence" in the context of the test in s 5E(2), in State of New South Wales v Lynn [2013] NSWSC 1147 I discussed my understanding of the potential breadth of the definition of that concept. There I said at [16]: At its lowest, on analysis a serious violence offence could be an offence that features an act causing grievous bodily harm done with foresight of the possibility that actual bodily harm could occur. An example that springs to mind is punching someone to the face whilst realising that it is possible that the victim will receive a split lip and the victim, as a result of the punch, falling back and hits his or her head on concrete and suffering a very large laceration to his or her head. Clearly, the concept of a serious violence offence is not confined to offences of homicide, or even the intentional infliction of serious violence. 23In these proceedings, neither party submitted that my analysis in that case was incorrect. 24To my mind, if this man were released wholly unsupported, unsupervised, and untreated after many years in custody, there is a very real and significant possibility that he would commit a serious violence offence as defined. My state of satisfaction about that proposition goes well beyond satisfaction that there is merely a prima facie case "that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision". And in light of the multiplicity of offences of violence committed by the defendant in the past, and the fact that it is only a matter of good fortune that more persons have not been seriously injured, I consider that there is a prima facie case for the proposition that the risk that I have identified would be unacceptable. 25On the material before me, and bearing in mind the longstanding tendency of the defendant to violence, both in the community and in custody; his past resistance over many years to treatment with regard to that criminal tendency; and the complete absence at this stage of structure and support after his impending release (not least with regard to accommodation), I am amply satisfied that there is a prima facie case for making, at least, an extended supervision order in the future. 26It follows that I accept the joint position of the parties, and shall proceed to make the first order. Alternative order seeking an interim supervision order 27Turning to the question of an interim supervision order, in a sense the question is completely theoretical. That is because, as his counsel accepted, if the defendant were released on Monday morning subject to an interim supervision order in accordance with the schedule of conditions proposed by the plaintiff, he would be liable to be immediately arrested. That would be on the basis that he would not be able to reside in approved accommodation; indeed, as I have explained, he would have no accommodation at all. 28Section 10B of the Act is as follows: 10B Interim supervision order-high risk violent offender The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, 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 a high risk violent offender extended supervision order. 29In short, the section provides that I may make an interim supervision order if I am satisfied that there is a prima facie case for the making of an extended supervision order in due course pursuant to s 5E of the Act. 30There is no dispute about s 10B(a). 31The interim test set out in s 10B is identical to the interim test for ordering mandatory examinations under s 15(4) of the Act, and I shall not repeat the analysis I undertook in my discussion of the first order. 32As determined above, to my mind the evidence placed before me by the plaintiff, considered as a whole, certainly establishes a prima facie case for the proposition that an extended supervision order would be ordered. 33It follows that, if there were any utility in doing so, I would accept the joint position of the parties and make an interim supervision order for 28 days. But, as I have explained, to do so would be a fruitless exercise. Whether an interim detention order should be made 34I therefore turn to consider order two sought in the summons. 35Section 18B of the Act is as follows: 18B Interim detention order-high risk violent offender The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court: (a) that the offender's current custody (if any) will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order. 36Again, there is no dispute that the precondition in s 18B(a) is fulfilled. 37As for s 18B(b), again the test is founded on a prima facie case with regard to the fulfilment of the test in s 5E(2); I shall not repeat my analysis. 38Counsel for the defendant submitted that it can hardly be the case that a citizen such as the defendant should be detained in a prison on the application of the authorities (considered broadly), on the basis that the authorities will not or cannot provide accommodation in the community to which they would give approval. Counsel accepted that, in proceedings such as these, it is the Supreme Court and not the Department of Corrective Services that ultimately determines whether proposed accommodation is suitable or not. Nevertheless, counsel for the defendant submitted that, as things stand, his client is trapped in a "Catch 22": he is to be detained, because of his tendency to violence, unless suitable accommodation can be found, but no suitable accommodation can be found, because of his tendency to violence. 39There is force perhaps in what counsel for the defendant has said. But it is simply my role to resolve the application placed before me by determining the facts established by the evidence and applying the statutory tests (as illuminated by decisions of this Court) to those facts. 40As I have said, if the defendant were released next Monday morning, he would be literally homeless and, I infer, reduced to roaming the streets. He would be completely unsupported in the community after over 10 years in continuous custody. He is a man with a regrettable tendency to violence that began over 17 years ago. 11 years ago, that tendency culminated in him senselessly inflicting a blow with a baseball bat to the head that could well have been fatal. Since that time he has not addressed the issue of irrational violence; quite the contrary, it has continued to manifest itself over the years during which he has been incarcerated. 41To my mind, in accordance with s 18B(b) of the Act, a prima facie case has been demonstrated for the proposition that the evidence placed before me could well lead to the making of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order. 42It is the case, of course, that, when the matter next comes before the Court, the position with regard to accommodation and other concerns may have changed. But at this stage I regard an interim supervision order as unavailable due to its complete futility. And on the evidence before me I am satisfied that the relevant statutory test for the making of an interim detention order has been made out. 43It follows that I shall proceed to make an interim detention order for 28 days, in accordance with order two in the summons. Orders 44I make the following orders: (1)An order pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): (a)Appointing Dr Andrew Ellis and Dr Richard Furst to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those psychiatric examinations by Monday 27 October 2014; and (b)Directing the defendant to attend those examinations. (2)An order pursuant to s 18B of the Act that the defendant be subject to an interim detention order from 5 October 2014 for a period of 28 days, expiring on 1 November 2014. (3)An order pursuant to s 20(1) of the Act that the Court issue a warrant for the commitment of the defendant to a correctional centre for the duration of the interim order referred to in order 2 above. (4)The matter is adjourned to the Common Law Registrar's list at 9.00am on Friday 10 October 2014, that being one week from today.