State of NSW v Sancar

Supreme Court of NSW|2016-06-16|Before: Garling J, Ireland J

Judgment

Yuksel Sancar is a 45 year old, Sydney-born man of Turkish background.
In 1993, when Mr Sancar was 22 years old, he committed an attempted armed robbery, for which he was sentenced to a term of imprisonment. On 10 May 1994, while serving this sentence at the Junee Correctional Centre, Mr Sancar murdered a fellow inmate.
In 1998, Mr Sancar was sentenced for the murder in this Court (Ireland J) to a minimum term of imprisonment of 15 years commencing on 27 August 1996 and expiring on 26 August 2011, with an additional term of 5 years commencing on 27 August 2011 and expiring on 26 August 2016. Accordingly, Mr Sancar remains a prisoner who has not been granted parole, but is due to be released in two months on 26 August 2016.
By a Summons filed on 24 May 2016, the State of NSW ("the State") seeks an order pursuant to the Crimes (High Risk Offenders) Act 2006 ("HRO Act") that Mr Sancar be subject to an Extended Supervision Order for a period of 3 years on and from 26 August 2016. It does not seek that Mr Sancar be made the subject of a continuing detention order.
As is usual in applications for such final relief, the State seeks interim relief. Relevantly for the purposes of this judgment, the State seeks the following order: "An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006: (a) appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; (b) directing the defendant to attend those examinations."
Other interim relief sought by the Summons was not pressed by the State at the hearing before me.
For the reasons set out in this judgment, I am not prepared to grant the order sought by the State and, accordingly, I dismiss the application.

Relevant Legislation

It is necessary to set out the relevant provisions of the HRO Act, which provide the context and structure for the determination of this application.
Section 4 of the HRO Act defines "violent offender" as "…a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction for a serious violence offence".
Section 5A of the HRO Act defines "serious violence offence" as follows: "5A Definition of "serious violence offence" (1) For the purposes of this Act, a 'serious violence offence' is a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (2A) A reference in subsection (1) (a) to: (a) conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and (b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and (c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person. (3) A 'serious indictable offence' is: (a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900 ) at the time that it was committed, or (b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or (c) an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were committed at the time an application for an order against the person is made under this Act."
This application with respect to Mr Sancar calls for consideration the provisions concerning high risk violent offenders. Section 5E of the HRO Act defines "high risk violent offender" 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."
Section 5F of the HRO Act provides that this Court "may" make an extended supervision order if the offender is a high risk violent offender. Accordingly, the Court's power to make such an order is discretionary. The State may apply for such an order: s 5H of the HRO Act.
Section 5J addresses any such application. It is in the following terms: "5J Application for high risk violent offender extended supervision order (1) An application for a high risk violent offender extended supervision order may be made only in respect of a supervised violent offender. (2) A 'supervised violent offender' is a violent offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's 'current custody or supervision' ): (a) while serving a sentence of imprisonment: (i) for a serious violence offence, or ..."
The preliminary hearing upon which I am engaged, and the specific orders with respect to the appointment of independent psychiatrists which are sought, are dealt with in s 7 of the HRO Act: "7 Pre-trial procedures (1) An application for an extended supervision order must be served on the offender concerned within 2 business days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (2) The State must disclose to the offender such documents, reports and other information as are relevant to the proceedings on the application (whether or not intended to be tendered in evidence): (a) in the case of anything that is available when the application is made, as soon as practicable after the application is made, and (b) in the case of anything that subsequently becomes available, as soon as practicable after it becomes available. (3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application."
In light of the requirement in s 7(4) of the HRO Act that this Court consider whether the evidence, if proved, would justify the making of an extended supervision order, it is necessary to have regard to the relevant provisions of s 9 of the Act, which identify the matters to which this Court must have regard in determining whether or not to make an extended supervision order: "9 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order: (a) by making an extended supervision order, or (b) by dismissing the application. (2) … (3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) …, (g) … , (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit … serious violence offences (in the case of an application for a high risk violent offender extended supervision order). (4) In this section, a 'relevant offence' means: (a) …, or (b) in the case of an application for a high risk violent offender extended supervision order-a serious violence offence."
Section 12 of the HRO Act provides that a person who fails to comply with an extended supervision order is guilty of an offence, the maximum penalty for which is a fine of $55,000 or imprisonment for five years, or both.
Finally, it is appropriate to note that s 21 of the HRO Act provides that the proceedings which are before me are civil proceedings to be conducted in accordance with the law relating to civil proceedings.

Applicable Legal Principles

This is a preliminary hearing: s 7(3) HRO Act. The task of the Court at this stage is neither to predict the ultimate result, weigh up the documentation provided, nor consider what evidence a defendant, such as Mr Sancar, might call at the final hearing. Rather, the test is similar to the prima facie test applied by magistrates in committal proceedings: Attorney-General for the State of NSW v Tillman [2007] NSWCA 119 at [98]; State of NSW v Manners [2008] NSWSC 1242 at [8]-[9].
It is appropriate at this time to keep in mind that the legislation has two objects: to ensure the safety and protection of the community, and to encourage high risk violent offenders to undertake rehabilitation: s 3 HRO Act; Attorney-General for NSW v Gallagher [2006] NSWSC 340 at [21]; Attorney‑General for NSW v Quinn [2007] NSWSC 873 at [10]; Attorney‑General for NSW v Winters [2007] NSWSC 611 at [7]. It is appropriate at a preliminary hearing to give weight to risk avoidance: Attorney‑General for NSW v Winters [2007] NSWSC 611 at [7].
Applying the test in s 7(4) of the HRO Act necessarily requires me to determine, as a central issue, whether the matters in the material before me would, if proven, justify a finding that Mr Sancar is a "high risk violent offender". I cannot find that Mr Sancar is a "high risk violent offender" unless I am satisfied to a high degree of probability that Mr Sancar poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision: s 5E(2) HRO Act.
Mr Sancar accepts that he is a "violent offender" within the meaning of s 5E(2) of the HRO Act. Accordingly, there remain two identifiable questions to be determined before the Court can make the orders sought. The first is whether Mr Sancar "poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision". The second is whether I am satisfied that such an unacceptable risk exists to "…a high degree of probability".
As to the meaning of "a high degree of probability", the Court of Appeal in Cornwall v Attorney-General for NSW [2007] NSWCA 374 said this at [21]: "The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious … offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion 'likely' … ". See also Attorney-General for the State NSW v Tillman at [27].
As to the question of whether Mr Sancar poses an unacceptable risk of committing a serious violence offence, the expressions "serious violence offence" and "unacceptable risk" require scrutiny.
As Button J observed in State of NSW v Lynn [2013] NSWSC 1147 at [16], the expression "serious violence offence" captures a wide range of criminal conduct which is not necessarily "… confined to offences of homicide, or even the intentional infliction of serious violence". His Honour drew attention to the fact that the definition of "serious violence offence" in s 5A of the HRO Act includes an offence of causing grievous bodily harm to another person where the accompanying intention is only to cause actual bodily harm or where the offender is reckless as to the causing of actual bodily harm.
In State of NSW v Thomas (Preliminary) [2011] NSWSC 118, R A Hulme J considered the meaning of "unacceptable risk" in the context of high risk sex offenders and observed at [16] ff: 1. that a risk may still be an unacceptable risk even though the State does not satisfy the Court that it is more likely than not that a defendant will commit a serious violence offence. As his Honour said: "Put another way, the risk may be less likely than not, but still be an unacceptable risk"; and 2. that a risk would be unacceptable if it was present to a sufficient degree "… so that the safety and protection of the community cannot be ensured unless an order is made".
The Court of Appeal recently considered the meaning of "unacceptable risk" in Lynn v State of NSW [2016] NSWCA 57. Beazley P (with whom Gleeson JA agreed) expressed the following views at 49 ff: 1. the meaning of the phrase "unacceptable risk" raises a question of statutory construction (at [49]); 2. the determination of the existence of an unacceptable risk is an evaluative task, which requires a normative context in which to be made (at [51]); 3. the objects of the legislation may be relevant to the meaning to be given to the provisions of the Act, but those objects cannot control clear statutory language (at [54]); 4. the preferable approach is to give the words their everyday meaning in the context of the provision in which they appear and having regard to the objects of the Act (at [58]); and 5. in the context of the Act, the evaluation being made by the Court is "… directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection" (at [61]).
Gleeson JA put the matter succinctly at [148]: "It would subvert the language of the statute if the interests of the offender in liberty and privacy were to be taken into account in the assessment of the threshold of 'unacceptable risk' in s 5E(2) of the Act. There is no 'balancing' exercise involved in the Court's assessment of the threshold of 'unacceptable risk'. "
As his Honour went on to explain, the interests of the offender in liberty and privacy are taken into account at a later stage, when the Court is exercising its discretionary power under s 9 of the HRO Act to either make or refuse to make an extended supervision order.
It should also be observed that this Court may make an extended supervision order "if and only if" the offender is a high risk violent offender. As McClellan CJ at CL observed in Attorney-General for NSW v Gallagher [2006] NSWSC 340 at [34]: "The caution that an order can only be made 'if an only if' the Court is relevantly satisfied emphasises the care with which the Court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person's liberty."

Evidence

Against those legal principles, and in light of the statutory context, it is appropriate to turn to the evidence led by the State in support of this application. Having regard to the fact that this judgment is dealing with a preliminary application, I approach the evidence on the basis that it will be accepted by the Court hearing a final application.

Mr Sancar's Prior Offending

The index offence qualifying Mr Sancar as a "violent offender" is the offence of murder, which he committed in 1994 and for which he was convicted in 1998.
The circumstances of that offence were as follows. On 10 May 1994, whilst Mr Sancar was serving a term of imprisonment at the Junee Correctional Centre, a confrontation occurred between Mr Sancar and his associate on the one hand, and the deceased and another prisoner on the other hand. The occasion for the confrontation was ill feeling arising out of prohibited drug use within the jail. Mr Sancar had been taunted leading up to the confrontation, and his cell window had been broken. The confrontation occurred in a common walkway in the prison. A scuffle ensued, in the course of which Mr Sancar took a homemade jail fashioned knife from his trousers and stabbed the deceased twice in the chest. The deceased died within minutes.
At his first trial, Mr Sancar told the jury (which ultimately could not agree on a verdict) that he had been using heroin for about two months prior to the murder, and that he had last taken heroin about two days before the stabbing.
Mr Sancar's conduct was described in this way by Ireland J in the course of his reasons on sentence: "The response by the prisoner of inflicting two fatal chest wounds on the deceased is to be seen in the light of the deceased, Mr Weeks, playing a lesser role in the events leading to the confrontation. And this factor together with the fact that the deceased was unarmed constitute aggravating features of the crime. … The crime of violent murder by stabbing is one of extreme objective gravity giving rising to a high degree of offence to the general sense of the community."
The HRO Act did not exist in its current form at the time that Ireland J pronounced sentence on Mr Sancar. His Honour expressed no view with respect to the question of an extended supervision order.
Mr Sancar's earlier criminal history commenced when he was just below the age of 15. His offences as a minor consisted of various motor vehicle offences, dishonesty by way of stealing and other low level offences of no present significance. At the age of 16, Mr Sancar was committed to an institution for a period of three months on account of convictions for two offences of common assault.
After he became an adult, Mr Sancar committed further theft, driving and motor vehicle offences. In 1993, he was convicted of the offence of attempted armed robbery, for which he was sentenced to a minimum term of 2 years. As I have earlier noted, it was while he was serving this sentence that he committed the murder.
None of the offences prior to the index offence would be sufficient to attract the operation of the HRO legislation. To the extent that a pattern of previous offending is disclosed, it is one involving theft or other like offences of dishonesty, and one which indicates a complete disregard for the laws relating to the use of motor vehicles on the road. I do not regard this offending as being at all relevant to whether there is a risk of Mr Sancar committing serious violence offences after his release from jail if he is not kept under supervision.

Risk Assessment Report

Mr Sancar was interviewed for approximately 3½ hours on 1 December 2015 by a senior psychologist attached to Corrective Services, Mr Samuel Ardasinski. Mr Ardasinski then prepared a Risk Assessment Report dated 4 December 2015, which he signed. The report was also signed by Danielle Matsuo, a specialist forensic psychologist employed by Corrective Services as the Statewide Manager of Programs.
The executive summary of the Risk Assessment Report concluded: "Mr Sancar is assessed as falling in the Medium risk category for violent reoffending, compared with other male violent offenders. Mr Sancar's behaviour in custody since 1993 has been relatively unstable, with persistent drug use which has delayed his progression through the security classification system. There have been a few acts of violence in custody, although no charges for same in the past 5 years. As he enters the final year of his lengthy sentence, Mr Sancar has not participated in any external leave programs, and has thereby never been considered eligible for parole release. Mr Sancar is considered treated, as he has participated in a high intensity program aimed at addressing his violence, as well as a further high intensity program aimed at his drug use. He attempted to participate in a pre-release program also aimed at his drug use, but was discharged early from that program in October 2015 for an uncharged act of violence against a fellow participant. … Should Mr Sancar be considered … suitable for an extended supervision order, this may allow for the gradual reintegration into the community which Mr Sancar has been unable to participate in due to his persistent failures in custody through continuing illicit drug use which have resulted in having his classification progression stalled and regressed. He would be able to access the ongoing support of CSNSW, and related resources to help him to adjust to life in the community after over 23 years in jail.'
Mr Ardasinski pointed out that as it has been over 20 years since Mr Sancar was supervised in the community, it would be "mostly speculative to base predictions on how well he would engage with Community Corrections on his previous performance under community supervision".
Mr Ardasinski noted that Mr Sancar had, whilst in custody, continued to be involved with the use, sale and supply of drugs. He pointed out that if Mr Sancar continued his involvement with the use, sale or supply of drugs in the community, then that would potentially cause Mr Sancar to become involved in more serious criminal activity, including violent criminal activity.
Mr Ardasinski concluded that Mr Sancar had no significant history of mental illness either prior to or during his current sentence. He also noted that Mr Sancar had received relatively positive work reports while in custody.
Mr Sancar's principal risk factor was identified as his substance abuse, with heroin being his drug of choice for many years. In the past, Mr Sancar has been placed on the methadone maintenance program whilst in jail. It is apparent that Mr Sancar has been participating in the methadone maintenance program for about the last three months, although this has occurred after Mr Ardasinski completed his report.
Mr Ardasinski noted that Mr Sancar had participated in, and completed, the Intensive Drug and Alcohol Treatment Program ("IDATP"), which is a prison‑based residential therapy program for male inmates who have a drug or alcohol problem which is linked to their offending behaviour.
Mr Sancar's participation in the IDATP was described in positive terms, and he was set a number of targets to achieve during and after the program.
Mr Ardasinski expressed this view: "Since drug use has been such a critical factor in Mr Sancar's criminal behaviours, including his violence, for the majority of his adult life, management of substance use will be the most important factor in moderating Mr Sancar's risk of repeat violence or other crime."
Mr Sancar commenced, but did not complete, the Violent Offenders Therapeutic Program ("VOTP"). It is a program of 12 months duration which addresses issues relating to violent offending behaviour and issues surrounding other criminogenic needs including substance abuse and poor literacy skills.
Mr Sancar participated in the VOTP for about 11 months, but was removed from the program prior to completion. His removal was apparently related to poor compliance with the program, including a failure to complete his homework, aggressive conduct towards VOTP staff, and general deterioration in his behaviour in prison.
Ultimately, Mr Sancar completed the VOTP by independently completing the relevant modules with a psychologist to a satisfactory standard. His progress in the VOTP was recorded as mixed with some definite improvements observed.
Whilst in custody, Mr Sancar has also completed a number of other group programs of lesser intensity.
Mr Ardasinski described Mr Sancar's current attitude in this way: "Mr Sancar's current attitude, as expressed in interview, was that he does not think that he is at risk of committing any future acts of violence upon his release to the community. His VOTP-M therapist has suggested that in her discussions with Mr Sancar, which was again reiterated in interview, he has maintained that he has a firm resolve to remain offence-free and live in a pro-social existence post-release."
Mr Ardasinski noted that it is not scientifically possible to predict accurately whether or not an individual offender will or will not reoffend. He noted that in Mr Sancar's case, a further challenge in assessing the risk of reoffending was that Mr Sancar had never committed an act of "serious violence" in the community. His only act of "serious violence" was committed whilst in prison. As Mr Ardasinski noted, the environment in prison obviously differs markedly from the community settings in which Mr Sancar would find himself upon release.
It is appropriate to record the results of the various risk instruments that were administered to Mr Sancar: 1. On the Level of Service Inventory-Revised (LSI-R) criteria, Mr Sancar was assessed as having a score which fell in the medium-high range of risk needs. This was consistent with previous tests using that instrument; 2. The Violence Risk Scale (VRS) Actuarial Risk Assessment resulted in an estimation that Mr Sancar's risk of being convicted of further violent offences fell in the medium risk range.
Mr Ardasinski noted that the VRS assessment compared Mr Sancar's score to a group of 918 Canadian inmates. He noted: "Of those offenders from this group who obtained a similar score to Mr Sancar, 34.5% were criminally convicted for a new violent offence within 5 years after release into the community … the mean reconviction rate for violent offenders in the sample population was 31.26% within 5 years."
Mr Ardasinski noted that the reoffending considered in the VRS Assessment, being a "new violent offence", was not necessarily of the same seriousness as a "serious violence offence" under the HRO Act. Accordingly, he expressed the view that the recidivism rate with respect to "serious violence offences" would be lower than the rate for general violent offences.
Mr Ardasinski went on to address a series of factors which he regarded as "relevant, primary risk factors" in assessing Mr Sancar's risk of violent reoffending. These factors included: 1. Mr Sancar's substance abuse - Mr Ardasinski noted that Mr Sancar needs to participate in the methadone maintenance program, or a similar support program, for the foreseeable future to reduce the risk of becoming involved in illicit drugs. 2. Mr Sancar's antisocial peers and lack of a pro-social lifestyle - Mr Ardasinski noted that Mr Sancar needs a "pro-social peer network" in the community outside of his immediate family in order to develop a lifestyle which is not characterised by drug use or criminal violence. He made no prediction as to whether or not developing such a peer network was feasible. 3. Mr Sancar's institutional identity, weapon use and criminal attitudes - Mr Ardasinski commented that, as a result of his more than 20 years in custody, Mr Sancar has developed a "dangerous person" identity, justified the possession of lethal weapons, and developed cognitive distortions around the need to carry a knife. Mr Ardasinski noted that use of a weapon is associated with an increased risk of criminal violence, and obviously increases the potential for serious harm. 4. Mr Sancar's interpersonal aggression and poor emotional regulation - Mr Ardasinski noted that the potential for interpersonal violence is exacerbated in individuals who struggle to maintain emotional stability. He expressed the view that despite working on his interpersonal aggression and poor emotional regulation skills through participation in a number of relevant programs, Mr Sancar has demonstrated that these are continuing deficits for him. 5. Mr Sancar's aggressive interpersonal style and anti-authority attitudes - Mr Ardasinski noted that such attitudes are associated with an increased risk of criminal violence. 6. Mr Sancar's lack of relationship skills - Mr Ardasinski noted that Mr Sancar has had difficulty building effective intimate relationships, which typically discourage offenders from committing violent crimes.
Having reviewed all of the factors, including a number of potential protective factors such as the influence of Mr Sancar's mother and sister, and his broader family, Mr Ardasinski reached these conclusions with respect to Mr Sancar's overall risk of violent reoffending: "60. The overall totality of evidence suggests that Mr Sancar falls in the medium risk category of violent offending relative to other adult male violent offenders. The most serious of violence perpetrated by Mr Sancar was lethal violence, although this was committed in the unique setting of prison custody. He has addressed the factors which resulted in this violence, and he has never committed a serious violence offence in the community. 61. It is not considered likely that future violence would approach the threshold of a 'serious violence offence' as defined in the Crimes (High Risk Offenders) Act 2006."
Mr Ardasinski recorded that Mr Sancar had expressed the view that after release he would be likely to return to Turkey to undertake National Military Service. Whether or not this is so was not clearly established by the evidence in the proceedings. Even if it were established, it is not a matter to be taken into account at this stage of the proceedings. This is not to say that it could not be taken into account if this Court was ultimately to consider whether to finally make an extended supervision order in the exercise of its discretion.
Mr Ardasinski completed a supplementary psychological risk assessment report on 28 January 2016. He was given further additional information, including, in particular, a "Segregation Order Covering Report" dated 30 December 2015. Having carefully considered that additional material, and taking it at its highest, Mr Ardasinski adhered to his initial assessment. He said: "Nothing in the attached material gives me cause to alter my initial assessment which indicated that Mr Sancar was assessed as posing a moderate risk of violent reoffending. The additional material provides further evidence to me that Mr Sancar poses a greater risk of violence within custodial settings and has entrenched anti-authority attitudes which he will likely require intensive support and intervention to manage when he is eventually released to the community."

Management in the Community

A further report was tendered from Ms Rebecca Kaye, a Community Corrections Officer. It was dated 21 January 2016. The purpose of the report was to identify the extent to which Mr Sancar could reasonably and practicably be managed in the community: see s 9(3)(d1) of the HRO Act. The report usefully describes in considerable detail the steps that would need to be taken to manage and supervise Mr Sancar in the community in the event that the Court made an extended supervision order. Importantly, the report did not suggest that Mr Sancar was unsuitable to be supervised in the community.

Mr Sancar's Custodial History

The State relied to a significant degree on Mr Sancar's history of misconduct while in custody. There were over 60 recorded instances of Mr Sancar breaching prison discipline.
Many of these breaches of discipline were associated with drug use. These included Mr Sancar providing urine tests which tested positive to illicit drugs, or failing to provide urine tests as required. Other breaches included not showing appropriate respect or speaking inappropriately to Corrective Services staff, which were described by Mr Ardasinski as being manifestations of Mr Sancar's anti-authority attitudes.
The State submitted that the Court should have regard to these matters, although it was not required mandatorily to do so under s 9(3) of the HRO Act, because they were relevant to predicting how Mr Sancar would behave if he was released into the community.
Mr Sancar's last recorded breaches of discipline connected with violence were in April and June 2005. On those occasions, he was found guilty of intimidation, and received short-term sanctions. Prior to then, Mr Sancar was found guilty of an assault in 2001, for which he was confined to his cell for three days. He was also found guilty of an assault in 1995.
In a supplementary pre-release report of 24 February 2016, it was recorded that Mr Sancar's classification had been "regressed" to B-Medium because of his involvement in "conspiring to introduce contraband into a correctional centre and for organising the assault of other inmates".
The change of classification occurred as a consequence of a report from a Corrective Services Officer who had listened to two telephone conversations in which Mr Sancar had participated in December 2015. The Corrective Services Officer concluded that the contents of the two telephone calls necessitated Mr Sancar being placed in segregation "… for the good order of the Centre and the safety of other inmates".
Recordings of the telephone calls were tendered to the Court, and the Court was invited to listen to them. Counsel for Mr Sancar contended that the calls contained no element of any threat of violence or other misbehaviour.
I have listened to the telephone calls. They are hard to decipher and it is difficult, without further information as to whom Mr Sancar is speaking, to discern the true meaning and effect of the words. However, it would not be appropriate, at this preliminary hearing, for this Court to reach a definite conclusion about the meaning of these phone calls. As well, experienced Corrective Service officers are better placed to interpret what is being said.
The issue for the Court is whether the material in the telephone calls is capable of giving rise to the conclusion expressed in the covering report that Mr Sancar was conspiring to assault other inmates. In light of the fact that the covering report includes reference to material other than the telephone calls provided to the Court, I am not prepared to conclude that these conversations are not capable of being interpreted as they were in the covering report.

Discernment

It is not in dispute that Mr Sancar is a person in relation to whom an extended supervision order can be made by this Court, since he falls within the definition of a "supervised violent offender": s 5J(1) of the HRO Act.
The State submits that the evidence before this Court establishes that: "… [Mr Sancar] has a history of acting violently, has become institutionalised having spent 23 years in jail and is at an unacceptable risk of reoffending if not supervised. It is submitted that the life change such as that required by [Mr Sancar] (remaining abstinent from drugs and realigning his attitude generally) is a gradual process and, without supervision, the risk of the defendant returning to drug use and, thereafter, violence, remains a very real one. Whilst it is largely unknown how well the defendant will perform in the community given he has spent more than half of his life in custody, this uncertainty, and bearing in mind the primary object of the Act, it is submitted that supervision is necessary to ensure the safety of the community." (sic)
A significant element of the State's submissions seemed to involve a challenge to the expert opinion expressed by Mr Ardasinski, which I have set out at [58] above. The State submitted that Mr Ardasinski's conclusion did not reflect a proper understanding of the meaning of "serious violence offence". The State drew attention to the remarks of Button J in Lynn at [16], where his Honour described what conduct may fall within the definition of a serious violence offence. A careful examination of those remarks, and without any disrespect to his Honour's reasoning, indicates that his Honour was merely paraphrasing, by reference to examples, the legislative definition of what constitutes a serious violence offence. His Honour's remarks in no way sought to broaden the conduct which falls within the legislative definition of "serious violence offence". Mr Ardasinski's conclusion was expressed by direct reference to the legislation. He is a psychologist who is an expert in this area and there is simply no reason to believe that he did not correctly understand the definition of a serious violence offence, which is not a complex definition. I reject this submission.
This Court is engaged in an evaluative task. This evaluative task requires the Court to take into account all of the material that has been placed before it, and to assume that the facts disclosed in that material will be proved at a final hearing. This includes the expert opinions of Mr Ardasinski. Having done so, the Court must then ask itself whether it is satisfied to a high degree of probability that Mr Sancar poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.
Unacceptability of risk is a combination of two necessarily predictive elements. The first is the likelihood that the risk will eventuate and the second is the gravity of the risk. As Harrison J observed in State of NSW v Pacey [2015] NSWSC 1983 at [43]: "A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
Having regard to the nature of the material provided to the Court, which largely comprises documents obtained from government records, and Mr Ardasinski's opinion reduced to writing, it can be assumed without difficulty that the matters disclosed in this material can be proved. The more difficult task is to determine what inferences can be drawn from the material as to the risk that Mr Sancar will commit a serious violence offence if he is not kept under supervision.
In the analysis which follows, it needs to be kept in mind that there is not one single piece of the defendant's history and the evidence, including expert opinions, which is of such significance that it determines the conclusion. Rather, all matters need to be taken into account and evaluated.
The starting point is to acknowledge that Mr Sancar has only ever been convicted of one serious violence offence, being the index offence of murder, for which he was sentenced to a lengthy term of imprisonment. By reason of that conviction, Mr Sancar is deemed to be a serious violent offender by the legislation. However, such a description is no more than a label attached to past conduct. It gives no indication as to the likelihood of Mr Sancar committing a serious violence offence in the future. The evaluative task which the Court must now undertake requires an assessment of Mr Sancar's future conduct. That task is a difficult one, not simply because it is predictive in nature, but because the prediction is to be made in the context of the release into the community of a person who has spent a large part of his adult life in custody.
The next relevant matter to consider is Mr Sancar's disciplinary breaches in prison. It is fair to say that most of these breaches are linked to the use of illicit drugs. Although there are suspicions and reports of violent conduct on the part of Mr Sancar, the last proved breach of discipline involving violence on the part of Mr Sancar was over 10 years ago. As well, in considering these disciplinary offences, it is necessary to keep in mind, as Mr Ardasinski notes, that Mr Sancar has developed a persona of a "dangerous person" and anti-authority figure which he regards as appropriate to ensure his safety and survival in the prison system. The development of this persona is perhaps understandable in light of Mr Sancar's relatively slight physical stature.
There are a large number of disciplinary offences. Of this number, only a few are connected with violence, and even those offences do not suggest violence of a kind that would fall into the definition of "serious violence offences". I do not think that Mr Sancar's disciplinary record is of any real probative value in determining his risk of committing serious violence offences in the future.
The disciplinary offences do point to the fact that, for many years, Mr Sancar has continued to use illicit drugs. There is no doubt that Mr Sancar's continued use of illicit drugs after his release would increase the risk of him associating with criminal elements and engaging in violent behaviours associated with drug dealing and in disputes connected with drug dealing. However, the records show that, at least since February 2016, Mr Sancar has participated in the methadone maintenance program, which has the capacity, if he persists in that program, to enable him to avoid illicit drug use. It is also clear that Mr Sancar recognises that his drug use is something which he needs to address in order to transition successfully into the community. The fact that Mr Sancar has such insight is itself a factor to be considered in the assessment of unacceptable risk.
Mr Sancar presented well throughout the lengthy interview with Mr Ardasinski. He engaged in the assessment process and was co-operative and polite through the interview session. His current attitude, which he expressed to Mr Ardasinski, was that he did not regard himself at risk of committing any future acts of violence upon his release to the community. That attitude was also expressed to other professionals who provided rehabilitation and treatment courses to Mr Sancar whilst in custody. This expression of intention, whilst relevant, needs to be treated with some caution.
Mr Sancar's length of incarceration, his institutionalisation and lack of a strong peer network in the community outside of his family, suggests that his reintegration into the community will not be risk free.
In the evaluative exercise, the opinions of Mr Ardasinski are helpful, and need to be given proper weight. There are two separate conclusions of Mr Ardasinski that are important to identify and take into account.
The first is that he does not consider it likely that any future violence engaged in by Mr Sancar would approach the threshold of a "serious violence offence". Mr Ardasinski seems to base this conclusion upon the circumstances surrounding Mr Sancar's violent offending in the past. In particular, Mr Ardasinski notes that Mr Sancar's only serious violence offence, being the index offence of murder, was committed in an institutional environment in circumstances where there was a dispute among prisoners about the sale and supply of drugs.
In considering the application of the legislation, it is important to note that the legislation is not addressed to every act of violence which may be committed by an offender released into the community. The HRO Act is concerned with the future commission of "serious violence offences". That Mr Sancar may commit acts of violence if released is not to the point. The relevant inquiry is the risk that Mr Sancar will commit "serious violence offences".
On one view, Mr Sancar will be less likely to commit a "serious violence offence" once he is removed from a custodial setting. The aggressive persona which Mr Sancar developed in prison, and to which I have earlier referred, will no longer be necessary upon his release into the community. When he is living in the community with the support of his family, Mr Sancar will be less likely to confront situations conducive to the commission of serious acts of violence.
The second important conclusion of Mr Ardasinski is that Mr Sancar falls into the medium risk category of violent offending relative to other adult male violent offenders. As Mr Ardasinski noted, only about a third of the sample of Canadian offenders in the medium risk category committed an offence of violence in the first five years after their release from prison. Even then, the concept of a "violent offence" used in that comparison is not necessarily the same as the concept of a "serious violence offence" set out in the HRO Act. Accordingly, this conclusion of Mr Ardasinski does not, of itself and without more, support a conclusion that Mr Sancar poses an unacceptable risk of committing a serious violence offence.
It cannot be ignored, and it is a central feature of this analysis, that the objective of the HRO legislation, and a matter of great importance in this application, is ensuring the safety and protection of the community. The release of any offender from prison carries with it a risk that the offender will commit further offences. The recidivism rates of prisoners in NSW are a recognised and tracked phenomenon. No evidence as to the precise recidivism rate was put before the Court. None was required. The phenomenon is well-known.
With his sentence due to expire in just over two months, Mr Sancar has never been released on parole. Accordingly, he has not yet had the opportunity of being supervised in the community. He has not yet had the opportunity of living in the community. He has not received any of the programs or supervision or guidance which is available to prisoners on parole whilst they are in the community. The State accepts that an extended supervision order is not to be used as a substitute for parole. The State accepts that that is not the purpose of the HRO legislation, and that it would be an erroneous application of the legislation to impose an extended supervision order as a substitute for parole.
The relevance of the fact that Mr Sancar has not had the benefit of release on parole is that his behaviour in the community, his capacity to adjust to living a normal life, and his capacity to avoid offending again, are simply unknown. Put differently, there is no material concerning Mr Sancar's past behaviour under supervision in the community which would enable a court to make a confident prediction as to his future behaviour under supervision in the community.
As the legislation makes clear, ensuring the protection and safety of the community is not to be achieved by subjecting to extended supervision orders all violent offenders at some risk of committing a further violent offence. It is inevitable that anyone released from custody at the conclusion of their term of imprisonment is at risk of committing an offence.
The sole issue for this Court is whether the material tendered in this preliminary hearing is capable of satisfying the Court to a high degree of probability that Mr Sancar poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.
I give the words "unacceptable risk" their ordinary meaning. In so doing, I am not satisfied at all, let alone to a high degree of probability, that on the material available, the Court would be able to conclude that Mr Sancar qualifies as a high risk violent offender. I am not satisfied that the material before me is capable of satisfying the Court that the risk of Mr Sancar committing a serious violence offence if he is not kept under supervision is of such a kind, nature or quality as to constitute an unacceptable risk.

Conclusion

I have not been satisfied by the State of NSW that the matters in the supporting documentation provided to the Court would, if proved, justify the making of an extended supervision order in respect of Mr Sancar. It follows that I am not obliged to make orders of the kind set out in s 7(4) of the HRO Act as sought in Order 1 of the Summons in these proceedings.
It also follows, pursuant to s 7(5) of the HRO Act, that I am obliged to dismiss the application.

Orders

I make the following orders: 1. Summons filed 24 May 2016 is dismissed. 2. Order the plaintiff to pay the defendant's costs.

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: 24 June 2016

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