The State of New South Wales ("the State") proceeds, in this Court, on a Further Amended Summons which was filed on 11 November 2016. That Summons seeks an order, pursuant to s 5F and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 ("the HRO Act") that the defendant, John Tozer, be subject to a High Risk Violent Offender Extended Supervision Order ("ESO") for a period of two years from the judgment of this Court.
In addition, the State seeks an order that Mr Tozer be required by a direction of the Court pursuant to s 11 of the HRO Act, to comply with conditions set out and specified in the order. Mr Tozer resists the making of the orders and submits that the application by the State ought be dismissed. It is submitted, in the alternative, that if the application is granted, the Court would vary some of the conditions sought and vary the time periods sought in the ESO.
[2]
Procedural History
The Summons, prior to its amendment, was originally filed on 27 September 2016. A preliminary hearing occurred on 11 November 2016, before Campbell J. For the reasons which his Honour expressed: see State of NSW v Tozer [2016] NSWSC 1643, his Honour made orders which:
1. pursuant to s 7(4) of the HRO Act, required Mr Tozer to attend for assessment by a psychiatrist and psychologist who were required to furnish reports of their examination to the Court; and
2. imposed an interim supervision order pursuant to s 10B of the HRO Act, for a period of 28 days.
Mr Tozer was ordered to comply with the conditions set out in the schedule to the orders.
On 21 December 2016, the Interim Supervision Order ("ISO") was renewed by Campbell J for a period of 28 days, expiring on 25 January 2017.
On 18 January 2017, the ISO was again renewed by Campbell J for a further period of 28 days to expire on 22 February 2017.
A final hearing took place on 2 February 2017.
[3]
Statutory Regime
The statutory regime requires that the State first satisfy the Court that the offender is a supervised violent offender within the terms of s 5(J)(2) of the HRO Act.
That section provides:
"2. A supervised violent offender is a violent offender who, when the application for the order is made, is in custody or under supervision … :
(a) while serving a sentence of imprisonment:
(i) for a serious violence offence, or
..."
The second threshold test for the making of an ESO is as specified in s 5F of the HRO Act. That is, that the defendant is a "high risk violent offender".
The critical term contained in that section, "…a high risk violent offender", is defined in s 5E in the HRO Act in the following way:
"(1) An offender can be made the subject of a high risk violent offender extended supervision 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."
Under s 9(1) of the HRO Act, this Court determines an application for an ESO by either making the ESO, or dismissing the application. Section 9(3) relevantly provides:
"(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) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,
(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 …."
It is necessary to note two other sections of the legislation. The first is s 12 of the HRO Act, which provides that a person who fails to comply with an ESO is guilty of an offence, the maximum penalty for which is a fine of $55,000 or imprisonment for five years or both. The second section to which it is necessary to have regard, is s 21 of the HRO Act which provides that proceedings of this kind are civil proceedings to be conducted in accordance with the law relating to civil proceedings.
[4]
Applicable Legal Principle
The HRO Act has two objects. The first and primary purpose is to ensure the safety and protection of the community. The second object is to encourage high risk violent offenders to undertake rehabilitation: s 3 of the 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].
In understanding the provisions of s 5E, and in proceeding to make a determination under it, it is necessary to keep in mind two elements:
1. whether Mr Tozer poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision; and
2. whether the Court is satisfied of such unacceptable risk to "… a high degree of probability".
The Court of Appeal considered the meaning of the phrase "a high degree of probability" in Cornwall v Attorney-General for NSW [2007] NSWCA 374. At [21] it said:
"The expression 'a 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 proof 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 Tillman v Attorney General for the State of New South Wales (2007) 70 NSWLR 448; [2007] NSWCA 327 at [27].
As to the question of whether Mr Tozer poses an unacceptable risk of committing a serious violence offence, the expressions 'serious violence offence' and 'unacceptable risk' require scrutiny.
Button J observed in State of NSW v Lynn [2013] NSWSC 1147 at [16], that 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. It is necessary to keep in mind this broad range of offences as populating the statutory definition.
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".
These remarks are apposite for a high risk violent offender.
The Court of Appeal considered the meaning of "unacceptable risk" for a high risk violent offender, 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;
2. the determination of the existence of an unacceptable risk is an evaluative task, which requires a normative context in which to be made;
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;
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;
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"; and
6. the risk which must be unacceptable is one of the commission of a serious violent offence, if the individual is not kept under supervision.
Gleeson JA noted that in the determination of an unacceptable risk, the intrusion into personal liberty which is the consequence of an order is irrelevant. At [148], he said:
"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 ESO.
It should also be noted 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 Gallagher at [34]:
"The caution that an order can only be made 'if and 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."
[5]
Index Offence
The most recent ("index") offence committed by Mr Tozer is that of causing grievous bodily harm to a person with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act. The facts were recounted by the sentencing Judge in the District Court. The conduct occurred at a nightclub in Penrith, late on the evening of 11 March 2011. Mr Tozer, together with a number of other associates, was at the nightclub enjoying the evening. During the course of the evening, one of Mr Tozer's associates, for a reason which was not readily apparent, and without provocation, struck a 21 year old male on the jaw with a closed fist. That punch knocked the victim to the ground, where he lay unconscious.
A short time later the same attacker attacked a friend of the first victim who was communicating on a mobile phone with the family of the first victim. The second victim was approached from behind by the original attacker, Mr Tozer, and a co-offender. He was punched to the face and head with a series of punches in quick succession by the original attacker. Mr Tozer and his co‑offender then joined in with that attack. During the attack the victim fell to the ground where Mr Tozer continued to attack him as he sat on the ground. Mr Tozer kicked the victim and only ceased the assault when pulled away by associates. The victim suffered serious injuries to his face as a result of the assault including a shattered right eye socket which required surgical repair including the replacement of part of the eye socket with titanium mesh.
Mr Tozer was arrested at home and his premises were searched. During that search a document entitled "Large Scale Methamphetamine Manufacture" was located in his premises. His fingerprints were found on a number of pages throughout the document.
In her Sentencing Remarks, the learned District Court Judge found, on the basis of a report from the Probation and Parole Services:
"… that the offender demonstrated an unwillingness to cooperate with the service in order to address his ongoing criminogenic factors, was resistant to intervention and, in addition, the service described the offender as someone who deliberately presented as evasive and provided false information throughout supervision. Not something which bodes well for his rehabilitation then and perhaps not now either, despite his evidence to the contrary."
Her Honour formed this conclusion with respect to Mr Tozer:
"I am unable to find, given the history of this offender, that he is truly remorseful and contrite or that he has developed insight into his offending behaviour and the relationship between it and drugs and alcohol as he says. Whilst he might talk the talk, he certainly has not walked the walk. There is nothing in the material tendered before me or from the evidence which demonstrates to my mind that there has been any change in him whatsoever.
It may well be that he has a long-standing problem with drugs and alcohol, but he has [been] given ample opportunity to address those issues and he has chosen not to do so. If he was so determined to [do] something about turning his life around in the past, he has had ample opportunity to do so. He has made a conscious decision not to do so. If he was serious about addressing his issues, he could have done so without the assistance of Probation and Parole. There are ample services available in this area had he chosen to seek out the help he needed.
I find his prospects for rehabilitation in those circumstances are extremely guarded, and I find he is highly likely to reoffend, particularly if he does nothing about his drug and alcohol abuse and unresolved anger."
Her Honour regarded the offence as a particularly serious example of its kind. She described the attack as one which was unprovoked upon a helpless victim who had already been struck by Mr Tozer's co-offender. She said this:
'"Whilst it was not this offender who initiated the assault, it was certainly this offender who stepped in and savagely set upon the already stunned victim, resulting in serious facial injuries to which I have been referring."(sic)
Her Honour concluded that Mr Tozer was "… someone with a significant propensity to violence", who had an unenviable record which disentitled him to leniency.
The total term imposed was one of 5 years and 6 months imprisonment commencing on 31 May 2011 and expiring on 30 November 2016. The non‑parole period component of that sentence was 4 years 1 month and 15 days, which expired on 15 July 2015.
In imposing that sentence, the sentencing Judge took into account on a Form 1, the offence of possessing instructions for the manufacture of prohibited drugs contrary to the provisions of s 11C of the Drug Misuse and Trafficking Act 1985.
[6]
Previous Criminal History
During the course of serving the sentence to which reference has been made above with respect to the index offence, Mr Tozer pleaded guilty to and was sentenced in the Penrith Local Court to a term of imprisonment of 12 months with respect to an offence of damaging property by fire or explosion, in circumstances where the property was valued at between $5,000 and $15,000.
I do not think that this conviction is of any real weight in the issues which involve violence to individuals to be considered in this application and, accordingly, will not explore the details of it any further.
On 3 January 2003, Mr Tozer was charged with two offences of violence. Prior to this time, Mr Tozer had not been charged with, or convicted of, any criminal offence. The first of the two offences was a charge of common assault, and the second a charge of murder. Ultimately, he pleaded guilty to an offence of common assault and to the offence of manslaughter. He was convicted and sentenced as follows:
1. Common assault - 6 months fixed term commencing 3 January 2003; and
2. Manslaughter - imprisonment for 4 years commencing 30 April 2003, concluding 2 April 2007, with a non-parole period of 2½ years commencing on 3 April 2003 and concluding on 3 October 2005.
The Crown appealed against the inadequacy of that sentence. The Court of Criminal Appeal dismissed the Crown appeal.
The sentencing Judge, who imposed sentence on 12 April 2005 in this Court, made the following remarks with respect to Mr Tozer's behaviour. He was at that time a juvenile. The sentencing Judge described the events in the following terms:
"The events which gave rise to the charges occurred on 31 December 2002, in the vicinity of the highway at Emu Plains alongside a park. They occurred late at night, at a time when many of the young persons who had convened at the park were affected at least by alcohol, if not by alcohol and other substances. The events occurred in circumstances of poor lighting with patches of shadow created by vegetation and some degree of intermittent lighting coming from the highway with a fixed light around the vicinity of a power pole. The deceased, his male companion and some young girls were proceeding from the station to a party about an entirely lawful occasion. They passed by the oval at which various young people were assembled, some considerable distance away. That group included the various offenders.
Persons from that group, including the offenders, moved either individually or in small sub-groups, over to the highway. There an altercation occurred. …"
His Honour was satisfied that the conduct of each of the offenders, including Mr Tozer, was that they engaged in an unlawful and dangerous assault, in the course of which the victim was propelled or pushed head-on into a light pole, sustaining severe cerebral injuries and falling to the ground. At the time that occurred, Mr Tozer kicked the victim in the head. His Honour was satisfied that the kick was of sufficient violence to contribute substantially to the death of the victim. It was an intentional kick. His Honour was not persuaded that when inflicting the kick and the blows that Mr Tozer had any realisation that any real harm was likely to be caused to the deceased.
The Crown appealed against each of the sentences imposed on Mr Tozer and his three co-offenders. The Court of Criminal Appeal delivered its judgment on 30 September 2005: R v MD, BM, NA, JT [2005] NSWCCA 342. With respect to Mr Tozer, the Court concluded this:
"… the sentence imposed is in our view manifestly inadequate to punish the respondent having regard to the objective seriousness of the offence. This is notwithstanding that we accept that it was a difficult sentencing exercise arising from the acceptance of the plea of guilty to manslaughter and the conflicting accounts of what the respondent did to the deceased. But an intentional kick to the head of another person in the position where the victim was apparently injured and unable to protect himself, is a serious criminal act regardless of its purpose or the intention behind it. Where it contributes to the death of the victim, it warrants a very significant punishment to denounce such conduct and to deter others. The sentencing imposed does not in our opinion reflect the culpability of the respondent for the death of the deceased."
The Court dismissed the appeal based on its residual discretion. In large part, that exercise of the residual discretion depended upon the fact that the non‑parole component of Mr Tozer's sentence expired on 3 October 2005, just a few days after the Court delivered its judgment. In that respect, the Court said:
"In these circumstances, if the appeal were upheld and if he were to be resentenced, any further term would impose a significantly greater burden on him than if a longer sentence had been imposed initially. This is a very significant matter to be weighed in the exercise of discretion where the respondent is a young man of no prior conviction serving his first sentence in custody. Notwithstanding the gravity of the offence, such an additional punishment could not be justified in all the circumstances of the case."
In the consideration of the matters raised in this case, it is important to note these comments of the Court of Criminal Appeal because in light of them, it would be unwise to measure the seriousness of Mr Tozer's conduct by reference only to the sentence which was originally imposed.
On 21 July 2006, Mr Tozer was released on parole shortly after completing the Young Offenders program.
Just under nine months later, on 7 March 2007, he was arrested and charged with an offence contrary to s 99(2) of the Crimes Act 1900, of demanding property with menaces with intent to steal. It was said that this offence occurred whilst he was in company.
It appears that Mr Tozer and his victim had been friends for several years and were regular associates. Mr Tozer seems to have been in possession of information suggesting that the victim had been the perpetrator of a robbery during which an amount of Mr Tozer's sister's property was stolen including jewellery, a computer and sound equipment. The police investigation into the robbery did not proceed, in circumstances where Mr Tozer's sister declined to give a statement to the police in relation to the matter when she learned that the victim was identified as a suspect.
On 2 March 2007, Mr Tozer and a co-offender attended at the home address of the victim. The victim approached the front door. Mr Tozer took hold of the victim by the arm and led him into the front yard of the premises. There he produced a silver-coloured revolver from the back of his pants and, having showed it to the victim, threatened him with it. The two offenders and the victim then moved to a park across the road from the victim's house. There, Mr Tozer pointed the revolver at the victim's temple and again threatened him. The co-offender demanded that the victim arrange for his (the victim's) mother to hand over the registration of her Subaru motor vehicle to them. That vehicle had a value of between $15,000 and $16,000. Mr Tozer and his co-offender then took the victim to their car, provided him with an RTA Notice of Transfer, and demanded that the victim take the Notice of Transfer to his mother and get her to sign it. Such demand was accompanied by a further threat.
As the victim started to walk back towards the house, Mr Tozer called out to him and threatening that if he messed around "… we will come back and kill your whole family". Upon returning to the house, the victim telephoned the police. Whilst that was occurring, the victim's mobile phone rang. It was clear from material later obtained that the phone call was made by the accused.
When interviewed by the police, the accused claimed that he was elsewhere at the time, namely at the Rebels Motorcycle gang clubhouse, and that he did not leave the premises at any time relevant to the commission of this offence. In light of what later occurred, that explanation was clearly, and knowingly, false.
Mr Tozer was found guilty of this offence in the Central Local Court on 23 October 2007, and was sentenced to a period of imprisonment of 15 months commencing on 2 April 2007 and expiring on 1 April 2008 with a non-parole period of 9 months expiring on 1 January 2008.
Mr Tozer was released on parole on 1 January 2008. He completed his parole uneventfully. He remained in the community until commission of the index offence. During that time he was not charged with the commission of any further criminal offence.
[7]
Other Relevant Material
On 13 April 2015, a pre-release report was prepared by Corrective Services NSW. It gave a background of the family and social issues, previous community supervision and factors relating to offending. With respect to Mr Tozer's past conduct whilst serving his sentence of imprisonment for the index offence, the pre-release report noted that on four occasions Mr Tozer had failed a prescribed urine test showing that he consumed a range of illegal drugs, that on three occasions he had refused to provide a urine sample for testing and that he had one charge on 10 December 2013 of intimidation. There were two other relatively minor institutional offences. The report said the following of Mr Tozer:
"Records indicate Mr Tozer presented as a management issue from his entry into custody in relation to his OMCG affiliation and on 21 July 2012 the inmate was issued a written warning stating he may be nominated for placement on the Security Threat Group - Intervention Program (STG-IP) due to behavioural issues.
On sentencing Mr Tozer was initially classified as C1 inmate however due to a mobile phone being found in his cell, he was regressed to a B classification on 21 January 2013, although no formal institutional misconduct charge was actioned.
A further incident occurred between Mr Tozer and another inmate on 9 February 2013, again due to the inmate's affiliation with an OMCG and he was subsequently housed as a Protection Limited Association inmate (PRLA) for his own protection.
On 24 July 2013, Mr Tozer was placed on a segregation order due to his alleged involvement in standovers and the introduction of drugs into Bathurst CC. However, it would appear no institutional misconduct charge was forthcoming.
On 12 December 2013, Mr Tozer was involved in a serious violent incident at Goulburn CC which resulted in the injury of a staff member and required gas deployment to contain. Following this incident, the inmate was regressed in classification to A2 and transferred to the High Risk Management Correctional Centre (HRMCC) on 14 January 2014.
Whilst housed at the HRMCC records appear to indicate that Mr Tozer was compliant and he progressed through the STP-IP returning to mainstream population on 5 February 2015."
The author went on to conclude her report with the following summary and recommendation:
'"Mr Tozer has suitable post-release accommodation and employment prospects. However, the inmate's prior response to supervision is considered unsatisfactory due to both non-compliance and violent re-offending.
The inmate's recalcitrance in custody resulted in his management by the HRMCC and Mr Tozer's index offence, history of serious violence in the community and previous non-compliance has determined any future parole order would require supervision and monitoring by the METESO. Mr Tozer at this time continues to represent a significant risk of harm to the community.
With reference to this information, Mr Tozer's conduct has demonstrated a necessity for him to complete intensive therapeutic interventions to address his violence with this intervention currently available to him through his participation in the VOTP [Violent Offender Therapeutic Program]. Until the inmate has successfully completed the VOTP, Community Corrections do not recommend the inmate's release to parole."
The unit leader of Wellington Community Corrections where the report was prepared, added these comments:
"Mr Tozer's historical offending behaviour combined with his alleged OMCG affiliation and prior custodial behaviour provide the framework for the requirement of his intensive interventions in regards to his propensity towards violence and AOD.
Until such time as the inmate completes VOTP, demonstrates a period of compliance within the correctional centre environment with an improved response to AOD, he remains an unacceptable risk to the community … "
On 15 May 2015, the State Parole Authority refused to grant Mr Tozer parole. It appears from the reasons given by the State Parole Authority that they adopted the recommendations and views of the Community Corrections staff.
The decision to refuse parole was continued on 17 August 2015.
The Court has been provided with the case-note reports of the NSW Department of Corrective Services commencing on 24 December 2015 and continuing through until Mr Tozer was released from prison and subjected to an ISO.
Broadly speaking, it appears that during this period Mr Tozer did not commit any institutional offences, and has been relatively well behaved.
These case-note reports disclose that in March 2016 Mr Tozer commenced participation in the Violent Offender Therapeutic Program ('VOTP'). Participation in that program is voluntary.
It appears that on 12 April 2016 he completed the VOTP. A report of his participation in that program was prepared by Ms Grant, a psychologist dated 26 April 2016. She concluded that Mr Tozer appeared motivated to complete the program and that he participated in a cooperative and effortful manner. He apparently completed all assigned tasks demonstrating "… a sound understanding of treatment concepts". Ms Grant noted that his punctuality at the group sessions was satisfactory.
Ms Grant noted urinalysis testing conducted on 13 September 2015 and 13 February 2016 returned negative results for illicit substances or non‑prescribed medication.
She went on to describe assessments undertaken of Mr Tozer, saying this:
"The Violence Risk Scale was specifically developed to assess the risk of violence, particularly for offenders who are being considered for release from institutions into the community after a period of treatment. The VRS assesses both static and dynamic risk factors to provide a comprehensive evaluation of an individual's risk of violence, relevant treatment targets and areas of strength, and changes in risk level following treatment. The VRS variables have been rated both pre and post-treatment to assess changes in risk as a result of treatment interventions.
…
Mr Tozer was assessed using the VRS prior to treatment. …
… [this assessment] placed him in the high risk category for reoffending. Mr Tozer's risk of violent recidivism was also assessed using the VRS following treatment. His score post-treatment was again compared to that same group. Of those offenders who obtained a similar score to Mr Tozer, 34.5% were criminally convicted for a new violent offence in the 5 years following release to the community, and his risk level was assessed as being in the medium range."
It should be observed that the offences included in the VRS cohort recidivism rate include offences which would be less serious than those relevant to the HRO Act definition.
The author of the report noted that the estimates provided by VRS testing did not directly correspond to the recidivism risk of an individual offender and said:
"Whether Mr Tozer is one of the 34.5% who reoffend or the 65.5% who do not reoffend violently, is contingent upon his ability to manage his risk factors in the community."
In that part of the report headed "Conclusion and Recommendations", Ms Grant said:
"During the current period of incarceration, Mr Tozer has engaged in institutional programming to address criminogenic needs and dynamic risk factors for violence. Prior to commencing the VOTP, Mr Tozer was rated a high risk for violent recidivism. His participation in treatment was indicative of growing commitment and intrinsic motivation for change, facilitating his insight, and enabling significant treatment gains, particularly in the areas of emotional regulation and coping, relationships, helpful thinking styles, core beliefs and identification of anti-social lifestyle factors. Mr Tozer developed a practical Self-Management Plan that will allow him to apply strategies gained from the VOTP and to manage his future risks. Following treatment, Mr Tozer was rated a medium risk for violent recidivism. Further progression will be achieved when the modifications he has made become stable and consistent over time, and when he is able to apply and consolidate his risk management strategies across different contexts."
The report made a series of recommendations to enable Mr Tozer to consolidate and maintain his treatment gains.
On 11 May 2016, Community Corrections officers recommended Mr Tozer's release to parole subject to various conditions. The supervisor of Community Corrections wrote this about Mr Tozer on 11 May 2016:
"Since the submission of the previous report there appears to have been a positive shift in the inmate's attitudes and behaviour. He has not incurred any further institutional misconduct charges and urinalysis testing has not detected any contraband substance use. In addition, Mr Tozer has completed an intensive therapeutic program to address his violent behaviours which appears to have given him an understanding of the negative impacts of substance abuse. It is noted that Mr Tozer's sentence expiry date is 30 November 2016 and that he would benefit from a period of parole supervision; wherein he would have the opportunity to continue the gains that he has made in treatment."
On 31 May 2016, the case note reports recorded that Mr Tozer participated in the VOTP Maintenance and Outreach Program. The notes record that Mr Tozer was "accepting and realistic about his release and conditions" and that he actively participated in the group discussions.
About three weeks later, Mr Tozer again attended at a VOTP maintenance and outreach group meeting. It was reported that he was "highly engaged in the group discussions". It was reported that he behaved appropriately in the discussion and provided support to another group member who had received adverse news. The following comment was made:
"John disclosed that for him he handles these situations … by changing his thinking as before he would have been violent. He advised that he previously had a victim mentality, however now he accepts things don't always go the way you want/expect and he acknowledges that for some things (even though they are in the past and long ago) he is accountable for his actions and has brought it on himself."
On 15 July 2016, Mr Tozer was released to parole. At the time of his release he was issued with a formal direction to refrain from associating with members of any outlawed motorcycle gangs and associated organised crime networks. He was also issued with a Weapons Prohibition Order under s 33(1) of the Weapons Prohibition Act 1998.
After his release, Mr Tozer made contact, appropriately, with Community Corrections and also the ESO team at Blacktown.
Whilst on parole, Mr Tozer attended the VOTP Maintenance and Outreach Program. Of significance is a case note report dated 16 September 2016, which is about two months after his release. It reads:
"Interview with offender at Blacktown Community Corrections.
Offender appears pale and stressed, at times breaking down in tears. He claimed that since the weekend, when someone was shot, he has been more on edge. He stated that he had become complacent in the recent past, but will be no more - hasn't been to the gym or normal places since the weekend. Author suggested going to the police, however offender stated there is nothing they can do. He claimed they would want information that he says he doesn't have.
He said that he has to get away where nobody knows him. Author asked where? He replied that he had no idea. He related that he is jumpy, especially when he sees people with tattoos."
About three weeks later, on 17 October 2016, there was a further interview with Community Corrections staff. This was reported in the following terms:
"Offender reported he was feeling a lot better and has resumed normal activities such as gym and healthy eating.
…
He requested that if his new relationship continues to flourish, he may request to travel to Nelson Bay when weather is warmer. Offender was advised to give plenty of notice. Author asked if partner was aware of his past and current parole order. He claimed that his partner and her family are aware. Author informed that checks will have to be conducted on partner should relationship continue - he stated there would be no objection from him or his partner … "
On 22 October 2016, a home visit was conducted by staff of the Community Corrections Service to the address where the offender resided with his partner. No issues of any kind which could cause any concern to Community Corrections staff seemed to arise.
Mr Tozer's sentence expired on 30 November 2016, and as previously indicated, has continued under an ISO since that time.
A number of expert reports have been put in evidence before the Court. It is appropriate to review them.
[8]
Mr Richard Parker
Mr Parker, an expert psychologist, assessed Mr Tozer on 24 March 2016, and prepared a risk assessment report dated 29 April 2016. He was cross-examined on 2 February 2017.
Mr Parker reviewed the various risk assessment instruments that had been administered to Mr Tozer over time, including by himself. I note that Mr Parker's report was completed prior to Mr Tozer's completion of the VOTP program in April 2016. Mr Parker noted that Mr Tozer had completed the Getting Smart program in 2013. He described that program as a short substance abuse program. He noted that Mr Tozer demonstrated insight and participated appropriately. He went on to express this view:
"The actuarial instruments used in this report all place Mr Tozer at a high risk of general and violent recidivism.
Were Mr Tozer to return to a criminal lifestyle, it is likely that it will involve the following steps:
● a continuation of the criminal thinking identified earlier. This is likely to be invisible to supervising staff, but may be inferred by his lack of cooperation with supervision. While he attended regularly for supervision, in the past, his compliance was described as 'superficial'. Any sign that he views supervising staff as 'other' or 'the enemy' should be of great concern;
● associating with antisocial views combined with a lack of pro-social views, contact with outlaw motorcycle gangs would be an extreme concern;
● a return to substance abuse. This would most likely involve heavy consumption of alcohol and a range of illicit substances, such as amphetamines. Such use would be accompanied by a chaotic lifestyle, disconnected from any pro-social influences;
● an alternative pathway to a criminal lifestyle is that Mr Tozer may be threatened, or feel that he is threatened, by former associates. In this case he may resort to violence as a means to prevent an attack on himself or someone he cares about. Such an event may precipitate a return to a generally antisocial lifestyle, as he loses hope of living a lawful life."
Mr Parker expressed this prediction:
"To adapt a law abiding lifestyle, Mr Tozer will need to change the people he associates with, and the way he thinks and behaves. He'll need to stay away from his old associates and build a new network of people who are committed to a pro-social lifestyle. Mr Tozer will need to find new interests that engage him in a pro-social lifestyle. More importantly, he will need to practice using the new thinking he has developed until it becomes habitual."
[9]
Ms Jeffress
On 10 June 2016, Ms Jeffress, a very experienced officer of the Community Corrections Service ESO team, prepared a Risk Management Report.
Ms Jeffress assessed Mr Tozer by means of the Level of Service Inventory - Revised ("LSI-R") tool, which is aimed at measuring an offender's general risk of reoffending when they are in the community. The LSI-R test administered on 28 August 2016 resulted in a medium rating. Of particular note was that since the previous assessment which was undertaken on 8 August 2012, and which resulted in a determination of a Medium-High risk level of general offending, there had been a positive change in the Protective factor score, to a significant extent. It was that change which was the most influential factor in the reduction of the rating.
Ms Jeffress identified the following risks which she opined needed to be "managed/monitored" and which formed the basis of a suggested risk management plan of a kind which would form the basis of conditions which would be imposed by an ESO:
"● Criminal peers;
● Stability of relationship;
● Compliance with community supervision;
● Interpersonal aggression;
● Substance abuse;
● Criminal thinking"
[10]
Dr John Albert Roberts
Dr Roberts, a specialist psychiatrist, was appointed by the Court on the application of the State to prepare an expert report. Dr Roberts has provided a lengthy report making reference to a range of material with which he has been provided. He assessed Mr Tozer on 22 December 2016.
In his review of literature dealing with difficulties inherent in the assessment process which he undertook, Dr Roberts noted that one of the described limitations is:
"● The literature on accuracy of violent risk is predominantly postdictive rather than predictive, and much needs to be done to improve current violence prediction accuracy, using prospective study design."
I have not received a great deal of assistance from Dr Roberts' report. His summary and opinion is to the following effect:
"Mr … Tozer from evaluation of his clinical history has a lengthy history over time of irrational severe violence combined with substance use disorder and repeated offending in the absence of any definitive indicators that attempts of therapeutic intervention has had an impact.
The profession by Mr Tozer of remorse and regret would need to be considered in the context of his history of reoffending over time, committal of similar offences, recidivism displayed while in custody and his protestations of reform and good intent would need to be evaluated in the concepts applicable to the provisional diagnosis of antisocial personality disorder.
…
In summary, therefore, on the basis of the history provided both at interview and in the context of the clinical evaluation which in terms of my assessmentI emphasise as the prime method used by me in coming to this opinion, is that having regard to the chronicity of Mr Tozer's psychopathology, a genetic predisposition, a repetitious history of acts of violence, an apparent failure to respond either to punishment or treatment programs, that Mr Tozer would, on reasonable clinical psychiatric grounds, be a person who would be at risk [of] committing a serious violence offence and that a high risk violent offender extended supervision order be, on psychiatric grounds, an appropriate matter for the Court to consider."
Earlier in his report, Dr Roberts had referred to a "genetic predisposition" as being one related to the development of a psychiatric illness. The identified psychiatric illness was paranoid schizophrenia - with which Mr Tozer's brother had been diagnosed. I do not read the use of the phrase "genetic predisposition" in the summary set out above, as referring to any other behavioural trait. I am unable from the contents of Dr Robert's report to be satisfied that such genetic predisposition is relevant to an assessment of the likelihood of the commission of a serious violence offence.
[11]
Chelsea Dewson
Ms Dewson, a qualified forensic psychologist, assessed Mr Tozer on 5 December 2016 and 8 December 2016. Ms Dewson administered a number of tests to Mr Tozer and also assessed his risk by reference to the Violence Risk Scale ("VRS").
Mr Tozer gave a more detailed history about his involvement with the Rebels Outlaw Motorcycle Gang than appears in any other documents provided to the Court. He told Ms Dewson the following:
"… Mr Tozer formed connections with the Rebels OMCG. He 'patched' into this gang at the age of 21, and held numerous positions including Vice President, President, and Sergeant at Arms. According to Mr Tozer, when he initially joined the Rebels, he 'set out to be a big figure' and believes that he 'accomplished the lot' whilst in this gang. Mr Tozer highlighted the importance of image within this group and reported that regardless of the position he held, he was a highly influential member of the group. According to Mr Tozer, incarceration did not affect his status, but rather he noted that he 'ran the Rebels on the inside'.
According to Mr Tozer, his involvement in the OMCG made him feel 'important' and gave him a 'sense of belonging' reportedly because his home life was so unstable. As part of his engagement, Mr Tozer described violence as being an important aspect, which was 'fun' and a 'bonding activity' with other gang members. He described having a 'gang mentality' at the time, which saw him think of his peers over anyone else, including victims of his violence. According to Mr Tozer, he has come to understand that these peers have been unhelpful influences, and have been instrumental in his drug use and violent behaviour. Mr Tozer reported that he 'handed in his colours' meaning that he is no longer a member of the OMCG. He denies any current affiliation with this group and reportedly does not want contact with them in the future. He suggested that his motivation for leaving the OMCG was to establish a pro-social group of peers who support his good life goals."
Further history provided by Mr Tozer is also of importance. He was asked about his present adjustment to living in the community. He told Ms Dewson this:
"With regards to his present adjustment, Mr Tozer self-reports that he has currently experienced difficulty reintegrating into the community and is taking his time to adjust to this change. Specifically, Mr Tozer noted that he is not adapting properly, as he is finding it hard to establish a routine and feel 'grounded' in his new home environment. Mr Tozer described having 'money on (his) head' and informed me that the NSW Police had intercepted intelligence to suggest that one of his past associates has put a contract out for his death. As such, according to Mr Tozer, he is unable to reside with his mother as this address is well-known to his associates, and so he is currently living in a similar geographical area with two friends. Mr Tozer described feeling 'unsafe' and concerned for his safety. On a number of occasions throughout the interview, he emphasised that he perceives this to be a 'real threat'."
Ms Dewson, having administered the relevant test, determined that Mr Tozer's intellectual functioning was in the average range. As well, his verbal reasoning skills and general knowledge placed him in the average range, however he scored in the borderline range with respect to his non-verbal reasoning and visuo-construction.
Ms Dewson went on to assess, by a number of mechanisms, the risk which Mr Tozer presents. She said this:
"It is important to note caution with respect to the practice of risk assessment. Although useful in guiding decisions about risk and the management thereof, the practice of risk assessment is subject to several important limitations. Specifically, given the base-rate of violent recidivism is relatively uncommon, the prediction of such a behaviour is difficult. Secondly, actuarial risk assessments provide information that pertains to the risk posed by groups of individuals that were studied in the creation of the instruments, and it is always unclear how any one individual performed relative to the group that was studied. Further, risk assessments are by their nature limited to the data available and are bound by time. Risk assessments can change as new information becomes available, and all risk assessments have an appreciable level of error built into them. Risk assessments attempt to restrict the possibility that spurious factors, such as 'gut feeling' and prejudice can sway judgment. Although research typically highlights the superiority of structured risk assessment over unstructured clinical judgment, the evidence supporting such assessments is moderately valid only. Hence decisions about risk are best made with multiple sources of data available, in which a formal risk assessment is only one such datum …"
I will be bear these reservations in mind.
Ms Dewson considered the VRS with respect to Mr Tozer's risk. The VRS is an actuarial risk measure which is utilised to identify static and dynamic risk as well as to highlight treatment targets based on criminogenic needs related to violence and to assess changes to levels of risk after participation in treatment.
Ms Dewson formed the view, based on Mr Tozer's VOTP summary report, along with his presentation at the interviews with her, that he presented a medium risk of violent reoffending based on his post-treatment assessment. She said that she noted that Mr Tozer's risk of reoffending is similar to a group of offenders that had a violent recidivism rate of 34.5% after five years in the community.
Ms Dewson then addressed particular questions which she had been asked by the State. With respect to diagnosable psychological conditions, Ms Dewson concluded that Mr Tozer met the diagnostic criteria for opioid use disorder which was seemingly in remission, in circumstances where Mr Tozer continued to be treated with Suboxone, an opioid substitute. She went on to express the view that Mr Tozer appears to have met the criteria for ADHD in his adolescence, but that he no longer experienced any related symptoms.
She assessed Mr Tozer clinically as being at medium risk of violent reoffending. She identified the factors relating to that risk as being:
"… substance abuse; criminal attitude; criminal peers; and cognitive distortion."
She expressed the view that given Mr Tozer's history of violent offending, it was her estimate that Mr Tozer was most likely to pose a risk of reoffending within the next one to two years whilst his new support network was still being formed.
In terms of prognostication, she said this:
"If Mr Tozer continues to function as he is reportedly now, it is likely that his risk will further reduce associated with sobriety, positive peer influences, positive community participation and healthy pro-social attitudes. However, I would expect Mr Tozer's risk to increase should he return to substance abuse or antisocial peers. Further, exposure to significant stressors may make it difficult for Mr Tozer to cope and these may also increase his risk, specifically as it pertains to substance abuse to cope emotionally."
Ms Dewson went on to opine that the dynamic risks of Mr Tozer reoffending could be managed in the community under an ESO. She said:
"… it is important that he has some supervision in the community. This is both because of his lengthy period of incarceration as well his failures on parole previously. Further to this, although he appears to have made positive changes, his capacity to utilise these skills and maintain these changes is as yet untested in any significant way, especially in the community where he will be exposed to a variety of risk."
Ms Dewson expressed the view that a period of two years would be a sufficient period to allow for further monitoring and containment pursuant to an ESO.
[12]
Threshold Question Supervised Violent Offender
The first question which must be determined is whether, within the meaning s 5J of the Act, Mr Tozer is a supervised violent offender.
It is conceded by Mr Tozer in his submissions that he falls within the definition of a violent offender.
The proceedings were commenced on 27 September 2016, at which time Mr Tozer was on parole and under supervision for the offence of causing grievous bodily harm. That offence, which is contrary to s 33(1)(b) of the Crimes Act, falls within the definition of a serious violence offence in accordance with s 5A of the HRO Act.
Accordingly, Mr Tozer was, at the time when the Summons was filed, a supervised violent offender, and the State was entitled to seek orders of the kind set out in the Summons with respect to him.
[13]
Gateway Question High Risk Violent Offender
It is a second threshold or "gateway" matter for the State to establish that Mr Tozer is a high risk violent offender.
Section 5E, referred to above, notes that an ESO with respect to a high risk violent offender can only be made by the Court "if and only if the offender is a high risk violent offender". Given those words, in particular "if and only if …", care must be taken by the Court in approaching this issue: Gallagher at [34].
Mr Tozer conceded that the evidence before the Court established that there was a risk of his committing a further offence if he is not supervised. However, the defendant does not concede, and argues against a finding, that the State has demonstrated that he poses an unacceptable risk of committing a serious violence offence, let alone that this has been established to a high degree of probability.
Mr Tozer's criminal history shows that he committed the offence of manslaughter on 31 December 2002, which was a few months before his 18th birthday. This was a serious violence offence. He committed the Index offence of causing grievous bodily harm with intent to cause grievous bodily harm in March 2011, when he was almost 26 years old. The period of time between these two serious violence offences was about nine years. The offence which he committed during that time, of demanding money in company with menaces, whilst relevant in considering the various issues on this application, does not constitute a serious violence offence as that term is defined in the Act.
Whilst in custody for the most recent serious violence offence, Mr Tozer faced a number of institutional charges which essentially related to drug usage and failing to undergo urinalysis. There is one charge of intimidation - the details of that charge are not before the Court. However, from what can be gleaned from the evidence, the conduct giving rise to the charge of intimidation would not constitute a serious violence within the meaning of the legislation.
Actuarial tests administered prior to Mr Tozer's undertaking the VOTP concluded that he was at high risk of reoffending. However, to simply rely upon this test result would place undue emphasis on the plaintiff's past history and would not take adequate account of Mr Tozer's present state. It is that state, at the time of hearing of these proceedings, to which the Court must have regard. There are a series of matters which are favourable to Mr Tozer which need to be considered in determining whether he is now a high risk violent offender.
The first of these is that he undertook the VOTP, and successfully completed it in 2016. The purpose of that program is to assist participants in understanding the causes of their past conduct and provide them with mechanisms upon which they can rely to avoid engaging in violent conduct.
Secondly, is that from the time, when Mr Tozer was transferred to the HRMCC in January 2014, his attitude and behaviour had changed significantly so that throughout his remaining time in custody and whilst on supervision, he has not been charged with any institutional or criminal offence. That a period of three years, Mr Tozer has not committed any institutional or criminal offences demonstrates a radical change for the better in his attitude and behaviour.
Thirdly, Mr Tozer was released and successfully completed his parole. As well, he has successfully completed a period of being subject to an ISO. He has not breached the conditions of either his parole or the ISO in any way which has resulted in any action against him. On the contrary, the reports from those who have supervised him during that period indicate that he has generally been compliant with reporting and other conditions on the parole order and the ISO, and he has had good and open communications with the ISO team.
Fourthly, after completing the VOTP, Mr Tozer's risk of reoffending has been re-tested and it has been reduced. On the most recent VRS testing, he is regarded as falling in the medium range for violent reoffending.
It is necessary to say something about this result. As indicated above, the VRS measures the risk of reoffending by reference to a cohort of offenders. By reference to that cohort, which it is said is sufficiently representative of Mr Tozer, statistics show that, putting it generally, two thirds of that group will not reoffend within five years of release, and about one third will. The test result does not enable this Court to draw a conclusion that Mr Tozer will fall into one or other of those majority or minority groups.
Importantly, the offences which are recorded for that cohort of violent offences include offences which are not of sufficient seriousness to be classified as a serious violence offence in accordance with the HRO legislation. It necessarily follows that the risk of Mr Tozer committing an offence of serious violence is lower than the figure provided by the VRS test score of 34.5%, although it is not possible to say by how much that specific number may be reduced.
Fifthly, there is evidence before the Court which it ought to accept, that Mr Tozer has ceased his association with members of the Rebel Outlaw Motorcycle Gang. His senior counsel tendered, without objection, a statutory declaration which he made in July 2015, which attested to the fact that he had "handed in his colours on 27 June 2015". Mr Tozer gave as one of the reasons for this, "… my personal future plans". Case note reports corroborate the fact that he had returned his colours and further, that he had not been observed associating with any OMCG member whilst in custody after that time. Compliance with conditions imposed on his parole order and under his ISO also confirm that he is no longer associating with any members of the Rebel OMCG.
Sixthly, Mr Tozer has, to a significant extent, addressed his substance abuse which was identified, particularly in the report of Dr Parker, as an ongoing risk factor.
The evidence demonstrates that at the time of the commission of the index offence, and the earlier offence of manslaughter, Mr Tozer was abusing alcohol and illegal substances. They were relevant to, and influential in, the commission of those offences, and in the surrounding circumstances.
Whilst in custody for the index offence, and on parole for the first offence, when tested, it was clearly demonstrated that Mr Tozer was continuing to use illicit substances on a regular basis. However, since the start of 2014, testing has not produced any positive result for illicit substance use.
There are two recent occasions when notes record that Mr Tozer has made admissions which raised concerns about his ongoing illicit substance use.
On 28 November 2016, Mr Tozer admitted to his supervising officer that he had had a "joint". That admission occurred in circumstances where, when Mr Tozer attended at the Blacktown Corrections Centre and was informed that the corrections officer was planning to drug test him (Mr Tozer), he volunteered that he had had a joint a couple of days ago. As well, Mr Tozer mentioned that he had had two alcoholic drinks some time back "… but did not like it and hasn't had anything since". Mr Tozer was directed by the community service officer to engage with alcohol and other drug ('AOD') counselling in the community and provided with a referral for him to do so.
This admission was not regarded as sufficiently serious to be dealt with as a breach of Mr Tozer's conditions of supervision.
Pursuant to the direction which he was given, Mr Tozer obtained a referral for AOD counselling. On 9 November 2016, Mr Tozer reported to his supervisor that he had attended for AOD counselling but that there had been some difficulties with it.
On 10 November 2016, Mr Tozer informed his supervisor that, he had also had "a couple of oxyies" - this is a reference to Oxycontin. The other contextual matter to which it is appropriate to refer with respect to this disclosure was that it occurred at a time when a court hearing was due regarding the imposition of a further ISO.
Regular checks in November, December and early January did not reveal any further illicit substance abuse. It is important to note that there is no suggestion in any of the notes, or in any of the material put before the Court, that Mr Tozer has been imbibing alcohol on any occasion other than the two drinks to which he admitted. Given that in the past, his intake of some illicit drugs was associated with his alcohol intake, this ought be regarded as a positive factor in his favour.
In weighing up this abstinence, although incomplete, from illicit substance use, it is appropriate to keep in mind that it has occurred during a period of supervision where Mr Tozer has been able to discuss with his supervisor the circumstances leading up to his substance use, and has had the ability to be counselled with respect to it. That is a relevant factor to keep in mind because the risk which the Court is obliged to assess is one of Mr Tozer committing a serious violence offence if he is not kept under supervision.
The seventh factor which is relied upon by Mr Tozer is that he is in a relationship which can properly be described as a committed and caring one with a partner from whom he receives a good deal of support. Moreover, Mr Tozer points to the fact that he receives a good deal of support and encouragement from his partner's family, and also from his mother.
There is no suggestion that Mr Tozer's current partner, nor her family, were known to Mr Tozer or formed part of any circle of friends and acquaintances at the time he committed the index offence, or at any earlier point in time.
There is no doubt that a stable and committed relationship is a factor which bodes well for the future. It appears that Mr Tozer's partner is well informed about his background, and his attempts to comply with various ISO conditions. She has attended a number of sessions between Mr Tozer and his supervisor. However, the Court had no evidence at all from Mr Tozer, or from his partner, which enabled it to assess directly, and in a confident fashion, the real strength of the relationship, and therefore its likely effect on Mr Tozer's future. Whilst it is a matter which points positively for the future, it is not a matter upon which the Court can, in the absence of such evidence, place any great reliance.
Ensuring the safety and protection of the community is the primary object of the HRO Act. In considering whether the State has satisfied the Court that the defendant Mr Tozer is a high risk violent offender, it is of the essence that the Court has regard to the objects of the HRO Act, because what it is doing is determining whether Mr Tozer poses an unacceptable risk of committing a serious violence offence if an ESO is not made.
The material which has been canvassed certainly indicates, and it is accepted by Mr Tozer, that he is at risk of committing a further offence. But the objective of ensuring the protection of the community does not require the Court to make a decision which means that where any such risk occurs, an ESO must be made. On the contrary, it is only if the risk of committing a serious violence offence is unacceptable.
Nevertheless, in coming to a conclusion, the safety and protection of the community remains the most important matter for consideration.
The Court has taken into account, and relied upon, the material contained in the expert reports obtained by order of the Court and obtained as a consequence of other assessments. Each of these has been given weight. The report of Dr Roberts is not particularly helpful in the Court's evaluation. However, the overall picture with which the Court has been presented is that when assessed at an early stage, Mr Tozer was considered by experts and by reference to actuarial or statistical assessments, as being at high risk of reoffending. More recently, prior to the completion of his custodial sentence, and by reason of courses which he has undertaken, Mr Tozer has been consistently assessed across a variety of statistical tests, and by the experts consulted, to be at a medium risk of reoffending for violent offences.
This material has informed the Court's assessment of whether or not it ought find Mr Tozer to be a high risk offender.
There is no doubt that Mr Tozer can be managed reasonably and practicably in the community. What has been occurring in the last few months demonstrates this beyond argument. He has attempted to participate in AOD counselling, and has participated in courses of medication prescribed for him as a consequence of AOD counselling. As has earlier been noted, Mr Tozer has been generally compliant with the obligations imposed on him whilst on parole for the index offence, and whilst subject to interim ISOs.
There is a dispute between the State and Mr Tozer's counsel as to whether what is observed in his criminal history constitutes a pattern of offending behaviour. The extent of his criminal history has been earlier recounted. The difference in the nature of the offences, the lack of repetition of any one offence, or of any offences over time, and the sporadic nature of the offending leaves me to conclude that it is not correct to describe Mr Tozer's past offending as a "pattern". Nevertheless, full weight has to be given to his criminal history and each offence within it.
Furthermore, I have had regard to the more dynamic factors which have been addressed above.
[14]
Discernment
The task of deciding whether Mr Tozer is a high risk violent offender is an evaluative one which requires the Court to take account of all the material that has been placed before it. Then the Court asks whether it is satisfied to a high degree of probability that Mr Tozer poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.
As I have said earlier in State of NSW v Sancar [2016] NSWSC 867 at [75], the evaluative task, and a finding of unacceptability of risk, includes two necessarily predictive elements. The first is the likelihood that the risk will eventuate, and the second is the gravity of the risk. Harrison J said in State of NSW v Pacey [2015] NSWSC 1983 at [43], this:
"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."
It is also necessary to observe that the task in which this Court is engaged , being an evaluative one about prediction of future risk, is a task upon which minds may differ. The Court can never be certain that an identified risk will come to fruition in the future, nor can it ever be certain that an identified risk will not come to fruition in the future. It has to make an evaluative decision based upon materials presently available about Mr Tozer's future behaviour.
Having regard to the past criminal history of Mr Tozer, the length of time he has spent in custody, his behaviour in custody and his recent significant changes in that behaviour, I can only conclude that his reintegration into the community will not be risk free.
In that context, the HRO Act is not addressed to every possible act of violence which may be committed by an offender who is released into the community without supervision. It is concerned only with the commission of one or more serious violence offences. The statistical categorisation of Mr Tozer into a medium risk of reoffending, with respect to violent offences, does not without more, and of itself, support a conclusion that Mr Tozer poses an unacceptable risk of committing a serious violence offence.
The words "unacceptable risk" carry their ordinary meaning in the context of the objects of the legislation, namely ensuring the safety and protection of the community.
The statistically assessed level of risk, the opinions of the expert psychologists, and the opinions of other expert reports do not persuade me that Mr Tozer presents an unacceptable risk of committing a serious violence offence. When combined with the other positive factors to which reference has been made, I am not satisfied that such risk as exists of Mr Tozer committing a serious violence offence, ought be categorised as unacceptable. That evaluation depends upon the ordinary civil onus. When considering my conclusion by reference to the terms of the HRO Act, namely, that before finding Mr Tozer to be a high risk violent offender, I must be satisfied that Mr Tozer poses an unacceptable risk of committing a serious violence offence to a high degree of probability, I am wholly unpersuaded that the case put forward by the State meets such criteria.
Accordingly, I conclude that the State has failed to satisfy me of the gateway requirement, namely, that Mr Tozer is a high risk violent offender. It follows that I am obliged to dismiss the application.
In those circumstances, it is inappropriate to consider the other contested issues in the proceedings which relate to the conditions of the ESO, and the length of time it ought to be in place. Since any ESO is designed to address the risks of an individual, and to ameliorate those risks, where the gateway question is not answered favourably to the State, there is no adequate baseline to consider these issues.
[15]
Conclusion
The State has failed to persuade the Court that Mr Tozer ought be found to be a high risk violent offender.
It follows that the application for an ESO must be dismissed.
[16]
Orders
I make the following orders:
1. Further Amended Summons filed 2 February 2017 is dismissed.
2. Order the plaintiff to pay the defendant's costs.
[17]
Amendments
21 February 2017 - Review amendments
21 February 2017 - Amended orders.
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: 21 February 2017