By a summons filed on 7 June 2021 the State of New South Wales (the plaintiff) seeks orders that:
1. pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), the defendant be the subject of an extended supervision order (the ESO) for a period of 18 months; and
2. pursuant to s 11 of the Act, the defendant be directed to comply with a number of conditions for the period of the ESO.
On 21 July 2021 I made an interim supervision order in respect of the defendant. [1] I also made orders appointing two psychiatrists to examine the defendant and provide reports. In that regard I have now received reports from Dr Rodriguez and Dr Singh.
Counsel for the defendant conceded that all of the statutory prerequisites for the making of an ESO set out in s 5B of the Act were satisfied. Counsel also conceded that it would be open to me to be satisfied that an ESO should be made. Counsel's principal focus at the hearing was directed towards a number of the conditions sought by the plaintiff. In that regard, I heard oral evidence from both Dr Rodriguez and Dr Singh.
Needless to say, despite the position taken by counsel for the defendant, I must nevertheless be satisfied that it remains a matter for me to determine whether an ESO should be made.
On the whole of the evidence, I have come to the view that an ESO should be made for a period of 18 months. Given counsel's concessions, my reasons can be shorter than might otherwise have been necessary, and I have set them out by reference to the helpful written submissions provided by both counsel.
In order to make an ESO, I must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. The term "high degree of probability" indicates a standard which is higher than the civil standard, but less than the criminal standard. [2] The term "unacceptable risk" is to be given its ordinary everyday meaning, bearing in mind that the primary purpose of the Act is to ensure the safety and protection of the community. Pursuant to s 9(2), the safety of the community must be the paramount consideration in making that determination. I have had regard to the mandatory considerations set out in s 9(3) of the Act, along with any other matter(s) that I consider relevant.
State of NSW v Vu [2021] NSWSC 1282 | Case summary | Zoe
The defendant is 53 years of age and was born in Vietnam. He came to Sydney as a refugee 1986 at the age of 20. His criminal history contains two convictions for violent offences.
The first offence occurred on 20 June 1997, at which time the defendant and the victim were employed in the same factory. A fellow worker had told the defendant that the victim had been spreading rumours about his (i.e. the defendant's) character. The defendant then confronted the victim and asked for an apology. An argument ensued, following which the defendant went to another part of the factory, picked up a meat cleaver and concealed it in his trousers. He then returned to the victim and, without warning, lifted the meat cleaver and struck the victim twice to the head. The victim sustained lacerations to the head and chin requiring suturing. The defendant was sentenced to periodic detention for a period of 12 months in respect of this offending, and successfully completed that order.
The second offence was the murder of the defendant's then partner, Yong Ling. Barr J, who sentenced the defendant, outlined in his reasons for sentence that the defendant and Ms Ling had commenced a relationship in 2000, following which Ms Ling gave birth to their son in June 2001. Over a period of time, the defendant began to act violently towards Ms Ling. In September 2002, Ms Ling reported to police that the defendant had assaulted her multiple times. An apprehended violence order was issued for her protection, preventing the defendant from going to her residence.
On 23 July 2003, in breach of that order, the defendant arrived unannounced at Ms Ling's premises and gained entry via the balcony. Having done so, he violently assaulted Ms Ling and left her unconscious on the floor. Ms Ling was subsequently found by ambulance officers bleeding from the head, and in severe shock. She had sustained multiple fractures as a consequence of the defendant assaulting her. She remained in intensive care for a period of more than four months before losing her life.
The defendant originally pleaded not guilty to Ms Ling's murder, but guilty to manslaughter. He changed his plea to guilty of murder part way through his trial.
In sentencing the defendant, Barr J found that he had attacked Ms Ling with an intention to inflict grievous bodily harm. His Honour found no evidence of contrition, and concluded that the offending had been aggravated by the fact that it was committed in breach of the apprehended violence order put in place for Ms Ling's safety.
The defendant was sentenced by Barr J to 18 years imprisonment with a non-parole period of 13 years and 6 months. His non-parole period expired on 22 January 2017, and his sentence expired on 22 July 2021.
Notwithstanding his conviction and sentence for Ms Ling's murder, there is evidence that the defendant has demonstrated an inability to accept responsibility for that offending, and an inability to demonstrate any real insight into such offending. Notes taken at various times when the defendant was in custody indicate that he has sought to ascribe blame to Ms Ling, and has protested his innocence.
Dr Rodriguez noted that the defendant continued to minimise his conduct, to blame Ms Ling, and to make disparaging remarks about her. The defendant went so far as to complain that Ms Ling had brought embarrassment and shame upon himself and his family. The observations of Dr Rodriguez in this respect are generally consistent with those of Dr Singh, to whom the defendant recounted a history of his offending towards Ms Ling in terms which were fundamentally at odds with, and which seriously understated, his conduct.
There was a further incident in custody on 23 January 2016 when the defendant struck another inmate to the face with a guitar. Although the defendant was charged by police, that charge was later withdrawn and dismissed before the Local Court. However, the defendant pleaded guilty to an internal disciplinary offence, saying that in acting as he did he had "taught [the victim] a lesson".
From about 2012, whilst in custody, the defendant commenced to accrue a number of misconduct charges, a majority of which involved allegations of violence. That said, the vast majority of these offences occurred prior to the time at which the defendant came to be managed for his mental health. The circumstances in which that management arose require some elucidation.
Before being sentenced by Barr J, the defendant had been assessed by Dr Westmore, psychiatrist, who could find no evidence of psychiatric illness or personality disorder. However, in the context of the accumulation of the misconduct charges to which I referred earlier, the defendant was observed to be expressing thought processes of concern. As a consequence, he was referred for a psychiatric assessment.
That assessment was carried out by Dr Dayalan on 30 January 2017. Dr Dayalan concluded that the defendant suffered from a chronic psychotic illness, most likely to be schizophrenia. That diagnosis has since been confirmed by both Dr Rodriguez and Dr Singh. The defendant has denied experiencing psychotic symptoms at the time of murdering Ms Ling. However, Dr Rodriguez expressed the view that at the time of that offending, it was possible that the defendant was experiencing a prodromal phase of psychotic illness.
Following the diagnosis of Dr Dayalan, the defendant's condition was managed in custody in terms which are summarised in a report of Dr Elliott of 27 June 2019. Dr Elliott was strident in his opinion that it was essential that the defendant remain on antipsychotic medication indefinitely, in circumstances where he considered that the defendant was at a high risk of non-compliance with treatment in the community. Dr Elliott expressed concern as to the defendant's view that he considered antipsychotic treatment to be unnecessary. Dr Elliott's observations were consistent with those of Dr Anderson who, in a report of 12 June 2020, made reference to the fact that the defendant did not perceive that he had a mental illness, and questioned the need for medication in the long term.
Both Dr Rodriguez and Dr Singh have confirmed the presence of ongoing psychotic symptoms. A report of Dr Tanveer also made reference to the defendant displaying auditory hallucinations and delusional thoughts.
There is some degree of conflict in the evidence regarding the defendant's position as to ongoing treatment. Dr Rodriguez formed the impression that the defendant did not wish to continue psychiatric treatment, an observation which was consistent with that of Dr Elliott and Dr Anderson. However, Dr Singh reported that the defendant had said to her that he had found the support of his mental health team helpful, and that he would continue to accept treatment from them even if he was not compelled to do so. However, Dr Singh appeared to have been somewhat sceptical about these statements, expressing the view that in circumstances where the defendant was unable to articulate how medication and treatment helped him, his insight into his mental health was limited.
Although the defendant participated in a number of educational courses in custody, and as a consequence improved his English language skills, his engagement with other programs was mixed. He commenced the Custody Base Intensive Treatment (CUBIT) program in 2017 but was suspended from the program after a period of five months due to aggressive and intimidating behaviour. He then withdrew from the program, and took issue with the fact that he was, in fact, a sex offender. During the period in which he was a participant in the program, the defendant expressed what been described as delusional and persecutory ideas. He also expressed strongly held cultural views about hierarchy and traditional gender roles. He was assessed in the course of that treatment as being at an above average level of risk.
The defendant was released on parole on 16 September 2020. Generally speaking, his response to supervision has been positive. He is in receipt of a Disability Support Pension on account of his mental illness, and lives independently. His elderly mother and his family are based in Sydney. Whilst he has denied an intention to enter a new relationship, there is some evidence of an attempt to do so.
In a risk assessment report, Mr Ardasinski, Psychologist, concluded that the defendant fell into the medium risk category for violent offending, but in the high risk category of repeat of domestic violence if he were to enter a new intimate relationship. Mr Ardasinski identified the defendant's mental health as a factor which increased his vulnerability, and which necessarily had to be taken into account in assessing his risk.
Dr Rodriguez concluded that the defendant fell into the high risk category in terms of future violent offending. He also concluded that the defendant manifested a number of high risk factors for intimate partner violence. In terms of sexual re-offending, Dr Rodriguez assessed the defendant as falling at a low level. The ultimate opinion expressed by Dr Rodriguez was that the defendant was at an increased risk of committing a further serious offence in light of a series of factors including his history of serious violence, violent attitudes, inflexible views towards women, a major mental illness, and limited insight into his offending.
Dr Singh concluded that the defendant had a moderate degree of historical risk factors, and that he presented with a moderate risk of further violence if he resided in the community without supervision and support. However, she acknowledged that his risk of intimate partner violence qould be higher in the event that he formed a new intimate relationship.
Having taken into account all of these factors, I am satisfied that the defendant poses an unacceptable risk of committing another serious offence if an ESO is not made. In reaching that view, I have had regard to all of the mandatory factors in s 9(3) of the Act, and have had particular regard to the opinions of Mr Ardasinski, Dr Rodriguez and Dr Singh to which I have referred. Bearing in mind that conclusion, and also bearing in mind that the safety of the community is the paramount consideration, I am satisfied that I should exercise the discretion to make the ESO sought.
In reaching those conclusions, I have taken into account the fact that the defendant is a diagnosed schizophrenic which, in the opinion of Dr Singh, is a factor which increases his risk of violent re-offending. Further, whilst there is evidence that the defendant has generally complied with his supervision to date, there is also a history of his having a lack of insight into his offending, a tendency to blame Ms Ling, and an expressed self-belief that he does not require treatment. In these circumstances, I am satisfied that an ESO is required to manage the defendant's general risk in the community.
[2]
THE CONDITIONS IN DISPUTE
As I have noted, the defendant takes issue with a number of the conditions that the plaintiff seeks to impose. [3]
[3]
Proposed conditions 4 to 7
These conditions are proposed by the plaintiff in the following terms:
4. If a DSO forms a reasonable suspicion that the defendant has breached a condition of his ESO or committed any other criminal offence, the DSO may direct the defendant to wear electronic monitoring equipment and be subject to electronic monitoring.
5. If a DSO forms a reasonable suspicion that the defendant has breached a condition of his ESO or committed any other criminal offence, the DSO may direct the defendant to provide a weekly plan (called a schedule of movements) and to provide this 3 days before it is due to start.
6. If the defendant has been directed to provide a weekly plan under condition 5 and the defendant wants to change anything in one of his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period.
7. If the defendant has been directed to provide a weekly plan under condition 5, the defendant must not deviate from his approved schedule of movements except in an emergency.
Dr Singh accepted that the electronic monitoring contemplated by condition 4 may act as a deterrent in some respects. However, she expressed the view that whilst such monitoring would have an impact on short term recidivism, it was of limited utility overall in addressing the defendant's ongoing risk. [4]
Dr Rodriguez supported the imposition of condition 4 on the basis that it provided "another layer of supervision". However, in expressing that view, Dr Rodriguez also expressly acknowledged the opinions of Dr Singh, and accepted that electronic monitoring may not "necessarily… add a lot of value". His ultimate opinion was expressed in terms that he "would support electronic monitoring rather than not support it", in circumstances where the defendant's previous principal offending was committed in breach of an Apprehended Violence Order. [5]
In my view, proposed condition 4 should not be imposed. The only support for its imposition in the expert evidence is the opinion of Dr Rodriguez which was, to say the least, somewhat equivocal. I accept the opinion of Dr Singh, the effect of which was that such monitoring would provide little benefit in terms of the defendant's ongoing supervision.
Proposed conditions 5, 6 and 7 should remain. They are, in my view, a necessary adjunct to the supervision of the defendant's behaviour.
[4]
Proposed conditions 10, 11 and 19
Condition 10 in the terms proposed by the plaintiff is as follows:
10. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.
The defendant's proposed condition is in the following terms (the italicised portion representing the defendant's addition):
10. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO. A DSO must not unreasonably withhold approval for the defendant to attend his sister, Mai Vu's address, or his mother's address.
Condition 11 in the terms proposed by the plaintiff is as follows:
11. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address) without the prior approval of a DSO.
The defendant's proposed condition is in the following terms (the italicised portion representing the defendant's addition):
11. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address) without the prior approval of a DSO. A DSO must not unreasonably withhold approval for the defendant to permit his family members, Nhien Pham, Mai Vu and Khin Nguyen to visit his approved address.
Condition 19 in the terms proposed by the plaintiff:
19. The defendant must not associate with any person or persons specified by a DSO where the DSO forms the view, based on reasonable grounds, that association with a particular person or persons would increase the risk of the defendant committing a serious offence.
The defendant's proposed condition is in the following terms (the italicised portion representing the defendant's addition):
19. The defendant must not associate with any person or persons specified by a DSO where the DSO forms the view, based on reasonable grounds, that association with a particular person or persons would increase the risk of the defendant committing a serious offence. A DSO must not unreasonably withhold approval for the defendant to associate with his family members Nhien Pham, Mai Vi and Khin Nguyen.
In addressing proposed conditions 10 and 11 for the purposes of the preliminary hearing, I expressed the view that the amendments sought by the defendant were overly prescriptive. I accept the submission of counsel for the defendant that the defendant's family members are of obvious support to him. However, in terms of the defendant's suggested amendments, I must impose conditions on the fundamental assumption that any DSO will act reasonably. [6] Accepting that to be the case, I remain of the view that the amendments proposed by the defendant are both overly prescriptive and unnecessary.
[5]
Proposed condition 14
Proposed condition 14 is in the following terms:
14. The defendant must comply with any reasonable direction from a DSO not to go to a particular place or district.
Dr Singh described this condition as "reasonable …. but in some ways unnecessary". [7] Dr Singh pointed out that if the conditions were otherwise sufficient to prevent the defendant from seeing an intimate partner in a particular geographical location, and assuming that the remaining conditions restricted the geographical locations in which the defendant could be present, condition 14 may not be warranted. [8]
Dr Rodriguez supported the imposition of this condition. In doing so, he emphasised the defendant's "entrenched violent attitudes towards women", [9] and expressed the view that the identified risk of violence would increase if the defendant were to develop an intimate relationship with a woman. In expressing these views, Dr Rodriguez made it clear that he did not regard the defendant's propensity to violence to be secondary only to his psychosis. [10]
Counsel for the defendant highlighted the opinions of Dr Singh, and submitted that they supported a conclusion that the condition lacked any real utility. Counsel also emphasised that the defendant had made significant progress under his supervision thus far, to the point where the imposition of this condition was not warranted.
Whilst I did not impose this condition at the preliminary hearing stage, I have come to the view that on the whole of the evidence, it should be imposed. In reaching that view I am particularly mindful of the opinion of Dr Singh that the defendant's risk would increase if he were to form a new intimate relationship. Given that, and bearing in mind the defendant's previous violent offending towards Ms Ling which resulted in her death, I accept the submission of counsel for the plaintiff that the condition provides, as it were, an additional "layer" of protection. It would, for example, prevent the defendant from attending a partner's premises, her place of work, or any other location at which her presence was likely. Such restrictions, in my view, are warranted in light of the defendant's history.
[6]
Proposed condition 40
Proposed condition 40 is in the following terms:
40. The defendant must take medications that are prescribed to him by his healthcare practitioners, and only in the manner prescribed.
Dr Singh expressed the view that if the defendant was to become non-compliant in respect of his medication, his risk of future violence may increase substantially. Whilst recognising that the imposition of a condition in these terms would curtail the defendant's autonomy, and that such autonomy was an element of any treatment, Dr Singh expressed the view that in terms of forensic psychiatry, the ultimate goal is to balance autonomy with treatment, with a view to ensuring the safety and well-being of the defendant, as well as the community as a whole. [11]
Dr Singh emphasised that the efficacy of any therapeutic modality, specifically medication, is dependent upon compliance, and that compliance, in turn, entails adhering to directions as to the amount of medication, and the frequency with which it is prescribed. Put simply, Dr Singh's evidence was that if medication is not taken as prescribed, its efficacy reduces. [12]
Dr Rodriguez generally agreed with Dr Singh's views. He described the absence of a requirement to take medication as a matter of "significant concern". [13]
Counsel for the defendant acknowledged the importance of the defendant taking prescribed medication, but submitted that this condition "trespasses on the corporeal autonomy of the defendant". The essence of counsel's submission was that Condition 41 addressed the issue of medication by requiring the defendant to notify a DSO immediately upon ceasing or declining to take prescribed medication, such that condition 40 was effectively rendered otiose.
In my view, proposed condition 41 complements proposed condition 40. The evidence of Dr Singh and Dr Rodriguez is unequivocally supportive of the imposition of the latter. Both specialists referred expressly to their respective concerns if the defendant did not take his medication. Dr Singh specifically addressed the extent to which the condition represented an encroachment on the defendant's autonomy. The effect of her evidence was that such an encroachment was necessary as part of the defendant's effective treatment.
It follows that in my view, proposed condition 40 should be imposed in the terms sought by the plaintiff.
[7]
ORDERS
For the reasons given I make the following orders:
1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to an Extended Supervision Order for a period of 18 months commencing 12 October 2021.
2. I direct the defendant, for the period of the Extended Supervision Order in (1) above, to comply with the conditions set out in the Schedule annexed to this judgment.
Schedule of Conditions (114167, pdf)
[8]
Endnotes
State of New South Wales v Vu (Preliminary) [2021] NSWSC 902.
Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
It is noted that in light of my conclusion as to proposed condition 4, there will be a discrepancy between the numbering of the conditions proposed by the plaintiff, and the numbering of the conditions that I have determined should be imposed.
T15.11 - T15.42.
T16.31 - T16.36.
New South Wales v Pearson (Final) [2021] NSWSC 775 at [71].
T11.9 - T11.14.
T11.9 - T11.14.
TT13.10- T13.13
T12.35 - T13.13.
T5.19 - T7.41.
T8.40 - T9.11.
T8.34 - T8.38.
[9]
Amendments
13 October 2021 - Amendment made to Schedule of conditions at para. [39] to include the words ", and".
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Decision last updated: 13 October 2021