By a summons filed on 7 June 2021, the State of New South Wales (the plaintiff) seeks orders pursuant to ss 7(4), 10A,10C and 11 of the Crimes (High Risk Offenders) Act 2006 (the Act) against Hung Khawh Vu (the defendant).
The following affidavits were read in the plaintiff's case without objection:
1. Stefan Skopelja of 7 June 2021; and
2. Stefan Skopelja of 23 June 2021.
The defendant read the following affidavits without objection:
1. Claire Stimpson of 8 July 2021;
2. Claire Stimpson of 12 July 2021;
3. Dzung Gibson of 12 July 2021; and
4. Todd Davis of 12 July 2021.
The deponents of the affidavits were not required for cross-examination and the entirety of the evidentiary material was contained in a Court Book which was marked exhibit A.
Counsel for the defendant conceded that all statutory prerequisites to the making of an order had been met. Accordingly, the sole issue is whether or not I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. Counsel for the defendant expressly conceded that if I reached that level of satisfaction, there were no discretionary factors which would militate against the making of the orders sought.
I bear in mind the fact that in considering whether or not I am so satisfied, and in considering whether or not to make the orders sought, the safety of the community is the paramount consideration. I am also mindful of the necessity to take into account the mandatory factors set out in s 9(3) of the Act. I do not propose to refer to each and every one of those individual factors, but I make it clear that in reaching my conclusions, I have taken all of them into account.
In terms of the evidentiary background, it is appropriate to firstly address the history of the defendant's offending. Within that history, there are two principal criminal offences of which the defendant has been found guilty. There is also a third matter, which arose out of an incident in custody, in respect of which he was initially charged. That charge was subsequently withdrawn. The incident was however, addressed in disciplinary proceedings within the correctional system.
The first of the principal instances of offending occurred in June 1997. At that time, the defendant and the victim were co‑workers. The defendant had been told by another co-worker that the victim had been spreading rumours about his (i.e. the defendant's) "character". This caused the defendant to approach the victim at work, asking for an apology. An argument developed between them. The defendant had secreted a meat cleaver in his trousers and, without warning, struck the victim on his head and chin, before being restrained by another employee. The defendant was charged with malicious wounding and was dealt with in the Liverpool District Court, where he was sentenced to imprisonment for 12 months to be served by way of periodic detention. He satisfactorily completed that sentence.
In 2000, the defendant commenced a relationship with Ms Yong Ling. Years of turbulence in their relationship culminated in an incident in 2003 where the defendant violently assaulted Ms Ling to the point where, having beaten and kicked her repeatedly, she lay helpless on the floor. Ms Ling was left unconscious, and subsequently died in hospital.
The defendant was charged with the murder of Ms Ling. He initially pleaded not guilty to murder and guilty to manslaughter, only to change his plea to one of guilty to murder in the course of the trial. Barr J sentenced the defendant to imprisonment for 18 years with a non-parole period of 13 years and 6 months. The defendant's non-parole period expired on 22 January 2017. He is currently on parole, and his total sentence expires on 22 July 2021. I have read the reasons of Barr J in sentencing the defendant for that offence, which his Honour described as a "vicious and sustained attack".
The third matter occurred in January 2016 whilst the defendant was in custody. On that occasion, there was an altercation between the defendant and another inmate at the Wellington Correctional Centre, during which the confrontation, the defendant picked up a guitar and struck the victim to the face. The charge which was brought against the defendant was subsequently withdrawn, but the matter was dealt with internally within the correctional system.
It is appropriate at this stage to consider aspects of the defendant's mental health.
Notwithstanding the nature of the first two incidents to which I have referred, when he examined the defendant prior to his sentence for the murder offence, Dr Westmore, Psychiatrist, could find no evidence of any mental illness. However, in January 2017, largely as a consequence of ongoing behavioural issues in custody, the defendant was examined by Dr Dayalan, Psychiatrist. Dr Dayalan provided a report of 30 January 2017 in which he concluded that on the basis of his examination and assessment, it was evident that the defendant presented with persecutory delusions. Dr Dayalan expressed the view that it was likely that the defendant's irritability and frustration was partly attributable to emotional distress, secondary to his persecutory beliefs. Dr Dayalan concluded that the defendant suffered from a chronic psychotic illness, most likely schizophrenia. That was the first occasion on which the defendant had been so diagnosed.
On the evidence before me, there has certainly been an improvement in the defendant's condition since Dr Dayalan's diagnosis, which resulted in the implementation of a regime of medication. That regime has clearly assisted in managing the defendant's condition.
A report of Dr Elliott, psychiatrist, of June 2019 is also before the Court. In that report, Dr Elliott made reference to the fact that the defendant had participated in the Violent Offenders Therapeutic Programme (VOTP). Dr Elliott noted that the defendant had been diagnosed with schizophrenia, and that there was a suggestion that the defendant had a limited understanding of his diagnosis, notwithstanding the fact that he had been compliant with his recommended treatment.
None of this is to say that the defendant's management has been problem free. There has been at least one instance when he ceased taking his prescribed medication, at which time his delusional beliefs were said to be again evident, resulting in a referral for psychiatric review. There has also been some degree of ongoing resistance on the part of the defendant to comply with the medication regime which has been put in place.
The report of Dr Elliott made reference to the fact that the defendant had said that he was unaware of why it was that he had been commenced on medication. Dr Elliott observed that it took only "light questioning" to reveal the defendant's characteristic delusional beliefs. The defendant asserted to Dr Elliott that the medication that he was taking had no connection with the cessation of the experience of psychotic symptoms. Generally speaking, the defendant's perception was that the medication was providing little benefit.
It is of some significance that when Dr Elliott asked the defendant whether he would take his medication once he was released, his initial reply was very much to the negative. When Dr Elliott suggested to him that a requirement to comply with a medication regime may be imposed as a condition of his parole, the defendant "reluctantly agreed". Dr Elliott described the defendant as being "even more rigid around his experience of mental illness and mental health treatment, repeatedly insisting that he has not been ill and that treatment is unnecessary". His view was that it was essential that the defendant remain on anti-psychotic medication indefinitely. He went so far as to express the opinion that it was only a matter of time before the defendant realised that it would be impossible to supervise his compliance with oral anti-psychotic treatment in the community. On that basis, Dr Elliott made a series of recommendations centred around long-acting injectable antipsychotic medication.
A further psychiatric report was prepared by Dr Anderson in June 2020. Dr Anderson reported that the defendant did not consider he had a mental illness, although he also observed that the defendant was compliant with his medication and that he was willing to attend for ongoing review. Dr Anderson expressed the view that historically, when unwell, the defendant had manifested delusional symptoms with themes of conspiracy, persecution, and jealousy, which had led to impaired judgment and serious violence.
Also before the Court is a CUBIT report of 2 January 2018. The author of that report observed that the defendant had expressed "strong stereotypical beliefs about gender roles which appeared to shape his intimate relationships as well as influencing his daily interactions with women". The conclusions in that report included the following:
Taking into account both static and dynamic risk factors, Mr Vu's combined risk rating is in the Above Average risk level or level 1va. It is noted that the risk rating was moderated by age, but that his advancing age does not appear to have had an impact on his ability to regulate his behaviour whilst in custody. The most salient risk areas are general self-regulation, intimacy deficits, and cooperation with supervision. In order for Mr Vu's risk of recidivism to be managed successfully upon release, he will need to address these dynamic risk factors.
A report documenting the defendant's progress in the VOTP program noted that his conduct and participation had been acceptable, although a language barrier continued to pose a significant hurdle. A Pre-release Anniversary Report prepared on 3 December 2018 expressed concern that the defendant did not accept his mental health diagnoses and stated that he would only accept prescribed mental health medication to assist with obtaining his release to parole.
The defendant was released to parole on 16 September 2020, following a determination of the State Parole Authority of 3 August 2020. It must be acknowledged that in general terms, his response to parole has been positive. To some extent, some of the problems identified in the reports to which I have referred do not appear to have manifested themselves to any substantive degree.
That said, in a Risk Assessment Report of 9 March 2021, Mr Ardasinski, Psychologist, expressed the view that the defendant appeared to have only limited insight into his circumstances. Significantly, in addressing the defendant's attitude towards his offending, Mr Ardasinski reported that he appeared to "superficially accept" responsibility. I take that to mean that whilst the defendant accepts that he engaged in the offending, he has a tendency to minimise it, and seeks to rationalise it.
Mr Ardasinski also thought it critical that the defendant had denied that he had experienced any psychotic symptoms at the time of either of the two instances of serious offending. The defendant said that he was unsure whether he may have already started hearing voices at the time of the incident in custody but suggested that it was possible.
A number of factors were identified by Mr Ardasinski as clinically significant. They included the defendant's hostility towards women, his lack of concern for others, his negative emotionality, his poor cognitive problem-solving, and importantly, what he described as the defendant's poor cooperation with supervision. Mr Ardasinski also identified, as an issue, the fact that nobody would have oversight over the possibility of the applicant entering into new domestic and other relationships if he were not supervised.
A Risk Management Report of 6 April 2021 is also before the Court. The author of that report made a number of recommendations as to the appropriate conditions in support of a risk management plan. They included conditions as to monitoring schedules and curfews, accommodation and place restrictions, as well as restrictions on associating with others. The author of that report considered it necessary to consider a condition to monitor the defendant's financial activity so as to mitigate the possibility of him commencing a relationship without that relationship being disclosed.
In my view, a number of matters emerge from the material which is before the Court. Leaving aside the incident in custody, and although the defendant's previous criminal history is limited to the two instances to which I have referred, it would be an error to assess the significance of that criminal history by concentrating on the number of instances of offending, as opposed to the circumstances of each offence. Each was extremely violent. That is a matter of considerable concern. That concern is exacerbated by the circumstances of the third incident in custody. I am satisfied that the seriousness of those three incidents gives rise to a real risk that the defendant would engage in a further serious violent offence if an order were not made. The potential severity of that offence, were it to eventuate, is obvious without further comment.
It is also significant, in my view, that the defendant has been assessed as falling at a medium risk of general violent re-offending, and at a high risk of domestic violence offending should he enter into a new relationship. The stereotypical, and entirely archaic views that the defendant appears to hold regarding women, and relationships with women, are also of some concern. Those matters fortify the view that I have reached that the orders sought by the plaintiff are appropriate.
I acknowledge that there has been some degree of acceptance of responsibility by the defendant for his previous offending. However such acceptance, at least on some occasions, has been both superficial and qualified, with the defendant exhibiting what appears to be a tendency to accept the objective facts of his offending, but to blame others for the circumstances in which he committed them.
All of these matters must, of course, be assessed having regard to the fact that the defendant has been diagnosed as suffering from schizophrenia. It is not without significance that prior to that diagnosis, his behaviour in custody was a matter of concern. There has been a marked improvement in his condition since he was diagnosed and placed on a regime of medication. There are however, suggestions that the defendant may not comply with his medication regime if he is unsupervised. It goes without saying that if that were to occur, the consequences, in terms of the commission of a further serious violent offence, could be disastrous.
For all of these reasons I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious violent offence if he is not kept under supervision. As I have noted, the defendant's position was that if I reached that point, there was nothing in terms of the exercise of discretion which would tend against the making of the orders sought.
The orders sought by the plaintiff include the imposition of a number of conditions. Some of those conditions were the subject of agreement between the parties, some were not. To the extent necessary I will refer briefly to those which remained the subject of dispute and shortly state the reasons for my conclusions.
Proposed condition 4 sought that in the event that a reasonable suspicion was formed that the defendant had breached a condition of any order, or committed any other criminal offence, he could be directed to wear electronic monitoring equipment and be subject to electronic monitoring. I do not propose to impose that condition. There is no evidence which supports it. If the defendant breaches any term of the order that I propose to make, there are obviously other remedies available.
Proposed conditions 5 to 7 were directed to the provision of a schedule of movements in the event that a DSO formed a reasonable suspicion that the defendant had breached a condition of the order or another criminal offence. It seems to me that in all of the circumstances, provision of such a schedule is not unreasonable, and I propose to impose those conditions.
Conditions 10 and 11 address issues of association, and were objected to by the defendant on the basis that they ought to include specific addresses and the names of specific family members. It appears to me to be overly prescriptive to make the amendments sought by the defendant.
Proposed condition 14 required the defendant to comply with any reasonable direction from a DSO "not to go to a particular place or district". I do not propose to impose a condition in those terms. It is simply too wide in the absence of some evidence to support it.
Proposed condition 15 related to the defendant taking all reasonable steps to participate in interventions, and in the development of a case management plan. It seems to me that this condition is more than reasonable. It is directed to the defendant's ongoing rehabilitation and management, and for that reason it ought to be included.
Condition 18 required the defendant to provide any information relating to his financial affairs, income and expenditure. The necessity for that condition is supported by the Risk Management Report to which I earlier referred.
Condition 19 proposed that the defendant not associate with any person, or any persons specified by a DSO. It seems to me that any such condition must be accompanied, as it were, by a requirement of reasonableness. Whilst I understand that there is a need to ensure that the defendant does not associate with any person or persons whose presence may hinder his ongoing rehabilitation, I am not prepared to impose a condition in the terms which have been sought. I am however prepared to impose a condition which provides that 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 would increase the risk of the defendant committing a serious offence.
Condition 21 sought that the defendant not associate with any person held in custody without prior approval of a DSO. Leaving aside the fact that there is no evidence to suggest that he will associate with any person held in custody, the issue sought to be addressed by that condition is covered by the non‑association condition to which I referred a moment ago.
Proposed condition 23 sought that the defendant obtain written permission from a DSO prior to joining or affiliating with any club or organisation. There is no evidence that the defendant is likely to do so. There is also no evidence which would indicate that if he were to do so, it would be contrary to his ongoing rehabilitation. I am not satisfied that proposed condition 23 is necessary or appropriate in those circumstances. If a concern arises about the defendant's association with a particular person or persons, that is covered by the amended condition 19 to which I have previously referred.
Proposed condition 26 required that the defendant provide the DSO a list of devices, services, applications and platforms that he uses to communicate with or to access the internet, amongst other things. That is to be read with proposed condition 25, which required that the defendant obey any reasonable direction about communication internet access and related matters. There was no issue as to condition 25, and whilst on one view the matters in proposed condition 26 are already covered, I have come to the view that condition 26 supplements condition 25 and in those circumstances, I propose to impose it.
Condition 27 is in the same category in my view, and supplements conditions 25 and 26, and for that reason I propose to impose it.
Condition 42 required that the defendant notify a DSO of the identity and address of any healthcare practitioner that he may consult. Objection was taken to the terms of that condition, and it was sought that it be limited to a requirement to notify the DSO of the identity and address of any health care practitioner that he consults for mental health treatment.
It is not difficult to envisage a situation where the defendant may consult a health care practitioner for one issue and the consultation then moves into issues of mental health. Condition 42 in its proposed form addresses that issue, and in my view, it ought to be imposed in the terms which were sought.
Proposed condition 44 required the defendant to take medications only in the manner prescribed. Whilst the use of the word "only" in that condition is curious, it is clear on the evidence before me, that close monitoring of the defendant's ongoing mental health regime is important. Accordingly, I propose to impose that condition in the terms which were sought.
Objection was taken to condition 45, but in my view, that necessarily supplements condition 44 and for the reasons I have expressed, it ought to be imposed in the form that was sought. Condition 46 is in the same category.
Finally, condition 48 imposed a requirement that the defendant agree to the disclosure of his criminal history to any health care professionals who were treating him. Again, a qualification was sought to be placed on that condition by limiting it to mental health care professionals. For the reasons that I have already given in respect of condition 42, I am not persuaded that that is appropriate. The other difficulty with the proposed amendment to that condition is that it proposed that the DSO must inform the defendant before making any disclosure. I have some doubt as to whether I have the powers to require a DSO to do or not do any particular act or acts. Having not heard the argument in full in relation to that issue, it is not appropriate to decide it to finality. Proposed condition 48 will be imposed in the terms in which it was sought.
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ORDERS
For the foregoing reasons, I made the following orders:
1. Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006, the defendant is subject to an interim supervision order.
2. Pursuant to s 10C(1) of the Act, the interim supervision order shall be for a period of 28 days commencing on the expiry of the defendant's current sentence on 22 July 2021.
3. Pursuant to s 11 of the Act, I direct that the defendant for the period of the interim supervision order comply with the conditions set out in the schedule signed by me and dated today.
4. I list the matter for final hearing on 27 September 2021, and note that the parties will provide to my associate short minutes of order giving effect to a timetable leading up to that hearing.
5. Access to the court file in respect of any document shall not be granted to a non-party without the leave of a judge of the court. If any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar, so as to allow them an opportunity to be heard in relation to the application for access.
[3]
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Decision last updated: 09 August 2021