The State of New South Wales v Manna

Objects

1. The primary object of the Act, as stated in s 3(1) is, relevantly for the purposes of these proceedings, "to provide for the extended supervision and continuing detention of… high risk violent offenders so as to ensure the safety and protection of the community". Section 3(2) provides that another object of the Act is to encourage such offenders to undertake rehabilitation.
2. The word "ensure" which is referred to in the object of the Act 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: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") at [61].

Application

1. The State may apply for an extended supervision order or a continuing detention order against "an offender" pursuant to Pt 2 Div 1 s 5H and Pt 3 Div 1 s 13A, respectively. The proceedings are to be conducted as civil proceedings pursuant to s 21.

Part 1A

1. Part 1A of the Act concerns the supervision and detention of high risk offenders.
2. The power to make a high risk violent offender extended supervision order or a high risk violent offender continuing detention order ("orders") resides in ss 5F(1) and 5(G)(1), respectively, of the Act. That power is, however, governed by s 5E(1) which confines the exercise of the power to a particular class of offender, namely, a high risk violent offender, an expression defined in s 5E(2). Thus, the provisions of s 5E(2) have been described as the gateway to the power to make orders under ss 5F and 5G: Lynn at [55] and [64] (per Beazley P); State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 ("Donovan") at [24].
3. The power to make orders is premised upon the Court being satisfied to a high degree of probability (being a special level of satisfaction) that the offender poses an unacceptable risk of committing a serious violence offence (that assessment being one of "likelihood" of that risk) in the event that the offender is not kept under supervision: Lynn at [82] and Donovan at [12] and [24].
4. The term "violent offender", found in s 5E(2), is defined in s 4 of the Act to mean a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction for "a serious violence offence". That expression is defined in s 5A, the relevant components of which, for present proceeding are as follows: 5A Definition of "serious violence offence" (1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (2A) A reference in subsection (1) (a) to: … (c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person. (3) A serious indictable offence is: (a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900) at the time that it was committed…
5. The offence of wounding with intent to murder under s 27 of the Crimes Act 1900 with which the defendant was charged and convicted is a serious violence offence within the meaning of s 5A(1)(b) of the Act. Section 5A(2A)(c) removes any doubt, as to that conclusion in the present matter, by providing that 'wounding with intent to murder' constituted a serious violence offence. Further, that subsection applies to offences committed before the commencement of that subsection and to persons already servicing a sentence of imprisonment when it commenced: Sch 2 Pt 8 cl 15.
6. The power to make a continuing detention order under s 5G is subject to two requirements, the second of which is not applicable to an application for extended supervision orders. The first repeats the gateway conditions described above, namely the offender is a high risk violent offender. The second requirement is that the Court must be satisfied that "adequate supervision will not be provided by an extended supervision order." The issue as to whether the Court would be satisfied that the conditions in Annexure A provide adequate supervision is the linchpin of the debate in these proceedings.

Particular requirements for the making of orders

1. An application for a continuing detention order may only be made in respect of a detained violent offender or a supervised violent offender: s 13C(1). The present application falls within the first of these criteria. The defendant is a "detained violent offender" as when the application was made by the filing of originating process on 23 November 2016 ("the original summons") and an amended process on 28 February 2017("the further amended summons"). The defendant was in custody for, a serious violence offence, as earlier discussed, being wounding with intent to murder: s 13C(2)(a)(i) of the Act and see State of New South Wales v Armstrong [2015] NSWSC 1510 at [5] (per RA Hulme J).
2. The primary application of the State therefore meets the threshold procedural requirements to the bringing of an application for a continuing detention order.

Determining an application for Continuing Detention Order

1. Subject to ss 5E and 5G, the determination of an application for a continuing detention order is governed by Pt 3 of the Act and in particular Div 2 thereof. Section 17(1) provides that this Court may determine an application under Pt 3 for a continuing detention order by making an extended supervision order or making a continuing detention order or by dismissing the application.
2. Section 17(4) stipulates matters to which the Court must have regard in determining this application. Of particular significance are sub-paras (a)--(f), (h)--(i) (reciprocal provisions are also found under s 9(3) as to application for extended supervision orders).
3. Section 25B(1) provides that the Court may make an extended supervision order in respect of a person at the same time that it makes a continuing detention order with respect to that person. However, this is subject to the requirements of s 5G(1) that the Court may only make a continuing detention order if the Court is, inter alia, satisfied that adequate supervision will not be provided by an extended supervision order.

PRINCIPLES

1. The scope and operation of Pts 1, 2 and 3 of the Act received extensive consideration in Donovan and Lynn.

Sections 5E(1) and (2): High Risk Violent Offender

1. As to the Courts making a determination under s 5E: 1. The nature of the risk posed by an offender is to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The "criterion of unacceptability depends upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders": Lynn at [126] (per Basten JA). 2. "The concept of 'risk' clearly involves a risk to the community; although the qualifier 'unacceptable' could be read in an extended sense as meaning deemed unacceptable by the Court. It is still the composite phrase which must be understood as referring to a risk to the community": Lynn at [127] (per Basten JA). 3. The precise parameter or standard or norm against which the determination under s 5E(2) must be made are not immediately evident from the text of the provision. A determination as to whether something is unacceptable is an evaluative task and evaluative determinations require a context in which they are to be made: Lynn at [51] (per Beazley J). The required state of satisfaction in s 5E(2) requires the exercise of a discretionary judgment: Lynn at [82] (per Basten JA). 4. The impact of an order on the offender is not a factor in assessing unacceptable risk which focuses rather on the assessment of factors relevant to the content of the risk itself: Lynn at [137] (per Basten JA), Attorney-General of NSW v McGuire [2016] NSWSC 158 at [43] (per Rothman J).

Section 5G: Adequate Supervision

1. As earlier mentioned, the test for the making of a continuing detention order contains an additional requirement compared to those governing the making an extended supervision order, namely, the Court must be satisfied that adequate supervision will not be provided by the extended supervision order.
2. The following principles derived from Donovan apply to that test: 1. The onus lies on the State to prove that adequate supervision will not be provided by an extended supervision order: Donovan at [23]. 2. The test is not whether there is a risk that adequate supervision will not be provided by an extended supervision order, but rather that adequate supervision will not be provided by an extended supervision order: Donovan at [22]. 3. Unlike the considerations arising under s 5E where an unacceptable risk must be assessed as if there was no supervision at all, the resolution of the question as to whether there is adequate supervision for the purposes of s 5G, requires an assessment of the particular extended supervision order, which is proposed in the proceedings: Donovan at [24] and [73]. The state of satisfaction under s 5G(1) is, therefore, lower than the state of satisfaction required under s 5E: Donovan at [24]. 4. The structure of the Act suggests a hierarchy of final orders that acknowledges the fundamental nature of the right to personal liberty. Extended supervision orders are addressed first, in Pt 2 of the Act, and must logically be considered first. Continuing detention orders are addressed in Pt 3 of the Act and may be made only if the court is satisfied that adequate supervision will not be provided by an extended supervision order. In so providing, the Act expressly acknowledges that a continuing detention order made after a final hearing is, in effect, an order of last resort. It is to be made only after a careful assessment of the adequacy of the supervision that will be provided by an extended supervision order: Manna No 3 at [19] (per McCallum J). 5. Whilst the concepts "unacceptable risk" under s 5E(1) and "adequate supervision" under s 5G(1), both entail evaluative judgments, they serve different purposes and operate in different ways: Donovan at [69]. 6. The determination of whether an extended supervision order will provide "adequate supervision" is an evaluative judgment undertaken by the court according to the circumstances of the individual case and having regard to objects of the Act (giving primacy to the objects stated in s 3(1)): Donovan at [77], State of New South Wales v Donovan [2015] NSWSC 1254 at [56] (per McCallum J), State of New South Wales v Armstrong [2015] NSWSC 1510 at [11]. 7. The inquiry as to adequate supervision also requires consideration of the secondary purposes of the Act, that is, to encourage rehabilitation and the wide range of conditions which could be imposed by an interim supervision order: Anderson v State of New South Wales [2016] NSWCA 86 at [17]. 8. The assessment as to whether an extended supervision order will not provide adequate supervision must be informed by consideration of risk factors, including psychiatric or psychological evidence, and the risk of reoffending (which also encompasses the circumstances or factors which may contribute to that risk): Donovan at [63]-[65]; [75]-[77]; [87], [89] and [90]. 9. Even if the Court determines that adequate supervision will not be afforded by an extended supervision order, the Court still has discretion to decline to make a continuing detention order: Donovan at [15].

Implications of evidence given by the defendant

1. It would appear that the practice in these matters has been that the defendant has not given evidence. This may be explained by the judgment in Donovan at [117] where it was stated: [T]here is nothing in the Act to displace the privilege against exposure to a penalty, save for the obligation upon an offender to be examined by the two independent experts… .
2. Thus, the immunity from giving evidence that would expose the offender to a penalty is overridden by s 15(4) of the Act, in so far as the offender may be directed to undergo an examination by court-appointed psychiatrists or psychologists: see Donovan at [119].
3. In consequence, the Court of Appeal held in Donovan at [117], with respect to a defendant to proceedings in which the State sought continuing detention orders: No inference adverse to an offender can be drawn in circumstances where the offender's giving evidence would lead the offender to being cross-examined by the State with a view to eliciting evidence to support a continuing detention order.
4. Further, it was found a person whom the State wishes to detain for a period extending after the term of his or her sentence is not required to go into evidence lest unfavourable inferences be drawn against him or her: Donovan at [119].
5. Here, the defendant gave evidence. Nothing in the abovementioned findings in Donovan results in a defendant's evidence having a special or elevated status in the proceedings. Plainly, it forms part of the evidentiary mix which underpins the Court's evaluation as to whether a proposed extended supervision order will provide adequate supervision for the purpose of s 5(1) of the Act (and ultimately the determination as to the making of a continuing detention order).
6. However, the evidence of the defendant does enable the Court to examine, through the defendant's own testimony, the veracity of his case as to why, in this case, an extended supervision order would be adequate supervision for the purposes of s 5G(1). This includes an evaluation being made of the likelihood of offending conduct occurring when under the restraint of an extended supervision order. Clearly, this evidence may also bear upon the prospects of rehabilitation.
7. I shall make some observations about the defendant's evidence at the conclusion of the section of this judgement dealing with factual findings.

FINDINGS OF FACT AND CONCLUSIONS AS TO FACTORS IN S 17(4)

Evidence before the Court

1. The Court received in evidence a substantial amount of documentary material including the records of criminal proceedings, records of the NSW State Parole Authority and case notes, prepared by supervising officers of the defendant, on the Offender Integrated Management System maintained by Corrective Services ("the case notes"). In addition, the Court received various reports, including the following: 1. Dr Peter Klug (4 June 1997 and referral to the trial of the defendant for the offence); 2. Anthony Chambers, Psychologist (then at Silverwater Corrections Centre), endorsed by Dr Darren Nicholls, Senior Specialist Psychologist at the Fairfield District Office of Corrective Services NSW (2 April 2012); 3. Ms Anita McGregor, Psychologist, of Wentwall Forensic Clinic (17 June and 14 October 2013); 4. Dr Richard Parker, Senior Psychologist with the Serious Offenders Assessment Unit of Corrective Services (3 June 2016, annexed to his affidavit, sworn 2 February 2017) (Dr Parker holds a doctor of philosophy, but hereafter referred to as "Mr Parker"); 5. Dr Jeremy O'Dea, court appointed Forensic Psychiatrist (31 January 2017); and 6. Dr Andrew Ellis, a court appointed Forensic Psychiatrist (31 January 2017).
2. The State relied upon the following evidence by affidavit: Vincenzo Camporeale (affirmed 23 November 2016, 1 December 2016 and 9 February 2017); Barry Williams (affirmed 10 December 2016 and 25 January 2017); Mr Parker's evidence (referred to above); Angela Rybak (sworn 3 February 2017); Danielle Matsuo (affirmed 9 February 2017) and Ellen McCarroll (affirmed 10 February 2017), with only the last witness being required for cross-examination.
3. The defendant relied upon the following evidence in this case: his own affidavit (affirmed 21 February 2017) and the affidavit of Martin Daniel Bernhaut (affirmed 22 February 2017), whom was not relied upon for cross-examination.

General Factual Background

1. The defendant was born in 1973 and grew up in Penrith. He is now aged 43. His mother of an English background was born in Australia and his father was born in Italy. He has an older sister and younger brother. He remembers being generally happy as a child and in particular remembers receiving loving attention from his grandmother and grandfather.
2. In his affidavit, he deposed he had difficulty in his upbringing. Whilst the defendant had a loving relationship with his grandparents, he had a very poor relationship with his mother which persists to the present. The defendant contended he was mistreated by her at an early age. His school life was troubled, he had had altercations with teachers and was expelled. He claimed to have been abused at school age. He has developed a strong relationship with his father, although there was earlier disagreement.
3. At the age of around 13 or 14, the defendant started using drugs in school. This started with cannabis and then later used anabolic steroids, MDMA/LSD and cocaine. He thought the steroids "messed him up" and made him very angry - he would "snap really quickly". The defendant used anabolic steroids until he was around 19 or 20 years of age.
4. In 1996, when the defendant was 22 years of age he spent 7 months in prison. Whilst in prison he found out that a friend of his grandparents to whom he had become very close as a child (he described her as "Aunt" and sometimes "Mum") had committed suicide whilst in the Psychiatric Unit of Nepean Hospital. He described this death as "hit[ting him] really hard" and "I still find it hard to deal with it". He was refused permission to attend the funeral.
5. After he was released from prison in December 1996, he continued using drugs.

Criminal Offending

1. The defendant's other criminal history discloses use of violence and abuse of prohibited substances.
2. The defendant committed three offences which were violent in character and/or exhibited aggression prior to the offence, they included: 1. Assault committed on 8 February 1996 at 22 years of age. The victim was his mother. He became aggressive and produced a knife from a bedroom cupboard and pressed it against her left breast just below the collar bone. She felt that it was so forceful that it would penetrate her body but it did not. He then kicked the stereo in. She fled and called police. He was sentenced to a fixed term of six months; 2. Malicious damage (2 counts): On 11 February 1996, after an argument with his father, he damaged his father's work vehicle by smashing the windscreen, boot and bonnet. He then damaged the caged police vehicle while being taken to Nepean Hospital. He was convicted of two counts of malicious damage, sentenced to six months' imprisonment and ordered to pay compensation to police; and 3. Three months after the assault, he was convicted of possessing a shortened shot gun and malicious damage. The firearm was found by police on 31 May 1996 during a search of his vehicle. On being transported to Long Bay Gaol he damaged the cage of a police vehicle. He was fined but, in lieu, given a fixed term of several days in prison.
3. Other convictions committed prior to the offence were drug supply, driving offences and convictions for dishonesty offences.
4. He was released from prison on parole on 30 December 1996 and discharged from parole on 30 January 1997, 18 days before the offence.
5. The offence was committed on 17 February 1997 against a truck driver. At about 4pm, the victim was restocking Coca-Cola vending machines at Werrington TAFE in Sydney's West. His wife and seven year old son were present. The victim went to one of the machines, unlocked it, counted the remaining stock to determine the number of cans needed to refill the machine, removed the machines' money box and returned to the truck. He placed the money in the truck's safe. He refilled a machine and realised more cans were required. He was in the process of obtaining more cans from his truck when he was confronted by the defendant who was holding a pistol in his hand and who demanded money. The victim explained that he did not have the keys to the safe but would give the defendant keys to the vending machines. The defendant fired a shot striking the victim in the chest, causing the victim to fall to the ground, whereupon the defendant fired four further shots, striking the victim's jaw, chest, left arm and left leg. The victim suffered significant injuries and the victim's seven year old son witnessed the shooting.
6. On 12 September 1997, Nield DCJ ("the sentencing judge") of the Penrith District Court sentenced the offender, as earlier mentioned, to 20 years imprisonment with a minimum term of 15 years and an additional term of five years. The non-parole period expired on 18 February 2012. The total sentence expired on 18 February 2017.
7. The sentencing judge described the offence as an "intentional, deliberate and cold-blooded attempt to kill the complainant". His Honour was "convinced that the prisoner shot the complainant 4 times intending to kill him simply because the armed robbery of the complainant, which he attempted and in which he had shot the complainant once in the chest, had gone wrong". His Honour referred to his previous irrational behaviour and abuse of steroids, cannabis and LSD but did not view those factors as playing any real part in the decision to take a pistol and attempt to rob the complainant or in the subsequent decision to kill the wounded victim. The sentencing judge said "it was only by the Grace of God that the complainant was not killed".
8. The sentencing judge remarked that the defendant was 23 years of age at the time of the offence. His Honour observed that the defendant had a history of the use of violence and the abuse of prohibited substance. His Honour stated, the defendant was not sorry for what he had done and had not expressed contrition to the psychiatrist, Dr Klug, whom he saw before his sentencing. The sentencing judge found the defendant to be a "determined criminal who is not prepared to change his ways" and observed he felt the offence was justified. This finding was supported by the fact the offence was committed only seven weeks after the defendant was released from prison and in the light of previous offences. His Honour said "it is impossible to say whether or not he will change his ways but everything that he has done in the past suggests that he is unlikely to do so".
9. The sentencing judge recorded that the defendant told Dr Klug that the victim who was shot was a man from whom "a 14 year old girl who he knew obtained heroin", and that she had gone into prostitution. Upon seeing the Coca-Cola truck, he moved to the truck to "talk to the man". He advised the psychiatrist that an altercation occurred and that he had shot the man five times during that encounter. The sentencing judge remarked that it was obvious that what the defendant had told the psychiatrist was "contrary to the known circumstances and that he had given this reason in the hope of reducing his culpability for his conduct."
10. The State contended that the defendant maintained this fiction and had never given a reliable account of his reason for shooting the victim. As I will later find, I agree with that submission.
11. In the Court of Criminal Appeal, Grove J (with whom Handley J agreed) dismissed the appeal on sentence: Manna No 2. Hidden J was in the minority and would have allowed the appeal and resentenced the applicant to penal servitude for 18 years comprising a minimum term of 12 years and an additional 6 years.
12. Grove J considered that the sentence imposed upon the defendant was capable of being viewed as severe but that the facts of the offence were "grave". His Honour rejected a contention on appeal that the sentencing judge fell under error in holding that the applicant's psychiatric history provided no explanation for the crime. There was no evidence of psychosis, delusions or cognitive impairment. The appellant had given a demonstrably false explanation for the shooting. His Honour indicated that the defendant was an "apparently undependable historian". His Honour identified that the summarised opinion of Dr Klug was that the defendant had "a significant past psychiatric history and a long history of a poly drug abuse and dependence". The psychiatrist had also considered that, at the time of the commission of the offence, the defendant was probably intoxicated with a variety of drugs. His Honour found no error in the conclusion reached by the sentencing judge, that the defendant's previous irrational behaviour or use of drugs had played no real part in his decision to take a pistol and attempt to rob the complainant of his money or his subsequent decision to kill the wounded victim.
13. Hidden J was also of the view that the account given by the defendant to the psychiatrist, prior to his sentencing for offence, as to the reasons for shooting the victim of the robbery was false and that he was in other respects "an unreliable historian" (Manna No 2 at [21]). However, his Honour considered that the sentencing judge was in error in finding that the defendant's psychiatric history provided no explanation for the crime (Manna No 2 at [23]). His Honour recorded that the defendant's abuse of drugs and alcohol from an earlier age, particularly steroids, which contributed to his aggression. The defendant had little self-control.
14. After the commission of the offence, the defendant committed three offences whilst in gaol and on parole: 1. On 19 May 1999, whilst in custody, some two years after his imprisonment, the defendant approached another inmate at Goulburn Correctional Centre in the prison yard and punched him to the head. The victim approached the defendant and the defendant punched him to the head again. Another inmate joined in the attack and the victim suffered a broken jaw. The defendant pleaded guilty and was sentenced in the Goulburn Local Court to a fixed term of four months imprisonment for assault occasioning actual bodily harm. 2. On 26 May 2014, whilst on parole, the defendant committed offences of larceny and using an unregistered trailer ("the May 2014 offence"). He attached a mobile lighting tower to his car from a road and then moved the equipment. He was convicted and given a good behaviour bond for 12 months. 3. On or about 18 July 2014, nineteen months after being released on parole, he was charged with four further offences committed on 12 July 2014. He was convicted of common assault, malicious damage and larceny. A charge of being armed with intent to commit indictable offence was dismissed ("the July 2014 offences"). On 16 December 2014, he was sentenced in Bankstown Local Court to imprisonment for six months commencing on 18 July 2014. An apprehended domestic violence order of two years' duration was made on 16 December 2014.
15. At the time of the interim hearing, there was only available to McCallum J the police statement of facts regarding the July 2014 offence, which she treated with caution. With respect to her Honour, that approach was prudent as the remarks on sentence produce a different picture of the circumstance of the defendant's offending in relation to those charges. The transcript of the Local Court hearing records the magistrate, Magistrate Spence, as stating the defendant and the complainant had had a short term relationship. The defendant had met her four days before the relationship quickly broke down and she asked him to leave. An argument arose after the defendant took the complainant's computer from her home (he said inadvertently; she alleged theft). It must be noted his Honour rejected the complainant's account, and in some significant respect, her credibility.
16. The defendant admitted having a knife in his possession and as having had occasion to say to the victim "open the garage door, or I'll slit your throat, cunt" (being words attributed to him by the victim). However, the Magistrate was not satisfied "about the knife incident that occurred within the premises", noting that it was "simply word against word there". On that basis the most serious charge (of being armed with intent to commit indictable offence) was dismissed.
17. As to the assault, it was not accepted by the Magistrate that the defendant struck the victim a number of times to the head/face, the photographs of the victim's injuries not corroborating this assertion. The Magistrate found that "the assault" in his view "has just been made out", presumably on the defendant's own admission that he pushed the victim to the ground.
18. The defendant was returned to custody on 18 July 2014 and his parole was revoked on 25 July 2014 (and was made effective from 12 July 2014). The reasons cited by the Parole Authority for revoking parole were breach of the condition to be of good behaviour (based on the further charges), failure to report as directed and failure to undergo assessment and counselling as directed.
19. The defendant discussed the offences with Corrective Services staff on 2 February 2016. He is reported as saying that he caused damage to her garage when retrieving his own property however, he denied assaulting her and claimed that he was acting in self-defence when she attacked him with a syringe. The defendant's claim for self-defence was not made out in the Local Court. The State submitted that this explanation demonstrates his lack of insight into and remorse for his violent offending. Of real significance to the present application, it was contended the offences indicated that, he is unwilling to comply with the conditions of parole.
20. Ms Mathur acknowledged that the further offences are relevant and "arguably of concern", but noted that common assault is not a "serious violence offence" within the meaning of the Act. I will return to these contentions.

Parole

1. The defendant was released to parole on 7 December 2012 by an order executed by the State Parole Authority on 22 November 2012.
2. Prior to his release, the defendant had been assessed as a medium risk for violent reoffending (see the report of Mr Chambers of 2 April 2012). A number of conditions were attached to his parole, in addition to a good behaviour order, as follows: 15. The offender must totally abstain from alcohol. 16. The offender must, if so directed by the Officer, seek assistance in controlling his or her abuse of drugs and/or alcohol and must authorise in writing that his or her medical and other professional and/or technical advisers or consultants make available to the Officer a report on his or her medical, and/or other conditions at all reasonable times. 17. The offender must not use, or be in possession of, a prohibited drug or substance. 18. The offender must not undertake testing for drug and/or alcohol use, where facilities are available, at the direction of the Officer. 19. The offender must, if so directed by the Officer, enter a residential rehabilitation centre and must not discharge himself or herself without the approval of that Officer. 20. The offender must, if so directed by the Officer, undergo psychological assessment and counselling at a place or places determined by that Officer and must authorise in writing that his or her medical and other professional and/or technical advisers or consultants make available to the Officer a report on such assessment and counselling at all reasonable times. 21. The offender must, if so directed by the Officer, undergo psychiatric assessment, psychiatric counselling, other medical assessment or other medical treatment at a place or places determined by the officer and must authorise in writing that his or her medical and other professional and/or technical advisers or consultants make available to the Officer a report on such assessment, counselling or treatment at all reasonable times. 22. The offender must not contact, communicate with, watch, stalk, harass or intimidate the victim and family. 23. The offender must not associate with any member and/or associate of an Outlaw Motorcycle Gang without the express prior approval of the Officer. 24. The offender must not frequent or visit Penrith Local Government Area. 25. The offender must not possess or use any firearms.
3. The State submitted that the defendant's record whilst on parole would give a strong indication that an extended supervision order would not provide adequate supervision, even though an extended supervision order was more restrictive. In support of that submission, attention was directed to particular instances of the poor parole performance of the defendant.
4. In considering this issue, I have closely examined the case notes, reports prepared by Community Corrections Officers and determinations made by the State Parole Authority in relation to those reports. The conclusion I draw from that material, aided by the opinions of Dr Ellis and Mr Parker (to which I will return in greater detail later) and the report of Mr Chambers and evidence given by Ms McCarroll is that for about the first 12 months of his parole, as McCallum J observed in Manna No 3, the defendant engaged "relatively well" with his supervision obligations having regard to his long period of incarceration prior to his release on parole. His supervising officer commented that, at the end of 2013, the defendant was adjusting nicely in the community and had been reporting on a fortnightly basis. Thereafter there occurred a substantial and stark deterioration in his performance (from December 2013). Further, there are a number of factors which, when taken together, substantially temper the significance of his failures on parole in so far as those factors may otherwise be an indicator that an extended supervision order will not provide adequate supervision.
5. My reasons for that conclusion will be discussed here in light of the particular contentions raised by the State in support of the aforementioned broad submission. It must be observed, however, that conclusions ultimately bearing upon the question of adequate supervision, including the nature and extent of the risk, and the concomitant question of the risk of reoffending need to be considered in the light of the entirety of the factual circumstances discussed under this heading and later included in my considerations after a detailed analysis of the reports and opinions of the Drs Ellis and O'Dea ("the court appointed experts") and Mr Parker and Mr Chambers.

Response to Treatment Programs

1. The State submitted that the defendant failed in his participation and treatment programs and breached his parole conditions accordingly. My detailed discussion of this topic comes later under the heading "Treatment and Rehabilitation Programs".
2. It may be immediately accepted that the defendant failed in his participation in the Controlling Anger and Learning to Manage it ("CALM") program. In the EQUIPS Foundation and Aggression ("EQUIPS") program, the defendant made an observation attributed to him regarding the taking of guns into parole sessions and was uncooperative and disruptive. However, these failures in participation in group therapy programs need to be seen the light of the evidence of Dr Ellis that treatment in a group environment was not an appropriate treatment mechanism for the defendant because of the defendant's personality type. Further, as I will later discuss, it may not be properly said, in my view, the defendant was not willing to participate in the Violent Offender Therapeutic Program ("VOTP"), even though in the final stages of his involvement he elected not to continue with the program.
3. For further consideration under this heading was the defendant's failures when referred to individual counselling. He attended eight sessions before the counselling was terminated by mutual agreement due to limited evidence of his engagement or progress. The defendant failed to attend two psychology sessions and had rescheduled three others with his appointed psychologist, Ms McGregor. He received breach notices in July and October 2013 in consequence of those failures.
4. Clearly, the defendant failed in this respect to take the opportunity provided to him for treatment. However, there are two qualifications as to this assessment which I will discuss further below. The first is that the defendant had shown the capacity to respond to psychological treatment where there was a better form of engagement between the practitioner and the client. Secondly, the officers managing the extended supervision program indicated a potential to work with the defendant to establish a suitable psychological treatment regime.
5. Finally in this respect a submission was made that the defendant rejected engagement with a private psychologist after the cessation of his earlier counselling. This occurred not long before the revocation of his parole and for reasons that I will later give I do not accept this submission.

Reporting to supervising officers

1. There appears to have been adequate reporting by the defendant until at least late October 2013 and most likely for the balance of the year. He failed to properly report to his supervising officer on 25 and 27 March 2014 and received a breach of parole notice.

Police Intelligence - association with drugs and improper associations

1. Until late December 2013 there was very little evidence of improper association and no evidence that the defendant was breaching conditions associated with taking of drugs. A urinalysis in June 2013 showed nil.
2. In July 2013, he attended a cafe in Double Bay said to be frequented by OMCG members. However, no contact was made between the police and the defendant and no observations were made of the defendant being with such persons, as the police intelligence was obtained through a drive-by. Ms Mathur accepted, primarily by reference to this report, that there may have been some association with OMCG but that it was minimal until late 2013.
3. From December 2013, an inference may be drawn that he was forming inappropriate associations by going to undesirable places and having an association with persons having or dealing in drugs based upon the following: 1. In December 2013, police were stopped by the defendant whilst with another person in Kings Cross. Upon searching the vehicle the police found an "empty small resealable plastic drug bag" in the defendant's car. He told police he had been to a brothel and believed he had been given water containing drugs. He had passed out for seven hours. In cross-examination, the defendant could not recall the incident with the plastic bag. The defendant accepted that he had associated with a person, a prostitute, who was in his car. He "assumed" she had taken drugs. Police also expressed suspicions as to his activities in Kings Cross. It might be noted that the defendant was directed to stay out of Kings Cross on 3 April 2014. 2. On 19 February 2014, he was at a location with another person of interest who claimed that a person (the victim) had stolen his car. The person of interest organised for the victim to attend the location and when the victim went inside the house for the purpose of purchasing drugs, he was assaulted. 3. On 20 March 2014, he was stopped by police in his vehicle at Kings Cross. He told police that he was looking for a prostitute and explained that he had spent over ten years in prison after shooting a heroin dealer who was selling to a 14 year old girl. 4. On 22 May 2014, during a vehicle stop by police, an illicit drug (methylamphetamine) was located in his car. A passenger in the defendant's car was known by police to be supplying "ice" to customers in the eastern and western suburbs of Sydney. The defendant accepted this incident had occurred during cross-examination. 5. On 2 June 2014, the defendant was driving a car which was stopped by police. Stolen property was found in the car. Police believed the car was being used to commit crimes and that the defendant had made a number of new associates around Dulwich Hill and was frequenting the area often. 6. On 6 June 2014, the defendant was driving a car in which two other "persons of interest" were present. The car was stopped by police and searched. A set of scales and resealable plastic bags were found. The police formed the view that the three of them were supplying ice. The defendant provided an implausible explanation for this incident, namely, that he did not know what the other persons were carrying. (No charges were laid as a result of these incidents).
4. My observation regarding these matters will be made after the consideration of additional factors identified by the State.

Parole Violations

1. The defendant was warned at the outset of his parole that a failure to comply with the conditions of the parole might lead to the revocation of the parole and reincarceration.
2. In addition to the breach of conditions associated with psychological treatment and the aforementioned association with a drug supplier, there were other violations which in ascending order included: 1. In May 2014, the defendant changed his address without informing his parole officer. To this might be added the defendant's acceptance in cross-examination that he lied to his supervising officers about accommodation whilst under parole as he had undergone a period of homelessness. 2. The defendant failed to report to his parole officer on 25 and 27 March 2014. 3. The aforementioned May 2014 offences committed by the defendant of larceny and using an unregistered trailer. 4. The offences of assault, malicious damage and larceny in July 2014.
3. Two related considerations may be added. The defendant admitted to Mr Parker his dishonesty regarding some parts of his employment to his supervising officer whilst he was on parole between 2012 and 2014. Further, the State Parole Authority reported on 22 May 2015 that the defendant had admitted non-compliance with the exclusion locations within his parole condition in order to visit his father.
4. In consequence, the State Parole Authority revoked the defendant's parole on 25 July 2014, having regard to breaches of the good behaviour requirement of his parole, his failure to undergo psychological assessment and counselling as appointed as well as his failure to report to his supervising officer.
5. These violations together with the aforementioned references to inappropriate associations reveal that by the time of the revocation of the defendant's parole there had been breaches of the conditions of the parole and the re-establishment of inappropriate associations with persons and drugs, from late 2013 to July 2014. However, there are countervailing considerations.
6. In addition to the observations which have been made in relation to treatment and rehabilitation programs, there are some important factors that need to be taken in account into assessing the contribution of this parole record to an assessment of the nature of the risk posed by the defendant, the likelihood of his reoffending, the likelihood of the defendant being properly responsive to supervision in the community and ultimately whether adequate supervision may be provided by an extended supervision order in this matter (having regard to the conditions set out in Annexure A to this judgment).

Other Factors

1. Those countervailing or ameliorating considerations are as follows: 1. The failure of the defendant under parole and his development of associations with undesirable associates was one of gradual or delayed onset. This has significance in two respects. First, the behaviour which might indicate a propensity to reoffend occurred after a period of nearly 12 months of abstinence from such conduct and in particular violent behaviour. His failure to attend upon treatments only becomes relevant, in that respect, (and then only moderately) if it were thought that he would be resistant to assistance of that kind under an extended supervision order. That is a conclusion, for reasons which I will develop later, which I do not consider is available in this case. Secondly, the gradual nature of the onset of the failure provides a much greater capacity for detection particularly under the substantial measure of structured support and supervision offered under and in conjunction with the proposed extended supervision order: Donovan at [87], [97], [98] and [109]. 2. In expressing confidence that an extended supervision order would manage the risks associated with the defendant in the community, Dr Ellis opined that the proposed extended supervision order was both more onerous and entailed significantly more monitoring and restrictions than operated in the parole environment. He added that the defendant was being managed by an extended supervision team, which had more experienced officers and smaller case load. 3. Dr Ellis also opined that there were changed circumstances operating from the time the defendant failed under parole, that is, the age of the defendant and there was much more known about the defendant. However, in my view, there are three further significant changed circumstances which cast a different light upon the defendant's parole performance and whether his parole experience may give a proper basis for a negative prediction as to his compliance with supervision under an extended supervision orders: a change in the stability of accommodation, the availability of family support and the attainment of employment. I will deal with each in turn below.
2. As mentioned earlier, it was a condition of the defendant's parole that he must not frequent or visit the Penrith Local Government area. When he commenced his parole, he took up a new residence in two bedroom private rental in Marrickville. The case notes thereafter demonstrate a tiering down in the defendant's ability to obtain and maintain stable accommodation as a result of the absence of a rental history and his prison record. By September 2013, he was advised that he needed to settle in one place. He experienced difficulties in meeting rental payments and moved between friends, hostels and other accommodation. He received a breach notice, as earlier discussed, on 20 May 2014 for changing his address without notice.
3. Two particular considerations may be mentioned in this respect. First, as submitted by Ms Mathur, the defendant had significant adjustment issues after leaving prison. He spent his entire adult life in custody having committed the offence when he was 23 years of age. He was a man that had been more or less "institutionalised", a fact he recognised himself and had raised with Community Corrections during his parole.
4. Secondly, instability in accommodation combined with these adjustment problems to create a substantial hurdle for the defendant. More significantly, however, as I will later discuss, unstable accommodation is a particular risk factor for reoffending with the defendant.
5. When viewed in the light of the information provided in the case notes and his frank admissions as to being untruthful to case officers regarding his accommodation, the following evidence by the defendant may be accepted: Q. When you were on parole you were not willing to accept the supervision of Corrective Services, were you? A. I don't think anyone likes supervision of Corrective Services but I always called my parole officer, your Honour, when I had problems, I needed their help. I became homeless. I ended up sleeping in my car and then after I told them they said they would have to beat me. I started lying about where I was staying and that is where the lies started. That is where the trouble started.
6. The defendant's failures to report homelessness and his inability to achieve stable accommodation may be properly described as a failure to communicate and a misjudgement in managing difficulties but it can hardly be described as a resistance to supervision when the defendant had no means to overcome the problem whilst unemployed and was prohibited from travelling to Penrith (when accommodation was available). Finally, he received little or no assistance in this regard from Corrective Services.
7. The corollary of the defendant's accommodation problems was his inability to associate with his family and more particularly his father because of his geographic restrictions. Whilst it is reasonably clear that the defendant's father provided assistance to him after being placed on parole, by May 2013, his father was ill. This restricted access by the defendant to his father given he could not travel to visit his son. During parole, the defendant regularly sought access to his father by means of the alleviation of the geographical restrictions. His requests were consistently refused. The restrictions also had the effect of isolating the defendant from significant other parts of his family an issue he consistently complained about with his parole officer. Whilst these difficulties do not excuse the defendant's breach of parole in visiting his father they do offer some explanation and highlighted the importance of the defendant's father in providing stability, support and advice in his life.
8. The defendant's lies about employment which he confessed to Mr Parker were plainly breaches of his parole obligation and undermine his capacity to succeed in parole.
9. I do not consider the note appearing in Mr Parker's report confirms that the defendant had no employment during his parole. Rather the note raised doubts about the first professed employment with a steel hire company in March and April 2013 (being reported to end in May 2013) and the final instance of employment with a business named "Top Tech Automotive" not long before the revocation of his parole. There seems to be little doubt that he completed the traffic controllers course in September 2013 and obtained a position in that area, albeit on a part time basis. Thereafter, and until it would appear in November 2013, he took up a position with Killards Excavation. I agree with Ms Mathur that the defendant did obtain employment but he was unable to sustain it.
10. The significance of these considerations regarding employment is twofold. First, I do not consider that the defendant failed to make any effort to work but it does seem that his efforts were reasonably poor. Secondly, there is no evidence of any support being given to the defendant in seeking work by his parole officers. Thirdly, as I will mention later, there does seem to be some greater opportunity for assistance arising out of the office managing extended supervision orders.

Behaviour whilst in custody

1. The defendant relied upon reports of behaviour in custody as consideration weighing against the making a continuing detention order. This was advanced upon the basis that in a highly structured and monitored environment the defendant is capable of positive commendable behaviour and a diligent work ethic. The defendant's record reflects both positive and negative behaviour.
2. The defendant did receive some positive reports leading to his parole.
3. A Forensic Psychologist, Ms Natasha Ryan, who furnished a report to the Serious Offenders Review Counsel ("SORC") in September of 2007 noted that in the past few years the defendant had displayed: "generally appropriate behaviour and has complied with centre routine… This is seen as an indication that Mr Manna may be responsive to intervention and in conjunction with his recent displays of insight may mean that this is an opportune time for him to progress to a lower classification and engage in intervention. He was assessed as being a moderate risk of reoffending, as determined by an actuarial risk assessment".
4. In a report dated 3 February 2010 by Ms Cherice Cleplucha, a Senior Specialist Psychologist in the VOTP, it was stated that the defendant had generally been compliant with gaol rules and did not appear to have an extensive history with violence in custody, save for "fighting in 2008".
5. In a SORC report prepared by Mr David Levine, dated 15 November 2011, it was recorded that the defendant had overall attractive positive work reports (the exception being disruptive behaviour in 1998). His employment included roles in sweeper positions, cortex machinist, textiles packer/operator, laundry hand, pod barber and working on the farm. It was noted he volunteered to assist with the culture centre, careers day and new inmates. He received several good reports from staff and supported a reduction in security classification from B to C1. A positive improvement was noted in relation to the defendant's attitude after his commencement of the Pups in Prison program. It was noted that the defendant enjoyed "generally good reports".
6. The report also included advice from Ms K Armstrong, a probation and parole officer, from November 2011. She asserted that the defendant's case notes since the beginning of 2010 "have indicated… he is willing to do any tasks set for him… is always polite and courteous to staff… is always happy to help out whenever staff require… has clean hygiene and is always well presented".
7. Mr Chambers observed in 2012 that the defendant's behaviour had improved over "several years" and he had received positive reports from custodial staff.
8. However, during the period of the defendant's 16 years of incarceration, there were incidents or offences of violence, on four occasions: June 2000, November 2003, November 2008 and July 2016. There was also one charge of malicious damage in 2001. It was later suggested to Dr O'Dea, in cross-examination, whose evidence I will turn to momentarily, that this record meant that, in custody the defendant could control his violent behaviour. Dr O'Dea did not agree. It may also be noted that the last of these incidents involved the defendant was attacked by another inmate.
9. Upon being returned to custody, the defendant seemed quite unsettled. He failed in his involvement with EQUIPS and tested positive for methylamphetamine on 3 April 2015. It is the State's submission that the police intelligence summarised above suggests he has an ongoing association with drugs and anti-social peers.
10. However, in a progress report of 15 April 2016 from Melissa Vine James, Senior Community Corrections Officer, Long Bay Community Corrections Unit, it was noted that the defendant's work standard whilst in custody during the period of early 2016 had been described as "impressive". She noted further that, despite one incident, the defendant had been described as "polite and compliant, during ongoing contact with program staff".
11. I consider Mr Parker's observations, in this respect, provides a balanced insight into the defendant's record. He opined that the defendant had a poor record in custody particularly in his ability to control his aggression, save for the last few years of his incarceration which would seem to be consistent with Ms James' report. It may be noted, the violence in July 2016 was not of the same character as previous occasions as it was plainly in circumstances which the defendant was attacked.

Dr Ellis' evidence

1. Dr Ellis undertook a clinical interview with the defendant on 10 January 2017 for two hours. He produced a report on 31 January 2017.
2. The State made a submission in relation to Dr Ellis's evidence which, in the part extracted below, provided a useful summary of his evidence: In a report dated 31 January 2017, Dr Andrew Ellis opines that the diagnosis of primary concern is Antisocial Personality Disorder (p 8). He presents with a lack of remorse for previous violent behaviour and consistent irresponsibility for his actions. There is a history of repeated unlawful behaviour in a variety of domains. Dr Ellis expresses concerns about psychopathic personality traits and notes that personality disorders are chronic, relapsing conditions resistant to treatment and rehabilitative efforts (p 12). Dr Ellis also considers that he has a Substance Use Disorder, primarily cannabis and anabolic. There has been continued use whilst under supervision in custody. Dr Ellis states that his impulsive behaviour may be best related to his personality style, and he may have minor executive function deficits and/or attentional problems that may respond to medical intervention (p 9). In assessing the defendant's risk of future violence, Dr Ellis made reference to the HCR-20 V3 structured professional judgment tool. He stated that there is strong correlation between that tool and the VRS used in the report of Mr Parker. Dr Ellis states that there is a clear history of problems with serious violence beginning in childhood. He has a high loading of historical risk factors associated with violence in the longer term, compared to the general prison population (p 10). … Dr Ellis considers that he currently displays limited insight into his propensity for violence and little understanding of the need for treatment and management. Dr Ellis states that his long term attitudes to violence are not clearly known as he is reticent to discuss frankly his prior involvement in criminal activity. He shows instability of mental state in the form of affective instability (primarily anger) in response to interpersonal conflict. He "has no identified strategy to control anger (p 10). … Dr Ellis considers that, if released, a period of 5 years supervision is reasonable for reasons he states on p 12 of his report. He also states that a period of 12 months in a residential facility would be required as an initial step to work on community reintegration (p 12). He should be referred to a forensic psychiatrist experienced in prescribing medication in this population and he may benefit from medications reducing impulsivity (p 13).
3. To this may be added: 1. With current risk assessment techniques in behavioural science it is not possible to determine whether a person will reoffend with a serious violence offence, but it is possible to identify risk factors. 2. The structured professional judgment tool, Version 3 (HCR-20 V3), is widely used clinically and in research to assess risk for violence and general offending. 3. The correlation between that model and VRS ("Violent Risk Scale") is in terms of violence risk prediction. 4. HCR-20 V3 identified historical, largely unchangeable factors associated with violence risk, current clinical risk factors and anticipated future risk management matters which are available to change. Dr Ellis identified factors such as a history with serious violence, persistent anti-social behaviour (with an anti-social disorder) and persistent attitude supportive of violence (evidenced by weapon carrying and threats used in an institutional setting) as indicating a high loading for the behavioural factors associated with violence in the long term compared with the general prison population. As to the second factor, Dr Ellis found a moderate to high loading of "modifiable risk factors that render internal control of baseline historical risk problematic". These factors included the defendant's limited insight into his propensity for violence and the fact that his long term attitude to violence are not known because he had not frankly disclosed his prior involvement in criminal activity. 5. As to the third category of anticipated future risk management, Dr Ellis stated: Anticipated future problems associated with violence are limited personal community supports, no planned accommodation (or accommodation in a COSP where there are positives in terms of structure and professional support however increased exposure to criminal associates), likely problems consistently engaging in treatment and supervision indicated by substance use and other infractions in custody, plus likely subversion of rehabilitation and likely problems coping with stress. This indicates a high need for professional services and plans to contain the potential for violence. There is some evidence that his pattern of potential for violence has reduced with age. He did not carry firearms on the latest release. This should be tempered by the fact that he has been subject to supervision or custody at all times since his index offence.
4. With regard to the risk of the commission of a further serious violence offence, Dr Ellis stated: In considering structured professional and clinical parameters in the absence of any treatment or supervision, Mr Manna would fall into a group of persons with a risk for violent offending that is statistically high in frequency with potential for serious consequence in his specific case, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk.
5. Dr Ellis estimated that the risk posed principally involved adults with whom the defendant may have "interaction and conflict" and that any violence would be "impulsive and without weapons". The chance that any violence the defendant is engaged in may escalate to a serious level with physical injury is "foreseeable". His "joke" or subtle intimidation with respect to carrying firearms to parole meetings demonstrated a problematic attitude to firearms.
6. Dr Ellis was asked, if he was of the view that the defendant posed a risk of committing a further serious violence offence, would adequate supervision be provided by an extended supervision order and whether any factors might influence that assessment.
7. In answer he reported, under the heading "Custody compared to Community", as follows: Detention in prison limits offending to institutional offences. There is no indication extended incarceration reduces offending on release. Vocational and diversional placement, and community reintegration which do impact on recidivism are necessarily slowed by prolonged incarceration. In this case with the significant monitoring that can be in place with an ESO including restrictions on accommodation such as residing in COSP and restriction on associating with antisocial associates there is potential to manage the risks presented. Although he committed new offences while released to parole the last time, they did not rise to the level of serious violent offences. In particular if substance use can be controlled, and he is established in a productive routine the risk of violence would likely be reduced. Rehabilitation and risk management need not be mutually exclusive goals. If he is able to engage with education or employment and substance use treatment will assist in reducing his risk to others.
8. It may be observed from that extract Dr Ellis had contemplated that the defendant would be located, upon release on an extended supervision order, at a residential facility. He accepted, however, that provided the defendant stayed at his father's house, and this was assessed as suitable, then with professional support the arrangement would be positive.
9. With respect to treatment and supervision plan here under consideration, Dr Ellis opined that the plan "addresses the relevant risks posed in this case". He continued: The monitoring scheme is such that deterioration can be detected early, and interventions applied which could manage the situation presented. It is agreed that the supervision and monitoring has limitations, and could never eliminate the risk posed, however would likely significantly reduce it.
10. In cross-examination, Dr Ellis elaborated upon that opinion, stating that the proposed extended supervision order would provide adequate supervision where as a continuing detention order offered no benefit. The evidence was: Q. Can I just firstly ask you this. My understanding of your ultimate opinion is that there is adequate supervision to address the risk factors in this case? A. Yes. Q. On page 11 under the bolded heading Custody Compared to Community? A. Yes. Q. Again your ultimate position is, is it not, that there is no benefit for continued detention as compared to release into the community when addressing risk factors? A. Yes. Q. In fact you opine, do you not, that the risk factors, namely, accommodation, employment, illicit substance use, are past and can only be addressed whilst in the community? A. Yes.
11. That evidence was emphasised in re-examination when questioned about the impact of employment in the context of extended supervision orders as follows: A. Well, as a general comment persons who reoffend whilst subject to a justice order raise a higher level of concern and it certainly goes to my opinion about his, and I considered the fact that he had reoffended whilst subject to a supervisory order before in terms of the overall risk of future violent offending. The situation though is different now to it was when he committed that offence in that he has had, he is that much older and the other is that the proposal would be for him to be in the community on an extended supervision order, which, in my experience, is much more onerous and there is significantly more monitoring and more restriction than parole type supervision. I don't think that there is, you could not say that his risk would be ameliorated to zero on an extended supervision order and, likewise, his risk in custody is not zero either, I mean, he can still commit custodial offences. So I would think that his risk of violence would be likely better managed on an extended supervision order than parole; and I think there is also much more now known about him and understood about him that could be applied by supervising officers and any treating clinicians involved in his case, that the drawing together of all the information in these kind of hearings and also then being supervised by the ESO team, which has more experienced officers and smaller case loads, would I think be a different situation to when he committed the offence in 2014 and other than the general passage of time.
12. Dr Ellis had expressed a view about the benefits under a continuing detention order in which he stated: Potential benefits of reincarceration under a CDO would be an ability to observe him on leave for work release and further vocational training. He will require repeated explanation, education and motivational techniques before he could be usefully enrolled in a psychotherapy and rehabilitation program. Specific medication to reduce impulsivity and anger could be safely trialled in this type of setting, should he consent to try this.
13. He varied that opinion in light of the employment history of the defendant (when on a release program) which was put to him in cross-examination as follows: Q. And that is to observe him leave for work release programme? A. Yes. Q. Can I ask you to assume this, that he has previously engaged in such a programme, namely, in the months preceding, that is, from July 2012 in the months preceding his release to parole he was engaged in a work release programme for six months with the Scientific Motor Body at Broadway and that that release programme there is no evidence to suggest that he was unsuccessful? A. (Witness nodded). Q. Following that programme he was in fact released to parole. In circumstances where he has been observed on a release programme, do you see that there is, that there does still remain any utility in re incarcerating him for the purpose of observing him on such a programme? A. Well, I wouldn't say that well, no, I don't think that there is, am, and particularly in the overall context I don't think there's a rationale to re incarcerate him. I guess that the, his work release ultimately wasn't satisfactory in that he did reoffend while on parole and it didn't establish a stable pattern of work for him, but I don't see a rationale in repeating that experiment again, but if he was to be re incarcerated you would want to try something like that again.
14. As to factors which contribute to the management of risk, in addition to the earlier mentioned future risk items, Dr Ellis stated: He presents with long periods of institutionalisation, poor employment skills, socialising historically with antisocial groups and a history of marginal accommodation. Stability in these areas will be required as a baseline to further work on patterns of violence supporting thoughts and violent behaviours.
15. After commenting upon VOTP and observing "[t]here does not appear to be any difference in later recidivism for programs run in the community as opposed to custodial settings", Dr Ellis further commented upon risk factors and remedial measures as follows: Other interventions that can achieve abstinence from substances, stable employment and stable accommodation likely have a greater impact on violence reduction than cognitive behavioural programs aimed at violence reduction.
16. Dr Ellis also commented upon the limited utility of the defendant participating in VOTP and more generally in group treatment programs as follows: In this case there is no advantage to participating in this type of program in a custodial or non-custodial setting. There is no evidence to suggest group programs are superior to individual programs. In the particular case of Mr Manna, his personality style is likely to lead to group conflict, and inhibit benefit from a group program. His potential cognitive deficits could limit the potential benefit of this sort of program.
17. As to conditions attached to the extended supervision order, Dr Ellis commented that, at least initially, a condition that required advanced notice of movements was appropriate to enable readjustment from prison, emotional regulation and to assist in monitoring. As to conditions relating to associations with persons consuming alcohol or drugs, Dr Ellis considered placing the defendant in this environment to be "very problematic". Whilst he agreed that the condition may limit pro-social activities, such as restaurant attendance, this restraint was necessary until his behaviour is demonstrably stabilised. There are other pro-social activities the defendant could engage in.

Dr O'Dea's evidence

1. Dr O'Dea interviewed the defendant at the Long Bay Correctional Centre on 21 December 2016 for three hours. He produced a report on 31 January 2017 in conforming with the interim orders of this Court.
2. The opening component of the written submission of the State is again a useful starting point in providing a summary of Dr O'Dea's report as follows: Dr O'Dea provides a diagnosis of Substance Use Disorder, including at least Cannabis Use Disorder, Amphetamine Use Disorder and Steroid Use Disorder, and notes that at least cannabis and amphetamine use have continued through his prison sentence. Dr O'Dea refers to his "significant psychiatric issues through is life" but considers that he does not have a major psychiatric illness ([64], [66]). Dr O'Dea considers that, whatever the full explanation of the index offence (noting the defendant's conflicting and cryptic accounts), it is significant that he has engaged in a number of other violent offences both before and after the index offence (at [15]). Some of the additional offences may be in part due to ongoing problem with anger, aggression and violence, however, Dr O'Dea is not in a position to exclude a criminological component to at least the index offence and the assault in custody (p 15). Dr O'Dea considers that he also meets the diagnosis of Personality Disorder, and considers that he has significant antisocial and psychopathic traits. He repeatedly fails to conform to lawful behaviours and has limited remorse, contrition or commitment to change ([69]). Dr O'Dea states that there were several important topics, including the index violent offence, that he declined to discuss in candid detail. He displayed limited remorse and contrition for his actions in the past, including in relation to the index violent offence (at [63]). Dr O'Dea considers that he may suffer from a Mood Disorder, characterised by anger and depression, that may be amenable to specific psychiatric treatment (at [70]).
3. Despite the limitations in rating scales, psychiatry was called upon to make clinical judgments as to risk and recommended treatment.
4. Dr O'Dea opined that, on the basis of the defendant's reported history of repeat violent offending, in the context of a history of substance disorder and ongoing problems with anger, aggression and violence, "it would seem reasonable to assume" that there was a high degree of probability that the defendant would pose a significantly high risk of further violent offending behaviours including a further serious violence offence, as defined in the Act, in the community in the long term; particularly if the defendant resumed alcohol/illicit substance use in the long term, had an unstructured lifestyle and continued to experience difficulties with untreated anger problems.
5. The risk of further offending remains a long term risk and would exist for at least five years (the period proposed for the extended supervision order).
6. If the defendant, on the other hand, were to remain "abstinent from alcohol and illicit substance use in the community in the long term, engage in successful anger and general mood management, and engage in the structured and supervised risk management programs as detailed in the conditions in the Schedule to the amended summons", from a psychiatric perspective, the risk of the defendant engaging in further violent offending behaviour or committing a further serious violence offence in the community in the long term "could be adequately and appropriately managed in the community". Dr O'Dea's opinion was ultimately that the risks associated with the defendant can be adequately managed in the community.
7. Dr O'Dea considered that further time in custody, including psychological programs in custody, was unlikely to significantly reduce the defendant's risk profile on his subsequent release from prison.
8. There were some particular matters arising from Dr O'Dea's examination in-chief and cross-examination which warrant particular mention: 1. As to the defendant not offending for a period of 19 months after his parole, Dr O'Dea disagreed that that record may be seen in a positive light because its pattern was broken by the defendant committing a significant offence. Rather, the breaking of his arrangements for conditional leave pointed to him having a high risk of violent offending. 2. Dr O'Dea was asked about the report prepared by Anthony Chambers, a psychologist at Silver Water Correctional Centre, in April 2012. Mr Chambers records apparent expressions of remorse by the defendant as to the offence. The defendant was recorded as saying that he would "take back what I did if I could" and had expressed sorrow for the victim and the victim's family. He also recorded that the defendant had indicated that he had fabricated the story about the victim providing heroin to a 14 year old girl because he could not live with himself. The defendant agreed that his offence arose from a bungled robbery after the victim had attempted to retaliate with a metal bar. Dr O'Dea agreed that those were statements of remorse similar to those to which the defendant had raised with him but the statements need to be seen in a broader context of other information. Dr O'Dea opined that, overall, he considered that the defendant still showed limited remorse. 3. The defendant had reported child abuse in the hands of his mother. Dr O'Dea considered that this may assist in understanding his violent offending but that his conduct was more complicated then might be suggested by those traumatic reports. The fact that his mother had not taken responsibility for her actions might be commensurate with the defendant adopting the same approach. 4. Dr O'Dea also indicated that the fact that the defendant had engaged in a limited number of acts of violence in prison (1999, 2000, 2003, 2008 and 2016) did not indicate that he had the ability, whilst in custody, to control his anger. Five independent episodes of violence together with the reports elsewhere, of problems with anger and threatening behaviour in groups, would not support the conclusion that the defendant had good control of his anger. The defendant may be only adequately controlled in the community by the active management of his risk in the community including a stable and suitable accommodation, employment and measures that monitor and/or eliminate substance abuse.
9. Finally, further time in custody, to participate in the VOTP, or other psychological programs in custody is "unlikely to significantly reduce [the defendant's] risk profile in his subsequent release into the community."

Psychological Assessment by Registered Psychologists: Mr Parker

1. Mr Parker met with the defendant for two hours at the Long Bay Correctional Complex. I agree with McCallum J in Manna No 3, he has considerable relevant experience. He reviewed the case notes and prepared a risk assessment report regarding the defendant in anticipation of the application giving rise to the proceedings. He was not called to give evidence.
2. Mr Parker opined that the defendant was at high risk of further violent offending. He did not diagnose him with any major mental illness or intellectual difficulty.
3. Mr Parker referred to the defendant's lack of remorse and the nature of the violence employed in this offence as follows: While Mr Manna has said that he is sorry for what he has done (Ryan, 13/7/2007), his failure to attend seriously to any of the treatment options offered to him, or to give a more forthright explanation of the offence, suggests a lack of remorse. If the offence was indeed a "bungled robbery", then this would suggest that it has elements of both instrumental violence, (planning a robbery) and reactive violence, (the excessive force used after the victim retaliated).
4. The State correctly gave a summary of Mr Parker's report so far as it contained reference to the offence and the risk of offending as follows: During the interview with Mr Parker, the defendant declined to provide a full account of the index offence. He denied that it was a robbery ([6]), but declined to give an account of his actual motive ([17]). Mr Parker considered and applied various risk assessment tools, including the Level of Service Inventory-Revised ("LSI-R"), the Violence Risk Appraisal Guide - Revised ("VRAG-R"), the Violence Risk Scale ("VRS"). He also considered the defendant's criminogenic needs (that is, his dynamic risk factors). He scored him overall as in a high risk category for violent reoffending. The defendant scored on the LSI-R as high risk of general reoffending, as high risk of violent reoffending on the VRAG-R (placing him among 58% of violent offenders with a similar score who reoffend violently within five years) and as high risk on the VRS.
5. It may be observed, that both the Level of Service Inventory - Revised ("LSI-R") and Violence Risk Approach Guide - Revised, were both actuarial risk assessment tools administered to the defendant in May 2015.
6. The first test was said by Mr Parker to be a good prediction of general reoffending but only a moderate prediction of violence, whereas VRS assessed static risk factors to predict the risk of violence.
7. The State relied upon Mr Parker's report in assessment of "risk seriousness": Mr Parker states that if he returns to a criminal lifestyle, he will likely be proactively violent to achieve his desires and would also reactively use violence if he feels threatened. Mr Parker considers that if no order is imposed under the Act (either for an ESO or a CDO), it is likely that the defendant will gravitate to old acquaintances in the Penrith area upon release from custody and resume his previous lifestyle. Mr Parker notes that while he recently commenced the Violent Offenders Therapeutic Treatment Program ("VOTP"), he would not be able to complete this within his current sentence. The defendant told Mr Parker that he was not opposed to a short CDO to enable him to complete the VOTP program ([53]), however he has since said that he is not prepared to complete the VOTP in custody.
8. Under the discussion of the defendant's relevant psychological history, Mr Parker stated: 1. The defendant's principal familial support was his father, step mother and brother. It was unfortunate "these supports" were not available during parole because they lived in the Penrith area (the prohibited zone) and his father was ill. 2. As earlier mentioned, the defendant admitted to Mr Parker that he had been dishonest about the amount of employment he obtained during parole. 3. There was a question about the defendant's work ethic.
9. As to the defendant's custodial and community supervision, Mr Parker opined: 1. His behaviour during custody was generally poor but he had improved in the last few years of his sentence (after 2012) by abstaining from marijuana. 2. His parole compliance deteriorated throughout 2013 being warned of possible breaches and going to undesirable places.
10. He emphasised, under the same heading, three changes the defendant will need to make to avoid returning to a violent criminal lifestyle: employment (the defendant will require assistance to secure and maintain legitimate employment); the development of a law abiding lifestyle with the support of the "High Risk Offenders team"; and treatment by an experienced Senior Psychologist for Corrective Services.
11. Mr Parker's final conclusions included the following: In the event that [the defendant] is subject to an Extended Supervision Order (ESO), it is likely that he will benefit from intensive supervision and case management by CSNSW. This may include electronic monitoring, the obligation to provide weekly schedules of movement; unannounced visits by supervising staff; assistance finding suitable accommodation; scrutiny of social contacts, employment and leisure activities and attending programs to address his criminogenic needs. The higher level of supervision involved in an ESO, compared to standard supervision, would be able to ensure that his stated employment is genuine. However, as VOTP is only offered in custody, he would be unable to complete this program on ESO.

Reports from Corrective Services NSW as to management in the community

Mr Williams

1. Mr Williams, a Community Corrections Officer in the Extended Supervision Orders team ("ESO team"), prepared a risk management report on 5 October 2016. Mr Williams was not called to give evidence in the proceedings.
2. Mr Williams indicated that the defendant provided a positive urinalysis result for methamphetamine on 3 April 2015 resulting in the defendant being sentenced to prison punishments. Further, a parole consideration review was held on 22 May 2015 and 19 June 2015 with the State Parole Authority declining to grant parole. It was also recorded that on 22 July 2016, the defendant was involved in a fight with another VOTP participant and was thereby removed from the program.
3. Mr Williams indicated reasons to which a management strategy to control the defendant may not succeed. They were: 1. The defendant's performance while he was under supervision on parole between 2012 and 2014 was unsatisfactory. There would be a possibility that his attitude towards supervision will hinder his engagement in meaningful case management; 2. He has limited pro-social third party contacts and this may skew the true picture of how he is reintegrating into the community; 3. Community Corrections is unable to conduct surveillance on him 24 hours a day, which hinders the ability to detect whether he is associating with anti-social peers; and 4. There are no treatment programs available in the community of a sufficient intensity to address his risk of violence. He needs to complete VOTP in custody to enable participation in maintenance sessions after release.
4. The defendant is recorded as telling Mr Williams that, if he was subject to an extended supervision order, he would be willing to undergo regular urinalysis and breath-testing as well as attend programs and courses such as Narcotics Anonymous.
5. In an affidavit affirmed by Mr Williams on 25 January 2017 he indicated that, after discussions with the defendant's father and with the consent of the defendant, he conducted a home visit at the father's premises. He assessed the accommodation to be suitable for an extended supervision program. The father and mother-in-law were content to provide accommodation to the defendant, if released.
6. I would also adopt her Honour's rejection of Mr Williams' evidence, in Manna No 3, regarding the defendant's "refusal" to enter the VOTP in custody for reasons discussed below.
7. Noting that Mr Williams had not given evidence (as is the case in these proceedings), her Honour was critical of his report. She described the report as extending to "opinions" and being "thorough in its recitation of negative features of [the defendant's] history while containing little reference to any positives".

Ms Matsuo

1. Ms Matsuo is a Senior Psychologist employed by Correction Services NSW since 1990. She was not called to give evidence, but provided an affidavit affirmed 9 February 2017. Ms Matsuo observed from a clinical perspective, the defendant would reasonably be able to complete the VOTP within a 12 month period. She also added that she had reviewed conditions 44-49 of the defendant's interim supervision order and considered those conditions were appropriate to manage the defendant's risk.

Ms McCarroll

1. Ms McCarroll, the Manager of Metropolitan the ESO team, in substance, agreed with Mr Williams' report. She noted that Mr Williams was no longer the defendant's departmental supervising officer and that he was no longer a Community Corrections Officer in the ESO team.
2. Ms McCarroll acknowledged that, notwithstanding warning letters from the State Parole Authority in 2013 and 2014 regarding the defendant's compliance with parole conditions he remained in the community without committing further offences for a period of 19 months. To his credit, the defendant was not detected with weapons or illicit substances and he was not charged during this period with any violent or intimidating behaviour towards police. However, he was charged in 2014 with offences in May and July 2014 with parole being revoked. It is of concern that the further offences were of a violent nature and the defendant continues to maintain an account of the offences that are inconsistent with the recorded police file.
3. She further stated that, from the review of the offender integrated management system, the defendant was presented with some motivation to integrate into the community through seeking employment opportunities, developing inmate relationships and building relationship with his family. However, the defendant appeared to lack stability in some of these areas which at times led him to fail to adhere to key conditions of his parole order such as missing scheduled appointments with Community Corrections and psychology sessions. She opined that the intensive and structured supervision offered by the ESO team would assist in supporting the defendant to meet the various responsibilities and timeframes required of him in the community.
4. Ms McCarroll then stated: A matter not referred to in the s. 9 Report that I believe warrants mention, is the content of the OIMS case note dated 27 March 2015. This case note relates to a conversation between Wellington Correctional Centre Services and Programs staff in front of the inmate program participants in which the defendant reported that he "used to take a pistol to parole meeting and have it secreted down the front of my pants, with my thumb on the hammer waiting for the parole person to say something that I didn't like so that I could use it on them but I didn't have to". This comment raises significant concerns for the safety of Community Corrections staff and the community if the defendant was in fact arming himself with a firearm at parole interviews. I have considered how this particular risk might be addressed should he be released to the community subject to an ESO. A staff safety management plan would need to be developed prior to his release to identify the risks to Community Corrections staff and ensure strategies are in place to mitigate these risks. Conditions on the ESO allowing person searches of the defendant would be necessary to assess whether he is armed with a weapon during any contact with Community Corrections staff.
5. Ms McCarroll then discussed in her affidavit, various aspects of the proposed supervision plan contained within the schedule attached to the further amended summons. She considered the defendant should be the subject of weekly face to face contact with Community Corrections whilst the subject of an extended supervision order. Of concern will be the defendant's motivation to attend appointments and actively engage with Community Corrections. It was acknowledged that during parole the defendant was "quite transient" with regard to accommodation, so that if the defendant is located with his father and remains stable in that accommodation regular (unannounced) visits to the home should occur.
6. Ms McCarroll agreed that her agency could link the defendant with either Centrelink or direct specific job network providers in the community to assist him in finding employment. Further assistance could also be given in finding accommodation but his present living arrangement living with his father are suitable.
7. As to face-to-face sessions with a therapist, the community officers would undertake in a discussion with persons under an extended supervision order that do not have a good relationship with their therapist and try to identify a workable relationship including removing barriers.

Getting SMART Program

1. The defendant completed the Getting SMART program, a drug rehabilitation program, for drug abuse problems in November 2008. McCallum J stated, in Manna No 3: "[the defendant] was variously described as having participated 'satisfactorily', 'well' or 'very well' in the program" (at [49])..

VOTP

1. In the Manna No 3, McCallum J stated (at [75]): Cleary, two issues will loom large in the final determination of the present application. One is the desirability of completing the VOTP in custody. The second is the extent to which Mr Manna would be likely to engage with supervision in the community if released on an extended supervision order.
2. The first of those issues reflected the contention by the State, in support of its application for an interim continuing detention order, namely, the defendant remained largely untreated due to his refusal to complete the VOTP in custody. Reliance was placed upon the evidence of Mr Williams who contended that the defendant failed to engage in a program to address violence and should be returned to custody to complete the VOTP.
3. Ms Mathur raised that issue again in these proceedings, contending that the State's stated purpose in seeking a continuing detention order was that the defendant should complete the VOTP. However, the State emphasised, in final submissions, that it was the choice of the defendant to engage or not engage in recommended therapy (i.e. to complete the VOTP) and such a consideration did not underpin the basis of the State's case. The State wished to focus upon the risk posed by the defendant.
4. This shift in emphasis from preliminary hearing to the present proceedings was understandable, given the evidence of Drs O'Dea and Ellis who indicated that the making of a continuing detention order for the purpose of completing the VOTP in custody, was at the least, unnecessary or lacking utility, and in other respects counterproductive.
5. Given that position, the defendant's participation in the VOTP takes a position of less prominence in the disposition of the matter than occurred at the interim hearing, but it nonetheless continues to have some significance in relation to the State's application to which I will now turn.
6. Justice McCallum's observations in Manna No 3 with respect to the defendant's experience with the VOTP are instructive (see [42]-[59] and [65]-[74]), particularly as neither party sought to revisit her findings in these final proceedings.
7. Her Honour made a number of findings which substantially rebuffed the notion that the defendant was uncooperative in engaging in this violence aversion program as follows: 1. After successfully completing the "Getting Smart" program, the defendant indicated a desire or willingness to undertake the VOTP in 2008 and 2010 but his involvement remained unresolved until after his parole, notwithstanding a direction by the Parole Authority in April 2012 that he should complete such a program before parole. 2. There seemed to be some dispute as to whether the defendant had refused to do the program in 2015 (although the defendant indicating he wanted to be cleared as being suitable). In 2016, he again inquired as to when he would be able to undertake the program. 3. The defendant eventually commenced VOTP in March 2016, as McCallum J commented, "almost 19 years after the commencement of his sentence". He successfully engaged with the program until 20 July 2016 when he was suspended, under his protest, because he fought with another inmate who had attacked him (he retaliated in an attempt to defend himself). 4. Despite an initial desire to return to the program after suspension, the defendant subsequently stated he felt unfairly treated, after some reflection, and was unwilling to complete the program in custody. He agreed to VOTP maintenance or one on one therapy in the community under an extended supervision order. 5. In this light, I agree with respect to the two observations made by McCallum J, with respect to the defendant's treatment under VOTP as follows: [73] Against that unhappy history, the correctness of the contention that Mr Manna "remains untreated due to his refusal to complete the VOTP program in custody" may be doubted; at the very least, it is an incomplete statement. … [79] … While the case notes amply record the good intentions of individuals attempting to assist Mr Manna to address his offending, the systemic response to his need for treatment has been both languid and chaotic.
8. I would add to these observations that the defendant's response to VOTP does demonstrate a willingness to undertake treatment programs for violence in a community setting.

CALM

1. It was a condition of the defendant's parole that he take part in CALM. He attended only three sessions before being removed from the program on 21 February 2013. This was due to inappropriate behaviour by the defendant. His behaviour was described as disruptive, with an unsuitable attitude.
2. The facilitator recorded that he "was a difficult group member...dominated the group's time and appeared to have no awareness of others... [h]e stated that the offence was self-defence and the police facts were wrong, contradicting what he said in the pre-program interview".
3. The defendant accepted in cross-examination that his behaviour in those sessions was "inappropriate", although he attributed his behaviour to the interference of the program with work. There is however, some doubt as to how much work he was performing at the time and it would appear the principal difficulty was his placement in a group program as earlier mentioned in the summary of Dr Ellis' report. In May 2014, the defendant was also recorded as commenting to his supervising officer that he did not complete the CALM program as it was not "suitable for him".

EQUIPS

1. In February 2015, the defendant commenced EQUIPS in custody. He was removed on 31 March 2015 because of threatening behaviour. His behaviour was described as aggressive and inappropriate. The defendant was also recorded as being "argumentative, abus[ive] and threatening towards OSMP staff".
2. As earlier mentioned, he was reported as saying during a session that he used to take a pistol to his parole meetings hidden in his pants with his "thumb on the hammer waiting for the Parole person to say something that I didn't like".
3. The State did not press this Court to reach a conclusion on the balance of probabilities that the defendant did in fact take a pistol with him to the relevant meeting. Rather, it was submitted that it was open to the Court to find that he did make the statement, based on this being a contemporaneous case note dated 27 March 2015 in the following terms: One comment was (words to this effect) "I used to take a pistol to Parole meetings and have it secreted down the front of my pants, with my thumb on the hammer waiting for the parole person to say something that I didn't like so I could use it on them but I didn't have to".
4. The defendant expressly denied making the admission under cross-examination and would not admit making the statement when pressed. For the reasons I will later discuss in considering the defendant's evidence, I consider the defendant made the statements attributed to him or words to that effect
5. The State submitted that the statement, without a finding that the defendant actually had a pistol, remained relevant to the risk posed by the defendant. That statement was, it was submitted, a threat and demonstrated "the defendant's negative attitude to supervision". Ms McCarroll observed this comment raised significant concerns for the safety of Community Corrections staff and the community if the defendant was in fact arming himself with a firearm at parole interviews.
6. An observation should be made about the context in which the observations are made. The statement was made within a group program session which was divided into two segments for the defendant (he left part way through the first session to attend to laundry and a food order). In the first session, inmates were invited to use a "character story" (suggesting an invitation to creatively think and consider events and ideas) to investigate what was happening at the time of their offence. It was in this context that the defendant then made the statement upon his return in the second session. The statement was also made in the context of him being quite disruptive and uncomfortable in the group sessions. However, as mentioned, Dr Ellis opined it also shows a problematic view as to the use of firearms.

Ms McGregor

1. Between 6 March 2013 and 10 October 2013 whilst on parole, the defendant attended eight sessions with Ms McGregor, as directed by "Probation & Parole". He was referred to individual counselling shortly after his removal from the CALM program. The counselling was terminated due to limited evidence of his engagement or progress (as noted by the Ms McGregor). However, Ms McGregor recorded "there were times when he engaged with her". Clearly, there were limitations in the engagement by the defendant with Ms McGregor.
2. Ms McGregor noted in her report that the defendant had undertaken assessment and treatment from approximately 20 psychologists during his incarceration, most of which was "short lived". This assertion inferred blame upon the defendant with respect to either the change in psychologists or the duration of therapy. However, as the defendant submitted, explanation is provided by the large number of gaol transfers the defendant underwent and the need to prepare "reports for SORC/Parole or court purposes".
3. In May 2014, the case notes record the defendant had indicated he had a trust issue with psychologists as one had revealed personal information provided by the defendant.

Private Psychologist

1. There was a proposition put to the defendant on cross-examination that he had refused to cooperate with a third psychologist treatment (a private psychologist). He rejected that proposition with some justification.
2. Given the defendant's financial position, as a preliminary to engagement with a private psychologist, on 11 June 2014, the defendant was directed to attend his general practitioner ("GP") to obtain a health plan for such treatment.
3. On 24 June, the parole officer observed the defendant had no means of income including Centrelink payments. It was noted that "enquiries were [being] made in relation to the offender having obtained a mental health plan for assessment with a psychologist and sessions as required to which the offender denied". It is not entirely clear what that entry meant (it most likely referred to the defendant's financial position) but the officer directed the defendant to obtain a mental health care plan by his next report.
4. A breach notice issued on 16 July stated that the defendant was reluctant to engage a private psychologist in a meeting with his Supervising Officer on 24 June. That is strictly correct but it is misleading as it omits reference to the context in which the defendant's views were expressed, namely, his impecuniosity. There was no objection to undertaking treatment with a private psychologist but rather an issue about the defendant having to be reminded to obtain a health care plan. The defendant was correct to observe in cross-examination that a problem with providing psychological treatment during his conditional liberty was that Corrective Service "wanted [the defendant] to pay for it" (or his father). In fact, the approach adopted by the defendant's supervising officer on 24 June was the issuing of an order that the defendant obtain the mental health plan from his GP precisely because of that financial issue.
5. The defendant stated that he did obtain a GP referral before he was returned to prison at the end of July 2014, soon after the breach notice was issued. I consider that evidence should be accepted. It was not suggested to him in cross-examination that that evidence was untruthful. Further, the defendant did not receive a breach notice because he failed, after the order was issued on 24 June, to attend upon a GP to obtain a mental health plan. His return to prison occurred shortly thereafter.
6. When understood in this light, I do not think it can properly be adjudged that he failed to co-operate with his last offered form of psychological counselling or at least that his approach to the offer of a private psychologist should be taken as an indication that he would fail to co-operate with such treatment in the future.

Mr Chambers

1. I consider the defendant's engagement with Mr Chambers suggests that there are prospects for establishing an appropriate and successful treatment program with a psychologist (most likely on a one on one basis) for him, if sufficient rapport and trust is established with a treating psychologist.
2. In his report of 2 April 2012, Mr Chambers made the following observations: 1. The defendant was generally polite and cooperative and respectful during interviews and engaged as required. He appeared to respond honestly when challenged. 2. The defendant became visibly upset and teary during the interview in describing episodes of abuse perpetrated by his mother. He reported that when he was six years of age his mother attempted to drown him. He also reported at the age of 11 his mother stabbed him with a pair of scissors. He reported that he felt that his mother did not take responsibility for her actions towards him and showed no remorse. Mr Chambers noted that if the defendant wished to address the relationship difficulties with his mother this issue would require extensive psychotherapy, over an extended period. 3. Mr Chambers noted that the defendant reported feeling sorry for the victim of the offence and the victim's family, particularly the victim's children. The defendant stated that he would "take back what I did if I could, considering the impact the crime had on the victim's children the victim himself and his own family'". 4. Further, Mr Chambers noted that the defendant was open to being challenged in relation to his level of remorse or apparent attempts to shift blame for his offending behaviour. Although he became frustrated and defensive when challenged, the defendant nonetheless was willing to engage in conversations aimed at challenging these distorted cognitions. This was an indicator that the defendant would be responsive to a program directed to anger management intervention that included components of cognitive restructuring (although one said exception was CALM). 5. It was during the sixth session that Mr Chambers had with the defendant that he disclosed that he had lied in relation to the victim of the offence whom he claimed had provided heroin to a 14 year old girl as he had asserted to the psychiatrist who gave a report at the sentence hearing in relation to the offence. He stated that he fabricated the story as he couldn't live with himself and felt ashamed of what he had done". He stated that he had started to believe his own story, even though everyone knows that it was a lie. Her further stated "I tried to wipe them from my memory and make excuses for them". 6. Mr Chambers noted that the defendant appeared less defensive and more reflective in sessions following his admission that he had lied. Mr Chambers administered the violence risk scale and found that the overall results of the VRS estimated the defendant's risk for violence is within the medium range although the defendant scored on the low end of this range. 7. Mr Chambers stated, "Mr Manna's score on the VRS is at the medium range with regard to violent reoffending risk, albeit at the low end of this range. However, it should be emphasised that it presents with several dynamic risk factors associated with violence potential and if these factors are not well managed, his reoffending risk may be higher. His incarceration has been lengthy and his ability to cope outside the confines of a structured prison context remained untested. Effective monitoring and intervention in relation to dynamic risk variables would be critical." 8. In terms of case management Mr Chambers recommended, amongst other things one to one psychological intervention was required.
3. Further, in his affidavit, the defendant gave the following evidence as to his attitude to future psychological treatment: I disagree that my engagement with the parole psychologist was superficial. I tried to engage with her and I told her that she could ask me about anything at all, but she wanted me just to start talking about all the hard parts of my life on my own. That's really hard for me to do, because I've buried it for so long and I have trust issues with authority figures like psychologists after I was sexually abused by the priest. I'm happy to go to therapy and counselling, and I think it could be more useful for me to be able to see someone who I feel comfortable with. I find it hard to open up to people I don't trust, and I need to feel comfortable with a person before I can trust them. I've seen so many psychologists over the years; I've felt comfortable with some but not others, which has made it hard for me to open up to them. There are things I've been through which I never wanted to talk about before. It just wasn't in my family's culture to talk about that stuff. But I think I'm ready to talk now. I don't want to be silent anymore.
4. Under cross-examination, the defendant accepted that he had missed counselling appointments and rejected the proposition that he did not make any effort in individual counselling. It is true he did not terminate the counselling with Ms McGregor but he did contribute to its cessation due to his lack of co-operation. He was asked if he would participate in future psychology sessions. He acknowledged his willingness and need to participate in therapy sessions and stated: "I want to because I need help, I need to talk to a psychologist on a regular basis. There's a lot in this world now has changed and it's going to be hard for me and, you know, I haven't done well so far." He repeatedly acknowledged his limitations and accepted the need for assistance: "Yes, I have a lot of problems. I need help and I need to be with my family".
5. This evidence should also be viewed in the light of the evidence of Ms McCarroll, who seemed to accept the defendant's difficulties arose, in part, from a disjunct between the defendant and his therapist, Ms McGregor, as follows: Q. With respect to engaging with a therapist, psychologist, psychiatrist, is it correct to say that in having read the case notes you took away from those case notes certainly a disjunct perhaps between Mr Manna and his allocated therapist during his parole period, namely a lack of rapport between the two of them? A. I took from the case notes that Mr Manna was not happy or unwilling or unhappy to continue with those sessions, yes.
6. As earlier mentioned Ms McCarroll submitted that an effort would be made to find a suitable psychologist for the defendant under an extended supervision order: Q. And under an ESO is there flexibility there with respect to organising or assisting with a different therapist if rapport is not if Mr Manna says or complains of a lack of rapport with the therapist he's allocated? A. I couldn't categorically say whether what the outcome of that would be in terms of a change or how the allocation of psychology staff is attributed, but certainly that's a discussion that we have with some people under the extended supervision order if they're not having a good relationship with their therapist. The therapist will often then try to identify whether it's a workable solution to their relationship and whether the barriers can be worked through or whether it's more appropriate that they see a different officer for whatever reason.
7. This survey of the evidence concerning treatment and rehabilitation programs in which the defendant had an opportunity to participate reveals a mixed picture as to his willingness to participate in any such programs. It is plainly, as Ms Mathur put it, an imperfect record of participation but, there were occasions of participation, engagement and progress and reasonable prospects for future treatment on a face to face basis with a psychologist.
8. On the one hand, he failed to complete the CALM program after being disruptive. He undertook the EQUIPS program but was again disruptive and uncooperative. His sessions with Ms McGregor on a one on one basis were mutually terminated but were assessed to be unsatisfactory because, in most respects, he failed to engage with the process except on some limited occasions.
9. On the other hand, the defendant had successfully completed the Getting SMART program. To a very large degree, he showed a willingness to participate in the VOTP over a substantial period of time which dissipated because of his concerns over an incident in which he was attacked by an inmate and thereafter suspended from the program. The defendant's participation in the program was limited to the period 10 March to 20 July 2016. I agree with McCallum J that the long delay in his attendance upon the program and its lack of completion lay principally, but not entirely, in the hands of his custodians.
10. As earlier mentioned, the defendant did fully engage in his sessions with Mr Chambers in which he made some real progress. In my view, the defendant did not demonstrate an unwillingness to participate in treatment with a private psychiatrist, except to express the limitations of his ability based on financial concerns.
11. I do not consider a pessimistic approach should be taken to the defendant engaging in treatment on a one on one basis with a psychologist in a constructive manner to the community under an extended supervision order. Certainly, the evidence is contrary to a proposition that the defendant is a person who cannot or will not engage in therapy. A successful treatment program offers the potential to manage the risk of reoffending. These conclusions are for the following reasons (when read in the light of my earlier analysis): 1. Whilst unacceptable from a parole view point, the defendant's failures in CALM and EQUIP seem to be largely based upon the incompatibility of the defendant in engaging in group therapy. 2. With no criticism of Ms McGregor, it does appear that the ultimate failure of her psychological sessions resulted from both a lack of rapport with the defendant and a breakdown of trust held by the defendant. The disclosures given by the defendant to Mr Chambers and his response to that treatment gives a reasonable expectation that with an appropriate clinician operating in a structured setting the defendant may properly, engage with one on one therapy with a psychologist (and, as Dr O'Dea opined, perhaps with a psychiatrist). This will be supported by the ESO team. Ms McCarroll indicated the team would work with the defendant to find such a fit. The prospects for success are buttressed by the recognition by the defendant of his need for treatment under an extended supervision order in the community. The defendant has bluntly accepted the need for psychological treatment with his evidence in these proceedings. 3. This is not to suggest that such programs might necessarily produce rehabilitation but they are likely to be effective in managing the risk of reoffending. Mr Parker's evidence was that he would engage the defendant in a program that would focus on managing the defendant's risk. Dr O'Dea referred to the need to subject the defendant to psychological treatments focused on anger and general mood management as well as the defendant's substance disorder. Both of them accepted that such treatment could be successful in a community setting.

Evidence of the Defendant

1. The defendant gave evidence in these proceedings four days after his release from prison, after serving a sentence of 20 years, interrupted by a parole period of about 1.5 years. Despite this, and a reasonably rigorous cross-examination, he appeared composed. However, given the evidence of Mr Parker, that may not be taken as a long term indication of his capacity to manage his difficulties with anger.
2. In cross-examination various challenges were made to his evidence-in-chief or former explanations or accounts. I have earlier substantially ruled upon those matters in dealing with findings of fact and will provide my reasons for the same in this section together with views of other aspects of the defendant's evidence which were not challenged or left standing. I do so in circumstances in which neither counsel made submissions as to the credibility of the defendant or the reliability of his evidence other than the State challenging parts of his evidence. His evidence appeared to be forthright and in some important respects may be accepted. However, in other respects, it strained credulity or was fabricated.
3. Overall I consider the defendant's evidence should be partially accepted and partially rejected. On the one hand, his evidence constituted the maintenance of previous fabrications or falsifications made in relation to the offence. This includes police intelligence gathered during parole in 2014 and the defendant being tested positive for methamphetamine when returned to custody after the breach of his parole and a new falsification, namely his statements regarding the taking of a pistol into parole meetings (although it was not asserted that he actually undertook that action).
4. On the other hand, his evidence constituted, for the first part, elements of candour, frankness and honesty, even against interest (with respect to lies given to Corrective Services over his accommodation during parole, his misbehaviour in the CALM program and missed appointments with psychiatrists (to which may be added his admission to Mr Parker as to lies given to Corrective Services over his employment at various stages of his parole), and, in the second part, evidence of aspirations and objectives given in a candid forthright and believable manner and presented with genuine positive emotion. This second part was supported objectively by other evidence, such as the significance of him taking up residence with his father as a stabilising supportive influence and his aspirations to make good opportunities outside of incarceration under supervision orders with psychological treatment.
5. The acceptance of only part of the defendant's evidence is available in law: Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-9; Kalokerinos v Burnett [1996] NSWCA 288 at [4]; New South Wales v McMaster [2015] NSWCA 228 at [119]; Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 at [19]; Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeals and Review) Act 2001 [2015] NSWSC 1925 at [73].
6. I turn then to the basis for these conclusions commencing with evidence I have rejected.
7. First, to the offence. By the time the defendant had made a submission to join VOTP on 28 May 2015 (and earlier in his account to Mr Chambers), his version of events giving rise to the offence had changed from what he had previously recounted to Dr Klug to a version in which the victim produced a weapon before the defendant shot him. This evidence was repeated in the defendant's evidence in these proceedings. The evidence suffers two difficulties. First, it stands contrary to the findings of the sentencing judge for the offence. Second, it contradicts the defendant's earlier version of events.
8. The defendant's evidence about what police intelligence revealed in May and June 2014 as to persons and things found in his car associated with drugs was fanciful. It should be acknowledged, with respect to the police intelligence associated with December 2013, where his car was pulled over, that he accepted that the prostitute he was seeing did take drugs or at least he assumed so.
9. Similar observations may be made about the defendant's observations regarding him taking methamphetamine in custody after being returned from parole. His explanation that a fellow inmate was smoking large amounts of the drug in his prison cell (thereby the drug being consumed by him) is implausible in two respects. First, the defendant states he complained to the authorities without them taking any steps in relation to the matter. This scenario is highly unlikely both in terms of the complaint and the inaction by authority. Secondly, he pleaded guilty to the positive test. His explanation for that step again lacked credibility.
10. It does not follow, however, that the defendant had resumed drug taking in prison. No contention was made to that effect and the proposition does not sit comfortably with his improved performance in custody in his final years as mentioned by Mr Parker.
11. Finally, I do not accept the defendant's evidence that he did not make statements to the effect that he took a pistol into parole meetings. The contemporaneous record of what was said by him should be given preference to his own account particularly when that same contemporaneous record indicated that his statement was most likely made in frustration, due to competing scheduling requirements (i.e. meal time, laundry time and requirement to undertake group therapy). It was also noted that the statement occurred in the context of a therapeutic exercise encouraging creative and reflective thought.
12. In contradistinction, I consider the first part of the defendant's acceptable evidence to be reliable. All of that evidence correlated with the case notes and were made against interest. It represented a shift in candour about those things than had been displayed in earlier times.
13. I then turn to the second part of my acceptance of the defendant's evidence. As mentioned, there are some components of the defendant's evidence which were convincing, not only because the manner in which the defendant gave his evidence in these respects but because, as I have noted, they conform to the objective facts.
14. Shortly after his reincarceration in 2014, it was suggested that the defendant may prefer to stay in prison as opposed to participation in a treatment program (most likely due to exacerbation). However, his statements to that effect were made in circumstances in which he experienced real difficulties with arrangements being made for VOTP counselling, was frustrated at his return to custody and had a relatively short period remaining in his term of custody.
15. The defendant was institutionalised in prison for most of his life. It is hardly surprising that he may now seek to take up a position in the community. He consistently sought this but was denied (by order or opportunity) the support of his family during parole. He was also unable to obtain stable accommodation.
16. Despite problems earlier in his life, his relationship with his father is significant because it is a loving and supportive relationship and with it comes accommodation. Further, and as I have mentioned, the defendant has shown some recognition in his evidence of the need for psychological treatment with an appropriate practitioner.
17. With those considerations in mind the following extracts from his evidence, together with the defendant's evidence as to wishing to participate in future psychological treatments, are in my view reliable, and should be accepted: A. At the end of the day I committed that crime. No one is responsible but me. I do feel bad about it and I lost not only his life but my life and my family's lives but I can't take it back, as hard as I try I can't take that back. I do, and sometimes I feel guilty about it, but I want to try and have a life of my own now. … Q. If those conditions are imposed upon you, what do you say about your willingness to abide by them? A. I will abide by it 100%. Q. Notwithstanding that you lied? A. I don't want to go back to prison. I have spent most of my life in prison now. I miss my father. My father is not well. I have a girlfriend at the back of the court room. I know I can't have a normal life but I want to try and behave so I can get close to that. I don't want to go back to prison. That is why I am here today for this. I want a chance to just try and - not be normal - I have never been a normal person, but I want a chance to try. I want an opportunity and I believe that. Ok like, I have done some very stupid things but I do believe that I should be given the opportunity which a normal person is. (Tcpt 28/02/17, p 46) … Q. If you are faced with a similar situation as you see it you would lie again? A. No. I would say that the situation is different this time as I have my father to live with where last time I was excluded from my family altogether so I had no support. Now my dad is there. He is a good man. He keeps his eye on me and since I have been home I have been doing all the work, gardening and that, for him. That is a good thing for me but I know I need a psychiatrist too, I think, just so I can go - the schedule has put a bit of pressure on me, a bit of pressure on him and pressure on my relationship with my girlfriend. So I am going to need security so I can go and speak to, even if I went to, say, you say two weeks but I might say three days later I need to speak to that person, I want that possibility but I can't pay for it and I don't want to ask my father to. The last time they wanted me to pay for it and that was a problem.
18. It should be emphasised that the evidence does not necessarily constitute evidence as to there being good prospects of rehabilitation. No expert supported the making of an extended supervision order in favour of a continuing detention order based solely upon notions of rehabilitation. Rather, the evidence is supportive of expert opinion that the defendant's will cooperation in treatment will enhance his integration into the community under a structured management and thereby alleviate risk. That said, I note that Dr Ellis opined that rehabilitation and risk management were not mutually exclusive.

Submissions by the State

1. The submissions of the State primarily turn upon the establishment of risk pursuant to the Act. In the State's submission, adequate supervision would not be provided by an extended supervision order. The application of the State was dependent upon the satisfaction of two tests: the question of adequate supervision and whether the supervision orders are sufficient.
2. The State submitted that adequate supervision would not be provided by the extended supervision order proposed by the defendant because: 1. The sentencing judge for the offence remarked that the defendant was a "determined criminal" who was not prepared to change his ways. The State submitted that the evidence before the Court indicated this was still an appropriate way to characterise the defendant. 2. The defendant had an opportunity, during a period of parole supervision, to demonstrate that he can adapt to lawful community life. However, within that period the defendant repeatedly failed to comply with any of the substantive obligations of parole culminating in the defendant reoffending by committing an offence of violence within 18 months of his liberty. The defendant has also performed quite poorly, since being returned to custody.
3. The State relied upon a chronology as part of its submission. It was conceded that the chronology primarily focused upon events that characterised the defendant in a negative light, omitting any positive reference from the defendant's history, which might otherwise have arisen from the evidence.
4. The State made a number of particular submissions regarding parole which have been summarised and dealt with earlier in the judgment.
5. The State also referred to another incident, in July 2014, of common assault. Although the incident did not constitute a "serious violence offence" as defined by the Act, it was submitted as relevant to consideration of "risk"; namely, the use of such a weapon heightens the risk of violence causing serious injury or death.
6. The defendant tested positive to methamphetamine in custody. It was put to the defendant on cross-examination that the drug was detected in his urine because he had consumed it, which is the clear inference to be drawn from the positive urinalysis. Despite testing positive, the defendant denied using the drug on that occasion. In the State's submission, this was another example of the defendant being less than forthcoming about a whole range of things, regarding what he says and what he does. There can be very little confidence that he would be truthful with those supervising him under a supervision order.
7. In relation to his behaviour upon re-incarceration, on 20 July 2016 the defendant was recorded to have engaged in a fight with another inmate. Although he did not instigate the fight, due to a zero tolerance policy, the defendant was subsequently suspended from the VOTP.
8. The defendant was invited back to the program in September 2016 but refused the offer. Hence, he reached the end of his sentence without completing a high intensity violent offender program.
9. As a result the State submitted that the Court would have very little confidence that the defendant would comply with an extended supervision order. To that may be added, the defendant has also conceded, under cross examination, that he felt many of the conditions which the State seeks to impose are too much. He was clearly not happy about many of the conditions.
10. State submitted the evidence establishes strongly that the defendant has not attended seriously to any of the treatment options offered to him either in custody or whilst on parole, and that was reflective of his attitude to supervision. Those facts should result in the satisfaction of the test under s 5G(1) of the Act in which adequate supervision will not be provided by an extended supervision order.
11. It was accepted that Dr Ellis thought an extended supervision order was more appropriate than incarceration (even though the defendant would now be living with his father rather than in a community offender service program) and that Dr O'Dea and Mr Parker had similar views. It was submitted, however, that the context was that of "a clinical perspective and not purely a risk perspective" and rehabilitation.
12. The State expressed serious doubt as to the assistance the defendant may obtain under an extended supervision order in relation to accommodation and employment. The State contended: "[i]t's not the case that he will be given a job or told or that the supervising officers will find him a job". Ms McCarroll said that they will assist to refer him to services. If the submission is that such assistance will make all the difference in terms of his ability to stay out of trouble, Ms G Wright, counsel for the State, submitted, that "overstates things".
13. The history of the defendant's violent offending means that the safety of the community should be given considerable weight. His offence was committed against a stranger and his most recent assault (in 2014) was committed in a domestic situation. The alleged statements during the 2014 assault that he would stab her and 'slice her throat' should be given due weight. Mr Parker opines that he is at risk of both proactive and reactive violence.
14. In summary, the State submitted the test for making a continuing detention order had to be made for the following reasons: 1. The opinions of Dr Ellis, Dr O'Dea and Mr Parker that he is at high risk of serious violent offending in the long term; 2. The gravity of the offence and the assaults committed since that offence; 3. The defendant had not complied with the conditions of parole between 7 December 2012 and 18 July 2014. He not only failed to comply with conditions of regular reporting and counselling participation, he also committed an offence of violence. He had made comments which indicated that his risk of violence to others remains unmitigated, including the incident in which a victim was assaulted (threatening to slice her throat), and following his return to custody, the circumstance in which he said he took a hidden pistol to his parole meetings; 4. The revocation of his parole order means that he will reach the end of his sentence in February 2017 without any parole supervision. An extended supervision order is the only option for ordering mandatory supervision. There is however a strong basis for considering that an extended supervision order will not provide adequate supervision given his history of refusing to report, not attending required counselling, and offending and his continued minimisation of responsibility for the index offence; 5. An extended supervision order could provide for community-based treatment, however this would not be the intensive violent offender treatment needed, which is available only in custody; and 6. He has a history of abusing and associating himself with illicit drugs. Absent strict monitoring, he would be likely to associate himself with substances and anti-social peers upon his release from custody.

Evaluation of the risk posed by the defendant

1. Counsel for the defendant conceded that the defendant was a high risk violent offender for the purposes of Div 2 of Pt 1A of the Act. That concession cannot have any determinative quality because, in order for the defendant to be classified as such, this Court must, inter alia, be satisfied by its own assessment, to high degree of probability, that the defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision: s 5E(2). However, upon the evidence in these proceedings, the concession was, in my view, plainly appropriate.
2. I am satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision upon the basis of risks posed by the defendant as demonstrated by three factors: his criminal history, recent statements associated with violence and his failure to frankly discuss the offence when taken together with the opinions expressed by the court appointed experts and Mr Parker.
3. That introduction requires some elaboration.
4. First, the history of the defendant's violent offending must feature centrally in the assessment of the risk of the likelihood of him committing a serious violence offence, if he is not under supervision, due to the gravity of the offence and the nature of the assault committed in 2014. The offence was an appalling crime, incorporating, as Mr Parker opined, elements of instrumental and reactive violence and was committed against a stranger. The offence of common assault in 2014 was not a serious violence offence but must nonetheless contribute to the assessment of risk because it involves reference to the use of a weapon and occurred in a domestic situation (although the charge associated with use of a weapon was dismissed and no aggravating factor was found to exist in that regard).
5. Secondly, the defendant's statement that he took a hidden pistol to his parole meetings, upon return to custody, whilst an overblown statement made in frustration, nevertheless contains an element of threat involving a risk of violence.
6. Thirdly, the defendant's failure to candidly discuss his involvement in the offence inhibits an ability to understand his long term attitude to violence and demonstrates the limits of his remorse (even though he had expressed his guilt and misgivings in these proceedings).
7. This is not to suggest the risk of violence remains entirely unmitigated as submitted by the State but that the risk posed by these factors including the likelihood of reoffending (taking into account the views expressed in expert evidence), even when considered in the light of mitigation, constitutes a level of risk of violence which warrants a finding that the defendant poses an "unacceptable risk" for the purposes of s 5E(2).
8. These same factors must also be given due weight in the assessment of whether adequate supervision may be provided by the extended supervision order, given their relationship to the safety and protection of the community and the necessity to give full effect to the primary object in s 3(1) of the Act. But that consideration can wait.
9. Dr Ellis and Mr Parker accepted that current risk assessment techniques in psychiatry and psychology such as actuarial measures and professional judgment tools were not capable of predicting or determining whether an individual would reoffend with a serious violence offence. Dr Ellis acknowledged that the assessment methodologies allocated individuals with particular characteristics to "risk groups" which had been identified as possessing greater or lesser numbers of persons within the group as reoffending. He accepted the difficulty with that approach was that it did not discriminate within a particular risk group those who offended and those who did not. Dr O'Dea acknowledged the limitations in such methodologies and employed clinical analysis. In turn, Dr Ellis pointed to some limitations in unaided clinical impressions when compared to risk assessment methodologies.
10. Nonetheless, structured professional judgment tools are widely used for clinical and research purposes to assess the risk of violence and reoffending and, as Dr O'Dea stated, psychiatry is regularly called upon to make clinical judgments as to risk and treatment. Further, the opinions expressed in this case have been made by psychiatrists and psychologists with considerable experience and learning in predicting risks associated with criminal offenders, including the risk of reoffending. All of their analyses and the application of risk assessment methodologies are directed to violence risk prediction.
11. The defendant did point to some difficulties with the methodologies and, in particular, the difficulties associated with making an assessment of a percentage rate of reoffending based upon statistical distributions in the absence of an understanding of the facts and circumstances of the particular cases from which the probability of reoffending was calculated. To that may be added, the scope of the tools to make predictions is reduced in relation to high risk offenders. However, the defendant made no serious challenge to the conclusions as to risk expressed by the court appointed experts and Mr Parker; and ultimately, as noted above, the preliminary requirements stipulated by s 5E(2) should be treated as met in this case.
12. The concerns expressed by the defendant can travel no higher, in my view, than the professional judgment tools used by Dr Ellis and Mr Parker in risk assessment, and cannot be taken as determinative of a likelihood of offending in a particular case. They provide, nonetheless, an important yardstick or measure against which the risk posed by an individual and the likelihood of that person reoffending might be assessed. The tools, aided by clinical assessments in this case, are significant in that they identify fluctuating risk factors, which contribute to or moderate the overall risk posed by an offender.
13. The court appointed experts, and Mr Parker, each were of the opinion that, in the absence of supervision in the form of community supervision and monitoring, as contemplated by the extended supervision order, there was a high risk of the defendant committing a violent offence. Dr Ellis found that the defendant fell into a group of persons in which the risk for violent offending was statistically high with a potential for serious consequences (in his case). Dr O'Dea employed the language of s 5E of the Act to express the opinion that there was a high degree of probability that the defendant would pose a high risk of further serious violence offence in the long term, if risk factors (earlier described in this judgment in the summary of Dr O'Dea's report) were not adequately and appropriately managed in the community. Mr Parker concluded the defendant to be at a high risk of further violent offending.
14. The risk posed by the defendant was described by Dr Ellis as being impulsive violent acts without weapons potentially resulting in physical injury. Mr Parker referred to the absence of supervision leading to the applicant gravitating to old acquaintances and resuming his previous criminal lifestyle.
15. Both Dr Ellis (in terms of historical factors) and Dr O'Dea envisaged the risk of the defendant committing a further serious violence offence as being long term and certainly extending to the five years contemplated by the extended supervision order sought in the alternative application by the State.
16. The historical factors associated with violence risk identified by Dr Ellis such as a history of problems with serious violence (which in the defendant's adult life were manifested in his earlier mentioned criminal record, inclusive of which the offence was the most serious example and his history of violence in custody), anti-social behaviour, a history of substance abuse with violence and an attitude of violence across a lifespan; each of which found support in the evidence in this matter. To that may be added current factors referred to in the professional judgment tool HCR-20 V3 such as an inability to obtain a complete insight into the defendant's attitude to violence because of his refusal to given a full explanation for the offence and the concomitant low level of remorse as mentioned by Dr O'Dea. The defendant's breach of conditional liberty in July 2014 is also relevant in this respect.
17. However, as mentioned above, that description of risk factors requires some modification in order to understand the true nature of the risk posed by the defendant, as the risk has been the subject of some mitigation, if not remediation, over time.
18. Dr Ellis referred to a third criterion applicable to the application of HCR-20 V3, namely, anticipated future management. Clearly this consideration would traverse the many factors the subject of supervision under an extended supervision order. However, it also contemplated present day and future factors which may reduce the risk posed. Dr Ellis referred, in this respect, to the reduction in the pattern of violence of the defendant with age and the absence of carrying firearms when on parole as ameliorating considerations. He also considered that the defendant's remarks about bringing a gun to parole hearings (even though it was not to be suggested that the conduct occurred) were problematic.
19. There are a number of other factors which should be taken into account in this respect (the factual basis for which lies earlier in this judgment): 1. Whilst the defendant breached conditional liberty in 2014, he performed relatively well for 12 months, notwithstanding he faced some significant personal challenges and accommodation and employment issues. His first offence involving any violence did not occur until July 2014. As a result, the defendant spent 19 months, albeit under supervision, without a violent incident. It is to be noted, the act of violence in July 2014 for which the defendant was convicted was not a serious violence offence. I accept the submission of the State that the fact the defendant was making threats whilst holding a knife is a significant factor contributing to the assessment of risk, but he showed no signs of using the weapon (the charges brought against him of being armed with intent to commit assault were dismissed) and the actual assault involved no more than a push in the midst of an argument, despite exaggerated assertions by the complainant whom the sentencing magistrate stated lacked credibility (the defendant appears to have been convicted by his own admission). Further, the July 2014 offences did not have the criminological aspects which were involved with earlier offences (Mr Parker was concerned about a reversion after release from custody to the criminal aspects associated with the earlier offences). 2. I do not accept the defendant's submission that his history demonstrates an ability to control his anger. Rather it is significant in two other respects. First, it was not a serious violence offence and to that extent represented a shift away from past levels of violence. Further, whilst there was ample basis on the criminal record before the sentencing judge to remark that the defendant was a "determined criminal", who was not prepared to change his ways, I do not consider that the defendant may, on the material before this Court, and with the passing of almost 20 years in custody, be so characterised. That proposition is not consistent with the limited later acts of violence in 2014, a full examination of the defendant's parole experiences (including the factors operating against his success in that respect) and factors (3), (4) and (5) below. Secondly, the offence occurred after a relatively successful period under parole, which was demonstrative of improvements in risk management through supervision (I will discuss the full implications of the parole period below). 3. The defendant certainly had a poor record in custody, vis-à-vis aggression, but he was showing improvements towards the end of his term in cooperation with the authorities. Whilst an act of violence took place in 2016, this was the first occurrence in eight years (or six years and one month if the parole period is extracted from the calculation) and then only after the defendant had been attacked and defended himself. 4. There were difficulties with the defendant undertaking treatment programs but he demonstrated an increased willingness to participate in such programs. By December 2013, he had shown a desire to re-engage with psychology on his own accord. I note my earlier observations regarding VOTP and the fact the defendant had shown a capacity to engage in such programs as illustrated by his engagement with Mr Chambers. 5. The defendant gave evidence in these proceedings demonstrating a motivation to re-integrate with the community with the support of his family. This accords with Ms McCarroll's assessment of the case notes which she had found demonstrated some motivation in the defendant to integrate into the community through seeking employment opportunities, developing of intimate relationships and building those relationships with his family.
20. As mentioned earlier, these countervailing factors do not have the effect of altering the conclusion identified at the outset of these considerations, that the defendant represents an unacceptable risk of committing a serious violence if not under supervision. They do, however, paint a full picture of the nature and extent of the risk posed by the defendant, and permit the rejection of the contention by the State, that the risk posed by the defendant, absent supervision, was unmitigated. The rejection of this contention is a fortiori when regard is had to the supervision proposed by the alternative application for an extended supervision order.
21. Plainly, in the absence of supervision there remains a risk of violent reoffending in the long term, which is moderated in the manner I have discussed above, but not sufficiently to make the risk other than an unacceptable one for the purposes of s 5E(2) of the Act. It must be noted that each psychiatrist identified a series of risk factors which would influence the likelihood of reoffending. Significant amongst those was access to stable accommodation, employment and abstinence from drugs, some of which are already the subject of adjustment in the defendant's life such as accommodation.

Whether an extended supervision order will provide adequate supervision

1. The State contended that the Court could have little confidence that the defendant would comply with an extended supervision order. The corollary of that submission was that the proposed supervision order would not be found as an effective means of protecting the community from the risk posed by the defendant by reducing the likelihood of the defendant reoffending.
2. The State attached considerable weight to the defendant's parole record in support of that submission. It was argued that the failure of the defendant under conditional liberty represented a historical basis for comparison upon which it may be concluded that the proposed extended supervision order would not provide adequate supervision just as had occurred under parole supervision. Thus, whilst the State accepted that the conditions proposed under the extended supervision order were more severe, than those operating with respect to the defendant's parole, the thrust of the State's contentions were that, by analogy of reasoning, the failures of the defendant under previous supervision would provide a clear guide as to why similar issues or failures as to supervision (compliance, treatment and rehabilitation) may be expected to emerge over time if the defendant was released into the community under an extended supervision order.
3. I do not consider that submission may be accepted for three reasons. First, whilst the defendant's behaviour on conditional liberty does have elements which would cause concern as to the defendant's compliance with supervision, when properly analysed, I do not consider the history of the defendant's parole can realistically have the force and effect the State has contended for, even if the stricter conditions of the extended supervision order are momentarily put to one side.
4. Secondly, the additional and more stringent conditions of the proposed extended supervision order make a material difference, in my view, in permitting the formation of a comfortable view that adequate supervision will be provided as they go to the heart of the many failures of the defendant during parole (as well as removing some of the difficulties he encountered which contributed to any failure).
5. Thirdly, the parole experience actually had features which support a view that the defendant may properly comply with the proposed orders and just why adequate supervision will be provided under the proposed extended supervision order.
6. The detailed basis for those conclusions is contained within my earlier analysis of "parole". I propose here to merely encapsulate those reasons which are threefold as follows: 1. The State overstated the extent of problems and failures associated with the defendant's conditional liberty by ignoring or understating the relative success of the first 12 months of the parole period in circumstances where the defendant had been, by his long incarceration, effectively institutionalised and had operated under increasing difficulties, substantially unaided by Corrective Services. Whilst it must be accepted that it is unlikely that the deterioration in the defendant's performance under parole occurred spontaneously in December 2013, the only real concern identified in the first 12 months of parole was the defendant's attendance upon treatment. This was at least partially explicable on a number of bases other than the defendant obstinately refusing to engage in treatment. Whilst not underrating the difficulties encountered for the balance of the parole period, including the assault, this analysis puts into perspective the defendant's failures on parole for the purposes of assessing his future likely engagement with supervision. In short, the first 12 months of the parole demonstrated the capacity to engage and comply with supervision. 2. The extended supervision orders, if made, will operate in circumstances which have materially changed (in favour of the defendant's compliance with supervision) from those operating during the parole period. In particular, I have pointed to the availability of stable accommodation, familial support, particularly involving the defendant's father, and employment opportunities in this respect (see paras [86]-[92] of this judgment). 3. The records relating the defendant's history of parole and the defendant's own evidence demonstrate that the absence of these supportive mechanisms significantly contributed to the deterioration of the defendant's parole performance. It follows that their rectification by circumstances now prevailing or by the operation of an extended supervision order, will enhance the prospect of compliance and engagement with supervision. 4. However, the significance of the last mentioned factor is not limited to a rejection of the State's submissions as to the prospects of the defendant co-operating and engaging with supervision. Each of the factors, or rather their absence, were identified by the experts to represent significant risk factors for the likelihood of the defendant to reoffend, albeit factors that were amenable to adjustment if ameliorated or eliminated. Their elimination, as the court appointed experts opined, thereby directly results in a reduction in the likelihood of reoffending. 5. The evidence before the Court is that the historical instability in accommodation and a removal from familial support have already been substantially rectified in practice (and are buttressed by suitable conditions in the extended supervision order). Improved employment opportunities are also in prospect. I have in mind in this latter respect, that there are, in my view, improved employment opportunities available to the defendant by means of the assistance of the team administrating any extended supervision order made in these proceedings. Mr Parker stated that a higher level of supervision under the proposed extended supervision order would ensure the defendant's "stated employment is genuine". 6. The extended supervision order is more onerous and detailed and overall represents a higher level of supervision (as opined by Mr Parker) than the conditions operating under the defendant's parole. The ESO team has more experienced officers and a smaller case load according to Dr Ellis. Two conditions of the extended supervision order are extremely significant in reducing the risk of reoffending: the requirement that the defendant provide plans for his weekly activities (condition 7) and notice of change in those activities (condition 8) (a structured arrangement for the defendant to carry out his affairs) and electronic monitoring (condition 4-6). None of the aforementioned conditions operated during the defendant's parole. The fact that there was a gradual onset of problems during his parole would indicate, if difficulties arise, a greater prospect for detection under the extended supervision order. This is due to the more significant supervision offered under an extended supervision order.
7. The State also attached significance to the defendant's approach to treatment and his behaviour when reincarcerated. As to the former, the State submitted that the defendant had not seriously attended to any of the "treatment options" offered to him in custody or on parole including the VOTP from which he was suspended, and that this was reflective of his attitude to supervision.
8. As to the State's submission regarding treatment, I consider, for the reasons earlier given in this judgment (see paras [221] and [225] of this judgment) that the State had overstated the defendant's lack of participation and engagement in treatment. I do not consider the history of the defendant's attendance upon treatment give rise to a proper basis for concluding that adequate supervision will not be provided by an extended supervision order. Further, I consider the evidence demonstrates the likelihood that the defendant will participate positively in a treatment program within the structured environment of an extended supervision order. I also have in mind, in this respect, the terms of the extended supervision order itself in relation to treatment (see conditions 46-47).
9. Similarly, whilst I consider the defendant's behaviour in custody, particularly in relation to violent offences, to be unsatisfactory and thereby an indicator he may not comply with the supervision, that assessment is counterbalanced by the most recent experience in custody, which is presumably illustrative of the defendant's current disposition. I do not consider that this factor may lead to a conclusion that adequate supervision may not be provided for the purposes of s 5G(1). I refer in these respects to paragraph [102] of this judgment.
10. Turning then to the defendant's submissions as to the defendant's engagement with illicit drugs. I accept the submission made that the defendant has a history of abusing illicit drugs (and in Dr O'Dea's report it is observed that a history of a substance abuse disorder exists) and that absent of strict monitoring, the defendant will most likely take such substances and, in consequence, associate with anti-social peers on release from custody. Further, I accept that his denial as to taking methamphetamine in gaol does raise questions as to whether he would be truthful with those supervising him as to that matter.
11. There are, however, two countervailing considerations which would warrant this factor not leading to a conclusion that adequate supervision would not be provided under the extended supervision order. The first is the evidence of Dr Ellis, which was to the effect that, whilst the defendant does not have a clear understanding, as to how he can reliably maintain abstinence from illicit drugs in the future, he does understand that "substances have been a problem for him and there's a general, that is a general sense that he wants to be free of them into the future". This conforms with his general attitude to restore a "normal" life. Secondly, there are the very strict conditions contained with the extended supervision order with respect to alcohol and drugs (see conditions 24-27 of Annexure A).
12. I turn then to the opinion of the court appointed experts and Mr Parker. The State accepted that there was a congruence of opinion between the court appointed experts that an extended supervision order was more appropriate than reincarceration.
13. The State sought to meet, in part, the force of those opinions, so far as they expressed a view in favour of an extended supervision order over a continuing detention order by submitting that the court appointed experts were dealing with the question of adequate supervision from a clinical perspective and not purely a risk perspective. The State also submitted the experts were primarily concerned with rehabilitation. I consider this to be a hollow distinction in this context.
14. The State posed to the court appointed experts questions, which required the experts to address the risk posed by the defendant, the actual level of risk and factors contributing to it, as well as, whether adequate supervision would be provided by an extended supervision order.
15. In responding, the court appointed experts gave expert opinion as to violence risk predictions and how fluctuating risk factors might contribute to the overall risk. Dr Ellis opined that rehabilitation and risk management were not mutually exclusive goals. Whilst it may be contended that the ultimate question as to the likelihood of the defendant reoffending falls to the court based on a wider range of considerations, than those entertained by the experts, it cannot be accepted that the expert evidence in these proceedings does not expressly deal with issues from a risk perspective or give opinions bearing upon that question.
16. The submission also sits uncomfortably with the provisions of Pt 3 of the Act. An application for a continuing detention order must include a report from, inter alia, a qualified psychiatrist or registered psychologist that assesses the likelihood of the offender committing a further serious violence offence. It is implicit from those provisions (and s 15(4) of the Act) that the opinions provided by the experts will directly relate to the considerations of the risk posed by an offender and the likelihood of violent reoffending.
17. Turning then to the expert opinions, Dr Ellis was of the view that the "treatment and supervision plan" addressed the relevant risks, and, noting that supervision and monitoring may never eliminate the risk, the plan proposed would "significantly reduce it". Dr O'Dea recommended referral to psychiatrists for consideration of psychiatric medications in order to manage the defendant's mood disorder which was characterised by anger and depression. He considered that this was amenable to treatment. He further considered that, if the defendant remained abstinent from alcohol and illicit substance use, engaged in successful anger management and general mood management and engaged in structured supervision, his risk of committing a further serious violence offence could be adequately and appropriately managed in the community. Mr Parker opined that, in the event that the defendant was the subject of an extended supervision order it is likely that he would benefit from intensive supervision and case management by Corrective Services. An extended period of supervision under the control of a high risk offender team, he considered, would assist the defendant in developing a law abiding lifestyle and would help him develop new thinking styles which support such a lifestyle, although an engagement with supervising staff would be required.
18. Both court appointed experts made plain in their respective reports that there is little or no utility in prolonging the incarceration of the defendant (whether for treatment purposes or otherwise) and there was no empirical evidence that prolonged incarceration reduced recidivism or that custody based treatment programs reduced recidivism as compared to community based programs. Both experts stated that, with adequate supervision and monitoring, the defendant's risk of violence can be managed in the community. Of particular significance is Dr Ellis' opinion that "abstinence from substances, stable employment and stable accommodation [were] likely to have a greater impact on violence reduction than cognitive behavioural programs aimed at violence reduction" given the high likelihood those matters will be successfully managed by the proposed extended supervision order.
19. I agree with the defendant's submission that the opinions of the court appointed experts strongly support the Court in making a finding that any risk posed by the defendant can be adequately addressed by supervision pursuant to the proposed extended supervision order. Further, the experts identified a number of risk factors which, if eliminated or controlled, would significantly reduce the likelihood of reoffending such as accommodation stability, employment opportunities and access to drugs. In my view, the proposed extended supervision orders, when understood in the light of the nature of the risks posed by the defendant as discussed above and a proper understanding of his responsiveness to supervision and treatment, will have the effect of eliminating or adequately controlling those risk factors with a commensurate reduction in the likelihood of the defendant reoffending.
20. There is one consideration which bears repetition and correlates with the last mentioned extract from the opinions of Dr Ellis. In my view, the fact that the defendant has obtained stable accommodation with his father and will receive advice and support from his father and other members of his family, and has adopted a mindset to do what is required, to restore some semblance of a life in the community, after a very long period of incarceration, are very significant factors pointing to the likelihood of the defendant complying with the supervision arrangements. These factors also point to the prospect for rehabilitation in the future under an extended supervision order in conformity with s 3(2) of the Act and the projections made by Mr Parker. These considerations result in substantial satisfaction that adequate supervision will be provided by the proposed extended supervision order.
21. In short, these factors materially contribute to the Court's satisfaction that adequate supervision will be provided by the proposed extended supervision order.
22. It is true, as the State submitted, the defendant did cavil with some of the proposed conditions. Whilst that approach cannot be accommodated because of the risks associated with his involvement in the community, as I have earlier described, he cannot be criticised in my view for having a desire to broaden his participation in the community and his contact with family. In any event, he gave an instruction to his counsel that he would effectively give a submitting appearance with respect to the conditions proposed in Annexure A. The Court considered those conditions appropriate.

Application for a Continuing Detention Order

1. In all the circumstances, I am satisfied, pursuant to s 5G(1) of the Act, that adequate supervision will be provided by the making of an extended supervision order as sought in the State's alternative application and thereby the application for the continuing detention order must be refused.

Application for an Extended Supervision Order

1. There is no dispute in these proceedings that, in the alternative, an extended supervision order should be made. In my view, it is appropriate to do so essentially for the reasons discussed earlier in this judgment but ultimately for the purposes of the protection and safety of the community and for the rehabilitation of the defendant.
2. None of the conditions proposed by the State for the extended supervision order in Annexure A should be altered. In particular, I accept the evidence of Dr Ellis that conditions requiring weekly notice of the defendant's plans and notice of change to be essential features of the conditions imposed under the extended supervision order so as to provide adequate supervision.
3. Accordingly, I propose to make extended supervision orders in the terms sought by the State. There was no dispute as to the duration of the order. It will be made to operate for 5 years.

ORDERS

1. In the circumstances, I dismiss the primary application made by the State for a continuing detention order. I grant the State's application for an extended supervision order in accordance with its alternative application in the further amended summons filed in court upon the conditions sought therein and contained in Annexure A and accordingly will make orders for compliance under s 11 of the Act.
2. Rather than making an order this day, I shall foreshadow a proposed order and provide the parties an opportunity to propose any variation so long as it reflecting this judgment before final orders are made.
3. The proposed order consists of two parts as follows: 1. I order pursuant ss 5F(1) and (9)(1)(a) of the Act that the defendant be subject to a high risk violent offender extended supervision order for a period of 5 years from the date of this judgment and, pursuant to s 11 of the Act, I make an order directing the defendant comply with the conditions set in the Schedule marked Annexure A attached to this judgment for the duration of the order. 2. The interim extended supervision order made on 13 April 2017 is dissolved.
4. In order to facilitate the disposition of the matter in that fashion the State shall file and serve short minutes of order by 4pm on Monday, 24 April 2017. The defendant shall either confirm the order proposed by the State or submit an alternative form of order by 4pm on Wednesday, 28 April 2017. The Court will then make orders administratively in Chambers. In the meantime, the interim order made on 13 April 2017 will continue in operation.

Annexure A (38.5 KB, docx) 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 April 2017