State of New South Wales v Windle [2016] NSWSC 1816 (14 December 2016)

Last Updated: 16 December 2016

Supreme Court New South Wales

Case Name:	State of New South Wales v Windle
Medium Neutral Citation:	[2016] NSWSC 1816
Hearing Date(s):	14 December 2016
Date of Orders:	14 December 2016
Decision Date:	14 December 2016
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	1. Interim supervision order made for 28 days from 28 February 2017. 2. Order made for psychiatric examinations to be conducted.
Catchwords:	HIGH RISK OFFENDER - serious violent offender - preliminary hearing - application for interim supervision order and for examination by court-appointed psychiatrists - index offence of attempted murder in 2011 - criminal history includes other offences of violence - whether Defendant a “high risk violent offender” under s.5E(2) - relevance to risk assessment of offences of violence which are not “serious violent offences” - interim supervision order made together with order for examination by two psychiatrists
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 Crimes (Serious Sex Offenders) Amendment Act 2013 Crimes (High Risk Offenders) Amendment Act 2014 Crimes (High Risk Offenders) Amendment Act 2016 Crimes Act 1900 Criminal Code (Cth)
Cases Cited:	Attorney-General (NSW) v Tillman [2007] NSWCA 119 Lynn v State of New South Wales [2016] NSWCA 57 Porter v R [2008] NSWCCA 145 R v Engert (1995) 84 A Crim R 67 R v Karimi; R v Khoury; R v Mir (No 11) [2013] NSWSC 1761 R v Natuba; R v Tamapua [2012] NSWSC 1569 R v Windle [2012] NSWCCA 222 State of New South Wales v Brookes [2008] NSWSC 150 State of New South Wales v Manners [2008] NSWSC 1242 State of New South Wales v McGrath [2016] NSWSC 1560 State of New South Wales v Pacey [2015] NSWSC 1983 State of New South Wales v Sancar [2016] NSWSC 867
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Andrew Robert Windle (Defendant)
Representation:	Counsel: Ms G Wright (Plaintiff) Mr H White (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2016/357194
Publication Restriction:	---

JUDGMENT

1. JOHNSON J: By Summons filed on 29 November 2016, the Plaintiff, the State of New South Wales, seeks orders against the Defendant, Andrew Robert Windle, under the Crimes (High Risk Offenders) Act 2006 ("the Act").

Preliminary Hearing

2. The Court has proceeded today with a preliminary hearing as envisaged under s.7(3) of the Act. The Plaintiff seeks orders today in terms of paragraphs 1 and 2 of the Summons, being:
   • (a) an order under s.7(4) of the Act appointing two qualified psychiatrists to conduct separate psychiatric examinations of the Defendant and to furnish reports to the Court on the results of those examinations, with an associated order directing the Defendant to attend those examinations; and
   • (b) the making of an interim supervision order (“ISO”) under s.10B of the Act, with that order to operate for a period of 28 days from 28 February 2017, subject to conditions under s.11 of the Act.
3. At the preliminary hearing, Ms Wright of counsel appeared for the Plaintiff and Mr White of counsel appeared for the Defendant. Helpful written submissions have been made by counsel for both the Plaintiff and the Defendant.
4. As will be seen, the principal contested issue today has been the question whether the Defendant is a “high risk violent offender” for the purpose of s.5E(2) of the Act, so that an ISO should be made with respect to him.
5. If the Court determined that an ISO should be imposed with respect to the Defendant, Mr White indicated that the Defendant did not oppose the order being imposed for a period of 28 days. Nor did he oppose the fixing of conditions as part of an ISO, as identified in the conditions attached to the Summons. Nor was there opposition to an order under s.7(4) requiring the Defendant to be examined by two court-appointed psychiatrists for the purpose of a final hearing.

The Test at a Preliminary Hearing

6. The task to be undertaken by the Court at a preliminary hearing under the Act is not controversial. Under s.7(4) of the Act, the Court is required to determine whether it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (“ESO”) as sought in this case. If the Court is so satisfied, the Court must make an order appointing, in this case, two psychiatrists to examine the Defendant and to prepare reports for the Court.
7. A similar test applies with respect to the making of an ISO concerning the Defendant: s.10B(b).
8. It is not the task of the Court, at this preliminary stage, to make a final determination that the Defendant is a high risk violent offender or to predict what the ultimate determination might be at any final hearing. The issue is whether the Court is satisfied that the matters in the documents tendered in support of the Plaintiff's application would, if proved, justify the making of an ESO. If that is the case, I must make the orders the Plaintiff seeks at this stage. If not, I must dismiss the application: ss.7(4) and (5), Attorney-General (NSW) v Tillman [2007] NSWCA 119 at [98].
9. The test has been described as being similar to the test applied by magistrates in committal proceedings: State of New South Wales v Brookes [ 2008] NSWSC 150 at [13]; State of New South Wales v Manners [2008] NSWSC 1242 at [8]. In State of New South Wales v Manners, I said at [9]:

“One purpose of the preliminary hearing procedure is to allow the Court to filter out unmeritorious applications at an early stage. Another purpose is to give the Court the benefit of the expert opinions of two independent witnesses before making a final decision.”

10. In carrying out this task at the preliminary hearing, it is necessary for the Court to bear in mind the objects of the Act (in s.3) and to have regard, in the qualified way I have just described, to the various matters required to be considered in the ultimate assessment of whether an ESO should be made, particularly the mandatory matters listed in s.9(3) of the Act.

Some Threshold Matters

11. I am satisfied that the threshold requirements for the making of an application exist in this case. Section 5H entitles the Plaintiff to apply to the Court for an ESO.
12. Section 5J(1) provides that an application for a high-risk violent offender ESO may be made only in respect of a "supervised violent offender". For reasons that will become apparent shortly, I am satisfied that the Defendant is a supervised violent offender within the meaning of s.5J(2) of the Act.
13. Finally, I note that the application is brought within the last six months of the Defendant's current custody, in compliance with s.6(2) of the Act.

The s.5E(2) Issue

14. The principal issue to be determined at this preliminary hearing is whether the Defendant, at a prima facie level, falls within the definition of “high risk violent offender” in s.5E of the Act. Section 5E provides as follows:

“5E High risk violent offender
(1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender.
(2) An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision.
(3) The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence.”

15. The proper construction of s.5E has been considered in a number of decisions, most recently by the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57. There the Court held that the question whether a risk is unacceptable, for the purpose of s.5E(2), involves an evaluative task. The evaluation to be made under s.5E(2) 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.
16. I will return to the arguments put with respect to whether s.5E(2) is satisfied, at this prima facie stage, after I have referred to evidence before the Court on this application by reference to the mandatory factors contained in s.9(3) of the Act.

Evidence at the Preliminary Hearing

17. The evidence on this application comprises the affidavit of Azam Yusuf Bulbulia affirmed 30 November 2016, together with a volume of documents associated with that affidavit (Exhibit AYB-1). That material contains a range of documents concerning the Defendant's offences, his criminal history, his custodial performance and, amongst other things, a risk assessment report, a risk management report and psychiatric reports.

Factors Under s.9(3) of the Act

18. I turn to the factors under s.9 and will deal with them out of the statutory order, but in a manner which is convenient for the purpose of this application.

Criminal History and Pattern of Offending Behaviour: s.9(3)(h)

19. Section 9(3)(h) requires the Court to have regard to the Defendant's criminal history, including his prior convictions and any pattern of offending behaviour disclosed by that history.
20. I am satisfied that the Defendant's criminal history discloses frequent offences of violence. The offences will be referred to in reverse chronological order, commencing with the index offence, an offence of attempted murder.
21. The Defendant was born in November 1989.
22. Whilst in prison serving a term of imprisonment, he committed an offence on 1 January 2011 of attempt to strangle or suffocate with intent to murder under s.29 Crimes Act 1900 (maximum penalty 25 years’ imprisonment). Following a plea of guilty, he was sentenced for that offence by Garling DCJ in the District Court. The Crown appealed against the sentence imposed at first instance. The Court of Criminal Appeal allowed the Crown appeal and increased the sentence: R v Windle [2012] NSWCCA 222. The circumstances of the offence are referred to R v Windle at [4]-[6]:

“4 The circumstances of the offending were briefly but sufficiently outlined by Garling DCJ in his judgment on sentence (pp 1-2). Both the offender and the victim were inmates at Long Bay Correctional Centre, the victim being 39 years of age. Both were in the shower area, where they had a short and unremarkable conversation. The victim turned his back on the offender to check the temperature of the water, at which point the offender put a sock around his neck pulling it tight so that he could neither get the sock away from his throat, nor, ultimately, breathe. The victim lost consciousness and fell to the floor. When he regained consciousness he called for help from another inmate who in turn brought a prison officer to his aid.
5 When both inmates were locked in their respective cells, the offender called out to the victim asking whether he was ‘still going to charge’ the offender. When the victim said yes, the offender asked why. The victim replied ‘because you haven't even apologised yet. Why did you do it?’. The offender answered ‘I don't know’.
6 The statement of facts prepared by the Director continued:
‘On the morning of 2 January 2011, senior Corrective Services Officers spoke with Windle. Windle indicated that he had followed [the victim] into the shower area and then, after [the victim] undressed, he (Windle) put a sock around [the victim's] neck and tried to kill him. Windle indicated that he did not know why he did it, he 'just had to do it'. Windle indicated that he stopped strangling [the victim] because he thought [the victim] was dead. Windle indicated that he continued to strangle [the victim] when [the victim] collapsed to the ground. He continued to strangle [the victim] while [the victim] was on the ground, then [the victim] 'shook a bit' then 'urinated himself'. Windle indicated that he then thought [the victim] was dead so he walked out of the shower area with the sock, put the sock on a nearby shelf with other clothes, and then began to 'walk laps outside'."

23. In the District Court, the Defendant was sentenced to a term of imprisonment of four years and six months, with a non-parole period of two years and six months. On appeal, the Court of Criminal Appeal increased the sentence to a term of imprisonment of five years and four months, commencing on 29 October 2011, with a non-parole period of four years.
24. Accordingly, the Defendant became eligible for parole on 28 October 2015. He has not been released on parole and remains in custody. The sentence will expire by effluxion of time on 28 February 2017.
25. There is no issue that this offence constitutes a “serious violence offence” for the purpose of s.5A of the Act.
26. The Defendant has other criminal convictions for offences of violence. At the time he committed the offence of attempted murder, he was serving a sentence of imprisonment for the offence of specially aggravated entering a dwelling with intent to steal under s.111(3) Crimes Act 1900 (maximum penalty 20 years’ imprisonment) committed on 17 December 2007. The Defendant entered a unit at Bondi Beach with intent to steal in circumstances of special aggravation, in that he knew persons were in the premises and he wounded an occupant of the premises. The victim was asleep on a lounge inside the premises in the late evening as he and his partner had a baby who needed attention throughout the night. The victim became aware of another person in the lounge room. The Defendant pushed down on the victim's hands and chest with one hand, while holding a large knife in the other hand. He had obtained the knife from the kitchen. The victim screamed, "What do you want?". And the Defendant said, "Money, car keys, everything". The victim wrestled with the Defendant while trying to disarm him of the knife. In the course of the struggle, the victim sustained cuts to his hand. There was a slight cut to the palm and a deep laceration to a finger which required stitches. The victim's partner ran from the unit, screaming for help. The victim managed to get the knife from the Defendant, who then ran out the front door. The Defendant's DNA was found at the scene.
27. The Defendant was sentenced for this offence on 14 August 2009 by Sweeney DCJ in the District Court to a term of imprisonment of four years with a non-parole period of 18 months, commencing on 30 April 2009. Her Honour was not prepared to make a finding that the Defendant had good prospects of rehabilitation and remarked that there was a need for protection of the community. Her Honour observed that the injuries were at the lower end of seriousness and that the offence was impulsive. However, the sentencing Judge found that this was a serious offence, including the fact that the victim was greatly concerned for the safety of his baby. Her Honour described the Defendant as a disturbed young man with a history of self-harm and referred at length to the report of Dr Richard Furst, psychiatrist, dated 1 July 2009. Dr Furst recorded that the Defendant had told him that he had been “roaming around the streets” intoxicated with ecstasy at the time of the offence, and that he entered the unit without planning, wanting more money for drugs. Dr Furst noted that the Defendant came from a troubled and unstable family, had limited intellect and was at risk of developing a major mental illness in the future due to his extended period of substance abuse and a period of psychosis in 2007.
28. Moving back in time, the Defendant committed offences in 2007 at a time when he was a juvenile, being 17 years and nine months old. The offences were damaging property with intent to injure a person by means of a fire (an arson offence under s.196(1)(b) Crimes Act 1900, punishable by imprisonment for 14 years), and using a carriage service to threaten serious harm (an offence under s.474.15(2) Criminal Code (Cth)). At the time of these offences, the Defendant was on parole.
29. The material available to the Court indicates that, on 9 September 2007, the Defendant sent text messages to the victim, asking for a lift to the shops. The victim was visiting a friend in hospital and did not see the message. The Defendant then sent angry messages which culminated in an exchange of text messages in which the Defendant wrote, "Your house will burn to the ground, cunt" and "You're gunna get fucked up tonight". He telephoned the house later in the day, saying, "You're dead, cunt. I'm gunna fuck you up" and a text saying "Make sure you're awake at 1am cause you're gunna have to run". At 10.00 pm that evening, a witness seated in the lounge room of the victim’s house at St Johns Park heard a loud bang and the whole front balcony was engulfed by flames. A witness saw the Defendant running down the street. In an interview with police, the Defendant said he had bought a jerry can and petrol and had consumed alcohol. He said “I threw the firebomb at his house ‘cause he deserved it’”. He said that when he lit the house he could see and hear people inside, saying, "I didn't really care what happened to them ... they'd be traumatised" and "I didn't want to kill anyone".
30. For these offences, the Defendant was sentenced in the Parramatta Children's Court on 16 July 2009 to a fixed-term control order of 10 months.
31. Moving back in time once again, on 23 January 2007 the Defendant committed an offence of armed robbery with an offensive weapon (an offence under s.97(2) Crimes Act 1900 punishable by imprisonment for 25 years). He committed a robbery of a Blockbuster video store on 23 January 2007 in the company of his uncle. The Defendant had been released to parole the previous day. The police facts state that the Defendant produced a black-handled knife with a 13-centimetre blade and he held the blade to the victim's ribcage and said, "I'm gunna stab ya". He demanded the victim open the till and his uncle removed $500.00 in cash.
32. For this offence, the Defendant was sentenced in the Parramatta Children's Court to a control order for 24 months, with a non-parole period of six months, commencing on 21 January 2007.
33. The Defendant was released to parole on 22 July 2007, but re-entered custody on 6 August 2008 on a warrant for breach of parole. His parole was revoked, effective 30 October 2007, and he was ordered to serve the remainder of his parole in custody, with a release date of 29 October 2009.
34. Once again moving back in time, on or about 14 July 2006, whilst the Defendant was being held in the Cobham Juvenile Detention Centre, he committed an offence of common assault. He spat in the face of a juvenile detention officer who was attending his cell, following a report that the Defendant had swallowed a screw in an act of self-harm. For this offence, he was sentenced to a control order for three months.
35. The previous year, on 14 June 2005, the Defendant committed offences of assaulting an officer in the execution of duty, larceny and goods in custody. The Defendant was observed by a loss prevention officer at Target in Liverpool opening DVD cases and placing disks down the front of his trousers before leaving the store. He was approached and questioned by the store employee and was taken into an office. Police arrived and the Defendant was cautioned and searched. During that process, the Defendant pushed the female police officer against the wall and punched her in the face. For these offences he was placed on probation for 12 months.
36. Twelve days earlier, on 2 June 2005, the Defendant committed offences of common assault, entering enclosed lands and having custody of an offensive implement in a public place. On that day, the Defendant entered the Macarthur Square shopping complex, despite having been banned from the centre in the previous month. He was questioned by security guards and he then pulled a medium-sized flat screwdriver from his jacket pocket, holding it out towards one of the guards. A scuffle ensued in which the Defendant resisted arrest and he would not let go of the screwdriver. He was eventually apprehended by police. He appeared in the Bidura Youth Drug Court and was given a two-year good behaviour bond.
37. On 11 May 2005, the Defendant committed two offences of common assault. The Defendant was at Liverpool railway station and he assaulted two male transit officers when he was called aside and asked to produce a valid ticket, which he could not do. He hit one transit officer in the face and headbutted the other. Police were called once he had been restrained in handcuffs. He was released on probation for these offences to participate in drug and alcohol and other programs.
38. On 6 May 2005, the Defendant committed offences of common assault, stalking or intimidating with intent to cause fear of harm and shoplifting. He had attended the Big W store in Macarthur Square at Campbelltown. The Defendant was observed by the loss prevention officer attempting to steal DVDs. He was asked to leave the store. He threw a punch at the female officer and hit her bag, pushing her backwards. He then threw clothing at her before security officers apprehended him. Before he was removed from the store by police, he threatened the loss prevention officer and said he would return to burn down the store. The Defendant was on a bond at the time of these offences. For these offences, the Defendant was placed on probation to participate in a drug and alcohol and other programs.
39. On 17 April 2005, the Defendant committed offences of common assault and stalking or intimidating with intent to cause fear of harm. He was observed loitering around Campbelltown railway station and was asked to move on by a security guard. The Defendant returned with a broken bottle and argued with the security guard. The Defendant held the bottle in an intimidating manner and then threw the bottle at the security guard, hitting him in the leg but causing no injury. The Defendant left but returned later with a one-metre piece of wood, which he waved at the victim. Another argument ensued before the Defendant was apprehended by Transit Police. The Defendant was on bail for stealing at the time of this offence. He was sentenced by way of a 12-month good behaviour bond for these offences.
40. Apart from these offences of violence, the Defendant has an extensive criminal history, including larceny, car theft, shoplifting, break and enter and malicious damage.
41. In my view, a narrative of these offences of violence makes good the Plaintiff's submission that the Defendant's criminal history, over his relatively short life, has involved frequent use of violence and escalating violence. It remains to be seen what role these matters play upon the primary question to be considered on this application, an issue to which I will return.

Views of Sentencing Courts: s.9(3)(h1)

42. Section 9(3)(h1) requires the Court to have regard to the views of the sentencing court at the time the sentence of imprisonment was imposed. In this case, the remarks on sentence of Garling DCJ and the decision of the Court of Criminal Appeal are available to the Court.
43. At first instance, Garling DCJ described the offence of attempting to strangle with intent to murder as a very serious offence involving an attempt to murder a fellow prisoner. His Honour observed that the Defendant needed treatment and rehabilitation and had mental and alcohol and drug issues. His Honour accepted that the Defendant had been charged with this offence only because of admissions he made that he intended to kill the victim. His Honour accepted that this was not a sophisticated attempted murder and had no apparent motive. The sentencing Judge found that the offence fell below the mid-range for this sort of very serious offence. I have already mentioned the sentence imposed at first instance by his Honour.
44. In the Court of Criminal Appeal, Basten JA delivered the leading judgment of the Court (with which Price J agreed). Basten JA observed (at [54]) that a number of elements favoured a degree of leniency, including the impulsiveness of the act, the temporary harm suffered by the victim, the Defendant's voluntary disclosure of his intention to kill and his level of mental illness.
45. Importantly, Basten JA noted (at [56](c)) that there was an “element of dangerousness” to be taken into account in the context of the risk of further offending. This observation reflected the competing considerations in sentencing an offender with a mental illness, of the type referred to by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 68.
46. Basten JA observed as well (at [55](c)) that the likelihood of the Defendant's rehabilitation probably depended upon his acceptance of the need for treatment, particularly when eventually released from custody. His Honour noted that there was then little material to support the likelihood of such acceptance.
47. As I have noted, the sentencing outcome was the imposition by the Court of Criminal Appeal of a heavier sentence than that imposed at first instance.

Psychological and Psychiatric Reports and Assessments Concerning Risk of Reoffending: s.9(3)(c) and (d)

48. I turn then to material relevant to s.9(3)(c) and (d), being reports of any identified psychiatrist or psychologist or any statistical or other assessment as to the likelihood of the Defendant committing further relevant offences.
49. Before the Court at this preliminary hearing is a risk assessment report carried out by Mr Samuel Ardasinski, forensic psychologist, dated 3 October 2016. Mr Ardasinski expresses the opinion that the Defendant is at a high risk of further violent offending. Mr Ardasinski referred to various risk assessment tools, including the Level of Service Inventory-Revised (LSI-R), the Violence Risk Appraisal Guide-Revised (VRAG-R) and the Violence Risk Scale (VRS). He also considered the Defendant's dynamic risk factors. The Defendant scored on the LSI-R as medium-high risk of reoffending, with a high risk of violent reoffending on the VRAG and a high risk of reoffending on the VRS.
50. Mr Ardasinski noted that the Defendant had committed the majority of his offences of violence in the community within the context of drug and alcohol abuse. He noted, as well, that the Defendant had engaged in both retaliatory violence against people whom he perceived as having wronged him in some way, and spontaneous and unprovoked violence. It was said that stress is likely to be a precursor to the Defendant's violent offending in all of those scenarios.
51. In addition, Mr Ardasinski refers to the Defendant's repeated acts of serious and bizarre self-harm in custody, including cutting wrists, swallowing screws, severing parts of his ear, biting himself, removing stitches, cutting his mouth with a razor blade and other acts of self-harm.
52. Mr Ardasinski considered that the Defendant's main risk factors involved his personality disorder and mental health issues, with a history of homicidal thoughts and a curiosity about bizarre acts of violence, including self-mutilation. He noted that the Defendant's psychological record included a note that he had a curiosity about how it would feel to kill a person.
53. Mr Ardasinski said that one of the most concerning risk issues was that some of the Defendant's recent violence in custody had involved spontaneous thoughts to harm others, with little warning or justification for the type of violence enacted. Reference was made as well to the Defendant's poor capacity to deal with stress, emotional regulation, maladaptive coping and marked impulsivity. It was noted that the Defendant would feel rejected or aggrieved and ruminate and make threats in that context. Reference was made as well to the Defendant's history of substance abuse, his history of both reactive and instrumental violence and his weapon possession and use in the past. Mr Ardasinski pointed as well to the Defendant's social isolation, poor interpersonal skills, loneliness and boredom.
54. Mr Ardasinski noted that most of the Defendant's past offences have not been “serious violence offences” as defined in the Act, with the only offence in that category being the attempted murder offence. However, Mr Ardasinski regarded the Defendant's past violence as approaching the threshold under s.5A of the Act, noting the "sheer luck" involved in some of his victims not suffering serious harm. Mr Ardasinski provided examples to support this observation - the firebombing (at [28]-[30] above) could have resulted in harm to the occupants of the premises and the home invasion (at [26]-[27] above) at North Bondi could have resulted in a stabbing, presumably had the man's partner not intervened. Mr Ardasinski considered that the Defendant posed a risk of committing a serious violence offence in the community.
55. Mr Ardasinski noted that the Defendant had completed the Violent Offenders Therapeutic Programme (“VOTP”) in 2014 and 2015. This is a high-intensity treatment program for violent offending. However, Mr Ardasinski expressed the opinion that the Defendant had not retained what he had learned in the VOTP. Despite completing his treatment, he threatened another inmate with a knife in his workplace in 2016. Mr Ardasinski considered that the Defendant required further VOTP maintenance sessions, and that he should participate as well in educational and vocational programs. It was noted by Mr Ardasinski that all of those programs are offered in the community.
56. Mr Ardasinski referred to the Defendant's mental state and considered that ongoing management of his personality disorder and mental health would be critical to any risk assessment. The Defendant had reported that he had started hearing voices in the past year, and appeared to be taking antidepressant and antipsychotic medication. Whilst noting that there was no consensus as to the primary diagnosis with respect to the Defendant, Mr Ardasinski noted that it appeared to be a severe personality disorder. The psychologist noted the Defendant's recent acts of self-harm in custody and, that they had jeopardised a possible placement in a particular halfway house in the community.
57. Mr Ardasinski stated that under an ESO, the Defendant would be subject to strict monitoring, extensive supervision and case management by Corrective Services NSW.

Risk Management Report: s.9(3)(d1)

58. Section 9(3)(d1) requires the Court to have regard to any report prepared by Corrective Services NSW as to the extent to which the Defendant can reasonably and practicably be managed in the community.
59. A risk management report dated 7 October 2016 prepared by Teresa Sartor, Senior Community Corrections Officer with Corrective Services NSW, is before the Court. The report addressed a number of steps which could be taken if the Defendant was subject to an ESO and, I infer, an ISO. It is not necessary to set out in detail what is proposed in this respect. It is sufficient to note that, in my view, what is proposed seems appropriate and targeted to the apparent needs involved in supervision of the Defendant in the community.

Treatment or Rehabilitation Programs: s.9(3)(e)

60. Section 9(3)(e) of the Act requires the Court to have regard to any treatment or rehabilitation programs in which the Defendant has had an opportunity to participate, his willingness to participate in such programs and the level of the Defendant's participation in them.
61. As I have mentioned, the Defendant has participated in treatment programs during his time in custody, with the most significant being the VOTP. A treatment report dated 3 December 2015, following the Defendant's completion of VOTP, noted that throughout his participation in the program he had demonstrated greater impulse control and consequential thinking. The Defendant had identified strategies which he could use when he is experiencing emotional distress instead of harming himself or others. The Defendant had identified his cognitive distortions related to his violent offending, and determined appropriate and realistic alternative ways of thinking in order to reduce his risk of violent reactions. The report recommended follow-up support to assist him to maintain treatment gains.
62. The VOTP treatment report noted, in relation to the Defendant's risk of reoffending:

“Were Mr Windle to re-offend, his offence is likely to follow a period in which a decline in his mental health stability is observed, paranoid perceptions of mistreatment are experienced and he engages in rumination regarding his mistreatment, resulting in an aggressive and violent attack on his victim alongside possible acts of self-harm due to remorse or regret for his actions".

63. Also before the Court are Corrective Services NSW case notes (“OIMS”) which record instances, since completion of the VOTP, when the Defendant has reported trying to implement skills which he learned during that program to challenge negative thinking and to deal with frustration. However, the Defendant has been frustrated by a refusal of parole on 1 March 2016 and he self-harmed. There were other self-harm incidents on 4 April 2016, 10 May 2016 and 31 July 2016.
64. I noted earlier the comment by Mr Ardasinski that there were competing diagnoses expressed with respect to the Defendant. In March 2016, Dr Matthew Hearps expressed the view that the Defendant had schizophrenia. However, the most recent psychiatric report, from Dr Gordon Elliott of Justice Health dated 13 May 2016, involved a diagnosis of a severe mixed personality disorder of borderline and antisocial features. Dr Elliott disagreed with Dr Hearps' opinion that the Defendant had schizophrenia. Dr Elliott considered that the Defendant's self-harming and violent behaviour was part of entrenched features of his personality disorder, and were likely to appear unpredictably whenever he was stressed or at times of boredom or substance use. Dr Elliott considered that these features are likely to be resistant to psychological and pharmacological intervention. He considered that the Defendant's expressions of hearing voices were better accounted for as pseudohallucinations, commonly encountered in individuals with severe borderline and antisocial personality disorders.
65. Dr Elliott noted that, at the time of the Defendant's release from custody, he will require assertive supervision, including strictly supervised accommodation and ongoing monitoring of his mental state by clinicians familiar with his history.

Compliance with Parole: s.9(3)(f)

66. Section 9(3)(f) requires the Court to have regard to the level of the Defendant's compliance with any obligations to which he has been subject while on release on parole.
67. The Defendant's experience by way of parole release has been as a juvenile only. His compliance with parole obligations in that respect has been poor. He was released to parole on 22 July 2007, but re-entered custody on 6 August 2008 on a warrant for breach of parole. He failed to report and travelled to Queensland and recommenced using amphetamines.
68. As mentioned earlier, a number of the offences referred to in this judgment were committed whilst the Defendant was on parole.
69. The Defendant has not been released to parole during his current sentence. The State Parole Authority (“SPA”) determined not to grant parole on 2 August 2016, and again on 8 November 2016. As a result, the Defendant has had no experience under parole supervision as an adult.
70. A supplementary pre-release report dated 20 October 2016, provided to the SPA, noted that the Defendant had slashed his right ear and a wrist with a razor on 31 July 2016 and required hospital treatment.

Safety of the Community: s.9(3)(a)

71. Finally, but most importantly, I refer to the safety of the community, a factor to be considered under s.9(3)(a) of the Act. Everything that I have said so far by reference to the s.9 factors relates, directly or indirectly, to this primary and fundamentally important statutory factor. I have mentioned already the primary object of the Act as contained in s.3, which relates to the safety of the community.

The Defendant as a “High Risk Violent Offender”: s.5E(2)

72. I turn now to the question as to whether, on the evidence, the Court can reach the prima facie view for the purpose of s.5E(2) that the Defendant is a high risk violent offender. I note that s.5E(1) provides that a person can be made the subject of a high risk violent offender ESO if, and only if, the person is a high risk violent offender.
73. Section 5E(2) requires the Court to consider whether it is satisfied, at a prima facie level (at a preliminary hearing), 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.
74. It has been emphasised in other judgments of the Court (at the preliminary hearing stage) that the definition in s.5A of “serious violence offence” does not extend to every act of violence: State of New South Wales v Sancar [2016] NSWSC 867 at [86] (“Sancar”). An ISO or an ESO under the Act is not to be used as a substitute for parole: Sancar at [90]).
75. It was submitted for the Plaintiff that the totality of the evidence on this application was such that the Court would be satisfied, at this stage, that the evidence supports a finding that the Defendant is a high risk violent offender. Although there is only one serious violence offence on his record (the attempted murder offence), there is a variety of other substantial offences of violence, together with a history and psychological and psychiatric assessments, which point strongly in favour of such a finding.
76. It was submitted for the Defendant that the Court will be assisted in its determination of this issue by the decisions in Sancar and State of New South Wales v Pacey [2015] NSWSC 1983 (“Pacey”).
77. Both Sancar and Pacey were decisions where a Judge of the Court dismissed the Summons at the preliminary hearing stage. In each case, it was emphasised that there was a single serious violence offence committed by the Defendant, being the index offence which was foundational to the application itself. In each decision, the presiding Judge emphasised the relatively narrow terms of the definition of “serious violence offence” in s.5A of the Act, that being part of the test to be applied under s.5E(2). It is not a matter of whether there was a risk of the commission of some lesser form of violent offences, nor was it a matter of forming a view, as a matter of social utility, that it would be desirable that the person be subject to supervision in the community.
78. It was submitted further for the Defendant that, on the evidence, the Court would focus upon the index offence committed in custody, with an analogy being sought to be drawn in this respect with the offence in Sancar. Concerning the balance of the evidence, it was submitted that it could rise no higher than the suggested risk of the commission of offences of violence, without reaching the level of “serious violence offence” prescribed by the Parliament in s.5A of the Act.
79. I have had regard to the submissions made on what is the critical issue in dispute at this preliminary hearing.
80. Parliament amended the legislative scheme previously contained in the Crimes (Serious Sex Offenders) Act 2006 in 2013, so as to extend the scheme to apply to high risk violent offenders as well. As the second reading speech for the Crimes (Serious Sex Offenders) Amendment Act 2013 makes clear (Hansard, Legislative Assembly, 20 February 2013), Parliament wished to focus attention on persons who were in a defined class of high risk violent offenders. The legislation has been amended twice since then, by the Crimes (High Risk Offenders) Amendment Act 2014 and the Crimes (High Risk Offenders) Amendment Act 2016. It is important, as was said in Sancar and Pacey, to keep firmly in mind the terms of ss.5A and 5E(2) of the Act.
81. In his report, Mr Ardasinski has acknowledged the difficulty in attempting to assess the risk of a person committing a “serious violence offence” as opposed to some lesser form of offence of violence. It does not seem that there is any actuarial predictive tool which is available to deal with the dividing line between these two levels of violent offending. This is understandable.
82. Experience of violent offences by Courts is that they take many forms, frequently with unexpected escalation occurring despite the offender’s initial thought processes. To attempt to create a predictive model which focused solely on “serious violent offences” as defined would seem to be impossible.
83. What the Court must do, however, is to look at the evidence in the particular case to determine whether the question posed by the provision can be answered in the affirmative. I have been assisted by the decisions in Sancar and Pacey, and by the decision of RA Hulme J in State of New South Wales v McGrath [2016] NSWSC 1560 in this area. The facts in Sancar and Pacey were, in my view, very different to those in the present case.
84. Two illustrations may be given, arising from the facts of this case, which demonstrate the capacity of conduct which may not reach the statutory threshold of “serious violence offence”, to potentially end up in a crime of that type.
85. The Defendant committed, in 2007, an arson offence under s.196(1)(b) Crimes Act 1900 of damaging property with intent to injure a person by means of fire. Mr Ardasinski made some very pertinent observations about the potential for disastrous consequences when a crime of that type is committed (see [54] above). This is entirely consistent with statements of sentencing courts with respect to the crime of arson such as that in s.196(1)(b).
86. In Porter v R [2008] NSWCCA 145, the Court of Criminal Appeal (at [80]-[81]) noted factors relevant to sentencing for arson offences. In that case, the offence was one under s.195(b) Crimes Act 1900 (a less serious offence than the Defendant's offence under s.196(1)(b)). The Court emphasised that the circumstances of the possible spread of fire may be taken into account in determining an appropriate sentence. It was appropriate to take into account the potential risk of physical injury to other persons in determining a sentence for arson. It was said, by reference to authority, that arson is an extremely serious and dangerous crime. Courts have observed that arson was very easy to commit, usually with destructive if not tragic consequences.
87. Those considerations, it seems to me, provide a good illustration in this case as to how the fact that the Defendant had committed an offence of arson relates, in a direct way, to the question whether there is an existing risk to commit a serious violence offence.
88. A further example relates to the Defendant's offence in December 2007 (see [54] above). He entered a unit occupied by a couple with a baby. He picked up a knife and a struggle ensued in which, fortunately for the Defendant, minor injuries only were sustained by the victim.
89. In the context of sentencing for home invasion offences, it has been constantly emphasised that the unpredictable and chaotic nature of offences of that type carry the real prospect of serious injury or worse resulting: R v Karimi; R v Khoury; R v Mir (No 11) [2013] NSWSC 1761 at [295].
90. In R v Natuba; R v Tamapua [2012] NSWSC 1569, the following was said at [238]:

“A further factor which bears upon the gravity of home invasion offences is their unpredictable and chaotic nature, exemplified by the observations of Evans J (Tennent and Wood JJ agreeing) in Wahl v State of Tasmania [2012] TASCCA 5 at [30]:
‘Whilst the actual harm caused by a crime is most important in the sentencing process, in my view one of the reasons why home invasions are considered to be particularly serious is the wide and unpredictable range of significant harm they can precipitate and cause. Not uncommonly the outcome of a home invasion is quite different from that intended by the intruder or intruders. The occupants, who not infrequently include children, can be terrified, and the intrusion can provoke a response that results in serious injuries and damage’.”

91. I provide these two illustrations because it is necessary, in looking at a case such as this, where there are a range of offences of violence committed by the Defendant, to have regard to considerations of this type. The Court is not confined to looking at the index offence. Other offences of violence, which do not fall within the definition of “serious violence offence”, may shed very considerable light upon the risk of commission of “serious violence offences” in the future. In my view, that is the present case.
92. The position, then, is that the Defendant has committed an offence of attempted murder. That occurred in a custodial setting, however there are many features which distinguish this case from the decision in Sancar. The Defendant has a significant criminal history for offences of escalating violence, including the arson offence and the home invasion offence to which I have made reference. He has committed various offences whilst armed, as well as lesser offences of violence. There is a pattern of offending which is significant. Added to that are the aspects personal to the Defendant, with respect to his mental health and current diagnosis, and identified difficulties with him returning unsupervised to the community.
93. This is not a case where the Court is merely looking at the possible public benefit of the supervision of a person in the community, as opposed to the non-supervision of the person in the community. There is, in my view, a very significant risk of serious reoffending by the Defendant if he is not subject to supervision in the community.
94. I am satisfied (at a prima facie level at the very least) 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.

Conclusion and Orders

95. Following that evaluation, I move (at the prima facie level) to the use of an ISO, which involves consideration of s.5F and other provisions of the Act. I have already noted that there is no contrary submission from the Defendant, if this point was reached, to the making of orders for psychiatric examination and the fixing of an ISO subject to the conditions proposed by the Plaintiff. Of course, these matters do not operate by consent.
96. I record my satisfaction that the orders sought by the Plaintiff in the Summons at the interim stage are entirely appropriate in the circumstances of this case. That level of satisfaction extends to the conditions as well as the making of an ISO.
97. I make Orders 1, 2, 3, 4, 12 and 13 in accordance with the Short Minutes of Order which I have signed and dated today.

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