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State of New South Wales v Grooms (Final) [2019] NSWSC 353 (2 April 2019)

Last Updated: 4 April 2019



Supreme Court
New South Wales

Case Name:
State of New South Wales v Grooms (Final)
Medium Neutral Citation:
Hearing Date(s):
19-20 March 2019
Date of Orders:
2 April 2019
Decision Date:
2 April 2019
Jurisdiction:
Common Law
Before:
Fullerton J
Decision:
1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be under supervision in the community for a period of 2 years commencing on 2 April 2019 when the defendant’s interim supervision order expires.

2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), during the period of his extended supervision in accordance with (1), above, the defendant is to comply with the conditions in the Schedule to these reasons.
Catchwords:
HIGH RISK OFFENDER – application for continuing detention order or, in the alternative, an extended supervision order – whether conditions proposed by the plaintiff were beyond power – ESO imposed with conditions
Legislation Cited:
Cases Cited:
State of New South Wales v BG (Final) [2019] NSWSC 200
State of New South Wales v Baker (No 2) [2015] NSWSC 483
State of New South Wales v Bugmy [2017] NSWSC 855
State of New South Wales v Farringdon [2018] NSWSC 874
State of New South Wales v Grooms (Preliminary) [2018] NSWSC 1917
State of New South Wales v Holschier [2016] NSWSC 234
State of New South Wales v Jones [2018] NSWSC 459
State of New South Wales v McQuilton (Final) [2019] NSWSC 265
State of New South Wales v Single [2019] NSWSC 176
Wilde v the State of New South Wales [2015] NSWCA 28
Category:
Principal judgment
Parties:
State of New South Wales (Plaintiff)
David John Grooms (Defendant)
Representation:
Counsel:
JS Emmett (Plaintiff)
R Wilson (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s):
2018/287511
Publication Restriction:
Nil

JUDGMENT

  1. HER HONOUR: By summons dated 19 September 2018 the State of New South Wales (“the State”) seeks an order that the defendant, David John Grooms, be subject to a continuing detention order for a period of 18 months pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) or, in the alternative, that he be subject to an extended supervision order pursuant to s 9(1)(a) of the Act for a period of 5 years.

The preliminary hearing

  1. At the preliminary hearing convened before R A Hulme J on 3 December 2018, interim orders were sought by the State on the same alternative basis. The State also sought an order for the appointment of two experts to conduct separate psychiatric or psychological examinations of the defendant and to furnish reports to the Court in advance of the final hearing.
  2. As at the date of the preliminary hearing the defendant was serving an aggregate sentence of imprisonment of 4 years with a non-parole period of 2 years and 6 months imposed in the District Court on 19 August 2016 following his pleas of guilty to causing grievous bodily harm to a police officer while the officer was executing his duty and wounding another officer in the execution of his duties. The first of those offences is the serious offence grounding the application for orders under the Act (“the index offence”). As at the date of the preliminary hearing the defendant had not been granted parole.
  3. The defendant opposed the issue of an interim continuing detention order pending the final hearing. He did not resist the Court making an extended supervision order effective upon his release from custody on 3 January 2019 at the expiration of his sentence, or earlier should he be released to parole. He made no concessions as to the appropriateness of making an extended supervision order as a final order in the proceedings.
  4. As the defendant's sentence was due to expire before the proceedings would be finally heard and determined, s 17A of the Act operated to permit the Court to make an interim supervision order where the matters alleged in the supporting documentation, if proved, would justify the making of an extended supervision order. As the summons also sought a continuing detention order, s 18A operated to allow for the issue of an interim detention order were the Court satisfied that, if proved, the matters alleged in the supporting documentation would have justified the making of an extended supervision order or a continuing detention order.
  5. In his judgment on the preliminary hearing (State of New South Wales v Grooms (Preliminary) [2018] NSWSC 1917), R A Hulme J noted that if the matters alleged in the supporting documentation justified the making of either a continuing detention order or an extended supervision order, the Court was obliged under s 7(4) and s 17(2) of the Act to make orders for the appointment of experts to examine the defendant and to provide risk assessment reports in advance of the final hearing.
  6. The State’s primary submission at the preliminary hearing was that the Court would be satisfied, to a high degree of probability, that the defendant posed an unacceptable risk of committing another serious offence if he were not kept in continuing detention. The following matters were relied upon in support of that submission:
  7. At [12] his Honour identified a range of matters in the supporting documentation that were relevant to the questions raised at the preliminary hearing. They included, necessarily, the defendant’s criminal history both prior to and including the commission of the index offence in 2015. His criminal history is as follows:
Assault in 2004
Mr Grooms (aged almost 19) was convicted of two offences of assault and placed on a good behaviour bond for 12 months. The matter concerned physical and verbal aggression towards staff at a licensed club initiated by his companion but he joined in. This occurred after the pair had been refused entry for being intoxicated.
Offensive behaviour, intimidation, resist arrest and assault officer in the execution of duty in 2007
Mr Grooms (aged 21) was intoxicated and extremely aggressive towards police when spoken to about drinking in a public "alcohol free" zone. For the most serious offence he received a 12 month sentence of imprisonment which was suspended.
Sexual assault in 2008
Mr Grooms (aged 22) harassed and sexually assaulted a female passenger on a train by allegedly digitally penetrating her vagina and anus and attempted to penetrate her with his penis. The agreed facts on sentence limited the sexual assault to the act of digital/vaginal penetration. The offence is said to have occurred in the context of heavy alcohol intoxication. Mr Grooms was sentenced to imprisonment for 6 years 6 months with a non-parole period of 4 years 6 months dating from 2 April 2008.
Assault in 2010
Mr Grooms (aged 24) entered an inmate's prison cell and struck him on the head around the jaw and lip with his closed fist and while the victim was on the ground he stomped on his head. This occurred after Mr Grooms had become impatient concerning a queue to use the telephone. He received a sentence of 6 months which was added to the non-parole period for the sexual assault sentence.
Index and associated offences in 2015
On 4 January 2015, three months after he had served the entirety of the sexual assault sentence without parole, Mr Grooms (aged 29) initiated a confrontation with two police officers who attended the address at which he was living looking for someone else. The officers approached a granny flat and he stood in their way saying, "You're not going in there you cunts". He was moved away from the door but he became physical and attempts were made to restrain him as he persisted in trying to prevent the officers entering the flat.
During the course of the scuffle Mr Grooms punched Senior Constable Cowan to the eye, knocking him to the ground. The officer pulled Mr Grooms to the ground with him and the struggle continued causing Leading Senior Constable Kingma to use capsicum spray to try and subdue him. Despite this Mr Grooms stood up and punched officer Kingma in the face. This caused pain and profuse bleeding from the nose. Mr Grooms was sprayed again but to no avail.
Officer Cowan managed to get up from the ground and attempted to restrain Mr Grooms who then punched him in the face several times. Officer Kingma they deployed a taser and Mr Grooms was ultimately handcuffed and restrained.
Officer Cowan sustained injuries including a laceration to his right eye which had to be glued closed. A visible red line, swelling and soreness persisted for a number of weeks. He was off work for two weeks.
Officer Kingma sustained bruising and fractures to the nasal and sinus bones. He was in prolonged pain and discomfort. He underwent two functional and cosmetic nasal surgeries involving the total removal and reconstruction of his nasal septum, subsequent collapse of the reconstructed septum and reconstruction using his ear cartilage. He has permanent numbness to the fact and had lost his sense of smell. He was left unable to work for a number of months.
  1. At [23] his Honour noted the defendant’s criminal antecedents were limited to one instance of sexual violence committed ten years previously and one serious violence offence (the index offence) committed almost four years previously. His Honour also noted that none of the offences on the defendant's criminal record involved the use of a weapon, or premeditation, and most were committed while the defendant was intoxicated, including the index offence. His Honour emphasised at [24] that he did not intend to suggest that the index offence (or the other offending for that matter) was less serious for that fact, but, rather, that the defendant’s offending should be understood in the context of the full range of violent offending comprehended by the Crimes Act and the range and extent of serious offences of violence relied upon by the State when applying for either continuing detention orders or (more commonly) extended supervision orders under the Act.
  2. At [26] his Honour observed that on the material tendered before him, the application for the defendant’s continued detention or extended supervision was “not amongst the strongest or more compelling” of the many high risk offenders the Court has dealt with since the legislation was first introduced in 2006.
  3. Insofar as the defendant’s custodial record was concerned, his Honour noted that the defendant had been repeatedly punished for disciplinary misconduct, including drug related misconduct referable to his use of buprenorphine, an opiate substitute, but that he had made efforts to secure a place in a custodial-based drug program in order to avoid any repetition of that behaviour. Other evidence confirmed that he had been placed on a waiting list for the EQUIPS Addictions program for two years. His Honour also noted that the defendant had completed the EQUIPS Foundations and EQUIPS Aggression programs in 2017 and that he had commenced, but did not complete, the Violent Offenders Therapeutic Program (“VOTP”).
  4. His Honour referred to the Risk Assessment Report of 28 March 2018 prepared by Ms Cieplucha, a senior psychologist associated with Justice Health, in which she assessed the defendant's risk of violent reoffending in the high range, with the most likely future scenario of violent offending if the defendant encounters a situation he perceives to be confrontational, in particular were it to involve authority figures. Ms Cieplucha made particular mention of the defendant's entrenched negative beliefs and attitudes towards supervision and his antisocial and anti-authoritarian attitudes as reflected in a number of historical offences involving police. She emphasised however that she was unable to offer an opinion as to the extent to which any future violence would approach the threshold of a "serious violent offence" as defined in s 5A of the Act. His Honour regarded that qualification as significant. Ms Cieplucha also noted that the defendant had a diagnosed mood disorder and a history of substance abuse. She identified his highest treatment needs in the areas of "violent lifestyle, criminal attitudes, interpersonal aggression, emotional control, insight and violence in institutions".
  5. Finally, his Honour noted that the defendant had shared accommodation in a Community Offender Support Program (“COSP”) house available upon his release where he would be provided with supervision and support on a 24-hour basis with the primary focus being to provide him with the a high level of supervision and monitoring, complemented by access to drug alcohol and other programs, to minimise his risk of reoffending.
  6. In the result, having regard to the supporting documentation and various mandatory factors in ss 17(2), (4) and (5) of the Act that his Honour was required to consider for the purposes of resolving whether interim orders, either for the defendant's continued detention or extended supervision ought be made, he refused to make a continuing detention order but upon being satisfied that if the matters alleged in the supporting documentation were proved at the final hearing there is an unacceptable risk of the defendant committing a serious offence, his Honour made an interim supervision order and directed the defendant to comply with the conditions set out in the Schedule to the Summons for the duration of that interim order. Those conditions were in what this Court has come to recognise in applications for supervision orders under the Act as “standard” or “common form” orders. They included, inter alia, that the defendant submit to electronic monitoring if he is directed to do so and to provide a Schedule of movements to his departmental supervising officer (“DSO”), and that he reside at an address approved by his DSO.
  7. His Honour accepted that the basis for making that order in the final hearing might be revealed in the reports of the two court-appointed experts, and that since the defendant was at the time of the filing of the summons a “detained offender” (as defined), it would be open to the Court to make a continuing detention order at the final hearing if the evidence tendered at that time supported making that order.
  8. That interim supervision order ultimately took effect from the date of the defendant's release from custody on 3 January 2019. It has been extended on two occasions since then for a period of 28 days, namely from 31 January 2019 and 21 February 2019. It was finally extended for a period of 6 days from 28 March 2019.
  9. His Honour directed the appointment of two experts to prepare risk assessment reports. The defendant subsequently attended on Dr O’Dea, forensic psychiatrist, and Ms Dewson, forensic psychologist.

The final hearing

  1. The final hearing of the summons was convened on 19 and 20 March 2019. In addition to the tender of the two expert reports (neither of whom were required for cross-examination) the State read the following affidavits:

The reports of the court-appointed experts

  1. Both Dr O’Dea and Ms Dewson were of the opinion that the defendant is at a high risk of committing a serious offence if he is not subject to a continuing detention order or an extended supervision order.
  2. In his report of 27 February 2019, Dr O’Dea expressed the following opinions:
  3. In her report of 21 February 2019, Ms Dewson expressed the following opinions:
  4. Neither of the court-appointed experts were required for cross-examination.
  5. Ms Jeffress, the defendant’s departmental supervising officer under the interim supervision order, was required for cross-examination. I note that in her affidavit of 4 March 2019 she identified herself in that capacity, however at the time of giving her evidence on 19 March 2019 that position had changed. She was unable to advise the identity of the defendant’s new supervising officer. Although day-to-day supervision is the responsibility of a range of officers in the extended supervision team, self-evidently continuity in the management of a defendant is likely to establish a better working relationship and enhance the success of management strategies.
  6. It will be necessary to refer to Ms Jeffress’ evidence in some detail later in these reasons. Suffice to note at this stage that she first met the defendant on 3 January 2019 when he was released from custody. She escorted him to the Nunyara COSP and, later that day, to a number of appointments including to Centrelink in the company of his mother. She has had regular contact with the defendant since that time.
  7. Ms Jeffress reviewed the Risk Management Report of Erin Kirkwood, Senior Community Corrections Officer, dated 5 June 2018 and expressed her agreement with Ms Kirkwood’s recitation of the risk factors associated with the defendant’s reoffending as identified in a psychological assessment undertaken in August 2017. They included:
• Violent lifestyle, violence cycle and violence during institutionalisation
• Criminal attitudes, cognitive distortions and peers
• Interpersonal aggression, emotion regulation and impulsivity
• Substance abuse
• Insight
• Criminal personality
• Stability of relationships
• Compliance with community supervision, community support and release to high risk situations.
  1. After reviewing that report and other management tools available to her in determining the level of supervision to which the defendant should be subject, Ms Jeffress also agreed with the risk management plan identified by Ms Kirkwood. That plan included weekly interviews with the defendant at his approved residence with a view to developing a comprehensive case plan relevant to his particular risks of reoffending; exercises to develop awareness and strategies to develop and implement problem-solving skills; relapse prevention skills and emotional regulation and impulsivity; and encouraging the defendant to engage in appropriate community-based support services, targeting his identified risks of substance abuse. At the time of the preparation of the Risk Management Report in June 2018, Ms Kirkwood noted that the defendant had not previously been subject to supervision by Community Corrections and, accordingly, his level of engagement and response to supervision was not known.
  2. Other aspects of the risk management plan included Scheduled and unannounced home visits, including liaising with those people with whom the defendant is residing; monitoring his interactions with the community and his interpersonal relationships (either with or without electronic monitoring or according to movement Schedules) and motivational interviewing to challenge any inappropriate thought patterns and to encourage the defendant's engagement in prosocial community activities. The defendant’s progress under supervision was to be reviewed at Scheduled quarterly case management review meetings.
  3. In her affidavit Ms Jeffress said that the rationale behind the supervision conditions as listed in the Schedule annexed to the Summons would give effect to the risk management plan. Cross-examination was directed to the form and content of some of those conditions with the extent to which the defendant should be electronically monitored and/or required to provide a prospective Schedule of his movements being the most contentious. Through Mr Wilson of counsel, it was the defendant's ultimate submission that many of the standard conditions of supervision were unnecessary, with some involving an unwarranted intrusion into his right to liberty, while others were likely to prove counter-productive to his rehabilitation.
  4. Ms Jeffress also gave consideration to the Offender Integrated Management System (“OIMS”) reports as they related to the defendant. The OIMS is a computer-based system by which staff involved in the day-to-day management of a person under supervision maintain file notes of their dealings with that person, inclusive of contact with the person's family and with police and third parties, including those involved in preparation of assessment reports. Ms Jeffress had regular weekly contact with COSP staff to discuss the case management strategies as they applied to the defendant including his progress, his behaviour and any difficulties they had encountered in supervising him and any future supervision strategies.
  5. Of the large volume of OIMS reports annexed to Ms Jeffress’ affidavit (extending over 107 pages) a discrete number of entries (18 in total of which 2 were concerned with his behaviour prior to release from custody) were referred to. Of those, four entries related to the defendant's adjustment to prescribed buprenorphine - the most recent of which was 15 February 2019; one related to the defendant’s apparent failure to charge his electronic monitoring device; another where the defendant expressed feeling “overwhelmed” in complying with the Schedule of movements and on another occasion feeling “stressed and anxious” when he said he became disoriented whilst shopping. There were also a number of entries where the defendant became angry and aggressive in the COSP facility, usually associated with swearing. However, none were associated with physical aggression directed at staff or other residents, and none involved verbal threats of violence directed to staff or other residents. His outbursts were associated, although not always, with kicking at or hitting objects or furniture, and usually associated with limits placed upon his conduct or where he was expected to share household chores.
  6. The most recent incident occurred on 25 February 2019. The defendant was sharing cooking duty with another resident of COSP when a complaint was made about peas being incorporated into the mashed potato, causing the defendant a level of frustration which he expressed by speaking rudely to the resident who had made the complaint. The defendant was asked to remove himself to the office where he could speak privately with a staff member. The defendant’s frustration did not abate and he was asked to leave the office. On leaving he went back to the kitchen where he kicked the “wet floor sign” which caused it to impact with cupboards. He left the kitchen after punching a door. That behaviour was, understandably, reported to shift staff who raised it with the defendant. This prompted him to again express anger and frustration by him swearing and apparently slamming a door and banging things in his room.
  7. The following day, in a conversation with Ms Jeffress, the defendant was informed that because of his behaviour the previous night he would not be permitted to participate in recreational activities which included an afternoon swim and snorkelling. When he was given that direction he responded by yelling and screaming and threatening to remove his monitoring device. He said, “I have to get out of here now. I can’t stand it. All the paedophiles are watching their kiddy porn and nothing is done about it. I’m fucking over it”.
  8. Ms Jeffress reported in an OIMS entry, in the continuing conversation with the defendant, that she was able to ask him to reflect on what he had gained since being released from custody and to think about how happy he had been at his liberty, including contact with his family. She reported that the defendant appeared to understand but then his temper would flare, with him screaming:
I always say please and thank you. I’m fucking over it. I’ve done nothing. I want out.
  1. The manager of the COSP Unit was informed by Ms Jeffress of her conversation with the defendant. He advised that local police would be called if the defendant’s behaviour further escalated.
  2. Later that day the defendant called Ms Jeffress of his own initiative and was polite and rationale in discussing the situation with her. She reported in the OIMS report:
He sounded disappointed with himself, but expressed that he was not at fault in the original incident, however conceded that his actions following it were.
  1. She encouraged him to speak with the manager. Further reports verify that communications between the defendant and managing staff were cordial, but that he was told the restrictions in regards to recreational activities would remain in place. He conceded in that discussion that his behaviour may have given rise to fear in staff and other residents, but gave the manager his assurance that his outbursts did not, and would not, result in physical violence.
  2. Somewhat ironically, given what I will have to say later about the defendant’s frustrated wish to reside with his parents, an option supported by Ms Jeffress, the manager then discussed alternate accommodation options with the defendant via Housing NSW or, in the alternative, homeless shelters. The defendant went on to express remorse and disappointment with his current circumstances, stating that he felt he was “just existing”. Further discussions were undertaken with him as to employment prospects.
  3. I have taken the time to detail this incident as it provides context for an incident which occurred on 25 March 2019, after I had reserved my decision on the State’s application for an extended supervision order; an incident which resulted in the defendant’s arrest on 26 March 2019. He was bail refused until I granted him bail after making orders under the Bail Act 2013 (NSW) (R v Grooms [2019] NSWSC 359). I will have something to say about that incident later in this judgment.
  4. Notably, there are also numerous positive reports in the OIMS records reflecting the defendant’s politeness and his willingness to engage with Ms Jeffress, together with consistently positive feedback from management staff at COSP as to his level of compliance and, as recently as 26 February 2019, his proven capacity to deal with his anger evidencing a capacity for self-restraint and insight.

The proceedings at the final hearing

  1. Essentially, the issue at the final hearing was the same as that which presented at the preliminary hearing, namely, whether the State could make out a case to justify the Court ordering the defendant to be returned to custody for a defined period, or whether an order providing for his extended supervision was sufficient to ensure the safety and protection of the community.
  2. In the State’s filed submissions, the application for a continuing detention order was pressed. The Court was referred to the statutory framework governing the making of that order and the relatively confined body of case law where the State’s application for a continuing detention order has been considered. Importantly, as N Adams J noted in State of New South Wales v Jones [2018] NSWSC 459 at [206] and [208], following the amendments to the Act in 2017, the Court is not obliged to consider as a threshold question whether the defendant can be adequately supervised in the community; that consideration arising as one of a range of considerations to be taken into account as part of the overall evaluative exercise in which the Court is engaged when a continuing detention order is sought.
  3. In the defendant’s filed submissions, his opposition to the continuing detention order was maintained. The defendant did concede, however, that it was open to the Court, referable to the supporting documentation as supplemented by the reports of the court-appointed experts, to impose an extended supervision order (albeit for a period of no more than three years) with a decreasing level of the intensity of supervision, consistent with the views expressed by Ms Dewson in her report at [113].
  4. In making that concession, the defendant accepted that the statutory prerequisites to the making of an extended supervision order were met. He also accepted that in accordance with the statutory test in s 5B(d), it would be open to the Court to be satisfied, to a high degree of probability, that he poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order.
  5. At the outset of the hearing, I indicated to the parties that I had given consideration to the material upon which the State proposed to rely in seeking a continuing detention order, together with the filed submissions of the parties adducing that evidence, and without pre-determining the issue, it did not appear to me that the statutory test for the issue of a continuing detention order had been met.
  6. After Ms Jeffress had given evidence I invited Mr Emmett to confirm his instructions that the State pressed its application for a continuing detention order in light of her confidence that the defendant will not only remain compliant with court-imposed conditions for supervision in the community, but that under supervision he was unlikely to break the law, much less commit a serious offence. Mr Emmett accepted that invitation.
  7. After graciously acknowledging the force of the filed submissions of the defendant’s counsel, Mr Wilson, and what Mr Emmett described as “Ms Jeffress’ compelling and credible evidence”, Mr Emmett informed the Court that the State withdrew its application for a continuing detention order.
  8. Mr Wilson then confirmed his instructions that there was no opposition to the Court making an extended supervision order. What remained at issue was the term of the order and the conditions to which the defendant would be subject during its currency.
  9. Notwithstanding Mr Wilson’s concession, the Court can only order the supervision of the defendant beyond the term of his now expired sentence if it is satisfied that the statutory prerequisites for the making of that order have been fulfilled (as they have in this case) and the Court is satisfied, by reference to relevant considerations, that an extended supervision order should be made to address the unacceptable risk of the defendant committing a serious offence if not kept under supervision, with the paramount consideration being the safety of the community (see s 9(2) of the Act).
  10. The Court’s assessment of the high probability of the risk of a defendant committing another serious offence, and the denotation of that risk as “unacceptable”, is evaluative in the sense that it involves consideration of both the likelihood of the risk of the defendant committing a further serious offence and the gravity of the risk that may eventuate.

The making of an extended supervision order

The mandatory considerations under s 9 of the Act

Section 9(3)(b): the reports of court-appointed experts

  1. As Dr O'Dea emphasised in his report, in the absence of any long-term alcohol and other drug counselling and/or rehabilitation (both prior to and after the defendant entered custody for the index offence), coupled with a diagnosed substance abuse disorder with significant risk of relapse without a structured and supervised treatment program, and a personality disorder with significant antisocial traits, extended supervision for a period of 5 years was in his view necessary, monitored every 6 to 12 months and modified as appropriate.
  2. Further, because in his view the defendant’s past offending reflects a high risk of further serious offending, exacerbated were he to resume alcohol or illicit substance abuse, he will be required to remain totally abstinent in order to manage that risk and to engage in specialised, structured and supervised alcohol and other drug counselling and rehabilitation in the community in the long-term. A tendency in the defendant to anger and outbursts of aggression, and his unregulated mood generally, were also identified by Dr O’Dea as an additional and specific focus for the ongoing assessment and treatment of the defendant’s diagnosed disorders.
  3. Ms Dewson’s opinion was largely consistent with that expressed by Dr O'Dea. She emphasised the defendant's primary treatment needs as related to his substance abuse, his antisocial attitudes and his poor self-regulation. She also emphasised the likely beneficial effects of strict supervision and routine engagement with clinicians in a variety of disciplines. In her view, although there is an expectation that some offenders will intrinsically manage their own risk of reoffending, the defendant did not have the skills to do so and, for that reason, is likely to be heavily reliant on external management, including individual-based supervision with a skilled clinician given the potential for a group format to present difficulties for him and to compromise his motivation to maintain engagement.

Section 9(3)(c): the results of any other assessment prepared by an appropriately qualified expert

  1. The evidence relating to risk assessment by other qualified experts remains unchanged from the preliminary hearing. Ms Cieplucha, the author of the Risk Assessment Report relied upon in anticipation of the State making an application under the Act (the report which was before R A Hulme J at the preliminary hearing), was provided with the reports of Dr O'Dea and Ms Dewson. In her affidavit she adhered to her assessment of the defendant’s overall risk of future violent sexual and general offending, offering the further opinion that the likely scenario for future serious offending would be an offence of violence, in particular if the defendant encounters a situation he perceives to be confrontational or threatening or in response to provocation. As with the court-appointed experts, she emphasised that the resumption of substance abuse, especially alcohol, would increase the defendant's risk of committing further offences of serious violence.

Section 9(3)(d): The results of any statistical or other assessment as to the likelihood persons with histories and characteristics similar to those of the defendant committing a serious offence

  1. Statistical assessments both in Ms Cieplucha’s Risk Assessment Report and the reports of court-appointed experts place the defendant in, respectively, a “medium high”, “high” or “well above high average” risk of reoffending.

Section 9(3)(d):any report prepared by corrective services as to the extent to which the defendant can reasonably and practicably be managed in the community

  1. The main report in this category was also the Risk Management Report tendered at the preliminary hearing, in which Ms Cieplucha sets out a detailed risk management plan representing a high level of available supervision. Amongst the various strategies for the management of the defendant in the community, the report proposes referrals to a range of psychological and psychiatric services, and referrals to alcohol and other drug services. These proposals complement the views of the court-appointed experts.

Section 9(3)(e): any treatment or rehabilitation programs in which the defendant has had an opportunity to participate his willingness to participate in such programs

  1. As R A Hulme J noted at the preliminary hearing, the defendant successfully completed the EQUIPS Aggression program and was issued a certificate of completion on 1 June 2017. It merits emphasis that the facilitator of the program noted that the defendant was a considerate member of the group who was respectful towards his facilitators and peers and that it appeared he has some insight into his offending behaviour. Similarly with an EQUIPS Foundation program, although at the time of the defendant’s release from custody and despite being on the waiting list for some time, he had not undertaken the EQUIPS Addiction treatment program.
  2. The defendant's participation in the VOTP was marred by being suspended after a total of fifteen sessions for refusing a urine test, and because of aggression and intimidation. I note that the defendant had refused to participate in the CUBIT program whilst serving a previous sentence for a serious sexual assault on the basis that he did not perceive himself to be “a sex offender”.
  3. On the evidence before me I accept that the defendant is willing to undertake any treatment offered to him to address the risk of violent reoffending as part of his extended supervision. I do not regard his refusal to participate in a sex offenders program in 2008 as a factor bearing any weight on this application. I note Dr O'Dea’s view that in circumstances where the defendant’s past sexual offending occurred in the context of his intoxication, and where Ms Dewson saw the sexual offending as a function of generalised “antisociality and criminality” as distinct from sexual deviance, that although they both regarded the defendant as presenting with a high risk of sexual recidivism, neither of the experts assessed him at risk of committing a serious sex offence.

Section 9(3)(e2): the likelihood the defendant complying with his obligations under an extended supervision order as may be reflected in his level of compliance with the orders to achieve a subject on an interim basis

  1. The State submitted that the defendant's conduct while subject to the interim supervision order indicates an unwillingness on his part to comply with the obligations of an extended supervision order. I reject that submission. Having regard to Ms Jeffress’ evidence, and after having given close consideration to the full complement of the OIMS entries and on a balanced reading of them, I am satisfied of the defendant's willingness to comply with his obligations under an extended supervision order and the likelihood that he will do so.
  2. Despite having been sentenced to two significant periods of imprisonment, the defendant has not served any time on parole. Accordingly, the only gauge of his capacity to comply with community-based supervision is his conduct to date in complying with the conditions of the interim supervision order. I am prepared to accept, although not without some hesitation, that despite the defendant’s institutional misconduct demonstrating a continuing difficulty with controlling aggression and a tendency to violence, the level and frequency of that behaviour appears to be lessening rather than escalating, with his conduct at COSP generally and the full complement of the OIMS reports supporting the Court having a level of confidence that his insight into the triggers for violent behaviour and his capacity to avert them is improving, and markedly so. I remain of that view despite the incident on 25 March 2019 which resulted in the defendant being arrested on 26 March 2019 and detained in custody, bail refused.
  3. On 26 March 2019 police arrested Mr Grooms for a breach of s 12 of the Act, the particulars of which allege a failure to comply with:
... an extended supervision order by failing to follow a reasonable direction issued to him by his departmental supervising officer in breach of Condition 3 of that order.
  1. Self-evidently, that offence is fundamentally flawed in that no extended supervision order had issued as at the date of the alleged offending, although the defendant was subject to an interim supervision order at that time. It would appear from the Facts Sheet prepared in support of the Court Attendance Notice that the direction allegedly breached is a direction purportedly issued on 2 March 2019 obliging the defendant:
... not to behave in an aggressive or abusive manner during his contact with CSNSW staff, including COSP staff, electronic monitoring staff, and other residents of the COSP.
  1. This direction was purportedly given pursuant to Condition 3 of the interim supervision order obliging the defendant to comply with all reasonable directions given by his departmental supervising officer.
  2. There were no incidents reported between the issue of that direction on 2 March 2019 and 24 March 2019 when, upon seeking but being refused permission to attend Malabar Beach instead of Darling Harbour because of the heat, the defendant yelled and swore. It would appear that outburst was also accompanied by the defendant throwing his mobile phone at a brick wall causing an accommodation support worker, Ms Kane, to feel threatened. Notwithstanding, she called out to the defendant, inviting him to come into the office to discuss his concerns. He walked into the office, throwing his smashed mobile phone onto the office floor. Ms Kane attempted to talk to the defendant, advising him that his behaviour was not acceptable. He yelled at the top of his voice, “I haven’t done anything wrong. I’ve not directed anything at you” (which I take to mean he was not directing any threats at her, nor directing any physical violence at her, but limiting his outburst to damaging his own property).
  3. A short time later the defendant returned to the office with his electronic monitoring equipment in pieces, which he threw into a bin before turning and leaving the office, again swearing loudly. Upon retrieving the equipment from the bin, it was noted that points on the charger had been bent and the beacon had been smashed.
  4. Although not part of the facts prepared in support of the issue of the Court Attendance Notice, a number of OIMS reports were supplied to Chambers via email when the Court was advised on 1 April 2019 (the day before judgment was due to be delivered) that the defendant was in custody. These OIMS reports record the defendant being spoken to on 25 March 2019 as a result of the destruction of the monitoring equipment, and him being issued with a direction, again purportedly in accordance with Condition 3 of the interim supervision order that, inter alia, he is not to tamper with, damage or destroy any part of his electronic monitoring equipment or any other property that does not belong to him. He was also directed to cease all behaviour, inclusive of swearing, which may intimidate or threaten any departmental supervising officer or other officer or member of staff; a direction which was to take effect immediately upon issue, with a failure to comply being potentially considered to be a breach of the “extended [sic] supervision order”.
  5. Critically, the following is then recorded in the OIMS:
Mr Grooms signed the direction and indicated that he understood it ... He was also provided with a copy and new monitoring equipment ... [The writer] spoke with Grooms about his behaviour and that it was unacceptable, which he acknowledged. Asked if he was engaged in any service to address his anger management, he advised he has an appointment to see a doctor tomorrow in order to get a referral to commence treatment... advised him that this was a good start, however he needed to be aware that the behaviour he had been displaying would not be accepted which he understood.
  1. It was later that day that he was arrested and charged.
  2. Since it remains for the prosecuting authorities to determine whether that charge is to be prosecuted, and if it is, whether the charge will be proved to the criminal standard, I resist the temptation to express my own views as to what might have motivated police to charge the defendant and the paucity of evidence available to support it. Suffice to note that the defendant being arrested the day before he was scheduled to seek treatment (it would seem of his own initiative) to deal with a tendency to react angrily to the understandable stressors confronting him in the early stages of supervision (including whilst resident at a shared facility against his wishes) has effectively derailed what I am satisfied are his considerable efforts to exercise self-control and to seek treatment to assist him to maintain it. The fact of being charged at this critical stage of his return to the community and, moreover, within days of the Court pronouncing on the State’s application for an extended supervision order and the conditions to which the defendant is to be subject during its currency, is counterproductive to the statutory objects of protecting the community through the defendant’s progress towards rehabilitation, and devoid of demonstrated means of his arrest enhancing community protection.
  3. I note Fagan J’s observations in State of New South Wales v McQuilton (Final) [2019] NSWSC 265 at [104] and the approach taken by departmental supervising officers in that case having a direct impact on the relief the State sought in the application before his Honour. In this case, what I consider to be a flawed approach to the defendant’s supervision under interim orders has directly impacted upon my formulation of conditions to which the defendant will be subject under the extended supervision order. Amongst those matters, of greatest weight, is the decision made to arrest and charge the defendant for an act not otherwise criminal and not involving, in my view, any increase in the risk of him reoffending by the commission of a serious offence of violence and, in fact, not involving any threat of physical violence at all. His displays of temper and use of abusive language, whilst unacceptable, are not of themselves criminal. The decision to prosecute him for a s 12 breach of the Act within days of the Court making final orders (an offence which attracts the show cause provisions of the Bail Act) has all the hallmarks of prosecuting the defendant as a form of detention in circumstances where, at the hearing, the State’s application for a continuing detention order was not pressed.

Section 9(3)(h): the defendant's criminal history any pattern of offending behaviour disclosed by that history

  1. Self-evidently, the defendant's criminal history attracted weight in the consideration given by the State to applying for orders under the Act. The index offence is, however, the only offence of violence on the defendant's record where significant physical injury was inflicted. That is not intended to minimise the other entries of violence on his criminal record, or the four incidents of violent misconduct committed during the sentence of imprisonment he served for the index offence. It is worthy of note, however, that the first three misconduct charges involving violence were committed within eight months of his sentence commencing.

Section 9(3)(h1): the views of the sentencing court at the time the sentence of imprisonment was imposed

  1. When sentencing the defendant for the 2015 offences against the two police officers on 19 August 2016, Haesler SC DCJ observed:

• The defendant was not capable of fully understanding the harm he did to the two victims and instead was focused on himself and the life he had lost because of the significant time he had spent in custody (for the sexual offence committed in 2008).

• It was clear the defendant had work to do in custody, including availing himself of custody-based programs, in particular the EQUIPS program. It was also clear the defendant has been and is in danger of being completely institutionalised.

Should an extended supervision order be made?

  1. Having regard to the opinions expressed by the court-appointed experts, and after taking into account the other matters mandated in s 9 of the Act, I am satisfied, to a high degree of probability, that the extended supervision of the defendant is necessary to address the unacceptable risk that he will commit another serious offence of violence.

The term of the order

  1. I do not consider that a supervision order for 5 years is warranted, exceeding as it would by 12 months the aggregate sentence imposed for his offending. I propose to make an order of 2 years’ duration.

The form of the conditions

  1. Having been afforded time to discuss the final form of the conditions, areas of agreement were reached between the parties although areas of disagreement remained. Some areas of disagreement were limited to textual differences which I have resolved in drafting Conditions 14, 15, 28, 31, 32 and 33 in the Schedule annexed to these reasons.
  2. Other issues in dispute concerned whether particular conditions sought by the State were appropriate to militate against the risk of the defendant committing a further serious offence (such risks being identified in the expert evidence) as distinct from the risk of him offending generally. As discussed in Wilde v the State of New South Wales [2015] NSWCA 28 at [47]- [54], when the Court is giving consideration to the conditions by which a defendant will be bound under an extended supervision order it is the risk of committing a serious offence that is the relevant enquiry.
  3. Principal among the areas of substantive disagreement was the extent to which the defendant should be obliged to submit to orders in Part A of the Schedule of proposed conditions entitled “Monitoring and Reporting”. Further areas of disagreement concerned the extent to which it was appropriate to impose conditions upon the way in which the defendant should be permitted to socialise with guests invited to his parent’s home whilst he was living in a granny flat provided by them, and the extent to which he should be obliged to submit to being searched under the extensive powers of search and seizure in Part H of the Schedule, including the extent to which he must submit to allowing the search of any electronic device he may operate.

The power to impose conditions

  1. In State of New South Wales v Baker (No 2) [2015] NSWSC 483 at [36] Adams J addressed the breadth of the analysis in which the Court is engaged in exercising the power in s 11 of the Act in the following way:
Section 11 of the Act permits the imposition only of such conditions as it “considers appropriate”, including those specified in the section. As Johnson J observed in State of New South Wales v Tillman [2008] NSWSC 1293 at [68], the Court is to strike a “balance between relevant considerations” which included the matters to which the Court has had regard in determining whether to make an extended supervision order. Amongst the other considerations are the ordinary rights of the subject to go about his or her lawful activities free from officious and unnecessary restrictions and the fact that breaches of the conditions incur criminal penalties. Ultimately, the purpose of conditions is to mitigate the risk of the defendant’s committing further sexual offences. For this reason, it is obvious that there need not be a link between the condition and the circumstances of the offences that have triggered the order or the way in which they were committed. The conditions must address identified risk factors but these must be considered in a realistic way and not treated as some statutory scheme. In the nature of things, there can be no bright line: the relevant factors are inherently incommensurable. The condition must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice. (See Wilde v State of New South Wales [2015] NSWCA 28, in which the authorities are usefully collected.)
  1. In State of New South Wales v Bugmy [2017] NSWSC 855 at [89] I was concerned to emphasise the care that needs to be taken to ensure that the conditions the Court imposes when making an extended supervision order relevantly address the nature of the risk a defendant poses referable to the risk factors identified in the evidence adduced in the proceeding under the Act:
The Court is entitled to expect that that the conditions the plaintiff proposes that Mr Bugmy be subject to are drafted to address what are identified in the evidence as the risk factors to his further violent offending (State of New South Wales v Burns [2014] NSWSC 1014 at [59]). The conditions must not be unjustifiably onerous or simply punitive (see Wilde v State of NSW (2015) 249 A Crim R 65; [2015] NSWCA 28 at [45] citing R A Hulme J in State of New South Wales v Green (Final) [2013] NSWSC 1003). Neither may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision under an extended supervision order. The conditions to be imposed in this case must be at least capable of moderating or minimising the risk of Mr Bugmy inflicting serious violence, in contrast to reducing or minimising the risk of him offending in other ways.

Condition 1

  1. The State accepted the reformulation of Condition 1, as proposed by the defendant, in substitution for Condition 1 in the form of the conditions annexed to the Summons.
  2. Accordingly, the proposed condition that:
The defendant must accept the supervision of Corrective Services NSW until the end of the order

is replaced with:

Corrective Services NSW (CSNSW) will administer the Order.

Condition 3

  1. The dispute, as it related to Condition 3, concerned the extent of the power in s 11 of the Act to impose a condition which obliges the defendant to follow “all reasonable directions by his DSO or any person supervising him”.

The source of statutory power in s 11 of the Act to impose Condition 3

  1. In its terms, s 11 provides a non-exhaustive list of the types of conditions which may be imposed by the Court to achieve the statutory purposes to which they are directed, with the directions a defendant is required to comply with being such conditions as the Court considers “appropriate” to achieve those purposes.
  2. In this case (as in every case, where the State brings proceedings for a person’s extended supervision), an offender may be directed to comply with such conditions as the Court considers appropriate, including (but not limited to) directions requiring the offender to do or desist from doing a range of acts provided for in s 11(1)(a)-(n). An assessment of appropriate conditions can only be made in the context of the evidence adduced in the particular proceedings informing the protective purposes of a defendant’s extended supervision and the allied purpose of promoting that person’s rehabilitation as provided for in s 3(2) of the Act.
  3. Mr Wilson submitted that where, as in this case (and it would seem in every case where the common form of conditions are sought by the State in applications for extended supervision under the Act), the Court is asked to confer on a departmental supervising officer the power to make or give directions fettered only by their "reasonableness" (the form of proposed Condition 3), the Court's power to impose “appropriate” conditions is being delegated. Mr Wilson submitted that the conferral on departmental officers of a general power to give directions to a person under supervision in this way is both impermissible as a matter of statutory construction and inherently unfair.
  4. Mr Wilson submitted that in contrast to the Court imposing a condition which requires the defendant to do, or to refrain from doing, a particular act based upon evidence which may be tested in the course of curial proceedings as to which reasons must be given, a direction crafted by a supervising officer is made without the defendant having a right to be heard and is unreviewable. On that analysis, Mr Wilson submitted that the delegation of the power to issue directions as proposed in Condition 3, that is a delegation of power to the supervising officer to direct the person being supervised to do or refrain from doing something, qualified only by view of the officer that the direction is “reasonable”, is invalid.
  5. Mr Wilson submitted that in the event that the Court was satisfied that proposed Condition 3 was not beyond power, it would nevertheless be an inappropriate exercise of the Court’s discretion under s 11 to impose a condition in that form.
  6. Mr Emmett accepted that Condition 3 conferred a discretion on the departmental supervising officer to give reasonable directions for the supervision of the defendant. He submitted that it was a valid exercise of the power in s 11 of the Act to achieve that objective. He submitted that there is no principled basis to limit the power of the Court to impose conditions which are appropriate to and designed for the effective supervision of the defendant, or to confine the discretion of the supervising officer in giving effect to them. He submitted that despite the breadth of the discretion conferred by Condition 3, it was made within the breadth of the power in s 11 of the Act. It follows, Mr Emmett submitted, that in exercise of that power it would be open to the Court to simply impose Condition 3 as part of the extended supervision order, leaving it to the departmental supervising officer, in the exercise of the discretion conferred upon that person, to give such directions as they saw “appropriate” for the supervision of the defendant. That submission is inconsistent with the authorities to which I have earlier referred, amounting as it would to an abrogation of the Court’s obligation under s 11 to impose “appropriate” conditions for the supervision of a particular defendant.
  7. State of New South Wales v BG (Final) [2019] NSWSC 200 is the only case where there has been any express consideration given to the standard form of Condition 3. Although it does not appear to have been argued that the imposition of the condition was beyond power or inherently unfair, it was submitted that a condition in such general and unconfined terms exposed the defendant to the risk of breach where directions were arbitrary or ad hoc. In dealing with that submission Fagan J said at [42]:
I accept that many of the other conditions which are to be imposed contain specific directions with which the defendant must comply. However I do not consider that it would be possible to spell out in advance every kind of reasonable direction that might be given over the next three years. A general power of direction is therefore required. I do not consider that it is likely to give rise to infringement or risk of prosecution in circumstances which would be unfair or capricious.
  1. Mr Wilson did not suggest that the breadth of the power in Condition 3 was being abused by departmental supervising officers. His submission was that since Condition 3, by its terms, does not oblige a departmental officer to confine his or her directions to the monitoring or enforcement of the defendant’s compliance with the Court imposed conditions, it is susceptible to misunderstanding and potential abuse. He also submitted that where breach of a condition imposed under an extended supervision order is punishable by imprisonment for up to 5 years, the conferral of the discretion in a departmental officer to give reasonable directions is too vague and liable to conflicting interpretations.
  2. While it is doubtless the legitimate expectation of the this Court that, as Button J observed in State of New South Wales v Farringdon [2018] NSWSC 874 at [46], a departmental supervising officer is expected to “undertake his [or her] supervision in a common sense way, informed by a practical and constructive exercise of discretion”, that is not always the case. The conduct of departmental supervising officers in McQuilton is a particularly egregious example of overreach in the exercise of the discretion that reposes in a departmental supervising officer. In that case Fagan J found the indiscriminate issue of directions by a departmental supervising officer, unrelated to the defendant's particular circumstances or the risk of his further offending, was unacceptable. His Honour went on to observe, at [100], that the multiple prosecutions of the defendant for his breach of conditions was an “unacceptably blunt measure for reducing the risk of him reoffending”.
  3. Leaving to one side what has occurred in this case in recent days, as to which I have already expressed strong views, the decision to impose movement restrictions on the defendant and their subsequent policing by departmental officers appear to be unjustifiably rigid notwithstanding Ms Jeffress’ evidence, which I accept, that in the transitional phase of interim supervision orders following an offender’s release from custody a tight regime is frequently instituted to assist in both monitoring a person’s movements and providing them with routine and structure. I seriously question, for example, whether any proper and balanced consideration was given to the protective purpose of the imposition of movement restrictions on the defendant when, in the course of visiting the beach with his mother two days after his release from custody (where he was subject to no restrictions as to where he could sit on the sand or where he could enter the water), he was directed not to deviate from the predetermined walking route to the beach and that if he stopped en route with his mother to buy a Lotto ticket, he would potentially be in breach of his preapproved schedule of movements. That incident bears relevantly upon the question whether I am satisfied that it is appropriate to impose as a condition of the supervision order that, if directed by his departmental supervising officer, the defendant must provide a weekly schedule of his movements from which he must not deviate otherwise than in an emergency; the proposed standard form of Conditions 5, 6 and 7. I will return to consider that question.
  4. While it might be implicit in the way Condition 3 is expressed that the directions given by the supervising officer pursuant to a general grant of power to issue reasonable directions will be confined to directions that the defendant do or refrain from doing the particular acts specified as conditions to which the defendant is subject under court imposed supervision, the wording of Condition 3 does not do so expressly and, for the avoidance of doubt, it should.
  5. To remedy that defect, I will not impose Condition 3 in the standard form proposed by the State. I will instead impose a reformulated general power of direction designed to meet the exigencies that may present, from time-to-time, over the term of the defendant’s supervision, but in terms which tethers the exercise of that discretion to the source of power in s 11 of the Act.

The approved address where the defendant is to reside

  1. In the Schedule of conditions annexed to the summons the State proposed that the defendant live at an address “approved by his departmental supervising officer” - again a condition in standard form. During the currency of the interim order (and it would seem in support of his application for release to parole) the defendant asked that he be permitted to reside with his parents in Oak Flats in a granny flat attached to their home. Despite there being no question of his parents being able and willing to provide ongoing support, or the suitability of the amenity in their home to accommodate him, that request was refused. Upon his release from custody the defendant was directed to reside at a COSP facility in the Sydney metropolitan region.
  2. In her evidence Ms Jeffress made it clear that in her opinion both at the initial stage of her supervision of the defendant and at the time of giving her evidence, permitting the defendant to live with his parents was “ideal”. Not only was she satisfied that the defendant’s parents were supportive of him but his relationship with them provided an additional critical layer of support as he transitioned from custody into the community. As Ms Jeffress emphasised, supported living in a COSP is designed to be transitional. Residents are encouraged, and in fact obliged, to secure independent accommodation from either paid work or from whatever government benefits and financial assistance they may be entitled to receive to assist in that process. She said Corrective Services does not provide any financial assistance to support a person find independent accommodation or to finance that accommodation in any way.
  3. Ms Jeffress gave evidence that allowing the defendant to move from the Sydney metropolitan area to live with his parents and, in that event, to provide for his supervision by a Community Corrections office local to that area, had been taken out of her hands because of the “attitude” of the police officers who had been assaulted by the defendant in the course of his committing the index offence in 2014 (both of whom continue to work in the local area command) and that “somebody” had determined that the defendant’s proposed residence with his parents was “not suitable” for that reason. Ms Jeffress gave further evidence that she asked for that decision to be reassessed at what she described as “director level” but that she did not anticipate a different decision would result.
  4. It is no part of the Court’s function in a final hearing to undertake a judicial review of any decision taken by Corrective Services in their administration of interim orders. In making final orders, however, the Court is frequently asked to modify and sometimes delete altogether orders made on an interim basis referable, most usually, to the defendant’s response to supervision where the views of the defendant’s supervising officer carry particular weight and, on occasions, where the Court is satisfied that orders sought by the State on a final basis are inappropriate and in some cases, counter-productive – McQuilton being one example.
  5. In this case, however, Corrective Services NSW and then the State, by their continued opposition to the defendant residing with his parents until Ms Jeffress gave evidence in the proceedings under cross-examination, invited the Court to disregard the views of the defendant’s departmental supervising officer in preference for the solicited views of police. It is clear from the OIMS report of 11 February 2019 (the only source of evidence as to the attitude of police to which the court was referred) that neither of the police officers who were assaulted expressed any personal concerns that they would be the victim of a targeted attack by the defendant. The concern of the local area command was apparently limited to the fact that in 2014 an unidentified family member interfered in the defendant's arrest and, despite the fact that person was never charged and had made no threats of any kind to police in the intervening period of four years, what was said to the willingness of that person to hinder police in the arrest of the defendant, coupled with what was described as the defendant’s “utter lack of remorse” at having inflicted injuries in the course of that arrest, supported the conclusion that the defendant’s family home was not “an ideal location” at which to reside as an approved address under supervision orders.
  6. Were it not for Mr Emmett informing the Court after Ms Jeffress had given evidence that he was instructed not to advance a submission against a proposal that the defendant be permitted to reside with his parents, I would have made an order to that effect, having already concluded that the solicited views of the police in this case carried no weight on the question whether the residence proposed by the defendant (and endorsed by his departmental supervising officer) was appropriate.
  7. Mr Emmett did invite the Court to impose a condition that the defendant not approach the police station where the officers are stationed, or make or attempt to make contact with them (presumably whether on duty or not). In circumstances where, in the absence of any attempt by the defendant or any member of his family on his behalf to make contact with either of the officers since 2014, and where there may be a lawful reason for the defendant to engage with police local to where he is residing, I am not satisfied there is any legitimate basis for uniformed officers to be afforded that level of protection. I decline to make that order.
  8. Where, as R A Hulme J noted in the preliminary hearing, the defendant's criminal history of serious offending was not among the worst of those the Court is invited to review in applications for extended supervision under the Act, and where neither his Honour nor I were satisfied that there was any proper basis for the State to seek his continued detention (on the application for final orders necessarily entailing his return to custody after fully serving his sentence), it is difficult to resist the suspicion that the identity of the victims of the assaults in 2014 as police officers may have motivated the State to seek an order for the defendant’s continued detention, and to have taken the position taken by the State as to the form and content of the conditions that ought be imposed for his extended supervision when its application for continued detention was not pursued. Insofar as the residence condition is concerned, it is difficult to interpret the State’s opposition to the expressed views of Ms Jeffress in any other way.

The power to search and seize

  1. As Hamill J noted in State of New South Wales v Single [2019] NSWSC 176 at [37], there is no express power in the Act conferred on a Corrective Services officer (whether holding the designation of departmental supervising officer under an ESO or otherwise) to conduct searches of a person under supervision or their premises. His Honour was not satisfied, however, that the principle of legality sought to be invoked by the defendant in that case to prohibit the imposition of a condition that he consent to the broad reaching power of search and seizure in the common form of conditions sought by the State operated to prohibit the imposition of a condition of that kind as part of the process of the Court ordering his extended supervision under the Act. In coming to that conclusion his Honour was persuaded by the submission advanced on behalf of the State that the approach taken by Hidden J in State of New South Wales v Holschier [2016] NSWSC 234 should be followed.
  2. In Holschier, Hidden J held at [42]:
Finally, Mr Scragg objected to conditions empowering the supervising officer to search the defendant’s premises and his person if he or she believes that it is necessary for the safety and welfare of residents or staff at his premises, or to monitor his compliance with the order, or because the officer reasonably suspects him of behaviour carrying an increased risk of the commission of a serious violence offence. Mr Scragg referred to the variety of conditions which may be placed upon an extended supervision order in s 11 of the Crimes (High Risk Offenders) Act, noting that this power of search and seizure is not one of them. He argued that the defendant has a common law right not to be stopped and searched and, relying on the principle of legality, submitted that the Act had not provided to the contrary expressly or by necessary implication. However, as counsel for the State, Mr Hammond, pointed out, these conditions have frequently been imposed when orders are made under the Act. He noted that the list of conditions in s 11 is inclusive, and is expressed not to be exhaustive. He noted that many of the conditions imposed under an extended supervision order restrict a defendant from exercising rights he or she would otherwise have, in the interests of the protection of the community. I accept Mr Hammond’s submission on this aspect, and I consider these conditions to be appropriate.
  1. Hamill J in Single went on to say at [51]:
Nevertheless, in exercising this power and in formulating the appropriate conditions, it is important to bear in mind the common law's zealous protection of the citizenry against arbitrary search and seizure, the absence of any specific power under s 11, the kinds of limitations that exist in other statutory contexts including the Registration Act, and the practical impact of the imposition of such conditions or as Allsop CJ put it, “what is being done to people” [a reference to Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 where Allsop CJ, in a case which concerns the exercise of executive powers under the Migration Act 1958 (Cth), said the exercise of a public power cannot be divorced "from what is being done to people”].
  1. I am conscious, as was Hamill J in Single and, more recently, Fagan J in McQuilton at [103] citing his Honour’s earlier decision in BG (Final) at [74]-[79], that the sweeping powers of search and seizure in the common form conditions sought by the State under the Act are without the variety of checks and balances against the misuse of the search and seizure power expressly provided for in Parts 4, 5 and 6 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
  2. Mr Wilson did not invite me to come to a different view to that reached by Hamill J. It was his submission, however, that in the circumstances of this case there was simply no justification for the imposition of a condition allowing for the defendant or his premises to be searched. He submitted that the absolute prohibition on the defendant taking or possessing prohibited drugs, and the qualified prohibition on him entering licensed premises or drinking alcohol without prior approval, coupled with an obligation that he submit to drug and alcohol testing as directed (conditions to which he raised no objection) were sufficient to address the identified risk of him committing a further serious offence whilst under the influence of alcohol or prohibited drugs.
  3. I am satisfied that a condition allowing for the search of the defendant or his premises should be provided for but in a modified form so as to bring it into closer alignment with the statutory powers of search and seizure in the Law Enforcement (Powers and Responsibilities) Act. I am satisfied that it is appropriate to provide for that condition in this case but only where the departmental supervising officer forms a reasonable suspicion that the defendant is in possession of alcohol, drugs or a drug-related item, it being the view of the court-appointed experts that there is an enhanced risk of the defendant committing of a further serious offence were he to abuse drugs or use alcohol. I am not satisfied, however, that there is any justification to allow for a departmental supervising officer to search any portable electronic device or computer in the possession of or operated by the defendant, whether on that basis or on any other basis.
  4. Similarly, I am not satisfied that there is any justification to oblige the defendant to limit his login details to his own name or to provide such email addresses as he may wish to use as part of his use of any internet site (including any social networking site) to his departmental supervising officer. I do not regard that condition as appropriately tailored to his supervision as a high risk offender in circumstances where, based upon his history of offending, the risk of his committing a further offence, does not involve his use of electronic media.

Monitoring the defendant’s movements

  1. The State maintained the submission that both the wearing of electronic monitoring equipment and the provision of a schedule of movements at the discretion of the departmental supervising officer was an appropriate condition to impose in the circumstances of this case. The defendant strenuously opposed any requirement that he provide a schedule of his weekly movements in advance, but did not oppose a condition that he comply with a direction to wear electronic monitoring equipment, conditional upon it being limited to a period of up to six months and with only one direction that it be worn within the term of the supervision order unless by further order of this Court.
  2. Accepting that it is usual, according to the practices of the extended supervision unit, to require electronic monitoring when a period of supervision under court imposed orders commences (as occurred in this case), but to progressively relax that requirement as a person settles into a program of supervision, I will impose the condition although modified in the way the defendant proposes.
  3. The more difficult question is whether the provision of a schedule of movements would promote the objects of supervision (as Ms Jeffress gave evidence it might in the defendant's particular circumstances by giving him structure and routine as he transitions back into the community) or whether it will frustrate those objectives if the stringency with which that condition is structured and enforced results in an unjustified and unwarranted interruption of the defendant’s liberty under the supervision regime and is potentially productive of the unacceptable hazard that his reaction (even if entirely justifiable) might trigger anger or a reactive physical response.
  4. In the result, I have resolved to require the defendant to provide a weekly schedule of movements but in a form designated to operate in coordination with his obligation to submit to the wearing of electronic monitoring, if so directed. I am satisfied that a condition of that kind is consistent with the purposes of supervision under the Act. Together, both conditions operate to protect the community from a risk of harm were the defendant to reoffend by the commission of a serious offence, and to enhance his rehabilitation; objects which are, self-evidently, not inconsistent.

Orders

  1. Accordingly, I make the following orders:

SCHEDULE OF CONDITIONS OF SUPERVISION

DAVID JOHN GROOMS

Part A: Reporting and Monitoring Obligations

1. Corrective Services NSW ("CSNSW") are to administer the Extended Supervision Order (“ESO” / “the Order”).

2. The defendant must report to the Department Supervising Officer ("DSO”), or such other CSNSW supervising officer(s), as directed by the DSO. He must also make himself reasonably available by phone to discuss his compliance with his obligations under this Schedule of Conditions.

3. The defendant must comply with any direction given by his DSO, or their delegate from CSNSW, which is reasonably necessary for the enforcement of any of the conditions of the ESO to which he is subject. Where a direction may conveniently be given in writing, it may be given electronically, including by SMS or other messaging service.

4. Where the DSO considers, on reasonable grounds, a breach of a condition to which the defendant is subject may be treated as constituting a criminal offence, a direction that the defendant comply with that condition must be either given in writing or, if circumstances prevent the DSO giving a written direction, the oral direction must be recorded in writing and provided to the defendant within a reasonable time of the oral direction being given.

Electronic Monitoring

5. The defendant must comply with a written direction by his DSO to wear electronic monitoring equipment for a continuous period of up to 6 months during the currency of the ESO. Without a further order of this Court, only one direction of that kind may be made during the currency of the ESO.

Schedule of Movements

6. During the wearing an electronic monitoring device, if directed by his DSO, the defendant is to provide a summary of his anticipated movements each week (or over successive weeks), limited to places he intends to travel to, the purposes of his travel to those places and the means of travel, but unconfined by any travel route or timetable. If so directed the defendant is to provide that summary no later than noon of the Monday immediately following the issue of the directions. It must be an honest summary of the defendant’s anticipated movements.

It will not be a breach of Condition 6 if the defendant departs from the summary but the defendant must notify his DSO of his change of plans as soon as is reasonably practicable.

Part B: Accommodation

7. The defendant must live in the “granny flat” situated at his parents’ home at XXX during the term of the ESO or at another address with the prior approval of his DSO. In the event that because of a material change in circumstances, the DSO determines, on reasonable grounds, that the defendant continuing to reside at his parents’ home (or other approved address) would pose a significantly increased risk of him committing a serious offence (as defined) the defendant must reside at another address approved by his DSO.

8. The defendant must be at his approved address, wherever situated, between 10pm and 6am unless other arrangements are approved by his DSO.

9. Otherwise than with the prior approval of his DSO, the defendant must not:

a) if he is living in the “granny flat” at his parents’ house, permit any person to stay overnight at the “granny flat”; or

b) if living at another approved address, permit any person to stay overnight at that address.

10. The defendant must allow his DSO to visit him at his approved address between the hours of 8am and 8pm and to enter the premises and conduct a visual inspection of them as considered reasonably necessary for the purpose of ensuring the defendant’s continuing compliance with the conditions of the supervision order. If the “approved address” is the “granny flat” as per Condition 7, the right to enter and undertake a visual inspection is limited to entry into the “granny flat”. The DSO has no right of entry or inspection to the living quarters occupied by the defendant’s parents.

Part C: Place and travel restrictions

11. The defendant must not leave New South Wales without the approval of CSNSW.

12. The defendant must surrender any current passport(s) held by him to the Commissioner.

13. The defendant must comply with any reasonable direction from his DSO not to go to a particular place.

Part D: Employment and education

14. If, during the currency of the ESO for any period exceeding four weeks, the defendant is either not in paid employment or not engaged in the provision of volunteer work, the defendant must make himself available for education and training or to participate in a personal development program if so directed by his DSO subject to any obligations which may operate to qualify his entitlement to receive Centrelink payments preventing him from making himself available.

15. The defendant must give his DSO at least 4 working days’ notice before commencing any paid employment or voluntary work and comply with any reasonable written direction from his DSO not to engage in particular employment or categories of employment or volunteer work.

Part E: Drugs and alcohol

16. The defendant must not possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed.

17. The defendant must not consume alcohol unless given prior approval by his DSO and only in the manner approved. Approval may be given in a general sense and for consumption of alcohol to a particular blood/alcohol level or approval may be given in relation to a particular event where alcohol is to be consumed.

18. The defendant must submit to testing for the presence of illegal drugs and alcohol as directed by his DSO.

19. The defendant must not enter any licensed premises without the approval of his DSO.

20. The defendant must attend and participate in programs, courses or other treatment directed to drug and alcohol rehabilitation as directed, in writing, by his DSO. He must not discharge himself from such programs, courses or treatment without the prior approval of his DSO, provided that if the cost associated with such programs, courses or treatment is not met by Medicare or by other Commonwealth or State funding, including by CSNSW, then any cost which the defendant is required to bear is reasonably within his means.

Part F: Non-association

21. The defendant must comply with any reasonable written direction from his DSO not to associate with a particular person or people.

22. The defendant must not knowingly associate with anyone who is consuming or under the influence of illegal drugs.

23. The defendant must not knowingly engage in a social situation where alcohol is likely to be consumed without the prior approval of his DSO.

Part G: Weapons

24. The defendant must not possess or use any firearm within the meaning of s 4 of the Firearms Act 1996 or prohibited weapon as defined in s 4 and Schedule 1 of the Weapons Prohibition Act 1998.

Part H: Search and Seizure

25. If the DSO reasonably suspects that that a search of the defendant’s approved address, or any vehicle in which he is travelling or which is under his effective control is necessary to confirm his continuing compliance with Conditions 16 and 17 of the ESO, the DSO must inform the defendant of the basis of that suspicion. The defendant must then, if directed by the DSO, consent to that search or those searches.

26. If the DSO reasonably suspects that a search of the defendant’s person is necessary to confirm the defendant’s compliance with Conditions 16 and 17 of the ESO, the DSO must inform the defendant of the basis of that suspicion. The defendant must then, if directed by the DSO, consent to “a pat down search” (that is a search confined to those areas of the defendant’s body which are clothed), and consent to a search of any article of the defendant’s clothing carried by him but not worn, and a search of any bag or other receptacle in his possession.

27. Where the DSO believes, on reasonable grounds, that anything found in the course of executing a search of the kind comprehended by Conditions 25 and 26 is related to behavior or conduct associated with an increased risk of the defendant committing a serious offence (as defined) the defendant must submit to that item or those items being seized. If the DSO does not form that belief, the item or items must not be seized.

Part I: Personal details and appearance

28. The defendant must not change his name from "David John Grooms", or use any other name, or change his appearance such that his visual appearance changes significantly without advising his DSO of his intentions.

29. The defendant must permit CSNSW to photograph him when reasonably directed to do so.

30. If the defendant changes the details of any current form of identification or obtains additional forms of identification, he must provide the DSO with such details within 7 days.

Part J: Medical and other intervention and treatment

31. The defendant must notify his DSO of the identity and address of any healthcare practitioner, or person who holds themselves out as a healthcare practitioner, who has supplied or prescribed any medication, vitamin, supplement or other substance.

32. The defendant must comply with any reasonable written direction from his DSO to attend psychological and psychiatric assessments, therapy and treatment programs in relation to risk assessment, anger management, violent offending or any serious mental illness (if such illness may significantly increase his risk of committing a serious offence), provided that if the whole cost thereof is not met by Medicare or by other Commonwealth or State funding, including by CSNSW, then any cost which the defendant himself will be required to bear is reasonably within his means.

33. Where the defendant has been directed to engage in treatment or a program under Condition 20 or Condition 32, he must consent to the release:

a. to CSNSW, by the service provider, of any information about the fact of his attendance at appointments and his overall progress in therapy or counselling, including the practitioner’s general opinion as to his development of insight into offending risk factors and attitudes, and strategies to abstain from alcohol and illicit substance use, and to reduce his risk of offending; and

b. by CSNSW or by the service provider, to any other such service provider, of any information about his progress, level of engagement, compliance with treatment (including medication) and risk of reoffending and about his criminal and custodial history including details of previous offences.

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