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State of New South Wales v Partington (Preliminary) [2019] NSWSC 732 (18 June 2019)

Last Updated: 18 June 2019



Supreme Court
New South Wales

Case Name:
State of New South Wales v Partington (Preliminary)
Medium Neutral Citation:
Hearing Date(s):
6 June 2019
Date of Orders:
18 June 2019
Decision Date:
18 June 2019
Jurisdiction:
Common Law
Before:
Walton J
Decision:
The Court orders that the State bring in short minutes of order reflecting this judgment by 4pm on the date of judgment.
Catchwords:
CIVIL – Crimes (High Risk Offenders) Act 2006 – preliminary hearing – application for appointment of psychiatrist and psychologist under s 7(4) – mandatory considerations – consideration of factors in s 9 – application for interim detention order pursuant to s 18A – alternative application for interim supervision order – order made
Legislation Cited:
Cases Cited:
Attorney General (NSW) v Tillman [2007] NSWCA 119
Lynn v State of New South Wales [2016] NSWCA 57
New South Wales v Dillon (Final) [2018] NSWSC 1626
State of New South Wales v Manners [2008] NSWSC 1242
State of New South Wales v Hampton [2018] NSWSC 360
State of NSW v Guider [2019] NSWSC 646
State of New South Wales v Kamm (Final) [2016] NSWSC 1
State of New South Wales v Lynn [2013] NSWSC 1346
State of New South Wales v McGee (Preliminary) [2019] NSWSC 53
State of New South Wales v Pacey [2015] NSWSC 1983
State of NSW v Reay [2014] NSWSC 1362
State of NSW v Sancar [2016] NSWSC 867
State of New South Wales v Simcock (Final) [2016] NSWSC 1805
State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367
Category:
Principal judgment
Parties:
State of New South Wales (Plaintiff)
Shane John Partington (Defendant)
Representation:
Counsel:
J Harris (Plaintiff)
S Fraser (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s):
2019/133855

JUDGMENT

  1. HIS HONOUR: By a summons filed 30 April 2019, the plaintiff (“the State”) seeks a continuing detention order or, in the alternative, an extended supervision order with respect to Shane John Partington (“the defendant”), pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The State seeks a 1 year continuing detention order and on its expiry a 5 year extended supervision order, or in the alternative, a 5 year extended supervision order.
  2. At the preliminary hearing, the State sought the following interim relief:
  3. The State relies on the following evidence:

THE POSITION OF THE PARTIES

  1. The State submitted that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or an extended supervision order.
  2. It contended that outcome is justified because the Court would:
  3. The defendant accepted for the purpose of the preliminary hearing that, subject to the Court making an independent assessment of the evidence, the Court may make an interim order of detention or supervision. The defendant did not wish to be heard in the preliminary hearing as to whether or not the Court would be satisfied to a high degree of probability, for the purposes of ss 5C(d) or 5B(d) of the Act, that the defendant posed an unacceptable risk of committing another serious offence if not kept under either detention or supervision.
  4. Further, the defendant did not contend, for the purposes of the preliminary hearing, that the application by the State was unmeritorious and accordingly no submission was made against the appointment of two experts to assess the defendant’s potential risk (see ss 15(4) and 7(4) of the Act).
  5. Finally, there was no dispute that, if the Court made an interim supervision order, it may impose conditions; although the defendant contended that certain conditions, as proposed by the State vis-à-vis the amended conditions, should be deleted or varied.
  6. In the result, if the Court was of the view that there existed an unacceptable risk within the meaning of ss 5C(d) and 5B(d) of the Act, and the other threshold conditions under the Act for the making of orders were met (as will both be found below), the issues between the parties were confined to:

THE STATUTORY SCHEME

Objectives

  1. The primary object of the Act is to ensure the safety and protection of the community in relation to high risk offenders: s 3(1). Another object of the Act is to encourage, inter alia, high risk offenders to undertake rehabilitation. The safety of the community “must be the paramount consideration” when determining an extended supervision order application: s 9(2).

Preconditions

  1. Section 5B of the Act provides that the Court may make an order for the supervision in the community of a person if:
  2. Section 5C of the Act provides that the Court may make an order for the continued detention of a person if:
  3. The defendant is an “offender”, as defined, being a person who is of or above the age of 18 who has at any time been sentenced to imprisonment to be served by way of full-time detention following his conviction for a serious offence: s 4A of the Act.
  4. A “serious offence” includes a “serious violence offence” (s 4). A “serious violence offence” is defined in s 5A to include a serious indictable offence constituted by the person engaging in conduct that causes grievous bodily harm to another person, with the intention of causing grievous or actual bodily harm: s 5A(1)(a). The index offence, causing grievous bodily harm with intent, therefore meets the definition of a serious offence.
  5. There was no dispute then, that the defendant satisfied the first three requirements of ss 5B and 5C:

Relevant Principles: Unacceptable Risk

  1. The threshold requirement for making a continuing detention order requires the Court to be satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order. Similarly, the threshold requirement for making an extended supervision order requires the Court to be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. The risk is not a general one, but a risk of committing another serious offence.
  2. As to the relevant principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [34] as being relevant to an interim detention order or interim supervision order. By way of emphasis or elaboration, two observations may be made.
  3. First, there may be instances when a person is held to pose an unacceptable risk even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely consequences to a victim if particular offending occurs (cf State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43] (per Harrison J)).
  4. Secondly, I accept the passage of the judgment of N Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]- [128], adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, as follows:
[127] In considering the question of whether the defendant poses an “unacceptable risk” of committing a “serious sex offence” if he is not kept under supervision, I give the words “unacceptable risk their ordinary meaning. I also have regard to the observations of Harrison J concerning the question of “unacceptable risk” in State of New South Wales v Pacey at [43] as follows:
“It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.”
[128] Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, “Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate.”

Preliminary Hearing and Interim Relief

  1. The Court may make an interim detention order if, in proceedings for a continuing detention order, it appears to the Court (s 18A):
  2. The Court may make an interim supervision order if, in proceedings for an extended supervision order it appears to the Court (s 10A):
  3. The first condition is satisfied, because the defendant’s sentence will expire on 19 June 2019.
  4. Some additional remarks may be made regarding the second condition.
  5. In State of New South Wales v Lynn [2013] NSWSC 1346, Beech-Jones J considered a predecessor to s 7(4) at [17]:
[17] Subsection 10B(b) does not require the Court to analyse the material in the supporting documentation in terms of assessing whether or not the Court accepts the opinions given by the authors' various reports. Instead it requires a narrower inquiry as to whether what is alleged in that support documentation would, if proved, justify the making of the high risk violent offender extended supervision order. The test for whether an order will ultimately be made is that specified in s 5E(2), namely, satisfaction "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”.
  1. The task of the Court at the preliminary hearing stage is akin to a prima facie case test: State of New South Wales v Manners [2008] NSWSC 1242 at [8]- [9] (per Johnson J) and State of New South Wales v Reay [2014] NSWSC 1362 at [29] (per Button J).
  2. A preferable formulation is for the Court to proceed on the assumption that the asserted facts are proved and then to consider whether, on that assumed basis, it is satisfied as to unacceptable risk: State of NSW v McGee (Preliminary) [2019] NSWSC 53 at [10] (per Fullerton J).
  3. In State of NSW v Sancar [2016] NSWSC 867, Garling J said this about the nature of the task before the Court (at [74]):
[74] This Court is engaged in an evaluative task. This evaluative task requires the Court to take into account all of the material that has been placed before it, and to assume that the facts disclosed in that material will be proved at a final hearing. This includes the expert opinions of Mr Ardasinski. Having done so, the Court must then ask itself whether it is satisfied to a high degree of probability that Mr Sancar poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.
  1. The Court is, however, not absolved of consideration of the evidence put before it in support of the application. Some analysis is required, particularly where there is conflict in the evidence. In State of New South Wales v Hampton [2018] NSWSC 360, Lonergan J said at [40]:
[40] Whilst it is not my task to predict decision-making at final hearing or to weigh in detail the evidence and make formal findings about that evidence, I consider it necessary to provide some analysis of what seems to be conclusions by Dr Parker that are contradicted or not supported by other material tendered in support of the application.
  1. It is nonetheless appropriate to give weight to risk avoidance at this juncture, even though the Court will be best placed to more closely assess the defendant’s risk upon receipt of the expert opinions prepared pursuant to s 7(4) of the Act.
  2. In State of NSW v Guider [2019] NSWSC 646 (“Guider”) at [28] Button J observed:
[28] Sixthly, senior counsel submitted that it is not inappropriate for a “risk adverse” approach to be adopted at this preliminary stage. In support of that submission, he relied upon what was said by Bell J in Attorney-General for NSW v Winters [2007] NSWSC 611 (as recently cited in State of New South Wales v Sturgeon [2019] NSWSC 559), and what was said by the Court of Appeal of this State in Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [44] – [46].
  1. In Attorney-General (NSW) v Tillman [2007] NSWCA 119 (“Tillman”) at [44] (per Mason P and Santow and Tobias JJA), their Honours observed:
[44] There is a strong presumption against construing a statute so that it trenches upon a fundamental right such as the liberty of the subject. However, that presumption is weakened in the present context and would not prevail over the clear and explicit language of the statute with its clearly stated protective and rehabilitating objects. Thus s 16 applies where the offender is already in custody and where the claim for final relief is for a continuing detention order. In the instant case, the “supporting documentation” demonstrated that, if proved, the making of a continuing detention order would be justified. Moreover s16(2) and (3) sets the outer limits for the period of any interim detention order and any renewals, namely 28 days maximum for any individual order and no more than 3 months in total with any renewed orders.
  1. In determining whether to make an interim supervision order or interim detention order at the preliminary hearing, it is not relevant to determine which of the two orders sought, extended supervision order or continuing detention order, is likely to be made at the final hearing; an interim detention order can be made if the Court is satisfied that either order would be justified: s 18A(b). In Tillman the Court of Appeal stated: “it would not be a proper exercise of that discretion, in our opinion, for the Court to make an interim supervision order instead of an interim detention order simply because the probabilities suggested that an extended supervision order was the more likely (final) candidate” (at [99], referring to what was then s16(1)(b) of the Act).

FACTUAL BACKGROUND

The Defendant

  1. The defendant is 49 years of age. His early life was traumatic. He suffered physical abuse at the hands of his stepfather from the age of 6. His mother died following bowel cancer when he was 10 years of age and he was thereafter raised by his sister, to whom he remains close. His mother, stepfather and sister all abused alcohol. He was sexually abused by an older child from the age of 4 to 6 and was sexually assaulted at the age of 17.
  2. The defendant commenced drinking at 16 years of age and he has also used other drugs including injecting amphetamines, heroin and abusing prescription medication. He has attempted drug and alcohol rehabilitation on multiple occasions but has not been successful at maintaining sobriety. His offending almost exclusively occurs during periods of intoxication. The defendant’s substance abuse appears to have escalated during 2018.
  3. The defendant suffers from mental health problems, with previous suggested diagnoses of bipolar affective disorder, post-traumatic stress disorder, anxiety and depression. He has attempted or threatened self-harm on at least four occasions: in 1993 he made a threat to gas himself in his car; in 2001 he drove a car into a brick wall; on 6 February 2013 (the day prior to the index offence) he made a further threat to gas himself; on 18 September 2018 he prepared a syringe of chemicals in preparation for suicide, and was scheduled to Westmead Hospital that day.

The Defendant’s Current Circumstances

  1. The defendant is currently serving a sentence of 5 years’ imprisonment imposed on 21 October 2013 for an offence of cause grievous bodily harm with intent (“the index offence”). That sentence expires on 19 June 2019.
  2. The defendant was initially released to parole 15 December 2016. He committed a further offence on 4 January 2017 and his parole was revoked. He was re-admitted to parole on 11 November 2017.
  3. On 28 February 2019, the defendant was charged with wounding with intent (“the current charges”). He is bail-refused for that offence. On 1 March 2019, his parole was revoked, and he was returned to custody.

The Mandatory Considerations

  1. The State submitted that the matters to which the Court is required to have regard, in ss 9(4) and 17(4), would support the making of a continuing detention order or, in the alternative, an extended supervision order. Those mandatory considerations are considered in turn below.
  2. There was no controversy as to the factual summary provided by the State, even though some issues were raised as to the significance or weight attached to those factual circumstances. The foundation for the assessment of mandatory considerations derives from the State submissions with adjustments to deal with issues raised by the defendant.

Risk Assessment Report: Dr Richard Parker

  1. A Risk Assessment Report was prepared by Dr Richard Parker, psychologist, on 18 December 2018. He performed this assessment prior to the current charges.
  2. Dr Parker interviewed the defendant for 90 minutes on 13 December 2018. At that stage he had been in rehabilitation at Glebe House for 6 weeks and appeared insightful and motivated to avoid alcohol. However, Dr Parker noted that, whilst the defendant had presented as well motivated to address his substance use in the past, he had relapsed each time.
  3. Dr Parker applied several statistical risk assessment tools. He drew attention to the limitations of such tools, in particular that it is not possible to scientifically predict whether or not an individual will or will not re-offend.
  4. He recognised that, whilst the actuarial tools may be of assistance in predicting the risk of further violent offending, they could not predict the severity of such offending, and, in particular, the risk of committing another serious offence. Nonetheless, the results were of significance.

Level of Service Inventory – Revised (“LSI-R”)

  1. Dr Parker referred to an LSI-R assessment conducted on 21 March 2018. He considered this tool to be a good predictor of general offending and a “modest” predictor of violence. The defendant was in the medium to high risk range for re-offending.

Violence Risk Appraisal Guide – Revised (“VRAG-R”)

  1. Dr Parker applied this tool on 12 November 2018, placing the defendant in the 7th (3rd highest) of 9 “bins”. That represented a group where 45% of violent offenders re-offended violently within 5 years.

Violence Risk Scale (“VRS”)

  1. Dr Parker applied the VRS on 16 November 2018; the defendant’s score reveals a moderate risk, placing the defendant in a group with a recidivism rate of 24.6% after 4.4 years.

Domestic Violence Risk Appraisal Guide (“DVRAG”)

  1. Dr Parker’s assessment placed the defendant in the highest 7th “bin” for domestic violence, with a score higher than 98% of offenders in the sample. Of the offenders sharing the same score as the defendant, 100% committed a further assault against a female domestic partner during an average period of 4.8 years. According to Dr Parker, “this result states that [the defendant] has particular issues which raise substantial concern about his risk of violence with females he forms romantic attachments to”.
  2. The State correctly submitted that the DVRAG result was reflected in the defendant’s pattern of offending, with several recorded assaults committed against partners or ex-partners.
  3. Dr Parker identified a number of criminogenic needs, or dynamic risk factors, which may have played a causal role in the defendant’s offending. Principal among these would be the defendant’s substance abuse and his antisocial peers. Dr Parker also identified problematic aspects of the defendant’s attitudes towards women. He observed that the defendant’s offending was fuelled by a number of factors, which each reinforced each other. Those factors included his dysfunctional background, which resulted in maladaptive coping, his patterns of relating to people, which resulted in antisocial peers; and those peers lead him to further substance abuse and caused “distance” from pro-social people. The shame he felt about his conduct and lifestyle led to him becoming enraged.
  4. In addition to Dr Parker’s assessment, the following risk assessments have been conducted:
  5. In contrast to the assessments arising from actuarial tools, Dr Parker observed that “on the positive side, [the defendant] demonstrated a high level of insight into his offending patterns and has taken concrete steps to address them”. However, Dr Parker observed “[the] core question is whether he will be able to sustain this into the future”.
  6. Dr Parker found the defendant to be of moderate to “high risk of further violent offending, especially within relationships”. He noted that the assessment was “anchored by static, unchangeable factors and backed up by the identification of a number of criminogenic needs”.

Other Psychiatric or Psychological Assessments

  1. The following other psychiatric or psychological assessments were produced to the Court.

Karen Burgoyne, 21 January 2014

  1. Ms Burgoyne noted the defendant’s history of substance abuse and current desire to “get help”. The circumstances of offence for which he was then in custody (7 February 2013) “involve[d] difficulties in his relationships with women” and Ms Burgoyne noted his fear of rejection. His problems with adverse reactions to medication were also noted.

Danielle Hopkins, 12 September 2017

  1. Ms Hopkins considered the defendant’s history of alcohol use and treatment and stated he met the criteria for alcohol use disorder. His relationship history was recited. She noted that he has engaged in adult relationships which have been “harmful and distressing for him, with partners who he perceives are less likely to abandon or reject him, related to his disrupted attachment with his mother”/ She further stated that “there seems to be a pattern whereby when [the defendant] experiences something anger provoking he does not communicate this or manage it, he allows his anger to build, seeks alcohol intoxication and then escalates to aggression to project his frustrations”. Ms Hopkins considered that this is what occurred prior to the 7 January 2017 offending.

Dr Gordon Elliott, 15 June 2017

  1. Dr Elliott provided a report for the Local Court. He noted the previous psychiatric reports conducted between 2012 and 2015. He noted the defendant’s history and that he presented as anxious. He did not consider that the defendant had a mental illness, although he noted a previous “question mark” about Bipolar II Disorder. Dr Elliott stated that the defendant’s given history is consistent with a severe alcohol use disorder.

Report prepared by Corrective Services NSW

  1. A Risk Management Report was prepared by Mark Corcoran, a senior community corrections officer with the ESO team, on 20 January 2019.
  2. The key aspects of the risk management plan were to maintain a structured week for the defendant, to monitor his movements and activities, to undertake breath and urinalysis and to engage the defendant with services that will address his mental health and substance abuse.
  3. The report noted that the defendant had been subject to previous community based orders including parole supervision, good behaviour bonds and an intensive corrections order. Mr Corcoran stated:
Overall [the defendant] has responded positively to the supervision of Community Corrections, in as much that, he would generally follow the recommendations and directions of his officer, and be open to discussing his risk factors. However, it would appear that after a period of time he would relapse into substance use, his mental health would deteriorate and then re-offend and/or breach the conditions of his supervision order.
  1. It is apparent from the detail of the plan that many of these strategies have been employed previously, and yet the defendant had ultimately relapsed into substance abuse and had committed violent offences. The significant restrictions on the defendant’s activities support a contention that it may not be possible to adequately manage him in the community.
  2. The defendant submitted that the strategy as planned, and represented by the proposed schedule of conditions of supervision, is of far greater intensity than appears to have been adopted previously.
  3. It was also submitted the defendant had in the past demonstrated a high level of motivation to rehabilitation and compliance with supervision. However, he has relapsed and ultimately re-offended. It was submitted that the management strategy, as planned, would serve to encourage a continuing motivation to rehabilitate whilst providing a means by which to, at an early stage, detect a possible relapse and implement an appropriate remedy.

Treatment and Rehabilitation Programs

  1. The State helpfully provided tables as to these programs which appear below.
  2. The defendant has participated in multiple drug and alcohol rehabilitation treatment programs:
Year
Treatment Program
c. 1994
William Booth Institute rehabilitation (12 months)
c. 1998
Palm Court rehabilitation, Rozelle
27 Sep 1999
Drug and Alcohol Relapse Rehabilitation Program (Mancare) (6 to 9 months)
6 May 2003
McKinnon Unit detoxification (1 week)
12 May 2003
Palm Court rehabilitation (1 month)
30 Aug 2010
Foundation House rehabilitation (28 days)
27 Sep 2010
Glebe House rehabilitation (3 months)
2012
Drug and Alcohol Addiction Program by Corrective Services NSW
25 Jun 2013
Admitted briefly to Adele House, but discharged due to outstanding charges
17 Nov 2017
Marrin Weejali counselling (1 month)
9 Feb 2018
Centre for Addiction Medicine counselling (6 sessions)
May 2018
Adele House rehabilitation (5 days)
31 Oct 2018
Glebe House residential rehabilitation (12 weeks, ending 6 Feb 2018)
  1. The defendant has also participated in the following relevant programs in custody:
Year
Treatment Program
2009
VOTP (Violent Offenders Therapeutic Program) – the defendant was assessed but declined a treatment offer on 18 May 2009
2014
Domestic Abuse Program; attended a 20-session program and demonstrated a good level of comprehension and participation
SMART (Self-Management and Recovery Training)
CALM (Controlling Anger and Learning to Manage It)
2017
EQUPS Aggression (partially completed)
  1. The defendant has re-commenced EQUIPS Aggression since returning to custody in March 2019.
  2. The State submitted that, if the defendant is kept in custody, there may be further programs and rehabilitation available, for example, further drug and alcohol rehabilitation or counselling and offender programs, such as the VOTP. It was common ground the defendant’s willingness and participation in such programs to date has been positive.
  3. The State also submitted, as noted by Dr Parker, that the defendant has developed insight into his offending patterns and has taken concrete steps to address these but the core question is whether he will be able to sustain this into the future.
  4. The defendant fixed upon the structural support offered by a supervision order which provides “intensive and multi-disciplined program designed to redistribute the defendant”. It was also that participation in such a program would be “the most likely way to effect a lasting reduction in the likelihood of his reoffending”. Those submissions carried over to the issue of compliance below.

Compliance

  1. The State contended that there must be concern that the defendant would not comply with the terms of an extended supervision order. Dr Parker noted that the defendant is well-motivated to address his alcoholism but has nonetheless relapsed on each occasion. Similarly, Mr Corcoran noted that the defendant’s response to supervision on parole in the past has been positive, but that after a period of time he would relapse into substance abuse; a concern acknowledged and accepted by the defendant.
  2. Support for this concern is derived from the defendant’s conduct while on parole for the index offence. He was initially admitted to parole on 15 December 2016. He committed the offence against his partner on 4 January 2017 and parole was revoked. He was admitted again to parole on 11 November 2017. He now faced further charges from 28 February 2019.
  3. Overall, the State properly accepted the defendant’s approach to supervision in the past had been good. He had accepted direction and has participated in services. The primary issue has been repeat offending. Similarly, he has committed offences while subject to good behaviour bonds on several occasions in the past (21 August 2002, 7 Feb 2003, 12 March 2003, 20 December 2003 and 7 Feb 2013).
  4. However, I accept the State’s submission that the defendant’s progress during the most recent period of parole showed an escalation of substance abuse, a significant deterioration of his mental health and a consequent elevation of risk.
  5. On release to parole on 11 November 2017, the defendant stayed with a friend at South Windsor. He also resumed the relationship with the victim of the 4 January 2017 offence.
  6. Initial progress was positive. He commenced weekly counselling with Marrin Weejali on 20 November 2017. He commenced work turf-laying in January 2018. He later returned to his usual job installing panelling in the construction industry.
  7. On 28 January 2018, an incident allegedly occurred, where the defendant’s partner assaulted her daughter-in-law, and the defendant is said to have intervened, also punching her. During the incident, the defendant is alleged to have stated, “I’ll put a bullet in both your heads”. No charges were brought, but police sought an apprehended violence order (“AVO”) against the defendant’s partner to protect the victim.
  8. On 6 February 2018, another incident occurred at a take away shop where the defendant verbally abused a member of the public and his partner. He was charged with breaching the AVO and stalk/intimidation on 6 March 2018; those charges were withdrawn on 12 June 2018 and hence, will have little weight in my consideration of the application.
  9. On 9 February 2018, the defendant self-referred to the Centre for Addiction Medicine, Cumberland Hospital; he subsequently attended nine counselling sessions.
  10. On 19 February 2018, he was admitted to Cumberland Hospital as a voluntary inpatient for mental health treatment for a week, in the context of discovering his sister was terminally ill.
  11. On release, he resumed counselling with the Centre for Addiction Medicine, the Drug Health Psychology Service and also the SMART recovery program. During this period the defendant was seeking entry into residential rehabilitation. In May 2018, the defendant briefly entered Adele House for rehabilitation; however, he self-discharged 5 days later and returned to live with his sister. He subsequently moved to Mission housing at Parramatta in July 2018.
  12. On 3 May 2018, the defendant reported to a drug and alcohol counsellor that he had routinely been drinking 16 standard drinks of beer per day for the last 3 months and injecting a “point” of ice once a week for the last month.
  13. On 14 July 2018, the defendant was re-admitted to Cumberland Hospital in the context of intravenous ice use and mental health problems. He also relapsed with alcohol on 17 July 2018 and briefly stopped taking his medication (Zyprexa). He later reported that the context for this was the breakdown of his relationship.
  14. On 19 July 2018, he was scheduled by police to Westmead Hospital. During this admission, the defendant was prescribed further medication including Antabuse (an alcohol inhibitor).
  15. By 9 August 2018, the defendant had commenced a new relationship. That relationship ended at the end of August and the defendant became anxious and overwhelmed. The defendant had also been having contact with a former partner. On 4 September 2018, he was given a direction by Community Corrections not to associate with her. The defendant did not comply with this and continued to contact her.
  16. On 10 September 2018, the defendant told Community Corrections during a home visit that he had taken intravenous ice the day before and had been drinking alcohol that day. He expressed paranoia about “bikies” being after him. Glebe House was contacted regarding rehabilitation that day.
  17. On 11 September 2018, police found the defendant wandering the streets in a paranoid and delusional state, expressing fears that “bikies” were after him. He was scheduled to Westmead Hospital, but later absconded. He prepared a syringe with chemicals in preparation for suicide and called his sister to say “goodbye”. Police forced entry into his unit, and he was re-scheduled and admitted to Westmead Hospital. Following this, he commenced outpatient detoxification and submitted daily urine and breath samples, in preparation to enter Glebe House.
  18. On 29 September 2018, the defendant was admitted to Royal North Shore Hospital with paranoid ideation and auditory and visual hallucinations. He believed his ex-partner was threatening to have him attacked by bikies. Police attended and called an ambulance to convey him to hospital, where he was reviewed and discharged later that day.
  19. On 2 October 2018, the defendant admitted to intravenous ice use and contacting his former partner, both in breach of the conditions of his parole.
  20. During October 2018, the defendant renewed efforts to enter rehabilitation. Ultimately, he was offered a place in the 12 week residential rehabilitation program at Glebe House, which he entered on 31 October 2018.
  21. The defendant’s progress at Glebe House was positive and he successfully completed the program. As earlier mentioned, the defendant was assessed by Dr Parker on 13 December 2018, for the purpose of this application and was also informed about the nature of supervision under an extended supervision order. He sought to stay at Glebe House beyond the original 12 weeks and was ultimately discharged on 6 February 2018, returning to his accommodation at Parramatta.
  22. Following discharge from Glebe House, he continued to attend counselling appointments. Response to supervision appeared positive.
  23. A (negative) drug test was conducted on 18 February 2019. On 7 February 2019, during his visit to Parramatta Community Corrections, the defendant was described as being elated at his success at rehabilitation and having a full schedule to “keep him occupied in a pro-social and positive way”. He resumed his former accommodation and described a schedule of activities which he had planned including a meeting with his “AA supervisor”, Narcotics anonymous (“NA”) and a mens group.
  24. In the case notes contained in the Offender Integrated Management System (“the OIMS notes”) for 11 February 2019, he was described as being “on edge” over an issue concerning his bike and he mentioned difficulty with association with “high risk people” (neighbours who were ice users and interactions with ex-inmates), but generally he appeared to be engaged with Community Corrections. He described declining alcohol, the avoidance of persons representing a risk and a scheduled meeting with his psychologist.
  25. The defendant responded to Community Corrections (the third occasion) on this day and was in better spirits.
  26. The defendant’s fourth meeting with Community Corrections was at his home on 25 February 2019. He reported that “everything [was] going well at this point in time”. He reported that he was engaged with fitness, and continued with Alcoholics Anonymous (“AA”) and NA meetings. He had spent time with his sister and nephew and reached out to his son. He wished to rebuild relationships with his children.
  27. The State pointed to the high level of engagement between the defendant and Community Corrections, AA, NA, his psychologist and Glebe House.
  28. However, within 3 weeks of his discharge from Glebe House, the defendant was arrested for the current charges as discussed below.
  29. The defendant was charged with the offence wounding with intent, which was said to have been committed on 28 February 2019. He is bail-refused with respect to that offence (no bail application has been made at this stage and the matter is listed in the Local Court on 4 July 2019 for charge certification).
  30. The State submitted that the Court should not receive material as to this charge upon the basis that the defendant may be convicted but upon the basis that the charge had been laid and the limited circumstances known about the alleged offence from the police facts. Those circumstances were relevant to the assessment of “unacceptable risk” and the question of which form of interim order ought be made – a continuing detention or an extended supervision order. There was no demur from that approach by the defendant. I will approach the fact of the charges for wounding with intent said to have been committed on 28 February 2019 (“the current charges”) on that basis, further noting that the defendant intends to plead not guilty to the charges.
  31. With respect to the current charge, the State principally relied on the fact of the charge arising a short time after the defendant’s release from Glebe House and that, within 22 days of that release, by his own admission, the defendant had consumed alcohol and been involved in an “altercation”.
  32. According to the police facts, it is alleged that at 10.30am on 28 February 2019, the defendant went to his neighbour’s home. As the defendant stepped inside the unit, he produced a knife from his pocket and stabbed the victim to the inner upper arm. He said, “You slept with my wife”. The defendant then attempted to stab the victim again. The victim grabbed the defendant’s right wrist, and the defendant punched him with his left fist. The victim was forced onto the couch with the defendant on top of him. During the struggle, the defendant’s wrist became free and he tried to stab the victim again, but the victim moved, and he stabbed the couch. The victim managed to overpower the defendant and pushed him to the floor. The victim held onto the blade of the knife, causing lacerations to his hand, and the blade was then broken.
  33. Police were called and arrested the defendant, who was observed to have a wound to his right thigh, requiring stitches. In interview, the defendant stated that the incident arose from the victim demanding payment for some beers he had bought the defendant, and that the victim was the aggressor and had produced the knife.
  34. On 1 March 2019, the defendant’s parole for the index offence was revoked.
  35. During admission into custody on 1 March 2019, the defendant stated that he had consumed 8 beers in the previous 24 hours. He also stated he had stopped taking his antidepressant medication about 3 ½ weeks prior.

Criminal History

  1. The defendant’s criminal history includes stealing and property offences, traffic offences and a long history of violent offending. His counsel acknowledged that he had an extensive history of prior convictions for offending involving violence. The first violent offence, assault, was recorded in 1991, for which the defendant received a 2 year bond. Two further assaults were committed in 1994, for which he received 100 hours community service and a 5 year bond. There are further violent offences which are discussed below.
  2. The following is a summary of the defendant’s violent offending.

10 May 1999 – Assault

  1. The defendant entered the home of his former mother-in-law through a broken window while she was out, and while intoxicated. When she and her partner returned, he said, “I’m going to kill you and [her partner] with my shotgun when you are asleep”. He then punched the partner and pushed the victim to the floor. He later pushed her into the wall a number of times, rammed her head against the wall and kneed her in the ribs. She suffered bruising to her head and swelling and soreness to her rib cage.
  2. On 30 July 1999 the defendant was sentenced to 150 hours community service.

26 June 1999 – Assault Occasioning Actual Bodily Harm

  1. The defendant attended his ex-partner’s home at about 2am while moderately intoxicated. He smashed some pot plants and asked to be let into the home. He accused his ex-partner of having someone in the house and threatened to slit her throat. When she let him into the house, he head-butted her to the nose causing it to bleed and causing bruising. He said to her “I’m going to kill all of us”.
  2. He was initially imprisoned for this offence but following a severity appeal this was reduced to 150 hours community service.

18 March 2001 – Assault

  1. The facts of this offence were not adduced in evidence. The defendant received a 2 year bond with a condition to complete a relapse rehabilitation program.

12 March 2003 – Assault Occasioning Actual Bodily Harm

  1. The victim and his partner were staying in the same unit as the defendant. An altercation arose and the victim and his partner went outside, followed by the defendant. The defendant then punched the victim to the eye, causing him to fall back onto a wooden fence. He then punched him 4 or 5 times more. The victim’s eye was swollen and bruised and there was bruising to his left collar bone and cheek. The defendant later alleged that the dispute was due to the victim being involved in child pornography.
  2. On 1 July 2003, the defendant received a 2 year s 9 bond, with a condition that he attend drug and alcohol rehabilitation.

20 December 2003 – Assault Occasioning Actual Bodily Harm and Assault

  1. At about 9.30am. the defendant approached two traffic controllers, punching one to the jaw causing a small laceration inside his mouth. The defendant said “you fucken cunt I’ll have you ya cunt”. The victim moved away and the defendant approached the second traffic controller, also punching him to the jaw. The defendant ran after the first victim saying “I’m going to get you”. Police were called and located the defendant, finding him to be highly intoxicated.
  2. The defendant was remanded in custody, remaining there until sentence on 12 March 2004. On that date, he received a sentence of 2 years’ custody, suspended pursuant to s 12, with a condition to attend drug and alcohol rehabilitation.

28 August 2004 – Murder charge

  1. On 28 August 2004, the defendant was charged with murder. The State did not rely on the facts of this charge in support of this application. The mention of this charge was included and received for the purpose of disputing an historical fact. No adverse conclusion may be drawn with respect to the defendant.
  2. The defendant was remanded in custody on 28 August 2004. He was convicted of manslaughter at trial, but that conviction was overturned by the Court of Criminal Appeal on 11 September 2009 and a new trial was directed. On 16 December 2009 a directed verdict of not guilty was entered, and the defendant was released.

6 August 2010 – Destroy or damage property

  1. The defendant “shaped up” to the victim, his daughter’s partner, and said “I’m going to smash you. I’m going to smash your face. I’m going to punch your face in”. The victim left the property and got into his vehicle. The defendant followed and continued to yell abuse and threats towards the victim. The defendant then kicked the victim’s car causing a large dent.
  2. The defendant told police he had damaged the car because he had had a few drinks and fell into the car. He later alleged that the context for this incident was that the victim had assaulted his daughter while pregnant.

16 August 2010 – Assault

  1. The defendant was in bed with the victim, his partner, after consuming alcohol. They were discussing a phone call that the defendant had received from his ex-partner. The defendant became angered and the victim told him to leave. He followed her downstairs and pushed her by the throat to the back of the couch. He punched the head rest of the couch and said “you don’t fuck with me cause I’m the devil”. The victim kicked him between the legs and the defendant pushed her onto the ground. He then pushed her head against the ground 4 or 5 times. The victim’s earrings were ripped out, causing her ear to bleed. The defendant later said, “if I go back to gaol for this I’m going to do the job properly, I’m gonna get a knife” and “as soon as the police knock on the door I’m going to start bashing the fuck out of you until they break through the door. If I’m going to do 10, I’m gonna make it worth it”. He then went to get his alcoholic drinks. He pushed the victim out of the way, causing her to fall to the ground and graze her knee.
  2. The defendant was arrested for this matter in December 2010. On 4 May 2011, the defendant was given a 2 year s 9 bond.

1 November to 31 December 2012 – Assault

  1. The defendant and the victim (his partner) were at home. The defendant became intoxicated and was angry and frustrated about an incident with a neighbour. The victim offered to contact his sister. He threw the phone across the room, pushed the victim over and slapped her to the face saying “you are going to die tonight. I’ll give you two seconds to run out the door”. He then slapped her again twice.
  2. This incident was not reported until June 2013, the victim stating she was fearful. On that date a provisional AVO was taken out. On 17 July 2013 the defendant was sentenced to 3 months’ custody for this and other offences.

7 February 2013 – cause grievous bodily harm to person with intent (the index offence)

  1. The day prior to the index offence, the defendant had an argument with his partner and threatened self-harm and presented to hospital for mental health assessment. Following this, he went to a friend’s house and commenced drinking.
  2. At about 5am, the defendant ran into a café and his right shoulder struck the victim, who was a 61-year-old man delivering milk. The victim was heard to say “prick”. In response, the defendant punched the victim to the left cheek or eye, causing him to fall back and experience extreme pain in the jaw. The victim followed the defendant out of the café, whereupon the defendant said “yeah, yeah, cunt; come on, kill me, yeah, do you want some more?”. The victim attempted to return inside and close the door. The defendant grabbed an empty milk crate and struck the victim to the left side of the head. As a result, the victim sustained a fractured cheekbone requiring fixation under general anaesthetic and a fractured left orbital floor.
  3. On 21 October 2013, the defendant was sentenced by his Honour Judge Sides QC to 5 years’ custody, commencing 16 June 2014, with a non-parole period of 2 ½ years, expiring 15 December 2016.

7 February 2013 – Assault Occasioning Actual Bodily Harm

  1. After the incident described above, the defendant assaulted a second victim who was in his car phoning police. The defendant grabbed his clothing, trying to pull him through the car window, and then punched him to the face four times. The defendant then left the scene in his car.
  2. On 21 October 2013, his Honour Judge Sides QC sentenced the defendant to 16 months’ custody, commencing 16 December 2013.

7 February 2013 – Reckless driving

  1. Following the above incidents, the defendant was waiting at traffic lights in his vehicle. Another motorist sounded his horn and then drove around the defendant when he did not move. Following this, the defendant rammed the victim’s vehicle, causing it to spin 360 degrees, and drove into the path of another vehicle, causing it to swerve. The defendant initially claimed he was not the driver. On 22 June 2013, he was charged with making a false report. For the driving offences, he was ultimately sentenced to 9 months’ custody on 19 December 2013, following a severity appeal.

7 February 2013 – Assault Occasioning Actual Bodily Harm, Assault

  1. Following the above incidents, the defendant attended the home of the victim, his half-brother. He punched the victim to the jaw and eye, causing bruising, and then obtained and threatened the victim with knives from the kitchen. The victim left and went to a friend’s home.
  2. The defendant was initially sentenced to a 14month intensive correction order on 9 May 2013, later revoked due to imprisonment.

7 April 2013 – Assault, Commit act of cruelty on animal

  1. The facts of this offence were not adduced in evidence. The defendant assaulted his ex-partner and threw a cat at her. On 26 July 2013, the defendant was sentenced to 12 months’ custody for the assault and given a bond for the cruelty charge.

6 June 2013, 16 June 2013 – Contravene AVO

  1. Following the imposition of a provisional AVO on 5 June 2013, the defendant contravened this by contacting his ex-partner by approaching her at the shops on 6 June 2013 and telephoning her on 16 June 2013. There were no threats or violence on these occasions.
  2. On 4 February 2014, he was sentenced to 1 month’s imprisonment for the first of these charges. The other was dealt with by way of a bond, imposed 17 July 2013.

Institutional misconduct 2013-2016

  1. While in custody from 2013 to 2016, the defendant incurred 4 institutional misconduct charges. One of these (3 June 2016) was for fight or other physical combat. The allegation was that the defendant shoved a cellmate; the defendant was confined to his cell for 2 days.

4 January 2017 – Assault Occasioning Actual Bodily Harm

  1. The defendant was admitted to parole on 15 December 2016. On 4 January 2017, the defendant had been drinking at a hotel on his 47th birthday and asked his partner to give him a lift. The pair began to argue, and the victim pulled the car over. She struck the defendant a number of times, following which the defendant punched her to the nose. The victim left the vehicle in fear and tripped over, hitting her head. She then ran across the street and again fell, hitting her head. The victim sustained swollen cheeks, bruising to both eyes and a dislocated finger. The defendant drove off in the vehicle and was believed to have driven to Victoria which he denied. He was initially charged with aggravated vehicle taking, which was later withdrawn.
  2. Following this offence, the offender’s parole was revoked. He was returned to custody and released to parole again on 11 November 2017.
  3. On 29 September 2017, the defendant received a 2 year s 9 bond.

6 February 2018 – Contravene AVO, Stalk/Intimidate charge

  1. An incident occurred at a take away shop, where the defendant is alleged to have slapped a customer on the shoulder. The defendant’s partner and her daughter were present. During this incident he is alleged to have said, “I’m going to get you/se all, I’m going to take you out”.
  2. He was charged on 6 March 2018, but the charges were withdrawn on 12 June 2018. Again, little weight can be attached to this offending given the resolution of the charge.
  3. I accept the State’s submission that the pattern of offending disclosed by the defendant’s history shows the following:

Views of the Sentencing Court

  1. Judge Sides QC sentenced the defendant with respect to the index offence. The following extracts are taken from his remarks on sentence:
  2. The defendant contended that he had only recently divulged his history of being a victim of sexual abuse and recognised that he needed to address the issue with abstinence from alcohol and non-prescription drugs.
  3. His Honour held that the injuries were “while serious, not the most grievous” and fell somewhere below the mid-range of objective seriousness.
  4. His Honour stated that he had “considerable reservations about [the defendant’s] prospects of rehabilitation and not re-offending”.

Other information that is available as to the likelihood that the offender will commit a further serious offence

  1. The State contended that the defendant’s propensity for violent offending while intoxicated is well-established by his criminal history. Given the nature of this offending, the State submitted that this also “translates” into a risk of further serious offences. This is because the difference in the severity of injuries, and therefore the charges, has been a matter of fortune rather than design.
  2. It was further submitted, and I accept on the material before the Court, the fact that other victims have not been as seriously injured as the victim in the index offence does not support a conclusion that the defendant was able to control himself on those other occasions. The nature of the offending supported a conclusion, it was submitted, that, when intoxicated, the defendant’s violence was uncontrolled. I accept those submissions.
  3. On both the occasion of the index offence and the offence that occurred on 20 December 2003, the defendant approached a member of the public and, almost without warning, punched him to the jaw. The first victim sustained a minor cut to the inside of his mouth; the second sustained a fractured cheekbone and eye socket, albeit that injury may have been exacerbated by the use of an improvised weapon.

Unacceptable Risk

  1. Having regard to the material before the Court for the preliminary hearing, and further having regard to the foregoing discussion of mandatory factors, I am satisfied to a high degree of probability and for the purposes of ss 5B(d) or 5C(d), the defendant poses an unacceptable risk of committing another serious offence if not kept under detention or supervision.
  2. The State referred to some particular factors supporting that conclusion, which I accept. Those factors appear below:

Interim Orders

  1. The Crown sought as its primary relief an interim detention order. Having regard to the foregoing findings as to unacceptable risk in this preliminary hearing (and, in that respect, the relevant connection to mandatory factors), and noting my earlier finding that s 18A(a) was satisfied, I consider that the matters alleged in supporting documentation by the Crown would, if proved, justify, for the purposes of s 18A(b), the making of an extended supervision order or a continuing detention order.
  2. That conclusion leaves open to the Court a discretion as to whether an interim detention should be made and, if so, whether such orders should be an interim supervision order or an interim detention order: Tillman at [99].

Extended Supervision Order of Continuing Detention Order

The Submissions of the State

  1. The State contended that, if unacceptable risk was established (as it has for the purposes of the preliminary hearing), the Court would exercise its discretion to make a continuing detention order, at the interim stage, for three principal reasons:
  2. It was accepted there was some force in the defendant’s submission that the defendant had not had the benefit of the degree of supervision afforded by an extended supervision order (on an interim basis) to avoid the risk of relapse and the associated violence (the Risk Management Report was attached as Annexure B to Mr Corcoran’s report). However, there remains a real risk that supervision would not be sufficient and, therefore, there would be a risk to the safety of the community. The balancing of those considerations is where the Court would put the defendant on the “scale of risk”, and the management of it, particularly having regard to the recent escalation of risk factors, notwithstanding an extended period of rehabilitation (and positive attempts by the defendant to engage in that process in the context of a high level of supervision and community support).

The Submissions of the Defendant

  1. The defendant contended that the Court should not make a continuing detention order on an interim basis for the following reasons:

Consideration as to an Interim Order

  1. On balance, I consider that the Court should make an interim order and that such order should be an interim detention order.
  2. That conclusion is amply supported by the foregoing factors giving rise to a finding of unacceptable risk for the preliminary hearing. There are some particular matters which warrant mention.
  3. It may be readily accepted that the defendant has an insight into his offending and has been well motivated in his desire to engage with rehabilitation providers, supervision and other support agencies.
  4. However, there is a well-established link between the defendant’s intoxication and his offending demonstrated by his criminal history and compliance issues. This primary risk has maintained notwithstanding repeated attempts at rehabilitation followed by a relapse on each occasion with the defendant apparently lacking any control of his behaviour during intoxication. There does not appear to be any current remission or a period of stability in that pattern of offending. Rather there are clear indications of escalation in substance abuse and, accepting that the current charges have not been proved, an escalation in risk. The current charges emerged a short time after the defendant’s release in circumstances where he had recently left rehabilitation, was under regular supervision from Community Corrections, received psychological and substance abuse support and the defendant had perceived he was making good progress. The circumstances in which the current charges were laid involved admitted alcohol consumption and an “altercation” involving an allegation of the use of a knife.
  5. Dr Parker assessed a moderate to high risk of further violent offending anchored by static, unchangeable factors. There was a high risk found under the DVRAG scale. Dr Parker recognised the “positive side” of the defendant’s behaviour vis-à-vis insight into his offending and the taking of concrete steps but queried the defendant’s capacity to sustain abstinence in the future.
  6. Counsel for the defendant contended that the defendant’s willingness to comply with supervision and the greater strictures of an interim supervision order than other forms of supervision the defendant had experienced should result in the conclusion that the interim supervision order would sufficiently mitigate the risk. Whilst this submission is superficially attractive, I do not accept it for a number of reasons:

CONCLUSION

  1. In the circumstances, the Court proposes to make an interim detention order for a period of 28 days. There was common ground as to the date of commencement of the order.
  2. The Court will further order that, pursuant to s 15(4) of the Act, two qualified psychiatrists or psychologists should be appointed to conduct a separate examination of the defendant.

ORDER

  1. The Court orders that the State bring in short minutes of order reflecting this judgment by 4pm on the date of judgment.

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