State of New South Wales v Mackney (Final) [2024] NSWSC 1355 (29 October 2024)

Last Updated: 29 October 2024

Supreme Court New South Wales

Case Name:	State of New South Wales v Mackney (Final)
Medium Neutral Citation:	[2024] NSWSC 1355
Hearing Date(s):	20 September 2024
Decision Date:	29 October 2024
Jurisdiction:	Common Law
Before:	Ierace J
Decision:	(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), order that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of three years from the date of this order. (2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this judgment. (3) The interim supervision order made by Harrison CJ at CL on 18 June 2024 is revoked from the date of this order. (4) Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.
Catchwords:	HIGH RISK OFFENDER – Final hearing – High risk violent offender – Application for extended supervision order – Where parties accept defendant poses unacceptable risk of committing serious offence if not kept under supervision – Where dispute as to appropriate duration and conditions of supervision
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5A, 5B, 5D, 6, 7(4), 9,11 Crimes Act 1900 (NSW), ss 33(1)(a), 35(2), 61, 97(1), 98, 114, 195(1A)(a), 527C(1)(a) Summary Offences Act 1988 (NSW), s 11E(1)(a) Mental Health Act 2007 (NSW), s 22
Cases Cited:	State of New South Wales v Mackney [2024] NSWSC 719
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Jaysen Mackney (Defendant)
Representation:	Counsel: Mr D Dalla Pozza (Plaintiff) Mr J Wilcox (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2024/97989

JUDGMENT

1. HIS HONOUR: By an amended summons filed on 30 August 2024, the State of New South Wales (the plaintiff) seeks an extended supervision order (ESO) for a period of three years, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of the defendant. An interim supervision order (ISO) and certain other preliminary orders were made by Harrison CJ at CL on 18 June 2024 pursuant to the original summons: State of New South Wales v Mackney [2024] NSWSC 719.
2. The defendant accepts that the statutory preconditions for the making of an ESO are established and does not oppose the application (indeed he supports the application), thus accepting that it is open to the Court to be independently satisfied that he poses an unacceptable risk of committing a serious offence, if not kept under supervision. The defendant takes issue with the proposed length of the ESO, submitting that the appropriate length is no more than two years, and with two of the proposed conditions. His current status is that he is bail refused on assault and hinder police charges that are set down for hearing in the Local Court on 10 February 2025.

The joint memorandum of facts and issues

3. Pursuant to Practice Note SC CL 12, the application is accompanied by a joint memorandum of facts and issues, which includes the following relevant background to the application, to which I have added some observations and further evidence summaries.

The defendant’s criminal offending

Children’s Court matters

4. The defendant, who is a First Nations man, has an extensive record of matters in the Children’s Court, the earliest entries being when he was aged 16. Most were property-related, such as goods in custody, break and enter, possessing housebreaking implements, take and drive conveyance. From about the age of 17, entries were recorded for contravening an ADVO and assault in a domestic violence context.
5. The defendant pleaded guilty to nine offences over three incidents that occurred on 14 and 15 February 2014 when he was aged 17, which were charged under the same sequence. Those offences, and the relevant statutory provisions, are:
   • Two counts of attempted robbery armed with an offensive weapon (s 97(1) of the Crimes Act 1900 (NSW));
   • Two counts of being armed with intent to commit an indictable offence (common assault) (s 114 of the Crimes Act);
   • Robbery armed with an offensive weapon (s 97(1) of the Crimes Act);
   • Common assault (s 61 of the Crimes Act);
   • Wield knife in a public place (s 11E(1)(a) of the Summary Offences Act 1988 (NSW));
   • Unlawful possession of property (personal custody) (s 527C(1)(a) of the Crimes Act);
   • Intentionally damage property in company (s 195(1A)(a) of the Crimes Act).
6. The defendant also pleaded guilty to a separate count of assault with intent to rob whilst in company and wounding (s 98 of the Crimes Act) arising from a fourth incident on 15 February 2014.
7. The agreed facts in respect of those four incidents were to the following effect. On 14 February 2014, the defendant, in the company of Jacob Lupton and an unknown male, approached the victims, who were a male and female couple, shortly after they alighted from a cab near their home. The defendant demanded the female’s wallet and bag. The victims were able to enter their secure unit complex, but the three males continued to harass them and demanded their mobile phones. The defendant was able to gain entry to the complex by damaging property and then followed the victims as they ran to their unit. The defendant threatened to “knife” them with a switchblade knife that he was holding. The victims escaped. They thought that all three males appeared to be drug-affected.
8. Later that day, the defendant and Mr Lupton approached a male and female couple who were walking home. The defendant kicked the male to the leg and held a knife, which appeared to be a folding razor blade or switchblade, in an aggressive manner to the male’s face. The defendant threatened the victims with the knife for some seconds and left.
9. Moments later, the defendant approached another male and female couple who were nearby and punched the male to his face with a clenched fist, in a hook style punch. The male victim tried to walk away and the defendant pulled a knife on him and demanded his valuables, stealing his wallet. He stole the victim’s iPhone and a sum of cash.
10. In the early hours of 15 February 2014, Mr Lupton assaulted a male passenger at Central Railway Station and the defendant produced a knife to the victim.
11. Around 2am on the same morning, the defendant and Mr Lupton followed another male while he was walking by Rockdale Railway Station after exiting a bus. As he tried to enter his home, the man was assaulted by Mr Lupton, who had a piece of fence. The defendant had “a similar weapon” but with “metal pieces”. Mr Lupton demanded the victim’s wallet and struck him to the back of the head. The defendant did likewise, with sufficient force to “split open” the victim’s head. The victim fell to the ground, Mr Lupton tried to steal the victim’s wallet from a pocket and the victim resisted. The defendant struck the victim twice to his back. The victim escaped, ran home and called the police. The victim’s version of events was corroborated by several witnesses, and CCTV images allowed for the defendant to be identified.
12. The agreed facts continued:

“[The victim’s] injuries were consistent with being struck multiple times over the head with a wooden object and a metal pole and punched multiple times to the face. [The victim] also had multiple abrasions to his back, arms and legs. [The victim] required stitches to his scalp and had bruising all over the front and back of his torso and hip.”

13. The defendant admitted to police that he engaged in the offences to buy more “ice” (methylamphetamine). On 5 November 2014, several control orders were imposed on the defendant in the Children’s Court for the offences concerning the first three incidents, for a period totalling 22 months, commencing on 23 October 2014 and expiring on 22 August 2016. The defendant was eligible for release on 21 August 2015.
14. On 24 March 2016, by which time the defendant was aged 19, Judge Townsden sentenced him to imprisonment for 3 years and 9 months with a non-parole period (NPP) of 2 years for the offence arising from the fourth incident (of assault with intent to rob whilst in company and wound). The total sentence commenced on 23 February 2015 and expired on 22 November 2018. This was the defendant’s first term of imprisonment as an adult.
15. The defendant was not released to parole until 18 June 2023 because of the sentences imposed for the offences below.

The November 2016 serious violence offence

16. On 9 November 2016, the defendant assaulted a fellow prison inmate three times with a “shiv”, causing two wounds to his right shoulder, one to his abdomen which penetrated the right lobe of his liver, and one in the left lateral chest wall.
17. The defendant was charged with wounding with intent to cause grievous bodily harm (GBH), contrary to s 33(1)(a) of the Crimes Act, which is a “serious violence offence” as defined in s 5A of the Act. On 12 October 2018, Judge Herbert sentenced the defendant to 6 years and 4 months imprisonment (NPP of 4 years). The sentence commenced on 19 June 2016 and expired on 18 October 2022.

The March 2018 serious violence offence

18. On 20 March 2018, the defendant struck another inmate in the face, forearm, neck and torso, with a “shiv”. The defendant and the inmate had known each other from juvenile detention, and the inmate had been transferred to the defendant’s correctional facility earlier that day. The defendant pleaded guilty in the Local Court to one charge of wounding with intent to cause GBH, that being his second “serious violence offence” as defined in s 5A of the Act. On 30 May 2019, Judge Hanley sentenced the defendant to 5 years’ imprisonment (with a NPP of 3 years), commencing on June 2018 and expiring on 18 June 2023.

The November 2019 violence offence

19. On 9 November 2019, the defendant committed the offence of reckless wounding, contrary to s 35(2) of the Crimes Act, against another inmate. According to the agreed facts, the defendant tipped a bucket of hot water on the inmate’s upper body while he was wearing a jumper, causing burns to 10 per cent of his body, including second degree burns to 1 per cent of his body. On 25 September 2020, Judge Ellis sentenced the defendant to 3 years imprisonment commencing on 18 June 2021 and expiring on 17 June 2024, with a NPP of 3 months.

The November 2021 offence

20. On 26 November 2021, the defendant assaulted a corrections officer. The agreed facts state that the officer tried to confiscate kittens from the defendant’s possession. The defendant punched the officer who retaliated by grabbing the defendant. The defendant again threw a punch at the officer but missed. Other officers intervened to subdue the defendant. The officer suffered bruising to his eye. The defendant was charged with assaulting a law enforcement officer (not police), contrary to s 60A(2) of the Crimes Act. He was sentenced in the Local Court to 9 months’ imprisonment commencing on 16 February 2022 and expiring on 15 November 2022.

The alleged offending on 12 December 2023

21. Consequent to the above offending and sentences, the defendant was in continuous custody from 22 August 2014 until he was released to parole on 18 June 2023. On 12 December 2023, while on the platform at a railway station, the defendant allegedly incited a male stranger to “throw a punch”. When the male ignored the defendant and walked on, the defendant allegedly repeatedly punched him to the head, causing him to fall to the ground. The defendant continued to assault the victim to his head and face on the ground, causing red marks and swelling. Another male intervened and the defendant allegedly assaulted that man, causing a bruise and a small cut above one of his eyes. Eventually, four other bystanders pinned the defendant to the ground until police arrived.
22. The defendant told arresting police that he ‘felt like running on train tracks’ and allegedly banged his head against the door of the caged vehicle, causing his nose to bleed and other self-inflicted injuries that resulted in undisplaced fractures of two of his ribs and a nasal fracture. He was conveyed to Nepean Hospital by police pursuant to s 22 of the Mental Health Act 2007 (NSW). After he allegedly refused to follow an instruction to get out of the police caged vehicle, he was allegedly forcefully removed from it, placed in a hospital bed by police and held down until he was fully restrained. The defendant allegedly assaulted two police officers who were restraining him.
23. A mental health assessment resulted in the defendant being admitted to Nepean Hospital as an involuntary patient. On 11 January 2024, he became a voluntary patient. On 24 January 2024, he was discharged from Nepean Hospital, arrested by police and charged with one count of assault police officer in execution of their duty without actual bodily harm; one count of hinder or resist police officer in the execution of their duty; and two counts of assault occasioning actual bodily harm (the 12 December 2023 charges). On the same date, he was bail refused by Mount Druitt Local Court with respect to the above charges and has remained in custody since that date. On 2 May 2024, the criminal proceedings relating to those charges were adjourned to 10 February 2025 for hearing at Penrith Local Court.

Driving offences

24. On 24 April 2024, the defendant pleaded guilty at Mount Druitt Local Court to minor driving offences, being not displaying “L” plates as prescribed and not being accompanied by driver/police officer/tester, for which he received fines and a disqualification from driving for 3 months from 24 April 2024.

Parole revocation

25. On 8 May 2024, the State Parole Authority revoked the defendant’s parole on the basis that he had breached a condition of his parole which required him to be of good behaviour. His total sentence expired on 17 June 2024, but he remains in custody, bail refused, on the 12 December 2023 charges.

The defendant’s progress on parole

26. As noted, the defendant was released to parole on 18 June 2023. A profile of the defendant’s progress on parole emerges from the Offender Integrated Management System (OIMS) notes concerning him. The OIMS notes, at least initially, were quite positive. On release, the defendant commenced residing with his mother. In July 2023, he was looking for employment. On a positive note, on 13 July 2023, he completed an intake assessment for a drug and alcohol program (Dianella Cottage) and on 25 July 2023, he commenced an Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS) Foundations program. By 28 August 2023, he was attending fortnightly sessions with a Dianella Cottage staff person. The defendant was also apparently candid with slip-ups along the way, admitting, on 11 September 2023, to having a cone of cannabis and being stopped by police for riding a bicycle without a helmet, and on 10 October 2023, that he had spent $1,200 on “pokies and drugs”. He said that he hoped to recommence taking medication for his Attention Deficit Hyperactivity Disorder (ADHD).
27. On 19 October 2023, Community Corrections received information that the defendant had moved in with another family member and that he had relapsed into drug use. The following day the defendant was contacted and denied drug use, other than what he had already admitted. An inquiry with his EQUIPS program facilitator yielded a positive response as to the defendant’s participation. On 23 October 2023, the defendant admitted that:

“... he had used and sold ice ... and wanted to confess...what he had done as he wanted to complete his parole order and not go back to custody.”

28. Further counselling and program attendance was arranged but difficulties were encountered in gaining admission to a suitable program, by no fault of the defendant. On 8 December 2023, the defendant was approved for admission to the Violent Offender Therapeutic Program (VOTP) maintenance program, to commence in January 2024.
29. From about that date, the defendant’s situation deteriorated rapidly, apparently due to him using methylamphetamine and experiencing episodes of mental health issues. As noted, he was arrested and hospitalised on 12 December 2023.

Recent institutional conduct

30. With respect to the defendant’s recent institutional conduct, the statement of agreed facts states the following:

“On 20 April 2024, an officer found two pieces of metal wire, a broken black damaged TV cord, two white charges (cf) (one broken), excess amounts of medication (48 tablets), sharpened metal rod, and a sewing needle. When questioned, the Defendant said, ‘charge me’.

On 4 May 2024, two officers noticed the Defendant’s cell smelt of burning plastic. The officers conducted a cell search and found a small piece of orange wafer material consistent with the drug buprenorphine found inside a pill capsule. The Defendant took ownership of the orange substance.

On 14 June 2024, maintenance staff discovered a shiv made from the glass that covers the night light, and after being strip searched, found a light bulb in the Defendant 's underwear. The Defendant denied ownership of the shiv.

On 7 July 2024, contraband was located in the Defendant’s cell – one gaol made syringe. The Defendant admitted ownership.

On 7 July 2024, officers witnessed an inmate being assaulted by the Defendant and another inmate.

On 14 August 2024, the control room received a knock up from the cell that houses the Defendant and his house inmate, claiming that their window ‘shattered from the sun’ and that they ‘knocked up straight away so they cant (sic) get the blame for it’. Upon reviewing the CCTV footage, an item was thrown at the door and shattered the glass from the window. Both the Defendant and his house inmate were charged and locked in their cell pending charge for damage and destruction of property. In an Inmate Profile Document dated 16 August 2024, no charge in relation to this incident was apparent on the Defendant's record of institutional disciplinary charges.”

The defendant’s medical condition

31. The defendant continues to have ADHD and suffer from a complex Post-traumatic Stress Disorder (PTSD) and impulsivity issues. In July 2024, he suffered from anxiety-related chest pains. On 19 August 2024, he expressed a reluctance to being restrained for an escort to the hospital, stating: “I don’t want to go ... [I am] scared of the shackles, handcuffs and belt. It makes [me] claustrophobic”.

The relevant statutory provisions and principles

32. Section 5B of the Act relevantly provides as follows:

“Part 1A Supervision and detention of high risk offenders

5B Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if—

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(d) the Supreme Court is 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.”

33. The term “serious offence”, which appears in s 5B(d), is relevantly defined in ss 4 and 5A of the Act, as follows:

“4 Definitions

(1) In this Act:

...

serious offence means—

(a) a serious sex offence, or
(b) a serious violence offence.

serious violence offence—see section 5A.

...

5A Definition of ‘serious violence offence’

(1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person—

(a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person,
...

(2A) A reference in subsection (1) (a) to—

...
(c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person.”

34. As noted, the defendant does not contest that the preconditions for an application for an ESO, which are set out at ss 5B(a)–(c) of the Act, are made out. I am independently satisfied that is so, by virtue of the defendant having committed two serious violence offences (in November 2016 and March 2018), as defined in ss 4 and 5A(1) of the Act.
35. The reference in s 5B(d) of the Act to “a high degree of probability that the offender poses an unacceptable risk” is qualified by s 5D of the Act, which provides as follows:

“5D Determination of risk

For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.”

36. I note that, pursuant to ss 5B and 9(1) of the Act, the power to make an ESO is discretionary; the Court may make an order for an ESO if the prerequisites in that section are satisfied.
37. Sections 3 and 9 of the Act stipulate its objects and the paramount consideration to be taken into account when determining an application for an ESO, respectively. They are as follows:

“3 Objects of Act

(1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

(2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.

...

9 Determination of application for extended supervision order

(1) The Supreme Court may determine an application for an extended supervision order—

(a) by making an extended supervision order, or
(b) by dismissing the application.

(2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

(2A) (Repealed)

(3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant—

(a) (Repealed)
(b) the reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,
(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,
(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,
(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,
(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,
(e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,
(e2) the likelihood that the offender will comply with the obligations of an extended supervision order,
(f) without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,
(g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,
(h) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,
(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,
(i) any other information that is available as to the likelihood that the offender will commit a further serious offence.

(4) In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).”

38. Pursuant to s 6(3) of the Act, an application for an ESO must be supported by documentation that addresses each of the matters referred to in s 9(3) of the Act (s 6(3)(a) of the Act); and includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence (s 6(3)(b) of the Act). The reports by Mr Sheehan and Dr Seidler are in compliance with s 6(3)(b) of the Act.

Section 9(3) of the Act: forensic reports and evidence

39. Pursuant to s 7(4) of the Act, reports were obtained from forensic psychologists Patrick Sheehan and Dr Katie Seidler. At the time that they were retained, the period of the ESO sought was two years. Following receipt of their reports, the plaintiff amended its summons to seek an ESO for a period of three years.
40. The plaintiff has also tendered a risk assessment report (RAR) prepared by psychologist Richard Parker (s 9(3)(c)) of the Act); a risk management report (RMR), prepared by Jamie Burton and, effectively, an updated RMR in the form of an affidavit, by Jessie Slattery-McDonald (s 9(3)(d1) of the Act).

The report of Patrick Sheehan

41. Patrick Sheehan is, as noted, a forensic psychologist. His report is dated 23 August 2024. Mr Sheehan took the following early childhood history from the defendant:

“[The defendant] was born in Queensland (Bundaberg) to an Aboriginal mother and Anglo Australian father. He is the second of four children, with all his siblings being girls. He was raised primarily in western Sydney. Consistent with previous reports, he described exposure to repeated early trauma over the first 6-7 years of life and said that he had an incomplete memory of his childhood, having ‘Blocked most of it out’. He said that both parents were opiate addicts and his mother was on methadone for much of her pregnancy, with [the defendant]. He said: ‘She stopped as soon as she realised she was pregnant but I was already addicted and was born hanging out (withdrawing)’. He said that his mother never returned to use illicit substances during his development. He said that his father had been a violent and cruel man who also sexually abused all of the children in the family. He relayed incidents of physical violence, humiliation and sexual abuse. He said: ‘I never felt safe’. [The defendant] continued to refer back to his early abuse throughout the interview, saying that he did not want to talk about it, but repeatedly referring to it. He showed autonomic arousal when speaking about it and it is clear that these experiences continue to have ongoing prominence in his life, his thinking, and his self concept.”

42. The defendant said his parents separated permanently in his pre-pubescent years, and his mother did not re-partner. She suffered from a bipolar disorder and the ongoing effects of trauma, and the children were troubled, difficult to control and prone to drug use. The defendant would run away frequently, from a young age. Mr Sheehan continued:

“[The defendant] said that when he was aged 13-16 years his father went to trial for his crimes against the children and several family members gave evidence. This was a highly disturbing time for [the defendant] and saw an escalation [in his] drug use and aggression. He said that his initial cluster of violence offences occurred in the months following his fathers’ sentencing to nine years imprisonment. He has never moved to independence in a formal sense but entered Juvenile Justice aged 16 years and then transitioned into adulthood in the adult correctional system, spending a cumulative period of nine years in custody. Notably, he told me that he had been sexually abused by a worker in a Juvenile Justice facility, and recently obtained a $90,000 payout by way of compensation.”

43. The defendant said he was diagnosed with ADHD prior to commencing school, although Mr Sheehan noted reports suggesting the diagnosis was made when the defendant was in late primary school. He was expelled at the beginning of year 9 for bringing cannabis to school. He has a “negligible” employment history and has been in continuous custody since the age of 17. I note that he is now aged 28. Mr Sheehan continued:

“[The defendant] told me that during his parole supervision he obtained a $90,000 settlement, which reduced the necessity to seek employment in the short term. However, he spent the entire sum in three weeks, through a combination of gambling, drug use, expensive gifts or donations to family, a car, and expensive clothing (such as spending $1500 on a t-shirt and having suits tailored). He seemed to have no regrets as to how quickly he spent this potential means of establishing himself independently in the community.”

44. Mr Sheehan noted that the defendant has never completed a residential drug rehabilitation program and that the programs he attended while on parole “had little impact on his substance use. The defendant expressed an ongoing interest in participating in a residential rehabilitation program should he be accepted”.
45. Mr Sheehan noted that the defendant:

“... has a complex psychiatric history that has been covered in detail in several previous psychological reports from diverse sources. The main features of his psychopathology relate to trauma, developmental disorder (ADHD), personality disorder and substance use disorder.

...

In my view, complex developmental trauma is [the defendant’s] primary presenting feature and has likely played the dominant role in disturbing personality/emotional development, adult self concept and gravitation towards substance use and re-traumatisation ... The diagnosis of Complex PTSD is confirmed in my opinion. I note that hyperarousal and exaggerated threat perception are components of [the defendant’s] violence, suggesting a logical nexus between his PTSD and his violence behaviour. This would seem particularly evident in cases where he has acted violently towards men he believed to be sex offenders. I note that the most efficacious treatment for PTSD is exposure therapy. [The defendant’s] PTSD has never been directly treated. Exposure therapies are contraindicated in gaol settings (due to the inevitability of triggering trauma memories in an unsafe environment), but [the defendant] could seek targeted PTSD treatment on release.”

46. Mr Sheehan thought it likely that the defendant’s mental health episodes in 2023 were likely due to drug-induced psychoses rather than a schizophrenic illness. As to the defendant’s past diagnosis of ADHD, he referred to the defendant’s descriptions of episodes of impulsivity, hyperactivity and inattention, and concluded:

“I note that several of these ADHD features overlap with PTSD symptoms, but on balance, the diagnosis of ADHD remains more likely than not. He continued to show inattention and low frustration tolerance during his interview with me and it would seem likely that the condition has not resolved, having continued on into his adult life. [The defendant] also attracted diagnoses of Oppositional Defiant Disorder (ODD) and Conduct Disorder during childhood, both of which are comorbid to ADHD, and have shaped towards adult antisocial personality.

In my opinion, there is clear evidence to suggest the presence of a disorder of personality ...The circumstances of [the defendant’s] early life are likely to have interrupted the development of a secure and stable personality, normalizing violent interactions, lawlessness and poor affective regulation. [The defendant] would meet the criteria for Antisocial Personality Disorder, defined as a pervasive pattern of disregard for and violation of the rights of others, occurring since the age of 15 years ... The disorder generally runs a chronic course, but outward acts of antisociality tend to remit as the individual moves into middle age. At 28 years of age [the defendant] still has well over a decade to go before natural processes of maturation might be expected to take effect.

Destructive personality features can be targeted for change in psychotherapy but the process is often arduous and requires the appropriate external environment, as well as a high level of motivation and recognition that change is necessary and desirable. [The defendant] expresses motivation to change but his ability to translate this broader intention into actual behavioural change remains poor. He might best be considered to be at the contemplative stage of the change process, despite his completion of intensive programs.”

47. Mr Sheehan also found that the defendant met the diagnostic criteria for a Polysubstance Use Disorder (Moderate-severe, in early remission, in a controlled environment).
48. Mr Sheehan assessed the defendant’s dynamic risk factors for committing a violent offence utilising the Violence Risk Scale (VRS). He found that violence had been a way of life for the defendant, both in the community and in custody. He could not conclude that the defendant presented as “prototypically psychopathic”. He found that the defendant rationalised antisocial behaviour (including violence); that he sought to live by the spur of the moment in the community; and that he was high on criminal attitudes. While the defendant was found to express a work ethic, there was little evidence of this either in custody or the community, although he expressed a desire to seek employment on release. Although the defendant identified as “a loner”, negative associations were an ongoing problem and found to be directly related to his expression of violence over the years, encouraging substance abuse and committing violence offences in company.
49. The defendant had poor emotional control which had been a central feature of a number of episodes of expressive interpersonal violence. He had impaired tolerance to frustration or distress, thus, acting out impulsively. He had a long history of carrying weapons, making weapons and using weapons in the course of violent action. Mostly this involved bladed weapons but he had also used pieces of wood and boiling water as weapons in the past. His misconduct charge earlier this year for possession of a gaol-made weapon indicated to Mr Sheehan the persistence of this behaviour. He found that the defendant had shown some insight into his violent behaviour, appreciating the role of substance use, reducing distorted justifications and challenging antisocial beliefs, although he qualified that observation:

“[The defendant] was described as showing ‘impressive understanding’ (VOTP report, 4 August 2023). I cannot say that this insight was evident during his interview with me and I suspect he has regressed to some extent when no longer in the VOTP therapeutic community. I found him somewhat dismissive of his violence behaviour and showing only a rudimentary plan for how to offset future risk.”

50. Mr Sheehan found there to be a strong association between the defendant’s PTSD and his violent behaviours, “with hyperarousal, agitation and displaced aggression towards the person whose words or behaviour remind him of his abusive father”. According to Mr Sheehan, there was also a link between the defendant’s substance use and violent behaviour, which is particularly evident with his use of stimulants, although he had also been capable of violence when not substance affected.
51. Mr Sheehan considered that the defendant’s engagement with his family and other community supports was superficial, and that he did not allow them to influence him positively: “For [the defendant], it is not the presence of supports that is the issue but his use of those supports”.
52. As to the defendant’s compliance with supervision, Mr Sheehan said:

“[The defendant] has shown the ability to form rapport with supervisors, attended most appointments as directed and generally attended programs as directed. There are no records of him being combative or oppositional with supervisors. However, beyond this there is no evidence that he has worked towards the goals of supervision in terms of behavioural change, personal responsibility, managing himself in ways to maximise his stability and community reintegration. In all I would regard his compliance with supervision to be superficial.”

53. As to risk scenarios, Mr Sheehan considered that:

“... the type of violence scenarios that [the defendant] is most at risk of would involve situation such as robbery, chasing drug debts, violence against men he suspects to be sex offenders, violence emerging spontaneously against strangers influenced by drug psychosis. His violence may emerge by way of threats and aggressive display, beating people with his fists, using objects at hand, or wielding a weapon such as a knife. The offences may occur individually or in company with antisocial peers. [The defendant’s] parole performance in 2023 and his institutional recordings in 2024 suggest that he would be at risk of engaging in violence in the short to medium term, being 6- 12 months.”

54. Mr Sheehan concluded that the defendant’s overall level of risk of violent recidivism was “within the high risk category”.

The report of Dr Katie Seidler

55. The report of Dr Katie Seidler, who is a clinical and forensic psychologist, is dated 23 August 2024. Dr Seidler formed a generally positive impression of the defendant’s presentation in her audio video link assessment of him on 9 August 2024, saying:

“[The defendant] impressed me as an unsophisticated person, both intellectually and socially however, to his credit, he was thoughtful and seems to have the capacity for insight and reflection. Even so, [he] needed some structure and direction during the interview to remain focussed.”

56. Nevertheless, Dr Seidler cut short her interview to accommodate a growing anxiety by the defendant that, in view of an impending lockdown, he may miss out on showering, cleaning and accessing his “buy up”. Dr Seidler accepted that such anxiety was understandable in the context of the compulsive symptoms that long term inmates often have when there is a change in routine.
57. Dr Seidler extensively reviewed earlier reports concerning the defendant’s personal and mental health history, his criminal antecedents, his progress in rehabilitative programs, his behaviour on parole and the opinions of other forensic professionals as to the defendant’s criminogenic factors and his risk of violent recidivism. I will not canvass all of that material in this judgment, although I do note the following.
58. The discharge summary at Nepean Hospital, dated 24 January 2024, reported that, on admission, drug testing of the defendant was positive for amphetamines, “benzoamphetamines” and ecstasy. It further noted:

“... from ‘a mental health perspective, he was found to be paranoid, experiencing auditory hallucinations, be actively delusional with both verbal and physical aggression’, in addition to having attempted suicide on multiple occasions in the preceding months.”

59. A report of a clinical nurse consultant (Mental Health) at Liverpool Local Court, dated 24 April 2024, reported that the defendant attended a school for children with behavioural concerns and that he was expelled for drug use in Year 8. I note that this history of expulsion from school roughly accords with the account given to Mr Sheehan by the defendant.
60. Dr Seidler extensively reviewed the RAR that was prepared by Richard Parker, which is separately considered below.
61. The VOTP treatment report noted that the defendant was born with likely neonatal abstinence syndrome on the basis of his mother’s heroin abuse, and provided a different reason for the defendant being expelled from school, which was that in year 8 he assaulted the school principal. The same report noted protective factors operating in the defendant’s life:

“[The defendant] possesses multiple protective factors that may reduce his risk of recidivism in the form of social and emotional supports, namely in the form of specific pro-social family; a place to stay after release in the form of stable and private accommodation.”

62. Dr Seidler’s opinion included the following, which I consider appropriate to quote:

“[The defendant] has struggled with ill mental health for much of his life, which, again, is founded in his traumatic and abusive early life. He was apparently diagnosed with Conduct Disorder, Oppositional Defiant Disorder and Attention Deficit Hyperactivity Disorder in childhood, but I wonder whether the latter was actually a function of the anxiety, restlessness and dysregulation associated with childhood trauma. Into adulthood, [he] has suffered with complex and unresolved Posttraumatic Stress Disorder, Persistent Depressive Disorder, which has descended into episodes of Major Depression at times. I also note the history of Substance Dependence Disorder (which contributed to one known episode of a Drug Induced Psychosis) and consider that [he] also meets criteria for a Cluster B Personality Disorder (both Antisocial and Borderline traits).

Whilst [the defendant] has engaged in forensic treatment before, he has never had consistent psychological intervention to address his trauma history and poor mental health, in addition to which he has not been able to access residential rehabilitation treatment for substance abuse, both of which are areas of need that [he] recognises as essential. [He] identified that trauma and ongoing symptomatology of psychopathology drive his substance abuse, in addition to which the treatment that he has had in relation to drug use in the past has not been of sufficient intensity to address this issue. For all these reasons, [he] remains at risk for a raft of negative coping behaviours, which include the potential for violence that may breach the threshold for serious violence as per the Act. To this end, whilst [he] has positive changes to date and he appears willing to utilise intervention and to consider a prosocial lifestyle, he needs considerably more specialist support in order to achieve his potential and reduce his risk to the community.”

63. Dr Seidler approached the issue of determining the defendant’s level of risk of violent recidivism by adopting “a multifaceted approach”, using “various instruments to conceptualise [his] risk”. These were the Level of Service/Case Management Inventory (LS/CMI), the Violence Risk Scale – second edition (VRS-2), the Historical Clinical and Risk Management – 20 Version 3 (HCR-20 V3) and the Structured Assessment of Protective Factors for violence risk (SAFROF). Dr Seidler summarised her findings as to risk assessment as follows.

“[I]t is my opinion that [the defendant] presents with substantial risks associated with criminal violence, associated with which there are limited protective factors evident. The most salient factors that are understood to contribute to [his] violence pertain to his history of trauma and abuse, which has resulted in ongoing mental health concerns and poor coping skills. Further to this, his tendency to impulsivity, in addition to his antisocial and anti-authoritarian attitudes and the disinhibition associated with substance and antisocial peer influence are also of relevance.

...

[I]t is my assessment that [the defendant’s] risk remains high and that this may include him engaging in violent offences that may breach the threshold for serious criminal violence. These acts of violence may be planned or impulsive and unprovoked and are likely to be directed at a male and involve the use of a weapon. [His] risk will be most acute in situations of perceived threat or risk or if he is triggered in relation to the history of trauma. Further to this, [he] may engage in spontaneous acts of violence without any lead up through leakage behaviours or he may demonstrate an increase in risk over time through poor coping, substance abuse, irritability, aggression and threatening behaviour, which may also be associated with disengagement from prosocial and professional supports and interventions.”

64. At a later point on this issue, Dr Seidler said:

“[The defendant’s] risk would increase under conditions of stress or distress, associated with an increase in substance abuse and association with antisocial peers, in addition to exposure to stressors, destabilisers and trauma-associated triggers with which he copes poorly. Conversely, his risk would decrease in the context of professional support and intervention, as well as structured, responsive supervision, a stable personal routine with positive supportive relationships and the effective and consistent use of coping strategies learned through specialist intervention.”

65. Dr Seidler succinctly stated her diagnoses as follows:

“[I]t is my opinion that [the defendant] would meet criteria for complex and unresolved Posttraumatic Stress Disorder, Obsessive Compulsive Disorder, Persistent Depressive Disorder and a Substance Dependence Disorder, which is presently in remission in a controlled environment. I am also of the view that [the defendant] would meet criteria for a Personality Disorder with both Borderline and Antisocial traits. To reduce the complexity associated with the various conditions that [the defendant] has been diagnosed with, in sum, he is well described as an individual, who has a history of trauma and who struggles with the regulation of his emotional state, especially associated with reminders of trauma. He is prone to anxiety and depression and may be reactive emotionally, with a tendency to impulsivity, dysregulation, poor coping and a lack of consequential reasoning and perspective taking ability. He has engaged in a range of destructive and maladaptive behaviours under conditions of distress and this has included heavy substance abuse. Further to this, [he] has entrenched difficulties in his relationships with others and with respect to his attitudes and beliefs, about himself, others and also the world around him. These concerns are chronic and pervasive and have been present since childhood, with their foundation in his history of trauma and abuse.”

66. Dr Seidler was of the opinion that the evidence was “overwhelmingly” in favour of an opinion that the defendant’s risk of future violence, including future serious violence, cannot be managed without “a high level of structure, support and supervision.”

Report of Richard Parker

67. Richard Parker is a senior psychologist with the Serious Offenders Assessment Unit at Corrective Services. His RAR is dated 24 November 2023.
68. Mr Parker gave the following assessment:

“[The defendant] has completed the VOTP ... and appears to recognise that his violence is misdirected and inappropriate. However, his recent struggles with sobriety suggest that he has not resolved the underlying anger and trauma, and still has automatic thinking patterns which can easily lead him back towards drugs, crime and violence.

He is assessed as high risk for further violent offending on a number of actuarial instruments which have been validated for that purpose. To reduce his risk of future violence, he will need to resolve the thinking patterns that fuel this, and his substance abuse, develop a range of prosocial associates, and disassociate himself from antisocial associates.”

69. As to risk scenarios, Mr Parker stated:

“[The defendant] is capable of violence when sober, but the risk appears to be heightened when he is intoxicated and/or seeking drugs. Additionally, it is possible that intoxication reduces his inhibitions against serious violence. [The defendant] has used sharp weapons against victims for both instrumental and emotional reasons, suggesting his restraints against escalation to serious offending are fairly weak.

In the community, the most likely route to future violence would be a relapse into chronic substance abuse. In this scenario, he would be motivated to acquire money to purchase more drugs (which would increase the chances of instrumental violence) but would also be more likely to associate with people who will elicit feelings of anger, leading to expressive violence.”

Report of Jamie Burton

70. As noted, Mr Burton is a Community Corrections Officer with the ESO team. His report is dated 5 December 2023. At the time of the report, the defendant was living in the community with his family. The author noted the difficulties that the defendant encountered in locating a residential drug rehabilitation program that would accept him with his criminal record.

Affidavit of Jessie Slattery-McDonald

71. Ms Slattery-McDonald is the High Risk Offender Applications and Operational Governance Officer in the ESO Team of Corrective Services. Her report is in the form of an affidavit, dated 29 August 2024. She stated that she did not know the defendant, but had familiarised herself with his case and outlined the manner in which he would be managed on an ESO.

Finding as to s 5B(d) of the Act

72. In the terms of s 5B(d) of the Act, I am satisfied to a high degree of probability by the forensic assessments of the defendant and opinions concerning his level of risk of violent recidivism that he poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. I decline to exercise the discretion made available by ss 5B and 9(1) of the Act to not make an ESO; in so determining, I note that the defendant did not submit that such a finding should be made.

The length of an ESO

73. In his formative years, the defendant was exposed to serious abuse which lay the foundation for lasting psychological damage and serious criminogenic behaviours that have deprived him of more than a decade of his liberty; effectively, his young adulthood. His first attempt at community reintegration, in spite of the best efforts of his supportive family, was a failure.
74. The defendant is realistic about the challenges he faces. My impression of him is that he is committed to getting his life in order. He demonstrated that by his acceptance of the need for him to gain admission to a residential rehabilitation program before his arrest in December 2023, his instructions to his legal representatives that he needs an ESO regime and its attendant rehabilitative resources, and his wholly cooperative attitude towards Mr Sheehan and Dr Seidler.
75. I am conscious that Mr Sheehan is of the opinion (excerpted at [46] above) that, although antisocial personality disorder generally runs a chronic course, it can be targeted for change by psychotherapy. Both forensic experts have highlighted the need for professional support and intervention.
76. Mr Sheehan regarded two years as the minimum period required to achieve a significant amelioration of the defendant’s level of risk of violent recidivism. Dr Seidler was of the opinion that a two-year ESO was appropriate at minimum, and that a “three year order may serve [the defendant] better to encourage his stability in the community and allow him to access, engage in and profit from rehabilitation programming”. The defendant is burdened by a relatively high degree of institutionalisation through the impact of the extended period of his incarceration on his young adulthood; he lost those formative years in the community when young adults work out how to socially, economically and psychologically survive on their own. That being so, I am of the view that the ESO should be for a period of three years.

Proposed conditions of the ESO

Proposed conditions in dispute

77. As noted, the defendant challenges the necessity of two of the proposed conditions.

Encrypted messaging services

78. The plaintiff proposes the following condition:

“28. You must not use any of the following unless approved by a DSO:^[1]

a) Social networking applications or services (including dating services or applications);
b) Encrypted messaging applications or services;
c) Online gaming applications or services;
d) Instant messaging applications or services.”

79. The defendant submits that condition 28(b) be deleted because it is unnecessarily restrictive, since virtually all messaging apps (for example, WhatsApp, Facebook Messenger, Apple Messages) are now encrypted.
80. Alternatively, the defendant proposes this wording for condition 28(b):

“The defendant must not use any coded or encrypted messaging application or service without the prior approval of a DSO and further must make his use of such an application available for inspection by a DSO on request.”

81. I will accede to the defendant’s alternative submission. In view of the defendant’s long-standing issues with prohibited drugs, it is appropriate for there to be oversight of the defendant’s electronic communications, which are a well-known method for drug supply runners to deliver purchases of prohibited drugs.

Electronic monitoring and scheduling

82. As to electronic monitoring and scheduling, the plaintiff proposes the following:^[2]

“5. If you:

a. are charged with having custody of a knife or an offensive implement in a public place, or
b. are charged with an offence involving violence, or
c. become homeless, or
d. have tested positive to using drugs or alcohol
Then you must:

i. wear electronic monitoring equipment as directed by a DSO and must not tamper with or remove the equipment, and
ii. Provide a schedule of movements as directed.
iii. if you want to change anything in your schedule of movements once it is approved by a DSO, you must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period, and
iv. you must not deviate from your schedule of movements except in an emergency.”

83. The defendant proposed modifications of the triggers of homelessness and drugs and alcohol, which were not opposed by the plaintiff; a sunset period of three months for the electronic monitoring; and an option for the DSO to impose electronic monitoring for up to one month if they have “immediate concerns about [the defendant’s] risk of committing a serious offence”.
84. The plaintiff maintained its preference for electronic monitoring in the terms proposed originally, but also proposed an alternative if the Court is minded to impose a sunset clause. This alternative would allow a maximum continuous period of electronic monitoring for three to six months, subject to an additional month, in accordance with a new clause (5A), which would read as follows:

“5A. If:

a. prior to the expiry of a direction given under Condition 5;
b. the DSO has immediate concerns about your risk of committing a serious offence which, in the DSO’s opinion, make an extension of the condition reasonably necessary,
the DSO may extend the direction. The total period of a direction given under condition 5 that is extended pursuant to this condition cannot exceed 7 months.”

85. I understand the benefit of a sunset clause as an encouragement to the defendant to quicky remedy the underlying problem that triggers electronic monitoring. However, realistically, a breach of condition 5 in the terms of paragraphs (a) or (b) will likely result in his arrest and at least his short-term incarceration pending a possible grant of bail, so that the ESO would be suspended in any event. Electronic monitoring triggered by homelessness should only last, in my opinion, for so long as the defendant is homeless. The focus, then, is condition 5, paragraph (d): the use of drugs and/or alcohol, which I note, is a major risk factor for the defendant to commit a serious violence offence.
86. Condition 16 forbids the defendant from consuming alcohol, without prior approval of a DSO; or, prohibited drugs. It would be unsurprising for the defendant to falter on the path to abstention. Proposed condition 5 mandates electronic monitoring and scheduling if he is found to have breached condition 16. In my view, that is unnecessarily strict. Rather, electronic monitoring and scheduling should be one option to be considered if the defendant consumes alcohol or drugs.
87. Three months is unrealistically short for the defendant to overcome succumbing to those temptations, but six months is unnecessarily long. The mechanics of the conditions must foreshadow slips along the way, and also the defendant rebounding with further interventions. That is best achieved, in my view, with periods of electronic monitoring and scheduling for up to four months, with no restriction on it being reintroduced when necessary.
88. I do not see any point in adding a power for the DSO to impose electronic monitoring and scheduling for a month if they anticipate a “serious offence” being committed by the defendant. It is too broad and vague. The focus should be on ensuring the defendant keeps away from criminogenic triggers, such as drugs and alcohol.
89. Accordingly, I will redraft condition 5 as follows.

“5. If you:

a. are charged with having custody of a knife or an offensive implement in a public place, or
b. are charged with an offence involving violence, or
c. become homeless, or
d. have tested positive to using drugs or alcohol in non-compliance with condition 16(a),
then for a period of up to four months; or, if the issue is homelessness, for so long as you are homeless, a DSO may require you to:

i. wear electronic monitoring equipment as directed by a DSO and you must not tamper with or remove the equipment, and
ii. provide a schedule of movements as directed.
iii. If you want to change anything in your schedule of movements once it is approved by a DSO, you must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period, and
iv. you must not deviate from your schedule of movements except in an emergency.”

An incidental change to the proposed conditions

90. The need for an additional change, which is not opposed by the parties, came to light during oral submissions. It would be inappropriate for the defendant to download a self-deleting messaging app. Arguably, that is already covered by proposed condition 28, but to ensure clarity and certainty, it is preferable to add the following words to condition 32 (as italicised):

“32. You must not download an app that has the capacity to automatically delete content. As well, you must not delete or alter any of the following from your electronic devices without prior approval of a DSO:

a) Applications
b) Emails
c) Text messages
d) Electronic messages
e) Call history
f) Files or documents
g) Photographs, images and videos, or
h) Internet or application usage and search history.”

Orders

91. I make the following orders:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), order that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of three years from the date of this order.

(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this judgment.

(3) The interim supervision order made by Harrison CJ at CL on 18 June 2024 is revoked from the date of this order.

(4) Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

**********

Schedule of Conditions of Supervision Mackney (193557, pdf)

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^[1] The acronym “DSO” means a Departmental Supervising Officer.
^[2] I have amended the numbering of the condition as originally proposed to facilitate easier referencing.