Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Windle (No 6) (Final) [2020] NSWSC 753 Hearing dates: 3 June 2020 Decision date: 18 June 2020 Jurisdiction: Common Law Before: Hoeben CJ at CL Decision: (1) An order pursuant to s 5B and 9(1) of the CHRO Act, that the defendant be the subject of an Extended Supervision Order for a period of 3 years from the date of this Order. (2) An order that pursuant to s 11 of the CHRO Act, directing that the defendant for the period of the ESO comply with the conditions set out in Annexure "A" hereto. (3) An order that access to the 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 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 – application for further extended supervision order – preconditions under s 5B of the Act satisfied – diagnoses of personality disorder and various psychotic disorders – episodes of self-harming and hearing voices – breaches of existing ESO – offender posed a high risk of committing further serious offences involving violence – opinions placing the offender into the high risk category of violent offending – offender constituting unacceptable risk to the community – further ESO made – discussion of what conditions should form part of the ESO – some changes made to standard form conditions. Legislation Cited: Crimes Act 1900 (NSW) – s 29, s 97(1) Crimes (High Risk Offenders) Act 2006 (NSW) – ss 4A, 5A, 5B, 5D, 5I, 7, 9, 11 Mental Health Act 2007 (NSW) – s 19 Mental Health (Forensic Provisions) Act 1990 (NSW) – s 55 Cases Cited: State of New South Wales v Windle [2016] NSWSC 1816 State of New South Wales v Windle (No 2) [2017] NSWSC 94 State of New South Wales v Windle (No 3) [2017] NSWSC 727 State of New South Wales v Windle (No 4) [2017] NSWSC 1155 State of New South Wales v Windle (No 5) [2020] NSWSC 385 Category: Principal judgment Parties: State of New South Wales – Plaintiff Andrew Robert Windle – Defendant Representation: Counsel: C McGorey – Plaintiff E Kerkyasharian - Defendant Solicitors: Crown Solicitor – Plaintiff Legal Aid NSW – Defendant File Number(s): 2019/393106 Publication restriction: Non Publication Order JUDGMENT 1. HIS HONOUR: Nature of proceedings The State of NSW (plaintiff) applies for the making of an extended supervision order (ESO) for Andrew Robert Windle (defendant) under s 9 of the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act) for 5 years. Terminology 1. A glossary of technical terminology used in this judgment is at Annexure "B". Overview 1. The defendant is 30 years of age. 2. On 7 August 2008, he entered custody for the offences of damage property by fire/explosive with intent to injure (the explosive offence) and specially aggravated enter dwelling with intent to inflict grievous bodily harm (aggravated enter dwelling offence). The offences were committed on 9 September and 17 December 2007 respectively. 3. On 1 January 2011, while in custody, he committed the offence of attempted strangulation with intent to murder (Index offence) when he strangled an inmate. He was ultimately sentenced to 5 years 4 months imprisonment with a 4 year non-parole period (NPP). 4. On 14 December 2016, before the defendant's release, Johnson J made an Interim Supervision Order (ISO). 5. On 19 December 2016, the defendant was transferred to Long Bay Hospital (LBH) under the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act). 6. On 16 February 2017, Johnson J revoked the ISO and made an Interim Detention Order (IDO) to allow the defendant's mental health to stabilise before release. 7. On 26 May 2017, Johnson J made an 8 month Continuing Detention Order (CDO) and a 6 month ESO to commence at the expiration of the CDO. In making the orders his Honour intended to revoke the CDO once a bed became available in the Forensic Hospital. 8. On 29 August 2017, Johnson J amended the CDO providing for its revocation as at 9am on 11 September 2017 in expectation that a bed in the Forensic Hospital would be available by that time. 9. On 11 September 2017, the defendant was admitted to the Forensic Hospital. The ESO did not operate during his admission to the Forensic Hospital owing to the defendant's involuntary detention under the Mental Health Act 2007 (NSW). 10. On 11 September 2019, the defendant was released from the Forensic Hospital subject to a Community Treatment Order (CTO). He resided at Smith's Hall, Rozelle receiving daily support under a NDIS. plan and mental health treatment, initially from the Marrickville Community Mental Health Team (CMHT) and then the Camperdown CMHT. 11. On 24 November 2019, the defendant was arrested and charged with two contraventions of his ESO. He was found in Sutherland intoxicated. The charges concerned him deviating from his approved schedule of movements and his unauthorised consumption of alcohol. 12. On 13 December 2019, the plaintiff filed its current summons seeking the making of an ESO and related orders. 13. On 8 January 2020, the defendant was sentenced by Sutherland Local Court for the two counts of contravening an ESO to 9 months imprisonment, with a 3 month NPP, commencing 24 November 2019. 14. On 23 February 2020, the defendant was released to parole. He resumed residence at Smith's Hall Rozelle. 15. On 2 April 2020, Hamill J ordered the appointment of two qualified psychiatrists to conduct separate psychiatric examinations and to furnish reports to the Court. An interim order was not made as the defendant continued to be subject to the ESO. 16. On 4 May 2020, the defendant was arrested and charged with two contraventions of his ESO after being found intoxicated. The charges concerned him deviating from his approved schedule of movements and unauthorised use of alcohol. The defendant entered pleas of guilty and was remanded in custody pending sentence on 15 June 2020. The defendant's ESO, which has under two months remaining, is suspended while he is in custody. 17. On 1 June 2020, the defendant applied for release from custody and that application was successful. At the time of the release application, the defendant was an inmate of the MRRC Clinic. This was because he had engaged in self-mutilation and was hearing voices. Later that day, he was taken by ambulance from the MRRC to the Cumberland Hospital where after examination, he was scheduled and made a patient in the Mental Health Ward. That was his status when the ESO application was heard on 3 June 2020. Evidence 1. The plaintiff relies on the following evidence: 1. affidavit of Jessica Murty, affirmed 13 December 2019 (Exh JM-1); 2. affidavit of Jessica Murty, affirmed 20 February 2020, (Exh JM-2); 3. affidavit of Jessica Murty, affirmed 6 May 2020, (Exh JM-3 and JM-4); 4. affidavit of Kelli Grabham, affirmed 6 May 2020; and 5. affidavit of Angela Rybak, affirmed 22 April 2020. Preconditions 1. The Court may make an ESO against the defendant if it is satisfied that the preconditions in s 5B (CHRO Act) have been made out. 2. First, the defendant an "offender" as defined in s 4A. This is satisfied as he is over 18 and has served a sentence of fulltime imprisonment following his conviction for a "serious violence offence", namely the attempted suffocation or strangulation with intent to commit murder committed on 1 January 2011 contrary to s 29 of the Crimes Act 1900 (NSW). That offence is of the same kind as that in s 5A(1)(a) of the CHRO Act for the purposes of the definition of "serious violence offence." 3. Second, he is a "supervised offender" (s 5I) which is satisfied because the summons was filed before the expiration of his ESO. The definition of supervised offender includes an offender under the supervision of an existing ESO when the application was made: s 5I(2)(b). The Summons was filed on 13 December 2019. 4. Third, s 5I is satisfied if the Court is satisfied as to the second precondition. 5. Fourth, the Court needs to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if an ESO is not made (the unacceptable risk precondition): s 5B(d). 6. The Court is not mandated to consider the matters in s 9(3) when determining the unacceptable risk precondition but these matters may inform that determination. The Court need not find the defendant is more likely than not to commit a serious offence to satisfy the unacceptable risk precondition: s 5D. The defendant may pose an unacceptable risk even if the likelihood of him committing a further serious offence is low if the likely consequences of that risk eventuating is grave. Evaluation 1. Determining the unacceptable risk precondition, and the manner in which the discretion is to be exercised, involves an evaluative judgment. The impact of an order on the defendant's liberty may be considered at the discretionary phase but not at the unacceptable risk phase. The safety of the community is the paramount consideration: s 9(2). 2. The expression "high degree of probability" in s 5B(d) means the Court must be satisfied of the existence of a relevant risk to a higher degree than would be the case if the normal civil standard of proof applied, although not to the criminal standard of beyond reasonable doubt. The "high degree of probability" does not relate to the existence of the risk or the likelihood of its manifestation, but to whether the offender poses such an unacceptable risk. Further background 1. The defendant is single with no children or dependents. 2. He is the eldest of eight siblings including half-siblings. He lived with his grandmother and grandfather until he was 10 years old. He then lived with his mother between the ages of 10 and 13 years when he was exposed to and suffered violence inflicted by his mother's partner. He lived an "itinerant lifestyle" from about 14 years of age moving between refuges and living on the street, in juvenile detention and in his aunt's house. 3. The defendant commenced alcohol and heavy cannabis use at about age 13. He commenced use of amphetamines and ecstasy by age 17. He committed offences while intoxicated to secure money to purchase drugs. He took non-prescribed Buprenorphine and OxyContin in custody and developed a dependence on opiate drugs (resulting in his participation for a time in the Methadone Program). He also abused methylamphetamines, occasionally in custody (e.g. 2014 to 2015). 4. The defendant has spent limited time in the community since reaching adulthood, being in prison or involuntary detention between 7 August 2008 to 11 September 2019, 24 November 2019 to 23 February 2020 and now ongoing since 4 May 2020. Key events 1. A chronology of key events is summarised: Section 9(3) Considerations The defendant's criminal history, pattern of offending behaviour and the view of the sentencing court Juvenile offending 1. Between 2004 and 2007, the defendant was sentenced by the Children's Court and the Youth Drug Court on numerous occasions for property offences (break and enter, larceny, etc), custody of an offensive implement in a public place, common assault, and assaulting an officer in the execution of duty. This included the following matters. 2. On 17 April 2005, the defendant was at the Campbelltown Railway Station concourse. A security officer questioned what he was doing. He approached the officer with a broken bottle and threw it at him (grazing the victim's leg but causing no injury). He later waved a one metre stick towards the victim at a distance of about 10 metres (common assault). 3. On 6 May 2005, the defendant punched a female security officer in Big W, Campbelltown (struck the victim's bag pushing it onto her chest) pushing her backwards. He did so after the victim asked him to leave when he was witnessed attempting to steal DVDs (using a screwdriver to remove the security tags). He was arrested soon after. While being detained, he said to the victim he would return and burn the store down and "fix her" (common assault). 4. On 11 May 2005, the defendant was approached at Liverpool train station by two Transit Officers and asked to present his ticket. The officers restrained him when he attempted to walk away. He got free and punched one victim above his right eye and the other to his cheek area (two common assaults). 5. On 2 June 2005, the defendant was within the Macarthur Shopping Centre despite being subject to a ban on being there. He was told by a security officer he was banned. The defendant pulled out a medium sized screwdriver from his pocket and motioned with it towards the officer (from about 10 to 20cm away). He was restrained by another officer and disarmed (common assault). 6. On 14 June 2005, the defendant was apprehended shoplifting at Target, Liverpool. As he was being taken to the police van, the defendant tried to pull away and punched the female police officer to her right cheek area (assault officer in execution of duty). 7. On 2 September 2006, the defendant was being transported from the Lidcombe Bail Court to Cobham Juvenile Justice Centre. Whilst the bus was in the car park of the Centre, the defendant used a cigarette lighter to set fire to a juice bottle causing a seat belt to burn. Staff extinguished the fire using extinguishers (damage property by fire). Armed robbery committed 23 Jan 2007 (as juvenile) 1. On 23 January 2007, the defendant committed a robbery whilst armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 (NSW). The defendant and his uncle went into a video store. The defendant pulled out a black handled knife (13cm blade), forcefully grabbed the victim and held the knife to the victim's rib area and threatened to "stab ya" if he did not comply with a demand for money and his car keys. The defendant and his co-offender fled the scene with about $500 in cash. Damage property by fire/explosive with intention to injure committed 9 Sep 2007 (as juvenile) 1. On 9 September 2007, the defendant committed the offence of damage property by fire/explosive with intention to injure. The defendant and the victim were long-term childhood friends. The defendant was staying with the victim and his family. 2. On 9 September 2007, the defendant sent the victim text messages asking the victim to take him to buy tickets to a "rave". He sent abusive messages when the victim did not reply. At one point, the victim replied, "if you keep being a dick you can get your shit and piss off". The defendant then responded stating, "if you keep acting the way you are I will" and "do it bro and your house will burn to the ground cunt". 3. Soon after a resident in the home heard a loud bang and saw a "ball of flames" coming from the balcony area situated at the front of the premises. The whole of the front balcony became engulfed with flames. She and her husband extinguished the fire after seeing the defendant running away from the scene. 4. The defendant later admitted having drunk Wild Turkey spirit (4 mix cans), going to a "servo" and buying a jerry can which he filled up (with petrol). He walked to the house, lit a cloth so it would burst into flames, and threw it at the house and ran. He knew there were people inside. He had hoped to "burn the house down ... it's just how I felt and they're pieces of shit to me, in my mind anyway so I thought, fuck 'em and burn the house down". Asked if he hoped anyone would be harmed, or if he just wanted the house burned down, he replied "Maybe both". Specially aggravated enter dwelling with intent to inflict GBH committed 17 Dec 2007 1. On 17 December 2007, the defendant, while on parole, committed the offence of specially aggravated enter dwelling with intention to inflict grievous bodily harm (GBH). 2. At about 1am on 17 December 2007, the male adult victim was sleeping on a couch in the lounge room. His wife and one year old baby were asleep in another room. He awoke to see the defendant standing next to the couch. The defendant pushed down on the victim's hands and chest whilst holding a kitchen knife (about 8 inches long) in his other hand. The knife had been sourced from inside the unit. The defendant demanded money and keys. 3. A struggled ensued. The victim's partner awoke and entered the lounge room. She became very fearful. The victim ultimately disarmed the defendant by gripping the knife's blade (causing superficial lacerations). The defendant fled the scene. He later reported committing the offence (to Dr Furst) to obtain money to purchase drugs. 4. Dr Furst had diagnosed him as suffering a mood disorder with depressive symptoms, mood swings, social isolation and thoughts of self-harm. He had a dependence on stimulants such as amphetamines and ecstasy for which he had developed a tolerance. 5. He was sentenced on 14 August 2009 to 4 years imprisonment commencing 30 April 2009 (concluding 29 March 2013) with an 18 month NPP. Attempt to strangle with intent to murder committed 1 January 2011 1. On 1 January 2011, whilst serving his sentence for the aggravated entry offence, the defendant committed the offence of attempt to strangle with intent to murder on another inmate. 2. The defendant and the 39 year old male victim were inmates at Long Bay CC. Both were in the shower area and had an unremarkable conversation. When the victim turned his back, the defendant put a sock around the victim's neck and pulled it so tight that the victim could not pull it away or breathe. The victim fell unconscious onto the floor. He later regained consciousness and called for help from another inmate. 3. The defendant on a later occasion told the victim he did not know why he did what he did and told an officer he "just had to do it" and had stopped because he thought the victim was dead (having continued to strangle him on the ground). During assessment, he denied to Dr Furst hearing voices before the offence but reported having an intrusive thought of wanting to "strangle this bloke". 4. Dr Furst opined: 1. the defendant had limited intellect, poor coping skills and an inability to self regulate his emotional state; 2. his depressive symptoms were consistent with a Borderline Personality Disorder and Antisocial Personality Disorder; 3. he was at a substantially higher risk of developing a major mental illness (schizophrenia or bipolar disorder); 4. the offending appeared to be the product of an irresistible impulse to kill the victim for no obvious reason other than his disturbed and grossly dysfunctional thinking. There was a compulsive quality to his actions and a lack of affective disturbance with apparent indifference to his actions; 5. the defendant had been treated with anti depressant medication and antipsychotic medication since 2009. He had not been psychotic at the time of the offence although there may have been brief psychotic episodes during his imprisonment. 1. In Dr Furst's view, the defendant posed a risk to other inmates and people in the wider community and to himself. His prognosis was not good, particularly given his inability to abstain from amphetamine use when in the community. 2. In a subsequent psychiatric report prepared by Dr Gordon Elliot on 13 May 2016, Dr Elliot set out what the defendant said about the Index Offence: The victim had been "treating me like an idiot, running me down over about a week so. I kept quiet about it. He was going into the shower and I got this thought 'go and strangle him' ..." 3. Following a plea of guilty, for which he received an 'Ellis' discount, the defendant was sentenced by the Court of Criminal Appeal to 5 years and 4 months imprisonment, with a 4 year NPP, commencing 29 October 2011. Contravention of ESO on 24 November 2019 1. On 24 November 2019, the defendant was arrested and charged with two contraventions of the ESO. The defendant attended the Art Gallery of NSW with his NDIS support worker. About midday, the defendant left to return home (alone) to Smiths Hall (Rozelle). The defendant made his way to Central Station and took a train to Sutherland (contrary to his approved movements). The defendant was found at 3.45pm on a park bench. He had vomited on himself. Numerous cans of alcohol were located nearby. The defendant later said he drank a bottle of port and two cans of vodka. Contravention of ESO on 2 May 2020 1. On 4 May 2020, the defendant was arrested and charged with two contraventions of the ESO committed 2 May 2020. The defendant left Smiths Hall at about 3.30pm without approval and went to Glebe Street, Glebe. He did not answer his phone when numerous calls were made by the electronic monitoring team and Corrections Officers. Police located him in Glebe at 5pm "collapsed". He was unresponsive but vomiting. He was taken to RPA and given an injection to supress his vomiting (suspected excessive alcohol consumption). The defendant reported he drank most of a full bottle of Vodka "straight". Treatment or rehabilitation programs that the defendant has had an opportunity to participate in and his willingness and level of participation in such program Violent Offenders Therapeutic Program (VOTP) Treatment report 03.12.15 1. The defendant participated in the VOTP between 13 October 2014 and 2 November 2015. Throughout he demonstrated greater impulse control and consequential thinking. He identified strategies to use in times of emotional distress, identified cognitive distortions related to his violent offending and determined realistic alternative ways of thinking to reduce his risk of violent reactions. However, in Mr Ardasinski's opinion, the 2017-2019 treatment records show the defendant still holds "quite entrenched attitudes towards the use of violence" and indicated that his work in the VOTP had not consolidated thereafter (SRAR). Mental health and other treatment/support 1. The chronology above summarises the defendant's admissions to Long Bay Hospital and the Forensic Hospital in 2017 for mental health treatment. His admission to the latter occurred when he was assessed to have a psychotic illness requiring assertive treatment. He has continued treatment through the CMHT while in the community. 2. During his teens, the defendant was diverted to the Youth Drug Court Programme in 2005 and attended the Ted Noffs "Palms" program in Randwick but did not remain abstinent. The defendant participated in the methadone program while in custody which he ceased in December 2017. He reported engaging in some alcohol and other drug interventions while admitted to the Forensic Hospital (2017-2019). The reports received from the persons appointed pursuant to s 7(4) to conduct examinations of the defendant and the defendant's level of participation in any such examination Dr Samuels' report dated 24 April 2020 1. Dr Samuels assessed the defendant on 22 April 2020. He previously assessed the defendant and prepared reports for the proceedings before Johnson J. His conclusions were as follows. The paragraph references are to his report of that date. 2. The defendant was medicated with Olanzapine 405mg twice weekly, Sertraline 150mg, Metformin twice a day, thyroxine in the morning and Olanzapine 20mg at night ([16]). He saw Dr Kerri Eagle every four to six weeks and a psychologist, Mandy Lowe, weekly. He was not attending groups. He also saw his DSO on a weekly basis ([17]). 3. The defendant reported feeling good (22 April 2020). He was accepting things more easily and not stressing. He was not self-harming. His voices were under control soon after release. He denied having a desire to drink alcohol or to use drugs. He had no angry or violent thoughts and was thinking clearly. He presented to Dr Samuels as "quite stable". 4. In Dr Samuels' opinion, the defendant suffered chronic paranoid schizophrenia with prominent command auditory hallucinations, in addition to a severe personality disorder with antisocial and borderline features. He had some psychopathic personality traits characterised by a lack of emotionality and callousness. He also met the criteria for polysubstance use disorder ([325]). 5. Although some of his behaviours were motivated by psychotic phenomena, Dr Samuels found that he had significant dysfunctional personality traits. He had had thoughts in the past about killing people, cannibalisation and acts of violence. His most serious violent offence occurred when he was in custody. The combination of his psychotic illness and personality disorder added cumulatively to the risk of him behaving violently. 6. The defendant's risk was increased by the use of substances, when he was depressed, suffering command hallucinations and facing threat, rejection, feeling demeaned or controlled by others. While in the highly secure and structured environment of the Forensic Hospital, he continued to have violent thoughts towards others but was able to contain those (although he engaged in self harm acts in response to auditory hallucinations) ([329]). 7. Dr Samuels opined that if he found himself in a position where he felt coerced, put down, rejected, very lonely or isolated, it was possible that a resurgence of violent or aggressive fantasies and thoughts of self-harm could recur. The use of substances would increase his likelihood of acting on these thoughts and feelings ([330]). 8. Dr Samuels considered the defendant's risk of future violence remained high, his risk of imminent violence moderate and the potential for serious physical harm high ([337]). He fell into a group of offenders who were at high risk of committing a further violent offence ([339]). 9. The current conditions reduced the defendant's risk of reoffending. He appeared to be functioning as well as could be expected in the community and the current conditions and supports would, hopefully, assist him to remain abstinent from substances. His risk of violence and aggression could be monitored and reduced ([342]). 10. Dr Samuels thought it would be difficult for the CMHT to adequately manage the defendant without other resources. They had limited resources to enforce treatment, particularly depot medication. If the defendant was decompensating they did not have the staff required to provide assertive outreach, oversight and monitoring. The resources of the team implementing his ESO, input from forensic psychology, the prohibition on substance misuse and the monitoring of his whereabouts were all factors that did reduce his risk of committing a serious offence. 11. Dr Samuels concluded that the conditions which would be part of an ESO, such as electronic monitoring, scheduling and those pertaining to alcohol and illicit substance use were appropriate if not "absolutely sentinel". If the defendant began using alcohol or illicit substances on a regular basis, it would undermine his mental health stability and increase his risk for violence. If an order were made, a duration of 3 years is appropriate. Dr Richard Furst's report dated 1 May 2020 1. Dr Furst prepared reports for the defendant in relation to his criminal proceedings in 2009 and 2011. He assessed the defendant on 14 April 2020. 2. During assessment on 14 April 2020, the defendant stated that he had homicidal thoughts at the time of the Index Offence and subsequently became fixated on "killing homeless people" and had "cannibalistic thoughts" when he ate a piece of his own nipple. He stated these thoughts were present for two to three months at a time and then stopped. 3. During the assessment, the defendant denied any thoughts of self-harm, suicide, or thoughts of harming others. There were no signs of formal thought disorder or psychosis. In Dr Furst's view the defendant presented as a man with limited intellect, poor coping skills and few goals for the future. He was very impulsive and seemed to have little capacity to weigh up the consequences of his actions or control his actions. He had only limited insight into the extent of his drug and alcohol consumption and emotional problems. 4. While cooperative during assessment, the defendant presented with a lack of emotional warmth and detachment from the subject matter discussed. He described feeling isolated and bored, but denied feeling depressed and did not look depressed at the time of recent assessment. He denied any current voices. He denied any current homicidal or suicidal ideation. He denied having cannibalistic thoughts. 5. Dr Furst noted the psychiatric report of Dr Gordon Elliot (13.5.16), especially Dr Elliot's opinion that there was no evidence of a psychotic disorder up until 2013 with a diagnostic focus on the defendant's severe personality disorder and substance abuse issues. Dr Elliot was not convinced by the psychotic diagnosis. He considered the defendant presented with a severe mixed personality disorder with borderline and antisocial features coupled with a pattern of entrenched and severe maladaptive behaviours in response to stress. Dr Elliott also considered the defendant's severe maladaptive behaviours would be resistant to both psychological and pharmacological intervention/treatment. 6. Dr Furst concluded that the defendant met the criteria for borderline personality disorder, antisocial personality disorder and substance use disorder. These disorders were characterised by marked impulsivity, mood-swings, angry outbursts, and strong urges to harm himself and others. Self-harming (especially when stressed) was a maladaptive means of coping under stress. He had a history of harming others, most notably cutting the leg of his cellmate at Junee whilst his cellmate was sleeping and strangling a fellow inmate (1 January 2011). Dr Furst thought that his severe personality disorder likely stems from his childhood experiences of trauma, abuse and neglect, particularly that inflicted by his stepfather. Although the defendant reported the onset of psychotic symptoms in 2016, Dr Furst was of the opinion that the defendant: "... was not actually experiencing true auditory hallucinations, as his descriptions of purported 'voices' and the names he attached to them have been somewhat 'formulaic' and lack the character of hallucinations generally seen in people manifesting psychotic symptoms and signs in schizophrenia. Furthermore, [the defendant] has not demonstrated any other convincing or enduring psychotic symptoms or signs, such as thought disorder, bizarre delusions or persistent paranoid delusions. Therefore, I am of the opinion he does not meet the criteria for the diagnosis of schizophrenia." (Report p19) 1. Dr Furst went on to find that the defendant clearly posed a high risk of committing further serious offences on the basis that: "A review of the available history, previous observations of [the defendant] by myself in 2009 and 2011 and the nature of his previous offending indicates his personality disorder is on the more severe, if not extreme, end of the spectrum, both in relation to his self-harming and violent tendencies. He has 'cannibalised' his own nipples, cut parts of his ears off, cut his penis open, cut the leg of a fellow inmate whilst that inmate was asleep and almost killed a fellow inmate at the ACMU on 01/01/11, in one of the most highly monitored units in NSW, for reasons that remain unclear. He also states he had thoughts of 'killing homeless people' around that time, also for no apparent logical reason, pointing towards sadistic tendencies. [The defendant] is also impulsive, finding it hard to resist his own dysfunctional thoughts, and gives no warning to others of his impending dangerous acts, meaning standard clinical enquiries/reviews, such as would be part of regular case management, will likely do little to identify emerging risks of harm to others." (Report p20) 1. His risk factors were unlikely to materially change as they were principally the product of his severe personality disorder, associated dysfunctional thinking and his pattern of maladaptive coping. His risk would increase at times of dislocation, rejection or other stresses such as the loss of accommodation, perceived or real rejection from social supports, family, health services and correctional services. Alcohol intoxication or illicit substance abuse was likely to lead to an acute increase in risk. 2. Dr Furst surmised that the view could be reasonably taken, at some future point, that the defendant did not have a schizophrenic illness and therefore did not require ongoing CTO management. 3. Case management and psychiatric treatment under the CTO would assist to ensure he received assertive psychiatric follow up and was compliant with medication. However: "Unfortunately, such treatment measures are unlikely to change/modulate much in relation to the risks [the defendant] poses to himself and other people, as I do not believe he meets criteria for the diagnosis of schizophrenia and even if he does have schizophrenia, a review of his previous offending behaviour, including his most serious/index offence at the ACMU on 01/01/11, demonstrates that his previous episodes of harming other people in the community and in custody have not been driven by psychotic stimuli such as hallucinations or delusions. Therefore, broader measures are required to supervise, guide and treat [the defendant] over the longer term than beyond conventional psychiatric case management, which largely focuses on the assertive provision of antipsychotic medication and supportive appointments." (Report p22) 1. Dr Furst concluded that the schedule of conditions sought in the Summons appeared to adequately address the defendant's clinical and risk management needs. They were appropriate. Conditions in relation to drugs and alcohol were especially warranted given his history of substance dependence. 2. If an order was made Dr Furst supported a five year duration given that the defendant's risks are unlikely to change in the foreseeable future largely due to his severe personality disorder and exacerbated by the prospect of future substance abuse. 3. Dr Furst concluded: "I have previously opined that [the defendant's] offending behaviour in January 2011 was likely the product of an irresistible impulse to kill the victim in question for no apparent logical reason, apart from his own disturbed and grossly dysfunctional thinking. There was also a compulsive quality to his actions, a lack of affective disturbance at the time, and an apparent indifference to his actions in the period immediately after the alleged offence. He has subsequently revealed to me that he had thoughts of killing homeless people around that time, also for no logical reason. In my opinion, those clinical features remain of great concern in relation to the risks he poses to other people in the community and/or other prisoners in the criminal justice system, should [the defendant] be re-incarcerated." (Report p25) Qualified expert assessment as to the likelihood of the defendant committing a further serious offence, the willingness of the defendant to participate in any such assessment, and the level of the defendant's participation in any such assessment Dr Richard Furst psychiatric reports dated 1 July 2009 and 8 May 2011 1. Dr Furst's opinions as to the defendant's mental state at the time of the offending are summarised above (for the Index Offence). Initial Personality and Behavioural Disorder Unit (PBDU) Report by Nicole Ahern (supervised by Naomi Prince) dated 19 June 2013 1. During the interview the defendant reported confusion about why people were concerned about his self-harming behaviour. He felt no guilt about the Index Offence or his other acts of violence towards other inmates. In the opinion of the PBDU he presented with a complex history of self-injurious and assaultive behaviour which had been present since adolescence, along with a significant history of substance abuse in the community and in a correctional setting. 2. The PBDU considered the defendant to be at significant risk of complex and unusual self-harm. He had a lengthy history of misconduct dating from juvenile detention, including engagement in low level to serious and severe violence towards staff and other inmates. His acts of violence were typically precipitated by interpersonal and internal emotional and cognitive factors. His violent and aggressive behaviour was closely linked to his perception of mistreatment and rejection. He presented with limited awareness of his emotional and cognitive triggers. It was noted that he was capable of presenting with superficial engagement which might limit therapeutic staffs' ability to accurately identify achievements in treatment. He had expressed unwillingness to engage in programmes of any form. Dr Gordon Elliot psychiatric report dated 16 May 2016 1. Dr Gordon Elliot was 'unconvinced' by the defendant's claims of hearing voices and preferred a diagnosis of 'severe mixed personality disorder of borderline and antisocial features' (with entrenched and severe maladaptive behaviours in response to stress) similar to that of a psychotic disorder. Risk Assessment Report by Samuel Ardasinski dated 3 October 2016 1. Mr Ardasinski's views are summarised in Johnson J's decision in State of New South Wales v Windle [2016] NSWSC 1816 at [49]-[57], including Mr Ardasinski's opinion that "one of the most concerning risk issues was that some of [the defendant's] recent violence in custody had involved spontaneous thoughts to harm others, with little warning or justification for the type of violence enacted". Mr Ardasinski had assessed the defendant, using the Violence Risk Appraisal Guide - Revised (VRAG-G) and the Violence Risk Scale (VRS) to be at a high risk of violent reoffending. Dr Samuels report 6 January 2017 and Dr Jonathan Adams report dated 15 February 2017 and their supplementary reports dated 16 and 20 March 2017 respectively 1. Johnson J summarised these reports in State of NSW v Windle (No 3) [2017] NSWSC 727 as follows. 2. Dr Samuels considered it a 'very strong possibility' that the defendant suffered paranoid schizophrenia. He was at a higher risk of committing a further violent offence given his static and dynamic risk factors and his lack of protective factors. He was at too high a risk to be released into the community at that time. 3. Dr Adams diagnosed the defendant with a borderline personality disorder and antisocial personality disorder. Dr Adams was more cautious about a diagnosis of psychotic illness but could not exclude it as a possibility. The defendant manifested a significant loading of historical, clinical and future risk management factors and would continue to be at risk of further serious violent offences in the longer term unless his risk management issues were appropriately addressed. The defendant could not be appropriately managed in the community under a CTO. Supplementary RAR by Samuel Ardasinski dated 24 July 2019 1. Mr Ardasinski assessed that there had been little change to the defendant's risk of violent recidivism or his predisposition to reactive unprovoked violence. His lengthy history of violence commenced in his adolescence and continued relatively unabated until the commission of the Index Offence in 2011 and continued beyond that time. 2. The defendant reported that his auditory hallucinations commenced in 2015, four years after the commission of the Index Offence. A clear causal nexus between his diagnosis of psychiatric illness and repeat serious violence was tenuous. Although his risk at the time of the Index Offence was increased by the onset of psychiatric symptomatology, he was already a high risk to begin with. 3. The records of the defendant's sessions in the Forensic Hospital (September 2018-March 2019) showed that he continued to harbour antisocial attitudes. The treatment records (11.09.17 to 25.03.19) indicated some progress but also ongoing difficulties within the high-security hospital setting. 4. During treatment, the defendant reported instances where his auditory command hallucinations increased in their intensity so that he refused medications and sometimes engaged in self-harm ('head-banging'). He reported several times that his auditory hallucinations commenced in 2015. He had never reported hearing voices tell him to commit the Index Offence in 2011. 5. During treatment (up to 25.03.19) the defendant's stability oscillated. Mr Ardasinski considered the view expressed in his prior report (written before the defendant's admission to the Forensic Hospital) remained valid: "... regardless of any ultimate diagnosis (it remains entirely possible that [the defendant] experiences both a psychotic illness and a personality disorder), [the defendant's] behavioural difficulties, which have been observed and managed in custody, are likely to impact on his future trajectory for violent and other offending. Whether one refers to [the defendant's] difficulties as mental health - or personality disorder-related, the effect is the same - he has difficulties relating to others and tends to self-isolate, he has bizarre thoughts, including thoughts to harm himself and others (and a tendency to ruminate on them), he reacts spontaneously (and at times very aggressively) when he perceives a threat, and he has a poor level of stress tolerance with reactions to stressful situations being out of proportion with the original stressor." 1. Those opinions make it clear that the defendant falls "squarely" into the high risk category of violent offending relative to other adult male violent offenders. He displayed limited insight into his risk issues, notwithstanding the completion of high-intensity treatment in 2015 and nearly two years of inpatient psychiatric treatment since late 2017. 2. The defendant decompensated and destabilised rapidly within his secure hospital setting when decisions were made that he disagreed with. The risk remained that he would commit serious harm to himself or others about whom he formed a negative view. 3. Given his poor stress coping within the relatively supportive and contained environment of the Forensic Hospital, he was likely to live in the community without due regard for his risk factors for violence. If he formed a hostile view towards his ESO team, and experienced thoughts or hallucinations telling him to harm them, there would be fewer disincentives or inhibitors to manage those and avoid violence. That would be similarly so against house mates in a shared accommodation setting (e.g. a boarding house). 4. The defendant has medicated himself with benzodiazepines and antipsychotics at times of increased stress. This indicated his potential risk of returning to drug and alcohol misuse in the community (in times of stress). Further supplementary RAR by Samuel Ardasinski dated 23 March 2020 1. Mr Ardasinski noted particular reports of the defendant concerning his auditory hallucinations while subject to an ESO. These included (1) a voice telling him not to tell anyone about hearing her and instructing him to pretend he was getting better and to intentionally report information that would support that (this was one of the voices that told him to run away and purchase alcohol on 24 November 2019) and (2) his anger at the government and what he believed were its attempt to control him. Mr Ardasinski's earlier expressed views about the defendant's risk of violent reoffending remained unchanged. A further period of ESO supervision of about 3 years was necessary for the protection of the community. In conclusion Mr Ardasinski opined at [25]: "Without the support and supervision provided by the Department, [the defendant] would not have sufficient oversight to ensure his mental health remains stable and a new violent offence could eventuate from a constellation of risk issues combining at the one time in the community, inducing stress. As stated in my 2019 report, even with the powers of a CTO to mandate psychiatric treatment, there are other significant risk factors which may be unchecked (such as illicit drug use) if he is not subject to supervision. As has been noted in my initial report (for instance, at paragraphs 17, 39a and 41), as well as elsewhere (e.g. 'MH SLHD Community Current Assessment' - 'Final Report', dated 17/7/2019: "History of violent offences supporting diagnosis for antisocial and borderline personality disorder, that predates development of psychotic symptoms"), [the defendant's] psychotic illness developed subsequent to his lengthy history of violence, while in custody. Managing his mental health cannot be said to be sufficient to manage his risk for violence..." The results of any statistical or other assessment 1. In the initial PBDU Report, dated 19 June 2013, completed by Nicole Ahern (supervised by Naomi Prince), using the VRS, the defendant's risk of violent reoffending was assessed to be within the high range. 2. On 8 April 2019, Dr Soon completed a risk assessment using the Historical Clinical Risk – 20 Scale (HCR-20) judgment instrument. The defendant was rated as a moderate risk of future violence. Regarding dynamic risk factors, Dr Soon concluded that the defendant: "... demonstrates superficial insight about his diagnosis, he has not expressed any recent violent ideation or intent, he is presently not experiencing any positive symptoms of major mental illness. There has been no recent evidence of significant instability in cognition, affect or behaviour and no self-harm, and he has been cooperative with treatment." 1. In Mr Ardasinski's opinion, Dr Soon underestimated the defendant's risk and failed to take adequate account of the "high loading of static risk factors that predispose [the defendant] to future episodes of violence" and the defendant's long history of violence before he became mentally ill. Dr Samuels appears to concur with Mr Ardasinski's views in this respect. Likelihood the Defendant will comply with an extended supervision order and his level of compliance whilst subject to release on parole 1. The defendant has previously offended while on release to parole. 2. Dr Samuels and Dr Furst considered the conditions which have been sought by the plaintiff to be appropriate. Mr Ardasinski expressed concerns about the defendant's capacity to comply with numerous conditions under an ESO. He thought that his stress had the potential to destabilise him. An approach which was collaborative, supportive and not punitive had the best chances of success. 3. Since his release from the Forensic Hospital on 11 September 2019, the defendant had only been breached for two incidents owing to his unauthorised movements and consumption of alcohol. The concern over his consumption of alcohol, which involved binge drinking, was reasonable given the experts' opinion as to the risk this poses. The defendant has otherwise complied with the requirements of the ESO. Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community 1. A Risk Management Report (RMR), dated 16 August 2019, set out the strategies for supervision under an ESO. The affidavit of Kelli Grabham, affirmed 6 May 2020, addressed the defendant's current supervisions and supports. 2. Prior to returning to custody on 4 May 2020, the defendant received support from: 1. Camperdown CMHT, particularly from its Mobile Assertive Treatment Team (MATT) consisting of Dr Kerri Eagle (consultant psychiatrist) and Sunny Ho (Social Worker). The defendant is currently subject to a 6 month CTO that is due to expire on 6 September 2020. The defendant meets with the CMHT on a fortnightly basis for reviews. The MATT team can attend his residence to assist if he is experiencing an acute episode (as occurred on 24 April 2020). 2. Corrective Services NSW psychology: providing fortnightly sessions with the defendant focusing on individual risk management. 3. NDIS support coordinator (currently Allcalm) and an NDIS funded Behavioural Supports Therapist. The therapist provides 20 hours specialist behaviour intervention support and 20 hours behaviour management a week. 4. The ESO team: operating 7 days a week. The defendant is able to contact an ESO team officer generally between 8am and 10pm, otherwise he can contact the Electrical and External Monitoring Group (EEMG) which is staffed 24 hours a day 7 days a week. 5. Smith's Hall Guesthouse (licensed boarding home). 1. Monthly case conferences are held at which representatives from these organisations discuss the defendant's care and supervision. Frequent contact also occurs outside these meetings. 2. The ESO team supervision includes: 1. Weekly face to face interviews by supervising Community Corrections officers at a Community Corrections office, the defendant's place of residence or via field visits. 2. Scheduled and unannounced home visits, field visits and surveillance. 3. The ESO team making third party contacts including with his psychologist (if any), employer, the EEMG, ESO Investigation Team (ESOIT), Corrective Services NSW Intelligence Group and police. 4. Requiring the defendant to submit a schedule of movements for approval and imposing exclusion zones. He is only approved to engage in pro-social activities and has to adhere to his approved schedule. Electronic monitoring and weekly schedules are also utilised (if authorised by the conditions imposed) to assist the ESO team gauge his attitudes and ameliorate the risk of him engaging in high-risk situations or unsuitable activities. 5. Referral to therapeutic services as required. 6. Alcohol and other drug testing. 7. Directions as to non-association and place restrictions. Options (if any) available if the defendant 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 1. The Mental Health Act 2007 (NSW) (MH Act) provides a statutory regime to treat non-compliant patients in the community. The involvement of the Camperdown CMHT is an important limb of the supervision and support the defendant received (until 4 May 2020). It has specific powers under the six month CTO to compel treatment. The defendant also receives support through the NDIS. 2. However, the defendant's risks and needs cannot be acceptably addressed solely by the Camperdown CMHT and NDIS. The involvement of the ESO team in wrap around services is fundamental. In the view of Dr Adams, Mr Ardasinski, Dr Furst and Dr Samuels, the defendant's risks and needs could not be acceptably managed in the community by the Camperdown CMHT (or under a CTO) on its own. 3. There are limits to what the Camperdown CMHT can compel the defendant to do and in their capacity to provide intensive supervision of the kind provided by the ESO team. Without being exhaustive that includes: 1. The ESO team is able to direct the defendant to reside at approved residences (which the Camperdown CMHT cannot). 2. The ESO team is able to monitor and approve his movements. This is to assist him to develop pro-social routines and minimise the risk of him misusing alcohol or illicit substances. 3. The ESO team is resourced and able to monitor his movements through regular contact with the NDIS support worker, the Smith's Hall operator, the defendant himself (if he answers his phone) and through electronic monitoring (which has enabled his real time location to be quickly ascertained on the occasions he has binged on alcohol). 4. The ESO team is able to attend on the defendant wherever he is (whereas the Camperdown CMHT cannot or has limited capacity to attend on the defendant if he travels outside its area of responsibility). Evaluation 1. The defendant presents with complex mental health diagnoses and needs. 2. There appears general consensus that he meets the criteria for personality disorders with antisocial and borderline features. These present as entrenched, severe in impact on his functioning and predate the onset of his reported psychotic symptoms. 3. A difference of view arises regarding whether the defendant suffers schizophrenia. 4. While in the Forensic Hospital, and while subject to the treatment of the Camperdown CMHT, the defendant has been treated on the basis of a diagnosis of a severe psychotic disorder (schizophrenia). He has been treated for that psychotic disorder through antipsychotic pharmacological treatment. 5. Dr Furst, whose dealings with the defendant date back more than 10 years, and who assessed him both before and after the Index Offence was committed, does not agree with the schizophrenia diagnosis. His view is consistent with that expressed by Dr Elliot and to a lesser extent that of Dr Adams. 6. The difference in these views could impact the future likelihood of CTO being made and the availability of powers under the MH Act. Irrespective of that, even assuming the defendant does have a psychotic illness, and that illness is adequately managed, there is no evidence that his severe antisocial personality will respond to pharmacological treatment. Additionally, in the view of Dr Elliot and Dr Furst, his behavioural issues are likely to be resistant to psychological interventions. These traits on their own put him at high risk of committing a future serious offence, particularly given the absence of psychotic symptoms when he committed the Index Offence. 7. The defendant has convictions for numerous violent offences, the most serious of which involved the use of weapons (break and enter and robbery both using a knife and strangulation offence using a sock). He also exhibited violent behaviours in custody including cutting or stabbing other inmates. He has a long history of committing impulsive violent acts on others and himself with no apparent rational reason underpinning such acts. He continues to present with limited insight into his risk factors for violence and has limited remorse about his prior violent behaviour. 8. As recently as 22 April 2020, the defendant reported to Dr Furst having thoughts of killing homeless people (these thoughts are understood not to be recent but closer to the commission of the Index offence). Dr Furst considers the Index Offence was the product of an irresistible impulse to kill the victim for no apparent logical reason other than the defendant's disturbed and grossly dysfunctional thinking. The defendant's past thoughts about killing homeless people is of concern. 9. The defendant has a substance use disorder having abused illicit substances (amphetamines, cannabis) and alcohol in the community and opiates whilst in custody (before 2013). He remains a risk of relapse for substance misuse in the community as evidenced by his use of alcohol on 24 November 2019 and 4 May 2020. 10. The defendant exhibits distorted and hostile views towards persons with whom he disagrees about his treatment and life management (at least until May 2018 and possibly on occasions in April-May 2019), including command hallucinations to harm himself and others. These thoughts may be a catalyst for responsive unprovoked violence towards others. 11. The circumstances of the defendant's recent return to custody for contraventions of his ESO underscore his level of vulnerability and the risk of abusing substances (in this case alcohol) when he experiences stress. His abuse of substances impacts his mental health and increases his risk of committing a serious offence. 12. The extent of his changeability is highlighted by a comparison of his presentation on 22 April 2020 to Dr Samuels compared with that two days later, on 24 April 2020. 13. The defendant reported to Dr Samuels feeling good and that he was not self-harming, his voices were under control and he was not experiencing a desire to drink alcohol. On 24 April 2020, he self-harmed after reportedly hearing a voice commanding him to self-harm. By 4 May 2020 he relapsed with alcohol. Conclusion 1. Taking all those matters into account, I am satisfied that the unacceptable risk precondition has been satisfied and that an ESO ought be made in the exercise of the Court's discretion. However, I disagree with the period of 5 years proposed by the plaintiff. In my opinion, a period of 3 years is sufficient to indicate whether the defendant is likely to improve and what therapies and pharmacological agents, if any, have contributed towards that improvement. Accordingly, I make the following orders: 1. An order pursuant to s 5B and 9(1) of the CHRO Act, that the defendant be the subject of an ESO for a period of 3 years from the date of this Order. 2. An order that pursuant to s 11 of the CHRO Act, directing that the defendant for the period of the ESO comply with the conditions set out in Annexure "A" hereto. 3. An order that access to the 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 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. Discussion of conditions to be included in the ESO 1. While there was a substantial measure of agreement between the parties as to the wording of the ESO conditions, there remained a number of disputed matters. The first issue concerned how some of the terms used in the conditions should be defined. 2. The proposal by the defendant for the definition of "DSO" was: "DSO – an officer of CSNSW responsible for the supervision of the defendant whose identity has been provided to the defendant in writing." 1. The definition of "DSO" proposed by the plaintiff was: "Means Departmental Supervising Officer that is, any Corrective Services Officer supervising the defendant under the order." 1. Both definitions have their merits. Given the way in which supervision is carried out, as described by Ms Grabham in her evidence, the definition of "DSO" put forward by the plaintiff is more appropriate. As a result of that decision, I have also used the definitions provided by the plaintiff for "CSNSW" and "Commissioner". 2. There was, however, a significant dispute between the parties as to whether in the conditions the term "reasonable direction" should be used and if it was, how it should be defined. The plaintiff opposed the use of that terminology and the definition given to "reasonable direction" by the defendant. 3. The definition proposed by the defendant was: "Reasonable Direction – a direction which is reasonably necessary for the enforcement of any of the conditions of the Extended Supervision Order. Where a direction may conveniently be given in writing it may be given electronically, including by SMS or other message service. Where the DSO considers, on reasonable grounds, a breach of a condition to which the defendant is subject may be treated as constituting a criminal offence a direction that the defendant comply with that condition must be either given in writing or if the circumstances prevent the DSO giving a written direction, the oral direction must be recorded in writing and provided to the defendant within a reasonable time of the oral direction being given." 1. I do not intend to use the definition of "reasonable direction" as proposed by the defendant. The proposed definition is complex, difficult to understand and is more likely to confuse the defendant than assist him observing the conditions imposed by an ESO. 2. There is, however, merit in using the term "reasonable direction", but giving to it a broad and simpler definition. 3. The next issue concerned Conditions 3 and 4. The defendant proposed the following conditions: "3. The defendant must follow all reasonable directions by his DSO or any other person tasked by his DSO to supervise him." Electronic Monitoring 4. The defendant must follow all reasonable directions by his DSO or any other person tasked by his DSO to supervise him." 1. The plaintiff opposed the defendant's proposed conditions 3 and 4. 2. The addition to Condition 3 suggested by the defendant has merit. It has the effect of establishing a clear link between the DSO (as now defined) and any other person tasked by the DSO to supervise him. In the standard form condition there is no specified connection between the DSO and "any other person supervising him". 3. In relation to Electronic Monitoring, I reject the defendant's suggestion. Electronic Monitoring is an extremely useful tool as explained by Ms Grabham, both for the protection of the public and the rehabilitation of the defendant. Accordingly, I accept the submission by the plaintiff on that issue. 4. The next issue concerned Conditions 5, 6, 7 and 8. The plaintiff opposed the defendant's proposed conditions. 5. The conditions proposed by the defendant were: "5. If reasonably directed by his DSO by no later than Thursday of any week, the defendant must provide to his DSO a schedule of his intended movements and activities for the week the defendant must provide to his DSO a schedule of his intended movements and activities for the week commencing on the following Monday. The DSO may reasonably direct, again on reasonable notice, successive schedules for subsequent periods of seven days. The defendant must provide a schedule by no later than noon on the Monday following the direction and it must be completed honestly as to his intentions. 6. It will not be a breach of these conditions if the defendant departs from a schedule submitted by him. However, unless his mental health Inhibits him from doing so, the defendant must notify his DSO if he intends to depart from it in any significant respect, either as to the nature of any movement or activity or as to its timing. Such notification must be given by the defendant as soon as reasonably practicable. 7. The defendant must make himself reasonably available by phone or in person to discuss any such schedule of his movements and activities and to receive any counselling advice or direction from his DSO. 8. The defendant must truthfully answer questions from his DSO or any other person tasked by his DSO to supervise him, or anyone on the Electronic Monitoring Team, about where he is, where he is going and what he is doing." 1. The evidence of Ms Grabham, which I accept, is that the defendant understands the existing conditions and is complying with them. In relation to these conditions, she said: "A. So initially upon release from custody Mr Windle was assisted in providing his schedules of activities through his NDIS support coordinator, that later changed, and in recent months he has provided that schedule himself. He has added the activities, he has discussed those with his DSO and he has taken ownership over that role. It gives him a sense of responsibility, it also provides structure to his days. He has been compliant with that activity. My understanding is that he has not shown any discord in completing that activity and he has done so in compliance with the timetables of providing those schedules, meaning that he provides them by every Thursday of every week and they commence on the Saturday of the same week." (T.27.22) 1. In contrast, the proposed new conditions would be likely to confuse the defendant by setting up a different regime which is more complex than that which he is currently following. Accordingly, I have not changed existing Conditions 5, 6, 7 and 8 except for the addition of the words "tasked by his DSO" in Condition 8. 2. The next issue concerned "Part B: Accommodation". The defendant has proposed a new Condition 10 and a new Condition 11. During the course of argument, the defendant agreed to the curfew hours set out in the standard conditions, i.e. 9pm-6am. The plaintiff opposed the defendant's proposed conditions. 3. The defendant's proposed conditions are: "10. The defendant must comply with a reasonable direction by his DSO to attend and remain at his approved address between 11pm and 6am, unless a. There is an emergency, b. He is engaged in lawful employment or travelling to and from lawful employment, or c. He has, with 24 hours notice, requested to stay elsewhere, and the DSO has not reasonably directed him not to." 11. When present the defendant must allow his DSO or any other person tasked by his DSO with supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address." 1. Conditions relating to accommodation are important. The standard form conditions are straightforward and make it clear about how the defendant should utilise his accommodation. Of particular importance are the requirements that the defendant not be absent from the premises at specified times and that he not permit persons to enter and stay on the premises without permission. I am not persuaded that the proposed conditions provide any more flexibility for the defendant than the existing conditions. Accordingly, with a small amendment to Condition 11, I propose to impose the standard conditions relating to accommodation. 2. The next issue is relatively minor and concerns place and travel restrictions. 3. The proposed condition by the defendant is: "16. The defendant must not go to a place that he is reasonably directed by his DSO not to go to." 1. The condition proposed by the plaintiff is: "16. The defendant must not go to a place if his DSO directs him he cannot go there." 1. The inclusion of the word "reasonably" does not unduly hamper the capacity of the DSO to protect the public and rehabilitate the defendant. Accordingly, I propose to impose the condition proposed by the defendant. 2. The next issue concerns "Part E: Drugs and alcohol". The conditions proposed by the defendant, which are disputed, are: "21. The defendant must dispose of any alcohol in his possession if reasonably directed by his DSO, a person tasked by his DSO to supervise him, an employee of CSNSW, a police officer or licenced medical professional. 22. The defendant must submit to testing for drugs and alcohol as reasonably directed by his DSO. 23. The defendant must not enter any licensed premises where alcohol is consumed without the prior approval of his DSO." 1. The plaintiff opposed the conditions proposed by the defendant. 2. In their evidence, Drs Samuels and Furst stressed the dangers for the defendant of regularly consuming alcohol and maintained that the aim should be nil consumption. The conditions proposed by the defendant would make it easy to obtain alcohol. Given his breaches of conditions and history of alcohol abuse, there are very good reasons why his access to alcohol should not be facilitated. Accordingly, I propose to impose the standard form conditions with the only change being the addition of "reasonably" in Condition 22. 3. The next issue concerns the conditions directed to association with others. The defendant proposed new Conditions 26, 28 and 29. The plaintiff opposed the defendant's proposed amendments. 4. The conditions proposed by the defendant are: "26. The defendant must not associate with people that his DSO reasonably directs him not to. ... 28. If the defendant starts a relationship with someone he has to tell his DSO. 29. The defendant must notify his DSO prior to joining or affiliating with any club or organisation including any internet or mobile telephone based social networking service. If reasonably directed by his DSO, he must not join or affiliate with such a club." 1. The principal issue in this area is the question of whether the DSO, or his or her delegate, should tell a person with whom the defendant is in a relationship, about his criminal history. 2. This is obviously a very sensitive area and one could anticipate that tensions could arise between his DSO and the defendant if telling a person with whom the defendant was in a relationship about his criminal history, led to that relationship breaking up. 3. There is, however, another problem. The only requirement imposed on the defendant is to tell his DSO if he starts a relationship. The question of whether the DSO tells the other person about the defendant's criminal history is a matter for the DSO. It is not a direction which has been given to the defendant. The words "who may want to tell the person about his criminal history" do not operate as a condition or restriction on the defendant. 4. As Ms Grabham explained, where a defendant enters into a relationship the DSO encourages the defendant to in due course be honest and frank about his or her offending. That, of course, can happen without any condition being imposed. 5. It follows that I would insert the words "reasonably directs" in Condition 26 and delete the words "who may want to tell the person about his criminal history" from Condition 28. Otherwise, I impose the standard conditions. 6. The next issue concerns access to the internet and other electronic communication. 7. The defendant proposes changes to Conditions 32, 33 and 34. The change suggested for Condition 32 is the addition of the word "reasonably" before "directed". Proposed conditions 33 and 34 are substantially new and provide as follows: "33. If reasonably directed, and it is otherwise lawfully the defendant must permit the DSO (or any other corrective services officer requested by the DSO) to remotely inspect any internet account used by the defendant, including the defendant's email addresses. 34. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet unless the DSO is satisfied to a high degree of probability that the particular use of the device or the internet (including applications and social media) is likely to result in the commission of a serious violent offence within the meaning of the Crimes (High Risk Offenders) Act, the DSO cannot direct that the defendant not use the device or internet." 1. The plaintiff opposed the defendant's proposed conditions. 2. For reasons already set out, I have no difficulty with the insertion of the word "reasonably" in Condition 32. 3. I agree that the form of standard Condition 33 does not appear to comply with the CHROA. Such compliance does occur if the words "if reasonably directed and it is otherwise lawful" are removed so that the condition starts with the defendant "must permit etc". 4. The additional words proposed for Condition 34 give rise to a difficult legal concept which is unnecessary when one has regard to the function to be performed by these conditions. Accordingly, I reject the proposed amendment to standard Condition 34. 5. The next issue concerns the search and seizure conditions. The defendant proposes changes to Condition 37 and the addition of a new condition. The proposed conditions are as follows: "37 If the DSO reasonably believes that a search (of the type referred to in subparas (d) to (f) below) is necessary: ... (b) to investigate a reasonably suspected breach of the order ... 37A Where the defendant asserts legal professional privilege over material the subject of a search and the DSO reasonably believes that the material is not wholly privileged and should be seized, then the DSO must seal the material in the presence of the defendant and hand the material over to an independent solicitor. Unless that solicitor advises that the material is not privileged, the defendant is not required to permit access to it by the DSO." 1. The plaintiff opposed those amendments. 2. The alteration to subsection 37(b) is not justified. The introductory words to Condition 37 already include the concept of "reasonably". There is no need to refer to that concept again in subsection 37(b). 3. The proposed new Condition 37A raises a topic which has not been specifically referred to in the standard conditions, nor in s 11 of the CHRO Act. The procedure suggested is cumbersome, time consuming and expensive. Given the function to be performed by the conditions, it is unnecessary for this level of complexity to be imposed. Accordingly, I reject the proposals by the defendant in relation to impose this condition. 4. The final issue concerns whether the words "reasonably directs" or simply "directs" should be used in Condition 48 when giving the DSO power to require attendance by the defendant for psychiatric assessment and treatment. For the reasons already indicated, I would insert "reasonably" into that condition. 5. It follows from the above that the conditions which I impose on the ESO are as set out in "Annexure A". 6. ANNEXURE "A" 7. Definitions 8. "CSNSW" – that part of the Corrective Services NSW comprising the group of staff who are principally involved in the administration of the Crimes (Administration of Sentences) Act 1999 (NSW). 9. "Commissioner" – means Commissioner for Corrective Services NSW. 10. "DSO" – means departmental supervising officer, i.e. any Corrective Services Officer supervising the defendant under the order. 11. "Defendant" – means Andrew Robert Windle the defendant in these proceedings and the subject of the order. "Reasonable direction" – a direction which is reasonably necessary for the enforcement of any of the conditions of the ESO. In these conditions where a direction may be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service. Part A: Reporting and Monitoring Obligations Monitoring and Reporting 1. The defendant must accept the supervision of CSNSW until the end of the Order. 2. The defendant must report to the DSO or any other person tasked by his DSO to supervise him. 3. The defendant must follow all reasonable directions by his DSO or any other person tasked by his DSO to supervise him. Electronic Monitoring 4. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person tasked by his DSO to supervise him. Schedule of Movements 5. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 6. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period. 7. The defendant must not deviate from his approved schedule of movements except in an emergency. 8. The defendant must truthfully answer questions from his DSO, or any other person tasked by his DSO to supervise him, about where he is, where he is going and what he is doing. Part B: Accommodation 9. The defendant must live at an address approved by his DSO. 10. The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO. 11. The defendant must allow his DSO or any other person tasked by his DSO with supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 12. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. 13. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO. Part C: Place and travel restrictions 14. The defendant must not leave New South Wales without the approval of CSNSW. 15. The defendant must surrender any passports held by him to the Commissioner. 16. The defendant must not go to a place that he is reasonably directed by his DSO not to go to. 17. The defendant must not attend any place where alcohol or illicit drugs or prescription medication (not prescribed to the defendant) are illegally sold. Part D: Employment, finance and education 18. The defendant must not start any job, volunteer work, training or educational course without the approval of his DSO. 19. The defendant must provide any information relating to his financial affairs, including income and expenditure if directed by his DSO. Part E: Drugs and alcohol 20. The defendant must not possess or use prohibited drugs, and he must not possess or use prescription medication other than as prescribed. 21. The defendant must not possess or use alcohol without the prior written approval of his DSO. 22. The defendant must submit to testing for drugs and alcohol as reasonably directed by his DSO. 23. The defendant must not enter any licensed premises without the prior approval of his DSO. 24. The defendant must attend and participate in programs and courses for drug and alcohol rehabilitation, and/or violence and anger management, as reasonably directed by his DSO, and must not discharge himself without the prior approval of his DSO. ... Part F: Non-association Associations with Others (not children) 26. The defendant must not associate with people that his DSO reasonably directs him not to. 27. The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol. 28. If the defendant starts a relationship with someone, he has to tell his DSO. 29. The defendant must obtain permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service. Part G: Weapons 30. The defendant must not possess or use any firearm within the meaning of s 4 of the Firearms Act 1996 or prohibited weapon as defined in s 4 and Schedule 1 of the Weapons Prohibition Act 1998. 31. The defendant must not carry on his person at any time he has left his residence, any knife or other cutting instrument, implement, tool, rope, cord, cable ties or other instrument of restraint. Part H: Access to the internet and other electronic communication 32. The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as reasonably directed. 33. The defendant must permit the DSO (or any other Corrective Services Officer requested by the DSO) to remotely inspect any internet account used by the defendant, including the defendant's email . 34. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet. 35. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. 36. The defendant must provide a list of communication devices and data storage devices in his possession and advise the DSO of any change to the inventory immediately. Part I: Search and seizure 37. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person. 38. For the purposes of the above condition: h. a search of the defendant means a garment search or a pat-down search. i. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 39. During a search carried out pursuant to condition 35 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 40. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 41. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 37 to 40 above. Part J: Personal details and appearance 42. The defendant must not change his name from "Andrew Robert Windle" or use any other name without the approval of his DSO. 43. The defendant must not use any alias, log-in name, or a name other than "Andrew Robert Windle" or use any email address other than those known to the DSO under condition 32 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email. 44. The defendant must not change his appearance without the approval of his DSO. 45. The defendant must let CSNSW photograph him. 46. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Part K: Medical intervention and treatment 47. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 48. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO reasonably directs him to attend. 49. The defendant must take all medications that are prescribed to him by his healthcare practitioners. 50. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. 51. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other. 52. The defendant must agree to his healthcare practitioners sharing information with his DSO as to the fact of his attendance at appointments and his overall progress in therapy or counselling including the practitioner's general opinion as to his development of insight into offending risk factors, substance abuse and to reduce his risk of offending. 53. The defendant must agree to any information being shared between those agencies that are involved in his supervision. ANNEXURE "B" High Risk Offender Glossary ACMU = Acute Crisis Management Unit CC = Correctional Centre CDO = Continuing Detention Order CHRO Act = Crimes (High Risk Offenders) Act 2006 (NSW) CMH = Community Mental Health CMHT = Community Mental Health Team CNC = Clinical Nurse Consultant CSNSW = Corrective Services New South Wales CTO = Community Treatment Order EEMG = Electrical and External Monitoring Group ESO = Extended Supervision Order ESOIT = Extended Supervision Order Investigation Team HCR-20 = Historical Clinical Risk – 20 Scale HIRO = High Risk Offender IDO = Interim Detention Order ISO = Interim Supervision Order LBH = Long Bay Hospital MATT = Mobile Assertive Treatment Team MH Act= Mental Health Act 2007 (NSW) MHFP Act = Mental Health (Forensic Provisions) Act 1990 (NSW) MHRT = Mental Health Review Tribunal NDIA = National Disability Insurance Agency NDIS = National Disability Insurance Scheme NPP = Non Parole Period PBDU = Personal & Behavioural Disordered Unit OIMS = Offender Inmate Management System RAR= Risk Assessment Report RIT = Risk Intervention Team RMR = Risk Management Report RPA = Royal Prince Alfred Hospital SPA = State Parole Authority SRAR = Supplementary Risk Assessment Report VOTP = Violent Offender Therapeutic Programme VRAG-G = Violence Risk Appraisal Guide – Revised VRS = Violence Risk Scale ********** I certify that this and the 57 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law. Morna Lynch Associate Date: 18 June 2020 Amendments 10 August 2020 - The word "reasonably" has been added to Condition 22 in "Annexure A". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2020