Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Avakian (Preliminary) [2021] NSWSC 245 Hearing dates: 11 March 2021 Date of orders: 18 March 2021 Decision date: 18 March 2021 Jurisdiction: Common Law Before: Davies J Decision: (1) Summons dismissed. (2) The plaintiff is to pay the defendant's costs. Catchwords: HIGH RISK OFFENDER – extended supervision order – preliminary hearing – past conviction for manslaughter – convicted of index offences of take and detain, and attempted choke – offence of indecent assault taken into account on a Form 1 - extensive criminal record – defendant has psychotic illness and substance abuse disorder as well as antisocial personality disorder – whether requirements under ss 5B and 5I requiring defendant to be a supervised offender are satisfied – where sentence being served at time of application was not served consecutively with sentence for manslaughter - where defendant not serving a sentence of imprisonment for an offence taken into account on a Form 1 – defendant not a supervised offender – where otherwise an ESO would have been justified – summons dismissed STATUTORY INTERPRETATION – whether defendant was a "supervised offender" under the Crimes (High Risk Offenders) Act 2006 - words and phrases - meaning of "consecutively" Legislation Cited: Crimes Act 1900 (NSW) ss 5, 61M Crimes (High Risk Offenders) Act 2006 (NSW) ss 4, 4A, 5A, 5B, 5I, 6, 7, 9 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32, 33, 35 Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Attorney General for New South Wales v Tillman [2007] NSWCA 119 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Regina v Avakian [2003] NSWSC 1042 State of NSW v Clarke [2019] NSWSC 411 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 State of NSW v Sturgeon [2019] NSWSC 559 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 Texts Cited: Nil Category: Procedural rulings Parties: State of New South Wales (Plaintiff) Danny Avakian (Defendant) Representation: Counsel: S Climo (Plaintiff) E Kerkyasharian (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2020/285069 Judgment 1. The State of New South Wales seeks an order that the defendant be subject to an extended supervision order (ESO) for a period of five years. In the interim, the State seeks orders pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (CHROA) appointing two qualified psychiatrists and/or registered psychologists to examine the defendant and furnish reports to the Court, and an order that the defendant be subject to an interim supervision order (ISO) from 26 March 2021. 2. The defendant was sentenced on 27 March 2009 for two offences committed on 12 August 2007. The first count was that he did attempt to choke the victim with intent to enable him to commit an indictable offence, namely aggravated indecent assault. The second count was that he did without consent detain the victim with the intention of obtaining an advantage, namely avoiding apprehension and detection (the kidnapping offence). In relation to the first count, the defendant asked the sentencing judge to take into account on a Form 1 an offence that he assaulted the victim and at the time of the assault committed an act of indecency upon her, a person under the age of 16 years, namely 12 years. 3. In respect of count 2 the defendant was sentenced to imprisonment for four years commencing 20 December 2007 and expiring on 19 December 2011, with a non-parole period expiring 19 December 2010. In respect of count 1 he was sentenced to imprisonment for 12 years commencing 27 March 2009 and expiring 26 March 2021 with a non-parole period of nine years expiring 26 March 2018. 4. Although the defendant's non-parole period expired on 26 March 2018, he was not released to parole until 14 May 2020. 5. At the time these index offences were committed, the defendant was on parole for the offence of manslaughter. That offence took place on 25 January 2002. He was sentenced on 21 November 2003 to a term of imprisonment for five years and six months commencing 21 October 2002 and expiring 20 April 2008 with a non-parole period of three years and six months expiring 20 April 2006. 6. It may be observed that the sentence for the kidnapping offence commenced on 20 December 2007 and was partly concurrent with his sentence for manslaughter and partly consecutive upon it. The sentence for the attempted choke then commenced on 27 March 2009, being partly concurrent with the kidnapping sentence and partly consecutive upon it. Legislation 1. Section 5B of the CHROA provides: 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. 1. Section 5I provides: 5I Application for extended supervision order (1) An application for an extended supervision order may be made only in respect of a supervised offender. (2) A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's current custody or supervision): (a) while serving a sentence of imprisonment: (i) for a serious offence, or (ii) for an offence of a sexual nature, or (iii) for an offence under section 12, or (iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or (b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order. (3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole. 1. Section 4(1) defines serious offence as meaning: (a) a serious sex offence, or (b) a serious violence offence. 1. Section 5A defines a serious violence offence relevantly as follows: (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, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (2A) A reference in subsection (1) (a) to: (a) conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and (b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and (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. 1. The summons was filed on 1 October 2020. At the time the defendant was on parole for the offence of attempted choke. 2. Section 7(4) and (5) of the CHROA provide what is to occur at a preliminary hearing. In addition, the Court is given power to make an ISO under s 10A of the Act. In both cases, the test for making orders under ss 7(4) and 10A is the same, namely: That the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. 1. If that is so, the Court must make the orders in s 7(4) appointing the psychiatrists and/or psychologists, and may make an ISO under s 10A. I am satisfied pursuant to s 10A(a) that the defendant's supervision on parole will expire before the present proceedings are determined. 2. The task of the Court at the preliminary hearing on an application for an ISO is not to predict the ultimate result. Rather, the test is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]; see also State of NSW v Clarke [2019] NSWSC 411 at [7]-[11]. 3. In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Beazley P said, when discussing the meaning of the phrase "unacceptable risk": [50] As the respondent pointed out in its submissions, by reference to dictionary definitions, the word "unacceptable" requires context in which, or parameters against which, the "unacceptable" risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is "so far from a required standard, norm expectation, etc as not to be allowed". The Oxford Dictionary defines the word by reference to its antonym "acceptable". Something is "acceptable" if it is "tolerable or allowable, not a cause for concern; within prescribed parameters". [51] What the court, therefore, must find to be unacceptable is the "risk" that the offender poses "of committing a serious violence offence if … not kept under supervision". The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made. … [58] …[T]he proper approach is to give the words of s 5E(2) [now s 5B(d)]: "… their everyday meaning, in the context of the provision in which they appear, and having regard to the objects of the Act" as stated by R A Hulme J in Thomas (Final) at [38], and as I have explained above. 1. In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J said at [71]: Unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate. The defendant's criminal history 1. The defendant was born in February 1982 and is now aged 39. His criminal record is extensive, and dates back to 1997 when he was a child. His offending continued during every year he lived in the community until he was sentenced in November 2003 for manslaughter. His offences of violence include maliciously wounding, common assault, assault police officer in the execution of his duty and two counts of assault occasioning actual bodily harm, in respect of which he was sentenced on each occasion to 12 months periodic detention. 2. The defendant has had 38 institutional misconduct charges. Of these, ten were violence related, 15 were drug related, and 13 others were for misconduct, three of which included a failure to obey directions. 3. The defendant was released on parole in relation to the manslaughter sentence on 20 April 2006. That parole was revoked on 12 August 2007 when he was arrested for the commission of the index offences. 4. The facts of the manslaughter offence were set out in the judgment of Whealy J (Regina v Avakian [2003] NSWSC 1042): [6] The facts may be briefly summarised as follows. The deceased, two young women and another man, Garry McCormack, were waiting in Bendigo Place, Cartright for a taxi on the night of 25 January 2002. They were sitting in the gutter talking when a group of four males came down a laneway and approached them. These males were the present offender, James Dean O'Connor, Michael Whitmore and a young person identified as K R G. There was a brief general discussion between people in the two groups. [7] The offender K R G requested a cigarette. The present offender asked the deceased his name and accused him of stealing mobile phones from little kids. The deceased put his hand in or towards his pocket and the offender said "What's that a knife? what is a knife going to do against a gun?" The offender told the deceased he had a gun and pointed a silver object which the two young girls and McCormack believed was a gun at the deceased's head. It was in fact a mobile phone. The offender said several times "Are you prepared to die tonight?" and "You are going to die tonight" or "You are going to cop it". [8] Whitmore was seen to kick the deceased. The two girls ran from the scene in panic and to seek assistance. A nearby resident was looking from a window on the first floor of a unit block 50 metres away. He saw one of the young men pull the deceased's jacket down his arms. He described each of the attackers however, he only recognised one of them namely, Whitmore. Troy Dawson was watching through the screen door of his nearby single storey home. He saw a group of young men punching the deceased. He saw the deceased try to run away. The deceased was chased by two of the young men who took hold of him. He was further punched by members of the group and then fell to the ground. Dawson told his mother that someone was getting bashed and she called an ambulance. [9] During the assault the deceased was stabbed. None of the eyewitnesses saw the stabbing take place. The deceased was not stabbed by the present offender nor did the present offender possess a knife that night. There was no evidence to suggest the offender was aware that any of the other offenders was in possession of a knife that night. The offenders all ran from the scene. After some delay an ambulance arrived. The deceased was taken by ambulance to Liverpool Hospital and there was pronounced dead. [10] Post-mortem examination reveals that the deceased had died from a stab wound to the chest. In essence, he had been stabbed in the heart. There was a second stab wound to the deceased's back. This wound was above the right buttock. Physical examination showed the deceased had sustained multiple bruising accompanied by abrasions to the face, head, shoulders, back and torso. There were lacerations to his face and torso, some swelling and bruising to the mouth, chin, cheek and nose. The only fracture was to the deceased's nose. There was also bruising around the eyes and on the deceased's scalp extending around the back of the scalp under the hair. … [12] It is common ground, for the purposes of this sentencing procedure that the offender is to be sentenced for manslaughter by an unlawful and dangerous act. The basis of this, it is agreed, is that the offender was acting in concert with the other young men with a shared intention to assault the deceased. This carried with it an appreciable risk of serious injury. The offender's actual participation in that assault was to punch the deceased several times. I am satisfied beyond reasonable doubt that the facts I have found establish that manslaughter on the agreed basis was committed by the offender. 1. The facts of the index offences involving the 12 year old victim, who was the cousin of his then de facto partner NC, can be summarised as follows from the Remarks on Sentence of Judge Neilson. 2. The defendant was living in a granny flat with NC in Miller, and her parents were living in the main house on the same property. The victim, V1, visited her grandparents there regularly. She was visiting them over the weekend of 10 to 12 August 2007. 3. On Saturday 11 August 2007, the defendant and his partner went to a party, and the victim was given permission to watch Pay TV in their granny flat. The defendant returned to the granny flat, alone, around 11:30pm. He initially sat with the victim and watched TV, before he obtained a portable DVD player and started to watch pornography on it. He then turned the TV off and invited the victim to watch with him, asking her questions about sex in the process. The victim sought to leave to go to the toilet in the main house, telling him she would return. The defendant followed her inside, ostensibly to ensure she did indeed return. She went back to the granny flat and turned the TV back on. 4. When the defendant returned to the granny flat after smoking a cigarette, he turned the TV off again and told the victim to go into the bedroom. When she initially refused, he threatened to "kill everyone". He then pushed her into the bedroom area, putting his hand over her mouth to silence her, and told her to be quiet. He told her to undress. The victim refused and attempted to escape, but was caught by the defendant and pulled back into the bedroom area of the granny flat. He then put his hands around the victim's neck and "then tightened his grip around the victim's neck so that she could not breathe". 5. The victim tried to pull his hands away and bite him, but did not succeed. The victim lost consciousness, and involuntarily soiled herself. When she regained consciousness, she was lying on the bed. The defendant removed her soiled underwear, and had her lie on the floor, which she did. He removed the bed-sheet and told the victim to go outside. He followed her as he made her walk to the back fence. 6. The defendant made the victim scale the back fence, and he followed her. They then crossed a vacant lot to his partner's car, which he had parked there when he had returned from the party. He told her to get into the rear of the vehicle and get down on the floor, in the foot wells. The victim complied, and the defendant drove the car for a period. Eventually he told the victim she could emerge from the foot wells, and she fell asleep on one of the car's seats. They drove a while longer. The victim asked the defendant where they were going, and he replied, "Nowhere". They stopped at a closed service station early in the morning, with the defendant telling the victim they needed petrol so they would wait for it to open. 7. While they were waiting, the victim climbed into the front seat. The defendant then pulled out his penis and told the victim to put her hand on it and masturbate him. She did so, under duress, for about one minute during which time the defendant told her to increase the speed of her hand. When her hand became tired she stopped and said that she would not do it anymore. The defendant told the victim to use refresher towels to clean up. The victim then fell asleep for a period of time. 8. When she awoke the sun was rising, and she saw the defendant putting petrol into the vehicle. At about 5:49am he drove the victim back to her grandparents' house. He initially told her not to say anything about what had happened. When she asked what she should tell anyone if they asked, the defendant responded, "Well tell them everything and tell them I'm sorry". He was arrested that evening. He pleaded guilty to the offences in Court. The defendant's background 1. The defendant is the eldest of six children. His father is of Armenian background, whilst his mother is Aboriginal. They separated in about 2010. His father worked as a jeweller. His parents did not cohabitate for lengthy periods as the defendant's father worked in the Northern Territory. The defendant and his siblings were raised in and around Miller in New South Wales. 2. His mother suffered from Bipolar Disorder and Schizophrenia, and was scheduled to a mental health facility on one or more occasions. Two of his brothers suffered from mental health issues. He was raised primarily by his maternal grandmother with whom he shared a special bond. He was devastated by her death when he was aged 13 years. 3. The defendant attended primary school in the Miller area. His mother reported no major issues at that stage apart from a few fights. The defendant reported that he remained illiterate throughout primary school, and drew his teachers' attention away from this by being disruptive in class. 4. The defendant has had minimal employment history, with some unskilled labour and similar roles for a number of months each time as a younger adult. He has had only one long term intimate relationship. That was NC with whom he had an on and off relationship, both before and after his sentence for manslaughter. 5. The defendant commenced smoking cigarettes, consuming alcohol and sniffing solvents from about 13 years of age. He engaged in binge drinking including drinking to black out, drinking until there was no alcohol or money left, and drinking up to two bottles of spirits a day at times. 6. He started smoking cannabis from the age of 13 and 14, consuming "a stick" every couple of days. He did not enjoy the feeling of cannabis and so ceased using it from about the age of 14 or 15. 7. He commenced "snorting speed" (amphetamine) from the age of 15, initially at weekend parties, but progressing to daily use. He then commenced using MDMA tablets, consuming from two to five pills on each occasion at parties. He used LSD on a couple of occasions and used cocaine only rarely due to its prohibitive cost. He also used methamphetamine including prior to the commission of both the manslaughter and the index offences. While in custody, he both snorted and injected heroin, buprenorphine and methadone. Psychiatric evidence 1. The defendant was examined by Dr Olav Nielssen in November 2008, presumably in anticipation of the defendant's being sentenced for the index offences. Dr Nielssen diagnosed only substance abuse disorder, but in the context of not being given any history of symptoms of psychosis, nor any family history of mental illness. 2. On 4 July 2019 Dr Gordon Elliott prepared a report for the purposes of the State Parole Authority. Dr Elliott had a large amount of background material including the defendant's extensive medical records from Justice Health. Dr Elliott had previously examined and assessed the defendant in November 2018. 3. Dr Elliott concluded that the defendant, by the time he assessed him in 2019, had developed a chronic psychotic illness in the form of persecutory delusions and probable auditory hallucinations, and that was in the context of a prolonged period of limited association. He said his illness occurred in the context of a likely pre-existing mild intellectual disability or, alternatively, borderline intellectual functioning. 4. Dr Elliott noted the defendant's extensive criminal record and history of early behavioural problems as well as problems of deliberate self-harm. He suggested that this meant he had underlying maladaptive personality traits of a borderline and antisocial nature. Dr Elliott said the defendant also had an extensive history of substance abuse problems. 5. Dr Elliott concluded by saying: Should he be released, he will require assertive mental health follow up in the community and this should be a condition of his parole. He should be referred to his nearest community mental health centre and be required to reliably attend all appointments and remain on all prescribed antipsychotic medication, including long acting injectable anti-psychotics if there are concerns about his compliance. Mr Avakian may have significant problems adapting to the community. It is possible that he may benefit from a referral to the NDIS. This could allow funding of a package of care including regular support from a non-government mental health agency. This could assist him not only keeping his appointments with his mental health clinicians, but also with broader practical assistance seeking and maintaining accommodation, re-engaging with his family, complying with his parole conditions and assisting him to adapt to the community. 1. In October 2020, the defendant was referred to the NSW Community Forensic Mental Health Service for the purpose of a comprehensive risk assessment and risk management report. The presenting behaviour was said to be a history of reactive aggression and problem sexual behaviour. A joint report was prepared by Dr Paul Read, a forensic psychiatrist, and Mr Jordan Rivkin, a clinical psychology registrar. Dr Read and Mr Rivkin had the report from Dr Elliott of 4 July 2019, the Justice Health and Forensic Mental Health Network files, and a number of other reports. 2. The defendant was diagnosed with schizophrenia, substance use disorder in remission in a controlled setting (alcohol, amphetamine, narcotic, volatile solvent and MDMA use), antisocial personality disorder, and possible intellectual developmental disorder. 3. The authors of the report summarised their findings and recommendations in this way: In the context of electronic parole supervision, Mr Avakian presents a low risk for reactive aggression and problem sexual behaviour in the short-term due to the close continuing oversight provided by his current parole order. Longer-term however, he presents with a moderate to high risk for future reactive aggression given his high loading of static risk factors; such factors will remain unchanged over the longer term. These static factors occur alongside a moderate loading of dynamic risk factors and relatively few protective factors. He also presents with a moderate risk for future problem sexual behaviour given the presence of certain historical risk factors, major mental illness, problems with substance use, and difficulties with psychological and social adjustment. The lack of information pertaining to the episode of sexual offending limits the formulation of interventions that might be of potential benefit. In order to mitigate dynamic risk over the longer term, Mr Avakian requires compliance with antipsychotic medication and any other psychotropic medication that might become necessary, abstinence from illicit substances and alcohol, and psychological interventions designed to provide the requisite psychoeducation to enable him to better understand his diagnoses, symptoms and early warning signs, as well as what constitutes effective illness management and treatment, It is likely he will require depot antipsychotic medication given his poor insight into his mental illness. 1. The report said that when the defendant was interviewed, he said that he did not know what medication he was on nor why he was on it. He was unsure of his diagnosis, but believed that his treating psychiatrist, Dr Edward Wims, had said that it was schizophrenia. He said he was not sure what to look for if his mental health was to deteriorate. 2. He reported auditory hallucinations of a commentary type, but did not appear distracted by these during the assessment. The report said that he presented with overall poor insight into his mental illness. Insofar as he was compliant with his parole orders and treatment, his judgment within a heavily supervised setting was then adequate. 3. The report noted that episodes of violence have involved reactive aggression directed at various male strangers with whom he had entered into some dispute. His behaviour had included intimidation, verbally abusive threats and physical violence. In the commission of his most serious offences, his aggressive behaviour occurred in the context of significant substance misuse, but he was unable to provide any further insight into his thinking at the time. His prior offences were mostly random, unprovoked, violent incidents perpetrated against adult male strangers. 4. The report noted that his reactive aggression did not typically appear to be in response to auditory command hallucinations or delusions, or psychotically driven in any way. However, the authors noted that the hallucinations did at times warn him of a threat, and he experienced a range of psychotic beliefs regarding threat and vulnerability to harm. The authors said that it is possible in the context of a pattern of poor frustration tolerance, poor impulse control and emotional dysregulation, as well as the disinhibiting effects of substances, feelings of threat due to psychosis might drive further aggression. 5. The report said that he presented with historical/static risk factors associated with future violence. These included previous violence, antisocial behaviour, problems with intimate and non-intimate relationships, employment problems, substance abuse, a major mental disorder, and problems with violent attitudes. 6. Under the heading "Risk Management" the report said: Mr Avakian presents with some risk factors of concern regarding future risk management in the community. These include a lack of personal support network, likely difficulties in gaining employment, a lack of any long-term plans and problems with stress and coping. Of particular concern is the possibility that Mr Avakian may seek to reacquaint himself with past criminal associates, and engage once again in substance misuse. 1. The report said that the defendant manifested a high loading of static risk factors that would remain unchanged over the longer term. Those static factors occurred alongside a moderate loading of dynamic risk factors. The report said that those factors were somewhat mitigated by the presence of certain protective factors arising from his level of supervision at that time on parole. 2. The report said that, should the defendant's clinical or personal circumstances change to incorporate warning signs that had previously been observed as proximal to incidents of reactive aggressive or problem sexual behaviour, the risk he posed to himself and others might significantly increase. Those warning signs included: • Poor adherence to prescribed medication; • Disengagement from community mental health services; • Presence of persecutory beliefs about others seeking to harm him; • Alcohol and illicit substance use; and • Escalation in intimidating, threatening and aggressive behaviour. Risk Assessment Report 1. A Risk Assessment Report (RAR) was prepared on 1 July 2020 by Mr Samuel Ardasinski, a senior psychologist with the Serious Offenders Assessment Unit. 2. Mr Ardasinski noted earlier risk assessments that had been made of the defendant. He had been assessed on 17 October 2017 using the Level of Service Inventory – Revised (LSI-R). This instrument provides an indication of a level of risk of general and violent recidivism within 12 months post-release. The defendant's risks/needs were assessed as falling within the Medium risk-needs category for general and violent offending. 3. The defendant had been assessed using the STATIC-99 protocol on 18 February 2019. His score was 5, which was previously described as being in the Moderate-High risk category. Mr Ardasinski said the most recent version of the STATIC-99R describes that risk as being Above Average risk, or Level IVa. 4. The defendant was assessed on the STABLE-2007 protocol which is a tool developed to assist clinicians in identifying stable dynamic risk factors. The defendant's assessment on 25 June 2020 suggested a Moderate density of criminogenic needs. Combining the STABLE-2007 with the STATIC-99R produced a composite risk/needs level of Above Average or Level IVa. 5. Mr Ardasinski then assessed the defendant in July 2020 using the STATIC-2002R, the STABLE-2007, the Violence Risk Appraisal Guide - Revised (VRAG-R), the Violence Risk Scale (VRS) and the Risk of Sexual Violence Protocol (RSVP). 6. The defendant's score on the VRAG-R was equal to or higher than the score of 93% of the construction sample, and placed him in the ninth of nine bins, with the ninth being the highest. That classifies him as high risk compared to other violent offenders. 7. On the STATIC-2002R he was categorised as Level IVa (Above Average risk), and when that was combined with the STABLE-2007, both of which assess the risk of sexual recidivism, the combined assessment suggested that the defendant would require a Moderate-High level of intervention and/or supervision. 8. The VRS is a conceptual actuarial risk assessment specifically developed to assess the risk of violence for forensic clients, in particular, those who are being considered for release from institutions to the community after a period of treatment. It assesses both static and dynamic risk factors to provide a probability of an individual's risk of future violence. It also measures changes in risk level following treatment. Mr Ardasinski estimated the defendant's risk of being convicted of further violent offences as being towards the top end of the Medium risk range. 9. The RSVP is a structured professional judgment tool whereby the offender is considered against a specific list of 22 dynamic risk factors deemed important in the scientific and professional literature. The factors relate to the domains of sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. 10. Mr Ardasinski suggested that the defendant fell in the Moderate/Elevated risk category for repeat sexual violence. The main risk factors identified were problems with stress or coping, problems with substance use, and problems with intimate relationships. 11. Mr Ardasinski judged as relevant, or potentially relevant when considering the defendant's risk of violent reoffending, the following dynamic factors: (a) Substance abuse and a clear violence cycle; (b) Criminal peers, within an overall violent lifestyle; (c) Impulsivity and a poor work ethic leading to an abundance of idle time; (d) Emotional control issues and problems with stress or coping; (e) Intimacy deficits, leading to problems with intimate relationships; and (f) Previously poor compliance with supervision. 1. In relation to this last factor, Mr Ardasinski noted that the defendant's then current circumstance appeared markedly different from his previous periods under supervision in the community. 2. Mr Ardasinski prepared a supplementary RAR on 8 February 2021. The defendant was not reinterviewed for the report. Rather, it was prepared using file materials, particularly case notes entered into the Offender Integrated Management System (OIMS) database subsequent to the first RAR. 3. Mr Ardasinski noted the diagnosis of schizophrenia in the report of Dr Read. 4. Mr Ardasinski accepted that the defendant had proceeded well on parole since he had been assessed by him in June 2020. There were no risk related concerns raised in his supervision. However, Mr Ardasinski noted that the defendant's significant institutionalisation posed a concern for the defendant and for his community supervisors, because the defendant had been largely socially reclusive and did not seem to have a clear idea about what a pro-social future would look like for him. 5. Mr Ardasinski said that how well the defendant continued under supervision over the coming year would be crucial, given that the index offences were committed on parole after living in the community for 15 months post-release. He said the defendant had demonstrated good insight into his risks during his interactions with his supervising officers to date, but he had acknowledged that the risks remain "live" for him. 6. Mr Ardasinski said he considered that without the supervision of Community Corrections over the past eight months, the other formal supports available to him (his disability support team and Community Mental Health) would not have been as effective or as coordinated, and he may well have resorted to drug or alcohol use to cope with the stress of life in the community in 2020. 7. A risk management report was prepared by Cathryn Veal and endorsed by Kelli Grabham, the High Risk Offender Applications and Operational Governance Officer. That report noted the assessments made by Mr Ardasinski and the risk factors identified by him. The details of the management strategy in relation to each of the risks to be managed seem to me to be adequately dealt with by the proposed conditions attached to the summons. The defendant's submissions 1. The defendant concedes that he is a supervised offender for the purposes of s 5I of the CHROA. However, he disputes that the plaintiff has met the requirements of s 6(3)(b) of the Act, because he says there is no report that assesses the likelihood of the defendant committing a serious offence. The defendant submitted that the documents that the State relies on to meet the requirement of that section do not address what his risk will be at the time his parole ends. 2. The defendant disputed that the Court could be satisfied that the defendant is an unacceptable risk of committing a further serious offence. The defendant pointed to what he claims the High Risk Offender Assessment Committee (HROAC) determined. He submitted that the orders sought are iatrogenic, and will harm the defendant and potentially increase the risk. I understand the submission that the orders sought are iatrogenic as meaning that the putting in place of the orders are likely to bring about the problem that the orders are designed to prevent. An iatrogenic disorder is an abnormal mental or physical condition induced in a patient by the effects of treatment. 3. The defendant submitted that even if he was found to be an unacceptable risk of committing a further serious offence, the Court would, as a matter of discretion, refuse to make an ISO on the basis that the evidence shows that his present support from the NDIS and Community Mental Health is sufficient to deal with the risk. Determination 1. The requirements for the making of an order, being either an ISO or an ESO, are set out in s 5B of the CHROA. The applicant satisfies paragraph (a) because he is an offender who has served a sentence of imprisonment for a serious offence. The serious offence here is manslaughter by reason of being a serious violence offence under s 5A(1)(a) read in conjunction with s 5A(2A)(b). 2. Section 5B(b) requires the person in respect of whom the order is sought to be a supervised offender. Section 5I (set out at [8] above) defines who is a supervised offender. In the present case, the State relies upon sub-paragraph (2)(a)(iv), alternatively, sub-paragraph (2)(a)(ii). 3. In relation to sub-paragraph (iv), the State submitted, first, that the defendant is serving a sentence of imprisonment for the index offences and that they are served consecutively with the sentence for the serious offence (sub-paragraph (i)). The difficulty with that submission is that the index offences cannot be regarded in a composite fashion for construing sub-paragraph (iv). Judge Neilson sentenced the defendant for two separate offences, albeit they took place close in time to each other. It was not an aggregate sentence. 4. For the kidnapping offence, he sentenced the defendant to imprisonment for four years commencing 20 December 2007 and expiring 19 December 2011 with a non-parole period of three years expiring 19 December 2010. For the attempted choke offence, he sentenced the defendant to imprisonment for 12 years commencing 27 March 2009 and expiring 26 March 2021. He specifically did not commence the latter sentence at an earlier time because he said, if the two sentences were concurrent, there would be no sentence effectively passed in respect of the take and detain offence. The sentence for manslaughter expired on 20 April 2008. 5. The State submitted that if the index offences could not be regarded in a composite fashion, the word "consecutively" should be given a broad meaning to further the underlying purpose of the CHROA in relation to offenders who have been convicted of a serious offence. 6. In my view, the word "consecutively" cannot be read in a way which means that sentence C, which follows sentence B which in turn follows sentence A, can be said to be consecutive on sentence A. 7. The Macquarie Dictionary gives the following meanings, relevantly, to the word "consecutive": adjective 1. following one another in uninterrupted succession; uninterrupted in course or succession; successive. 2. … 3. Law (of a sentence) commencing on the expiry of a previous sentence. … 1. The Shorter Oxford Dictionary relevantly defines "consecutive" as meaning: 1. Following continuously; following each its predecessor in uninterrupted succession. 1. The third definition in the Macquarie Dictionary accords with what has long been understood in the criminal law in relation to sentencing. The word has never been taken to mean that a sentence is consecutive on another simply because it is later in a chain of sentences, unless it is contiguous with the earlier sentence. 2. When the manslaughter sentence expired on 20 April 2008, and the sentence currently being served commenced on 27 March 2009, the latter sentence cannot be regarded as being served consecutively with the manslaughter sentence. 3. The State argued alternatively that the defendant is serving a sentence of imprisonment for an offence of a sexual nature. Section 5(2) defines "offence of a sexual nature" as including an offence under Div 10 of Pt 3 of the Crimes Act 1900 (NSW). The State submitted that where an offence contrary to s 61M(1) (now repealed) of the Crimes Act was taken into account on a Form 1 in relation to the offence of attempted choke, which the defendant is still serving, the defendant is thereby a supervised offender as defined in sub-s 2(a)(ii). 4. There are two difficulties with that submission. The first is that the requirement is that the defendant must be serving a sentence of imprisonment "for an offence of a sexual nature". A defendant cannot be said to be serving a sentence of imprisonment for an offence taken into account on a Form 1. 5. Section 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) deals with taking into account offences with which the offender has been charged but not convicted when he is being sentenced for the principal offence, the definition for which is contained in s 32. Section 33 provides: 33 Outstanding charges may be taken into account (1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence. (2) The court may take a further offence into account in dealing with the offender for the principal offence - (a) if the offender - (i) admits guilt to the further offence, and (ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and (b) if, in all of the circumstances, the court considers it appropriate to do so. (3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account. (4) A court may not take a further offence into account - (a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or (b) if the offence is an indictable offence that is punishable with imprisonment for life. (5) For the purposes of subsection (4) (a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender. (6) Despite subsection (4) (a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account. 1. Importantly, s 35(4) provides: An offence taken into account under this Division is not, merely because of its being taken into account, to be regarded for any purpose as an offence of which an offender has been convicted. 1. How offences on a Form 1 are taken into account was a matter dealt with in the guideline judgment of Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518. Counsel for the State drew my attention to the five judge bench decision in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 especially at [95] and [96]. 2. Nothing in Abbas nor in the guideline judgment suggests that a person can be said to be serving a sentence of imprisonment for an offence on a Form 1. That is particularly so because the taking into account of the sentence on the Form 1 does not result in a conviction for that offence. 3. The further difficulty with the State's submission is that the definition of "offender" in s 4A of the CHROA is a person who: has at any time been sentenced to imprisonment (not including a suspended or quashed sentence) to be served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) following the person's conviction for a serious offence. 1. Even if the judge sentencing for the principal offence has increased the sentence for that offence by reason of an offence on a Form 1, the person has not been convicted of the Form 1 offence and cannot be said to have been "sentenced to imprisonment … following the person's conviction". 2. The defendant is neither a supervised offender under either of paragraph (a)(ii) or (a)(iv). The State does not therefore establish one of the essential requirements for the making of an ESO, and therefore an ISO. The defendant's concession cannot overcome the absence of a requirement of the Act. 3. For the same reason, s 5B(c) is not made out because the present application is not made in accordance with s 5I. 4. That outcome is an extremely unfortunate one, because I consider that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO for reasons I will shortly give. If my construction of the Act is correct, it would have been necessary for the State to make an application within the then required period before the expiration of the sentence for the offence of take and detain. Although it would have been possible to do that, because any ISO made at that time would have been suspended whilst the defendant was held in custody on the attempt choke offence (s 10(2) of the Act), the exercise would be futile when assessments would be made about the defendant at a time some ten years before the order would come into effect. 5. The present circumstances point to a lacuna in the legislation, although one that is unlikely to arise often. I am not aware of the present situation having arisen in the 14 or 15 years since the Act came into force. 6. My reasons for otherwise considering that the supporting documentation would, if proved, justify the making of an ESO are these. 7. The defendant's first submission was that an order under the Act could not be made because s 6(3)(b) had not been complied with. Section 6(3) provides: An application must be supported by documentation: (a) that addresses each of the matters referred to in section 9 (3), and (b) that 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. 1. Counsel for the defendant submitted that Mr Ardasinski's report said that the defendant had been compliant with his parole supervision, and his post-release support had been met adequately by the NDIS package and other professional networks. Counsel submitted that Mr Ardasinski said that the situation would require consideration as to whether the risk of serious offending was likely to extend beyond the parole period. In that way, counsel submitted, the report does not address the risk of the defendant re-offending at the end of his parole period. 2. In my opinion, counsel for the defendant seemed to misconstrue what the sub-section requires. It does not require a report that assesses that there is a likelihood of the offender committing a serious offence. Rather, there needs to be a report where an assessment has been carried out by the psychiatrist or psychologist which assesses the likelihood, whatever that likelihood might be, of the offender committing a serious offence. 3. A RAR was prepared by Mr Ardasinski as I have said. In that report Mr Ardasinski carried out a current risk assessment using the protocols that I have earlier identified. Those protocols classified the defendant as being at a high risk of committing further violent offences (VRAG-R), assessed him at Level IVa, that is, somebody requiring a moderate-high level of intervention and/or supervision in relation to sexual offending (STATIC-2002R and STABLE-2007), assessed him at the top end of the medium risk range for violent offending (VRS), and assessed him at the moderate-elevated risk category for repeat sexual violence (RSVP). Mr Ardasinski concluded that the defendant falls in the moderate risk category for sexual offending relative to other adult male sex offenders, and in the moderate-high risk category for violent offending. In that way, Mr Ardasinski's report assesses the likelihood of the offender committing a serious offence. Section 6(3) is satisfied. 4. The defendant submitted that the Court could not be satisfied that the defendant is an unacceptable risk of committing a serious offence. He pointed to what was said to be the State's own expert's view, that is, the view of the HROAC. There was put in evidence the minutes from the HROAC of August 2020. Counsel pointed to this portion of the minutes which said: The Committee was unanimous in its decision that it considers Mr Avakian is currently stable and well linked in with community services. The wrap around services in place will likely extend past the end of his current order. An ESO would not appear to offer any further benefit. It was considered that he does not pose an unacceptable risk the community. 1. Counsel also pointed to an email from a member of the Committee dated 3 September 2020 which said (inter alia): Mr Avakian was considered by the High Risk Offender Assessment Committee (HROAC) on 27 August 2020. The Committee did not recommend proceeding to an extended supervision order application for this matter. The wrap around services in place for Mr Avakian were acknowledged by the Committee and it was not considered that an ESO would offer any initial benefit following the expiry of his parole order. The recommendation of the HROAC will now be put to the Attorney-General who is the ultimate decision maker about whether to initiate an application. 1. The portion of the minutes relied upon by the defendant was in fact what took place at the meeting of the Crimes High Risk Offenders Sub Committee when it met on 13 and 24 August 2020. The matter then went to HROAC at its meeting on 27 August 2020 and that committee concluded as follows: It was decided on the basis of the above deliberations that the recommendation of the HROAC is that that matter progress to application for an order. 1. It is not the case, therefore, that the HROAC recommended against an application being made for an ESO. However, even if it did, as the email acknowledged, the Attorney-General is the final decision maker about whether an application should be made. If an application is made it is for this Court to determine the matter on the basis of all of the material before it. 2. It is significant that the opinion of the HROAC is not one of the specified matters in s 9(3) of the Act to which the Court must have regard. Indeed, it is doubtful if the view of that body can be taken into account at all because it must be doubted that its opinion falls within any of the paragraphs in s 9(3). Even paragraph (i) refers only to "other information that is available as to the likelihood that the offender will commit a further serious offence". If its opinion can be regarded as information, that opinion is simply one factor to be taken into account. 3. What the evidence discloses is that at least from October 2020 when Dr Paul Read provided his report, the defendant has been diagnosed as suffering from schizophrenia, substance use disorder in remission in a controlled setting, antisocial personality disorder and a possible intellectual developmental disorder. It is apparent from Dr Read's report that the schizophrenia will only remain under control to the extent that the defendant is compliant with his medication. Dr Read said that the defendant manifested a high load of static risk factors that would remain unchanged over the longer term, and that they occur alongside a moderate loading of dynamic risk factors. A significant risk factor is the defendant's past history of substance abuse. The factors identified by Dr Read largely mirror those identified Mr Ardasinski. 4. I am entirely satisfied that, if the matters contained in the RAR and Dr Read's report were proved at the final hearing, the defendant would be an unacceptable risk of committing a further serious offence, probably a serious violence offence, and an ESO would be justified. 5. The defendant submitted further that even if it was found that he poses an unacceptable risk of committing another serious offence if not kept under supervision, the Court would in its discretion dismiss the application. That appeared to be put on two bases. The first was that an ESO, and an ISO, would be likely to make matters worse for the defendant by increasing the risk he poses. Secondly, and coupled with that, is the fact that the defendant contends that the supports that he has from the NDIS in particular, and which he contends are likely to continue after 30 June 2021, are sufficient to manage his condition and risks/needs. 6. In my opinion, the evidence does not establish that the making of an ISO or an ESO would create more problems for the defendant than he currently has. The defendant relied on a report from his treating psychologist, Dr Gerard Webster, and a psychiatrist, Dr Edward Wims. Neither of these reports suggests that the imposition of an ESO is likely to be detrimental to the defendant. They simply spoke positively of his progress to the time of those reports. 7. Nor am I persuaded that, if his only level of support was what the NDIS provides him with, it would be sufficient given the likelihood of the commission of a serious offence. As Mr Ardasinski noted in his second report, I would also consider that without the supervision of Community Corrections over the past eight months, the other formal supports available to Mr Avakian (his disability support team, and Community Mental Health) would not have been as effective or as coordinated, and Mr Avakian may well have resorted to drug or alcohol use to cope with the stress of life in the community in 2020. 1. In State of NSW v Sturgeon [2019] NSWSC 559, Garling J said: [6] The Court, in undertaking this exercise, is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is no part of the Court's function to predict the ultimate result, or assess the likelihood of the ultimate result. If on the matters alleged in the supporting documentation it is open to the Court at a final hearing to make a CDO or and ESO, then a conclusion that the Court would be justified in making the order, is inevitable. The issue is to be resolved without considering what evidence might be called by the defendant at a final hearing, and without taking into account any evidence which may be called by a defendant at an interim hearing, because such evidence would not cast light upon what is alleged in the supporting documentation: Attorney‑General of NSW v Tillman [2007] NSWCA 119 at [98]. [7] Once the Court reaches the requisite state of satisfaction at a preliminary hearing, there remains a discretion that enables the Court to refuse to make an order for an interim detention order ("IDO") or an interim supervision order ("ISO"): Tillman at [32]. In addressing this discretionary exercise, it is open to a defendant to adduce evidence which addresses the exercise of the Court's discretion. However, having regard to the nature of the HRO Act as protective legislation, and the stated primary object in s 3 of the HRO Act, "… to ensure the safety and protection of the community …", it is difficult to see that the discretion to decline to make an IDO or ISO would arise other than in an exceptional case. 1. There is no evidence to show that this is an exceptional case. 2. Had the State established the requirements contained in ss 5B and 5I, I would not have exercised my discretion against making an ISO. Conclusion 1. I make the following orders: 1. Summons dismissed. 2. The plaintiff is to pay the defendant's costs. ********** Amendments 17 June 2021 - Publication restriction lifted 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: 17 June 2021