Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Colb (Preliminary) [2023] NSWSC 471 Hearing dates: 28 April 2023 Date of orders: 28 April 2023 Decision date: 05 May 2023 Jurisdiction: Common Law Before: Weinstein J Decision: See [58] Catchwords: HIGH RISK OFFENDERS – preliminary hearing – interim supervision orders not opposed – risk of repeat serious violence offending Legislation Cited: Crimes (High Risk Offenders) Act 2006 Cases Cited: R v Grant John Colb [2006] NSWSC 811 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Grant Colb (Defendant) Representation: Counsel: D New (Plaintiff) R Khalilzadeh (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2023/74585 Publication restriction: Nil JUDGMENT 1. On 28 April 2023, I conducted a preliminary hearing pursuant to s 7(3) of the Crimes (High Risk Offenders) Act 2006 (the HRO Act). What follows are the reasons for the orders I made on that day. 2. The plaintiff, the State of New South Wales (the State), commenced proceedings by Summons filed on 2 March 2023 seeking orders that the defendant, Mr Grant Colb, be subject to an Extended Supervision Order (ESO) pursuant to ss 5B and 9(1)(a) of the HRO Act for a period of 3 years subject to conditions as set out in the Schedule to the Summons. I gave leave to the plaintiff to file in court an Amended Summons dated 27 April 2023. The only amendments were to conditions contained in the Schedule to the Summons. 3. At the preliminary hearing, the plaintiff sought only the interim and interlocutory relief as set out in prayers 1 and 2 and the ancillary order at prayer 4 of the Amended Summons as follows:- "Interim and interlocutory relief 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): a. Appointing two qualified psychiatrists or psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and b. Directing the defendant to attend those examinations. 2. An order: a. pursuant to s. 10A of the Act, that the defendant be subject to an interim supervision order ("the interim supervision order") commencing 19 May 2023; b. pursuant to s. 10C(1) of the Act, that the interim supervision order be for a period of 28 days; and c. pursuant to s. 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this Summons. Ancillary relief 4. An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of that 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 of access." 1. The defendant sought the following additional orders, which were consented to by the plaintiff: "1. The parties to have liberty to relist the matter on two days' notice, including but not limited to circumstances where: a. the defendant is granted bail; b. the defendant is otherwise released from custody; or c. the defendant is convicted of any further charges but is not sentenced to imprisonment by way of full-time detention. 2. Where the defendant is required to attend the examinations referred to in Order [X], and where criminal proceedings against the defendant are either still on foot or have been finalised prior to the examination for a period of 28 days or less, the practitioners conducting psychological and/or psychiatric examinations of the defendant are directed to not ask the defendant any questions about or arising from those charges and their criminal proceedings. This order does not prevent the experts referring to the fact of the charges and the allegations in their reports, if the experts consider those aspects relevant to their assessment of the defendant's risk(s)." 1. There was no opposition by the defendant to the making of an Interim Supervision Order (ISO) and the associated orders, although the defendant reserved his rights with respect to the imposition of an ESO and its conditions for the final hearing. I observe that the defendant is currently in custody, bail refused for a charge of common assault which is alleged to have occurred between 22 March 2023 and 24 March 2023. 2. Both the State and the defendant provided written submissions that addressed the proposed conditions. There was some disagreement during the course of the preliminary hearing as to the wording of some of the conditions sought. There was debate about some, but not all of them. The conditions I imposed are set out at Annexure A to this judgment. 3. I am grateful to Ms New who appeared on behalf of the State and to Ms Khalilzadeh who appeared on behalf of the defendant, for the collaborative manner in which they approached these proceedings. Exhibits 1. Before me were three exhibits, as follows:- 1. Court Documents including affidavits of James Palmer affirmed 2 March 2023 and 26 April 2023 on behalf of the State, and an affidavit of Sarah Salman sworn 21 April 2023; 2. Part 1 of Exhibit JP-1 (exhibited to the affidavit of Mr Palmer affirmed on 2 March 2023), which includes a great deal of historical material relating to Mr Colb, including material relevant to his conviction for murder, other offending in Queensland which preceded the murder, custodial and Community Corrections records and parole records; and 3. Offender Integrated Management System notes. 1. I have had regard to the content of all three exhibits. Background 1. The defendant is currently 46 years old. He has an extensive criminal history which began when he was 14 years of age. 2. Mr Colb is serving an 18-year sentence of imprisonment for the murder of David McKeever on 12 May 2005 (the index offence). This offence was committed after Mr Colb was released on a suspended sentence for an offence of inflicting grievous bodily harm (the GBH offence) on 13 April 2005. Mr Colb pleaded guilty to the index offence and was sentenced on 11 August 2006 by Latham J (see: R v Grant John Colb [2006] NSWSC 811). The sentence was fixed to commence from 20 May 2005 with a non-parole period of 14 years. The non-parole period expired on 19 May 2019 and the head sentence will expire on 19 May 2023. 3. Mr Colb was released to parole in respect of the index offence on 6 July 2022 but it was revoked on 23 September 2022 because the defendant was found to be using methamphetamine, and there were concerns about Mr Colb's escalating risk factors. The State Parole Authority (the SPA) rescinded this revocation of parole on 14 November 2022. However, on 12 December 2022, Mr Colb's parole was again revoked after he tested positive to methamphetamine, and because Mr Colb had deviated from his schedule of activities and his accommodation arrangements had broken down which resulted in him becoming homeless. This revocation of parole was rescinded on 24 January 2023. Mr Colb's current parole includes conditions such as electronic monitoring and a schedule of activities. Legislative Framework 1. The following sections of the HRO Act have relevance. 2. Section 3 of the HRO Act sets out its objects:- 3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. 1. Section 7 of the HRO Act sets out the requirement for a preliminary hearing to take place and the orders that the court must make if it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO:- 7 Pre-trial procedures (1) An application for an extended supervision order must be served on the offender concerned within 2 business days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (2) The State must disclose to the offender such documents, reports and other information as are relevant to the proceedings on the application (whether or not intended to be tendered in evidence)— (a) in the case of anything that is available when the application is made, as soon as practicable after the application is made, and (b) in the case of anything that subsequently becomes available, as soon as practicable after it becomes available. Note— Section 21A (6) provides that the State must not disclose a victim statement to the offender unless the person who made the statement consents to the disclosure. (3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders— (a) appointing— (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application. 1. Thus s 7(4) of the HRO Act provides that if, following a preliminary hearing, the Court is satisfied that the matters alleged in the supporting documents would, if proved, justify the making of an ESO, it must make the order sought by the plaintiff for the appointment of the experts to conduct examinations. If, following the preliminary hearing, the Court is not so satisfied, pursuant to section 7(5), it must dismiss the application. 2. The effect of s 7(4) is that on an application for an ISO, the factors set out in s 9(3) are relevant. Therefore, although this is a preliminary hearing, it is necessary to look at the supporting material in Exhibits 1, 2 and 3 and to evaluate whether or not it is sufficient (if proved) to justify the making of an ESO. 3. Section 10A of the HRO Act provides: 10A Interim supervision order The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court— (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. 1. The defendant's head sentence expires on 19 May 2023, satisfying s 10A(a). 2. Section 10C of the HRO Act provides: 10C Term of interim supervision order (1) An interim supervision order commences on the day fixed in the order for its commencement (or if no such day is fixed, as soon as it is made) and expires at the end of— (a) such period (not exceeding 28 days from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period—the period specified in paragraph (a) plus each period during which the order is suspended. (1AA) However, the Supreme Court may defer the operation of an interim supervision order in relation to an offender who is in current custody for a period of up to 7 days (the deferral period) if— (a) the Court considers that it is necessary to detain the offender for the deferral period to enable arrangements to be made for supervision of the offender in the community, and (b) it does not appear to the Court that an interim detention order can be made for the interim detention of the offender. (1AB) On the deferral of the operation of an interim supervision order, the Supreme Court may order that the offender concerned be detained for a specified period (not exceeding the deferral period) after the offender's current custody expires. (1AC) As soon as practicable after making an order under subsection (1AB) the Supreme Court must issue a warrant for the committal of the offender for the specified period after the offender's current custody expires. (1AD) A warrant under subsection (1AC) is sufficient authority for the offender to be kept in custody in accordance with the terms of the warrant. (1A) An interim supervision order, and the offender's obligations under that interim supervision order, are suspended during any period the offender is in lawful custody, whether under this or any other Act or law. (2) An interim supervision order may be renewed from time to time, but not so as to provide for the supervision of the offender under such an order for periods totalling more than 3 months. (3) Any day or part of a day on which an interim supervision order is suspended does not count towards the 3-month limit referred to in subsection (2). 1. Section 5B sets out four pre-requisites for the making of an ESO. I note that the parties do not dispute that the requirements of each of subsections (a) –(c) are met in this case, and I observe that I am independently satisfied. Section 5B 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. As to s 5B(d), it is the key provision with respect to the making of an ESO. 2. I observe that s 9(2) of the HRO Act provides that, in determining whether or not to make an ESO, "the safety of the community must be the paramount consideration." This is consistent with the primary object of the HRO Act as set out in s 3(1). 3. Section 9(3) sets out the matters to which the Court must have regard in its determination as to whether or not an ESO should be imposed:- (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant— (a) (Repealed) (b) the reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence. 1. As to conditions that may be imposed when making either an ISO or an ESO, s 11 provides: 11 Conditions that may be imposed on supervision order (1) An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender— (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name, or (k) to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender's residential address, or (l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or (m) to comply with specified requirements in connection with the offender's access to and use of the internet, or (n) to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender. (2) An extended supervision order or interim supervision order must include a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services. 1. As I have already indicated, in this matter there was no real dispute about whether or not an ISO should be made. There were only brief disputes about conditions, which were easily resolved during the hearing. 2. In its written submissions, the State helpfully set out the approach the court is required to take in this matter. I note that Ms Khalilizadeh agrees with that approach. First, I must determine whether the court can order an ESO, which is governed by the "gateway" provision in s 5B. Second, I must determine whether the court should order an ESO or otherwise dismiss the application, taking into account the matters the Court must consider in s 9(3). 3. The evidence discloses (and it is not disputed) that Mr Colb has been sentenced to imprisonment for a serious offence (murder) satisfying s 5B(a), that the application was commenced prior to 19 May 2023 when Mr Colb was on parole as a "supervised offender" satisfying s 5B(b) and that the application meets the timing requirements of s 5B(c). 4. As to s 5B(d), I must consider the factors in s 9(3), which is an evaluative task of assessing risk. Section 9(3) Factors 1. Mr Colb had a deprived, disadvantaged and dysfunctional childhood, which included a history of being the victim of significant assaults for which he now has complex trauma issues. I observe that this background provides context for his criminal history (to which see below). He lived with his father, his mother and then in various institutions. He was described by his father as an "uncontrollable child" who refused to attend school. At age 13 he became a ward of the State and was placed in foster care in Victoria for 8 weeks. Thereafter, Mr Colb was variably homeless or housed in juvenile justice facilities. At age 16 or 17, Mr Colb began engaging in sex work in Kings Cross to make money to fund his drug habit. Mr Colb has a history of chronic polysubstance use, having commenced the use of cannabis at age 12 or 13. He was using heroin from age 16 and cocaine by age 18 or 19. In the days leading up to the index offence, he was regularly using methamphetamines and amphetamines. 2. In 1993, when Mr Colb was 15 years old, he hitchhiked in Surfers Paradise and was brutally assaulted by a man who picked him up in his car. Mr Colb has reported being similarly assaulted numerous times in prison, including on an occasion in Queensland in 2003. After that assault, Mr Colb repeatedly self-harmed and was placed on suicide watch. He has been diagnosed with post-traumatic stress disorder (PTSD). Criminal history up to July 2002 1. Mr Colb's criminal history began when we has 14 years old. He was convicted of an offence almost every year from age 14 up to the commission of the index offence. The charges between 1991 and 1996 largely involved property crime. The first time Mr Colb served a custodial sentence was in 1995 when he was sentenced to 9 months for robbery in company. 2. In 1996, Mr Colb's offending escalated in violence when he committed an offence of assault occasioning actual bodily harm (AOABH). Thereafter, Mr Colb continued to commit theft and drug related offences, including offences for which he was sentenced to 6 months imprisonment in 1997. He was further imprisoned in 1998 and 1999 for several driving and theft offences. He was convicted of theft and AOABH in the ACT and convicted and imprisoned in Victoria in June 1999 for possessing heroin and the possession of goods suspected of being stolen. In 2002, Mr Colb was convicted in Queensland of stealing and drug related offences. In July 2002, Mr Colb was arrested and taken into custody for the GBH offence for which he was sentenced on 13 April 2005 to a 5 year suspended sentence without supervision. Index offence 1. On 12 May 2005, while serving the suspended sentence for the GBH offence, Mr Colb murdered Mr McKeever, after going to visit him in South Duras on that day. Mr Colb stayed the night with Mr McKeever. Mr McKeever was found dead the next morning by his mother. He had suffered several injuries including stab wounds to his face and neck. 2. Mr Colb was arrested on 20 May 2005. In an ERISP, when Mr Colb was asked why he killed Mr McKeever, he said that when he was 16 years old, he and his brother were indecently assaulted by Mr McKeever on a beach at Bateman's Bay. Mr Colb's brother, however, denied that this incident occurred. 3. Mr Colb pleaded guilty on 11 August 2006 and he was sentenced by Latham J. In her remarks on sentence, her Honour found that there was no direct evidence of a sexual relationship between Mr Colb and Mr McKeever, but that Mr Colb exploited Mr McKeever's sexual interest in him in the hope that he would continue to support him when needed. Her Honour found that this was consistent with Mr Colb's conflicted sexual identity, in the context of his experience living on the streets and engaging in sex work with older men in return for means of support. 4. Her Honour was not prepared to make a finding that Mr McKeever had assaulted Mr Colb and his brother. However, she found that Mr McKeever did or said something that was interpreted by Mr Colb as a betrayal, or as a sexual advance, which her Honour found was an unremarkable outcome in the context of his disturbed psychiatric state arising from past traumatic assaults. GBH offence 1. On 28 July 2002, Mr Colb and a female entered the unit of the victim to steal back a mobile phone that they had earlier sold to the victim. Mr Colb told police that the female initially tried to take the mobile phone, but the victim pushed her away, so he punched the victim once with a clenched fist before running out of the unit. The victim was hospitalised with a fractured skull and skull fragments lodged in his brain, for which he required significant surgery. The victim also suffered substantial facial and head bruising and lacerations. The victim was unable to recall the object that had struck him and he denied assaulting or provoking Mr Colb prior to the attack. 2. Mr Colb pleaded guilty to robbery with actual violence in company and inflicting grievous bodily harm and he was sentenced to the 5-year suspended sentence referred to above. The sentencing judge noted that Mr Colb had worked and completed courses whilst in custody, that he had stopped using illicit substances and that he had "embarked on his own rehabilitation." Within a month, Mr Colb committed the index offence Assessments of risk Reports of Dr Giuffrida dated 26 May 2006 and 22 June 2006 1. Dr Michael Giuffrida, forensic psychiatrist, prepared reports dated 26 May 2006 (the May report) and 22 June 2006 (the June report). They were commissioned by Legal Aid for Mr Colb's sentence hearing with respect to the index offence. These reports are now 17 years old. 2. In the May report, Dr Giuffrida stated that Mr Colb had a history of using illicit drugs, and that Mr Colb reported amphetamine and methamphetamine use prior to the index offence. He also summarised Mr Colb's history of sex work and the significant assaults perpetrated upon him. The State submits that Dr Giuffrida's comments are relevant to evaluating Mr Colb's current risk of committing another serious violence offence, given his relapse to using methamphetamine since being released to parole. With respect to Mr Colb's history of engaging in sex work and the history of significant assaults against him, the State submits that Mr Colb's complex trauma issues were never addressed whilst he was in custody, and this fact is relevant to evaluating the current risk of repeat serious violence offending. 3. Dr Giuffrida was of the view that Mr Colb had an "extremely high level of dependency" on staff generally, and in particular the medical staff in prison. Dr Giuffrida offered an opinion that those staff members may have fulfilled Mr Colb's emotional needs. Dr Giuffrida referred to this as a "seemingly gross even total dependence" and "institutionalisation with its inevitable effects". Dr Giuffrida believed that Mr Colb's emotional needs were not met following his release from custody in April 2005. The State submits, based on Dr Giuffrida's findings, that Mr Colb requires high intensity supervision and support when he is returned to the community. 4. In the May report, Dr Giuffrida diagnosed Mr Colb with:- 1. PTSD as a result of his history of being violently assaulted; 2. Learning disorders in childhood, with his adolescent records suggesting that he suffered from Attention Deficit Hyperactivity Disorder; 3. Conduct Disorder in childhood which manifested in aggression, destruction of property, deceitfulness, lying and from age 12 onwards "serious violation of societal rules and a persistent criminal career"; 4. Antisocial Personality Disorder (ASPD) which manifests in an exacerbation of the behaviours associated with his Conduct Disorder; 5. Borderline Personality Disorder with a "pervasive pattern of severe instability and interpersonal relationships and self-image, with marked impulsivity in the full range of contexts"; and 6. Substance Abuse Disorder. 1. In the June report, Dr Giuffrida said that upon his release to the community, Mr Colb would require ongoing support, including counselling and supervised accommodation. In Dr Giuffrida's view, extensive support and supervision would substantially reduce the risk of harm to himself and to the community. Report of Dr Michael Beech 17 May 2004 1. Dr Beech, psychologist, prepared a report for the sentence proceedings in respect of the GBH offence. Dr Beech reported Mr Colb's claims of significant assault, both in prison and as a 15 year old, and the significant deterioration of his mental health as a result of PTSD and self-harm. In Dr Beech's opinion, Mr Colb had a "highly prejudicial childhood with a deterioration into early onset Conduct Disorder with a later development of significant antisocial activities in a context of polysubstance abuse," and diagnosed PTSD and ASPD. Risk Assessment Report (RAR) 1. Ms Patrycja Luketic, senior psychologist at the Serious Offenders Assessment Unit, prepared a comprehensive Risk Assessment Report (RAR) on 4 October 2022. In my opinion, it is the most important document tendered in the proceedings because of its contemporaneity. Ms Luketic notes concerns about the relationships Mr Colb was forming whilst on parole with vulnerable people in the community, including a 16 year old boy and people with limited cognitive capacity. In Ms Luketic's opinion, Mr Colb's behaviour suggests that he is willing to utilise support structures available to him, but his institutionalisation creates significant obstacles that may cause him to relapse, which will increase the risk of him committing further serious violence offences. 2. In Ms Luketic's opinion, Mr Colb has numerous dynamic risk factors predictive of a risk of repeat violent offending. They include:- 1. Substance abuse issues causally connected to his offending; 2. Distorted views about the offending, and the externalisation of blame and minimisation and/or rationalisation for it. She observes that since completing the Violent Offenders Therapeutic Program (VOTP), Mr Colb has developed some insight; 3. Poor emotional control which appears to be causally connected to erratic outbursts of violence; 4. Interpersonal aggression/violence during institutionalisation and impulsivity, which should be managed by developing coping strategies in negative situations; 5. Violent lifestyle and association with criminal peers. For example on his most recent release to parole, he has gravitated to antisocial associates, about which he has poor insight; 6. Poor compliance with supervision; 7. Weapon use (there being a historical association between the use of weapons and his offending); and 8. Instability of relationships which in turn can cause Mr Colb to struggle to control his emotions, which is a factor that causes him to react aggressively and/or violently. 1. In Ms Luketic's opinion, if Mr Colb were subject to an ESO, he would receive intensive case management and supervision which would significantly mitigate the risk of him committing a further serious violence offence. Statistics 1. Noting the limitations of risk assessment tools, Ms Luketic assessed Mr Colb as being in the high risk category for repeat violent offending. In coming to this conclusion, Ms Luketic applied or noted other experts' application of the Level of Service Inventory-Revised tool and the Violence Risk Scale. Risk Management Report (RMR) 1. The RMR dated 22 November 2022 was prepared by Ashley Newby, Community Corrections Officer, Extended Supervision Team. Similarly to the RAR, it is amongst the most contemporaneous of the documents tendered. Ms Newby found the same criminogenic needs as identified by Ms Luketic. At the time that the RMR was written, Mr Colb's parole had been revoked and he had returned to a methadone program. Mr Colb told Ms Newby that he was not taking his prescribed mental health medication because of how it made him "feel". Ms Newby commented that Mr Colb was initially compliant with parole and that he engaged with support services. However his willingness to participate in supervision declined overtime. Concerning behaviour included the use of methamphetamines, communication with a 16 year old male, associating with a child sex offender subject to an ESO and signing up to dating websites. Ms Newby recommends measures to assist in risk management should Mr Colb be released on an ESO. Parole reports 1. Some of the matters detailed in the parole material demonstrate that:- 1. As of February 2019 there were concerns for community safety, and it was not recommended that Mr Colb be released to parole; 2. In March 2020, after Mr Colb completed the VOTP, he still presented with dynamic risk factors indicating repeat violent offending, although he expressed a willingness to comply with high intensity supervision. Parole was not recommended and was refused; 3. In March 2021, parole was (again) not recommended because it was considered that Mr Colb needed to complete addiction treatment programs, that there was no suitable accommodation available upon his release and there was a lack of progression to ready Mr Colb for release; 4. By about October and November 2021, parole was recommended because of Mr Colb's "improved behaviour, community support and the limited time available for supervision on parole." However due to a breakdown in his relationships with his siblings and the unavailability of suitable accommodation, parole was not recommended in December 2021; 5. Mr Colb was released to parole on 6 July 2022. In August 2022, he disclosed that he had used methamphetamines. It was also reported that he had been associating with a known sex offender. Conditions were put in place to address these behaviours, but parole was revoked on 22 September 2022; 6. The September 2022 revocation was rescinded by the SPA on 14 November 2022. However Mr Colb's parole was again revoked on 14 December 2022 due to Mr Colb breaching his schedule. The Community Corrections Officer noted in his breach of parole report that Mr Colb was "superficially compliant" with parole. This revocation was rescinded on 24 January 2023; and 7. Mr Colb is currently in custody for a charge of common assault allegedly committed whilst on parole. Programs 1. Mr Colb completed the VOTP in May 2020 and attended maintenance sessions from that time until his first release to parole in 2022. It was reported that Mr Colb engaged well in sessions but failed to engage strategies aimed at mitigating his emotional dysregulation and/or risk of violence. There were varying accounts about Mr Colb's behaviour. Whilst there were some gains made across various dynamic risk factors, further work was said to be needed to assist Mr Colb in employing strategies to manage his risk factors. 2. The RAR summarised programs that Mr Colb completed in custody. These include the Controlling Anger and Learning to Manage program, the EQUIPS program and the CONNECT program, which is a general therapeutic program that addresses logic and emotional thinking, acceptance, communication and resilience. Mr Colb has also been on the methadone program since 2010. Plaintiff's submissions 1. The State submits that the court can be satisfied that the evidence, if proved, justifies the making of an ESO. In particular, the State says that the Court can be satisfied to a high degree of probability that Mr Colb poses an unacceptable risk of committing a serious violence offence unless he is supervised and that an ESO would be justified and appropriate because:- 1. Mr Colb presents with a range of dynamic risk factors including: 1. Engrained difficulties in forming relationships and intimacy deficits (because of his childhood); 2. Substance use, which the State submits is a real risk as he used methamphetamines on both occasions that he was released to parole in July and December 2022; 3. Personality diagnosis: Cluster B Antisocial Personality Disorder which manifests in emotional dysregulation and impulsive violent outbursts; 4. PTSD because of his abuse and significant assault history; and 5. Using violence to problem solve and his proclivity to using weapons (that proclivity inviting the reasonable inference that Mr Colb's risk of violence could readily reach the threshold of "serious violence"). 1. Risk assessment tools categorise Mr Colb in the high risk category of repeat violent offending; and 2. Experts believe that Mr Colb is institutionalised and that he has a high level of criminogenic needs which require intensive supervision, support services, ongoing therapy and monitoring to mitigate the risk of reoffending. Defendant's position 1. The defendant did not oppose the making of an ISO and but reserved his position with respect to an ESO until the final hearing of the matter. Conclusion 1. Having regard to the evidence before me, the thoughtful submissions of counsel and the matters identified in s 9(3) of the HRO Act, I was satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. In my opinion, those matters would, if proved, satisfy the Court to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is released back into the community and not kept under supervision. For these reasons, I made the orders sought and the conditions that are annexed to this judgment. 2. Finally, I note three matters that arose during the hearing. First, it appears that Mr Colb has had contact with the National Disability Insurance Scheme (NDIS). It may be that he has been provided with a plan or a package. Any information about Mr Colb's involvement with the NDIS will be highly relevant to the court hearing the final application. Second, there is a strong suggestion in the evidence that Mr Colb, perhaps 30 years ago, suffered a traumatic brain injury. If that is so, then the effect of that injury on his mental and physical function will likewise be highly relevant to the final application. Third, if the brain injury is established, it may be appropriate for him to undergo neuropsychological testing. Orders 1. The orders I made on 28 April 2023 are as follows:- 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): 1. Appointing two qualified psychiatrists or psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. directing the defendant to attend those examinations. 1. An order: 1. pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order ("the interim supervision order") commencing 19 May 2023; 2. pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days; and 3. pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Annexure to this judgment. 1. The parties to have liberty to relist the matter on two days' notice, including but not limited to circumstances where: 1. the defendant is granted bail; 2. the defendant is otherwise released from custody; or 3. the defendant is convicted of any further charges but is not sentenced to imprisonment by way of full-time detention. 1. Where the defendant is required to attend the examinations referred to in Order (1) above, and where criminal proceedings against the defendant are either still on foot or have been finalised prior to the examination for a period of 28 days or less, the practitioners conducting psychological and/or psychiatric examinations of the defendant are directed to not ask the defendant any questions about or arising from those charges and their criminal proceedings. This order does not prevent the experts referring to the fact of the charges and the allegations in their reports, if the experts consider those aspects relevant to their assessment of the defendant's risk(s). 2. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of this Court and, if any application for access is made by a non-party in respect of that 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 of access. 3. The matter is stood over to the High Risk Offenders list on 11 May 2023. Annexure A No. Condition 1. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO. 2. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service. 3. The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations. 4. Delete. 5. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment. 6. 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. Note: A DSO is to assist the defendant to the extent possible in relation to condition 6. 7. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period. Note: A DSO is to assist the defendant to the extent possible in relation to condition 7. 8. The defendant must not deviate from his approved schedule of movements except in an emergency or unless he has approval to deviate from the schedule. 9. In addition to and without limiting any of the other conditions, the defendant must not go within 1km of Sydney and Bankstown Airports and Sydney Cove Passenger Terminal, or any point of departure for an international destination, except for the purpose of reporting to a DSO as directed, attending upon a Community Corrections office in accordance with his approved schedule or as directed, or attending upon other government services in accordance with his approved schedule as directed. 10. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements. 11. The defendant must be at his approved address between 9PM and 6AM unless other arrangements are approved by a DSO. 12. Delete. 13. The defendant must allow a DSO to visit him at his approved address at any time and to enter the premises at that address. 14. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO. 15. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO. *In the context of shared accommodation, 'approved address' is the defendant's personal room in the supported accommodation. 16. The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports. 17. The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW. 18. The defendant must not frequent or visit any place or district specified by a DSO. 19. The defendant must take reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs. 20. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO 21. The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his next interview with a DSO. 22. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO. 23. The defendant must not use or possess prohibited drugs, or abuse drugs unlawfully obtained. 24. The defendant must not possess or consume alcohol without the prior approval of a DSO. 25. The defendant must submit to drug and alcohol testing. 26. The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO. 27. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO 28. The defendant must not associate with any person or persons specified by a DSO. Without limiting condition 28, the defendant must not: 29. i. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO; ii. associate with any people who he knows are consuming or under the influence of illegal drugs; iii. associate with any person held in custody without prior approval of a DSO. 30. The defendant must not engage the services of sex workers, without the prior approval of a DSO. 31. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary to address the safety of the community. The defendant should first be provided with an opportunity to make the disclosure himself. 32. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation. The defendant must not possess or use any of the following: 33. a. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996, b. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998. Without limiting or altering condition 33, the defendant must not possess or use any of the following, without a DSO's prior approval: 34. a. a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened, other than kitchen/home-use knives for use at the defendant's residence; b. any other implement made or adapted for use for causing injury to a person; or c. anything intended, by the person having custody of the thing, to be used to injury or menace a person or damage property. 35. The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to internet and restrictions on deleting information). 36. The defendant must not use any alias, electronic identity, log-in name, name other than Grant Colb or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers. 37. The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and, if so requested by the DSO, the device has been seen and approved for use by a DSO. 38. The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other usernames as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection as directed. 39. The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind. 40. The defendant must not use any coded or encrypted messaging application or service. 41. The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant's electronic devices or accounts as a result of a search or a remote inspection. 42. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including but not limited to, use of internet-based email, instant messaging services, online community services, multi-player video games and other telecommunications-based services including text and voice services. 43. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order. 44. The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO. In the case of any automatic deletion of any of these items, the defendant must notify a DSO within 48 hours of noticing an automatic deletion. 45. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO. 46. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search. 47. 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 this Order. 48. The defendant must notify a DSO as soon as practicable if he has purchased, possessed or possesses, accessed, obtained, viewed, participated in or listened to material classified or material that could be classified as Refused Classification, X18+, Category 2 Restricted and Category 1 Restricted, or any other material as directed by a DSO with respect to concerns related to the risk of committing a serious offence. 49. The defendant must comply with any reasonable directions given by a DSO regarding the purchase of, possession, access, obtaining, viewing, participation in or listening to material classified or material that could be classified as Refused Classification, X18+, Category 2 Restricted and Category 1 Restricted, or any other material captured by condition 48 above. 50. The defendant must not change his name from Grant Colb or use any other name without notifying a DSO. 51. The defendant must not significantly change his appearance without the approval of a DSO. 52. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance. 53. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details. 54. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction. 55. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults. 56. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed. 57. The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them: 58. a. With each other; and b. With a DSO, where that information (in the opinion of the defendant's treatment, service and healthcare providers) is relevant to the management of Mr Colb's risk factors. 59. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO and CSNSW. 60. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him where that information is relevant to the management of Mr Colb's risk factors. ********** Amendments 04 August 2023 - Amendment to annexure 14 August 2023 - typographical amendment to [51] 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: 14 August 2023