Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Reay [2014] NSWSC 1813 Hearing dates: 9 December 2014 Decision date: 19 December 2014 Jurisdiction: Common Law Before: Button J Decision: (1) The two orders made by me on 9 December 2014 are quashed. (2) The defendant is subject to a continuing detention order of 12 months duration to date from Friday 19 December 2014 and expire on 18 December 2015. (3) A warrant is to issue for the committal of the defendant to a correctional centre for the period specified in order 2. (4) The defendant is subject to an extended supervision order of two years' duration to date from 18 December 2015 and expire on 17 December 2017. (5) During the period of the extended supervision order specified in order 4 the defendant is to comply with the conditions set out in Schedule A to the summons filed 29 August 2014, save for the amendment made at the hearing to condition 3 of Part M, and the deletion of conditions 7-9 of Part E. (6) The plaintiff is permitted to provide the reports of Dr Ellis and Dr Furst in these proceedings to: (a) Any psychiatrist or psychologist involved in treating and/or counselling the defendant; and (b) Community Corrections officers involved in the defendant's supervision. Catchwords: CIVIL LAW - Crimes (High Risk Offenders) Act 2007 - application for a continuing detention order - application for extended supervision order - defendant commenced intensive rehabilitation program since imposition of interim detention order - consideration of the availability of appropriate accommodation - whether the plaintiff has satisfied the Court that there is a high degree of probability that, if released without supervision, the defendant poses an unacceptable risk of committing a serious violent offence - whether adequate supervision will be provided by an extended supervision order Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 4, 5A, 5E, 5G, 17(4) Cases Cited: R v Steadman [2013] NSWSC 170 State of New South Wales v Lynn [2013] NSWSC 1147 State of NSW v Reay [2014] NSWSC 1362 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Richard Reay (Defendant) Representation: Counsel: D T Kell (Plaintiff) M Johnston (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid New South Wales (Defendant) File Number(s): 2014/254707 Judgment 1On 3 October 2014, I made a number of orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) founded upon a summons filed by the plaintiff on 29 August 2014. To state the effect of those orders succinctly, they requested the preparation of two psychiatric reports with regard to the defendant and imposed an interim detention order (IDO) upon him of 28 days. I delivered a judgment giving reasons for those orders: State of NSW v Reay [2014] NSWSC 1362 (the interim judgment). That IDO was extended by other judges of this Court on two occasions. The matter came before me for final hearing of the remaining orders sought in the summons on 9 December 2014. On that occasion, I extended the IDO until its last possible expiry date, 4 January 2015. On the same occasion, I made it clear to the parties that I would deliver this judgment well before then. 2The vast bulk of the evidence in this matter was before me at the time when I delivered the interim judgment. At the final hearing, with one exception, neither party submitted that there were any errors of fact or law in that first judgment. Nor was it submitted that there were any important matters that I had overlooked at that stage. Accordingly, in order to avoid fruitless repetition, I consider that it is appropriate that my interim judgment be regarded as being incorporated in this final judgment. Position of the parties 3To state the contention of the plaintiff succinctly, it was that the defendant should be the subject of a continuing detention order (CDO) for 18 months. Thereafter, he should be the subject of a very strict extended supervision order (ESO) for five years. If I were not prepared to make the CDO, the contingent position of the plaintiff was that I should make an ESO of five years. 4In oral submissions, counsel for the plaintiff accepted that the effect of the orders sought in the summons would be that I would fetter the liberty of a citizen for a period of no less than six and a half years (comprising a CDO of 18 months and a subsequent ESO of five years). He did not seek to dissuade me forcefully from my initial thought that that could be far too long, especially in light of the fact that the evidence is that, for the first time in his life, the defendant has recently begun to address the issue of his violent offending, and seems to be progressing very well. 5The defendant adopted a primary position, with a number of contingent positions. 6His primary position was that there should be no fetter on his liberty, whether by way of a CDO or an ESO, now that his sentence has expired. 7If I were against him on that, his position was that there should be no CDO, but a very strict ESO of some length. 8If I were against him on that, his position was that the CDO should be for no more than 12 months' duration, and any subsequent ESO should be for no more than two years' duration. 9At the hearing, defence counsel raised two issues with the proposed conditions of the ESO contained in Schedule A to the summons as filed. First, he questioned the need for a condition mandating that the defendant take any prescribed anti-libidinal medication, on the basis that there is no suggestion of the defendant being a sexual offender. The plaintiff was content not to press that condition, and condition 3 of Part M was amended accordingly. 10The second issue concerned proposed conditions 7-9 of Part E, which deal with the contact between the defendant and "vulnerable persons". In brief written submissions provided after the hearing, defence counsel submitted that those conditions were inappropriately imprecise, given that the defendant would be subject to criminal sanction in the event of contravention of them. Counsel for the plaintiff chose not to provide any written submissions on the issue. In the circumstances, if an ESO is made, Schedule A will be amended to remove the conditions dealing with "vulnerable persons". 11Neither party at the final hearing submitted that the index offence was not a "serious violence offence" as defined in s 5A of the Act, or that the defendant was not a "violent offender" as defined in s 4. That was a continuation of their position at the interim hearing. The real issue was whether the tests in ss 5E and 5G of the Act had been established by the plaintiff, bearing in mind in particular the matters mandated for consideration by me in s 17(4) of the Act. 12Nor did either party seek to persuade me that my analysis in State of New South Wales v Lynn [2013] NSWSC 1147 about the breadth of the definition of a "serious violence offence" in s 5A of the Act was incorrect. That section is relevantly as follows: 5A Definition of "serious violence offence" (1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, 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. ... 13Accordingly, I maintain and repeat my earlier analysis (at [16]): At its lowest, on analysis a serious violence offence could be an offence that features an act causing grievous bodily harm done with foresight of the possibility that actual bodily harm could occur. An example that springs to mind is punching someone to the face whilst realising that it is possible that the victim will receive a split lip and the victim, as a result of the punch, falling back and hits his or her head on concrete and suffering a very large laceration to his or her head. Clearly, the concept of a serious violence offence is not confined to offences of homicide, or even the intentional infliction of serious violence. New evidence 14I shall briefly summarise the material that was placed before me at the final hearing, and that was not available at the interim hearing. 15In accordance with my request, two highly experienced forensic psychiatrists provided me with reports about the defendant. Each of them concurred in the opinion (already expressed by other experts in the evidence) that, both on an actuarial and an individual analysis, the defendant presents a high risk of committing a serious offence of violence if released. Both psychiatrists diagnosed the defendant with a severe antisocial personality disorder, and substance use disorder. In his report of 29 October 2014, Dr Ellis stated that it is possible that the defendant could also be diagnosed with attention-deficit hyperactivity disorder. In his report of 19 November 2014, Dr Furst stated that the defendant had only borderline intellectual function, and had limited capacity to reflect on and gain insight into his behaviour. 16Secondly, the material with regard to the offending of the defendant in Queensland, and his incarceration in that state, was expanded and clarified. Suffice to say that the offences that he committed there were serious ones. In contrast to much of his other offending, they were dealt with in the District Court of Queensland. His behaviour in custody in Queensland was deplorable, and he constituted a severe management challenge. Tragically, things deteriorated to the point where at one stage he was held in segregation and enjoyed no real human contact for three years. 17Thirdly, since I imposed the IDO, the defendant has commenced the Violent Offenders Therapeutic Program (the VOTP) at Parklea Correctional Centre. Although that program is conducted in a maximum security jail, it is a therapeutic environment in which the patients are separated from main discipline. The program is intensive and involves group and individual therapy. It takes 12 months to complete, and ideally should be followed up by maintenance therapy for six months. Perhaps contrary to the expectations of everyone, not least the defendant, the evidence shows that he has made a very sound and constructive start in that program. 18Fourthly, there was a limited dispute between Dr Ellis, forensic psychiatrist, and Ms Matsuo, psychologist and state-wide Manager for Programs within Corrective Services New South Wales, about the effectiveness of the program that the defendant has recently commenced. Ms Matsuo was quite optimistic about the effectiveness of such programs in reducing reoffending, both with regard to the number and severity of any further offences; Dr Ellis perhaps somewhat less so. 19By the end of the oral evidence, I think that the opinions of the two witnesses had moved very close together. My own finding with regard to any remaining dispute is that such programs are useful, though of course they cannot guarantee complete rehabilitation and abstinence from offending, either with regard to a cohort of patients, or indeed with regard to an individual patient. Dr Ellis also expressed the opinion that such programs can work just as well in the community as in custody. So much may be accepted; but the objective fact is that there is no such program available in the community in New South Wales in 2014. 20Fifthly, in my interim judgment I noted that, if the defendant had been released on the day of the complete expiry of his head sentence, he would have had literally nowhere to live. I expressed the concern at [31] that "he would be literally homeless and, I infer, reduced to roaming the streets". Counsel for the defendant at the final hearing submitted that that was an overly pessimistic finding. There was evidence at the final hearing that, if the defendant were released, there probably would be some sort of crisis accommodation available to him on a highly temporary and unstable basis. 21I accept the submission of counsel for the defendant that, based upon the new evidence, my interim finding was too negative. Still and all, at the final hearing there was no suggestion of any specific accommodation (whether structured or otherwise) being available and having been arranged by or for the defendant. That was in the context of me having emphasised the centrality of the question of accommodation in my judgment of 11 weeks ago. I think that I am entitled to infer that neither the authorities nor those who are assisting the defendant have been able to find any settled accommodation to which the defendant could go upon his release from prison. I also think that I am entitled to infer that there is a distinct possibility that this man could become homeless if released. Finally, I consider that I am entitled to infer that there is a very high probability that, if he were able to find crisis accommodation, it would be very short term, disorganised, and quite unstructured. 22Sixthly, counsel for the defendant submitted that new evidence suggests that there are some forms of accommodation and support that are not available to the defendant coming directly from custody, but that could well be available to him once he is in the community. In that sense, counsel for the defendant submitted that his client is caught in a further "Catch 22" (above and beyond the one to which he pointed at the interim hearing, and which I discussed in my interim judgment at [24]): he has nowhere to live because he has not been released; because he has nowhere to live, he may not be released. 23Seventhly, counsel for the defendant submitted that it could be that residence at a full time drug and alcohol rehabilitation centre would be an appropriate option for the defendant. After all, there is no doubt that the defendant has abused drugs and alcohol in the past, and that that abuse is connected with his violent offending. That would be a therapeutic and highly structured environment. And, quite apart from the strictness of the conditions of any ESO, it would itself constitute a fetter on misbehaviour: if the defendant broke any of the rules of the centre he would be breached and returned to custody. 24There is some force in that submission. But to my mind a drug and alcohol rehabilitation centre is not a viable option. I say that for the following reasons. First, the real problem of the defendant is his proclivity for violence, not abuse of drugs and alcohol (although I accept that the latter exacerbates the former). So much is demonstrated by his conduct in custody, during which time one is entitled to presume that his access to drugs and alcohol is at the least severely curtailed. Secondly, there would be a real concern about the safety of other patients and staff if the defendant were released to a drug and alcohol rehabilitation centre. Thirdly, no such accommodation has been arranged in any event. 25Eighthly, the defendant appeared at the final hearing by way of audio-visual link from a prison. He was a little disruptive throughout the course of the hearing. But I think that it is completely natural for a prisoner to be resentful and exasperated when he or she is held in custody pursuant to the Act after the complete expiry of a lengthy head sentence. I do not rely upon any aspect of the behaviour of the defendant at the hearing in a way adverse to his interests. Determination 26In light of the position of the parties about the statutory preconditions contained in ss 4 and 5A having been fulfilled, the first test that I am required to apply to the evidence is contained in s 5E of the Act. It is as follows: 5E High risk violent offender (1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender. (2) An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence. 27In short, I am required to determine whether the plaintiff has satisfied me that there is a high degree of probability that, if released without supervision, the defendant poses an unacceptable risk of committing an offence of the breadth that I discussed in State of New South Wales v Lynn. 28An important aspect of that test is the question of the unacceptability of any risk identified. Clearly that reposes an evaluative judgment in me. I considered the nature of that judgment, along with the concept of "a high degree of probability", in R v Steadman [2013] NSWSC 170 (although that was a case about a high risk sexual offender, nothing about the analysis of the concepts of "unacceptable risk" and "high degree of probability" is inapposite). I referred to that discussion in my interim judgment, and at the final hearing neither party submitted that my understanding of those concepts was incorrect. Accordingly, I extract the relevant portion of my judgment in that case: [65] I have approached the requirement of satisfaction "to a high degree of probability" as constituting an elevated standard of proof that falls between the criminal standard and the civil standard, in accordance with Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; (2007) 178 A Crim R 133. [66] As for what is involved in the concept of "unacceptable risk of committing a serious sex offence" I respectfully adopt what was said by Davies J in State of New South Wales v Richardson (No. 2) [2011] NSWSC 276 at [90]: "Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. That is also because s 17(3) provides for the further assessment that if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk a supervision order will not be adequate to meet the risk." 29Turning to my determination with regard to the test in s 5E(2) and (3), there is, of course, no question of the defendant being detained for the purpose of him completing the VOTP. The Act neither calls upon me nor permits me to fetter the liberty of a defendant if his or her rehabilitation is incomplete or not optimal. The only question is whether or not the test in s 5E has been made out by the plaintiff, to a high degree of probability. 30The defendant has committed many acts of violence over many years. They have involved attacks upon people to whom he is close, and people with whom he has no connection whatsoever. They have involved attacks upon people in authority (such as police officers and prison officers), and upon civilians. They have featured the use of weapons to the head. They have occurred whilst the defendant has been at liberty, and whilst he has been incarcerated. Some of the attacks have been random, in the sense of seeming to be motiveless, unprovoked attacks upon strangers. Although it is true that some of them are towards the less serious end of the spectrum in terms of consequences, in more than one case that has been the result of good fortune rather than any restraint on the part of the defendant. The "index offence" of inflicting grievous bodily harm with intent, and which was constituted by a motiveless attack with a baseball bat to the head of another man, could easily have been fatal. Indeed, on that occasion, there is evidence that the defendant himself said to a witness that, if she had not intervened, that could very well have been the result. 31Whilst it is commendable that the defendant has recently sought to address this very long-standing problem and appears to be making sound progress, that process has only just begun. The view of the experts is unanimous that he continues to present a high risk of committing a serious offence of violence. 32I think that the submission of counsel for the plaintiff that, even if subject to strict supervision, it is very easy to imagine the defendant responding with serious violence to something as mundane as a bus driver requesting him to take a seat rather than stand in the vicinity of the bus doors, is soundly based. 33I am well satisfied that the test contained in s 5E of the Act is made out. I am satisfied, to a high degree of probability, that there is a risk of the defendant committing a serious violence offence if he is not kept under supervision. I also evaluate that risk as unacceptable. 34It follows that I am called upon to make either a CDO or an ESO. In determining which order to make, the parties agreed that I am to apply the test contained in s 5G. That test is as follows: 5G Continuing detention orders for high risk violent offenders (1) The Supreme Court may, on application under this Act, make an order for the detention of an offender if the offender is a high risk violent offender and the Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order. (2) An order made under this section is a continuing detention order. (3) A continuing detention order made under this section may also be referred to as a high risk violent offender continuing detention order. 35Again, there was no dispute before me that the onus of proving the test in s 5G(1) falls upon the plaintiff. 36There is force in the submission of the defendant that the conditions of the ESO contained in Schedule A to the summons of the plaintiff are very strict. They themselves will provide a fetter on the ability of the defendant to commit offences. I also accept his submission that the prospect of being returned to custody if he breaches any of those conditions will provide some deterrence against offending for this man who has spent a decade in custody. 37Nevertheless, I inescapably return to the fact that the defendant has no accommodation arranged for his release, let alone any settled accommodation in a structured or therapeutic environment. I consider that accommodation that is settled in terms of being available to the defendant for a period of a fortnight, at the very least, as opposed to on a night by night basis, is an essential precondition to this man being adequately supervised in the community by way of an ESO. 38I do not accept that, as things stand on the evidence placed before me, supervision by way of an ESO would be "adequate". It follows that the statute permits me to make a CDO. To the extent that the use of the word "may" in s 5G(1) reposes a discretion in me, I consider that the evidence placed before me argues strongly in favour of me making a CDO. 39I turn to consider the length of that order. The statute does not provide any guidance in that regard, beyond stipulating that a CDO cannot exceed five years' duration: s 18. I consider that I am entitled, to some degree, to take into account logistical and practical questions in determining this question, whilst bearing in mind that every day of any CDO will constitute a grave interference with the liberty of a citizen. 40The defendant commenced the VOTP in November 2014. The program takes one year to complete. Whilst it may be preferable for prisoners not to be released into the community directly from maximum security, as Ms Matsuo explained in the witness box that it is by no means without precedent. And in any event, I accept the submission of counsel for the defendant that the therapeutic community that is the VOTP is not to be equated with maximum security. Furthermore, the evidence is that the maintenance program in custody is hardly intensive. I think that it could just as well be carried out by Forensic Psychology Services if the defendant were at liberty pursuant to a strict ESO; indeed, possibly more effectively, in light of the baleful effect of being in a maximum security prison upon a person who is trying to free himself from a tendency for violence. 41For those reasons, I do not propose to impose a CDO of greater than 12 months' duration. 42As for any subsequent ESO, I think it could be presumptuous of me to try to make predictions about the position of the defendant many years from now. After all, the evidence is that he has finally made a start in addressing his long-standing criminality. As well as that, it is to be remembered that an ESO, in the terms sought by the plaintiff, itself constitutes a very substantial fetter on the liberty of the defendant. 43I accept the submission of the plaintff that the test contained in s 5E of the Act for making an ESO has been made out with regard to the period after the expiry of the CDO, for the general reasons that I have provided above and in my interim judgment. 44As for its length, it is true that each party is at liberty to have the length and conditions of an ESO varied throughout its currency, pursuant to s 13 of the Act. Nevertheless, I do not consider that that fact should lead me to impose an ESO of great or substantial length, and thereby then place upon the defendant the obligation of seeking to have it varied or shortened in the future. To the contrary, I think that I should err on the side of parsimony, whilst bearing in mind the overriding purposes of the Act. 45In the circumstances, I am not prepared to impose an ESO subsequent to the 12 month CDO, of more than two years. 46Turning to one technical matter contained in the Act, I consider that the requirements of s 18(1)(a) will be the subject of compliance by me, so long as I impose the CDO first and the ESO immediately thereafter. 47Finally, it was made clear at the hearing by counsel for the defendant that ancillary order six with regard to the provision of reports was not opposed. Orders 48I make the following orders: (1)The two orders made by me on 9 December 2014 are quashed. (2)The defendant is subject to a continuing detention order of 12 months duration to date from Friday 19 December 2014 and expire on 18 December 2015. (3)A warrant is to issue for the committal of the defendant to a correctional centre for the period specified in order 2. (4)The defendant is subject to an extended supervision order of two years' duration to date from 18 December 2015 and expire on 17 December 2017. (5)During the period of the extended supervision order specified in order 4 the defendant is to comply with the conditions set out in Schedule A to the summons filed 29 August 2014, save for the amendment made at the hearing to condition 3 of Part M, and the deletion of conditions 7-9 of Part E. (6)The plaintiff is permitted to provide the reports of Dr Ellis and Dr Furst in these proceedings to: (a)Any psychiatrist or psychologist involved in treating and/or counselling the defendant; and (b)Community Corrections officers involved in the defendant's supervision. ********** Schedule 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: 19 December 2014