State of New South Wales v Victor David Moore [2018] NSWSC 967

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Victor David Moore [2018] NSWSC 967 Hearing dates: 15 June 2018 Date of orders: 26 June 2018 Decision date: 26 June 2018 Jurisdiction: Common Law Before: Wilson J Decision: The summons filed on 18 May 2018 is dismissed Catchwords: HIGH RISK VIOLENT OFFENDER – preliminary hearing – orders sought by State for interim supervision and psychiatric or psychological assessment – making of orders opposed – defendant's long history of summary and Table offending – isolated incident in past meeting definition of "serious violence offence"- short period of compliance with parole in the community – question of gravity of any risk Legislation Cited: Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: State of New South Wales v Lynn [2013] NSWSC 1147 State of New South Wales v Manners [2008] NSWSC 1242 State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 Category: Principal judgment Parties: State of New South Wales Victor David Moore Representation: Counsel: G. Lewer (Plaintiff) A. Cook (Defendant)

Solicitors: L. Armstrong (Plaintiff) C. Hall (Defendant) File Number(s): 2018/00156664 Publication restriction: None

Judgment 1. By way of summons filed on 18 May 2018, the State of New South Wales ("the State" or the plaintiff) commenced proceedings against the defendant, Victor David Moore, under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). 2. The matter came before me on 15 June 2018 at a preliminary stage of the proceedings, as provided for by s 15(3) of the Act, to determine the State's application for an interim supervision order, together with other orders, including for the appointment of two psychiatrists and/or psychologists to conduct separate examinations of the defendant and report the results of those examinations to the Court. 3. At the conclusion of the initial hearing, I reserved my judgment and orders until today. 4. The Application 5. By its Summons, the State seeks the following orders: Appointment of psychologists/psychiatrists An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): Appointing two qualified psychiatrists and/or registered psychologists to conduct separate psychiatric or psychological 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 Directing the defendant to attend those examinations. Interim Supervision Order An order: pursuant to s 10A of the Act, that the defendant by subject to an interim supervision order from 21 July 2018 for a period of 28 days ("the interim supervision order"); and 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 schedule A to this Summons. Extended supervision order An order: pursuant to s 5B and s 9(1)(a) of the Act that the defendant be subject to an extended supervision order ("the extended supervision order") for a period of two years from the date of the order; and pursuant to s 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A to this summons. Restriction of access to file An order that access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access. 1. Only prayers 1, 2 and 4 were pressed at the preliminary hearing. 2. The respondent opposes the making of the interim orders, arguing that his liberty does not pose an "unacceptable risk" to the community within the terms of s 5D of the Act. 3. The Factual and Statutory Background to the Application 4. As of 18 May 2018, the defendant was serving a sentence imposed upon him on 24 January 2017 in the Local Court at Bega. The sentence is one of 18 months imprisonment, with a non-parole period ("NPP") of 6 months. The defendant was released to parole on 22 July 2017, and is presently serving the parole component of the sentence. He is subject to the supervision of the Community Corrections Service. That sentence will expire prior to the determination of the final orders sought by the State. 5. There is no dispute that the preliminary statutory requirements applicable to an order of the nature sought have been complied with. The defendant is an "offender" who has served a sentence of imprisonment for a "serious offence" as defined by ss 4 and 5 of the Act; he is a "supervised offender" within the meaning of s 5I; and the application meets s 5I. The application is supported by the documentation specified by s 6(3) of the Act. 6. The question is whether, if the matters alleged in the material filed in support of the application were to be proved, the orders sought are justified: s 10A. 7. The defendant was born in December 1967 and is now 50 years old. 8. He has a lengthy and long-standing history of committing crimes of violence, albeit not crimes which constitute serious violence offences, there being only one such conviction. His past offences have often been committed in conjunction with alcohol consumption, and in a domestic setting. It is this long history that is the basis upon which the State asserts that the defendant is a violent offender who poses an ongoing risk to the community, such that his continuing supervision is necessary. 9. The defendant's first encounter with the criminal courts came when he was 14 years old, and appeared before the Nowra Court of Petty Sessions charged with an offence of stealing (petrol) contrary to the then s 501 of the Crimes Act 1900 (NSW). He was dealt with by way of a 12 month recognisance pursuant to the now repealed s 556A of the Crimes Act, to be of good behaviour. 10. In 1985 he appeared before the Bega Local Court charged with multiple counts of stealing, for which he was made subject to further recognisances, although on this occasion with conviction pursuant to the former s 558 of the Crimes Act, for concurrent 2 year periods. Later that same year there was a further count of stealing, before the Eden Local Court, for which the defendant was ordered to serve 3 months at hard labour. 11. A further term of hard labour was imposed in August 1987 when the defendant was convicted for malicious injury (an offence which, at that time, ordinarily referred to property damage). He served 4 days for that offence. 12. In April 1989 the defendant was convicted of his first violence offence, one of malicious wounding (from February 1986), with a term of 12 months imprisonment, (with a NPP of 6 months) imposed upon him in Wollongong District Court. That offence appears from the Fact Sheet (tab 19) to have been an entirely unprovoked attack upon a male, in which the defendant punched the victim a number of times to the face, and then jabbed a bottle into his face, smashing the bottle and causing lacerations to the left eye and nose area, and the neck of the unfortunate victim. The eye and neck injuries required closure by sutures. 13. In February 1990 the defendant was convicted of two counts of common assault, malicious damage, break enter and steal, and illegal use of a conveyance and sentenced to imprisonment until the rising of the court. In May that year there was another conviction for a violence offence, for assault female, dealt with by way of a s 558 recognisance for a period of 2 years. 14. Another common assault conviction in June 1991 led to a further s 558 recognisance, for 3 years. The following year the defendant was sentenced to a fixed term of 6 months imprisonment for an offence of assault occasioning actual bodily harm ("AOABH"), together with another conviction for such an offence, for which he received a sentence of 10 months imprisonment, with a NPP of 6 months. Those sentences appear to have been imposed largely concurrently. He was also dealt with in 1992 for some relatively minor dishonesty offences, and a charge of failing to appear. 15. Thereafter followed a period of residence in New Zealand between approximately 1994 and 1999, when the defendant was in a relationship and became father to three children. While no New Zealand criminal history has been made available at the time of this application, the defendant has admitted offending of a similar nature committed in that jurisdiction. 16. Back in New South Wales in 1999 and 2000, the defendant received fines for having custody of a knife in a public place, and for larceny. In November 2000, the defendant was fined for one count of assault officer in the execution of duty, two counts of damage to property, and an offensive language offence. 17. A conviction for common assault followed in January 2001, with a 12 month bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) imposed. The defendant kept his bond, with no offending behaviour until December 2003, when he was charged with, and later fined for, offensive language. 18. In February 2004 the defendant came before Bega Local Court charged with an offence of intimidation, dealt with by way of a 12 month s 9 bond, conditional upon accepting the supervision of the Probation Service and the directions of that service with respect to drug and alcohol rehabilitation. 19. During the currency of that bond the defendant was convicted of stealing from the person, with a further s 9 bond imposed, conditional upon accepting the supervision and directions of the Probation Service, in the same terms. He was later called up on the bond, although no action was ultimately taken for the breach. 20. In October 2005, he was sentenced concurrently for four offences, being assault occasioning actual bodily harm, two counts of contravening an apprehended domestic violence order ("contravene ADVO"), and property damage. A term of 14 months imprisonment with a NPP of 8 months was imposed, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act, upon entering an 8 month supervised bond. The same conditions as to drug and alcohol rehabilitation were fixed. (Those bonds were subsequently called up for breaches, but no action was ultimately taken.) 21. In November of the same year, a fine was imposed upon the defendant for having custody of a knife in a public place. 22. In April 2007 concurrent terms of 8 months imprisonment, with a 6 month NPP, were imposed, for common assault and contravene ADVO. Later that year, in November, a term of 12 months imprisonment (with a 9 month NPP) was imposed for assault occasioning actual bodily harm. A severity appeal to the District Court was unsuccessful. 23. In July 2008, for an offence which contravened his parole for the November 2007 matter, the defendant received a further 12 month term of imprisonment, again made up of a 9 month NPP with a 3 month additional term, for AOABH. Two terms of 6 months imprisonment were imposed on the same day, concurrent with the AOABH sentence and with each other, for two counts of contravene ADVO. 24. The defendant was again convicted of AOABH, being two counts of that offence, in January 2011. He was sentenced for those offences, and for contravene ADVO, to an overall term of 1 year and 9 months imprisonment, with an overall NPP of 15 months. Parole was conditioned upon acceptance of supervision, and undertaking alcohol rehabilitation, including attendance at Alcoholics Anonymous. Parole was later revoked. 25. The defendant was next convicted, without other penalty, of an offence of offensive behaviour, in August 2012. 26. The following year, in September, he was sentenced for the only "serious violence offence" on his criminal history, an offence of recklessly causing grievous bodily harm. Appearing before the Sydney District Court, the defendant received a term of 5 years imprisonment for that offence, with a 3 year NPP. The overall term expired on 1 May 2017. 27. According to the statement of facts before the sentencing court the offence occurred on the late evening of 1 May 2012. The victim was a woman with whom the applicant had been involved for some 6 or 7 years. She had been the victim of assaults by him in the past, including incidents which had resulted in the imposition of gaol terms upon the defendant. The couple had separated by this stage, but remained in communication. 28. On this evening, the defendant asked his former partner to visit him and, although she believed him to have been drinking from his manner of speech during a telephone call, she agreed. On arriving at the defendant's home, the victim saw the defendant "go crazy", yelling at her and telling her to "fuck off out of my life". She turned to leave the residence, but was pursued by the defendant, who grabbed her clothing. The defendant swung his victim around, causing her to lose balance and fall. She fractured various bones in both hands in trying to break her fall, in addition to sustaining a fracture to her nose, subluxation of the jaw, and a broken tooth, which was knocked out when she collided with a concrete step. Suffering extreme pain and probably concussion from her injuries, the victim spent the night on a couch at the defendant's home. 29. The following morning, when she tried to flee, the defendant grabbed her in a headlock and pulled her backwards, causing her to fall and land upon her injured hands. After parting from the defendant later that morning, she was able to make a complaint to police, and receive medical treatment. 30. The sentencing judge, his Honour Judge Solomon, described those facts as "chilling". He observed that the offence was committed when the defendant was affected by alcohol, and noted that much of the defendant's criminal history was "punctuated by alcohol" (p. 4 of the sentencing remarks, tab 111 of the annexures to the affidavit of Elizabeth Wells sworn on 18 May 2018, hereinafter "EW-1"). His Honour referred to one period of about 8 months in 2010 when the defendant made positive changes after ceasing alcohol consumption but, otherwise, noted that his history was one of violence in the context of alcohol use and jealousy. 31. In view of the return to alcohol abuse his Honour was doubtful as to the defendant's prospects of rehabilitation. 32. During the currency of the parole period for that offence, and thus breaching parole, the defendant was before the Bega Local Court where he was convicted of two counts of common assault, one of stalking or intimidation, and one of armed with intent to commit an indictable offence. The sentences he is currently serving were imposed upon him on 24 January 2017, being four concurrent terms of imprisonment of 18 months, with a 6 month NPP with supervision. 33. Those offences were all committed on 17 January 2017 in the context of a domestic relationship. On the evening of that day there was an incident between the defendant and the 9 year old son of his then partner. The child, angered by the intimacy between the defendant and his mother, began to abuse the defendant and throw things at him. The defendant took up a metal vacuum cleaner part and chased the boy, who ran off. Later, when the child returned home, he was denied access to the house, leading to another outburst from the child. The defendant grabbed the boy by his shirt, causing him to strike a wall, and abused him. The boy ran from the room, pursued by the defendant who had armed himself with a baseball bat. 34. The defendant's partner followed them and attempted to intervene, but she was pushed away by the defendant, with sufficient force as to cause her to fall. The child had fled to his bed and took refuge on the bottom of two bunk beds. The defendant yelled, "I'm going to get you now, you're stuck". He swung the baseball bat at the child's head. The child was able to avoid that and a second blow, and the bat struck the wall behind him, leaving holes in it. With the defendant shouting, "What are you going to do; I could kill you in no time", the boy again fled the house. 35. When he returned later, police found him sitting on the steps of the house, dirty, dishevelled, and with a tear stained face. The defendant was charged. 36. During sentence proceedings the defendant attributed the commission of these offences to his use of alcohol, telling the sentencing magistrate, […] my biggest let down again I have a sip and I don't know when to stop (transcript of sentence judgment, tab 10, EW-1). 1. The sentencing magistrate made a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act, and varied the statutory ratio of sentence, such that the defendant was released to parole after six months, a period his Honour considered sufficient for the defendant to "dry out". 2. Since his release to parole on 22 July 2017 the defendant has complied with both parole, and the criminal law. 3. The Evidence 4. The Affidavit of Elizabeth Monique Wells sworn 18 May 2018 was before the Court including, at "Annexure A", a Risk Assessment Report written by Dr Rachel Terry, dated 22 January 2018. 5. Dr Terry is employed as a Senior Forensic Psychologist within the Serious Offenders Assessment Unit of Corrective Services NSW. The opinions given and recommendations made in the report are supported by Dr Cherice Cieplucha, Chief Forensic Psychologist within the Risk Management Programs Unit of Corrective Services NSW. 6. In making her recommendations, Dr Terry relied on a two hour assessment of the defendant conducted on 22 December 2017, a one hour interview on 3 January 2018 and a review of relevant documentation. 7. Psychosocial History 8. Dr Terry's risk assessment report details the impoverished circumstances of the defendant's upbringing in regional New South Wales. The defendant is the eldest of four children and, whilst he described having a strong relationship with both parents, he acknowledged that intergenerational substance abuse and domestic violence were ingrained and normalised within his extended family and community, and that his family were under the attention of the Department of Community Services. He was not forthcoming about his childhood, although overall, he described it in positive terms. 9. The defendant disliked school and reported being made to feel embarrassed and "an outsider" for placement in a "special class" due to his poor literacy skills. After several prolonged absences from school due to illness, the defendant left his education at the age of 15. 10. The defendant reported several intimate relationships in his adult life, all of which have been characterised by instability, substance abuse and domestic violence. He has four children from two such relationships, and remains in contact with three of them. 11. History of Substance Abuse 12. The defendant has a long-standing history of substance abuse dating from his adolescence. By the age of 19, he was assessed in a presentence report as having developed a "pattern of problematic drinking", and has maintained only short periods of sobriety since this time (Risk Assessment Report of Dr Terry, [13]). 13. The defendant acknowledged that his history of alcohol abuse "had greatly impacted all areas of his life including relationships, employment, periods of homelessness and his health". Dr Terry further noted that it had consistently contributed to his violent offending, including the present offence (Risk Assessment Report of Dr Terry, [28]). 14. The defendant also acknowledged use of heroin intermittently over the last 20 years, with increased use within his more recent relationships. 15. Dr Terry reports that the defendant has remained abstinent since his release from custody in July 2017, remains compliant with a weekly buprenorphine programme and attends weekly Narcotics Anonymous meetings. The defendant attributes this period of asceticism to "being away from negative relationships, making the decision to stop drinking and being on the buprenorphine program" (Risk Assessment Report of Dr Terry, [30], ], tab 168, EW-1). 16. Psychiatric and Cognitive Factors 17. Dr Terry notes that the defendant reported no recent psychotic symptoms and did not display any in either interview. However, Dr Terry also indicates that the defendant has had limited interaction with mental health practitioners in the past as he did not "trust them", and that he declined to participate in a psychometric assessment during the interviews. 18. The defendant was assessed in 2007 as being in the low average range of intellectual functioning (Risk Assessment Report of Dr Terry, [33], tab 168, EW-1). 19. Risk Assessment Tools 20. Dr Terry sets out the results of a number of quantitative surveys undertaken by the defendant. The defendant's most recent Level of Service Inventory-Revised ("LSI-R") and Violence Risk Appraisal Guide — Revised ("VRAG-R") scores both placed him in the high-risk category for the commission of further acts of violence. 21. His most recent Violence Risk-Scale ("VRS") assessment, conducted by Dr Terry on the 10 January 2018, classified the defendant in the medium risk range for the commission of further offences of violence. 22. Compliance with Custodial and Community Supervision 23. Since his first incarceration in 1990, the defendant has been sanctioned for 10 offences in custody including intimidation, refusing or failing to comply with urinalysis, fighting, possessing unauthorised property and failing to comply with routine. Relevant collateral material suggests that his periods of instability of behaviour in custody have corresponded with periods of disclosed illicit substance abuse within custody. Otherwise, it is noted by Dr Terry that the defendant is described "in generally positive terms, including being compliant with direction and productive within employment" (Risk Assessment Report of Dr Terry, [24], tab 168, EW-1). 24. Dr Terry extracts a portion from a Pre-Release Parole Report made for the defendant in 2017, by way of summary of the defendant's previous response to community supervision: Despite his long criminal history dating from 1982, Mr Moore first came into contact with Community Corrections in February 2004 when he was subject to a twelve month Section 9 Good Behaviour Bond for the offence of Stalk/Intimidate with intent to cause fear physical/mental harm. He was required to address his alcohol use whilst supervised. He breached this Good Behaviour Bond in October 2004 when he was charged with Steal from person and sentenced in 2005. He has served a number of supervision periods since this time with all of his supervision focusing on him addressing his alcohol abuse. He has breached a number of these sentences by way of re-offending or by discharging himself from formally directed rehabilitation facilities without permission (K Thomas, 15/01/2017 extracted in Risk Assessment Report of Dr Terry, [25], tab 168, EW-1). 1. Dr Terry does note however, that case notes obtained since the defendant's release on parole on 22 July 2017 detail the defendant's compliance with parole orders, his appropriate engagement with community corrections staff, the defendant's maintenance of steady employment and accommodation, and no evidence of substance abuse. 2. Participation in Offenders Programs 3. The "VOTP" refers to the Violent Offender Therapeutic Program. It is a high intensity, residential program which is offered to medium-high risk violent offenders, undertaken in NSW correctional centres. 4. Dr Terry reports that the defendant was deemed eligible for the VOTP, but refused to consent to referral on at least three occasions between 2014 and 2016. Upon each refusal, the defendant reportedly stated that "as violence only occurred when he was engaging in substance abuse, it would no longer occur given his decision to remain abstinent at that time" (Risk Assessment Report of Dr Terry, [36], tab 168, EW-1). 5. Dr Terry also references the EQUIPS Domestic Abuse programme, which aims to provide offenders with necessary skills to address their offending behaviour over the course of 20 sessions. The defendant completed a condensed version of this programme on 30 May 2016, and while limited information was available to Dr Terry regarding specific treatment gains, the defendant's completion notes stated: "Although Victor seemed to contradict himself at times, he generally acknowledged responsibility for his actions throughout the entire program. Victor was familiar with the concept of core belief and was able to link these to unhelpful thinking patterns. He identified alcohol abuse as a high risk factor and he appeared to be genuine in his strong desire to remain abstinent post release" (quoted from OIMS Casenote, E. Kern, 30/05/16). 1. The defendant has also completed two programmes aimed at addressing substance abuse. He completed the Ngara Nura Programme in 2008, although no information was made available to Dr Terry in writing her report regarding the defendant's participation or treatment gains in the programme. The Ngara Nuru Programme is an intensive six month psycho educational course focussed on the factors underlying an individual's substance addiction, misuse or dependence. 2. The defendant also completed the Intensive Drug and Alcohol Treatment Programme ("IDAPT") on 11 June 2015. The IDAPT is a twelve-month, prison-based residential therapy programme offered to medium-high to high-risk offenders with a drug or alcohol addiction linked to their offending behaviour and/or a history of committing drug-related offences. The programme aims to provide offenders with insight into their substance dependence and offending behaviour, and reduce recidivism through the provision of life skills, resources, and support to facilitate their reintegration into the community. 3. Dr Terry notes that the defendant's IDAPT Discharge Summary and OIMS records indicate that "overall he engaged well with the programme", and was able to utilise helpful behavioural strategies and "challenge the negative thinking that might lead him to relapsing into alcohol use". The defendant identified his top risk factors for relapse as: "(1) when things are going good; (2) boredom; and (3) if a significant other is drinking" (Risk Assessment Report of Dr Terry, [41], tab 168, EW-1). 4. However, Dr Terry also references certain limitations to the defendant's treatment gains expressed in the IDAPT Discharge Report, including: "[…] difficulties in recalling specific details in his past and a limited ability to self-reflect, with Mr Moore described as being defensive when challenged within the programme. The report raised some concerns regarding his difficulties in understanding the complexities of intimate relationships in addition to having difficulties reflecting on situations in context" (Risk Assessment Report of Dr Terry, [15-16], tab 168, EW-1). 1. The defendant declined the recommendation of, and offer from, treatment facilitators of further psychological assessment to exclude cognitive deficits and to explore the above issues. 2. The Report also addresses the defendant's engagement with community-based treatment programs, noting that in August 2006, he completed a three-month program at the Glen Rehabilitation Centre. As outlined above at [51], the defendant currently attends weekly Narcotics Anonymous meetings, and remains compliant on the buprenorphine program collected on a weekly basis.