Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Loto [2018] NSWSC 1522 Hearing dates: 12 September 2018 Date of orders: 11 October 2018 Decision date: 11 October 2018 Jurisdiction: Common Law Before: Rothman J Decision: The Court orders that: (1) Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): (a) Two qualified psychiatrists or registered psychologists (or any combination of such persons) be appointed 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 (b) The defendant attend those examinations. (2) (a) Pursuant to s 10A of the Act, the defendant be subject to an Interim Supervision Order from 11 October 2018 for a period of 28 days ("the Interim Supervision Order"); and (b) Pursuant to s 11 of the Act, the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in Schedule A. (3) 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 for access. (4) Each party has liberty to make application, within 7 days, to address a Condition in Schedule A not previously addressed. Catchwords: HIGH RISK OFFENDER – Interim Order Sought and obtained – No issues of principle – Question of whether risk is "unacceptable" – Question whether Court should, in its discretions, make orders – Orders made. Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Terrorism (High Risk Offenders) Act 2017 (NSW) Cases Cited: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 State of NSW v Ceissman [2018] NSWSC 508 Category: Procedural and other rulings Parties: State of New South Wales (for the Attorney General of New South Wales) (Plaintiff) Francis Loto (Defendant) Representation: Counsel: J S Emmett (Plaintiff) D Carroll (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid (Defendant) File Number(s): 2018/241016 Publication restriction: Nil Judgment 1. HIS HONOUR: By Summons filed 6 August 2018, the State of New South Wales seeks an Extended Supervision Order ("ESO") against the defendant, Francis Loto. The order is sought under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). The State of New South Wales seeks an Interim Supervision Order ("ISO") to operate from 11 October 2018 for a period of 28 days or until the ESO has issued. 2. The State of New South Wales also seeks the appointment of two experts (each of whom would be either a psychiatrist or a psychologist) to report on the defendant. Those reports, it is submitted, will be relied upon by the State of New South Wales at the final hearing. Other ancillary orders are also sought. Principles 1. The principles applicable to the granting of an ESO and an ISO have now been the subject of authority and are, generally, uncontroversial. The initial focus of the Court is on index offences relating to serious violence offences (or serious sexual offences) and the risk of offending must be an unacceptable risk before any orders of that kind may issue. 2. The Act must be read and construed as a whole. In so doing the task of the Court is to achieve the purposes of the statute and to achieve harmonious goals: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. It is, however, the objective intention of the legislature, obtained from the words of the statute, that is the basis upon which the purpose and goals of the legislature are ascertained. 3. The primary objective of the Act is prescribed by s 3 and 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. A further object is set out in the provisions of s 3(2), being the encouragement of rehabilitation. 4. The Act defines a "serious violence offence" as a serious indictable offence in which the offender has engaged in "conduct that causes the death or grievous bodily harm of another person, with the intention of causing, or while being reckless as to causing, the death or grievous or actual bodily harm to another person", or attempting to commit such an offence. Section 5B of the Act provides the Court with jurisdiction to make an ESO if the defendant is an offender who is serving (or has served) a sentence of imprisonment for a serious offence either in custody or under supervision; if the defendant is a supervised offender; and the application for the order is made in accordance with the Act (hereinafter those three conditions will be referred to as "technical conditions"). Further, the Court is required to be 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". 5. Section 5D of the Act makes clear that the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence. 6. There is no issue between the parties that the technical conditions are satisfied, namely, that the defendant is or has served a sentence of imprisonment for a serious offence, is a supervised offender within the meaning of s 5I and the application was made while the defendant was under an existing Interim Supervision Order, Extended Supervision Order, Interim Detention Order or Continuing Detention Order or serving a sentence of imprisonment for an offence, which is a serious offence or is being served concurrently with a prison term for a serious offence. 7. An issue before the Court is whether the defendant poses an unacceptable risk and, if the defendant does pose such a risk, whether the Court should exercise its discretion to make the order sought in the circumstances before it. 8. If the Court were minded to make such an order, some, at least, of the conditions proposed by the State of New South Wales are in issue and are opposed by the defendant as not being relevant to, or capable of ameliorating, the particular risk said to be posed by the defendant. 9. The pre-trial procedures and the test relating to the making of an ISO allow the Court to make orders if, in proceedings for an ISO, it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO: see s 7(4) and s 10A(b) of the Act. In determining whether to make an ESO, the paramount consideration is the safety of the community: s 9(2) of the Act. Further, the Court must also have regard to a number of criteria prescribed in s 9(3) of the Act. 10. Some of the criteria prescribed in s 9(3) of the Act are plainly inappropriate considerations in the making of an ISO (or at least the first ISO, such as in the present proceedings). For example, the criteria in s 9(3) of the Act include consideration of examinations that are conducted pursuant to orders made by the Court under the pre-trial procedures in s 7 of the Act. Similarly, the Court is required, in determining whether to make an ESO, to consider rehabilitation programs, some of which, at least, the defendant would not have had an opportunity to undertake. 11. Nevertheless, the Court is required, in determining whether to grant an ISO, to consider whether an ESO would be made if the matters alleged in the supporting documentation of the application were to be proved at the final hearing. It is necessary for the Court to deal, at least to some extent, with the term "unacceptable risk". 12. The ascertainment of a risk and its denotation as "unacceptable" occurs in the usual way. There are many areas of the law in which risk assessments are required to be undertaken and, generally, they identify and evaluate the possibility of an injury that may be sustained as a result of a possible (and often foreseeable) occurrence. In assessing risk and whether the risk is unacceptable, a court is required to deal with a matrix of considerations. 13. First, there is the probability or possibility that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest. 14. The matrix exists because of the need to balance the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the manifestation of that risk. Thus a risk, the consequences of which are catastrophic, may be unacceptable, even though the occurrence of that risk is only slightly possible. 15. On the other hand, where the manifestation of a risk involves minor injury, such as a contusion, even a high probability of its manifestation may not render the risk unacceptable. For a full discussion, albeit in the context of the Terrorism (High Risk Offenders) Act 2017 (NSW), which is in relevantly identical terms, see State of NSW v Ceissman [2018] NSWSC 508 at [26]-[33]. 16. In the current proceedings, the serious harm, hazard or loss to which the risk must relate, is the harm, hazard or loss occasioned by the commission of another serious violence offence. 17. Further to the foregoing, it is necessary for the Court to consider the term "matters alleged" as it is utilised in the provisions of s 10A(b) of the Act. For example, it is insufficient, for the purposes of the Act, for the State of New South Wales to allege boldly the conclusion that the risk of the defendant committing a further serious violence offence is more probable than not in order for the Court to be satisfied that "the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order". 18. The matters alleged, as that term is used in s 10A(b) and in s 7(4) of the Act, is a reference to matters of fact, not mere allegations. First, this involves the State of New South Wales alleging facts that are capable of being proved. Secondly, the matters alleged do not refer to a conclusion, they refer to the facts that would lead the Court to a particular conclusion. 19. In the foregoing circumstances, it is necessary for the State of New South Wales to allege certain facts, which, if proved, would lead to a conclusion that would justify the making of an ESO. Nevertheless, it is unnecessary for the State of New South Wales to prove "a prima facie case", as would be required in a committal proceeding. 20. In an ISO determination, there are significant difficulties associated with the notion of the exercise of the discretion that is reposed in the Court at the time the Court considers whether an ESO should issue. This is as a result of the combination of circumstances associated with the satisfaction of the Court that would be necessary before the exercise of discretion would arise. 21. The Court would need to be satisfied that the technical requirements had been satisfied. Further, the Court would need to be satisfied that the defendant posed an "unacceptable risk". 22. It is only at that stage that the Court is able to determine whether, in its discretion, an Extended Supervision Order, binding on the defendant, should be made. That determination, at the ISO and ESO stages, requires the Court to give paramount consideration to the safety of the community. 23. It would be a most unusual case that caused the Court to conclude that the defendant posed an unacceptable risk but, at the interim stage, not to exercise the discretion to make an ISO. 24. Having made that comment, the Court takes the view that, in a similar way to a committal proceeding, there may be applications that come before the Court where, properly considered, the facts alleged, while if proved would amount to an unacceptable risk, would not, when properly considered, amount to circumstances in which the Court would issue an ESO. 25. It is necessary to deal with the particular circumstances of the defendant, including the reports as they currently exist. It is also necessary to examine the defendant's criminal history. Facts Alleged 1. As is made clear from foregoing, the defendant's offending satisfies the definition of a serious violence offence. The index offences upon which the jurisdiction is based occurred on 1 April 2012. 2. The defendant and a co-offender had "gate crashed" a party and had been asked to leave. After leaving the party, they attacked a random security guard and the defendant, together with his co-offender and others, punched, kicked and stomped on the victim; stole his wallet, watch and phone; and dragged the victim along the ground, discarding him at the rear of a shopping centre. The defendant fled. The victim stumbled to a telephone and called for help. 3. The victim was hospitalised for five days and suffered significant injuries including a cerebral haematoma or haemorrhage, a fractured nose and a lacerated ear. Alcohol was a factor in the offending. 4. The defendant has a history of offences of violence committed while a juvenile, including assault. He has also committed offences of aggravated stealing; assault with intent to rob; robbery in company; (the index offence) of assault person with intent to cause grievous bodily harm; robbery in company causing wounding; and other less serious offences. 5. After his imprisonment, the defendant was charged with offences that occurred during his imprisonment. The defendant also committed offences which constituted a breach of his bail. Those offences include assault occasioning actual bodily harm in company (which is not a serious violence offence) and he is currently charged and will face a hearing for the offences of affray and assault occasioning actual bodily harm. There is a further offence of affray that is listed for hearing on 22 July 2019. 6. It is fair to say that Mr Loto does not have the most serious criminal history of persons against whom an ISO or ESO has been sought. Nevertheless, for a lengthy period (including the time he was a juvenile), the defendant has involved himself in acts of violence. The Court, as presently constituted, is prepared to treat less seriously offences that occurred in prison, because of the violent environment in which such offences occur. Nevertheless, the history of the defendant shows a willingness to engage in violent behaviour and to ignore the rules by which he was bound. 7. The State of New South Wales relies upon a risk assessment report completed on 6 February 2018 by Dr Calinda Payne, Senior Psychologist, High-Intensity Program Unit, Violent Offender Therapeutic Program. The report notes certain history of offending both as a juvenile and otherwise (see above) and noted that the defendant's explanation was that he was under the influence of alcohol at the time of the particular offending. 8. The report also notes the prison offences at Parklea. This included an assault on an inmate, observed on CCTV, during which the defendant struck the victim on the head with a sandwich press. 9. A charge of affray was preferred in February 2017, relating to an incident in which an inmate was assaulted at the Mid North Coast Correctional Centre. These offences and the Facts Sheet relating to them are before the Court. 10. The risk assessment, to which earlier reference has been made, noted the defendant's refusal to follow directions from custodial staff and the violence committed in company. Otherwise, he had been described as polite and cooperative when under increased supervision, such as segregation. The defendant was affiliated with gangs throughout his imprisonment. 11. The psychologist, in the aforementioned report, refers to the alcohol abuse by the defendant and noted the defendant's admission that, even though he denied he would be violent again in the absence of prison politics, he did not have alternative strategies to replace violence. 12. The psychologist notes, as is well-known, that it is not scientifically possible to predict, accurately, whether a particular individual will or will not reoffend or will or will not commit another serious violence offence. Nevertheless, she describes the risk assessment process as "multifaceted, combining the use of actuarial approaches and an assessment of relative presence of individual dynamic (changeable) factors that have contributed to a pattern of violent offending behaviour". 13. The static risk assessment, otherwise described as the conceptual actuarial risk, is an assessment of risk based on statistics only and does not include an assessment of the particular issues associated with a particular offender. As a consequence, every offender in a particular class will be classified similarly by static risk factors. In other words, if that were the only assessment method, every person with certain age and upbringing characteristics, who had committed a serious violence offence, would be classified as a high-risk offender and there would be no need for a Court finding as to whether the offender posed an "unacceptable risk". 14. In accordance with the foregoing, static assessment methods estimated the defendant's risk of being convicted of further violent offences as being within the high risk range. The statistical comparison is with Canadian offenders as there are no appropriate statistics for comparison in the Australian jurisdictions. The static risk factors include: current age; age at the time of first violent conviction; number of young offender convictions; violence throughout life span; prior release failures/escape; and stability of family upbringing. 15. It is relevant to note the defendant described his upbringing as fairly dysfunctional in which he witnessed and experienced physical abuse by his mother's partner; sexual abuse by an uncle; abandonment by his father; and was given up by his mother. His grandparents provided some stability but that did not survive his grandfather's death. The report notes that it appeared that "his mother and grandmother had little knowledge of [the defendant's] misbehaviour and a limited ability to manage any problematic behaviour". 16. The dynamic risk factors that were identified for the defendant included: his violent lifestyle; his criminal personality; his criminal attitude; his work ethic (or lack thereof); the criminal peers with which he was associated; interpersonal aggression; lack of emotional control; violence during institutionalisation; the use of weapons; lack of insight into the cause of violence; the defendant's substance abuse; the lack of stability of relationship with significant others; the lack of appropriate community support; the possibility of release to a high-risk situation; the cycle of violence; impulsivity; cognitive distortions; a history of non-compliance with community supervision; and his security level in prison immediately prior to his release. As would be expected, there is a degree of overlap between these factors. 17. The report points out that the defendant had a well-documented gang affiliation in the community and in prison and that his involvement in violent offending and the disregard for rules and laws tend to reflect an antisocial personality. Further, the defendant does not seem to react in the usual manner to events of violence that ordinarily evoke strong emotions, such as child sexual abuse, perceived persecution, the effect of abuse on victims. 18. The defendant did express some interest in prosocial activities including gainful employment, hard work and a partner but "did not accept the need, or demonstrate the motivation, to change his attitudes or behaviour in order to achieve those goals". The report noted that, at the time of its writing, the defendant had few protective factors. It also noted that he does not like being controlled by others and commenced the use of violence to exert control in order to give him a sense of power. 19. The other way in which the defendant engaged in violent offending was as a result of his perception that he was being persecuted and he developed explicit plans to "retaliate in order to maintain his position of power". The report described him as "hypersensitive to signs of persecution" and, as a consequence, the defendant "is likely to perceive innocuous cues as signs of mistreatment. He will perform an explicit plan to act violently and this may involve obtaining a weapon." 20. The report describes the overall risk in the following terms: "42. The management of risk usually involves the offender improving their level of functioning in the aforementioned dynamic risk areas. As individuals address and become more skilled at managing dynamic risk factors, their ability to manage their overall risk improves. In [the defendant's] case, he has only contemplated change but he has taken no action to develop the insight, skills or motivation to change. 43. The overall totality of evidence suggests that [the defendant] presents a high risk of further serious violent offending if not made subject to an order under the HRO Act. Until such time as [the defendant] has developed more effective strategies for meeting his needs than drinking alcohol and violence he will likely continue to pose a high risk of repeat violent offending which may involve serious violence, given his history of the same." 1. As earlier stated, the foregoing conclusion was in a report compiled in February 2018. There is a question as to whether the conclusion is valid as at the date on which the Court is required to determine the risk. 2. Nevertheless, the conclusion, albeit in the form of an opinion of an expert, is a conclusion of fact based upon evidence that was before the author of the report. As a fact, it is a "matter alleged" and the current situation will be determined by the later reports that are required. If orders were made in accordance with the prayers in the Summons seeking up-to-date psychiatric and psychological assessments, those facts, if proved, would satisfy the Court that the defendant poses an unacceptable risk. 3. A further risk management report was compiled on 9 March 2018, the details of which I do not recite. The March 2018 report (hereinafter the "Second Report") noted some concern relating to the defendant's desire to live with his grandmother and details a risk management plan, which involves weekly interviews focusing on development and implementation of a comprehensive case plan. 4. The Second Report also noted that the defendant may derive limited benefit from intensive supervision if he is not sufficiently engaged with Community Corrections or if he were to engage in a superficial manner. Partly this is due to the previously displayed aggression towards staff in a custodial setting, which will require his levels of engagement and aggression towards staff to be monitored closely. 5. The management strategy will include scheduled and unannounced home visits; field visits and surveillance by the ESO Investigations Team; field surveillance and observations by the Team; the examination and/or observation of his immediate accommodation environment and the like. 6. The Second Report referred, in particular, to the need for electronic monitoring to allow Community Corrections to impose exclusion zones around high-risk locations, such as those that involve substance use, negative peer localities and violence. The weekly schedule of movements that are sought in the conditions that the Court is asked to impose under section 11 of the Act, coupled with the electronic monitoring, would provide a significant degree of discipline in terms of forward planning; minimising impulsive acts; and the planning of pro-social activities so as to occupy his time meaningfully. 7. At the sentence for the index offences, the defendant's conduct was described in detail, particularly in relation to the level of violence. Her Honour Woodburne DCJ described the property stolen as relatively modest, but it was all that had value that was in the position of the victim. 8. The number of persons involved in the attack was a significant factor in the seriousness of the offence, and the learned sentencing judge described the predetermination involved in the offence in the following terms: "There are several factors to be taken into account in determining the level of seriousness of the present offence. As to the degree of planning involved it is apparent that the offence was committed relatively spontaneously and indeed opportunistically after the offenders came across [the victim] when they were walking past the shopping centre and saw him there. The victim was not a shopkeeper or taxi driver, nevertheless, he was by reason of his employment in a vulnerable position required as he was to patrol or guard the premises yet being armed with nothing more, it seems, than a torch and a mobile phone. … The attack was a sustained one … Mr Loto punched [the victim] and effectively fell to the ground, he stomped on his head. … These were nasty injuries, no doubt causing [the victim] pain and distress. … It is clear that the offence is probably to be regarded as a serious one, even though the offence may be considered to be less serious than other offences that might have been committed under the section, particularly had the wounding been worse or the property stolen of greater value. The features that, nevertheless, marked the offence as a serious one, however, are particularly the number of offenders and the sustained nature of his attack. … It can be accepted that the manner for which the offenders stand to be sentenced was spontaneous and opportunistic and as such it can be contrasted with a case where there has been planning involved. It might also be considered, however, that the spontaneous nature of the attack highlights its wantonness. This was an unprovoked, wholly unwarranted and vicious attack." 1. Lastly it should be mentioned that the learned sentencing judge expressly referred to the applicability of the Act and, seemingly, warned the defendant that the State might apply to the Court for an order for continuing supervision or detention. Nevertheless, the defendant does not seem to have heeded that advice, at least judging from his conduct in prison. 2. Before the Court is also a report by Ms Michelle Player, Psychologist, utilised for sentencing proceedings in one of the criminal prosecutions. The report has been taken into account, even though it is, at this stage, somewhat dated. It referred to the defendant's main recidivism risk being associated with the use of alcohol and illegal drugs and associations with negative peer groups. In that regard, it is to a similar effect as the risk assessments to which earlier reference has been made. 3. The report by Ms Player referred to the negative impact of incarceration on the defendant's prospects of rehabilitation and the benefit that would be obtained from a case management approach that coordinated the problem areas in his life and oversaw his progress holistically. The State of New South Wales does not seek a continuing detention order. Perhaps, that is recognition of the accuracy of the comments by Ms Player. Conclusion 1. As earlier stated, the Court views the offending in prison in the context of the fundamentally violent nature of the environment as a whole. Nevertheless, the defendant was described, when being classified, as a person whose history and behaviour in prison demonstrated a substantial capability to orchestrate extreme acts of violence that present an extraordinary risk to the correctional system, or in the event of an escape, the community at large. This was the basis of his segregation on a number of occasions. 2. The prison offending in question, which included an unprovoked attack against another inmate, using the sandwich maker, and which attack was earlier described, also included the involvement in an attack on another inmate together with a number of others in his or among his associates. In April 2016, the defendant was involved in a serious assault. In February 2017, the defendant again assaulted an inmate, this time using a milk crate. Lastly, in May 2017, the defendant was the main assailant, amongst others, in a serious assault and/or stabbing of another inmate. 3. The foregoing are serious offences. They are offences committed in the context of a violent environment, but at a time when the defendant had been warned that, given the nature of the index offences, it was possible that he would be subject to either a continuing detention order or an extended supervision order (or applications for same). There can be little doubt that the defendant has displayed a propensity for significant violence and the index offences are an example of that violence. 4. As a consequence of the issues just mentioned, the defendant was designated a high security inmate. Further, staff were warned to use extreme caution when dealing with him. 5. Notwithstanding those issues, there are some positive aspects of the period of his incarceration, particularly the one-on-one psychology sessions. Those positive aspects gel with the psychology report of Ms Player, to which earlier reference has been made. 6. Overall, and particularly given the nature of the risk assessments that are currently available to the Court at this interim stage, in accordance with the earlier described principles, the Court accepts that the defendant poses an unacceptable risk of committing a serious violence offence, if not supervised appropriately. Given some earlier comments, it should be noted that the unacceptable risk to which the Court now refers is not one which would justify a continuing detention order or where a continuing detention order would facilitate the rehabilitation of the defendant. 7. The issue of the exercise of discretion is significant in this case. Much, in my view, will depend upon the content of the psychiatric or psychological assessment that the Court will order. 8. Nevertheless, given the nature of the matters alleged, which are capable of being proved and which, at this stage, the Court is required to treat as proved, the discretion of the Court as to the making of an ISO should be exercised in favour of that order. 9. I have examined the conditions that have been proposed by the State of New South Wales and have varied a number of them to accord with what the Court considers to be appropriate for the defendant and relevant to his particular offending. Because some of those have not been the subject of particular submissions, especially by the defendant, the Court will grant leave to apply, within seven days of the date of the publication of these reasons for judgment to vary any particular Condition that has been prescribed pursuant to the terms of Section 11 of the Act. 10. On the foregoing basis, the Court makes the following orders: 11. The Court orders that: 1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): 1. Two qualified psychiatrists or registered psychologists (or any combination of such persons) be appointed 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 2. The defendant attend those examinations. 3. Pursuant to s 10A of the Act, the defendant be subject to an Interim Supervision Order from 11 October 2018 for a period of 28 days ("the interim supervision order"); and 4. Pursuant to s 11 of the Act, the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in Schedule A. 1. 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 for access. 2. Each party has liberty to make application, within 7 days, to address a Condition in Schedule A not previously addressed. ********** Schedule of Conditions of Supervision (222 KB, pdf) 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: 11 October 2018