Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Grooms (Preliminary) [2018] NSWSC 1917 Hearing dates: 3 December 2018 Decision date: 12 December 2018 Jurisdiction: Common Law Before: R A Hulme J Decision: Two experts appointed to provide reports and interim supervision order for 28 days made Catchwords: HIGH RISK OFFENDER – application for continuing detention or extended supervision order – preliminary hearing – interim supervision order conceded but interim detention order opposed – interim supervision and other preliminary orders made – no point of principle Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Category: Principal judgment Parties: State of New South Wales (Plaintiff) David Grooms (Defendant) Representation: Counsel: Mr J Emmett (Plaintiff) Mr R Wilson (Defendant) Solicitors: Crown Solicitor's Office Legal Aid NSW File Number(s): 2018/287511 Judgment 1. HIS HONOUR: The State of New South Wales has applied for a continuing detention order for 18 months and then an extended supervision order for 5 years in respect of David John Grooms under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). Alternatively, the State seeks just an extended supervision order. 2. The matter is at the preliminary hearing stage and the State seeks orders for the appointment of two experts to provide reports and for either an interim detention order ("IDO") or an interim supervision order ("ISO") until the matter is finally heard and determined. 3. Mr Grooms is 32 years old. He is currently serving an aggregate sentence of imprisonment for 4 years for causing grievous bodily harm to a police officer while the officer was executing his duty ("the index offence") and wounding another officer while he was executing his duty. Both offences occurred in the course of an incident on 4 January 2015. Mr Grooms has not been granted parole and his sentence will expire on 3 January 2019. 4. The State's primary submission in support of the making of a continuing detention order ("CDO"), alternatively an extended supervision order ("ESO") is that the Court would be satisfied to a high degree of probability that Mr Grooms poses an unacceptable risk of committing another serious offence if not kept in detention when regard is had to: (a) the seriousness of the index offence; (b) Mr Grooms' frequent resort to violence since 2004; (c) his persistent failure since 2008 to engage in appropriate therapeutic programs; (d) his persistent breaches of prison discipline since 2008; (e) his untreated proclivity to violence of both a physical and sexual nature; and (f) the other considerations mandated in s 17(4) of the Act. 1. The basis upon which the State seeks an IDO (alternatively an ISO) is that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or a CDO. 2. There is no dispute that all of the statutory preconditions for the making of either type of order are established. The only matter currently in dispute is whether the matters alleged in the supporting documentation would, if proved, justify the making of a CDO. It is accepted that an ISO could be made but an IDO is resisted. 3. A starting point is to acknowledge the objects of the Act: to ensure the safety and protection of the community and also to encourage high risk offenders to undertake rehabilitation: s 3 of the Act. 4. There are a number of other matters that must be taken into account but in the Court's consideration of applications for an ESO or for a CDO the "safety of the community must be the paramount consideration": s 9(2) and s 17(2). 5. If at the preliminary hearing the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or an ESO, the Court must make orders for the appointment of experts to examine the defendant and provide reports: s 7(4) and s 15(4). 6. At the preliminary hearing of an application for an ESO, the Court may make an ISO if the defendant's current custody or supervision will expire before the proceedings are determined and the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order: s 10A. But in an application for a CDO, the Court may make an IDO if satisfied that the current custody (if any) will expire before the proceedings are determined and that the matters alleged in the supporting documentation would, if proved, justify the making of either an extended supervision order or a continuing detention order: s 18A. The matters alleged in the supporting documentation 1. The following subjects seem to be the most pertinent to address at this preliminary hearing stage. Criminal history 1. Mr Grooms' criminal history includes the following: Assault in 2004 Mr Grooms (aged almost 19) was convicted of two offences of assault and placed on a good behaviour bond for 12 months. The matter concerned physical and verbal aggression towards staff at a licensed club initiated by his companion but he joined in. This occurred after the pair had been refused entry for being intoxicated. Offensive behaviour, intimidation, resist arrest and assault officer in the execution of duty in 2007 Mr Grooms (aged 21) was intoxicated and extremely aggressive towards police when spoken to about drinking in a public "alcohol free" zone. For the most serious offence he received a 12 month sentence of imprisonment which was suspended. Sexual assault in 2008 Mr Grooms (aged 22) harassed and sexually assaulted a female passenger on a train by allegedly digitally penetrating her vagina and anus and attempted to penetrate her with his penis. The agreed facts on sentence limited the sexual assault to the act of digital/vaginal penetration. The offence is said to have occurred in the context of heavy alcohol intoxication. Mr Grooms was sentenced to imprisonment for 6 years 6 months with a non-parole period of 4 years 6 months dating from 2 April 2008. Assault in 2010 Mr Grooms (aged 24) entered an inmate's prison cell and struck him on the head around the jaw and lip with his closed fist and while the victim was on the ground he stomped on his head. This occurred after Mr Grooms had become impatient concerning a queue to use the telephone. He received a sentence of 6 months which was added to the non-parole period for the sexual assault sentence. Index and associated offences in 2015 On 4 January 2015, three months after he had served the entirety of the sexual assault sentence without parole, Mr Grooms (aged 29) initiated a confrontation with two police officers who attended the address at which he was living looking for someone else. The officers approached a granny flat and he stood in their way saying, "You're not going in there you cunts". He was moved away from the door but he became physical and attempts were made to restrain him as he persisted in trying to prevent the officers entering the flat. During the course of the scuffle Mr Grooms punched Senior Constable Cowan to the eye, knocking him to the ground. The officer pulled Mr Grooms to the ground with him and the struggle continued causing Leading Senior Constable Kingma to use capsicum spray to try and subdue him. Despite this Mr Grooms stood up and punched officer Kingma in the face. This caused pain and profuse bleeding from the nose. Mr Grooms was sprayed again but to no avail. Officer Cowan managed to get up from the ground and attempted to restrain Mr Grooms who then punched him in the face several times. Officer Kingma they deployed a taser and Mr Grooms was ultimately handcuffed and restrained. Officer Cowan sustained injuries including a laceration to his right eye which had to be glued closed. A visible red line, swelling and soreness persisted for a number of weeks. He was off work for two weeks. Officer Kingma sustained bruising and fractures to the nasal and sinus bones. He was in prolonged pain and discomfort. He underwent two functional and cosmetic nasal surgeries involving the total removal and reconstruction of his nasal septum, subsequent collapse of the reconstructed septum and reconstruction using his ear cartilage. He has permanent numbness to the fact and had lost his sense of smell. He was left unable to work for a number of months. Institutional misconduct 1. Mr Grooms has been repeatedly punished for disciplinary misconduct whilst in custody. The incidents include: Drug related misconduct such as refusing or failing to provide urine samples for drug testing and possessing drugs or drug implements: 14 instances between 25 October 2010 and 20 September 2018. Intimidation, assault, fighting or other combat or damaging property: 5 instances – 28 December 2008; 23 January 2015; 27 August 2015, 16 November 2015 and 18 March 2018. 1. I note at this point that there is evidence that Mr Grooms has made efforts to secure a place on a suitable drug program in order to avoid the drug related misconduct behaviour. More will be said about this shortly. Risk assessment report 1. Ms Holly Cieplucha, senior psychologist, prepared a Risk Assessment Report, dated 28 March 2018. I have had regard to the entirety of the report which is very detailed and useful but I could not do it justice by attempting to summarise it all here. It is sufficient for present purposes to note that she estimated Mr Grooms' risk of violent re-offending to be in the high range. She notes that he has a diagnosed mood disorder and a history of substance abuse. His highest treatment needs are in the area of "violent lifestyle, criminal attitudes, interpersonal aggression, emotional control, insight and violence in institutions". 2. Ms Cieplucha considered that the most likely scenario for future violent offending for Mr Grooms may occur if: "Mr Grooms encounters situations that he perceives to be confrontational or threatening or situations with persons in positions of power or authority, where he perceives provocation. Mr Grooms demonstrates anti-social and anti-authoritarian attitudes as reflected through current and historical offences against police and his entrenched negative beliefs and attitude towards supervision may lead to resistance and further non-cooperative behaviour. Mr Grooms' risk of violence may also be heightened in situations in which the safety of people close to him is threatened in light of his assertions that he has used violence to defend and to protect his family and friends." Rehabilitative treatment programs 1. Mr Grooms completed the EQUIPS Foundations and EQUIPS Aggression programs in 2017. He commenced participation in the Violent Offenders Therapeutic Program ("VOTP") later that year but was suspended following charges of substance abuse and subsequent incidents of aggression and intimidation towards staff. 2. The VOTP program is a significant matter for Mr Grooms. It is an intensive program generally involving 3 x 2 hour sessions per week with some additional work. Treatment length is generally 10-12 months but some individuals need longer. Mr Grooms completed 15 sessions in August-October 2017 before his participation was suspended. It seems that he had difficulty engaging in the program because of his discomfort with the group format. 3. Of significance, Mr Grooms has not completed any drug and alcohol addiction programs. Ms Cieplucha agreed in her evidence that it was alcohol that was relevant to Mr Grooms' violent offending rather than drugs. 4. Most of Mr Grooms' drug-related misconduct in gaol has related to buprenorphine, an opiate substitute. Ms Cieplucha reported that he has expressed a willingness to participate in further interventions aimed at addressing his history of substance abuse such as the EQUIPS Addictions program. (Ms Nicole Ahern, the Chief Psychologist for Corrective Services NSW confirmed in evidence that Mr Grooms has been on a waiting list for this program for nearly two years). Ms Cieplucha said that Mr Grooms had also expressed a willingness to complete individual intervention to address his history of violence and aggression. Accommodation available in the community 1. Mr Grooms has accommodation available to him if he is to be released into the community in a Community Offender Support Program ("COSP") group home. There he will be provided with supervision and support on a 24-hour basis. Assistance will be provided in relation to drug, alcohol and other Corrective Services NSW psychological programs. 2. Ms Erin Kirkwood, a senior community corrections officer who was the author of a Risk Management Report, gave evidence which emphasised the degree of supervision and security involved in a COSP home; for example, with a ban on alcohol and drugs; random drug and breath testing; submission to room searches and the like. She agreed with a proposition that "you and Corrective Services New South Wales are in a position to provide [Mr Grooms] with the highest possible level of supervision and monitoring" and that "the primary focus on any ISO will be on minimising his risk of re-offending". Conclusion 1. Mr Grooms' criminal history insofar as it concerns offences of violence has been summarised earlier. It is limited in the number of such offences. There is one instance of sexual violence 10 years ago and one instance of serious physical violence almost 4 years ago. 2. It is noteworthy that none of the offending has involved the use of a weapon was premeditated. Most, but not all of it, occurred in the context alcohol intoxication. This is not to suggest that it is not serious or that the impact upon victims has been overlooked. However, it has to be understood in its proper context within the full range of violent offending and violent offenders that comes before the courts. 3. Ms Cieplucha's estimate that Mr Grooms' risk of violent re-offending was in the high range is qualified. She also said in her report: "What is unclear, is the extent to which any future violence would approach the threshold of a 'serious violence offence' as defined in the Crimes (High Risk Offenders) Act 2006." 1. A "serious violence offence" is defined in s 5A of the Act. Without being exhaustive, it includes at the upper limit an offence involving intentional killing or infliction of grievous bodily harm. At the lower limit it may involve an offence constituted by a person causing grievous bodily harm to another person while being reckless as to causing only actual bodily harm. Mr Grooms' only serious violence offence is at that lower limit. 2. Ms Cieplucha's uncertainty as to whether Mr Grooms' risk of violent re-offending would approach that threshold is significant. 3. This Court has a great deal of experience in dealing with high risk offenders in applications brought by the State in pursuit of usually extended supervision orders but occasionally continuing detention orders. When the legislation was first introduced in 2006 by the Crimes (Serious Sex Offenders) Bill 2006 (NSW) it was said to be designed for "a handful of high-risk, hard-core offenders"; providing for a "small group of high-risk offenders to be placed on extended supervision, or, in only the very worst cases, kept in custody". [1] Many more applications are being brought now than ever. On the face of it, the present application is not among the strongest or more compelling of the many I have seen of its type. 4. I am satisfied that the matters in the supporting documentation would, if proved, justify the making of an ESO but I am not satisfied that there is justification for making a CDO. That may change by the time of the final hearing but that will depend upon what the two court appointed experts will have to contribute. 5. I have mentioned that Mr Grooms sentence is due to expire on 3 January 2019. The State Parole Authority has deferred determination of its consideration of making a parole order to 13 December 2018. Without knowing the outcome of the latter, I propose to make an ISO that will date from that date to accommodate the possibility that parole is granted. Orders 1. I make the following orders: 1(a) Two qualified psychiatrists and/or registered psychologists (or any combination of such persons) as agreed by the parties are to conduct separate psychiatric or psychological examinations of the Defendant and are to furnish reports to the Supreme Court on the results of those examinations by a date to be agreed by the parties. 1(b) The Defendant is directed to attend those examinations. 2(a) The Defendant is to be the subject of an interim supervision order from 13 December 2018. 2(b) The interim supervision order is to be for a period of 28 days. 2(c) The Defendant is to comply with the conditions set out in the Schedule to the Summons filed on 19 September 2018 for the period of the interim supervision order. 3 Access to the Court's file shall not be granted to a non-party without leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access. 4 Liberty is granted to the parties to approach the Common Law list clerk to obtain hearing dates for any application for an extension of the interim order, for the final hearing of the matter, and to fix a timetable for the filing and serving of evidence and submissions. ********** Endnote 1. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 March 2006 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: 12 December 2018