Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Holschier (No 3) [2019] NSWSC 341 Hearing dates: 5 March 2019 Date of orders: 01 April 2019 Decision date: 01 April 2019 Jurisdiction: Common Law Before: Campbell J Decision: The application for a further Extended Supervision Order is refused The summons filed on 28 November 2018 is dismissed. Catchwords: HIGH RISK VIOLENT OFFENDER – extended supervision orders – unacceptable risk – court must be satisfied to high degree of probability that offender poses unacceptable risk – risk of commission of serious violence offence low Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5, 9, 10, 11, 12 Crimes Act 1900 (NSW), s 61 Cases Cited: Jones v Dunkel (1959) 101 CLR 298; Lynn v State of New South Wales (2016) 91 NSW LR 636; [2016] NSWCA 57; State of New South Wales v John Raymond Holschier [2016] NSWSC 234 State of New South Wales v Naaman (No2) [2018] NSWCA 328 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Category: Principal judgment Parties: State of New South Wales (Plaintiff) John Raymond Holschier (Defendant) Representation: Counsel: S. McGee (Plaintiff) M. Avenell (Defendant) Solicitors: Crown Solicitor (Plaintiff) Legal Aid Commission (Defendant) File Number(s): 2018/366776 Judgment 1. This is a second application for an extended supervision order against the defendant, Mr Holschier, made under the Crimes (High Risk Offenders) Act 2006 (NSW). The first order was made by Hidden J after many hearing days on 8 December 2014 for a period of 3 years and subject to a suite of conditions Mr Holshier was directed to comply with under s 11 of the Act. Due to Mr Holschier re-offending during the currency of the ESO, its operation was from time to time suspended under s 10(2) of the Act, which had the legal effect of extending the original 3 year order so that it expired on 13 January 2019. 2. By orders made on 12 December 2018, Hoeben CJ at CL ([2018] NSWSC 1921) made an interim supervision order under s 10A of the Act from midnight on 13 January 2019. That ISO has been now extended thrice, the statutory maximum under s 10C(2) of the Act. The third ICO was made by me at the hearing of the substantive application on 5 March 2019. It expires on 5 April 2019. 3. As I have said s 10(3) of the Act makes clear that the Court is empowered to entertain an application and make a second or subsequent ESO against the same offender. Obviously in respect of each application against an offender, the statutory conditions in s 5B of the Act must be satisfied, the requirements of s 9 for making an order, or dismissing the application, must be observed and a determination under s 11 as to the conditions to be complied with by the offender must be made. 4. On the hearing before me the State was represented by Ms S McGee of Counsel and Mr Holschier by Ms M. Avenell of Counsel (Public Defender). Ms Avenell made it clear in written and oral submissions that there was no issue that the conditions specified in paragraphs (a) to (c) of s 5B of the Act were satisfied. The real issue for determination so far as s 5B was concerned was whether the paragraph (d) condition was satisfied. The Court may not make an extended supervision order unless "satisfied to a high degree of probability that [Mr Holschier] poses an unacceptable risk of committing another serious offence if not kept under supervision under" an ESO. 5. Ms Avenell's concessions were properly made. Paragraph (a) is satisfied because Mr Holschier is an offender who has served a sentence of imprisonment for a serious offence; paragraph (b) is satisfied by the consideration that he is a supervised offender within the meaning of s 5I because Mr Holschier was under supervision under an existing ESO as provided by s 5I(2)(b); and paragraph (c) is satisfied because the summons seeking this second extended supervision order was filed while the existing ESO was current. 6. Before turning to the outstanding issues it is important to point out that notwithstanding a somewhat chequered history of compliance with the ESO, at least initially, as I will demonstrate, Mr Holschier's compliance has been much improved such that compliance with some of the more restrictive conditions imposed by Hidden J has been relaxed. Importantly, the State seeks this second order for a period of 12 months only. Relevant facts 1. In order to determine whether s 5B(d) is satisfied, it is necessary to review the evidence as a whole including the mandatory factors relevant to the application of s 9 of the Act. 2. The facts concerning the index offence committed by Mr Holschier and his background were summarised by Hidden J in State of New South Wales v John Raymond Holschier [2016] NSWSC 234 (at [2]-[18]) in this way: In 1991, the defendant stood trial before McInerney J and a jury for the murder of his partner and the malicious infliction of grievous bodily harm upon their 13 month old daughter. He was found guilty, and on 14 August 1991 his Honour sentenced him to imprisonment for life for the murder and imprisonment for 15 years for the infliction of grievous bodily harm offence. The sentences were to date from 25 September 1989, and the sentence for the grievous bodily harm offence has expired. On 14 December 1998, McInerney J granted an application by the defendant for re-determination of the life sentence, imposing a sentence of 25 years imprisonment, comprising a minimum term of 17 years and an additional term of 8 years, again to date from 25 September 1989. The defendant had been in an on-and-off relationship with the deceased over a period of time, and they had two children. The relationship was a stormy one. The two offences arose from a violent incident on 25 September 1989. During an argument he beat the deceased several times with a house brick, causing her death. He also struck his daughter with the brick, causing her serious injuries which left her with severe brain damage and impaired vision. The attack occurred in front of the other child, a daughter, who was only two years old at the time. The defendant denied the offences, and the Crown case was conducted accordingly. However, in a dock statement he admitted having struck the deceased but claimed that he was acting under provocation. (He also conveyed that the injury to the child was accidental.) Provocation was left to the jury but, clearly, was rejected (as was his account of the child's injury). In the sentence proceedings evidence was led suggesting a frontal lobe dysfunction which might have caused loss of control at the time. His Honour rejected this evidence, as he did the defendant's account in his dock statement. He said in his remarks: "… I could almost say I am satisfied that some other reason occurred for the brutal killing of this young woman and the severe injuries that were suffered by the child. … Further, I am not satisfied that in any event he is suffering from a mental illness or a mental condition of any sort, such that … would lead me to the conclusion that the crime is significantly diminished by mitigating circumstances …" There was evidence that a pattern of abuse of the deceased by the defendant had developed, and that he had assaulted her about two weeks before the murder. Background The defendant was born on 19 June 1967, and was 22 years old at the time of the killing. He had a criminal history, commencing when he was 14 years old, comprising offences of dishonesty, firearms offences, and offences of violence. The convictions for violence were sustained between 1985 and 1987, involving offences of assault, assault occasioning actual bodily harm and robbery. In 1987 there was also a conviction for demanding money with menaces, which appears to have been committed in circumstances involving violence. The defendant is now 48 years old. He was born and brought up in Deniliquin. He had a disturbed upbringing and limited education. He has a history of abuse of alcohol and illicit drugs since his teenage years, and the majority of his adult life has been spent in custody. He is now married, having met his current wife while in custody. They married in 2001 and, despite being in custody, he managed to father two children with her, a girl and a boy, now in their early teens. They have been in the care of the Department of Family and Community Services (FACS), and live with the defendant's mother in Deniliquin. His wife has substance abuse and mental health issues. She has six other children, four of them adults but two of them also in their teenage years, and those two younger children are also in the care of FACS. During the course of the proceedings the defendant's wife sent an email to his solicitor, expressing her desire to re-establish the relationship. She added that if he does not get approval to live in Deniliquin, they would live in Albury or Wagga, close enough for her to maintain contact with her family. She noted that the State is asking for a condition of an extended supervision order preventing him having any contact with their children, unless approved by his departmental supervising officer. She acknowledged that his contact with her younger children would be a matter for FACS. Response to parole On 4 December 2008, the defendant was released on parole with a number of conditions. One of those conditions required him to observe a risk of harm management plan established by the Department of Community Services in relation to the children of his current marriage. It was alleged that he had breached that condition by visiting the home where the children resided with his wife. He was arrested, and his parole was subsequently revoked. He denies this breach. He was again released on parole on 9 March 2010, and appeared to make good progress in the community for several months. However, on 27 May 2010, he is alleged to have threatened serious violence against his mother and threatened to burn her house down. The children were living with his mother at the time. An ADVO was taken out for the benefit of his mother and the children. He is also alleged to have threatened to assault his 16 year old nephew at around that time. In November 2010, he is alleged to have assaulted his wife and threatened to harm her and her family. His wife's daughter's boyfriend attended the premises, and he threatened all three of them. Again, ADVOs were taken out to protect his wife and her family. In January 2011, he was arrested and charged with assaulting and intimidating his wife. A statement taken from her at the time described a pattern of domestic abuse by him: verbal abuse, intimidation and actual violence. Another AVO was taken out, but the criminal charges were later withdrawn. His parole was revoked on 1 February 2011, but in March 2011 he was charged with breach of the AVO by contacting his wife numerous times by telephone while in custody. He was convicted for that offence and placed on a bond. He was released on parole a third time on 20 July 2011. He resided in a Community Offender Support Program ("COSP") facility at Cooma. His behaviour there was described as "antagonistic in that he tended to become verbally abusive." He later moved into private accommodation, where he started associating with anti-social peers whom he had previously known. It is alleged that he behaved in a threatening manner towards a man in Hay over a matter which appears to have been trivial. In October 2011, he went to Deniliquin and visited his step-daughter, in contravention of a parole condition that he not enter that town without approval. Finally, in November 2011, he admitted to his parole officer that he had used amphetamines. His parole was revoked on 13 December 2011. On 11 September 2014, he was again released on parole for the brief balance of his sentence and resided, under supervision, at Rainbow Lodge at Glebe. 1. On the expert evidence then available to him, which his Honour accepted, Hidden J was satisfied to the requisite high degree of probability that Mr Holschier posed an unacceptable risk of committing a serious violence offence if not kept under supervision (at [32]). That expert evidence included risk assessment report of 28 April 2014 by Ms Danielle Matsuo, psychologist; court appointed expert report of Dr Katie Seidler of 29 August 2014; and the court appointed expert report of Dr Richard Furst, psychiatrist dated 28 August 2014. Ms Matsuo assessed the risk initially using the actuarial based tool, Violence Risk Scale, while acknowledging the limitations of these scales. She also had regard to the dynamic factors provided by Mr Holschier's history. She assessed Mr Holschier as falling into a high risk category for violent re-offending. 2. Dr Seidler recorded that Mr Holschier had expressed his remorse for the index offences and had some insight into factors informing his risk of reoffending including "not dealing with his personal problems" (at [24]). On Dr Seidler's assessment including by application of the actuarial scales and other factors she assessed a medium risk of re-offending. She also noticed some general improvement in his presentation and regarded it as "unlikely that any future violence would be as extreme as the index offences" ([25]). 3. Each of the psychologists assessed that Mr Holschier had characteristics consistent with anti-social personality disorder and substance abuse disorder. And this was also the diagnosis of Dr Furst. It is of interest that even as late as 2014 none of the experts were expressing the view that Mr Holschier suffered from a psychiatric or other mental illness which is a feature of the current expert evidence. 4. Dr Furst too accepted there was an expression of remorse which was reassuring to a degree. Dr Furst assessed the risk of future violence as "in the moderate to high range". He regarded an ESO as appropriate and for the maximum period of 5 years. Developments since the ESO was imposed 1. While I have said that its common ground that Mr Holschier has made significant progress under his previous ESO, his record has not been entirely unblemished since Hidden J made the order in 2014. Relevant matters include the following: 1. After his release in 2014, it appears his relationship with his wife (who he is no longer with) continued to be stormy. He assaulted her in January 2016 by throwing the remote control device from a television at her, hitting her on the head. This is not classified as a serious offence. He was charged under s 61 Crimes Act 1900 (NSW) which carries a maximum penalty of 2 years imprisonment. He received a sentence of 7 months with non-parole period of 3 months; 2. In July 2016, Mr Holschier contravened an Apprehended Domestic Violence Order for the protection of his wife by telephoning her and sending her a text message. The matter was initially dealt with by non-custodial sentence, but he was called up twice, ultimately being sentenced to a fixed term of 1 month's imprisonment; 3. In August 2016 while in custody he was disciplined for not providing a drug sample; 4. In November 2016 he failed to comply with the ESO by allowing the electronic monitoring anklet to go flat. This was a contravention of s 12 of the Act carrying a maximum penalty of imprisonment for 5 years. Mr Holschier was sentenced to 5 months in prison. It is important to interpolate, however, that Mr Holschier subsequently progressed well through the various stages of the electronic monitoring program and the conditions relating to the provision of a weekly schedule of movements and observance of a curfew were lifted during 2018. Since October 2018 he has not been required to submit to electronic monitoring; 5. In April 2018 Mr Holschier failed to comply with the ESO by refusing to undergo a confirmatory drug test after a drug swipe was said to be faintly positive for methylamphetamine. For this apparent breach he was sentenced to imprisonment for 7 months with a non-parole period of 2 months. The breach was the failure to submit not the consumption of any illicit drug. Fairly the State submit that this apparent offending may have been the result of something of a misunderstanding. As will be demonstrated below, it is now apparent that Mr Holschier suffers from schizophrenia, which is generally adequately controlled by medication including monthly intramuscular Depot injections to which he has voluntarily submitted. The State accepts that the evidence suggests that he was suffering a delusional or paranoid episode on 2 April 2018 and what was taken by the corrections officers as unreasonableness may have been due to his mental health. The faint positive may have been due to the consumption of cold and flu medication. Violence was not involved in this apparent non-compliance. 1. As Ms Avenell pointed out, although there has been offending since the completion of his sentence for the index offending, none of it falls into the category of a serious violence offence for the purpose of the Act. Thus it is virtually 30 years since Mr Holschier seriously offended in a violent way. Section 9(3) Matters Opinions of court appointed experts – s 9(3)(b) – Dr Martin 1. A somewhat remarkable feature of this case is that at this late stage, it now emerges that Mr Holschier suffers from schizophrenia which was not diagnosed in the assessments made for the original ESO. In his report of 29 January 2019, Dr Adam Martin, Forensic Psychiatrist, one of the court-appointed experts, said that "schizophrenia probably developed while he was in custody, although it is conceivable that he may have been prodromal prior to the index offending" (Exhibit B; page 12). Dr Martin considered Mr Holschier's presentation was consistent with "the negative syndrome of schizophrenia" (Exhibit B; page 12). Dr Martin emphasised "a highly chaotic developmental history with exposure to developmental trauma such as physical and sexual abuse" (Exhibit B; page 12). Dr Martin also emphasised Mr Holschier's long history of psychological vulnerability and diagnosed schizophrenia, substance abuse disorder (in remission) and personality disorder. "Each of these entities is characterised by an enduring vulnerability to emotional and behavioural disturbance" (Exhibit B; page 13). The expert did acknowledge that the literature provides evidence that some people with antisocial personality traits modify or ameliorate their behaviour over time. 2. Dr Martin assessed the risk of Mr Holschier committing a further serious offence, which I take to be the risk of a serious violence offence, as in the moderate to high range. The factors relevant to the materialisation of the risk are: the schizophrenia, only if he relapses into psychosis because of non-compliance with medication or substance abuse; and the entry into a volatile personal relationship exposing him to significant stress. 3. Dr Martin administered the HCR-20-Version 3, which he regards as having predictive validity. There are a number of unchangeable factors in Mr Holschier's background, his criminal history, the conditions diagnosed and his profoundly disadvantaged childhood. But in terms of his current state: he does not score highly in that he demonstrates reasonable insight in relation to his mental disorder, violence risk and need for treatment, does not demonstrate ongoing violent ideation or intent, does not exhibit acute symptoms of major mental disorder, demonstrates reasonable stability (effective, behavioural and cognitive) and appears to be compliant with his current treatment and supervision (Exhibit B; page 14). 1. Dr Martin's opinion is summarised by this extract from his report (Exhibit B; page 15): Overall, he has a high loading for historical factors, which are unchangeable and static. Psychological reports [provided as part of the brief] consider issues around the risk assessment and speak to actuarial versus dynamic approaches. On actuarial assessment of risk, he has been found to be in a group who would be considered at high risk of future offending. However, as noted above, he has a relatively low loading of current risk factors as manifested by his current stability and mental state, living situation and access to various psycho-social supports. His substance use issues are in remission. Anti-social personality traits have probably become less evident as he has matured. 1. Dr Martin supported a continuation of the ESO for a further year to gauge his ongoing stability in the community and to allow for intervention if necessary. Dr Martin acknowledged that a Community Treatment Order under the Mental Health Act 2007 (NSW) would ensure that Mr Holschier remained on anti-psychotic treatment and in the event of relapse could be committed to a mental hospital. Such an order, however, would not allow for intervention by supervisors around the formation of inappropriate interpersonal relationships. 2. In oral evidence, Dr Martin said that Mr Holschier has very complex needs requiring a combination of psychological and psychiatric help on an ongoing basis (10.40T). He also said (at 11.20 - .25T): So the metaphor for this is you have a bucket of risk factors and if the bucket gets so full and comes over the top, that's where problems arise with violence. If a person has a large number of historical factors it leaves very little room for them to tolerate current stressors such that if a person has - and this is the way we teach risk assessment in the community to other teams - if a person has a high loading of risk factors, as Mr Holschier does, it means that it doesn't take very much for current stress or perhaps relapsing into drug use or some form of argument in a relationship for there to lead to problems with violence. (sic) 1. When asked about entries in the OIMS case-notes suggesting a level of non-compliance with the oral anti-psychotic medication prescription, Dr Martin said the non-compliance "would cause some concern and would suggest that he needs fairly close monitoring of medication" (my emphasis) (8.25T). "Fairly close monitoring" could involve daily checks if "there's a number of instances of not taking medication as prescribed". 2. In cross-examination Dr Martin accepted that the HCR-20 V3 adopted by him for risk assessment in Mr Holschier's case was a tool designed to identify a risk of violence generally rather than serious violence in particular (13.35T). As I understood the evidence its definition of violence was not the same as the definition of serious violence under the Act. HCR-20 was not focussed only on violence involving only grievous bodily harm or death. Dr Martin said: "It encompasses various levels of violence" (13.40 – 14.10T). The primary purpose of the tool was to assist corrections officials with management of offenders rather than evaluation of risk (14.15T). Dr Martin accepted that Mr Holschier risk of future violent offending lessens to a substantial degree "if more focus is put on the clinical factors and the risk management factors" (14.25T). He gave this evidence (14.35 - .48T). Q. If you factor in and give some more emphasis upon the clinical and risk management factors, would you put his risk of future serious violence offending at relatively low? A. You see, I think there [are] inherent problems in saying that a person's risk is low, moderate or high because it is very subjective. I would prefer the term "significant" and I also think that with appropriate and extensive monitoring of his mental situation and ensuring treatment adherence and making sure that substances aren't used, making sure that he is not in a problematic relationship, that that risk can be reduced significantly. Q. And has that been reduced significantly with Mr Holschier through the care and management that he has had over the last several years? A. I think so. 1. Dr Martin was cross-examined about OIMS case-note entries which demonstrated that occasionally Mr Holschier missed his daily, oral anti-psychotic medication. As his condition was being managed also by intramuscular monthly depot injections by the Community Mental Health Team, occasional non-compliance with the oral medication did not have an immediate effect of destabilisation of his disease (15.10T). However, Dr Martin thought it was of concern that he should miss the oral component of his anti-psychotic medication because over a period of time "that can potentially precipitate a further relapse" (16.5T). 2. Dr Martin was clear that the degree of risk presented by non-compliance with oral medication was a question of fact and degree. If there was substantial compliance with occasional lapses the risk would be greater than with complete compliance; but also less than with frequent non-compliance (17.25 – 18.5T). Dr Martin also said that there was no reason why all necessary anti-psychotic medication could not be given by the intramuscular depot injection on a monthly basis. Although Mr Holschier is engaged with a community mental health team he is not under a Community Treatment Order. In these circumstances it is possible for a person in his position, not under supervision, "to simply slip off the radar". There would be no occasion for the imposition of a Community Treatment Order until "something went wrong" (19.10 - .40T). By something going wrong the doctor meant the patient coming to the attention of the authorities, probably by further offending or the occurrence of some other harmful incident. Dr Lennings 1. The second court-appointed expert is Dr Christopher Lennings, a senior clinical psychologist with long experience as a forensic psychologist. His report dated 6 February 2019 is Exhibit C. Dr Lennings recorded that Mr Holschier is currently on a disability support pension for his diagnosis of schizophrenia which onset while he was in custody. Mr Holschier also suffers from back pain and emphysema. 2. Dr Lennings's opinion is over the last 2 years, despite his problematic background, Mr Holschier "has been making important strides in self-development, a signal event being his therapy with Ms Moran that appears to have had a fundamental impact upon him, but also the stabilising of his mental health by appropriate medication" (Exhibit C; page 24 [64]). Ms Moran is a psychologist employed by Corrective Services who has been counselling Mr Holschier during his participation in the VTOP Outreach Program in the community. She gave evidence before Hoeben CJ at CL on 10 December 2018. I will refer to some of her evidence below. Dr Lennings recorded that the improvement in Mr Holschier has led to the lifting of a number of the restrictive conditions that he was previously subject to including electronic monitoring, schedule of movements and no curfew. He has relative freedom of movement but he chooses not to go, for instance, to clubs or pubs. 3. Like Dr Martin, Dr Lennings administered the HCR-20 V3. He points out that "risk is by its nature a statement of probability, [and] risk assessments are only moderately valid" (Exhibit C; page 29 [68]). Dr Lennings also agreed Mr Holschier meets the criteria for multiple disorders. His conclusions on diagnosis are the same as Dr Martin's, but he added Post-Traumatic Stress Disorder caused by adverse childhood experiences adding "I do not think this is current" (Exhibit C; page 36 [76]). Of the co-morbidities, Dr Lennings regarded the psychotic disorder as of the most concern, but noted that it is currently well controlled. 4. On the formal risk assessment (HCR-20 V3), Dr Lennings considered Mr Holschier "as likely in the moderate range for a future risk offence and this is because of the high loading on static or historical factors" (Exhibit C; page 37 [77]). He added: His current dynamic risk assessment suggests significant moderation in his risk profile and in the context where the most likely triggers either do not exist or are well managed, I suspect he is unlikely to commit a further serious offence as defined by the Act. Although I do not think that a risk of serious violence is likely, the scenario suggests that a deterioration of mental health, in the context of developing a maladaptive relationship, and the return to substance abuse would likely lead to an increased risk. … however, in recent time I think [his historical fluctuation in risk factors] has been replaced by a process of genuine reduction in risk as a function of good work done with Ms Mason, effective control of his mental health, and the stabilisation of his living conditions in Sydney with linking him into appropriate community supports. 1. Dr Lennings did not disagree with Dr Martin on the issue of non-compliance with the prescription for oral medication. He said the issue related "to the potential of some destabilisation of mood if that was to be sustained" (my emphasis) (22.45T). He added: I think that, in our language, it is called creative compliance, where a person doesn't always comply, but mostly complies and we would prefer not to see that in people who have a significant mental illness. 1. He regarded non-compliance as "a lapse" (23.10T). The issue is if it continues in "a more longer term" (sic)(my emphasis) it could lead to a "relapse" of his psychotic illness. 2. It is Dr Lennings view that given his age, it is much less likely that Mr Holschier will form new long term domestic relationships and therefore much less likely that he will form any maladaptive relationships (24.35T). 3. Dr Lennings did not really subscribe to Dr Martin's "bucket" metaphor as to the continued significance of historical or static risk factors. As I understood his evidence, it was his view that the significance of the static factors recedes and "the dynamic risk factors assume greater importance the further away you are from the origin of those historical risk factors" (28.30T). To continue the "bucket" metaphor Dr Lennings seemed to propound that there was an on-going process of evaporation in relation to the static risk factors. 4. When cross-examined about the non-compliance issue Dr Lennings said that Mr Holschier's knowledge of the need to take his oral medication "still doesn't stop him from not taking his medication on occasion" (30.40T). He repeated what he had said about the process of lapse and relapse. He regarded it as "problematic that there were occasions when he didn't take his oral medication". 5. At the conclusion of cross-examination, I asked Dr Lennings about the three factors he identified at [78] of his report identifying the risk of future violent offending. Those three factors are the destabilisation of his schizophrenia, the re-emergence of active substance abuse, and the context provided by a maladapted domestic relationship. The following evidence was elicited: Q. What does that tell us, in your opinion, about the probability of the risk of serious violent offending materialising, ... and the magnitude of the harm which might flow? A. Okay. Firstly, let me explain that confluence of risk derives directly from consideration of the HCR 20 and the kind of scenario that is generated. When you utilise a structured risk assessment, you are assessing the risk of an adverse event, not the quantum of that adverse event. You use the scenario to try and assess the quantum of that event. So what this is saying is that, in my view, unless those three things come together, there is a low likelihood of a further serious violent offence, but if those three things came together, then that likelihood would increase. (My emphasis.) Q. Each of these three conditions, as I have called them, represents a current, rather than historical factor? A. That's correct. Section 9(3)(c)(d) 1. Mr Samuel Ardasinski, Senior Psychologist with the Serious Offenders Assessment Unit has prepared a supplementary risk assessment report of some 12 pages dated 30 November 2018, which was read in evidence in the case. Mr Ardasinski's report and recommendations are supported by Ms Cherice Cieplucha, Forensic Psychologist, the Acting Chief Psychologist for risk management programs within Corrective Services, who counter-signed the report. Mr Ardasinski administered two actuarial risk assessment tools in the course of his assessment. The first was the Domestic Violence Risk Appraisal Guide (DVRAG) which assesses risk according to static (unchangeable) factors. For obvious reasons given the seriousness of the index offending, this saw Mr Holschier in the high risk category. Mr Ardasinski also utilised the Violence Risk Scale (VRS) covering static and dynamic factors. According to this measure, Mr Holschier fell into the moderate risk category. 2. Mr Ardasinski, in common with Dr Martin and Dr Lennings, identified the dynamic risk factors to be in the areas of mental health stability, substance abuse, and relationships. This very experienced forensic psychologist's review of the whole of the material available to him, suggested "that Mr Holschier may present a risk of further domestic violence offending if he becomes stressed within an intimate relationship, his mental health destabilises and/or he uses illicit substances such as amphetamines" (Report 30 November 2018; page 11 [26]). Like Dr Lennings, Mr Ardasinski identifies the risk as depending upon the confluence of those three factors. He acknowledges that the risk may persist even if another ESO is made. He doubts that Mr Holschier will ever be completely risk free. Referring to the importance of static factors in the formation of opinion about risk assessment, he stated (page 11 [27]): Since this assessment is based on static factors only, and the empirical evidence is not so advanced as to be able to determine how risk decreases over time offence-free for domestic violence offenders, there is little that can be conclusively said about whether Mr Holschier will continue to pose a significant risk of repeat serious offending within the context of domestic relationships. He went on to say however (page 12 [31] that it was probable that without an ESO "Mr Holschier will still remain offence free and his risks would not constellate to a significant extent" given his other community supports. These supports include Mr Holschier's involvement with the Blacktown Community Mental Health Team. This involvement involves active case management, along with the advent of his entitlement to assistance under the National Disability Insurance Scheme (NDIS). Section 9(3)(d)(1) Risk Management Report 1. I have had the benefit of a report from Ms Carly McMillan, a Community Corrections Order, as to the extent to which Mr Holschier can be managed in the communoity. I should say at the outset that the pattern of breaches has reduced considerably over the period of the ESO made by Hidden J and, as I have said, apart from the breach in April 2018, which has been explained, his record of compliance, over the last year or two, has been very good. In her report, Ms McMillan details how restrictive conditions have been lifted and I have formed the impression that notwithstanding Mr Holschier's disappointment about the State applying for a further ESO, he has handled that issue with a deal of sang-froid. Ms McMillan is of the view that Mr Holschier can be adequately managed in the community according to the plan she has developed. 2. I am somewhat disappointed that the risk management plan seeks to harness the full suite of conditions to which Mr Holschier was previously subject. It does not, as it were, give him any credit for the progress he has made. Nor does it reflect the current situation where Mr Holschier as a practical matter is on very limited condition. However, I am persuaded that the risk he presents, such as it is, can be managed in the community appropriately. Section 9(3) (e) Rehabilitation Programs in which the offender has participated 1. While in custody for the index offence Mr Holschier completed the CALM and Domestic Abuse Program satisfactorily. When in the community, he has as I have said participated in the VOTP Outreach Program under Ms Moran. Ms McMillan noted in her risk assessment report that it's yet to be determined whether ongoing involvement with VOTP will be therapeutic. I infer that it may not be therapeutic because of the benefit he has already derived from it. 2. In her evidence on 10 December 2018, Ms Moran said that Mr Holschier had been very engaged with the program and is a regular attendee at the risk management sessions. When asked whether she felt that Mr Holschier needed another Extended Supervision Order, she replied (10/12/18 16.25T): Well, in the end, I mean, I think that is a matter for the judge to decide. But, I mean, if we look at the risk factors that were concerning, and that where the original factors that contributed to having an order: the substance abuse, his destabilised mental health that wasn't being treated at all when he came onto the ESO, he was in a relationship that [was] still on again off again, that those things have all had remarkable progress, and he has really – pardon me – he has made significant changes in all of those areas. And particularly I think being on the mental health injection, that emotional stability has created a life where has really made a different life for himself in Sydney. So those factors are completely different than the original ones. (Sic) (My emphasis.) Ms Moran also pointed out that he has the benefit of support from the Mental Health Team and will be receiving NDIS services. She regarded these programs as "protective" (17.15T). Prudently she would not comment "on whether that is enough". She did point out that he would have the benefit of services from a caseworker when on the NDIS. Section 9(3)(e1) – other options 1. The principal concern that the evidence has shown in this matter is the question of compliance with his anti-psychotic oral medication prescription. It needs to be borne in mind that he does receive intramuscular depot injections monthly. The oral medication is only part of the regime. The intramuscular injections commenced after his introduction to the Community Mental Health Team following his release from jail for the April 2018 incident, which I have detailed above. The evidence of Dr Martin indicates that the risk of destabilisation presented by his imperfect compliance with the oral prescription is less than it would have been had he not been on the intramuscular injections. Nonetheless, all of the experts agree that it is, at least, a matter of concern that there is a degree of non-compliance. I have made these observations by way of introduction to the consideration that he does have other community supports which are protective, to borrow Ms Moran's term, including his involvement with the Community Mental Health Team and the expected involvement with the NDIS. But it should be observed that he is not on a Community Treatment Order. An order would provide greater structure to the support he is receiving to maintain his mental health. He has made clear to Ms McMillan that he would be prepared to be subject to a Community Treatment Order, I think it goes without saying in preference to an ESO. I should also say that I have the impression that one of the functions provided by the corrections officers involved in his supervision under the ESO is co-ordinating the disparate community programs with which he is involved for the purpose of managing the risk and providing for his rehabilitation. This not an insignificant consideration. Section 9(3)(e)(2) – prospect of compliance 1. Notwithstanding the history of non-compliance set out above, given the progress he has made I am confident that there's a strong likelihood that he will comply with the obligations of a further Extended Supervision Order, if one is made. Having said that, and notwithstanding the maturity of his attitude to the prospect of being subject to another ESO, one needs to bear in mind that a degree of resentment about being subject to ongoing supervision would be unsurprising. Section 9(3)(f) – past compliance 1. This deals with compliance. I repeat that the history of non-compliance with parole and the ESO is set out above. As I have said, I am satisfied that past non-compliance in the particular circumstances of this case is not suggestive of a likelihood of ongoing non-compliance given the progress he has made. 2. Section 9(3)(g) does not arise. Section 9(3)(h) and (h)(1) – criminal history and views of the sentencing judge 1. I have set out the criminal history above by reference in part to Hidden J's judgment. The index offence, of course, is very serious indeed. It is a bad example of the most serious offence known to our criminal law, save for treason. McInerney J's views are also encapsulated in the judgement of Hidden J extracted above. I will not repeat them. It remains to repeat that there has been no commission of any serious violence offence in nearly 30 years. While the other offending is of concern it does not rise to that level of seriousness. The effluxion of time probably makes the sentencing judge's views less pertinent. When he was sentenced the full extent of his childhood social deprivation and the whole picture about his mental illnesses were not known. Other relevant evidence 1. I have also received a victim statement under s 21A of the Act. As is the victim's entitlement, the victim does not consent to the statement being disclosed to Mr Holschier, nor was I satisfied that the substance of the statement could be disclosed to him without the victim's identity becoming known: ss 21A(6) and (7)(b). The State did not lay emphasis upon the statement and I consider it appropriate to reduce the weight it might otherwise have been afforded under s 21A(7). 2. I have had regard to the victim's wish that Mr Holschier be kept under supervision. But the questions of risk assessment and management which arise under the Act are attended by much technicality and addressed by much technical and expert evidence. In these circumstances it is difficult for untrained lay opinion to trump or swamp the expert evidence. A victim's statement could rarely be decisive in any case and where its weight is reduced, as here, it cannot be determinative. Decision about unacceptable risk 1. I remind myself that under s 5B(d) it is a condition of the making of an ESO that: The Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. Section 5D must also be borne firmly in mind. It is in the following terms: For the purposes of this Part, the Supreme 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. 1. Section 5B(d) requires a prospective evaluation of the probability of the risk of Mr Holschier committing a further serious violence offence if a further ESO is not made. As Beazley P said in Lynn v State of New South Wales (2016) 91 NSW LR 636; [2016] NSWCA 57 at [49] – [61], the evaluation must be made in the context of the objects of the legislation, particularly its primary object which is "to ensure the safety and protection of the community": s 3(1) of the Act. Beazley P said ([61 ], Lynn): …, the evaluation to be made under [5B(d)] is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection. Guaranteeing community safety is, of course, an impossible task; making it secure is a relative, not absolute, standard. 1. As her Honour pointed out (at [50]) – [51]), a risk is unacceptable if it departs so far from a required standard or norm as not to be allowed or tolerated. I have paraphrased her Honour's language. In context the required standard or norm is the standard or norm established by the Act itself. This, I repeat, is the safety of the community in the sense discussed by Beazley P in Lynn. 2. The process of evaluation of the risk required by s 5B(d) does not require the general right of the offender to be at liberty to be balanced against the standard of securing community safety: Lynn at [59] – [61] Beazley P; [140] – [141] Basten JA; and [148] – [149] Gleeson JA. 3. As Wilson J put it in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]: "unacceptability of risk involves considerations of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate." In my judgment the emphasis is on the degree of probability of the stated risk i.e. the risk of an offender committing a further serious violence offence, materialising. This is because the gravity of the consequences is encapsulated in the statutory formulation. A serious violence offence is defined by s 5A of the Act and, in the most general terms, is concerned with causing death or grievous bodily harm to another, intentionally or recklessly. 4. Section 5D is an important legislative marker. For it makes clear that the degree of probability of materialisation of the risk need not be evaluated as more likely than not for the risk to be adjudged unacceptable. As Beazley P pointed out in Lynn the antonym of unacceptable is acceptable. An offender may pose a risk of committing another serious offence which is not unacceptable i.e. the risk is one which even having regard to the consideration of community safety may be accepted or tolerated: Lynn at [50]. 5. This of course begs the question; does the process of evaluation require quantification of the risk in terms which are familiar in the law of negligence, always allowing that the statute itself provides the legal relevant standard or norm? Is the risk of committing another serious offence unacceptable if it is real, more than trivial, of substance or significant? Or are expressions like low, moderate, or high apposite so that anything which is moderate or higher is unacceptable. I am of the view that a risk is unacceptable if there is a real or substantial chance of it materialising. I repeat the chance of materialisation need not be more likely than not: s 5D; State of New South Wales v Naaman (No2) [2018] NSWCA 328 at [29] and [67]-[69]. Something is real or substantial if it is more than merely minimal. 6. In some areas of discourse it may be said that a low risk of the materialisation of a catastrophic consequence is unacceptable. But here the statute, as I have said identifies the risk by reference to the definition of serious offence. The question is what degree of risk of materialisation of that consequence is unacceptable, having regard to the object of securing public safety. 7. The standard of proof, "to a high degree of probability" is one of some stringency, even if not as exacting as the criminal standard. To garner an appreciation of the degree of stringency implicit in the statutory standard, it should be remembered that by application of the ordinary civil standard of "on the balance of probabilities" a definite conclusion may not be affirmatively drawn unless the facts proved form a reasonable basis for that conclusion to the actual satisfaction of a judicial mind: Jones v Dunkel (1959) 101 CLR 298 at 304 – 5. The statutory standard of proof requires a higher degree of persuasion than this. It seems to me that the Court cannot be satisfied of this matter to a high degree of probability unless the facts and circumstances actually proved provide a firm foundation, rather than a merely reasonable basis, for the conclusion that the risk posed by the offender is unacceptable absent supervision. Reasonable satisfaction is of itself insufficient. 8. In my judgment the question to be determined is whether I am actually persuaded that the facts and circumstances proved provide a firm foundation for me affirmatively drawing the conclusion that there is a real or substantial chance of Mr Holschier committing a serious violence offence if he is not subject to an ESO. 9. Each of the experts who have been asked to assess the current risk that Mr Holschier poses have laid emphasis upon three matters which they identified as being integral to the dynamic risk. They are interrelated. Indeed, the materialisation of the risk of Mr Holschier committing a further serious violence offence depends upon each of those factors coming together at the one time according to Dr Lennings and Mr Ardasinski whose evidence I prefer on this topic to Dr Martin's to the extent to which their views diverge. The factors are the destabilisation of his mental illness through non-compliance with his medication or perhaps natural deterioration; his subsequent relapse into substance abuse; and his involvement in a fractious or maladapted domestic relationship. As I have said these factors are interrelated and possibly interdependent. One can readily see one circumstance begetting another or the others. But how likely is it that this confluence of circumstance will occur? It's unnecessary for the State to prove to a high degree of probability that the risk is more likely than not: s 5D. 10. I am not satisfied to the requisite high degree of probability that there is a real or substantial chance of Mr Holschier committing a further serious violence offence if he is not kept under supervision. As Mr Ardasinksi expressed it (page 12 [29]): The making of a further ESO would not change Mr Holschier's engagement with other non-government agencies [such as the Community Mental Health Team and NDIS workers providing disability support]. In his assessment, a further ESO would "merely provide oversight (to other community services provided) with the specific aim of minimising any residual risk of repeat serious violence offending" (my emphasis). His view is the residual risk may persist even if another ESO is made. 1. As I have sought to illustrate above, although it was put in various ways, in evidence emphasis was laid on Mr Holschier's incomplete compliance with his prescription for oral anti-psychotic medication. It is necessary to see the detail of what the OIMS case-notes show about that. On 19 January 2019, a Department Officer undertaking a home visit noticed that Mr Holschier had not taken his morning medication yet and reminded him of the need to do so. In response to the reminder, he received an assurance from Mr Holschier that he would take the medications as described. On 22 January 2019, the same officer checked his Webster pack "and noticed compliance" (OIMS Case Note, Thomas Ng). On 24 January 2019, the same officer had a conversation with the Community Mental Health Care nurse who told him that Mr Holschier was doing really well and was compliant with his medication. Again, on 28 January 2019 the same department officer checked the Webster pack "and noticed compliance". On 30 January 2019, the same officer recorded "noted maintained compliance with medication". On 8 February 2019, the officer noticed that Mr Holschier had missed his medication on three consecutive days. The officer informed Mr Holschier that "this was not acceptable and directed him to be compliant" (OIMS Case Notes). On 15 February 2019, the Webster pack was checked again by a new officer who was taking over his supervision during a home visit. It's implicit in the note that there was compliance subject to Mr Holschier taking his remaining medication that evening. 2. I accept that complete compliance is required. However, to the extent to which non-compliance with his prescription for oral antipsychotic medication may be a pre-condition to the destabilisation of his mental condition, one of the three preconditions underpinning the risk, it is apparent that Mr Holschier is not a frequent or recalcitrant non-complier. The evidence does not show that Mr Holscier is guilty of "sustained" non-compliance, or non-compliance has been continuing for a "longer time", to pick-up Dr Lennings expressions. Indeed, Mr Holschier's record for compliance may not be perfect but it is good. And it should be borne in mind he is submitting to the monthly intramuscular depot injections. I am not suggesting that he does not require the oral medication, but as Dr Martin acknowledged in evidence, given that fact infrequent non-compliance with his oral medication is less likely to destabilise his illness. 3. I acknowledge that the Departmental officers have played an important role, through home visits and the like, in helping Mr Holschier to maintain his compliance with his medication, and remain abstinent from substance abuse. There can be no doubt that in this way he derives a benefit from his engagement with them, even if he does not always appreciate their intrusions. However, I am not satisfied that the removal of their supervision will materially increase his residual risk. 4. Given his history and the other matters to which I have referred, Mr Holschier obviously presents some risk of committing a serious violence offence. But it is implicit in the expression "unacceptable risk" that some, low level of risk may be accepted or tolerated. 5. The evidence persuades me that the risk of commission of a serious violence offence posed by Mr Holschier is low. I am not satisfied to the high degree of probability required that the risk he poses is unacceptable if he is not kept under supervision. 6. In these circumstances, I am not empowered to make an extended supervision order and I am required to dismiss the application. 7. Before doing so, I should make clear that had I been persuaded to the high degree of probability required that Mr Holschier does pose an unacceptable risk of committing a further serious violence office if not kept under supervision, I would have exercised my discretion to order a further ESO for a period of 12 months as the State seeks. However, having regard to the nature of the risk identified in the evidence and having in mind Mr Holschier's general right to be at liberty, I would not have imposed the full suite of conditions that the State seeks. In particular, I would not have re-imposed conditions as to electronic monitoring, schedule of movements, and curfew. To my mind, the risk would be appropriately addressed by conditions permitting home visits, drug and alcohol testing, influence over the formation of relationships and the power to direct that Mr Holschier comply with prescribed medical treatment. 8. Given that there has been a degree of non-compliance with oral medication in the past as I have described above, notwithstanding the involvement of the Community Mental Health Team case managing his psychiatric condition, and because beneficial supervision will be removed, I think it appropriate to observe that consideration ought to be given by appropriately qualified persons as to whether a Community Treatment Order should be applied for. 9. My order is: The application for a further Extended Supervision Order is refused and the summons filed on 28 November 2018 is dismissed. Amendments 01 April 2019 - Paragraph 13(3) "Depo Injections" changed to "Depot Injections" 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: 01 April 2019