Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v CT (Final) [2019] NSWSC 847 Hearing dates: 19 June 2019 Date of orders: 21 June 2019 Decision date: 05 July 2019 Jurisdiction: Common Law Before: Wright J Decision: The Court ORDERS: 1 Pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act), the defendant is subject to a continuing detention order (CDO) for a period of 5 months and 3 days commencing on 21 June 2019 and expiring on 23 November 2019. 2 Pursuant to ss 17(1)(a) and 25B of the CHRO Act, the defendant is subject to an extended supervision order (ESO) for a period of 3 years commencing immediately upon the expiration of the CDO referred to in order 1 or its earlier revocation by the Court. 3 Pursuant to s 11 of the CHRO Act, for the period of the ESO referred to in order 2, the defendant is directed to comply with the conditions of supervision set out in the schedule to this order (see below). 4 Pursuant to s 20(1) of the CHRO Act, a warrant is to issue for the committal of the defendant to a correctional centre for the purpose of order 1. 5 The parties have liberty to apply to Wright J on 2 days' notice concerning the implementation, variation or revocation of these orders. 6 The pseudonym order made by N Adams J on 22 May 2019 is varied to the extent necessary to permit the reports of Dr Ellis and Dr Martin, the transcript of proceedings and any other relevant evidence in this matter to be provided to the defendant's treating psychiatrist or other healthcare practitioners to assist their consideration of whether the defendant should be referred or admitted to a suitable mental health facility, including the Forensic Hospital. The Court NOTES: 7 Pursuant to s 10(2) of the CHRO Act, the defendant's obligations under the ESO referred to in orders 2 and 3 are suspended while the defendant is in lawful custody whether under this or any other Act or law. 8 Lawful custody for the purposes of s 10(2) of the CHRO Act may include detention as an involuntary patient in a mental health facility under the Mental Health Act 2007 (NSW), or escorted leave from any such facility, at least in circumstances where the defendant's freedom is directly controlled and limited. 9 The Court would be assisted by: a. the defendant's treating psychiatrist and, if appropriate, other healthcare practitioners preparing a report or reports as to whether the defendant should be referred or admitted to the Forensic Hospital or another mental health facility, having regard to the defendant's current mental health status and the absence of suitable accommodation as disclosed in the evidence in this matter; b. such reports or reports being prepared and furnished to the Crown Solicitor's Office by 19 July 2019. Catchwords: HIGH RISK OFFENDER – final hearing – application for continuing detention order and/or extended supervision order – history of disturbing pattern of armed, violent behaviour – defendant very recently diagnosed with significant psychiatric illness – Court satisfied to a "high degree of probability" that defendant posed an "unacceptable risk" of committing another serious offence if not kept in detention while psychiatric illness treated in a secure and safe facility – continuing detention order made pending admission to secure psychiatric facility - extended supervision order made for three years to operate on expiration or revocation of continuing detention disorder – extended supervision order suspended while defendant in lawful custody order under Mental Health Act 2007 Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Serious Sex Offenders) Act 2006 (NSW) Firearms Act 1996 (NSW) Mental Health Act 2007 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Weapons Prohibition Act 1998 (NSW) Cases Cited: Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales (2016) 91 NSWLR 636 State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 State of New South Wales v Windle (No. 3) [2017] NSWSC 727 Category: Principal judgment Parties: State of New South Wales (Plaintiff) CT (Defendant) Representation: Counsel: Mr P Aitken (Plaintiff) Ms S Fernando (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid (Defendant) File Number(s): 2019/037393 Publication restriction: Publication of the defendant's name is restricted in accordance with the order of N Adams J made on 22 May 2019. Judgment INTRODUCTION 1. By a summons filed on 4 February 2019, the plaintiff, the State of New South Wales, sought the following orders, among others: 1. an order pursuant to ss 5D(1) and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act) that the defendant be the subject of a continuing detention order (CDO) for a period of one year. 2. an order pursuant to s 20(1) of the CHRO Act that the Court issue a warrant for the committal of the defendant to a correctional centre for such period. 3. at the expiry of the continuing detention order: 1. an order pursuant to ss 5C(1) and 9(1)(a) of the CHRO Act, that the defendant be subject to an extended supervision order (ESO) for a period of 5 years from the date of the order; and 2. an order pursuant to s 11 of the CHRO Act directing the defendant, for the period of the ESO, to comply with the conditions set out in Schedule A to the summons. 1. In the alternative, the plaintiff sought: 1. an order pursuant to ss 5C(1) and 9(1)(a) of the CHRO Act that the defendant be subject to an ESO for a period of 5 years; and 2. an order pursuant to s 11 of the CHRO Act directing that the defendant, for the period of the ESO, comply with the conditions set out in Schedule A to the summons. 1. The defendant's sentence of imprisonment was due to expire on 31 March 2019. 2. A preliminary hearing, as required by ss 15(3) and 7(3) of the CHRO Act, was conducted on 8 March 2019. 3. On 21 March 2019, Bellew J made an interim detention order (IDO) for a period of 28 days commencing on 31 March 2019. 4. At some time prior to 26 March 2019, the defendant was admitted to Long Bay Hospital. There was apparently some confusion as to the status of the defendant while he was being treated there. Nonetheless, it now appears that he was a voluntary patient during some or all of his admission. 5. Between 1 April 2019 and 23 May 2019, the defendant remained at Long Bay Hospital receiving treatment. 6. On 24 April 2019, when the matter came before Harrison J, it was assumed that the defendant was an involuntary patient at Long Bay Hospital and, in those circumstances, it was thought inappropriate to make any further order under the CHRO Act. 7. On 21 May 2019, N Adams J made an order that the defendant be placed on an IDO for 6 days expiring on 27 May 2019, together with consequential orders. 8. On 27 May 2019, a further IDO was made by Hamill J for 27 days, expiring at midnight on 23 June 2019. 9. After an urgent appeal against the orders of N Adams J and Hamill J was dismissed by the Court of Appeal, the final hearing of the State's application took place before me, on 19 June 2019. 10. At the end of the hearing on 19 June 2019, I reserved my decision. On 21 June 2019, I made orders as follows: "1 Pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act) the defendant is subject to a continuing detention order (CDO) for a period of 5 months and 3 days commencing on 21 June 2019 and expiring on 23 November 2019. 2 Pursuant to ss 17(1)(a) and 25B of the CHRO Act, the defendant is subject to an extended supervision order (ESO) for a period of three years commencing immediately upon the expiration of the CDO referred to in order 1 or its earlier revocation by the Court. 3 Pursuant to s 11 of the CHRO Act, for the period of the ESO referred to in order 2, the defendant is directed to comply with the conditions of supervision set out in the schedule to this order (see below). 4 Pursuant to s 20(1) of the CHRO Act, a warrant is to issue for the committal of the defendant to a correctional centre for the purpose of order 1. 5 The parties have liberty to apply to Wright J on 2 days' notice concerning the implementation, variation or revocation of these orders. 6 The pseudonym order made by N Adams J on 22 May 2019 is varied to the extent necessary to permit the reports of Dr Ellis and Dr Martin, the transcript of proceedings and any other relevant evidence in this matter to be provided to the defendant's treating psychiatrist or other healthcare practitioners to assist their consideration of whether the defendant should be referred or admitted to a suitable mental health facility, including the Forensic Hospital." 1. At the same time, the Court also expressly noted: "7 Pursuant to s 10(2) of the CHRO Act, the defendant's obligations under the ESO referred to in orders 2 and 3 are suspended while the defendant is in lawful custody whether under this or any other Act or law. 8 Lawful custody for the purposes of s 10(2) of the CHRO Act may include detention as an involuntary patient in a mental health facility under the Mental Health Act 2007 (NSW), or escorted leave from any such facility, at least in circumstances where the defendant's freedom is directly controlled and limited. 9 The Court would be assisted by: a. the defendant's treating psychiatrist and, if appropriate, other healthcare practitioners preparing a report or reports as to whether the defendant should be referred or admitted to the Forensic Hospital or another mental health facility, having regard to the defendant's current mental health status and the absence of suitable accommodation as disclosed in the evidence in this matter; b. such reports or reports being prepared and furnished to the Crown Solicitor's Office by 19 July 2019." 1. At the time of making those orders, I indicated that my reasons for judgement would be delivered later. My reasons for making those orders on 21 June 2019 are as set out below. Relevant statutory provisions and principles 1. There was no substantial dispute between the parties as to the relevant statutory provisions and principles. 2. The making of an ESO and a CDO is governed by ss 5B and 5C of the CHRO Act, which are in following terms: "5B Making of extended supervision orders—unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is 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. 5C Making of continuing detention orders—unacceptable risk The Supreme Court may make an order for the continued detention of a person (a continuing detention order) if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a detained offender or supervised offender (within the meaning of section 13B), and (c) an application for the order is made in accordance with section 13B, and (d) the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order." 1. In the present case, it was not in dispute that the requirements in s 5C(a), (b) and (c) were met. [1] It would also follow, and I did not understand it to be in dispute, that the requirements of s 5B(a), (b) and (c) were also met. Accordingly, whether an ESO and/or and CDO could be made in this case depended on whether the Court was satisfied to a "high degree of probability" that the defendant poses an "unacceptable risk" of committing another serious offence if not kept, respectively: 1. under supervision under the ESO; and/or 2. in detention under the CDO. 1. The standard of proof required by the words a "high degree of probability", in ss 5B(d) and 5C(d) of the CHRO Act, is a higher standard than "more probably than not" but not as high as "beyond reasonable doubt": Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. The right of an offender to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn v State of New South Wales (2016) 91 NSWLR 636 (Lynn) at [44] and [55]-[58]; [2016] NSWCA 57. 2. In performing this task, the Court is also to have regard to the objects of the CHRO Act, set out relevantly in s 3 in the following terms: "(1) The primary object of this Act is to provide for the extended supervision and continuing detention of … high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage … high risk violent offenders to undertake rehabilitation." 1. In addition, I am bound to apply ss 9(2) and 17(2) of the CHRO Act which provide that in determining whether or not to make an ESO or a CDO, respectively: "the safety of the community must be the paramount consideration of the Supreme Court." 1. Nonetheless, the purpose of the CHRO Act, like the earlier Crimes (Serious Sex Offenders) Act 2006 (NSW), is protective and rehabilitative not punitive: Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21] (McClellan CJ at CL). 2. It should also be noted that, when the Court is considering an application for an ESO or a CDO, by virtue of s 5D of the CHRO Act, it: "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. Unacceptability depends on a range of factors which must be balanced against one another. There may be circumstances where a person may be held to pose an unacceptable risk of committing another serious offence even if the risk of recidivism is low but the consequences, for example to a victim, are likely to be drastic: see the comments of N Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128]. 2. The evaluation to be made under ss 5B(d) and 5C(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, and such an assessment is to be made assuming the absence of any supervision: Lynn at [61]. 3. Determining whether to make a CDO or an ESO, or a CDO followed by an ESO, turns, at least in part, upon the matters to which the Court must have regard under ss 9(3), which relates to ESOs, and s 17(4), which concerns CDOs. The paragraphs of those two subsections which are applicable in the present case are almost identical. Where they are different, the two different versions are given in the quotation which follows: "(a) (Repealed) (b) the reports received from the persons appointed under section [[s 9(3)] 7(4); [s 17(4)] 15(4)] to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, [[s 9(3)] (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, [s 17(4)] (e1) if the offender is kept in custody or is in the community (whether or not under supervision)—any options available that might reduce the likelihood of the offender re-offending over time, [s 9(3)] (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, [s 17(4)] (e2) whether it is satisfied that the offender is likely to comply with the obligations of an extended supervision order, [s 9(3)] (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, [s 17(4)] (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an interim supervision order or an extended supervision order,] (g) … (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence, … [s 17(4) contains other paragraphs which are not presently relevant]." The evidence 1. At the final hearing, the documentation before the Court was not in a state that was easy to follow. Accordingly, for the sake of clarity, I note that the affidavit evidence relied upon by the State was: 1. the affidavits of Ms Shawana Tasneem of 4 and 21 February 2019 and 13 and 28 May 2019; 2. the affidavit of Shweta Sharma of 4 June 2019; 3. the affidavit of Nicole Ahern of 7 June 2019; 4. the affidavit of Alecia Nolan of 13 June 2019; and 5. the affidavit of Kim Ward of 17 June 2019. 1. The defendant relied on the following: 1. the affidavit of Todd Davis of 12 June 2019; and 2. the affidavit of ET (the name of the deponent being the subject of a non-disclosure order) of 11 June 2019 1. The exhibits were as follows: 1. the expert reports of Dr Ellis of 12 May 2019 and 2 June 2019 – exhibit A; 2. the expert reports of Dr Martin of 7 May 2019 and 31 May 2019 – exhibit B; 3. the Risk Assessment Reports of Ms Tulloh of 20 December 2018 and 11 June 2019 – exhibit C; 4. the risk management report of Ms Ruecroft of 14 June 2019 – exhibit D; and 5. the risk management report of Mr Corcoran of 9 January 2019 – exhibit E. 1. The evidence included considerable material concerning the defendant's background, criminal history and mental health issues. These were all relevant to a number of the matters referred to above. These facts were not generally in dispute and can be summarised as set out in the following paragraphs. The defendant's background 1. The defendant is a 47 year old man, having been born in May 1972 in Gosford. He was raised mainly by his mother. His parents separated when he was about three. According to the defendant, he had minimal contact with his father until the age of 17 and his father subsequently died from bone cancer in 2009. His mother had a number of other partners and the defendant had a difficult relationship with them. Although the dates are not entirely clear, the defendant was in foster care and, during this time, he was sexually assaulted by one of his foster carers. After about the age of 16, he lived with friends. 2. The defendant completed his schooling at about 16 and described himself as a good student without behavioural problems. He has a forklift licence and has worked on building sites. Into his 20s, he worked on a farm and as a farm manager. He also said that he worked successfully as a cleaner contracted by Aldi across a range of stores from Wodonga to Mildura and apparently spent much of his adult life in the Albury area. 3. The defendant reported that he first smoked cannabis at the age of 11 and has previously used it on a daily basis. He apparently bought hemp oil through the Internet or the "dark web" and said that he used this in the context of treating bone cancer. He expressed a wish, as late as May 2019, to continue to use cannabis for this reason. He also said that he used amphetamines from the age of 13 and had previously used it intravenously. In addition, in the 1990s, he may have used heroin, although this was denied during one interview, and he also tried at times cocaine, magic mushrooms, LSD and other synthetic substances. He tested positive for methamphetamine use on urinalysis while on release to parole in 2018. 4. It appears that the defendant was in a de facto relationship with IC for more than 20 years from about the mid-1990s. He has two sons as a result of that relationship, who are aged about 17 and 18 years. The defendant's criminal history prior to the index offences 1. The defendant's criminal history, prior to the index offences, can be sufficiently summarised as follows: 1. Between 1989 and 1992, the defendant committed offences of stealing, offensive behaviour and offensive language for which he was fined. 2. In August 1993, the defendant committed the offence of using an offensive weapon (a firebomb) with intent to commit an indictable offence when he threw a bottle filled with petrol with a lighted rag as a wick at the home of a Police officer in Griffith. The bottle hit a tree near the house and exploded. 3. In May 1994, the defendant failed to appear at trial, being on bail at the time and a bench warrant was issued. 4. In June 1994 when police eventually arrested him, the defendant committed the offences of escaping lawful custody and being armed with intent to commit an indictable offence, in what was described as a siege. Other offences of assaulting a Police officer, possessing a loaded firearm, possessing an unlicensed firearm, and using a firearm were taken into account when the defendant was sentenced for the first mentioned offences. 5. In May 1995, the defendant was sentenced to imprisonment for four years with a non-parole period of two years in respect of the August 1993 offence and fixed terms of three months and six months, both dating from 30 June 1994, for the June 1994 offences. 6. In June 1996, the defendant was released to parole and this supervision expired on 29 June 1998. 7. In March 1998, the defendant committed two offences of common assault for which he was sentenced to 7 months' imprisonment, commencing on 10 August 1998, with a two-month non-parole period. These assaults involved his partner, IC. 8. In October 1998, the defendant committed the offence of destroying or damaging property with a value of less than $2000. He was required to enter into a recognisance under s 558, not to assault or contact the victim. 9. In January 1999, the defendant contravened an apprehended domestic violence order on two occasions for which he was fined. These contraventions involved his partner IC. 10. In August 2001, the defendant committed the offences of using offensive language in public, resisting an officer in the execution of duty, custody of a knife in a public place, resisting police in the execution of duty and assaulting an officer in the execution of duty. He was sentenced to an effective term of three months commencing on 29 August 2002. 11. In November 2001, the defendant committed the offence of using an offensive weapon to prevent a police investigation for which he was sentenced to 4 years imprisonment commencing on 10 May 2002 with a non-parole period of two years. 12. In January 2007, the defendant committed the offence of break and enter and steal for which a 2 year s 9 bond was originally imposed in June 2008. In April 2010 on call up, he was sentenced to imprisonment for three months commencing on 2 December 2009 in respect of this offence. 13. In February 2007, the defendant contravened an apprehended domestic violence order for which he was fined. This offence involved his step daughter. 14. In April, May and June 2007, the defendant breached bail on four occasions. 15. In May 2007, the defendant committed the offence of destroying or damaging property and was fined. 16. In February 2009, the defendant committed the offences of driving a vehicle recklessly, driving a vehicle while unlicensed, using an uninsured motor vehicle and other related vehicle offences. He was sentenced to an effective term of four months imprisonment commencing on 2 December 2009 and fined. 17. In October 2009, the defendant committed two offences of common assault on two male persons at a home he visited seeking alcohol for which he was imprisoned for one month commencing on 1 December 2009. 18. In November 2009, the defendant breached bail on one occasion. 19. In November 2009 whilst on bail, he committed offences of assault occasioning actual bodily harm, being armed with intent to commit an indictable offence, stalking or intimidating, destroying or damaging property to a value of less than $2000 for which he was effectively sentenced to 20 months' imprisonment commencing on 2 December 2009 with a non-parole period of 12 months. 20. On 1 December 2010, the defendant was released to parole but it appears his parole was revoked for non-compliance. 21. In August 2012, the defendant committed the offences of possessing and supplying a prohibited drug and bringing a small quantity of drug into a detention centre for which a 120 hour community service order was imposed. The index offences 1. The information concerning the index offences, to which the defendant pleaded guilty, was derived from the agreed facts. By 30 March 2016, the defendant had been in a relationship with IC for over 15 years and they had two sons. Unfortunately, the relationship had severely deteriorated involving periods of separation and reconciliation. 2. IC worked as a housecleaner. At about 11:30 AM on 30 March 2016, IC was cleaning the house of the second victim in Albury, when the defendant was observed by a passing motorist looking into the windows of IC's vehicle and over the side fences of a residence. The motorist continued to observe the defendant walking into the front yard of a residence and started to ring 000. The defendant saw the motorist and ran out of the yard towards him, yelling obscenities. The motorist reversed his vehicle some 50 m down the street. 3. Then, a nearby resident in the same street came out of his house and saw the defendant who walked towards him into his driveway. The resident asked the defendant if he needed help and the defendant removed a bottle from the recycling bin and commenced threatening the resident to go across the road and get the defendant's "Missus" out of the house. The resident complied and started to walk towards the house across the road. The defendant repeated his demand while pressing the bottle into the back of the neck of the resident. He also told the resident that he had a firearm and would shoot him if he did not comply with his demands. 4. At about 12 noon, IC was still cleaning the house when she heard the commotion out on the street and saw the defendant and the resident approaching the front door of the house she was cleaning. She opened the front door and the security door and went outside to find out what the defendant was doing. The defendant assaulted IC by pushing her out of the way which caused a scratch to her forehead. The defendant went into the house. The resident stayed at the front door till he heard screaming "call the police" and he started to return to his house to get a phone and ring 000. He could hear glass smashing inside the house where the defendant was. 5. Inside the house, the defendant confronted the second victim, screamed an obscenity at him and then without warning struck him on the head with the bottle he had been carrying. The second victim ended up on the floor with the defendant over the top of him still yelling at him and striking him with his fists. The second victim managed to get up and run out of the front door with the defendant pursuing him and continuing to make threats. The second victim flagged down a passing car, got in and told the driver to speed away as he believed he had seen the defendant pull a firearm shaped object from his pocket. As a result of the incident, the second victim suffered a number of facial fractures for which he was treated at hospital. 6. The defendant was later located and arrested. He was found in possession of a 15 cm bladed knife hidden down the front of his pants and a small tin containing approximately 0.65 g of cannabis. The defendant was taken to Albury police station. He declined to be interviewed but in an electronically recorded conversation he claimed no knowledge of the offences, denied that he had been to the street in question and said he had been at home all day. The defendant made admissions concerning the knife and the drugs and stated he generally carried the knife for protection but had it on his person at this time because he received a phone call that his girlfriend had been hit by a car and he had "armed up" to attend a location to assist her. Further, he said that he had the cannabis in his possession as he used cannabis because he suffers from cancer. 7. The defendant pleaded guilty to the following three charges arising out of his conduct on 30 March 2016 and he was committed to the District Court for sentence: 1. aggravated enter a dwelling with intent and armed; 2. take and detain a person with intent to obtain advantage; and 3. recklessly causing grievous bodily harm. 1. In addition, the following four charges were referred to the District Court under s 166: 1. use intimidation or violence to unlawfully influence person; 2. assault occasioning actual bodily harm in a domestic violence context 3. custody of a knife in a public place; and 4. possessing a prohibited drug, cannabis. 1. On 30 November 2016, an aggregate sentence of three years commencing on 30 March 2016 with a non-parole period of one year and 10 months was imposed by Baly DCJ in respect of all charges. In her remarks on sentence, her Honour was of the view that the offences could only be explained as being "the spontaneous actions of a confused and irrational individual affected by drugs". In addition, she did not find that the defendant had demonstrated remorse. It was noted that while the relationship between the defendant and IC was described as "problematic" it was so "because of the [defendant's] misuse of alcohol, misuse of drugs and his offending". Her Honour found that there were some prospects of rehabilitation, but she remained guarded. She also could not find that he was unlikely to reoffend and noted that the pre-sentence report indicated that the defendant was assessed as having a high to medium likelihood of reoffending. In particular, the learned sentencing judge said: "There is a need for assistance to address alcohol abuse and drug abuse. The [defendant] will require considerable assistance, when he is on parole, in order to achieve rehabilitation and to reintegrate into the community. There is also, in my view, a danger of institutionalisation." Conduct following release to parole 1. On 29 January 2018, the defendant was released to supervised parole. A breach of parole report was submitted on 31 January 2018 as the defendant failed to attend to attain assistance with temporary accommodation and it was unknown where he was residing. No action was taken on this breach. 2. In March 2018, the defendant was found eligible for and commenced management under electronic monitoring as part of the domestic violence offender monitoring program. He was largely non-compliant with monitoring, including deviations from the schedule, entering exclusion zones, failure to maintain his monitoring equipment and being unresponsive to telephone calls. 3. On 1 May 2018, the defendant tested positive on a urinalysis for cannabis and methamphetamines. He was returned to custody on 16 May 2018 and released to parole again on 7 August 2018. The defendant did not comply with his schedule the very next day and continued his general non-compliance until his parole was again revoked and he was returned to custody on 18 October 2018. 4. As has been noted above, his sentence was due to expire on 31 March 2019 but interim detention orders were made providing for his continuing in custody until midnight on 23 June 2019. Psychiatric assessment after the index offences 1. It appears that the defendant was psychiatrically assessed in 1995, while in custody. It also appears that there was no further psychiatric assessment of the defendant until he was examined by Dr Shweta Sharma, a psychiatrist, on 26 March 2019 after he was transferred from the Metropolitan Remand and Reception Centre to Long Bay Hospital. 2. Dr Sharma recorded that, at the time of her examination, the defendant was very irritable and refused to engage initially. When he did engage, he was noted to be thought disordered and experiencing delusions of a persecutory and somatic nature. He believed "it was a set up" and that he had bone marrow cancer. He was convinced that a police officer was going to kill him and that he had firebombed the house of the police officer in "self-defence". He refused to undergo recommended physical examination and blood tests. He had been suffering these symptoms of thought disorder, and the persecutory and somatic delusions for at least three years. Dr Sharma diagnosed the defendant with schizophrenia. She also concluded that he met the criteria for substance use disorder (cannabis and stimulants). He was commenced on clopixol depot, a long-acting intramuscular antipsychotic medication. 3. The defendant was required to be reviewed by the Mental Health Review Tribunal (MHRT), under s 59 of the Mental Health (Forensic Provisions) Act 1990 (NSW). 4. By 23 May 2019, Dr Sharma could report that the defendant's compliance with medication was good and his psychotic symptoms had resolved after a few weeks of treatment, so that all his delusions had resolved and he no longer believed that he had bone marrow cancer. Significance of the recent diagnosis and treatment 1. This recent diagnosis and apparently effective treatment of the defendant, under the supervision of the MHRT, is very significant in this matter. The defendant, in his written submissions, expressly said that he: "accepts that any unacceptable risk that the Court may find he poses is linked to an underlying mental illness which has never before been treated. Significant improvement has been achieved through the administration of intramuscular antipsychotic medication. Due to appropriate psychiatric diagnosis and treatment, since the preliminary hearing, [the defendant's] risk has been considerably ameliorated." 1. The State, in its written submissions, did not appear to take a different approach noting that the application for the CDO was still pressed "in that further stabilising of the defendant's mental illness may be indicated prior to release into the community, in order to address the risk of serious offending." 2. Consequently, there was little, if any, dispute between the parties that the appropriate structure of orders in the defendant's case, given the recent diagnosis and apparently effective treatment of his mental illness, was for a limited CDO, followed by a more lengthy ESO with appropriate conditions. The main areas of contention were: 1. for how long should the CDO be in place, a matter of weeks or up to a year; and 2. for how long should the ESO be in place and what were the appropriate conditions to be imposed. 1. As a result, much of the expert material concerning the risk posed by, and management of, the defendant which predated the diagnosis of his mental illness was of less relevance to the determination of the issues on the final hearing of this matter, than might otherwise have been the case. 2. Bearing in mind the defendant's recent diagnosis of schizophrenia and his positive response to treatment, I next considered the matters in ss 9(3) and 17(4) of the CHRO Act. Reports received from the persons appointed under ss 7(4) or 15(4) – par (b) 1. The defendant was relevantly examined by two forensic psychiatrists who provided reports to the Court as follows: 1. the reports of Dr Andrew Ellis dated 12 May 2019 and 2 June 2019; and 2. the reports of Dr Adam Martin dated 7 May 2019 and 31 May 2019. 1. Dr Ellis interviewed the defendant on 10 April 2019 and had a discussion with his treating psychiatrist, Dr Sharma, on 15 April 2019. In addition, Dr Ellis was provided with documentation concerning the defendant's criminal history, his treatment while in custody, risk assessment and risk management reports and Corrective Services documentation. 2. It can be noted that Dr Ellis's interview with the defendant was only about two weeks after his diagnosis by Dr Sharma and the commencement of treatment. At that time, the defendant told Dr Ellis that: "he was okay with taking medication, but was not sure that he needed it. He said that 'whatever you reckon I will do'. He said that he would wear a global position system tracker. He said he would have difficulty scheduling his movements and would prefer to live in Albury as he did not know Sydney, or anyone who lived here." 1. As to his diagnosis, Dr Ellis's opinion was that, the defendant at that time: 1. The defendant presented with symptoms consistent with a psychotic disorder. The defendant presented in a less disturbed manner than in earlier clinical interviews, probably because of the effect of antipsychotic medication reducing his experience of delusions and hallucinations. Nonetheless, he still experienced a somatic delusion that he had a type of cancer. In addition, Dr Ellis thought it likely that he held delusions of infidelity about his ex-partner and a complex series of persecutory delusions concerning a conspiracy to sabotage his cleaning business and previous conspiracy by police against him. Dr Ellis was of the view that to determine whether the defendant's psychotic disorder was due to organic damage to the brain or whether he suffered from a functional mental illness such as schizophrenia would require further investigation. It was not likely, in the doctor's opinion, that substance use was the sole cause of his psychotic symptoms. 2. The defendant met criteria for a substance use disorder, particularly cannabis, but also, historically, alcohol and stimulants. Although this disorder was in remission in a controlled environment, it had become a chronic condition. 3. The defendant presented with coarsened attitudes to violence, impulsive behaviour, irresponsibility and disregard for others. However, it would be premature to diagnose an antisocial personality disorder at this stage. 1. As to whether the defendant suffered from a neurocognitive disorder, Dr Ellis was of the view that his poor cognitive performance might be the result of resolving psychosis and antipsychotic medication and so this question should be further evaluated once his treatment was better consolidated and other investigations had been completed. 2. In assessing the risk posed by the defendant of committing further serious offences, particularly personal violence offences, Dr Ellis made reference to the HCR – 20 V3 structured professional judgement tool which has been widely used clinically and in research to assess risk for violence. In the absence of any treatment or supervision, Dr Ellis was of the view that the defendant would fall into a group of persons with a risk for violent offending that is statistically high in frequency with potential for serious consequences in his specific case and more than a theoretical average offender. Dr Ellis considered that the defendant's victims were likely to be adults with whom he had some interaction and conflict but it could also include strangers in the context of an acquisitive or other offence. Police or other officers with whom he was required to interact would be at particular risk given the history of likely delusions about police. Dr Ellis also said that the history of using weapons rendered it foreseeable that the defendant could engage in violence that escalated to a serious level. 3. In this context, Dr Ellis also noted that there were difficulties in assessing his anticipated future problems associated with violence as the defendant had only very recently commenced the appropriate psychiatric treatment. It was also noted that the potential for relapse to drug use or more severe psychotic states and poor stress management outside of close professional care was high and this indicated a high need for professional services and plans to contain the potential for violence. 4. At the time of preparing his first report Dr Ellis was of the view that, from a psychiatric perspective, further incarceration of the defendant under a CDO would not be recommended, "other than to secure community accommodation that can allow his ongoing psychiatric treatment". At the same time, it was observed that management in the community would pose challenges, particularly in relation to his ability to follow rules and structure and to be honest with supervising and treating staff, whilst he remained delusional. The failures on his recent release to parole were noted not to have risen to the level of a serious violent offence even when he was not being treated for his psychotic illness. 5. Dr Ellis was of the view that the mainstay of effective risk management in the defendant's case was treatment of his psychosis. In this regard, the defendant required further evaluation to assess whether a neurocognitive disorder underlay the psychosis. For this purpose he should be referred to a forensic psychiatrist to coordinate further cognitive evaluation and for prescription of appropriate medication related to substance use and psychosis. 6. In the context of the defendant's requirements for treatment and evaluation, I particularly noted Dr Ellis's view that: "[h]is level of insight might improve, however he would likely need ongoing treatment in hospital or with a community treatment order under the Mental Health Act 2007. He would require accommodation, and may need placement in a COSP at first to secure this." 1. In his supplementary report of 2 June 2019, Dr Ellis noted that the defendant had been placed under a forensic community treatment order (FCTO) and he had responded well to long-acting injection antipsychotic treatment. The delusions initially noted were thought to have resolved and his cognitive performance had improved. 2. Dr Ellis agreed with Dr Martin's diagnosis of schizophrenia and substance use disorder. As to his "long-term pattern of risk", Dr Ellis was of the view that this would remain similar as the current response relied on the continued compliance which had yet to be substantially tested. 3. As to Dr Martin's view that the Forensic Hospital was the most appropriate placement for the defendant, Dr Ellis noted that, in his initial report, he considered the hospital placement may be required to treat his psychotic symptoms but was of the view that placement in supported accommodation such as a COSP or mental health supported housing would be more appropriate. Dr Ellis also said that the defendant would only fulfil the relevant criteria for admission to the Forensic Hospital if no safe and effective community placement were reasonably available. 4. Dr Martin interviewed the defendant on 1 May 2019 and also reviewed similar documentation to that reviewed by Dr Ellis. Dr Martin's diagnosis was that the defendant: 1. "clearly has schizophrenia"; 2. fulfils diagnostic criteria for substance use disorder (amphetamines and cannabis); and 3. has an offending history, going back to his childhood, that is suggestive of an underlying antisocial personality disorder. 1. Dr Martin was of the view that all of these mental health conditions should be seen as chronic and enduring, although they may be amenable to management and responding to psychiatric medication and psychotherapy intervention in an appropriate setting. 2. In Dr Martin's opinion, the defendant posed a high risk of further serious violent offending. That risk would be significantly decreased, however, if the defendant continued to engage in assertive psychiatric treatment legally mandated and if his situation were to be controlled such that he had no access to illicit substances and weapons. Dr Martin said: "In essence, I am advocating for him to be treated as a mental health patient in an appropriate secure therapeutic setting so that his forensic psychiatric needs can be met, thus reducing risk of violence." 1. In his report, Dr Martin went on to identify the appropriate forensic psychiatric facility as the Forensic Hospital and said: "In my view, he should be accommodated within a secure therapeutic setting such as at the Forensic Hospital, and should have a very slow and graduated discharge trajectory through the medium secure mental health setting before moving to the community. In my view, he is likely to have ongoing problems with treatment response, and stress or coping. However, it is plausible that he might experience a significant improvement in his mental state with ongoing prescription of appropriate antipsychotic medication and in my view, he should be considered for prescription of Clozapine in a secure and monitored setting." 1. In Dr Martin's view, the defendant was "not safe to be in the community in his current mental state", although that situation might change over time with assertive psychiatric intervention. The doctor also noted: "[The defendant] has severely impaired insight and a track record of not abiding by conditions, and in my view, release into the community under an ESO will be 'setting him up to fail' and will not appropriately manage the risk issues." 1. Nonetheless, Dr Martin was of the view that a CDO would not provide "an appropriate therapeutic setting. … A more appropriate setting … would be a secure psychiatric hospital such as the Forensic Hospital." 2. It is supplementary report of 31 May 2019, Dr Martin noted that the overall opinion expressed in his original report had not changed, even though he had been provided with further documentation that had been provided to the MHRT in relation to the application for an FCTO. In particular, Dr Martin said: "It is reasonable to accept that as a consequence of positive response to psychiatric treatment that his risk of future violence will be reduced. However, in saying that, it is foreseeable that in the future, if in a less controlled environment [such as the community], that he might relapse into substance use and experience a relapse of his psychotic condition, thereby increasing his risk of violence. In my view, it will be premature for him to be in the community at this stage. My preferred management plan, as stated before, would be for him to be admitted to a forensic psychiatric unit such as at the Forensic Hospital or possibly a medium secure unit such as at Cumberland, Bloomfield or Morisset Hospitals. In my view, he is likely to need a reasonably lengthy forensic admission." 1. In cross-examination, both doctors agreed that, in the defendant's case, a period of stability was required to ensure, firstly, consistent response to the medication and, secondly, developing insight into his offending and his mental condition and treatment. Dr Martin also observed that management of mental illness involved not just taking medication but also structure, supervision, restriction from illicit substances, having a stable environment, having regular monitoring and, in the defendant's case, psychological interventions around anger management and basic psychoeducation. 2. Dr Ellis was of the view that the defendant might require hospitalisation depending on the timing and depending on his response to treatment and that release into the community with a community treatment order would only be effected if there was supported accommodation available. In other words, according to Dr Ellis in cross-examination: "If there's no [COSP or ISC] accommodation identified, then an ESO can't effectively be implemented, and in that circumstance, even if he's very mentally well, given his previous difficulties with compliance and given his risks that he's presented when he's been mentally unwell, he would then be considered a mentally ill person in my view, and a mentally ill person that would require hospital care." 1. According to Dr Ellis, admission to the Forensic Hospital would require a referral from either Corrective Services or the Correctional Mental Health Service to the hospital. In this context, Dr Ellis also noted that in many ways the Forensic Hospital was as secure as any high security prison and the defendant was more likely to receive effective therapy in that setting. Dr Martin and Dr Ellis were of the view that stabilisation of the defendant in an environment such as the Forensic Hospital would be expected to take in the order of 6 to 12 months initially. From the Forensic Hospital, if there were a safe and effective mental health treatment facility, for example in Albury, the defendant could be "stepped down" to that facility while still an involuntary patient, and then be released into the community under an ESO, which would have been suspended while he was an involuntary patient. 2. Doctors Ellis and Marten were also all the view that the defendant's residing with his 18-year-old son would not be a suitable form of accommodation to allow the risk posed by the defendant to be appropriately managed. 3. Dr Ellis, who is also the Superintendent of the Forensic Hospital, also gave evidence in cross-examination that, if the Court made a CDO pending the referral and admission of the defendant to the Forensic Hospital and an ESO to take effect when he ceased to be an involuntary patient, the Forensic Hospital could be expected to respond to the referral within a time frame of about two months. There would be a number of things to be put in place but the main one would be ensuring that the hospital had a bed available for the defendant. 4. There was no significant disagreement between the psychiatrists as to the defendant's diagnosis and the level of risk posed by the defendant, if he did not receive appropriate treatment for his mental conditions or if he relapsed into illicit substance use. Furthermore, there was little difference between them concerning the appropriate approach to the management of the risk posed by the defendant. Both in effect accepted that the defendant's continued detention in a corrective facility was not appropriate in the circumstances and nor was immediate release into the community under an ESO appropriate. 5. In the absence of suitable accommodation in the COSP or an ISP, the psychiatrists also effectively agreed that admission to the Forensic Hospital was the most appropriate course and that it was likely that the defendant would be required to receive treatment there, as an involuntary patient, for approximately 6 to 12 months initially. 6. This evidence of the psychiatrists was well reasoned, supported by their particular areas of expertise and consistent with the material before the Court. I accepted that evidence. 7. It is appropriate to note at this point, in relation to the availability of suitable accommodation for the defendant, other than the Forensic Hospital: 1. Ms Kim Ward, the manager of the Nunyara Community Offender Support Program Centre, often referred to as COSP, assessed the defendant for his eligibility to be admitted in March 2019 and concluded that he was unsuitable for placement at the centre because the staff were not trained mental health workers and were unable to offer the level of care the defendant was being provided at that time. It was also a concern to her that the defendant had made threats to prison staff and was dismissive, argumentative and abusive to staff. Ms Ward reassessed the defendant for eligibility in June 2019, in the light of material relating to his mental health at that time and the MHRT's decision to make an FCTO. She concluded that he remained ineligible at that time because, among other reasons, he had not demonstrated stability or compliance with medication and treatment outside of a mental health environment. 2. Ms Alecia Nolan, acting manager of the Campbelltown Integration Support Centre (ISC), also gave evidence. She noted that the gates of the facility, while they were closed at night, were not locked and staff would not compel residents to stay should they attempt to leave. It was also the resident's responsibility to manage his own prescription medication and attend all appointments at community mental health. On 13 June 2019, she assessed the defendant's eligibility to be admitted to the ISC. She formed the view that he was not eligible on a number of grounds including: his diagnosis with schizophrenia and that he was a mentally ill person, as confirmed by the MHRT; the defendant's failure to give written agreement to commit to the requirements of the ISC's program as well as informed consent when agreeing to the conditions of his stay; the defendant's negative attitude towards child sex offenders, who make up a substantial proportion of the persons who are housed at the ISC; the risk posed by the defendant to residents and the staff of the ISC; the defendant's history of illicit drug use and the fact that he has not completed substance abuse treatment; and the views of Dr Martin that the defendant should be for referred to a forensic psychiatric unit and that it would be premature for him to be in the community. 3. Ms Kirsty Ruecroft, Community Corrections Officer, provided a supplementary risk management report dated 14 June 2019 concerning the defendant. That report included evidence as to the steps that had been taken to find other suitable accommodation for the defendant in the community. In the light of the defendant's psychiatric condition, refusals to provide required consent forms, offending history, drug and alcohol abuse history and/or his untested ability to live in the community without reoffending, no other suitable accommodation could be identified by Ms Ruecroft. 1. Having regard to this evidence, I accepted that, at the present time, there was no suitable accommodation for which the defendant would be eligible, other than the Forensic Hospital or some similar psychiatric facility, which could provide the stable and secure treatment and care which the defendant currently required. Other risk assessments and risk management reports – pars (c), (d) and (d1) 1. An initial Risk Assessment Report dated 20 December 2018 had been prepared by Ms Gillian Tulloh, senior psychologist at the South Coast Correctional Centre. In that report, she was of the opinion that the defendant's risk of further violent reoffending was high based on static, unchangeable factors and backed up by the identification of a number of criminogenic needs. Ms Tulloh said that there were no programs available in the community that would adequately address all of the defendant's identified treatment needs and risk factors at an intensity that was commensurate with his risk level. 2. Ms Tulloh also noted that the defendant had been quite open and adamant that he would continue to use cannabis regardless of any sanctions placed upon him and displayed a lack of insight into his offending and substance abuse. 3. Ms Tulloh prepared supplementary Risk Assessment Reports of 1 March 2019 and 11 June 2019. In the later report, Ms Tulloh said: "In order for [the defendant] to substantially reduce his risk of offending violently he would need to develop insight into the relationship between his mental illness and violence and maintain positive gains (such as medication compliance) for an extended period of time and have withstood challenges across a variety of contexts, that is, across custody and community. Historically [the defendant] has been very compliant in custody; it is his non-compliance in the community which is most problematic." 1. For the purposes of the 11 June 2019 report, Ms Tulloh also reviewed her assessment of the risk posed by the defendant in the light of the information contained in, among other things, Dr Martin's and Dr Ellis's original and supplementary reports. She concluded that even taking that information into account, the defendant remained "at high risk of reoffending". In this regard, Ms Tulloh's evidence was consistent with that of the psychiatrists. 2. On 9 January 2019, Marc Corcoran, a Senior Community Corrections Officer, prepared a risk management report. He noted that an assessment undertaken on 3 August 2018 placed the defendant within the medium to high risk level for general re-offending. Mr Corcoran went on to detail those conditions which could be imposed as part of a risk management plan in the event that the defendant was placed on a supervision order. I took those matters into account. 3. Dr Gordon Elliott, a psychiatrist, had attempted a psychiatric assessment of the defendant on 15 February 2019. However, the defendant would not agree to undergo assessment, became "aroused and angry" and left. Dr Elliott prepared a report dated 18 February 2019, based largely on documentary material provided to him. Ultimately, Dr Elliott was of the view that it was highly probable the defendant would return to substance use on release and thereby further increase his already high risk of violent re-offending and that he required assertive psychiatric assessment and observation. 4. To the extent that these reports remained relevant since the defendant's diagnosis of, and commencement of treatment for, schizophrenia, or postdate that, they were consistent with the opinions of, and approaches recommended by, Drs Ellis and Martin. On that basis, I accepted that evidence. Participation by the defendant in treatment and rehabilitation programs – par (e) 1. It did not appear that the defendant has completed any treatment or rehabilitation programs in recent times. The defendant had generally been unwilling to participate. For example, he refused to complete a referral to the Violent Offenders Therapeutic Program (VOTP) in late 2017 and in October 2017 when he was offered a place in the EQUIPS Addiction Program he declined to attend stating that he "didn't want to do it". He also declined to attend the Health Survival Tip (HST) program in early 2018. 2. Earlier, in 2004 and 1995 – 1996, the defendant had participated in some programs in custody relating to drug and alcohol awareness and relapse prevention, anger management and alcohol and violence protection. The lack of effectiveness of these programs in the defendant's case can be judged from his subsequent offending. Options that might reduce the defendant's likelihood of reoffending, if in custody or in the community – pars (e1) 1. Having regard to the evidence of the psychiatrists, Dr Ellis and Dr Martin, and the reports of Ms Tulloh and Mr Corcoran, I found that effective options available to reduce the likelihood of the defendant's reoffending over time fundamentally involved: 1. his receiving treatment for his schizophrenia and substance use disorder in a secure and stable environment, such as the Forensic Hospital, for a sufficient period for him to achieve stability and to develop insight both into his disorders and into his past offending; 2. moving into stepdown mental health accommodation, potentially still as an involuntary patient, to establish his ability and willingness to comply with conditions if released into the community under an ESO; and 3. release into the community under an ESO with conditions suitable to the defendant's circumstances at that time. 1. The other options would not, in my view, have reduced the likelihood of the defendant's reoffending over time. Continuing in custody under a CDO, while it might ensure that the defendant was removed from the community and thus could not reoffend except in the custodial environment, would not reduce the likelihood of his reoffending once he was released. Release into the community without any supervision would be highly likely to lead to the defendant reoffending within a short period for the reasons given by Dr Ellis, Dr Martin, Ms Tulloh and Dr Elliott. Immediate release into the community under an ESO, without sufficient treatment and care to ensure the defendant's stability and insight, would also be likely to lead to reoffending within a short time frame given the experience of his release to parole in 2018 and the prospect of his relapsing into alcohol and illicit substance abuse and becoming non-compliant with medication. Whether the defendant would be likely to comply with the obligations of an ESO – pars (e2) 1. Essentially for the same reasons as given in relation to the options to reduce the defendant's likelihood of reoffending over time, in my view, if the defendant were immediately released under an ESO, he would be unlikely to comply with the obligations under such an order. As already found above, the defendant's ability and willingness to comply with such obligations would depend on his receiving the treatment and support he needed in a secure and stable environment such as the Forensic Hospital and any suitable stepdown mental health facilities that might become available, over a period of at least 6 to 12 months, as explained by Dr Ellis and Dr Martin. It may be, in the defendant's case, that a longer period would be required but that would be a matter for his treating psychiatrists and other healthcare professionals involved in his care and support at the relevant time. The defendant's compliance with obligations while on release on parole – par (f) 1. The defendant submitted that there have been periods when the defendant has been released to parole in the 1990s and the 2000s and he has not been found to have breached parole or been convicted of any offences. So much might be accepted. However, as has been noted above, the defendant demonstrated an inability or unwillingness to comply with parole conditions when most recently released to parole in 2018. 2. This and his recent diagnosis and treatment for schizophrenia and substance use disorder supported the conclusion that the management of the risk posed by the defendant required his treatment in a secure and stable environment before the Court could be satisfied that the defendant was likely to be able and willing to comply with the obligations under an ESO. The defendant's criminal history and the pattern of offending disclosed – par (h) 1. I have set out above the defendant's criminal history. There were numerous offences of violence, some involving the police, some his partner and other adults with whom the defendant came into contact. One contravention of an AVO involved his step-child. Some of those offences involved the use of weapons such as a homemade petrol bomb, a knife, a firearm and a bottle. The history discloses a disturbing pattern of armed, violent behaviour. 2. The index offending was also serious. It resulted in injuries being inflicted. It was particularly disturbing that the defendant had, on more than one occasion, refused to accept responsibility for the offending and deflected the blame onto others. This lack of insight was one of the matters I found should be addressed before the defendant could be considered for release into the community, even with supervision. 3. The defendant's regular use of illicit drugs, as well as alcohol, in the past was also a concerning factor. In addition, a number of the offences apparently resulted from delusional and persecutory ideas linked to his schizophrenia. There appeared to be a clear link, on some occasions, between drug use, his psychotic episodes and his offending. 4. The nature and causes of the offending, viewed as a whole, supported the approach of ensuring that the defendant received appropriate psychiatric and other treatment and care in a suitably stable and secure environment, before being released into the community on an ESO. The views of the sentencing Court – par (h1) 1. The views of those judges who have previously sentenced the defendant were recorded in their remarks on sentence. In May 1995, Twigg QC DCJ noted the defendant's drug use and also observed that throwing "a bomb of this kind towards a residence in a residential area, not caring about possible occupants or possible damages, is a crime of the most serious nature" especially as "it was done as a reprisal for some perceived misconduct and an exaggerated perception harassment on him by [the Police officer]". 2. In June 2002, Patten DCJ noted, when sentencing, that the offending on that occasion had involved the use of a shotgun. 3. When sentencing the defendant in November 2016 in respect of the index offences Baly SC DCJ referred to the defendant's beliefs concerning bone marrow cancer and this being his justification for his use of cannabis. In addition to the comments noted above, her Honour found that his prospects of rehabilitation were "guarded" and he had a medium to high risk of re-offending. 4. These views, and the other material contained in the various remarks on sentence, were not inconsistent with and in many cases supported the need for the defendant to receive appropriate treatment and support before he could be released into the community, even supervised. Other information as to the defendant's likelihood of committing a further serious offence – par (i) 1. The defendant accepted at par 43 of his written submissions that the Court might be satisfied that [the defendant] posed a risk of committing a further serious offence but submitted that there were: "a number of matters that lessen that risk and weigh in favour of an ESO rather than a CDO: a. [The defendant] has consistently behaved well while in custody; b. Although his response to parole in 2018 was problematic, there was no violent reoffending and his mental illness was untreated at this time; c. [The defendant] has successfully completed parole in the past; d. [The defendant] has had significant gaps in offending while in the community; and e. [The defendant] has a solid past history of employment, both in the community and in custody." 1. I accepted that the defendant had periods which lasted a number of years when he was not convicted of any offences. I also accepted that he completed periods on parole in the past without being found to have breached his conditions and he had been employed in the community and in custody. I took these matters into account but they were required to be balanced against his most recent failures on parole and the other matters already identified. Does the defendant pose a relevant unacceptable risk so as to justify a CDO and/or an ESO? 1. As has been noted above, in the present case the principal issue was whether the Court was satisfied to a "high degree of probability" that the defendant posed an "unacceptable risk" of committing another serious offence if not kept: 1. under supervision under the ESO; or 2. in detention under the CDO. 1. The genesis and nature of the risk posed by the defendant, if he were released at this time, were identified in detail in the reports and oral evidence of Dr Ellis and Dr Martin, as well as the reports of Ms Tulloh and the other evidence which was consistent with that evidence. I relied upon that evidence and the other evidence concerning the lack of alternative accommodation and other relevant matters when making my findings, including those set out above. It is unnecessary to repeat that material here. Even taking all of the matters relied upon by the defendant into account, in my view, the overwhelming weight of the evidence that I accepted was that the likelihood of the defendant committing further serious offences would be substantially minimised if he received treatment and care in a suitably safe and secure psychiatric facility for at least 6 to 12 months prior to it being likely to be appropriate for the defendant to be released into the community on an ESO. Absent such treatment and care, I was satisfied to the requisite standard that the likelihood of him committing further serious offences, once released either with or without supervision, would remain unacceptably high. What particular orders should be made? 1. The situation appeared to me to be similar to the situation with which the Court had to deal in State of New South Wales v Windle (No. 3) [2017] NSWSC 727 (Windle (No. 3)). In particular, I bore in mind the comments of Johnson J in that case at [131] to [156] and [171] to [176] and, where applicable, I adopted his Honour's reasoning and approach. The comments which follow should be understood against that background. 2. In the circumstances of this case, I was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept in detention under a CDO. However, that finding was limited to the period during which it would be necessary for accommodation to be found for the defendant at, and his admission arranged to, the Forensic Hospital or some similar safe and secure mental health facility, as an involuntary patient. According to Drs Ellis and Martin, the defendant would require such treatment and care as an involuntary patient for at least six to twelve months. In reaching the conclusion that detention under a CDO was justified, I also took into account that the defendant was presently housed in the Hamden area of the Metropolitan Remand and Reception Centre. In the Hamden area, the defendant had access to some mental health assistance and support which would not be available if he were transferred to another correctional facility or area. If the defendant's accommodation within the custodial system changed, a different conclusion might be reached. 3. To facilitate the timely consideration of whether the defendant should be admitted to the Forensic Hospital or similar facility by his treating psychiatrist in custody, I included in the orders the notation in par 9 that the Court would be assisted by: 1. the defendant's treating psychiatrist and, if appropriate, other healthcare practitioners preparing a report or reports as to whether the defendant should be referred or admitted to the Forensic Hospital or another mental health facility, having regard to the defendant's current mental health status and the absence of suitable accommodation as disclosed in the evidence in this matter; and 2. such reports or reports being prepared and furnished to the Crown Solicitor's Office by 19 July 2019. 1. In the present case, the MHRT determined that an FCTO until 22 November 2019 was appropriate in the defendant's case, subject to an earlier review. This date then was, in my view, the date which should constitute the outer limit of the period of the CDO, noting that such an order was designed to protect the community while facilitating the transfer of the defendant to the Forensic Hospital or an equivalent facility. 2. If the defendant was to be admitted to the Forensic Hospital or other similar facility as an involuntary patient, as envisaged by Dr Martin and Dr Ellis, it appeared to me that the CDO would have to be revoked for the reasons given by Johnson J in Windle (No. 3) at [136]. Consequently, an application to revoke the CDO immediately prior to the defendant's admission to the Forensic Hospital or other similar facility, would be required and could be made under s 19(1B) of the CHRO Act. To allow this to occur efficiently, I included in the orders liberty to apply directly to me. 3. In addition, I remained satisfied to a high degree of probability that the defendant would at that time continue to pose an unacceptable risk of committing another serious offence if not kept under supervision of an ESO, because of the risk of relapsing into illicit substance or alcohol abuse or failure to comply with medication and treatment regimes, absent such an order. However, if an ESO was made, it would be suspended while the defendant was an involuntary patient, under s 10(1A) of the CHRO Act. Further, that period of suspension would not count as part of the period during which the ESO would be operative, under s 10(1)(b). To assist the defendant to understand this aspect of the orders, I specifically noted the matters in pars 7 and 8 of the orders. 4. After discharge from the Forensic Hospital or other similar facility, any ESO imposed at this time would commence operation. It was difficult, at this stage, to determine exactly what period and conditions would be most appropriate for the ESO at that time in the future. Accordingly, it appeared most appropriate to make the ESO for the shorter period of 3 years contended for by the defendant, commencing from the expiration or earlier revocation of the CDO, but subject to the relatively standard conditions proposed by the State, noting that an application could be made for a variation of any aspect of the ESO, under s 13 of the CHRO Act, if it transpired that different conditions or a different period appeared more appropriate at a later time. In these circumstances, it was not necessary to consider in detail the specific submissions made concerning particular conditions. 5. In addition, orders 5 and 6 were made in order to facilitate the treatment of the defendant and the implementation of the CDO and the ESO. Orders 1. For all of these reasons, on 21 June 2019, I made the following orders: 1. Pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act), the defendant is subject to a continuing detention order (CDO) for a period of 5 months and 3 days commencing on 21 June 2019 and expiring on 23 November 2019. 2. Pursuant to ss 17(1)(a) and 25B of the CHRO Act, the defendant is subject to an extended supervision order (ESO) for a period of three years commencing immediately upon the expiration of the CDO referred to in order 1 or its earlier revocation by the Court. 3. Pursuant to s 11 of the CHRO Act, for the period of the ESO referred to in order 2, the defendant is directed to comply with the conditions of supervision set out in the schedule to this order (see below). 4. Pursuant to s 20(1) of the CHRO Act, a warrant is to issue for the committal of the defendant to a correctional centre for the purpose of order 1. 5. The parties have liberty to apply to Wright J on 2 days' notice concerning the implementation, variation or revocation of these orders. 6. The pseudonym order made by N Adams J on 22 May 2019 is varied to the extent necessary to permit the reports of Dr Ellis and Dr Martin, the transcript of proceedings and any other relevant evidence in this matter to be provided to the defendant's treating psychiatrist or other healthcare practitioners to assist their consideration of whether the defendant should be referred or admitted to a suitable mental health facility, including the Forensic Hospital. and noted that: 1. Pursuant to s 10(2) of the CHRO Act, the defendant's obligations under the ESO referred to in orders 2 and 3 are suspended while the defendant is in lawful custody whether under this or any other Act or law. 2. Lawful custody for the purposes of s 10(2) of the CHRO Act may include detention as an involuntary patient in a mental health facility under the Mental Health Act 2007 (NSW), or escorted leave from any such facility, at least in circumstances where the defendant's freedom is directly controlled and limited. 3. The Court would be assisted by: 1. the defendant's treating psychiatrist and, if appropriate, other healthcare practitioners preparing a report or reports as to whether the defendant should be referred or admitted to the Forensic Hospital or another mental health facility, having regard to the defendant's current mental health status and the absence of suitable accommodation as disclosed in the evidence in this matter; and 2. such reports or reports being prepared and furnished to the Crown Solicitor's Office by 19 July 2019. ********** SCHEDULE OF CONDITIONS OF SUPERVISION [CT], THE DEFENDANT Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) Part A: Reporting and Monitoring Obligations Monitoring and Reporting The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the order. The defendant must report to the Departmental Supervising Officer (DSO) or any other person supervising him as directed by the DSO. The defendant must follow all reasonable directions by his DSO or any other person supervising him. Electronic Monitoring The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, or any other period as directed by his DSO. The defendant must not deviate from his approved schedule of movements except in an emergency. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. Part B: Accommodation The defendant must live at an address approved by his DSO. The defendant must be at his approved address between 9:00pm to 6:00am unless other arrangements are approved by his DSO. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO (which approval may be given generally for nominated individuals or in respect of specific occasions). Part C: Place and travel restrictions The defendant must not leave New South Wales without the approval of CSNSW. The defendant must surrender any passports held by the defendant to the Commissioner. The defendant must not go to a place if his DSO tells him he cannot go there. Part D: Employment, finance and education If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO. The defendant must not start any job, volunteer work or educational course without the approval of his DSO. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO. Part E: Drugs and alcohol The defendant must not possess or use alcohol. The defendant must not possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed. The defendant must submit to testing for drugs and alcohol as directed by his DSO. The defendant must not enter any licensed premises without the approval of his DSO, other than licensed cafes or restaurants. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO. Part F: Non-association Associations with Others (not children) The defendant must not associate with people that his DSO tells him not to. The defendant must not knowingly associate with any people who are consuming or under the influence of illegal drugs. The defendant must not knowingly associate with any people who are consuming or under the influence of alcohol without the prior approval of his DSO. The defendant must not engage in the use of sex workers without the prior approval of his DSO. If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any Internet or mobile-based social networking service. Part G: Weapons The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998. Part H: Access to the internet and other electronic communication The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the Internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the Internet connection, as directed. The DSO (or any other person requested by the DSO) may remotely inspect any Internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the Internet. The defendant must allow his telephone and/or Internet service provider to share information about his accounts with his DSO. The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately. Part I: Search and seizure If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to g below) is necessary: for the safety and welfare of residents or staff or persons present at the defendant's approved address; to monitor the defendant's compliance with this order; or because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: search and inspection of any part of, or any thing in, the defendant's approved address; search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or search and examination of his person. For the purposes of the above condition: a search of the defendant means a garment search or a pat-down search. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. During a search carried out pursuant to condition 37 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: the safety of residents or of staff at the defendant's approved address; the welfare or safety of any member of the public or any other person; or the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 37 to 40 above. Part J: Personal details and appearance The defendant must not change his name from "[CT]" or use any other name without the approval of his DSO. The defendant must not use any alias, log-in name, or a name other than "[CT]" or use any email address other than those known to the DSO under condition 32 above, on any Internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email. The defendant must not change his appearance without the approval of his DSO. The defendant must let CSNSW photograph him. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Part K: Medical intervention and treatment The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. Except if he has a reasonable excuse for not attending, the defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. Except if he has a reasonable excuse for not taking the medication, the defendant must take all medications that are prescribed to him by his healthcare practitioners. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW. Endnote 1. Defendant's written submissions par 8. 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: 05 July 2019