State of New South Wales v Darryl John Phillips [2015] NSWSC 482

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Darryl John Phillips [2015] NSWSC 482 Hearing dates: 16 May 2014 Date of orders: 30 May 2014 Decision date: 29 April 2015 Jurisdiction: Common Law Before: Adams J Decision: 1. Pursuant to section 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (Act), the defendant is subject to an extended supervision order for a period of 3 years from the date of the order.

2. Pursuant to section 11 of the Act, the defendant is directed to comply with the conditions set out in the attached Schedule for the duration of the extended supervision order referred to in order 1 above. Catchwords: CONTINUING DETENTION ORDERS AND EXTENDED SUPERVISION ORDERS – Crimes (High Risk Offenders) Act 2006 – Altered circumstances – Unacceptable risk of re-offending if not supervised – Reasonable conditions Legislation Cited: Crimes (Administration of Sentences) Act 1999 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Cases Cited: State of New South Wales v Phillips [2014] NSWSC 205 State of New South Wales v Richardson (No 2) [2011] NSWSC 276 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Darryl John Phillips (Defendant) Representation: Counsel: S Callan (Plaintiff) G Scragg (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2014/63621 Publication restriction: None

Judgment

Background 1. By summons dated 28 February 2014 the State of New South Wales applied for a continuing detention order for a period of 12 months, or in the alternative, an extended supervision order for five years in respect of the defendant. A preliminary hearing of this application took place before Bellew J on 7 March 2014. His Honour made orders under s 15(4) of the Act appointing two psychiatrists, Dr Jeremy O'Dea and Dr Anthony Samuels, to separately examine the defendant and furnish reports and, pursuant to ss 10A and 11 of the Act, that the defendant be subject to an interim supervision order and comply with the conditions annexed to the summons commencing 9 March 2014 for a period of 28 days, and dealing with ancillary matters. On 2 April 2014 Fullerton J made a further interim supervision order for a period of 28 days. On 30 April 2014 Adamson J made a further interim supervision order for a period of 28 days. 2. On 30 May 2014 I made an extended supervision order pursuant to s 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of Darryl John Phillips for a period of 3 years commencing on that date, reserving the delivery of reasons to a later date. These are those reasons.

Introduction 1. On 24 April 1991 the defendant was convicted of murdering Irene Glanville. The offence occurred on 27 February 1990 at the victim's home on a rural property. The defendant was 19 years old at the time and lived with his father and younger sister on a neighbouring property. He had never met the victim before. On the day of the offence the defendant left his house after having watched a violent video and walked across his property to the victim's property, taking with him a knife. At the time Mrs Glanville was at home with her two youngest children. He went to the front door and had a short conversation with her. He then left the front of the house and, after waiting for about five minutes, walked around the property and entered the house through the bedroom window from which he had removed the flyscreen. In the hallway, he encountered Mrs Glanville, who unsuccessfully attempted to flee. He stabbed her 18 times in front of her two small children. He returned home, showered, put his clothes and shoes in the washing machine and cut the knife into small pieces, which he concealed in mice holes around the property. The defendant initially denied any knowledge of the murder but later confessed. The defence of diminished responsibility was raised but was not accepted by the jury and he was found guilty of murder. 2. The defendant was sentenced on 21 May 1991 to a term of imprisonment of 24 years with a non-parole period of 15 years commencing on 10 March 1990 and expiring on 9 March 2005. Reports by the Offenders Review Council since November 2011 recommended his release on parole on the ground that his custodial reports were good, family support was strong and employment was available. However, the defendant declined to apply for parole, giving as reasons that he had no suitable address to be considered for release and did not wish to stay in COSP accommodation. He served the entirety of his sentence. He was released from custody on 9 March 2014 and subjected to an interim supervision order as mentioned above. 3. The defendant has no other criminal offences on his record. 4. I have mentioned that Bellew J declined to make an interim continuing detention order but considered that an interim supervision order was appropriate: State of New South Wales v Phillips [2014] NSWSC 205. The making of such an order was not opposed. It was not submitted by the plaintiff on the occasions when extension of the order was sought that the question of an extended detention order should be reconsidered. Nevertheless, when the matter came before me, Ms Callan of counsel for the plaintiff sought, as her primary application, that the defendant should be returned to gaol under a continuing detention order. The basis for this approach was that he had not undertaken the Violent Offenders Treatment Program ('VOTP') before his release and should be given another opportunity to do so before being released under supervision. This issue was considered by Bellew J, who noted that the reason for the defendant not undertaking the Program was that he was under protection and the course was, accordingly, not available and, although he expressed a willingness to be transferred to another facility where the course could be undertaken whilst he remained on protection, this request was not met. Furthermore, it was ultimately determined that the defendant was unsuitable for the Program in any event because his complex personality factors were beyond scope of the Program. (However, the criteria have since been changed and the defendant, if in custody, would be now able to undertake the VOTP.) His Honour thought it was "of some significance that the defendant expressed a continued willingness to engage in psychological treatment". Indeed, he had been assisted by other psychological counselling whilst in custody, including completing the Anger Management and CALM programs, the latter involving 24 one-on-one sessions with an intern psychologist.

The Act 1. The primary purpose of the Act is "to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community" and "to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation": s 3(1). 2. There is no issue about the liability of the defendant to be subjected to either a continuing detention or extended supervision order. The Court is satisfied that there is a "high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not" detained or kept under supervision (s 5E(2)) and is thus a "high risk violent offender". This term is defined – "An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision." [Emphasis original]. 1. Since the definition is the same as that for a high risk sexual offender, the cases dealing with that category are instructive. The meaning of "a high degree of probability that the offender poses an unacceptable risk" was considered by Davies J in State of New South Wales v Richardson (No 2) [2011] NSWSC 276; A Crim R 220 at [90] - "Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation." 1. Section 9(3) sets out the matters to which the Court must have regard when considering an application for an extended supervision order – (3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under section 7(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 relevant 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 relevant 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, (f) 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, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (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 in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order). Those matters must also be considered in determining whether or not to make a continuing detention order: see s 17(4). I deal with the relevant considerations below, though not in the (inconvenient) statutory order. 1. A continuing detention order may only be made in the circumstances prescribed in s 13C of the Act – 13C Application for high risk violent offender continuing detention order (1) An application for a high risk violent offender continuing detention order may be made only in respect of: (a) a detained violent offender, or (b) a supervised violent offender. (2) A detained violent offender is a violent offender who, when the application for a continuing detention order is made, is in custody in a correctional centre (referred to in this Part as the offender's current custody): (a) while serving a sentence of imprisonment by way of full-time detention: (i) … (ii) … (iii) …, or (b) pursuant to an existing continuing detention order or emergency detention order. (3) … (4) A supervised violent offender is a violent offender the subject of an extended supervision order or an interim supervision order who: (a) has been found guilty of an offence under section 12 in respect of that order, or (b) because of altered circumstances, cannot be provided with adequate supervision under an extended supervision order or interim supervision order. (5) … (6) The Supreme Court must not make a continuing detention order on an application referred to in subsection (4) (b) unless it is satisfied that circumstances have altered since the making of the extended supervision order or interim supervision order and those altered circumstances mean that adequate supervision of the offender cannot be provided under an extended supervision order or an interim supervision order. 1. I note that no submissions were made to me by either party as to the possible application of this section on whether a continuing detention order can be made in respect of the defendant even though he is subject to an interim supervision order. It is implicit in the plaintiff's submission that an extended supervision order (as distinct from a continuing detention order) is not suitable in the defendant's case and, hence, he falls within sub s 4(b). It seems to follow that it is necessary to establish altered circumstances before the continued detention order being sought can be made. As will be apparent, no such altered circumstances have arisen demonstrating that "adequate supervision of the [defendant] cannot be provided under an extended supervision order". However, since no submissions were made in this respect, I have also considered whether, apart from altered circumstances since the interim supervision order was made, it is appropriate to make a continuing detention order.

Victim Impact Statement 1. The plaintiff has placed before the Court a Victim Impact Statement made by a son of the deceased. He was four years old at the time of the murder and, together with a younger brother, witnessed the killing itself. An issue arose as to whether the statement was of a kind that fell within s 21A of the Act, dealing with placing a victim statement before the Court. Subsection (8) defines a "victim" as – … [meaning] a victim who is recorded on the Victims Register in respect of the offender and who is a victim of an offence committed by the offender for which the offender is currently serving, or most recently served, a sentence of imprisonment. 1. The Victims Register is that kept under the Crimes (Administration of Sentences) Act 1999. The son is so registered. However, his statement is not receivable unless he is also a victim, which I think is to be understood as it is in ordinary parlance. Merely being related to a deceased victim would not be sufficient. The Act does not have an extended definition such as is contained in s 26 of the Crimes (Sentencing Procedure) Act 1999. I have concluded that, since Mr Glanville was a witness of his mother's murder and has suffered greatly from that experience, he should be regarded as a victim for the purposes of the Act and, accordingly, his statement received. 2. The statement is confined to the expression of "the person's views about the order and any conditions to which the order may be subject". Although it is somewhat doubtful, I think the statement can be considered along with the other material as relevant to the question whether the order should be made and what the conditions should be. The provision of a report would not be an altered circumstance within the meaning of s 13C, so that if (as I am inclined to think) that section precludes the making of a continuing detention order, the statement can be relevant only to the conditions which ought to be imposed on a continuing supervision order. If that section does not apply, the statement can be more widely relevant but only for the purposes of the Act, which do not include punishment. 3. Mr Glanville's statement (apart from dealing with the circumstances of the offence) focuses on the risk that the defendant might commit another serious offence and expresses scepticism as to the effectiveness of any program of supervision that could prevent this from happening. Of course, as the Act states, it is necessary to take into account the risk of reoffending and the adequacy of any conditions of supervision that might be ordered. I have done this. I accept that this outcome may not be satisfactory from Mr Glanville's point of view and I accept the legitimacy of his feelings about it. However, the purposes of the Act are of a public character and the Court is obliged (whilst not ignoring the opinions and feelings of victims such as Mr Glanville) to apply its provisions in accordance with the evidence produced to it.

The statutory considerations

Views of the sentencing court at the time of sentencing the defendant (ss 9(3)(h1) and 17(4)(h1)) 1. On 21 May 1991 Mathews J sentenced the defendant to a term of 24 years with a non-parole period of 15 years. Her Honour described the crime as "an appallingly violent, tragic and above all senseless killing" and considered that the evidence given at the trial indicated that the defendant "was a very disturbed young man, both before and after he committed this offence." In respect of the non-parole period, her Honour observed – "But I want to stress in the present case that the prisoner's release into the community should be dependant upon an assessment being made that he is not likely to be a danger to the community or to himself. He will, of course, have to be released at the expiration of his additional term." 1. Her Honour also recommended that the defendant receive psychiatric counselling and treatment during the course of his imprisonment.

Compliance with obligations while on parole or earlier extended supervision order (ss 9(3)(f) and 17(4)(f)) 1. This was the defendant's first offence and custodial sentence. As mentioned, the defendant served no time on parole. He has been compliant with the conditions of the interim extended supervision order. The Departmental supervising officer assigned to the defendant stated that the supervision of the defendant had raised no concerns. She stated that, with the assistance of his mother, the defendant had "made considerable progress in reintegrating back into the community". He had also been visited by the New South Wales Police with no concerns being identified. Urinalysis on 26 March 2014 showed he was clean.

Participation in previous treatment or rehabilitation programs (ss 9(3)(e) and 17(4)(e)) 1. As already mentioned, the defendant did not undertake the VOTP. It appears from the reports of his Probation and Parole Officer in the Junee District Unit that the defendant did not qualify for several other departmental programs due to the insufficiency of his learning or skills of understanding. 2. Nonetheless, the defendant has completed several short therapeutic programs. These include the Relapse Prevention Program (2006), Anger Management (1996 and 2005), AOD Awareness (2006), Motivational Enhancement (May 2007), the CALM Program (March-July 2008), the Long Termer's Reintegration Group (2007-2008), the Seasons for Growth Program (2009), the WRED Program (2010), the Managing Emotions Program (2011), the GAIN Program and the Virtues Program (2010-2011). The defendant's engagement and participation in these programs was observed to become increasingly positive over time, reflecting a marked improvement in attitude towards his rehabilitation and treatment pathway. 3. The defendant was also involved in the Pups in Prison program, the Pre-Employment Program and the Fit for Work Program towards the end of his custodial sentence. A Pre-Release Report of the Probation and Parole Service dated 28 January 2009 indicated that he had demonstrated a positive attitude towards the Pups in Prison program and his responsibilities, had been honest about any problems, took direction well and was confident when dealing with the pups in his area, other participants and trainers. 4. In February 2010, the Assessment Committee of the Council at Junee Correctional Centre noted that he had been employed as a worker doing community work, such as mowing and cleaning up with a mobile team. As at June 2011, he also gained community employment at the round house museum in Junee and at the centre farm feeding animals on an unsupervised basis. His involvement in community work and other employment was generally subject to positive reviews. 5. The defendant engaged in several educational courses while in custody. In 2006, he completed a Certificate 1 in Hospitality (Kitchen Operations) and a Certificate 2 in Asset Management (Cleaning Operations). As at January 2012, the defendant was enrolled in a Certificate I Horticulture course with the TAFE NSW Riverina. However, he was later suspended from this course due to his removal from the minimal security unit, later enrolling in a short course in Engineering. As at 2013, he had also completed a Certificate 3 in Agriculture. 6. The defendant's conduct in gaol was unremarkable for the first two years but it became more problematic after he received news that his father had been diagnosed with cancer in 2001. There were occasions of abusive behaviour with officers, he was found with a bread knife in his cell, and on another occasion, with a metal knife ground to a point, he assaulted other prisoners on three occasions. However, after his father died in 2004, a marked improvement was noted in his behaviour and attitude, described as "dramatic" in 2007. In 2008 he was approved for work on the correctional centre complex and received good work reports. A report from probation and parole of January 2009 noted the defendant's good work reports, his behaviour and attitude had been of above average standard and he caused no management problems for staff. Later that year there were reports of several outbursts of abuse. 7. In April 2011 the defendant's security classification was reduced to C3 Day Leave and he satisfactorily completed monthly day leave from September. In October it was reported that the defendant complied with unit and correctional centre routine, mixed well with other inmates and was polite in dealing with staff. He worked two days a week at the local hospital maintaining the gardens, was self-motivated and took pride in his tasks, with a positive attitude towards work and life, interacting well with staff and other outside workers. Positive reports continued and, in March 2012, his classification was adjusted to permit him to have access to pre-release leave programs, when he would be fitted with electronic monitoring. In August he participated in education and day leave with no issues. His behaviour deteriorated somewhat in October 2012 and early in the new year, possibly due to medication which had side effects of irritability, fatigue and headaches. There were no further incidents before his release from custody having served his sentence.

Reports received from court appointed psychiatrists (ss 9(3)(b) and 17(4)(b)) 1. In Dr Samuels' opinion, the defendant's history and presentation were in keeping with a severe personality disorder with mixed features, including passive aggressive and anti-social features. He also suggested the possibility of an Intermittent Explosive Disorder, although he considered that clinical opinion dating from the early 1980s, in addition to the absence of further similar behaviours since the commission of the index offence, militated against this diagnosis. Dr Samuels considered the defendant to be at risk of committing a further serious violence offence. He expressed concern at the fact that the defendant denied any recollection of the offence as it suggested that, were the defendant to be placed in a situation of high risk, he may not recognise the factors that led to it and take appropriate avoidance steps. If the defendant's claims as to the lack of recollection of the offence were true, Dr Samuels is of the opinion that, rather than the result of some organic brain syndrome, this is most likely due to the defendant denying or suppressing his recollections of what occurred. This would suggest the presence of personality disorder, which would itself be a risk factor for further acts of violence. Dr Samuels noted the defendant's history of impulsive violence but commented that he gained "the clinical impression that with age and maturity and the psychological input in prison, there has been some tempering of this impulsivity and aggression". He commented also on the well-documented limits of psychiatric risk prediction, particularly where the person had only committed one (though very serious) offence and has spent most of their adult life in a highly structured environment. (Limited) protective factors (including age) were operating, which would be enhanced by close supervision and further psychological treatment and, by permitting rapid intervention, thus reduce the risk, though the potential for violence could not be accurately predicted. Certainly supervision and psychological treatment were essential. 2. Dr Samuels thought that he needed supervision for five years. He considered that, from a psychiatric perspective, there would be no clear benefit for the defendant in a continuing detention order. 3. Dr O'Dea stated that, on the basis of the defendant's history and presentation, the defendant satisfied the psychiatric diagnostic category of antisocial personality disorder, with significant psychopathic traits and recommended that the defendant be referred to a psychiatrist and/or neurologist. The defendant had a number of significant risk factors for future violence, including a significant history of violence from an early age and the diagnosed personality disorder. Nonetheless, several protective factors also operated against the risk, including the presence of a supportive family, a relationship and history of successful external leave programs from custody. On balance, Dr O'Dea found that, given the defendant's history of anger, aggression and violence and the fact that the motivation behind the index offence still remained unclear, there remained a risk that the defendant will commit a further violent or serious violent offence in the community in the long term. 4. Dr O'Dea was of the same opinion as Dr Samuels that there was no evidence to suggest that further periods in custody would significantly reduce the risk. In this respect, Dr O'Dea sounded in his evidence a note of caution about the utility of such programs as VOTP – "… [If] the question is, could in any event those treatments, in particular, the medical treatments, or the psychological treatments assist people in managing their risk? The answer is … yes, they could. Is it likely they are going to? is a different question. There's no good evidence that psychotherapy alone and, therefore, psychological intervention, such as the Violent Offenders Treatment Program in custody have a significant impact on risk of further violence and for that matter for the risk of further serious violence. Therefore, whilst one wouldn't say that you should preclude people from having these interventions, on that basis I would find it difficult to mandate or coerce people into such treatments. Of course to just finalise that, if somebody like Mr Phillips were to gain a repertoire of coping skills under stress and a greater repertoire of psychological and behavioural mechanisms to assist with anger, aggression and violence then that is likely to assist in managing his further violence. The question is how likely, for example, a VOTP, a Violent Offenders Treatment Program how likely is one of those to affect such a change? My view would be that there's no evidence that it is something that affects that change, unfortunately." 1. It seemed likely that, looking at the defendant's record overall, his demonstrated improvement may in part be attributed to his maturation over that time. Dr O'Dea thought that, "from a psychiatric point of view, that would give us greater confidence that as the years progress his risk will reduce". Nevertheless, the risk of reoffending would be unlikely to attenuate significantly in five years, and required adequate and appropriate management, to be modified and reviewed on a six-monthly basis, dependent on progress in the community.

Risk assessment (other than court-appointed psychiatrists) (ss 9(3)(c), (d) and 17(4)(c), (d)) 1. The following brief summary is drawn from the submissions of Ms Callan. It was not disputed. I am satisfied it fairly summarises the material otherwise exhibited. The material is voluminous and it is not necessary to set it out in detail. There is a large measure of agreement and consistency between the reports and assessments. I have attempted to avoid repetition. I have taken it all into account. 2. A risk assessment report of 25 February 2014 was prepared by a senior psychologist with Corrective Services for the purpose of the application for an interim order. She concluded that the defendant presents a high risk of violent offending compared to other male offenders, principally because he has not undertaken the VOTP, is untreated and has consistently externalised blame for his violent behaviour (suggesting it is a "problem with his brain") and continues to lack a detailed understanding of his violence cycle. He committed a number of breaches of discipline between 1990 and 2004, but thereafter to 2010 his behaviour appeared to improve markedly, coinciding with the death of his father in 2004. He said he made a decision to desist from violence in order to become the (more pro-social) person his father would have wanted him to be. Noting that an offender's acknowledgement of risk and identification of relevant risk factors can be a protective factor (ie reduce the risk of reoffending), the defendant's understanding of risk was poorly developed. Treatment programs can assist offenders to identify these factors and plan contingencies to manage them. The defendant had no self-management plan to assist his reintegration into the community on release. His primary response to managing his risk was "I'm never coming back to gaol". The defendant's violence has most likely occurred when he is unable to have his needs met or unable to communicate his needs. Given his behaviour in custody since 2004, he appears to have responded well to boundaries and structure but, if he were to return to a lifestyle where he was isolated and bored, without structure (as at the time of the index offence), particularly were he to have no social support, this was likely to increase or intensify his emotional state which may lead him to resort to violence. However, this scenario would: more likely result in lower level violence, such as assaults and there does not appear to be an imminently high risk of him committing an act of the same severity as the index offence. However if he had access to a weapon the severity of harm of any violent episode would clearly increase. 1. Other reports were prepared by various psychiatrists in 1982 (when the defendant was aged 11 years), 1983 and 1988 (when he was aged 16). A psychologist reported at that time that the defendant had a disturbance of dominant hemisphere cognitive functioning and was assessed as having extremely poor social comprehension and judgment, impaired verbal functioning and impairment in his language, comprehension and expression, with his academic skills "abysmally low". A hospital record of 1990 contains an assessment of the defendant made about four weeks after he committed the index offence. It commences with a (somewhat odd) statement that the defendant gave a "clear, coherent and frank account" about the murder charge and stated – "Woke up one morning, thinking that people had tried to help him but couldn't. He wanted to 'show everyone' that he had a problem but I done it the wrong way." The concluding impression recorded in the note is – "19 yo unsophisticated with longstanding behavioural problems characterised by impulsive aggression. No evidence of major psychotic disorder and no evidence of epileptic form aetology." 1. In February 1991 Professor Hayes identified that the defendant had a dramatic drop in his IQ since last assessed in 1981, when his performance IQ was 90 and verbal IQ was 91. Professor Hayes tested his performance IQ at 84 and verbal IQ at 75. She thought this might indicate psychosis or degenerative brain disease. However, both EEG and CT scans returned normal results. Dr Milton examined the defendant for the purposes of the trial and found him fit to plead and did not have diminished responsibility. He did not suffer from any mental illness. For the purpose of the sentencing hearing, Dr Milton prepared a further report expressing the opinion the defendant had engaged in violent fantasy in order to offset long-standing feelings of inferiority and vulnerability which he acted out. This was entrenched and self-perpetuating making the outlook for rehabilitation extremely problematic. However he may have the capacity to respond to therapy and the discipline in jail might itself be of some value, especially with some supportive counselling by gaol psychologists. 2. Mr Koller in 1994 reported to SORC that the defendant had been of 'no concern' and he had reported that his rages had stopped. The doctor queried whether further neurological investigations should be undertaken. It was also noted that the defendant was receiving regular visits from his mother and sister. 3. A subsequent report noted the defendant had been interviewed on two occasions, when he moderately was but refused to participate in any psychometric assessment. He stated that he did not trust any psychologists, psychiatrists or general practitioners - blaming them for what he perceived to be their negligence for his offence and subsequent imprisonment. He accepted Dr Westmore's (tentative) finding that he had a neurological condition as a medical explanation for his behaviour and the offence. The report observes that he was attempting to minimise responsibility for his offending and his prognosis for positive therapeutic intervention was, at that stage, considered extremely poor due to his refusal to engage in psychiatric and psychological counselling. 4. Dr Koller reviewed the defendant and expressed an opinion that his personality is characterised by sudden impulsive explosive moods, which are well kept in check with medication. A psychologist's report of 2003 noted the LSI-R assessment that the defendant's risk was low to moderate but that in his view this score was a serious underestimation of the risk of recidivism. The psychologist had "grave concerns about [the defendant's propensity toward violence and lack of emotional coping skills" and recommended psychiatric and neuropsychological evaluation before release on parole. A contemporaneous psychiatrist's report diagnosed the defendant as having a personality disorder and continued to pose a risk to the community; he did not have a mental illness or condition that would benefit from psychiatric treatment. 5. A further risk assessment was conducted in 2006 using the HCR 20 tool for the purposes of consideration of parole. The results indicated a high risk of violent reoffending. Professor Greenberg also examined the defendant about this time. His opinion is much the same as those of the court appointed psychiatrists. In 2009 a cognitive appraisal and risk assessment of the defendant supported the diagnosis made by Professor Greenberg and revealed low average intelligence. Overall, the defendant was assessed as a high risk of recidivism and his need for services and supervision on release was in the high range, especially given his youth at the time of the index offence, his limited life experience and personality factors. Whether he was likely to be a danger to the community was "very much in the balance". The psychologist concluded that it would not be in the community or the defendant's interests for him to complete the entirety of his sentence in custody, but that he was not yet ready for parole. 6. In 2013 Dr Hilliar (forensic psychologist) provided a psychology file review report to determine the defendant's "current level of risk and make recommendations regarding his treatment pathway. She undertook a risk assessment using the Violence Risk Scale ("VRS") which assesses dynamic and static risk factors. Amongst the dynamic risk factors she noted that the defendant showed a definite lack of insight into the precipitating factors of his violent behaviour, that there was a "medical deficiency" explanation for his behaviour absolving him of responsibility for the violence, also, impulsivity, willingness to use weapons (meaning a threat of significant harm to victims if he became violent) and high negative emotional arousal. His score placed him in the high risk category for violent re-offending and he was found to be in the "preparation stage" of change - that is, he recognised most of his criminogenic needs and some behavioural changes but these were relatively new or not consistent over time or contexts. Dr Hilliar noted that while the defendant had participated in a number of therapeutic programs in custody, none had required him to discuss the index offence or its antecedents. Consequently he continued to have poor insight. Amongst others, she recommended a graduated release plan, and further neuropsychological assessment. Finally she considered a high level of supervision in the community would be required to assist his reintegration. 7. A neuropsychological assessment also in 2013 demonstrated results in relation to various tests which were generally in the average range, although language (word knowledge) was in the extremely low range and visual spatial skills were in the superior range. The report noted the defendant's difficulties with verbal-based tasks was consistent with assessments conducted in the previous 16 years. This pattern was most likely reflective of his limited education. The report concluded that, given his performance on testing, there did not appear to be any reason he would not benefit from psychotherapeutic programs designed to address his offending behaviour.

Reports prepared by Corrective Services NSW (ss 9(3)(d1) and 17(4)(d1)) 1. In a Pre-Release Report of the Probation and Parole Service dated December 2004, it was noted that the defendant's associations with prisoners had at times been anti-social and produced non-compliance with unit routines. Further, his behaviour was described as cyclic, with a demonstrated tendency to embark upon periods of disruptive and belligerent behaviour. He had also accumulated a substantial amount of disciplinary charges while in custody, many of which involved intimidation, assaults, abusive language or fighting. One such incident was a serious assault involving the stabbing of another inmate. The incidence of such charges raised questions as to his ability to adapt to lawful community living. Concern was expressed as to his attitude towards the index offence, which he described as feeling 'real fucking good', and the implications of such an inappropriate view of his offence for the maintenance of conflict resolution and anger management strategies when released. 2. A report considered by the State Parole Authority of New South Wales in its consideration of the defendant's parole on 4 December 2012 stated that the defendant had removed a Community Compliance and Monitoring Group monitoring anklet without permission. As a result of this conduct, the defendant lost his employment, but later regained employment as a gardener and had been performing his role without incident. This removal occurred in the presence of staff and was plainly not designed to enable him to escape monitoring. I do not regard it as significant in the present context. 3. In a report prepared by the Serious Sex and Violent Offender Assessment Committee on 27 August 2013, the committee noted several risk factors which contributed to the possibility of recidivism. These included: lack of insight into his violent offending, an inability to control future acts of violence due to a lack of knowledge as to the causes of previous violent behaviours, and a preoccupation with violence which continued while in custody through several charges for weapon possession and assault. Despite his involvement in several therapeutic programs, the fact that none of these required the defendant to discuss his index offence and antecedents meant that he continued to have poor insight into his offence. The Committee was also uncertain as to whether his improved behaviour while in custody was due to increases in his own ability to self-regulate his behaviours and emotional responses or whether it was reflective of his ability to learn to adapt to the structured, secure environment of custody.

Psychiatric and psychological diagnosis (ss 9(3)(i) and 17(4)(c)) 1. Dr Kipling Walker filed a psychiatric report with the SORC on 5 November 2003. Dr Walker confirmed that the defendant suffered from a personality disorder which could not be improved by psychiatric treatment. The report indicated that the defendant continued to pose a risk to the community, evidenced by his continued involvement in fights while in custody, his reluctance (rather than his inability) to discuss the murder and a persistent pattern of experience and behaviour that differed from social norms. 2. The defendant was scored on the PCL-SV scale in July-August 2005. This scale reveals qualitative information pertinent to the assessment of responsivity issues that may affect treatment engagement and management compliance. The defendant's score suggested an overall High level of psychopathic traits, with slightly higher scores on the anti-social lifestyle items than on the interpersonal/affective items. The items on which he scored most highly were lack of remorse, lack of empathy, lack of personal responsibility for his actions, impulsivity, poor behavioural controls, lack of realistic goals and anti-social adolescent and adult behaviour. 3. A psychological report written by Lee Seary and dated 31 January 2006 confirmed a continuation of these observations. Mr Seary indicated that the defendant lacked remorse and insight into the effects of his violent behaviour upon others, lacked motivation for completing any significant therapeutic program to address his violent behaviour, and had a high risk of violent re-offending. 4. Dr David Greenberg prepared a psychiatric report regarding the defendant on 27 April 2006. Dr Greenberg confirmed that the defendant suffered from a severe personality disorder and experienced difficulties with anger management. His violent outbursts could not be attributed to any major psychiatric illness or organic cause. 5. David Evans, Senior Psychologist with the Wagga Wagga District Office of the Community Offender Services, prepared a report dated 29 January 2009 detailing the results of a cognitive appraisal and risk assessment. Mr Evans agreed with previous psychiatric reporting which had found that the defendant had a 'severe personality disorder', had experienced difficulties with anger management and had displayed behavioural disturbances. Further personality tests revealed the presence of a prominent interpersonal alienation and a degree of emotional dyscontrol. Mr Evans diagnosed the defendant with a moderately severe Passive-Aggressive Personality Disorder. This resulted in vacillation between erratic and explosive anger and stubbornness at one moment to feelings of guilt shortly thereafter. Mr Evans noted that the defendant would benefit from encouragement and a clear and feasible plan regarding his pathway options towards community access. 6. Mr Evans noted that the Probation and Parole service had assessed the defendant as at January 2009 as being at a high risk of re-offending, influenced by his poor insight into the offence, his lack of participation in offence-targeted programs, his institutionalisation, and the unusual nature of the offence. Mr Evans also noted that the defendant's insight into his own functioning was quite impoverished and substantially related to his pronounced personality disorder. As a result, Mr Evans confirmed that the defendant presented with characteristics commensurate with a high risk offender, concluding that he was at a high risk of recidivism with an elevated need for services and supervision on release to parole. Although the defendant did not present as a risk to himself, Mr Evans preferred that he achieve "a more psychologically healthy status" before community access was contemplated. 7. It is important, since the defendant has been at liberty subject to the interim extended supervision order made by Bellew J on 7 March 2014, to note the agreement by a number of experts that the period of greatest stress would likely shortly follow his release. He has, at least, passed that test without significant issues, let alone reoffending.

Any other assessment (s 17(4)(c)) 1. There are no further assessments which add anything to the material already referred to.

The safety of the community (ss 9(3)(a) and 17(4)(a)) 1. The crucial question here is not whether the Court is satisfied that the defendant is a "high risk violent offender" as defined by the Act: so much is evident from the material set out above and is not disputed. However, the plaintiff seeks an order for his continued detention rather than extended supervision, principally for him to undergo the VOTP, which is now available to him and would permit, as I understand it is contended, a better assessment of risk factors and provide additional assurance about the suitability of supervision. As noted above, the Court appointed psychiatrists do not see a benefit in returning the defendant to prison at this point. Moreover, it is significant that he has in fact been released. Although I am in no way in the position of reviewing the decision of Bellew J, his Honour had the benefit of all the information provided to me (except the opinions of those psychiatrists) and considered it right to place the defendant on supervision rather than continue his detention, for reasons that appear to me (with respect) to be persuasive making allowance (as his Honour did) for the fact that only interim orders were sought. The fact that the defendant's conduct has been unproblematical, despite the stress of being released from the highly structured and familiar environment of gaol and the absence of his gaol acquaintances is also of considerable significance although, of course, this period has been relatively short.

Conclusion 1. Although it is true that continued incarceration reduces risk to the community by the incapacitation of the defendant, I am satisfied that the risk he represents is adequately and reasonably dealt with by the imposition of an extended supervision order with the strict conditions, including electronic monitoring, which I ordered should apply. The plaintiff applied for the order to be of five years' duration, the maximum permitted by the Act for each order. However, given the uncertainties which necessarily apply to the defendant's conduct and the limits of reliable prediction of an individual's behaviour, it seems to me that an appropriate initial term is three years. The plaintiff is well able to apply for a further order in due course, should it be necessary (as I think it most likely will be). The effect of the order is to impose very considerable limits on the civil rights of the defendant. The Court should not be seen as doing so any more than is strictly necessary to comply with the legislation and, accordingly, should maintain an appropriate degree of supervision to ensure the necessity of the continuing controls.

********** 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: 29 April 2015