Attorney General of NSW v Lane

Supreme Court of NSW|2019-08-15|Before: Button J

Solicitors: Crown Solicitors Office (Plaintiff) Zali Burrows at Law (Defendant) File Number(s): 2019/171247

Procedural history

This application for preliminary orders, including mandatory examinations and a significant fetter on liberty, pursuant to Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Schedule) came before me on Thursday 15 August 2019. The limiting term to which Mr John Paul Lane (the defendant) is currently subject expires in its entirety on 30 August 2019. The necessity to resolve the particular preliminary question of whether the defendant should be subject to an interim extension order (IEO) that could well extend his detention in a prison, pursuant to a determination of the Mental Health Review Tribunal (the Tribunal), has meant that this judgment has needed to be delivered reasonably urgently. The result is that it will be concise.

Report of forensic psychiatrist about risk

Quite apart from aspects of that chronology, the plaintiff relied heavily on a recent report of Dr Eagle, forensic psychiatrist. I proceed to summarise it.
In a nutshell, Dr Eagle prepared a report on the basis of documents, and without consulting the defendant personally. (I interpolate that there is no point in me seeking to ascribe responsibility for that state of affairs, because even if it was the result of the position of the defendant, he was perfectly entitled to adopt it.) As one would expect, Dr Eagle noted that that was an undoubted limitation on her ability to come to a firm assessment about him.
Dr Eagle recounted the life history of the defendant in conformity with my thumbnail sketch above.
Dr Eagle recounted the criminal history of the defendant in accordance with my own summary, including the brief facts of the 1996 offences. She also recounted the adverse findings made by the District Court judge on appeal about the "intentional and calculated indecent behaviour" of the defendant towards the two boys, and the fact that it was done for his own sexual gratification.
Dr Eagle also spoke of negative interactions between the defendant and police, including as recently as in 2016 and 2017. The forensic psychiatrist spoke of a report from 1996 which recounted the defendant impressing as being "constantly concerned with sexual matters", and his ongoing reticence to discuss anything about his sexual history. She also referred to the fact that during the currency of the good behaviour bond, and many years later whilst in custody, the defendant has proved to be a very reluctant and difficult recipient of any constructive, rehabilitative help. That has included a refusal to attend the well-known therapeutic program for incarcerated sexual offenders, CUBIT.
Turning to the question of diagnosis, Dr Eagle noted it to be complex, and discussed the thesis that the obsession with the 1996 offences is suggestive of an autism spectrum disorder. Dr Eagle was ultimately unable to come to a firm opinion about that, in the absence of longitudinal assessment, which I understand to mean more information about the defendant's life over a number of years.
Dr Eagle also noted a finding of low average intelligence, but queried whether there may be gaps in the information underpinning that finding.
Dr Eagle expressed the view that it is likely that the defendant suffers from the disorder paedophilia. She relied upon: the two sets of offences committed by the defendant, separated by many years; the noted preoccupation with sexual activity; and the almost complete refusal to engage in any assessment of his sexual feelings and conduct. In short, the forensic psychiatrist spoke of the defendant as likely having "a sexual arousal disorder involving children".
Separately, although Dr Eagle administered various statistical risk assessments, her report made clear the well-known limitations of such instruments. Having said that, one tool assessed the defendant in the above average risk category. In discussing another tool, Dr Eagle noted a number of adverse dynamic factors. On the other hand, she made it clear that a reliable assessment cannot be properly undertaken with that latter tool without the benefit of a clinical assessment.
Ultimately, the forensic psychiatrist expressed the following opinions. The defendant does not clearly meet the diagnostic criteria for any psychological or psychiatric condition. The suggestion of autism spectrum disorder was not embraced unequivocally. A psychotic disorder based on the obsession about the 1996 offences could not be established. As I have recounted, a paraphilic disorder, namely paedophilia, is likely. His obsession with the previous charges had not only made the defendant unfit to stand trial, but has also made rehabilitation with regard to the current offences very difficult. In the absence of any other mechanism whereby a mandatory risk management regime can be imposed upon the defendant, the forensic psychiatrist expressed the view that the defendant poses "an above average risk of sexual reoffending" if he simply ceases to become a forensic patient.
The psychiatrist went on to express the opinion that, although the 1996 offences were "non-contact" offences, they certainly could have resulted in serious psychological harm to their young victims. Having said that, she also opined that "child abuse material offenders have been assessed at a lower risk of sexual reoffending than "contact sexual offenders". On the other hand, although the offences committed two decades ago by the defendant were "non-contact", they were undoubtedly committed in the presence of children. Bearing in mind other factors such as the dissemination of one image and the reluctance of the defendant to engage in rehabilitation, Dr Eagle expressed the view that the defendant "is at risk of causing serious harm to others, specifically children, in the absence of" a regime featuring monitoring and supervision.
The psychiatrist went on to speak of the factors that, if they were to change, could reduce the risk of reoffending on the part of the defendant "over time". Dr Eagle spoke of the attitude of the defendant significantly increasing his risk of causing serious harm to others, and of the requirement of a "comprehensive psychological assessment of his offending behaviour by a forensic psychologist experienced with sexual offending". She also expressed the view that anti-libidinal medication should be considered, along with psychiatric assessment, and further information with regard to the possibility of autism spectrum disorder.
Finally, the forensic psychiatrist spoke of the steps that could be taken by way of the defendant remaining a forensic patient by way of his limiting term being extended, not least attempting to restrict his access to children and to the internet.
She concluded with the proposition that there are no other less restrictive or alternative means of managing the risk posed by the defendant at this stage; in particular, he does not suffer from a mental disorder that could be the subject of compulsory treatment pursuant to mental health legislation.

Submissions of counsel for the plaintiff

At the hearing before me, counsel for the plaintiff first submitted that the phrase "serious harm" found in cl 2(1)(a) of the Schedule, is not defined by the Act.
Secondly, counsel conceded that the defendant has not committed a sexual offence against a specific child for 23 years, and the last offences were possession and distribution of child abuse material, not a physical act against a child.
It was also accepted by counsel that there is uncertainty surrounding the diagnosis of the defendant, not least because he has not undertaken any treatment or rehabilitation. Nonetheless, it was said that in this context of diagnostic uncertainty, the "serious harm" to which the plaintiff points as possible at this preliminary stage is that the defendant "appears" to have a deviant sexual interest in children, and that he poses an unacceptable risk of causing serious harm to them.
Thirdly, turning to the meaning of "serious harm", counsel for the plaintiff submitted that authorities have interpreted that phrase in the context of this Act quite broadly. It was said that "serious harm" could therefore be interpreted to include the commission of non-contact child sexual assault, including accessing child abuse material. Counsel for the plaintiff agreed that there was a "tenuous link" between accessing child abuse material and causing serious harm to a specific child, but nonetheless argued that continual access to such material could lead to a risk of the defendant committing a "contact offence", and separately that the inherent harm caused by accessing child abuse material is the perpetuation of a market for that material, and the necessary exploitation of children in order to meet that market.
Fourthly, in highlighting the risk that may eventuate if the defendant is released, counsel drew attention to the alleged incident in 2007 at Lithgow greyhound track. Counsel observed that the defendant proposes to recommence employment at that location, and submitted that that could provide the opportunity for the defendant to commit contact offences in "a relatively unsupervised setting".
Fifthly, turning to the expert evidence, counsel recounted the expert opinion of Dr Eagle about the risk presented by the defendant if simply at liberty in the community after the conclusion of his limiting term. She also referred to the proposition that there is no way to subject the defendant to compulsory supervision in the community other than an IEO.
She submitted that the diagnosis of paedophilia made by Dr Eagle was not uncorroborated by previous psychiatric opinion. She accepted that it is difficult to go further than that with any certainty in terms of diagnosis.
In reply, she made clear that it was not her case that the defendant is suffering from any identifiable psychiatric or psychological condition, apart from, of course, an asserted pathological sexual attraction to children.
Also in reply, she submitted that the reference to "less restrictive means" made by Parliament referred to alternatives that may arise after the conclusion of the limiting term, not the fact that the defendant had been detained during the currency of it.

Submissions of solicitor for the defendant

The written and oral submissions of the solicitor for the defendant can be summarised as follows.
First, Ms Burrows accepted that the learning in the Court of Appeal with regard to the meaning of "serious sexual offence" and "serious violence offence" under the Crimes (High Risk Offenders) Act 2006 (NSW) (HRO Act) has some, albeit indirect, relevance to the meaning of "serious harm" under the Act. I understand her submission to be that, if the concept is to be relied upon to found detention, it should not be interpreted unduly broadly.
Secondly, she resisted the proposition that there is a troubling pattern discernible by way of the 1996 offences and, more recently, the possession and distribution of child abuse material in 2013. It was said that any alleged pattern ended many years ago, and that since 2013 there has been no suggestion that the defendant has had an inappropriate interest in children.
Thirdly, specifically in relation to the 2013 matters, Ms Burrows submitted that there is no evidence as to the number of separate downloads, and that "thousands of images" does not equate to an "obsession" with such images.
Fourthly, Ms Burrows emphasised that a report of Dr Allnut, a highly regarded forensic psychiatrist, had been relied upon in the fitness proceedings in the District Court. That report did not make any findings as to the defendant having a paedophilic disorder. As for the report of Dr Eagle, Ms Burrows suggested that she may have over-emphasised adverse matters, and under-emphasised favourable matters in her assessment, on the documents only, of the defendant.
Fifthly, in relation to the question of "serious harm", it was submitted that the defendant is "preoccupied" with the alleged miscarriage of justice regarding the 1996 convictions and that if released, he would focus his energy on obtaining a fair trial for those offences and returning to normal life. It was said that this preoccupation does not amount to a criminogenic mental illness. Further, it was submitted that, even assuming for the sake of argument only that there is a risk that the defendant could access child abuse material again, that would not fall within the definition of "serious harm", because as a matter of simple chronology such material has already been created, and the harm upon the child victim already inflicted, whether or not it is subsequently accessed by a particular individual.
Sixthly, Ms Burrows submitted that there is uncertainty between the experts regarding the diagnosis of autism spectrum disorder. In written submissions, Ms Burrows summarised the various reports tendered in evidence, drawing attention to diagnostic uncertainty. It was also said that any resistance on the part of the defendant to allowing experts to speak to his parents arises from being "embarrassed" about the "allegations" relating to the disorder, as well as his desire that his elderly parents not be involved in his medico-legal matters.
Seventhly, assuming for the sake of argument only that there is an unacceptable risk of serious harm, it was said that that risk can be adequately managed by less restrictive means, such as detention as an involuntary patient pursuant to the Mental Health Act 2007 (NSW), if its preconditions are demonstrated. It was also said that the simple fact is that this man has served the entirety of his limiting term in continuous custody, without conditional release.
Finally, Ms Burrows submitted that any note in the evidentiary materials of the defendant having ruminations on the number zero and other matters does not indicate the presence of a criminogenic mental illness, but rather favourably indicates that the defendant is "being frank and talking out loud" to those who assess him.

Determination

The question for my determination is whether I am satisfied that the matters alleged in the documentary evidence placed before me at the preliminary hearing would, if proven, justify the making of an extension order (cl 6(5)). That leads to a consideration of the test that would be applied at any final hearing: whether a member of this Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, along with the question of whether that risk can be adequately managed by other, less restrictive means (cl 2(1) and cl 10(b) of the Schedule). And consideration of that question leads, indirectly, to a consideration of the factors that would be mandatorily considered at any such hearing, to be found in cl 7(2).
Reflecting on that test, I am so satisfied of the proposition at this preliminary stage. That is so for the following reasons.
First, in my opinion one can readily infer that the defendant has a sexual attraction to children. Quite apart from the expert opinion of Dr Eagle (to which I give weight), in my opinion the offences of 1996, combined with the discovery of the images on his phone in 2013, and with the (admittedly unproven) allegation of 2007, all of which pertain to young boys, establishes the proposition, on the balance of probabilities at least, to my satisfaction at this preliminary stage.
Secondly, the defendant has been prepared to act upon that attraction. It is true that the offences of 1996 were "non-penetrative", and indeed "non-contact". But they were not lacking in seriousness, and could have caused significant psychological harm. Indeed, the sentencing judge found that the offending was "not an isolated incident and that it was the result of … intentional and calculated indecent behaviour". Years later, the defendant acted upon his attraction to young boys again by downloading thousands of images of child abuse material depicting young males. The intervening allegation from 2007, whilst unproven, goes some way to support the proposition of a continuous proclivity.
Thirdly, the defendant is resistant to addressing that criminogenic attraction; indeed, he is so distracted by his concerns about the 1996 matters that he is incapable of taking part in a criminal trial, let alone reflecting on the pathological aspects of his personality that have led to him being detained for a significant period as a result of the possession and dissemination of child abuse material.
Fourthly, I accept that the precise psychological and psychiatric position of the defendant is unclear. But whether there is some psychological or psychiatric problem (apart from his attraction to persons under the age of consent) or whether he is simply an eccentric, solitary person is of little moment, bearing in mind the readily-arrived at findings that he is sexually attracted to children, has been prepared to act upon that attraction, and is thoroughly resistant to addressing it.
Fifthly, the test for the making of preliminary orders is not an overly stringent one, just as it is with regard to the HRO Act. I am being asked to assess the possibility of a judicial determination in the future, not to come to any firm position myself with regard to that outcome.
Sixthly, it may be true that there is a way of thinking about individuals assessing, possessing or disseminating child abuse material that does not characterise such behaviour as causing serious harm. That could be on the basis that the harm to the depicted child has already been caused by way of its prior production. But on reflection I have come to the view that that is a highly attenuated way to think about the concept, especially bearing in mind its reasonable breadth, in accordance with the analysis of the concept by Davies J and R A Hulme J respectively in Attorney-General of NSW v Kereopa [2017] NSWSC 411 and Attorney-General of NSW v Kereopa (No 2) [2017] NSWSC 928, with which I respectfully agree. And in any event, such an approach is of little moment to my determination, for the simple reason that I think that the circumstances as they stand now raise a real question about the possibility of the defendant committing a sexual offence against a child in person, and not just by way of accessing child abuse material on the internet or elsewhere.
Seventhly and finally, and in accordance with the latter part of clause 2(1) of the Schedule, I accept that there is no alternative way in which the defendant could be managed less restrictively in the community, and respectfully reject the submission that that part of the clause is focusing on the past, as opposed to the present and the future.
In short, I am of the view that the case for the imposition of an extension order at a final hearing is by no means overwhelming. But nor am I of the view that this matter is so lacking in merit that I can rule out its possible imposition now. At this preliminary stage, at which I am called upon to make contingent findings about what another judge of this Court could do at the final stage, I believe that the statutory test that I have set out above has been made out by the plaintiff.
As for the length of the IEO, it should be long enough to permit investigations to be completed. But there is force in the submission of the solicitor for the defendant that three months is too long, not least because of my guarded assessment of the prospects of success of the application at the final stage, and the probability that the defendant will not be released conditionally by the Tribunal during it. My IEO extends for 2 months only.

Orders

For the foregoing reasons, I make the following orders: 1. An order pursuant to cl 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"): 1. Appointing two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. Directing the Defendant to attend those examinations. 1. An order pursuant to cl 10 and cl 11(1) of Schedule 1 to the Act that the Defendant be subject to an interim extension order commencing on 30 August 2019 for a period of 2 months from the date on which the order commences.

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 August 2019

Mental Health (Forensic Provisions) Act 1990(NSW)

Crimes (High Risk Offender) Act 2006(NSW)

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