State of New South Wales v Ambrym

State of New South Wales v Ambrym - [2020] NSWSC 298 - NSWSC 2020 case summary — Zoe

[3]

Factual background

Mr Ambrym is aged 35.
On 21 June 2014, while he was on bail for the charge of affray he committed the index offence; aggravated break and enter and commit serious indicatable offence (s 112 of the Crimes Act 1990 (NSW)). The serious indictable offence was aggravated sexual assault. The circumstance of aggravation was deprivation of the victim's liberty.
The facts were that the victim, who was 15 years old, was at home alone. Mr Ambrym entered through a closed but unlocked back door. Upon seeing the victim, he put his hand over her mouth to stop her making any noise. He said he would not rape or harm her but that he was going to tie her up. He escorted her to a bathroom area where she took off her jacket, top and jeans. Mr Ambrym placed his hand inside the victim's underwear and inserted his finger in her vagina. At this time, the victim's father arrived home, causing Mr Ambrym to flee.
Mr Ambrym was sentenced to 5 years 6 months imprisonment to commence on 3 October 2014, expiring 2 April 2020. The non-parole period ended on 2 April 2018.
On 1 February 2018, the State Parole Authority (SPA) determined that Mr Ambrym be released to parole on 2 April 2018. He was released on that date and was placed on the Child Protection Register.
On 6 December 2018, Community Corrections recommended that parole be revoked following notification by the police of an act of indecency by Mr Ambrym on public transport on 16 November 2018. The SPA revoked parole. The act of indecency involved Mr Ambrym boarding a bus and masturbating in the presence of a 16-year-old girl. Mr Ambrym approached the victim while masturbating and attempted to engage her in conversation.
On 4 February 2019, Mr Ambrym was convicted of committing an act of indecency and stalking/intimidating in relation to this conduct. He was sentenced to 10 months' imprisonment commencing 17 December 2018 with a non-parole period of 7 months. A statutory parole order required release on parole on 16 July 2019.
On 20 May 2019, Mr Ambrym signed a letter stating that he did not wish to be considered for release under "manifest injustice" (whatever that is a reference to) on the basis that he would like to return to Albury upon his release. On 19 August 2019, he signed a further letter stating that he still did not wish to be released but would remain in custody until April 2020.
In addition to the foregoing, Mr Ambrym has been convicted of a number of offences of violence. These include: Common assault (committed 17 August 2001; received a bond for 6 months). Assault occasioning actual bodily harm (committed 8 January 2004; received a bond for 12 months with supervision plus a $200 fine). Assault occasioning actual bodily harm and assault (committed 16 January 2011; received a suspended sentence bond for 12 months). Affray (committed 15 December 2013; sentenced to imprisonment for 12 months with a non-parole period of 6 months commencing 3 July 2014).

[4]

Risk Assessment

A Risk Assessment Report by Ms Rochelle Pateman, Acting Senior Psychologist, Serious Offenders Assessment Unit, dated 15 November 2019, contains a detailed assessment of factors relevant to the risk alleged which prompts the State to bring the application. It is summarised as follows: "Mr Colin Ambrym was convicted for a 2014 serious sex offence against a 15-year old female victim occurring whilst he was subject to conditional bail for a charge of 'Affray'. In 2018 Mr Ambrym was then convicted of a second sex offence against a 16 year old female victim whilst on parole for his aforementioned sex offence. Mr Ambrym completed his sentence on 16/10/2019 and is now serving his initial balance of sentence after declining release to parole again. Mr Ambrym is an Aboriginal male with a long history of chronic alcohol abuse who provides conflicting accounts as to the extent of his methamphetamine abuse. He has been previously convicted of both violent offences (including domestic violence) and driving offences but served his first custodial sentence for his 2014 sex offence. Mr Ambrym has currently been assessed as posing a 'well above average risk' of future sexual offending. He has also been assessed as posing a Moderate-High risk of future general offending. Mr Ambrym consented to a referral to sex offender programs on 14/12/2015 and was subsequently assessed as suitable for HISOP (formerly CUBIT program). He was granted parole on 02/04/2018 prior to being allocated a place in the treatment program. Mr Ambrym was referred to Forensic Psychology Services (FPS) in the community and attended three of six scheduled sessions. Following his return to custody Mr Ambrym refused to consent to another sex offender program referral on 06/06/2019 citing that he had received treatment with FPS. Mr Ambrym is yet to participate in any appropriate custody-based treatment program for his sexual offending and his current sentence expires on 02/04/2020. … If he were to be subject to an Extended Supervision Order, the mitigation of future risk may be enhanced by ongoing community supervision and substance abuse intervention, as well as participation in community-based programs and/or individual risk management sessions with Sex Offender Programs. This would require consideration as to whether his risks of serious sexual offending can be adequately managed in community settings with intensive supervision."
Ms Pateman described Mr Ambrym's risk scenarios in the following terms: "Mr Ambrym's most likely scenario for further sexual offending would involve him being under the influence of alcohol and methamphetamines and opportunistically sexually offending against a stranger teenage female who is alone. It is likely that this will occur in the context of emotion dysregulation, relationship difficulties and overwhelming stress (e.g. financial difficulties, high service engagement requirements and pressure from supervising bodies). Mr Ambrym may experience a sense of hopelessness, isolation and rejection, precipitating alcohol use to cope with negative emotionality and attempts to re-establish a connection with antisocial peers in an effort to belong. It is anticipated that Mr Ambrym's issues may be further exacerbated by his relapse into alcohol use and potentially aggressive behaviour, leading to increasing alcohol consumption to cope. When under the influence, it is likely that Mr Ambrym may impulsively use methamphetamines upon being offered it by peers."
Ms Pateman said the extended supervision order may or may not include the following features: a. Mr Ambrym could be re-referred to the community-based Sex Offender program, provided by Forensic Psychology Services, Surry Hills. He may be provided with individual risk management intervention to focus on his specific risk factors for sexual offending. b. Mr Ambrym could participate either in the EQUIPS Addiction program as provided by CSNSW, or alternatively, be referred to a local drug and alcohol service to engage in substance related intervention. c. Mr Ambrym's social contacts would be scrutinised, with the aim of increasing pro-social influences, and any relationships or associations could be monitored to ensure that Mr Ambrym is not using alcohol or illicit drugs. d. Mr Ambrym may be subject to unannounced home visits and breath-analysis/urinalysis/drug-swab testing. e. He may be obliged to wear electronic monitoring equipment and to provide a schedule of his daily activities. This may assist in improving his decision-making skills, which would be relevant to his risk, considering his impulsive personality traits."
At the conclusion of her report, Ms Pateman noted that if no order were to be made, Mr Ambrym would be at unconditional liberty when released on 2 April 2020 and would not be eligible for further support from Corrective Services NSW. She said that whether this would be considered "unacceptable" was a matter for the court.

[6]

Electronic monitoring

It was submitted by counsel for Mr Ambrym that the regime of conditions proposed by the State and largely acceded to by Mr Ambrym imposed very high degrees of restriction and regimentation on his movements, associations and conduct. It was submitted that little, if any, additional risk minimisation is likely to flow from the imposition of an electronic monitoring condition.
It was submitted that this was particularly so when one had regard to the circumstances of Mr Ambrym's previous sexual offending. They were committed spontaneously, opportunistically and while under the influence of methylamphetamine. Electronic monitoring, if it had been in place at the time, would not have prevented the offences occurring. The most likely risk scenario described by Ms Pateman involved opportunistic offending of a similar kind.
Counsel for the State referred to the objects of the Act set out in s 3; the primary object is to ensure the safety and protection of the community.
It was submitted that before Mr Ambrym returned to custody following the commission of an offence while on parole, his lifestyle was characterised by a considerable degree of instability. For example, in Ms Pateman's report it is said that Mr Ambrym "appeared to destabilise after a few months and isolated himself from his newly established support network". Concerns were raised by Community Corrections and other stakeholders that he may have relapsed into substance abuse because of his increasingly erratic behaviour. [1] The report also described a "steady decline" prior to parole being revoked after Mr Ambrym had ceased contact with Forensic Psychology Services, AOD counselling and his Indigenous support network. [2] Prior to that, his engagement with services was described as inconsistent and he had failed to attend multiple appointments.
In the Risk Management Report (RMR) it was said that electronic monitoring would assist in monitoring attendance at locations which were relevant to his known risk factors. Locations such as licensed premises, places known for substance abuse, or residences of identified negative peers/family members would be relevant. It was submitted that this would reduce the chance of Mr Ambrym being in a position where he may engage in opportunistic offending. He would be required to submit a weekly schedule of movements, and there is no objection to that condition. It was important, according to the submissions of the State, for any deviation to be detected instantaneously and intervention activated promptly. It was submitted that the provision of a schedule of movements without monitoring would mean that the supervising officer would be significantly reliant upon Mr Ambrym as to whether he had complied with his obligations in relation to his movements.
In my view the provision of electronic monitoring is warranted at this stage. Mr Ambrym will be released into the community on 2 April 2020 without any recently demonstrated stability. A facility to monitor his compliance with the various requirements of his supervision would be important. In this regard, I am mindful that Mr Ambrym has been supervised on various occasions in the past and his response has varied and has sometimes been quite poor. It should be borne in mind that at this stage, the Court is only concerned with making an order that will be in force for a maximum of 90 days. Some different considerations apply when a court is being asked to make an order that, as in this case, could be in force for as long as five years.

[9]

Obtaining information from healthcare practitioners

Proposed condition 48 would require Mr Ambrym to agree to his healthcare practitioners sharing information with the DSO "as to the fact of his attendance at appointments and his overall progress in therapy or counselling including the practitioner's general opinion as to the development of his insight into offending, risk factors and attitudes to reduce his risk of offending". To meet a concern that this intruded into doctor/patient relationships and the general entitlement to medical privacy, the following note has been added to the condition: "NOTE: It is understood that a relationship of trust and confidentiality with healthcare practitioners is fundamental to the defendant's engagement with and treatment by healthcare practitioners."
Counsel for the State submitted that this condition is not about the DSO asking health practitioners in-depth details about what Mr Ambrym has discussed with them. It was designed to allow inquiry as to whether he was attending sessions, whether his behaviour during the sessions had been appropriate, and whether certain risk factors are being addressed. It was submitted that this would then allow the DSO to refer Mr Ambrym to appropriate services, if necessary, in addition to those he was already receiving for management of his risk.
It was also submitted that the condition is necessary because of Mr Ambrym's history of disengaging with treatment services. This in the past has been in situations where Mr Ambrym experienced periods of increased stress and destabilisation.
Counsel for Mr Ambrym submitted that the note recognised the problem but did not solve it. Reliance was placed on some progress notes from when Mr Ambrym was receiving counselling with Forensic Psychology Services in 2018 in support of the contention that he has an understandable distrust of certain aspects of society. There was concern that the proposed condition appears in the context of the State compelling him to engage with healthcare practitioners and then permitting representatives of the State to inquire into the substance and progress of that treatment. It was submitted that the treatment that the State wants Mr Ambrym to participate in would be far more likely to succeed if his privacy and confidentiality was respected.
I do not understand the proposed condition to involve divulgement by a healthcare practitioner of matters that have been revealed by Mr Ambrym during counselling sessions. It appears to be more directed to the general aspects of his attendance and progress at treatment.
It certainly is important for the DSO to be aware of whether Mr Ambrym has attended appointments as required. His overall progress and development of insight into his risk factors and attitudes to reducing his risk of offending are significant matters for the DSO to be aware of in order to adjust the level of supervision that might be necessary to reduce the level of risk posed to the community, as well as promote the rehabilitation of the defendant. At least for the present time, I am of the view that this condition should remain. The note which accompanies the condition should be sufficient alert to a legitimate concern about the divulgement of information that exceeds the intended purpose of the condition.

At a glance

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Judgment (16 paragraphs)

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Legislation Cited (2)

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