State of New South Wales v Amson - [2023] NSWSC 1263 - NSWSC 2023 case summary — Zoe

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State of New South Wales v Amson

[2023] NSWSC 1263

Supreme Court of NSW|2023-09-01|Before: Campbell J, Walton J, Interim J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2023-09-01

Before

Campbell J, Walton J, Interim J

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

Solicitors: Crown Solicitor's Office (NSW) (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2023/162960

[2]

JUDGMENT

On 22 September 2023 following a final hearing conducted on 1 September 2023, I pronounced an extended supervision order ("ESO") against the defendant for a period of 3 years commencing on 27 September 2023. The orders were made under ss 5B and 9 of the Crimes (High Risk Offenders) Act 2006 (NSW). Unless otherwise specified all references to legislation in this judgment are references to that Act. Under s 11, I directed the defendant to comply with the conditions set out in the schedule to my orders and I reserved my reasons. These are those reasons.
As a further introductory matter, I record that while born male, the defendant informed NSW Corrective Services staff while in custody that she identifies as a transgender woman. As I understand the evidence before me no formal treatment to facilitate that transition has yet commenced. However, the defendant has adopted a normally female given name and attire conventionally worn by females rather than males. In his judgment following the preliminary hearing, Walton J adopted female pronouns when referring to the defendant: State of New South Wales v Amson [2023] NSWSC 719 [2] ("Interim J"). I am content to adopt the same approach without making any judgment, or any comment, on whether self-identification without more justifies that approach. Such a question was not argued before me.

[3]

Issue

In his comprehensive judgment, Walton J reviewed the matters alleged in the supplementary documentation accompanying the application for relief under the Act. His Honour concluded that the material before him if proved at the final hearing would justify the making of an ESO (Interim J [78]).
The defendant had not contested the imposition of an ESO at the preliminary hearing. This was expressed to be, "for the purpose of the preliminary hearing only" (defendant's written submissions 14 June 2023, working folder ("WF") Tab 10 [3]). The defendant accepted that the statutory conditions for considering making an ESO order had been met, but a number of the conditions sought by the State of New South Wales ("the State") were disputed.
The defendant made the same concession for the purpose of the final hearing. That is to say, she accepted that each of the statutory preconditions for the making of an order as specified in 5B(a)-(c) are satisfied by the evidence led in the State's case; she broadly accepts that the evidence led satisfies a conclusion to the requisite high degree of probability that she poses an unacceptable risk of committing another serious sex offence if not kept under supervision and she does not wish to contradict that proposition. She also accepts the opinions of the court appointed experts under s 7(4), Dr Sathish Dayalan dated 11 August 2023 (Exhibit C) and Carollyne Youssef dated 10 August 2023 (Exhibit B), that the duration of the order ought to be 3 years (defendant's final submissions, WF Tab 13 [5]-[6]). The defendant summarises her position by making clear she does not oppose the making of an ESO for a term of 3 years, but she does oppose a number of the conditions sought to be imposed.
Initially ten conditions, at least in the form proposed by the State, were opposed, however, after further consideration, the State was prepared to accept the amendments proposed by the defendant to four of them, leaving six conditions in dispute (plaintiff's submissions in reply, WF Tab 14 [3]-[4]).
While I accept that the jurisdiction exercised by the Court under the Act is not a "consent jurisdiction", the consent or non-opposition of a properly advised and competently represented defendant is a matter the Court is entitled to afford considerable weight, given that in general terms the proceedings are to be conducted in accordance with the law relating to civil proceedings: s 21. For this reason, I propose to deal with the questions necessary to be considered, determining whether an ESO should be made under s 9 with a greater degree of brevity that might normally be appropriate in a case where all issues are closely contested.

[5]

The index offending - s9(3)(h1) consideration

The index offending, as I have stated, occurred between 17 March 2020 and 4 May 2020. The requisite criminal acts involved the defendant engaging in online communications with a person she believed to be a female child aged about 13 or 14. In fact, she was communicating with an undercover police officer. An arrangement was made for the defendant and her correspondent to meet, but on 4 May 2020, the defendant said she may not be able to keep that arrangement. She was arrested on 6 May 2020.
A plea of guilty was ultimately entered and she was dealt with by Abadee DCJ on 24 June 2021. When interviewed by a community corrections officer for the preparation of a pre-release report on 2 March 2022, the defendant admitted that given the opportunity she would have met the person she believed she was communicating with for a sexual encounter and would have acted upon that desire if given a chance. It should also be recorded that during this same interview, the defendant acknowledged an attraction to pre-pubescent and younger teenage children. She said she felt that her behaviour was "vile" and "disgusting".
From Judge Abadee's remarks on sentence ("ROS") ([2021] NSWDC 280, Exhibit JB-1 Tab 10), it is clear that the content of the communication with the person she believed to be a 13 to 14 year old girl was highly sexualised and involved encouraging her to engage in acts of masturbation. A number of the defendant's comments disclosed a concern about the possibility of detection. She also sounded the communicant out about whether the communicant would be prepared to touch her sexually and suggested that she "google oral sex", enquiring whether that was something they could do to each other when they met.
Judge Abadee regarded the objective seriousness of the defendant's offending to be below the mid-range "for this kind of offence, albeit not by much" (ROS [47]).
The defendant gave evidence on the sentencing hearing, but she did not impress the sentencing judge. His Honour was satisfied that the defendant "knew full well of the potential consequences [s]he might face if [her] offending was detected" (ROS [49]). She was at the time a registered sex offender under the Child Protection (Offenders Registration) Act 2000 (NSW) ("CPR Act"). His Honour was not impressed with the defendant's "veracity" or her "credibility as a witness" (ROS [50]-[51]).
His Honour accepted her evidence of mental illness but did not accept that served to reduce the defendant's moral culpability in circumstances where she was aware her conduct was wrong. His Honour recorded that there had been no submission that the mental illness reduced the need for general deterrence. A plea of guilty was not entered until the first day of the trial. Given the poor view that his Honour formed of the defendant's credibility he did not unreservedly accept "protestations of accepting full responsibility" and found that "[her] remorse [was] only limited" (ROS [68]).
Judge Abadee found (ROS [74]): "[her] prior offending and the circumstance that [her] current offending occurred when he was a registered sex offender indicates that the instant offending was not an uncharacteristic aberration but, rather, betokened a continued attitude of disobedience of the law. This engages, with greater force, considerations of personal deterrence, retribution and the protection of the community". His Honour assessed the defendant's prospects of rehabilitation as "poor" (ROS [92]). This finding and his Honour's reference to the defendant's "lengthy history, including offences involving the sexual offending and exploitation against children" (ROS [100]) necessarily, to my mind, imply his Honour considered that the prospects of re-offending were relatively high. Indeed, his Honour had evidence to that effect from a community corrections order who had adopted the "Static-99R" methodology to assess the risk of future offending and expressed the view that the defendant fell into the "well above average risk category" relevant to other adult male offenders (ROS [83]).

[6]

Criminal history - s 9(3)(h) consideration

The defendant was born in Western Australia and is now 42 years of age. She had a very, indeed profoundly, disadvantaged childhood and because of the dysfunctional relationship between her parents, she was primarily in foster care until the age of 15. She has a history of suffering physical and sexual abuse.
The defendant has a criminal history in both Western Australia and New South Wales dating back to 1996 when she was aged approximately 15. Over the period 1996 to 2003 she had 19 convictions for offences in Western Australia, including 12 burglary related offences. However, even the burglary related offences seemed to have a sexual component in that she would take a piece of female underwear from the residences she broke into. She told a psychologist that she began stealing underwear at about the age of 8 (Exhibit JP-1, Tab 34).
It is important to emphasise that on 14 November 1996, the defendant was convicted of charges of deprivation of liberty and indecent assault against a 9 year old female, who was the daughter of her father's girlfriend. She was dealt with on 3 February 1997 for the sexual penetration of a child under the age of 13, being her sister. On 13 October 2004 she was dealt with on charges of possessing child pornographic material, which offending was detected during the execution of a search warrant following arrest for other offending.
She was in custody between 6 December 2004 and 13 January 2008 for a range of offences committed in Western Australia.
On 12 February 2011, in New South Wales she committed an act of indecency on an adult female victim whom she had met online. While she was visiting the victim's home the victim apparently passed out. The defendant partially undressed her, masturbated and ejaculated on her body while she was unconscious. She was not charged in respect of this conduct until 9 April 2012. She was dealt with in the Local Court for this offending, but on appeal her sentence was reduced to one of 12 months imprisonment with a non-parole period of 6 months.
Following this offending, obligations under the CPR Act were imposed. She breached her obligations by failing to notify police that she had been residing at premises with 2 children from late August 2012. She was sentenced to a term of imprisonment in the Local Court with an additional fixed term of imprisonment for the offence of attempting to escape from lawful custody by fleeing from the courtroom. These New South Wales offences saw her in actual custody between 15 May 2013 and 13 March 2015.
On 2 July 2018, the defendant was charged with possessing child abuse material contrary to s 91H(2) Crimes Act 1900 (NSW). This offending was detected during a home visit under s 16C CPR Act. The images were on her mobile phone and consisted of a small number of naked young girls in the 10 to 16 age group. She received a sentence of 6 months imprisonment on 12 August 2020, at which time she was already in custody for the index offending. At the time of her arrest for the index offending on 6 May 2020, she was also charged with failing to comply with the reporting obligations under the CPR Act in relation to her use of an unreported Vodaphone pre-paid broadband service in 2019. This was dealt with separately from the index offending and attracted a fixed term of 6 months imprisonment, which extended her effective non-parole period by about 4 weeks. She did not become eligible for release to parole in any event and was released from custody at the expiration of the sentence, imposed by Judge Abadee, on 5 July 2023 (ROS [115]).

[8]

Dr Dayalan

The defendant seems to have given Dr Dayalan a full history of her background, sexual interests and offending. She said she had benefited from her participation in the High Intensity Sex Offender's Program ("HISOP"). However, Dr Dayalan suggested that the defendant was vague in explaining the benefits of the course and had difficulty explaining warning signs available in respect of further offending and what "smart goals" should consist of. The defendant acknowledged an enduring attraction to teenage girls, but expressed a resolve to avoid any situation which may lead to further offending. She also said that she was no longer attracted to females but was inclined towards sexual relationships with adult men.
Dr Dayalan seemed to accept the history of a childhood diagnosis of ADHD. He was also of the view that the defendant suffered a Borderline Personality Disorder with traits of Antisocial Personality Disorder. He was of the view that the defendant acts with a pattern of deceitfulness, impulsivity, disregard for the safety of the others and consistent irresponsibility. There was a question about whether the defendant suffered Post-Traumatic Stress Disorder on a background of physical and sex abuse as a child. He was not convinced that the defendant was a reliable historian. He could not form a firm conclusion about that either way. He was of the view, however, relevant to the risk of further offending, that diagnoses of paedophilia, fetishistic disorder and transvestic disorder were available.
Dr Dayalan assessed the risk of further offending by use of the Static- 99R and STABLE-2007 tools, the latter being a structured professional judgment tool. The actuarial results from the Static-99R produced a score of 7 to put the defendant in the well above average risk category with a recidivism risk of 30.7% within 5 years. The STABLE-2007 score was one of 18.
Using the STABLE-2007 tool Dr Dayalan concluded that the defendant had "a high [burden] of stable dynamic risk and needs". They were: poor or negative social influences and an incapacity for relationship stability; emotional identification with children; general social rejection; lack of concern for others; impulsivity and poor cognitive problem solving; negative emotionality; her high sex drive; her use of sex as a coping mechanism; deviant sexual interests; and poor co-operation with supervision. Dr Dayalan was of the view that the defendant's personality disorder and ADHD enhanced these risk factors. Obviously so too did "her sexual paraphilia".
The expert was of the view that the defendant's sexually deviant interests are likely to continue but could be managed or modified with effective treatment. Personality disorders are chronic and enduring, but the severity of the risk could be managed "by psycho-social circumstances". The principal risk factors were stressful life events, unsupervised access to victims, association with anti-social peers and sexual preoccupation. On the other hand, encouragement of prosocial activities and vocational rehabilitation could reduce the risk.
The defendant requires psychological intervention and medication for her ADHD. Dr Dayalan recommends continuance of her engagement in sex offender treatment programs in the community, notwithstanding questions about the effectiveness of the programs in the scientific literature. Dr Dayalan referred to the possible use of anti-libidinal medication. The use of such drugs would not address her deviant sexual interests, but could reduce her preoccupation with sex and her sex drive.
Dr Dayalan thought it unlikely that the risk presented by the defendant could be managed in the community in the absence of an ESO. He recommended close supervision in the early stages of the defendant's release into the community.

[9]

Dr Youssef

Dr Youssef made the comment that the defendant's sexuality appears to be unclear to her. Initially she reported Dr Dayalan a sexual attraction only to men, but later admitted ongoing attraction to underage females and adult females. She told Dr Youssef she would be willing to be assessed for anti-libidinal medication. As she was obsessively focused on sex, sought to engage in sexual intercourse every couple of days and used sex as a coping mechanism. She preferred schoolgirl pornography, but also looked at incestuous pornography. She acknowledged an abiding interest in underage females since the age of 12. She told Dr Youssef that her break and enter offences were motivated by her underwear fetish. While expressing regret for her offending behaviour, she seemed to express some resentment in relation to the index offending, saying "[the police] came [after] me".
A concerning aspect of the evidence in the case is that in custody the applicant wrote a number of sexually explicit, indeed deviant, letters to other sex offenders. Initially she denied she knew the recipients to be sex offenders. She said that she often engaged in sexually explicit exchanges online when in the community. She told Dr Youssef she had gained a great deal from HISOP. But she struggled to explain her risk factors and discuss self-management strategies.
Dr Youssef also diagnosed a Borderline Personality Disorder. While this condition was not causative of the defendant's offending, it contributed because of the social difficulties created for her in establishing fulfilling relationships. Like Dr Dayalan, Dr Youssef was also of the view that fetishistic disorder and hebephilia were present in the defendant's case. These are likely to be lifelong conditions, but psychological intervention can assist even if the conditions are unlikely to dissipate. They are relevant to her risk of further offending.
Dr Youssef pointed out that the risk assessment process is not predictive and at best provides an estimate of the risk of recidivism. A combination of actuarial processes and structured professional judgment tools is required. She too applied the Static-99R and the STABLE-2007 tools. The Static-99R score was 6, which still placed the defendant in the well above average category. She rated the risk of recidivism within 5 years as somewhat lower than Dr Dayalan. Like Dr Dayalan, she recorded a score of 18 on the STABLE-2007 which Dr Youssef said reflects a high level of stable dynamic needs.
Her identification of the dynamic risk factors was very similar to that I have already referred to as having been identified by Dr Dayalan. Dr Youssef also used the risk of sexual violence protocol (RSVP-V2) (as did Dr Dayalan), another structured-professional judgment tool. The application of this tool identified some 9 dynamic stress factors in the defendant's case including sexual deviance, excessive use of pornography, problems with establishing stable intimate relationships, difficulties with employment and stable accommodation and an inability to respond appropriately to supervision.
Dr Youssef questioned the defendant's gender identification. She was not convinced that a diagnosis of gender dysphoria was available. The fetishistic interest in collecting female underwear, according to Dr Youssef, appeared to be more strongly associated with sexual arousal than gender dysphoria. The symptoms of Borderline Personality Disorder were also relevant to risk. Dr Youssef highlighted that there were "not many protective factors at present in the defendant's case". Dr Youssef was of the view that the defendant still has outstanding treatment needs. She has not achieved the "maintenance level" at this time.
Dr Youssef expressed the opinion (Ex B [109.5.3]): "If no order is imposed, Ms Amson would be left in the community without any support or supervision, meaning that she will need to attend ongoing psychological intervention, develop, and maintain a prosocial support network, and manage her risk on her own. The likelihood of Ms Amson being able to achieve this without a period of intensive support and supervision in the community, considering her current needs, remains low." Dr Yousef considered that close supervision and monitoring was at least initially necessary. Over time, assuming satisfactory progress, the closeness of the monitoring could be reduced (Ex B [109.6.7]).

[19]

Conditions 4 and 5

In substance, the State seeks a condition that the defendant must wear electronic monitoring equipment as directed by a department supervising officer ("DSO") and the prohibition of tampering with or removing the equipment. Condition 5 requires the defendant, if directed, to provide a schedule of movements. The defendant submits that the condition should be subject to a "sunset clause", if she is not charged with breaching the ESO or any other criminal offence within 3 months she will no longer be required to comply with these conditions, subject to the proviso that the condition may be reimposed if she is subsequently so charged.
I am of the view that conditions 4 and 5 should be imposed in accordance with the State's position. In coming to this conclusion, I have had regard to community safety as a primary consideration. It seems to me that in the circumstances where the defendant's impulsivity borne of her Borderline Personality Disorder is a significant risk factor in a person who is obsessed with sex, uses it as a coping mechanism and has a strong attraction to young female teenagers, the structure provided by the combination of electronic monitoring and the provision of a schedule of movements is likely to have a significant prophylactic effect in terms of risk. To be effective, I am of the view that both conditions need to operate together. Compliance with the schedule of movements is effectively monitored by the electronic monitoring. Together, compliance with these conditions will provide structure to the defendant's daily life. This is likely to reduce the risk of reoffending, especially having regard to the consideration that the defendant has not previously resided in Sydney. The provision of the schedule of movements itself assists the defendant to plan ahead and to avoid situations where she is likely to be tempted to deviate from her intended path.
I have also taken into account from the risk management report prepared by Ms Susan Page, a Community Corrections Officer, on 29 March 2023 that it is intended in the implementation of the ESO that there will be four monitoring stages which will vary having regard to the intensity of the monitoring. It is intended that electronic monitoring would be dispensed with after the completion of the first three phases and that scheduling would be phased out after the completion of the second phase. Obviously, this would be subject to the defendant's compliance. The appropriateness of the monitoring is reviewed every 2 months with an offender's case plan. There will be ample opportunity for the defendant to demonstrate compliance, which will no doubt lead to an early consideration of the easing or phasing out of the application of these conditions.