State of New South Wales v Andrew Cole

History of the Defendant

1. The first sex offence committed by the defendant occurred on 20 August 1988 during which he attacked a woman who was unknown to him and was walking her dog in the street. The offence involved the defendant using a knife; gripping the victim around the neck; grabbing the victim's hair and pulling her back when she sought to escape; attempting to force his tongue into her mouth; touching her between the legs on the outside of her jeans; and threatening to cut her throat and kill her dog. The victim escaped when she screamed. This was not a serious sex offence as defined in the Act.
2. The second offence occurred while the defendant was on bail having been charged with the first offence above. It occurred on 5 - 6 December 1988. The victim was driving her car on a public street; the defendant forced his way into the car and produced a knife, causing the victim to drive around the city throughout the night and into the early hours of the morning.
3. The defendant caused the victim to park in an area where he had sexual intercourse with the victim against her will. Again, the defendant threatened the victim with a knife.
4. After the sexual assault, the defendant caused the victim to drive around the city again and forced her to park in a different place where, again, he had sexual intercourse with her on more than one occasion. He then forced the victim to withdraw money from a bank.
5. The third offence was not a sex offence and occurred on 13 August 1989. It involved the defendant escaping from lawful custody, after he had been taken to the hospital after complaining of chest pains.
6. The defendant was released on parole on 5 December 1994 and breached parole on 6 April 1995. On 11 and 13 April 1995, the defendant, with two others, when armed with a replica pistol, committed three robberies at various retail premises. There were other ancillary offences committed during the course of the robberies.
7. On 30 January 1999, 9 February 1999 and 12 February 1999, the defendant committed further offences. The offences committed were armed robberies; driving a stolen vehicle; use of a black replica handgun; and assault. Drug offences were committed in custody.
8. Between 4 and 9 December 2002, the defendant was admitted to Parkview Unit, Macquarie Hospital with an acute psychotic episode, which included persecutory delusions after heavy amphetamine abuse.
9. Between 23 January 2003 and 27 February 2003, the defendant committed a number of offences. The defendant armed himself with a pistol, entered a pharmacy, requested drugs and stole money.
10. On 27 February 2003, the defendant entered a person's apartment, identifying himself as a Police officer. The victim (a male) called the Police and locked the front door so that the defendant could not leave. The victim alleged that the defendant took money from the victim's bedroom, being approximately $400. The money was recovered by the victim while the defendant was in the premises.
11. The defendant asked to be let out of the apartment and threatened the victim with what the defendant said was a pistol. The victim then opened the door and the Police arrived at the same time. The verdict for the foregoing was not guilty on the grounds of mental illness.
12. At the time, Dr Westmore, a forensic psychiatrist, provided a report on fitness and expressed the view that the defendant qualified for polysubstance abuse disorder and was psychotic at the time of the offences. He diagnosed the defendant as a schizophreniform disorder, a schizophrenic illness, or a drug-induced psychosis.
13. There was, according to the report of Dr Westmore, a direct relationship between the mental illness and the offending. The opinion expressed was that the defendant would have been totally deprived of the ability to reason with a modicum of calmness about his behaviour and the psychotic episode prevented him from fully understanding that he should not engage in the conduct. [7]
14. At the same time Dr Allnut considered that the defendant was having persecutory delusions and suffering from a psychotic episode at the time of the offences. The Court ordered that he be detained in custody until released under the Mental Health (Criminal Procedure) Act 1900 (NSW).
15. The defendant escaped from lawful custody on 18 January 2006 by removing a Perspex pane constituting the window, climbing onto a roof, scaling a 7‑metre‑high brick wall, and climbing through razor wire. He was apprehended on 21 January 2006.
16. On 4 June 2008, the defendant was conditionally released under the Mental Health Act 2007 (NSW), although still a forensic patient. On 30 July 2008, the index offence upon which the State relies was committed.
17. While on conditional release as a forensic patient, the defendant committed a "serious sex offence" against an adult female. The victim was at home with her two children aged 7 and 10. The victim's husband had died about a year earlier and the victim was the sole carer for her children.
18. At about 2.30am, the defendant entered the home, which had been secured when the victim retired to bed and found the children's bedroom. The eldest child woke up and the defendant asked her to show him where her mother and father were. The daughter took the defendant to her mother.
19. The victim was woken and heard the defendant say: "Just keep quiet and you won't get hurt".
20. The defendant was standing next to the victim's daughter and holding the family's pet dog. The defendant told the daughter to lie on the bed face down and not to look at him. He demanded money and the victim gave him $30 from her purse. The victim told the defendant that she was on the pension and a widow.
21. The defendant then tied up the victim, covered her mouth with a gag and blindfolded her. He then threatened her and said: "Don't be a hero, you have got a young family, you don't want them to get hurt."
22. The defendant reminded the daughter not to look at him and the victim heard the defendant rummaging through her home.
23. The defendant re-tied the victim's hands even tighter when he observed her attempting to call emergency services after freeing her hands. Later, the defendant untied the scarves on the victim's wrists by cutting them with scissors. The victim was kept blindfolded. The defendant bleached the surfaces in the home to avoid detection of his DNA.
24. The victim begged the defendant to leave. The defendant threatened the victim's children when requiring the victim to perform fellatio on him by saying that, if she did not, "then [he would] do [her] children". Fearing for her children's safety, the victim performed oral sex on the defendant. She was still blindfolded.
25. The defendant required the victim to remain with him for several hours and was forced to drive him to a destination. The victim had her children in the car.
26. The destination was in Hunters Hill and, after dropping off the defendant, the victim immediately drove to the Police and reported the matter. The defendant was arrested and made inculpatory statements corroborating much of the victim's complaint.
27. The defendant was the subject of a mental examination as a result of which Dr Westmore expressed the view that it was likely that the defendant re-developed symptoms of his paranoid psychosis prior to and at the time of the offending behaviour. This was aggravated and precipitated by the use of illicit drugs.
28. Dr Furst, another forensic psychiatrist, expressed the opinion that the defendant was acutely paranoid when he entered the house and that he remained paranoid and labile in mood at the time of the index offence. Dr Furst also expressed the opinion that the defendant was suffering from drug-induced psychosis at the time of the offence. Dr Furst's impression was that the sexual act was "opportunistic rather than driven by the paranoid delusions".
29. Dr Westmore concluded that there was nothing to suggest that the defendant acted towards the victim as a direct result of his delusional mental state.
30. The defendant pleaded guilty and was convicted of aggravated sexual assault inflicting actual bodily harm and take/detain person with intent to obtain an advantage. He was arrested on 31 July 2008 and sentenced on 21 August 2009 to an effective head sentence of 16 years imprisonment commencing 31 July 2008 with an effective non-parole period of 12 years, concluding 30 July 2020. The sentence is due to expire on 30 July 2024.
31. There was an appeal against the sentence, which was dismissed and, on 20 March 2020, the Tribunal issued an order for the defendant to transfer to the Forensic Hospital at Long Bay when a bed became available. On 25 November 2020, the defendant commenced the High Intensity Sex Offender Program ("HISOP"). The factors that were identified which contributed to the defendant's pathway to sexual offences were: adversarial views of others; egocentric interpersonal patterns; impulsivity; emotional dysregulation; drug and alcohol misuse; anti‑sociality; elevated sex drive; hedonistic sex views; and unhelpful views of women; and mental illness.
32. On 1 November 2021, the defendant was transferred to the Forensic Hospital at Long Bay pursuant to a Tribunal order.
33. On 30 November 2021, the Serious Offenders Review Council ("SORC") did not recommend parole as, amongst other things, the defendant had failed drug tests in custody and had been charged with institutional and/or regulatory offences.
34. On 10 December 2021, the defendant's record noted that he expressed frustrations to treating staff because he wanted to stop the methadone program, which was discouraged because it would risk withdrawal and increased mental and physical instability.
35. The defendant underwent treatment, the aims of which were intended to re‑dress links between drug use, robbery, and sexual offending.
36. The defendant showed signs of remorse and insight into the impact of drugs on his behaviour. The SORC stated that no more could be achieved in a custodial setting and "the risk to the public [was] best managed by professionals at the Forensic Hospital." The SORC recommended release to parole.
37. On 14 July 2022, the State Parole Authority authorised and directed that the offender be released on parole not earlier than 30 July 2022 and not later than 3 September 2022.
38. On 30 July 2022, the defendant was released to parole but remained detained at the Forensic Hospital.
39. The defendant was appointed as a warden representative which role ended because the defendant increased his communication with female patients and required boundary setting and re-direction.
40. On 22 October 2022, the defendant's methadone treatment ceased.
41. On 24 October 2022, the defendant commenced therapeutic doses of suboxone. The suboxone was changed to buprenorphine on 11 November 2022.
42. On 12 April 2023, the defendant changed his first name from Robert to Andrew.
43. On 10 May 2023, the defendant completed the Substance Use Treatment Program ("SUTP").
44. On 15 June 2023, the Tribunal adjourned its Review for a period of three months and, on 4 September 2023, the treating team applied for escorted day leave and unsupervised overnight leave. The day leave was sought for the purpose of the defendant attending community sex offender treatment programs and the latter was sought to assist with graded transition to the community.
45. In October 2023, an Extended Reintegration Service commenced and on 2 November 2023, the Tribunal approved escorted and supervised day leave. The application for unsupervised overnight leave was adjourned.
46. On 14 December 2023, unsupervised overnight leave was approved by the Tribunal.
47. On 14 February 2024, a psychiatrist recorded that the defendant appeared to target vulnerable patients and was over familiar with young female staff. He was apparently difficult because he believed he was not being allocated female staff.
48. His escort on therapeutic leave commented that it was not his role to monitor the defendant and pushed back on providing feedback on interactions during leave.
49. The defendant was noted as having failed to see that being inappropriate to young women was an issue and failed to connect this to his index offence.
50. The psychiatrist noted that the defendant presented "as genuine in conversation" with the psychiatrist about relationships, however presented very differently at other times. The defendant also became aggressive and lied as a response to attempts to limit his behaviour.
51. On 20 February 2024, the defendant was escorted on a therapeutic leave day to shops and, apparently, was polite and behaved appropriately.
52. On 4 March 2024, the defendant was reviewed by Dr Kerri Eagle, another forensic psychiatrist. The Treatment Rehabilitation Centre ("TRC") was available for the defendant once released and the defendant expressed the view that he was willing to engage with the TRC. Dr Eagle recorded an impression, on examination, that the defendant had a "sexual sadism disorder" and she observed that the defendant "would likely benefit from testosterone lowering treatment".
53. On 7 March 2024, there was further leave during which the defendant displayed good insight on issues that have, in the past, led to offending and the leave went well.
54. On 15 May 2024, the defendant spent overnight leave away from the Forensic Hospital and, on 21 May 2024, the defendant's NDIS plan was approved. This involved a support package, amongst other things, providing funding for a support co-ordinator, a dedicated support person, therapeutic assistance and supported independent living.
55. During a conversation on 23 May 2024, it became clear that the leave was not positive in its entirety. Apparently, the defendant watched several hours of combat footage; made comments on non-consensual pornography; comments about circumventing rules; and exhibited a "general reluctance to more closely reflect on himself during the session".
56. On 31 May 2024, there was a review of the defendant's overnight leave session, which was described to have gone well.

Risk Assessment

1. Apart from the comments and factors which clearly are relevant to the risk assessment of the Court, the plaintiff has provided a Risk Assessment Report ("RAR"). The RAR [8] is over the signature of a senior psychologist in the High Risk Offenders Team, Sarah Wright, and is supported by the chief psychologist, Risk Management Programs. Before dealing with the risk assessment itself, the RAR notes that if the Court would prefer not to issue an ISO, the defendant would be at unconditional liberty and would have no support from or monitoring by Corrective Services NSW. The author expresses the view that she is unclear as to whether or not the Tribunal would continue to have oversight of the defendant. [9]
2. The Report notes that the defendant has been convicted of three contact sexual offences committed against adult female victims who were not known to the defendant. The offences involved the detention and abduction of the victims, as well as the sexual offences outlined previously.
3. Two of the sexual offences were committed in close temporal proximity in 1988. The index offence was committed in 2008 in the context of substance induced psychotic disorder. His psychotic delusions caused him to enter the victim's home but the delusions were not such as to have played a role in his decision to offend sexually against the victim while he was there.
4. The Report notes that the defendant has the dual status of a sentenced inmate and a forensic patient. He was first made a forensic patient in 2003 after being found not guilty by reason of mental illness. The Report recites the courses that have been undertaken by the defendant during his incarceration.
5. The report also notes that the defendant is at the Forensic Hospital and has been since 1 November 2021 and remains detained there for an indeterminant period. He receives weekly psychological counselling and has completed the SUTP. Transition and reintegration planning has commenced, and the defendant has recently been approved to undertake therapeutic day leave in order, amongst other things, to attend the Sex Offender Program conducted by Corrective Services.
6. The RAR assesses the defendant as having "well above average" risk of sexual re-offending. It states: "[The defendant] is assessed as having a Well Above Average risk of sexual reoffending. His outstanding criminogenic needs include: Problems with Minimisation, Problems with Self-Awareness, Problems with Stress or Coping, Negative Emotionality, Problems Resulting from Child Abuse, Psychopathic Personality Disorder/Antisocial Personality Disorder, Problems with Substance Use Major Mental Disorder, Problems with Sexually Violent Ideation, Hostility Towards Women, Problems with Intimate and Non-Intimate Relationships, Anti-Social Attitudes, Impulsive Lifestyle and Problems with Employment and Problems with Supervision."
7. The author expressed the view that a Continuing Detention Order would provide containment and that an ESO may enhance the mitigation of risk by ongoing community supervision, mental health support, support with community re‑integration, participation in the Community Sex Offenders Program Maintenance Group.
8. The assessment of the defendant by the forensic psychologist as "Well Above Average" risk of sexual re-offending places the defendant amongst a group of sexual offenders as having between 27% and 35.4% rates of recidivism over 5 years. Further, compared to a normative sample, the rate of re-offending was between 28.8% and 44.5% over 5 years. 98.5% of sexual offenders in the routine sample scored below the score obtained by the defendant.
9. His rate of recidivism, given his score, is, on the basis of comparative tables, 7.32 times higher than that of the "typical" sex offender. The "well above average" risk encompasses scores of 6 and above in the STATIC-99R measure. It is a category that had previously been described as "high risk". The RSVP-V2 measure placed the defendant into the high risk category for repeat sexual violence.
10. If the matters alleged in the supporting documentation, including the RAR were proved, they would justify the making of an extended supervision order. The Court, at this stage, is required in assessing the need for an ISO to treat the matters alleged in the supporting documentation as proved. [10]
11. As has already been stated, the defendant's current custody or supervision will expire before the final proceedings in this matter are determined and, pursuant to the terms of s 5B(d) of the Act, the Court, as presently constituted, is satisfied to a high degree of probability, that the defendant poses an unacceptable risk.
12. One issue remains. The remaining issue relates to whether, in the absence of an ISO or ESO, the supervision provided by the Tribunal would be such that the defendant would not pose an unacceptable risk. As has been made clear in the foregoing, the Tribunal permitted unsupervised overnight leave at an address to be nominated by the Community Restorative Centre, at the discretion of the Medical Superintendent and assuming the Medical Superintendent approves the proposed accommodation. That decision was made on 4 January 2024. The foregoing decision is in addition to the previously approved leave, which was day leave. [11]
13. A formal order, dated 21 December 2023, allows the defendant to be absent from the Forensic Hospital in order to access escorted day leave; supervised day leave; unsupervised overnight leave (in accordance with the conditions already outlined).
14. The resources and supervision available to the Tribunal are not as extensive as that available to the High Risk Offenders section of Corrective Services. In the absence of independent assessment by an appointed psychiatrist and/or psychologist, it is the Court's assessment that unsupervised overnight leave and day leave with supervision and/or escorting in the manner described in the Report, would not sufficiently ameliorate the unacceptability of the risk otherwise posed by the defendant.
15. It must be borne in mind that the Court is currently dealing with an interim order and the independent reports, which the Court shall order as a result of these hearings, may alter significantly the assessment otherwise made on the basis of the matters alleged, if proved.
16. The defendant's continuing status as a forensic patient is a matter solely within the discretion of the Tribunal. The considerations of the Tribunal are different from those of the Court under the Act.
17. The Tribunal must bear in mind the defendant's rights to liberty as well as the community's safety and the mitigation plan imposed by the Tribunal is essentially aimed at managing the defendant's mental impairment. The foregoing is not a criticism of the Tribunal.
18. Nor is it a criticism of its role. Its role is different from that of the Court in assessing an ISO. As already noted, an aspect of the Tribunal's assessment is that further confinement in a Forensic Hospital will not assist the defendant.
19. It seems to the Court, as presently constituted, that until such time as an independent assessment has been made of the requirements for safety, which is the primary objective of the function of the Court, it is impossible to assess the conditions that might be imposed by the Tribunal as being sufficient to ameliorate the unacceptability of the risk otherwise associated with the liberty of the defendant.
20. There is no doubt that a major factor in the assessment of the Tribunal is that the treatment at the Forensic Hospital will not benefit the defendant and that, therefore, it is necessary for the defendant to obtain leave from the Forensic Hospital in order for his mental condition to be improved and treated properly.
21. Further, in the report of Dr Pulley, the amelioration of the risk posed by the defendant is highly dependent upon the operation of the Extended Reintegration Service, which, on the evidence before the Court, is not and will not be available after the conclusion of the sentence imposed upon the defendant, namely, after 30 July 2024.
22. In those circumstances, the obvious risk posed by the defendant, on account of his past offending and its connection to his mental conditions, is unacceptable in the absence of an ESO. The foregoing assessment is made, as earlier stated, on the basis of the preliminary evidence that contains alleged matters which the Court treats as proved.
23. In all of those circumstances, the Court assesses the defendant as posing an unacceptable risk and I am satisfied of that circumstance to a high degree of probability. The risk that I find unacceptable is a risk of committing another serious sex offence if not kept under an ESO, or, in this case, an ISO.

Conditions

1. Most of the conditions were agreed after discussions between the State and the defendant. I congratulate the parties on the common sense and positive attitude which gave rise to the level of agreement. I deal only with the conditions that were not agreed or which have been altered by the Court.
2. Proposed Condition 5 has been altered by the Court to confine the sharing of information to that which is within the knowledge of a person or agency, where that person or agency reasonably believes that the information should be shared in order to reduce or impede the risk of the commission of an offence.
3. Condition 12 has been altered to ensure that visits to the home of the defendant by the DSO will not occur with unreasonable frequency on any day or night.
4. Conditions 14 and 15 have been clarified so that the agreed note becomes part of the Condition in that it allows the DSO to nominate persons who would be continually exempt from either the restrictions in Condition 14 and/or the restrictions in Condition 15, which exemption may be withdrawn at any time.
5. Condition 22 is altered so that the enquiry and provision of information relating to financial affairs is allowable only when relevant to assessing the risk of committing another serious offence, including providing evidence of substance abuse.
6. Condition 23 has been included as proposed by the State. Alcohol consumption, while not historically the subject of problematic behaviour in the defendant, is an identified risk factor in the reports and in the 1995 sexual offending, the defendant consumed both amphetamines and alcohol. In the case of alcohol, the DSO is capable of approving its consumption or approving its consumption within limits.
7. In relation to Condition 28, the Court has clarified, similarly to the manner in which Conditions 14 and 15 have been varied, that persons may be exempt from the restrictions otherwise imposed.
8. Condition 30 has been limited, by the Court, to a disclosure of criminal history to another person in circumstances where the DSO believes, on reasonable grounds, that such disclosure is necessary for the purpose of managing or supervising the risk of the defendant committing a serious sex offence.
9. The principles that were sought to apply in relation to Condition 32, were agreed, but the Court has altered the wording in a way that seeks to make clear that cutlery and kitchen utensils, including scissors, were not intended to be prohibited from possession or use. I presume this exception is for possession and use within the defendant's residence. Once outside the home, the items would cease to be cutlery or scissors, because they would no longer be intended for domestic use.
10. Condition 34 has been amended so that the condition relates to a direction by the DSO that may only be given if the DSO reasonably believes that the search is necessary to monitor compliance with the ISO or because the DSO reasonably suspects behaviour associated with a risk of committing a serious sex offence.
11. Condition 36 has been altered in a way which, in part at least, adopts the proposal of the defendant but allows for the writing to be either by SMS or other electronic communication or, of course, in hard copy.
12. Condition 38 was ultimately agreed to, and the Condition imposed allows the defendant to change significantly, his appearance but, must either before or within 24 hours thereafter, notify DSO of that alteration. The 24 hour timeframe was also imposed in relation to Condition 40.
13. Conditions 41 through to 48 were opposed by the defendant on the basis that they were adequately dealt with by the Conditions that may or were imposed by the Tribunal. The experience of the Court is that the High Risk section of Corrective Services operates reasonably.
14. The supervision by the Tribunal, which allows the Tribunal to impose Conditions on the defendant, certainly includes the appointment of health care professionals, the care and treatment of the patient and their medication, but such Conditions are discretionary. It is the expectation of the Court that the Conditions imposed by the DSO will be consistent with the Conditions imposed by the Tribunal in relation to medical issues such as medication and medical appointments. It is always open to a party to seek to vary the Conditions if that expectation is unfulfilled. These reasons were drafted at a time when the order had not been made but, because of the timeframe necessary for the making of an order, it is the situation that the order will issue and the reasons formally reserved. These are the reasons why the Court issued the orders on 29 July 2024.

Endnotes

1. Crimes (High Risk Offenders) Act 2006 (NSW), s 4A.
2. Ibid, s 5(1)(a)(ii).
3. Ibid, s 6(1).
4. Ibid, s 5B(d).
5. Ibid, s 5D.
6. Ibid, s 3.
7. CB2, p 419.
8. CB2, pp 300 ff.
9. CB2, p 327.
10. Crimes (High Risk Offenders) Act, s 10A(b).
11. Reasons for Decision, 14 December 2023, CB3, p 556. 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: 14 August 2024