State of New South Wales v Anthony Joseph Russell - [2015] NSWSC 488 - NSWSC 2015 case summary — Zoe

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State of New South Wales v Anthony Joseph Russell

[2015] NSWSC 488

Supreme Court of NSW|2015-04-23|Before: Adams J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2015-04-23

Before

Adams J

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

Introduction

The defendant is presently subject to an extended supervision order made pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) which expires on 23 June 2015. The plaintiff is seeking to further extend that order. In the meantime an interim supervision order for a period of 28 days from 24 June 2015 is sought, since it is anticipated that the application for the substantive order will not be ready for hearing by the time the current order expires. The appointment of two psychiatrists to examine the plaintiff and other ancillary orders are also sought.
The defendant initially opposed the making of an interim order on the ground, in substance, that his current supervision is unlikely to expire "before the proceedings are determined" as provided in s 10A(a) of the Act. However, on enquiries being made about the available hearing dates and the availability of the agreed psychiatrists, it appeared that the hearing of the application for the extended supervision order might not be able to be completed by 23 June. It was conceded that, the other criteria being satisfied (which was agreed), the interim order should be made, leaving some controversy about the conditions which should be imposed.
At the hearing of the application, I made orders for the appointment of two psychiatrists (as agreed by the parties) and dealing with ancillary matters. Those orders are for convenience again set out below (absent case management directions), together with an order for interim supervision. The conditions are set out in a schedule to this judgment.

[2]

Background

The following material, which is not controversial, is largely drawn (for convenience) from the plaintiff's written submissions, which fairly summarise the material which has been tendered.
The defendant is aged 51 years. He is an indigenous Australian and was raised in the Tumut/Brungle area of New South Wales. He has a large extended family.
The defendant's criminal record of sexual offences commenced in 1980 when, aged 16, he indecently assaulted a 13 year old school girl. He followed her home from school and, on the way, grabbed her crutch and buttocks. He was placed on probation for 2 years and directed, amongst other things, to attend for appropriate counselling. Whilst on probation he committed further (non-sexual) offences. In 1990, the defendant, heavily intoxicated, broke into a neighbour's house and had sexual intercourse with an adult female without consent numerous times in the presence of a child. He threatened both with a knife. He was sentenced to 5 years and 4 months imprisonment with a non-parole period of 4 years. In 1995, and whilst on parole for the earlier offence, he sexually assaulted the 13 year old daughter of his then de facto partner. He claimed she consented. He was convicted of aggravated sexual assault and sentenced to 8 years imprisonment with a non-parole period of 3 years.
In 2006, the defendant was convicted of failing to comply with reporting obligations and breaching a good behaviour bond and apprehended violence order. He was given a 12 month suspended sentence. In 2007, he was convicted for a breach of an ADVO, which was also a breach of his good behaviour bond. He was sentenced to 12 months imprisonment with a 9 month non-parole period. In 2008, he was convicted of a further failure to comply with his reporting obligations and was given a further term of imprisonment. Whilst in gaol, the defendant refused to undertake Custody Based Intensive Treatment ("CUBIT") designed for moderate to high risk sex offenders. He is essentially an untreated sex offender and only began engaging with community-based Forensic Psychology Services ("FPS") in January 2015.
In 2009, an extended supervision order was made in respect of the defendant for a period of 5 years. It is this order which expires in June of this year. The offender was convicted twice during the five years for failing to comply with the order. He currently lives in the Community Offender Support Programme ("COSP") accommodation in Malabar.
The plaintiff submits that the offender is able to comply with the supervision conditions when under strict supervision, but displays dysfunctional behaviour when the conditions have been relaxed.

[3]

The statutory scheme

Section 10A provides that an interim supervision order may be made by the Court if it is satisfied that the defendant's current custody will expire before the proceedings are to be determined and that the matters alleged in the supporting documentation, if proved, justify the making of a high risk sex offender extended supervision order. The decision to make an interim supervision order is discretionary in nature and the Court may refuse to make such an order even if the statutory preconditions are satisfied.
The Court at the preliminary hearing stage does not need to predict the ultimate result of the proceedings: it is sufficient if the matters alleged, if proved, would justify the making of a final extended supervision order: Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118. The test at the preliminary stage is similar to that applied at committal proceedings: Attorney General (NSW) v Hayter [2007] NSWSC 983. It does not involve the weighing up of documentation or the consideration of evidence to be called at the final hearing (Tillman).
An offender can only be made the subject of a high risk sex offender extended supervision order if the Court is satisfied that the offender is a "high risk sex offender". Section 5B provides - "(2) An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision."
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; 210 A Crim R 220 where his Honour stated 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."
In the State of New South Wales v Brookes [2008] NSWSC 150 Fullerton J noted - "Even at the interim stage, however, it is appropriate that I take into account the dual objectives of the Act, namely to ensure the safety and protection of the community and to facilitate the rehabilitation of serious sex offenders. In considering interim orders, it is also appropriate to give weight to risk avoidance."
Section 9(3) of the Act sets the matters to which the Court must have regard to when considering whether to the make 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). Past conduct and criminal history - matters (f), (g), (h), (h1) and (i)
I have already briefly described the defendant's history of sexual offending. So far as the views of the sentencing Courts are concerned, they were essentially concerned with assessing the relative seriousness of the offences (obviously very serious) and add no information of further utility. Several allegations of sexual offending were made against the defendant. In July 2013, a parolee informed a Community Corrections officer to the effect that the defendant had patted the parolee's niece's bottom, making her very emotional. There is no further information about this allegation and it seems it was not reported to the police. A Department of Family and Community Services ("FACS") risk of harm report of November 2005 gives details of an alleged indecent assault involving an 11 year old girl who was staying with the defendant's then girlfriend. The child alleged that he walked into the living room naked with an erect penis and commenced to grope the girl on her genitals.
The defendant has long history of convictions for non-sexual offences: stealing, assaults, malicious injury, driving offences (including 5 drink driving offences), behaving in an offensive manner, intimidating an officer, resisting arrest, failing to quit licensed premises and contravening apprehended domestic violence orders. Many of these offences involve alcohol.
Buddin J noted, when making the current order in 2009, that - "… [the] defendant has a poor history of compliance with court ordered obligations including breaches of parole, of probation, of good behaviour bonds and of supervision orders." The plaintiff's submissions summarise the defendant's failures to abide by his obligations under various forms of conditional liberty over a long period of time as follows - • 1980 - numerous breaches of a probation order by committing further offences of stealing, illegal use of motor vehicle, assault, break enter and steal, unlawfully use conveyance, between 18 and 25 December 1981. • 1995 - second sexual offence was committed whilst on parole for first sexual offence committed in 1990. • 1995 - breach of parole report was compiled after the offender was seen intoxicated (in breach of condition 9 of parole order). Parole was revoked. • 2006 - breaches of s 9 good behaviour bond imposed in April 2006. These breaches were failures to report a new address, new employment and new relationship in line with his child protection obligations. • 2006 - breach of s 9 good behaviour bond imposed in April 2006. This breach was for driving with High Range PCA. • 2006 - further breaches of the s 9 for intimidate officers and behave in offensive manner. • 2006 - further breach of s 9 bond for contravene ADVO. This breach occurred when the offender was subject to several further good behaviour bonds. • 2007 - offence of breach ADVO and destroy property was a breach of six good behaviour bonds. He received a 6 month term of imprisonment and further terms of imprisonment after he was called-up for the breaches of the other bonds. • 2009 - absence from his approved premises led to the revocation of parole for the offence of fail to comply with reporting conditions. The offender was staying with a friend adjacent to a school. • 2012 - several formal warnings for using Facebook account. • 2013 - issued with a formal written warning for failing to abide by ESO obligations. The offender was seen to be exiting a residential address that was not on his approved schedule. • 2013 - breach of ESO by consuming alcohol on licensed premises and visiting unapproved residence. Convicted and placed on suspended sentence. • 2014 - second breach of ESO for being in company with children without an approved adult being present. He had inappropriate physical contact with one of them. This offence was committed whilst the offender was on subject to the earlier s 12 bond. He was convicted and given a full time custodial sentence. This summary is not disputed by the defendant.
As a result of the breaches of the current order and the time the defendant has spent in custody, s10C of the Act operated to suspend its operation, effectively extending the expiration date by 7 months and 15 days to 23 June 2015. Treatment and Rehabilitation - matters (c), (e) and (i)
The defendant was offered a place in the High Intensity CUBIT Program in 2002 but declined to take part. Although he expressed to undertake the Program in the following year, in December 2004 he again refused and never engaged in a custody-based intensive program. A Senior Psychologist with Corrective Services commented - "Although he has attended a few sessions with a private psychologist that purported to address sexual offence issues, these were far too few to meet Mr Russell's level of need and there is no information as to the psychologist's expertise in this area. Mr Russell remains an untreated sex offender." In respect of the Forensic Psychology Services ("FPS") weekly sessions (which provide for sex offender treatment in the community) being attended by the defendant, the Psychologist points out - "It should be noted that, although FPS will attempt to provide the best available therapeutic intervention to Mr Russell, it is not set up as a treatment programme for High Risk offenders. As a non-residential community programme, it is not possible to offer the level of intensity required for effective treatment of high risk offenders." On the other hand, the defendant is reported as showing early positive progress.
In 2009, the defendant was assessed as suitable for anti-libidinal medication, with no contraindications. At the same time, it was noted that the defendant's anti-depressant medication had some impact on his libido and sexual performance. The defendant has consistently refused to take anti-libidinal medicine. Practicable management - matter (d1)
A risk management report dated 20 February 2015 addresses the extent to which the defendant can be reasonably and practicably managed in the community. It noted the defendant's poor response to earlier management by Community Corrections with some improvement, however, since March 2013 when he moved to Brungle, marred by an occasion of intoxication. Since his release from custody on 5 October 2014, the defendant had been residing at the COSP centre in Malabar. On 22 March 2015, the offender moved out of the COSP into private accommodation, having since January 2015 engaged with FPS and said to be making positive and encouraging progress.
On 29 November 2014 the defendant was scored on the Level of Service Inventory - Revised (LSI-R) as being high risk. The STATIC-99R assessment completed on 15 January 2015 scored him also in the high risk category of sexual reoffending.
The risk management plan notes a number of supervision approaches available to the ESO Team, involving weekly interviews, monthly field visits, liaison with treating professionals (AOD and psychological) and FPS, and family members. The defendant would be expected to continue treatment to address his mental health issues and counselling in relation to drugs and alcohol, with random testing to ensure abstinence and continued attendance at FPS as long as necessary. He would be required to submit to electronic monitoring and provide movement schedules. Other conditions as to contact with children under 18 years and non-association and place restrictions would be necessary. The risk management plan will be reviewed every two months and updated to reflect progress made by the offender. Risk of future offending - matters (c) &(d)
A Senior Psychologist with Corrective Services attempted to interview the defendant but he declined. She accessed other available material including his psychology and case management files, Offender Integrated Management System ("OIMS") case notes, remarks on sentencing, various police facts sheets, the defendant's criminal history and bail report.
As already mentioned, the defendant has had inconsistent responses to supervision (including, in 2010, needing to be formally directed to cease communication with a staff member after he repeatedly sent her sexually suggestive messages), with positive progress noted in the initial stages of the term of the extended supervision but with a subsequent decline into alcohol use and reoffending behaviour.
The defendant may meet the diagnostic criteria for antisocial personality disorder and substance abuse (alcohol) disorder. However, he does not meet the diagnostic criteria for paedophilia. The actuarial and dynamic risk factors, measured by STATIC-99R and Risk of Sexual Violence Protocol ("RSVP"), resulted in the defendant's being scored in the High Risk category, meaning his relative risk of reoffending is approximately 3.77 times that of a "typical" sex offender. This was consistent with the scores produced when the offender was psychologically assessed in 2009. A number of factors are particularly relevant to the risk of the offender re-offending sexually: the chronicity of sexual violence (the recent alleged breach involving his niece was, though not violent and very much at the lower end of seriousness, suggestive of ongoing problems with the defendant's identification of boundaries); the diversity of sexual violence (indicated by different ages of victim and differing levels of coercion used by the offender); and the violence he used.
The defendant has problems of self-awareness and has, from time to time, refused to cooperate with supervision and his belligerent attitude. He also has problems with stress or coping. On earlier assessments the defendant endorsed a number of statements that reveal a belief system with confused boundaries about children's sexuality and sexual contact with children. The lack of treatment may indicate that he does not fully appreciate that his views constitute a risk factor. In 2009 and 2014, he minimised the seriousness of his sexual behaviour. His own childhood abuse may be a contributing factor. The defendant has not been amenable to accessing help and support during intermittent periods of depression and irritability that substantially impair his behaviour. He has continuing problems with alcohol abuse and an apparent lack of pro-social relationships in the community.
The psychologist described the defendant's situation as follows - "Mr Russell is assessed as within the High risk category with regard to actuarial factors and a review of his dynamic risk factors identifies relevant issues in each of the domains of the RSVP. Taken together, it would be difficult to imagine that the presence of these risk factors would not expose Mr Russell to high risk scenarios from time to time, increasing the risk of eventually acting out sexually." Taking the material together, the most risky scenarios would arise when the defendant feels slighted or "put-down", resorts to alcohol consumption and then comes into contact with a potential victim and find himself sexually aroused or, if he becomes withdrawn, irritable and hopeless and comes into contact with an adolescent female (especially if there were a kinship connection) he might seek to mollify his emotional turmoil by attempting to gain closeness to the female which may lead to criminal sexual contact.
The psychologist concluded - "Perhaps the most significant risk factors are alcohol abuse, emotional dysregulation, which leads to problems with his supervision, and his seemingly poor understanding of the boundaries relevant [to] contact with young adolescent girls." For obvious reasons, this emphasises the need for the offender to continue to engage with FPS, especially in group sessions, with the limits previously noted. Other relevant information - matter (i)
The OIMS case notes refer to an episode arising in February 2010 when he sent inappropriate text messages to a female psychologist and expressed similar feeling for a corrections officer. When spoken to about these communications, he apologised and said he felt embarrassed. However, shortly after, the offender wrote another sexualized text message to the corrections officer. This conduct, plainly enough, indicated a problem with boundaries. But there is no suggestion it has been repeated and, of course, it by no means constitutes a sexual offence.

[4]

Conclusion

There is no doubt that the defendant is a high risk sex offender as provided by the Act and the application is within time. Furthermore, the above summary demonstrates that the tendered material would, if proved, justify the making of an extended supervision order. It is evident that adequate psychiatric supervision is necessary, together with psychological support and treatment, with intensive supervision by the relevant officers, and suitable accommodation. The reports of the court-appointed psychiatrists should assist with further refinement of the conditions in due course.
The conditions proposed by the plaintiff are largely conventional. As I have mentioned, the defendant takes exception to several of them. Dealing with them seriatim, the first concerns whether the defendant should be required to wear a monitoring device as directed by his DSO or supervisor. The argument put on his behalf by Mr White is, essentially, that although there have been lapses from time to time, the defendant has not, whilst under supervision for almost five years, committed any sexual offence (that allegedly involving his niece did not result in a charge) and the invasion to his privacy is not warranted. I am troubled by the fact that the defendant has declined to cooperate with attempts to assess his risk and by the potential seriousness of any sexual offence which he might commit. It may be that the reports of the court-appointed psychiatrists will better inform this issue but, for now, I consider that the requirement as to monitoring is reasonable. The next matter concerns provision of a weekly plan. It is obvious that this is important for the purposes of structuring the defendant's activities as well as assisting supervision. He is presently required to provide such a report 48 hours before the week in question starts but the plaintiff seeks to increase this to three days, citing administrative exigencies. However, there is no evidence about this and, for the present, I consider the present regime is appropriate. At the hearing of the substantive application, this issue can be the subject of evidence that might affect the matter. The plaintiff originally sought a curfew between 6pm and 10am unless other arrangements are approved. The current condition imposes a curfew from 9pm to 6am, which is acceptable to the defendant. The plaintiff does not press the proposed change. One of the proposed conditions obliges the defendant to "enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO". Mr White submits that it is inappropriate to oblige the defendant to undertake any particular job at the risk of criminal prosecution although, as is obvious, employment will be advantageous for a number of reasons, including the minimisation of risk. On behalf of the plaintiff, Mr Hammond submits that the benefit of employment overrides the right of the defendant to choose whether to work or take a particular job and that the DSO will be astute to ensure that the employment is appropriate. A requirement, enforced by criminal penalties, that a person must accept employment is such an interference with basic civil rights that it could not be countenanced except in the exceptional circumstances. The present case is not one. Accordingly I impose the proposed condition, omitting the words ""must enter available employment if and as directed by the DSO" and the word "employment" where secondly referred to.
Two conditions concern the provision of information in respect of the execution of a legal instrument or an instrument relating to any bank or similar institution. I do not accept the reasonableness of these conditions and decline to impose them. They are unrelated to any of the risk factors identified in the defendant's case. Nor will I impose the condition that requires him not to form any corporation, partnership, or register a business name without the permission of the DSO. This is an unreasonable invasion of the defendant's rights. Another issue concerns a condition prohibiting the defendant from associating "with any people who are consuming or under the influence of illegal drugs or alcohol". The identified risk is that the defendant might take advantage of a female rendered vulnerable by intoxication. This condition is wider than is necessary. I will impose a condition in the following terms: the defendant will not be or remain in the company of a female who is or females who are intoxicated or drinking or taking illegal drugs unless at least two other adult males are present or otherwise with the permission of his DSO.
Objection is also taken by the defendant to conditions concerning his access to and use of the internet and other electronic communications. Essentially, the conditions require disclosure of all the relevant devices in his possession, together with details of telephone numbers, service provider account numbers, email addresses, his user names and internet connections, allow his telephone and internet provider to share information with his DSO and obey reasonable directions about any use of the devices. The risk identified by Mr Hammond for the plaintiff is not that the defendant has ever used the internet to download or view inappropriate material, let alone groom any potential victim but, rather, that his knowledge and understanding of necessary boundaries is limited and confused and this is a context of potential risk for any person he might contact. Given the risk factors which have been identified and the other applicable supervisory conditions, I consider the proposed conditions are too wide. I will impose the conditions presently numbered 35, 36 and 37 but not the proposed condition 34.
The proposed conditions include a power to search the defendant's premises and person if the DSO thinks it reasonably necessary to do so. Mr Hammond submits this is necessary because the defendant has used a knife to commit a serious sexual offence. However, since he might be expected to have access to a knife in the ordinary course, this condition does not really deal with that issue. I am not satisfied that the condition is reasonable and decline to impose it. Lastly, objection is taken to the proposed condition requiring the defendant to agree to information being shared between the agencies involved in his supervision on the ground that this constitutes an invasion of his privacy. It seems to me obvious that such information sharing is reasonably necessary to permit effective and efficient supervision. I propose to impose the condition as sought.

State of New South Wales v Anthony Joseph Russell

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