State of New South Wales v Aravena

Judgment

1. HIS HONOUR: On 19 February 2019, the Court, as presently constituted, issued an Interim Supervision Order (hereinafter "ISO") and delivered ex tempore reasons for same. On 13 May 2019, the matter returned to the Court for the purpose of making an Extended Supervision Order (hereinafter "ESO"). On that date, an ESO was made, effective from that date for a period of three years.
2. The Court prescribed conditions pursuant to the terms of s 11 of the Crimes (High-Risk Offenders) Act 2006 (NSW) (hereinafter "the Act") which bound the defendant, Alexander Aravena, for the period of the ESO. There was significant agreement between the parties as to the conditions to be applied and the State of New South Wales, being the plaintiff, handed up a Second Further Amended Schedule A (MFI 2) which set out the areas of agreement and those matters that were the subject of discussion. The Court, ex tempore, dealt with each of the conditions that were not otherwise agreed and imposed the orders, as earlier stated, operating from 13 May 2019.
3. At the time, the Court reserved its formal reasons and a draft of said reasons was prepared, but, due to administrative oversight, never published. Those reasons were short and have now been revised, once the Court was made aware that the reasons for judgment had not been published.
4. On 19 February 2019, the Court issued reasons, ex tempore, in the following terms: "Before the Court is an application by the State of New South Wales seeking by summons an Extended Supervision Order (hereinafter "ESO") for a period of 3 years against the defendant Mr Alexander Aravena under the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter "the Act"). The plaintiff seeks, prior to the making of an ESO, an Interim Supervision Order (hereinafter "ISO"), for 28 days operating from the date of the expiry of the defendant's current custody which is 12 March 2019 pursuant to s 10A of the Act. The summons seeks and sets out conditions of supervision that the plaintiff seeks to be applicable under the ISO, which conditions have been amended following discussion between the parties. I congratulate both the State and the defendant for the level of cooperation that existed and exists, and for the manner in which both the submissions have been dealt with, and indeed, the issue of the conditions have been dealt with. On the basis of the amendment to the conditions contained in the schedule, and now handed to the Court, and perhaps as a matter of caution marked for identification '1' in the proceedings, there is no opposition by the defendant to the making of an interim supervision order in those terms and with those conditions. It is necessary nevertheless for the Court to be satisfied, given the nature of these orders, of the jurisdictional substratum that gives rise to the making of an order. The Court must necessarily consider and be satisfied that the making of an ESO pursuant to s 7(4) of the Act would be warranted, if all the matters that are alleged for the purposes of the ISO were proved. The principles applying in relation to the grant of an ISO were discussed by the Court in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57; State of New South Wales v Banks [2016] NSWSC 926; State of New South Wales v Thurston [2017] NSWSC 1760 at [14] - [20]. I apply those principles. The defendant is a 48 year-old man, with a history of offending including sex offences. He is currently serving a sentence of 5 years' imprisonment for one count of recklessly inflicting grievous bodily harm with intent to have sexual intercourse, contrary to the provisions of s 61(a) of the Crimes Act 1900 (NSW). That offence occurred in 2014. As earlier stated, he is due to be released from custody on 12 March 2019. The foregoing offence under s 61K of the Crimes Act is the index offence upon which the State relies in relation to the making of an ESO and necessarily an ISO. The plaintiff, according to material now before the Court, shows that the defendant has not received any or any satisfactory treatment in relation to the sex offences or sex offence, and that the sex offending is a relatively recent occurrence. It submits that ongoing supervision and treatment is needed to treat the risk which it submits is unacceptable. The plaintiff relies on a number of exhibits; exhibits JP1-1 and JP1-2 and JP2 have been tendered in the proceedings. They include a risk assessment report by Mr Ardanski, a senior psychologist at the Senior Offenders Assessment Unit. Mr Ardanski, albeit given the limitations of an assessment of this kind at this point in time, assesses the defendant as posing a high risk of future sexual offending, based on actuarial measures of risk, including, and especially, statistical measures, which, as I have said in previous judgments relating to these matters, have serious limitations. However, Mr Ardanski also goes on to say that the future risk of sexual offending would be ameliorated by ongoing community supervision as well as by participation in community based programs. I accept that assessment for present purposes. There is also a risk assessment report or risk management report by a community directions officer Ms Ottaway of 2 October 2018, which assesses the risk of sexual reoffending at moderate to high, and general reoffending at high risk. It also specifies the risk to be managed to be substance abuse, increasing sexual preoccupation, reoccupation with pornography, sexual entitlement, lack of interpersonal intimacy skills, hostility towards women, and other factors. Exhibit JP2 includes an inmate profile, a conviction, sentence and appeals report, which the Court takes into account in dealing with the matters now before it. I have no doubt at this point in time on the material before the Court, at least assuming for present purposes that the matters alleged are proved, that the defendant's status is such that the preconditions of a statutory kind necessary for the making of an interim supervision order have been satisfied, and that the material that has been relied upon by the State of New South Wales would, again if proved, warrant the making of an extended supervision order. It is noteworthy that the defendant's sexual offending has escalated; the index offence was committed during the parole period, and I take that into account in dealing with whether or not the risk is unacceptable in the absence of amelioration by the conditions associated with an interim supervision order and/or extended supervision order. As earlier stated, the defendant does have convictions prior to the index offence. He has been convicted relevantly of a number of violent offences but in particular with indecent assault in 2012. The purpose of an order in relation to this Act is not punitive. The Court possesses a discretion not to make an order, even though there be an unacceptable risk, given a balance between the nature of the order and conditions that are prescribed, and the risk that may otherwise be disclosed. Nevertheless, bearing in mind that exercise, it seems on the material before the Court that it is appropriate for an order to issue. One other matter, I will make comment about, and that is that Pt D of the conditions relates to employment, finance and education. As I understand the attitude of the State of New South Wales, those conditions are not intended as a form of conscription. Rather, it emphasises the importance, in the rehabilitation process, of worthwhile and appropriate employment, and on that basis, that condition is not the subject of criticism by the Court, and can be a subject of conditions in the ISO that I now make. The Court will issue orders to the effect of an ISO on the defendant on the conditions handed up and marked for identification '1' in the proceedings."