State of New South Wales v Armstrong

The Interim Hearing and the Test to be Applied

1. In making an interim order against the defendant for either his continuing detention or his extended supervision the Court must be satisfied that further criterion have been met.
2. It is necessary that the evidence establishes that the defendant's current custody will expire prior to the final determination of the orders sought by the State, and that, if the matters alleged in the evidence relied upon by the State were proved, the Court would be justified in making a high risk sex offender continuing detention order or extended supervision order (ss. 18A, 10A).
3. There is no dispute that the defendant's current sentence is due to expire on 27 August 2015, and his release from custody would ordinarily take place on that date, that being well before the likely date of finalisation of the State's application. Whilst the defendant does not dispute (at this preliminary stage) that the evidence tendered by the State would, if proved, justify the making of an extended supervision order, he does dispute that it could justify the making of a continuing detention order.
4. It is that issue between the parties which the Court must resolve at this preliminary hearing of the matter. At the preliminary stage: 1. An interim supervision order can only be made if the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision; and 2. An interim detention order can only be made if the Court is satisfied that adequate supervision will not be provided by an interim extended supervision order.
5. The onus of proof to establish that an ISO will not provide adequate supervision of the defendant is on the plaintiff.
6. The interim test has been held to be akin to the test applied by a magistrate in determining whether there is a prima facie case to answer at committal proceedings: Attorney General (NSW) v Hayter [2007] NSWSC 983 at [6]; New South Wales v Manners [2008] NSWSC 1242 at [8]; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].
7. Satisfaction to a "high degree of probability" has been held to be a standard of proof higher than the civil standard but lower than the criminal standard: Attorney General for the State of NSW v Tillman [2007] NSWSC 605 at [27]; Attorney General for the State of NSW v Tillman [2007] NSWCA 119 at [5] and [18].
8. The Act provides no definition of what is meant by "an unacceptable risk" but, having regard to the object of the Act (s.3), the language used in s.5B(2), and the ordinary meaning of the words, the legislature must have intended the statutory test to be satisfied where the evidence establishes that there is a risk that the defendant will commit a serious sex offence which is sufficiently high that the making of an order is necessary to protect the community and ensure its safety: State of New South Wales v Thomas (Preliminary) op cit; State of New South Wales v Thomas (Final) [2011] NSWSC 308, both being decisions of R A Hulme J; as applied in State of New South Wales v Graeme Allan Reed (Preliminary) [2011] NSWSC 625; and Attorney General for New South Wales v McGuire [2015] NSWSC 152. The question is whether the safety and protection of the community cannot be ensured unless an order is made.
9. The test tentatively applied by R A Hulme J in Thomas (Preliminary) at [22], and subsequently applied in later decisions of this Court, is consistent with that applied in Western Australia in relation to comparable legislation, in Director of Public Prosecutions WA v Williams (2007) 176 A Crim R 110 (at [63]), and Director of Public Prosecutions WA v GTR (2008) 198 A Crim R 149, at [27].
10. In the former, Wheeler JA, with the agreement of Le Miere AJA, said, "In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention: Director of Public Prosecutions WA v Williams (2007) 176 A Crim R 110 (at [63])."
11. See also NSW v Richardson (No. 2) [2011] NSWSC 276, State of NSW v Cruse [2013] NSWSC 1733, and State of NSW v Fisk [2013] NSWSC 364, where the approach taken in Western Australia was considered with approval.
12. In considering whether an individual is a high risk sex offender the Court must have regard to those matters referred to in s.9(3) and s.17(4), together with any other matters it considers relevant.

The ss. 9(3) and 17(4) Considerations

1. The defendant is a relatively young man at age 24 years.

Criminal Convictions

1. He has a number of relevant criminal convictions.
2. The defendant was convicted of the index offence of Aggravated Indecent Assault in this State on 24 October 2013. The offence occurred on or about 3 October 2009 at the home of a relative of the defendant. The defendant was then aged 20 years; his victim was a five year old girl who was staying at the home at the time. The facts before the sentencing court were that, on an occasion when he was left alone with the victim, the defendant asked the girl to remove her underpants. When she did so the defendant snatched the underpants and put them in his pocket. He then touched the victim's vagina, rubbing her genitals in a circular motion. He asked the victim to kiss him on the lips, but she kissed him on the cheek.
3. The defendant has previously admitted the offence, and expressed remorse for it, and he was sentenced on that basis by Blanch J CJDC. More recently, to Narcisa Sutton, a senior psychologist with the Department of Corrective Services who saw the defendant on 24 April 2015, he denied the offence.
4. Having served the NPP of the sentence imposed upon him by Blanch J CJDC the defendant was released to parole on 28 February 2014. He thereafter breached parole, by failing to comply with reporting conditions, and was returned to custody on 20 May 2014 to serve the balance of parole.
5. The failure to report that led to the defendant being breached on parole was reflected by a specific charge of Fail to Comply with Reporting Obligations pursuant to s.17 of the Child Protection (Offenders Registration) Act 2000. The defendant received a sentence of 11 months imprisonment, served concurrently with the balance of parole. That sentence expired on 19 April 2015.
6. The defendant has further relevant convictions in Queensland.
7. On 25 March 2011 the defendant was convicted of four offences contrary to s.210 of the Criminal Code Act 1899 (Queensland). Three of the offences were for Indecent Treatment of a Child under 12 Years, whilst the fourth was for an attempt to commit such an offence.
8. All four offences were committed against the same boy, who was aged between 8 and 11 years at the time of the commission of the offences, between 2007 and 2010. The first offence reflecting an occasion in late 2007 or early 2008 when the boy was aged 8 years, occurred in a youth hostel where the defendant was staying. The defendant placed his hand inside the underwear of the boy, who was sleeping in the same room as the defendant, and fondled the boy's penis. When the same boy was aged 11 years the defendant showed him a number of pornographic magazines. In 2010 the defendant offered the boy money if he would send the defendant a picture of himself naked. The last offence involved the defendant sending the same boy a pornographic image of a naked female sexually posed.
9. Evidence of the commission of the last three offences was found on the defendant's mobile telephone.
10. With respect to the first offence the defendant was sentenced to a term of imprisonment for 376 days, that being the period he had spent in custody on remand from 15 March 2010 to the date of sentence, 23 March 2011. For the remaining counts the defendant was placed on a good behaviour bond for two years, with supervision. A condition of the bond was that the defendant undergo a course or courses directed to preventing a repeat of conduct of the nature of the charged offences.
11. The defendant is currently wanted in Queensland by warrant for failing to comply with reporting conditions in that State.

The Views of the Sentencing Courts

1. In Queensland, the sentencing judge referred to the defendant's conduct as persistent, but considered that the defendant would benefit from rehabilitative programmes, mandated by the good behaviour bond imposed. At that stage the defendant had expressed to the court his willingness to undergo treatment programmes, a willingness that has proved to be fleeting.
2. The defendant was not compliant with the supervision ordered by the court, referred to below.
3. In his Remarks on Sentence (ROS) of 24 October 2013 Blanch J CJDC noted that the defendant had acknowledged having sexual thoughts of sleeping with and touching and kissing girls and boys aged between five and twelve years. He concluded that the defendant was an individual with very limited connections in the community, who had chosen to seek affection amongst children, and to sexually abuse children in that context. His Honour noted the possibility that the defendant would in the future again turn to sexual contact with children as a means of coping with loneliness, and considered it essential that the defendant receive adequate treatment for his offending conduct. Blanch J CJDC expressed some doubt as to the defendant's capacity for rehabilitation.

Treatment and rehabilitation

1. To date the defendant has not undertaken any relevant treatment or rehabilitation programme. He remains completely untreated.
2. In Queensland the defendant completed a preparatory course precedent to an appropriate treatment programme (Getting Started: Preparatory Programme), but he did not continue on to undertake a suitable sex offending programme, the Medium Intensity Sexual Offenders Programme.
3. He was due to commence the latter programme on 14 February 2012 but did not attend as required and was thereafter excluded.
4. When incarcerated in this State, the defendant refused to undertake a treatment programme directed to his offending behaviour. He was offered a place in the custody based sex offender treatment programme ("CUBIT") at Junee, but refused it. He maintained this refusal even when made aware that participation in the programme would be advantageous to him when being considered for release to parole. More recently, the defendant has said that he would participate in a suitable community based programme, with the stated motivation of "proving" that he is not at risk of sexual re-offending.

Compliance with Parole and Supervision

1. The evidence before the Court establishes that the defendant has consistently failed to comply with obligations placed upon him as a condition of parole or other conditional liberty, or pursuant to sex offender registration.
2. In Queensland the defendant exhibited limited compliance with supervisory orders. Reports from Queensland Corrective Services (in particular those of 15 May 2012 and 31 July 2012) establish that the defendant failed to comply with directions to attend upon a psychologist for appropriate treatment, claiming falsely to have seen a psychologist when he had not. He failed to attend two sessions of the preparatory rehabilitation programme he later completed, despite directions to do so, and lied to supervising officers about the reason for his non-attendance on at least one occasion. As noted above, he failed to attend a rehabilitative programme as directed.
3. There were numerous other breaches in Queensland including failing to report a change of address, failing to attend meetings with the corrections authority, and failing to attend medical appointments. Of concern is evidence that establishes that, contrary to obligations upon him, the defendant obtained a mobile telephone with internet access, and set up an account with an internet social networking site, all without reporting these matters to the supervisory authority. His overall compliance in Queensland was regarded as highly unsatisfactory and his attempts to address his offending behaviour extremely limited.
4. The defendant was charged in Queensland with three counts of Failing to Comply with Reporting Conditions pursuant to s.50(1) of the Queensland Child Protection (Offender Reporting) Act 2004 and sentenced to pay a fine or, in lieu of payment, a term of 40 days imprisonment.
5. Another such conviction was recorded on 29 February 2012 and attracted a fine of $750. This offence related to the defendant obtaining a new telephone number, Skype account, and email address, without notifying police as required.
6. In this State, the defendant has exhibited a similar pattern of non-compliance with supervision and reporting orders.
7. On his release to parole in February 2014 the defendant took up accommodation at the Nunyara Community Support Offenders Programme but his placement there was problematic, with a number of rule breaches and conflict with other residents. He was unable to comply with rules as to budgeting and rent obligations, meeting his schedule, and attendance upon scheduled psychiatric appointments. His level of compliance was so poor that the defendant was advised that he would be excluded from the facility only one day before being arrested for breaching his parole.
8. The defendant displayed a similarly failure in relation to his obligations as a registered sex offender. In contravention of obligations imposed upon him the defendant obtained a mobile telephone which he did not register with the authorities. Also clandestinely, he set up a number of email addresses linked to social networking sites such a Facebook, Kik, Skype, Talk, and Omegle (amongst others). Although the defendant had taken steps to disguise his internet access by deleting his history, evidence was found that established that the defendant had been in communication with children using the internet. He had also undertaken internet searches for things such as "small teen boys fucking" and "nude toddlers at the beach".
9. Found on the defendant's telephone were images of children both clothed and naked, and evidence of "chats" with children the defendant had "friended" on Facebook. The defendant had created a deceptive persona for Facebook, representing himself as male from the United States who was involved in the music industry. The voicemail greeting used by the defendant on his telephone used an American accent and an assumed name. The defendant was using ten different social networking applications and had been actively communicating with children all over the world. He regularly cleared his message history, making detection and monitoring of his activities difficult.
10. As noted above, these breaches led to the defendant being charged and convicted for failing to comply with his reporting obligations. He served an 11 month sentence.

Relevant Reports

1. In evidence are both risk assessment reports and a risk management report.
2. The defendant was interviewed by Ms. Sutton on 24 April 2015 for the purpose of risk assessment. Ms. Sutton's report of 12 May 2015 forms part of the evidence tendered by the State.
3. Having administered standard and well accepted risk assessment tools Ms. Sutton concluded that the defendant posed a high risk of sexual recidivism relative to other male sex offenders.
4. Risk factors relevant to the defendant identified by Ms. Sutton using the Static 99-R test are the defendant's continuing sexual interest in children, his lack of appropriate intimate and social connections, and his transient and unstructured lifestyle. The mild anxiety and depression from which he suffers may also contribute to risk.
5. Another tool, the Risk of Sexual Violence Protocol, revealed similar risk factors, including the defendant's sexual interest in children and his lonely and disconnected lifestyle. Significantly, the defendant 1. has a deviant sexual history which - in the context of his relative youth - is persistent, having continued since the defendant was aged 16 years; 2. has offended against both a male and a female child; 3. has limited cognitive resources and limited insight; 4. has few social and community supports; 5. has limited social skills; 6. has a pattern of behaviour demonstrative of sexual deviance; and 7. has a history of resistance to supervision.
6. All of these factors elevate the risk posed by the defendant of further sexual offending.
7. Ms. Sutton considered that there is a chronic risk of the defendant engaging in opportunistic offending if unsupervised.
8. An earlier risk assessment, by Dr. Elizbieta Kobylinska dated 28 May 2014, yielded results similar to those obtained by Ms. Sutton.
9. Debbie Thomson prepared a risk management report relevant to the defendant on 26 June 2015. Ms. Thomson is a Community Corrections officer.
10. Taking into account the risks identified by Ms. Sutton, Ms. Thomson considered the efficacy of a supervisory regime in the community. She considered that any such regime should include regular interviews with the defendant, both with notice and without; monitoring of the defendant's level of sexual preoccupation; regular unannounced field visits incorporating searches of the defendant's accommodation and any electronic devices to which he has access; electric monitoring; schedules of activities; curfews; restrictions on association (including a prohibition on contact with children) and travel; and restrictions on internet access and use.
11. In the absence of completion of CUBIT by the defendant, Ms. Thomson expressed concern that the defendant is no better placed currently than he was upon release to parole in 2014 to manage the requirements of supervised community living. The accommodation which is available to him is a further placement at Nunyara, that being the facility at which the defendant was accommodated in 2014. His failure to comply with the requirements of residence at Nunyara in 2014 is noted by Ms. Thomson, with some pessimism as to his present capacity to do better.
12. That pessimism is exacerbated by the defendant's limited insight. "[The defendant's] denial and minimisation of his offending, coupled with his failure to complete any sex offender treatment programs raise concern for the capacity of Community Corrections to effectively manage his risk factors in the community. While the above strategies could address ongoing compliance in relation to reporting to Community Corrections and any service providers put in place, he has limited insight into the risk factors to his sexual offending and subsequently no known self management strategies to refrain from further offending, making it difficult to mitigate risk." (p.3 of 26 June 2015 report)

Other Information

1. The defendant has limited intellectual ability. Although there is some suggestion in the evidence that he may have an intellectual disability, formal cognitive assessment undertaken to date has placed the defendant in the low average range of intellectual ability. His intellectual limitations adversely affect his capacity for insight into his offending conduct.

The Safety of the Community

1. Although the first of the considerations mandated by ss. 9(3) and 17(4) of the Act is the safety of the community, it is convenient to address this consideration last.
2. The evidence before the Court establishes that the defendant presents an ongoing risk to the safety of the community and, in particular, to children.
3. The clearest evidence of this is the defendant's previous response to supervision and, particularly, his failure to comply with parole in 2014 and the associated breaches of the obligations imposed upon him by his registration as a child sex offender.
4. The defendant's access to and use of an undeclared telephone to establish a false identity and numerous accounts with social networking applications, and the use of these applications to contact and engage with children, evidences a risk to the safety of the community.
5. That risk is elevated by the deceptive nature of the defendant's conduct in this regard and the steps deliberately taken by him to minimise the prospect of his internet usage being discovered by those supervising him.

Determination

1. The question to be decided in the present matter is whether or not the Court is satisfied to a high degree of probability that an (interim) extended supervision order will not provide adequate supervision of the defendant, such that the likelihood of the defendant committing a further serious sex offence is obviated.
2. The plaintiff submits that, in light of the defendant's history of non-compliance with supervisory orders, and taking into account the risk factors identified by Ms. Sutton, there is no supervisory regime that can adequately ameliorate the risk presently posed by the defendant to the community.
3. The defendant submits that, whilst his history would be of concern to the Court, it does demonstrate some improvement over time in response to supervision, and it should not be assumed that the defendant would not comply with the significantly more rigorous supervisory programme provided by an extended supervision order.
4. The premise for determining the State's preliminary application for an IDO is the object of the Act. "s.3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation."
5. Whilst the Act provides for the rehabilitation of high risk offenders, the primary object of the legislation is to protect the community. That is, the interests of the individual in having his or her freedom and liberty are subordinated to the interests of the community to be protected from high risk offenders. Where there is a contest between the rights of the individual and the rights of the community, it is the latter which must triumph.
6. Here, it is clearly in the defendant's interests to have his freedom. At the expiration later this month of the sentence imposed upon him for the index offence, the defendant would ordinarily be entitled to his liberty. It is no small thing to contemplate denying him that liberty.
7. However, it is the clear intention of the legislature that, where an offender poses an unacceptable risk to the community, and the only means of adequately protecting the community from that risk is to detain the offender beyond the term of his or her sentence, the Court will order that detention.
8. Having considered all of the evidence tendered by the State, I consider that the burden placed upon the plaintiff to establish that the defendant poses an unacceptable risk to the community at this preliminary stage, has been discharged.
9. The overwhelming weight of the evidence is that the defendant continues in experiencing a strong sexual attraction to children, and he lacks both the cognitive capacity and the capacity to regulate his conduct or accept its regulation by others, that would prevent him from acting upon his sexual deviancy. Of particular relevance is the refusal of the defendant to undertake an appropriate rehabilitative programme whilst in custody, and the many and blatant breaches of his obligations when previously supervised in the community in both this State and in Queensland. Whilst it is impossible to quantify the risk posed of the commission of further sexual offences by the defendant, even if that risk is a low one it must be unacceptable, having regard to the terrible consequences of such criminal conduct. Having said that, in my view the evidence relevant to the defendant establishes that the risk is a high one.
10. Even the stringent supervision that would inevitably flow from the making of an interim extended supervision order is not adequate on the evidence to supervise the defendant such that the risk to the community is properly ameliorated. The defendant has demonstrated his disregard for the requirements of supervision, and the energy and planning he has been prepared to devote in the past to evading and defeating such supervision has been significant. There is no reason on the evidence to think that the defendant would conduct himself any differently if released to the community with the supervision provided by an ISO than he did when released to the community with the supervision of a parole order, and subject to the oversight consequent upon his status as a registered sex offender.
11. Consistent with the primary object of the Act, the protection of the community must take priority over the defendant's interests in achieving his liberty, since that liberty comes at too high a price to the community in my judgment.
12. Accordingly, I propose to grant prayers 1 and 2 of the plaintiff's summons.

Orders

1. The orders that I make are these: 1. Pursuant to s.15(4) of the Crimes (High Risk Offenders) Act 2006 1. The Court appoints Dr. Samson Roberts and Dr. Anthony Samuels to conduct separate examinations of the defendant, and to furnish to the Court reports on the results of those examinations by 14 September 2015; and 2. The defendant is directed to attend the examinations as appointed with each of the doctors referred to in order 1(a). 1. Pursuant to s.18A of the Act the defendant is subject to an interim detention order to date from 27 August 2015 for a period of 28 days. 2. Pursuant to s.20(1) of the Act a warrant is to issue for the commitment of the defendant to a correctional centre for the duration of order 2. 3. The matter is listed before the Common Law Registrar at 9am on 17 August 2015 to fix a timetable for the final hearing of the matter, together with orders for the filing and service of further evidence and any written submissions upon which the parties respectively seek to rely.

Amendments 20 August 2015 - corrected case name in coversheet 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: 20 August 2015