State of New South Wales v Armstrong

General background

1. The defendant was born in Auburn in 1991. He is now aged 24. He has an older brother. His parents separated when he was 5 years' old. He had little to do with his father until contact was resumed in 2012. His upbringing was marked by frequent relocation to various places in New South Wales and Queensland. This necessitated attendance at a variety of schools and must have made it difficult for him to form enduring friendships. His academic performance was relatively poor but he was good at sports.
2. The defendant's maternal grandmother died when he was 7 years old and his mother died some 4 years later. Various foster placements were made from that time until he was 16. Thereafter he lived either with relatives or in hostels. He has maintained contact with some of his foster parents. He lived with his father for a period in 2014. He has no friends whom he can rely on but has an uncle who lives in Lismore with whom he is close. He has had some employment of relatively short duration (the longest when he worked in a bakery for three months) and has no vocational qualifications.
3. The defendant has been in a number of heterosexual intimate relationships but they were relatively short-term; each a matter of months.

Queensland offences

1. On 25 March 2011 (at the age of 20) the defendant was convicted in the Charleville District Court of the following offences: Offence Criminal Code Act 1899 (QLD) provision
2. 26 October 2007 - 1 January 2008: indecent treatment of child under 16 years, where child under 12 years s 210(1)(a), (3)
3. 31 October 2009 - 26 December 2009: indecent treatment of child under 16 (exposure to indecent material), where child under 12 years s 210(1)(e), (3)
4. On or about 12 March 2010: attempted indecent treatment of child under 16 (procure to commit indecent act), where child under 12 years s 210(1)(b), (3) & s 535
5. On or about 12 March 2010: indecent treatment of child under 16 (exposure to indecent material), where child under 12 years s 210(1)(e), (3)

1. The victim of offence 1 was an eight year old boy. He was staying at a youth community hostel with the defendant. On the evening of the offence (sometime between October 2007 and January 2008) the victim slept in the defendant's bed while two other boys slept on the floor. The victim alleged the defendant put his hands in the victim's shorts and masturbated his penis. The victim woke up but reportedly said that "he was too tired and simply went back to sleep".
2. Offence 2 was committed against the same victim, sometime in late 2009. The victim and the defendant were staying at a hostel. The defendant gave the victim a number of pornographic magazines to look at. The victim alleged that the defendant then exposed himself and masturbated. The defendant admitted to showing the pornographic material to the victim but denied exposing himself and masturbating in front of the victim. He was only sentenced for the former conduct.
3. Offence 3 occurred on or about 12 March 2010 and involved the defendant sending the following text message to the victim: "Don't tell J … but I'll give you 20 bucks on Monday if you send me a pic of yourself naked. Please go to the bathroom and do it now?" The victim did not comply and showed the message to J (a person with whom the defendant was staying). The defendant admitted sending the text, "for a bit of fun".
4. Offence 4 occurred around the same time and involved the defendant sending a pornographic image of a naked female to the victim. The defendant acknowledged sending this picture.
5. These offences occurred in a period when the defendant was aged 16 to 19. He was in custody from 15 March 2010 until he was sentenced. For the first offence, a term of imprisonment of 376 days was backdated, having the effect that it expired on the date of imposition. He was placed on probation for two years in respect of the other offences. Conditions of the probation included that he undertake any psychological or psychiatric assessment or treatment, and undergo any course to address any tendency to reoffend, as directed by his supervising probation officer.
6. Records from Queensland Corrective Services indicate the defendant's compliance with the supervision requirements of his probation was poor. He had to be directed to attend medical, psychiatric and psychological assessments and interventions. There is evidence that he failed to attend appointments and failed to report changes of address within the nominated timeframes.
7. On 28 February 2012, the defendant was convicted in the Brisbane Magistrates Court of three counts of failing to comply with reporting conditions (on 17 November 2011) pursuant to the Child Protection (Offender Reporting) Act 2004 (Qld). The defendant failed to notify the relevant authority within the required timeframe that he had a new mobile phone number, internet access and a Facebook account. He was fined $1,000.
8. On 29 August 2012, the defendant was again convicted in the Brisbane Magistrates Court of an offence of failing to comply with reporting conditions (he did not notify police that he had a new mobile phone number, a Skype account and an email address) and was fined $750.

The index offence

1. Meanwhile, an investigation had been commenced in New South Wales in January 2012 in relation to the then recent disclosure of offences committed by the defendant on or about 3 October 2009 when he was aged 18. A warrant for his arrest was issued from the Ballina Local Court on 15 August 2012 and it was executed on the last occasion the defendant was before the Brisbane Magistrates Court, 29 August 2012.
2. The victim was a five year old girl who was at her grandparents' home at the time of the offence. The defendant, a relative of the victim (although they had not previously met), was also staying at the grandparents' home. The victim and defendant were alone in a room watching TV when the defendant asked the victim to remove her underwear. When she did, he snatched it and put it in his pocket. He is then alleged to have digitally penetrated her vagina.
3. In the remarks on sentence the victim was said to remember the defendant "touching her 'rude part'" which she identified as her genitals by pointing to a diagram. "She was asked how he touched her and she said he went around in circles. She said he was circling her vagina with his finger". The defendant then asked the victim to kiss him on the lips. She refused but eventually kissed him on the cheek.
4. The sentencing judge referred to a psychological report that was tendered before him. It included that the defendant had experienced sexual thoughts of sleeping next to and kissing and touching girls and boys aged between 5 and 12. The defendant described his situation as simply being lonely and emotionally needy at the time. The psychologist, Ms Rima Nasr, had assessed his intellectual functioning in the bottom eight per cent for the defendant's age range; although he did not have an intellectual disability. She found that he posed a "moderate risk of re-offence" and said that "it is possible that he will turn to sexual behaviour as a means of emotional coping in the future associated with aforementioned risk factors such as loneliness".
5. Upon his plea of guilty to the alternative charge of indecent assault victim under the age of 10 years, contrary to s 61M(2) the defendant was sentenced to imprisonment for 3 years with a non-parole period of 18 months, backdated to 28 August 2012. The judge found that there were special circumstances warranting a reduction of the proportion of the sentence represented by the non-parole period, including the defendant's need for treatment and supervision.

Subsequent offending

1. On 27 February 2014 the defendant was released on parole to reside at the Nunyara Community Offender Support Program ("COSP") centre. The case notes indicate that there was conflict between the defendant and other residents. There is also evidence that he had difficulties with budgeting, accommodation searches and meeting his schedule.
2. On 20 May 2014 the defendant was charged with failing to comply with reporting obligations pursuant to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW). He had failed to report to police details of a new mobile phone and numerous social media sites he was actively using. He lied to police about the length of time he had been in possession of a new phone.
3. It emerged that the defendant had the phone for over two months and had used it to talk with children of both sexes around the world. These included a 9 or 10 year old girl in the Philippines who he had referred to as "beautiful princess" and "sweet angel". He told police that this behaviour was alright; he did not class it as "grooming". Images of young females, both clothed and naked, were found on his phone, as was evidence that he had sent images of his penis to males he had befriended (he claimed that the recipients were all over the age of 18). His search history showed that he had attempted to access child pornography (but there is no evidence that he was successful).
4. On 9 July 2014 the defendant was convicted of this offence and was sentenced to imprisonment for 11 months, with a non-parole period of 5 months, dating from 20 May 2014.
5. The State Parole Authority revoked the defendant's parole and he was required to serve the balance of his sentence for the aggravated indecent assault offence until 27 August 2015.

Involvement in treatment or rehabilitation programs

1. The defendant completed a program preparatory to participation in the Medium Intensity Sexual Offender Program conducted by Queensland Corrective Services. He was directed to commence the substantive program on 14 February 2012 but failed to attend and was excluded from it.
2. On 2 October 2014 he signed a form to indicate his consent for referral to the Custody Based Intensive Treatment ("CUBIT") program. However, after having been offered a place, he declined to participate because he felt that he would get more help and support from the community, in particular from one of his former foster mothers who worked in a neighbourhood centre. He later indicated that he was prepared to participate in community-based sex offender programs in order to prove that he is not a risk of reoffending.
3. On 7 September 2015, while subject to the interim detention order, he consented to re-referral to Custody-based Sex Offender Programs and the following day accepted a CUBIT offer at the Metropolitan Special Programs Centre ("MSPC"). At the time of the final hearing, the defendant had been transferred to the MSPC and had commenced in CUBIT. I was informed through his counsel that he had attended two sessions and was finding them of value.

Dr Elzbieta Kobylinska report - 28 May 2014

1. A Risk Assessment Report dated 28 May 2014 was prepared by Dr Elzbieta Kobylinska, Senior Clinical and Forensic Psychologist. Her source material included interviews with the defendant on 29 April and 5 May 2014 but her report was written after his parole had been revoked and he had returned to custody. She found that on an actuarial assessment (Static-99R) the defendant was in the high risk category relative to other male sexual offenders. She also found some dynamic risk factors that may elevate his risk of sexual re-offending.

Dr Gerald Chew report - 9 July 2014

1. The magistrate who sentenced the defendant on 9 July 2014 sought a psychiatric assessment which was carried out by Dr Gerald Chew. The defendant told Dr Chew that he was bisexual and had had "bad relationships" with both male and female adults. He denied having a sexual interest in children although he did admit the offences appearing on his record. Dr Chew found that the defendant was suffering from mild symptoms of depression and anxiety.

Ms Narcisa Sutton report - 12 May 2015

1. A Risk Assessment Report dated 12 May 2015 was prepared by Ms Narcisa Sutton, Senior Psychologist in anticipation of the current application. It was noted that the defendant's compliance with supervision when on probation in Queensland had been poor. His response to supervision on parole in NSW in 2014 was said to be "challenging to a lesser extent" and he had "presented some management difficulties for the staff at Nunyara COSP".
2. The defendant professed that he had a low sex drive and, accepting this, the author suggested that antilibidinal medication was not required. Concern was expressed, however, with the defendant's rejection of opportunities to participate in sex offender treatment programs both in Queensland and NSW. He told Ms Sutton that he had no sexual interest in children and he did not need treatment "except to prove to people that I am not a risk".
3. A Static-99R actuarial assessment on this occasion affirmed the finding by Dr Kobylinska of the defendant being in the high risk category relative to other male sex offenders. (The various limitations of this assessment are noted.) Dynamic risk factors evaluated with the Risk of Sexual Violence Protocol are discussed in detail in the report; the conclusion was that the defendant's "high risk score in the Static-99R is likely to be an accurate reflection of his risk of sexual re-offending in a similar manner to his earlier offences".
4. Among the conclusions and recommendations in this report it is said that the defendant should be encouraged to participate in CUBIT if a continuing detention order is made and if an extended supervision order is made he should be directed to participate in the Community Sex Offenders Program. If neither order is made, the author expressed concern that he is "likely to return to the high risk behaviours associated with his offending".

Dr Samson Roberts - 7 September 2015

1. Dr Roberts saw the defendant on 20 August 2015 and provided a report to the Court.
2. The defendant initially told Dr Roberts that he could not remember committing the first of the Queensland offences but after further questioning he described the encounter as involving "mutual touching". He also claimed to be unable to recall committing the index offence but then acknowledged having touched the child's genitals. He denied being aroused by this contact.
3. In relation to his offending conduct in general, the defendant expressed a desire to "fix it". He acknowledged that his behaviour has had a significant impact upon his life and the lives of others. Later in the report, however, it is recorded that the defendant "stated his opinion that he is not a risk to anyone in the community". He also told Dr Roberts that "he does not see the need for it", namely antilibidinal treatment.
4. Dr Roberts' report raises questions about the reliability of history provided by the defendant in relation to his sexual interests, his offending and the risk of further offending. For example, the doctor wrote: "He reported engaging in no sexual fantasies whatsoever, nor engaging in any masturbation. The description of an absence of sexual interest or outlet in a person of Mr Armstrong's age would be considered so unusual as to be implausible. His statement that he has no sexual interest in children is equally implausible having regard for the nature of his offending behaviour."
5. Dr Roberts diagnosed the offender with agoraphobia and panic disorder. He also supported a finding of paedophilia in light of the defendant's sexual attraction for children.
6. According to Dr Roberts the defendant does pose a risk of committing a further serious sex offence. He made the following observations: "[The defendant's] reluctance or inability to discuss his sexual offending compromises the support that could be provided to adequately manage his risk in the community. His compromised cognitive functioning is considered to represent a factor undermining his insight into the nature and extent of his risk of reoffending, thereby limiting his motivation to put in place factors that could potentially be construed as protective. His cognitive compromise is also expected to impede his ability to engage in normative, platonic and sexual relationships, thereby reducing his access to appropriate social and sexual outlets. In the absence of a therapeutic program specifically tailored to Mr Armstrong's individual needs or the implementation of a pharmacological approach, ideally antilibidinal therapy in conjunction with a psychological treatment approach, it is not expected that his risk will change in the foreseeable future."

Dr Andrew Ellis report - 13 September 2015

1. Dr Andrew Ellis examined the defendant on 7 September 2015 and prepared a report for the Court.
2. Dr Ellis noted the defendant's psychosexual history which includes his account of his first sexual experience being the first of the Queensland offences which was committed against the eight year old boy. He was unable to say whether he was sexually excited by this experience. He described his behaviour in relation to third and fourth Queensland offences as "disgusting" and said that he does not know why he behaved the way that he did.
3. The defendant told Dr Ellis he was confused about his sexual attraction; he "feels that he may be attracted to children but has difficulty articulating or being fully aware of it". He also said that he would be interested in both psychological and medical treatment because he does not wish to engage in this type of activity again.
4. In relation to the 2014 breach offences, the defendant told Dr Ellis that he forgot to report that he had a mobile phone and did not intend to be deceptive. He said that he looked up images of teenage sex on the internet because he "was confused about his sexual arousal at the time and he wanted to 'watch something different'".
5. Dr Ellis diagnosed the defendant with a paraphilic disorder (paedophilia) characterised by an attraction to boys and girls. This orientation is not exclusive; he is also attracted to adult females. Dr Ellis also found that the defendant meets criteria for a diagnosis of avoidant personality disorder, consistent with his background of significant loss and neglect in his formative years.
6. Dr Ellis made the following observations about the defendant's risk of re-offending: "[The defendant's] offence history indicates this pattern of arousal with repeated sexual advances or actions towards minors, and his internet searches and activity indicate a sexual interest in children of both genders. Offending continued in a chronic pattern. His description of 'confused' sexual expression and interest most likely indicates arousal directed at children which he either has limited awareness of or finds difficult to talk about. There is a direct nexus between his self-described 'confused' sexual fantasy and criminal action. Psychological coercion or 'grooming' was employed in order to gain access to the young victims. His pattern of offending has been present over years but did not escalate. Attraction to both genders of children is associated with higher risk than to girls alone."
7. Dr Ellis concluded that the defendant "is a risk [of] serious sexual offending that is statistically high in frequency and of a type with serious consequence". He found that this risk is "greater than a theoretical average offender" but that it could be reduced by specific treatment and supervision.
8. Dr Ellis expressed some scepticism about the value of custody-based cognitive-behavioural group treatment programs for sexual offending (such as CUBIT) as opposed to community-based programs. In this case, he considered that "the theoretical benefits of further incarceration in order to gain a theoretical benefit from psychological treatment would be outweighed by the potential greater gains in risk reduction in a structured community setting". Further risk reduction is likely if antilibidinal medication were used as part of treatment. The report continues: "A period in custody to establish antilibidinal treatment could be of benefit. This would likely require 3-6 months depending on the ability of Health and Corrections to coordinate the relevant examinations, investigations and early monitoring of this type of medication. If he completed a custodial based psychological program such as CUBIT before release, the recommendations for monitoring and risk management in the community would be unchanged."

Risk Management Report

1. A Risk Management Report by Ms Debbie Thomson, Community Corrections Officer, Extended Supervision Orders Team, dated 26 June 2015 sets out various and extensive strategies that could be deployed to manage the defendant's risk in the community. However, it also includes an almost equally extensive list of limitations of such strategies. They include that because the defendant denies or minimises his past child sexual assault offending, and has not completed any sex offender treatment program, he has limited insight (if any) into the risk factors relevant to his sexual offending and has no known self-management strategies to refrain from such offending.
2. Ms Ellen McCarroll, the Manager of the Metropolitan Extended Supervision Orders Team, reviewed Ms Thomson's report and, in essence, agreed with it. She supported the conclusion that any supervision order should contain conditions relating to non-association with certain persons; monitoring (including electronic) and reporting; the provision of schedules of movements in advance; accommodation and curfews; place and travel restrictions; engagement in a treatment program; and management of issues relating to employment, education and finance.
3. Ms McCarroll, nevertheless, expressed concern about the risk the defendant would pose despite these conditions. She was concerned about his preparedness and ability to comply with supervision having regard to his history of failure in compliance with such orders and his failure to engage with treatment programs and other measures to address his offending behaviour. She noted that electronic monitoring could not monitor his proximity to children in places approved as part of his schedule of movements and it would not assist in detecting any misuse of the internet or a mobile phone. And the provision of schedules of proposed movements would do little to mitigate risk, given the defendant has limited insight into situations he should avoid and triggers for his sexual offending.

Whether a continuing detention order warranted

1. Putting aside the statutory requirements for the moment, the advantage of making a continuing detention order is that it would provide the defendant with the opportunity to undertake and complete the CUBIT program. Ms Danielle Matsuo, State-wide Manager Programs, Corrective Services NSW, reported by way of affidavit that CUBIT requires 6 to 10 months to complete but that the defendant is anticipated to require nearer the 10 months because of his lower cognitive abilities. She confirmed that it would be possible to tailor the program to the defendant's specific capabilities.
2. I note the reservations of Dr Ellis (referred to above at [59]) but it is of note that Ms Matsuo states that a primary benefit of undergoing a therapeutic program in custody for the defendant, given that he has not participated in, let alone completed, any such program in the past, is that it provides a safe context for the practice and exercise of more pro-social attitudes and behaviours. It will also provide staff with the ability to monitor his progress and changes at all hours of every day and night.
3. Ms Matsuo directly addressed Dr Ellis' reservations about custodial versus community based treatment programs; in short, she indicated that the evidence at the present time is not entirely clear but there was some support for what Dr Ellis said.
4. The foregoing considerations are practical but they do not address the statutory question. The assessments of the experts are consistent in finding that there is a significant risk of the defendant committing further sexual offences if he is unsupervised. I am satisfied that such further sexual offences are likely to involve children and are likely to involve a "serious sex offence" as defined.
5. I am also satisfied that, at least in the short term, adequate supervision will not be provided under an extended supervision order. The reality is that the defendant is an untreated child sex offender whose past compliance with the requirements of conditional liberty and child protection obligations has been fairly poor. Being untreated means there can be no confidence that he has insight into the nature and extent of his own risk of further offending and he has no understanding of protective mechanisms that he might deploy to minimise the risk. The inconsistencies in the accounts he has given to the various authors of expert reports only heighten this concern.
6. I propose to make the continuing detention order sought by the State.

Whether to make an extended supervision order to follow a continuing detention order

1. During the course of the hearing there was discussion about the efficacy of making a continuing detention order and either deferring or declining to make any extended supervision order; leaving the latter for assessment afresh in about a year's time.
2. Dr Roberts expressed the view that it would be premature to make an extended supervision order to follow a continuing detention order because it is likely that much information will be derived from the defendant's participation in the CUBIT program that would be relevant to the question of subsequent supervision. This would extend to the question of whether an extended supervision order is justified at all and not just to the duration and conditions of any such order; although the doctor appeared doubtful that no supervision order would be made.
3. Dr Roberts' attention was invited to the defendant's recent change of mind about antilibidinal medication. The defendant now accepts that it could be efficacious but he wants more information so that he could make an informed choice. Dr Roberts agreed that it was reasonable for the defendant to want to have expert advice before making a decision about such treatment. That is a matter that would also have a bearing upon the nature of any subsequent extended supervision order.
4. Dr Ellis appeared to agree with Dr Roberts about the defendant's participation in CUBIT providing information relevant to the extended supervision order that the State seeks. However, he maintained that the risk management concerns following even apparent successful completion of the program would largely remain.
5. Having reflected on this issue since the hearing I have come to the view that an assessment should be made now upon the materials currently available. Counsel for the State persuaded me that there are too many practical difficulties involved in doing otherwise. The reduction of the period from the 5 years originally sought by the State to the 3 years now sought in prayer 4(b) of the amended summons is an appropriate reflection of hope that the defendant will be successful in his participation in CUBIT. Further, the Act makes provision for variation or revocation of orders in the light of subsequent events and that is an adequate provision to deal with any change in circumstances (s 13).
6. I propose to make an extended supervision order for a period of 3 years.
7. There was no dispute about the proposed conditions of such an order. I have reviewed them and consider that they are all necessary and appropriate.

Orders

1. I make the following orders: 1. The defendant is to be the subject of a continuing detention order pursuant to s 17(1)(b) for a period of 12 months from today. 2. The defendant is to be the subject of an extended supervision order pursuant to s 9(1)(a) for a period of 3 years commencing from the date the continuing detention order expires. During the currency of this order the defendant is to comply with the conditions set out in the schedule to the Amended Summons filed on 2 October 2015. 3. Permit the reports prepared by Dr Samson Roberts and Dr Andrew Ellis be provided to Corrective Services NSW, any agency involved in the defendant's supervision, and the defendant's treating clinician(s) or health care practitioner(s).

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 October 2015