State of New South Wales v Armstrong

State of New South Wales v Armstrong - [2015] NSWSC 1510 - NSWSC 2015 case summary — Zoe

Relevant statutory provisions

Before referring to any of the provisions of the Act that are relevant to this application it is appropriate to note that the Act is concerned with ensuring the safety and protection of the community as well as encouraging high risk sex offenders and violent offenders to undertake rehabilitation: s 3.
The State may apply for a continuing detention order against an offender: s 13A. An "offender" is defined in s 4 to mean a sex offender or a violent offender. The defendant is a "sex offender", as that term is defined in s 4, in that he is a person over the age of 18 who has been sentenced to imprisonment following his conviction of a serious sex offence. A "serious sex offence" is defined in s 5(1) to include an offence under Div 10 of Pt 3 of the Crimes Act 1900 (NSW) where the offence is punishable by imprisonment for 7 years or more. The defendant has been imprisoned for having committed an offence contrary to s 61M(2) (which is within Div 10 of Pt 3) for which the maximum penalty is imprisonment for 10 years.
An application for a continuing detention order may only be made in respect of a detained sex offender or a supervised sex offender: s 13B(1). The defendant is a "detained sex offender" because when the application was made he was in custody in a correctional centre while serving a sentence of imprisonment by way of full-time detention for a serious sex offence: s 13B(2)(a)(i). When the application was made by the filing of the originating process on 15 July 2015 the defendant was serving the balance of term of the sentence imposed for the s 61M(2) offence.
The application for the continuing detention order was not made more than 6 months before the end of the defendant's sentence: s 13B(3). As just mentioned, it was made on 15 July 2015 and the sentence expired on 27 August 2015. Accordingly, the application complied with the requirements of s 14.
The Court may determine the application by making an extended supervision order, making a continuing detention order, or dismissing the application: s 17(1). It is possible to make an extended supervision order at the same time as making a continuing detention order with the former commencing upon the expiration of the latter: s 25B.
An extended supervision order may be made if the defendant is a "high risk sex offender": s 5C(1). A continuing detention order may be made if the defendant is a "high risk sex offender" and the Court "is satisfied that adequate supervision will not be provided by an extended supervision order": s 5D(1).
To be characterised as a "high risk sex offender", the defendant must be "a sex offender" (which he is) and the Court must be "satisfied to a high degree of probability that [he] poses an unacceptable risk of committing a serious sex offence if he … is not kept under supervision": s 5B(2).
It is not necessary to determine that the risk of the defendant committing a serious sex offence is more likely than not in order to determine that he poses an unacceptable risk: s 5B(3). The risk may be less likely than not but still be unacceptable: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [16]. The test in s 5B(2) would be satisfied if there is a risk that the defendant will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made: ibid at [20]; State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [56]-[58]; State of New South Wales v Conway [2011] NSWSC 588 at [30]; State of New South Wales v KAS [2012] NSWSC 1139 at [6].
In State of New South Wales v Donovan [2015] NSWSC 1254, McCallum J considered in some detail the concept of "adequate supervision", noting that no attempt was made in the Act to define it. Her Honour concluded (at [56]): "Whether an extended supervision order will provide adequate supervision is an evaluative judgement to be undertaken by the Court according to the circumstances of the individual case and having regard to the objects stated in s 3 of the Act, giving primacy to the object stated in s 3(1) [i.e. ensuring the safety and protection of the community]."
The Court of Appeal agreed with that statement of principle: State of New South Wales v Donovan [2015] NSWCA 280 at [77]. Although that case involved consideration of s 5G(1) which was concerned with the making of continuing detention orders for high risk violent offenders, the terms of the provision are relevantly identical to those in s 5D(1).
The State maintains that a continuing detention order should be made for a period of 12 months with a subsequent extended supervision order for a period of 3 years. In the alternative, it contends that an extended supervision order for 5 years should be made.
In determining whether or not to make a continuing detention order and/or an extended supervision order the Court must have regard to certain matters: s 17(4). I will confine the following discussion to matters most pertinent to the determination of the State's application.

[6]

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".
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.
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".
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.
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.
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.
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.
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.

[7]

The index offence

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.
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.
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.
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".
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.

[13]

Dr Samson Roberts - 7 September 2015

Dr Roberts saw the defendant on 20 August 2015 and provided a report to the Court.
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.
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.
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."
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.
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."

[14]

Dr Andrew Ellis report - 13 September 2015

Dr Andrew Ellis examined the defendant on 7 September 2015 and prepared a report for the Court.
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.
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.
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'".
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.
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."
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.
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."

[15]

Risk Management Report

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.
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.
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.

[16]

Whether a continuing detention order warranted

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.
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.
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.
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.
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.
I propose to make the continuing detention order sought by the State.

[17]

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

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.
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.
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.
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.
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).
I propose to make an extended supervision order for a period of 3 years.
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.

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (6)

Cited By (2)