State of New South Wales v Armstrong

The defendant's personal circumstances

1. The defendant is 33 years old. He was born in Sydney and has one sibling, an older brother. Aspects of the defendant's background were summarised in a risk assessment report dated 3 October 2023 by Holly Cieplucha, who is a senior psychologist with the Serious Offenders Assessment Unit of Corrective Services NSW: "[The defendant's] formative years were reportedly characterised by significant grief, loss, neglect and instability … his parents separated when he was around the age of five. He remained in the care of his mother, having little contact with his father until he was in his early twenties. [The defendant's] grandmother passed away when he was around the age of seven and his mother when he was around the age of eleven, resulting in he and his brother being taken into foster care. [The defendant] reportedly displayed a range of behavioural problems, including increased impulsivity, aggression and poor emotional regulation and acknowledged being a 'difficult child to control, as he seldom followed instructions and was resistant to authority, structure and routine' [Psychologist Report, R Nasr, Clinical and Forensic Psychologist, LSC Psychology, 10/09/2013]. As such, he was repeatedly shifted from carer to carer and it is understood that [the defendant] and his brother were placed in at least six different foster homes, varying in duration from six months to two years, before he turned 16. [The defendant] has maintained contact with several of his former foster parents including his foster mother in Queensland with whom he resided for over 12 months shortly after his mother's passing and a former foster father ... It is understood that [he] was temporarily placed in the care of his biological father around the age of 13, however this ended after approximately six months because of his father's neglect. From around the age of 16 years, [the defendant] experienced housing instability, living either with relatives or in youth hostels. [The defendant] experienced significant disruption during his school years due to frequent movement between caregivers in childhood and early adolescence. He experienced learning and behavioural difficulties and struggled academically. [He] had difficulty forming lasting friendships and was bullied regularly at school. He was suspended on multiple occasions for fighting. [He] left school after completing Year 11. [The defendant] has limited employment history, having held only short-term jobs since leaving school. His longest role appears to have been in a bakery where he worked for approximately three months when he was around the age of 16 years … his last employment [was] in a Meatworks in Queensland in 2007. He [was] approved for the Disability Support Pension in 2021."

The defendant's criminal offending

1. The defendant's first entry in a criminal record was in Queensland in February 2009, for a minor property matter committed when he was 18, for which a conviction was not recorded.
2. In Charleville District Court, on 25 March 2011, he was convicted of three counts of indecent treatment of a child under 16, namely a child under 12, and an attempted indecent treatment of a child under 16, namely a child under 12. The offences were committed between 26 October 2007 and 12 March 2010, when the defendant was aged between 16 and 18. The first count involved masturbating a boy aged 8, the second involved the defendant showing pornographic magazines to the same boy when he was aged 10, and the third and fourth counts involved him requesting the same boy to send him a picture of himself naked and, minutes later, sending the boy a pornographic image. He was sentenced to a period of imprisonment which was the time already served; 376 days since 15 March 2010, and to probation for a period of 2 years.
3. In 2011, the defendant was made subject to obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (the CPOR Act) and placed on the NSW Child Protection Register (which will continue until 2035).
4. On 17 November 2011, the defendant committed three counts of failing to comply with his probation order reporting obligations, for which he was fined $1,000 in Brisbane Magistrates Court on 28 February 2012. He had failed to notify police that he had obtained a new mobile phone number and Facebook profile.
5. On 29 August 2012, he was convicted and fined for a further breach of his probation order reporting obligations, committed between 1 April and 15 July 2012.
6. On 24 October 2013, the defendant pleaded guilty in Lismore District Court to a count of indecent assault of a child under 10 (committed on 3 October 2009, when he was aged 18). The offence involved him sexually touching a five-year-old girl while he was staying overnight with her extended family in their home. The complainant reported the crime in 2012. The defendant was sentenced to imprisonment for 3 years, backdated to commence on 28 August 2012 and thus expire on 27 August 2015, with a non-parole period of 18 months to expire on 27 February 2014.
7. On 27 February 2014, the defendant was released to parole and commenced residing at Nunyara Community Offender Support Program (Nunyara COSP). He was returned to custody on 20 May 2014, when he was charged with failing to comply with his reporting obligations under the CPOR Act. Police inspected the defendant's phone, which he had had in his possession for two months but had not disclosed in accordance with his reporting obligations. He had nine different social networking applications on which he had engaged in online chats with male and female children aged under 18 in various parts of the world, including a Filipino female aged 9 who he texted in terms that suggested he was grooming her. The phone contained photos of naked females of uncertain age (over or under 18) and the defendant admitted sending nude photos of himself to males whom he claimed were over 18. Searches on the phone included the search terms concerning children engaging in sexual acts. On 9 July 2014, he was sentenced to 11 months' imprisonment with a non-parole period of 5 months, backdated to commence on 20 May 2014. He was not released to parole. A Child Protection Prohibition Order (Prohibition Order) was made, pursuant to the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) (CPOP Act) for a period of three years, which expired on 9 July 2017.
8. The defendant's parole for the sentence imposed on 24 October 2013 was revoked, and he was required to serve the balance of his sentence, which expired on 27 August 2015. In July 2015, the plaintiff sought a continuing detention order (CDO) and a subsequent ESO. An interim detention order (IDO) was made on 10 August 2015, to commence on 28 August 2015. On 14 October 2015, R A Hulme J made a CDO for 12 months to date from that date, and to be followed by an ESO for a period of 3 years.

The defendant's progress under the ESO

1. On 13 October 2016, the defendant was released from prison, subject to the ESO. Since then, he has repeatedly been convicted of breaches of its conditions, resulting in his re-entering custody six times since its commencement and the subsequent suspension of the ESO each time, pursuant to s 10(2) of the Act.
2. On 21 March 2017, police searched the defendant's phone and found that he had installed a networking application and that his Google account had been accessed from devices other than his registered phone. His bank account also revealed two payments to a site called 'Chatses.com', which the defendant denied knowing anything about. He also admitted to joining the networking service 'Grindr'. He was charged with, and subsequently convicted of, two counts of fail to comply with conditions of the ESO and sentenced to concurrent terms of 6 months and 22 days imprisonment, to date from 31 March 2017.
3. On 13 December 2017, a search of the defendant's phone revealed contact by text with a former cellmate and with that cellmate's ex-partner, who were the parents of a seven-month-old baby boy, and texts to another person hoping to talk via a messaging app. The phone also had a file-sharing app and the app 'Gumtree' installed. The defendant was arrested, charged and convicted. On 26 April 2018, he was sentenced to an aggregate sentence of 2 years imprisonment commencing 13 December 2017, with a non-parole period of 18 months.
4. On 12 June 2019, the defendant was released and issued with a direction not to use internet chat rooms or dating sites. A search of his phone on 20 September 2019 revealed that there had been internet searches for, and subsequently deleted repeated downloads of, five social networking sites which had the ability to use webcam interaction and/or image sharing. A storage platform had also been downloaded. A record of 247 deleted images was also found, which the defendant claimed were mostly nude images of himself that he had sent on social media apps. He said that he believed the people he had been chatting with were aged 18. A record of four deleted video files was also found, which the defendant said were of him, or the person he was chatting with, naked. On 20 September 2019, the defendant was charged with further breaches of his ESO. Police also located search terms and files with names that were suggestive of sexual activity, including intercourse, with children. Two apps that can operate to perform deletions of internet history had been installed on his phone. The defendant said he used one of them to search for images of scantily clad men. He was charged with three counts of breach of his ESO. On 25 September 2019, he was separately sentenced for each count, receiving an overall sentence of 2 years and 9 months, with a non-parole period of 1 year 9 months, commencing on the date of sentence, so that his earliest parole date was 19 June 2021.
5. On 18 March 2022, at which time the defendant was residing in a boarding house, his phone was searched, which led to him being charged with 15 breaches of his ESO. He admitted to the use of a particular chatroom app, which involved communications with over a hundred people in the previous 16 days. Nine other social networking apps, one with a name suggesting its purpose was to connect with teens, were identified. He had also downloaded private browsers which did not record search histories. Between 19 February 2022 and 11 March 2022, he downloaded and then uninstalled one of these browsers nine times. A large number of incoming and outgoing phone calls, totalling 180, had been deleted. For twelve of the counts, the defendant was sentenced to an aggregate term of 6 months imprisonment to date from 13 June 2022. For the remaining three counts, he was placed on a Community Corrections Order (CCO) for 18 months, commencing on 13 July 2022 and expiring on 12 January 2024. These breaches also led to breaches of his parole for the sentences imposed in respect of his previous ESO breaches.
6. The defendant was released at the expiry of his sentence on 12 December 2022. On 20 December 2022, he was issued with a direction not to access any form of social media. On 30 September 2023, the defendant's phone was searched and a social networking (roleplay) app was found to have been installed, with two user profiles created. A review of chats on the app revealed that the defendant had allegedly been engaged in several chats with boys who purported to be 16 and 17 years old. The defendant had asked each of these profiles if they wanted to be his boyfriend and had engaged in "sexualised roleplay conversation". He was charged with three counts of failing to comply with his ESO. He pleaded guilty to one, with the other two taken into account on a Form 1. He was sentenced on 21 February 2024 to 12 months imprisonment, backdated to commence on 6 October 2023, with a non-parole period of 6 months, ending on 5 April 2024, when he was released to parole.
7. On 14 July 2024, the defendant was arrested and refused bail for two further alleged breaches, for making further text message contact with two pizza delivery boys (with whom he was hoping to meet up), one aged 15 and one aged 17, who had delivered pizzas to him. These are the offences for which he is presently serving a custodial sentence, for which he will be eligible for parole on 13 October 2024.

The defendant's mental health and mental condition

1. The parties have agreed to the following summary concerning the defendant's mental health and mental condition. He has been treated with anti-anxiety medication since 2012, and in 2014 was described as having mild depressive symptoms. In 2015, he was diagnosed with agoraphobia, panic disorder and avoidant personality disorder.
2. During the course of the ESO, the defendant has struggled with anxiety and depression, with repeated presentations to hospital emergency departments with deteriorating mental health. He has reported both suicidal ideation and sometimes thoughts of harming others.
3. While in custody in 2018, the defendant reported experiencing auditory hallucinations for the first time. He received depot antipsychotic medication from July 2021. Following repeated presentations to the mental health unit at the Royal Prince Alfred Hospital in early 2022, his mental health was summarised as being a consequence of his "attention seeking / [dependent] personality".
4. However, in August 2023, following an inpatient admission to Cumberland Hospital with thoughts of harming others (including a roommate) and auditory hallucinations, the defendant was diagnosed as having chronic schizophrenia.
5. The defendant reported that the anti-psychotic depot medication he had been prescribed had an antilibidinal effect. In September 2023, he told Ms Cieplucha that he "had not been compliant" in taking his medication "for a couple of months", and Ms Cieplucha noted that was possibly linked to a reported increase in sexual preoccupation that she observed. Non-compliance with his medication was not reported by Dr Kerri Eagle, forensic psychiatrist, when she assessed him on his discharge from the Treatment and Rehabilitation Clinic (TRC) in June 2024.
6. Dr Eagle expressed the following opinions: (a) That the defendant's diagnostic formulation was "Schizophrenia, Borderline personality traits/disorder, paedophilia, non-exclusive type; substance use disorder, in remission under supervision". (b) That the defendant was at "risk of self harm/suicide particularly in the context of deterioration in mood, mental state and/or changes in treatment." (c) That the defendant have his mental health treatment reviewed by Community Mental Health Services. (d) That the defendant did not require antilibidinal medication presently, and could "be referred back to the TRC for further consideration of biological treatment options for problem sexual thoughts, urges or behaviours if required in future"
7. The defendant was assessed by the Emergency Department at Prince of Wales Hospital, on 15 July 2024, after being taken into custody on 14 July 2024. He reported that he had not taken his medication for two days and was hearing voices in his head stating that he should kill himself. He was assessed by Dr Helena Angel-Scott, who concluded, after observation, that he did not appear to be a risk of harm to himself, and that his distress was as a result of his arrest and return to custody. Dr Angel-Scott noted that the defendant: "… remains at chronically elevated potential for serious harms relating to his risk of harm to others (most significantly), from misadventure and to himself."
8. On 25 July 2024, the defendant was reviewed by a mental health nurse in custody. He reported that he heard voices "all the time", "telling him to harm others" but denied that the voices told him to harm himself. He denied any thoughts, plans or intent to harm himself.

The defendant's sex offending treatment

1. In December 2011, the defendant completed a sex offender program conducted by Queensland Corrective Services, despite failing to attend multiple sessions. He was directed to commence the Medium Intensity Sexual Offender Program in 2012 but failed to attend and was subsequently excluded from it.
2. While in custody subject to the CDO in NSW, the defendant completed the High Intensity Sex Offender Program (HISOP), then known as the Custody Based Intensive Treatment (CUBIT) program.
3. The defendant has attended Forensic Psychology Services (FPS) maintenance sessions while in the community since 25 October 2016, which were resumed upon each release from custody. The frequency of his engagement was increased in July 2023, following concerns about increasing sexual preoccupation. His engagement was described as "superficial", and he was reported to be "hostile and aggressive and at times threatening" during sessions.
4. The defendant has expressed willingness to be referred to the Community Forensic Mental Health Service (CFMHS) and the TRC.

Relevant provisions of the Act

1. Section 7(4) of the Act provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, it must make orders of the type sought by the plaintiff for the appointment of forensic experts. If the Court is not so satisfied, it must dismiss the application: s 7(5) of the Act.
2. Accordingly, although this is a preliminary hearing, it is necessary to evaluate the sufficiency of the supporting material to make an ESO, pursuant to the relevant statutory test in s 5B of the Act. Section 5B provides four prerequisites for the making of an ESO. The prerequisites set out in ss 5B(a), (b) and (c) concern the manner of the application and the defendant's custodial status. The parties agreed that these threshold criteria are satisfied. I am independently satisfied that they have been met.
3. The defendant does not dispute that the preliminary statutory obligations to an application for an ESO are satisfied, and I am independently satisfied that is so; the defendant is an "offender" as defined in s 4A of the Act, because he has been sentenced to imprisonment for a "serious offence" which may mean a "serious sex offence", as defined in s 5 of the Act, that is, indecent assault of a child under 10: s 5(1)(a)(i) of the Act and s 61M(2) of the Crimes Act 1900 (NSW). He is a "supervised offender" for the purposes of s 5I(1) of the Act, because he is subject to an existing ESO: s 5I(2)(b) of the Act. As noted, the application for the ESO was filed within 9 months of his supervision: s 6(1) of the Act.
4. The key provision for consideration in due course as to the making of an ESO is s 5B(d), namely, whether the Court: "… is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order."
5. Pursuant to s 5D, the Court is not required to determine that the risk of an offender committing a serious offence is "more likely than not" in order to determine that there is an "unacceptable risk" of the person committing such an offence.
6. Section 9(2) of the Act provides that, in determining whether to make an ESO, "the safety of the community must be the paramount consideration of the Supreme Court", consistently with the stated primary object of the Act, which is "the safety and protection of the community": s 3(1). A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).
7. In making its determination at a preliminary hearing, the Court does not weigh the supporting documentation or predict the result at the final hearing: see Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], in relation to comparable provisions in an earlier version of the Act.
8. Section 9(3) of the Act stipulates the matters that the Court must have regard to in determining whether to make an ESO. The effect of s 7(4) is that on an application for an ISO, some of these matters are also relevant and, in the course of this judgment, I have taken them into account. In the peculiar circumstances of this application, there is little point in considering a risk management report that has been tendered, since the defendant is already subject to the conditions of an existing ESO. However, I have regard to the following reports.

A forensic psychologist report

1. In a report dated 10 September 2013, Rima Nasr, who is a clinical and forensic psychologist, assessed the defendant's intellectual capacity: "Overall, [the defendant] presents with intellectual capacities that fall within the Borderline range. He performs better than 4% of his normative age group. This is indicative of a low but not impaired overall skill level, such that [the defendant] is a man of limited cognitive resources, although he does not have an intellectual disability."

Forensic psychiatric reports

1. The tendered material includes two forensic psychiatric reports by Dr Samson Roberts and Dr Andrew Ellis that were prepared for the ESO hearing in 2015, and an initial assessment and discharge summary by Dr Eagle prepared earlier this year in relation to an admission of the defendant to the CFMHS TRC between 6 May and 26 June 2024.
2. In a report dated 7 September 2015, Dr Roberts noted the following, apparently referring to Ms Nasr's report, which he was provided: "Formal psychometric assessment identified his intellectual performance as placing him in the borderline range and identified specific deficits in executive functioning. His presentation at interview, specifically with respect to his use of language, does not create the impression of a person suffering the level of impairment that has been identified on formal assessment. Indeed, his presentation at interview could reasonably be presumed to reflect a person capable of learning, planning and participating in a mainstream therapeutic program and does not reveal his deficits."
3. As to his diagnosis, Dr Roberts nevertheless accepted the earlier diagnosis of the defendant being "cognitively impaired". He diagnosed the defendant as having an agoraphobia and panic disorder and said that "his offending behaviour supports the impression of Paedophilia". As to his level of risk, Dr Roberts noted that the defendant had previously been assessed as being in the "low to moderate" range of sexual reoffending, and commented: "In the absence of a therapeutic program specifically tailored to [the defendant'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."
4. Dr Ellis, in his report dated 15 September 2015, diagnosed the defendant in these terms: "The diagnosis of primary concern is a paraphilic disorder (Paedophilia). He would meet criteria for a paedophilic disorder, attracted to boys and girls. … Paedophilia is a chronic relapsing condition. … There is no evidence of conduct disorder in his youth, and his criminal behaviour is exclusive for sexual offences or breaches of justice orders related to sexual offences. He does not present with antisocial personality disorder, but does present with avoidant personality traits which appear to be consistently present across his adult life. He describes somatic symptoms of anxiety in response to social situations, crowds and memories of his deceased relatives. These symptoms have been present since childhood. These symptoms lead to avoidance behaviour and decreased adaptive function. They likely relate to his lack of mature intimate relationships, rather than constituting a separate anxiety disorder. He would meet criteria for a diagnosis of avoidant personality disorder. This is consistent with the history of significant loss and neglect in his developmental years. … His presentation, previous testing and interview do not indicate any intellectual or cognitive disability that would rise to the level of a clinical disorder."
5. As to the defendant's risk of recidivism, Dr Ellis said: "In considering actuarial, structured professional and clinical parameters in the absence of any treatment or supervision, [the defendant] would fall into a group of persons with a risk for serious sexual offending that is statistically high in frequency and of a type with serious consequence, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk."
6. Dr Eagle determined the diagnostic formulation on the defendant's discharge from the TRC on 26 June 2024 to be: "Schizophrenia Borderline personality traits/disorder Paedophilia, non-exclusive type Substance use disorder, in remission under supervision"
7. She identified his risk needs to be: "Ongoing risk of sexual harm to others in the context of reduced supports, deterioration in mental state, reduced monitoring and/or change in treatment Risk of self harm/suicide particularly in the context of deterioration in mood, mental state and/or changes in treatment"

Risk Assessment Report

1. In her risk assessment report dated 3 October 2023, Ms Cieplucha opined that the defendant fell into the "high risk" range for sexual reoffending relative to other adult male sex offenders. She noted: "He has been convicted of repeat sexual offences, has repeatedly failed to comply with conditions imposed on him under legal orders (CPR, ESO) and has failed to engage effectively in intervention to address risk issues. Despite being subject to an Extended Supervision Order since 2016, he continues to present with a high density of criminogenic needs. Based on his history and outstanding needs, it is possible that he could commit a future 'serious sexual offence' as defined in [the Act]."

Determination

1. As noted, I am satisfied that the statutory prerequisites for an application for an ESO are met.
2. In view of the fact and the nature of defendant's repeated breaches of the conditions to his ESO, I am of the opinion that the matters alleged in the supporting documentation would, if proved, justify the making of a further ESO when the current one expires. Since 2015, the defendant has shown himself to be incapable of residing in the community for an extended period of time without contacting young persons and children, contrary to his ESO conditions, and often in circumstances suggesting a sexual interest. While he has not committed a serious sexual offence for which he was later convicted since March 2010, the circumstances of the ESO breaches suggest that there was at least a real possibility of him doing so, if it was not for the level of supervision provided by the ESO. In so stating, I note that I have not had the benefit of a case being put on behalf of the defendant at the final hearing, and my opinion, which is based exclusively on the material tendered at this stage of the proceedings, is not intended to pre-judge the issue that will be before the Court at the final hearing.

Recommendation

1. As noted in this judgment, there appears to be some uncertainty as to the defendant's level of intellectual functioning. I recommend that one of the forensic experts be retained to prepare a report to assist the Court at the final hearing with respect to the issue of the defendant's level of intellectual functioning.

Orders

1. I make the following orders: 1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW), I order that: 1. two qualified psychiatrists or psychologists (or any combination of such persons) be appointed to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. the defendant attend those examinations. 1. I grant liberty to the parties to approach the list judge to obtain a hearing date and timetable for the final hearing in this matter.

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: 19 September 2024