State of New South Wales v Ayoub

Supreme Court of NSW|2023-05-05|Before: McNaughton J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid (Defendant) File Number(s): 22/330902

REVISED EX TEMPORE JUDGMENT

By way of summons filed on 4 November 2022, the State of New South Wales ("the plaintiff") seeks final relief by way of an order that Mr Jamil Ayoub ("the defendant") be subject to an Extended Supervision Order (ESO) for a period of two years, subject to conditions. In the interim, and before the Court today, is an application by the plaintiff for an Interim Supervision Order (ISO) against the defendant pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"), and for orders for the appointment of two qualified psychiatrists and/or psychologists to conduct separate examinations of the defendant and to furnish their reports to the Court pursuant to s 7(4) of the Act.
The plaintiff was represented today by Ms Johnston and the defendant by Mr Bhutani. They are to be commended for their submissions and the way that they have isolated the issues for determination by the Court, and I thank them for that. The summons was filed within the period provided for in the Act, and the sentence the defendant is presently serving and the offence for which it was imposed are such as to satisfy the requirements of ss 5B(a), 5B(b) and 5B(c) of the Act.
The only remaining question in order to determine whether the Interim Supervision Order and the orders for examination by experts should be made under ss 7 and 10A of the Act is the question of whether upon the final hearing of this summons, if the matters appearing in the materials now provided to the Court are accepted and prove the facts to which they refer, whether the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision (s 5B(d) of the Act). In this case a serious offence is a sexual offence. That proposition has been clearly established in my view by the material tendered and it is not in dispute by the defendant who is, as I have indicated, represented by counsel.

A brief background

The defendant is a 44 year old man. He has committed three separate sexual offences, one being a "serious sex offence" pursuant to the Act, and two other offences of a sexual nature. The defendant is currently on parole, serving a sentence for sexual touching and failing to comply with a reporting obligation. He has resided in the community since 21 May 2022, and his head sentence, or his parole period, is due to expire on 21 May 2023.
The defendant is subject to a Child Protection Prohibition Order (CPPO) until 2025 and is also subject to the Child Protection Register until 2028.

2019 sexual offending

On 2 March 2021, the defendant was sentenced in respect of two counts of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (sequences 1 and 3) and one count of sexual touching without consent contrary to s 61KC of the Crimes Act 1900 (NSW) (sequence 2). The defendant received an aggregate sentence of 3 years, with a non‑parole period of 2 years. As I have indicated, that expires on 21 May 2023.
The facts are these in short. On 26 May 2019, the defendant offered the 16 year old victim $3,000 to take modelling photos of her. The victim agreed to have photos taken, and the two walked to a BP service station. The defendant accompanied the victim into a toilet and locked the door. He asked the victim to take her clothes off and assisted her to do so. The defendant touched the victim on her stomach and shoulder to move her into positions for the photos. The defendant took the photos on the victim's phone. He said that he would send them to someone from a modelling agency. The victim believes he sent the photos on Instagram to an unknown person.
On 29 May 2019, the victim received a message on Instagram from an account labelled "Jennylynnelite", and several messages were exchanged wherein the modelling photos were discussed. The account indicated the photographs would require full body black tape lingerie. The victim became suspicious and declined the offer.
The failure to comply offences arose because of the defendant's failure to disclose the details of the victim to police, as well as the names of children he met through a bible study group at a church.

First prior sexual offence

It is also to be noted that the defendant has been convicted of sexual offences on two earlier occasions, one of which constitutes the index offence being the serious sex offence in this matter. The first sexual offence conviction was in 2008 for an offence which occurred when the defendant was aged 24. He was convicted of indecent assault contrary to s 61L of the Crimes Act and using chloroform etc to commit an indictable offence, namely indecent assault contrary to s 38 of the Crimes Act.
The offending related to events in 2002, when the defendant drugged his roommate's girlfriend with Clonazepam (a benzodiazepine) and committed an indecent assault upon her. The act of indecency which was relied on by the Crown in that matter was the removal of the victim's pants and the massaging of her upper legs. The victim did not have an independent recollection of what happened after that. She was suspicious, however, that she had been drugged by the defendant and following conversations with others she attended a medical centre and a urine sample was taken which revealed the presence of benzodiazepines. Further tests at a hospital showed the presence of Clonazepam, and that drug was the stupefying agent which was the subject of the s 38 charge.
The victim reported the matter to police on 15 October 2002. The defendant was arrested on 17 October 2002 and participated in an Electronically Recorded Interview of a Suspected Person (ERISP). The defendant was released on conditional bail. He admitted to masturbating in front of the victim to ejaculation, such that semen ended up on the pants of the victim and the boxer shorts. He failed to appear at the Local Court in April 2003 and a warrant was issued for his arrest. He was not arrested until 25 April 2007. He asserted that at the time of the offending, he had been using drugs and alcohol for several days with friends. He claimed not to remember the details of events, though later acknowledged having committed the offences and expressed remorse.
Because the maximum penalty of the indecent assault (pursuant to s 61L of the Crimes Act) was five years imprisonment, it is not a serious offence for the purposes of the Act. The maximum penalty for the s 38 offence was 25 years imprisonment. That can constitute a serious sexual offence, but only when the offence intended to be committed following the administration of the stupefying agent is one under Div 10 of Pt 3 of the Crimes Act punishable by more than 7 years. Accordingly, the s 38 offence committed by the defendant was not a serious offence for the purposes of the Act.
In relation to the s 38 offence, the defendant was sentenced to a total term of 4 years' imprisonment with a non‑parole period of 2 years and 6 months. He was sentenced to a term of imprisonment of 12 months with a non‑parole period of 8 months for the s 61L offence, and both sentences were to be served concurrently.

Second prior sexual offence

As to the second sexual offence, which constitutes the serious sex offence (the index offence in relation to this matter) the facts are, in brief, these. In 2013, he was convicted of the offence of sexual intercourse with a child aged between 14 and 16 years contrary to s 66C(3) of the Crimes Act. A second offence of sexual intercourse with a person of that same age was taken into account on a Form 1.
The offending occurred in 2011 when the defendant was aged 33. The defendant met the 15 year old victim at a party in October 2011. The defendant was drinking heavily and was intoxicated. The complainant's age was discussed in the presence of the defendant on two occasions earlier that night.
Following the second sexual offence, the defendant was placed on the Child Protection Register for a period of 15 years. In relation to him being on the Child Protection Register, the plaintiff includes in its submissions, and the material shows, that on 21 May 2020, New South Wales police officers attended the defendant's premises and found the defendant in possession of a mobile phone, a laptop, and an iPad, which were contrary to the defendant's bail conditions and also, the Child Protection (Offenders Registration) Act. He was using two email addresses that he had not provided to police and had several social media applications downloaded using an alias "Phil Barone".
On 27 May 2020, the defendant was convicted of failing to comply with his reporting obligations and was sentenced to a term of imprisonment of 12 months with a non‑parole period of 7 months and that sentence was confirmed after an appeal in the District Court.
This was not the first occasion the defendant had failed to comply with the requirements of the Child Protection Register, and in 2014, he was convicted of a separate failure to comply. That arose because he had continued to use a Facebook profile he had informed police he no longer used, and he was sentenced to a s 9 bond for that offence.

Other criminal history

When he was a minor, he was sentenced to a period of 2 years periodic detention for a robbery in company as a juvenile and he had a number of other convictions as a juvenile for violence and property offences. He also has further criminal offending as an adult, including 2015 property and drug offences and earlier driving offences.
In the past, he is said to have been associated with an Outlaw Motorcycle Gang. He contends he has now left the club and there is no evidence to establish a current association with an Outlaw Motorcycle Gang.

The statutory scheme

Turning briefly to the statutory scheme which is well known now. The Act provides a comprehensive statutory scheme outlining the legal test for both preliminary and final supervision orders. In an earlier judgment of mine, in the State of New South Wales v Nixon (Preliminary) [2022] NSWSC 1561, I set out a summary of the statutory scheme at [7]-[18] and I refer to those portions again and have taken those matters into account.
As indicated, I am satisfied the statutory preconditions for the Interim Supervision Order have been met and I note they are not contested. As I indicated, I am satisfied that if the material that has been provided, which includes risk assessment reports and risk management reports prepared by psychological professionals of corrective services, is made good on final hearing, the Court would readily conclude that the defendant would pose an unacceptable risk of repeat offending if not subject to supervision in the community. I am satisfied that that conclusion would be reached to a degree of comfortable satisfaction.
It is appropriate, therefore, to make orders 1 and 2 as sought by the plaintiff in the summons, together with the ancillary relief sought in order 5. As those orders make clear, the order is subject to conditions and the plaintiff has proposed a number of conditions, some of which were accepted and some of which were opposed in part, or in whole, by the defendant.
I have had the benefit of detailed written and oral submissions in relation to those that are contested, and I have also been provided with a document which helpfully explains the differences between the two parties. I note, in relation to the conditions and those that are opposed by the defendant, or are proposed to be changed by the defendant, that they are motivated by two factors set out in the defendant's written submissions: 1. Firstly, the defendant submits that any condition that this Court imposes should be tailored specifically towards the defendant's risk profile as opposed to a set of generic conditions as presently sought, it is said, by the plaintiff. The CUBIT Treatment Report dated 7 January 2014 set out four dynamic risk factors of the defendant being: general self-regulation, sexual self-regulation, co-operation with supervision, and intimacy deficits. It is said by the defendant that the conditions sought by the plaintiff are inconsistent, or otherwise not sought by community corrections as outlined in the risk management report. 2. Secondly, the defendant's barrister urges on the Court that the defendant should be given recognition and credit for his compliance with his strict parole for the last 11 months and that he has shown ability and willingness to reintegrate into the community. Now, having almost finished parole, his conditions should not become more restrictive.
It is also pointed out, as I have noted, that he is subject to a CPPO until 2025 and that will continue to apply alongside any ISO or ESO. It is urged by the defendant that the Court should exercise caution to ensure that the conditions of the ISO or ESO are not inconsistent with the CPPO conditions. That is, of course, a practical consideration for the Court that I note. I will now turn to the conditions and will go to those that are in contest.

Condition 4

The first condition in contest is condition number 4. The current revised version suggested by the plaintiff is that the defendant must not threaten, intimidate, or abuse Corrective Services New South Wales (CSNSW) or electronic monitoring staff, or interfere with or impede his supervision. It is said on behalf of the defendant that this is essentially an overreach because this conduct is already covered by the general criminal law, and he also points to a very recent decision of Fagan J of State of New South Wales v KW (preliminary) [2023] NSWSC 397 at [14]-[15]. Although the condition his Honour was dealing with was in slightly different terms, the comments are still applicable. There, Fagan J says, amongst other things, "the effect of imposing such a condition would be to create an offence, namely a contravention of s11, with a penalty of five years, in circumstances that would not constitute an offence for any other citizen." Fagan J states at [15]: "Recognising the entitlement of the officers to carry out their duties without abuse and the need to support them in their work, nevertheless it is apparent that to impose a condition that would expose the defendant to imprisonment for up to five years if he should adopt an abusive manner that may be perceived as impeding his supervision, would be extreme and out of proportion to the risk. So long as s11 remains in its present form with, no gradation of penalties or exposure to prosecution, the Court is obliged to exercise great caution in imposing conditions that would criminalise conduct that would not be criminal on the part on any other member of the community."
In that case, Fagan J determined that he would not impose such a condition. In my view, given the number of other conditions that are available, and the extreme consequences should this condition be breached, I am of the view that in this interim supervision order, it is not appropriate for me to impose it. I will not impose condition 4.

Condition 5

The next condition in contest is condition 5. This is a scheduling condition. The defendant has submitted that there is a current condition in relation to the defendant's parole that allows for a schedule to be agreed and imposed, but it has not yet been activated. This condition, as now recalibrated by the plaintiff, would read: "If directed, the defendant must submit a weekly schedule of proposed activities to the [Departmental Supervising Officer (DSO)] for approval." It is said by the defendant that because he has not yet had to submit such a schedule, that it would be regarded by the defendant as a regressive step.
I am of the view that the reworded condition, that is, with the words "if directed" included, appropriately mirrors the current condition of parole, and does give the supervising officer discretion to impose the weekly schedule should that officer think it is appropriate. Accordingly, I make it in the terms now sought by the plaintiff.

Condition 8

The next contested condition is number 8. This condition goes to restricting the defendant from attending certain airports or overseas passenger terminals. It is said by the defendant that this is not necessary because condition 14, which is not contested, already provides that the defendant must not leave New South Wales without the approval of the Commissioner of Corrective Services NSW. From the material that is currently available to me at the moment, I am of the view that this is not a necessary addition to the existing condition 14, and I decline to impose that condition.

Condition 21

The next contested condition is 21. That condition is: "The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO." That is opposed on the basis that there is nothing to indicate from the material before the Court that this would be required in order to appropriately supervise this defendant. I note that it has only been faintly pressed by the plaintiff, although it is pressed. I am of the view that there is not an obvious basis for why this condition is necessary at this stage, and I decline to impose it.

Conditions 36 and 37

The next contested conditions are 36 and 37. These go to restricting the defendant from obtaining prohibited weapons - one is to not possess or use a firearm or firearm parts, and one goes more to an anti-personnel spray. Although the defendant does have past associations with Outlaw Motorcycle Gangs, there is no indication that he currently has any involvement with such a gang. I also note that none of the past offending involves weapons. I also note that there is a condition that I will be imposing that is not opposed ‑ this is number 28 ‑ that the defendant must not associate with any person or persons specified by a DSO. In my view, that appropriately mitigates the risk that might be associated with the Outlaw Motorcycle Gang past connection, and I cannot see any present reason why the weapons condition needs to be imposed. In the absence of any evidence that this is a problem I decline to impose conditions 36 and 37.

Condition 45

I now turn to the next contested condition, which is number 45. This is in similar but slightly different terms to order number 4 on his CPPO. I am of the view that it is appropriate to make the order in the same terms as currently reflected in order 4 of the CPPO. The reason for that is that it does help the DSO to properly monitor the defendant's online behaviour in circumstances where the defendant has, in the past, facilitated the commission of his offending by the use of social networking services and the like. I make condition 45, but in the same terms of order number 4 of the CPPO.

Condition 46

Condition number 46 is also opposed. This proposed condition would allow the DSO to remotely inspect any internet account of the defendant. It has been modified in recent times so as to minimise the level of monitoring so that it is restricted to the purpose only of monitoring compliance with these conditions. It is an appropriate condition.

Conditions 49 and 50

The next contested condition is condition number 49. That would require, in summary, the defendant to submit to the search of any item in his possession or place as reasonably directed by a DSO in circumstances where the DSO reasonably suspects it is necessary to give effect to these conditions or to prevent an imminent risk of harm, where the DSO reasonably suspects it is necessary to seize the object to give effect to these conditions or to prevent an imminent risk of harm. That is opposed by the defendant. It is said that it is regulating a risk of a risk, and that the Court should be concerned to make sure that the objects of the Act are properly complied with. However, in my assessment of the material, including the most recent Offender Integrated Management System notes, his past conduct in relation to the offending and his failure to always comply with various orders imposed upon him, this is an appropriate condition to make. I might read that condition for clarity onto the record. It reads: "The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is travelling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker, or commercial facility, in each case as reasonably directed by a DSO and only in circumstances which the DSO reasonably suspects is necessary to give effect to these conditions or to prevent an imminent risk of harm; and to the seizure of any object located during the search where the DSO reasonably suspects it is necessary to seize the object to give effect to these conditions or to prevent an imminent risk of harm".
I also make condition 50 - although it is also opposed on the same sort of basis that it is an overreach. In my view, condition 50 is also appropriate, given the history of this defendant, and I will impose the condition that the defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out pursuant to condition 49.

Conditions 57, 61, 62, 63

The next suite of conditions which are contested go to medical intervention and treatment. What is not opposed are conditions 56, 58, 59, and 60.
Condition 57 is opposed, which is that the defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults. This condition, together with conditions 61, 62 and 63 are opposed on the basis that they are an overreach or an over‑intrusion into the defendant's personal life and prevent him from trusting a doctor and may prevent him from seeking healthcare or psychiatric or psychological assistance.
The defendant points to the terms of the Act, in particular its objects, which are as follows: 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.
It is said by the defendant that such an order as is sought by the plaintiff would undermine one of the objects of the Act, being to undertake rehabilitation. However, I must take into account that the primary object of the Act is to provide for the extended supervision, relevantly of high risk sex offenders, and it is noted that this defendant is regarded, on the material currently before me, as a person who is of concern to the community in that fashion, as identified by the experts which have provided material that is before the Court.
For example, he has been assessed under STABLE‑2007 to be in the "high-risk category" and under the STATIC-99R test, he was in the "Well Above Average" risk level or Level IVb. Under the STATIC‑99R test, he has been assessed, in terms of his rate of recidivism, to be about 3.77 times higher than the "typical" sex offender.
It is also noted that in the report from the Serious Offenders Assessment Unit in June 2022, that: "If Mr Ayoub were to commit further sexual offending, it would likely be a contact sexual offence and may involve a degree of coercion (either physical or psychological). Victims would most likely be post-pubescent adolescent or young vulnerable adult females and the likely motivation would be for sexual gratification or to achieve a sense of power and control. A return to illicit substance or alcohol use may increase his risk for both sexual and more general antisocial behaviour and increase his propensity for violence."
I do note, however, and I interpolate here, that this application is in relation to him being a high risk sex offender and not him being a high risk violent offender, and I take that point being made on his behalf by his barrister. There is a balancing exercise to be made, but it is important to note that the primary object of the Act is to ensure the safety and protection of the community.
In light of that, I am of the view that carefully calibrated healthcare conditions can be made, which are not as wide as the plaintiff originally sought, by confining the orders to healthcare practitioners practicing psychiatry or psychology rather than all healthcare practitioners. The conditions I will impose provide a balance such that the community can be protected but the defendant can also hopefully be encouraged to seek appropriate psychiatric or psychological care. Accordingly, I make the following orders for conditions 57, 61 and 63. I decline to make condition 62.
I make condition 57 in these terms: "The defendant must notify a DSO of the identity and address of any psychological or psychiatric healthcare practitioner that he consults."
Condition 61 will read: "The defendant must agree to his treatment and service providers and healthcare practitioners who are psychologists or psychiatrists, and no others, to share information that suggests a material increase in his risk of sexual offending, with each other and with a DSO."
And finally, condition 63: "The defendant must agree to the disclosure of his criminal history to any psychological or psychiatric healthcare professionals that are treating him."
I note in relation to that condition that although it is opposed by the defendant on the basis that condition 32 covers that, I am of the view that this is a prudent condition to make given the defendant's past history.
Accordingly, I make those conditions, together with the conditions that are not contested, which I will publish with my reasons when they are published in writing.

Orders

Accordingly, I make the following orders: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): 1. Appointing two qualified psychiatrist or psychologists (or any combination of two such persons) 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. Directing the defendant to attend those examinations 1. An order: 1. Pursuant to s 10A of the Crimes (High Risk Offenders) Act that the defendant be subject to an interim supervision order for a period commencing on the expiry date of the defendant's current sentence of imprisonment being 21 May 2023; 2. Pursuant to s 10C(1) of the Crimes (High Risk Offenders) Act that the interim supervision order be for a period of 28 days; and 3. Pursuant to s 11 of the Crimes (High Risk Offenders) Act directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this judgment. 1. An order that access to the Supreme Court's file in respect of any documents shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. Schedule of Conditions Ayoub Preliminary (91505, pdf)

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: 10 May 2023

At a glance

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