State of New South Wales v Baldwin

Material From Preliminary Hearing

1. On 5 August 2016, Wilson J granted the first two forms of interlocutory relief which were set out in the original summons and which were replicated in the amended summons to which I referred earlier. On 16 August 2016 her Honour published reasons for so ordering: State of New South Wales v Baldwin [2016] NSWSC 1141 ("Baldwin No 1").
2. Mr Baldwin is now 70 years of age. He has a long history of committing sexual offences against boys. In Baldwin No 1 at [11] to [15], Wilson J summarised the history of this aspect of his offending from 1994 to 2008 as follows: "11 The defendant's record of sexual offences against children began with a conviction in 1978 for an offence of indecent assault, the victim of which was a 15 year old boy. The offence recognised acts of both fellatio (which at the time constituted an indecent assault rather than an act of sexual intercourse, as it would now be), and fondling the victim's genitals. The defendant was sentenced to a term of 6 months hard labour, to use the then current terminology. 12 In 1994 the defendant was convicted in Queensland of a number of sexual offences, all of them a type of indecent assault. The offences had been committed over a two year period against two children aged, respectively, 12 and 14 years old. The defendant had been in a position of authority over the children and had abused that trust to assault them. 13 After serving the sentence imposed upon him in the Southport District Court, being a total effective term of 12 months imprisonment with eligibility for release to parole after 4 months, the defendant offended again in New South Wales. He was convicted in Byron Bay Local Court of an aggravated indecent assault committed in May 1994 and sentenced to a further term of imprisonment, a period of 19 months with a non-parole period of 4 months. The victim was a young teenage boy. 14 Perhaps in the context of a sexual relationship with a 16 year old boy, the defendant incurred his next criminal conviction, for an offence of loitering near a school being a convicted sex offender. The offence, which appears to have occurred when the defendant was waiting at the school of a 16 year old child with whom he was involved, was committed in September 2007. The defendant was convicted of the offence at the Burwood Local Court in March 2009 and sentenced to 9 months imprisonment, with a non-parole period of 2 months. 15 Soon after, he was convicted of further offences of a sexual nature, being dealt with in the Sydney District Court for two counts of using a carriage service to transmit child pornography, and one count of possessing child pornography. The defendant had sent two emails to a boy of 14 years which contained a number of images of children engaged in acts of sexual intercourse. He was also found to have material of that nature in his possession when a search warrant was executed upon premises connected with him."
3. Three further matters should be noted about this. First the last of the offences recounted in the above extract occurred in 2008. Thus there can be seen a disturbingly frequent pattern of sexual offending against boys by Mr Baldwin between 1994 and 2008.
4. Second, it is necessary to describe the offences that were committed in 2010 that I referred to earlier in further detail.
5. Mr Baldwin was dealt with for those offences by Judge Ellis of the District Court on 16 December 2011. In his sentencing judgment, Judge Ellis described those offences as follows: "The facts are set out in the agreed statement of facts but shortly stated, the offender befriended the young victim who was aged thirteen years and who suffers from Asperger's Syndrome. The first count and the matter on the Form 1 took place on 27 April 2010 when the victim was in the offender's car. Count 1 involved the touching of the offender's penis on the outside of his clothing and the squeezing of it, and count 2 involved the incitement of the victim to perform a sexual act on the offender. Count 4 related to a more serious incident on Monday, 3 May 2010. It involved the offender pulling down of his own pants and then pulling down the victim's pants and underpants and then standing behind the victim, grabbing him around the waist and bending over him and placing his penis on the outside of the victim's anus and saying to the victim, 'Call me Master'. In relation to the fifth count, which is contrary to the Child Protection Offender's Registration Act, because of his prior convictions for sexual matters, he was required to advise the authorities of the fact that a person under the age of eighteen years was residing close to him. That offence does not relate to this victim but to the older friend of the victim who lived within the same building as the offender. It was initially through the auspices of that other 17 year old lad that this offender became acquainted with the victim in this matter."
6. The two counts of indecent assault that I referred to earlier are the offences described as counts 1 and 4 in this extract from the judgment of Judge Ellis. The reference to count 2 is to a charge of inciting a person under 16 years of age to commit an act of indecency contrary to s 61N(1) of the Crimes Act. As indicated by this passage this was dealt with in accordance with Division 3 Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
7. In his sentencing judgment, Judge Ellis described count 4 as involving "serious criminality" although it was not "in the worst case category". His Honour found the offence was aggravated because the victim suffered from Asperger's syndrome and because of the degree of "grooming" involved in the offence.
8. Third, Mr Baldwin's criminal record also includes convictions for offences other than those that have already been described, including false pretences and embezzlement.
9. There was also placed before Wilson J a risk assessment report prepared by a senior psychologist within the Department of Corrections, Mr Richard Parker, and co-signed by another senior Corrections Officer. This report falls within the description of those reports referred to in s 9(3)(d1). Wilson J accurately summarised the effect of that report as follows: "Psychosocial History 20 The defendant spent his childhood in Sydney, and reported growing up in a "caring family" (Report of Dr Parker, [11]). His father, who was employed in the Navy, passed away in 1989 and his mother in 2012. The defendant maintained a close and supportive relationship with his mother until her death, but has not had a relationship with his two sisters since his conviction in 2002. 21 The defendant completed Year 10 at the age of 16, and after working for a short period as a salesman, joined the Navy. During his employment with the Navy he was in a relationship with another sailor for a period of five years, and an intermittent relationship with a woman from Western Australia for three years. 22 He was involved in the HMAS Voyager disaster in 1964, which resulted in the deaths of 76 sailors. The defendant told Dr Parker that: "…he was involved in rescuing sailors and recovering dead bodies. He said this left him depressed and with Post Traumatic Stress Disorder (PTSD). He said this led to heavy drinking" (Report of Dr Parker, [13]). 23 After ceasing employment with the Navy, the defendant had a number of other jobs, including working with the ambulance service. He was, however, unemployed for periods of up to three years, because of the ongoing symptoms of PTSD and problematic alcohol consumption. 24 The defendant reported experiencing two sexual assaults to Dr Parker. The first assault occurred when the defendant was a child, around the age of 10, perpetrated by an older cousin. The second assault was alleged to have been committed by two senior Navy officials. 25 The defendant has not had any significant relationships since leaving the Navy, although he reports multiple sexual encounters of an impersonal nature. Dr Parker assessed the defendant as "…socially isolated…" (Report of Dr Parker, [52]). 26 The defendant has had prostate surgery, which he reports has left him impotent. Dr Parker noted that while the surgery altered the way in which the defendant offended (non-contact and non-penetrative offending), the surgery did not prevent the defendant committing further sexual offences. Custodial History 27 Dr Parker noted: "Mr Baldwin has generally been regarded as a well-behaved prisoner, who has received no institutional charges during any of his sentences in NSW or Queensland prisons. Most reports describe him as a polite and dedicated worked who interacts well with both staff and other inmates." (Report of Dr Parker, 20) 28 Whilst in custody, the defendant has completed the intensive CUBIT program for sexual offending. The treatment completion report commented that the defendant often only participated at a superficial level and engaged in "positive impression management" (Report of Dr Parker, [21]). While the defendant was able to gain a theoretical appreciation of the impact of his offending, he did not appear to be personally affected by such realisations. Dr Parker opined: "…while it is a good sign that Mr Baldwin completed CUBIT, and has continued to attend maintenance treatment, it is unclear whether he has internalised the attitudes and beliefs needed to make acting upon his desires as disdainful to him, as it is to most other people." (Report of Dr Parker, [56]) 29 The defendant has also completed the Getting SMART program while in custody. After noting that an officer for the program suggested that the defendant had only undertaken the program to better his chances of parole, Dr Parker expressed reservation about the defendant's level of insight in relation to the program: "… [D]espite this treatment, he struggled to articulate how he could avoid the patterns associated with his offending. He said he no longer feels tempted to drink alcohol and would talk to one of his support people if he felt tempted to offend, but did not articulate any rationale for this beyond avoiding returning to prison and losing the life he currently has in the community." (Report of Dr Parker, [24]) 30 In the community, the defendant continues with maintenance treatment, seeing a private psychiatrist and psychologists from Corrective Services NSW. Alcohol Abuse 31 The defendant recounted to Dr Parker that his alcohol consumption became problematic after involvement in the HMAS Voyager incident. He saw a psychologist in 2005, and reported that this provided some relief, although other issues remained unresolved. 32 The defendant told Dr Parker that he is no longer "tempted" by alcohol (Report of Dr Parker, [26]). There is no evidence to suggest that the defendant has relapsed since being released subject to parole. Risk Posed by the Defendant 33 The combined actuarial risk assessments of the Static-99R and Stable-2007 place the defendant in the high overall risk category. 34 Dr Parker assessed the defendant as a 'committed offender', being someone who: "… will actively seek opportunities to offend, grooming parents and seeking opportunities to be alone with a vulnerable child. Committed offenders may also take advantages of opportunities as they occur." (Report of Dr Parker, [53]) 35 In order to offend, the defendant has, in the past, either utilised pro-social relationships with adults who have given him access to young children, or won the trust of young children directly. Dr Parker noted that the defendant has previously "…gone out of his way to initiate, and prolong, this contact" (Report of Dr Parker, [9]). 36 Dr Parker concluded that an ESO would be appropriate in the circumstances; principally as a means to limit the defendant's access to future victims, thus managing the risk he poses."
10. Also placed before Wilson J was a "Risk Management Report" dated 26 December 2015. The report identifies the risk factors affecting Mr Baldwin in terms of his re-offending as "intimacy deficits", "alcohol abuse", "offence supportive cognition" and "sexual attraction to teenage boys". The report identifies a range of steps that can be, and to that time were being, taken to mitigate the risk posed by Mr Baldwin, including weekly interviews, unannounced home visits, electronic monitoring if necessary, the imposition of a curfew if necessary, the monitoring of his alcohol use, as well as establishing exclusion zones if necessary, as well as monitoring his associations with other persons. The report noted that Mr Baldwin was currently under supervision under the conditions of his parole and that he resided in private accommodation. The report noted that till that time there had been "no significant issues" arising from his release on parole.
11. Also placed before Wilson J was a report dated 2 December 2014 concerning Mr Baldwin's participation in the CUBIT program while in custody. That acronym stands for "Custody Based Intensive Therapeutic" program. It is described in the report as a [Tab 20, 5052.1]: "…custody‑based residential therapy program for men who have sexually abused adults and/or children. CUBIT balances risk management with a strengths based approach to treatment for individuals with moderate to high risk/needs. While in treatment, participants are assisted to develop the skills, attitudes, values and resources identified as necessary to lead a fulfilling and offence free life".
12. Mr Baldwin participated in the CUBIT program between 10 February 2014 and 13 November 2014. The report contains an assessment of his risk of re offending as "high" using the so-called "Static-99" method. The outcome of this test was to place him in the ninety-fourth percentile of offenders with a risk of re offending. The report also contains a detailed assessment of the dynamic factors affecting his prospects of re offending. It concluded as follows (Tab 20, at [57]): "Taking into account both static and dynamic risk factors, the risk rating of High on the Static-99R is considered as accurately reflecting Mr Baldwin's current risk. The most salient risk factors for Mr Baldwin are intimacy deficits and sexual self-regulation. His intimacy deficits were apparent through his fear of rejection by adults and emotional identification with post‑pubescent children. His limited understanding of his internal processes increased his difficulties communicating them to others, which impacted on his ability to develop and maintain appropriate relationships. Mr Baldwin's deficits in sexual self-regulation were apparent through his sexual preoccupation, using sex to cope and his sexual attraction to children."
13. Otherwise the report contains, as I have stated, a number of measures designed to address Mr Baldwin's risk of recidivism.

Reports Under Section 7(4) of the Act

1. In accordance with orders made by Wilson J on 5 August 2016, Mr Baldwin attended an appointment with Dr Anthony Samuels, psychiatrist, on 11 August 2016. Dr Samuels prepared a detailed report dated 29 August 2016 which was placed before the Court on this application (s 9(3)(b)).
2. Dr Samuels concluded there was no evidence that Mr Baldwin suffered from a major affliction or anxiety disorder but considered that he had a paraphilia disorder with a sexual attraction directed towards teenage boys.
3. Dr Samuels concluded that Mr Baldwin would remain, "at high risk of committing a further sexual offence on the basis of his longstanding attraction to young teenage boys which is unlikely to have abated and despite the fact that he claims he no longer thinks about sex or has any capacity to attain an erection."
4. I note that in one part of the report that follows this Dr Samuels addresses Mr Baldwin's level of risk, including by reference to offences with which he was charged but not ultimately convicted. Given the balance of the material, Dr Samuels considered it not necessary to determine whether that approach is a permissible one under the Act.
5. Dr Samuels did, however, concur with the score that placed Mr Baldwin in the high range of risk of re‑offending on the Static-99 model. Dr Samuels concluded that an ESO would be an "optimal method to manage" the risk of re offending posed by Mr Baldwin. In particular, he concluded: "This will allow for close scrutiny and monitoring and the fact that Mr Baldwin will be aware that he will be under such scrutiny and that failure to comply might lead to a return to custody will hopefully reduce any desire to offend. Ensuring that he is regularly monitored from a psychological perspective by FPS staff will be an additional protective factor and the fact that he has to prepare schedules in advance, will be restricted from frequenting certain areas, and that his contacts will be vetted will add a further layer of protection and reduce the capacity for impulsive offending behaviour. Limiting access to the internet and alcohol are also important protective measures."
6. Dr Samuels was provided with Mr Baldwin's current risk management plan. Dr Samuels expressed the view that that plan was "entirely appropriate" although he added it might be optimised if psychiatric reviews were "slightly more frequent".
7. Finally, I note that Dr Samuels was asked about the proposed term of an ESO. He opined that he thought that, "an ESO for three years would be appropriate given Mr Baldwin's age and associated health problems".
8. In a supplementary report dated 23 September 2016, Dr Samuels described the revised conditions in the schedule to the Amended Summons to which I have referred as "appropriate".
9. As was also required by Wilson J's orders of 5 August 2016, Mr Baldwin attended an appointment with Dr Jonathan Adams, psychiatrist, on 13 September 2016. Dr Adams produced a report dated 29 September 2016 which was also placed before the Court.
10. Dr Adams concluded that Mr Baldwin suffers post-traumatic stress disorder "PTSD" from his time in the Navy. Further, based on his history of sexual offending, Dr Adams concluded that Mr Baldwin displayed "hebephilia". He contrasted that condition with paedophilia which he explained involves a sexual interest in prepubescent children. In relation to Mr Baldwin's risk of re offending, Dr Adams concluded: "In my opinion, Mr Baldwin's sexual violence risk is currently appropriately monitored and managed - as per the conditions in place. It is my view that Mr Baldwin's risk of engaging in a further serious sexual offence is significantly lower currently under the provisions of his risk management plan, than his risk level would be if the conditions were not in place. In my opinion there are reasonable grounds to conclude that if Mr Baldwin was not provided with a current level of monitoring and management he would pose a significant risk of committing a further serious sexual offence. In considering the possibility of Mr Baldwin's sexual violence risk changing or fluctuating over time, in my view this is a possibility if his current management plan alters significantly. From a psychiatric perspective the concern would be that Mr Baldwin's mental health deteriorates, and he begins to experience a recrudescence of sexual fantasies involving peri‑pubescent males, a worsening of PTSD symptoms, and he relapses into alcohol use. This would be compounded if Mr Baldwin's support network dwindles, and he engages in less pro-social activity."
11. Earlier in his report Dr Adams explained that he had used the "risk of sexual violence protocol" (RSVP) to assess Mr Baldwin's sexual violence risk.

Further Material

1. At the hearing, the State read an affidavit from Mr Richard Parker, to whom I referred earlier. Mr Parker attached to his affidavit the Risk Assessment Report and explained the approval of the approach to risk assessment that he adopted. He explained his preference for the Static-99R method as opposed to the method known as "Level of Service Inventory-Revised Method". It is unnecessary to address that further.
2. Mr Parker also stated: "I have been asked to consider whether my opinion is affected if I do not take into account any uncharged acts, and confine myself to the defendant's convictions. I have not taken any uncharged behaviour into consideration, but I have considered behaviours that led to charges, but not convictions. The Static-99R was validated, including some items which make reference to charges (eg items 5, 8, 9 and 10). Changing the definition of these items is akin to adjusting the actuarial prediction or substituting it with unguided clinical assessment, both of which result in a lower level of predicted accuracy. Similarly, the Static-99R provides no method for incorporating information about behaviour which did not lead to a charge. Consequently, I decline to make such an adjustment."
3. As I understand it, the effect of this evidence is that experience has demonstrated that the utility of the Static-99R method as a predictive model requires that charged acts be taken into account as well as convictions, although the weighting attached to the former compared to the latter is not clear.
4. I do not propose to enter into a debate as to the legitimacy of this approach. Nothing turns upon it for the purposes of determining this application.
5. The State also read an affidavit from Barry Williams, the Community Corrections Officer, who is Mr Baldwin's Departmental Supervising Officer ("DSO"). Mr Williams stated that Mr Baldwin has been generally compliant with the conditions of his interim supervision order and, I infer, the conditions of his parole. It seems that the only issue that has arisen concerns Mr Baldwin's friendship with a 22-year-old male which was not disclosed to Corrections staff. Directions have now been given to Mr Baldwin limiting the time and place of his contact with that person.
6. Otherwise, Mr Williams addressed in detail the proposed conditions of the extended supervision order in light of his experience in supervising Mr Baldwin. He notes that Mr Baldwin was subject to electronic monitoring.
7. The State also tendered a large number of records concerning Mr Baldwin's contact with Departmental staff during the period for which he has been supervised. That material bears out the conclusions of Mr Williams.

High Risk Sex Offender

1. I have already outlined the definition of a high risk sex offender. Over at least a 16 year period, Mr Baldwin repeatedly committed a series of serious sexual offences which one way or another involved young males. His criminal record points overwhelmingly to him posing an unacceptable risk if he is left unsupervised. This is confirmed by the analysis of the various professionals and their assessments as well as the application of the various predictive tools concerning this risk of offending which I have described.
2. The extracts from the report of Dr Adams that I have set out above clearly demonstrate the risk he poses if not supervised.
3. It can be said that there are three matters that potentially tend against the conclusion that he poses a risk, namely his age, his self-reported low libido and his generally compliant behaviour while under supervision. The first matter is far from determinative and the second may fluctuate. The third matter only demonstrates the importance of proper supervision in mitigating the risk of Mr Baldwin committing further offences. Otherwise, needless to say, if Mr Baldwin does re-offend, the consequences for any potential victim could be "drastic" (see State of New South Wales v Kamm [2016] NSWSC 1 at [41]).
4. I am satisfied to a high degree of probability that Mr Baldwin poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. It follows that he is a high risk sex offender.

Should an Order Be Made?

1. At this point it is necessary to consider whether an ESO should be made, especially having regard to the criteria in subs 9(3) of the Act.
2. It follows from Lynn that I must identify the appropriate conditions that might be opposed. As noted, those conditions are set out in the schedule attached to the amended summons. They were addressed in the affidavit of Mr Williams.
3. Part A of those conditions contains nine provisions dealing with reporting and monitoring obligations. They include a clause requiring Mr Baldwin to follow all reasonable directions given to him by the staff supervising him, as well as, if necessary, to wear electronic monitoring equipment.
4. Part B contains three provisions addressing his accommodation, including the requirement that he must live at the address approved by his DSO.
5. Part C contains five conditions restricting his freedom to travel, including a provision that excludes him from places commonly frequented by young males.
6. Part D contains provisions dealing with employment, finance and education.
7. Part E deals with drugs and alcohol, a matter of some significance given his history of offending.
8. Part J of the proposed conditions includes powers of search and seizure.
9. Part L deals with his personal details and appearance and requires him to obtain approval to change his name.
10. Part M deals with medical intervention and treatment.
11. Of particular significance is Part F which contains six provisions providing a very strict degree of control over the persons he may communicate and associate with. In particular, proposed condition 27 precludes him from associating with people that he is directed by his ESO not to.
12. Part I restricts his access to the internet and other forms of electronic communication and Part K contains a prohibition on access to pornographic material. In view of his history of convictions, the necessity for those conditions is apparent.
13. Generally, the conditions are comprehensive. Having regard to the type of offending that Mr Baldwin has previously engaged in and the cautious progress that he has achieved whilst supervised on parole, I consider that the imposition of these conditions on Mr Baldwin is likely to materially result in a substantial reduction of his risk of re-offending.
14. The first of the criteria referred to in s 9(3)(a) is the safety of the community. This has been addressed by the above findings. Section 9(3)(b) directs attention to reports prepared by the persons appointed under s 7(4). I have discussed those reports in some detail.
15. Section 9(3)(c) requires the Court to consider the results of other assessments prepared by psychiatrists. I have considered those, specifically the report of Mr Parker.
16. Section 9(3)(d) requires the Court to consider the results of any statistical or other assessment as to the likelihood of Mr Baldwin's re-offending. I have addressed the outcomes of the Static-99R model as well as made mention of the results of his assessment under the RSVP protocol.
17. Section 9(3)(d1) requires this Court to consider any report prepared by Corrective Services addressing the extent to which he can reasonably and practically be managed in the community. I have already described the terms of the risk management report which has been updated by Mr Williams' affidavit.
18. Section 9(3)(e) directs attention to any treatment or rehabilitation programs which Mr Baldwin had the opportunity to participate in and the outcome. I have described the evidence concerning his participation in the CUBIT program.
19. Section 9(3)(f) directs attention to the level of the offender's compliance with any obligations to which he has been subject while released on parole or while subject to an earlier extended supervision order. I have described his level of compliance with his parole conditions as well as the interim supervision order made by Wilson J.
20. Section 9(3)(g) refers to the level of an offender's compliance with offences under the Child Protection (Offender's Registration) Act 2000 (NSW) or the Child Protection Offenders Prohibition Act 2004 (NSW). There is nothing in the material to suggest that Mr Baldwin has not complied with those requirements since his release on parole.
21. Section 9(3)(h) directs attention to a consideration of Mr Baldwin's criminal history and pattern of offending. I have already addressed that matter.
22. Section 9(3)(h1) requires that the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender be considered. I have outlined the relevant parts of Judge Ellis' sentencing judgment.
23. Section 9(3)(i) requires the Court to consider any other information that is available as to the likelihood the offender will in future commit offences of a sexual nature. I have described such material as is relevant to that assessment.
24. Otherwise I note that I have considered the effect of the conditions sought to be imposed on Mr Baldwin's freedom of movement. I accept that there is a significant imposition on his personal freedoms imposed by the proposed conditions, specifically the requirement that the DSO can direct him not to associate with any other person.
25. Nevertheless, bearing in mind the history of his criminality and the other material, I consider it appropriate to make an ESO and impose the conditions sought.
26. Finally, I note that the term of the proposed order is, as I have said, two years and ten months. This appears to reflect the evidence of Dr Samuels to the effect that a proposed term of three years was appropriate given Mr Baldwin's age. I accept that assessment.
27. Accordingly I make order 3 in the amended summons.

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: 06 December 2019