State of New South Wales v Banks

Legislation

1. The Crimes (High Risk Offenders) Act defines a "high risk sex offender", a "high risk sex offender extended supervision order" and a "high risk sex offender continuing detention order" by reference to s 5B, s 5C and s 5D of the Act respectively. Only an offender that is a high risk sex offender can be the subject of an ESO or a Continuing Detention Order and, by s 5B(2) of the Act, a high risk sex offender is defined as a sex offender for whom the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence, if not kept under supervision (including detention).
2. By the provisions of s 5C of the Act, the Supreme Court is given the jurisdiction, on application, to make an ESO and under s 5D of the Act, the Court is given the jurisdiction to issue an order being a Continuing Detention Order in circumstances where the Court does not consider that adequate supervision will be provided by an ESO.
3. The provisions of s 9 and s 17 of the Act prescribe the manner in which the Court may determine an application for an ESO and a Continuing Detention Order, respectively. Dealing with s 17 of the Act first, the provision allows the Court to determine an application by one of three steps: the making of an ESO; the making of a Continuing Detention Order; or the dismissing of the application. In relevantly similar terms, s 9 of the Act allows the Court to determine an application for an ESO by one of two steps: the making of an ESO; or the dismissing of the application.
4. The defendant is a serious sex offender. On 17 April 2009, the defendant was convicted of 13 offences, namely: aggravated act of indecency (2 counts); aggravated indecent assault (4 counts); common assault (6 counts); and attempted aggravated sexual intercourse without consent. The defendant was sentenced to a total sentence of imprisonment of four years and six months with a non-parole period of three years and four months.
5. On 25 September 2009, the defendant was convicted of blackmail by threat to publish, assault with act of indecency and assault occasioning actual bodily harm and was sentenced to a total sentence of imprisonment of four years and six months with a non-parole period of 18 months. As earlier stated, the sentences imposed expired on 28 March 2016. Apart from the two series of sentences imposed and just mentioned, the defendant has a long criminal history, including, when a juvenile, acts of violence (see Annexure B to the Affidavit of Myles Pulsford affirmed 14 December 2015).
6. There is an issue between the parties as to whether the offences in 2007 against the female victim fall within the definition of "serious sex offence". But it matters not. The offences in 2006 against the male victim fall within the definition of "serious sex offence" within s 5(1) of the Act.
7. In terms of the jurisdiction of the Court to issue orders, either a Continuing Detention Order or an ESO, it is unnecessary to resolve that controversy. Nevertheless, given the definitions in s 5(1) of the Act, the first index offences are plainly ones that render the defendant a serious sex offender, being a person serving a sentence of imprisonment for a serious sex offence or a sentence partly concurrent and partly consecutive with such a sentence.
8. The construction of the legislation and, in particular, the term "unacceptable risk" is a little controversial. The term "unacceptable risk" is not defined in the legislation and the controversy stems from a difference of opinion between some of the members of the Court as to how to construe the term.
9. The process of statutory construction is no longer one of controversy. It requires the words of a statute to be given a meaning that the legislature is taken to have intended them to have. Ordinarily, the meaning given in that process will correspond with a grammatical meaning of the provision, but not always.
10. The meaning given to a statutory provision must include the context of the phrase or word, the consequences of a grammatical meaning being given, the objects of the statute as a whole and the achievement of harmonious goals by the legislature: Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355 at [70] and [78] (per McHugh, Gummow, Kirby and Hayne JJ).
11. The controversy relates to what seems to be a difference as to whether the term "unacceptable risk" is given its "everyday meaning in the context of the provision" or involves a "balancing exercise" in which one factors the effect of an order on the offender and balances that with the likelihood of committing a further serious offence and the gravity of such an offence that may be committed.
12. In practical terms, the difference may not be substantial. The difference is discussed in the judgment of Hoeben CJ at CL in Attorney General for the State of New South Wales v McGuire [2015] NSWSC 152 at [41]-[43].
13. In my view, and with respect to the judges involved in the "controversy", the issue is resolved by a construction of the Act as a whole. The definition of "unacceptable risk" ought, in accordance with the principles set out above and derived from the judgment of the High Court in Project Blue Sky, be given its meaning in the context of the Act and in order to achieve harmonious goals. As a consequence, the term "unacceptable risk" is given its everyday meaning in that context.
14. However, when the Court comes to construe the provisions of either s 9 of the Act or s 17 of the Act, by each of which the Court may determine an application either by making the relevant order (or in the case of an application for continuing detention, an ESO) or may dismiss the application.
15. It is at the point of the exercise of the jurisdiction conferred by s 9 of the Act or by s 17 of the Act that the balancing exercise in which one considers the effect of such an order on the offender, the probability of an offence being committed and the gravity of any likely offences.
16. Each of s 9 of the Act and s 17 of the Act requires the Court to have regard to any matter the Court considers relevant. As a consequence, the achievement of harmonious goals is better effected by not considering the balancing exercise at the time of determining whether there is an "unacceptable risk", but, rather, at the time at which the jurisdiction to issue the orders considers as to the making of an order of any kind.
17. As earlier stated, the offender has a long criminal history which started when he was a juvenile. His first offences occurred when he was 14 years of age and were damage to property and, even as a juvenile, he was convicted of intimidation, setting fire to a car, break enter and steal and contravention of an apprehended violence order. As a juvenile the defendant had alcohol abuse issues and cannabis abuse issues.
18. As an adult he had a number of convictions that were not sexual offences. It should be made clear, that most "sexual offences" have little to do with sex. The offender is usually motivated by a need for control and an exercise of violence with less significance related to sexual gratification.
19. Nevertheless, as an adult he has been sentenced for damage to property, a number of public order offences, such as enter Inclosed Land, use of offensive language and offensive behaviour. Most of those, I accept, are offences that are probably alcohol related.
20. The defendant was charged and convicted of offensive conduct, possession of an offensive implement in a public place and malicious damage, for which he was placed on a good behaviour bond. He has also been convicted of resist police officer, possess offensive implement, common assault and malicious damage.
21. The defendant, as already stated, has been convicted of two sets of sexual offences, one in 2006 against a male victim and one in 2007 against a female victim. Only the earlier incident falls within the definition of "serious sex offence", but the second set of offences, while not fitting within the definition of "serious sex offence", was an offence, committed over a three or four month period in 2007, where the defendant threatened to publish material obtained during a course of a casual sexual relationship with a female, which material was photographs that were explicit and videos of sexual exploits.
22. The threat to publish was a threat to publish to the victim's grandfather (with whom she lived and who was known to have a heart condition), her employers at a child care centre, and friends at university. The threat was made to intimidate the victim into submitting to anal sex with him and the publication to him of naked photos of her. He was found guilty of blackmail.
23. Later he threatened to come and burn her house down. It seems that on each occasion alcohol was a contributing factor to the conduct.
24. In July 2007, after the earlier offences of blackmail and intimidation, the defendant demanded that the same victim visit him at his home in contravention of a domestic violence order that had issued and while the offender was on bail for the 2006 offence.
25. The first index offences (so called) were also alcohol related and involved subjecting the victim (a male) to a prolonged series of depraved acts including burning parts of his body with a fiery stick, placing stinging nettles on his genitals, pouring urine into his face and mouth and attempting to insert a stick into his anus. The events were filmed by the defendant and his girlfriend, with the defendant giving a running commentary of what unfolded. The sentencing judge, in his remarks, said: "The acts on the DVD are ones of mindless degradation and cruelty. There was as far as I am able to determine, no basis of pre-existing hostility towards the complainant to explain it. The behaviour of all four offenders at the time would suggest that he viewed the atrocious acts being inflicted on the complainant as some form or sport."

Other sexual allegations/ incidents of relevance

1. There are allegations, admitted by the defendant at the time, of sexual abuse of his younger sister who was, at the time, nine years of age. At the time, the defendant was 12. There were also allegations of sexual abuse of an even younger sister (aged eight). The defendant admitted the conduct and accused his sisters of exposing themselves to him, blaming them for what had happened. This, laying responsibility on the victim, is a feature of the defendant's responses to various sexual offences.

Compliance with supervisory obligations

1. The defendant has been under supervision of various kinds for a long period. That is an obvious observation, given that his first offence occurred at 14 years of age and involved a bond. He has been under community service orders, apprehended domestic violence orders, control orders, and under the supervision of probation and parole on a number of occasions.
2. As already stated, the offences against the female victim were committed by the defendant in breach of an apprehended violence order and while the defendant was under bond and bail conditions, pursuant to s 9 and s 12 of the Crimes (Sentencing Procedure) Act 1999.
3. While the completion of obligations under the s 9 bond seemed to have improved as the defendant aged, the Probation and Parole Service in its Pre-Sentence Report for the 2007 charges noted that the defendant still had problems with alcohol but that his use of alcohol seemed to be more problematic than other illicit substances.

Behaviour whilst in custody

1. The offender has misconduct charges against him during his time in custody. He produced positive urine samples to non-prescribed drugs and has been found in possession of a weapon. He has been involved in a fight, which, it seems, had sexual offence motivation.

Possible release to parole

1. On 3 December 2015, the State Parole Authority made a provisional decision to release the offender on parole subject to a submission from the Commission of Corrective Services. The Commissioner's view was that a staggered release approach is the most appropriate in relation to this defendant. It is this approach, which motivates the formal orders sought by the State of New South Wales in this application.

Treatment and rehabilitation

1. The offender has been sent to alcohol and drug counselling, with particular regard to his cannabis use. His cannabis use seemed to be under control after that counselling. However, later, his alcohol consumption seemed to remain a problem.
2. In custody he has completed the Get Smart Programme and has attended subsequent recovery and maintenance meetings. Alcohol has been identified as a particular risk factor and the defendant has, himself, expressed concerns about abstinence becoming a condition of supervision in the community.

CUBIT (Custody Based Intensive Treatment Programme)

1. The defendant applied for admission into the CUBIT programme in 2010 and a place did not become available until 2013. The defendant then spent several months in a high intensity programme, but was placed on a Therapeutic Behaviour Contract ("TBC") in June 2014 after it was found that the defendant appeared to be unwilling to apply to everyday life the information and strategies he had learnt in therapy.
2. The offender has, according to Corrective Services, failed to make in-roads into some of the problematic behaviours and personality traits that related to his offending. It is thought that his participation was considered superficial and engaged in behaviours that were deliberately designed to upset the therapeutic process. An example of this given by Corrective Services is the defendant's admission to having rape fantasies about his therapist.
3. The defendant's therapeutic psychologist in the CUBIT programme referred, in a Pre-Release Report of 18 July 2014, to the placement on the TBC and stated: "Subsequently, he failed to attend a scheduled session of the programme without informing the therapist and with no reasonable excuse. This behaviour was considered indicative of a general disregard for the need for him to apply the information he is learning in treatment; that is, he understands the information presented in group but chooses not to apply it in his everyday life. Despite his understanding of the content, his refusal to apply the information means there is no significant change to his estimated risk level. The Therapeutic Behaviour Contract was reviewed and [the defendant] was suspended from treatment for one week. Since his return to group on 4 July 2014 his attitude appears to have improved and he appears to understand the need for him to apply the information he learns in group."
4. In September 2014, the defendant was suspended from CUBIT for not complying with the obligations of the contract. The difficulty, it seems, was that he had voluntarily produced journals for the purposes of rectifying untruths and admissions he made during the programme, which journals contained material that reflected deviant sexual thoughts and behaviour. An example was that many of his sexual thoughts were often violent or sadistic and gratuitous in that they appeared to want to engender a negative response from the persons reading the journal.

Risk of future offending

1. The offender has been assessed several times over the years as to the risk he might pose of recidivism. Dr Payne utilised scoring in well understood and recognised measuring tools and identified that the defendant's score was in the high risk range for static risk and the high range for stable risk. When combined, Dr Payne suggested that these measures placed the offender in the "very high priority category for supervision and intervention in comparison to other sex offenders".
2. Mr Ardasinski, Senior Psychologist, Corrective Services New South Wales, issued a report dated 9 July 2015. Mr Ardasinski described the offender in the following terms: "Mr Banks is a 32 year old man who is serving a custodial sentence for sexual offences committed in 2006 and 2007 … in separate incidents against an adult male acquaintance and an adult female intimate partner. He had a history of prior offending including dishonesty, violent and property damage offences, but no recorded previous sex offences. There have been concerns raised in treatment about Mr Banks' level of engagement and sexual self-regulation with his reporting deviant (rape) fantasies and homicidal thoughts about the victim and about one of his therapists during the programme. Based on the available information, Mr Banks presents an overall high risk of sexual re-offending relative to other male sexual offenders. His risk of repeat sexual offending would be significantly increased in situations in which he feels 'trapped', is affected by alcohol, has access to a potential victim and has engaged in rumination and/or deviant sexual fantasies or homicidal thoughts regarding that or other victims."
3. Mr Ardaskinski also dealt with a number of Justice Health reports and suggested that the information "maybe consistent with a diagnosed personality disorder - most likely Anti-social Personality Disorder (ASPD) or Psychopathic Personality".
4. The defendant's record shows a poor ability to manage stress, both in the community by his use of sex and alcohol to relieve stress and in therapy by having deviant sexual fantasies about his therapist. The two fundamental risk catalysts seem to be the abuse of alcohol and a feeling of being "trapped". Each of the psychiatric reports made clear that substance abuse, especially alcohol, elevates the presenting risk both in terms of sexual offences and violent offences.
5. There is also concern expressed that the defendant may develop a deviant sexual preference, namely, coercive sex.

Conclusion as to order

1. Plainly, on the basis of the above, the defendant poses an unacceptable risk, as that term has been defined in the Act. It is necessary, in my view, to make an order and not, simply, to dismiss the application. The remaining question involves the order that should have been made.
2. There is a degree of uncertainty as to whether the defendant's risk can be managed adequately in the community. Each of the psychiatrists, appointed pursuant to interim orders of the Court, makes clear that the continuing detention of the defendant has no therapeutic advantage. Dr Ellis expresses the option: "In this case with significant monitoring that can be put in place with an Extended Supervision Order, including restrictions on accommodation such as residing in COSP and restrictions on associating with vulnerable persons, the safety gained by further incarceration could be off-set by the potential greater long term gains in risk reduction in a structured community setting" (page 15 of Report).
3. While Dr Ellis expresses the opinion that a period to establish anti-libidinal treatment could be of benefit, being a period of approximately three to six months, the Court notes that, from other evidence in the proceedings, the assessment for and administration of anti-libidinal medication is not available for the defendant in custody and would need to occur in the community.
4. As earlier stated, Dr Samuels expresses a number of concerns about the defendant, but makes clear that "regardless of these concerns" he "cannot see any clear therapeutic rationale in terms of his remaining in custody for further sex offender treatment" (page 35 of Samuels' Report).
5. Further, Dr Samuels opines that: "Mr Banks is likely to comply with all of the requirements of the COSP. He almost certainly will reach the point where he is ready to make the transition to the next stage and it is at that point that I would have the most serious concerns about the potential risks that he poses" (page 36 of Dr Samuels' report). He concludes: "It is not my view that his risk cannot be managed in the community and at this point the benefits of continued detention from a therapeutic perspective would seem to be quite limited" (page 37 of Dr Samuels' report).
6. Dr Samuels takes the view that it is very likely that the defendant will comply with all that is asked of him in the short term. His difficulties remain longer term difficulties when the degree of supervision becomes less stringent.
7. Ultimately, the difficulty expressed by some psychiatrists is that the defendant's character allows him to go through the motions of compliance without it affecting his underlying deviance. The difficulty with such an opinion is that there is no objective way in which it is possible to differentiate between "play-acting" and "reality", when it comes to the changes to the defendant's behaviour.
8. I accept that the authorities, namely Corrective Services, must have some time to deal with finding appropriate accommodation for the defendant. Apparently, there is accommodation available. Secondly, Corrective Services need to familiarise the defendant with that accommodation and those environments to minimise the level of stress and anxiety which may, in turn, occasion problematic behaviour such as the consumption of alcohol or illicit drugs.
9. The proposed programme that is sought to be implemented by the making of the orders proposed by the State of New South Wales is problematic and to some extent irrational. The proposed programme suggests a continuing detention order for nine months to allow the phasing-in of day release and the familiarisation of the defendant with the community environment in which he will be placed. The difficulty with that proposition is that Corrective Services have had a significant number of years to do just that.
10. Further, it is suggested by the State of New South Wales that if the defendant complies behaviourally during the course of the acclimatisation period, that will allow him to be placed in the community over the nine months at more regular intervals. The placement thus far (at least since the making of the application for the Continuing Detention Order and/or ESO) has been either irregular or infrequent and not by reason of any misbehaviour in the community by the defendant.
11. The effect of the plan proposed for the defendant is that if he were to behave he will receive a minimal amount of placement in the community during the next nine months, but placement on a regular basis. If, on the other hand, he misbehaves, he will not be placed in the community at all, except for one month at the end of the nine month period.
12. It seems to me that the effect of such a programme is to give less acclimatisation to a person who is unable to behave than to a person who is able to behave.
13. Further, it seems, if the defendant were misbehaving he would have one month or thereabouts as a period during which Corrective Services could acclimatise the defendant to the community and after which he would be under an Extended Supervision Order. The defendant has been behaving on the placement that he has thus far been given.
14. In the circumstance, I have allowed the one month placement for the Corrective Services to allow it to arrange the accommodation and to familiarise the defendant with the location, the environment and the community generally. Thereafter, the defendant shall be on an Extended Supervision Order. In my view, at the end of three years of such an order, the Department will be in a better position to assess any ongoing need for supervision and the conditions under which it should operate.
15. Of course, any breach of the Extended Supervision Order by, for example, the consumption of alcohol, is an offence and, depending upon the seriousness of any such breach, involves a return to the prison environment.
16. As to the conditions to be imposed on the Extended Supervision Order I have largely accepted the amended conditions proposed by the State of New South Wales but make the following comments: 1. I have accepted conditions 1,2,3,4,5,6,7,8 and 9. In relation to condition 8, I have granted an exception in emergency situations, provided the defendant notifies the Supervising Officer by text and complies with any reasonable direction received in relation to that text. 2. I have accepted conditions 10,11,12,13 and 14, without amendment. 3. I have accepted conditions 15,16,17,18 and 19, without amendment. 4. In relation to paragraph 20 of the conditions, I have omitted the requirement for the defendant compulsorily to enter available employment as directed by the Supervising Officer but continue the prohibition on starting work that is not approved by the Supervising Officer. It is unnecessary to decide the issue on any constitutional or legal basis, but questions have been raised as to the power of government to force a person into compulsory labour. In any event, in the absence of express permission to force someone into work that is not desired, I would not exercise a discretion so to do: (Seaman's Union v Utar Development Company (1978) 144 CLR 120 at 138 (per Gibbs J), at 153-154 (per Mason J) and at 157 (per Murphy J). The Australian Constitution and the State Constitutions work on the basis that we live in a democratic society and the proposition that the Court could impose a condition in which a person was forced to work or take up employment at the direction of an officer of government is, in the absence of express valid provisions, not one that ought lightly be imposed. Otherwise the conditions in Part D, proposed by the State of New South Wales have been adopted. 5. Likewise, in relation to Part E relating to drugs and alcohol the suggestion of the State of New South Wales (as amended) has been accepted although, in condition 26, I have added "restaurants" to cafes and coffee shops. The entry into licensed premises does not limit the condition that the defendant must not possess or use alcohol or illegal drugs. 6. In relation to Part F, non-association, I have, to avoid doubt, required a non-association with people to be a direction in writing (including text messages) and require in relation to other persons in respect of whom there is an association prohibition, that they be persons who, to the knowledge of the defendant, are consuming, or are under the influence of, illegal drugs or alcohol. 7. In relation to condition 31, I have required the defendant to notify the Supervising Officer earlier than the department has suggested by requiring him to notify them of an intention to start a close social relationship with someone and otherwise I have accepted the amended proposals of the State of New South Wales.
17. The foregoing deals with the submissions of the defendant relating to clarity and any inadvertent breach as submitted in paragraph [50] of his written submissions, except conditions 46 (as proposed) and condition 50 (as proposed).
18. As ordered, I have not excluded R18+ categories of films from the prohibition, because the Supervising Officer has been given the capacity to approve in advance, in writing, any film that the defendant seeks to view.
19. The amended conditions proposed by the State of New South Wales take account of the objection to condition 50 (as originally proposed).
20. It is otherwise unnecessary to deal with the remaining conditions. For the foregoing reasons I made the orders on 24 March 2016 and imposed the conditions continuing the ESO on 18 April 2016.

Amendments 05 July 2016 - [19] Typographical error. 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: 05 July 2016