State of New South Wales v Boatswain - [2014] NSWSC 1446 - NSWSC 2014 case summary — Zoe

NSWNSWSC

State of New South Wales v Boatswain

[2014] NSWSC 1446

Supreme Court of NSW|2014-10-23|Before: Davies J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2014-10-23

Before

Davies J

Catchwords

176 A Crim R 110 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187

Source

Original judgment source is linked above.

Catchwords

176 A Crim R 110 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187

Judgment (32 paragraphs)

[1]

Judgment 1On 18 December 1992 the Defendant was sentenced for a number of offences. Seven of those offences were serious sex offences within the meaning of s 5(1) Crimes (High Risk Offenders) Act 2006 (NSW). 2The Defendant was sentenced at the same time for a number of other offences, some of which were offences related to those committed against the two victims of the sexual offences. 3The sentences imposed by Judge Urquhart QC were as follows: (a) Three counts of sexual intercourse in circumstances of aggravation - a sentence of penal servitude for a minimum of nine years with an additional term of three years for each offence. Each such sentence commenced on 30 July 1991 with the minimum term expiring on 29 July 2000 and the additional term expiring on 29 July 2003; (b) One count of robbery of the first victim - penal servitude for a minimum term of three years and an additional term of one year commencing 30 July 1991, with the minimum term expiring on 29 July 1994 and the additional term expiring on 29 July 1995; (c) Four counts of sexual intercourse in circumstances of aggravation - penal servitude for a minimum term of six years with an additional term of eight years. The minimum term commenced on 30 July 2000 and expired 29 July 2006 with the additional term expiring on 29 July 2014; (d) One count of robbery against the second victim - penal servitude for a minimum term of three years with an additional term of one year. The minimum term commenced on 30 July 2000 and expired 29 July 2003 with the additional term expiring on 29 July 2004; e) One count of possessing a shortened firearm - a fixed term of 12 months from 30 July 2000 to 29 July 2001. 4The total aggregate sentence was 23 years imprisonment with a minimum term of 15 years. It may be noted that the sentences for each of the nonsexual offences were made wholly concurrent with the sentences for the sexual offences. Accordingly, the whole of the time served has, in a practical sense, been in respect of the sexual offences. 5An appeal to the Court of Criminal Appeal was dismissed: R v Warwick Antony Boatswain (Court of Criminal Appeal (NSW), 15 December 1993, Unrep). 6The Defendant was not released from custody until 23 June 2014 and then only because he was successful in showing that the Parole Authority had made errors in relation to his application for parole: Boatswain v State Parole Authority [2014] NSWSC 501. However, the principal reason for his not being released to parole at an earlier time was repeated infractions of prison discipline which also involved his failing to complete in due time appropriate courses as a convicted sex offender. 7The interim supervision order made by Fullerton J on 2 July 2014 included conditions which the Defendant was prepared to accept on an interim basis. However, he reserved his right to argue for their non-inclusion in a final order.

[2]

Legal principles 8Section 5B provides that if and only if the offender is a high risk sex offender can an extended supervision order be made. Section 5B(2) says: An offender is a high risk sex offender if the offender is a sex offender and 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 he or she is not kept under supervision. 9In Director of Public Prosecutions (WA) v Williams [2007] WASC 206; 176 A Crim R 110 Wheeler JA (with whom Le Miere AJA agreed) said at [63]: In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention. 10In Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; 198 A Crim R 149 Steytler P and Buss JA said at [27]: The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk - A return to basics (2006) 20 AJFL 249, 252), the advantage of the phrase 'unacceptable risk' is that 'it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case ...'. 11In State of New South Wales v Richardson (No. 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 I said at [90]: Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. ...

[4]

The index offences 14The first set of offences was committed on 4 July 1991. The victim was a woman who had arrived home from work. She parked her car in the garage and walked into the storeroom where she saw the Defendant pointing a gun at her. He forced her to lie down and he tied her hands behind her back. He demanded to know where her money was. 15He tied her to the bedhead and blindfolded her with a leather belt. She felt a knife flicking her wrist. He engaged in oral and vaginal intercourse with her. He subjected her to degrading and humiliating remarks and threats of violence. He ransacked her house and found a Visa Card and obtained the PIN by threats of violence. He continued with his sexual abuse. He left her bound with rope and masking tape tied to the bedhead. She was only freed at 7:30am the following morning when a neighbour heard cries for her help. The Defendant went with his girlfriend to a bank at Kings Cross where he attempted to use her Visa Card. They were photographed by a security camera. 16The second set of offences took place on 30 July 1991. The Defendant broke into the home of a woman who was home alone. He physically assaulted her when she screamed and bit one of his fingers that he had put inside her mouth. He has a six inch bladed knife and threatened to kill her with it. 17He demanded to know where her money was. He bound her hands with masking tape behind her back and placed a scarf over her eyes so that she could not see. 18He then commenced a series of sexual assaults upon her which involved digital and penile penetration of her vagina as well as penile penetration of her mouth and her anus. These sexual assaults occurred more than once during the night. He also searched her house and found an Advance Bank key card. He demanded the PIN but she gave him an incorrect one. He travelled to Five Dock and attempted to use it. Subsequently he returned to the area of her house. The Sentencing Judge said that the overwhelming inference was that he did so because he had been unsuccessful in using the key card. He was arrested shortly afterwards.

[5]

Katherine Sahm 19Ms Sahm is a forensic psychologist and is the Chief Psychologist North for Corrective Services NSW. She prepared a lengthy report from 24 March 2014 based on an interview with the Defendant on 5 March 2014 and an examination of all of the Defendant's case files within Corrective Services. Significant matters referred to in this report are as follows. 20Whilst in custody the Defendant had approximately 81 institutional punishments although there had been none since 22 February 2012. Twenty five of them were drug related and 22 of them involved behaviour or language which was insulting, threatening or intimidating with one charge of fighting. 21His criminal history showed that the Defendant had committed offences while on probation and parole before the index offences. These offences committed whilst on parole included armed robberies. He had also been charged with escaping lawful custody. 22Ms Sahm's assessment was that the Defendant had demonstrated a progressive but gradual positive change over time while in custody and had become less adversarial in his behaviour culminating in his last two years of incarceration with no internal punishments. She noted, however, that non-compliance with supervision was yet to be tested in a less restrictive environment. 23She noted that he had completed approximately 18 months cumulatively of intensive treatment with CUBIT comprising three group sessions per week and a further 21 months of individual preparatory treatment with Ms Young (a psychologist) ending in 1999. He had also participated in other programs to address his criminogenic needs including drug and alcohol programs. 24Ms Sahm assessed him for his further risk of offending using the STATIC 99R, the ACUTE 2007 and the STABLE-2007 protocols. The STABLE-2007 is concerned with dynamic risk factors. She concluded that when the three protocols were combined his scores placed the Defendant as moderate current risk priority for sexual and violent recidivism and general recidivism. In relation to the dynamic risks, the areas which she identified as clinically significant areas of concern were: (a) capacity for relationship stability; (b) negative emotionality; (c) cooperation with supervision; (d) sexual preoccupations sex drive, sex as coping, deviant sexual preference.

[6]

Dr Andrew Ellis 25Dr Ellis, a forensic psychiatrist, interviewed the Defendant for a period of two hours on 14 July 2014. As is usual in these matters he had available to him a large number of documents related to the Defendant's history including reports from psychologists and psychiatrists and various material from Corrective Services. 26Dr Ellis took a detailed history from the Plaintiff concerning his background, his development and his criminal history. 27In the course of describing his reasons for committing the serious sex offences the Defendant said that he formed a revenge fantasy for what he thought was mistreatment by the police in relation to a robbery he did not commit but in respect of which he was arrested. The revenge fantasy involved a need to control and humiliate a female victim. It involved tying up a victim, blindfolding her to avoid detection, wearing a mask to avoid detection and frightening the victim with a gun. He claimed that revenge fantasy was his motivation for the two offences. 28He said that after he had committed the first series of offences what he experienced did not conform completely to his fantasy material and that led him to commit the second series of offences "to get it right". Of some concern is that he reported that he was not satisfied with the sexual experience involving the second victim and thought that he may have gone on to commit more offences in order to perfect the experience. 29Dr Ellis diagnosed him as having a Paraphilic Disorder and said that he potentially met criteria for Sexual Sadism Disorder. Paraphilic disorders are chronic relapsing conditions. Dr Ellis also thought that he met the criteria for Anti-Social Personality Disorder and Substance Use Disorder. 30Dr Ellis had read the report of Ms Sahm and concurred with her score of 5 for the Defendant on the STATIC 99R. 31The limitations of the STATIC 99R are referred to by Dr Ellis. These limitations are well known to and understood by judges who hear these cases on any regular basis. However, the assessment using that protocol is one factor to be taken into account when assessing the risk of reoffending. Dr Ellis thought that it may be that the Defendant was closer in characteristics to the high risk group under the STATIC 99R. 32Dr Ellis also made reference to the RSVP protocol in his evaluation of the risk of the Defendant's re-offending. He drew attention to the significance of his antisocial personality orientation as being a factor consistently identified with sexual re-offence. 33Dr Ellis's conclusion on re-offending was as follows: A consideration of the type of possible sexual offence should be considered in an estimation of risk. In the case of Mr Boatswain, given the particular pattern of sexual arousal, the likely type of victim would be a woman in a situation where they were alone or in a position of vulnerability. A likely offence would be without warning. The associated intimidation and loss of a sense of bodily integrity would be of the type where physical and psychological injuryare foreseeable. He was embarking on a pattern of escalating behaviour which may have led to more risk of physical injury. In considering actuarial, structured professional and clinical parameters in the absence of any treatment or supervision, Mr Boatswain would fall into a group of persons with a risk for serious sexual offending, offending that is statistically moderate to high in frequency but of a type with catastrophic consequence, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk. 34Dr Ellis said also that paraphilic disorders, as considered by group expert authority, are not deemed in remission until five years from release from a controlled environment with noted impairment in social (including sexual) and other areas of function. 35In terms of ongoing needs and treatment Dr Ellis said this: Negative emotions and supervision cooperation are considered in the report of Ms Sahm [scil concerning his] ongoing needs. I agree with this opinion, based on his self report at interview of long term issues with control of anger, statements indicating a sense of injustice, statements attributing blame externally and the history of poor emotional control evidence by multiple institutional infractions. This area does appear to have matured over time, but requires continued attention from Mr. Boatswain, treatment and supervisory staff. 36Dr Ellis recommended that the Defendant be referred to a forensic psychiatrist for assessment for anti-libidinal medication. He recommended restrictions on internet and pornography and restrictions on weapon carrying. 37From a psychiatric perspective he said a period of five years was considered reasonable in order to improve functions in the community and refine the appraisal of risk. A period of 24 months would be required to secure stable, independent accommodation, maintain a stable mental state and regular meaningful activity both occupational and social in the community, given the restrictions on persons subject to extended supervision orders. He thought a further 36 months of regular treatment in a psychological program, coupled with regular review of medication, both opioid substitution and anti-libidinals should they be prescribed, would be necessary. Dr Ellis said his psychiatric disorders were chronic and likely to persist beyond any period of supervision but might be better internally controlled at the end of the five year period.

[7]

Dr Jeremy O'Dea 38Dr O'Dea, another forensic psychiatrist, interviewed the Defendant on 4 August 2014 for approximately two hours. Dr O'Dea had available to him the same material provided to Dr Ellis. 39Dr O'Dea described the interview in this way: He initially sat quietly in the chair and was settled, interactive and superficially cooperative, but as the interview progressed he became increasingly angry, surly, dismissive, and controlling of the interview at times, in an apparently overbearing manner. He appeared of adequate intelligence and spoke at length of his predicament, but with limited remorse or contrition evident, and gave an inconsistent and contradictory account of his history at times. 40A reading of Dr O'Dea's report with that of Dr Ellis shows inconsistent reporting on behalf of the Defendant. The following might be thought to be significant. (a) Dr Ellis reported that he began drinking alcohol at the age of 14 and before he went into custody he consumed two or three standard drinks each night on a less than fortnightly basis. He reported to Dr O'Dea that he had not drunk alcohol on a regular basis in the past and said "I don't drink ... I never have drunk ... I got drunk once ... when I was 13 or 14." (b) When Dr Ellis asked him about his current sexual function he said that he masturbated one to two times each week. He said that his erections were less potent than in the past but he experienced no significant dysfunction and was able to ejaculate and orgasm without difficulty. On the other hand, he told Dr O'Dea that his sex drive was non-existent and he was like a monk. Later in the interview with Dr O'Dea when asked about medications to lower his sex drive he reiterated that he did not have any sex drive. (c) He denied to Dr Ellis any fantasy, urges or behaviour consistent with exhibitionism, voyeurism, frotteurism, fetishism, transvestism, auto-erotic asphyxia, masochism, paedophilia or bestiality. On the other hand, Dr O'Dea noted in the report of Ms Sahm that the Defendant had described that from about the age of 22 he had sexual fantasies about "breaking into a woman's home and tying her up so I could have whatever sex act with her". 41Dr O'Dea diagnosed him as satisfying the categories of Substance Use Disorder, Anti-Social Personality Disorder and Paraphilic Disorder, in particular Sexual Sadism Disorder. Dr O'Dea said it was reasonable to assume that he had a significant risk of engaging in further sex offending behaviours in the community in the long term including a significant risk of committing a further serious sex offence as defined in the Act. Dr O'Dea said that although the Defendant had participated in psychological sex offender programs in custody, Dr O'Dea was not aware that there was any good evidence that psychological treatment programs alone, and in custody, have a significant impact on reducing the risk of sex offenders, particularly those with identified sexual deviance or Paraphilic Disorders committing further sex offences, including further serious sex offences as defined in the Act. 42Dr O'Dea said that he would consider that the Defendant's history of sexual deviance, his history of personal, interpersonal and social functioning, and his history of Substance Use Disorder, despite recent progress before he left custody, remained significant risk factors that would benefit from ongoing attempts at management in the community. Dr O'Dea acknowledged the limitations of the STATIC 99R but concluded: [90 ...from a full clinical psychiatric risk management perspective, and as judged by various actuarial and more so called dynamic risk assessment instruments, Mr Boatswain's risk of engaging in further sex offending behaviours in the community in the long term would be considered significantly high and appropriate for specific psychiatric treatment as outlined above. [91] More specifically, it would seem reasonable to consider that there would be a significantly high degree of probability that Mr Boatswain would be likely to commit a further serious sex offence" (as defined in Section 5(1) of the New South Wales Crimes (High Risk Offenders) Act 2006) in the community in the long term, if these above outlined treatment interventions above were not successfully implemented in the context of community supervision and monitoring. Whilst it is not possible, or clinically appropriate from a psychiatric perspective, to place a percentage likelihood of Mr Boatswain committing a further "serious sex offence", the significance of this risk from a clinical perspective may be considered commensurate to the likelihood as I understand is referred to in legal terms in "Tillman v Attorney General for New South Wales [2007] NSWCA 327". 43Finally, Dr O'Dea said that the Defendant's risk of engaging in further sex offending behaviours in the community and of committing a further serious sex offence in the community was likely to be a longer term and potentially of at least five years duration.

[9]

Conditions 47The dispute in this matter involved the inclusion of particular conditions and the length of the Extended Supervision Order. 48In State of NSW v Green (Final) [2013] NSWSC 1003 RA Hulme J accepted at [36]-[38] that conditions: (a) ought to address specifically issues relevant to currently identified risk factors in relation to future offending; (b) should be limited to addressing conduct regarding the risk of future serious sex offenders as opposed to criminal offending generally; (c) should not be unjustifiably onerous or simply punitive. 49In State of NSW v Fisk [2013] NSWSC 364 Beech-Jones J said at [99]: The imposition of "appropriate" conditions under s 11 is governed by the overriding purpose of mitigating the identified risk of the high risk sex offender committing either serious sex offences, or at least offences of a sexual nature. 50Further, as is made clear in Green at [39] and in Attorney-General for the State of NSW v Gallagher [2006] NSWSC 340 at [21] the discretion in s 11 to impose conditions must be exercised in conformity with the legislative purpose of the Act, being the safety and protection of the community and the rehabilitation of the offender. 51Evidence was given by Ms Vicki McCarthy, a Community Corrections Officer within the Extended Supervision Orders Team. She has had some responsibility for the Defendant since his release on 23 June 2014. Her affidavit demonstrated some difficulties in persuading the Defendant to comply with the conditions of the interim order, particularly in relation to the requirement for him to notify in advance where he would be going, issues involving counselling and his general attitude to direction and supervision. Nothing that was put to her in cross-examination diminished the validity of that evidence. 52However, in paragraph 70 of her affidavit of 10 October 2014 she said this: Since meeting with Mr Boatswain on 1 August 2014 there has been a significant improvement in his response to supervision and his attitude towards the DSO. 53Bearing those legal principles in mind, and having regard to Ms McCarthy's evidence, I deal now with the conditions which were disputed.

[12]

Conditions 8, 9 and 10 59These conditions require the Defendant to inform the Departmental supervising officer of his movements in advance and prescribed periods in which this can be done. There is an exception in the case of the Defendant requiring urgent medical attention or other emergency. 60The Defendant opposes these conditions because of his experience in the manner in which they were administered, pursuant to the interim order. The Defendant said it was unreasonable and an invasion of his privacy to require him to notify up to ten days in advance all his movements. He also pointed to the difficulty of doing so. The Defendant, as with most people, it was submitted, would not know precisely what they were doing and where they were going a week or more ahead of time. 61The Defendant also pointed to some difficulties already experienced contained in the case notes that were Exhibit VM1. In short, it was said that on occasions the Defendant has been given the run around when trying to notify changes to his schedule brought about, perhaps, by matters beyond his control. 62Ms McCarthy gave evidence that, because of the difficulties the Defendant has had, the Team has been prepared to be more flexible than has been the case with other persons in a similar position. There was some evidence of changes that had been permitted to the schedules submitted by the Defendant. 63It may be accepted that orders 8, 9 and 10 involve a considerable invasion of privacy and would involve some difficulty in compliance for the Defendant. However, part of the case management plan involves bringing some structure into the Defendant's life. As noted earlier, he has spent the majority of his life from the age of 13 in some form of custody including custody for the last 23 years. He is likely to be institutionalised to a significant extent. 64It is necessary for him to attend regular appointments, to receive his daily medication of methadone or its equivalent, to attend counselling, to attend the centre responsible for endeavouring to obtain employment for him and for other appointments. In addition, at this early stage of his release the ESO Team is obviously concerned with ensuring that they know where the Defendant is at any given time and what his particular purpose is for being at that location, including who he might be having contact with. 65These conditions are not unusual conditions in ESOs. Given the risk of re-offending that I have discussed, and which has been identified by the psychiatrists, these conditions do not appear to be unreasonable or unduly onerous.

[20]

Conditions 4 and 5 83These conditions require the Defendant to notify the DSO as soon as possible of any relationship he proposes to enter with another person involving sexual or intimate contact. He must consent to the DSO disclosing the Defendant's offence history and that the Defendant is subject to this order with its details to the other person if the DSO is satisfied that it is necessary or desirable in the interests of the safety of the other person. 84The Defendant says that these conditions are open to administration in a manner that could be unduly onerous and oppressive and they are not necessary for the safety and protection of the community nor for the encouragement of his rehabilitation. He notes that his offences in July 1991 were against two strangers and not the woman with whom he was in a relationship with at the time. 85The Plaintiff says that the concern with Condition 4 is that the Department should know who the person is he is having a relationship with. It may be that the person has drug connections or criminal connections or is another person that is considered undesirable by the Department. Condition 5 is slightly different in that it is concerned with a person who might be a vulnerable person and whose safety might be at risk. 86As I noted earlier, Dr Ellis said in his report (at p. 15): A consideration of the type of possible sexual offence should be considered in an estimation of risk. In the case of Mr. Boatswain, given the particular pattern of sexual arousal, the likely type of victim would be a woman in a situation where they were alone or in a position of vulnerability. A likely offence would be without warning. The associated intimidation and loss of a sense of bodily integrity would be of the type where physical and psychological injury are foreseeable. He was embarking on a pattern of escalating behaviour which may have led to more risk of physical injury. 87Ms Sahm reported that the Defendant had had a number of short term relationships, about five or six, before he was last incarcerated and had been in a two year de facto relationship up to the time of the incarceration. There is no suggestion of any sexual violence involving the women with whom he was involved. The psychological and psychiatric evidence pointed only to strangers. 88Conditions imposed should be limited to addressing conduct regarding the risk of future serious sex offences as opposed to criminal offences generally. In the particular circumstances of this case I do not consider that either of those conditions ought to be imposed.

[21]

Part F: Access to the internet 89It is necessary to set out these terms in their entirety so that my reasons can be understood: PART F. ACCESS TO THE INTERNET Internet use 1. The defendant must comply with any reasonable direction given by the Departmental Supervising Officer regarding access to the internet by the defendant on any computer or other device (including mobile phone or tablet computer), including but not limited to: a. the use of parental lock or other device or software that may restrict access to or permit access only to certain web sites; b. the times and places that the defendant is permitted to access the internet; c. accepting the presence of an appropriate person, being a person previously approved in writing by the Departmental supervising officer for the purpose of this condition; d. restricting the use of the internet for specified purposes; and e. the use of Skype or any Voice over Internet Protocol (VoIP) or other similar services without the prior approval of the Departmental supervising officer. 2. The defendant must provide the Departmental supervising officer with details of the type of any internet connection used, or intended to be used, by the defendant, including whether the connection is a wireless, broadband, ADSL or dial-up connection. 3. The defendant must provide the Departmental supervising officer with details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used, or intended to be used, by the defendant through the internet. 4. The defendant must provide an inventory of any communication devices and data storage devices in the defendant's possession and advise the Departmental supervising officer of any change to the inventory immediately. Social networking services 5. The defendant must not intentionally access, join and / or connect to any internet based social networking service, including web-based, e-mail, instant messaging services and on-line community services ("internet based social networking services"), without the prior approval of the Departmental Supervising Officer and such approval should not be unreasonably withheld. 6. In circumstances where the defendant, joins and / or connects to any internet based social networking service, the defendant must inform the Departmental Supervising Officer of any login identification name and password for any internet based social networking service the defendant joins and / or connects to. 90The Defendant says that these conditions are too wide and are open to administration in a manner that could be unduly onerous and oppressive. The Defendant notes that he is agreeable to condition 1 of Part G which prevents him accessing or viewing any X-rated material. 91The use of the internet is not a straight forward consideration in respect of this Defendant. He entered custody at a time when social networking on the internet was unknown. It was relatively early days for the use that could be made of the internet and even of emails. Since the Defendant entered custody in 1991 methods of socialisation have shifted considerably, and social networking is a significant method of socialisation for people across most generations. 92The Defendant was not a sex offender who used the internet in any way to achieve his wrongful purposes. He is not a paedophile and did not seek out his victims through the internet. 93Nevertheless, the Defendant accepts condition G1 which prevents his accessing pornographic material by whatever means. The internet is now the largest repository of pornographic material. In addition, it cannot be assumed that there is no risk from the Defendant using the internet to seek out further victims. In other words, if he is determined to re-offend, it cannot be assumed that he will use the same methods that he used in 1991. 94In addition, it is important for the Department to know the persons with whom the Defendant is fraternising. Ordinarily, a sex offender is not permitted to have contact with other sex offenders. I note in that regard that an exception has been made for the Defendant in relation to one particular person whom he is entitled to contact by telephone. Ms McCarthy, who gave evidence about that matter, was not able to explain adequately, in my opinion, why the Defendant should not be permitted to contact this person by the use of the internet. 95The Plaintiff was not able to point to any particular basis for requiring condition F2. The justification for the inclusion of condition F5 was the fear that the Defendant may use social networking to seek out other victims or vulnerable persons. 96In my opinion, condition F1 is appropriate, if for no other reason because of the ability to access pornography on the internet. 97I do not consider there is any basis for requiring condition F2. The basis for condition F4 is said to be the availability of Wi-Fi for various devices such as laptops or even mobile phones. What is available through an internet connection is also available through Wi-Fi. That seems to me a sufficient justification for the inclusion of condition F4. 98I do not consider it is reasonable to require prior approval for the Defendant to join or connect to any internet based social networking service. He already has a Facebook account which is known to the Department. It seems to me sufficient if the Department is able to access any social networking account the Defendant has. Accordingly, condition F3 is reasonable. Condition 6 should be amended to omit the words "is approved under condition 5 to access," the word "join" should be "joins", and the word "connect" should be "connects".

[25]

The term of any ESO 105The Defendant opposes the Court making an Extended Supervision Order for a period of five years but will not oppose a period of three years. He does not oppose a three year supervision period because he accepts that he was only recently admitted to parole even though the delay in releasing him was found to be an error by the Parole Board. 106The Defendant says that researches show that the State of NSW always seeks a maximum period of five years. He points to other judgments where three years have been ordered including State of NSW v Scerri [2011] NSWSC 683, Attorney-General for the State of NSW v Steadman [2013] NSWSC 170 at [82]-[83], State of NSW v Mintern [2014] NSWSC 1304 and State of NSW v Wilde [2014] NSWSC 305. 107The Defendant particularly draws attention to State of NSW v Conway [2011] NSWSC 925 at [28] where Hidden J said: [28] Nevertheless, as Dr Allnutt properly observed, this decision is a legal one, not a clinical one. After careful consideration, I am persuaded by Mr Johnson's submission that 3 years is a significant period in which to monitor the defendant in the community, and provide significant scope for professional intervention. That lesser period, in my view, would provide a greater incentive to the defendant to pursue his rehabilitation and, in particular, to commit himself genuinely to treatment. It should be borne in mind that, by s 10(3) of the Act, this Court could make a further extended supervision order, and s 13 provides for the revocation or variation of an order on the application of the State or the defendant. That being so, the position can effectively be reviewed at the end of the 3 year period. 108It may be accepted that five years is a lengthy period particularly given the extent of the conditions which are to be imposed. The Plaintiff says that whilst the conditions might all be employed at the outset, as time goes on, and as the Defendant shows improvement, some of these conditions will be relaxed. The Defendant accepts that such an intention is stated in good faith but says that, nevertheless, the order will remain in place for five years with all those conditions which are enforced at the discretion of the DSO. He says that some of the conditions are onerous and the overall regime for such a long period does not give the Defendant the incentive that is spoken of by Hidden J. 109In my opinion, the ESO should be in place for a period of five years. I have made reference earlier in this judgment to the views of Dr Ellis and Dr O'Dea. Neither was required for cross-examination and their opinion concerning the time that will be needed for the Defendant's rehabilitation is amply justified in the evidence. The psychiatric conditions diagnosed are entrenched conditions where there is always a risk of relapse. I have regard, particularly, to Dr Ellis's opinion (at [35] above) that paraphilic disorders are not deemed in remission until five years from a controlled environment such as prison. 110As mentioned earlier, the Defendant has spent the vast majority of his life from the age of 13 in custody. The Sentencing Judge was of the view that upon the Defendant's release he would require supervision for a long period and in that sense he found special circumstances and provided for an eight year parole period. For reasons earlier given the Defendant was not released to parole. 111Those matters all point strongly in the Defendant's case to a term of five years for the ESO. 112Without diminishing the importance of the point made by Hidden J in Conway concerning the incentive for a defendant to perform, each case must turn on its own facts. I have read each of the other cases to which the Defendant has referred. It does not seem to me that anything is demonstrated other than in the particular case, and for varying reasons, three years was considered appropriate. 113Additionally, it is always open to the Defendant to make application under s 13 of the Act to vary the conditions or the length of the ESO. A defendant who shows a significant change in circumstances and good progress towards rehabilitation may persuade a court that the ESO be varied in some way. Although the Defendant submitted that such a situation placed the onus on the Defendant rather than a shorter ESO requiring the Plaintiff to prove that another one was needed after three years, it seems to me that an onus on the Defendant is precisely what is appropriate in all the circumstances.

[31]

Part C. Place and travel restrictions

The defendant must not frequent or visit any place or areas specified by the Departmental supervising officer.
The defendant must not leave the State of New South Wales without the written permission of the Commissioner of Corrective Services ("the Commissioner") or his delegate.
The defendant must not engage the services of sex workers, frequent brothels, disorderly houses (as declared under Part 2 of the Restricted Premises Act 1943), adult bookstores, sex shops, topless bars, strip parlours, massage parlours, adult theatres, or any place where sexually explicit material or entertainment is available, save as for public libraries and newsagencies, without the prior approval of the Departmental supervising officer.
The defendant must not enter any licensed premises including hotels, bars, licensed clubs and racecourses and casinos, but excluding restaurants, cafes, cinemas and theatres, without the prior approval of the Departmental supervising officer. Part D. Employment, finance and education
If the defendant is unemployed, the defendant must enter employment arranged or agreed on by the Departmental supervising officer or make himself available for employment, education, training or participation in a personal development program as reasonably directed or proposed by the Departmental supervising officer. Employment & finance
The defendant must not engage in the following activities ("employment activities") except with the prior approval of the Departmental supervising officer: (a) paid or unpaid employment (including self employment); (b) volunteer work; (c) practical training as part of an educational or vocational course; or (d) operate or carry on any business.
The defendant must notify the Departmental supervising officer of: (a) the nature of the defendant's employment activities or proposed employment activities; (b) any offer of employment activities; (c) the hours of employment activities each day; (d) the name of the person who is or will be responsible for the defendant's employment activities ("the employer"); (e) the address of the premises where the defendant is or will be undertaking employment activities;
The defendant must agree that, if the Departmental supervising officer considers it appropriate to do so, the Departmental supervising officer may contact any supervisor, employer or prospective employer of the defendant, for the purpose of obtaining information relating to the defendant's employment activities. NOTE: The defendant accepts that if the Departmental supervising officer considers it appropriate for the defendant to disclose to any prospective employer information relating to the defendant's criminal history and / or that the defendant is subject to this order and the terms of the order, and the defendant refuses to make such a disclosure, then it is a basis upon which the employment may not be approved.
The defendant must advise the Departmental supervising officer should he execute any legal instrument that confers upon the defendant control of any money or assets of another person or organisation.
The defendant must advise the Departmental supervising officer should he execute any lease, mortgage, contract for sale (over the value of $1,000), power of attorney, instrument relating to obtaining any credit, opening of any account held at a bank, credit union, building society or similar institution, or deed. Note: The above prohibition in conditions 5 and 6 does not include the execution of a will or documents relating to the obtaining of social security benefits. Education
The defendant must not engage in any educational courses without the prior approval of the Departmental supervising officer:
The defendant must notify the Departmental supervising officer of: (a) any offer to undertake any proposed educational courses; (b) the nature of the proposed educational courses; (c) the frequency and the duration of the proposed educational courses; (d) the name of the person who is or will be responsible for the defendant's educational courses ("the supervisor"); and (e) the address of the premises where the defendant is or will be undertaking educational courses. (f) The defendant must agree that, if the Departmental supervising officer considers it appropriate to do so, the Departmental supervising officer may contact the defendant's supervisor for the purpose of obtaining information relating to the defendant's educational courses. NOTE: The defendant accepts that if the Departmental supervising officer considers it appropriate for the defendant to disclose to any prospective supervisor information relating to the defendant's criminal history and / or that the defendant is subject to this order and the terms of the order, and the defendant refuses to make such a disclosure, then it is a basis upon which the educational course may not be approved. Part E. Non association
The defendant must not associate, contact or communicate with any persons specified by the Departmental supervising officer.
The defendant must not contact or communicate by any means (directly or indirectly) with, or attempt to contact or communicate by any means (directly or indirectly) with, the victims of the sexual offence for which the defendant was sentenced on 18 December 1992.
Without limiting condition 1, the defendant must not knowingly associate with any person convicted of a "serious sex offence" as defined by the Act without the prior approval of the Departmental supervising officer and except in the course of living in an approved address, undertaking any educational programs, employment activities, maintenance, treatment or rehabilitation programs that have been approved by the Departmental supervising officer. Part F. Access to the Internet Internet use
The defendant must comply with any reasonable direction given by the Departmental Supervising Officer regarding access to the internet by the defendant on any computer or other device (including mobile phone or tablet computer), including but not limited to: (a) the use of parental lock or other device or software that may restrict access to or permit access only to certain websites; (b) the times and places that the defendant is permitted to access the internet; (c) accepting the presence of an appropriate person, being a person previously approved in writing by the Departmental supervising officer for the purpose of this condition; (d) restricting the use of the internet for specified purposes; and (e) the use of Skype or any Voice over Internet Protocol (VoIP) or other similar services without the prior approval of the Departmental supervising officer.
The defendant must provide the Departmental supervising officer with details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used, or intended to be used, by the defendant through the internet.
The defendant must provide an inventory of any communication devices and data storage devices in the defendant's possession and advise the Departmental supervising officer of any change to the inventory immediately. Social networking services
In circumstances where the defendant joins and / or connects to any internet based social networking service, the defendant must inform the Departmental Supervising Officer of any login identification name and password for any internet based social networking service the defendant joins and / or connects to. Part G. Access to Pornographic, Violent and Classified Material
The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, 'X' Classification or any other material that depicts bondage, discipline and/or sadomasochism as directed by the Departmental Supervising Officer. Part H. Alcohol and drugs
The defendant must not possess or consume any illicit drugs.
The defendant must not possess any prescription medication other than prescription medication specifically prescribed to the defendant by a medical practitioner in the quantities prescribed.
The defendant must not abuse prescription medication or other forms of medication.
The defendant must not possess or consume any alcohol (including any alcohol-based products such as methylated spirits), without prior approval of the Departmental supervising officer.
The defendant must submit to drug and alcohol testing as directed by the Departmental supervising officer or any officer of Corrective Services NSW who from time to time supervises the defendant.
The defendant must attend and participate in such programs and courses relating to drugs and alcohol (including residential programs), as directed by the Departmental supervising officer. Part I. Search and Seizure
If the Departmental supervising officer reasonably believes that a search (of the type referred to in sub-paragraphs (d) to (g) below) is necessary: (a) for the safety and welfare of residents or staff or any other person present at the defendant's approved address; (b) to monitor the defendant's compliance with this order; or (c) because the Departmental supervising officer reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence; then the Departmental supervising officer may direct, and the defendant must submit to, a: (d) search and inspection of any part of, or any thing in, the defendant's approved address; (e) search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; (f) search and examination of his person; and/or (g) search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant.
For the purposes of paragraph (f): (a) a search of the defendant means either or both a garment search or a pat-down search. (b) to the extent practicable a pat-down search will be conducted by a Departmental supervising officer of the same sex as the defendant, or by an officer of Corrective Services NSW of the same sex as the defendant under the direction of the Departmental supervising officer. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched.
During a search carried out pursuant to condition 1, the defendant must allow the Departmental supervising officer to seize any thing found, whether in the defendant's possession or not, which the Departmental supervising officer reasonably suspects will compromise: (a) the safety of residents or of staff at the defendant's approved address; (b) the welfare or safety of any member of the public or any other person; or (c) the defendant's compliance with this order; or which the Departmental supervising officer reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence.
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 conditions 1 or 3. Search of computer
If and as directed by the Departmental Supervising Officer, the defendant must: (a) permit the Departmental Supervising Officer or any other person, to access, inspect and remove any computer or other device (including mobile phone or tablet computer) used by or owned by the defendant, including the temporary removal of the computer or other device from the defendant's place of residence or his person for the purpose of inspection or the imaging of the contents of the computer; (b) take all available steps to permit the Departmental Supervising Officer or any other person to have access to and inspect any computer or other device (including mobile phone or tablet computer) used by or owned by the defendant; (c) provide the Departmental Supervising Officer or any other person with any requested assistance to enable either or both of them to access and inspect any computer or other device (including mobile phone or tablet computer) used by or owned by the defendant, including providing them with any required passwords; (d) permit the Departmental Supervising Officer or any other person to make copies of any files or materials on any computer or other device (including mobile phone or tablet computer) used by or owned by the defendant that the Departmental Supervising Officer reasonably believes may be relevant to the management of the defendant's risk of re-offending.
The defendant must not attempt to destroy or interfere with any data storage device (including a SIM card), computer or other device that is the subject of access or inspection carried out pursuant to conditions 1 to 5 above. Part J. Personal details and appearance
The defendant must not change his name from Warwick Anthony Boatswain, or use any name other than Warwick Anthony Boatswain without the prior approval of the Departmental supervising officer.
The defendant must not, without the approval of the Departmental supervising officer, change his appearance to the extent that the defendant cannot be easily recognised.
The defendant must allow himself to be photographed by or on behalf of the Departmental supervising officer.
The defendant must provide the Departmental supervising officer with information regarding any tattoos or permanent distinguishing marks that the defendant has (including details of any tattoo or mark that has been removed). Part K. Medical intervention & treatment obligations
The defendant must undergo any assessment as recommended by his medical or other professional consultant to determine what is required for treatment in respect of the defendant's potential risk for re-offending. Medical intervention
The defendant must, if so directed by the Departmental supervising officer, undergo psychiatric treatment, other medical treatment or other medical assessment at a place or places determined by the Departmental supervising officer.
The defendant must take any prescribed medication, including but not limited to anti-psychotic, anti libidinal (including SSRI's) or other prescribed medication as prescribed by the medical practitioner.
The defendant must not take any medication or substance which, to the defendant's knowledge, may affect the effectiveness of any medication or treatment prescribed under conditions 2 and 3 being taken by the defendant, unless the defendant's treating medical practitioner prescribes such medication.
If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the Departmental supervising officer within 24 hours of ceasing to take the medication.
The defendant must attend regular medical consultations, physical examinations, pathology testing, and medical imaging as reasonably directed by a treating clinician. Psychological intervention and other treatment
The defendant must, if so directed by the Departmental supervising officer, undergo psychological assessment, counselling and any other treatment at a place or places determined by the Departmental supervising officer and must not discharge himself without the approval of the Departmental supervising officer. NOTE: The requirement in Part A that the defendant comply with any reasonable direction, and the requirements that the defendant participate in treatment under this Part, do not require the defendant's participating in treatment, or taking of any medication that may be prescribed, without his informed consent. Part L. Disclosure of information Medical and psychological information
The defendant must disclose to the Departmental supervising officer the identity of any medical, other professional consultant, or other technical adviser that the defendant consults, as soon as reasonably practicable.
The defendant must consent to the Departmental supervising officer and other officers from the Department (including from Corrective Services NSW) collecting and using all relevant information regarding the defendant's progress while subject to supervision, which may include confidential medical information disclosed in the course of the defendant's assessment and treatment.
The defendant must authorise the disclosure of all information between: (a) the Departmental supervising officer; and / or (b) other officers from the Department (including from Corrective Services NSW); and / or (c) any medical, other professional consultant; or other technical adviser. NOTE: In relation to disclosure of information relating to the defendant's treatment, the nature of the defendant's authority under condition 3(c) is limited to circumstances where the medical, other professional consultant, or other technical adviser believes the defendant: (a) is at risk of committing a further serious sex offence; (b) is demonstrating behaviours that may lead to the commission of a further serious sex offence; (c) is at risk of breaching a condition of the defendant's supervision relevant to (a) and (b) of this note; or (d) is with the consent of the defendant. Telecommunication and internet service provider
The defendant must provide the Departmental supervising officer details of any carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the defendant.
The defendant must provide the Departmental supervising officer details of any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the defendant.
The defendant must consent to the disclosure of the defendant's personal information held by any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used by the defendant, to the Departmental supervising officer. Vehicle details
The defendant must notify the Departmental supervising officer of the make, model, colour and registration number of any vehicle: (d) owned by him; or (e) driven or to be driven by him, whether hired or otherwise obtained for the defendant's use. Forms of identification
The defendant must provide the Departmental supervising officer with details of any valid forms of identification used by the defendant including but not limited to driver's licence and personal identification cards.
If the defendant changes the details of any current form of identification or obtains any further forms of identification, the defendant must provide the Departmental supervising officer with such details.

State of New South Wales v Boatswain

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (32 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (13)

Cited By (6)