State of New South Wales v Bowdidge

THE LEGISLATIVE SCHEME

1. I turn to consider the scheme of the Act and the matters to which I must have regard in determining, in particular, whether the orders sought in (2) above should be made.
2. There are four matters which enliven the Court's discretion to make an extended supervision order, the first three of which, as I have said, are not in dispute. The issue that I am required to determine is whether or not I can be satisfied, as required by s 5B(d) of the Act, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision.
3. The requirement that I be satisfied to a high degree of probability reflects an onus which is beyond more probable than not, but which does not reach the standard of the criminal onus of proof beyond reasonable doubt. [1] I have had regard to the observations of Hoeben CJ at CL [2] as to what constitutes an unacceptable risk. In particular, I have had regard to his Honour's observation [3] that the word "unacceptable" means "so far from a required standard, norm or expectation as not to be allowed".
4. The term "serious offence" is defined in s 4 of the Act to include, relevantly, "a serious sex offence as defined in s 5". Section 9(2) of the Act provides that in determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration. In determining whether or not an order should be made, I must have regard to the factors set out in s 9(3) of the Act, together with any other factors that I consider to be relevant. It is to be emphasised that the matters in s 9(3) of the Act are mandatory considerations.
5. The nature of the inquiry that I am required to undertake for present purposes was considered in Attorney General for the State of New South Wales v Tillman. [4] My task does not involve a prediction of the ultimate result. The power to make the order sought is enlivened if the evidence before me would, if proved, justify the making of either category of final order. That threshold question is to be resolved without considering what evidence a defendant may place before the Court at the final hearing. As a general proposition, at this stage of the proceedings, a generally cautionary approach is to be adopted, in which the objects of the Act are to be taken into account, and risk awareness is to be given weight. [5]

THE DEFENDANT'S BACKGROUND AND CRIMINAL HISTORY

1. The background and criminal history of the defendant is summarised at length in the written submissions of the plaintiff. Counsel for the defendant, again for the purposes only of this preliminary hearing, has accepted the accuracy of that summary. That being the case, I draw the following from those submissions.
2. The defendant is now 59 years of age. Although he has siblings, he maintains no contact with them. His home environment as a young person was unstable and destructive. There is evidence that his parents employed corporal punishment towards him. There is also evidence that even as a child he was prone to displaying indiscriminate and unprovoked outbursts of anger.
3. There is evidence that from a young age the defendant was considered to be a slow learner who required special education techniques and facilities. The first entry in his criminal history was at the age of 14 when he was charged with a sexual offence against a female under the age of 16 years. That offence occurred when the defendant accompanied two girls, aged five and six, into a hay shed. Whilst there, he removed the underpants of the six-year-old girl and looked at her genitalia. Upon conviction, he was released on probation to be of good behaviour for 12 months.
4. The first entry on his criminal record as an adult was in 1979 for a relatively minor matter of stealing, for which he was placed on recognisance. However, in the following year the defendant was charged with the indecent assault of a five-year-old girl. That offence occurred when he was in a room at the Shoalhaven Hospital in the company of young children. He approached the young victim and asked her if she would like to go for a walk, to which she agreed. He took her into the male toilet and proceeded to kiss her on the face and touch her vagina. When asked by police why he had done so, the defendant replied: "I just felt like it".
5. Following the defendant's plea of guilty, the sentence imposed upon him was deferred upon his entering into a recognisance to be of good behaviour for three years.
6. In 1980 and 1985 the defendant was convicted of driving offences, as well as of assaulting a child. In 1987 he was charged with the illegal use of a conveyance, break, enter and steal, and setting fire to lands. In 1987 he was convicted of maliciously setting fire, but again received the benefit of a recognisance to be of good behaviour. In 1990 he was convicted of breaching an apprehended violence order and was sentenced to the rising of the court.
7. The defendant was married for a brief period in 1990 to a woman who apparently had a developmental disability. Whilst there were no children from that marriage, the defendant does have children from a subsequent relationship with whom he has very little contact.
8. In 1991 the defendant was convicted of assault, and was fined. Significantly, later that same year he was convicted of having sexual intercourse with a female under ten years of age. The victim of that offending was a nine year old intellectually disabled girl, at whose home the defendant had been living for about a year. The defendant entered the victim's bedroom after she had emerged from the shower. He began to dry her with a towel and, in the course of doing so, digitally penetrated her vagina. The victim complained to a family friend and on subsequent medical examination, there was evidence consistent with digital penetration. When interviewed by police, the defendant maintained that his actions had been accidental. In response to being asked why he had assaulted the victim, the defendant replied: "Just for something to do."
9. Once again, although convicted of the offending, the defendant received the benefit of a recognisance to be of good behaviour for a period of three years.
10. In May 1997 he was convicted of malicious damage. Significantly, in April 2001 he was convicted of two counts of aggravated sexual assault of a child under the age of 16 years. The first count alleged penile, and the second digital, penetration. The victim was aged seven or eight at the time. The sentencing judge made reference to the fact that these offences had taken place on the same day, and at a time when the victim's mother was out of the house for a short time. The defendant had removed his clothes, as well as those of the victim, and placed his fingers and his penis into the victim's vagina. His Honour also observed that although the defendant did not owe a parental responsibility to that victim, he was nevertheless in a position of trust. On that occasion the defendant was sentenced to a non-parole period of three years, with an additional term of 18 months in respect of the count alleging penile penetration and a fixed term of two and a half years on the other count.
11. The defendant was released on parole in October 2005 and was subject to an order pursuant to the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) ("the prohibition order"), the effect of which was to prohibit him from (inter alia) actively seeking to remain in the company of any person under the age of 18 years, and from actively communicating or attempting to communicate, be it directly or indirectly, with a person under the age of 18 years.
12. On 8 April 2009 the defendant was convicted of two charges of contravening the prohibition order. He was sentenced to nine months' imprisonment, which was suspended on the condition that he enter a good behaviour bond. The conditions which were attached to the bond included a requirement that he accept the supervision of the Probation and Parole Service, and that he obey all reasonable directions for counselling, educational development and drug and alcohol rehabilitation.
13. On 28 July 2009 the defendant was again charged with contravening the prohibition order. This followed the defendant befriending, and residing with, a woman for a period of several weeks, in circumstances where that woman had a 13-year-old daughter. The defendant was sentenced to imprisonment for 14 months in respect of that matter, and his bonds in respect of the earlier breach of his prohibition order were called up and revoked. The Court imposed concurrent terms of imprisonment of nine months in respect of those matters.
14. The defendant was released from custody in September 2010, following which he spent a period of time residing at a Community Offenders Services Program. He also spent periods of time living independently in the community, including a period of time in premises in St Marys. In early 2015 he was accused by neighbours of peering through bathroom windows. The defendant denied that behaviour and maintained that he was looking for a stolen gardening tool. He was returned to the Community Offenders Services Program for a period of time, and in April 2015 suitable premises were found for him.
15. In April 2017 the defendant was charged with two counts of failing to comply with an extended supervision order after he had contacted a woman whom he had been directed not to contact, and had deleted material from his mobile phone. Upon conviction, he received concurrent sentences of 16 months' imprisonment, commencing on 15 May 2017, with a non-parole period of 12 months. On the same date he was convicted of two further breaches of conditions in respect of which concurrent sentences of 18 months, with a non-parole period of 13 months, were imposed. Those sentences expired on 17 September 2018 and he was released on parole on that day.
16. When released, the defendant commenced to reside in supported accommodation at a centre operated by Corrective Services New South Wales. He was removed from that accommodation on 14 October 2018 for reportedly peeping at other residents through cracks in a bathroom door. Due to the unavailability of other accommodation, he was placed in a motel in Minchinbury. During that period of time he disclosed heightened sexual thoughts towards a cleaner who cleaned his room each day.
17. On 19 October 2018 a breach of parole report was submitted, seeking the revocation of the defendant's parole on the basis that he posed a serious and immediate risk to the safety of the community. The New South Wales Parole Authority requested further information and adjourned consideration of the application until 2 November 2018, when it was ultimately refused.
18. On 13 December 2018, the defendant was again reported to have been spying on another resident who was in the shower. He was again relocated to a motel. Adverse media interest in the defendant culminated in his relocation to another area, where he remained until May of this year. Since that time he has been in independent accommodation.
19. There is evidence before me that the defendant has a degree of cognitive impairment which places him in the extremely low to borderline range. He also has a history of alcohol abuse and alcohol dependency, and continues to attend Alcoholics Anonymous. The evidence indicates that he has been sober since about 2009, that state of sobriety having led to, at least in part, the amendment of the conditions sought by the plaintiff to which I have previously referred.

CONSIDERATIONS UNDER S 9(3) OF THE ACT

1. The considerations in s 9(3) of the Act, to the extent that they are applicable, are mandatory. Section 9(3)(b) is not engaged in the present circumstances.

Results of Assessments - Section 9(3)(c) and (d)

1. Sections 9(3)(c) and 9(3)(d) of the Act require me to take into account the results of assessments prepared by a qualified psychiatrist, a registered psychologist or a registered medical practitioner, as to the likelihood of the defendant committing a further serious offence, and the results of any risk assessments. In that regard, there are a number of reports before me.
2. In a report of 6 May 2015, Dr Emma Collins, Forensic Psychologist, provided an assessment for the purposes of proceedings in this Court. She had been specifically requested to assess issues associated with the defendant's risk of recidivism, and whether he should continue to be subject to an extended supervision order. In her report, Dr Collins observed [6] that the defendant's sexual history highlighted the pervasive presence of sexual deviance, as indicated by his long history of paedophilic interests specifically directed towards prepubescent females. Dr Collins observed [7] that the defendant had attempted offence-specific treatment in custody with little success, and that his anti-libidinal medication had been ceased in 2014 due to adverse effects.
3. When asked whether the defendant met the diagnostic criteria for any psychiatric or psychological condition, Dr Collins expressed the view [8] that the defendant had previously been diagnosed with an intellectual disability and paedophilia of a non-exclusive type, namely, an attraction to pre-pubescent female children. Dr Collins expressly concurred with both of those diagnoses based on her assessment of the defendant. When asked whether, in her opinion, the defendant posed a risk of committing a further serious sex offence as defined in s 5(1) of the Act, Dr Collins responded: [9] All risk assessments undertaken consistently placed Mr Bowdidge in the high range for sexual recidivism. Hence it is my view that he continues to pose some risk of committing a further serious sex offence. The highest or most significant risk factors in his case are sexual deviance (ongoing sexualised thoughts and possible fantasies of children), sexual preoccupation and impulse dyscontrol (and specifically poor boundaries). These are complicated by the major mental health diagnoses described above.
4. Dr Collins went on to say: [10] Mr Bowdidge has been effectively managed in the community for the last four years on an ESO. I see no reason for such a supervision order to be changed at this stage. Indeed, he appears to benefit from external supervision in terms of management control, in my opinion.
5. Also before the Court is a report of Dr Jeremy O'Dea, Psychiatrist, of 19 May 2015. Although Dr O'Dea did not diagnose the defendant as suffering from a major psychiatric illness, he noted the defendant's well-documented and ongoing problems with borderline intellectual functioning, accompanied by a history of alcohol use disorder. [11] Dr O'Dea also noted [12] what he regarded as the defendant's ongoing problems with supervision, including his reported ongoing problems managing his sexual behaviours in general and understanding and abiding by conditions set for him as part of an ESO. Dr O'Dea regarded these problems as likely related to the defendant's limited intellectual functioning and his history of sexual deviance.
6. At the same time, Dr O'Dea also expressed the view [13] that these ongoing problems may point to specific and ongoing issues with disinhibition, and an elevated mood or affect. In addition, and although the defendant had reported a significant reduction in his sexual attraction to female children, Dr O'Dea noted [14] that the defendant had been inconsistent in his account of that reduction, with thought reported ongoing sexually inappropriate behaviour towards female children pointed to ongoing problems with a previously diagnosed heterosexual paedophilia. In addition, [15] Dr O'Dea concluded that the defendant's reported inappropriate sexualised behaviour towards adult females, at least in the recent past, could point to other sexually deviant urges and/or problems controlling his general sexuality, in the context of his intellectual impairment and mood problems.
7. Dr O'Dea concluded [16] that on the basis of the defendant's risk profile and his progress in terms of ongoing problems with sexualised behaviour towards children and adult women, the defendant posed a risk of engaging in further sex offending behaviour in the community in the long-term, and was at risk of committing a further serious sex offence.
8. Dr O'Dea further concluded [17] that there was a significantly high degree of probability that the defendant would be likely to commit a further serious sex offence in the community in the long-term if treatment interventions were not successfully implemented, in the context of community supervision and monitoring. He also expressed the view [18] that it was neither possible nor clinically appropriate (from a psychiatric perspective) to place a percentage on the likelihood of the defendant committing a further serious sex offence.
9. Also before the Court is a report of Dr Richard Furst, Psychiatrist, of 11 January 2015 in which Dr Furst concluded [19] that the defendant met the criteria for a substance use disorder involving alcohol dependence, on the basis that he had a history of heavy drinking from an early age and throughout his adult life. Dr Furst also concluded [20] that the defendant suffered from an intellectual disability which he explained [21] was a pervasive condition that affected the defendant's ability to process information, make decisions, solve problems and regulate his emotions. Dr Furst also considered [22] that the defendant had communication difficulties, in the sense that he was somewhat concrete and unreflective.
10. In Dr Furst's opinion [23] the defendant met the criteria for a diagnosis of paedophilia, based upon his past history of sexual offending and reported sexual urges and fantasies involving prepubescent children, at a time when he was subject to treatment and supervision. Dr Furst did not consider that the defendant had a major mental disorder, such as schizophrenia, bipolar disorder or major depressive disorder. [24]
11. When asked to comment about the defendant's current and/or previously reported sexual fantasies, Dr Furst noted [25] that such fantasies constituted a paraphilia in the form of paedophilia of a non-exclusive type. He considered that this was the single biggest risk factor that would need to be managed in terms of the defendant's risk of future offending. [26]
12. Dr Furst concluded [27] by noting the fact that the defendant had been subject to structured management in accordance with an extended supervision order for the last four years, and that this appeared to have been effective in managing his risk of committing a further serious sex offence. He expressed the opinion [28] that ongoing monitoring, supervision and treatment in accordance with a similar regime would probably also be effective in managing his risk of committing a further serious sex offence.
13. Also before the Court is a risk assessment report dated 23 April 2019 under the hand of Richard Parker, Senior Psychologist. Dr Parker concluded [29] that the defendant had an intellectual disability and a lifelong history of sexual offences dating back to 1974 when he was 14 years old. He assessed the defendant [30] as being a well above average risk of re-offending sexually, in circumstances where he had been diagnosed with paedophilia and appeared, in Dr Parker's assessment, to be sexually pre-occupied. Dr Parker noted [31] that the defendant had been the subject of an extended supervision order since March 2011, and that when initially released he had been prescribed anti-libidinal medication, and was in receipt of 35 hours of support each week. Dr Parker took the view [32] that since that time the defendant's behaviour had deteriorated, as evidenced by (inter alia) the fact that he was taken into custody for failing to abide by the conditions of his extended supervision order by contacting a woman whom he had been directed not to contact.
14. Dr Parker noted [33] that the responsibilities for supervision of the defendant had been transferred from the New South Wales Government to the Federal Government's National Disability Insurance Scheme, which was now providing substantially less than the 35 hours of support the defendant had previously received. He observed [34] that temporary funding had been secured to restore the previous level of support, but observed that there was no guarantee that such funding would continue beyond 2019. Dr Parker concluded [35] by observing that whether or not these matters gave rise to an unacceptable risk was a matter for the Court.

Reports prepared by Corrective Services NSW - s 9(3)(d1)

1. Section 9(3)(d1) of the Act requires me to take into account any report prepared by Corrective Services New South Wales as to the extent to which the defendant can reasonably and practicably be managed in the community. In that regard, I have before me a risk management report of 24 May 2019 prepared by Carly McMillan, a Community Corrections Officer, and supported by Kelli Grabham, the Operational Governance Officer in the Extended Supervision Order team. In that report Ms McMillan concluded [36] that an assessment on 13 October 2018 had found the defendant to fall in the medium-risk level for general re-offending, and that a psychological risk assessment undertaken by Dr Parker on 27 October 2018 had concluded that the defendant fell in the high-risk category in terms of sexual offending.

Treatment or Rehabilitation Programs - s 9(3)(e)

1. The defendant attends Forensic Psychology Services, although, as pointed out in the plaintiff's written submissions, [37] there have been concerns expressed about the adequacy of his participation, as well as his degree of honesty and openness in discussions with psychological health providers. Those submissions also make reference to evidence [38] that the defendant was a participant in the CUBIT Program between June and October 2003, and that a report in relation to his participation made reference [39] to his failure to comprehend issues which were the subject of discussions.
2. The defendant did participate in a group program for intellectually impaired or delayed sexual offenders in 2014. It is a matter of some concern that he attempted physical contact with the female psychologist who was facilitating the group. In that respect, there is evidence that the defendant has difficulty in terms of maintaining appropriate boundaries, particularly towards females.
3. I have previously noted that the defendant has had a previous issue with alcohol abuse. He has made significant progress in that regard and has been sober since 2009. Whether he continues to attend Alcoholics Anonymous is not entirely clear, although he was certainly doing so in 2017, for the simple reason that a complaint was received at that time of inappropriate behaviour towards a female who was present at a meeting.

The likelihood that the defendant will comply with an Extended Supervision Order, and his previous compliance with such an order - s 9(3)(e2) and (f)

1. I have already referred to the fact that there is a history of the defendant failing to comply with orders to which he was subject, the significance of which will be obvious.

The level of other compliance by the defendant - s 9(3)(g)

1. I am also required under s 9(3)(g) to have regard to the level of the defendant's compliance with any obligations to which he has been subject under the Child Protection (Offenders Registration) Act 2000 (NSW) or the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). As I have previously noted, the defendant has previously been convicted of contravening a prohibition order made pursuant to the latter. That is a matter of obvious concern.

The defendant's criminal history - s 9(3)(h)

1. I am also required to take into account the defendant's criminal history and any pattern of offending behaviour disclosed by that history under s 9(3)(h). I have set out that history at length. Put simply, the defendant has a history of various types of offending. However, of most concern is his clear history of sexual offending, particularly against young females.
2. I have also made reference to observations made by the sentencing judge when sentencing the defendant for aggravated sexual assault. It should be noted that the sentencing judge also observed on that occasion that the defendant's prospects of rehabilitation, and the question of his re-offending in the future, were necessarily dependent upon the defendant receiving the necessary support and assistance which he so obviously required.

Any other information - s 9(3)(i)

1. Finally, s 9(3)(i) of the Act requires that I take into account any other information which is available as to the likelihood that the defendant will commit a further serious offence. In this regard, the submissions of counsel for the plaintiff [40] have made reference to evidence that as recently as the latter part of 2018 and the early part of 2019, the defendant has continued to have sexualised thoughts in relation to young girls.

CONCLUSION

1. I have already made reference to the nature of the test which applies at this stage of the proceedings and I have taken into account the mandatory statutory factors prescribed by s 9(3). What emerges from the evidence is that the defendant is a man who has a form of mental disability and who has been diagnosed, in specific terms, as a paedophile of longstanding. Whilst there is evidence that the defendant has made progress in certain areas, there does not appear, on the evidence before me, to have been much, if any, reduction in his inappropriate sexual desires, and general sexual deviance.
2. For all those reasons, having regard to the evidence to which I have referred I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. Indeed, on the evidence before me, ongoing supervision is essential to addressing that unacceptable risk.
3. I therefore make the following orders: 1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): 1. The Court appoints two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Court on the results of those examinations by no later than 25 October 2019; and 2. The defendant is directed to attend those examinations. 1. Pursuant to s 10A of the Act the defendant is subject to an interim supervision order from 7 October 2019 (the time at which the defendant's current extended supervision order expires) for a period of 28 days. 2. Pursuant to s 11 of the Act, directing that the defendant comply with the conditions set out in the schedule annexed to the summons in these proceedings filed on 8 July 2019 for the period of the interim supervision order referred to in order (2) above. 3. The matter will be listed for final hearing on 12 December 2019 with an estimate of one day. 4. The plaintiff is to file and serve any further evidence and submissions on which it relies for the final hearing by 7 November 2019. 5. The defendant is to file and serve any evidence and submissions on which he relies for the final hearing by 21 November 2019. 6. Any submissions of the plaintiff in reply to be filed and served by 5 December 2019. 7. The defendant is to advise the plaintiff which experts are required to attend Court to give evidence at the final hearing by no later than 4pm on 9 December 2019. 8. Access to the Court's file by a non-party in respect of any document shall not be granted without the prior notification by the Registrar of the Court to the parties of the non-party's application for access, and such access will not be granted without the leave of a Justice of the Court. 9. Liberty to apply to relist the matter on one days' notice

Endnotes

1. Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
2. State of New South Wales v Holschier (No 2) [2018] NSWSC 1921 at [23]-[24].
3. By the reference to the decision of the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636 at [50].
4. [2007] NSWCA 119 at [98].
5. Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7].
6. Exh JM-1 at p 70.
7. Exh JM-1 at p 71.
8. Exh JM-1 at p 71.
9. Exh JM-1 at p 71.
10. Exh JM-1 at p. 72.
11. Exh JM-1 at p. 83.
12. Exh JM-1 at p. 83.
13. Exh JM-1 at p. 83.
14. Exh JM-1 at p. 83.
15. Exh JM-1 at p. 83.
16. Exh JM-1 at p. 84.
17. Exh JM-1 at p. 85.
18. Exh JM-1 at p. 85.
19. Exh JM-1 at p. 97.
20. Exh JM-1 at p. 97.
21. Exh JM-1 at p. 97.
22. Exh JM-1 at p. 97.
23. Exh JM-1 at p. 98.
24. Exh JM-1 at p. 99.
25. Exh JM-1 at p. 99.
26. Exh JM-1 at p. 99.
27. Exh JM-1 at p. 100.
28. Exh JM-1 at p. 100.
29. Exh JM-1 at p. 130.
30. Exh JM-1 at p. 140.
31. Exh JM-1 at p. 140.
32. Exh JM-1 at p. 129.
33. Exh JM-1 at p. 140.
34. Exh JM-1 at p. 140.
35. Exh JM-1 at p. 140.
36. Exh JM-1 at p. 143.
37. At [99].
38. At [100].
39. At [101].
40. At [113]. 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: 18 September 2019