HAMILL J: Since 18 March 2011 Brian Bowdidge (the defendant) has been subject to various forms of supervision pursuant to orders made under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") and its predecessors. Mr Bowdidge has been diagnosed with paedophilia and has a history of offending against children, albeit many years ago, and has also breached the terms of a number of supervision orders and orders under the Child Protection (Offenders Registration) Act 2000 (NSW). He also suffers from an intellectual disability which, according to expert testimony, increases the risk that he will commit offences against children if he is not supervised.
In 2011, Buddin J made an order pursuant to the Crimes (Serious Sex Offenders) Act 2006 (NSW) for a period of four years: State of New South Wales v Bowdidge [2011] NSWSC 188.
When that order came to an end, the State sought an order pursuant to the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW). Interim orders were made and I conducted the final hearing on 4 June 2015. On 4 June 2015, I made an order under the Act for a period of three years. The conditions are set out in the judgment delivered on 11 June 2015: New South Wales v Brian Alan Bowdidge [2015] NSWSC 717. During the currency of that order Mr Bowdidge breached the conditions and was subject to criminal charges. Those charges resulted in sentences of imprisonment. As a consequence, the order made on 4 June 2015 did not expire until 7 October 2019.
By summons filed 8 July 2019 the State sought a further extended supervision order. An interim order was made by Bellew J on 6 September 2019 and that interim order has twice been extended. It is due to expire on 30 December 2019. The case came on for hearing on 12 December 2019. At the conclusion of the hearing I made a number of directions and reserved my decision until today, Thursday, 19 December 2019.
The State's application was supported by a number of affidavits together with a volume of material annexed to the affidavit of Jessica Murty affirmed 8 July 2019. Helpful and comprehensive written submissions were provided by counsel for the State (Mr Emmett) and counsel for the defendant (Dr Hughes). The parties were largely in agreement and Mr Bowdidge did not contest the making of the orders. There were relatively minor disputes about the terms of the order and the conditions to be attached to the order. However, before any such orders are made, and because of the significant infringement to the liberty of the subject which they necessarily entail, the legislation requires the Judge hearing the application independently to be satisfied that the relevant statutory criteria are satisfied and that an order should be made in the proper exercise of the Court's discretion. That is so even though the defendant concedes that the criteria are satisfied and does not contest the making of the order.
I am satisfied that the relevant statutory criteria are met and that an order should be made. In view of the concessions made by the defendant I will presently state my reasons for those conclusions in very brief terms. The background to Mr Bowdidge's case has been set out in the earlier judgments of the Court to which reference has already being made.
There were four areas of controversy when the matter was heard. The first of these was the manner in which a particular condition of the previous extended supervision order and the current interim supervision order was being enforced. The relevant condition was in the following terms in the orders I made in 2015:
"17. The defendant must not go to places attended by female children 16 years or under including schools, libraries, amusement parlours, amusement parks and theme parks unless he has prior written approval of the DSO, and he is with someone who has been approved in writing by the DSO."
An almost identical condition was made by Bellew J when making an interim supervision order in September of this year. That order reflected the terms of the amended summons filed by the State and is in the following terms:
"17. The defendant must not go to places attended by children 16 years or under including schools, libraries, amusement parlours, amusement parks and theme parks unless he has prior written approval of the DSO, and he is with someone who has been approved in writing by the DSO."
As a result of bureaucratic mismanagement, if not departmental overreach, this condition has wrongly been interpreted by some administering the order as requiring Mr Bowdidge to be in the "line of sight" of an approved or responsible person at all times when he leaves his residence.
Ms Grabham is the High Risk Offender Applications and Operational Governance Officer within the Extended Supervision Order Team. She provided an affidavit and was briefly cross-examined at the hearing. She said that, as far as she knew, the order was not being enforced in that way. In other words, her evidence was that the only time when Mr Bowdidge was subject to a "line of sight" condition was when he was going with prior approval to places where there may be children. If that was so, it would accord with the conditions of the ESO made in June 2015 and the interim supervision order made in September of this year. I accepted the truthfulness of Ms Grabham's evidence unreservedly. I did not however accept its accuracy.
Material annexed to an affidavit of the defendant's solicitor established to a high degree of certainty that the order was being interpreted by some as meaning that Mr Bowdidge could not leave home unless he was accompanied by a responsible person. For example, a Behaviour and Incident Support Plan produced by Disability Services Australia indicated (at p.5):
"[Mr Bowdidge] is under line of sight (LOS) at all times when accessing the community."
Similarly a table prepared by Disability Services Australia indicated that:
"Line of Sight (LOS) supervision when [Mr Bowdidge] is accessing the community at all times. Similarly, [Mr Bowdidge] is not to access the community (outside of his home) without LOS."
Further, there is evidence that Mr Bowdidge's intellectual disability means that he has some difficulties understanding the precise scope and nature of the conditions to which he is subject. Things he has said to the expert witnesses and others suggests that Mr Bowdidge himself is of the belief that he may only leave his home when he is in the company of, or within the line of sight of, a person deemed to be acceptable by his Departmental Supervising Officer (DSO). One of the documents annexed to his solicitor's affidavit included the following:
"In terms of the men's shed and other activities it appears that [Mr Bowdidge] always attends and interacts/socialises with DSA workers. He reported that there were only elderly men at the Men's shed. To discuss whether he can at least be inside certain activities without his key workers always being present."
Similar observations were made to the experts who provided Court ordered reports and I am satisfied that Mr Bowdidge has been under the misapprehension that he is unable to leave his home unless he is with a person approved by his DSO.
When Ms Grabham was made aware of these things while in the witness box, she indicated that she would notify the relevant authorities, and in particular Disability Services Australia, that this was not the import or purpose of the condition. While I was satisfied that she would comply with that indication, at the conclusion of the hearing I made the following directions:
"(2) Direct that the State of NSW within 24 hours, notify Disability Support Services that the defendant, Mr Bowdidge is not subject to a line of sight condition in circumstances other than those set out in current condition 17 of the Interim Supervision Order that is, when he has approval to attend places attended by children.
(3) Evidence of compliance with that direction be provided to my Associate by 5pm on Monday 16 December 2019."
In accordance with those directions, I received a further affidavit of Ms Grabham on Monday, 16 December 2019, indicating that the State had notified Disability Services that the orders were not to be interpreted or enforced in that way.
Those responsible for administering the order should ensure that Mr Bowdidge is aware that he is free to leave his home without supervision or in the company or line of sight of a responsible person other than in those specific situations contemplated by condition 17 of the order I will presently make. Another exception to that freedom may be if the DSO makes a reasonable direction pursuant to condition 3 which otherwise restricts Mr Bowdidge's freedom of movement. I assume, in making these orders, such a condition will not be invoked lightly or capriciously.
The second area of controversy was related and involved the terms of condition 17. The State sought to amend the proposed condition so it read:
"17. The defendant must not go to places frequented by children 16 years or under including schools, libraries, amusement parlours, amusement parks and theme parks unless he has prior written approval of the DSO, and he is with someone who has been approved in writing by the DSO." (Emphasis added.)
The defendant submitted that the words "places frequented by children" were of such generality that they imposed an undue and unreasonable restriction on Mr Bowdidge's right of movement. As discussed in argument, there are very few places where children might not be found. It could include for example courthouses or churches and nearly any other place except those where children are specifically prohibited such as licensed premises, gambling establishments, brothels and the like.
As a result I directed the defendant to propose a condition which encompassed the kind of risk to which condition 17 was directed.
Accordingly, the defendant proposed the following condition:
"Without limiting condition 16 above, the defendant must not go to the following places, without prior approval of his DSO:
a. Day-care centres, pre-schools and schools;
b. Amusement parlours, amusement parks and theme parks;
c. Cinemas;
d. Libraries and museums;
e. Camping grounds and caravan parks;
f. Children's playgrounds, parks, and areas with play equipment provided for the use of children;
g. Pools, playing fields and sporting facilities;
h. Concerts, theatre shows, children's events and children's entertainment venues; or
i. Residences where the defendant knows that persons under 18 ordinarily reside."
Condition 16 is that:
"The defendant must not go to a place if his DSO tells him he cannot go there."
The State responded by agreeing to that condition subject to a minor alteration whereby the words "without prior" was replaced by "Unless he has prior written". It also sought to add the words "and he is with someone who has been approved in writing by the DSO".
I am persuaded that the combination of condition 3 (the general power of the DSO to provide reasonable directions), condition 16 and the conditions concerning Mr Bowdidge's schedule of movements and electronic monitoring, along with the specific condition proposed by the defendant, are sufficient to mitigate the risks associated with Mr Bowdidge's movements. The specificity of the condition also gives him more clarity as to what is expected of him and the greater freedom of movement has a capacity to foster his rehabilitation by allowing him to live a more normal life. Accordingly, the condition I will impose is the one suggested by the defendant. In doing so, I note the other conditions capable of giving effect to the concerns properly expressed by the State. In view of the difficulties surrounding the administration of this condition in the past, along with Mr Bowdidge's intellectual disability, I do not propose to make the further amendments sought by the State or to require the approval of the DSO to be in written form. No doubt the DSO will not grant approval unless they are satisfied that the visit to the relevant place is safe and that may require the approval of an appropriate companion or chaperone.
The defendant also contested the condition allowing Mr Bowdidge to be subject to search and examination of his person. However, no further oral submissions were made on this subject and given Mr Bowdidge's history of occasional non-compliance I have reached the conclusion that such a condition remains necessary and appropriate at this stage.
Returning then to the question of jurisdiction, power and discretion, I have read once again the facts of the offences to which Mr Bowdidge pleaded guilty or been found guilty and sentenced. It is true that it has been some considerable time since Mr Bowdidge committed a sexual offence against children. However the reports and case notes demonstrate that he remains a person with paedophilic ideation and has behaved inappropriately on many occasions even whilst under the supervision of various orders under the legislation. I have considered the risk assessments provided in the material as well as the Court ordered reports by Dr Furst and Dr Lennings.
The evidence overwhelmingly supports findings that the statutory prerequisites in s 5B(a), (b) and (c) are satisfied. That is:
1. The defendant is an offender (as defined in ss 4A and 5) who has served a sentence of imprisonment for a serious offence either in custody or under supervision in the community: s 5B(a).
2. The defendant is a supervised offender (under s 5I): s 5B(b).
3. The application has been made in accordance with s 5I: s 5B(c).
The application was made in last nine months of the offender's current custody or supervision pursuant to s 6(1) of the Act.
As to the requirement of s 5B(d), I have considered the matters included in the list of relevant and mandatory criteria in s 9(3) of the Act. I have kept in mind that the safety of the community is the paramount consideration but that the rehabilitation of the offender is a significant secondary objective of the Act: ss 3(1), 3(2) and 9(2) of the Act.
I am satisfied to a high degree of probability that the defendant remains a person who poses an unacceptable risk of committing another serious offence if not kept under supervision.
In reaching that conclusion I have taken into account the seriousness of the past offending, the opinions expressed by the experts, the risk assessment reports, Mr Bowdidge's intellectual disability, Mr Bowdidge's paraphilic disorder (paedophilia), his interactions with counsellors and departmental staff, a number of troubling incidents detailed in the notes and reports, the breaches of the conditions over the last three years and other matters relevant pursuant to s 9 and more generally.
In terms of the duration of the order, Mr Bowdidge expressed the wish that that the order be of a short duration, namely two years. The State originally sought an order of that duration and Dr Furst was of the view that this was appropriate. However Dr Lenning expressed the view that an order of a longer duration, perhaps five years, may be more appropriate. One of the reasons was that it seemed inevitable that at the conclusion of a period of two years the State would seek a further supervision order and, it seems, the Court cases have a tendency to upset Mr Bowdidge and disrupt his progress. This is contrary to his rehabilitation.
Having reviewed the material and considered the expert opinion, I am unable to identify anything that suggests that the risk that Mr Bowdidge currently represents to the community is likely to diminish over the next two or so years. It is open to someone subject of such an order to seek to have it revoked or varied if it is being administered in an unreasonable way or if the circumstances change such that they no longer represent an unacceptable risk to the community. In all of the circumstances I am satisfied that the order should be one of four years duration.
Accordingly I make the following orders:
1. Pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an extended supervision order ("the extended supervision order") for a period of four years from the date of the order; and
2. Pursuant to s 11 of the Act that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A to these orders.
3. Access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.
[2]
Corrective Services NSW (CSNSW)
Monitoring and Reporting
1. The defendant must accept the supervision of Corrective Services NSW ("CSNSW") until the end of the Order.
2. The defendant must report to the Departmental Supervising Officer ("DSO") or any other person supervising him as directed by the DSO.
3. The defendant must follow all reasonable directions by his DSO or any other person supervising him.
Electronic Monitoring
1. The defendant must wear electronic monitoring equipment if and as directed by the DSO or any other person supervising him.
Schedule of Movements
1. If he is asked to, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.
2. If the defendant wants to change anything in his schedule of movements after he has given it to his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.
3. The defendant must follow his schedule of movements except in an emergency.
4. The defendant must accurately, to the best of his ability, answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.
Accommodation
1. The defendant must live at an address approved by his DSO.
2. [Deleted]
3. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time.
4. The defendant must not spend the night anywhere other than his approved address without the prior approval of his DSO.
5. The defendant must not permit any child under the age of 16 years to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.
Restrictions on movements
1. The defendant must not leave New South Wales without the prior approval of the Commissioner.
2. The defendant must hand-over his passports to the Commissioner.
3. The defendant must not go to a place if his DSO tells him he cannot go there.
4. Without limiting condition 16 above, the defendant must not go to the following places, without prior approval of his DSO:
1. Day-care centres, pre-schools and schools;
2. Amusement parlours, amusement parks and theme parks;
3. Cinemas;
4. Libraries and museums;
5. Camping grounds and caravan parks;
6. Children's playgrounds, parks, and areas with play equipment provided for the use of children;
7. Pools, playing fields and sporting facilities;
8. Concerts, theatre shows, children's events and children's entertainment venues; or
9. Residences where the defendant knows that persons under 18 ordinarily reside.
Employment, Education & Finance
1. The defendant must make himself available for education, training or participation in a personal development program as directed by his DSO.
2. The defendant must not start any job, volunteer work or educational course without the prior approval of his DSO.
Drugs and Alcohol
1. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.
2. If the DSO suspects on reasonable grounds that the defendant has consumed drugs or alcohol, the defendant must submit to testing for drugs and alcohol as directed by his DSO. If the DSO suspects on reasonable grounds a relapse to alcohol or other drugs the defendant must attend for alcohol and/or drug programs and courses as directed by his DSO or delegate.
3. [Deleted]
4. [Deleted]
Association with Children
1. The defendant must not approach or have contact with any children who he knows are under 16 unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO.
Associations with Others (not children)
1. The defendant must not associate with people that his DSO tells him not to.
2. If the defendant starts a relationship with someone, he has to promptly tell his DSO who may want to tell the person about his criminal history.
3. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service.
Access to the Internet & Telecommunications Devices
1. The defendant must give his DSO a list of all phones and computers plus any devices with internet access. The defendant must tell the DSO all his phone numbers, service provider account numbers, email addresses and user names, as directed.
2. The defendant must obey any reasonable directions by his DSO about phones and computers plus devices with internet access
3. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
Search and Seizure
1. If the DSO reasonably believes that a search (of the type referred to in sub paragraphs d to f below) is necessary:
1. for the safety and welfare of residents or staff or persons present at the defendant's approved address;
2. to monitor the defendant's compliance with this order; or
3. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;
then the DSO may direct, and the defendant must submit to:
1. search and inspection of any part of, or anything in, the defendant's approved address;
2. search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant;
3. search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or
4. search and examination of his person.
1. For the purposes of the above condition:
1. a search of the defendant means a garment search or a pat-down search;
2. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO.
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.
1. [Deleted]
2. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
3. 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 31 and 34.
4. During a search carried out pursuant to condition 31 and 34 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:
1. the safety of residents or of staff at the defendant's approved address;
2. the welfare or safety of any member of the public or any other person;
3. the defendant's compliance with this order,
or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. If seized by the DSO or other official of CSNSW pursuant to this condition, the defendant's mobile phone must be returned to the defendant within three days.
Personal Details and Appearance
1. The defendant must not change his name from Brian Alan Bowdidge or use any other name without the prior approval of his DSO.
2. The defendant must not change his appearance without the prior approval of his DSO.
3. The defendant must let CSNSW photograph him.
4. If the defendant gets a new driver licence or other identification card, he must show the DSO.
Medical Intervention & Disclosure
1. The defendant must tell his DSO the name and address of his doctors, psychologists and counsellors.
2. The defendant must attend all psychological and psychiatric assessments and treatment that his DSO tells him to attend.
3. The defendant must take all medications that are prescribed to him by his doctors.
4. If the defendant stops taking medication as prescribed, the defendant must tell DSO within 24 hours.
5. The defendant must agree to his doctors, psychologists and counsellors sharing information, including reports on his progress and information he has told them, with each other and with his DSO.
6. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.
7. The defendant must accept the assistance and services made available to him by the Community Justice Program.
Note: Conditions 3, 43 and 44 do not require the defendant to participate in treatment or take medication without his informed consent.
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Decision last updated: 19 December 2019