State of New South Wales v Bowdidge by his tutor Ramjan

Supreme Court of NSW|2024-02-02|Before: Wilson J, Campbell J, Buddin J

JUDGMENT

HER HONOUR: On 16 November 2023 Campbell J made interim orders under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the CHRO Act") subjecting the defendant, Brian Bowdidge, to an interim supervision order ("ISO") under the Act: State of New South Wales v Brian Bowdidge by his tutor Barbara Ramjan (Preliminary) [2023] NSWSC 1388 ("the Preliminary Decision 2023"). Under the order the defendant was required to submit to examination by two expert practitioners as part of the process of assessing the risk the State of New South Wales contends that he poses of committing a serious sexual offence if not subject to supervision. The orders made by his Honour represented the continuation of a state that has prevailed for over twelve years, with the defendant first made subject to an order under the Act in March 2011: see State of New South Wales v Bowdidge [2011] NSWSC 188.
The matter again came before the Court on 2 February 2024, for hearing of the State's claim for the imposition of an extended supervision order ("ESO") upon the defendant. The defendant concedes that the statutory requirements for an order to be sought and made, both jurisdictional and evidentiary, are satisfied. He did not oppose the order, although there was a dispute about one of the conditions the State sought to attach to it. That approach reflects the understanding of the defendant and those who assist him that the order is necessary to the community and beneficial to him, even as it restricts aspects of his liberty. The supervisory regime that has operated with respect to the defendant has successfully mitigated the risk to the community, and specifically to children, that he most certainly represents. Having considered the evidence relevant to those matters enumerated in s 9 of the Act, it is clear there is a need for a current order under the Act.
Given the absence of significant opposition to the order, and the documentary record of the defendant's background found in earlier judgments of the Court, which should be read with this latest decision, these reasons need not be extensive. Nor do I regard it as necessary to refer to or set out in any detail the statutory regime or its consideration by the courts over the years.

Background

The defendant is a 63-year-old man who has a mild intellectual disability and possibly an autism spectrum disorder. An alcohol misuse disorder is in remission. He has been diagnosed with a paedophilic disorder.
Between 1975 and 2001 the defendant sexually offended against female children. The details of his criminal history to 2011 can be found set out in the judgment of that year of Buddin J in State of New South Wales v Bowdidge, his Honour having made orders for the imposition of the first ESO to which the defendant was subject. That account has been progressively updated by later decisions of the Court determining applications for further orders: State of New South Wales v Bowdidge [2015] NSWSC 717; State of New South Wales v Bowdidge [2019] NSWSC 1843; and the Preliminary Decision 2023.
In 1974 and 1980 respectively the defendant indecently assaulted two separate female children. In 1991 he was convicted of an offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW), having carried out an act of digital vaginal intercourse upon a 9 year old girl, after he entered a bedroom to which the girl had gone after her shower.
The offence which brought the defendant under the scope of the CHRO Act - the index offence - was another instance of aggravated sexual assault, committed against the daughter of a woman with whom the defendant lived. The defendant removed the child's clothes and his own and committed acts of digital and penile vaginal intercourse upon her. She was aged 7 or 8 at the time. He was convicted in 2001 and sentenced to a term of 4 years 6 months imprisonment, with a non-parole period of 3 years fixed.
The defendant was released to parole on 19 October 2005. The following year he was made subject to a 5 year order pursuant to the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). He has since been convicted of a number of breaches of that order and served sentences involving imprisonment.
The first ESO was imposed in March 2011, with subsequent orders made (or varied) in 2015, 2019, and 2023. There have been various breaches of the orders, although not by sexual offending, and the defendant has been criminally charged for those breaches. His overall response to supervision has been described as "superficial". Dr Richard Parker, author of a Risk Assessment Report ("RAR") has noted a tendency of the defendant to be dishonest, by hiding information and sometimes telling lies to those responsible for his supervision. Supervising staff have also noted conduct that points to his continuing sexual interest in children, such as accessing problematic internet material, consistent with the diagnosis of paedophilia that has been made. It seems most likely that it is the strict supervisory regime to which the defendant is subject, rather than any successful rehabilitation, that has prevented the defendant from re-offending, something that the defendant himself seems to recognise.

The Reports of the Court Appointed Experts

The Court has had the benefit of reports from Dr Gordon Elliott, Forensic Psychiatrist, dated 15 December 2023; and from Dr Jeremy O'Dea, Forensic Psychiatrist, dated 29 December 2023. Each has concluded that an ESO is necessary to manage the defendant's risk to the community of serious sexual offending.
Dr Elliott interviewed the defendant on 1 December 2023 over a 2 hour period. The defendant presented in a manner consistent with descriptions given in the reports of clinicians who had seen the defendant in previous years. He discussed topics of general interest without difficulty but grew evasive and inconsistent when more challenging topics, such as his sexual attraction to children, were raised. Dr Elliott thought the defendant was generally an unreliable historian. The defendant described his ordinary activities as attending art classes and going fishing, but said that he spends most of his weekends at home. He seemed very dependent upon support staff for structure in his daily life.
Dr Elliott considers that the defendant has a paedophilic disorder, being a disorder which involves the individual acting upon sexual urges with a child or alternatively, becoming distressed and impaired by those urges. Dr Elliott regard the defendant's intellectual disability and paedophilic disorder as contributing to the risk that he will commit a serious sex offence. His paedophilic disorder drives his offending, and his intellectual disability impairs his ability to engage with treatment.
Dr Elliott has seen no discernible shift in the defendant's attitude towards his offending or in his understanding of its origins. He perceives even less movement towards the defendant learning strategies to avoid reoffending or using such strategies. For this reason, Dr Elliott considers it appropriate to explore new anti-libidinal treatment for the defendant, a medication which has been used in the past, although terminated for medical reasons.
Dr Elliott concluded that the defendant continues to pose a risk of committing a serious sex offence. Whilst he has not committed a serious sex offence in over two decades, that likely says more about the efficacy of the supervisory regime than it does about the defendant's capacity to manage his own risk. He continues to display problematic behaviour and the recent reports from support staff of the defendant's conduct indicate that he continues to experience paedophilic urges. The defendant has admitted to staff that he remains at risk of reoffending; his avoidance of leaving his house, particularly during periods of school vacation, suggests that he continues to experience intrusive thoughts regarding children.
Dr Elliott does not consider that the defendant's risk of committing a further serious sex offence can be adequately managed in the community in the absence of supervision; the support available to him through the National Disability Insurance Scheme ("NDIS") would be unlikely to be adequate to that purpose. The defendant's risk factors are "entrenched" and "enduring" and it is only the ESO supervision, to some extent coupled with NDIS support, that have prevented him reoffending. Dr Elliott regarded an ESO of 5 years duration as appropriate.
Dr O'Dea has reached a similar conclusion, regarding the defendant's risk of committing further serious sexual offences as essentially unchanged since 2011. The doctor notes that the defendant continues to have limited insight into his sexual offending and sexual deviance. His limited intellectual functioning is a contributory feature. Whilst the defendant reported a significant reduction in sex drive and attraction to female children, reports from support staff of sexualised behaviours towards adults and inappropriate internet access are thought to point to ongoing deviant sexual interests and difficulties in controlling sexual inclination, in the context of his intellectual impairment and potential mood problems.
Dr O'Dea was also of the view that a return to an anti-libidinal medication regime was indicated. He concluded that the defendant's risk to the community was "relatively long term" and regarded an ESO of at least 4 years duration to be required.

Other Relevant Reports

As noted earlier, Dr Richard Parker has prepared a RAR, dated 12 July 2023, for the purposes of these proceedings. Dr Parker is a Senior Psychologist with the Serious Offenders Assessment Unit and has assessed the defendant in the past for earlier applications under the Act. Dr Parker reviewed the Forensic Psychology Services Risk Management Case Notes and the Offender Integrated Management System ("OIMS") notes and detected "a pattern of superficial compliance with treatment and supervision, suggestive of an attitude whereby [the defendant] sees little wrong with his offending, other than the negative consequences to himself". He noted an "ingrained pattern of dishonesty" where the defendant attempts to hide his behaviour and thoughts from supervisors and sometimes actively lies to them in order to avoid negative consequences.
Dr Parker observed no real change in the defendant's underlying attitudes since October 2018, when Dr Parker last reported on the defendant's level of risk, and no reduction in that risk. Since paedophilia is a pervasive condition, the defendant's condition is likely to endure throughout his lifetime. OIMS notes suggest that the defendant's compliance has been dependent upon an intensive supervision to regulate his behaviour, and there is evidence of ongoing sexual preoccupation towards the (adult) members of his support staff.
A Risk Management Report ("RMR") was prepared by Susan Page, Community Corrections Officer, on 1 August 2023. The RMR notes that the defendant is living in stable semi-independent accommodation and receives 6 hours of daily support funded by the NDIS. A guardian has been appointed for medical consents. He has no family support and limited social support.
The RMR notes that the defendant progressed to stage 3 monitoring in June 2023 so that there is no longer any requirement for him to submit schedules of his movements. Despite that change (which was not related to progress but rather, the approaching expiry of an order), the defendant has "repeatedly expressed concern about departing his residence unaccompanied" and prefers to go out in the presence of a support worker. Isolation and boredom are linked to his access to inappropriate material online, including YouTube videos of children viewed for sexual gratification, which has resulted in a warning being issued to him.
The author of the RMR describes the defendant's response to supervision under the ESO as "superficial and marred by avoidant behaviours". This behaviour coupled with his intellectual disability limits his capacity to engage with meaningful intervention surrounding offence related discussions. The defendant was receiving counselling through Forensic Psychology Services, but that ended due to a lack of therapeutic gain. It remains available to him as required.
Risk factors are identified as the defendant's limited capacity for stable relationships, general social rejection and/or loneliness, poor cognitive problem solving, sexual preoccupation, and deviant sexual interests. Management strategies proposed include a schedule of movements if necessary, electronic monitoring, place and travel restrictions, non-association and accommodation conditions, search and seizure conditions and abstinence from drugs and alcohol.

Is an ESO Necessary?

The evidence points very clearly to the necessity for the defendant's supervision in the community if the risk he poses of the commission of a serious sexual offence is to be adequately mitigated. In the absence of a supervisory order the Court is satisfied to a high degree of probability that the test of unacceptable risk set out by s 5B of the CHRO Act has been met. The evidence is also clear that the period of the order should be a lengthy one, and the 4 years sought by the State is appropriate. There is every reason to conclude that the effect of the combination of impaired cognition and a paedophilic disorder in the defendant is that he is likely to remain a risk of committing a serious sexual offence until such time as he is so aged and infirm as to be physically incapable of the commission of crime.

The Conditions

As observed at the outset the only dispute between the parties is with respect to one of the conditions sought by the State, that which would require the defendant to be abstinent from alcohol. Other conditions which were at issue before Campbell J have been the subject of discussion between the parties, and resolved, a sensible and helpful approach for which the Court extends its gratitude.
Alcohol use appears to have played a part in the index offending, with his Honour Judge Goldring, who sentenced the defendant, linking alcohol abuse to the prospects of further offending. The sentencing judge observed in his remarks on sentence: "[…] there must be a risk that if [the defendant] does not receive help and support and treatment if he is released and if he has a chance to use alcohol again the chances of him re-offending in similar ways by committing offences on young children is very high".
The defendant appears to have remained abstinent for over a decade, probably since 2009, when he was sentenced for breaching the 2005 Child Protection Order. The breaches, for which the defendant received a suspended sentence of imprisonment, involved an attempt to have an 11 year old girl, a family member, stay at his home; and drinking alcohol. The broad correlation between those acts is clearly of concern.
Despite the extended cessation of drinking as at 2011 when Buddin J imposed the first ESO upon the defendant, his Honour referred to alcohol use as a risk factor for the commission of offences by the defendant against young children: see [56] and [90] of the 2011 judgment.
The author of the RMR acknowledges that there has been no recent concern as to alcohol misuse but observe that the defendant himself is conscious of his abstinence as the main difference in his life comparing recent years with those in which he committed sexual offences.
Each of the court-appointed experts are of the view that abstinence from alcohol use should be maintained, albeit that it is "less imperative" now than formerly in Dr Elliott's view.
The State argues that it is only the prohibition on alcohol use which has ensured the defendant's abstinence, and to remove that prohibition would likely lead to a resumption in use, and a consequential increase in risk. The defendant's submission is that, by consenting to proposed condition 20, which allows a supervisor to require him to submit to testing for alcohol use, any concerns about his use of alcohol can be informed, and remedial action taken as necessary pursuant to other powers conferred on supervisors by the order. Having regard to that and his long-term abstinence, the defendant submits that it is not reasonably necessary to impose an abstinence condition.
Although the lengthy period over which the defendant has maintained abstinence from alcohol use is a positive feature for which he is to be commended, it must be at least likely that such abstinence is the result of compliance with the ESO through fear of sanction rather than due to the exercise of any informed and sensible choice. As Campbell J noted at [33] of the Preliminary Decision 2023, only the existing supervisory regime under the ESO mandates the defendant's abstinence. If that were to be removed there must be a reasonable possibility that, without the possibility of sanction to compel the defendant to maintain abstinence, he would choose to indulge.
The defendant argues that, with a testing condition, any problematic use could be detected and addressed. The difficulty with that approach, however, is that discovery of alcohol misuse may come too late to prevent the risk of serious sexual offending manifesting. It is all too easy to envisage a scenario where the defendant, alcohol affected and with a resulting diminishment of ordinary inhibitions, committed a serious sexual offence, probably against a child, although support staff could also be at risk given his more recent sexual preoccupations. The High Risk Offender statutory regime is principally directed to preventing serious crime, rather than detecting it and its causes after the fact; an order that allowed risk to manifest would singularly have failed in achieving the aims of the legislation.
For those reasons, the condition sought by the State as to abstinence from alcohol will be imposed upon the defendant. The conditions of the order will otherwise be as determined by Campbell J or as agreed between the parties. The Court is satisfied that the conditions falling into either of those categories are necessary and appropriate to manage the risk posed by the defendant of serious sexual offending.

orders

The orders that the Court makes are those sought by the State, as follows: 1. An order 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 ("the extended supervision order"); and 2. An order pursuant to s. 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this Summons. Schedule CONDITIONS OF SUPERVISION APPLICABLE TO BRIAN BOWDIDGE In these conditions: "Associate" includes, but is not limited to, being in company with, or communicating with by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services. "Defendant" means Brian Alan Bowdidge, also known as "Brian Allan Bowdidge" and "Brian Bowdidge", the defendant in these proceedings and the subject of the order. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Electronic Identity" means each of the following: an email address, a user name or other identity allowing access to an instant messaging service, a user name or other identity allowing access to a chat room or social media on the internet, any other user name or other identity allowing access to the internet or an electronic communication service. "Material" includes: any written or printed material; any picture, painting or drawing; any carving, sculpture, statue or figure; any photograph, film, video recording or other object or thing from which an image may be reproduced; any computer data or the computer record or system containing the data; and any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced. "NSWPF" means NSW Police Force. "Search" includes: A garment search, being 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; and A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched. "Schedule of movements" refers to a weekly plan (referred to in Conditions 6-8), to be submitted to a DSO each Wednesday and which commences on the following Saturday if approved by a DSO. Part A: Reporting and Monitoring Obligations Monitoring and Reporting
You must accept the supervision and guidance of a DSO and obey all reasonable directions of a DSO.
Where a direction maybe given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.
You must truthfully answer questions from a DSO, or any other person supervising you, about: 1. where you are or have been; 2. where you are going; 3. who you are with or have been with; 4. what you are doing or have been doing; and 5. the nature of your associations.
You must agree to any information relating to your risk, supervision or rehabilitation being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW. Electronic Monitoring
You must wear electronic monitoring equipment as directed by a DSO and must not tamper with or remove the equipment. Schedule of Movements
If directed, you must provide a schedule of movements.
If you want to change anything in your schedule of movements once it is approved by a DSO, you must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period.
You must not deviate from your schedule of movements except in an emergency. Part B: Accommodation
You must live at an address approved by a DSO and notify a DSO of any intention to change your approved address or living arrangements.
You must allow a DSO to visit you at your approved address at any time and to enter the premises at that address.
You must not spend the night anywhere other than your approved address or any alternative approved addresses without the approval of a DSO.
You must not permit any person to stay overnight at your approved address (other than persons who ordinarily reside there) without the prior approval of a DSO. Part C: Place and travel restrictions
You must not leave New South Wales without the approval of the Commissioner.
You must not go to any place specified by a DSO.
Without limiting condition 16 above, you must not go to any of the following places without the prior approval of a 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. Activities intended for the entertainment of children; and 9. Residences where you know that persons aged under 18 years ordinarily reside. Part D: Employment, finance and education
You must not start or change any job, volunteer work or educational course without the approval of a DSO. Part E: Drugs and alcohol
You must not: 1. Possess, purchase or consume alcohol without the prior approval of a DSO; 2. Abuse prescription drugs which are not prescribed to you.
You must submit to alcohol testing. Part F: Non-association Association with Children
You must not associate with anyone who he knows or reasonably should know is under 18, other than: 1. incidental contact in a public place in the course of the duties of the minor; or 2. with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO. Associations with Others (not children)
You must not associate with any person specified by a DSO.
Without limiting condition 22, you must not associate with any person: 1. held in custody without prior approval of a DSO.
You must agree to a DSO disclosing your criminal history to another person. Before any disclosure is made, you will first be given the opportunity to make the disclosure yourself within a timeframe as identified by a DSO.
You must obtain written approval from a DSO prior to joining or affiliating with any club or organisation. Part G: Access to the internet and other electronic communication
You must obey any reasonable direction by a DSO about the use of electronic devices and access to the internet.
You must disclose the following information to a DSO if directed: 1. Aliases, electronic identities and log-in names; 2. Email addresses; 3. Telephone numbers; 4. SIM cards; 5. Applications used (including any social networking service); 6. Online gaming services; 7. Instant messaging services; 8. Service provider account numbers; and 9. All passwords and log-in details.
You must not use any of the following unless approved by a DSO: 1. Social networking applications or services (including dating services or applications); 2. Encrypted messaging applications or services; 3. Online gaming applications or services; 4. Instant messaging applications or services.
You must give a DSO a list of the electronic devices you use to communicate with or access the internet. This includes computers, phones, tablet devices, data storage devices and gaming devices. You must advise a DSO of any change to the list immediately.
You must only use an electronic device to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.
You must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by you, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.
You must not delete or alter any of the following from your electronic devices without prior approval of a DSO: 1. Applications; 2. Emails; 3. Text messages; 4. Electronic messages; 5. Call history; 6. Files or documents; 7. Photographs, images and videos; or 8. Internet or application usage and search history.
You must provide consent for your telephone provider and internet service provider to share information about your accounts with a DSO. Part H: Search and seizure
If a DSO forms a reasonable suspicion that a search is required, either to monitor the defendant's compliance with this Order, or for the safety and welfare of any other person, or because a DSO suspects the defendant of having engaged in behaviour or conduct associated with an increased risk of committing a serious offence, the defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is travelling or which is under his effective control, or any storage facility, garage, locker or commercial facility, and the seizure of any object located during the search.
You must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to this Order. Part I: Personal details and appearance
You must not change your name from "Brian Alan Bowdidge" or use any other name without notifying a DSO.
You must not significantly change your appearance without the approval of a DSO.
You must let a DSO photograph you, dressed, within one week of the commencement of these conditions and following any significant change to your appearance.
If you change the details of any current form of identification or obtain further forms of identification, you must provide a DSO with such details. Part J: Medical intervention and treatment
You must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.
If directed, you must undergo an assessment for the purposes of a Mental Health Care Plan or Community Treatment Order.
You must notify a DSO of the identity and address of any healthcare practitioner that you consult.
You must take medications that are prescribed to you by your healthcare practitioners and only in the manner prescribed.
You must notify a DSO immediately if you cease to take or decline to commence taking any medication as referred to in the above condition.
You must agree to your treatment and service providers and healthcare practitioners sharing information, including reports on your progress and attendance, and information you have told them, with each other and with a DSO.
You must agree to any information obtained under condition 45 being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW.
The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him to the extent that it is relevant to his risk of reoffending or rehabilitation.

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: 09 February 2024

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