State of New South Wales v Brian Bowdidge

Background to the Application for variation of ESO conditions

1. The defendant is aged 58. He has a mild intellectual disability. He has a criminal record which includes, amongst other matters, convictions for sexually assaulting children. The first such conviction was in 1975, when he was aged 14, for assaulting a female aged under 16, being a six-year old girl. He pulled down her pants and looked at her genitalia. This was followed by further sexual offences involving children in 1980, 1991 and 2001. The details of his offences are set out in the judgement of his Honour Justice Buddin in NSW v Brian Alan Bowdidge [2011] NSWSC 188 from par 20, from which I note the following.
2. The applicant did not receive a custodial sentence until the 2001 offences, which involved a girl aged seven or eight. He received a total sentence of 4 to 6 months, expiring on 30 March 2006, with a non-parole period of 3 years.
3. On 14 July 2006, a prohibition order was made in relation to the defendant in the Local Court, prohibiting the defendant from remaining in the company of any person under the age of 18 years or actively communicating, or attempting to communicate (directly or indirectly) with a person under the age of 18 years, and consuming alcohol.
4. On 8 April 2009 the defendant was convicted of two charges of contravening the Prohibition Order, being three orders prohibiting him from: 1. actively seeking to remain in the company of any person under the age of 18 years; 2. actively communicating or attempting to communicate (directly or indirectly) with a person under the age of 18 years; and 3. consuming alcohol. He breached these orders by approaching his 11 year-old daughter in a shop whilst she was in the company of her mother and step-father and told her she could visit him in Sydney. Five months' later, he approached his daughter's home with a gift for her. The step-father opened the door, took the gift and told the defendant he was not supposed to be there. A fortnight later, he wrote to his daughter's mother, asking if his daughter could stay with him one week-end. The police visited him, and found him drinking beer. He was sentenced to 9 month's imprisonment which was suspended on condition that he enter a good behaviour bond.
5. The defendant breached the prohibition order again, by residing with a woman and her 13 year-old daughter, for a period of 6 or 7 weeks. On 19 August 2009, he was sentenced to 14 months imprisonment with a non-parole period of 10 months.
6. Towards the end of the 4 year period of the ESO imposed by his Honour Justice Buddin, the plaintiff sought a further such order for a period of 5 years. The application was heard by his Honour Justice Hamill; see NSW v Brian Alan Bowdidge [2015] NSWSC 717. His Honour noted (at [14]-[15]): [14] While there is some evidence to suggest that the defendant has had difficulties complying with some of the conditions of the original extended supervision order, for the most part he is to be commended for his efforts. He has largely complied with the conditions and has remained out of trouble for a period of around, or a little less than, five years. [15] However, while there have been no actions taken on any breaches that he may have committed, there have been occasions when his conduct has been worrying. There is a large body of material in the form of case notes and interviews supporting that proposition. It is unnecessary to refer to these incidents other than in a general way, noting that the proposition that I have just stated is well justified by the evidence. It is put, perhaps euphemistically, that the defendant has difficulties with boundaries. As result of these difficulties he has on occasion made entirely inappropriate comments to support workers, psychologists and the like.
7. His Honour then related some such incidents. Ultimately his Honour imposed an ESO for a period of 3 years, to commence on 4 June 2015.
8. In 2017 the defendant was charged with two counts of fail to comply with an ESO, being contacting a woman he had been directed not to contact, and for deleting information from his mobile phone. He was convicted and 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, receiving concurrent sentences of 18 months imprisonment commencing on that date, and with a non-parole period of 13 months, which expired on 17 September 2018.
9. He was released to parole on 17 September 2018. He remains subject to parole until 17 February 2019. The ESO imposed by his Honour Justice Hamill will now not expire until 6 October 2019.
10. Upon his release, the defendant was placed in the Integration Support Centre at Campbelltown, which provides accommodation and reintegration support for high-risk offenders released from custody. On 14 October 2018 he was removed from the centre for inappropriate behaviour, which included peeping at other residents through cracks in the bathroom door while they were using the bathroom facilities. He was placed in motel accommodation at Minchinbury, there being no other suitable accommodation in the community for him. On 18 October, he expressed to a Departmental Supervising Officer (DSO) who was visiting him at the motel, inappropriate thoughts about having sex with the cleaner of his room.
11. On 4 December 2018, a female staff member of the Department of Corrective Services reported inappropriate behaviour by the defendant towards her. A case note for 4 December 2018 records: DSA staff stated that Brian has acted inappropriately to a female staff [sic] by whispering in her ear and entering her personal space. She said this made her feel very uncomfortable and asked Brian to cease this behaviour but he did it again.
12. On 19 October 2018, the State Parole Authority considered an application to revoke the defendant's parole. It did not do so, instead requesting further information and adjourned consideration of the application until 2 November 2018.
13. On 24 October 2018, his Honour Justice Harrison considered an application by the plaintiff for an emergency detention order for a period of 120 hours, being the time the plaintiff required to prepare and file an application for a continuing detention order. The application was rejected; see NSW v Brian Alan Bowdidge [2018] NSWSC 1615. His Honour said (at [16]-[17]): [16] Even accepting that the risk is as the State maintains, I am not satisfied that Mr Bowdidge's current accommodation and supervision regime is inadequate to manage the alleged risk. I am informed that Mr Bowdidge is effectively locked in his motel room, apart from periods when he is able to be outside his room for a cigarette or similar limited recreation. He nevertheless remains supervised on such occasions. He is electronically monitored. The State complains that the maintenance of such a regime is difficult to manage and costly, in terms of manpower, to enforce. However, having regard to the short period that this situation will prevail before a continuing detention order application is made, I am not prepared to consider that returning Mr Bowdidge to what is likely to be a maximum security gaol is a suitable alternative. Mr Bowdidge has spent a very small proportion of his adult life in custody. He is entitled in these circumstances to be given the benefit of that substantial crime free history in assessing both the risk that he will imminently commit a further serious sexual offence unless returned to prison as well as in assessing the question of whether the State has established the matters referred to in s 18CC(1)(b) and (c). [17] It is well established that the protection of the community is a matter of primary significance in applications such as the present. However, I am not satisfied that the identified altered circumstances lead to a conclusion that Mr Bowdidge poses an unacceptable and imminent risk of committing a serious offence unless an emergency detention order is made.
14. The current summons was filed five days later, on 30 October 2018.
15. On 2 November 2018, the State Parole Authority declined to order the revocation of parole, stating it was not satisfied that the defendant poses a serious and immediate risk to the safety of the community.
16. On 7 November 2018, the applicant informed the court that it no longer presses its application for an interim detention order and instead seeks only a variation of the current conditions to the ESO which expires on 6 October 2019.
17. Since 21 December 2018, the defendant has been accommodated in Smithfield with 35 hours of support per week. Recent OIMS case notes suggest improvement, such as the defendant reporting on 19 January 2019 that his sexual preoccupation had subsided.

The relevant legislative provision

1. Section 13 of the Act governs the power of the Court to vary conditions of an ESO. The relevant parts are as follows: 13 Supervision order may be varied or revoked (1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State or the offender. (1A) The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part. (1B) Without limiting the grounds for revoking an extended supervision order or interim supervision order, the Supreme Court may revoke an extended supervision order or interim supervision order if satisfied that circumstances have changed sufficiently to render the order unnecessary.

The variations sought and the position of the defendant

1. The plaintiff submits that, pursuant to s 13(1B) of the Act, since the current ESO commenced, there have been changes in the defendant's circumstances that warrant the conditions of the ESO being varied. These changes are the 2017 breach and the evidence since October 2018 suggesting the defendant is experiencing heightened sexualised thoughts combined with new forms of improper conduct. The conduct is that of the peeping in the bathroom facilities in October 2018, expressing thoughts about having sex with his motel room cleaner and the inappropriate behaviour with a female staff member of the Department of Corrective Services.
2. The nature of the variations sought is essentially three-fold: to vary current conditions restricting access to female children to both male and female children (current conditions 13, 17 and 24); to introduce additional conditions permitting a search in certain circumstances by the DSO of the defendant's residential address, any vehicle or storage facility and his person (new conditions 31 and 32) together with powers of seizure (new condition 36); and a prohibition on accessing pornographic, violent or classified material (new conditions 37 and 38).
3. The defendant opposes the proposed variations on the basis that they do not reflect the evidence of the current nature of the risk posed by the defendant.
4. In relation to the proposal to vary the current references to "female child" to "child", counsel for the plaintiff submits that this is in response to "the defendant's sexualised conduct towards males", relying on the affidavit of Annette Caffery, sworn 25 January 2019, at par 7. However, that paragraph refers only to the evidence of a recent sexualised conduct towards females. In the hearing, counsel for the plaintiff confirmed that was an error and the material relied upon comprises references to the defendant recently expressing a sexual interest in adult males. Although there is no evidence of the defendant having a sexual interest in male children and he has not expressed such an interest, the plaintiff submits that there are reasonable grounds to have reservations about his candour.
5. Counsel for the defendant submits that the incidents since October 2018 are innocuous, it is now some eighteen years since his last conviction for an offence of sexual assault and a sexual interest in male children does not follow from a sexual interest in adult males, a point rightly conceded by counsel for the plaintiff. The defendant's counsel noted that he had characterised his sexuality to his Departmental staff as now being bisexual, with a preference for women. As well, counsel for the defence expressed concern that the proposed variation could prejudice the defendant if, for example, he innocently encounters a sixteen year-old male at a supermarket check-out and any interaction is misunderstood.
6. The defendant's shift in his sexual orientation in recent months, from one of heterosexuality to bisexuality, is a significant change, although of course with no criminal or otherwise unlawful overtones. Although the defendant has not expressed a shift in his paedophilia from a sexual interest exclusively in female children, the combination of the state of flux in his sexual orientation and his history of sometimes not being forthcoming, inclines me to agree to the proposed variation of conditions 13, 17 and 24 so that the word "female" or "females" is replaced with "child" or "children".
7. I consider that the variation will have little additional adverse impact on the defendant. The supermarket check-out scenario advanced by counsel for the defendant is no greater an issue for the defendant with a male young person he might encounter at the check-out than it presently is with a female young person at the check-out. It is a reasonable expectation that common sense, on the part of the defendant's DSO, would prevail in such a circumstance.
8. The plaintiff's proposed new conditions as to search and seizure are as follows: 31. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. 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: d. search and inspection of any part of, or anything in, the defendant's approved address; e. search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant; f. 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 g. search and examination of his person. 32. For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search. b. 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.
9. In relation to the proposed variation permitting extensive search powers of the defendant's property, the plaintiff submits it is necessary, given the possibility of unapproved people attending his premises and him possessing relevant material that in the future he may not be inclined to produce. The defendant responds that there has been no instance of the defendant refusing consent to a search or secreting any items in his house.
10. It is relevant to consider these proposed conditions alongside two existing conditions, appropriately modified as to their number and those of other conditions they refer to: 34. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 35. 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.
11. The supporting documentation establishes that, to date, the defendant has been compliant with reasonable requests by his DSO to search his property. However, it also discloses that the discovery by the DSO of the existence of internet-connected devices in the defendant's property has sometimes been a matter of good fortune. A recent tour of the defendant's new accommodation by a DSO brought to light a computer in a walk-in wardrobe. There is no suggestion that the defendant had hid the computer, but had he not invited the officer to look around, its existence may not have been revealed. In other words, the proposed condition is a more reliable way of ensuring that the DSO is aware of the existence of material and devices in the defendant's property or control that may shed light on his degree of compliance with the conditions. Accordingly, I agree with the inclusion of proposed conditions 31 and 32.
12. The proposed condition introducing a power of seizure is as follows: 36. 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: 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 DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.
13. The plaintiff submits that the seizure power in proposed clause 36 is intended to thwart the risk of the defendant deleting content from his phone "limiting the DSO's knowledge of potentially risky behaviour". This is prompted by the history of the defendant deleting information from his phone in 2017, which comprised a breach of one of his conditions of the ESO. The act of deletion only came to light because the phone was seized by police when he was arrested for another breach of conditions of his ESO. The plaintiff's submissions rely on Ms Caffrey's affidavit at par 4, which assumes that the proposed variations will enable the DSO to seize the defendant's phone in order to subject it to forensic testing "to provide a comprehensive review of his internet use and contact with others".
14. The defendant submits that the variation is unnecessary, as the evidence is that the defendant has readily acceded to requests for searches outside the current conditions, there is no suggestion that further forensic testing is warranted and, in any event, there is no link between any such conduct and the identified risk. In oral submissions counsel for the defendant advanced the argument that seizure of his phone for forensic searching would affect him more adversely than others, given his social isolation and intellectual disability. Counsel for the plaintiff countered that there was no evidence as to how long a mobile phone would be retained for the purposes of interrogation, but one would expect police to not take longer than is necessary.
15. I note the terms of the proposed condition are for the DSO to seize the phone; there is no mention of the police. Police already have powers to seize mobile phones in certain circumstances. I am troubled by the prospect of the defendant being deprived of his mobile phone. A modified condition that he be provided with a similar device whilst his phone is seized has the difficulty that he still would not have his contact information and any other legitimate stored information. Given the defendant's intellectual disability and the very onerous restrictions on his liberty that he already has, I am of the view that this is a serious additional burden. I modify the proposed condition to permit the defendant's phone to be seized for no more than 3 days. This does not impact on the legislative and common law powers that police have to seize a mobile phone.
16. The proposed conditions concerning pornographic material are as follows: 37. 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 under the National Classification Code. 38. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified, or material that would be classified, as X18+ or Category 2 restricted or Category 1 restricted under the National Classification Code, or any other material as directed by the DSO, without the prior approval of his DSO with such approval to be subject to the advice of his treating psychiatrist and/or psychologist.
17. This qualified prohibition on access to or possession of pornographic and classified material is justified by the plaintiff in written submissions on the basis that it "reflects the defendant's history of accessing such material and the defendant's heightened sexual preoccupation being an identified risk factor" (par 35). The defendant responds that the defendant has, in the past, complied with a direction to not access pornographic material, he has advised his DSO that he has exercised restraint of his own volition in accessing pornography on the internet and that a condition that he not access pornography goes beyond the identified risk.
18. I have two concerns with the proposed variation. Firstly, I accept the submission made on behalf of the defendant that his access to pornography of consensual adult participation, whether of males or females, is not responsive to the identified risk, which concerns serious sexual offences involving children.
19. Secondly, I note that the proposed conditions are complex. Proposed condition 37 assumes an awareness of the National Classification Code and an intellectual capacity to apply it to unclassified material so as to assess whether it would be refused classification if it had been assessed. A mild degree of intellectual disability is not inconsequential: Muldrock v R (2011) 244 CLR 120 at [50]. It is trite to observe that persons with an intellectual disability often have difficulty grasping abstract concepts. However, there is no evidence as to the defendant's capacity to understand the two proposed conditions and, separately, his capacity to implement them. A failure to comply with a condition is a criminal offence that would expose the defendant to a real likelihood of a further custodial sentence. I also take into account that accessing child pornography is unlawful in any event.
20. Accordingly, I reject the proposed conditions concerning pornography.

Orders

1. I make the following orders. 1. Pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) I vary the defendant's extended supervision order in accordance with the conditions set out in the Schedule to this judgment. 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) I direct the defendant, for the period of the extended supervision order, to comply with the conditions set out in the Schedule to this judgment. 3. Access to the Court's file for any document shall not be granted to a non-party without leave of a Judge of the Court and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

---

SCHEDULE - BRIAN ALAN BOWDIDGE Departmental Supervising Officer (DSO) 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
4. The defendant must wear electronic monitoring equipment if and as directed by the DSO or any other person supervising him. Schedule of Movements
5. 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.
6. 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.
7. The defendant must follow his schedule of movements except in an emergency.
8. 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
9. The defendant must live at an address approved by his DSO.
10. [Deleted]
11. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time.
12. The defendant must not spend the night anywhere other than his approved address without the prior approval of his DSO.
13. 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
14. The defendant must not leave New South Wales without the prior approval of the Commissioner.
15. The defendant must hand-over his passports to the Commissioner.
16. The defendant must not go to a place if his DSO tells him he cannot go there.
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. Employment, Education & Finance
18. If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO.
19. The defendant must not start any job, volunteer work or educational course without the prior approval of his DSO. Drugs and Alcohol
20. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.
21. The defendant must submit to testing for drugs and alcohol as directed by his DSO.
22. [Deleted]
23. The defendant must participate in alcohol programs and courses as directed by his DSO, and must not leave such programs and courses without prior approval of his DSO. Association with Children
24. 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)
25. The defendant must not associate with people that his DSO tells him not to.
26. 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.
27. 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
28. 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.
29. The defendant must obey any reasonable directions by his DSO about phones and computers plus devices with internet access
30. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. Search and Seizure
31. [Deleted] If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. 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: d. search and inspection of any part of, or anything in, the defendant's approved address; e. search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant; f. 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 g. search and examination of his person.
32. [Deleted] For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search; b. 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.
33. [Deleted]
34. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
35. 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.
36. 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: 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 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 SCNSW pursuant to this condition, the defendant's mobile phone must be returned to the defendant within three days. Personal Details and Appearance
37. The defendant must not change his name from Brian Alan Bowdidge or use any other name without the prior approval of his DSO.
38. The defendant must not change his appearance without the prior approval of his DSO.
39. The defendant must let CSNSW photograph him.
40. If the defendant gets a new driver licence or other identification card, he must show the DSO. Medical Intervention & Disclosure
41. The defendant must tell his DSO the name and address of his doctors, psychologists and counsellors.
42. The defendant must attend all psychological and psychiatric assessments and treatment that his DSO tells him to attend.
43. The defendant must take all medications that are prescribed to him by his doctors.
44. If the defendant stops taking medication as prescribed, the defendant must tell DSO within 24 hours.
45. 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.
46. 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.
47. 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. 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: 14 February 2019