State of New South Wales v Brian Bowdidge by his tutor Barbara Ramjan

Supreme Court of NSW|2023-11-10|Before: Campbell J, Hamill J, Buddin J

Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2023/294569

JUDGMENT

By summons filed on 14 September 2023 the State of New South Wales ("the State") applies for the imposition of a fourth extended supervision order ("ESO") under Crimes (High Risk Offenders) Act 2006 (NSW) against the defendant ("Mr Bowdidge") for a period of 4 years. All references to legislation in this judgment, unless otherwise specified, are references to that Act.
By way of interim relief, the State seeks the imposition of an interim supervision order ("ISO") under s 10A from 19 December 2023 for a period of 28 days following the expiration of the current ESO imposed by Hamill J on 19 December 2019. Section 7(4) orders are sought for the appointment by the Court of two qualified psychiatrists or psychologists or any combination of such persons to conduct examinations of Mr Bowdidge and to furnish reports to the Court as a result of those examinations. Other interim relief involves an order directing Mr Bowdidge attend the examinations and an order limiting non-parties' access to the Court file.
The first ESO was imposed by Buddin J on 18 March 2011: State of New South Wales v Bowdidge [2011] NSWSC 188; the second by Hamill J on 11 June 2015: State of New South Wales v Bowdidge [2015] NSWSC 717; and the third, again by Hamill J on 19 December 2019: State of New South Wales v Bowdidge [2019] NSWSC 1843. The second ESO was suspended while Mr Bowdidge served a sentence of 19 months imprisonment commencing on 15 May 2017 and expiring on 17 February 2019 with a non-parole period of 15 months expiring on 14 August 2017 for four counts of contravening his ESO.

Legal principles for preliminary hearing

Section 7(3) requires the Court to conduct a preliminary hearing into the State's application within either 28 days of the application being filed or such further time as the Court may allow.
If following the preliminary hearing the Court is satisfied that the matters alleged in the State's supporting documentation would, if proved, justify the making of an ESO, the Court is required to make the orders the State seeks under s 7(4).
To make an ISO, it must appear to the Court that, in the current context, that the existing ESO will expire before the proceedings are determined and, again, that the matters alleged in the supporting documentation would, if proved at the final hearing, justify the making of an ESO. But, it is well established that even if these conditions are satisfied, the making of an ISO involves the exercise of a judicial discretion.

Issues

Section 5B imposes statutory conditions which must be satisfied before an ESO may be made after a final hearing. By his counsel, Dr A Hughes, Mr Bowdidge through his tutor, concedes, for the purpose of the preliminary hearing only, that the matters alleged in the supporting documentation, if proved at the final hearing, would justify a finding that each of the statutory preconditions expressed in s 5B(a) to (c) are satisfied. No submission is addressed either way about the s 5B(d) condition, which turns on the question whether the Court is satisfied to a high degree of probability that Mr Bowdidge poses an unacceptable risk of committing another serious offence if not kept under an ESO.
From consideration of the matters alleged in supporting documentation, I am satisfied that counsel's concession was properly made. I find that Mr Bowdidge is an offender who is over the age of 18 years and has served a sentence of full-time imprisonment following his conviction for a serious sex offence, being the aggravated sexual assault convictions, which were contrary to s 61J Crimes Act 1900 (NSW) (s 5(1)(a)). This satisfies s 5B(a). I am also satisfied that the applicant was a supervised offender because when the application was lodged Mr Bowdidge was subject to the third ESO. This satisfies s 5B(b). The application as commenced also satisfies the requirements of s 6, the supporting documentation addresses each of the matters referred to in s 9(3), other than the reports of the Court appointed experts which are obviously not available, and includes a risk assessment report from a registered psychologist, Dr Richard Parker. The application has been commenced in the last nine months of the current order. These considerations satisfy s 5B(c).
For reasons I will explain in the balance of this judgment, I am satisfied that the matters alleged in the supporting documentation, would, if proved at the final hearing, justify a finding to a high degree of probability that Mr Bowdidge continues to pose an unacceptable risk of committing another serious sex offence if not kept under another ESO.

General background and index offending

Mr Bowdidge was born in 1960 and is now 63 years of age. He has the congenital neurocognitive disability of a Mild Intellectual Disability or Borderline Intellectual Function. Neuropsychological assessments previously performed revealed full-scale IQs of 66 (in 2003) and 77 (in 2001). The neurocognitive disability is relevant because it appears to limit Mr Bowdidge's insight into his offending, although not completely. It also makes self-control difficult for him.
He has been diagnosed as suffering Paedophilic Disorder (non-exclusive type) based upon his sexual attraction to pre-pubescent females. He has also been diagnosed with Substance Use Disorder in relation to alcohol dependence. This condition is in remission and its common ground that he has been abstinent from alcohol for approximately 11 years.
There is no evidence that he suffers from any major psychiatric disorder. Some examining clinicians have suggested the possibility of Autism Spectrum Disorder, but the diagnosis has not been confirmed.
After leaving school he worked on carnival rides for about 10 years, and at the fruit markets for about 20 years. He has also worked in the transport industry. He was treated with the antilibidinal medication Androcur from about 2006, which was successful in reducing his otherwise high baseline testosterone levels, but the treatment was twice discontinued because he developed thrombocytopenia (low platelet count).
Evidence read on behalf of Mr Bowdidge at the preliminary hearing (affidavit of Melissa Smith 2 November and 9 November 2023) indicates that Mr Bowdidge has been accepted into a new treatment and rehabilitation clinic established by Justice Health under the directorship of Dr Kerri Eagle, consultant forensic psychiatrist. The interventions are multi-disciplinary and may include antilibidinal treatment if appropriate. The program is for persons on an ESO. Obviously, it is not known what success may be achieved in relation to Mr Bowdidge by his participation in the program. More accurate information may be available at the final hearing. This evidence may be a relevant discretionary consideration.
Mr Bowdidge's intellectual disability is such that it has been observed that he has "very limited capacity to participate in psychological treatments, other than general support of counselling and the associated supervision of his living arrangements."
The sentence for the 2001 offending was passed by Goldring DCJ on 30 January 2002. The victim was the daughter of a woman with whom Mr Bowdidge was in a relationship at the time. In the mother's absence, he removed his clothing and the clothing of the victim and had digital and penile intercourse with her. The sentencing judge regarded the chance of reoffending to be very high if Mr Bowdidge did not receive help, support and treatment ([2011] NSWSC 188 at [28]-[31] (Buddin J)).

Section 9 considerations

I bear in mind that the safety of the community is the paramount consideration for the purpose of determining whether an ESO should be made. I now turn to the matters alleged addressing the s 9(3) mandatory considerations.
In his report of 29 October 2019, Dr Richard Furst rated Mr Bowdidge's risk of reoffending. He considered the risk estimate produced by actuarial tools of Moderate-High as underestimating Mr Bowdidge's risk of reoffending as he had sexual pre-occupation and sexual deviance in the form of his Paedophilic Disorder. The longitudinal history of his sexual offending was of concern although the expert noticed that he had not been involved in an actual sexual offence since the 2001 offending. His intellectual disability and sexual deviancy meant he lacked self-control. His social isolation meant he lacked protective factors and his apparent unsuitability for antilibidinal medication was of further concern.
In his October 2019 report, Dr Christopher Lennings, Psychologist, regarded Mr Bowdidge's high level of sexual deviance as the most critical factor. It was Dr Lennings view that Mr Bowdidge was likely to commit a further serious sex offence absent appropriate external restraint. Dr Lennings thought the risk factors were firmly entrenched and undiminished by his increasing age.
As I have said, the risk assessment report was prepared by Dr Richard Parker. Dr Parker administered the usual actuarial based tools utilised in respect of sex offenders including Static-99R and STABLE-2007 and produced a result that Mr Bowdidge's risk of further serious sex offending was a well above average risk (Dr Parker [67]). Dr Parker recorded that after his release to parole in respect of the conviction for breaching the previous ESO, Mr Bowdidge was admitted to the National Disability Insurance Scheme ("NDIS"), lives in supported accommodation with supervision 24 hours per day 7 days per week, albeit the overnight supervision is passive. He also receives other support in moving about in the community. The New South Wales Trustee and Guardian has been appointed a guardian by order of NCAT made in March 2023. But Dr Parker was uncertain about whether these protections of themselves would be sufficient to guard against the risk of further offending if an ESO was made.
A risk management report has been prepared by Community Corrections Officer Susan Page on 1 August 2023. The report has been countersigned by Erin Kirkwood, a senior corrections officer and the Operational Governance Officer within the Metropolitan Extended Supervision Order Team. From the matters alleged in the report Community Corrections appear confident that Mr Bowdidge can be managed in the community under the terms of a further ESO. I think it important that notwithstanding previous significant aspects of non-compliance he has been very largely compliant with the third ESO imposed by Hamill J in December 2019. But there have been occasions when a warning has been required because Mr Bowdidge has accessed inappropriate internet sites. And he is not always forthcoming about such matters when first challenged. Nonetheless there is no reason to suppose he cannot be successfully managed in the community according to the matters alleged in the supporting documentation.
Mr Bowdidge has undertaken some courses in custody and treatment in custody and in the community. He enrolled in the CUBIT adapted program in 2003 but was discharged because of the difficulties he experienced including problems with comprehending the concepts being discussed. This probably related to his Mild Intellectual Disability. From about 2011 he participated in individual psychology sessions with the Forensic Psychology Service, but these were discontinued in September 2022 because of the lack of therapeutic gain. He is able to re-participate on an as need basis. And the FPS psychologists are available to the ESO team to assist in Mr Bowdidge's management. The documents suggest that Mr Bowdidge's understanding is at a very rudimentary level. His management of potential risk scenarios does not go beyond avoidance which is not necessarily the most effective tactic. On the whole, Mr Bowdidge participated in the programs made available to him as directed, but the matters alleged in the documentation suggest his intellectual disability was a significant barrier to him deriving benefit from the programs.
As I have said, the options available other than an ESO are at best limited. I repeat that Dr Parker did not suggest that participation in the NDIS and the benefit of a guardianship order would of themselves be sufficiently protective to manage the risk that Mr Bowdidge poses of further child sex abuse offending.
On my reading of them, the matters alleged in the supporting documentation suggest that Mr Bowdidge will, on the whole, comply with the conditions of an ESO. Having said that, of course, the history I have recounted demonstrates that his compliance has not been perfect. He was prosecuted for breach of his obligations under the Child Protection (Offender's Prohibition Orders) Act and also for breaches of the conditions of the second ESO. In March of this year, he was cautioned about accessing inappropriate internet sites for the purpose of observing footage of children. His intellectual disability makes compliance challenging for him and supervision perhaps harder for the ESO team than with other offenders. To an extent the NDIS and the guardianship order provide a level of protection and supervision. Given the long history of the matter, the material suggests that an order will on the whole successfully manage the risk.
I have already referred to Mr Bowdidge's criminal history and the views of Goldring DCJ and I will not repeat these matters.
A difficulty in the present case as observed by Hamill J is the tendency on the part of Mr Bowdidge not to leave his residence at all unless in the company of his NDIS support person. The terms of the ESO do not require this and in some respects the arrangement is not ideal. In particular I note the evidence that Mr Bowdidge declines to leave the residence at all during school holidays and other times when the presence of children generally in the community is likely to be increased. The difficulty with this avoidant behaviour is that it gives him free time at home when he is not directly supervised and the temptation for him to access inappropriate sites is difficult for him to resist. This is an issue which would need to be addressed by the ESO team and in particular Mr Bowdidge's DSO.
My analysis of the matters alleged in the supporting documentation, as I have said persuades me that if proved at the final hearing those matters would justify a finding to a high degree of probability of unacceptable risk and the making of an ESO. Given these findings I am persuaded that it is appropriate to make an ISO. I would not dismiss the application. It is incumbent on me to make the s 7(4) orders.

Duration of the order

Under s 10C, I propose to impose an ISO from 19 December 2023 for a period of 28 days.

Conditions

As is so often the case, the greater area of disputation relates to the conditions that should be imposed under s 11. I am of the view, given its comparative success, at least until the final hearing, something like the regime put in place by Hamill J should be continued. I wish to observe that Mr Bowdidge has made some progress and as a matter of practice the schedule of movements available to a DSO under condition 5 has been suspended subject to the DSO's discretion to reimpose it should backsliding occur. Electronic monitoring continues. In the assessment of the DSO and the ESO team he has not progressed to the stage where that can be dispensed with. I appreciate that electronic monitoring constitutes a significant infringement on a person's liberty. But I think it appropriate to leave it in place until the Court has the benefit of up-to-date opinions from Court appointed experts.
Mr Bowdidge opposes condition 14, requiring the surrender of a passport on the basis this is an infringement of his civil liberty. The reality is that Mr Bowdidge is not in any position as I understand it to travel overseas at this time and in any event would need permission to do so. Should a legitimate need arise for him to have a passport, arrangements could no doubt be made with the approval of the Corrective Services Commissioner, and by court order if necessary.. Perhaps the nature of that restriction could be reassessed at the final hearing.
Mr Bowdidge opposes conditions 19 and 20 as proposed, relating to his abstinence. As I understand it, the main objection is that as it appears to be common ground that he has been abstinent and compliant for 11 years, the condition is simply unnecessary to manage his risk. On the other hand, it may be said that the condition and the companion condition requiring Mr Bowdidge to submit to alcohol testing are successfully functioning. For a period of time, he did attend alcoholics anonymous but issues arose about the appropriateness of his behaviour there. The only matter which is currently in place to maintain his abstinent state is the condition of his ESO. I would maintain that place for the time being anyway, until the opinion of the court appointed experts are available.
I have been persuaded that the search powers, the subject of condition 34 should be amended in the form contended for by Mr Bowdidge and I will impose that order. Conditions 45 to 47 relate to the provision and sharing of information amongst treatment providers. It must be said that at this stage this provision is likely to have limited utility given that the treatment Mr Bowdidge was receiving from the FPS has been discontinued for the reasons I have addressed. However, these matters can be explored in greater detail at a final hearing. I propose to impose conditions 45 and 46 as contended for by the State. I will however, substitute condition 47 proposed by Mr Bowdidge for that appearing in the summons.
I have decided not to impose proposed condition 12, regulating attendance of visitors at Mr Bowdidge's residence. It needs to be borne in mind that his residence is shared with another person and there is supervision at the residence 24 hours per day. Visitors are not necessarily his visitors, nor will he always have the power to ask them to leave. Condition 13 limits overnight guests and I think that is appropriate and sufficient in the circumstances.

Orders

I make the following orders: 1. Under s 7(4) Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): 1. appoint two qualified psychiatrists or psychologists (or any combination of such persons) to conduct separate examinations of the defendant and each to furnish a report to the Court on the results of those examinations by a date to be fixed by the list judge when the date for final hearing is allocated; 2. direct the defendant to attend those examinations. 1. Under s 10A of the Act, the defendant is subject to an interim supervision order from 12:01 am on 19 December 2023 upon the expiration of the current extended supervision order made by Justice Hamill on 19 December 2019. 2. Under s 10C(1) of the Act, the interim supervision order is for a period of 28 days. 3. Under s 11 of the Act, direct that the defendant for the period of the interim supervision order comply with the conditions set out in the schedule to these orders. 4. An order that access to the Supreme Court's file in respect of any document should not be granted to a non-party without the leave of a judge of the Court and, if any application 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.

SCHEDULE OF CONDITIONS OF SUPERVISION BRIAN ALAN 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:
where you are or have been;
where you are going;
who you are with or have been with;
what you are doing or have been doing; and
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.
This order is intentionally omitted.
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 surrender any passports held by you to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.
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:
Day-care centres, pre-schools and schools;
Amusement parlours, amusement parks and theme parks;
Cinemas;
Libraries and museums;
Camping grounds and caravan parks;
Children's playgrounds, parks, and areas with play equipment provided for the use of children;
Pools, playing fields and sporting facilities;
Activities intended for the entertainment of children;
Residences where you know that persons aged under 18 years ordinarily reside; and

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:
Possess, purchase or consume alcohol without the prior approval of a DSO;
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:
incidental contact in a public place in the course of the duties of the minor; or
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:
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:
Aliases, electronic identities and log-in names;
Email addresses;
Telephone numbers;
SIM cards;
Applications used (including any social networking service);
Online gaming services;
Instant messaging services;
Service provider account numbers; and
All passwords and log-in details.
You must not use any of the following unless approved by a DSO:
Social networking applications or services (including dating services or applications);
Encrypted messaging applications or services;
Online gaming applications or services;
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:
Applications;
Emails;
Text messages;
Electronic messages;
Call history;
Files or documents;
Photographs, images and videos; or
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. Before any disclosure is made, the defendant must first be so informed and given the opportunity to make the disclosure himself. 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: 16 November 2023

Crimes Act 1900(NSW)s 61J

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (3)

Cited By (1)