State of New South Wales v Brooker

Judgment 1Pursuant to a summons filed on 5 June 2014, the plaintiff seeks an extended supervision order (an order) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) against the defendant. Counsel for the defendant, a barrister very experienced in the criminal law, expressly concedes that the statutory preconditions for the making of an order, including the fact that one can be satisfied that "the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision" (s 5B(2) of the Act), have been made out on the evidence tendered before me. However, he rejects the proposition of the plaintiff that the order should be made for five years from today. In contrast, he submits that the evidence would lead me to impose an order that expires no later than three years from today. 2In short, there are two issues calling from my determination. The first is whether I should adopt the joint position of the parties with regard to the making of an order, on the basis that I myself am satisfied that the necessary matters in the Act have been established. The second is, if so, the length of any such order. 3The matter was heard on 29 September 2014. Counsel for the plaintiff explained that the interim supervision order to which the defendant was then subject would expire at midnight on 1 October 2014. In light of the exigencies arising from that fact, and the joint position of the parties with regard to the question of the making of an order, my analysis of that first question will be somewhat more concise than if there had been a full-blown dispute about it. Summary of evidence 4The evidence in the hearing was placed before me by way of a number of affidavits and reports, many of them bearing voluminous annexures. The import of the evidence is as follows. 5The defendant was born on 5 August 1943 and is therefore 71 years of age. The most noteworthy aspect of his disrupted and unhappy life is that he has committed sexual offences against children between the years of 1962 and 2011 inclusive; that is, over a span of almost 50 years. 6Raised in the Sydney suburb of Glebe in difficult circumstances, the defendant was sexually assaulted by two men when he was aged around 12 years old. At the age of 16, in 1960, he was found to be living rough in Nyngan in the west of New South Wales, and was declared uncontrollable. At the age of 18, in January 1962, he sexually assaulted a young paperboy and was sentenced to 3 months hard labour. 7Thereafter the defendant committed many criminal offences of various kinds, with the result that he has spent much of his life either in gaol or subject to conditional liberty. He developed a serious dependence on alcohol from an early age, and at one stage was reduced to drinking methylated spirits. He has been homeless on many occasions. Although not unintelligent, the defendant has only spasmodically applied himself to work. 8His proclivity for sexually assaulting children is well-established. As I have said, it first manifested itself in January 1962 when he was aged 18. In July 1989, whilst aged 45 and in Queensland, he had sex with a girl who was aged 15 years; the claim of the defendant is that she was only a few days short of her 16th birthday. As a result, he was ordered to undertake 100 hours of community service. 9In October 1989, the defendant was aged 46. Whilst staying with friends at a home in Queensland, he entered a bedroom of four children whilst they were sleeping. He fondled the breasts of two young girls, and placed his penis in the mouth of a 12-year-old boy. Thereafter he pulled the pants of the boy down and attempted to have sexual intercourse with him. At the time the defendant was grossly intoxicated. He received a remarkably lenient sentence of imprisonment for six months with three years of probation, and an order that he seek help with regard to his problem with alcohol. 10In November 1994, when aged 51 years, the defendant committed the offence that is said to found the jurisdiction of this Court to make the order sought (the index offence). The defendant was drinking in a hotel at which a woman arrived with her four-year-old daughter. The defendant engaged the mother in conversation, and later that evening travelled to her home with her and her male friend. The mother and her friend left the home to obtain more beer, thereby leaving the defendant alone in the premises with the four-year-old. He took the opportunity to enter the child's bedroom, and digitally penetrated her genitals with brutal force. The result of that assault was that the child bled profusely and was hospitalised for five days. The child immediately complained on her mother's return. The defendant was sentenced to imprisonment by his Honour Judge Viney QC in the District Court of New South Wales at Penrith. Pursuant to a Crown appeal to the Court of Criminal Appeal, the defendant's sentence was significantly increased. The result was a head sentence of imprisonment for seven years with a non-parole period of four years and six months, to date from 17 November 1994. 11In his remarks on sentence Judge Viney QC described the offence as "very serious" and a "dreadful attack" that would no doubt cause the victim ongoing psychological problems. His Honour emphasised the importance of affording the defendant the chance to work towards rehabilitation while on parole. On appeal, Gleeson CJ (with whom Ireland J agreed) accepted the Crown submission that, in light of the very serious objective features of the case and the criminal history of the defendant, this was "one of the more serious cases of the kind dealt with" pursuant to the relevant section of the Crimes Act 1900 (NSW). The Chief Justice stated: ... whilst it is true that this appears to have been an impulsive act on the part of the [defendant] while substantially affected by alcohol, nevertheless the evidence shows that he took the occasion to commit the offence whilst the victim's mother and the only other adult person there were absent from the home. He had to go up to the child's bedroom and evidently remove her nappy. 12The defendant was released to parole on 16 May 1999. He promptly breached parole by absconding, and travelled to Western Australia. It is true that for many years he did not come to the notice of the criminal justice system; that came to an end when he was accused of touching the breasts of a girl under 13 years of age in 2011. Eventually sentenced for that offence to time served, he was extradited to New South Wales to serve the balance of parole owing as a result of his breach many years before. He was released to parole on 14 March 2014, but was promptly breached again because he failed to inform police that he had obtained a mobile phone, as required by the Child Protection (Offenders Registration) Act 2000 (NSW). He nevertheless remained in the community until his head sentence fully expired on 2 July 2014. By that time he was subject to an interim supervision order that had been imposed by this Court on 24 June 2014. 13In short, over 49 years the defendant has been convicted of a large number of sexual offences against a number of children: in 1962, against a young boy; in July 1989 against a 15-year-old girl; in October 1989 against a young boy and two young girls; and in 2011, against a young girl in Western Australia. There have also been a number of unproven allegations against him; pursuant to s 9(3)(i) of the Act, I have had regard to them, but give them less weight than matters that have either been admitted by way of a plea of guilty or proven beyond reasonable doubt. 14Turning to other relevant matters, the defendant is now an elderly man in very poor health. He suffers from a serious problem with regard to his lungs (the condition is exacerbated by his inability to give up smoking); his heart and circulation (he suffers from angina, has experienced two heart attacks, has high cholesterol, and is at elevated risk of a stroke); and his liver (he has cirrhosis, I infer caused by his abuse of alcohol, and also hepatitis B). There is also a suggestion that the defendant suffers from a cognitive deficit, caused by alcohol-induced brain damage and his cardiovascular difficulties. 15Since his release, the defendant has resided at a halfway house run by the Department of Corrective Services next to Long Bay Gaol. He has generally been compliant with his strict parole conditions and the conditions of the interim order. In particular there has been no hint of him drinking alcohol detected by those who supervise him. Having said that, his response to supervision has not been entirely satisfactory: there has been a flavour of him dissembling and hiding his activities from his supervisors. In particular, the suggestion is that he has secretly accessed a website called "Cupid Filipino" via Facebook. The plaintiff alleges, founded upon an interrogation of a phone to which he had access, that the defendant sent an adult woman whom he had met through that website the following message: "Would love to see you in your schoolies outfit you sesy [sic] girl". 16The risk that the defendant presents to the community by way of reoffending has been assessed by a number of persons. Mr Samuel Ardasinski, a psychologist within the prison system, applied the well-known tools of risk assessment, Static-99R and Stable-2007. In summary, he expressed the opinion that the defendant presents a high risk of reoffending compared to other male sexual offenders. Mr Ardasinski observed that although the offender was "not expansive or spontaneous in responding" to questions concerning his offences, he became "progressively more relaxed and open" as the interview progressed, and was generally compliant. 17Dr Jeremy O'Dea, a psychiatrist who specialises in the treatment of sex offenders, diagnosed the defendant with an antisocial personality disorder with significant psychopathic traits, and a substance use disorder with regard to alcohol. He also considered that there was a "specific, if not exclusive, paedophilic focus" to the defendant's sexuality. Dr O'Dea has expressed the view that it is imperative that the defendant remain abstinent from alcohol; whether he does or not, Dr O'Dea considers that there is a significantly high risk of him engaging in further sex offending behaviour in the community. Because Dr O'Dea regarded that risk as chronic and extending over many years into the future, he expressed the view that any order should be of at least five years' duration. Dr O'Dea stated that the defendant was fully co-operative throughout the assessment interview, but was "somewhat superficial regarding and dismissive of his offending behaviour, general history, and predicament". 18Dr Ellis, another forensic psychiatrist, diagnosed the defendant with paedophilic disorder, personality disorder, and substance abuse disorder with regard to alcohol, and took the view that the defendant presents a high risk of reoffending. Still and all, Dr Ellis would be content with an order of three years' duration. He observed that the account given by the defendant of his sexual offences was "impoverished in detail", and that the defendant questioned the benefit or necessity of the proposed conditions. 19While in custody, the defendant participated in the high intensity CUBIT program for sexual offenders between 10 December 2012 and 28 November 2013, although his participation in therapeutic sessions was hampered by the need for medical treatment. The CUBIT Treatment Report of 17 December 2013 suggests that although he participated in this program willingly, and developed an "intellectual" understanding of the program concepts, he had some difficulty engaging with the factors that contributed to and the consequences that have flowed from his offending. It appears that since being released to parole the defendant has participated in the community-based maintenance program administered by Forensic Psychology Services. 20As for the future, the defendant seeks to live independently in his own apartment in due course and enjoy the remainder of his life. He gains pleasure from fishing and also has an interest in Buddhism. The evidence before me establishes that the defendant is very isolated in the community, and I am satisfied that that state of affairs will continue into the indefinite future. Should an order be made? (i) The test to be applied 21Turning to the statutory preconditions, there is no doubt that the index offence committed in 1994 falls within the definition of a "serious sex offence" contained in s 5(1) of the Act. Nor can there be any doubt that the defendant falls within the definition of a "sex offender" contained in s 4 of the Act. 22The statutory formulation of the test for risk that I must apply is as follows: 5B High risk sex offender (1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender. (2) An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence. 23As for the question of how one should approach that test, I adhere to the analysis that I undertook in R v Steadman [2013] NSWSC 170; namely: [65] I have approached the requirement of satisfaction "to a high degree of probability" as constituting an elevated standard of proof that falls between the criminal standard and the civil standard, in accordance with Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; (2007) 178 A Crim R 133. [66] As for what is involved in the concept of "unacceptable risk of committing a serious sex offence" I respectfully adopt what was said by Davies J in State of New South Wales v Richardson (No. 2) [2011] NSWSC 276 at [90]: "Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. That is also because s 17(3) [of the Crimes (Serious Sex Offenders) Act 2006, the predecessor of s5B of the Act] provides for the further assessment that if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk a supervision order will not be adequate to meet the risk." 24As for the factors contained in s 9(3) of the Act, and which I am required to take into account, I shall not repeat them seriatim. I have reflected upon all of them, and I consider that they are adequately referred to in this judgment. (ii) Application of the test to the evidence 25Regrettably, the defendant has had a sexual attraction to children over many decades. Furthermore, he has been prepared to act upon it. Although it is true that in the past he has identified chiefly as homosexual, it is clear that he has obtained gratification from sexually assaulting both young boys and young girls. And although he has shown himself to be open to psychological treatment in the past, I am satisfied that he has only a very limited insight into the profoundly antisocial nature of his crimes and the lasting psychological injury that they are liable to inflict upon his victims. 26His age and state of health have not combined to reduce his libido markedly: the offence of 2011, when he was aged 68 years, supports that proposition. His response to supervision over the past several months, whilst not particularly poor, has been lacking in candour and willing compliance. In particular, his access to Facebook, contrary to the express conditions of his conditional liberty, is a cause for real concern. That is because it could well permit him either to contact a child directly over the Internet, or to inveigle himself into the trust of a vulnerable adult who could unwittingly provide him with access to a child, with disastrous results. 27To state things bluntly, if the defendant were living in the community subject to no form of conditional liberty and wholly unsupervised, I consider that there is a very real risk that he could offend again, just as he has done over the preceding five decades. 28In short, quite apart from the detailed submissions of the plaintiff and the express concession on the part of the defendant, I am satisfied that the test contained in s 5B(2) of the Act has been made out. I am satisfied that it is highly probable that, if not subject to supervision, the defendant poses a risk of committing a serious sexual offence against a child, and I consider that risk an unacceptable one. It follows that I shall make an extended supervision order with regard to the defendant, and it will date from today. Length of order? 29I turn to the resolution of the real dispute before me. Counsel for the plaintiff submitted that there were five reasons why such an order of five years' duration should be made. 30First, the defendant has expressed a reluctance to take anti-libidinal medication. That is despite the fact that at least one psychiatrist considered that that would be the best treatment for the defendant in the future. Whilst his refusal to do so is understandable in light of his pre-existing medical conditions, and all of the other medication that he is currently taking, nevertheless that refusal could mean that his risk of reoffending in the community is significantly higher than it would be otherwise. Whatever else may be disputed by the defendant, it seems to be accepted that he has used Facebook to access a site directed towards romantic or sexual liaison. Even now, counsel submitted, that suggests that the libido of the defendant remains high. 31Secondly, in his report, Dr O'Dea firmly expressed the opinion that, due to the chronic nature of the sexual attraction of the defendant to children, any order should be for at least five years. 32Thirdly, it is true that the medical conditions of the defendant will not make his compliance with the terms of an order for five years any easier. But nor will they present significant difficulty. They certainly should not stand in the way of an order that extends to five years. 33Fourthly, if it be the case that the defendant complies with any order, one should expect it, as a matter of practicality and discretionary adjustment, to become less onerous over time. Indeed, it could be that, towards the end of five years, the conditions with which the defendant must comply will be quite lax. 34Fifthly, the primary object of the Act is the protection of the community: s 3(1). Whilst rehabilitation is also an object (s 3(2)), if it be a question of balancing the two, the former must prevail. In this case, the protection of the community calls for an order that extends to five years. 35Finally, counsel for the plaintiff accepted that, if the plaintiff wishes to do so during the currency of an order that extends for three years, it can apply for the period of the order to be extended to five years (pursuant to s 13 of the Act), or for a further order to commence at the end of that first order (pursuant to s 5I(2)(b) and s 10(3) of the Act). In that sense, he accepted that my determination of the length of the order is not a conclusive one with regard to the future. Nevertheless, he submitted that, if it be the case that I am satisfied that an order of five years duration is appropriate on the evidence before me, simply because there is a facility whereby in the future the plaintiff could seek an extended or further order should not stand in the way of me making the order for which the plaintiff contends. 36The defendant submitted that, in light of the case law on this issue, the following principles must be taken into account in determining the appropriate length of an order. 37First, the terms of the order will significantly erode the liberty of the defendant. Secondly, three years is by any measure a significant period of time to be subject to an order that curtails one's liberty. Thirdly, a lengthy order may frustrate the defendant's prospects of rehabilitation by giving him little to work towards. That is particularly so where the defendant is compliant with treatment and the plaintiff is able to seek a further order at the end of the period of supervision in any event. He submitted that a shorter order, and the chance of unconditional liberty at its conclusion, may provide some incentive for compliance, particularly given the age and medical condition of the defendant. 38Counsel for the defendant submitted that the overall response of the defendant to the onerous conditions of his supervision since his release has been satisfactory. It was pointed out that the defendant did notify supervision officers from the Department of Corrective Services about the purchase of the mobile phone, and that the failure to notify police was better characterised as neglect than deceit. Furthermore, he submitted that there was no suggestion that in accessing the online dating agency the defendant was attempting to communicate with children, access pornographic material, or do anything otherwise inappropriate. He submitted that it could have been the result of nothing more sinister than loneliness. 39Finally, in response to the submissions of the plaintiff, counsel for the defendant noted that the reluctance of the defendant to consider taking anti-libidinal medication must be understood in the context of his medical condition, and the fact that it has not yet been determined whether it is safe to take such medication alongside the other medical treatment he is receiving. Although counsel accepted that the age and medical condition of the defendant will not prevent him from complying with an order, he submitted that the additional hardship that they will generate should be considered in determining the period of the order. 40Counsel for the defendant submitted that it is completely uncertain whether the conditions of an order will become less onerous over time, and accordingly that factor should not be given much weight in determining the period of the order. 41To conclude my overview of the submissions made by the parties on this point, each counsel helpfully invited my attention to other judgments of this Court at first instance in which a controversy between the parties as to the duration of an order was resolved one way or another. But in discussion between the Bench and the Bar table, it was accepted that those other decisions are nothing more than a useful guide; each case must turn on its own facts. Determination 42Over the years, the defendant has not responded at all well to conditional liberty. 43As I have recounted, in 1999 whilst on parole for an extremely serious sexual offence against a child, he simply absconded and travelled far away from New South Wales. He was not brought to justice for many years. 44On his release to parole this year things have not proceeded smoothly. Indeed, as I have said, he was breached for failing to notify police that he had purchased a mobile phone, although not returned to custody. There is a distinct flavour of him being deceptive with his supervisors whilst he has been on conditional liberty this year. 45Whether or not it be the case that he has indeed sought to see an image of a woman dressed as a schoolgirl and thereby to obtain sexual gratification (a question that I am unable to determine on the evidence before me), his flagrant determination to use Facebook contrary to an explicit order gives rise to a real concern in my mind. 46As I have said, I am not satisfied that the defendant has anything other than a superficial insight into the damage that he has done over the past many decades. Nor, on reflection, do I have confidence that this man will comply faithfully with the conditions of the form of conditional liberty that I will shortly impose. More broadly, he has been prepared to break the criminal law repeatedly, not only generally, but also in order to satisfy his sexual attraction to children. 47I accept that even the lesser period for which the defendant contends will constitute a serious curtailment of his liberty for a period of many months. Nevertheless, having reflected on the question, seeking to balance the rights and interests of both parties, and keeping in mind the primacy of the protection of the community, I have come to the view that the defendant should be subject to an extended supervision order for a period of four years. Orders 48I make the following orders: (1)Pursuant to s 5C of the Crimes (High Risk Offenders) Act 2007, the defendant is subject to an extended supervision order that commences today, 1 October 2014, and expires after four years. (2)The conditions of the extended supervision order are those contained in the schedule to the summons filed by the plaintiff, and annexed to this judgment.