State of New South Wales v Brookes

Background

1. To recap very briefly for the convenience of the reader: the defendant is in his late 50s. He grew up in an unprivileged and fractured household in Sydney, out of which many of his siblings were fostered. I accept on balance that he was sexually assaulted as a child. Tragically from the perspective of his subsequent victims, the community as a whole, and indeed the defendant himself, that experience played (at the least) a significant role in the development of deviant sexuality on his part, in the form of paedophilia. That condition is chronic, entrenched, and largely resistant to treatment.
2. In accordance with that condition, in August 1986, when a young man, the defendant lured a small child into a public toilet. I reject his explanation at various times that that was not a sexually motivated act as contrary to the evidence and, with respect, an attempt at manipulation. He received a head sentence of imprisonment for 2 years, with a non-parole period of 12 months.
3. Regrettably, his cellmate during that year was a committed sex offender. They developed a sexual relationship. Whilst in custody, they conspired to abduct three children known to the cellmate and to sexually assault them. After his release in July 1987, the defendant and the cellmate did exactly that. At the time, the defendant was on parole for the abduction offence to do with the public toilet.
4. After conviction, the defendant was sentenced to a head sentence of imprisonment for 11 years. He served that sentence in full, and was released in January 1999.
5. In 2001, he committed an aggravated indecent assault upon a child under the age of 10 years. Again, the victim had been lured to a public toilet. The defendant was sentenced to a head sentence of imprisonment for 3 years 6 months, with a non-parole period of 18 months.
6. The defendant was released in 2004. As a result of his convictions, he was subject to obligations pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW) (the CPORA). He breached the CPORA on a number of occasions, and served short sentences as a result. The last of them seems to have expired in February 2008, by which time the Act had commenced.
7. Quite apart from offences directly or indirectly to do with child sexual assault, the defendant has been convicted of a variety of other offences over the years, notably an offence of arson when he was still a child. They are not irrelevant, but I shall not pause to discuss them further in this judgment.
8. As can be seen from the judgments referred to above, the defendant has been subject to interim detention orders (IDOs) more than once, and was also subject to a continuing detention order (CDO) for a little over 14 months many years ago. He consented to that order being made, so that he could finally complete the well-known custodial therapeutic program for sex offenders in New South Wales, CUBIT. But the bulk of the orders made against the defendant pursuant to the Act have been ESOs: three of them, each of five years' duration.
9. The first was imposed by Grove J in May 2008. Unfortunately, it was breached almost immediately and thereafter repeatedly, with the result that the defendant spent 20 months in custody of the 23 months before a further order was sought by the plaintiff.
10. The second ESO was imposed by Hidden J about a decade ago. The defendant lived in the community, albeit with difficulty and subject to strict supervision.
11. The third was imposed by N Adams J in March 2017. It is that order which expired recently, and which was followed by an ISO, first imposed by Ierace J in March of this year, and subsequently extended by Bellew J.
12. Quite apart from his paedophilia, I accept on balance that the defendant is cognitively impaired as a result of a traumatic brain injury suffered many years ago; schizophrenic, for which condition he is treated by long acting anti-psychotic injections; subject to depression, marked by a number of suicide attempts and suicidal ideation; and, for a man of his age, very physically disabled.
13. Indeed, for the last couple of years, as a result of all of those conditions, he has lived in an aged care facility in a regional centre which is "locked", and from which he departs only in the company of a "line of sight" carer. He now requires care for 20 to 23 hours a day.
14. He has also been taking anti-libidinal medication (ALM) for quite some time. That seems to have worked well in reducing his sex drive, and his proclivity to fantasise sexually about prepubescent children; to be weighed against that is that there is a possibility that it is contra-indicated by a bone condition from which the defendant suffers. Furthermore, I well appreciate that the motivation for sexual offending against adults or children can extend beyond direct, physical sexual gratification.
15. Over the years, the defendant has been open about his attraction to children, as follows.
16. At an early stage, he suggested that he had committed the abduction offences because of anger at what had been done to himself as a child, and a desire to obtain revenge against the community in return.
17. Later, he explained that he regarded his offending as acts of "love", as opposed to sexual gratification on his part. Later again, he has said: "I get aroused when I see children. Let me explain. When I was a child I got abused and I was somewhat aroused when I was being abused and I get the same feeling when I see the same things I went through in them, but if I did that again it would be like murder so I have strategies and I told COSP staff about my triggers."
18. More recently, he has been observed to be staring at children whilst away from the aged care centre, and has sought to strike up a conversation with at least one child. He has also been found to have been watching television shows at the centre that feature child actors.
19. As for the future, it is important, I think, that the defendant has not expressed a contentment with living in the aged care facility for the rest of his life, and continuing with the ALM for the same period. Rather, his expressed desire is to live independently in Sydney, to marry, to have children, and to cease the ALM. Patently, that is concerning; having said that, I think there is force in the submission of his counsel that that should largely be seen as a sad aspiration that is divorced from reality.
20. I finally record in this thumbnail sketch that I received updated reports from an eminent forensic psychologist with special expertise with regard to intellectual disability, and a forensic psychiatrist. Each of them was concerned about the risks that the defendant would pose if he were simply at complete liberty in the community. Each of them appreciated that there may be alternative means of restraint of the conduct of the defendant - including perhaps a guardianship order pursuant to different legislation - but were reticent about its efficacy. The psychologist felt that three years conditional liberty was necessary; the psychiatrist thought that two to three years could be appropriate.

Issues and Submissions

1. Before me, there was no issue about the fact that the mechanistic preconditions for the making of an ESO had been made. Nor was the submission made that, if I was satisfied that such an order should be imposed, I would nevertheless exercise my discretion to refrain from doing so. Nor was any issue raised about any of the conditions ultimately sought by the plaintiff.
2. Two issues were placed in dispute by counsel for the defendant: the first, whether the fulcrum test in section 5B(d) of the Act had been established; and, if so, whether the ESO should be of a duration of 18 months or perhaps two years, as opposed to three.
3. As for the first issue about whether an ESO should be imposed at all, the following points were, with respect, soundly made on behalf of the defendant.
4. First, the defendant was last convicted of a sexual offence against a child over twenty years ago.
5. Secondly, he was last convicted of any offence - either against the Act, or the CPORA, or anything else, well over a decade ago.
6. Thirdly, despite his chequered history of compliance, there have been times in the past wherein the defendant lived independently in the community without full-time monitoring or supervision. And yet, even then, he did not reoffend.
7. Fourthly, the objective reality of the physical, psychiatric, and psychological conditions of the defendant mean that it is most unlikely that he will ever leave the aged care centre.
8. Fifthly, even if he tried to, his carers would promptly seek alternative orders that would, in all likelihood, restrain him.
9. Sixthly, even if that failed, the defendant would almost certainly be incapable of living independently in the community, and would promptly be returned to some form of controlled living environment.
10. Seventhly and finally, this man has been subject to significant restrictions on his liberty over a period of 15 years. To repeat: he has not committed a child sexual assault offence for over two decades. There must come a point, it was submitted, where the purposes of the Act are no longer being fulfilled, and the assertedly circular argument of the plaintiff - that he has not offended because of conditional liberty, therefore conditional liberty must continue in order to stop him from offending - loses its force.
11. If the above submissions were rejected, counsel for the defendant submitted that an order of no more than two years would be appropriate, in light of this man's declining physical health; the rehabilitative effect of him feeling that the application of the regime is coming to an end; and the merits of the matter in any event.

Determination

1. Turning to my determination, my approach is broadly consistent with that of the plaintiff, as follows.
2. First, it is true that this man has not offended for years, and not offended sexually against children for two decades. And I appreciate the degree of inherent circularity in refusing to discontinue conditional liberty when a person has not offended, on the basis that conditional liberty is necessary in order to stop them from doing so.
3. Even so, I believe that the defendant will be sexually attracted to children for the rest of his life. I also believe that, the strict regime underpinned by coercion and potential incarceration to which he has been subject of for many years has played a significant role, at the least, in stopping him acting upon that attraction.
4. Secondly, whilst as a matter of practicality the chances of the defendant leaving the aged care centre unfettered, completely at liberty, unmedicated, and thereby being in a position to sexually assault children are perhaps small, weighed against that must be the catastrophic consequences of such offending, of which the distorted and damaged life of the defendant himself, many decades after he himself was sexually assaulted, is a very good example.
5. Thirdly, at the least I suspect that the defendant retains an ignorance of, or a distorted refusal to accept, the profound wrongfulness of having sexual contact with a person under the age of consent. It is true that his proclivity to offend is chemically reduced, but that form of constraint is a different matter from comprehension and acceptance.
6. Fourthly, the making of a guardianship order would be dependent upon the defendant being found to be incapacitated. I am not convinced that he would be so found, in the sense understood by the relevant legislation. I am also unconvinced that such a process could be completed, let alone enforced, promptly.
7. Fifthly, even a very severely physically disabled person is capable of committing a child sexual assault if determined to do so.
8. Sixthly and finally, I was informed by counsel for the plaintiff that the conditions ultimately proposed are themselves significantly less onerous than those to which the defendant has previously been subject. That is not a complete answer to the submissions for the defendant. Even so, I do think that it ameliorates the rigour of the defendant being subject to yet another period of conditional liberty.
9. In all the circumstances, I believe that the central test has been made out, with the result that I will impose an ESO upon the defendant. Nor is there any discretionary basis to refuse to do so.
10. Having said that, for all of the reasons put forward by counsel for the defendant, and accepting the submission of counsel for the plaintiff that the length of any such order should not be logistically unworkable, I think that the orders should not extend for more than two years.
11. Finally, I have considered all of the consented to conditions myself, and am satisfied that they are appropriate.

Orders 1. The defendant is subject to an extended supervision order for a period of two years from 10 June 2022; and 2. For the period of the extended supervision order, the defendant must comply with the conditions annexed to this judgment. State of NSW v Brookes Proposed Conditions (135772, pdf) ******** 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: 07 June 2022