State of New South Wales v Brooks

Supreme Court of NSW|2023-07-18|Before: Ierace J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2023/133090

JUDGMENT

HIS HONOUR: By an amended summons filed in Court on 19 July 2023, the State of New South Wales (the plaintiff) commenced proceedings against the defendant, seeking an extended supervision order (ESO) for a period of 2 years, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The Act provides that a preliminary application must be heard and that if the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, then the application must be dismissed: s 7(5).
The preliminary hearing occurred before me on 19 July 2023. I have concluded that the matters alleged would justify an ESO, for the reasons explained below.

The defendant's criminal history

The defendant's first criminal offence was an assault with an act of indecency, committed in 2009, a week after his nineteenth birthday. The police facts are to the effect that he approached a woman at night from behind while she was exiting through a ticket gate at Central Railway Station, reached under her dress and tried to touch her genitalia. The attack caused the woman to fall backwards. The defendant ran off and was arrested shortly afterwards. He was heavily intoxicated and unfit to be interviewed. He was convicted and received a bond to be of good behaviour for a period of 12 months (the Central railway station offence).
The defendant's second criminal offence was also an assault with an act of indecency, committed in July 2011, when he was aged 20. According to the police facts, he approached a 26 year old woman at night who had alighted from a train at Macarthur and was walking to her car in a nearby car park. He ran after her and grabbed her from behind, wrapping his right arm around her body and pinning her right arm by her side, bent her forward and put his left hand under her skirt and attempted to grab her on her vagina. The victim was wearing pantyhose, so the attempt was unsuccessful. The woman screamed at him to get off her, and he ran off. The defendant was arrested about four weeks later. He initially denied the offence, but after a discussion with his mother and stepfather, admitted the offence to police, but declined to be interviewed (the Macarthur offence).
A report prepared at the time by Justice Health noted the defendant denied any interest in fetishes, fantasies related to paedophilia or sadism or exhibitionism. The author of the report stated: "[The defendant] said that he was concerned about both his behaviour and thinking regarding sex and wanted to seek professional help to assist him". The defendant's parents told the author that they were prepared to help the defendant obtain appropriate assistance. The author concluded: "[The defendant] does not present with either symptoms of a psychosis or a disturbance of his mood. He presents with what appears to be a paraphilia and would benefit from specialist referral. He remains at some risk to himself and [others]. He has recently expressed suicidal intent and would benefit from support from a community mental health service."
A pre-sentence report, prepared by a psychologist with Corrective Services NSW, noted that at the time of the defendant's first offence he was intoxicated and not aggressive, whereas "the current offence demonstrates some escalation in his offending, in this regard, as he was not intoxicated and he was more aggressive". The psychologist administered the STATIC-99R assessment tool which yielded a score that placed the defendant in the "medium-high" risk category relative to other male sex offenders of sexual recidivism. The psychologist concluded that he had a moderate risk level of sexual recidivism.
A pre-sentence report by the Probation and Parole Service noted: "[The defendant] stated that he agreed with the Police facts. He failed to provide any rational reason for his offending behaviour and stated that he had commenced attending counselling session with a clinical psychologist in an attempt to understand his action and behaviour. As [the defendant] currently has minimal understanding in regards his motivation for his offending behaviour, his attitude to the offence was difficult to assess. [The defendant] demonstrated limited empathy towards the victim but did indicate that his offending behaviour had impacted upon his family."
On 26 October 2011, the defendant was convicted and received a bond to be of good behaviour for a period of 2 years, conditional upon him accepting the supervision and guidance of the Probation and Parole Service and complying with their reasonable directions.
On 19 November 2011, that is, four months after his second offence and a fortnight after he was sentenced for it, the defendant again committed a like offence against a woman who was attacked after exiting Caringbah railway station, shortly after midnight (the Caringbah offence). As she walked along President Avenue, the victim realised that she was being followed. The agreed facts state as follows: "[The defendant] then reached forward and grabbed the victim from behind, placing his left hand firmly over the victim's mouth. [The defendant] then placed his right hand firmly on the victims clothing, grabbing the victim's vagina on the outside of her clothes. The victim tried releasing [the defendant's] grip from her mouth and kicked her legs in an attempt to remove [the defendant's] hand from holding her vagina. [The defendant] held the victim tightly and pushed the victim to the ground, forcing the victim to lie on her back. As the victim was forced onto the ground, [the defendant] lay vertically over the victim and placed his head between the victim's legs, firmly pushing his mouth onto the victim's vagina, on the outside of her pants. At this time, the victim attempted to escape and scream for assistance saying 'get off me, help me' but [the defendant] restrained the victim by holding her hips. [The defendant's] face remained firmly between the victim's legs, sucking on the clothing with his mouth, in the area of her vagina. [The defendant] then released his grip and ran in the direction of a unit complex on Willarong Road, Caringbah. The whole incident happened over a period of about two minutes."
The defendant was not identified as the perpetrator of this offence (the Caringbah offence) until 2014, when a DNA match was made with a stain in the crotch area of the victim's pants.
In November 2012, the defendant ceased reporting to the Probation and Parole Service or making contact with it, thus breaching the two-year good behaviour bond that was imposed for the Macarthur offence. In a breach report, dated 2 January 2013, the author stated: "Nevertheless, [the defendant's] non-attendance has been due predominately to his employment commitments, office hours and limited internal programs suitable to addressing his criminogenic needs. Given [the defendant's] current risk level is medium high as a direct result of his offences, this Service is unable to exercise the proviso on the order, due to departmental policy. It would seem that currently the supervision component of his order is solely for the purpose of monitoring his engagement with interventions and confirmation of no reoffence. In line with case management strategies, [the defendant] was referred to numerous forensic psychologists to address his offending from the imposition of the order. However, given his work and study commitments, acquiring an out of hours forensic psychologist was arduous, although in spite of this, he commenced treatment on 20 August 2012. Consequently, to his credit [the defendant] has actively engaged with therapy sessions fortnightly since this time: Telephone contact with the treating psychologist on 5 December 2012, indicated [the defendant] has made steady progress and he intends to continue treatment with [the defendant] for an extended period."
The author concluded that, in view of the defendant's participation in therapy "for an extended period as directed", ongoing supervision "would appear superfluous". Accordingly, she recommended the deletion of the supervision component of the good behaviour bond.
On 2 June 2013, the defendant committed the offences of driving with a mid-range PCA and taking and driving a conveyance without the consent of the owner. A pre-sentence report, prepared by a Community Corrections officer, noted that the defendant had completed a traffic offender program and appeared to demonstrate insight into the seriousness of his offending. On 11 September 2013, on the first offence, he received a suspended sentence of imprisonment pursuant to (since repealed) s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for 5 months and a 5 month disqualification from driving, and on the second, a suspended sentence pursuant to s 12 of 6 months' imprisonment, with a good behaviour bond for that period.

The index offence

On 28 December 2013, the defendant was arrested and charged with a sexual assault committed on the same date (the index offence). The complainant was a 23 year old woman who was attacked at night while walking along Cleveland Street Surry Hills, near Prince Alfred Park. The defendant was arraigned on a count of recklessly inflicting actual bodily harm with the intention of having sexual intercourse, and, in the alternative, detaining the victim without her consent with the intention of committing a serious indictable offence, namely, indecent assault and at that time, occasioning actual bodily harm. He entered a plea of guilty to the alternative count, which was not accepted by the Crown as a full discharge of the indictment. The trial proceeded in respect to the first count, for which he was convicted.
Agreed facts on sentence as to the nature of the offence were to the effect that the defendant approached and grabbed the victim from behind, placed a hand over her mouth and pushed her into bushes in the park and onto her back: "The complainant said, 'Get the fuck off me,' and started screaming. [The defendant] told her to 'shut the fuck up' repeatedly and placed his hand over the complainant's mouth and nose, causing the complainant to struggle for breath. At the same time [the defendant] was trying to undo his belt buckle. He attempted to undo it at least three times whilst holding his hand over the complainant's mouth and nose. [The defendant] was on top of the complainant straddling her and she could not get him off. [The defendant] also grabbed at the complainant's shorts and the top of her shirt. The complainant kept kicking at [the defendant] and screaming, thrashing her head from side to side to get her mouth free. When the complainant was able to she started shrieking, 'Help' and 'get off me.' The complainant clawed at [the defendant's] throat. [The defendant] put his hands around the complainant's throat and was squeezing her neck. At this point the complainant believed she was going to be killed. The complainant bit [the defendant's] hand and attempted to kick him with her knees. The complainant managed to roll herself onto her stomach and began kicking at [the defendant]. [The defendant] attempted to roll the complainant back onto her back."
According to the agreed facts, two men and a woman who were walking nearby heard the complainant scream. As they approached, the defendant got off the complainant and ran towards Central railway station. The two men followed him until they saw police stop him. He was taken to a nearby police station. The agreed facts state: "After having a time out due to [the defendant's] intoxication [the defendant] declined to participate in an ERISP".
On 12 March 2014, following his arrest and while awaiting the resolution of those criminal proceedings, the defendant was arrested and charged with the indecent assault that was committed at Caringbah on 19 November 2011, to which he entered a plea of guilty.
On 5 June 2015, the defendant was sentenced by Huggett DCJ for the index offence and the Caringbah offence, as well as for the breach which that offence occasioned of the bond imposed for the second indecency offence. The two bonds that he received for the driving offences were called up, since they were breached by the commission of the index offence.
The defendant tendered a forensic psychologist's report in the sentence proceedings, prepared by Raymond Hudd, dated 28 February 2015. Mr Hudd stated that he had seen the defendant on 13 occasions between 20 August 2012 and 20 May 2013, on which date the defendant terminated the arrangement "by telling me that he felt fine and did not need further counselling". Mr Hudd's diagnosis of the defendant's mental conditions and proposals for treatment were as follows: "Based on the history provided by [the defendant], his presentation, and my observations of him, it is my opinion that [his] symptoms are consistent with the multi morbidity of Chronic Complex Posttraumatic Stress Disorder (PTSD) (DSM V 309.18), Borderline Personality Disorder (BPD) (DSM V 301.83) and Adult Autism Spectrum Disorder (Asperger's Syndrome) (ASD). This opinion was reached using the Diagnostic and Statistical Manual for Mental Disorders (5th edition) (DSM V), which is a reference in common use with mental health professionals internationally. My opinion was further influenced by my clinical observations of him, the results of the psychometric testing administered and my experience of assessing and treating several hundred individuals suffering from PTSD and BPD and several dozen individuals suffering from ASD over the past 25 years in addition to the references below. [The defendant] satisfies all criteria laid down by the DSM V for these disorders. … [The defendant] requires ongoing psychological counselling to assist him to resolve the severity of the symptoms that are characteristic of PTSD, BPD …. His therapy should include confronting his traumas with breathing and relaxation techniques to help him deal with his symptoms so far as possible with a minimal need of medication, however psychotropic medication should be considered and recommended if indicated. [The defendant] also requires changing his thinking patterns and adjusting changes in his lifestyle but at the same time being consistent with the routines he recognises and is comfortable with. Since I have seen [the defendant] many times, I have developed strategies to address his conditions which includes but is not limited to using a cognitive and behavioural based therapies especially Cognitive Behavioural Therapy (CBT) and Mindfulness as an aid to focus on his motivation to change, challenge his negative concepts, developing skills for constructive activities, improving problem solving skills, developing better interpersonal skills and developing strategies to help him better understand how both of his conditions interact together. Group therapy will also be considered if and when it is indicated but at the same time being mindful that this is sometimes not necessarily the best form of intervention for some individuals however all therapeutic approaches should always remaining consistent with the treatment plan where possible. In order to bring about some normality to his life, other therapeutic interventions and coping strategies would also be introduced where required and indicated. Most importantly, future treatment should focus on the management of his offending and his possible reoffending behaviour his alcohol use and supportive counselling. When I saw him at Long Bay [Gaol] in relation to this report [he] told me that he wanted to re-establish his counselling sessions with me at the conclusion of these proceedings I have agreed to continue to accept him as a client and am prepared to act as his supervising practitioner for the period determined by Court and to inform Court of any non-compliance."
In an addendum to his report, dated 21 May 2015, Mr Hudd stated: "In terms of his offending it would appear that the world to [the defendant] is a confusing place and he has issues with being controlled, constantly reliving his traumas and appropriately expressing his feelings. Appropriate counselling that focuses on his traumas and his use of drugs and alcohol to control their impact on him would in my opinion greatly reduce if not stop his offending behaviours which he has said that he disliked doing. The Issue of his ASD should be addressed and by doing so he will learn to understand it and control its impact."
The defendant was sentenced by Huggett DCJ for the index offence to imprisonment for 8 years and 6 months commencing on 29 January 2015 and concluding on 28 July 2023, with a non-parole period of 5 years, which expired on 28 January 2020.
For the Caringbah offence, the defendant received a sentence of 3 years and 4 months imprisonment, commencing on 29 July 2014 and concluding on 28 November 2017, with a non-parole period of 2 years, concluding on 28 July 2016. His release was to be subject to supervision, with a detailed recommendation for therapy whilst he was in custody and on his release in the community.
For the breach of the bond imposed for the defendant's second indecent assault, Huggett DCJ imposed a sentence of imprisonment for 1 year and 3 months, to commence on 29 January 2014 and conclude on 28 April 2015. The two s 12 bonds for the driving offences were revoked and her Honour imposed sentences of imprisonment of 6 months and 5 months respectively, to be served concurrently from 29 December 2013.
The overall effective sentence of imprisonment that was imposed by Huggett DCJ was for a period of 9 years and 7 months, commencing on 29 December 2013 and expiring on 28 July 2023, with a non-parole period of 6 years and 1 month, which expired on 28 January 2020.
Huggett DCJ found that, while in isolation the Macarthur offence, the Caringbah offence and the index offence might appear "impulsive, spontaneous and unplanned", their context established that they were "deliberate and purposive". While the jury's verdict for the index offence established that the defendant intended to engage in sexual intercourse with the victim, it was not possible to conclude what form that was intended to take.
The defendant did not give evidence in the sentence hearing. In her remarks on sentence, Huggett DCJ reviewed Mr Hudd's reports and evidence given by the defendant's sister and mother, which included an elaboration of the difficulties in the defendant's relationships with his parents, fellow school students and his suicide attempt. The defendant's mother stated that he changed schools in year 10 in response to the bullying and that he had an excellent work ethic in his post-school years.
Her Honour concluded that the defendant "has not been rehabilitated to date" and gave little weight to his stated intention to resume counselling with Mr Hudd upon his release, since he had ceased counselling in May 2013, stating he no longer needed that assistance. His prior offending warranted greater emphasis on personal deterrence and retribution.
Huggett DCJ found that the only evidence of remorse was evidence of his mother and sister that in their communications he had expressed contrition for his offending. Her Honour concluded that he was not genuinely contrite. As to his prospects of rehabilitation, Huggett DCJ stated: "As things currently stand there is a significant risk of [the defendant] reoffending. As regards his prospects of rehabilitation which if successful would, of course, serve to reduce his risk of reoffending. As I have stated earlier [the defendant] has expressed to others a willingness to participate in programs about which I have indicated a degree of scepticism. Perhaps it is genuine given he is now in custody. The reality is, however, that participation per se would be futile unless [the defendant] is prepared to engage in treatment in a meaningful way and with a willingness to acknowledge and deal with the motivators around his offending behaviour. Anything less than that would be perfunctory and ineffective."
Huggett DCJ found that the defendant's youth and immaturity at the time of the offences were facts favourable to his prospects of rehabilitation. Her Honour noted that the defendant had sought protective custody for fear of being assaulted and stated that she took into account that his mental disorders and condition would make the experience of prison more difficult for him. Her Honour found that these factors warranted a finding of special circumstances, so that the statutory ratio of the non-parole period to the total sentence would be varied. Her Honour recommended that, while in custody, the defendant be placed in the care of a psychiatrist and/or a psychologist with Justice Health, that he be included in a program suitable for his offending behaviour and that he participate in alcohol and drug courses. Further, that upon his release on parole, he be subject to: "… intensive supervision for as long as possible with particular regard to assisting him in respect of any treatment he may need for any underlying psychological and/or psychiatric issues he may have".
The defendant was refused parole by the State Parole Authority (the SPA) on 28 November 2019. In its report dated 17 December 2019, the SPA explained that its decision was due to the defendant's unsatisfactory progress in the prison system. Although his classification was C2 (minimum security), he had incurred a number of internal misconducts, predominantly drug-related, but also for assaults and failing to comply with the correctional centre routine. He was unwilling to discuss his offending behaviour with Community Corrections. The SPA continued: "… [The defendant] presented as having some insight into the impact of his offending on the victim, stating that 'he could not imagine how they may feel', though did not go into any further detail. The psychologist's report did note that [the defendant] has social difficulties that may hinder his disposition to discuss the topic. He claimed that he may be more willing to discuss the impact upon the victim in a treatment setting. [The defendant's] treating psychologist has outlined that [the defendant] suffers from Post-Traumatic Stress Disorder, Borderline Personality Disorder and Autism Spectrum Disorder. Since entering custody he has not commenced any sex offence-targeted program at this stage. He was referred for a Sex Offender Program in April 2016, however is yet to be assessed, though given he has been assessed as having a well above average risk of sexual reoffending, Community Corrections have advised that it is likely [he] will be suitable for the High Intensity Sex Offender Program (HISOP) [1] which is only available in custody. [The defendant] has reported his willingness to participate in this program. [The defendant] has recently commenced EQUIPS Addiction to address his AOD issues, which he is scheduled to complete in January 2020. He has been described as being polite and engaging well with this program to date. … Community Corrections do not recommend release, based on the fact that [the defendant] initially requires assessment to be completed for an [appropriate] sex offender program to address his offending behaviour. … … [The defendant] presents as an unacceptable risk to the community as he is yet to be assessed for and treated by an appropriate sex offender program. He has expressed his willingness to undertake such a treatment program and given his ongoing pattern of historical offending, it is in the interest of the safety of the community for him to address this behaviour, along with making progress on his use of illicit substances. … [The defendant] has not demonstrated a commitment to fully address his criminogenic factors while previously being supervised in the community on Bonds related to similar instances of offending. While [the defendant] has confirmed post release accommodation and support in the community at this point in time, subject to an eligibility assessment, there remains an opportunity to undertake a sex offender program in the custodial setting prior to his sentence expiry date and still provide a period of supervision in the community."
On 3 December 2020, the SPA again refused the defendant parole. In its reasons, dated 15 December 2020, the SPA explained that although the defendant had made some progress, including commencement of the HISOP program in June 2020, he was removed from it due to "association issues" and it was not known when he would be permitted to re-join the program. The SPA stated: "It is noted that this program or an equivalent level of treatment is not available in the community. Therefore, it is the preferred pathway for him to complete HISOP prior to release and as such, Community Corrections still do not recommend his release to parole."
A report prepared by two psychologists attached to the HISOP program, dated 23 November 2020, provides some background to the suspension. The essence of the circumstances was that an inmate who was to commence treatment in the HISOP residential unit was known to the defendant, who was the subject of an expired non-association alert against the inmate. When made aware of this development, the defendant stated that he would "need to do something" to the inmate if he came into contact with him and indicated that violence would be used. He maintained that intention when reminded that his threats may jeopardise his treatment plans; he said that he had no choice. Consequently, a decision was made to not house the defendant and inmate together and for the defendant to be suspended from the program.
A behavioural management plan dated 22 February 2021, that was prepared by Community Corrections psychologists, noted that the defendant's suspension from the program ceased when he notified staff that he now could manage interactions with the other inmate without the risk of harming him. The defendant returned to the residential unit attached to the program on 11 December 2020. He received a warning for speaking to another inmate in an adjacent wing on the day of his return to the unit. During a random search on 15 December 2020, pornographic material was found in his cell, for which he was suspended a second time. He returned to the unit on 3 February 2021 and was found with property that was not on his registered property list, that was removed from him. The document continued: "[The defendant's] engagement in group sessions has been mixed. Positively, he completes task work in a detailed and timely manner, generally provides appropriate feedback to others, and demonstrates insight into his past problematic behaviour. However, he has been reluctant to disclose information relevant to his current treatment needs, in particular his sexual functioning, relationships, and coping. His recent suspension task work noted a reluctance to engage with and respond to feedback by the group and facilitators. [The defendant] reported external motivation to complete HISOP, which is so that he can be released to parole as soon as possible."
In a pre-release report dated 21 June 2021, a senior Community Corrections Officer, Leah Shannon, noted that the defendant had been received back into the HISOP program in February 2021 and was expected to complete it on 9 July 2021. Ms Shannon noted that the defendant's family, who she described as "pro-social", were supportive of him and proposed that he would be employed in the family business. They would financially assist him to engage with an independent forensic psychologist in the community. Ms Shannon noted: "[The defendant] identified that his criminogenic risk factors included illicit substance use, an anti-social lifestyle and attitude, and objectification and hostility towards women. Moreover, [the defendant] articulated the following self-management plan that he would utilise to reduce his risk of re-offending; engaging in employment, remaining abstinent from non prescribed substances, engaging with an independent forensic psychologist and accessing additional supports such as family and Community Corrections. As opposed to previous occasions, [the defendant] was willing to discuss his offending behaviour with Community Corrections, which he conceded was due to wanting to enhance his parole prospects. This admission suggests that his attitude towards the victim and willingness in addressing his offending behaviour remains self-serving. His stated intention to cooperate with Community Corrections post-release is also accepted with caution given his prior resistance."
Ms Shannon noted reservations of a similar nature that were held by the HISOP treating psychologist: "In February 2021, his treating HISOP psychologist advised that [the defendant] has remained guarded in disclosing information pertaining to his offending pathway or current functioning. Although his engagement and contributions have demonstrated his conceptual understanding of the treatment content, offence related patterns and risks, [the defendant] has displayed limited change in these areas. Whilst he reportedly acknowledges the majority of his antecedents and how these relate to his offences, the defendant minimises the likelihood of such issues recurring. Moreover, [the defendant's] pattern of engagement within treatment is considered indicative of non-compliance, impression management and anti-authoritarian attitudes. His psychologist revealed that the defendant justified his disengagement by stating that he intends to continue treatment with an independent community-based psychologist as he believes that this will meet his needs better than engaging in maintenance through Forensic Psychology Services (FPS). … His HISOP psychologist expressed concern that [the defendant's] superficial engagement in treatment would be more difficult to manage in an individual treatment setting. Furthermore the psychologist advised that there would be a significant risk of disagreement over his treatment and management in the community developing between an independent, privately funded psychologist and community corrections. Accordingly, his HISOP psychologist opined that [the defendant's] post-release psychological treatment should be managed by [FPS] rather than a private psychologist as the latter will be ineffective in managing [the defendant's] risk."
Ms Shannon recommended that the matter be stood over for a period of four weeks, by when the defendant would have completed the program, and that in due course he be released to parole "to enable ongoing treatment with [FPS]".
In a supplementary report dated 28 July 2021, Ms Shannon noted that the defendant had completed the HISOP program but with no improvement in his attitude or insight. She noted that he had also completed the EQUIPS program and concluded: "The already established community supervision plan will facilitate his continued engagement in intervention regarding sex offender management, alcohol and other drug relapse prevention and random drug testing. Community Corrections' ability to address [the defendant's] offending behaviour is likely to be negated should he remain in custody given that there is no custodial program pathway available. Although [the defendant's] prevalent antisocial attitude towards the benefit of intervention remains concerning, a meaningful and lengthy parole period will attempt to mitigate and resolve such concerns. Community Corrections will continue to promote behavioural and attitudinal change in addition to [the defendant's] engagement with [FPS], notwithstanding his evident antipathy."
Following the defendant's completion of the HISOP program, a treatment report, dated 16 November 2021, was prepared by Andrew Fordyce, a psychologist who worked with the Department of Communities and Justice sex offender programs. He assessed the defendant's participation in the program: "Overall, [the defendant's] engagement in treatment was superficial and progress was limited. He acknowledged having limited internal motivation for treatment and engaging in order to 'tick the box' to gain parole. He also expressed the belief that treatment was unnecessary for him. He further justified his disengagement by stating that he intended to continue treatment with a former private psychologist, Mr Raymond Hudd, in the community. [The defendant] tended to demonstrate negative attitudes towards treatment and staff, which manifested in different ways, from overt hostility to passive-aggressive comments and behaviour. He also has evidenced multiple breaches to community rules with a lack of concern for the consequences of this. In group sessions, [the defendant] tended to alternate between remaining silent in some sessions and actively engaging in others. When engaged, he often provided appropriate questions and feedback to others, which evidenced his conceptual understanding of the treatment content. His comments could, at times, be lacking empathy and dismissive of other group members, but he increasingly moderated the delivery of his contributions as he progressed in treatment based on feedback he had received. Positively, [the defendant's] task work was generally completed in a timely manner, and he had a high attendance rate."
The report noted that the defendant's participation deteriorated towards the end of the program: "In the latter stages of treatment [the defendant] appeared to become increasingly frustrated with facilitator feedback on treatment work and group discussion. He also refused to complete or revise some tasks, which delayed his completion of the HISOP. Furthermore, interpersonal issues developed between [the defendant] and another inmate in his treatment group. [The defendant] continued to engage in unhelpful behaviours (e.g., engaging in negative interactions with this inmate, not completing reflective treatment work on the issues, and expressing negative attitudes towards the inmate and staff) which increased safety concerns regarding the two inmates being housed together. Therefore, he was removed from [HISOP] and his treatment was completed through individual sessions. These sessions were delayed due to the impact of Covid 19 on custodial operations, which [the defendant] perceived to be an intentional attempt by staff to prevent him completing the HISOP. He did not meaningfully engage in these individual sessions, and so he presented only two of his four self-management plans. While he identified some appropriate strategies for managing his risk in these plans, he had not evidenced use of such strategies during treatment and, therefore, it was considered unlikely that he would utilise them in the future. In sum, [the defendant] was considered to formally complete the HISOP, but it is noted he did not meaningfully discuss his self-management plans, which suggests that he may not be motivated to implement them to manage his risk of recidivism. In sum, [the defendant] evidenced a conceptual understanding of his offence-related patterns and risks, but no meaningful attempts to develop skills or strategies to moderate these risks. Furthermore, his pattern of engagement was generally indicative of non-compliance, anti-authoritarian attitudes, disengagement, and impression management. When these issues were discussed with [the defendant], he opined he had already made necessary changes to mitigate his risk, received prejudicial treatment from staff, and would engage in further treatment with a private psychologist in the community."
Mr Fordyce appeared dismissive of Mr Hudd's diagnoses of the defendant made in 2015: "[The defendant] was diagnosed with Borderline Personality Disorder, Autism Spectrum Disorder and Posttraumatic Stress Disorder by Mr Raymond Hudd, Forensic psychiatrist … . This diagnosis was made without the benefit of more recent information, including that which was obtained during a residential treatment program. Considering available information to date, it is considered that [the defendant] has demonstrated enduring personality traits characterised by emotional callousness, interpersonal hostility, a disregard for the rights of others, societal norms and authority, inflated self-perception, and thrill-seeking."
The report assessed the defendant's level of risk of sexual re-offending which, taking into account static and dynamic risk factors (the Static-99R and STABLE-2017 assessment tests), was "well above average". The report noted: "… it appears that [the defendant] is not invested in implementing his self-management plans upon release given that he minimised his risk of recidivism and relapsing problematic patterns of behaviour. External monitoring will be pivotal in his risk management, as staff working with [the defendant] will need to rely on behavioural indicators and collateral information to monitor his risk. In terms of sexual self-regulation, [the defendant] will need to be monitored to determine if he is engaging in unhelpful sexual behaviours (including use of sexual services and degrading pornography). He provided limited, as well as conflicting, information regarding his current sexual functioning. He also said that he would be unlikely to disclose any risk in this domain. [The defendant] reported a generally reduced arousal during his incarceration, which he attributed to past methadone use and a lack of sexual stimuli. However, he was also found with pornography in his cell, which could suggest a greater than reported sexual arousal, and it is possible that after a return to the community his arousal may increase in response to the opportunity for sexual activity. … [The defendant's] hostility towards women is strongly related to his interest in degrading sex. He continued to affirm negative attitudes towards women during treatment. Increasing hostility towards women would be an indicator of increasing risk of recidivism for him and should be monitored. [The defendant] expressed some interest in forming a long-term intimate relationship, despite not previously having formed such a partnership. His attitudes towards women are likely to affect his ability to form healthy, stable relationships. However, [the defendant] could be sensitive to rejection from a partner or failure to obtain a desired relationship, which he could externalise as anger towards women generally. As such, [the defendant] would benefit from therapeutic support if he were to consider forming an intimate relationship. … To date, [the defendant] demonstrated a broadly consistent offence pathway. He would most likely offend against a younger adult female stranger who is alone in a public setting. The most likely scenario of further sexual offending would occur following a breakdown in his relationship with his family, particularly his mother and sister, which could be triggered by him feeling controlled. He would likely seek to punish them by ceasing contact, and he may become more hostile to women in general. [The defendant] would increasingly become sexually this regulated and use degrading or violent pornography. … The defendant reported that he intended to resume treatment with his former psychologist, Mr Raymond Hudd. … [the defendant] used this plan to justify his disengagement from the HISOP. It is also noted that he expressed strong negative views of Mr Hudd at the commencement of the HISOP, due to his representation of [the defendant's] stepfather in a pre-sentence assessment, and provided a limited account of how this dispute was resolved. … It is strongly recommended that [the defendant] engage in maintenance treatment with FPS to focus on assisting him managing hi risk and implement his self-management plans, irrespective of him arranging to see a private psychologist."
Following the defendant's release to parole on 26 August 2021, he obtained employment in his family's business. His conditions of parole include electronic monitoring of his movements by way of an electronic bracelet.
A case plan summary dated 29 March 2022 noted continuing resistance by the defendant to supervision and a poor level of engagement in therapy: "[The defendant] continues to challenge and push the boundaries regarding his electronic monitoring and scheduling. His attitude towards supervision has been poor and he Is resistant to openly discuss[ing] the issues related to his offending."
The defendant's attitude shifted upon being informed of the possibility of an application for an ESO, in July 2022: "[The defendant] received a notification of a possible application under the Crimes (High Risk Offenders) Act 2006. Since receiving this letter, his attitude appears to have shifted and he has been more receptive to concepts in supervision. He has willingly accept[ed] assistance to be referred to Odyssey House for relapse prevention counselling. Although this is yet to commence. Feedback from FPS psychologist also suggests that some progress has been made, with [the defendant] more willing to discuss criminogenic topics."

The risk assessment report

A risk assessment report, dated 2 December 2022, was prepared by Dr Richard Parker, a senior psychologist in the risk management program of Corrective Services NSW. Dr Parker interviewed the defendant on 23 November 2022, finding him to be "open and co-operative".
Dr Parker reviewed the material held by Corrective Services NSW in respect of the defendant, his criminal history and the material required by s 25 of the Act. Dr Parker noted the defendant's only relationship, which was non-sexual, when he was aged 15 and questioned him as to whether he desired a relationship. The defendant responded that, so long as he was obliged to wear an electronic bracelet for the purposes of electronic monitoring, he did not consider a relationship worth pursuing.
Dr Parker noted that there is no evidence that the defendant has used drugs or alcohol since his release to parole. He considered that the defendant was "at least in the average range for intelligence". Dr Parker interpreted the passage from the HISOP treatment report concerning Mr Hudd's diagnoses, extracted above at [44], as being a rejection of them: "The HISOP treatment report appeared to dismiss [Mr Hudd's] diagnoses and instead referenced a number of personality characteristics associated with psychopathy, whilst declining to make a formal assessment of that construct."
Although Dr Parker declined to make his own diagnosis of the defendant, he rejected the diagnosis of borderline personality disorder on the basis that the defendant had exhibited a lack of interest in personal relationships, whereas "people with BPD tend to oscillate between extreme attachment to a person, followed by rejection of that person". However, Dr Parker considered that the defendant's relatively distant relationship with his family, despite living in the same house with them, was consistent with his diagnosis of ASD. He continued: "Similarly, his general emotionality would appear to be inconsistent with the concept of psychopathy. However, the diagnostic confusion surrounding [the defendant] would generally suggest that 'none of the above' is not the most satisfactory answer."
Dr Parker concluded that although a clear diagnosis was not possible, it was likely that BPD or psychopathy were not good descriptors of the defendant. However, Dr Parker was of the opinion that the criteria for Asperger's syndrome was apt and determined to approach the defendant's case formulation through that "lens".
Dr Parker noted that the defendant has engaged in maintenance sessions in the community with FPS, "although his engagement is probably best described as guarded". He noted the improvement in the defendant's attitude to therapy following him being made aware of the possibility of the application for an ESO.
As to the defendant's current level of risk of reoffending, Dr Parker noted that in September 2022 the defendant was assessed with the Level of Service Inventory-Revised (LSI-R) to have a "low/medium" level of general reoffending, meaning that 35 per cent of offenders with that assessment reoffend and are returned to custody within two years. In September 2016, the defendant was assessed with the Static-99R as to his level of risk of sexual reoffending. He came within the highest risk category, meaning that he was "virtually certain" to reoffend. Dr Parker noted: "I have reviewed this and agree with the scoring". The defendant was assessed for stable dynamic risk factors with the Stable-2007 assessment tool in 2021. Dr Parker said: "[The defendant's] total score … was 20 out of a possible 26, which is classified as high. While I have not formally rescored this assessment, I have reviewed the scoring and believe my score would not be substantially different."
Dr Parker combined the Stable-2007 and Static-99R scores to obtain an overall risk level of "well above average".
Dr Parker applied the Violence Risk Appraisal Guide-Revised (VRAG-R) to the defendant in November 2022. It assesses an offender's risk of sexual and non-sexual violence. It yielded a score that placed him in the eighth of nine "bins" in escalating seriousness of risk. Dr Parker noted that 58 per cent of violent offenders with a similar score reoffended violently within five years, and 78 per cent within 12 years.
Dr Parker observed: "With many rapists, the link between their offences and sexual satisfaction is clear - they overpower a woman and have sex resulting in an orgasm. The attainment of sexual satisfaction would appear to be a clear goal for those offenders. In [the defendant's] case, it is unclear whether the sexual touching was an end in itself (indicative of some type of paraphilia) or merely an incompetent attempt at rape that was (relatively) easily repelled by the victim. The most recent offence appears to be a clear escalation over the earlier offences, suggesting that the goal of all four offences was sexual intercourse. During his initial interview for scoring of the Stable-2007 (prior to entering HISOP) [the defendant] admitted to being sexually interested in 'Aggressive, violent, pulling hair - berating them, slapping them'. However, there was no evidence of such behaviour during the four offences - rather, [the defendant] appeared to only be using the force necessary (or even insufficient) to subdue the victims. Consequently, the contribution of any sexual deviance towards the offences is difficult to gauge."
Dr Parker reviewed the material that shed some light on the defendant's level of sexual preoccupation since the offences, and concluded: "It seems unlikely that a high sex drive (something normally driven by hormone levels) would suddenly decrease in the manner that [the defendant] claims. Consequently, it seems more likely that his high level of sexual behaviour was driven by a preoccupation (a cognitive drive) rather than a high biological drive (such as might be caused by high testosterone levels)."
Dr Parker explained the nature of the defendant's cognitions in the context of an examination of his attitudes and behaviours, concluding that he had "an impaired theory of mind" that could be understood in the context of the defendant having Asperger's syndrome. The defendant's indifference to his victims when engaging in what he (the defendant) understood as "thrill-seeking" fitted within this analysis: "Whilst it is not possible to make a diagnosis, he appears to have several indicators of Asperger's syndrome, as evidenced by strained relationships with other inmates during custody, a rather superficial relationship with family members and a lack of intimate relationships. A key feature of this syndrome is the lack of a theory of mind - '… the ability to recognize and understand thoughts, beliefs, desires and intentions of other people in order to make sense of their behaviour and predict what they are going to do next' (Attwood, 2015, [2] pp 111-112 of 397). This then leads to difficulties in social interactions. His sexual offences span a four year period between the ages of 19 and 23, where he would attack a random woman, sexually assault her, then run away. He has consistently described his offences as being motivated by thrill seeking - the rush of adrenaline having an addictive quality. It is unclear what motivated him to pick this particular form of thrill seeking, but it sheds some light when we examine why most men do not participate in this activity- an emotional awareness of how distressing such an incident would be to the victim. Someone with an impaired theory of mind may have a degree of knowledge that such behaviour is wrong, but without the appreciation of the impact and, hence, an emotional reaction (such as guilt). His failure to modify this behaviour, after being twice detected, further suggests that he didn't feel guilty. Attwood (2015) notes that adults with Asperger's syndrome can learn to compensate for their impaired theory of mind by learning a set of rules for social interactions. However their processing of social interaction cues necessarily involves more cognitive work thar other people who can 'naturally' read social cues. Consequently, for many adults, the symptoms of Asperger's become less obvious as they age and learn how to fit in to society. Whilst this makes diagnosis difficult, it also suggests that [the defendant's] ability to avoid offending is likely to improve with age."
Dr Parker considered likely risk scenarios. So long as the defendant maintained his current stable lifestyle and abstinence from drug and alcohol use, he was unlikely to reoffend. An attempt at a relationship might lead to violence, but falling short of the definition of a "serious offence" in the Act. He considered that a more likely scenario was that if rejected in an attempt to develop a relationship, he could attack either the woman who rebuffed him or a stranger. Such an offence, motivated by anger, could rise to the level of a "serious offence".

The relevant statutory provisions and principles

Section 7(4) of the Act provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, it must make orders of the type sought by the plaintiff for the appointment of forensic experts. If the Court is not so satisfied, it must dismiss the application: s 7(5) of the Act.
Accordingly, although this is a preliminary hearing, it is necessary to evaluate the sufficiency of the supporting material to justify the making of an ESO, pursuant to the relevant statutory test. Section 5B of the Act stipulates four prerequisites for the making of an ESO. Subsections 5B(a), (b) and (c) concern aspects of the defendant's status as an inmate or supervised offender in the community. Those subsections are not contested and I am independently satisfied that they have been met.
The key provision for consideration is s 5B(d), namely, whether the Court: "… is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order."
The term "serious offence" is defined in s 4 of the Act to mean either a serious violence offence or (of particular relevance to this application) a serious sex offence. That term is defined in s 5(1) to include an assault with intent to have sexual intercourse (s 61K of the Crimes Act 1900 (NSW)).
Pursuant to s 5D, the Court is not required to determine that the risk of an offender committing a serious offence is "more likely than not" in order to determine that there is an "unacceptable risk" of the person committing such an offence.
Section 9(3) of the Act stipulates the matters that the Court must have regard to in determining whether to make an ESO. The effect of s 7(4) is that on an application for an interim supervision order (ISO), these matters are also relevant, and in the course of this judgment, I have taken them into account.
Section 9(2) of the Act provides that, in determining whether to make an ESO, "the safety of the community must be the paramount consideration of the Supreme Court", consistently with the stated primary object of the Act, which is "the safety and protection of the community": s 3(1). A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).
In making its determination at a preliminary hearing, the Court does not weigh the supporting documentation or predict the result at the final hearing: see Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], in relation to comparable provisions in an earlier version of the Act.

Submissions of the parties

The parties' submissions, succinctly stated, are as follows. The plaintiff noted that the defendant has repeatedly disparaged his therapists, including Mr Hudd and those involved in the HISOP. The defendant's stated preference for privately engaging in therapy with a psychologist of his choosing is therefore of doubtful reliability. In any event, as noted by Mr Hudd, the defendant suspended counselling prior to committing the index offence, stating that he believed he did not need it.
Although the defendant is presently largely compliant with supervision, he was not compliant in 2012 and 2013 with community supervision and committed multiple disciplinary offences whilst in custody.
The plaintiff noted the sentencing judge's finding of an absence of genuine contrition or remorse for the offences for which he was being sentenced and the need for prolonged supervision in the community when released from custody. Although the defendant has not reoffended whilst on parole, it was submitted that the seriousness and pattern of his offending warrants continued supervision pursuant to the Act.
The defendant noted that Dr Parker's risk management report did not provide a current profile of the defendant's level of risk of serious reoffending, since it had been prepared eight months prior to the hearing. In the 23 months since he had returned to the community, he had not committed an offence or engaged in behaviour that suggested he was at risk of doing so; in particular, there was no evidence that he had resumed the use of drugs or alcohol or accessed pornography. He had a stable and supportive lifestyle, residing and working with his family.
Accordingly, the defendant submitted, the application should be refused, with an order for costs.

Consideration

At first blush, the defendant's submissions are persuasive. Prison disciplinary offences aside, the defendant has not reoffended since his commission of the index offence almost ten years ago, a period that includes an unblemished 23-month parole record. I am mindful that the Act's objective is not to constrain the freedom of an offender who poses any level of threat of reoffending; the test at a preliminary hearing, absent the formal prerequisites, is whether the matters alleged in the supporting documentation would, if proved, establish satisfaction to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence, if not kept under supervision.
The public nature of the location of the Central Railway station offence is suggestive of the defendant's offending intention not extending beyond the act of indecency. However, the circumstances of the Caringbah and Macarthur offences leave a degree of uncertainty as to what, if anything, would have transpired if the victims had not screamed, prompting him to run away. Each offence after the first was more physically aggressive than the one before it, culminating in the index offence which established an intention by the defendant to have sexual intercourse with the victim, had the bystanders not intervened. It is also noteworthy that on that occasion he was not deterred by the victim screaming, instead applying pressure to her throat as he prepared to attempt sexual intercourse with her.
It is particularly concerning that the Caringbah offence was committed a fortnight into the two year good behaviour bond he received for the Macarthur offence, suggesting that there had been no deterrent impact at all by the sentence.
The defendant has consistently provided a simple explanation of his offending behaviour as "thrill-seeking", failing to understand the importance of exploring his motivation beyond this rather superficial response by fully engaging in therapy. His pre-HISOP recorded attitudes towards women are disturbing in their apparent acceptance of aggression, particularly when coupled with his limited capacity for empathy.
Although the defendant's pro-social living and working situation is conducive to him not seriously reoffending, there is no assurance that those arrangements would continue without the imperative of continued supervision. The supporting material suggests that there remains a need for the defendant to engage fully in therapy to deal with his underlying criminogenic motivations to commit serious sexual offences against women; although he has not offended for almost ten years, that core motivation potentially remains dormant and untreated. In this sense, the results of the individual risk assessments over recent years are, to my mind, more readily understood. Although the defendant's overall risk has been described as "well above average", the scores for the individual assessments, as reported by Dr Parker, and the interpretation of those scores in terms of the likelihood of reoffending in the near future, are indicative in my view of a relatively high level of risk of sexual and other forms of reoffending.
I conclude that the supporting material before this Court, if proved, would justify an ESO.
I note that at the final hearing the Court will have the benefit of updated risk assessments and, ideally, conclusive diagnoses of the defendant's present mental and psychiatric condition. There is little before this Court in that regard beyond Mr Hudd's comprehensive diagnoses in 2015, which have been comprehensively rejected by Mr Fordyce and questioned by Dr Parker.

Conditions of an ISO

The defendant opposes a condition (proposed condition 4) that would oblige him to not engage in threatening, intimidating or abusive behaviour towards CSNSW staff, submitting that such concerns are adequately met by the provisions of s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). I am inclined to retain that provision, in view of his past resistance to supervision and occasional hostility towards some individuals within CSNSW.
The defendant opposes scheduling of his movements and electronic monitoring (proposed conditions 5 to 8). So long as his current living and employment situation remains the same, which is likely to be the case for the duration of the ISO (particularly in light of condition 9, that obliges him to reside at a DSO-approved address), it is unnecessary in my view for conditions to these effects to be incorporated in his ISO. Similarly, in my view, proposed condition 17, which obliges the defendant to participate in interventions recommended by the Departmental Supervising Officer (DSO), is an unnecessary inclusion in the ISO except insofar as it mandates his participation in recommended "personal development programs".
The defendant opposes a condition (proposed condition 18) that would require him to not commence a position of employment, volunteer work or an educational course without prior approval of his Departmental Supervising Officer (DSO). The plaintiff has proposed an alternative wording, which I find to be appropriate, that would oblige him to provide such notice either beforehand or as soon as practicably possible afterwards.
I have made certain other changes to the proposed conditions which align with the defendant's relatively reduced level of risk, so long as his present family-based lifestyle is maintained.

Orders

I make the following orders: (1) Order pursuant to ss 10A and 10C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") that the defendant be subject to an interim supervision order commencing on 28 July 2023 for a period of 28 days ("the interim supervision order"). (2) Order pursuant to s 11 of the Act that the defendant is for the period of the interim supervision order to comply with the conditions set out in the Schedule to these orders. (3) Order pursuant to s 7(4) of the Act: (a) That two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) be appointed to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) That the defendant attend those examinations. (4) Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access 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.

Conditions of Supervision Brooks (92813, pdf)

Endnotes

From the Risk Assessment Report by Dr Parker: "The HISOP program (formerly known as CUBIT) is a residential therapy program for men who have sexually abused adults and/or children. The program is designed to help participants work on changing the thinking, attitudes and feelings that led to their offending. The high risk/high need intensity program offered by CSNSW runs in a therapeutic community setting and offenders can expect to remain in treatment for approximately 6 to 10 months, with three, two and a half hour group therapy sessions per week."
Attwood, T. (2015) "The Complete Guide to Asperger's Syndrome." 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: 27 July 2023

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (1)

Cited By (1)