State of New South Wales v Burchell

Nature of findings

1. If the threshold test in s 5B is met, the list of matters to be considered is contained in s 9. Before addressing these matters, I propose to set out a narrative derived from the evidence adduced by the plaintiff.
2. Although I use the term "evidence", I note that the evidence tendered by the plaintiff has not been tested. The defendant has not given evidence himself, or adduced any other evidence. All that is required for the purposes of deciding whether to make an ISO is that it must "appear" to the Court that the ESO will expire before the proceedings are determined (which is common ground) and "that the matters alleged in the supporting documentation would, if proved, justify the making of" an ESO: s 10A.
3. Accordingly, the following narrative ought be read with the qualification that it sets out the matters alleged in the supporting documentation. The facts in the narrative ought not be regarded as findings of fact, except on the limited basis required for the purposes of deciding, in accordance with s 10A, whether to make an ISO.
4. The defendant was born in 1971. He was raised by his father and had limited contact with his mother. He changed schools frequently because of his father's employment. He told Dr Parker, a psychologist by whom he was assessed on 21 December 2016 for the purposes of the present proceedings, that his father had numerous jobs and he felt that no one cared about him when he was a child. He left home when he was 17 and moved to Darwin. He lived in the Northern Territory for a while before returning to Victoria. He told Dr Parker that he formed good friendships, took up surfing and had a relationship of seven years' duration. When he was 24 his father died. His drug use increased and he lost his job in a bakery and became homeless. He attempted suicide. He moved to Ballina. He had a criminal history of non-sexual offences, before moving to New South Wales in his twenties.
5. He has two children from two relationships: a son and a daughter.

Criminal history in New South Wales

1. The defendant has an extensive criminal history in New South Wales, which commenced in October 1997 when he was 26. His history includes larceny; destroy or damage property; behave in an offensive manner; resist police; reckless wounding; possess prohibited drug. He has spent several relatively short periods in gaol for these offences. He has also failed to comply with bail conditions.

Sexual offences

1. The offences of a sexual nature for which he has been convicted include the following.

Offence of commit act of indecency: April 2002

1. In 2002 the defendant asked a woman who was staying at a hotel where he was working as an early morning chef if he could use the toilet facilities in her room. She agreed. He used the opportunity to masturbate in her bathroom. After he left her room he masturbated outside her hotel room. He was convicted of the offence of commit act of indecency (contrary to s 61N(2) of the Crimes Act) and was fined $900. The defendant explained to Dr Parker that he had been smoking marijuana and had become sexually aroused when he saw the victim in a towel.

Offence of aggravated indecent assault: April 2006

1. In April 2006 the victim, an 8 year old girl and her 9-year old cousin, were in the recreation room at the Shaws Bay Caravan Park. The victim sat on a mattress facing the television while her cousin played computer games. The defendant sat next to the victim and put his hand under her skirt and pinched her underpants. She moved away and the defendant said, "it was a mouse". The victim left the room and reported the matter. He was charged and convicted. A sentence of imprisonment of 6 months was imposed which commenced on 28 April 2006.
2. The defendant told Dr Parker in December 2016 that he saw the victim and began fantasising about her before the assault. According to the defendant, he was smoking a lot of drugs and drinking alcohol every day at that time.

Using a carriage service to access child pornography: January 2007

1. In January 2007 the defendant was charged with two counts of using a carriage service to access child pornography (s 474.19(1)(a)(i) Criminal Code (Cth)) on 16 January 2007 and 18 January 2007 respectively. These incidents occurred while he was a registered child sex offender and on parole. He attended an employment agency and logged onto their computer network. He used the network between 10am and midday. The history of the computer was accessed which indicated that the defendant had accessed photographs of children in sexually explicit and provocative poses. The internet history indicated that the offender had searched "preteen lolitas modelling" and "nude little girls". The defendant was convicted and received a sentence of imprisonment of 7 months with a non-parole period of 3 months which commenced on 25 January 2007. The defendant admitted to Dr Parker that he had used the computer to view pornography but told Dr Parker that he was surprised because he did not think it was child pornography.

Possession of child abuse material: April 2011

1. At about 7.10pm on 9 April 2011 police received numerous calls relating to a male shouting and kicking a phone booth on Dixon St Haymarket. Upon seeing police the defendant rode away on his bicycle. The defendant was arrested on suspicion of damaging the phone booth. He was entered into custody. His mobile phone was inspected and revealed a number of images being child abuse material which was classified as level one on the Copine scale (non-erotic and non-sexualised pictures showing children). The defendant was charged with produce, disseminate or possess child abuse material (s 91H(2) Crimes Act), convicted and sentenced to imprisonment for 9 months commencing 23 April 2011 with a non-parole period of 6 months.

The index offence

1. On Sunday 17 March 2013 the 3 year old victim was playing with her 4 year old sister among the clothing racks of the baby wear department at Big W within the Market Town Shopping Centre, Newcastle. Her mother was nearby. The victim moved out of her mother's sight. The defendant approached the victim, pulled down her underpants and touched her vagina. When arrested the defendant co-operated and made admissions. The NSW Police Statement of Facts noted that the defendant stated that he had used the drug "ice" earlier that day and stated he could not recall events inside Big W, although he could recall, in detail, events either side of the alleged incident. He eventually admitted to the offence and stated "I didn't touch her on the bottom, I touched her on the fanny". He confirmed that he used his fingers to touch the victim's vagina and that he moved her underwear to the side. The Statement of Facts also noted that the defendant stated that he was not reliant on drugs, but that if he takes the drug ice it "messes with his head". The defendant also admitted that the drug "ice" "triggers sexual thoughts." At the time of the offence he was the subject of a Child Protection Prohibition Order which was to expire on 15 July 2013 and was on the Child Protection Register.
2. The defendant was sentenced by Maiden SC DCJ on 4 September 2013 in the District Court at Newcastle in respect of one count of an indecent assault pursuant to s 61M(2) of the Crimes Act following a plea of guilty. His Honour sentenced the defendant to a sentence of imprisonment of 4 ½ years with a non-parole period of 3 years. The defendant became eligible for parole on 23 March 2016 and was released to parole on 30 March 2017. His sentence expires on 23 September 2017. His Honour noted the defendant's history of offending as well as the four previous instances of sexual offending. The sentencing judge had regard to the report of Dr Richard Furst, consultant forensic psychiatrist who noted diagnoses of bipolar disorder; substance use disorder (cannabis and amphetamines); a personality disorder (anti-social with borderline features); and paedophilia. His Honour said: "The paedophilia that Dr Furst refers to is heterosexual paedophilia consistent with a primary paraphilia, that is a disorder of sexual arousal and attraction. That matter perhaps is relevant to his offending behaviour on this day and what must be and which I find what has occurred is that Mr Burchell has had an underlying paedophile condition and when he took the substance ice, either on the day or earlier, that whatever control mechanisms he may have had when substance or alcohol free dissipated and gave rise to him seeking out the victim on this day. In doing so, I accept that it was not planned, however, it is clear that by going to that part of the store that he was looking for a young female to attack, which he did. ... I find that it was his drug use that caused that behaviour notwithstanding that he had an existing psychiatric condition. ... what is clear is that because of his complex psychiatric conditions he was unable to control those conditions when affected by alcohol. "
3. His Honour addressed the connection between drug-induced disinhibition in the following passage: "What is most saddening about this matter, besides what is the actual offending behaviour and what may be the effect on the young girl and her family, is that this matter, in my mind, would not have occurred had Mr Burchell not taken the illicit substances which I have earlier referred to. This is a matter where he knew, from his experience of his various offending behaviours and period of time in incarceration what would happen if he could not control his instincts. In this matter what has occurred is that he took ice and as for the finding I have set out above this is most likely the reason that this offence occurred."
4. The defendant was in custody for the index offences from 4 March 2012. He was not released to parole in March 2016 as he had not completed a program to address his sex offending. He commenced the CUBIT program on 7 December 2015 at Cessnock gaol. He was transferred to Metropolitan Special Program Centre, at Long Bay gaol on 6 February 2017. He was released to parole on 30 March 2017. The conditions of his parole include a requirement that he attend Forensic Psychology Services (FPS) and drug and alcohol counselling. His parole has been supervised by the ESO team since his release. He has been living at the Nunyara Community Offender Support Program Centre (COSP) since his release and has complied with parole conditions.

Matters to be taken into account under s 9

1. Section 9(3) requires this Court, in determining whether or not to make an ESO or an order under s 7(4) for the appointment of experts to report to the Court, to have regard to the matters which are addressed in the subsection. These matters are, to the extent relevant, listed below. The first of these matters, the safety of the community (s 9(3)(a)), will be addressed last since it is affected by the other matters considered.

The results of any other assessment prepared by a qualified expert as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment (s 9(3)(c))

1. As referred to above, the defendant was assessed by Dr Parker who prepared a report dated 10 January 2017 (from which much of the history set out above is derived). Dr Parker opined that the defendant's life "unravelled" after the death of his father which resulted in his abusing drugs. Dr Parker said that the defendant had responded positively to the Custody-Based Intensive Treatment Program (CUBIT) which he completed in gaol before being released on parole. Dr Parker was concerned that the defendant would only have six months on parole before his sentence expired and considered that to be too short a period to assess the risk of his re-offending. Dr Parker's view is that the defendant's risk of sexual re-offending remains high. He said: "Without any form of supervision, it is possible he would return to his previous lifestyle and substance abuse, with the consequent risk of further offending".
2. Dr Parker said that when the defendant takes drugs: "He appears to descend fairly rapidly into a chaotic lifestyle where a range of offences (both sexual and non-sexual) are commonplace."

The results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence (s 9(3)(d))

1. Dr Parker outlined the results of Static-99R and STABLE-2007. Static-99R is designed as a predictive tool for sexual recidivism based on static factors. The defendant's score, classified as IV-b, was well above average risk in the range formerly referred to as "high risk". Compared to other adult male sex offenders the defendant's score is in the 97th percentile. The STABLE-2007 was developed to assist clinicians in identifying stable dynamic risk factors for sexual reoffending: intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation. Dr Parker assessed the defendant's score as 19, which is classified as "high".

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community (s 9(3)(d1))

1. Jessica Smith, Senior Community Corrections Officer at the Cessnock Parole unit prepared a report dated 9 December 2015. At that time release to parole was not recommended as the defendant had not yet completed the CUBIT program. Ms Smith noted the defendant's lack of supports in the community and his poor behaviour in custody. In the next report, dated 11 January 2017, Ms Smith noted that the defendant was doing the CUBIT program and had demonstrated good progress. Ms Smith noted that the defendant had not committed any institutional misconduct since May 2015 and that parole would be recommended when he completed CUBIT.
2. Ajay Dayal prepared a Risk Management Report dated 20 February 2017 in which the defendant's periods in custody and under supervision were noted. Mr Dayal identified the defendant's risk factors as being substance abuse, alcohol abuse, sexual preoccupation, intimacy deficits and sexual attitudes. Mr Dayal proposed a management plan which includes the following: weekly interviews; random drug testing; random field visits; attendances at FPS; electronic monitoring with a weekly schedule submitted in advance; non-association and place restrictions; and review of internet access.

Any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs (s 9(3)(e))

1. The defendant completed 8 sessions of the 20-session EQIPS addition program, which was terminated due to low numbers. He completed the CUBIT program. However this took from the end of 2015 until 2 March 2017, which was longer than expected. The length of time appears to have been the result of the defendant's encountering difficulties with his emotions while undertaking the program. Nonetheless it was reported that the defendant had engaged with the program. A CUBIT treatment report dated 9 March 2017 reported that: "[the defendant] demonstrated a basic understanding of his problematic behaviours and appropriate utilisation of the skills and strategies. He continues to have difficulties identifying the problematic behaviours when experiencing a strong emotional response or feels he is being blamed for something."
2. The report also noted that in the period leading up to each offence the defendant was not in a relationship; lacked support; was unable to express his emotions or solve problems; questioned his purpose in life; engaged in excessive alcohol and drug use; and then increased his pornography use and masturbation. His pornography use became more deviant moving to pre-pubescent girls. The report identified the following risk factors which led to the sexual offences included sexual pre-occupation; sex to cope; deviant sexual thoughts; emotional inhibition; loneliness/isolation and fear of rejection; intimacy deficits; impulsivity poor problem solving; substance use and a general lack of concern for others.
3. It said: "[the defendant's] contact sexual offending was impulsive and opportunistic, believing he would not get caught, and appeared to be an attempt to manage his emotions, act out sexual fantasy or sexualised thoughts he had whilst viewing child pornography."
4. The defendant worked in various positions in gaol from which he was dismissed because of his behaviour. However, these dismissals occurred prior to the completion of the CIBUT program. Nonetheless, his inability to maintain stable employment, even in the custodial setting, suggests that he needs supervision to maintain consistency and routine in his life with a view to minimising the risk of substance abuse and consequential re-offending.

The level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order (s 9(3)(f))

1. The defendant's first involvement with NSW Probation and Parole Service was in November 2002. His criminal history indicates nine breaches of bail or his reporting requirements. On 26 November 2004 a previous parole order was revoked on the basis that the defendant was unable to adapt to normal lawful community life. A Breach of Parole Report dated 2 May 2007 noted that he appeared to be in breach of a prescribed condition in that he was not residing at the address specified in his release arrangements. A Breach of Parole Report dated 25 July 2012 noted that results of a routine drug test returned a positive result to cannabis. A review of the material indicates that the defendant has previously had difficulties complying with his obligations.

The level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 (NSW) or the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) (s 9(3)(g))

1. On 6 September 2004 the defendant signed a Prohibited Employment Declaration pursuant to the Child Protection (Prohibited Employment) Act 1998 (NSW) prohibiting him from applying for, undertaking or remaining in child- related employment as he had been convicted of a serious sex offence as defined in that Act. When the defendant committed the index offence he was the subject of a Child Protection Prohibition Order.

The offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history (s 9(3)(h))

1. These matters have been set out above in the narrative. The defendant's history demonstrates the connection between disinhibiting drugs and sex offending.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender (s 9(3)(h1))

1. I have referred to the remarks on sentence of Maiden DCJ above and, in particular, his Honour's impression that the offending conduct would not have occurred but for the defendant's substance abuse.

Any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order) (s 9(3)(i)

1. While in custody for the index offences, the defendant has had, between 4 March 2012 and 22 June 2015, 22 breaches of discipline including offences of indecency; intimidation; fail to attend muster and possess drug. There have been no breaches from 22 June 2015.

The safety of the community (s 9(3)(a))

1. The material before me, if accepted, shows that there is a high risk of the defendant re-offending unless his life is ordered and he remains drug-free. When unsupervised, he tends to be reactive to the circumstances around him. When he loses employment, or is frustrated by the end of a relationship or some other trigger, he tends to take substances, become disinhibited and satisfy his sexual urge in a way which amounts to criminal offending, either because an adult woman does not consent, or because a child is involved. The impulsive nature of his offending means that the community is at risk unless his substance abuse can be controlled and his life can be ordered. Presently it does not appear that he has the capacity to remain in stable accommodation, obtain and maintain stable employment and remain drug-free without external support and supervision. However, his positive response to the CUBIT program provides some indication that, given external supervision, he can modify his behaviour and reduce the risk he poses to others.

Conclusion

1. On the basis of the material tendered by the plaintiff at the preliminary hearing, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. Accordingly I am obliged to make orders under s 7(4) of the Act appointing qualified experts to examine the defendant and report to the Court.
2. I am not satisfied that it is appropriate to make an ISO under s 10A of the Act since the defendant's current custody will not expire until his sentence expires on 23 September 2017. It is preferable that the final hearing of this matter be listed before that date so that, if an ESO is to be made, it can be made to commence on the expiry of the defendant's sentence. I note that Ms Cook, who appeared on behalf of the defendant at the preliminary hearing, took issue with several of the conditions proposed by the plaintiff. It is not necessary that any of these conditions be adjudicated upon at this stage since the parole conditions will apply until 23 September 2017 in any event.

Orders

1. At the conclusion of the preliminary hearing on 24 May 2017 I made the following orders: 1. Pursuant to s 7(4)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) the Court appoints two qualified psychiatrists and/or registered psychologists (or any combination of such persons) to conduct separate psychiatric or psychological examinations. 2. The reports in order (1) are to be furnished to this Court by 20 July 2017. 3. Pursuant to section 7(4)(b) of the Act, the defendant is directed to attend the examinations referred to in order (1). 4. The parties have liberty to apply to relist the matter on three working days' notice. 5. Access to the Court's file by a non‑party in respect of any document shall not be granted without the prior notification to the parties of the non‑parties' application for access and without leave of a Justice of the Court. 6. Grant leave to the plaintiff to amend its summons by replacing the schedule of the filed version with the document which has been marked for identification MFI 1.

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: 06 June 2017