By way of summons filed on 28 June 2023, the State of New South Wales ("the plaintiff") seeks final relief by way of an order that Mr Anthony Richard Carr ("the defendant") be subject to an Extended Supervision Order ("ESO") for a period of 3 years subject to conditions.
In the interim and before the Court today is an application by the plaintiff for an Interim Supervision Order ("ISO") against the defendant pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") for a period of 28 days commencing from 10 September 2023. The plaintiff also seeks an order pursuant to s 11 of the Act directing the defendant to comply with certain conditions set out in the schedule to the summons during the period of the ISO.
Pursuant to s 7(4) of the Act, the plaintiff seeks further orders for the appointment of two qualified psychiatrists and/or psychologists to conduct separate examinations of the defendant and to furnish their reports to the Court. The plaintiff also seeks an order directing the defendant to attend those examinations and ancillary relief in relation to non‑publication.
The defendant has predominantly sexual and child protection offences on his criminal history from four clusters of offences committed in 1995, 2008, 2017 and 2020. The index offences are, intentionally carry out a sexual act on a child under 10 years, produce child abuse material, and common assault against two young girls who were strangers to him, aged four and six years old. His sentence expires on 10 September 2023.
State of New South Wales v Carr [2023] NSWSC 1068 | Case summary | Zoe
The defendant's initial position for the purposes of the preliminary hearing was as follows:
1. The statutory preconditions are met and the defendant does not oppose the making of an ISO;
2. The defendant opposed the conditions sought by the plaintiff in the Schedule to the summons and submitted that the conditions of the ISO ought to have reflected the conditions of his present Parole Order which was then, at the time of writing the submissions, on foot;
3. In the alternative to (2), the defendant opposed some of the conditions imposed by the State; and
4. The defendant consented to the ancillary relief restricting access to the Court file.
Since these initial written submissions were filed, the defendant was arrested, I am told, for two alleged breaches of a prohibition order pursuant to s 13(1) of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) which carries a maximum penalty of 5 years (albeit a 2 year maximum if it were to be dealt with in the Local Court, as it likely). As at today's date, he is in custody, bail refused.
Since the arrest and bail refusal of the defendant, the defendant no longer presses for the conditions to reflect the conditions of the Parole Order as specified above, given the relevance of consistency with those orders no longer matters. It is agreed that it is appropriate for me to make orders, albeit with no date as to when the psychologist and/or psychiatrist are to furnish their reports.
Noting that the effect of s 10C(1A) of the Act is that an ISO is suspended whilst the defendant is in lawful custody, and the length of that custody is presently unknown, I am satisfied there is utility in proceeding with the matter today. In light of the change of circumstances, the parties by agreement propose slightly amended orders to take into account the defendant's current custody.
The plaintiff relies on the following material in support of the making of the ISO and other orders:
1. Affidavit of Melinda Smith, dated 10 July 2023 (with annexures);
2. The affidavit of Johanna Fisher, dated 21 August 2023; and
3. The High Intensity Sex Offender Program ("HISOP") treatment report, dated 11 August 2023.
The defendant relies upon the following material:
1. The affidavit of Sarah Salman dated 15 August 2023.
Helpful written submissions were also furnished by the plaintiff and the defendant. The plaintiff was represented today by Mr Dalla‑Pozza and the defendant by Ms Marsden. I am grateful to the parties for clearly isolating the issues for determination by the Court.
The Court must determine whether the ISO and the orders for examination by experts should be made under ss 7 and 10A of the Act. If I am satisfied the statutory preconditions are met, the question is whether upon the final hearing of this summons, if the matters appearing in the materials now provided to the Court are accepted and prove the facts to which they refer, whether the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision (s 5B(d)). In this case, the serious offence is a serious sex offence (see ss 4 and 5). The defendant is not contesting the imposition of the ISO, albeit the Court is still to be satisfied it is an appropriate order to make.
In my view, the statutory preconditions have been met. Further, the proposition under s 5B(d) of the Act has been clearly established by the material tendered. The only contest for determination is in relation to some of the conditions sought by the plaintiff.
[3]
A brief background of the defendant
The defendant is a 71‑year‑old man who has been diagnosed with a paraphilic disorder. He has a good employment history with some support in the community, including from his wife and 21‑year‑old son.
The defendant became eligible for parole on 10 October 2022, but on 4 August 2022 there was a hearing before the State Parole Authority where parole was refused on the basis that there was a "need to complete a program to address offending behaviour of sex offending".
His sentence expires on 10 September 2023, at which time he is entitled to be released. If no order is imposed, the defendant would have no support and no monitoring by Corrective Services New South Wales, albeit he would, as I understand it, be subject to a Prohibition Order.
The defendant completed Sex Offender Redirection Training ("SORT") in 1998, community‑based after care between 2000 and 2002, and Custody Based Intensive Treatment ("CUBIT") in 2013. However, he has clearly continued to offend, with his most recent offending being in 2020.
On 5 May 2022, the defendant completed the Real Understanding of Self‑Help ("RUSH") program. The defendant also undertook the High Intensity Sex Offender Program ("HISOP"), which he expected to complete in July 2023.
The plaintiff submits that the defendant poses an above‑average risk of reoffending sexually and that a number of risk factors have been identified as the focus for future management and/or treatment. It is also submitted that the defendant has had a fairly positive response to supervision in the community, but that he maintains negative beliefs about the seriousness of his offending by minimising the impact it has had on his victims.
[4]
A brief background of the offending
I now turn to a brief background of the offending. The defendant has been convicted of offences relating to the sexual touching and filming of young girls over four distinct periods: 1996, 2009, 2017, and 2020.
[5]
1996 offences
The defendant was convicted in the Sydney District Court of seven counts of indecent acts and indecent assaults on children under 10 years of age. The defendant had picked up a young girl in a retail store, lifted her dress, and pulled down her underwear. He was apprehended and interviewed by police. He then gave permission for his house to be searched and the police found numerous videos of the defendant committing sexual acts or indecent assaults against children in the Philippines, Bronte and Chatswood. All of the offences appeared to have been committed against strangers to the defendant.
The defendant was sentenced to a total of 7 years' imprisonment with a non‑parole period of 4 years. The Court of Criminal Appeal later adjusted the commencement date of one of the counts and the defendant was released on parole on 30 August 1999.
[6]
2008 offences
The second set of offences involved the indecent assault of a seven‑year‑old girl.
The context was that the defendant was asked to babysit his wife's friend's children, who were aged seven and four years old. He took the children and his son to the Manly Dam and told the girl to put on a skirt and not wear any underwear. As he played with the child, he touched her vagina area and told her not to tell her mother.
On 12 June 2009, the defendant was sentenced in the Sydney District Court to 5 years' imprisonment with a non‑parole period of 3 years. There was a delay in releasing the defendant on parole due to his need to undertake therapeutic sex offender programs and to find suitable post‑release accommodation. He was released on parole on 23 May 2013.
[7]
2017 offences
The third set of offences took place on 25 April 2017 during the Anzac Day festivities. The defendant had taken photographs and videos of a nine‑year‑old girl who was unknown to him. He had zoomed in on her buttocks and the bottom half of her body, and he was seen by a member of the public, who reported it to nearby police. The defendant was arrested and charged. He pleaded guilty to produce child abuse material, and on 29 June 2017, he was sentenced to 7 months' imprisonment with a non-parole period of 3 months.
[8]
Index offences
On 11 March 2020, the defendant was cycling along a street when he came across two young girls who were playing in a front garden unsupervised. The girls were four and six years old. The defendant stopped and introduced himself to the girls as "Tommy". He got candy, cookies, and chocolate out of his bag and offered them to the girls. The defendant then grabbed the six-year-old girl and pulled her down onto his lap.
He then asked the four-year-old girl to sit on his lap, and when she tried to move away, he grabbed her and pulled her onto his lap. He then started putting candy down the four-year-old girl's top clothing and looking to see where it went.
The defendant took a camera out of his bag and began pointing the camera at the four-year-old girl's face asking her to say cheese. He then made three one-minute videos focusing largely on the four-year-old girl's genitalia and pulled her underwear aside to uncover her skin.
The defendant was challenged by two local residents, and he was apprehended and charged by police.
On 30 September 2020, the defendant pleaded guilty in the Burwood Local Court to common assault, intentionally carry out sexual act with children under 10 years, and produce child abuse material. Two further common assault charges were taken into account on a Form 1.
The Local Court Magistrate who sentenced the defendant rejected the assertion that the defendant's acts were spontaneous and considered the planning involved in the offences to be an aggravating factor. Her Honour noted that she had no confidence that the defendant realised he needed help even though he ought to have had such a realisation when he was in prison for similar offences in 1996.
The defendant was initially sentenced to an aggregate sentence of 4 years' imprisonment with a non-parole period of 3 years. The defendant appealed the severity of his sentences to the District Court, and on 4 December 2020, the defendant's sentence was varied to a term of imprisonment of 3 years and 6 months with a non-parole period of 2 years and 7 months. Whilst giving evidence in the District Court, the defendant referred to his victims as "young attractive ladies", demonstrating a lack of insight into his offending behaviour.
In the course of a therapeutic program commenced in 2022, the defendant described his offences as "spur of the moment" even though he was fully prepared with candy, chocolate, cookies, and his camera. He made a similar claim when interviewed by police in relation to his 1995 offences.
[9]
The statutory scheme
The Act provides a comprehensive statutory scheme outlining the legal test for both preliminary and final supervision orders. In an earlier judgment in the State of New South Wales v Nixon (Preliminary) [2022] NSWSC 1561, I set out a summary of the statutory scheme at [7]-[18], and I refer to those portions again. I have taken those matters into account.
As indicated above, I am satisfied the statutory preconditions for the ISO have been met.
[10]
The proposed conditions contested either in whole or in part
It can be observed that the bulk of the proposed conditions for the ISO are not in issue. Accordingly, I will not mention the uncontentious conditions further other than to note that I am of the view that they are appropriate. The only conditions I will deal with in this judgment are those that are opposed by the defendant in whole or in part.
I will deal with each of them in turn.
[11]
Condition 6
Proposed condition 6 reads, "If the defendant wants to change anything in his schedule of movements once it is approved by a [Departmental Supervising Officer ("DSO")], he must seek approval from a DSO about the change 24 hours in advance unless the DSO approves a shorter period."
The defendant suggests a change of the wording such that he does not need to seek approval first, but simply would notify a DSO about the change 24 hours in advance unless a DSO approves a shorter period. The plaintiff presses the original form of the condition indicating that there is no ability in the proposed defendant's wording for a DSO to say that the change is unsuitable.
The defendant urges on the Court that the other conditions to which he has agreed are sufficient to protect the public and this proposed version of the condition is a slightly less restrictive form and is otherwise appropriate.
I am of the view that the plaintiff's argument is cogent, and there is no ability for a DSO to say the change is unsuitable in the wording suggested by the defendant. Accordingly, I am of the view that condition 6 should be imposed in its original form.
[12]
Condition 7
I now turn to proposed condition 7 which reads, "The defendant must not deviate from his approved schedule of movements except in an emergency."
The proposed amendment that the defendant urges on the Court is to include the words, "circumstances he reasonably believes to be an" emergency. The plaintiff urges the Court to impose the original version of the condition as the alternative imports a subjective element which significantly loosens the effect of the condition. The plaintiff refers to the previous criminal history of the defendant and circumstances of the allegations which means that any such loosening is not appropriate. The defendant submits that the condition does include that the defendant's belief must be reasonable. It is a slightly less restrictive condition against a background of otherwise restrictive conditions including electronic monitoring, and it prevents the likelihood of an inadvertent breach.
I am of the view that the plaintiff's original version is the most appropriate, given the repeated offending by this defendant and the lack of insight that he demonstrates in relation to his offending. I have no confidence that his subjectively reasonable belief would be appropriate in those circumstances.
[13]
Condition 9
The next contentious condition is condition 9 and that reads, "The defendant must comply with the rules or bylaws (or both) of any approved accommodation for the defendant."
It is opposed entirely by the defendant, and it is pressed by the plaintiff. The plaintiff argues that the supported accommodation where the defendant would first reside at Nunyara is such that a breach of those rules or bylaws associated with that supported accommodation is appropriate. The defendant says to the Court that a breach of any rules or bylaws would mean that trivial behaviour may well be criminalised. There is a lack of evidence before the Court at the moment as to what rules or bylaws are involved. I am concerned, in a factual vacuum, that trivial behaviour may well create a criminal offence if he were to breach quite minor conditions.
I am of the view, on the current state of the evidence, that this condition is inappropriate and I decline to impose it.
[14]
Condition 12
The next contentious condition is condition 12. The current form proposed by the plaintiff is this, "The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than person who ordinarily resides at his approved address) without the prior approval of a DSO."
The defendant suggests an amendment such that it should be restricted to visitors under the age of 18 years. It is put on behalf of the plaintiff that the amendments are not appropriate because the defendant has associations with other sex offenders and this association has been assessed as a real risk for him. Against that, the defendant submits that it is an appropriate condition to control anti‑social conduct when it is read in accordance with another condition, condition 24.
It is submitted that, where the defendant's risks solely relate to victims under 18, this amendment is appropriate, and that the DSO already has power under condition 24 to control anti‑social conduct.
Given the repeated offending of this defendant and the fact that his associations with other sex offenders have been assessed as a risk for him, I am not of the view that it is appropriate to amend the original form of the condition as has been proposed by the defendant. It is not appropriate for the defendant to have persons entering and remaining at his approved address without prior approval of the DSO whatever their age, given his known associations with other sex offenders. Accordingly, I impose the original version of condition 12.
[15]
Conditions 20 and 22
The next contentious conditions are 20 and 22 which are convenient to deal with together. The proposed condition 20 is, "The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO." The proposed condition 22 is, "The defendant must not open any account held at a bank, credit union, building society or similar institution without prior notification to a DSO."
The plaintiff points to earlier offending involving payment to a child in the Philippines, albeit it is noted that that was now quite a long time ago, in 1998 or 1999. It is submitted though that the DSO can monitor the defendant's spending to see if there is any similar future spending and it is an appropriate measure to mitigate future risk and that, given the continued offending by the defendant over four different episodes, it is appropriate that every mechanism should be available to protect children.
It is further noted that the index offending involved a camera and the financial records would enable payments to, for example, on electronics retailer to be detected, indicating risky activity. The defendant, on the other hand, points to the full suite of internet based conditions which it is submitted would sufficiently provide the DSO with enough means to monitor the relevant online searching indicating if the defendant is engaging with children overseas. It is urged upon the Court that there are enough conditions to exercise oversight without the need for additional oversight on spending per se.
I am of the view that both conditions are appropriate to be imposed for two reasons. One is that he has paid children overseas on an earlier occasion, albeit is a reasonable length of time ago. However, it is so much easier in 2023 to make contact with overseas children. If his access to local children is otherwise cut off, the risk of contacting other children via the internet is, in my view, a risk that needs to be mitigated.
The other reason, in conjunction, is that monitoring payments to overseas accounts is a highly effective and efficient means of checking whether or not the defendant is engaging with children overseas. It is a reasonably non‑invasive of monitoring such conduct. In all the circumstances, I am of a view that it is appropriate to give the authorities this particular means of monitoring, so the original versions of 20 and 22 should be imposed.
[16]
Condition 24
The next condition, to which an amendment is proposed, is condition 24. It currently reads, as proposed by the plaintiff, "The defendant must not associate with any person or persons specified by a DSO." The proposed amendment is "The defendant must not associate with any person or persons specified by a DSO, where a DSO reasonably believes the specified person or persons will elevate the defendant's risk of committing a serious offence."
The plaintiff fairly concedes that it is not strongly opposed to the inclusion of the words and points to an implied requirement of reasonableness. On the other hand, the defendant urges on the Court that it is appropriate that there is an explicit expression of reasonableness and that is important.
In my view, an explicit expression of reasonableness is prudent, and I impose the condition amended as proposed by the defendant.
[17]
Condition 27
The next contentious condition in its current form is 27, which currently reads, as proposed by the plaintiff, "The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary." The proposed amendment on behalf of the defendant is to add the words "to address a risk of the commission of a serious offence. Before any disclosure is made, the defendant must first be informed and given the opportunity to make the disclosure himself."
The plaintiff submits that the defendant's criminal history provides a cogent basis for stringent conditions in relation to it. The second instance of offending in 2008 involved a victim who was a child of his wife's friend. The current form of the condition, it is submitted, would protect those who might come into contact with the defendant and the proposed amendments mean that there would be unacceptable delay in the process of informing someone about the criminal history.
The defendant, on the other hand, submits that there is no reason to believe that there would be undue delay and that when a DSO becomes aware of a new association, they can direct the defendant to make a disclosure. It is important to emphasise autonomy and prosocial skills, and it is important that the defendant be given an opportunity to make the disclosure himself, and that he has been compliant with orders previously.
In my view, the original version is appropriate for two reasons. One is that he has recently been arrested for at least an alleged breach of a Prohibition Order, which indicates that he may not be as compliant as first urged upon the Court. Secondly, in my view the material indicates that he has a lack of insight into the seriousness of his offending, and I am not confident that the community would be appropriately protected with the proposed amendment. Accordingly, I impose the original version of condition 27, as proposed by the plaintiff.
[18]
Condition 49
The final matter to clarify in the nature of conditions is condition 49, which has in fact been agreed between the parties, and that is it would read in this form: "The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision, including but not limited to a DSO, New South Wales Police Force, and Corrective Services New South Wales, to the extent that it is relevant to his risk of reoffending or rehabilitation."
Again, can I record my thanks to the parties for resolving many of the issues, such as to save the Court time.
Otherwise, I impose the conditions as sought and not opposed by the defendant, and I will set out all conditions in the written copy of the judgment when it is published.
[19]
Orders
Accordingly, 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 10 September 2023 for a period of 28 days, known as "the Interim Supervision Order".
2. Order pursuant to s 11 of the Act the defendant is, for the period of the Interim Supervision Order, to comply with the conditions set out in the Schedule to this judgment.
3. Order pursuant to s 7(4) of the Act:
1. Appointing two qualified psychiatrists, two registered psychologists, or any combination of two such persons, 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
2. That the defendant attend those examinations.
1. Where the defendant is required to attend the examinations referred to in Order 3 and where criminal proceedings against the defendant are either still on foot or have been finalised prior to the examination for a period of 28 days or less, the practitioners conducting psychological and/or psychiatric examinations of the defendant are directed to not ask the defendant any questions about or arising from those criminal proceedings.
2. The parties have liberty to relist the matter on two days' notice including, but not limited to circumstances, where:
1. The defendant is granted bail;
2. The defendant is otherwise released from custody; or
3. The defendant is convicted of any further charges but is not sentenced to imprisonment by way of a full-time detention or intensive correction order.
1. In the event that an application for access to the Court's file in these proceedings is made by any non-party, the parties to the proceedings are to be notified prior to any order for access being made and are to be given an opportunity to make submissions as to whether or not such access ought to be granted. Access to the Court's file by any non-party shall only be granted with the leave of a judge of the Court.
Schedule of Conditions (Carr) (142527, pdf)
[20]
Amendments
05 September 2023 - Amendment to annexure.
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Decision last updated: 05 September 2023