State of New South Wales v Carter

The relevant legislative provisions

1. In an application for a CDO, the Act requires the Court to conduct a preliminary hearing to determine whether it is satisfied that the matters alleged in the supporting documentation filed with the application would, if proved, justify the making of an ESO or CDO: s 15(4) of the Act. If so, the Court is to make orders concerning the preparation and service of forensic reports. If not, the application will be dismissed: s 15(5).
2. Accordingly, although the preliminary hearing is partly concerned with the need or otherwise for interim orders, s 15(4) of the Act necessitates a contemplation of the test for the making of final orders in order to assess the sufficiency of the supporting documentation, if proved, to base an ESO or CDO in due course.
3. The Court may only make a CDO if it is "satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order": s 5C(d) of the Act. 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": s 5D. Rather, the Court's function at a preliminary hearing is to consider whether the supporting documentation, if proved, would justify the making of either a CDO or ESO: s 18A(b). It is not to weigh the material or predict the ultimate result: Attorney-General (NSW) v Tillman [2007] NSWCA 119 at [98]. "A high degree of probability" indicates a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney-General (NSW) [2007] NSWCA 374 at [21]. The required state of satisfaction is a precondition to the exercise of the power, which involves the exercise of a discretionary judgement as to whether an order is made: Lynn v NSW (2016) 91 NSWLR 636 at [82].
4. A "serious offence" is defined as either a serious sex offence or serious violence offence: s 4. The definition of a "serious sex offence" (s 5(1)(a)) includes three of the five offences of which the Defendant was convicted in 2013; namely, aggravated indecent assault where the victim has a cognitive impairment and where the victim is under the authority of the offender (Crimes Act, s 61M) and grooming a child for unlawful sexual activity (Crimes Act, s 66EB(3)).
5. On an application for a CDO, the Court has three options; to make a CDO, an ESO or to dismiss the application; s 17(1) of the Act. In determining whether or not to make a CDO or an ESO, the safety of the community is the paramount consideration; s 17(2). An "Objects of the Act" provision identifies a secondary object as "to encourage high risk sex offenders and high risk violence offenders to undertake rehabilitation"; s 3(2). Section 17(4) sets out a non-exhaustive list of matters that must be taken into account. The terms of s 5C(d), including "unacceptable risk", are to be understood according to their everyday meaning in the context of the provision in which they appear, and having regard to the objects of the Act: Lynn v NSW (at [58]).
6. The Act was amended by the Crimes (High Risk Offenders Amendment) Act 2017 (NSW), which commenced on 6 December 2017. Sections 5B and 5C, which set out the preconditions to be met before the Court may make an order for an ESO and CDO, were significantly amended. This prompted judicial deliberation as to how the test is now to be approached. In NSW v Jones [2018] NSWSC 459, which was a final hearing in which the State had sought a CDO, Adams J adopted a two-stage approach: Given that the State seeks a CDO as its primary application in this matter, I propose to approach the statutory task by first considering whether s 5C(d) is satisfied and then turn to consider whether, in the exercise of the discretion conferred under s 17(1) of the Act, I would dispose of the application by way of a CDO or an ESO. (at [208]).
7. In NSW v Barrie (Final) [2018] NSWSC 1005, her Honour revised and changed her view: The better reading of the provisions is that the Court addresses the question of whether s 5C(d) is established, having regard to all of the factors in ss 17(2) and 17(4) of the Act. A CDO would be appropriate if the test in s 5C(d) was satisfied and an ESO would be appropriate if the test in s 5C(d) was not satisfied (so long as the test in s 5B(d) was satisfied). (at [31]).
8. Counsel for the Plaintiff has submitted that the latter approach is inconsistent with s 17(1)(c), which provides a statutory discretion to dismiss the application rather than make a CDO or ESO, although she acknowledged that it would be a rare case where s 5C(d) was satisfied but the application would be dismissed pursuant to s 17(1)(c).
9. Instead, counsel advocates the two-stage test, as adopted by Adams J in NSW v Jones, noting that such an approach was also taken by Button J in NSW v Russell [2018] NSWSC 1880. Counsel for the Defendant agrees with this submission.
10. The issue is of less significance in a preliminary hearing. It would be rare for the Court to anticipate that at a final hearing. the Court would dismiss the application rather than make a CDO or ISO, certainly without the benefit of the material accompanying the application being tested. As will be apparent from my consideration below, this is not such a case and accordingly I refrain from expressing a considered view.

The relevant matters in section 17(4) of the Act

1. The relevant factors pursuant to s 17(4) include the views of the sentencing court at the time the sentence of imprisonment was imposed: s 17(4)(h).
2. The Defendant gave sworn evidence on his sentence in Griffith Local Court. He is 6 feet seven inches tall and has a speech impediment. He said he was bisexual and acknowledged that he had been sexually attracted to "young males" since he was aged 27. He gave evidence that he himself had been sexually assaulted when aged 8 or 9, by a cousin aged 14 or 15, which he believed had contributed to his offending. He was candid as to his criminal behaviour and expressed remorse, but that was qualified by the fact that his plea of guilty came after the contested hearing had commenced.
3. The sentencing magistrate referred in his remarks to a pre-sentence report prepared by a senior psychologist in the Probation and Parole Service ("Probation and Parole"), which assessed the Defendant as having a medium to high risk of sexual reoffending.
4. On re-sentence in the District Court, Judge Payne noted that the Defendant was "struggling to understand how this happened and he does want help and he has taken steps to assist himself …" Her Honour found special circumstances, being the Defendant's first time in custody.
5. Other section 17 factors include the results of any forensic reports as to the Defendant's likelihood to reoffend (s 17(4)(c)) and any assessment as to the likelihood of "persons with histories and characteristics similar to those of the offender committing a further serious offence": s 17(4)(d). A Risk Assessment Report ("the Report") dated 16 November 2018, by Corrective Services senior psychologist Gillian Tulloh and forensic psychologist Cherice Cieplucha, stated that the Defendant meets the diagnostic threshold for a DSM-5 diagnosis of paedophilia and placed him in the "above average" risk category for re-offending in terms of static factors (the STATIC-2002R risk assessment tool) and in the high category when assessed with a tool designed to identify stable dynamic risk factors (the STABLE-2007). A composite assessment, combining both tools, suggested he required a "moderate to high level of intervention and/or supervision."
6. The Report identified a number of factors that are relevant to his risk of reoffending. Notably, the nature of his breaches of conditions of the child protection register and child prohibition order, of male children staying in his residence, are resonant with the conditions that he created in order for his sexual offending in 2010 to occur.
7. The Report reviewed the Defendant's participation in treatment and rehabilitation programs, which is also a matter that the Court is obliged to consider pursuant to s 17(4)(e). The authors concluded that the Defendant is to be regarded as essentially an "untreated" sex offender. His history of seeking treatment could be described as tentative. Three weeks after he was finally sentenced, on 5 April 2013, he applied to partake in the CUBIT program. He was admitted to, and satisfactorily completed, the preparatory program (the Sex Offender Preparatory Program: PREP), finishing in October 2013. However, he was not offered a place in CUBIT until March 2014 which, I note, was six months before his non-parole period was due to expire, being a period unlikely to facilitate completion of the CUBIT program, which takes between six months and a year to complete, depending on the inmate's progress. He indicated he would instead join a community-based program (the Pastoral Counselling Institute: "PCI") following his release. He had attended four assessment sessions with PCI prior to his incarceration, and a report that he was found to be suitable had been tendered on his sentence. A fortnight later, he had second thoughts and re-applied for CUBIT, was approved but not permitted to do so because of his pending release date.
8. Following his release to parole, he attended a session at PCI. It was a group therapy approach which he found to be "very uncomfortable". He moved to Queanbeyan for work and instead attended nine sessions with local psychologists, one private and the other an employee of Corrective Services, arranged through Probation and Parole. His last recorded session was thirteen months after his release to parole, a week before his total sentence expired. A report by the private psychologist expressed concern that the Defendant had minimised his offending, repeatedly put off sessions and had been evasive when he did attend.
9. The authors of the Report note that there are two levels of sex offender treatment programs offered within Corrective services; the High Intensity Sex Offender Program ("HISOP", previously known as CUBIT) and the Medium Intensity Sex Offender Program ("MISOP", previously known as CORE). HISOP is available only in prison and MISOP is available through Forensic Psychiatry Services ("FPI") in central Sydney. If the application is not dismissed, the Defendant will be assessed by a senior psychologist to determine the more appropriate program. The authors anticipate that will be HISOP.
10. As to the extent that he could be managed in the community (s 17(4)(d1)), the State material includes affidavits and a Risk Management Report, dated 7 December 2018, which concludes that the Defendant may have difficulties complying with conditions of an ESO which would be necessarily restrictive. However, a bed is available for him if he is released today at Nunyara Community Offender Support Program ("COSP") at Malabar, which is a residential facility operated by Corrective Services that provides accommodation to former prisoners who are transitioning into the community and still subject to conditional liberty, either as parolees or persons subject to detention or supervision orders. The facility is staffed around the clock and there is a 6pm to 6am curfew.
11. The state material is to the effect that, if the Defendant is released into the community, FPI would either directly provide sex offender therapy or oversee another treatment service agency. In view of his risk classification, as a parolee he would be entitled to one-on-one therapy.
12. An affidavit by the Defendant's solicitor is to the effect that the Defendant has conveyed to her that he now realises he needs "therapy to help me to identify and avoid risk situations." Although this comment is hardly indicative of insight into his need for intensive therapy directly addressing his attraction to male children, it is evidence of some motivation to engage in therapy. His solicitor has been advised by PCI that he could re-start therapy with that agency from tomorrow. Another Sydney-based private service provider of sex offender therapy, "LSC Psychology", can also assess the Defendant with a view to providing therapy to him.
13. Other factors to be mandatorily considered include the Defendant's criminal history (s 17(4)(H)) and the Defendant's level of compliance with any obligations under the Child Protection (Offenders Registration) Act and the Child Protection (Offenders Prohibition Orders) Act. These matters have been reviewed earlier in this judgement. The only disciplinary blemish on the Defendant's custodial record is an incident in September 2013 when he and four other prisoners placed notes in food intended for female inmates, seeking pen-pal contacts.
14. Section 17(4)(f) requires me to have regard to the Defendant's level of compliance with any obligations he was subject to while on release on parole. He was on parole for 13 months, between 9 September 2014 and 19 October 2015 without incident. He has not been charged with a sexual offence since those he committed in 2010. There is no evidence that he engaged in sexual activity with the children that were working with him or staying at his house, which constituted his breaches of his reporting obligations and breaches of the protection order.

Consideration and determination

1. The application complies with the threshold provisions of the Act as to when an application for a CDO may be brought and the Defendant's status (s 13B), as well as concerning the material to be served with the application (s 14).
2. The Risk Assessment Report's conclusion that, so long as the Defendant remains an untreated sex offender there is a medium to high risk of him committing further sex offences, is prima facie compelling material to the effect that, until such treatment is engaged and completed, there is a high degree of probability that he poses an unacceptable risk of a similar offence being committed, deploying the core terms of s 5B(d) and s 5C(d).
3. Subsection 15(4) requires me to determine whether I am satisfied that the matters alleged in the supporting documentation filed with the application would, if proved, justify the making of a CDO or an ESO. I am not required to specify whether I am satisfied that a CDO in particular, which is the order to be sought at the final hearing, would be justified.
4. In a preliminary hearing, the Court is not apprised of all the material relevant to a final determination. The material it does have, tendered by the State, is untested. For these reasons, my determination pursuant to ss 5C(d) and 17 is, of necessity, qualified. I am satisfied that the material, if proved, would justify at least the making of an ESO. Accordingly, I make orders pursuant to s 5(5).
5. The next issue concerns the Plaintiff's application for orders seeking an IDO, alternatively an ISO, pending the final hearing. Section 18A provides a discretionary power for the Court to make an IDO in proceedings for a CDO, if the offender's custody will expire before the proceedings are determined and the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or CDO. Similarly, when an ESO is sought, s 10A provides that the Court has a discretionary power to order an ISO if the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
6. When released, the Defendant will remain subject to parole until 11 June 2019, which precisely overlaps the three-month maximum period within which the final hearing must occur; ss 10C(2) and 18C(2). His likely conditions of parole and supervision until then are a factor to be considered in determining whether there is an additional need for an IDO or ISO. He also remains subject to his obligations under the child protection register and the prohibition order. The Defendant will be aware that a breach of his parole may result in his conditional liberty being withdrawn, placing him in a difficult position in resisting a CDO. As well, he remains on the child protection register and the subject of a child protection prohibition order.
7. On the other hand, the Defendant's social and family network is thinly spread across two states and he is not making a specific proposal for accommodation or work. His ability to get work, and his preparedness to work in remote locations, has been a major stabilising influence in his life, but equally one which places him beyond the scope of regular supervision, which is of concern given that the sexual offences and breaches of conditions occurred in such locations. An IDO or ISO would provide certainty as to his place of residence and other relevant factors in the interim, before the final hearing.
8. I am not satisfied that an IDO is required. The only sexual offences committed by the offender were in 2010. His breaches of obligations were serious, particularly in view of the parallels between the nature of the breaches and the circumstances of the offending behaviour, and in the absence of a satisfactorily completed course of sex offending therapy give rise to a risk of sex offending recidivism. However, I am of the opinion that this risk would be adequately addressed on an interim basis through close supervision of the Defendant in the community and the imposition of strict conditions as to his residence, movements and associations.
9. Accordingly, I am satisfied that an ISO is required. The parties have sensibly conferred on draft conditions, should I arrive at this conclusion. Two remain the subject of disagreement. One concerns a proposed condition that the Defendant would require the prior approval of his departmental supervising officer ("DSO") before "any person" may remain at his approved address or stay overnight. The Defendant submits that instead it should be "any person under the age of 18". I accept that submission. One of the dynamic factors contributing to the Defendant's level of risk of recidivism is his track record of not forming adult relationships. The condition proposed by the Plaintiff would tend to discourage the Defendant from asking adults to visit him at home. Protection to the community is not diminished by the amendment sought.
10. The other disputed draft condition is a proposal that the Defendant "must wear electronic monitoring equipment as directed by the DSO or any other person supervising him". Other conditions, which I approve, require the Defendant to reside at an address approved by his DSO (which I am advised will be the Nunyara COSP from his release today) and submit to a curfew as well as conditions that comprehensively cover his movements and associations when not at Nunyara.
11. The drafting of conditions involves a balancing exercise so that the Court will impose the least intrusive conditions, consistent with the assessment of the risk posed by the Defendant, and a further assessment as to what conditions are likely to be effective with the Defendant's interests in liberty and privacy being relevant, so as to ensure that unjustifiable conditions are not imposed; New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 per Johnson J at [25]. I am satisfied that, having regard to other conditions attaching to the ISO and the Defendant's status as a parolee, that electronic monitoring is not required.
12. The conditions of supervision allow the Defendant's DSO to approve the Defendant receiving treatment for his sex offending behaviour from any one of the three possible sources of such treatment, and to require him to partake in that treatment. It is anticipated that FPS will either be the provider or oversee that treatment from another approved agency.

Orders

1. The court makes the following orders: 1. Two qualified psychiatrists or psychologists (or a combination of such persons), as agreed between the parties, are appointed to conduct separate 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. 2. An order directing the defendant to attend upon those examinations. 3. Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), the Defendant is made the subject of an interim supervision order commencing 11 March 2019, for a period of 28 days. 4. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is directed to comply with the conditions set out in the Schedule to this judgment for the period of the interim supervision order. 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-party's application for access, and without the leave of a Justice of the Court.

State of NSW v Neil Carter Schedule of Conditions of Supervision (132 KB, pdf)

Amendments 12 March 2019 - Attach Schedule 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: 12 March 2019