State of New South Wales v Chaplin

Supreme Court of NSW|2018-09-18|Before: Rothman J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid (Defendant) File Number(s): 2018/218541

Judgment

HIS HONOUR: On 4 October 2018, the Court, as presently constituted, issued orders under s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter "the Act"), appointing two qualified psychiatrists or registered psychologists to conduct examinations of the defendant and furnish reports to the Court; directing the defendant to attend those examinations; and orders pursuant to s 10A of the Act imposing an Interim Supervision Order (hereinafter "ISO") on the defendant and specifying the conditions under s 11 of the Act.
At the time that the Court issued the orders, reasons were reserved. These are the reasons.

The principles applicable to the making of an ISO

The defendant does not oppose the making of an ISO and concedes that the circumstances pertaining to the defendant meet the criteria prescribed in s 5I(2)(a)(ii) of the Act. The conduct of the proceedings by the defendant is a matter that the Court takes into account in his favour in that it shows a willingness to be treated and to be rehabilitated notwithstanding his past offending.
Nevertheless, the Court is required to look at the statutory preconditions before exercising the jurisdiction and the power conferred by the Act and the consent of the parties is, in my view, insufficient to warrant the making of an order.
The defendant is currently a "supervised offender" as described in s 5I of the Act, in that he is serving a sentence of imprisonment for an offence of a sexual nature: s 5I(2)(a)(ii) of the Act.
Further, the defendant meets the definition of "offender" under s 4A of the Act. He meets that definition because he has committed a "serious sex offence" falling within the terms of s 5(1)(a1) of the Act, being the offence to which the Court has already referred that occurred in 2000. For that offence, the defendant was sentenced to a term of imprisonment and was, at the time, over the age of 18.
As a consequence of the foregoing, the defendant's concession that the requirements of ss 5B(a) and 5B(b) and therefore, the requirements of ss 5I(2)(a)(ii) and 6(1) and 6(3) of the Act, was well made.
The appropriate approach to the making of an ESO and, therefore, an ISO has been considered on a number of occasions. The most oft-referred to authority is the judgment of Beazley P in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. This authority remains binding on the Court, as presently constituted.
The Act implements a form of preventative detention or control, which, on its face, is inconsistent with the common law principle that persons will not be punished or imprisoned unless found guilty of a contravention of the law. Nevertheless, the statute provides the Court with jurisdiction to assess the risk of further criminal behaviour by an offender and to assess whether that risk is unacceptable, as a consequence of which the Court then determines whether, and, if so, what, steps should be taken to ameliorate the risk.
The determination of whether a person poses an unacceptable risk is not balanced against the significant effects of the orders upon the person. Nor is the restrictions on the person's liberty a factor that informs the determination of whether the person poses an unacceptable risk.
The determination or assessment of whether a person poses an unacceptable risk involves a matrix in which the Court must assess the likelihood that a risk will manifest and the consequence of such a risk manifesting: see State of New South Wales v Elomar (No 2) [2018] NSWSC 1034 at [90]; State of New South Wales v Ceissman [2018] NSWSC 508; State of New South Wales v Pacey [2015] NSWSC 1983; Cornwall v Attorney General for New South Wales [2007] NSWCA 374; Lynn v State of New South Wales, supra.
Nevertheless, as has been discussed on a number of occasions, once the Court assesses that a person poses an unacceptable risk, the Court exercises a discretion in determining whether or not to issue an ISO (or, at final hearing, an ESO). Of course, if the Court assesses that the person does not pose an unacceptable risk, the summons seeking orders must be dismissed.
Given the consent of the parties, the foregoing summary is sufficient for present purposes in stating the principles to be applied in relation to the grant of an ESO. One further matter should be noted that pertains particularly to the application for an ISO.
The Court is required, in order to grant an ISO, to be persuaded that the "matters alleged in the supporting documentation would, if proved, justify the making of an" ESO. Little attention has been given to the words "matters alleged".
In State of New South Wales v Elomar (No 2), supra, I expressed the view that the matters alleged do not require prima facie proof, but the term "matters alleged" does not refer to a conclusion of fact that is alleged in the application or in an affidavit supporting the application. The term refers to matters of fact that, if proved, would be open to lead to a particular conclusion: see State of New South Wales v Elomar (No 2) at [7]-[10]. I adhere to the view there expressed.

Assessment of Risk and Determination of Criteria for ISO

The Court needs first to deal with some of the history of the defendant and the criminal history with particular reference to his offending behaviour and sexual offences. The defendant was born on 2 October 1974.
The first offence recorded was on 10 December 2000, in the sentencing for which the sentencing judge remarked that the circumstances were "unusual". The offence was maliciously inflicting actual bodily harm with intent to have sexual intercourse. That offence amounts to a serious sex offence for the purposes of s 5 of the Act.
The circumstances of the offence were that the defendant approached a female, who had alighted from her boyfriend's vehicle, while he parked. On being approached by the defendant, she ran away; he chased her; pulled her down and, on his account, fondled her buttocks and breast. He had intended to rape her.
During psychiatric examination in relation to that offence, the defendant admitted intrusive thoughts of committing sexual assault for some months before the offence. He also fantasised about coercive sex and bondage.
A month after he stopped the sessions with the psychiatrist, the defendant failed to report to probation and parole.
On 8 June 2004, the defendant, having bought a paring knife, approached a 12-year-old schoolgirl in uniform. He followed her; placed a cloth over her mouth from behind; and, when the victim screamed, apologised and walked away.
Later that afternoon, he passed a 19-year-old female at a walking track, turned and followed her. When he caught up with her, he placed one hand on her belly button and another on her cheek, pulled her head towards her shoulder and said "you're beautiful" and asked if he could give her a kiss. The defendant kissed the young girl on the cheek as she tried to break his grip on her. The defendant then grabbed the victim's leg and rubbed her crotch area. She screamed for help. He let go and jogged away.
For those offences, the defendant was charged with indecent assault (the 19-year-old) and attempt to detain for advantage (sexual gratification) (the schoolgirl). He pleaded guilty to both those charges and was sentenced to 2 years' imprisonment, with a non-parole period of 18 months for assault with act of indecency, and 6 years' imprisonment, with a non-parole period of 4 years, for the detain for advantage.
The defendant completed the CUBIT program in custody and was released on parole on 7 June 2009. The parole expired on 7 June 2011.
During his parole period, the defendant failed to attend forensic psychology services sessions on seven occasions, without an acceptable excuse. In September 2011, the defendant was charged with failure to comply with child reporting obligations for which he was convicted and fined.
He was charged with failure to comply with child reporting obligations again in July 2015. This time, he was fined and placed on an 18-month good behaviour bond, plus a 12-month s 10 bond for another unrelated offence.
In October 2015, the defendant was charged, convicted and fined for the possession of a prohibited drug. There were further charges for failure to comply with child reporting obligations, for which he was sentenced in March 2016 to imprisonment for 3 months.
On 15 December 2016, the defendant used his phone to film up the skirts of three schoolgirls at Central Station. The girls were aged 12 and 13. He was photographed doing it by a bystander; charged with the offence in February 2017; and, after initially denying the conduct, admitted to having taken photos of the girls.
Nevertheless, he did not admit to filming the girls' private parts. Whether or not he did so, the offence breached the bond imposed in July 2015 and the child prohibition order. This last matter is the sentence for which the defendant was on parole at the time that the ISO was issued.
The report from Dr Nielsen which was compiled as a consequence of the first offence recited above, is before the Court. He was described by Dr Nielsen as having an "odd affect", being guileless and lacking in social skills. Further reports were issued by Michael McElhone, psychologist; further report by Dr Nielsen; a report by Dr Westmore, psychiatrist; report by Gregory Fathers; psychologist and a report by Catherine Jones, occupational therapist.
At the age of 24, the defendant said that he would walk around train stations and shopping centres looking for a woman with whom to have coercive sex and within another two years had begun, on a weekly basis, to approach teenage girls approximately 16 years of age and "tap them on the bottom". He started the practice of going into female toilets, lying on the floor looking into the cubicle and masturbating. He obtained female underpants and dress from clothing bins and masturbated while lying on top of the clothing.
In custody, the defendant described fantasising one to three times a day, mainly about schoolgirls in school uniforms at about the age of 12 to 13 years.
A Risk Assessment Report was prepared by Dr Richard Parker. The Report, dated 12 March 2018, noted that while the defendant is assessed as at a high risk of committing a further sexual offence (a statistical category wider than the description in the Act of a "serious sex offence") he had not committed a "hands-on" sex offence since 2004. There is some suggestion that the defendant is more likely to commit a sexual offence when not in a relationship. However, the Risk Assessment Report before the Court, at the time of the ISO, noted that the defendant has difficulty in forming relationships.
The STATIC-99R testing found the defendant to be well above average risk, while his score in the STABLE-2007 testing was 12, placing him in the high risk category relative to other male sexual offenders. The combined STABLE-2007 and STATIC-99R score yielded a very high risk level overall.
There is a Risk Management Report that had been prepared while the defendant was in custody. It refers to the desirability of electronic monitoring.
During early-2018, the defendant indicated that he considered that he could adequately manage risk factors with medication, but also admitted that the medication had "added to his sexual fantasies". I take the view that this indicates a lack of insight into the offending.
The preliminary reports refer to the possibility of the recommencement of anti-libidinal medication (a voluntary provision); the continuation of forensics psychiatric services sessions (which can only occur, compulsorily, during the implementation of an ISO or ESO); and the engagement in a productive pro-social relationship with a female.
The reports note a lack of confidence in compliance with ESO or ISO conditions, given the defendant's non-compliance with other supervision. This issue goes to the need, or likely need, for electronic monitoring.
There are obvious issues associated with the safety of the community, given the defendant's lack of insight into his own behaviour, and his continuing offending, albeit, in most instances, with minor offences. Nevertheless, when added to the level of fantasy and the nature of the fantasies, there is a serious risk, in the view of the Court, of the defendant committing a serious sex offence. This is confirmed by the testing, albeit at this stage limited, that has occurred.

Conclusion

As was indicated at the time of the hearing, the Court is of the view that the material presented by the State of New South Wales alleges facts that, if proved, would warrant the making of an ESO. There is a significant likelihood of the commission of a serious sexual offence and, most relevantly, a likelihood that the offence could be one that had serious consequences.
The use or potential use of the knife on previous occasions and the attacks on strangers, particularly very young persons, both add to the risk to the safety of the community being such that it is unacceptable without a degree of amelioration by supervision.
The Court discussed with the parties the nature and terms of the conditions proposed by the plaintiff and ordered conditions arising out of that discussion. It is unnecessary to deal with each of the conditions. In most instances, the changes to the conditions were a clarification of the desire of the State of New South Wales.
Nevertheless, there are some that warrant particular discussion. Condition 7, as drafted, was amended so as to provide for the exception relating to Condition 8, which exception is not clear on the face of the document.
Condition 12, relating to visits at his approved address, was amended to require the defendant to appear at the front door when so requested, rather than allowing the DSO to enter the premises uninvited. This is particularly relevant during the course of an ISO.
Condition 14 was amended to require the defendant to notify his DSO by text or other form of written communication of any visitor. Condition 24 allows the use of alcohol up to a blood alcohol content of 0.05 and Condition 27 was amended so as to exclude approaching the person for the purpose of purchasing an item in a retail outlet or business.
Lastly, Condition 53 was amended so that the agreement to the sharing of information between healthcare practitioners and the DSO relates to issues of relevance to his offending and the reasons for his supervision, being those matters relating to mental health, psychological and psychiatric issues and the like.
With those above amendments, the Court came to the view that the conditions would sufficiently ameliorate the unacceptable risk posed by the defendant to allow an ESO to be granted, if the matters alleged were proved and, therefore, granted the ISO in the terms ordered, including the Conditions under s 11 of the Act that were published and came into effect on 4 October 2018.

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: 29 April 2019

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