State of New South Wales v Colebrook

The Statutory Framework to the Application

1. For an application under the Act to be made with respect to the defendant a number of "threshold" matters must be satisfied. As the history of his circumstances set out above demonstrates, the defendant is: 1. An adult who has been convicted of both serious sex offences and offences of a sexual nature, as defined by s 5 of the Act, being offences contrary to s 61J of the Crimes Act, an offence referred to in Division 10 of Part 3 of that Act; and 2. At the time the State filed its application, the defendant was a supervised sex offender as defined by s 5I(2) of the Act.
2. The defendant does not dispute that the State has complied with s 14 of the Act by filing documentation that addresses the matters set out in s 17(4) of the Act, and including a report prepared by a registered psychologist that assesses the likelihood of the defendant committing a further serious sex offence (s 14(3)(b) of the Act).
3. The question of whether the defendant is a "high risk sex offender" as contemplated by s 5B(2) of the Act remains to be considered when determining whether an interim supervision order should be made in accordance with s 10A of the Act. That latter section provides: "10A Interim supervision order - high risk sex offender The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order."
4. A high risk sex offender extended supervision order may be made where the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.
5. Section 9(3) of the Act specifies those matters to which the Court must have regard in determining that issue.

Risk Assessment Report - Ms Carollyne Youssef

1. Carollyne Youssef, senior psychologist, prepared a risk assessment report concerning the defendant on 1 February 2016 in anticipation of the current application. Her report forms part of the evidence before the Court.
2. For the purpose of the report, the defendant was interviewed over a period of three hours on 11 December 2015, during which he presented as "quite thoughtful, articulate and appeared to be making an effort to be open and forthcoming with information" ([3.2] of the report). Ms Youssef additionally had access to the defendant's Corrective Services file, and a wide range of documents addressing the defendant's criminal, personal and psychological history.
3. Ms Youssef noted the defendant's history of institutional misconduct as "consistent and significant" ([5.1]). In the earlier period of his incarceration the defendant was charged over aggressive behaviour. His explanation of that conduct was given as the need to "stand my ground" and so other inmates "knew not to mess with me…to leave me alone" ([5.3]).
4. The defendant's later institutional charges were drug-related; the most recent such matter was recorded on 13 January 2014 for possessing a drug implement.
5. The defendant reported consuming alcohol regularly from 15 years of age. From the age of 16 or 17 until age 22, he described himself as a "full on alco" ([8.1]). He also began smoking marijuana around this time. The defendant reflected that he used illicit substances as a "reward" or to "mellow out" when frustrated or agitated ([8.2]).
6. The defendant began using opiates in custody, which was reflected in urinalysis results. He started using Buprenorphine in 2008 and reported being addicted to the drug within two years. He injected Buprenorphine intravenously daily in custody and did so until he went onto a methadone program.
7. Ms Youssef notes that the defendant is currently attending the Forensic Psychologists Services ("FPS") Community Maintenance Program and is complying with his methadone treatment. However, she notes in her report ([8.3]): "…[H]is insight regarding relapse prevention strategies and other ways to manage his substance use indicate limited insight."
8. (That observation is supported by the breach of parole established by urinalysis of 27 May 2016.)
9. The defendant has participated in a number of treatment programs in custody, and continues with psychological counselling whilst at liberty subject to parole.
10. He undertook the PREP Preparatory Program on 3 December 2008 for a period of 4 months, attending eleven sessions and completing all but one module before being accepted into the Custody Based Intensive Treatment (CUBIT) program. The program summary reports that the defendant presented as "motivated and insightful" and that he "demonstrated a capacity to respond well in a treatment program" ([7.1]).
11. Ms Youssef indicates that upon completion of the CUBIT program the defendant's treatment completion report was "favourable" as it highlighted his "motivation, insight and his willingness to address his offending behaviour" ([7.2]).
12. Following the defendant's release from custody on 15 September 2015, he commenced the Community Based Maintenance Program at FPS. Despite the defendant expressing reservations about the usefulness of this program, he continues to attend all scheduled sessions and has been described as an "active participant" ([7.5]).
13. His conduct since his release into the community has been generally satisfactory.
14. Prior to the defendant's current release on 15 September 2015, and since turning 18, he had not spent more than 10 months in the community. In his short period of liberty the defendant demonstrated a "poor response to supervision" ([6.1]), something in part demonstrated by the commission of some offences whilst subject to conditional liberty.
15. The defendant was first released in 1989 on an 18 month recognizance and a juvenile probation order. During the term of probation, he "failed to report as directed, he was unemployed, led an itinerant lifestyle and he continued to commit offences" ([6.1]). The defendant breached both orders and subsequently the probation order was revoked and the recognizance was terminated.
16. Despite that early unpromising performance, Ms Youssef has concluded that the defendant has been "relatively compliant" with supervision requirements since living in the community from September 2015 [(6.1)].

Risk Posed by the Defendant

1. The Static-99R and the Stable-2007 were tools employed by Ms Youssef in order to assist with a risk determination of the defendant. The combined results of tests administered yielded a moderate-high overall risk level relative to other male sexual offenders.
2. A further evaluation of the defendant was undertaken by administering the Risk of Sexual Violence Protocol ("RSVP"). RSVP is an instrument which tests 22 status and dynamic risk factors. The factors relevant to the defendant are summarised below.

Psychological Adjustment

1. An individual's psychological adjustment is related to the risk of sexual offending. The defendant displayed attitudes which support or condone sexual violence. In his CUBIT report, he "acknowledged distorted beliefs and hostile attitudes towards women" ([10.16]). Although he did not overtly support sexual violence, he reasoned that at the time of the commission of his offences he wanted sexual gratification and he could obtain this by coercing women; Ms Youssef concludes that this is demonstrative of "excusing sexual violence as well as being indicative of sexual entitlement" ([10.16]).
2. Ms Youssef opined that the defendant has problems in coping with emotions and resolving disputes. The defendant reported that he has a tendency to isolate himself but he has had a "bad temper" most of his life and that he "usually resolved his anger at others through physical altercations" ([10.16]). She concludes that resorting to violence is indicative of poor insight and this deficit in adaptive coping strategies is a significant risk factor.
3. Problems resulting from child abuse and his categorical denial of his sexual offending from 1996 to 2005 are noted as additional psychological risk factors.

Mental Disorder

1. Sexual deviance is strongly associated with sexual violence. As the defendant has not reported anything which indicates sexual deviance, it "remains unclear" whether he satisfies this, an issue that "should be further explored" ([10.17]).
2. The defendant has been treated for depression in the past. He began using anti-depressant medication periodically from 1997 until he permanently discontinued the use of such medication in June 2007. Although he does not currently satisfy any criteria which constitutes a major mental illness, the defendant's personality is such that he frequently experiences "intermittent periods of hopelessness and instability that result in maladaptive coping, such as violent or criminal behaviour" which has been "a significant issue" in the past. Ms Youssef postulates that it may continue to be a significant issue in the future ([10.17]).
3. These issues are further exacerbated by a history of substance abuse and the defendant's use of drugs and alcohol as a coping mechanism.

Social Adjustment

1. Ms Youssef contends that difficulties with social adjustment may precipitate sexual violence by increasing vulnerability to life stressors. She states that the defendant has the capacity to establish intimate relations, evidenced by his three prior relationships, but that "he does not appear to have the capacity to sustain these relationships long term" ([10.18]). The defendant has two daughters although he has ongoing contact only with the eldest.
2. Ms Youssef noted that the defendant did not have the opportunity to develop healthy attachments to others in childhood, and thus a general mistrust of other people manifested.
3. The defendant's episodes of negative mood, criminal behaviour and substance use have a likely impact on forming social connections. This mentality would additionally support the fact that the defendant has no history of regular employment. All of these features heighten risk.

Summary

1. Ms Youssef summarised the salient risk factors specific to the defendant as including the following: poor general self-regulation manifested by his substance abuse; impulsivity; aggression; general instability; poor problem-solving skills; negative emotionality; poor coping skills as well as intimacy deficits, demonstrated by unstable relationships and marked by substance use; poor history of attachment to significant figures; and, overall a poor self-reflective capacity regarding internal processes ([11.2]).
2. A "hypothetical potential risk scenario" was posited by Ms Youssef: "Were Mr Colebrook to reoffend, it is likely to be relatively opportunistic and impulsive, with the victim being a strange or someone he knows. The victim would most likely be an adult female, on her own, at night. The offence could occur in a private place such as the victim's home or a building or a public space such as a park. Overall, the factor most likely to provide an exponential escalation in Mr Colebrook's risk of reoffending is him wandering around, late at night "roaming" for unlocked homes or a lone woman. Mr Colebrook may have consumed some substances (e.g. alcohol, marijuana) in the hours leading to an offence, however this is not a necessary factor for his offending behaviour." ([12.2])
3. She concludes that in the absence of an extended supervision order it may be that the defendant could independently remain offence free, however: "…[H]is history suggests that without on-going intensive support and supervision, he may return to high risk behaviours associated with his offending behaviour" ([14.12]).

Risk Management Report - Ms Rebecca Kaye

1. A community corrections officer within the Extended Supervision Order team at the Department of Corrective Services, Rebecca Kaye, provided a risk management report on 3 March 2016. The report was prepared in anticipation of this hearing. The following is a summary of her report.

Risk of Re-Offending

1. Ms Kaye referred to an assessment undertaken using the Level of Service Inventory - Revised (LSI-R), undertaken on 5 December 2015, which found the defendant to fall in the medium risk level for general re-offending (at pg 3). Ms Kaye also referred to a psychological risk assessment undertaken by Samantha Ainsworth of 27 December 2013, which estimated the defendant to fall in the medium-high risk category of sexual offending (at pg 3).

The Risk Factors

1. In her report Ms Kaye identified the key risk factors for the defendant. They include engaging in poor coping strategies such as alcohol consumption; withdrawal; being argumentative or aggressive; engaging in an unfulfilling relationship where he feels rejected, unworthy and unwanted; feeling he is not meeting his sexual needs; feeling bored, lonely and isolated; residing in unstable accommodation and leading an itinerant lifestyle; wandering around late at night on his own; re-engaging with anti-social peers and living an anti-social lifestyle; rejecting support services and poor compliance with supervision by failing to attend appointments and failing to comply with reporting obligations (at pg 3).
2. The risk management plan outlined by Ms Kaye, detailed below, proposes strategies to best manage these risks.

The Proposed Risk Management Plan

1. The plan proposed by Ms Kaye involves weekly face-to-face contact and interviews with the defendant at his approved residence, focusing on the defendant's reintegration into the community; development of coping mechanisms; opportunities for employment; engagement in activities to develop a pro-social lifestyle; discussion of the defendant's relationship and emotional state; stability of accommodation; and compliance with required interventions (at pg 4).
2. Given the defendant's past substance abuse issues, Ms Kaye proposes exploration of techniques for managing any relapse, and a referral to appropriate interventions, as well as urinalysis and random breath testing where appropriate. The effectiveness of these interviews will be limited by the requirement that the defendant be truthful and open during discussions, something he has failed in the past (at pg 4).
3. The weekly interviews will be utilised in conjunction with scheduled and unscheduled monthly home visits and field visits, in order to monitor the defendant's relationships and community reintegration (at pg 5).
4. The defendant's psychologist at FPS, family members, current methadone clinic, partner, Extended Supervision Order Compliance Unit, CSNSW Electronic Monitoring Unit, CSNSW Intelligence Group, and local Police have been identified as the defendant's third party contacts. At least one third party contact will be contacted each week, with the purpose of monitoring the defendant's progress in relation to the identified risks outlined above (at pg 5).
5. It is proposed that the defendant be subject to electronic monitoring ([at pg 6]). In the alternative, Ms Kaye proposes that the provision of a curfew may be a protective factor. The plan requires that the defendant continue to engage with FPS whilst ongoing treatment needs are identified, and he may be directed to seek a psychiatric review should his current mental state deteriorate. The defendant will be directed not to associate with other serious sex offenders, and may be directed not to have contact with persons found to be involved in criminal activity. He may also be directed not to attend certain locations, such as Mt Druitt or Penrith, due to ongoing victim protection issues.

Should the Orders sought be made?

1. At this interim stage the State seeks orders for the appointment of relevant practitioners to examine the defendant and report to the Court, and for his interim supervision, pending the finalisation of proceedings.
2. The defendant concedes that the Court would be persuaded to make the interim orders and I have had regard to that concession as a relevant feature of the matter; it is a significant concession.
3. Clearly, having regard to the nature and seriousness of the defendant's sexual crimes alone, there must be a live question of the risk posed by the defendant to others, and particularly to women. His long years of institutionalisation are likely to heighten any risk, because of the difficult process of making a transition to an independent law abiding life in the community. The defendant's recent lapse into illicit drug use is troubling, as is the allegation against him that he had custody of a knife in a public place, particularly bearing in mind the facts of his previous crimes. Whilst his generally positive response to supervision in the community is encouraging, a real issue of risk remains. Were the risk to manifest, the results could be catastrophic.
4. Having considered all of the evidence relied upon by the State, and noting the defendant's concession as to interim orders, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not supervised. I have concluded that the matters alleged in the supporting documentation would, if proved, justify the making of the final orders sought by the State.
5. That being so, it is appropriate to make the orders sought at this stage of the proceedings, for the appointment of two qualified psychiatrists to separately examine the defendant and report to the Court, and for the interim supervision of the defendant pending the finalisation of the State's application.

orders 1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW), the Court: (a) appoints Dr K Eagle and Dr J Adams to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 4 October 2016. (b) directs the defendant to attend those examinations. 1. Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), that the defendant be subject to an interim supervision order from 15 September 2016 for a period of 28 days and, pursuant to s 11 of the Crimes (High Risk Offenders) Act, that for the period of the interim supervision order, the defendant comply with the conditions set out in the schedule attached to the Summons. 2. The Plaintiff to file and serve any evidence upon which it intends to rely upon for the final hearing by 15 November 2016. 3. The Defendant to file and serve any evidence which he intends to rely upon for the final hearing by 22 November 2016. 4. The Plaintiff to file and serve written submissions by 15 November 2016. 5. The Defendant to file and serve written submissions by 22 November 2016. 6. Matter listed for final hearing on 29 November 2016 with a 1 (one) day estimate. 7. Liberty to apply to relist the matter at 1 (one) days' notice.

Monitoring and Reporting (1) The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order. (2) The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO. (3) The defendant must follow all reasonable directions by his DSO or any other person supervising him. (4) The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order.

Electronic Monitoring (5) The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

Schedule of Movements (6) If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. (7) If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period (8) The defendant must not deviate from his approved schedule of movements except in an emergency. (9) The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Part B: Accommodation (10) The defendant must live at an address approved by his DSO. (11) The defendant must be at his approved address between midnight and 5.00am unless other arrangements are approved by his DSO. (12) The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. (13) The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. (14) The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions (15) The defendant must not leave New South Wales without the approval of CSNSW. (16) The defendant must surrender any passports held by the defendant to the Commissioner. (17) The defendant must not go to a place if his DSO tells him he cannot go there.

Part D: Employment, finance and education (18) If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO. (19) The defendant must not start any job, volunteer work or educational course without the approval of his DSO. (20) The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.

Part E: Drugs and alcohol (21) The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed. (22) The defendant must submit to testing for drugs and alcohol as directed by his DSO. (23) The defendant must not enter any licensed premises without the approval of his DSO. (24) The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

Associations with Others (not children) (25) The defendant must not associate with people that his DSO tells him not to. (26) The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol. (27) If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history. (28) The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service

Part G: Weapons (29) The defendant must not, without reasonable excuse, have custody of a knife or other cutting implement in a public place.

Part H: Access to the internet and other electronic communication (30) The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed. (31) The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order. (32) The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet. (33) The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. (34) The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately.

Part I: Search and seizure (35) If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: (a) for the safety and welfare of residents or staff or persons present at the defendant's approved address; (b) to monitor the defendant's compliance with this order; or (c) because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: (d) search and inspection of any part of, or any thing in, the defendant's approved address; (e) search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; (f) search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or (g) search and examination of his person. (36) For the purposes of the above condition: (a) a search of the defendant means a garment search or a pat-down search. (b) to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. (37) During a search carried out pursuant to condition 35 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: (a) the safety of residents or of staff at the defendant's approved address; (b) the welfare or safety of any member of the public or any other person; or (c) the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. (38) The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. (39) The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 35 to 38 above.

Part J: Access to pornographic, violent and classified material (40) The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, R18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO.

Part K: Personal details and appearance (41) The defendant must not change his name from "Daniel Michael Colebrook" or use any other name without the approval of his DSO. (42) The defendant must not use any alias, log-in name, or a name other than "Daniel Michael Colebrook" or use any email address other than those known to the DSO under condition 30 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email. (43) The defendant must not change his appearance without the approval of his DSO. (44) The defendant must let CSNSW photograph him. (45) If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part L: Medical intervention and treatment (46) The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. (47) The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. (48) The defendant must take all medications that are prescribed to him by his healthcare practitioners. (49) If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. (50) The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. (51) The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

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: 15 September 2016