Solicitors:
Crown Solicitors
Legal Aid NSW
File Number(s): 2018/67482
[2]
Judgment
HIS HONOUR: By a summons filed on 1 March 2018 the State of New South Wales ("the plaintiff") seeks an extended supervision order ("ESO") (as well as related orders) in respect of Richard Kenneth Colquhoun ("the defendant") pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act").
This is the preliminary hearing of the matter pursuant to s 7(3) of the Act. At such a preliminary hearing, if the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO it must make orders appointing two psychiatrists and/or psychologists to conduct separate examinations of the defendant and to furnish reports to the Court on the results of such examinations. It must also direct the defendant to attend those examinations: s 7(4) of the Act.
The Court may also make an order for the interim supervision (an "ISO") of the defendant if it appears that his current period of supervision will expire before the proceedings are determined: s 10A of the Act. The defendant is currently on parole and that will expire on 10 May 2018. The final hearing of the matter is unlikely to occur before that date and so the plaintiff asks that an ISO be made with the same conditions as is sought in respect of the ESO that is sought.
The defendant "consents generally to the making of an ISO (although not necessarily an ESO)".
Having considered the materials relied upon by the plaintiff, I am satisfied that both of the pre-conditions for the making of an ISO set out in s 10A of the Act are established.
The defendant takes issue in respect of three of the proposed conditions.
Generally in relation to the objections, it is submitted that modifying the conditions in the matter suggested in counsel's written submissions would lessen the unfairness of such conditions on the defendant while not reducing their potential effectiveness. This was said to be because there is no evidence that the conduct the subject of the three conditions in question contributed in any way to any of the defendant's prior offending conduct or to any risk of such conduct in the future. It is accepted that there does not need to be any demonstrated "link" to past offending conduct: Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 at [53]-[54]. However, it was submitted that the three conditions in their original form in the summons are unjustifiably onerous and/or punitive and that they extend beyond that required to address the risk of future sexual offending. The modifications suggested were asserted to do nothing to detract from their capacity to promulgate the scope, purpose and objects of the Act as described in Wilde v State of New South Wales at [49]:
"The statutory objects listed in s 3 are twofold: the safety and protection of the community and encouraging high risk offenders to undertake rehabilitation. However, it is apparent from the language of s 3 that the listed objects do not exhaustively delineate the scope and purposes of the Act. This is apparent, in particular, from the language of subs (2), which refers to encouraging rehabilitation as being "another object of this Act". Thus, whilst s 3(2) specifies that an object of the Act is to encourage offenders to undertake rehabilitation, the scope and purpose of the Act is such that it would be permissible for the court, if it considered it appropriate, to impose a condition directed to facilitating rehabilitation, even if that did not require the offender personally to "undertake" rehabilitative steps as is envisioned in the statutory object in s 3(2). It may be appropriate in a particular case to impose conditions that may reduce risk factors relevant to the particular type of offending to which the order made under s 11 relates."
The plaintiff accepts the modification of Condition 14 as suggested by the defendant and so nothing more needs to be said about that.
Proposed condition 22 states:
"The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO [i.e. his Department Supervising Officer]."
The defendant contends that this condition is unnecessary. He submits that given his financial expenditure is already the subject of State supervision and government record (he is in the midst of applying for a disability pension and subject to electronic monitoring and a schedule of movements), this condition does nothing to further the objectives of the Act. The latter is a reference to s 3 which provides:
"3 Objects of Act
(1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.
(2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation."
The plaintiff opposes the deletion of proposed condition 22. It submits that financial strain is well understood to be an environmental stressor that can increase a person's risk of reoffending. In the course of oral submissions, counsel for the plaintiff conceded that there was no evidence of this. Nevertheless, it was noted that it is a matter for the DSO to implement this condition in his/her discretion and it could be implemented when financial strain or stress is observed and when the DSO considers it relevant to the defendant's risk. Absent the condition the DSO would be limited in his/her ability to adequately manage the defendant's risk.
I have concluded that this condition should be deleted because of the present lack of evidence to support its inclusion. It will be a matter for the plaintiff to determine whether to pursue its inclusion at the final hearing of the matter.
Proposed condition 24 provides:
"The defendant must not consume alcohol to the extent that his blood alcohol concentration will exceed 0.05 grams of alcohol per 100ml of blood."
The defendant contends that this should be amended because a blood alcohol level of 0.05 is too easily attained. The defendant is said to be a man of smaller stature, perhaps 5'3" in height although not skinny. It was submitted that restricting him to a level of 0.05 would mean his alcohol consumption would have to be limited to one standard drink per hour at any time of the day to ensure compliance. In oral submissions it was contended that the defendant could risk exceeding a 0.05 limit by the consumption of just one schooner of full strength beer. It is submitted that the level should be amended to 0.08.
The plaintiff opposes this amendment. It was submitted that the proposed amendment to a level of 0.08 and the impact of the defendant's "small stature" seemed arbitrary without further evidence. More generally, it was submitted that alcohol is known to disinhibit a person's behaviour and to affect a person's appreciation of their actions and their consequences. It is a factor that can be directly related to a risk of recidivism.
As to the defendant's suggestion of a blood alcohol level of 0.08 being "arbitrary", the same could be said for the plaintiff's suggestion of a level of 0.05. However, setting a limit at either level is similar in terms of the burden placed upon the defendant. The well-known disinhibiting effect of alcohol appears to be a relevant concern. Counsel for the plaintiff referred to the defendant's access to the internet and a concern that there could be repetition of past behaviour in grooming young children online and/or accessing child pornography, either of which may be more likely if he is disinhibited.
Proposed condition 24 should remain as is. This would not preclude the defendant further ventilating the issue at final hearing.
I note that it is agreed that the interim supervision order I make will run from the conclusion of the defendant's present parole period, that is from 10 May 2018.
[3]
Orders
I make the following orders set out in the Short Minutes of Order which will be amended to reflect these determinations. In summary, aside from orders providing for a timetable as to the filing and serving of evidence and submissions, there will be orders that:
1 Pursuant to s 7(4) of the Act:
(a) two qualified psychiatrists, registered psychologists (or a combination of such persons) as agreed between the parties are to conduct examinations of the defendant and are to furnish reports to the Court by 23 May 2018; and,
(b) the defendant is to attend those examinations.
2 Pursuant to s 10A of the Act, the defendant is to be subject to an interim supervision order from midnight on 10 May 2018.
3 Pursuant to s 10C(1) of the Act, the interim supervision order is to be for a period of 28 days unless renewed on further application by the plaintiff or the proceedings are finally determined.
4 Pursuant to s 11 of the Act, the defendant is to comply with the conditions set out in the Schedule annexed to the Short Minutes of Order for the period of the interim supervision order.
5 The proceedings are listed for final hearing on 20 June 2018.
[4]
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Decision last updated: 18 April 2018