State of New South Wales v Cornwall

Supreme Court of NSW|2022-12-07|Before: Ierace J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2022/152258

Judgment

HIS HONOUR: By summons filed on 26 May 2022, the State of New South Wales ("the plaintiff") commenced proceedings against the defendant, seeking certain interim orders as well as final orders for an extended supervision order ("ESO") for a period of two years, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). At that time, the defendant was residing in the community subject to a Commonwealth Recognizance Order ("CRO") that had been imposed as part of a sentence for offences including using a carriage service to access child abuse material, contrary to s 474.22 of the Criminal Code (Cth) ("Commonwealth Code").

The defendant's mental health history

In 1993, when the defendant was aged 38, a forensic psychologist assessed him as having a "serious personality disorder" and being in need of treatment for his "longstanding sexual pathology". The defendant was diagnosed by forensic psychiatrists Olav Nielssen in 2007, and Andrew Ellis in 2008, as having a paraphilia. Forensic psychiatrists Stephen Allnutt and Jeremy O'Dea, who separately assessed the defendant about a week before Dr Nielssen, concluded that he did not have a psychiatric disorder. In his report dated 19 July 2007, Dr Allnutt stated that the defendant: "… does not manifest significant symptoms of a major psychiatric disorder; that is he does not manifest symptoms consistent with a Psychotic, Mood or Anxiety disorder."
Dr O'Dea concluded that the defendant likely had a personality disorder and may have developed a depressive disorder.
I have noted a past suicide attempt by the defendant and a direction by his DSO to take medication that was prescribed to him for a depressive mood disorder. I have also noted that by 2015, his mental health had deteriorated to a point that he was made a correctional patient. One of the forensic reports that was ordered by Beech-Jones J for a final hearing was by forensic psychiatrist Samson Roberts, dated 10 July 2015. Dr Roberts assessed the defendant as follows: "[The defendant's] presentation is reflective of a Personality Disorder Not Otherwise Specified. He gives the impression of a person with antisocial and dependent traits. It is probable that aspects of his personality are based in his below average intellect. Personality represents an enduring pattern of thought and behaviour and is not considered amenable to treatment in the way that other psychiatric pathology may respond to treatment. Having regard for [the defendant's] age and intellect, it is expected that there will be little, if any, progression even with aggressive therapy directed at moderating his personality. [The defendant's] aberrant sexual behaviour is consistent with a diagnosis of Unspecified Paraphilic Disorder. Namely, his sexual behaviour has caused significant impairment but does not fit within the categories of Paraphilia Specified in DSM V. [The defendant's] account of alcohol use in the past reflects an Alcohol Use Disorder in remission. The extent to which remission is sustained as a result of institutionalisation is uncertain and the prognosis of this condition is therefore unclear. It is safe to assume that [the defendant] remains at risk of relapse to alcohol consumption in a pattern that would be considered pathological and which would potentially place him at risk of engaging in offending behaviour or suicidal behaviour. [The defendant's] history of depressive episodes, if his account is considered accurate, is reflective of episodes of Adjustment Disorder with Depressed Mood, rather than a Major Depressive Disorder. Namely, his episodes of low mood have arisen consequent upon environmental factors, rather than arising in the absence of external factors solely by virtue of a constitutional predisposition. It is considered that [the defendant] would be at risk of further episodes of depressive symptomatology in response to adverse circumstances."
Following the defendant's return to custody in October 2019, he expressed suicidal ideation and refused to eat. He was assessed by psychiatrist Gordon Elliott who scheduled him as a mentally ill person pursuant to s 55(3) of the Mental Health (Forensic Provisions) Act, with depressed mood and suicidal behaviour being the key determinants.
In 2020, forensic psychiatrist Richard Furst assessed the defendant as having no indications of thought disorder, cognitive impairment, or psychosis. In addition, he was "not especially depressed or anxious". However, Dr Furst considered that the defendant met the diagnosis for an unspecified paraphilia disorder, a recurrent major depressive disorder and a personality disorder, with the characteristics "borderline, antisocial and avoidant features".

The defendant's risk of committing a serious offence

In his 2020 report, which was tendered in the sentence proceedings before Beckett DCJ, Dr Furst summarised the rehabilitation programs in which the defendant had participated. In early 2008, he participated in a 14 week motivational program designed to prepare offenders for participation in a sex offender's treatment program. Between April and December 2008, he participated in the custody-based intensive treatment ("CUBIT") program. His participation at the time was described as consistently positive. He declined to participate in a custody-based maintenance program again after returning to custody in 2009 or over the following five to six years.
Dr Furst referred to static and dynamic aspects of the defendant's case and concluded as follows: "Having considered those additional actuarial and dynamic factors, I am of the opinion that [the defendant's] risk of re-offending in a sexual manner is significantly higher than the … typical or 'average' male sex offender coming before the Courts in NSW and that he will require ongoing management under ESO provisions when released from custody."

The relevant statutory provisions and principles

Section 7(4) of the Act provides that if, following the preliminary hearing, 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 of the type sought by the plaintiff for the appointment of forensic experts. If the Court is not so satisfied, it must dismiss the application: s 7(5) of the Act.
Accordingly, although this is a preliminary hearing, it is necessary to evaluate the sufficiency of the supporting material to justify the making of an ESO, pursuant to the relevant statutory test. Section 5B of the Act stipulates four prerequisites for the making of an ESO. Subsections 5B(a), (b) and (c) concern aspects of the defendant's status as an inmate or supervised offender in the community. Those subsections are not contested and I am independently satisfied that they have been met.
This leaves the key provision of s 5B(d) for consideration, namely, whether the Court: "… is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order."
Section 5D provides that 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.
Section 9(3) of the Act sets out the matters that the Court must have regard to in determining whether to make an ESO. The effect of s 7(4) is that on an application for an interim supervision order ("ISO"), these matters are also relevant.
I note that s 9(2) of the Act provides that, in determining whether to make an ESO, "the safety of the community must be the paramount consideration of the Supreme Court", consistently with the stated primary object of the Act, which is "the safety and protection of the community": s 3(1). A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).
In making its determination at a preliminary hearing, the Court does not weigh the supporting documentation or predict the result at the final hearing: see Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], in relation to comparable provisions in an earlier version of the Act.
The defendant does not contest that the circumstances warranting an ISO are satisfied; in other words, that it is open to the Court to conclude, pursuant to s 7(4) of the Act and having regard to the test in s 5B(d), that it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
I conclude that I am so satisfied. I note that the significant progress that the defendant appeared to make following his release from custody in mid-2015, for a period of almost four years, was undermined by the discovery of the two sexual offences for which he was sentenced in 2019. It is conceivable that at a final hearing the Court would conclude that a further ESO is warranted in view of that history and the serious consequences of the defendant committing a serious offence, in particular, a serious sexual offence.
I am also of the view that an ISO is necessary. Although the defendant has performed well in the community since his most recent release from custody, it is relevant to note that his most recent sexual offending only came to light due to the application of conditions of his last ESO.

Conditions of the ISO

The parties have used their best endeavours to narrow the areas of dispute as to the conditions of an ISO prior to, during and subsequent to the hearing of the matter on 7 December 2022, for which I am grateful. Certain conditions that were originally proposed have been withdrawn from the plaintiff's proposal for interim conditions. These are proposed conditions 17, 18, 20, 51 and 52. I now consider the conditions that are proposed by the plaintiff that remain in dispute or that warrant some explanation.
I have taken into account certain affidavit material prepared on behalf of the plaintiff that was read at the hearing and reports that were tendered by the plaintiff. The plaintiff relied upon an affidavit of Kelli Grabham, who holds a senior position within the High Risk Offender unit of Community Corrections. The plaintiff tendered a risk assessment report dated 14 March 2022 and a supplementary report dated 31 October 2022, both prepared by Holly Cieplucha; a risk management report dated 31 March 2022 prepared by Jason Saad; and material attached to affidavits of Ellen Southwood dated 7 November 2022 and 30 November 2022, in particular, Offender Integrated Management System case notes concerning the defendant.
I have also read and taken into account an affidavit by the defendant, dated 21 November 2022, in which he expressed concerns with some of his past, current and proposed conditions.

Scheduling

Upon his release from custody on 14 March 2022, the defendant resided in a COSP, which obliged its residents to provide a weekly schedule of movements that required approval. This mirrored a condition of the ESO imposed by the Court of Appeal, which ceased in June 2022. The defendant moved out of the COSP in August 2022. A condition of the CPPO included a direction that he provide a weekly schedule of movements, however, that direction has not been enforced. Accordingly, the defendant has not been required to agree a schedule of weekly movements since August 2022. The scheduling conditions to the ISO are as follows: "5. The defendant is not to be directed to provide a schedule of movements unless the DSO considers it reasonably necessary to address a change in the risk of the defendant committing a serious offence. If so 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. 6. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period. 7. The defendant must not deviate from his approved schedule of movements except in an emergency or with reasonable excuse. 7A. It will not be a breach of Condition 7 if the defendant has a reasonable explanation for the deviation and notifies his DSO of the deviation as soon as practicable."
Condition 5 provides that the defendant will not be subjected to an agreed weekly schedule of movements unless there is a change in the level of risk of him committing a serious offence. If a schedule obligation is activated, any variation by the defendant from the schedule is to be within the ambit of conditions 7 and 7A, which provide him with some latitude if he cannot reasonably comply with the schedule.

A curfew

Condition 9 is as follows: "If directed, the defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by a DSO. It is noted that the defendant is not to be directed to comply with this curfew unless the DSO considers it reasonably necessary to address a change in the risk of the defendant committing a serious offence."
The terms of condition 9 reflect the same considerations that apply to condition 5 concerning scheduling; a curfew direction is only to be imposed if there is an elevation in the level of the defendant's risk of committing a serious offence.

Overnight stays

Proposed conditions 11 and 12 would oblige the defendant to not spend a night at an address other than his approved address or addresses, or allow any person to stay overnight at his approved address or addresses, unless he has the prior approval of a DSO. The defendant proposed alternative conditions that would confine the need for prior DSO approval to circumstances where he would be in the presence of a person or persons under the age of 18 years.
The defendant submitted that the restrictive and counter-social nature of the conditions are not justified by the nature of the risk that is suggested by the past circumstances of the defendant's offending behaviour. The plaintiff relied upon an explanation for the proposed conditions that was provided by Ms Grabham to the effect that the defendant presently has a largely solitary lifestyle and that it would be a significant development if he develops an association or friendship or other relationship resulting in him spending the night at their residence, or for them to stay overnight at his residence. Ms Grabham stated: "If new associations are created a DSO needs to have oversight as to the identity of the associate and the appropriateness of these potential relationships to ensure the safety of all people involved. In some circumstances, a DSO may need to consider whether disclosure of the Defendant's criminal history to the associate is required to ensure their safety. Similarly, understanding the identity of associates with whom the Defendant has a close relationship ensures that a DSO can ensure that the association is not likely to cause an escalation in risk."
I am satisfied that, on an interim basis, there is a need for the conditions as proposed by the plaintiff, although developing such a relationship would be surprising given the defendant's current lifestyle. Whether there is a need for continuing such restrictive conditions, if an ESO is imposed, can be better assessed by the Court with the benefit of updated forensic reports at the final hearing.

Restrictions on places and events

The plaintiff proposed conditions that would permit a DSO to forbid the defendant to visit a specified place or district (proposed condition 15) and oblige him to not attend certain types of venues (for example, playgrounds, libraries, museums, sporting facilities, movies, internet cafes) without prior approval from a DSO (proposed condition 16). The defendant opposed the conditions, submitting that they are regressive in nature and additional to any conditions he is presently subject to. The defendant proposed an alternative condition which would oblige the defendant to not "loiter at or in the immediate vicinity of any place frequented by children", incorporating some examples such as schools and swimming pools.
I am satisfied that there is a need for condition 15, having regard to the defendant's modus operandi in his sexual assault offending. The offences were typically committed in bushland or on weekends in locations that were sparsely attended. If the level of risk becomes elevated, a prohibition on attending such locations, or other locations of concern, is reasonable.
Proposed condition 16 is too restrictive. I will remove some of the proposed types of locations from the list.

Association with persons under the age of 18

The plaintiff proposed a condition (proposed condition 23) that would forbid the defendant from associating with anyone he knows, or should know, to be under the age of 18, without the written permission of a DSO. The condition is opposed by the defendant on the basis that it is unnecessarily more restrictive than his CRO conditions.
I note that the proposed condition is similar to, but more restrictive than, condition 20 of the original ESO. I propose to replace the proposed condition with one which more closely reflects the essence of the original ESO condition, as follows: "The defendant must not associate or be in contact with anyone who he knows, or reasonably should know, is under 18, other than incidental contact in a public place in the course of duties of that minor, unless that contact is approved in advance by a DSO. The DSO may apply conditions to the proposed association or contact."
Proposed condition 24 would permit a DSO to make a non-association order in respect of any specified person or persons. The plaintiff submitted that it is directed only to the risk the defendant poses to children. The defendant proposed an alternative condition that would prevent him from associating with a person he knows to be a convicted child sex offender. I consider that the alternative draft is too narrow. I redraft the proposed condition as follows: "The defendant must not associate with any person or persons specified by a DSO. That power may only be exercised by a DSO in response to a risk of the defendant committing a child sexual assault."
Proposed condition 27 would require the defendant to obtain permission from a DSO before joining or affiliating with a club or organisation. There was no similar condition in the defendant's original ESO and there is none in the current CRO. I will not impose it.

Access to potential weapons

Proposed condition 28 would oblige the defendant to obtain the prior approval of a DSO if he wishes to possess a broadly-defined range of implements that could be used as weapons. The plaintiff proposed the condition because of the defendant's past use of knives to force compliance from his victims. The defendant submitted that the condition is unnecessary and proposed an alternative, which I will adopt with slight modifications. The condition will read as follows: "The defendant must not possess any knives, blades or other weapons or potential weapons outside his residence without a reasonable excuse."

Internet access

The plaintiff proposed conditions 29, 30, 31, 32, 37, 38 and 40 that would allow a DSO to restrict the defendant's access to the internet and social media and provide a DSO with sufficient information to monitor the defendant's use of those services, if warranted. The conditions are opposed on the basis that they are unnecessarily restrictive. An alternative condition is proposed that would oblige the defendant to provide sufficient information about his internet use to enable monitoring, but not inform the DSO of the devices he would use for those purposes and the passcodes to enable the checking of those devices.
Having regard to the circumstances of the defendant's most recent sexual offences which involved the use of his smartphone video camera and downloading of child sexual assault images from the internet via a social media app, I do not think the proposed alternative condition is sufficient. I will impose the conditions proposed by the plaintiff.

Access to pornographic material

The plaintiff proposed condition 42 that would prevent the defendant from accessing stated classifications of restricted media material "or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence". The defendant proposed an alternative condition that he "not access any pornographic material online or by and other means".
I consider that the defendant's proposed alternative condition is unnecessarily broad and vague. It is unnecessary for the defendant to not have access to any pornography and, in any event, what is or is not pornography is a matter upon which reasonable minds may differ. Having regard to the defendant's offending history, access by him to explicit violent sexual images and video involving participants of any age would be concerning. Accordingly, I will impose the condition proposed by the plaintiff.

The defendant changing his name or appearance

Proposed condition 43 would oblige the defendant to obtain prior approval from a DSO before changing his name. I accept a submission by the defendant that it is an offence for him to change his name without prior written approval of the NSW Commissioner of Police. I will not make the proposed condition.
Proposed condition 44 requires that the defendant not change his appearance without the prior approval of a DSO. In my view, it is an unnecessary condition for the defendant's ISO.

Conditions obliging the defendant to undergo therapy, take prescribed medication and permit his health carers to share confidential information

Proposed conditions 47 and 50 oblige the defendant to undergo assessment, counselling, therapy or treatment as directed by a DSO and to take medications as prescribed. Proposed condition 53 would oblige the defendant to immediately inform a DSO if he ceases to take medication as prescribed. Proposed condition 54 would oblige the defendant to authorise his health carers to share information with a DSO.
The defendant proposes alternative conditions to 47 and 50 that specify a degree of consultation with the defendant's treating mental health practitioners. On an interim basis at least, I accept that the alternative wording is appropriate.
Proposed condition 53 is necessary, in my view, given the demonstrated nexus between the defendant's fragile mental health, the apparent importance of him maintaining any mood-stabilising medication that is prescribed and the circumstances of his past breaches of his ESO. I will adopt the defendant's alternative to proposed condition 54, with a modification to enable the alternative to proposed condition 50 to operate effectively.

Orders

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 14 January 2023 for a period of 28 days ("the interim supervision order"). 2. Order pursuant to s 11 of the Act that the defendant is for the period of the interim supervision order to comply with the conditions set out in the Schedule to these orders. 3. Order pursuant to s 7(4) of the Act: 1. That two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) be appointed 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. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. 2. The matter is listed for directions on 2 February 2023.

Conditions of Supervision Cornwall (118127, pdf) 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: 13 January 2023

Crimes (Serious Sex Offenders) Act 2006(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (8)

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Cited By (2)