State of New South Wales v Cornwall

Supreme Court of NSW|2023-04-21|Before: Ierace J, Adams J, Yehia J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2023/74380

Judgment

HIS HONOUR: By summons filed on 26 May 2022, the State of New South Wales ("the plaintiff") purported to commence proceedings against the defendant, seeking certain interim orders as well as final orders for an extended supervision order ("ESO") for a period of 2 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).
On 7 December 2022, the application for interim and certain preliminary orders was heard by me. On 13 January 2023, I made orders, including an interim supervision order (an ISO) for a period of 28 days commencing on 14 January 2023 and for two forensic reports to be furnished to the Court: State of New South Wales v Cornwall (Preliminary) [2023] NSWSC 2.
The final hearing was listed before N Adams J on 6 March 2023. However, both parties came to the view that the summons had been filed prematurely which her Honour accepted, for reasons explained in her Honour's judgment: State of NSW v Cornwall (Preliminary) [2023] NSWSC 278 at [8]-[10]. Her Honour granted leave to the plaintiff to file a fresh summons in Court and proceeded to hear the matter by way of a preliminary (rather than final) hearing. The plaintiff formally tendered the same supporting documentation that had been tendered before me on 7 December 2022. Her Honour reached a conclusion that was consistent with the determinations that I had come to and made orders formally revoking my orders dated 13 January 2023, which had been renewed by Yehia J to take effect from 19 February 2023. Her Honour imposed an ISO, to commence on 6 March 2023 for a period of 28 days, and set a timetable for the parties to file submissions.

The defendant's history of criminal offending "2 The defendant is aged 67. As a juvenile, he committed theft and motor vehicle offences. As an adult in his twenties and early thirties, he was convicted of further driving offences, some of which were serious enough to result in sentences of imprisonment. When aged 19, he was sentenced to 3 months imprisonment for a driving with a PCA offence and driving whilst disqualified. When aged 23, he was sentenced to 6 months imprisonment for driving whilst disqualified."

The index offences "3 The first offences of a sexual nature committed by the defendant occurred when he was between the ages of 36 and 38. On 17 September 1993, he pleaded guilty to six sexual offences and an offence of larceny, which were committed between 13 June 1991 and 1 July 1993. Counts 1, 3, 4 and 6 were counts of sexual intercourse without consent and in circumstances of aggravation contrary to s 61J of the Crimes Act 1900 (NSW). Count 5 alleged that the defendant was armed with a knife with intent to commit an indictable offence, namely, to have sexual intercourse. Count 7 alleged that he had sexual intercourse without consent, contrary to s 61I of the Crimes Act. Count 2 was larceny. 4 Agreed facts were tendered at the sentence hearing, which were to the following effect. In relation to count 1, on 13 June 1991 at around 8am, the defendant grabbed a 26 year old woman as he passed her on a footbridge over the Georges River. He held a knife to her throat, forced her into nearby bushland, forced her to undress to a point of nudity, blindfolded her, forced her to masturbate and fellate him, had penile vaginal intercourse with her and threatened to kill her if she complained to the authorities. He also stole her handbag and $64 in cash, which was the basis of count 2. 5 Counts 3 and 4 occurred four months later. The victims were two girls who were aged 14. While walking together in the grounds of the University of Western Sydney on a Sunday at noon, the defendant grabbed one of the girls and held a knife to her throat, threatening to kill her if the other girl did not do as he instructed. He took them to nearby bushland, forced them to undress to a point of nudity and engage in sexual acts with each other. He then digitally penetrated the vagina of one girl and had cunnilingus and fellatio with both girls. 6 The incident giving rise to count 5 occurred three months after the incident involved in counts 3 and 4. The victim was a 15 year old girl who was in the grounds of the University of Western Sydney on a Sunday afternoon with a friend. The defendant approached them and, when they ran away, chased them. He grabbed the victim's arm while he held a knife, which he pointed towards her. She broke free and made good her escape. 7 Count 6 involved an incident approximately five weeks later. On a weekday at about 8am, the defendant hid and attacked a 13 year old girl who passed him on her way to school. He forced her at knifepoint to a secluded area, instructed her to take off all her clothes and sexually assaulted her in various ways, including by digital penetration of her vagina and forcing her to masturbate and fellate him. 8 The incident underlying count 7 occurred four months later. The defendant attacked an 18 year old woman who was pushing her bicycle along a secluded track. He chased her down, pulled her into grassland and, on threat of strangling her, forced her to undress. He placed his penis in her mouth and forced her to masturbate him. 9 The defendant was sentenced on 6 December 1993, by Viney QC DCJ. He received an overall sentence of imprisonment for 14 years with a minimum term of 10 years. The sentence was backdated to commence on 8 July 1993 and expired on 7 July 2007."

The defendant's history whilst subject to an ESO "10 The defendant served the entirety of his sentence in custody, parole having been refused. By an amended summons filed on 5 July 2007, the Attorney General of New South Wales sought a continuing detention order ('CDO') for a period of 5 years in respect of the defendant, pursuant to the Crimes (Serious Sex Offenders) Act 2006 (NSW), which is the predecessor to the current Act ('the previous Act'). On 28 September 2007, Hall J made an order for a CDO for a period of 8 months: Attorney General for the State of New South Wales v Cornwall [2007] NSWSC 1082. 11 The defendant appealed the order to the Court of Appeal, which set aside the CDO and imposed an ESO for a period of 5 years, to date from 19 December 2007 ('the original ESO'): Cornwall v Attorney General for New South Wales [2007] NSWCA 374. 12 On 21 December 2007, the defendant was charged with failing to comply with the original ESO, contrary to s 12 of the previous Act, which carried a maximum penalty of imprisonment for 2 years. The circumstances of that offence were that a condition of the ESO was that he be subject to electronic monitoring of his whereabouts. On 19 December 2007, which was the day of his release from custody subject to the original ESO, he had removed an electronic bracelet that he wore pursuant to that condition and left his place of residence. On 21 December 2007, he was sighted by an off-duty police officer on a beach. When approached by police, he ran off. He was pursued and arrested, telling police that he had removed the bracelet because he was upset and depressed by his place of residence in the community, which he regarded as similar to being held in prison. On 15 January 2008, he was sentenced to a term of imprisonment of 15 months, backdated to commence on 21 December 2007 and expire on 20 March 2009, with a non-parole period of 9 months that would expire on 20 September 2008. 13 The defendant was released on 20 March 2009. On 24 September 2009, he was charged with three counts of failing to comply with an ESO contrary to s 12 of the previous Act. The breaches of the original ESO underlying the counts were that he went to an unapproved location, he consumed alcohol and he failed to comply with a reasonable direction by his Departmental Supervising Officer ('DSO'). 14 The circumstances of the three counts were as follows. At the time, the defendant resided in a Community Offender Support Program Centre ('COSP'). On that date, he climbed over a barbed wire fence into a neighbouring property. He phoned a support worker and informed him that he was in possession of a bottle of scotch whisky and had a noose around his neck. Police located the defendant in the property in a tree, consuming the whisky from a 750ml bottle that was almost empty, and apparently intoxicated. The defendant attempted to hang himself and was resuscitated by the police officers who then took him to hospital. He was found to have a blood alcohol content of 0.3358g of alcohol per 100ml of blood. Subsequent investigations disclosed that the defendant had not complied with a direction that had been given to him on 2 September 2009 to take certain medication for a diagnosis of a depressive mood state. 15 On 2 October 2009, the defendant was sentenced for the three counts to imprisonment for a period of 20 months, commencing on 24 September 2009 and concluding on 23 May 2011, with a non-parole period of 15 months, expiring on 23 December 2010."

Historical sexual offences "16 On 24 November 2010, while still serving his sentence in prison, the defendant was charged with historical sexual offences, consequent to advances in DNA technology. The allegations were that at Pottsville on 29 September 1989, he had sexual intercourse with a female victim without consent contrary to s 61D(1) of the Crimes Act and that he detained the same person on that date for advantage, namely, to have sexual intercourse with her. He pleaded guilty to both counts and was sentenced on 14 December 2011 in Lismore District Court by Black DCJ, who took into account two further offences on a Form 1, being attempted sexual assault without consent and assault with an act of indecency. 17 All four offences related to the same incident, the circumstances being as follows. While walking one morning from her home in Pottsville via a bush track to the beach, the victim was attacked by the defendant, who was naked. The victim was wearing a swimsuit, which the defendant forcibly removed and used to blindfold her. The ensuing sexual assault involved attempted fellatio, the defendant licking the victim's vagina and penile vaginal intercourse. 18 Judge Black sentenced the defendant to a total sentence of 4 years and 6 months, backdated to commence on 14 December 2010 and expiring on 13 June 2015, with a non-parole period of 3 years and 4 months."

The defendant's further ESO history and post-index offences offending "19 By a summons filed on 5 June 2015, the State of New South Wales sought an interim detention order ("IDO") on the expiration of the defendant's sentence and a CDO by way of final orders. Beech-Jones J (as his Honour then was) refused the application for an IDO but made other orders sought for the preparation of forensic reports for a final hearing: The State of New South Wales v Cornwall [2015] NSWSC 742. Beech-Jones J noted, at [25], that the defendant's mental health had deteriorated whilst in custody: 'Throughout early 2015 [the defendant's] mental condition deteriorated. On 21 April 2015 a psychiatrist Dr Sue Morgans diagnosed [the defendant] with a major depressive disorder with melancholic features. Apparently, he was refusing treatment for depression. It was considered that he was at risk of suicide. [The defendant] was transferred to the Long Bay mental health facility on 28 April 2015. He has remained there since that time and is currently under the care of a psychiatrist ...' 20 At the time of that preliminary hearing, the defendant's status was that of an involuntary patient pursuant to the provisions of the Mental Health Act 2007 (NSW) and the Mental Health (Forensic Provisions) Act 1990 (NSW). He was subject to periodic review by the Mental Health Review Tribunal ('the MHRT'). Beech-Jones J reasoned that the inevitable alternative to an IDO not being imposed was that the defendant would be dealt with as an involuntary patient under the Mental Health Act and, in all the circumstances, an IDO was unnecessary for the protection of the community pending a final hearing. 21 I presume that the State abandoned the proceedings that were commenced by the summons filed on 5 June 2015 for a CDO. 22 Following the expiration of his sentence, the defendant was detained as an involuntary patient. He was released on 10 July 2015 to accommodation in the community. Thereafter, he was subject to the original ESO on 19 December 2007, its operation having been suspended during his periods in custody. 23 On 15 April 2019, the defendant was arrested and charged with further sexual offences. On 3 October 2019, the defendant attended a weekly meeting with his DSO. Police attended as well and requested his smartphone, which he was reluctant to hand over. Eventually he did, and then ran off. In an examination of a download of the contents of his phone, police found incriminating material which gave rise to certain charges. 24 The defendant entered pleas of guilty to three offences that were dealt with summarily in the Local Court. One was a count of wilful and obscene exposure contrary to s 5 of the Summary Offences Act 1988 (NSW). He had filmed himself on his smartphone masturbating on a train in front of a female passenger. The video was part of the download of his phone contents obtained by police. He also pleaded guilty to two counts of failing to comply with an ESO, contrary to s 12 of the Act. By running away when his smartphone was requested, the defendant contravened a condition to attend the weekly meeting with his DSO. Over the following eight days, police attended the address where he was obliged to reside and found that he was not present, contrary to another condition of his original ESO. For the three offences, the defendant received an aggregate sentence of 2 years imprisonment, to commence on 15 October 2019, with a non-parole period of 18 months. 25 A further count of accessing child abuse material using a carriage service, contrary to s 474.22 of the Commonwealth Code, was committed to the District Court for sentence. During the examination of the phone download, police located 112 images of child abuse material. Nineteen of these images depicted prepubescent children involved in a sex act or witnessing a sex act where the image was focused on the child's anal or genital regions. The defendant was sentenced by Beckett DCJ on 7 August 2020 to a sentence of imprisonment for 2 years and 3 months to date from 15 October 2020 and to expire on 14 January 2023. Her Honour imposed a CRO to operate after 1 year and 5 months, being on 14 March 2022. The CRO was made without security in the amount of $1,000 on conditions. The conditions were that the defendant was to be of good behaviour for a period of 12 months from that date, to appear for sentence if called upon to do so and to accept the supervision and guidance of the office of NSW Community Services for a period of 12 months and to obey their reasonable directions. 26 I note that the original ESO expired on 1 June 2022. The expiration of the ESO enlivened the defendant's reporting obligations as a result of him being on the Child Protection Register, as required by s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW). The defendant has been subject to the conditions of the CRO since his release on 14 March 2022 and will remain so until its expiration on 14 March 2023. Those conditions include extensive directions made by the Community Corrections Service that were acknowledged by the defendant by his signature on 3 June 2022. On 5 September 2022, an application was made for an interim Child Protection Prohibition Order ('CPPO') pursuant to the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). On 23 September 2022, an interim CPPO was made. These orders also significantly constrain the defendant's contact and communication with persons under the age of 18 years. 27 Following his most recent release from custody, the defendant did not breach the conditions of his ESO and has not breached the conditions of the CRO or interim CPPO."

The defendant's mental health history "28 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.' 29 Dr O'Dea concluded that the defendant likely had a personality disorder and may have developed a depressive disorder. 30 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 [forensic] 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.' 31 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. 32 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 relevant statutory provisions and principles

Section 5B of the Act relevantly provides as follows: "Part 1A Supervision and detention of high risk offenders … 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if - (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme 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."
As noted, the defendant does not contest that the preconditions of an application for an ESO, which are set out at s 5B(a)-(c) are made out. I am independently satisfied that those preconditions are satisfied.
The term "serious offence", which appears in s 5B(d), is defined in ss 4 and 5 of the Act, as follows: "4 Definitions (1) In this Act: … serious offence means - (a) a serious sex offence, or (b) a serious violence offence. serious sex offence - see section 5 (1). … 5 Definitions of 'serious sex offence' and 'offence of a sexual nature' (1) For the purposes of this Act, a serious sex offence means any of the following offences - (a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where - (i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and (ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises), (a1) an offence under section 61K or 66EA of the Crimes Act 1900 … (2) For the purposes of this Act, an offence of a sexual nature means any of the following offences: … (c) an offence under Division 15 or 15A of Part 3 of the Crimes Act 1900 …"
The reference in s 5B(d) of the Act to "a high degree of probability that the offender poses an unacceptable risk" is qualified by s 5D of the Act, which provides as follows: "5D Determination of risk For the purposes of this Part, the Supreme 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."
I note that, pursuant to ss 5B and 9(1) of the Act, the power to make an ESO is discretionary; the Court may make an order for an ESO if the prerequisites in that section are satisfied.
Pursuant to s 6(3) of the Act, an application for an ESO must be supported by documentation that (a) addresses each of the matters referred to in s 9(3) of the Act; and (b) includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence.
Consequent upon other orders made by N Adams J at the time the current ISO was imposed, reports were furnished to the Court by Dr Carollyne Youssef, forensic psychiatrist, dated 20 February 2023 and 10 April 2023; and by Dr Jeremy O'Dea, forensic psychiatrist, dated 22 February 2023 and 17 April 2023. Accordingly, there was compliance with the latter requirement set out in s 6(3)(b) of the Act.
The Act stipulates objects and a paramount consideration to be taken into account when determining an application for an ESO. They are as follows: "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. … 9 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order - (a) by making an extended supervision order, or (b) by dismissing the application. (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. (2A) (Repealed) (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant - (a) (Repealed) (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence. (4) In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily)."

Section 9(3) of the Act: forensic reports and evidence

The reports that were prepared pursuant to s 7(4) of the Act, in my view, were relevant to all matters identified in s 9(3), except for ss 9(3)(g), (h) and (h1), being matters that I have extracted above from my judgment handed down on 13 January 2023.

Reports of Dr Carollyne Youssef, forensic psychologist

The first report, 20 February 2023

The defendant attended Dr Youssef's rooms for her first assessment of him but left after 20 minutes, stating that he "declined to consent". An hour later, he returned, stating that his solicitor told him that he was "court ordered" to attend. Two hours later, "mid-interview", he walked out after becoming emotional while discussing the death of his mother. Dr Youssef's first report was completed on that basis.
Dr Youssef related the defendant's account of his childhood and adolescence. He is the fifth-born of 13 children. When he was 7 years old, a pattern of sexual abuse began at the hands of an 18 year-old male. It occurred on a regular basis and only ended when the perpetrator moved from the area. After the abuse ceased, the defendant started engaging in problematic sexual behaviour, including "flashing". When the defendant was between the ages of 10 and 16, his mother was physically and emotionally abusive towards him as a result of this behaviour. It stopped when he was 16, but only because "he was better at concealing his exhibitionism".
His mother's wrath had the effect of his siblings distancing themselves from him, thus isolating him. His father was a drinker and was verbally abusive. The defendant felt he was often forgotten or overlooked by his family. His father would tell him that he "didn't belong to the family".
The defendant had two significant relationships before entering custody. The first was with a woman he met when they were both 18 years old. They married when he was aged about 21 and had two children, who are presently aged 50 and 52. The relationship ended when he met his second partner. He was with her for about 3 years, cohabiting for two of those years. They had one child, who is presently aged 40. He said that relationship broke down due to the negative influence of her mother. He remained single for the next decade until he was imprisoned.
The defendant said he was emotionally disconnected in both relationships and had not developed a relationship with his children because he left their lives when they were quite young. His two older children and their mother reside interstate. He does not have contact with any other members of his family or other people generally, although he maintained contact with his youngest sister until three years ago: "we stopped contact not by her choice, but by my choice".
The defendant reported that his "flashing" behaviour continued into adulthood with increasing regularity. Dr Youssef noted that file information reflected a lengthy history of exhibitionism, commencing from the age of 13 years, including reports of him having exposed himself on at least 200 occasions. The defendant did not provide any further information regarding his sexual development and sexual self-regulation in the first interview, as he left prematurely. Dr Youssef noted from file material a history of exhibitionism, voyeuristic behaviour and fetishist interest (stealing women's underwear) which was considered reflective of a diagnosis of paraphilia or a disorder of abnormal sexual interest in a report by a psychologist dated 14 July 2019. As well, she noted that Dr Allnutt had been "unable to rule out an underlying mild sexual sadism".
The defendant reported that from year five, he often truanted. He failed most subjects in primary school and in year seven, excelling only in metalwork. He was asked to repeat year seven and decided, with the school's concurrence, that he would be "exempted from school".
He then engaged in full-time work. He continued to work until his initial incarceration, in various jobs including a machinist, repairing hydraulic jacks and metal spiralling. His longest period of employment was six years, which was in a foundry. He said he was never fired and described having a good work ethic, noting he was always able to secure work. At the time of the interview, he was not working and expressed no interest in being employed, either voluntarily or for payment.
As to his medical history, the defendant reported being knocked unconscious "at least half a dozen times", both in prison and in the community. An acquired brain injury screening questionnaire was administered to him in 2010, following his reported history of head injuries and an anoxia injury due to his attempted hanging. No specific concerns were identified.
As to his mental health history, the defendant said he had been previously diagnosed with depression and frequently has flashbacks to his childhood sexual abuse, his mother's tormenting behaviour and his general isolation throughout his life. In the three years immediately prior to his index offending, he had withdrawn almost completely from social interaction and remained in his room. Dr Youssef noted that file information reflected that he has been diagnosed with antisocial, avoidant and schizoid traits. He has also previously been diagnosed with a Major Depressive Disorder and a cluster B Personality Disorder.
The defendant said he first had suicidal thoughts when he was 12 to 13 years of age. He said he has lost count of the number of times he has seriously attempted to kill himself. Dr Youssef noted file references to past attempts at suicide, the earliest in 1973 when he was aged 18, by attempting to drown himself in a river; he was rescued by bystanders. Dr Youssef referred to the mental health interventions that I canvassed in my earlier judgment.
The defendant reported that he commenced drinking alcohol when he was 14 years old and said that he continued drinking until he was arrested. He denied any other illicit substance use or a history of gambling.
Dr Youssef obtained information from the defendant about his current living situation, noting that he is presently on the aged pension. Until his recent breach of conditions, which has caused him to remain at home except when shopping for groceries, his typical day involved watching television, cleaning and tidying his apartment or playing chess on his phone. His only contact with others now is with his Departmental Supervising Officer (DSO) and his fortnightly appointment with his psychologist.
Dr Youssef asked him about his future plans: "[The defendant] said he 'hate[s] that question ... I don't know I just want to get through this shit first' referring to the current breaches. He later said he would like to get back into fishing and playing golf again as he enjoys those activities. He said that he also really likes gardening however he does not have a garden in his current residence. [The defendant] said he attended a Men's Shed … however he needed to apply for membership and did not do that. He said in any case, with his current restrictions in [that] area due to the recent breaches, he is not sure if he will return. [The defendant] said that he has no other plans to work or engage in any other social activities. He also reported no intention of reconnecting with [his youngest sister] or any of his other siblings." (emphases in original)
The defendant told Dr Youssef that he wants another ESO, because the thought of being on his own without support scares him.
Dr Youssef referred at length to the documentation of the defendant's offences and breaches of conditions, summarising the parts that she considered to be relevant to her assessment. Since the defendant left the interview before she could obtain his accounts of those offences and breaches, she took into account his past explanations from the files, in which he had "denied certain aspects of his offences, minimising the degree of harm perpetrated and the nature and degree of the sexual offending behaviour".
Dr Youssef noted the defendant's compliant behaviour throughout his imprisonment: "Records indicate that during periods of incarceration, [the defendant] remained compliant and there are no documented institutional misconducts or charges. He has largely been managed as a minimum-security inmate (Saad, 31/03/2022). A report in 2015 notes that '[The defendant] has had no Offences in Custody (OIC's) recorded against him across his twenty year history of incarceration. [The defendant's] first noted incident was the removal of his ankle bracelet in December 2007; and that he has apparently struggled to maintain his compliance and behavioural stability since the expiry of his original fixed sentence and the implementation of the [ESO] and subsequent historical charges brought against him'." (emphases in original)
Dr Youssef reviewed the defendant's participation in rehabilitative programs that were intended to address his criminogenic issues. Generally, his progress was quite positive: "[The defendant] had participated in a psychoeducation program, the Sex Offender Psychoeducation (SOPE) on two occasions in 1997 and 2000 at Berrima Correctional Centre. SOPE was a 16-session group-based psychoeducational program designed as a preparatory program to provide information to offenders and to increase their readiness to participate in treatment. SOPE was not considered equivalent to a sexual offending behaviour treatment program. No further information was available as to [the defendant's] participation in these two groups. [The defendant] was first referred to the Custody-based Intensive Treatment program (CUBIT) in 1998. Whilst he was found suitable, he was not eligible due to his classification at the time. [The defendant] declined to consent to engage in the CUBIT program on 6 March 2000 and 19 October 2007. [The defendant] participated in the Preparatory Program (PREP), a readiness program for those convicted of a sexual offence, between 20 February 2008 and 28 March 2008. The PREP is a 14-week motivation and psychoeducational program aimed at increasing motivation and readiness to participate in a sexual offending treatment program. [The defendant] completed the CUBIT program between 2 April 2008 and 15 December 2008. [The defendant's] participation in the CUBIT program was described as 'consistently positive … motivated and willing to address his offending behaviour … . He remained quiet in group but nonetheless he always appeared to listen attentively … never refused to participate in group work … seemingly was able to understand his self-defeating behaviours and gained a high level of insight into how these behaviours affected the outcome of his decisions. Days prior to completion of treatment, [the defendant] decided to cease treatment because he reportedly wanted to remain in treatment until the expiry of his sentence, but was not allowed. He engaged in avoidance behaviour such as isolating from others and not openly discussing with therapeutic staff how he was feeling'. … File information reflects that [the defendant] 'attended three custody-based maintenance sessions aimed at assisting him to generalise skills and knowledge following his completion of the CUBIT program. He was also referred to community-based maintenance at Forensic Psychology Services (FPS) on 19/03/2009. [The defendant] participated in seven individual sessions and eight group-based maintenance sessions between 14/07/2009 and 15/09/2009 before he returned to custody'. Upon his release in 2015, [the defendant] again engaged with FPS for maintenance sessions; 'FPS Progress notes reflect a pattern of consistent attendance with satisfactory engagement in individual maintenance/risk management intervention sessions. The contact, which commenced on 15/07/15, appears to have initially occurred on a weekly basis and decreased in frequency over the course of the order such that he was attending on a six-weekly basis from early 2019. His last contact prior to his return to custody was on 05/09/19. From perusal of the progress notes from these sessions and based on feedback from his FPS therapist, they appeared productive and directed towards areas previously identified as being relevant to [the defendant's] risk. Areas of focus included his health and substance abuse history, negative emotionality, past suicidality and self-injurious behaviour, his unstable work and relationship history, lack of friendships and limited prosocial activities, goal setting, communication and trust issues, in addition to coping, sexual self-regulation and past deviant sexual interests and behaviour. FPS progress notes indicate that he expressed a desire to open up about his offending behaviour and patterns in a bid to understand it (08/02/16). Prior to his return to custody, there was some focus on transitioning off the ESO. He had not reported any significant issues of concern'. [The defendant] said that he continues with FPS maintenance sessions. He said he attends on a fortnightly basis. He said that what he can say to his therapist is very limited as he is aware that the information is relayed back to ESO team, and he cannot be open about what is going on for him; 'It's alright [but] I don't reveal too much or talk too much'. [The defendant] said he has seen many psychologists over the years through CSNSW and he feels that he needs to be guarded with them as the information is relayed to others and he feels at times it can be used against him; 'once they get up on the stand, they say something else'." (references to source document omitted; emphases in original)
Dr Youssef reviewed the defendant's progress in the community, which was also encouraging: "[The defendant's] response to supervision since his recent release has been positive and progress in how he deals with setbacks has been noted. As a result, he was recommended for progression to Stage 3 monitoring in August 2022, which includes the removal of a schedule. According to OIMS Case notes, whilst [the defendant] appears to be largely compliant with his conditions, his interactions with supervising staff have been strained and he has been documented as being guarded, distrusting, brief and at times non-communicative; '[The defendant] did not have any eye contact …. Provided one work [sic] answers'; 'appears agitated and tense when challenging on anything … difficult to engage'; 'mostly non-verbal … difficult to engage'; '[The defendant] was largely non-verbal throughout'. [The defendant] reported annoyance at his current DSO as he feels that after he made some comments to him in passing, he was arrested on the current breaches of his CPPO. He said he feels that he cannot say anything now and he feels he cannot associate with anyone either because he could be in breach." (emphases in original)
Dr Youssef administered psychological test tools to assist her in assessing the defendant's level of risk of reoffending. As to his risk of sexual re-offending, she administered an empirical actuarial risk assessment tool of static risk factors (the STATIC-99R), which Dr Youssef considered to have "moderate predictive accuracy". The defendant's score placed him in the "above average" category of sexual recidivism within five years. Dr Youssef also administered the STABLE-2007, which assists in the assessment of stable dynamic risk factors. His rating was "high", which when considered with the STATIC-99R result, produced a composite assessment of being in the "above average" category of risk of committing a sexual offence.
Dr Youssef administered the Risk of Sexual Violence Protocol (RSVP-V2) and the Structured Assessment of Protective Factors for Violence Risk - Sexual Offence Version (SAPROF-SO). She summarised his level of risk and scenarios that may lead to reoffending as follows: "Based on the information collected during interview, file review and risk assessments, a risk rating reflective of an above average number of outstanding factors adequately reflects [the defendant's] needs, at present. This suggests that his risk score placing him in the Above Average category for recidivism on the Static-99R is an accurate reflection of his risk of re-offending. Particularly salient dynamic risk factors identified for [the defendant] include deficits in general self-regulation (e.g., poor coping skills, negative emotionality, poor problem-solving); intimacy deficits, demonstrated by difficulties in relationships, general suspicion, and a complete avoidance of interpersonal attachments; lack of personal prosocial supports; and limited insight regarding internal processes (i.e., thoughts, emotions). Further, [the defendant's] assessment of protective factors showed very few protective factors as such he would benefit from strengthening these areas. [The defendant] requires support and intervention to enhance other areas that can be deemed protective for him, such as personally meaningful and prosocial supports. … Overall, the factors most likely to provide an exponential escalation in [the defendant's] risk of reoffending include a combination of several of the following; substance use; victim access; poor problem-solving; negative emotional arousal; sexual preoccupation and sexual interest/desire; and interpersonal difficulties. Like most people who offend, [the defendant's] history does not suggest that he would sexually act out at every opportunity. There are likely to be instances where [the defendant] shows better judgement, or his offence cycle is interrupted by an external factor. Risk is best considered in contextual terms rather than conceptualised purely as constituted by individual deviancy. Thus, an adequate risk management plan would need to consider an individual's particular lifestyle and environment at a given point in time."
Dr Youssef diagnosed the defendant as meeting the diagnostic criteria for a Complex PTSD (CPTSD). She said: "Whilst CPTSD may not be causative of [the defendant's] offending, it is indirectly related by way of preventing him from having fulfilling relationships with others due to his distrust and contributes to his depression, which can lead to maladaptive coping that involves sexual offending behaviour. It is strongly recommended that [the defendant] address his outstanding trauma(s) as without intervention, he will likely continue to experience marked emotional dysregulation and hyperarousal and as such, will impact on his responsivity. It is recommended that any intervention to address [the defendant's] trauma be undertaken by a specialist psychologist in the community, and [the defendant] may be suitable for specialised intervention such as Eye Movement Desensitization and Reprocessing (EMDR) therapy in addition to a longer-term psychotherapeutic approach, such as Schema Therapy."
I propose to make a recommendation that the authorities consider Dr Youssef's recommendation.
Dr Youssef found that the defendant met the diagnostic criteria for a Persistent Depressive Disorder (early onset, with persistent major depressive episode, severe; PDD), which, she said: "… can contribute to a sense of emotional collapse, isolation and as such can predispose [the defendant] to seek solace or self- regulation in less than helpful ways which can inadvertently increase his risk."
Dr Youssef found that the defendant met the criteria for an Avoidant Personality Disorder (APD) and an Exhibitionistic Disorder. She noted: "Paraphilias do increase the risk for sexual offending behaviour and therefore can increase [the defendant's] risk of committing a further sexual offence if they are not managed and remain current."
Dr Youssef also assessed the defendant as meeting the criteria for an Alcohol Use Disorder (in sustained remission).
Dr Youssef concluded that, in her opinion, the defendant poses a risk of committing a further serious offence as defined in the Act, and that it can be managed in the community. She advised that it would be best managed within a supportive and multidisciplinary staged approach, aiming towards the reduction of restrictions and monitoring over a period of at least 18 months.

The second report, 10 April 2023

The defendant was assessed again on 31 March 2023, but again declined to answer questions concerning his sexual development, psychosexual history, his offences and breaches, saying there was "enough information" on file and he became upset when he had to think about the past. He said that, following the earlier interview, police had taken him to a hospital mental health unit, where he stayed for a few days.
Dr Youssef stated that her opinions, as expressed in her earlier report, remained unchanged.

Reports of Dr Jeremy O'Dea, forensic psychiatrist

The defendant refused to attend Dr O'Dea's rooms to be assessed by way of preparation for his report. As noted earlier, Dr O'Dea had personally assessed the defendant in 2007 for reports that were tendered to this Court on the State's first application, for a CDO. However, the defendant did allow Dr O'Dea to assess him subsequently for about 90 minutes, which contributed to Dr O'Dea's second report.

The first report, 22 February 2023

In a necessarily brief report, Dr O'Dea reviewed the file material in relation to the defendant's breaches of his ESO in December 2007 and September 2009, his earlier and more recent sex offences and his progress since his release from custody on 14 March 2022.
Dr O'Dea stated that since he had not had the opportunity to review the defendant in person since 2007, he was not in a position to provide a definitive opinion regarding his psychiatric diagnostic progress since that time, his current psychiatric status, risk profile or risk management needs. He referred to past diagnoses which were in the file material provided to him, including a Paraphilia Disorder (exhibitionism and voyeurism) since his teenage years, a Major Depressive Disorder and past diagnoses of Alcohol Use Disorder. Dr O'Dea stated that although there have been no further reported specific or significant problems with alcohol abuse or illicit substance use in recent years, the defendant should remain totally abstinent from alcohol and illicit substance use in the community in the long-term, in order to manage his risk of relapse of his depressive disorder and of further sex offending. Dr O'Dea also considered that the defendant may meet the criteria for a Personality Disorder with antisocial and avoidant traits.
On the basis of the defendant's past offending, Dr O'Dea opined that: "… it would seem reasonable to assume that he has a significant risk of engaging in further sex offending behaviours in the community in the long-term, including committing a further serious offence, as defined in [the Act]."
Dr O'Dea noted the various risk assessment tools that have been previously administered to the defendant and their results which supported his conclusion as to the defendant's level of risk which, he thought, could be suitably managed by an ESO. Having regard to the defendant's level of risk and its likely duration, he was of the view that an ESO of "at least five years duration" was appropriate.

The second report, 17 April 2023

The second report was also brief. Dr O'Dea said that during his interview of the defendant on 6 April 2023, the defendant displayed limited insight into his sex offending behaviours and little remorse or contrition. The defendant declined to talk about his past or his family or his history of sex offending. Dr O'Dea obtained some information from the defendant about his current situation in the community and the services he was receiving.
Dr O'Dea diagnosed the defendant as having a Major Depressive Disorder with a differential diagnosis of a Persistent Depressive Disorder (or chronic relapsing depression) in the context of a vulnerable personality with antisocial and avoidant traits, and limited coping skills under stress. Either of those diagnoses would require active, assertive and ongoing psychiatric treatment, including in the community in the long term. Dr O'Dea considered that the defendant's depressive disorder appeared to be under adequate control.
Dr O'Dea expressed the view that a relapse of the depressive disorder may elevate the risk of the defendant engaging in further sex offending behaviours, including committing a further serious sex offence as defined in the Act. However, ongoing supervision and community psychiatric treatment would likely mitigate that risk.

A risk assessment report

A risk assessment report by Dr Richard Parker, who is a senior psychologist in the Serious Offenders Unit of Corrective Services, was tendered. The report is dated 14 March 2022.
Dr Parker comprehensively reviewed the material generated by the defendant's offences and his incarceration by Corrective Services, including past psychiatric and psychological assessments generally, and assessments of his risk of reoffending, specifically. Dr Parker attempted to interview the defendant on 4 March 2023, but he declined to participate.
Dr Parker concluded as follows: "[The defendant] has breached the conditions of the [ESO] on multiple occasions, incurring further periods of incarceration. He has also been convicted of further sexual offences. He has not maintained connection with any of his former familial supports since his return to custody, rendering him socially isolated and without any significant social supports. Without the professional supports available to him whilst on an ESO, it is anticipated that he may regress to his former maladaptive coping mechanisms, which may involve further sexual offending. … The goal of any ongoing case management would be to encourage the development and maintenance of a stable and sustainable lifestyle, so that newly formed habits can be maintained even when [the defendant] is not under any form of legal restraint. … Whilst [the defendant] has demonstrated the ability to live [in] the community for a period of time offence free, his destabilisation at the end of his [ESO] and subsequent sexual offending, seemingly without warning, is cause for concern. Whether this risk would be considered 'unacceptable' in the context of [the Act] is a matter to be determined by the Court."

A risk management report

A risk management report, dated 5 April 2022, was prepared by Jason Saad, a Community Corrections Officer with the Metropolitan Extended Supervision Team, and endorsed by Kelli Grabham, whose position is described as a High Risk Offender Applications and Operational Guidance Officer. The purpose of the report is to inform the Court of the extent to which the defendant can reasonably and practicably be managed in the community by Corrective Services. It drew on the assessment by Dr Parker in the risk assessment report to formulate a proposal of conditions that would apply to the defendant pursuant to an ESO, including electronic monitoring. As to supervision, Ms Grabham proposed: "[The defendant] would have weekly contact with his Departmental Supervising Officer and in addition, receive unannounced home visits on an unscheduled (minimum monthly) basis. The NSW Police [ESO] Investigation Team would also monitor [the defendant's] behaviour in the community through covert observation and also face-to-face contact to assess his compliance with his order conditions. Further, [the defendant's] case plan will include behavioural change exercises derived from the Practice Guide to Intervention (PGI). These exercises will be aimed at addressing his criminogenic risk/needs. [The defendant's] case plan will be reviewed every two months to ensure it continues to be relevant to his risks and reflective of his progress. The case plan is closely informed by the Risk Assessment Report, and would receive input from his treating psychologist and other relevant stakeholders, as well as his supports in the community."

An affidavit by the defendant

An affidavit by the defendant dated 21 November 2022 was read at the hearing. The defendant described the stress that he endured consequent to his scheduling obligations and the electronic monitoring of his movements, prior to August 2022. Since that time, he has not been subject to scheduling, although he continued to be monitored, which was difficult.

Finding as to s 5B(d) of the Act

In the terms of s 5B(d) of the Act, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. I decline to exercise the discretion made available by ss 5B and 9(1) to not make an ESO.
As to the length of the ESO, I agree with Dr Youssef's reasons for concluding that the minimum appropriate period of an ESO is 18 months. There remains therapeutic work to be done with the defendant, to minimise his level of risk to an acceptable level. In determining the necessary length of the ESO, a consideration of significant weight is the defendant's continuing openness to receiving professional help. The minimal length also recognises that there is a pathway to the State relaxing its level of control over the defendant which involves the defendant himself taking more responsibility for fashioning a law-abiding life back in the broader community without the support that he presently receives from the ESO team.
My determination of the appropriate length of the ESO is quite at odds with the opinion of Dr O'Shea. My reasons for favouring Dr Youssef's opinion in that regard are essentially my attraction to the reasoning of Dr Youssef as she meticulously assessed the material as to the level of risk of serious reoffending posed by the defendant together with the factors tending towards a conclusion that he was on track to continue the progress he has made to date, within the prison system and in the broader community.

The Conditions of the ESO

To the credit of the defendant and the legal representatives of the parties, these have been agreed. Accordingly, I make the following orders.

Orders

I make the following orders: 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) order that the defendant be subject to an extended supervision order ("the extended supervision order") for a period of 18 months from the date of this order; 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the attached Schedule; and 3. Access to the 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.

Recommendation

I request the plaintiff convey to the relevant authorities the report of Dr Carollyne Youssef dated 20 February 2023 and draw to their attention the recommendations at p 38 concerning the provision of certain therapies by a community-based specialist psychologist, which are also set out at [38] of this judgment.

Schedule of Conditions of Supervision Cornwall (113094, 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: 26 May 2023

Crimes (Serious Sex Offenders) Act 2006(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (5)