State of New South Wales v Daniel Anthony McQuilton - [2018] NSWSC 1752 - NSWSC 2018 case summary — Zoe

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State of New South Wales v Daniel Anthony McQuilton

[2018] NSWSC 1752

Supreme Court of NSW|2018-11-07|Before: Wilson J, Hulme J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-11-07

Before

Wilson J, Hulme J

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

Judgment

HER HONOUR: On 6 March 2009 the defendant, Daniel Anthony McQuilton, was sentenced to a term of 5 years and 3 months imprisonment, having been convicted of an offence of aggravated sexual assault, contrary to s 61J of the Crimes Act 1900 (NSW). Four days before the expiration of that sentence, on 31 October 2013, an interim supervision order was imposed upon the defendant by this Court, upon the application of the plaintiff, the State of New South Wales. A final extended supervision order ("ESO") was made by R A Hulme J on 24 January 2014, for a period of 2 years and 6 months: State of New South Wales v McQuilton [2014] NSWSC 11 ("the 2014 decision"). That order will expire on 16 November 2018, its term having been extended by operation of s 10(2) of the Act, as a consequence of the defendant's occasional imprisonment following breaches of the order.
By summons filed on 17 October 2018, the State seeks the imposition upon the defendant of an ESO for a period of 18 months, pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). In the interim, prior to the final hearing of the State's application, the Court has been asked to make orders to permit the defendant to be examined by two appropriately qualified professionals who would furnish reports of those examinations to the Court (s 7(4) of the Act), and to subject the defendant to an interim supervision order ("ISO"), pursuant to s 10A.
The defendant opposes any order being made or, if it is, he opposes any increase in the stringency of conditions imposed upon him, arguing that there should be no alteration of conditions currently in place until the Court has the benefit of up to date expert evidence. There is no dispute that the application meets the threshold requirements: the defendant is a "supervised offender" within the meaning of the Act, and the State's application complies with s 6 of the Act.
Orders and reasons were reserved until today.

[3]

Criminal History

Since the defendant was before the Court for the earlier proceedings under the Act, he has attracted a number of criminal convictions, adding to that entered in 2009 for aggravated sexual assault. With the exception of some offences from 2014, the most serious of which are for assault with intent to take a motor vehicle and causing a police pursuit, all of the entries since the expiration on 4 November 2013 of the sentence for the index offence have been offences of failing to comply with an extended supervision order, contrary to s 12 of the Act.
The defendant has entries against him for offences of that nature committed on 30 December 2013, 16 April 2014 (3 counts), 10 October 2015 (6 counts), September 2016 (2 counts), 16 November 2016, and May to August 2018. Each of the convictions have resulted in a term of imprisonment being imposed upon the defendant, with the most recent offence seeing the defendant sentenced to 7 months imprisonment, with 2 months of that term fixed as the non-parole period. The non-parole period expired on 8 October 2018, and the total term will expire on 8 March 2019. The ratio of sentence suggests that a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) 1999 (NSW) was made by the sentencing magistrate.
The first of the breaches, that of 30 December 2013, occurred at a time when the decision handed down by R A Hulme J on 24 January 2014 was reserved, and an interim order was in force. The defendant removed the electronic monitoring device which he had been required to wear, and left it buried under a tree in Hyde Park in Sydney. The following day at about 5.45am the defendant was found in the enclosed grounds of a private boys' school in the eastern suburbs of Sydney in a state of intoxication. Also found in the school grounds was a pair of men's underpants, a set of keys, a pair of scissors, and a bottle of whiskey that was almost empty. Upon being searched at Maroubra Police Station, the defendant was found not to be wearing underpants. The defendant told police that he had used the scissors to cut the electronic device from his ankle. The defendant was sentenced to a short term of imprisonment for the breach of the interim order.
On 16 April 2014 the defendant again removed the electronic monitoring device that he was required to wear from his person and discarded it. He also failed to notify his ESO supervisor of a change to his schedule, and breached a curfew direction that had been imposed upon him as part of the ESO. He was contacted by both ESO supervising staff and police but refused to return to his accommodation or advise the authorities of his whereabouts. The offences relating to the theft of a car and police pursuit occurred in this context, with the defendant absconding to Victoria, and crashing the stolen car. Further short terms of imprisonment followed, by way of sentence for these breaches.
On 10 October 2015 the defendant was again in breach of the ESO, by failing to comply with a curfew to which he was subject; failing to comply with his schedule by attending a location he was not approved to be at (a TAFE College); and by tampering with the electronic monitoring device he was required to wear, causing damage to it. Further, he lied to his supervisor; gambled after having received a written warning directing him not to do so; and accessed and kept pornographic material on his mobile telephone contrary to a written direction. Concurrent sentences of 9 months imprisonment, with a NPP of 6 months, were imposed.
On 29 September 2016 the defendant was again in breach of the ESO, by failing to advise his supervisor that he had wi-fi access to the internet, and by downloading and keeping pornography on his computer. Concurrent sentences of one month were imposed upon conviction for those offences.
On 16 November 2016 the defendant breached the ESO by deviating from his approved schedule. This occurred against a background of a warning having been given to him for a deviation a week or so before, when the defendant told his supervisors he would do what he wanted. The penalty for this offence was a 3 month term of imprisonment.
The most recent breach occurred over a number of months between 16 May 2018 and 3 August 2018, and involved the defendant repeatedly accessing and viewing pornographic material. On 7 August 2018 the defendant told an officer with Forensic Psychology Services that he had been looking at pornography over a nine to ten month period, as frequently as 5 times each week, and for 1 to 2 hours on each occasion. Examination of the defendant's telephone by police confirmed that he had accessed pornography via the internet. This was in contravention of the ESO. As noted at [6], a further term of imprisonment was imposed. The defendant is currently subject to parole with respect to that sentence.

[7]

Dr Richard Parker

The most recent psychiatric or psychological evidence is from Dr Richard Parker, psychologist, who provided an Updated Risk Management Report concerning the defendant on 16 October 2018. Dr Parker's report is found at tab 4 of the annexure Exhibit JF-1 to the affidavit of Johanna Fisher of 17 October 2018.
Dr Parker is employed as a Senior Psychologist within the Serious Offenders Assessment Unit of Corrective Services NSW. The opinions given and recommendations made in his report are supported by Dr Cherice Cieplucha, Chief Psychologist with the Risk Management Programs Unit of Corrective Services NSW.
In making his recommendations, Dr Parker relied on an interview conducted with the defendant on 22 December 2017, and a review of relevant documentation supplied to him. He obtained a psychosocial and relationship history from the defendant, and from his review of the documentary material.
The defendant is the elder of two children born to parents who separated when the defendant was aged 13 years. Thereafter, the defendant was raised by his mother. He stated that he had never experienced abuse or neglect, but noted that his father's reckless gambling had necessitated the sale of their family home and, as a consequence, he had lost respect for his father and become anti-social and depressed.
The defendant engaged in fights while at school and was suspended on several occasions. His Year 10 studies were characterised by regular truancy, and he ceased to attend school at the end of Year 11. Thereafter, he struggled to maintain stable employment, starting and later withdrawing from an apprenticeship. Dr Parker noted a similar pattern of casual, intermittent employment since his release from custody on an ESO.
The defendant was incarcerated at 21 years of age. He is now aged 30 years. He has thus had limited opportunity to establish stable, intimate relationships and reportedly struggled with girlfriends. After he ended the longest relationship he had, and subsequently tried and failed to repair it, he became angry and socially isolated - factors which Dr Parker considered to be instrumental in the commission of the index offence.
Since his release from custody, the defendant has had two relationships, the first of which lasted for about 15 months; the second of which commenced in February 2017 and is ongoing. The defendant has one six month old child born of this relationship.
Dr Parker canvassed the defendant's response to custodial and community based supervision. Over the course of his initial period in custody from 5 August 2008 to 20 July 2012, the defendant received seven institutional misconduct charges. His behaviour was otherwise considered positive, though with some indications of a poor work ethic. Since 2012, the defendant has had no recorded misconduct charges in custody.
Within two months of his release to parole, on 20 July 2012, the defendant began to demonstrate poor commitment to job placements and training courses established through Corrective Services. He also started to show resistance to attending appointments with recommended health practitioners and was formally directed to see a departmental senior psychologist.
By January 2013, the defendant had stopped taking his psychotropic medication and had disclosed thoughts of hurting young females. Consequently, his parole was revoked and he was returned to custody on 12 January 2013.
On 5 November 2013, the defendant was released on an Interim Supervision Order, followed by the ESO made by R A Hulme J. Within a few weeks, however, the defendant was under serious financial pressure because of reckless gambling - a habit that would become a recurrent feature of his supervision, and one that is regarded as problematic.
In total, the defendant has breached his supervision orders on five occasions, involving a total of 14 offences, the details of which were canvassed by Dr Parker in his report.
The defendant enjoyed a period of relative stability between February 2017 and early 2018, during which he resided in private rental accommodation with his partner, benefited from the supervision and support of his mother, maintained relatively constant employment, and engaged with treatment activities to address his sexual offending and gambling habit.
By March 2018, however, the defendant had begun to exhibit signs of psychological and financial stress following the birth of his son. Concern was also noted that he may have begun to exhibit features of schizophrenia.
On 9 August 2018, the defendant disclosed that he had been viewing pornography and he was arrested and charged with breaching his ESO, this being the most recent offence. At interview, he confirmed that he had in fact been viewing pornography prior to the birth of his son, admitting that while this was initially non-problematic, it had gradually become a means of escapism from his various stresses.
The defendant denied any use of illicit substances. He did note, however, that prior to his index offence, he had consumed "half a bottle of butterscotch schnapps" (approximately five standard drinks), leading Dr Parker to suggest this "may have contributed to the index offence, probably through the disinhibiting effects of alcohol". This said, no evidence of problematic alcohol consumption has been detected whilst the defendant has been on parole or under community supervision.
The defendant's father had a serious gambling problem, which led to the breakup of his marriage, and the defendant too developed a habit of problematic gambling prior to the commission of the index offence. This problem has at times caused significant financial stress, and one breach offence. His last instance of recorded gambling was on 12 May 2017.
The conditions of the defendant's ESO prohibit him from viewing pornography and the defendant has acknowledged that this is a risk factor for him. Notwithstanding, the defendant admitted to viewing pornography on 17 June 2015 and was issued a warning. There have been two breach offences relevant to the defendant's use of pornography.
Dr Parker summarised the historical material relating to the defendant's psychiatric condition, although he noted that, despite multiple assessments, there has been no clear diagnosis of it. He has been diagnosed with Avoidant Personality Disorder (2013), and has been considered by various doctors as "clearly" (Dr Roberts, 30/11/13), "highly likely" (Dr Ellis, 30/11/13) or "likely" (Dr Paisley, 2/6/2018) to have schizophrenia.
The defendant's past symptoms have included paranoia, depression, low self-esteem, suicidal ideation, anxiety, self-harming behaviours, and sexually sadistic tendencies.
In early 2018, the defendant was prescribed antipsychotic and antidepressant medication and appeared stable, until he experienced a range of stressors during the course of this year. Dr Parker noted that it was difficult to assess the defendant's compliance with medication, but likely that he ceased taking it soon after his release from custody on 15 February 2018.
As to sexual deviance, Dr Parker reviewed earlier conclusions, noting that, in 2013, Dr Ellis considered that the defendant met the Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria for Sexual Sadism Disorder.
Dr Parker takes a different view, opining that an examination of the defendant's past and current offences reveals that, at most, he meets the criteria for the following two items on that scale: 1. Offender exercises power/control/domination over the victim; and 2. Offender is sexually aroused by the act.
Consequently, Dr Parker considered that the defendant "does not meet this criteria for sexual sadism". He thought that, "the fantasies [the defendant] has disclosed may be more represented of his underlying psychiatric issues, than any actual sexual attraction to sadistic behaviours" [and that] "In [the defendant's] case, while he acted upon his fantasies and attempted to rape a woman, there is nothing in the Police Facts which suggests any sadistic elements, over and above those than constitute rape in the first place. Hence, while these fantasies may be a motivator for committing a sexual offence, they need to be balanced against the restraints against acting up the fantasies."

[8]

Risk Assessment

The defendant was assessed on 23 December 2011 using the Static Risk Factors Actuarial Assessment - Sex Offending (STATIC-99R) as having an "above average" (formerly classified as "moderate-high") risk of sexual recidivism, relative to other male sexual offenders.
Using the STATIC-99R and STATIC-2002R predictive tools, the defendant was assessed as having a risk of sexual recidivism compared with other offenders in his risk category of between 18% and 24.8% over five years, and between 26.7% and 38% over ten years.
The defendant's score, compared with other adult male sex offenders, was in the 88th percentile, meaning that roughly 85% of offenders scored lower than the defendant, and 8% scored higher.
The recidivism rate of individuals convicted or charged with sexual offences with the same score as the defendant would be expected to be 2.7 times higher than the "typical" sexual offender.
The defendant was assessed by Dr Parker on 4 September 2018 using the Dynamic Risk Factors Actuarial Assessment - Sexual Offending (STABLE-2007) as being in the medium risk category for sexual reoffending relative to other male sexual offenders, reflecting his identified criminogenic needs.
Combining the above assessments to generate an "overall risk assessment", the defendant was determined to have a profile of "above average risk".
Dr Parker also assessed the defendant using the Violence Risk Appraisal Guide - Revised (VRAG-R) assessment tool, specifically developed to assess the risk of violence for serious offenders, on 14 August 2018. The defendant's score was equal to, or higher than, the score of at least 91% of the construction sample, and placed him in the ninth of nine "bins". It was noted that 76% of violent offenders with a similar score reoffended violently within five years; 87% reoffended within twelve years.
Dr Parker considered the following criminogenic needs to be dynamic risk factors for the defendant and, consequently, targets for change: attitudes; self-regulation; and intimacy deficits. With regards to attitudes, Dr Parker referred to the defendant's reported sense of entitlement and lack of empathy for his victim, including his belief that people were like "creatures who had to be dealt with carefully, otherwise they would manipulate you", and his experience of "systematised persecutory delusions".
Dr Parker noted that in 2013, the defendant was reported as having expressed the belief that women, rather than being people with personalities, were physical and sexual creatures "in a primitive sort of sense". However, Dr Parker noted that at interview, there was no evidence to suggest this implicit belief was still active.
In relation to criminogenic attitudes relevant to the defendant, Dr Parker also made mention of the belief that "women are unknowable or dangerous", and opined that given the defendant's difficulties in relationships, this theory "may be operative, at least to some degree".
Dr Parker also made reference to the concept of self-regulation, and considered that the defendant appeared to be "more willing to delay gratification at times when he is relatively stable". He noted that while the defendant "has breached his ESO on numerous occasions, there is no suggestion he has come close to actually committing a sexual offence", therefore suggesting that "his personal restraints against such an offence are higher than acts that breach his ESO".
Dr Parker noted an occasion in 2015 in one of the defendants "low points", when the defendant left several voice messages for his psychologist in which he talked about rape or murder fantasies, and stated that he "had two options…to give in to his fantasies [or] to kill himself". Dr Parker considered that, "This suggests that [the defendant's] fantasies are ego dystonic, with personal beliefs about the wrongness of harming others being a restraint against acting on these fantasies."
Dr Parker considered that evidence of the defendant's delay in disclosing his pornography use with Correctives staff suggested a presence of "shame". He also considered that the defendant's mental health, while not itself a "robust predictor of sexual offending", may play an indirect role through "creating distance and instability in his relationships, employment and social activities".
Dr Parker concluded that if the defendant were to commit a further serious offence, it would likely be predicated by a collapse of current "protective factors" in his life, such as the breakdown of his relationship, losing access to his child, a withdrawal from employment, the deterioration of his mental health or non-compliance with medication.

[9]

Risk Management Report of Ms Aubrey Lucas

Also before the court at tab 6 of Exhibit JF-1 was a Risk Management Report dated 4 October 2018, prepared by Ms Aubrey Lucas, a Community Corrections Officer, and endorsed by Ms Janelle Farroway. The report is directed to meet the requirements of s9(3)(d1) and 17(4)(d2) of the Act.
In preparing the report, Ms Lucas conducted an interview with the defendant, had telephone contact with his partner and mother, telephone contact with a Justice Health Mental Health Nurse at Parklea Correctional Centre, and with a Forensic Psychology Service ("FPS") psychologist, Suzanna Dumasia. She also considered Dr Parker's report, and had regard to other documentary material supplied to her.
In the report, Ms Lucas canvassed the defendant's prior contact with and management by Community Corrections, from February 2009. In the initial period following his release on supervised parole on 20 July 2012, the defendant reportedly responded positively to supervision. After a few months, however, concerns regarding his engagement were noted and, in January 2013, he ceased his mental health medication, resulting in the revocation of his parole and his return to custody.
The defendant served the balance of his parole in custody and was released on 5 November 2013 on an ISO, and was subject to electronic monitoring. She referred to the defendant's history of breaching the order, as noted above.
Ms Lucas made reference to the period of relative stability enjoyed by the defendant between early 2017 and March 2018, which she attributed to the support of his mother, the acquisition of stable rental accommodation, his entry into a relationship, and his maintenance of casual employment. She also noted that the defendant engaged with ongoing sex offending treatment (via FPS) and gambling counselling during this period.
In August 2018, the defendant admitted having viewed pornography, proceedings for the most recent breach offence followed.
Ms Lucas reported that the defendant's mother is supportive of her son, maintained regular telephone contact with him when he was in custody, and continues to provide financial support to him and his family.
Likewise, the defendant's partner remains supportive and stated that she had visited the defendant in custody and that they have discussed future plans as a family. She advised that her particular concern for the defendant post-release was that he receive support in relation to his mental health - a plan with which he reportedly agreed.
During the interview on 6 September 2018, (when he was still in custody) the defendant expressed to Ms Lucas a wish to return to his partner and infant child and reside at their premises in the Enfield area.
He stated that he was considering reengagement with Gamblers Anonymous upon his release, as he had previously found this service beneficial. He also indicated that he had engaged with sex-offending treatment through the FPS prior to his most recent period of incarceration, and that he envisaged continuing with such counselling once in the community.
At interview, the defendant also confirmed that he was taking medication for schizophrenia and depression.
Ms Lucas detailed the strategies put in place as part of the defendant's Risk Management Plan upon release. These included weekly face-to-face contact with the defendant; interviews focussed on exploring his attitude to women, self-regulation, intimate and non-intimate relationships, alcohol use and gambling; and weekly attendance and participation with Forensic Psychology Services and Gambling Anonymous services.
Ms Lucas noted that unannounced and scheduled field visits would be conducted at the defendant's home, work place, or other locations at least once per month, with a view to monitoring the defendant's stress levels, mental health, and relationship dynamics. Searches of the defendant's mobile and other devices would be undertaken if concerns were present about access to pornography.
Weekly contact would also be maintained with third parties involved in the defendant's activities in the community including his FPS therapist, mental health practitioners and gambling counsellors, to confirm his attendance at meetings and monitor his progress.
Regular contact, both face to face and via telephone, would also be made with family, friends and the defendant's partner, to discuss his ongoing relationship status, his attitudes, mental health and any current stressors.
Ms Lucas suggested that the defendant be placed on electronic monitoring for a period post-release and possibly abide by a curfew, to assist in re-establishing stability in the community and allow supervisors to monitor his compliance with schedules.
The defendant would be referred to FPS to continue with community based sex offending maintenance intervention to further address his risk areas such as attitudes, self-regulation and intimacy deficits. Upon release, he would also be referred to his General Practitioner to oversee ongoing psychiatric treatment for schizophrenia and depression.
His drug and alcohol consumption would be monitored through random and targeted testing, and the defendant would be required to disclose any new relationships or associations to Community Corrections.

[10]

The Evidence of Ms Farroway

Ms Farroway is employed with the Department of Corrective Services as the High Risk Offender Applications and Operational Governance Officer. She works within the ESO team in Corrective Services over‑sighting applications of the present nature for the department.
In her first affidavit, Ms Farroway provided information as to the operation of interim and extended supervision orders. The defendant has been supervised in the past through ESO staff located at Blacktown, and that is likely to continue if the Court imposes a further order upon him. There will be continuity of supervising officer, although a range of staff would be involved in the defendant's supervision.
That supervision would take the form of devising and implementing a case plan, with weekly visits by staff to the defendant at his home or other places, together with other unannounced visits to him at any work place or during other activities in the community. Risk assessment would be on-going and steps would be taken by staff to manage the risk posed by the defendant, and to provide support and assistance to him to maintain himself long-term in a law-abiding way in the community. All persons subject to supervision orders under the Act are supervised at a level known as "Tier 3/High", which designates a close level of supervision. It generally involves closer supervision than does supervision under a parole order.
If no interim or extended supervision order was made in relation to the defendant, his level of supervision pursuant to the parole order, which is in force until early March 2019, would likely be reduced from that presently applicable pursuant to the existing ESO, or which would be applicable if an interim or further ESO was made. For example, visits from supervising staff to the defendant would probably be fortnightly, rather than weekly; and it is likely that electronic monitoring would cease. Powers available to staff supervising parole orders are much reduced from those available where an order under the Act is in place, and Ms Farroway considers that the likelihood of staff being able to detect problematic issues would also be reduced.
In her second affidavit Ms Farroway considered the proposed conditions of an interim order and ultimately any ESO, concluding that the conditions were necessary to address the level of risk posed by the defendant. Electronic monitoring is regarded as necessary to effectively manage the defendant's movements, with a view to preventing his attendance at locations associated with elevated risk. Ms Farroway regards electronic monitoring as particularly useful in managing the defendant, having regard to his history of breaching the current order.
The other conditions proposed by the State are all regarded as necessary by Ms Farroway, having regard to the defendant's history and the level of risk associated with him. These include conditions relating to accommodation; curfews; overnight visits; place and travel restrictions; restrictions on drug and alcohol use; restrictions on access to the internet, gambling, pornography and the like; and search and seizure.
In her oral evidence Ms Farroway confirmed that electronic monitoring was regarded by the defendant's current supervisors as an essential management tool. She said (at T8:25) […] at this point, the electronic monitoring is really about giving him back the opportunity to be autonomous. But for us to be able to look at his movements over time and see that he's attending to his interventions; he's attending to work. Because it was said it was an indicator last time that things were not going well; he stopped going to work. That he's going when he needs to be and not placing himself in higher risk situations, sort of, around whether there's gambling facilities, whether there's been previous issues prior around sex workers and that sort of thing. So, it's just about seeing that those behaviours are not present and that he's moving, you know, towards the stability that he needs to achieve again. And just assessing that he's basically not placing himself in a high risk situation while he re‑establishes his life, and he's attending to those issues that had caused him to destabilise and are risk factors. That he is addressing those as he needs to be.
Ms Farroway said that the defendant had been employed for a time in the community before his most recent incarceration, but that he had lost that employment during what appeared to be a period of destabilisation for him. She said, (at T7:03), […] There was issues with his job immediately prior to custody. But for some period before, there was a period of quite significant destabilisation, I would call it, before he went back into custody. And his employment at that stage was, I think, very tenuous. He wasn't attending. But prior to that period of destabilisation, yes, he had been employed. […] […] the pornography, in this case, appears to be somewhat as an indication of a broader destabilisation. So, at the time there was issues around Mr McQuilton's mental health, and he was having difficulties with his medications and staying on top of his mental health. There was also the stressors he had around his relationship and being a new father that were causing him some difficulties. And, as I mentioned previously, he had ceased going to work because he felt that he wasn't ‑ he expressed that he wasn't coping and he was overwhelmed. And so, there was a series of issues that were presenting which, in the case of Mr McQuilton, are indicative of a destabilisation and also are indicative of previous patterns where he's gone down this same path prior to either breaches such as cutting off the anklet and things like that. In this instance, the breach that was detected was the pornography which was part of this broader poor coping and destabilisation. Pornography is also ‑ whilst it's a risk factor, the reading of the reports around Mr McQuilton suggest that's also indicative of some poor coping strategies which is reflective of what he had going on at that time.

[11]

Determination

For the Court to make the orders sought at this interim stage of the proceedings, the State must satisfy the Court that the matters alleged in the documentation supporting the application would, if proved, justify the making of an ESO: s 7(4) of the Act.
The Court may make an interim order where, as here, it appears that the defendant's supervision will expire prior to the determination of the proceedings.
Section 9(3) of the Act sets out those features to which the Court must have regard when determining an application of this nature.
The legal principles that apply to an application of this nature were recently summarised by Johnson J in New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 at [20]-[25]: The unacceptable risk test in s.5B(d) of the HRO Act requires the exercise of a discretionary judgment: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at 652 [82]. The objects of the HRO Act should be kept in mind when undertaking this evaluative task: Lynn v State of New South Wales at 648 [55]. Those objects are contained in s.3 which states: 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 Court must be satisfied to a high degree of probability that the Defendant poses an 'unacceptable risk' of committing a further serious offence if not kept under supervision under an ESO. The standard of proof lies between the ordinary civil standard and the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. The right of a person to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn v State of New South Wales at 645 [44], 648 [55]-[58], 660-661 [128] and 665 [148]. At a preliminary hearing, it is not for the Court to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]. Rather, the Court undertakes a task that has been described as being akin to applying a prima facie case test in committal proceedings (as they were before 30 April 2018), taking the Plaintiff's case at its highest: State of New South Wales v Manners [2008] NSWSC 1242 at [8]; State of New South Wales v Brookes [2008] NSWSC 150 at [13]. If the Court is satisfied that an ISO should be made, the question arises as to whether the conditions as sought by the Plaintiff should attach to the ISO. Section 11 of the HRO Act specifies a range of conditions which may attach to an ESO and thus an ISO. The conditions outlined in s.11 of the HRO Act impose positive obligations as well as restrictions upon a person. In considering whether to impose conditions, it is necessary to bear in mind that the effect of their inclusion is to expose the Defendant to criminal sanctions if they are breached so that a proper basis needs to be demonstrated for including the conditions in the first place: State of New South Wales v TT (Final) [2018] NSWSC 358 at [127]. Section 11 of the HRO Act does not require that there must be a specific demonstrated link to past offending which is the basis for an order made under the Act. Rather, the Court must be satisfied that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at 76-77 [53]. A balancing exercise is required so that the Court will seek to impose the least intrusive conditions, consistent with its assessment of the risk posed by the Defendant and a further assessment as to what conditions are likely to be effective with the interests of the Defendant in liberty and privacy being properly treated as relevant considerations in ensuring that unjustifiable conditions are not imposed: Lynn v State of New South Wales at 661 [129]-[130] and 665 [149]."
Having regard to those principles, and on all of the evidence taken at its highest, it seems clear that the defendant does pose a continuing risk to the community.
Many of the features that were present at around the time of the commission of the index offence remain present. In sentencing the defendant in 2009, his Honour Judge Blackmore referred to the fact that the defendant had been regularly drinking alcohol, that he was not compliant with the medication regime prescribed by his treating psychiatrist, and that he had felt considerable hostility to women. His victim was a woman entirely unknown to him. Other evidence establishes that, at that time, the defendant had been regularly accessing and viewing pornography. Those features are referred to in more recent material.
Since his release to parole the defendant appears to have experienced significant problems in making the transition to an acceptable lifestyle that is without significant risk to the community, apart from a brief period, between May 2017 to February or March 2018, of some stability. He has regularly breached orders imposed upon him, whether a parole order, an interim supervision order, or the existing ESO. The number of breaches that have occurred in a relatively short period of time are a cause for concern.
Although much of the evidence presently available that relates to the risk posed by the defendant at this time is somewhat dated, there is a clear basis upon which to conclude that risk continues, at a level which cannot go unaddressed. The defendant continues to be drawn to the extensive use of pornography and, whilst he eventually disclosed his use of pornography contrary to the order to which he was subject, that disclosure, positive as it is, should not obscure the fact that he concealed his use of pornography from supervisors for many months. It would seem that he continues to harbour sadistic sexual fantasies concerning women.
The defendant argues that Dr Parker has not opined that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision, but that is not dispositive of the application. That is a question for the Court to determine on the whole of the evidence, and not confined to that of one witness. Further, it must be borne in mind that the primary object of the Act is the protection of the community.
The defendant is currently under some stress, associated with the birth of his child and difficulties between the defendant and the child's mother. He has not been consistently compliant with required medication, and he has had difficulty in coping with stressors. His circumstances have led to what Ms Farroway described as a destabilisation in his situation, leading to the loss of his former employment.
This presentation echoes to some extent that which appears to have prevailed in the period leading up to the commission of the index offence. Of those features referred to by Dr Parker as predicating a collapse of protective factors, many - withdrawal from employment, and the deterioration of his mental health or non-compliance with medication - are now present. In those circumstances, there must be a risk to the community, and particularly to women. If that risk were to manifest, the consequences would be terrible.
Accordingly, I have concluded that the State has established that the defendant poses an unacceptable risk of committing a serious offence unless supervised, on the basis that the matters alleged in the documentation which supports the application can be established. In those circumstances an interim supervision order should be made, together with associated orders for psychiatric or psychological examination and report.

[12]

The Conditions to be Imposed

Attached to the Summons is a schedule of conditions which the State seeks to have imposed upon the defendant. The defendant argues that there is no basis for conditions other than those to which he is now subject, and in the same terms as those conditions, to be imposed. He disputes that proposed conditions 13, 17, 18, 28, or 30 are indicated on the evidence, or that there is a legitimate need for electronic monitoring, the use of schedules, or a curfew.
The obligation on the Court is to impose only those conditions that are necessary to address the risk of future offending of the type which was the basis of the order, balancing that with the need to impose the least intrusive conditions required to meet the objects of the Act.
In the absence of more recent and specific evidence to support the requirement for proposed conditions 13 and 18, as to the residence of others at the defendant's home, and the requirement to participate in job training and related courses, respectively, I do not propose to impose these conditions. As a new father of a young baby I accept that the defendant's circumstances have changed, and that he and his partner may require both support from family in the home, and more time at home and away from work obligations, at least in the short term. Proposed conditions 13 and 18 could impede both and add to the stress that the defendant is subject to.
Proposed condition 30, whilst similar to existing condition 29, reverses the requirements precedent to the defendant joining internet based social networking services. Rather than, as presently, being restricted in this activity only if so directed, the onus imposed by proposed condition 30 is on the defendant to obtain permission to join such services. Having regard to the defendant's use of the internet to facilitate some of the breaches of which he has been convicted, this more stringent requirement is beneficial in the protection of the community.
Proposed conditions 17 and 28 relate to the defendant's attendance at premises selling sexually explicit material, or use of sex workers. In light of the nature of the defendant's sexual assault conviction, his recent use of pornography, and his expressions of hostility to women, these conditions also provide useful protection for the community.
Electronic monitoring, schedules, and curfews are all indicated on the evidence of Ms Farroway, who deposed that these tools are necessary to those supervising the defendant to monitor his compliance with any order, in light of his recent destabilisation. I accept that evidence, and conclude that conditions allowing use of these tools are necessary, at the discretion of the defendant's supervisors. It is true that conditions of this type will not detect the defendant's possible use of pornography, but they will allow better monitoring of compliance overall, in circumstances where the defendant's situation has become more unstable recently.
That a power exists for supervisors to impose requirements of this nature on the defendant does not mandate their use. It does, however, provide a means for effective monitoring where circumstances justify it. Equally, should the defendant's circumstances improve, it will be possible to reduce or delete such requirements.

[14]

Corrective Services NSW (CSNSW) Part A: Reporting and Monitoring Obligations Monitoring and Reporting

The defendant must accept the supervision of Corrective Services NSW ("CSNSW") until the end of the Order.
The defendant must report to the Department Supervising Officer ("DSO") or any other person supervising him as directed by the DSO.
The defendant must follow all reasonable directions by his DSO or any other person supervising him. Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him and, when directed to wear such electronic monitoring equipment: a. must comply with all instructions given by the DSO or any other person supervising him in relation to the operation of such equipment, and b. must not tamper with or remove such equipment. Schedule of Movements
If directed, the defendant must provide a written weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.
If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.
The defendant must not deviate from his approved schedule of movements except in an emergency.
The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. Part B: Accommodation
The defendant must live at an address approved by his DSO.
The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO.
The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. Part C: Place and travel restrictions
The defendant must not leave New South Wales without the approval of CSNSW, with the exception that he may be within the state of Victoria within 30 kilometres of Albury, but only with the prior approval of his DSO.
The defendant must surrender any passports held by the defendant to the Commissioner.
The defendant must not go to a place if his DSO tells him he cannot go there.
The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of his DSO. Part D: Employment, finance and education
The defendant must not start any job, volunteer work or educational course without the prior approval of his DSO.
The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO. Part E: Drugs and alcohol
The defendant must not possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed.
The defendant must not consume alcohol unless given prior approval by his DSO and only in the manner approved (approval may be given in a general sense and for consumption to a particular blood/alcohol level, or approval may be given in relation to a particular event).
The defendant must submit to testing for drugs and alcohol as directed by his DSO.
The defendant must not go to any licensed premises, excluding restaurants and cafes, but including hotels, bars, licensed clubs and racecourses, without the prior approval of his DSO.
The defendant must attend and participate in programmes and courses for gambling and/or drug and/or alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without the prior approval of his DSO. Part F: Non-association Associations with Others (not children)
The defendant must not associate with people that his DSO tells him not to.
The defendant must not associate with any people whom he is aware, or is reasonably aware, are consuming or under the influence of illegal drugs.
The defendant must not engage the services of sex workers without the prior approval of his DSO.
If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.
The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service. Part G: Gambling
The defendant must not gamble without the prior approval of his DSO. Part H: Access to the internet and other electronic communication
The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.
The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.
The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.
The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. Part I: Search and seizure
If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person.
For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched.
During a search carried out pursuant to condition 36 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.
The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 36 to 39 above. Part J: Access to pornographic, violent and classified material
The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified, or material that would be classified, as Refused Classification under the National Classification Code.
The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified, or material that would be classified, as X18+ or Category 2 restricted or Category 1 restricted under the National Classification Code, or any other material as directed by the DSO, without the prior approval of his DSO with such approval to be subject to the advice of his treating psychiatrist and/or psychologist.
Without limiting condition 42, the defendant must not access the internet to view or to download pornography. Part K: Personal details and appearance
The defendant must not change his name from "Daniel Anthony McQuilton" or use any other name without the prior approval of his DSO.
The defendant must not use any alias, log-in name, or a name other than "Daniel Anthony McQuilton" or use any email address other than those known to the DSO under condition 32 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.
The defendant must not change his appearance without the prior approval of his DSO.
The defendant must let CSNSW photograph him.
If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details within 24 hours of the change being made. Part L: Medical intervention and treatment
The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.
The defendant must take all medications that are prescribed to him by his healthcare practitioners.
If the defendant knowingly ceases or fails to take medication as prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours.
The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.
The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

State of New South Wales v Daniel Anthony McQuilton

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (10)

Cited By (1)