State of New South Wales v De La Torre

Background

1. The defendant is currently 66 years of age. He lives alone in the suburbs of Sydney, and endures, as I understand it, a solitary and circumscribed life. I believe that he is man of some intelligence. To my knowledge, he is burdened neither by dependence on alcohol, prohibited or prescribed drugs, gambling, nor cognitive impairment, nor any abnormal mental condition save for his paedophilia. His upbringing was unremarkable, though apparently lacking in affection. The psychological process whereby he became sexually attracted to children is unclear; for example, there was no evidence placed before me of the defendant having been sexually assaulted as a child.
2. He commenced intersecting with the criminal justice system in 1989, by way of driving offences. In 1990, however, he committed the offences of kidnapping and sexual assault. In short, he detained a nine-year-old girl and her six-year-old sister whilst they were walking home in Orange, in the central west of New South Wales. A vehicle that he had hired earlier that afternoon was utilised. The six-year-old was permitted to depart, but the older girl was not. Having driven to an isolated spot, he took the opportunity to sexually assault the nine-year-old by touching her under her dress and on the top of her leg near her underpants. The victim was very frightened, and asked that the defendant not touch her. The defendant threatened the victim with unspecified consequences if she were to tell anybody. A little later, the defendant claimed to her that he had believed that she was 16 years of age; I interpolate that I reject the truthfulness of that statement without hesitation.
3. The applicant received for that offending a total head sentence of imprisonment for 6 years 8 months, with a total non-parole period of 5 years. He was imprisoned continuously from 2 April 1991 until 11 September 1995, when he was released to parole.
4. Less than a year later, he returned to custody on 10 July 1996. That was because he had sexually offended again, this time against a number of child victims. As the remarks on sentence of Rummery QC DCJ of 28 February 1997 relate, the defendant clearly had not learned from his previous time in custody. It is worth noting that the last, and perhaps the most serious, of the sexual offences committed during the defendant's stint in the community occurred mere hours before handing himself in to local police for breaching his parole conditions. The defendant had driven to a nearby park with his dog, lured a nine-year old girl into an isolated area of bushland, and removed her clothing. He forced the young girl to lie on the ground, and proceeded to have penile-vaginal intercourse with her. She was then instructed to get dressed, and warned not to tell anyone what had happened. That afternoon, the defendant reported at the local police station as promised and returned to custody.
5. The applicant received a total head sentence of imprisonment for 14 years 7 months, with a total non-parole period of 11 years, each to commence on 28 February 1997, the non-parole period to expire on 27 February 2008, and the head sentence to expire on 27 September 2011. In fact, the defendant was in continuous custody until 21 December 2010, a period of 14 years 6 months, when he was on parole again, albeit for a brief period.
6. Prior to the expiration of his parole, as I have said the defendant became subject to an ESO of five years' duration.
7. He returned to custody less than 2 ½ years after his release from gaol, on 23 April 2013. That was because he had been accused of sexually assaulting a child at Coogee Beach. At the conclusion of a judge alone trial, he was found guilty of indecent assault. He was separately found to have been in possession of child abuse material.
8. The result was that, on 3 October 2014, he received a total head sentence of imprisonment for 6 years, to commence on 23 April 2013 and expire on 22 April 2019, with a mandatory minimum period of incarceration constituted by the combination of a non-parole period and a fixed term. It seems that the defendant only became eligible for release pursuant to the latter on 22 March 2019; perhaps the learned sentencing judge was content with that extremely short period on parole because of the inevitable reactivation of the ESO upon release.
9. The ESO, of course, was in abeyance whilst the defendant was in custody, pursuant to the Act.
10. In fact, the defendant was not released at the end of the fixed term, nor indeed at the conclusion of the head sentence. That was because in October 2018, whilst in a prison, he had created "home-made" child abuse material. For that offence he received a head sentence of imprisonment of 18 months, to commence on 25 January 2019 and expire on 24 July 2020, with a non-parole period of one year, to conclude on 24 January 2020.
11. The defendant was released on parole on that date. At the conclusion of his parole period, the ESO of Garling J recommenced.
12. The defendant returned to custody on 14 June 2023, about 2 years 6 months after release. That was because he had breached his ESO, by way of using a search engine that did not leave a history, and accessing online pornography. One of the sites in question included in its title the words "Teen Porn". Those breaches had been preceded by a number of written warnings about his compliance from his Departmental Supervising Officer ("DSO").
13. For that offending, the defendant received a total head sentence of imprisonment for 13 months, with a 9 month non-parole period. At the conclusion of that non-parole period, the defendant was released on 18 March 2024, and remains on conditional liberty.
14. In short: the defendant first sexually offended against a child well over three decades ago; he has served a very lengthy term of imprisonment for multiple child sexual assault; he sexually offended against a child whilst subject to an ESO; he gave vent to his sexual interest in children even in custody, in 2018; and he was unable or unwilling to comply with his ESO as recently as last year, in circumstances that are, to say the least, very troubling.
15. A number of the most recent psychological and psychiatric reports about the defendant may be summarised as follows.
16. In an assessment summary report prepared by Mr Samuel Ardasinski (dated 27 April 2023), the defendant was classified as being in the "highest category of risk for sexual reoffending".
17. Mr Ardasinski was of the view that the most likely form of offending the defendant might commit would be through the possession of child abuse material, although he also advised that sexual offending against young girls in the community remained an ongoing concern. While placing the defendant under a Child Protection Prohibition Order might allow for the monitoring of the defendant's internet use, such an order would be limited in its ability sufficiently to prevent him from seeking out further relationships in order to gain access to children, or to compel him to engage in positive interventions to address criminogenic needs.
18. However, the ESO Completion Risk Assessment Report (dated 22 August 2022) expresses more optimism about the rehabilitation of the defendant. Mr Tim Wu observed that, although he did reoffend sexually during his first year of release into the community, the defendant had not committed any further substantive offences since his second release in 2020. Efforts had been made on the part of the defendant to reintegrate himself into the community: he actively sought out employment opportunities, engaged in age-appropriate relationships and social activities, and maintained compliance with directions given by his DSO. Mr Wu found "little evidence" suggestive of any real concerns that the defendant posed the risk of committing a further serious sexual offence. A further ESO was considered "unwarranted".
19. The following reports were obtained by way of orders made at the preliminary stage by Sweeney J.
20. Dr Carollyne Youssef, in a much more recent report dated 16 June 2024, noted a "high loading of outstanding dynamic risk" of sexual reoffending on the part of the defendant; such a risk, it was said, requires specialised intervention. Dr Youssef opined that a further ESO would adequately manage the defendant's risk of recidivism in the community. Targeted intervention to strengthen his protective factors, and further address his outstanding risk factors (limited foresight into self-risk factors, poor general and sexual self-regulation, interpersonal deficits, poor distress tolerance, poor self-reflective capacity), were viewed as necessary to ultimately mitigate the defendant's risk of reoffending sexually.
21. An expert report was also prepared by Dr Anna Farrar (dated 17 June 2024), and similarly found that the defendant posed a high risk of committing a further serious sex offence. Of particular concern to Dr Farrar was the defendant's history of having re-offended whilst subject to an ESO in the past. The defendant's denial of his Paedophilic Disorder, as well as his resistance to treatment, were factors that complicated the ability for his risk to be adequately managed in the community. Dr Farrar was ultimately unable to find that the defendant's risk could be fully managed by a further ESO; in supplementary reports, she clarified that that was not intended to convey that an ESO would have no utility whatsoever.
22. Finally, on 3 July 2024, the defendant's treating psychiatrist, Dr Andrew Parker, provided an affidavit describing his treatment of the defendant to date, and answering questions regarding the defendant's risk. Although Dr Parker was not of the opinion that the risk of recidivism could every truly be "addressed", his view was that the defendant's continued treatment would reduce the risk of the commission of a further serious sex offence. The point was also made that it is unrealistic in such a case to expect breakthroughs, as opposed to incremental progress in self-awareness.
23. To complete the picture in terms of medical opinions and psychological aspects: it is certainly the case that, over the years, the defendant has sought psychological help. But there is a very real question about his commitment to it; in particular, his acceptance that he is indeed sexually attracted to children is by no means unequivocal.

Submissions of defendant

1. Counsel for the defendant made it clear that, although some of the convictions against her client were accepted, and indeed based upon pleas of guilty, some were firmly disputed. That included the so-called index offence of 2013, upon which the plaintiff relied for this application.
2. In similar vein, many of the findings made in remarks on sentence over the years were disputed or at least not accepted, as was, for example, the correctness of the decision of Sweeney J to impose the recent ISO.
3. Having said that, it was accepted that all "mechanistic" statutory preconditions for the making of the order sought by the plaintiff had been established.
4. Counsel explained that the defendant does not consent to the imposition of a further ESO, for the following reasons.
5. First, the proposed conditions do not provide the protection of the community for which the plaintiff contended. That is because, in short, they do more harm than good, in that far from assisting the rehabilitation of the defendant, they hinder it. I was taken to various detailed treatment notes, in support of the proposition that there have been many disputes between the defendant and his DSO, founded on his distinct suspicion that information was being disseminated, and restrictive steps taken, that really stymied his efforts to live a normal lawful life in the community, rather than helping him to do so. An example was given whereby the seizure and retention of his digital devices had disrupted his ability to do things as simple, and essential, as paying his utility bills on time.
6. The point was also made that the defendant can do nothing about "static" risk factors founded upon events in the past, and he feels that his conditional liberty is preventing him from doing anything useful about risk factors pertaining to the present and future. Indeed, counsel pointed to the statement he recently made to his DSO that his pessimistic expectation is that he will be subject to an ESO until his death.
7. It was also said that some of the current conditions, and their operation, are anomalous and irrational, adding to the sense of frustration on the part of the person whom they are designed to help.
8. And in any event, even if I felt that what I call the "fulcrum test" to be found in ss 5B and 9 of the Act had been made out, I retain a discretion not to impose an ESO. In the circumstances of this case, it was said that I would exercise that discretion, again, as I understand it, based on lack of utility.
9. In the alternative, the submission was that, bearing in mind all of the conditional liberty to which the defendant has been subject over the years, an ESO of no more than eighteen months' duration would be sufficient.

Determination

1. The conciseness of the following reasons for my imposition of the ESO as sought by the plaintiff constitutes no disrespect to the defendant, nor to his counsel, who represented his position, and presented her submissions, very ably.
2. But I respectfully believe that the appropriate course in this matter is quite clear.
3. Tragically from every perspective, for well over 30 years the defendant has demonstrated that he has a sexual attraction to females under the age of consent. He has acted upon it against multiple victims. It is notorious nowadays that such offending can have very damaging psychological consequences; it is not unknown for them to last a lifetime. It is noteworthy that his commitment to that behaviour extended to it having been proven beyond reasonable doubt that he committed such an offence in a public place whilst on an ESO for the exact same kind of offending; and that even in the controlled environment of a prison, he took steps to be in possession of child abuse material. Most recently, he breached his ESO by using a web browser that left no history. In itself, that may not be of great concern; but seen in the context of the behaviour of the defendant over decades, as I have said it is patently very troubling. The defendant must have known, in the scheme of things, that that behaviour exposed him to reincarceration; even so, he engaged in it.
4. Finally, I accept on balance that the defendant will not or cannot really come to terms with the wrongfulness of his actions, and, if anything, his position even now possesses a flavour of recalcitrance.
5. As the transcript of the hearing shows, I am the first to accept that being subject to conditional liberty of any kind, and perhaps an ESO in particular, has its aggravating, intrusive, and perhaps on occasion counter-productive aspects, in terms of helping a person to avoid of their own volition offending in the future.
6. But the simple fact is that rehabilitation is not the primary purpose of the Act; its primary purpose is, in fact, the safety and protection of the community.
7. Things here have reached a point, I am satisfied, whereby, although each purpose must be given weight, the latter must dominate the former. And whilst I accept - as the offending in 2013 demonstrates - that an ESO cannot provide complete protection to the community - it undoubtedly goes some way towards doing so.
8. With due respect to those who think otherwise, I am firmly of the view that there is utility in imposing an ESO on the defendant, albeit the likelihood of such an order helping him to rehabilitate himself substantially may not be high.
9. Finally on this aspect, I respectfully think that whether the future includes the defendant being on conditional liberty for the rest of his life depends upon his behaviour, not the behaviour of others, including those who may be supervising him.
10. I am amply satisfied that the central test founded on unacceptability of risk has been established in this matter, and that an ESO should be imposed. I also consider that a duration of two years is soundly appropriate.
11. Because of the firmness of my view, there is no question of me exercising the discretion not to impose that order.

Dispute about several conditions

1. I turn now to the conditions of that order. Most of those proposed by the plaintiff were not contingently opposed by the defendant. I have reviewed all of those undisputed conditions myself, and am of the opinion that they are appropriate.
2. The first dispute related to four conditions to do with electronic monitoring, and the provision of a schedule of movements. The point was made that the imposition of such rigorous and intrusive conditions is holding back the rehabilitation of this man, who is after all approaching the age of 70, rather than helping move it forward. It was said that, because of the limits these conditions impose upon the defendant, they are "unhelpful in terms of protection".
3. I respectfully disagree. In the circumstances of this case, and all that has gone wrong repeatedly in the past, I believe that rigorous monitoring of the defendant's movements is soundly appropriate.
4. A condition about informing an employer about the criminal history of the defendant was also resisted, with the proposed alternative being that the DSO could simply inform the employer that the defendant does not and cannot possess a Working with Children Check. But in my respectful opinion, the proposed alternative is inappropriately indirect, even Delphic. The disputed condition will be made.
5. A further disputed proposed condition was that the DSO could inform a person with whom the defendant forms "an ongoing personal relationship or intimate relationship" of the criminal history of the defendant. His counsel submitted that that should simply extend to intimate relationships, and no further.
6. I respectfully disagree: the hypothetical example that was discussed between Bench and Bar table of an older gentleman with whom the defendant becomes friends and goes on regular walks, when that other gentleman also has a nine-year-old granddaughter, amply demonstrates the need for the broader condition.
7. Finally, there was a (with respect) granular dispute about the return of seized items from the possession of the defendant by his DSO. The plaintiff submitted that the mandated return must occur "within a reasonable timeframe, subject to operational requirements". The defendant submitted that the phrase should simply be "within a reasonable timeframe". It was explained that this dispute about a detail was founded upon the problem that arose in the past regarding the allegedly tardy return of devices.
8. In my respectful opinion, it is not to be forgotten that the defendant breached his ESO no more than 13 months ago, by using a web browser that left no history, a breach that called for reincarceration. It was explained by counsel for the plaintiff that detailed interrogations of digital devices logistically take some time, an explanation that I accept.
9. To the extent that this dispute requires real resolution, as opposed to sensible application of the condition from the perspective of everybody, I believe that such operational requirements need to be accommodated. The condition will be made as proposed by the plaintiff.

Conclusion

1. In summary: I am well satisfied that a further ESO should be imposed upon the defendant.
2. I am also satisfied that it should extend for two years.
3. I do not exercise my discretion to refuse to make that order.
4. Finally, I resolve all of the disputed conditions in favour of the plaintiff.

Orders 1. An order pursuant to sections 5B and 9(1)(a) of the Act that the defendant be subject to an extended supervision order ("the extended supervision order") for a period of two years from the date of the order; and 2. An order pursuant to s 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this judgment. De La Torre - Schedule of conditions (149421, pdf)

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