State of New South Wales v Delaporte - [2022] NSWSC 1004 - NSWSC 2022 case summary — Zoe

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State of New South Wales v Delaporte

[2022] NSWSC 1004

Supreme Court of NSW|2022-07-13|Before: Cavanagh J, Garling J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-07-13

Before

Cavanagh J, Garling J

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

Judgment

By way of an amended summons which I granted leave to file on 13 July 2022, the plaintiff, the State of New South Wales (the State) brings proceedings against the defendant, Jason Aaron Delaporte, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).
There was a preliminary hearing before Garling J on 4 April 2022. As set out in his Honour's judgment of 27 April 2022, [1] orders were made requiring the defendant to attend examinations by qualified psychiatrists and psychologists and that the defendant be subject to an Interim Supervision Order (ISO) for a period of 28 days.
Those orders were extended such that the ISO expires on 29 July 2022.
On the final hearing before me, the defendant did not dispute that he should be subject to an Extended Supervision Order (ESO) for a period of three years but, opposed a limited number of the conditions sought by the State.
Prior to the final hearing and in accordance with the orders of Garling J, the defendant was examined by Dr Chelsey Dewson, a Forensic Psychologist, who prepared a report dated 15 June 2022 and Dr Antony Henderson, a Consultant Forensic Psychiatrist, who prepared a report dated 16 June 2022.
In addition to the reports obtained in accordance with the orders of Garling J, the State relied on a number of affidavits which essentially provided a mechanism for attaching documents, including the affidavits of Ellen Southwood dated 15 December 2021, James Palmer dated 11 February 2022 and 28 March 2022 and Jessica van Lieven dated 21 June 2022.
The defendant did not seek to rely on any evidence.
On the hearing of the matter, Ms New of counsel appeared for the State and Ms Marsden of counsel appeared for the defendant. I received helpful written and oral submissions from both parties.
The focus of the hearing was on the conditions which the State sought. Although the defendant did not oppose the imposition of an ESO, it is necessary that I form an independent satisfaction that an ESO should be imposed.

[2]

Legislative scheme

As set out in s 3 of the Act, the primary object of the 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 the protection of the community. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. In making any orders under the Act, I would have regard to the objects of the Act.
Section 5B of the Act specifies the circumstances in which the Court may make an ESO: 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.
Being satisfied to a high degree of probability means something beyond more probable than not. The existence of the risk, that is, the likelihood of the defendant committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof although not to the criminal standard of beyond reasonable doubt. [2]
The meaning of "unacceptable risk" was considered in Lynn v State of New South Wales: [3] "As the respondent pointed out in its submissions, by reference to dictionary definitions, the word 'unacceptable' requires context in which, or parameters against which, the 'unacceptable' risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is 'so far from a required standard, norm expectation, etc as not to be allowed'. The Oxford Dictionary defines the word by reference to its antonym 'acceptable'. Something is 'acceptable' if it is 'tolerable or allowable, not a cause for concern; within prescribed parameters'. What the court, therefore, must find to be unacceptable is the 'risk' that the offender poses 'of committing a serious violence offence if … not kept under supervision'. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made."
Importantly, the impact that an ESO may have on the defendant's liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision but, the Court may take that factor into account in determining whether to exercise its discretion pursuant to s 9 of the Act. [4]
Section 9(2) of the Act requires that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court.
Further, in determining whether or not to make an ESO, I must have regard to the factors as set out in s 9(3) of the Act.

[4]

The defendant's personal circumstances

The defendant is currently 52 years of age. On 4 May 2000 he was sentenced to a term of imprisonment of 16 years for a number of serious sex offences committed in 1998.
In August 2014, after he was released on parole on 2 July 2014, the defendant committed further offences, including offences of break, enter and steal. He was sentenced to a further term of imprisonment of 5 years and 6 months.
On 13 October 2014, Button J made a continuing detention order of 4 months followed by an ESO of 2 years, which was to commence on 20 February 2015.
As required by s 10(2) of the Act, the ESO was suspended until such time he was again released into the community. He was released on 3 May 2018 and thus his ESO commenced on that date.
However, he was subsequently charged with a breach of the ESO (drug-related) and was returned to custody. He was released on 29 October 2019 but was later rearrested on 21 January 2021 and charged with failing to comply with the conditions (being accessing pornography and social networking sites without approval). He was sentenced to a further 18 months imprisonment and was released on 16 January 2022.
The 2014 ESO expired on 26 April 2022 and he has been subject to an ISO since that time.
The defendant has spent most of his adult life in custody. Prior to his offending as an adult, he had a troubled and difficult childhood. He was hyperactive at school and was expelled from school. By 15 years of age, he was homeless. He undertook child prostitution for a period of three years. By 16 years of age, he was a resident at Cobham Youth Justice Centre. He says that he was sexually abused while he was there.
He says he only had two significant relationships, one whilst he was in custody. He appears not to have any friends and, indeed, has been diagnosed with antisocial personality disorder.
He has been complying with the conditions of the ISO, even though as Ms Marsden points out, it is arguable that his DSO has been adopting a somewhat restrictive approach to the conditions.
Having spent most of his adult life in custody, he has struggled to adapt to life outside of prison, even under supervision in the sense that he has, very quickly on being released, engaged in further offending or failed to comply with the conditions of supervision imposed upon him.

[7]

Expert evidence obtained recently

Dr Dewson is a Forensic Psychologist. She assessed the defendant by AVL on 7 June 2022. She found the defendant difficult to interview. He was superficially compliant and responded to questions in vague terms. She had previously met the defendant whilst offering treatment as part of the Custody-Based Intensive Treatment (CUBIT) programme, both in 2011 and 2015.
The defendant first participated in that CUBIT programme in 2010. However, his treatment was suspended due to continued reports of physical and verbal aggression towards staff and other offenders. He resumed treatment in 2011 but presented as resistant and exhibited difficulties managing his behaviour. He was given an opportunity to participate further in CUBIT in 2015 but initially declined the offer. He resumed CUBIT again for the final time in March of 2015 but was discharged on security grounds after he threatened a custodial officer and a fellow participant in the programme.
He has engaged with other treatment programmes whilst in custody but denies obtaining any benefit from these programmes. He informed Dr Dewson that he has recently developed a friendship with a female in the community (albeit that has ended) but he generally has no friends and does not feel that he needs peer support. He is not looking for a new romantic relationship.
He has recently moved into a private residence in Western Sydney where he shares accommodation. He believes that an ESO is unnecessary for managing his risks and that his risk factors would be best mitigated by people leaving him alone.
Dr Dewson considered that the defendant presents as having a very high risk of general reoffending and a high risk of sexual recidivism. The primary factors relating to his risk of recidivism included hypersexuality, unhealthy attitudes towards sex, intimacy deficits, poor social connections, antisocial attitudes, substance abuse, impulsivity, poor coping and living an unrestructured lifestyle.
Dr Dewson believes that the defendant will have difficulty managing his risks in the absence of an ESO. He could quickly return to drug use and become dysregulated, impulsive and unstable.
Dr Antony Henderson is a Consultant Forensic Psychiatrist. He examined the defendant in person on 31 May 2022. He noted that he was informed that the defendant had previously been diagnosed with attention deficit hyperactivity disorder (ADHD) at around the age of 9. He was further diagnosed with a personality disorder and ADHD whilst a resident of the Cobham Juvenile Justice Home. The defendant informed the doctor that he had previously experienced a traumatic head injury but denied experiencing a personality or cognitive change thereafter.
Dr Henderson diagnosed: 1. Antisocial personality disorder; 2. ADHD; 3. Stimulant use disorder; 4. Unspecified paraphilic disorder; and 5. A provisional diagnosis of complex post-traumatic stress disorder.
Dr Henderson undertook the STATIC-99R risk assessment tool. Having regard to all of the information available to him, he assessed the defendant as having above average risk relevant to the typical sex-offender population or moderate to high risk of engaging in further sex offending. He considered the defendant's criminogenic factors could be adequately addressed in the community under an ESO but that he could not be adequately managed without an ESO. He generally agreed with the conditions relating to his psychiatric diagnoses which had been imposed for the purpose of the ISO.

[14]

Condition 53: Prescribed medication

This condition relates to the defendant stopping or declining to take medication which is prescribed to him. The State seeks to impose a time limit of 24 hours on the defendant in terms of notifying his DSO that he is no longer taking the medication. The defendant suggests that there should be no precise limit but the term should be "without delay".
I agree with the defendant's proposal in respect of the condition. Whilst "without delay" may be a broad term, it must necessarily involve some effort on the part of the defendant to provide the information to the DSO as soon as possible. There could be many things that might happen in the 24 hours after the defendant has ceased medication and I am concerned that the placing of a mandatory time limit on the defendant may be unnecessarily restrictive and, again, may create the risk of inadvertent breach of the condition. I am satisfied that the defendant's proposed condition provides adequate protection and sufficient requirement in respect of a notification to the DSO.
In all the circumstances, the conditions which I impose will be as set out in the schedule to this judgment. Each of conditions 7, 23, 24, 44 and 53 have been included in accordance with the comments that I have just made.
In the circumstances, I make the following orders: 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders Act 2006 (NSW) (the Act), the defendant is subject to an extended supervision order for a period of three years from 29 July 2022. 2. Pursuant to s 11 of the Act, I direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this judgment. 3. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

[15]

SCHEDULE OF CONDITIONS OF SUPERVISION JASON AARON DELAPORTE Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) In these conditions: "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services "Defendant" means Jason Aaron Delaporte, also known as Jason Aaron Salis, the defendant in these proceedings and the subject of the order. "Digital Blueprint" has the same meaning as in the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object. "Electronic Identity" means each of the following: (a) an email address, (b) a user name or other identity allowing access to an instant messaging service, (c) a user name or other identity allowing access to a chat room or social media on the internet, (d) any other user name or other identity allowing access to the internet or an electronic communication service. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Material" includes:

any written or printed material;
any picture, painting or drawing;
any carving, sculpture, statute or figure;
any photograph, film, video recording or other object or thing from which an image may be reproduced;
any computer data or the computer record or system containing the data; and
any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced. "NSWPF" means NSW Police Force. "Associate" includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "Search" includes:
A garment search, being 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; and
A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched. Part A: Reporting and Monitoring Obligations Monitoring and Reporting
The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.
Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.
The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations. Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment. Schedule of Movements
If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.
If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period.
The defendant must not deviate from his approved schedule of movements except in case of any circumstances which the defendant reasonably regards as being an emergency. In such circumstances, the defendant is to notify a DSO of that deviation without delay. Part B: Accommodation
The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements.
If the defendant resides at a residential facility, the defendant must obey all reasonable instructions given by the residential facility staff that are necessary to ensure the good order of the residential facility or the safety and welfare of residents, staff or visitors to the facility.
The defendant must allow a DSO 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 or any alternative approved addresses (if relevant) without the approval of a DSO.
The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO. Part C: Place and travel restrictions
The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.
The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW.
The defendant must not frequent or visit any place or district specified by a DSO.
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 a DSO. Part D: Employment, finance and education
The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include education, training or participation in personal development programs.
The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.
The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his or her next interview with a DSO.
The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO. Part E: Drugs and alcohol
The defendant must not use prohibited drugs, or abuse drugs unlawfully obtained.
The defendant must submit to drug and alcohol testing.
Deleted.
The defendant must attend and participate in one-on-one counselling sessions in relation to substance misuse as reasonably directed by a DSO, and must not cease attending those sessions without prior approval of a DSO. Part F: Non-association Associations with Others (not children)
The defendant must not associate with any person or persons specified by a DSO.
Without limiting condition 25, the defendant must not: a. associate with any people who he knows are consuming or under the influence of illegal drugs. b. associate with any person held in custody without prior approval of a DSO.
The defendant must not engage the services of sex workers, without the prior approval of a DSO.
The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary to address a risk of the commission of a serious offence. Before any disclosure is made, the defendant must first be so informed and given the opportunity to make the disclosure himself.
The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation. Part H: Weapons
The defendant must not possess or use any of the following: i. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996, ii. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, iii. a spear gun, iv. an explosive substance intended, by the defendant, to be used in an explosive device, v. a fuse capable of use with an explosive substance, device or a detonator; a. a knife (other than one possessed for use in connection with food preparation), machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened b. any other implement made or adapted for use for causing injury to a person; or c. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.; or Part I: Access to the internet and other electronic communication
The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information.
The defendant must not use any alias, electronic identity, log-in name, name other than Jason Aaron Delaporte or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list without delay. This includes phones, tablet devices, data storage devices or computers.
The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.
The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.
The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.
The defendant must not use any message application or service which he knows, or ought reasonably to know, is coded or encrypted. If the defendant is unsure whether a messaging application or service is encrypted, he can ask his DSO first.
The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant's electronic devices or accounts as a result of a search or a remote inspection.
The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services.
The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.
The defendant must not by any positive act delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application, chat or communication history from his phone, computer, tablet nor any other electronic device without the prior consent of a DSO.
The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO. Part J: Search and seizure
The defendant must submit to a search by a DSO (or any other person as directed by the DSO) of his person or residence, or any vehicle in which he is travelling or which is under his control, or any computer, electronic or communication device, storage facility, garage, locker or commercial facility in his possession or under his control; and to the seizure of any object located during the search.
The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out and pursuant to this Order. Part K: Access to pornographic, violent and classified material 44A. The defendant must notify his DSO within 24 hours if he has purchased, is in possession of or has accessed or obtained material, whether by electronic or other means, that is classified or could be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1. 44B. The defendant must obey any reasonable directions of his DSO in relation to the access, viewing, possession or purchase of the material identified in condition 44A above. Part L: Personal details and appearance
The defendant must not change his name from Jason Aaron Delaporte or use any other name without notifying a DSO.
The defendant must not significantly change his appearance to the extent that he cannot be easily recognised without first notifying a DSO.
The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.
If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details. Part M: Medical intervention and treatment
The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction. If the whole cost thereof is not met by Medicare or by other Commonwealth or State funding then any cost which the defendant himself will be required to bear must reasonably be within his means.
The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.
Deleted.
The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.
If the defendant ceases to take, or declines to commence taking, any medication referred to in the above condition, the defendant must notify a DSO of the missed dosage without delay.
The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO, where those practitioners consider such information to be relevant to his ongoing risk management and rehabilitation.
The defendant must agree to any information being shared between those persons and agencies that are directly or indirectly involved in his supervision.
The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him to the extent that it is relevant to his risk of reoffending or rehabilitation. Before any disclosure is made, the defendant must first be so informed and given the opportunity to make the disclosure himself.