On 23 June 2016 the State of New South Wales filed a summons in this Court naming Robert John Dennis as a defendant. The summons seeks three orders, namely, an interim supervision order ("ISO") under s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"), an order under subsection 7(4) of the Act appointing two qualified psychiatrists to examine Mr Dennis and directing him to attend those examinations; and an extended supervision order for a period of five years pursuant to ss 5C and 9(1)(a) of the Act. This judgment deals with the first two of the orders sought. In relation to the third, the parties will be directed to apply to the manager of listings in this division to obtain a final hearing date.
Section 6 of the Act sets out the requirements with respect to an application for an extended supervision order made by the State. Subsection 6(1) requires that the application indicate whether the extended supervision order sought is a high-risk sex offender extended supervision order or a high-risk violent offender extended supervision order. The summons makes it clear that it is the former.
Subsection 6(2) provides the application may not be made until the last six months of the offender's current custody or supervision. As will become clear that is the case in respect of Mr Dennis.
Subsection 6(3) provides that the application must be supported by documentation that addresses the matters referred to in subsection 9(3) of the Act being a series of factors relevant to the determination of whether or not to make an extended supervision order and also includes a report assessing the likelihood of the offender committing a further serious sex offence. The voluminous documentation that has been filed meets these requirements.
As already noted, s 10A and subsection 7(4) respectively confer power on the Court to make an ISO and to direct the defendant to attend a psychiatric examination. Those provisions respectively provide:
"7(4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:
(a) appointing:
(i) 2 qualified psychiatrists, or
(ii) 2 registered psychologists, or
(iii) 1 qualified psychiatrist and 1 registered psychologist, or
(iv) 2 qualified psychiatrists and 2 registered psychologists,
to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and
(b) directing the offender to attend those examinations."
"10A Interim supervision order - high risk sex offender
The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court:
(a) that the offender's current custody or supervision will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order."
The reference in each of these provisions to material in the "supporting documentation" that "would, if proved, justify the making of an extended supervision order" invokes the provisions of s 5B, specifically subsection 5B(1) which only allows the making of an extended supervision order in respect of a sex offender "if and only if the offender is a high risk sex offender". This directs attention to subsection 5B(2) which provides:
"An offender is a 'high risk sex offender' if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision."
On this application, Senior Counsel for Mr Dennis, Mr Johnston SC, did not dispute that the supporting material would, "if proved" satisfy this test. As I will explain, the only real dispute concerned the imposition of one condition attaching to the proposed ISO. Notwithstanding that position, it is appropriate and indeed necessary for the Court to identify the material which found the basis for the formation of the necessary opinions which justify the making of the ISO.
Mr Dennis is now 32 years old. He is described in the material as being affected by a mild intellectual disability. A psychologist's report dated 11 May 2012 described his level of intellectual functioning as falling into the "extremely low range" being around the "first percentile". Testing had revealed that his listening comprehension abilities including those concerning receptive language, expressive vocabulary and his ability to comprehend sentences fell within the borderline range.
On 6 December 2012, Mr Dennis was sentenced in the District Court on one count of sexual assault on a child aged between 10 and 14 years in circumstances of aggravation contrary to subsection 66C(2) of the Crimes Act 1900 (NSW); one count of sexual assault on a child aged under 16 years of age contrary to subsection 61J(1) and two counts of indecent assault on a child aged under 16 years of age contrary to s 61M(2).
In addition, there was taken into account on a "form 1" a charge of aggravated indecent assault on a child aged under 16 contrary to s 61M(2) and a charge of aggravated act of indecency on a child under 16 contrary to s 61O(1) of the Crimes Act 1900 (NSW).
Mr Dennis received sentences of imprisonment on each of the substantive counts. Those sentences combined to produce an overall sentence of five years and six months commencing 8 February 2011 and expiring 7 August 2016.
He was first eligible for release on parole on 7 August 2014 but he has not to date been released.
These offences all satisfy the definition of "serious sex offence" in subsection 5(1) of the Act. This has the consequence that Mr Dennis satisfies the definition of a "sex offender" in s 4.
It is not necessary on this application to describe the details of these offences, although it is clear that they are of the utmost seriousness. In short, Mr Dennis was in a relationship with the victim's mother. At one point when the victim was aged 11 years old she and her mother lived in the same house as Mr Dennis and his mother. In 2010 and 2011 when the victim was aged between 11 and 12 years Mr Dennis sexually assaulted her on a number of occasions by means that included digital penetration of the vagina. The circumstances of aggravation referred to in some of the offences was that the victim was under Mr Dennis' authority. Not surprisingly, the material available to the sentencing judge indicated that these assaults had a devastating effect on the victim.
Further, when Mr Dennis was 15 years old he was found guilty of aggravated sexual assault of a child under the age of 16 years contrary to subsection 61J(1) of the Crimes Act 1900 (NSW). In short, Mr Dennis performed oral sex on a seven-year old boy and asked the victim to do the same. No conviction was recorded for these offences but Mr Dennis was subject to a probation order that required him to attend counselling as directed.
Mr Dennis has also been convicted of two sets of malicious damage offences, both committed in 2006. With the second set of offences, it seems he attempted to burn down a neighbour's house. In June 2007 Mr Dennis pleaded guilty to two offences concerning that event, namely maliciously damaging property by fire and intimidation. He received a term of imprisonment to commence at the time of his arrest in December 2006 which allowed him to be released in 2007. Further, in December 2012 after Mr Dennis was sentenced in the District Court for the sexual assault offences referred to earlier, he was sentenced in the Newcastle Local Court to a term of imprisonment of three months for physically assaulting the mother of the victim.
Even though Mr Dennis was eligible for release on parole for the subject offences in 2014, he has remained in custody. A parole hearing is due to occur today and it is anticipated that a parole order will be made. It seems that he was refused parole in 2014 for a number of reasons, one of which included his failure at that time to participate in a therapeutic program designed to address his sexual offending. A suitable program had been made available to him, namely the "Self-Regulation Program for Sexual Offenders ("SRP:SO"). Eventually Mr Dennis agreed to participate in the program and he undertook the course from March 2015 to June 2016.
A number of psychologists' reports were placed before the Court on this application which assessed, inter alia, Mr Dennis' risk of reoffending. A psychologist from the SRP:SO program, Ms Langton, prepared a report dated 1 July 2016. Using the Static 99-R instrument, Ms Langton assessed Mr Dennis' risk of recidivism as being in the high-risk category relative to other offenders. However, Ms Langton also stated that his participation in the SRP:SO program suggested Mr Dennis now "demonstrates a good understanding of his risk factors and a high level of motivation to comply with future supervision and psychological intervention".
A risk assessment report signed by two psychologists and dated 11 November 2015 described Mr Dennis as presenting a high risk of sexual reoffending relative to other male offenders. The report pre-dated his completion of the SRP:SO program but stated that if he completed the program he would benefit from an extended supervision order.
It is noteworthy that the report identifies that Mr Dennis' past offending has followed a pattern of an "opportunistic offender", that is one who did not seek out the victims but instead whose offending arose out of particular circumstances. The authors considered it unlikely Mr Dennis would seek out a victim to molest but suggested that it was more likely that, if he was to offend, it would arise out of circumstances where he came into contact with a child of a family member or a partner.
The State read an affidavit of Miss Joy Lee Nowra sworn 8 July 2016 which addresses, amongst other matters, the accommodation that is to be made available for Mr Dennis should he be released. In particular it is proposed that, instead of returning to live with his mother, Mr Dennis live in a form of supported accommodation which Ms Nowra describes as involving an "onsite support living model".
She described the service provided under this model as being "transitional and medium term service model that operates 24 hours a day, staffing five to six service users who live semi-independently in the unit within the accommodation cluster in a residential area". It appears that a particular residential area has been identified which involves the leasing of five individual self-contained units for offenders together with one staff unit which is to be occupied on a 24-hour basis. Ms Nowra also stated that, if an extended supervision order is made in relation to Mr Dennis, the extended supervision order team will liaise with Disability Services Australia in relation to Mr Dennis' case management.
I return to the tests posited by s 10A and subsection 7(4) when read in conjunction with subsection 5B(2), namely, whether the matters alleged in the supporting documentation would, if proved, satisfy the Court to a high degree of probability that Mr Dennis poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.
In my view, that test is clearly met. The Court is satisfied to the requisite standard that the combination of Mr Dennis' past pattern of offending, his intellectual impairment and his initial reluctance to participate in rehabilitation programs means that, if left unsupervised, there is an unacceptable risk of him reoffending. Further, to the extent relevant, I note the material also indicates that the Court can have a significant degree of confidence that that risk can be mitigated to some degree by the form of supervision that is proposed.
Section 10A confers on the Court a jurisdiction to make an ISO if the two preconditions identified in that provision are made out. The first is that the offender's current custody of supervision will expire before the proceedings are determined.
It follows from what I have already stated that this condition is made out. The other is, as I have just stated, the conclusion that the matters alleged in the supporting documentation would, if proved, justify the making of a high-risk sex offender extended supervision order. For the reasons already stated, that precondition is made out. Otherwise, there is no apparent reason why, as a matter of discretion, the Court would not make an ISO.
The only question that has arisen concerns the conditions of that order. The imposition of conditions is authorised by s 11 and the approach to the imposition of conditions was discussed in Wilde v State of New South Wales [2015] NSWCA 28 ("Wilde") at [47] to [54]. At [54], the Court accepted that it is not appropriate to impose conditions on a person directed to general future criminal conduct but added that the imposition of a condition "does not have to have a 'demonstrated' link to the past offending in the sense submitted by the appellant" in that case.
Those comments were made in circumstances where the judge at first instance had referred with approval to a statement by me in the State of NSW v Fisk [2013] NSWSC 364 at [99] that the imposition of appropriate conditions is governed by the overriding purpose of mitigating the identified risk of the high-risk sex offender committing either serious sex offences or at least offences of a sexual nature.
It is unclear whether the Court of Appeal's conclusion in Wilde was meant to represent some disapproval of that statement. It is not necessary to determine whether it did.
In this case, the State had initially proposed a set of 51 conditions governing the release of Mr Dennis under an ISO. Senior Counsel for Mr Dennis made three points in his written submissions about those conditions. The first two concerned the drafting of those conditions, bearing in mind Mr Dennis' intellectual impairment. The State accepted the force of those points. Ultimately, the Court was presented with a revised set of conditions drafted in a form that Mr Dennis was more likely to understand.
After these conditions were provided, the parties then sought some further time to discuss the proposed conditions. When the matter resumed, it became apparent that there was only one condition that was in dispute. (The State had otherwise agreed to modify conditions 13, 18, 19, 32 and 42 of the revised draft that it had handed up). The one condition in dispute concerned the conferral of a power to search the accommodation facility that Mr Dennis will occupy. The condition proposed by the State was in the following terms:
"Robert, or his approved address, can be searched if the DSO reasonably believes that it is necessary: for the safety of others; or to monitor Robert's compliance with the order; or if the DSO reasonably suspects an increase in risk of Robert committing a serious offence. The DSO may seize anything found which might affect the safety of others or Robert's compliance with the order."
That condition needs to be read with a number of other conditions. Proposed condition 39 provides that Mr Dennis must allow Corrective Services to "search any phone, tablet device, data storage device or computer that he may use".
There are also other association conditions that limit or prohibit Mr Dennis' association with anyone under the age of 18 and which limit his association with anyone who he might form a relationship with. The necessity for those conditions is obvious when one has regard to the offences he committed in 2010 and 2011. There are also conditions limiting his possession and use of drugs and alcohol.
Counsel for the State submitted that the imposition of the proposed search condition noted above was appropriate for a number of reasons. First, he submitted that it generally facilitated the compliance with the other conditions set out in the extended supervision order.
In that regard, he pointed out that often persons such as Mr Dennis are released into so called "COSP" facilities which have private rules replicating the effect of the proposed condition. However, given that this is a less regulated accommodation environment, he contended it was appropriate to have this condition included in the ISO. Counsel pointed to a passage in a note prepared by Ms Langton in 2014 which referred, albeit in passing, to Mr Dennis having admitted to viewing child pornography.
Counsel submitted that this proposed condition facilitated a check of whether Mr Dennis had in his possession any child pornography. It was also submitted that this condition facilitated ensuring compliance with the conditions in respect of his not associating with children in that a search of Mr Dennis' apartment might reveal if he has items suggesting that he is in contact with children.
Mr Johnston SC submitted that the condition was not appropriate in light of the other proposed conditions. In particular, bearing in mind that one of the proposed conditions allows Corrective Services to search for any phone, tablet device, data storage device or computer that Mr Dennis is using, it was submitted that a further condition allowing a search of his room was not necessary because it is only those items that realistically are likely to contain child pornography. Otherwise, Mr Johnston SC submitted that neither the record of Mr Dennis' past offending or the other material suggested that any general search power of this kind was necessary or appropriate to mitigate the risk of future offending.
In my view, the imposition of this condition is "appropriate" (s 11). The statement in Ms Langton's report concerning Mr Dennis having viewed child pornography raises a concern that Mr Dennis may seek to view child pornography again, and that may be connected to his further committing offences against children.
At the very least, the condition of the kind that is proposed would supplement the proposed condition about searching any electronic device because it would allow Corrective Services to determine if he was truthfully telling them how many such devices he had.
Similarly, the imposition of this condition would facilitate ensuring Mr Dennis' compliance with the conditions relating to alcohol which is a potential risk factor in relation to his reoffending. The condition would also enable checks to be done to ensure that he is complying with the various non-association conditions which also themselves have a clear link to his past offending. Accordingly, I consider it appropriate to include the proposed condition in the conditions attaching to the ISO.
There remains the application for orders under subsection 7(4). Subsection 7(4) obliges the Court to make those orders if the preconditions have been met which they clearly are. It follows that it will be necessary to make orders in accordance with that provision. Accordingly, the Court makes the following orders:
1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW), the Court:
1. appoints Dr Andrew Ellis to conduct a psychiatric examination, and Mr Patrick Sheehan to conduct a separate psychological examination of the defendant, with both experts to furnish reports to the Supreme Court, and the results of those examinations by 31 August 2016; and
(b) directs the defendant to attend those examinations.
1. Pursuant to s 10A of the Act, the defendant be subject to an ISO from 14 July 2016 for a period of 28 days, and pursuant to s 11 of the Act, that for the period of the ISO, the defendant comply with the conditions set out in the schedules dated 14 July 2016 initialled by me and placed with the papers.
2. Direct the parties to have leave to approach the manager of listings to obtain a final hearing date with an estimate of one day.
3. Direct that access to the Court file in respect of any document should not be granted without the leave of the judge of the Court.
4. There be liberty to apply to re-list the matter on one day's notice.
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Decision last updated: 20 July 2016