State of New South Wales v Farzad

Supreme Court of NSW|2023-10-03|Before: Dhanji J

EX TEMPORE JUDGMENT (revised)

HIS HONOUR: By summons filed on 8 September 2023, the plaintiff seeks an order that the defendant be subject to a continuing detention order (CDO) for a period of two years pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (The Act). The plaintiff also seeks, following the expiration of the CDO, an order that the defendant be subject to an extended supervision order (ESO). Various conditions are sought as part of that order.
Prior to any final order being made, the plaintiff seeks interim orders as follows: "1. An order pursuant to s. 15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): a. Appointing two qualified psychiatrists or psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and b. Directing the defendant to attend those examinations. 2. An order pursuant to s. 18A of the Act that the defendant be subject to an interim detention order for a period of 28 days ("interim detention order") unless renewed on further application by the defendant or the proceedings are finally determined. 3. An order pursuant to s. 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in paragraph 2 above."
In the event the Court is not satisfied of the appropriateness of an Interim Detention Order (IDO), the plaintiff seeks interim orders in the alternative to 2 and 3 above as follows: "a. An order pursuant to ss. 10A and 10C(1) of the Act that the defendant be subject to an interim supervision order for a period of 28 days unless renewed on further application by the plaintiff or the proceedings are finally determined; and b. An order pursuant to s. 11 of the Act, directing that the defendant for the period of the interim supervision order comply with the conditions set out in the Schedule to this summons."

The evidence on the application

The plaintiff, on the application, read the affidavit of Brett Thomson of 8 September 2023, together with the exhibit to that affidavit, limited to the items indicated in an index included as part of the exhibit. The plaintiff additionally relied on the affidavit of Briony O'Loughlin of 21 September 2023 and a letter to Dr Sarah-Jane Spencer dated 19 September 2023.
No evidence was led by the defendant.

The legislative scheme

The Act is designed to address the "almost intractable problem" of how "the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release": State of New South Wales v Donovan [2015] NSWSC 1254 at [3]. The objects of the Act are set out in s 3: 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.
Section 17(1) of the Act provides that this Court may determine an application for a CDO by making an order for an ESO or making an order for a CDO or dismissing the application.
Section 17(2) provides that in determining whether or not to make a CDO or an ESO, the "safety of the community must be the paramount consideration". It follows that CDOs and ESOs are in their nature protective and not punitive: Attorney-General for New South Wales v Tillman [2007] NSWCA 119 at [5] ("Tillman").
Section 15(3) of the Act requires a preliminary hearing into the application be conducted within 28 days of the filing of the application.
Section 15(4) provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or an ESO, the Court must make orders appointing the relevant experts to conduct examinations and furnish reports to the Supreme Court and directing the defendant to attend those examinations. If, on the other hand, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an order, I must dismiss the application: s 15(5).
Section 18A provides: 18A Interim detention order The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court - (a) that the offender's current custody (if any) will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order.
It is to be noted that s 15(4) mandates the making of certain orders if the relevant test is satisfied, while s 18A provides the additional requirement in s 18A(a) and, by the use of the word "may", a discretion as to whether an order will be made: see Tillman at [32]. Otherwise, both provisions provide for the same threshold, that is, "that the matters alleged in the supporting documentation would, if proved, justify the making of a [CDO] or an [ESO]": s 15(4). That test draws attention to the central provisions with respect to CDOs and ESOs. Having regard to the primary relief sought by the plaintiff, it is appropriate to, at least in the first instance, focus on the test applicable to a CDO.
With respect to CDOs, s 5C provides: 5C Making of continuing detention orders - unacceptable risk The Supreme Court may make an order for the continued detention of a person (a continuing detention 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 detained offender or supervised offender (within the meaning of section 13B), and (c) an application for the order is made in accordance with section 13B, and (d) the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.
Section 5D further clarifies the test in s 5C by providing that the Court "is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence".
The expression "supporting documentation" in ss 15 and 18A is defined in s 4 to mean the documentation referred to in s 14(3). That subsection provides that an application for a CDO must be supported by documentation that addresses each of the matters referred to in s 17(4) of the Act and a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence. The test thus requires satisfaction that the "matters alleged in the supporting documentation would, if proved, justify" a positive finding with respect to each of the matters in s 5C.

The factual background

The defendant, currently aged either 55 or 56, settled in Australia in about 1983 at the age of 15. He experienced some difficulty during his schooling. He held casual jobs for short durations in early adulthood and began receiving a disability support pension for a mental illness in 1995. He has lived in various places throughout Australia.
He was admitted to psychiatric hospitals for brief periods in the period between late 1995 and December 1996.
In March 1997, he was charged with offences of peep/pry, which were later dismissed.
In May 1999, he was charged with two offences of sexual intercourse without consent and indecent assault, together with a separate offence, alleged earlier in time, of wilful and obscene exposure. Those offences were dismissed in the following year.
In September 2000, he was charged with two offences of indecent assault with respect to one complainant and a further offence of sexual intercourse without consent with respect to another complainant. He was subsequently acquitted in relation to those charges.
In June and July 2002, the defendant was alleged to have committed sexual offences against another complainant. He was not charged with these offences until August 2006.
In 2002, he committed offences of sending threatening documents, comprising email and SMS messages, to a detective and a female complainant.
In December 2003, he travelled to Melbourne in the context of an apparent relationship with a woman he had met over the Internet. He was admitted as an involuntary patient for mental health treatment in December 2003, subsequently absconding on 30 December 2003.
It was in that context that he returned to Sydney and committed a number of serious offences in May 2004. They comprised offences of causing a person to take a stupefying drug with intent to commit a serious indictable offence, of which there were two counts, one against the mother of a 13-year-old girl and one count against the 13-year-old girl. The serious indictable offence intended was the sexual assault of the 13-year-old child. He was additionally charged with aggravated sexual intercourse, two counts of aggravated attempt to have sexual intercourse, and one count of aggravated indecent assault, all with respect to the same child complainant.
I pause to note, that the earlier offences of a sexual nature to which I have referred related to adult complainants and not to child complainants.
The defendant entered custody as a result of these charges in May 2004. On his conviction, he was sentenced to imprisonment, the total effective sentence being one of ten years, which was ordered to commence on 8 June 2004, expiring on 7 June 2014. A non-parole period of 6 years was set.
In the meantime, the charges relating to allegations from June and July 2002 were laid. The defendant was found unfit to be tried with respect to those offences in December 2007, and a limiting term was set. He was subsequently found fit to be tried in June of 2014. He remained in custody beyond the term of his sentence, as a result of these unresolved charges, until 28 August 2015, when he was found not guilty of the 2002 offences, resulting in his release from custody that day.
I note that the defendant had been referred to the Custody Based Intensive Treatment (CUBIT) program whilst in custody in February of 2014, but had not completed it when he was released in August of 2015.
On 2 September 2015, an Interim Child Protection Prohibition Order was made under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). A final order was subsequently made for a period of five years, expiring on 28 August 2021.
The defendant moved to Tasmania in March of 2017. Whilst in Tasmania, he was charged, and subsequently convicted, with respect to a number of breaches of his reporting obligations.
Additionally, in 2019, he was charged with additional offences with respect to his failure to comply with reporting obligations and with the possession of child exploitation material relating to some 43 images. He was convicted and sentenced to 12 months imprisonment in relation to that offending.
In June of 2020, a Community Protection Order was made under the Community Protection (Offender Reporting) Act 2006 (Tas), imposing various obligations on the defendant, including reporting.
In 2020, he committed a number of offences in relation to his failure to comply with that order, resulting in a six-month term of imprisonment, imposed in December of 2020.
In June of 2022, apparently back in New South Wales, the defendant committed offences relating to his failure to comply with his Child Protection Prohibition Order and was ultimately sentenced to 16 months' imprisonment with a non-parole period of 8 months, ordered to commence on 23 June 2022. Having regard to the length of sentence, his release to parole was automatic, resulting in his release on 22 February 2023.
Whilst on parole, he committed offences in relation to an assault on a law officer, use of a carriage service to menace, and intimidation. He has pleaded guilty to those charges and is bail refused. They are next listed in the Local Court on 24 November 2023 for an application pursuant to s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). I understand that, in the event that that application is unsuccessful, the matter will proceed to sentence.
Additionally, the defendant's parole has been revoked due to his failure to comply his parole order. The defendant is therefore currently in custody serving his sentence which does not expire until 22 October 2023.

The serious offence committed by the defendant

The plaintiff relies on the offences committed in 2004 as serious offences within the meaning of the Act. It is appropriate to say something more with respect to the circumstances of those offences. They arose as a result of the defendant's contact, in early April 2004, with a woman through a telephone chat line.
In May 2004, the defendant spoke with the woman and, in the context of her indication that she did not have employment, suggested to her that he might have weekend work available to her. As a result, the defendant attended the woman's home, at which time, her 13-year-old daughter was present.
He surreptitiously administered a stupefying drug to both the mother and the daughter, the mother fell unconscious, and the defendant asked the daughter to accompany him to the bedroom where he held her down on the bed and threatened her. He then committed various acts resulting in the charges to which I have referred.

The assessment of risk

In determining whether the matters in the supporting documentation would, if proved, justify the making of a CDO or an ESO, I am required to have regard to the factors set out in s 17(4) of the Act. These, as presently relevant, are as follows:

The reports received from the persons appointed under s 15(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination: s 17(4)(b)

As this is a preliminary hearing, no such persons have yet been appointed.

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or a registered mental health practitioner: s 17(4)(c).

The most relevant of these documents is the risk assessment report prepared by Holly Cieplucha dated 19 July 2023.
That report refers to the defendant having commenced the High Intensity Sex Offender Program (previously 'CUBIT') whilst incarcerated in 2014 but notes that he was released from custody prior to its completion. The report observes that he has not participated in any other offence-specific treatment programs since that time. It is also indicated that, during his most recent time in the community, he is not engaged with any formal supports.
The defendant's risk of sexual re-offending was assessed as falling in the "[w]ell [a]bove [a]verage range" on the basis of an actuarial risk assessment measure comparing the defendant to other male sexual offenders.
Significant in the context of the immediate future, is the author's observation that the defendant has "struggled to obtain and maintain stable accommodation in the community". It is indicated that the defendant obtained accommodation in a boarding house in March 2023 but relinquished the property of his own volition in around May 2023, leading to significant instability with respect to his accommodation including residing in his car.
The report also notes that, during his recent period on parole, concerns were raised with respect to his presentation and mental health. It is noted that, despite attempts by Community Corrections staff to refer the defendant to community mental health support, he did not receive psychiatric care in the community.
It would appear that, whilst in custody, the defendant is receiving antidepressant medication but is not presently receiving any antipsychotic medication. I note that the defendant has, in the past, received antipsychotic medication.
There are other reports in the material, although they are of some age. Significantly, they confirm that a firm diagnosis with respect to the defendant's mental illness or mental illnesses or personality disorders or other psychological conditions has proved elusive. Presumably related to that, establishment of a clear management plan for the defendant has also proved elusive.

The results of any statistical or other assessment: s 17(4)(d)

I have had regard to the results of statistical and other assessments pursuant to s 17(4)(d). Those matters were taken into account in the risk assessment report.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community: s 17(4)(d1)

I have had regard to the risk management report prepared by Ekin Serdar of 3 August 2023. That report sets out the various means available to Corrective Services with respect to supervision of the defendant. The report also sets out some of the difficulties that have been experienced in managing the defendant under supervision.

Any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs: s 17(4)(e)

Treatment and rehabilitation programs in which the defendant has had an opportunity to participate and his willingness to participate in such programs have been dealt with in the risk assessment report.

Options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time: s 17(4)(e1)

The available options available if the defendant is kept in custody or in the community that might reduce the likelihood of the defendant re-offending over time have been considered in the risk management report.

The likelihood that the offender will comply with the obligations of an extended supervision order: s 17(4)(e2)

I have regard to the likelihood that the defendant will comply with the obligations of an extended supervision order. There is clearly a concern in this regard on the current state of the material.

The level of the offender's compliance with any obligations to which he has been subject while on release on parole or while subject to an earlier extended supervision order: s 17(4)(f)

I have regard to the level of the offender's compliance with any obligations to which he has been subject whilst on parole. As I have already indicated, there have been difficulties with his management and supervision.
The report relating to his breach of parole indicates that subsequent to his release, the defendant continued to enter into high-risk situations within the community and failed to engage with Community Corrections and the supervision process "appropriately or meaningfully". The report indicates that on the defendant's release in February 2023, and again in June 2023, he entered into relationships with women he had met online by posting advertisements indicating his need for accommodation.
The report indicates that in both February and June 2023, the women he met through this method were both apparently primary carers of children, hence the conclusion with respect to his entering into high-risk situations.

The level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 (NSW) or the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW): s 17(4)(g)

I have had regard to the defendant's level of compliance with obligations to which he has been subject under the Child Protection (Offenders Prohibition Orders) Act. In this regard, I have referred already to the defendant's history, and in particular, the various breaches of orders under relevant legislation.

The offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history: s 17(4)(h)

I have had regard to the defendant's criminal history including any pattern of offending behaviour disclosed by this history.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender: s 17(4)(h1)

I have had regard to the views of the sentencing court at the time that the defendant was imprisoned in relation to the serious offences committed in 2004. I note that Murrell SC DCJ observed that the physical acts comprising the sexual intercourse, the attempted sexual intercourse, and the indecent assault "were not in the worst category of offences against a child", but that the "overall criminality was very substantial because of the number of incidents and the associated force and threats, which created a climate of terror".
Her Honour also noted the use of telephone and internet dating services and the potential for persons to be brought together in circumstances where persons may be vulnerable.
The use of such a service in the 2004 offences is significant in the context of the defendant's ongoing use of such services including whilst on parole most recently, bringing him into contact with women and children.

Any other information that is available as to the likelihood that the offender will commit a further serious offence: s 17(4)(i)

I am also entitled to have regard to any "other information" that is available as to the likelihood that the defendant will commit a further serious offence. In that regard, the plaintiff points to various charges laid against the defendant with respect to sexual offences in relation to which no convictions were recorded.
The circumstances surrounding at least some of those allegations, even if not involving criminal conduct, do support consistent use of telephone or internet dating services to engage in sexual intercourse.
It is relevant, in this context, with respect to the protection of the community, to note that those interactions resulted in complaints with the potential that acquittals may have been based on the mental state of the defendant rather than the actual absence of consent on the part of any complainant. However, given the uncertainty as to this, it is inappropriate to place any weight on that matter beyond what I have said with respect to the defendant's contact with persons through those methods.

Would the matters alleged in the supporting documentation, if proved, justify the making of an order?

I approach the test on the basis discussed above.
There is no issue, based on the matters alleged in the supporting documentation, that the defendant satisfies s 5C(a) of the Act. That is, he is an offender as defined in s 4A, and has served a sentence by way of actual custody for a "serious offence" (as defined in ss 4 and 5A). The 2004 offences fall within the definition of a "serious offence".
I am further satisfied that the defendant is a "supervised offender" within the meaning of s 13B, and the application has been made in accordance with s 13B. Sub-Sections 5C(b) and (c) are therefore satisfied.
Additionally, the defendant accepts that the matters alleged in the supporting documentation would, if proved, justify the Court's satisfaction to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.
The defendant's concession is well made. It is made in regard to the terms of s 18A(b) which provides that, albeit the Court is considering an IDO, it is sufficient if the supporting documentation would, if proved, justify the making of either an ESO or a CDO.
The defendant's submission is that, in the exercise of my discretion, I would not impose an IDO. In the defendant's submission, an ISO would be sufficient to manage the defendant in the community, and would be the more appropriate option. In particular, the defendant submits that at the centre of any concern, is the defendant's mental health and that this can be properly managed in the community.
The defendant points to the fact that the serious offence which triggers the legislation in the case of the defendant is now of some age, indeed, having occurred almost twenty years ago.
There is some force in the submissions ably made on the defendant's behalf. However, it is also clear that whilst the serious offence is of some age, the defendant's problematic behaviours are longstanding and ongoing. It is regrettable that so long after the commission of the offences in 2004, the defendant is in custody without a clear diagnosis or treatment regime. That, however, is the situation with which I am faced.
Additionally, whilst the 2004 offences are of some age, there is more recent conduct which causes real concern. In particular, the defendant's possession of child exploitation material in 2019. His possession of that material was in the context of his failures to comply with a Child Protection Prohibition Order to which he was subject.
Beyond that, the defendant has relatively recently been in the community subject to parole but, during that time, has been unable to obtain any real measure of stability. Particularly concerning is the relationship he established in June 2023 in the context of seeking to arrange accommodation.
As I have already indicated, the woman with which that arrangement was made was the primary carer of a child. Whilst there were claims that the child was not residing at the proposed property, the relevant Community Corrections officer had significant concerns.
The breach report notes the defendant claimed that he and the co-resident were in love, and he spoke in vulgar terms regarding the woman. The woman, on the other hand, denied that the two were in a romantic relationship, and indicated she had resisted gestures of love from the defendant, resulting in her impression that he was mentally unwell.
That, as I say, is concerning in the context of the defendant's history, not only with respect to the mental illness but, more particularly, with respect to its manifestation in his belief as to a romantic relationship with a woman he had met online very recently.
The defendant is presently not on any antipsychotic medications. He has previously been treated with such medications in the past. The defendant submits that he is managed within the normal gaol, indicating that there may not be a need for such medications at present. The difficulty is that there is much uncertainty surrounding that situation, particularly having regard to his recent performance on parole.
Regrettably, he has very limited supports in the community. His mother is elderly and, it appears, not able to offer significant support. He apparently has some support from his brother, although, that appears to be of a limited nature.
It is unclear as to what arrangements he has with respect to both accommodation and his mental health care. Whilst it is true that between now and any potential release in November 2023, some arrangements might be made both with respect to living arrangements and mental health, there is simply a cloud of uncertainty over all of that.
It is hoped that by making orders with respect to the appointment of appropriate experts to examine the defendant in the context of the application for the CDO, some greater degree of certainty will be obtained with respect to the means of managing the defendant whilst protecting the community. In the meantime, I am of the view that it is not appropriate that I exercise my discretion in favour of an ISO, but rather, the IDO should be made.

Orders

I make the following orders: 1. Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act): 1. I appoint two qualified psychiatrists or psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. I direct the defendant attend those examinations. 1. Pursuant to s 18A of the Act the defendant is subject to an interim detention order for a period of 28 days (interim detention) unless renewed on further application by the plaintiff or the proceedings are finally determined. 2. I order pursuant to s 20(1) of the Act, that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in Order 2 above. 3. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and if any application for access is made by a non-party in respect of any document, the parties are to be notified by the registrar so as to allow them an opportunity to be heard in relation to the application for access.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2023

Community Protection (Offender Reporting) Act 2006(Tas)

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Judgment (21 paragraphs)

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