The State of New South Wales ("the State") seeks an extended supervision order in respect of the defendant, Mr Feeney. The matter is before me today because, by way of interlocutory relief, the State is seeking an interim supervision order under section 10A of the Crimes (High Risk Offenders) Act 2006 (NSW).
The State is represented by Mr Hammond of counsel and Mr Feeney is represented by Mr Fraser of counsel.
I should say at the outset that, without prejudice to Mr Feeney's right to fully contest the application for principal release at the final hearing if so advised, he, through his counsel, acknowledges that the material that the State have put before the Court, in the form of the three affidavits read today, is capable of satisfying me about the statutory conditions necessary to found the making of the Interim Supervision Order, were I otherwise satisfied in the exercise of my independent discretion.
There is no doubt that the Supreme Court has jurisdiction to consider the application. Mr Feeney is a serious offender, having been convicted of, and currently in custody serving a sentence for, a serious sex offence.
The index offence, as it is referred to in this area of discourse, occurred between 1 July 2013 and 17 December 2013 and involved a forced act of oral sex with a teenage female aged about 14. He was arrested on December 2013 and charged with that offence. He entered a plea of guilty on 26 June 2014 and on 4 February 2015 he was sentenced by his Honour Judge Whitford SC in the District Court to a term of imprisonment, having a non-parole period of 4 years and 6 months, commencing on 18 December 2013 and an additional term of 18 months, expiring on 17 December 2019. He first became eligible for parole on 17 June 2018 but parole was not granted at that time because he had not taken the opportunity to engage in sex offender's rehabilitation programs that were available to him, as his release date approached. I interpolate that he has, in the last 12 months, undertaken such a program and from the evidence read in support of the State's application, he does seem to be participating in the program in an appropriate way and making progress in it.
I am satisfied that the defendant is a supervised offender to whom the Act applies. I am also satisfied, more generally, that the application has been made in accordance with the provisions of section 5I of the Act. It is also the case that section 6 has been complied with, inasmuch as the application has been made within the last nine months of Mr Feeney's current custody. I repeat, his sentence is to expire on 17 December 2019 and the application was filed on 16 August 2019.
I am also satisfied that the affidavit evidence is supported by documentation that addresses each of the matters referred to as mandatory conditions in section 9(3) of the Act. That material also includes a report of Dr Parker, who assesses the likelihood of Mr Feeney committing another serious offence and I have also received a document, as an annexure to the summons, containing the conditions of supervision proposed if the interim order is made.
Under section 10A the court is empowered to make an order for the interim supervision of Mr Feeney if it appears, in proceedings for an extended supervision order, that, first, Mr Feeney's current custody will expire before the proceedings are determined and, secondly, that the matters alleged in the supporting documentation I have referred to would, if proved at a final hearing, justify the making of an extended supervision order.
I am satisfied that it is likely that Mr Feeney will be released before the proceedings are determined. I have reached that conclusion because, although a parole hearing from earlier in the year has been adjourned to 24 October 2019, having regard to the progress he has made on the rehabilitation program I have referred to, there must be a real chance that the Parole Authority will decide to release Mr Feeney to parole. In any event, his sentence will expire on 17 December 2019 and, on either basis, it may be that his custody will expire before the proceedings are determined.
Turning then to the supporting documentation, the question that I really have to answer is, having regard to the provisions of s 9(2) and in particular the mandatory conditions set out in s 9(3) of the Act, whether the material put before the court is capable of satisfying the court after a final hearing to the requisite high degree of probability that Mr Feeney poses an unacceptable risk of committing another serious offence if not kept under supervision by an extended supervision order. It is not necessary that I should at this preliminary stage have that actual degree of satisfaction, that is to say satisfaction to a high degree of probability. It is sufficient if, looking at the material put before the court, uncontested as it is for current purposes only, I am satisfied that the acceptance of it by a judge at the final hearing would justify the making of the order, bearing in mind the requirements of s 5B(d).
I have said to counsel that I do not propose to go through the mandatory considerations in s 9(3) in any great detail. This is a preliminary application. It is not closely contested and the setting out of extended reasons by me as to the effect of all of the material put forward in respect of each of the matters for consideration will not in any way relieve the judge charged with the final hearing from making his or her own decision. At this stage, although it is no small thing to impose an interim supervision order, no final determination is being made and I propose to therefore give my reasons in a fairly short form.
Of course at this stage the reports referred to in s 9(3)(b) are not available. If I am satisfied that I should make an interim supervision order it will be necessary for me to make orders in relation to the appointment of experts and Mr Feeney's attendance on them under s 7(4) of the Act.
However, as I have mentioned already, the material put before me does include a risk assessment report from Dr Richard Parker, a senior psychologist employed by Corrective Services New South Wales. I should say Dr Parker has assessed Mr Feeney as having an intellectual disability. That is not a matter which is necessarily accepted by Mr Feeney or by other experts. But moving on from that, the expert points out that given his criminal history, to which I will refer again in a moment, and his absence of experience living in the community there is a significant element of institutionalisation. Mr Feeney has spent most of his adult life in custody and he is now 54 years of age; I think Mr Fraser calculated that since he turned eighteen he has spent only ten years at large in the community. It is also important to understand that he has a substance abuse history and Dr Parker believes that an aspect of his institutionalisation. Taking these matters together with the other factors I have referred to means it is unlikely Mr Feeney would be able to transition to a law-abiding lifestyle without substantial assistance by way of supervision. I remind myself rehabilitation is a purpose of the Act but not its primary purpose.
In any event, Dr Parker administered actuarially based risk assessment tools for this area and, while acknowledging the limitations of those tools, indicated that Mr Feeney's scores, particularly the STATIC-99R results recorded by a colleague of Dr Parker in February 2017, indicated that he is in the "well above average risk range", formerly referred to in a previous version of the same tool as the "high risk category". I acknowledge that much weight is given to historical risk factors in this area and in Mr Feeney's case they are significant given that the index offences is the third serious sex offence for which he has been convicted and sentenced. The rates of sexual recidivism for individuals achieving the same score as Mr Feeney were 3.8 times higher than that of the typical sex offender, whatever that might mean.
Dr Parker also used the STABLE 2017. This measures the presence of dynamic risk factors consistently related to sexual reoffending. The factors, however, are the type of factors which are addressed in the course Mr Feeney is currently receiving in custody. The VRAG-R tool, directed more to the risk of violent offending, produced a high risk range in respect of Mr Feeney. It has some relevance, according to Dr Parker, for an individual's risk of sexual violence as well as general violence. But I also note that under the current regime since the 2017 amendments came into force the Court is entitled to assess the risk of serious offending generally. It is not restricted to a dichotomy of serious sex offending and serious violent offending. It seems to me, bearing in mind there will be other evidence, that Dr Parker's results are capable of supporting a decision that there is an unacceptable risk in the statutory sense in Mr Feeney's case.
I have also seen what is proposed in relation to parole if he were to be released on parole and I have read the affidavit of Ms Grabham in relation to what can be done to supervise Mr Feeney in the community under the Act and it seems to me the supervision to be afforded by an interim, or of course extended supervision, order is much superior to the type of supervision which would be available from a community protection point of view if he was simply released on parole. Although I do note that electronic monitoring is available to persons released on parole these days. It does seem that Mr Feeney can be reasonably and practically managed in the community under an ESO. As I have previously mentioned, although slow to take up the opportunity, apparently Mr Feeney is making process in an appropriate course of rehabilitation in custody.
It does seem to me that if Mr Feeney was kept in custody rather than in the community the issue of institutionalisation which Dr Parker has referred to would be the very type of thing which would enhance, by that I mean increase, his risk of reoffending because of the pernicious effects of that process. Mr Feeney has had some difficulty in the past complying with terms of parole and in fact, as I have mentioned, this is the third serious sex offence whilst on parole for other offending. In 1995 he committed the offence of assault occasioning actual bodily harm during a break-in to a home when he injured a young woman in circumstances which could have amounted, as counsel submits, to an aggravated indecent assault and therefore serious sex offence. In March 1995 he committed an aggravated indecent assault, and on 28 March 1995 he was arrested while on parole and taken into custody for the first of his three serious sex offences. That offence occurred during an offence of aggravated break and enter. He was sentenced to a period of imprisonment and released on parole on 27 March 1996. He breached his parole by absconding from his residential address on 19 April and on 28 April 1996 he committed his second serious sex offence. In respect of that matter he received a minimum term of six years and an additional term of two years which I think expired on 10 December 2005. He served his whole sentence and, I interpolate, obviously he was considered not suitable for parole. After his release on 10 December 2005 he committed an offence the very next day, 11 December 2005. Again it was an offence of aggravated break and enter for which he received a three year term of imprisonment with a non-parole period of two years and three months. Again he served the whole of the sentence, not being released until 10 December 2008. I have already referred to the circumstances in which he committed the third serious sex offence.
With this history in the community there may be questions about his compliance with the obligations of an extended supervision order. However, given the nature of the supervision which is likely to be available it is likely that he will. But that record I have referred to indicates that his record of complying with obligations while released on parole has not been good. I should say this is the first time that Mr Feeney will be required to comply with obligations under the child protection legislation. He has no track record in that regard, but whilst under supervision the prospect of him complying is high.
I have referred to his criminal history in relation to sex and other offences. He does have a very poor criminal record both in New South Wales and in other States. It must be said that the pattern of offending includes serious property offences and two of his serious sex offences occurred in circumstances of committing such a crime when he took the opportunity to offend in that way that was presented during the break-in. I note that although his Honour Judge Whitford was somewhat sympathetic to the subjective features of Mr Feeney's case he was not sanguine about the prospects of rehabilitation or reoffending.
I think that the evidence does indicate that Mr Feeney's substance abuse problems have not abated whilst he has been in custody. They certainly played a very significant part in the index offence, if not in other offending previously. He has committed significant breaches of prison discipline in relation to substance abuse suppression. That will be a challenge for those supervising him. If he does not get that matter under control it will present a very significant criminogenic factor pointing to a high risk of reoffending.
Bearing in mind s 9(2), I am well satisfied that the material that has been put before me on this preliminary application if accepted at a final hearing would justify a finding of unacceptable risk and the exercise of the court's discretion to make an extended supervision order.
I will turn then to the conditions proposed in relation to the interim supervision order and, of course, propounded in respect of final relief. There is little, but some significant, dispute. I should say that there is no dispute about the reporting and monitoring conditions which are often very contentious in cases of this type. Mr Feeney will be subject to electronic monitoring, amongst other conditions. There is no dispute about accommodation conditions, place and travel restrictions substantially in respect of all the other conditions of a type normally seen as the stringent conditions imposed as part of the interim supervision order.
The three conditions which are in dispute are firstly condition 18. As now proposed that is in the following terms:
The defendant must not attend any place where he knows illicit drugs are sold.
An objective test was removed after the State received Mr Fraser's submissions. Mr Fraser still submits that this condition puts Mr Feeney at significant risk of inadvertently breaching his conditions. I remind myself that when one is considering the appropriateness of conditions under s 11, one is entitled to have regard to the general right of the subject to be at liberty after completion of a term of imprisonment and one needs to bear in mind that although the remedies sought by the State fall within the civil jurisdiction of the Court, penalties for breach are criminal penalties. The legislation, under s 12, makes it an offence not to comply with the requirements of an order. Contravention of that provision carries a maximum term of imprisonment of five years. The pattern of sentencing in the Local and District Courts for those offences suggests, as is not inappropriate, that breaches of conditions are treated as relatively serious matters. One has to bear that in mind.
Having said that, it seems to me that, given the substance abuse issues, that condition 18 as it now stands is appropriate. The removal of the objective test I think greatly reduces the risk of inadvertent breach and the current condition depends upon his actual knowledge. Inadvertence, therefore, would not lead to his conviction, provided, of course, he absented himself from the premises if during his stay there it came to his attention they were being used for that purpose.
Condition 24 is in dispute. It is in the following terms:
If directed, the defendant must attend and participate in programs and courses for drug and alcohol rehabilitation and must not discharge himself from such programs and courses without prior approval of his [department supervising officer] or any person treating the defendant in those programs. In the event that he were to discharge himself from such a program the defendant must notify his DSO within twenty-four hours and advise his reason for doing so.
Mr Fraser substantially objects to the requirement of prior approval of the district supervising officer or the supervisor of the treatment provider. He points out that circumstances may arise where it is reasonable for Mr Feeney to withdraw, given the possibility of difficulties with other participants or even with staff providing the services. In those circumstances he submits that it is unreasonable to require Mr Feeney to obtain the supervisor's prior approval to leave. In that event the circumstance that he is entitled to discharge himself and give his explanation to the DSO later is of little value.
It seems to me that as currently drafted the condition is appropriate. I have already emphasised the importance of substance abuse both as a factor in community protection as well as a factor in Mr Feeney's rehabilitation. I understand that difficulties can arise with even the staff at a rehabilitation provider. It is my experience that the department supervising officers are generally fairly readily available by way of telephone contact or otherwise. In my judgment it is no great burden to require Mr Feeney to, if he cannot talk to the staff at the rehabilitation centre, contact his DSO and get approval to leave a program. As I have said, participation in these programs is important, both from the point of view of community protection and Mr Feeney's rehabilitation.
Finally, Mr Fraser objects to condition 44 which deals with changes to Mr Feeney's appearance. The State has sought to accommodate Mr Fraser's concern by changing that condition so it now reads:
The defendant must not change his appearance such that his visual appearance changes significantly without advising his DSO of his intentions.
Mr Fraser has drawn my attention to the decision of Garling J in State of New South Wales v Carney [2019] NSWSC 622 at paragraph 32 where his Honour referred to a similar condition as being "so vague as to be incapable of realistic enforcement". His Honour also observed:
The likelihood that this defendant would change his appearance so quickly so it could not be observed by his DSO, is so remote that it is not a realistic prospect.
Mr Fraser submits that those observations are apposite here. I hope Mr Feeney will take no offence if I say he is a man of fifty-four years of age of indigenous heritage with a beard and, forgive me for saying so, a bald head. He has tattoos on his right forearm and perhaps elsewhere. Except for removing his beard it seems difficult to think he could significantly change his appearance in such a manner as to disguise himself for the purpose of avoiding or evading compliance with the conditions or perpetrating some further crime, which amounts to the same thing. Moreover, the other stringent conditions in relation to reporting and monitoring, accommodation and the like are not challenged.
I can understand the sense of a condition like condition 44 if there was a real prospect that a person may be capable of going, and of a mind to go, to elaborate lengths to disguise his appearance for the purpose of evading compliance and committing other offences or even fleeing the jurisdiction. Such cases do arise. However, given the overall suite of conditions applicable in this case and the limited options available to Mr Feeney to significantly change his appearance, I am satisfied that that condition is not appropriate or necessary in the circumstances and I will delete it from the conditions of the interim order I will impose.
Under the legislation I may not impose an interim supervision order for more than twenty-eight days and the court is not empowered to impose any more than three such orders in a given case. However, although Mr Feeney is in custody until, at the earliest, 24 October 2019, an order pronounced today will be suspended during the currency of his time in custody so it is still of practical utility to make the orders now.
For the reasons I have given I make orders in accordance with the short minutes of order signed by me and dated today. These orders may be entered forthwith. I also order that access to the court's file for any document shall not be granted to a non-party without leave of a judge of the Court and prior notice to the parties so as to allow them an opportunity to be heard in respect of an application for access before the order is made.
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Decision last updated: 01 October 2019