State of New South Wales v Fernando - [2016] NSWSC 1665 - NSWSC 2016 case summary — Zoe

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State of New South Wales v Fernando

[2016] NSWSC 1665

Supreme Court of NSW|2016-11-23|Before: Adamson J, Beech-Jones J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-11-23

Before

Adamson J, Beech-Jones J

Source

Original judgment source is linked above.

Judgment (68 paragraphs)

[1]

Background facts

If the threshold test in s 5B is met, the matters to be considered are listed in s 9. Before addressing these matters, I propose to set out a narrative derived from the evidence adduced by the plaintiff.

[2]

Offences committed as a minor

The defendant was born in 1962. In 1974, when the defendant was twelve, he was convicted in the Children's Court of the first of several property-related offences. The defendant was subject to supervision on remand in 1976, which was recommended by Anthony Cole, a psychologist, who reported on 16 March 1976 that the defendant was mildly mentally retarded and had difficulties learning, as a result of which the defendant felt victimised by his peers. Mr Cole commented on the lack of parental supervision and the "definite delinquent orientation" of the defendant. On 21 April 1976 a District Officer of the Department of Youth, Ethnic and Community Affairs at Narrabri (H. Fenton) commented that the defendant's behaviour had improved under supervision.
On 11 July 1978 the defendant was assessed by Bruce Bowmaker, a psychologist, who reported as follows: "Kevin is a part-aboriginal lad of below average intelligence. From his reports it seems that he comes from a socially deprived environment where the parents have little idea of supervision and guidance. He is a frank and confident lad but of poor social skills. He expresses little remorse for his anti-social activities and is unconcerned about his committal. He is an immature lad who usually offends with his cousins who are some years younger than himself. He should not be disruptive in the training school and could benefit from remedial education as he is retarded in this area. He could also benefit from a programme aimed at instituting controls in order to resist peer pressure"

[9]

Offences on 12 October 1999

On 12 October 1999 the defendant returned to T's home to steal various items for the purpose of pawning them to obtain funds for drugs. No one was home when he stole the property, a CD player and stereo system which belonged to T's daughter. That afternoon, the defendant came back to T's house, went into T's bedroom and stripped to his boxer shorts. When T's daughter came home from school, she asked the defendant about her stereo, which she noticed was missing. He then dragged her into her mother's room and began to masturbate his erect penis and told her to sit on the bed. She was terrified. He asked her for her assessment of the size of his penis. She was too frightened to reply. He abused her and pinned her down on the bed. In an attempt to distract the defendant, T's daughter kept asking him about the stereo. Later he picked up a kitchen knife and threatened to kill himself if she told anyone what had occurred. She asked for the stereo system to be returned, to which he agreed on condition that she would have sex with him. When she refused, he began to yell abuse at her. He grabbed her and pushed her to the floor. He sat on her stomach and held a knife to her throat. A knock was heard at the door. The defendant left the room. When he returned he told T's daughter that he had to tie her up to make it look as if the house had been robbed. He bound and gagged T's daughter and exposed his penis to her. He knelt over her and pulled her underpants down, which had the effect of making his penis erect. She continued to struggle, at which point the defendant said, "What have I done?" He cut her loose and apologised for his conduct. He pushed her to the floor and threatened her again with the knife. He told her that if she told anyone what had happened he would kill her family and deny it in court.
The defendant allowed her to go to the bathroom and when she returned, he embraced her and told her that he loved her, T and her brother. He apologised again and told her that he did not mean to hurt her. He rubbed cream onto her wrists and then blamed the drugs he was on for his conduct. He again pulled his jeans down and started to masturbate. He instructed T's daughter to lie on the bed and asked her if she was a virgin and whether his penis would fit into her vagina. At this point, someone knocked on the door. When T's daughter answered the door, she saw that it was one of her school friends. They both ran away to the friend's place. T's daughter was crying and shaking. By the time the police and ambulance arrived, the defendant had located the spare key to T's car and departed with it. He drove T's car to a nearby home, ransacked the premises and stole various belongings and money. He abandoned T's car there. That night, he telephoned T and apologised for what he had done.

[10]

Offences on 16 and 18 October 1999

On Saturday 16 October 1999 the defendant stole a Holden Commodore. On 17 October 1999 he filled up the Holden Commodore with petrol, for which he did not pay and took various items from the service station store without paying for them. The value of the petrol and various items was $84.40.
On Monday 18 October 1999, the defendant was driving the Holden Commodore at 8.45am when he saw V3, who was fifteen years old and wearing a school uniform. He stopped the car and forced her into it. He covered her with a blanket and threatened her with a screwdriver which he forced into her neck. He said, "If you don't do as I say I'll kill you." What then ensued was described by Williams DCJ (the sentencing judge) in the following terms in the remarks on sentence: "The prisoner drove to bushland in the P6 and stopped the car. He told V3 to get up and lent across and reclined the passenger seat. He told her not to scream. He then unbuttoned her school blouse and removed her bra and underpants. Rolled her school skirt up and then pulled down his jeans and underpants exposing his erect penis. He then got on top of V3, pulled her legs apart and then pushed his penis against V3's vagina ignoring her pleas for him to stop as it hurt. He said "It's only halfway up" and then pushed his penis forcefully into the child's vagina causing considerable pain and bleeding. He had intercourse with V3 for a few minutes, she being too frightened to speak but crying throughout. After ejaculating the prisoner removed his penis and told her to dress. She saw that she was bleeding and noticed there was blood on the car seat and on her clothes. He drove off with her in the car and as he drove he told V3 not to tell anyone. He said "I should kill you now." When V3 promised [not, sic] to tell anyone he said "Alright I won't kill you." He said he would drop V3 near her home. The prisoner stopped the car at a location within a short walk of V3's home. He demanded her money and she gave him the four dollars she had in her school bag. The prisoner then directed V3 to get out of the car and he drove off. He then drove the vehicle to a park in P7 where he stopped the car and set it alight. It was partially destroyed in the fire. V3 dishevelled, pale and shaking, went home and showered and changed. Shortly afterwards she approached a neighbour and asked if she could use a telephone as she had just been raped. The neighbour suggested telephoning police, but the victim asked her not to as her assailant said he would kill her. She telephoned her mother and police were subsequently called."
On 19 October 1999 the defendant's parole was revoked as his offending conduct constituted a breach of the conditions of his parole.

[12]

The defendant's plea of guilty and the sentence imposed

As a result of the events of 12, 16, 18 and 20 October 1999, the defendant was arrested and charged with several offences, to which he pleaded guilty and was sentenced by Williams DCJ on 25 October 2000. The material before the sentencing judge included a victim impact statement made by V3's mother on behalf of her daughter, which said: "Details of personal harm suffered as a direct result of the offence(s): I make this statement on behalf of V3 who is my daughter. She is unable to make the statement due to her present emotional and mental state. She cannot speak of the incident at all, let alone make a written statement of the impact on her. The attack against V3 had had an enormous effect on her in very many different ways. As far as I know she has been unable to speak with anyone at all about the incident since giving her statement to the police. She has refused all counselling and becomes extremely distressed if the subject is brought up. When I have had to tell her about court dates she will listen and then just walk away, she will not talk about it at all. We had to move house, as V3 did not feel safe. She told me that he might know where she lived and that she had fears that he would come and kill her because she had told police about the attack. V3 will not leave the house by herself at all. Someone has to take her to school and pick her up. Wherever she goes someone in the family must be with her. The family have willingly done this. Apart from going to school, V3 leaves the house far less than previously. She no longer goes to friend's houses to visit, and will not go to school functions like dances and other social occasions. V3 will not leave the house wearing a skirt tor dress as she did previously. She will only wear long trousers when outside of the house. Apart from her father and grandfather, I have noticed that she avoids all conversation and interaction with males. She gets extremely nervous if approached without warning, even inside the house, and jumps nervously at the slightest touch."
In the remarks on sentence, Williams DCJ said of the danger the defendant poses to the community: "Whilst it is true that to some extent one can mitigate the requirements of general and specific deterrence where a person does not have the appropriate mental capacity to deal with life and the circumstances that give rise to offending, that mitigation in the light of repeat offending must give way to a recognition that ultimately a person is responsible for his own acts, that when someone has so behaved in a certain way in the past and been significantly punished for it and that person re-offends in a similar way at a later point of time, that person's inability to make appropriate decisions and act appropriately must be considered to be less relevant. My concern in this matter is that there is really nothing substantial before me to suggest that upon release Mr Fernando will not be likely to re-offend. In my view there is a high risk of re-offending."
His Honour also addressed the gravity of the offences against V3 and the extent to which, if at all, the plea of guilty ought result in a discount in the sentence imposed. His Honour said: "In my view the offences against V3 fall into that category [where the sentence ought not be discounted]. This was an offence that is objectively in the worst category of such offending. The effects on the victim will be permanent and only time will tell how dramatically this event will impinge on her ability to lead a normal life. It is an offence that deserves the greatest community condemnation and for which a sentence should be imposed to reflect the community's outrage at the offending behaviour and which is likely to protect the community from such behaviour from the prisoner for some considerable period in the future."
The offences, maximum penalties and sentences imposed are set out in the following table: Date Offence/ Crimes Act section Maximum penalty Sentence imposed 12.10.99 Forcible abduction with intent to carnally know/ s 89 14 years 7 years commencing 20.10.99 with non-parole period of 5 years 12.10.99 Assault with intent to have sexual intercourse with a child under 16/ s 66D 8 years 5 years (20.10.99-19.10.04) 12.10.99 Commit act of indecency with a child under 16/ s 61N(1) 2 years 1 year (20.10.99-19.10.00) 12.10.99 Assault occasioning actual bodily harm/ s 59 5 years 3 years (20.10.99-19.10.02) 12.10.99 Assault/ s 61 2 years 1 year (20.10.99-19.10.00) 12.10.99 Larceny/ s 117 5 years 1 year (20.10.99-19.10.00) 12.10.99 Break, enter and steal/ s 112 14 years 3 years (20.10.99-19.10.02) 12.10.99 Take and drive conveyance/ s 154A(1) 5 years 3 years (20.10.99-19.10.02) 16-18.10.99 Sexual intercourse without consent with a child under the age of 16/ s 61J 20 years 12 years commencing 20.10.04 with non-parole period of 9 years 16-18.10.99 Detain for advantage/ s 90A 14 years 6 years (20.10.04-19.10.10) 16-18.10.99 Aggravated robbery/ s 95(1) 20 years 6 years (20.10.04-19.10.10) 16-18.10.99 Obtain property by false pretences/ s 179 5 years 1 year (20.10.04-19.10.05) 16-18.10.99 Steal motor vehicle/ s 154A(1) 10 years 3 years (20.10.04-19.10.07) 20.10.99 Break enter and steal/ s 112 14 years 4 years (20.10.04-19.10.08) 20.10.99 Three offences of larceny/ s 117 5 years 1 year (20.10.04-19.10.05) 20.10.99 Possess housebreaking implements/ s 114(1B) 7 years 2 years (20.10.04-19.10.06) Form 1 Goods in custody/ s 527C 6 months [included on Form 1]

[16]

CUBIT program and report dated 23 December 2010

Between 25 June and 12 November 2009, the defendant took part in the "PREP" preparatory sex offender program at Long Bay gaol. Between 9 February and 3 December 2010 the defendant participated in the Custody-Based Intensive Treatment (CUBIT) program. The defendant's attitude to his sex offending in 1999 was recorded in the report dated 23 December 2010 prepared by Miriam Wyzenbeek, a forensic psychologist, following his completion of the CUBIT program: "29. In the lead up to his sexual offending, Mr Fernando experienced heightened feelings of sexual inadequacy. He blamed the victim's mother for these inadequacies (e.g., "Is there something wrong with the way I make love? What have I got to do to satisfy this woman?"). He began telling himself that he should pursue sex with someone with nil/limited sexual experience and became fixated on the victim. During this time, he sexualised the behaviours of pubescent girls, particularly those in school uniforms. He would fantasise about the victim during sex with the mother and self-masturbation. In these fantasies, the victim was impressed with Mr Fernando's penis size and sexually satisfied. Mr Fernando would interpret the victim's behaviours as evidence that she was interested in experimenting sexually with him. On the day of the primary offence, Mr Fernando cited revenge against the victim's mother as the trigger for his sexual offending (e.g., "I may as well give her [the mother] something to be really mad at"; I'll teach the victim's mother for treating me the way she does"). Mr Fernando stated that his subsequent offending was triggered by his failure to engage in sex during the primary offence. 30. Following failure of the primary offence, Mr Fernando feelings of sexual inadequacy were even more exaggerated. During this time, he coped by increasing his substance use and involvement in crime. He also continued to masturbate to fantasies about sex with the primary victim. In these fantasies however he imagined using force "To show her that I know how to have sex". He would drive around during times that children were making their way to and from school. During the day, he would park in front of school playing fields and masturbate whilst watching school girls interact or play sport. Based on Mr Fernando's account, the subsequent offence was opportunistic. He reported imaging the victim of the primary sexual offence during perpetration of this offence. He described being aggressive and threatening towards the victim "More so than I've even been, more so than I needed to be" and acknowledged being aroused to the anger. Mr Fernando emphasised the fast escalation of his anger and aggression towards the victim."
Ms Wyzenbeek recommended that, on release, he participate in a community-based maintenance program; and that he initially reside at a Community Offender Support Program (COSP) Centre. She also recommended the following restrictions: "86. Mr Fernando's residence should not be with a female child under the age of 16 years, he should not have unsupervised access to female children, and he should not be in positions of authority for children. Should he be in a position where he may be in the presence of a minor, it is recommended that this contact be monitored by a responsible adult who is aware of his potential risk and who is able to provide him with feedback about unhelpful behaviours if necessary."
Ms Wyzenbeek also recommended that the defendant be assessed for possible treatment with anti-libidinal medication "given his arousal to deviant sexual interests".

[17]

Community Treatment Order

In August 2014 the defendant stopped taking his medication for schizophrenia (with which he was diagnosed while in custody) and became psychotic as a result of which he was admitted to the Long Bay Hospital on 22 August 2014 for assessment. He displayed behaviour such as disorganised speech, aggression and was hearing voices.
Justice Health applied to the Mental Health Tribunal (the Tribunal) for a Forensic Community Treatment Order (FCTO) to mandate his compliance with treatment and medication. A report of Dr Shweta Sharma, a Registrar in Forensic Psychiatry, dated 10 September 2014 was provided to the Tribunal. Dr Sharma was part of the team responsible for the defendant's treatment at the Long Bay Hospital. Dr Sharma made the following diagnosis: "DIAGNOSIS Mr Fernando suffers from Chronic Schizophrenia, which is a mental illness, characterised by thought disorder, persecutory delusions, auditory hallucinations and bizarre behaviour. Despite first documentation of his psychotic symptoms in 1999, it appears that he has been suffering from psychotic illness long before, which went unnoticed due to his long spells in the custody."
Dr Sharma's opinion and recommendations were as follows: "OPINION AND RECOMMENDATION Mr Fernando suffers from Paranoid Schizophrenia which has responded well to antipsychotic medications. He will need to continue his prescribed medication in the longer term. He will also benefit from ongoing support and Psychoeducation. However, Mr Fernando has a well-documented history of poor medication compliance and secondary relapse requiring hospitalisation. His partial insight remains of a concern and is likely to affect his medication compliance. Mr Fernando was referred to MSPC and was accepted for Forensic CTO. He will be under care of Dr Furst. The treating team respectfully recommends that Mr Fernando to be transferred back to Metropolitan Specials Program Centre (MSPC), Long Bay Goal under Forensic community treatment order for ongoing care and treatment".
On 18 September 2014 the Tribunal granted the FCTO and determined that the defendant was mentally unwell. Since that time further FCTOs were ordered. Upon his release, a CTO was ordered. The current community treatment order (CTO) is due to expire in March 2017. The effect of such orders is that the defendant can be compelled to take medication (including anti-psychotic medication to control the schizophrenia) and receive treatment.

[21]

Risk assessment report dated 29 January 2016 by Dr Parker and Ms Matsuo

On 29 January 2016 the defendant was interviewed by Dr Parker (a Senior Psychologist with the Serious Offenders Assessment Unit of Corrective Services) and Ms Matsuo (a Forensic Psychologist and State-wide Manager Programs), who conducted a risk assessment for the purposes of the Act (s 9(3)(c)) and who prepared a report dated 3 February 2016. They addressed the connection between the defendant's general offending and his sex offending as follows: "Summary of Sexual Offending 14. Mr Fernando's sexual offences have all been committed against post-pubescent females. They all occurred in the context of substance abuse and more general criminality. He did not know two of his three victims before the offences, and probably only decided to sexually assault them shortly before committing the offences. It is possible the offence against his ex-partner's daughter involved a similar lack of forethought, although he admitted obsessing about her in the period leading up to that offence. Timeline of non-sexual offences 15. Mr Fernando has an extensive history of general offending, ranging in seriousness from theft to armed robbery. The long-standing nature, and frequency of this offending pattern, suggests that he held a generalised attitude, which gave him permission to take whatever he wanted. It is likely that his sexual offending fits within this same pattern."
The defendant's score on the Static-99R (a risk assessment tool based on static factors) was 5 which placed him in the medium-high risk category with respect to other male sexual offenders. He was in the 88th percentile compared to other male sexual offenders. Dr Parker and Ms Matsuo explained that this means that, taking into account that about 7% of sex offenders shared the same score, about 85% of such offenders scored lower than the defendant and 8% scored higher. He scored in the highest risk category by reference to the Violent Risk Appraisal Guide-Revised. He also obtained a high score by reference to the Stable 2007 risk assessment tool (an actuarial took developed to assist clinicians to identify stable dynamic risk factors for sexual reoffending). This placed the defendant in the high risk category relative to other male sexual offenders.
Dr Parker and Ms Matsuo assessed the general pattern of the defendant's sex offending and considered that the sex offending was part of the overall pattern of rule-breaking behaviour and the "extreme end of a pattern of generalised offending". They identified the following risk factors: drug and alcohol abuse; gambling; tendency to be violent towards women and have a sense of entitlement to their bodies; lack of pro-social influences; and non-compliance with mental health treatment and anti-libidinal medication.
Dr Parker and Ms Matsuo considered the reasons for the escalation in the seriousness of the defendant's offending over time but were unable to come to a concluded view. They postulated the following possibilities: 1. His continuing anti-social behaviour has alienated his usual supports; 2. His time in custody has hardened him and lessened his connection with social norms; 3. His cognitive processes have reduced his capacity for self-reflection (the defendant's good behaviour in gaol was noted as being inconsistent with (3)); and 4. He has become desensitised to anti-social behaviour and thus he did not regard the index offences as particularly shocking.
Dr Parker and Ms Matsuo postulated the following pattern were the defendant to re-offend: "47. Were Mr Fernando to reoffend, this would be almost certainly be proceeded by him abusing alcohol and/or other drugs. At, or around the same time, he would cease taking his medication. If he is allowed to continue on this path, it would likely be followed fairly quickly by property offences, and then violent and/or sexual offences as the substance use escalated. 48. Prior to any of this, Mr Fernando would likely exhibit some psychological warning signs. These would include giving up hope of a good future, and/or hostility towards supervising authorities. This may be evident in the breaking of supervision conditions or simply complaining about the restrictions placed upon him".

[29]

Report of Mr Sheehan

Mr Sheehan is a psychologist with extensive experience in the administration of ESOs. He worked for Corrective Services as part of the ESO team from 2006 until 2014. In his report he assessed the defendant's risk of sex offending to be high. He suggested an ESO of "four to five years duration would be realistic given the chronic nature of his risk related issues". This assessment appears in context in the following passage: "Despite his ongoing efforts at rehabilitation, abstinence from substances and treatment compliance, his adjustment remains very tenuous and his risk of reoffending sexually would be considered to be in the high range. The possibility that a sexual re-offence would be a serious sexual offence is realistic given the offence dynamic evident in Mr Fernando's case. I would suggest that an ESO of four to five years duration would be realistic given the chronic nature of his risk related issues."
Mr Sheehan gave oral evidence as he was required for cross-examination by Mr O'Neil. Mr Sheehan emphasised the importance of a CTO by which the defendant could be forced to take medication and noted the importance of his taking medication in accordance with the prescription. Mr Sheehan also stressed the distinction between a person such as the defendant being appropriately managed by restrictions and controls such as those contained in a CTO, ISO or ESO and such a person who is living in the community without restrictions or oversight. He said: "It looks like they are doing all right but as soon as the shackles are off things go pear‑shaped very quickly."
Much of the cross-examination of Mr Sheehan was directed to the length of any ESO and, in particular, whether it should be four years (as contended for by the defendant) or five years (as contended for by the plaintiff). Mr Sheehan opined that one would be in a better position to know how the risk was being managed by any ESO after four years and that giving the defendant a shorter ESO than the maximum might serve to engender trust. However, Mr Sheehan noted that applications for ESOs (particularly further ESOs) tended to be destabilising, although he commented that this defendant appeared to have "taken it in his stride".
Mr Sheehan also explained his view of the conditions which should be specified for an ESO in the following terms: "In my view these schedules are best when they have no fat on them at all, when they are just what is the most important, because if you have things in there that are not directly relevant to risk they might be focused on by a supervising person and at the detriment of other aspects of the order that are directly relevant to offending, to risk of offending."
Mr Sheehan considered, in effect, that conditions which were not directly relevant to risk would be an affront to the person's autonomy and that it would be counterproductive to include them as conditions. For this reason, Mr Sheehan generally opposed conditions relating to employment and training.
Although Mr Sheehan stressed that gambling was not a principal issue, he described its significance as follows: "It is one of the red flags to suggest that there's disarray, he is starting to have disarray in other aspects of his life and there may be mania."
Mr Sheehan explained in his oral evidence the relationship between the defendant's general offending and his sexual offending as follows: "At times when he has committed those offences there was, I think I have referred to it in the body of my report, general disarray in his life and it seems that everything has gone, goes badly for him at those points. He, he feels bad; he is using drugs he is engaging in other criminality. There's an atmosphere of him feeling hopeless, that there's no future. That he is feeling bad about himself, having unstable mood with his psychotic symptoms being more prominent. Feeling internal distress, wanting to resolve that distress. Relying on sexual fantasy to offset some of that distress. The fantasy then goes towards scenarios where he can feel sexually dominant and oppressive. That facilitates the fantasy and gives him some relief during the fantasy and those feelings of dominance and mastery. And that in turn facilitates the introduction of schoolgirl fantasies because they are a target he can imagine would be more easily impressed and can offset his, what he refers to as penis envy. And then the fantasy becomes less fulfilling and he, the transition from a really intense repeating fantasy to an actual offence becomes less of a giant step. The gap between the fantasy and the reality become less and less and less. Driving around in his car, stopping outside schools, looking at pornography, fantasising about the schoolgirls. It's getting closer and closer to a point where he would offend."

[44]

Conclusion

The defendant is a sex offender within the meaning of the Act, having been sentenced to imprisonment following his convictions for offences including a serious sex offence, being the offence against s 61J of the Crimes Act against V3, which was committed on 18 October 1999. The summons was filed within six months of the expiry of his sentence for that offence.
As referred to above, the defendant suffers from schizophrenia, substance abuse/ dependence and paedophilia. His mental health is unstable, although it can, to some extent, be controlled by medication as long as he is compliant. He has recently experienced symptoms (hearing voices) consistent with uncontrolled schizophrenia, which have a sexual component (the voice told him to touch a woman on the bus). Actuarial and other risk factor tests place him in a high risk category. He has a long history of offending related to poly-substance abuse. He has a complex psychiatric and medication presentation. The seriousness of his offending (both as to violence and sexual content) has increased over time.
Having considered the factors in s 9(3) of the Act addressed above, in the context of the narrative of facts, I am satisfied that the defendant, being a sex offender, poses an unacceptable risk of committing a serious sex offence in the absence of any supervision: State of New South Wales v Donovan at [24] and Lynn v State of New South Wales [2016] NSWCA 57 at [55].
Accordingly, I am satisfied that the defendant is a high risk sex offender within the meaning of s 5B of the Act. I note that, although the extent to which the defendant's liberty is constrained by proposed conditions is a relevant consideration in formulating such conditions, it is irrelevant to the determination of whether the defendant poses an unacceptable risk: Lynn v State of New South Wales at [44], [55]-[58] (per Beazley P), [128] (per Basten JA) and [148] (per Gleeson JA).
I am persuaded that it is appropriate, and necessary, to protect the safety of the community, to make an ESO pursuant to ss 5C and 9(1)(a) of the Act on the conditions which have been agreed by the parties (referred to below). I am not satisfied that there are any factors personal to the offender which would militate against the making of the order.

[46]

Consideration

The long-term risk that the defendant poses to the community is not to be underestimated. The opportunistic impulsivity of his offending behaviour if he is under the influence of substances is an important feature of the defendant's offending. I regard the prospect that the risk posed by the defendant to the community (and in particular to post-pubescent girls and adult women) could be adequately managed by the defendant himself (by reference to risks and rewards) as remote, if not entirely fanciful.
These observations ought not be understood as undermining the important role played by the Departmental Supervising Officer in moderating particular conditions as time goes on to give greater latitude to the defendant if his compliance with the ESO is adjudged to warrant it. I understand this flexibility to be a significant means by which the risk posed by persons such as the defendant is ameliorated and managed by Departmental Supervising Officers.
I do not consider the present case to be one where it is appropriate to wait and see what progress, if any, is made over a lesser period, such as four years. The duration of an ESO is to be determined as a matter of judgment, having regard to the wording of the Act. The defendant's offending conduct is connected with his sexual offending. His criminal history dates back to his childhood. His mental health is compromised and depends on compliance with medication. He has spent almost all of his adult life in custody. These matters do not augur well for a speedy rehabilitation. Mr Sheehan has noted that a risk that can be well-managed under supervision can result in offending conduct when the constraints are removed. There is no reason to suppose that there will be any significant amelioration of what I have found to be the unacceptable risk posed by the defendant in the next five years. It would not, in my view, be appropriate in these circumstances to grant an ESO for a period less than the five-year maximum permitted by the Act.

[49]

Condition 21: direction to engage in employment, education, training or personal development program

Condition 21 as proposed in the schedule to the further amended summons is: "If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO."
The defendant opposed this condition on two bases. First, Mr O'Neil submitted that it was otiose since it was fanciful to suggest that the defendant, having regard to his hearing impairment, cognitive difficulties and receipt of Disability Support Pension, could ever obtain employment. Further, he submitted that it would be counter-productive for the defendant to be required, upon penalty of criminal conviction for breach, to engage in employment, when such matters were best dealt with as part of "case management" which did not expose the defendant to the penalty of breach.
Ms Carden said, of the reason for the condition: "Part of Mr Fernando's reintegration into the community could involve gaining employment, therefore this condition would assist Community Corrections in steering Mr Fernando in that direction if the time was right and it appeared to be necessary or something that he would benefit from."
In cross-examination, Ms Carden accepted, in effect, that the defendant was unlikely to obtain employment in the open labour market (an assessment which she accepted in re-examination that she had no expertise to make). She also accepted that matters such as employment were best approached through a "case work" method, rather than a direction, non-compliance with which could lead to a breach of the ESO, with criminal consequences.
Mr Sheehan agreed that it was unlikely that the defendant would ever work. He did not endorse condition 21 in its present terms. He said: "It seems to be a pathway to breach not really directly related to his offending, particularly in his case where he is on disability and from his presentation it seems unlikely that he will work again, and he will tell you that he doesn't think that he is going to be able to work again".
I accept the plaintiff's submissions that the condition ought be imposed. Although I accept that it is unlikely that the defendant will be able to obtain remunerative employment on the open labour market, I would not readily conclude that there is no work, whether of a voluntary nature or otherwise, in which he could engage. That he has been able to work satisfactorily in the prison system as a baker provides some indication that, if some work, whether paid or not, at an appropriate level could be found for him, it would be desirable that he engage in it. Of course, if the defendant were willing to engage in such employment, or indeed in any education or training or personal development program that was thought to be in his interests, there would be no need for his DSO to give him a direction to that effect. However, it is reasonable to envisage that circumstances might arise where a DSO considers that the defendant ought engage in such activities and the defendant is not prepared to do so without a direction. I accept Ms Carden's view as to the rationale for the condition and consider it to be reasonable. If the defendant can be suitably occupied and challenged, the risks of his lapsing into drug or alcohol abuse are diminished. As this abuse is usually the precursor to his offending behaviour, there is, in my view, a sufficiently close connection between the condition and the risk he poses.

[51]

Condition 25: prohibition on signing certain documents without prior approval of DSO

Condition 25 as proposed in the schedule to the further amended summons is: "The defendant must not sign any lease, mortgage, contract for sale for goods or services above the value of $500, hire agreement, power of attorney, deed, or any instrument relating to obtaining any credit, opening of any account held at a bank, credit union, building society or similar institution, without prior approval of the DSO." [Emphasis added.]
The defendant opposed the words "mortgage" and "opening of any account held at a bank, credit union, building society or similar institution" as highlighted in italics in the proposed condition set out above. Ms Carden gave evidence of her concerns about the defendant's capacity for financial management in the following exchange in her cross-examination: "Q. You don't think he could make that determination [whether to enter into a lease] himself? A. At present I have concerns about his financial management given that recently he was encouraged by his psychologist to listen to music to help him relax on public transport as he experiences anxiety. In discussion with him I suggested perhaps he might like to purchase a CD from a music store the next time he went to the shops. Instead, Mr Fernando informed staff at COS that he had spent approximately $250 on a whole host of CDs that he had seen on TV. Therefore I am concerned that perhaps he might impulsively enter into a lease without thinking about whether or not it would be affordable for him on a Q. Could he not afford the $250 worth of CDs? A. I'm not sure. He was able to purchase them however I know that at the moment his goal is that he is saving money so that he can move out. He'll need to buy furniture, have money for a bond, things like that. And the CDs would have had an impact on his savings for that".
The word "mortgage" extends beyond mortgages of real property and extends to chattels and other property. In these circumstances, it is, in my view, reasonably necessary to require that any mortgage be approved by the DSO before it is granted. If the defendant has a bank account of which the DSO is unaware it cannot be monitored. In light of the concerns about the defendant's capacity to manage money; his propensity to gamble when under stress or when abusing alcohol or substances; and the connection between his offending conduct and disorder in his life, I consider the condition as proposed to be reasonably necessary.

[52]

Part L of the conditions: personal details and appearance

The defendant opposed each of conditions 53-57 as proposed in the schedule to the further amended summons. These proposed conditions are: "Part L: Personal details and appearance 53. The defendant must not change his name from "Kevin Todd Fernando" or use any other name without the approval of his DSO. 54. The defendant must not use any alias, log-in name, or a name other than "Kevin Todd Fernando" or use any email address other than those known to the DSO under condition 42 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email. 55. The defendant must not change his appearance without the approval of his DSO. 56. The defendant must let CSNSW photograph him. 57. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details."
Mr O'Neil contended that such conditions may be unnecessary as there is no suggestion that the defendant has ever sought to conceal or change his identity. He submitted that given the close contact between the DSO and the defendant during any ESO any change in appearance would be immediately recognisable by the DSO.
I am satisfied that proposed conditions 53-57 ought be made. In 1991 the defendant failed to report in accordance with parole conditions, as a result of which his parole was revoked. He could not be located for a considerable period, during which time he re-offended. It is within reasonable contemplation that, if the defendant were to abuse drugs or alcohol, he might leave his approved address. If he did so during a period when he was subject to electronic monitoring it would be relatively easily to detect his whereabouts and bring him back to the residence. However, if he were not subject to electronic monitoring, it could be difficult to find him.
Condition 56 obliges the defendant to permit Corrective Services to photograph him. If there was no photograph of the defendant and he absented himself, it would be difficult to disseminate a reliable image to those who might be able to locate him. These conditions appear to me to be necessary ancillary conditions to the management of the risk posed by the defendant.
The identification of the defendant and the location of his whereabouts at any given time are fundamental to risk management. It is particularly important that the defendant can be located quickly since if he does not take prescribed medication and if he abuses alcohol or substances, his life can become "chaotic" (as Mr Sheehan has described it) which tends to lead to offending, including sex offending. The escalation of criminal conduct during a short period was demonstrated in October 1999 when the worst and most violent of his offending, that committed against V3, was committed on 18 October 1999, less than a week after the first episode of his spree (stealing from T and offending against her daughter on 12 October 1999) took place.

[64]

Part J: Search and seizure 47. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person. 48. For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means 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. "Pat-down search" means a search of a person where the person's clothed body is touched. 49. During a search carried out pursuant to condition 47 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 50. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 51. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 47 to 50 above.

Parties

Applicant/Plaintiff:

State of New South Wales

Respondent/Defendant:

Fernando

Legislation Cited (4)

Child Protection (Offenders Registration) Act 2000(NSW)

Crimes Act 1900(NSW)

Crimes (High Risk Offenders) Act 2006(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Cases Cited (4)

Introduction

By summons filed on 7 September 2016, the State of New South Wales (the plaintiff) sought an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of Kevin Fernando (the defendant) for a period of five years, on the conditions set out in the schedule annexed to the summons. Except where otherwise stated all references to legislative provisions in these reasons are to the Act. The plaintiff also sought an interim supervision order (ISO) against the defendant pursuant to s 10A pending the final hearing of this matter and an order pursuant to s 7(4) appointing either two psychiatrists or a psychiatrist and a psychologist to examine the defendant and report to the Court on the examinations.
On 4 October 2016 Beech-Jones J granted leave to the plaintiff to file an amended summons to reflect changes in the conditions set out in the schedule annexed to the summons. On that day his Honour made orders under s 7(4) and ordered an ISO to commence on 19 October 2016, being the day on which the defendant's sentence expired: State of New South Wales v Fernando [2016] NSWSC 1427. An. A further amended summons was filed at the commencement of the hearing on 23 November 2016, which reflected further changes in the conditions.
The ISO has since been renewed. The renewed ISO is due to expire on 13 December 2016.
Mr O'Neil, who appeared on behalf of the defendant, accepted that it was open to the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision. However, Mr O'Neil contended that, if an ESO was made, it ought not be for the maximum period of five years. He submitted that an ESO of four years' duration would be sufficient. Mr O'Neil also took issue with some of the conditions, which will be referred to in more detail below.

Evidence

The plaintiff relied on the following evidence: 1. Affidavits of Azam Bulbulia affirmed 7 September 2016 (including Exhibit AYB-1) and 16 September 2016; 2. Affidavits of Paul Nash affirmed 29 September 2016, 3 November 2016 and 23 November 2016 (which annexes a victim statement pursuant to s 21A(4)); 3. Affidavit of Dr Richard Parker sworn 3 November 2016; 4. Affidavit of Amanda Carden affirmed on 9 November 2016; and 5. The following reports of the experts appointed by the order under s 7(4) referred to above: a report of Dr Jeremy O'Dea dated 3 November 2016 and a report of Mr Patrick Sheehan dated 29 October 2016.
Mr O'Neil did not object to any of the plaintiff's evidence, much of which comprised material that had been produced pursuant to orders under s 25 of the Act (referred to below) and was therefore admissible under s 25(3). He required Ms Carden and Mr Sheehan to attend for cross-examination. Their evidence will be addressed below.
The defendant adduced no evidence. It is not appropriate for me to draw any inference against the defendant by reason of his not giving evidence as the Act does not displace the privilege against exposure to a penalty, save for the obligation upon an offender to be examined by the two independent experts: State of New South Wales v Donovan [2015] NSWCA 280 at [115]-[119] per Beazley P and Macfarlan and Leeming JJA.

[2016] NSWCA 57

[2015] NSWCA 28

Cited By (5)

State of New South Wales v Davison

State of New South Wales v Dillon

State of New South Wales v Fernando

State of New South Wales v French