State of New South Wales v Harlow

Legislative scheme

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

Threshold requirements

1. The defendant accepts that the threshold requirements set out in ss 5B(a), (b) and (c) of the Act are satisfied.
2. The defendant is a person who was serving a sentence for a serious offence and is a supervised offender within the meaning of s 5I of the Act. Further, an application was made in accordance with s 5I.
3. For the reasons set out in this judgment, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under the supervision of an ESO and s 5B(d) of the Act is thus also satisfied.
4. Having regard to the focus of the issues between the parties, it is not necessary that I merely recite all of the evidence presented on the final hearing. I have considered all of the evidence and have regard to the factors set out in s 9(3) of the Act.

The defendant's personal circumstances

1. The defendant is currently 60 years of age. He has an extensive criminal history, albeit that other than the index offence of 2017 and one minor offence, the offending ended around 2002.
2. The defendant suffers from an intellectual disability. He experienced learning difficulties at school and left school at the age of 14. He has been diagnosed with an acquired brain injury, personality disorder and epilepsy. His neuropsychological deficits fall within the range of intellectual disability. One of the issues that arises in these proceedings is his difficulties in understanding the terms of any conditions which might be imposed upon him.
3. He has never married and has no children. He does not wish to see any members of his extended family.
4. He committed the index offence in January 2017. He was released on parole on 15 April 2021. He is currently housed at the Nunyara Community Offenders Support Program ("COSP").
5. At this stage, any further medium to long term housing has not been arranged.
6. He has the benefit of an NDIS support package and currently receives extensive support through that package. As noted above, he is currently a registrable person for the purposes of s 3A of the Child Protection (Offenders Registration) Act. He has a history of alcohol abuse and some drug abuse.

The index offence

1. In 2017 the defendant was convicted of one count of procuring or grooming a child under the age of 16 for unlawful sexual activity contrary to s 66EB of the Crimes Act 1900 (NSW).
2. On 10 January 2017 the defendant made a telephone call to a registered source. The registered source understood the defendant to be looking for a sex worker. However, during text exchanges the defendant suggested he was looking for a sex worker around the age of 15. A controlled operation was then initiated. In one text, the defendant wrote "my place seems safe as she could be my sister [or] daughter if anyone gets [too] nosy but my place kept quiet".
3. The registered source subsequently sent a text to the defendant stating that they had arranged a 14 year-old to perform a full service at a particular hotel room. When the defendant went to the hotel room, he was arrested. He subsequently admitted his intention to have paid sex with a 14 year old.
4. On 10 August 2018, his Honour, Judge Norrish of the District Court, sentenced the defendant to a non-parole period of 2 years and 6 months commencing on 18 January 2017 and expiring on 17 July 2019 with a balance of term of 2 years to expire on 17 July 2021. The defendant was not granted parole until 15 April 2021.
5. The sentencing judge considered that the offending fell within the mid-range of objective seriousness. His Honour did not accept the defendant's explanation for the offending. His Honour observed that the defendant required intensive supervision and should be undergoing programs whilst in prison, including an opportunity to complete a sex offender program. His Honour also observed that the defendant should be subject to substantial monitoring on his release.
6. The defendant did not necessarily undertake all available programs whilst in custody. Although misconduct charges against him were limited (only two), it was also alleged he sexually touched a cellmate in January 2019.

The defendant's criminal history

1. The defendant's offending commenced in 1983.
2. Between 1983 and 2002 he was convicted of a number of offences including multiple common assaults and sexual assaults as well as assault Police, destroy and damage property and robbery.
3. His history of sexual offending includes being convicted of assault with an act of indecency both in 1983 and 1986 involving children under the age of 16; obscene exposure in 1987 and finally aggravated sexual intercourse without consent and robbery which he was convicted of on 12 September 2002. The victim on that occasion was a sex worker over the age of 16 who also suffered from an intellectual disability. The sentencing judge described those offences as very serious and conduct of the most serious kind. He was sentenced to imprisonment for a period of 5 years with a non-parole period of 3 years. He was released to parole on 5 December 2006. He did not return to custody until he was sentenced for the index offence in 2017.

The defendant's evidence

1. For the purposes of the preliminary application and this application, the defendant relied on evidence from his solicitor, Claire Stimpson. In her first affidavit, Ms Stimpson refers to her observations of the defendant and emphasises his apparent difficulties in understanding complex matters and, in particular, his likely difficulty in understanding the type of conditions which are normally imposed in these matters.
2. In Ms Stimpson's affidavit of 21 July 2021, she refers to receiving a report from Dr Molly Schafer, a neuropsychologist, dated 5 July 2021. Ms Schafer carried out a review of the documents, including risk assessment documents, assessed the defendant and carried out neuropsychological testing. She observed that the defendant's current IQ score was in the extremely low range; that his auditory attention was in the low average range; and that his ability to mentally manipulate small pieces of information was in the borderline range. He had difficulty undertaking testing. She said it was apparent that he would struggle to undertake a comprehensive test of memory function. His overall verbal memory and performance was impaired and there was evidence of visuospatial difficulties. His performance on literary tasks was in the borderline range.
3. She considered that there was evidence of widespread borderline to extremely low functioning. His level of performance was in the range of someone with a mild intellectual disability. He had limited capacity to understand instructions and rules and had difficulty comprehending task instructions. He would not be able to understand many of the conditions proposed as part of the ESO schedule. She considered the conditions would need to be rewritten using simple words and clear and short sentences comprised of one idea.
4. Following receipt of Dr Schafer's report, Ms Stimpson prepared a plain English set of conditions. She sent these conditions to Dr Schafer and further amended them, having regard to the recommendations of Dr Schafer. These conditions were provided to the State and now provide the basis of the State's application. They are in brief and simple terms.
5. Whilst the defendant opposes the making of any ESO, it is commendable that Ms Stimpson undertook the task of preparing a form of conditions which, if an ESO is to be ordered, at least might be capable of being read and understood by the defendant.
6. The defendant also relies on an affidavit of Henry Henry who is a support coordinator employed by Wellspace Australia which is registered with the NDIS. At the present time, the defendant is funded for 15 hours per week on a one-on-one support basis, although during lockdown, he has not been receiving any support from his support worker.
7. Accommodation at the COSP is limited to a period of 3 to 6 months. Matters have been affected by lockdown, but it must be that eventually the defendant will need to find alternative accommodation. Mr Henry has a role in that regard. He has been looking at private rental properties but again difficulties arise because the defendant is not able to access a support worker at the moment to inspect any properties.
8. Mr Henry says that on 31 August 2021 the defendant participated in a housing assessment with Sheena Duffy, an occupational therapist. Ms Duffy suggests the defendant will need one-on-one support for at least 12 hours per day.
9. The effect of the defendant's evidence is really that the defendant has been and will receive extensive support through his NDIS plan and that having regard to his mild intellectual disability, it may be that any conditions, no matter how simply worded, would not reduce any risk of re-offending. I understood the defendant's position to be that, even if he might be considered an unacceptable risk (which he does not dispute), the granting of an ESO with the conditions proposed would not necessarily add to the support that he might already obtain, and may not add any significance to his reporting obligations, such that there would not be any difference between the level of risk with or without the conditions.

The evidence of Dr Eagle and Mr Sheehan

1. The State obtained reports from Dr Eagle and Mr Sheehan. Mr Sheehan was not required for cross-examination. Dr Eagle gave some further oral evidence which clarified and expanded upon the issues relating to some of the conditions.
2. Dr Eagle is a forensic psychiatrist. She carried out an assessment of the defendant on 12 August 2021 by audio-visual link. She also had regard to all of the extensive material available in these proceedings. Dr Eagle reviewed the defendant's background, criminal history and the circumstances of the index offence. She assessed his psychosexual history. She did not consider that the defendant displayed signs or symptoms of a major mental illness at the time of her assessment. However, she accepted that he suffered from a mild intellectual disability as well as an earlier alcohol use disorder which is in remission.
3. Having regard to the Static 2002R risk assessment tool and the Stable 2007 tool for the assessment of sexual offenders, the defendant falls into the level IVb category of offenders. Offenders in that category could have roughly 3 to 4 times the rate of recidivism compared to the average individual convicted of a sexually motivated offence. Further, he has a high loading of clinical risk factors associated with violent offending. He has demonstrated ongoing problems with insight into his offending behaviours and psychological treatment needs. He has pervasive cognitive instability due to his intellectual disability.
4. However, Dr Eagle also noted that he has not engaged in any violent offending since his sexual offence in 2002. His overall offending behaviour has decreased significantly since his release from custody for the 2002 offence. Dr Eagle opines that the defendant falls into a category of offenders who are considered at a well above average risk of committing a further sexual offence and an elevated risk of committing a further violent offence, although she does not consider there will be a significant risk of a serious violent offence as defined in the Act.
5. She considers that his risk factors may reduce if he engages with additional available support and achieves a lifestyle that has more purpose with increased social and recreational activities. She says that at this stage, she is not confident that his risk of re-offending could be managed without an ESO despite the acceptance of NDIS support. He demonstrates little insight or awareness of his risk factors for re-offending. She believes that he will continue to utilise sex workers for sexual services and he remains highly isolated socially. His level of engagement with NDIS support workers remains untested.
6. She considers that an ESO would provide an additional supervision regime that would be able to oversee his transition into the community ensuring that he is able to sustain stable accommodation and engage appropriately with his NDIS supports. She considers that in order to ensure these aims are achieved, an ESO might be imposed for a number of years.
7. The focus of the cross-examination of Dr Eagle was on a small number of the conditions which the defendant sought to impose and the duration of any ESO.
8. For example, Dr Eagle acknowledged that the imposition of electronic monitoring would not necessarily reduce the risk. It is merely used as a way of monitoring the defendant's conduct rather than having any real impact of reducing the risk of sexual offending. It is plain from Dr Eagle's opinion that the real risk in this matter is the risk of sexual re-offending rather than violent offending.
9. Further, Dr Eagle expressed concern that it would be important that the defendant does not end up in prison for any technical breach of any conditions which might be imposed. Dr Eagle was firmly of the view that a return to prison would be counter-productive in terms of the ongoing rehabilitation of the defendant and reducing the risk of re-offending.
10. In the end, Dr Eagle suggested that the imposition of an ESO for a period of time would have the dual benefits of reducing the risk and providing a benefit to the defendant in terms of ongoing support in the community as he transitions to independent living. The impression I gained from Dr Eagle was that having regard to the defendant's intellectual disability and earlier sexual offending, an ESO would achieve both purposes set out in the Act being to ensure the safety and protection of the community and to encourage the defendant to continue with his rehabilitation.

The report of Mr Sheehan

1. Mr Sheehan interviewed the defendant by audio-visual link on 18 August 2021. He summarises his opinion as follows: "Mr Harlow's sexual offences would appear underpinned by impulsivity and disinhibition, aggressiveness/anger/emotional dysregulation, substance abuse, absence of sexual boundaries and sexual preoccupation, impaired appraisal and low empathy. His intellectual disability is part of his risk profile, contributing to his poor appraisal (inability to weigh multiple factors simultaneously), poor self-regulation, and impulsivity. Mr Harlow has participated in a suitably intensive sex offender treatment program designed to meet the needs of men with intellectual disability, but showed no indications of benefiting from this. In my opinion the overall evidence supports the view that Mr Harlow presents a high risk of a serious offence through sexual offending. The type of offending that Mr Harlow is at risk of would approach a serious sex offence, with his use of violence and targeting of young persons going towards this threshold."
2. As will be apparent from that summary, Mr Sheehan appears to consider that there was a greater risk of violent re-offending than does Dr Eagle. Mr Sheehan concludes that he is unable to have any confidence that the defendant has demonstrated readiness to self-manage his risk of committing a further serious offence in the absence of intensive external controls and support. He does not believe that the risk could be managed adequately in the community without an ESO being imposed. Having said that, he agrees that the defendant does not have the capacity to understand or remember the 58 conditions listed on the original schedule attached to the Summons. The prospect of unintentional breach would need to be offset by close support and discretion by the supervision team. He considers the period of two years to be the minimum period within which to achieve community stabilisation and establish the symptoms that might reduce the risk.
3. Mr Sheehan was not subject to cross-examination on his opinion.

Risk assessment

1. The State relies on a risk assessment report from Samuel Ardasinski, a senior psychologist from the Serious Offenders Assessment Unit dated 23 December 2020. Mr Ardasinski interviewed the defendant on 26 October, 10 November and 8 December 2020. He noted limitations in the defendant's insight into his offending, albeit, the defendant accepted responsibility for his offending. He considered the defendant's behaviour in custody was mixed, albeit, again, that the misconduct charges against him appear to be limited.
2. Mr Ardasinski suggests that the defendant's most likely scenario for further sexual offending will involve him seeking sexual contact with a sex worker and engaging in non-consensual acts with an adult sex worker or seeking an underage sex worker as occurred in 2017. He considers that the defendant falls within the high risk category for sexual offending relative to other adult male sexual offenders. He should be subject to intensive supervision, strict monitoring and case management by Corrective Services NSW which might include ongoing psychological intervention. Further, his social contacts would need to be scrutinised. He suggests that he may be obliged to continue to wear electronic monitoring equipment and provide a schedule of his daily activities.

The evidence of Kelli Grabham

1. As I have indicated, Ms Grabham has provided three affidavits. She is employed by Corrective Services NSW as a High Risk Offender Applications and Operational Governance Officer in the ESO team. She has not personally met the defendant but has reviewed the material. She sets out the workings and procedures of the ESO team. As she says, the ESO team operates 7 days a week.
2. A case managed offender who is subject to electronic monitoring can contact the electronic or external monitoring group when he is not able to make contact with the ESO team officer. As she says, the object of the ESO team is to provide intensive supervision and monitoring of high risk offenders in the community. She sets out the appropriate plan which would be appropriate to the defendant and details the way in which the electronic monitoring schedule and ESO monitoring would generally operate.
3. Attached to her second affidavit are the offender integrated management system ("OIMS") case notes. She refers to the interactions and exchanges between the defendant and the DSO when he was released on parole. It is clear that the defendant is interacting and engaging with his DSO. He seeks permission from the DSO to do things. Having said that, his understanding of supervision expectations was noted as being unclear.
4. In her third affidavit, Ms Grabham refers to the processes which have been undertaken to assist the defendant in preparing schedules of movements in accordance with his ISO. Further, she refers to the work undertaken by the support workers in assisting the defendant and familiarising himself with a routine and the type of scheduling which would be appropriate.
5. It is clear from the OIMS case notes that Mr Henry, his NDIS support coordinator, has engaged in the process and has been assisting the defendant in his dealings with his DSO. Having said that, there has been some reluctance on the part of the defendant to continue to go through his conditions and confirm whether he understands his conditions. There has been some misunderstanding by the defendant as to whether he needs to attend on his DSO to seek permission to do anything or whether he can merely rely on his scheduling with the weekly schedule prepared in advance.
6. At least in my view, to a certain extent, the case notes demonstrate that the defendant remains somewhat uncertain as to his obligations and how he might comply with the conditions. Having said that, he has been on parole since April 2021 and there has been no incidences of any failure to comply with existing conditions or supervisory orders.

Conclusion on unacceptable risk

1. In addition to the evidence to which I have referred I have had regard to all the other extensive evidence made available, including evidence relating to his earlier convictions, sentencing and psychological assessments. Having regard to all of the evidence, I am satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision under an ESO.
2. I note that the support and supervision that the defendant is already receiving in the community but have particular regard to the views of Dr Eagle and Mr Sheehan as to the risk factors.
3. The prerequisites for the making of an ESO are satisfied in terms of the threshold questions and the finding of unacceptable risk. However, I still have a discretion as to whether to make the ESO. The defendant submits that it should not be made because although he may pose an unacceptable risk, that risk will not be reduced by another level of supervision on top of the supervision to which he has already been subject.
4. However, I am satisfied that I should exercise my discretion and make the orders for an ESO.
5. Whilst it is correct that the defendant has been living in the community under supervision since April 2021 without any real incident, the difficulty that arises in this matter is that the defendant's ability to live independently in the community (even with extensive NDIS support) and manage his risk factors is as yet untested. Having said that, it is important that any conditions which are imposed: 1. are sufficiently clear and simple that the defendant, a person who suffers from an intellectual disability, will know and understand what he needs to do to comply with the conditions; and 2. only address the risk factors and reduce the risk of the defendant committing a further serious offence, (really a further sex offence rather than an offence of violence, having regard to the opinion of Dr Eagle).

The conditions

1. The original conditions proposed for the purpose of the ISO have been amended. It seems to me that the conditions are appropriate for the purposes of addressing the defendant's risk factors and informing the defendant of what he needs to do to comply with the conditions and assisting and providing support to the defendant, in terms of direction and supervision, that would reduce his risk factors.
2. Indeed, there remain only three conditions which are in dispute being condition 47 and conditions 3 and 4.
3. Condition 47 is a search condition. It is in the following terms: "My DSO or someone my DSO tells to can do a pat down of my body with my clothes on."
4. The State explained that the need for this condition arose because the defendant was found to have a weapon during offending back in 2002. I do not accept that isolated offence from 20 years ago provides a proper basis for allowing a pat down search of the defendant. I will strike out that condition.
5. Condition 3 concerns electric monitoring. It is in the following terms: "I must wear electronic monitoring equipment if my DSO tells me to. I can't damage it or take it off."
6. Whilst the defendant would only have to wear electronic monitoring if told to do so by his DSO, I do not accept that electronic monitoring is necessary to manage the risk in this matter. The defendant's history of offending is impulsive, albeit, the index offence involved him seeking out an underage sex worker through the use of a phone. Electronic monitoring will not reduce the risk of impulsive offending and nor would it reduce the risk of the type of offending involved in the index offence. As Dr Eagle said, electronic monitoring in a matter such as this is more for the purposes of monitoring the defendant and ensuring that he is complying with a schedule of movements.
7. The defendant referred to Dr Eagle's opinion that the requirement the defendant prepare a weekly schedule of movements may be particularly onerous for the defendant as it may not be for the entire week. The State refers to the evidence of Kelli Grabham to the effect that he should be able to comply with the scheduling when he is appropriately supported. There is evidence that his caseworker could assist him in this regard. Certainly, at the present time, he is not living independently but that must change in the near future.
8. I do not consider that electronic monitoring is warranted but on my review of the evidence, it would be appropriate for the defendant to inform his DSO of at least the places that he would like to go or needs to go. In my view, condition 4 might be modified so that it reads "If my DSO asks me, I must tell him about the places I would like to go and what I would like to do during the week. I can only change the places that I am going without asking my DSO first unless there is an emergency."
9. It is important that the defendant not be set up to fail and it is important that he not be at risk of being returned to prison because of his intellectual disability. It seems to me that the scheduling condition can be phrased in a more general way, but in a way that still requires the defendant to attend to it on a weekly basis. The risk of failure or non-compliance would be reduced.
10. In the circumstances, I would not permit condition 3 but will permit condition 4 on a modified basis.
11. I consider that the period of the ESO should be limited to 2 years at this stage. The defendant has already been in the community for six months without incident and the real risk here arises when he transitions to independent living at some stage in the near future. The period between transitioning to independent living and the expiration of the 2 year ESO should be sufficient to determine whether the risk factors have been reduced sufficiently.
12. I make the following orders: 1. Pursuant to ss 5B and 9(1)(a) of the Act the defendant is subject to an extended supervision order ("the extended supervision order") for a period of 2 years from the date of the order. 2. Pursuant to s 11 of the Act, I direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this judgment. 3. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without 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 of access. Note: The conditions which the defendant will be subject to under the ESO are annexed by hyperlink at the end of this judgment.

Endnotes

1. State of New South Wales v Harlow (Preliminary) [2021] NSWSC 681.
2. Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA).
3. (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]-[51] (Beazley P).
4. Lynn at [44], [56]-[58] (Beazley P), [126]-[128] (Basten JA), and [148] (Gleeson JA). 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: 08 October 2021