State of New South Wales v Harlow

Supreme Court of NSW|2021-06-08|Before: Beech-Jones J

Background

The defendant is now 60 years of age. As I will explain, he has a mild intellectual disability and has been diagnosed with a personality disorder, acquired brain injury and epilepsy. Since 1983, he has accumulated a number of convictions for sexual offences and some offences involving violence. In 1983 he was convicted of sexual assault and received a bond. In 1986 he was convicted of assaulting a person under 16 years of age with an act of indecency. He received a further bond for that offence. His victim was a 13‑year‑old girl who was walking to school when the defendant grabbed her vaginal area. Between 1988 and 1998, he accumulated a number of convictions for assault, as well as resist arrest and malicious damage. I will not traverse the facts of those offences, but some of the assaults seem to be particularly serious.
In 1998, the defendant was convicted of demanding money with menaces and was sentenced to six months' imprisonment with an additional term of twelve months. The police facts record that he demanded money from the owner of a mixed business, while holding a pair of scissors. Further assault convictions followed in the ensuing years. In 2002, the defendant was convicted of robbery, carrying a cutting weapon, and two counts of aggravated sexual intercourse without consent. He received total term of imprisonment of five years which expired in 2007. In summary, the defendant lured a young sex worker to a secluded area, stole her wallet, performed cunnilingus on her without her consent, and digitally penetrated her vagina without her consent.
There then appears to be a significant period where the defendant was free in the community and was not convicted of any offences. However, on 10 August 2018 he was convicted of an offence of procuring a child for unlawful sexual activity contrary to s 66EB ss (2) of the Crimes Act 1900. In summary, in January 2017 the defendant contacted an associate in an attempt to procure a 15 year old girl for paid sex. The associate he contacted turned out to be a police informer and contacted the police. After further communications in which he repeated his request, he was arrested. His Honour Judge Norrish SC found, inter alia, that the defendant remained a person at risk of reoffending and was definitely a risk of reoffending in a sexual manner. The defendant was sentenced to a non-parole period of two years six months commencing 18 January 2017 and expiring on 17 July 2019, with a balance of term that expires on 17 July this year.

Psychological Report

Included in the material in support of the application was a number of reports concerning the defendant from Professor Emeritus Susan Hayes, a Professor of Psychology from the University of Sydney. Professor Hayes provided a number of reports concerning the defendant to the Courts over the years. Her most recent report is dated 14 February 2018 and it appears to have been provided to Judge Norrish. Professor Hayes describes the defendant's dysfunctional family and social history. Professor Hayes administered various psychological tests and concluded that the defendant "functions in the range of mild intellectual disability in both cognitive reasoning and adaptive behaviour skills", that being a level of functioning below 99% of his peers for both capacities. Using various risk assessment tools, Professor Hayes concluded that the defendant is "in a moderate-high risk of reoffending in relation to sexual offenders and a high risk of reoffending generally."
Also included in the materials was a Risk Assessment Report prepared by a senior psychologist for the Serious Offenders Assessment Unit, Mr Samuel Ardasinski. In short, Mr Ardasinski assessed the defendant as posing a high risk of sexually reoffending using actuarial instruments which take into account risk factors associated with increased recidivism. Mr Ardasinski observed that the defendant participated in appropriate therapeutic programming in custody, however after 15 months in various programs little progress was made when he was discharged early.
Mr Ardasinski also opines that, if the defendant were to be subject to an ESO, the mitigation of future risk would be enhanced by ongoing community supervision past the expiry date of his sentence, as well as participation in community based programs and individual risk management sessions with the help of psychology services.
In addition, a risk management report prepared by Community Corrections officers was included in the material. This report took Mr Ardasinski's assessment and then addressed various means of addressing the relevant risk. The report identified that the risk factors associated with the defendant were his sexual preoccupation and sex drive, his loneliness and social rejection, his poor capacity for relationship stability, his impulsivity, poor cognitive problem solving and substance abuse. The report discusses a risk management plan for the release of the defendant, which would include weekly face-to-face meetings with community corrections teams and field visits. It addresses various measures to mitigate the risk he poses, which is ultimately reflected in the proposed conditions sought by the State, including schedules of movements, electronic monitoring (something that he has experienced in the past), directions concerning his accommodation, place and travel restrictions, consumption of alcohol (bearing in mind that the material suggests that there is a link between his consumption of alcohol and his sexual and violent offending in the past), means to address his associations, both designed to encourage pro social friendships and avoid antisocial ones, preventing him from having access to weapons or antisocial material available on the internet and subjecting him to, if necessary, restrictions on contact with children, changing his personal appearance, requiring him to accept particular forms of medical intervention and treatment and being subject to search and seizure enforcement mechanisms.
Consistent with this affidavit, the State also read an affidavit from Kellie Grabham. Ms Grabham is the "High Risk Offender Applications and Operations Governance Officer" in the ESO team. She has held that position since 2019 and has been a Corrective Services Officer since 2007. In her affidavit, Ms Grabham describes the operation of the ESO teams and the means of supervising and monitoring offenders on ESOs. One matter addressed in Ms Grabham's affidavit is the supervision of offenders with literacy and cognitive issues such as the applicant. She describes a range of measures that can be adopted with such offenders to ensure they understand the effect of the conditions imposed on them. They include simplified explanations to the effect such that "I must be home by 10pm every night"; as well as the use of audio visual aids and an external agency who may have experience in working with people with cognitive disabilities.
In the balance of her affidavit, Ms Grabham addresses the various conditions sought and discusses the means of implementing them.

The ESO Should Be Made

Division 1 of Pt 2 of the HRO Act specifies various preliminary matters and requirements for the making of an application for an ESO, which are also applicable to an ISO. Subsection 6(1) provides that the application must be made in the last nine months of the offender's current custody or supervision. That condition has clearly been complied with. Subsection 6(3) provides that the application must be supported by various forms of documentation, which has also been complied with. Subsection 7(1) and 7(2) impose requirements concerning the timing and service of documents and they have been complied with. Subsection 7(3) requires that a preliminary hearing is to be conducted by this Court within 28 days after the application is filed or within such further time as the Supreme Court may allow. The orders of this Court which were made on 20 April 2021 listing the matter today, appear to allow for such further time.
As already noted, s 7(4) and s 10A direct attention to whether the matters alleged in the supporting documentation would, if proved, justify making an ESO.
This in turn directs attention to s 5B of the Act. There is no doubt that Mr Harlow is an "offender". He is serving a sentence of imprisonment for a serious offence and he is under supervision (s 5B(a)). He is also a "supervised offender" (s 5B(b)). As for whether he presents an unacceptable risk, the various assessments that I have referred to demonstrate he represents a moderate to high risk to the community of committing a serious offence, specifically a serious sexual offence. As for whether this risk is unacceptable if he is not kept under supervision (s 5B(d)) and whether to make the ISO (s 10A), two further topics need to be addressed.
First, there are the various factors in s 9(3). Section 9(3)(b) refers to the reports received under s 7(4), which is of no relevance at this point. Section 9(3)(c) refers to the results of other assessments prepared by qualified psychiatrists, psychologists or medical practitioners. I have already described the relevant parts of those assessments. Section 9(3)(d) refers to the results of statistical or other assessments as to the likelihood of persons with history or characteristics similar to those of the defendant committing a further serious offence. Contained within the reports that I have referred to are the application of those methodologies to the defendant, which have resulted in the risk assessments that I have referred to.
Section 9(3)(d1) requires that consideration be given to reports prepared by Corrective Services New South Wales, specifically the risk management report, which I have already discussed. Section 9(3)(e) requires that reference be made to the offender's participation in treatment and rehabilitation programmes, a matter I have already referred to. Section 9(3)(e1) refers to the options that are available if the offender is kept in custody or is in the community that might reduce the likelihood of the offender reoffending over time. Section 9(3)(e2) refers to the likelihood the offender will comply with the obligations of an ESO.
As noted, there was a period of time in which the offender appears to be have been offence free. Moreover, there is at least positive signs as to his response to supervision since his release in April. Overall, a consideration of these factors strongly point to the desirability, at least at this interim stage, of making an ISO.
Section 9(3)(f) refers to the offender's compliance with obligations to which he has been subject while released on parole, again a matter I have already addressed. Section 9(3)(g) refers to his compliance with any obligations he has under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004. There is, as I understand it, no material suggesting that he has been subject to those obligations.
Section 9(3)(h) requires consideration of his criminal history, a matter I have already outlined. Section 7(3)(h)(1) requires consideration be given to the views of the sentencing court. I have already described the findings of Judge Norrish SC. Overall, on a consideration of those factors, and bearing in mind the admonition that I am to have regard to, the matters alleged in the supporting documentation strongly support the making of an ISO.
The second matter is that, consistent with the above passage from Lynn, the proposed conditions to which I have already referred have to be considered at the point of making both an ESO and an ISO. Overall, I have no doubt that, unless supervised, the matters alleged in the supporting documentation demonstrate that there is an unacceptable risk of the defendant committing another serious sexual offence. Subject to one matter, the evidence I have described persuades me that the imposition of the proposed conditions sought by the State which relate to the matters identified in the risk management report of Ms Grabham's affidavit is "appropriate" (see s 11).
The one matter of concern which was reflected in the submissions of counsel for the defendant, Mr Averre, is the language of the conditions and the defendant's capacity to understand them. The language of the proposed conditions drafted by the State is undoubtedly technical. On its face, they appear to be expressed in terms that it is unlikely, or at least difficult, for the defendant to understand. On the one hand, such language may be necessary to confer the necessary power on the supervision team and enhance their ability to prosecute persons subject to ISOs and ESOs for breaches to have conditions of an ISO that are capable of being enforced as if they were a statute. On the other hand, the entire purpose of subjecting someone such as Mr Harlow to an ISO or an ESO may be undermined if he repeatedly and unknowingly commits technical breaches of densely drafted conditions and as a result is criminally punished for doing so. Ms Grabham's affidavit provides some reassurance against that, but it should be noted that in her affidavit she is only stating what can be done and not necessarily will be done.
At the hearing of this application there was some debate about the best way forward. It seems that the defendant is due to be assessed by a neuropsychologist in early July. The parties anticipate that, as a result of that assessment, there may be a better understanding of the type of wording that can be prepared to allow the defendant to truly understand the conditions to which he is subject. While not binding counsel for the defendant, it appears that in broad terms it is accepted at this preliminary stage that the topics of the proposed conditions reflect what is alleged in the supporting material are said to be the risks posed by the defendant if he is not supervised. Certainly, I am satisfied that that is so.
One possibility that was raised was to adjourn this application until around 15 or 16 July, that is just prior to the expiry of expiry of the defendant's sentence, to allow the parties to have the benefit of the neuropsychologist's assessment and to prepare appropriately drafted conditions. One practical problem is that having now become familiar with the matter I will not be available that period and therefore, if I did not make an ESO now, another judge would have to determine the matter all over again.
In the end result I determined that the better course was to address the matter at present based on the matters alleged in the supporting documentation. This includes Ms Grabham's affidavit which provides some comfort as to the means by which the meaning of the conditions can be made clear to the defendant. This is particularly so in a context where, having regard to the above passage from Lynn, it is not possible to separate out the act of making an ISO from the act of proposing various conditions. Instead, what I and the parties envisage, is that once the neuropsychologist's assessment is made available then the parties can confer as to the appropriate wording of the conditions and they can then approach the Duty Judge, who will have the benefit of these reasons and short submissions from the parties if there is any contest, with a view to varying the conditions that are imposed.
I would further add that, if for some reason that cannot be done before 23 July 2021, then the parties can have liberty to then approach me to achieve the same object in relation to the conditions.
Otherwise, I would note that even though on this assessment I am bound by the material put forward by the State, which contends that notwithstanding any technical language in the conditions an ISO can be adequately explained to a person such as the defendant, the same approach may not necessarily apply at the final hearing. At any final hearing of this matter, the Court will have the benefit of the experience of the supervision of the defendant under an ISO and, if that includes a period of time when he was subject to conditions drafted in technical terms, then no doubt evidence will be available as to how effective and fair that was. Accordingly, I will make the following orders. (1) Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): a. Two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) be appointed to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; b. The defendant is directed to attend those examinations. (2) Pursuant to s 10A of the Act, the defendant be subject to an Interim Supervision Order from midnight on 17 July 2021 ("the Interim Supervision Order"); (3) Pursuant to s 10C(1) of the Act, the Interim Supervision Order be for a period of 28 days. (4) Pursuant to s 11 of the Act, the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule attached to the Summons. (5) The parties be granted liberty to apply to the Duty Judge on 24 hours notice, up to and including 23 July 2021, in relation to any application to vary the wording of the conditions of the Interim Supervision Order. Liberty to apply to Beech-Jones J thereafter.

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: 11 June 2021

The HRO Act

I described the operation of the HRO Act in the State of New South Wales v Baldwin [2019] NSWSC 1882 at [5] to [20]; and State of New South Wales v GJO (Final) [2020] NSWSC 1412 at [55] to [23]. I will not repeat that discussion. It should be read together with this judgment.
At this point I note two further matters. First, as this is an application for an ISO, it, and the application to appoint two psychiatrists or psychologists to examine the defendant, are all to be assessed on the basis of whether the matters alleged in the supporting documentation would, if proved, justify granting the relief (see s 10A(b) ss 7(4)).
Second, of particular relevance to this application is the following passage from Lynn v State of New South Wales [2016] NSWCA 57 at [124] concerning the inter-relationship between the potential conditions that might be imposed to address an identified risk: "The exercise required by the statute in considering an application for an extended supervision order can be broken down into four steps, which are not appropriately described as temporal stages, one consequent on the other; rather, they interlock. The steps are to identify (i) the nature and seriousness of the risk posed by the offender with respect to further serious violence offences, (ii) the appropriate conditions which might be imposed as part of an extended supervision order, (iii) the likely effect of such an order in removing or diminishing the risk and (iv), if an order is otherwise appropriate, whether there are factors personal to the offender which would militate against making the order."

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