State of New South Wales v Heness

State of New South Wales v Heness - [2019] NSWSC 1710 - NSWSC 2019 case summary — Zoe

[4]

The defendant's position in summary

Although the defendant opposed the application by the State for an ESO, as he did each of the orders sought by the State at the preliminary hearing including the making of an ISO, he accepted that the statutory preconditions in ss 5B(a), (b) and (c) of the CHRO Act for the making of an ESO, being the offender precondition; the supervised offender precondition and the application precondition were satisfied.
Additionally, his counsel, Ms McGee, did not cavil with Mr McGorey's submissions as to the operation of the relevant provisions of the CHRO Act according to which the State's application for an ESO is to be considered. In taking that approach Ms McGee also acknowledged that the primary object of the CHRO Act is to ensure the safety and protection of the community in relation to high risk offenders and, in the context of the application with which the Court is currently concerned, the safety and protection of the community in relation to high risk sex offenders.
What was put in issue in the preliminary proceeding was whether, even accepting that the matters alleged in the supporting material are proved, the Court could be satisfied to the requisite high degree of probability that the defendant poses an unacceptable risk of committing another serious sex offence if not kept under supervision under the order (the unacceptable risk condition). In Ms McGee's submission, in the exercise of its evaluative judgment the Court would not make that finding and, that being the case, the Summons should be dismissed.
Ms McGee also emphasised that in evaluating the extent to which the risk that the defendant would commit a serious sex offence if not under supervision as provided for in s 5B(b) of the CHRO Act, it is supervision under the CHRO Act and not an assessment of the potential for another form of statutory supervision to address that risk. In Ms McGee's submission, the construction of the statutory language in s 5B(b) is important because it leads the Court to consider the risk the defendant poses of committing a serious sex offence in the future having regard to the evidence as to the actual and potential alternative supervision regimes to which he may be subject in the future, in particular the regime provided for in the Child Protection (Offender Prohibition Orders) Act 2004 (NSW) ("the CPOPO Act"). I note in that connection that an application for supervision under that Act is made by the Commissioner of Police. I also note that an application of that kind is currently under consideration pending the outcome of the current proceedings.
Ms McGee further submitted that even were the Court satisfied that the supporting documents would justify the making of an ESO and that an order for compulsory examinations should be made, the Court would not exercise the discretion in s 10A of the CHRO Act to impose an ISO prior to the final hearing of the Summons. Finally, she submitted that in the event that the Court were persuaded that an ISO should be made, the Court would not be satisfied that the conditions sought by the State in the Schedule to the Summons are "appropriate" to impose at the interim stage as required by s 11 of the CHRO Act. An alternate form of conditions was proposed on the defendant's behalf.

[5]

The statutory framework

The question for determination at the preliminary stage is whether, if the matters in the supporting documents are proved, the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sex offence if not kept under supervision under the CHRO Act. I accept that it is not for the Court to assess the weight of the supporting documentation bearing on that question, or to seek to predict the outcome of the proceedings for final orders. Rather, the Court is to engage in an evaluative exercise taking into account all of the supporting documentation (and such material as has been tendered by a defendant) and, on the assumption that the facts alleged in the supporting documentation are proved, to determine whether those facts would justify the making of an ESO. The State is, however, obliged at the preliminary hearing to allege certain facts which, if proved, would lead to a conclusion that the making of an extended supervision order is justified. To put it another way, the State bears the burden of persuading the Court that the assumed facts establish, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious sex offence if not supervised under the CHRO Act.
In undertaking that evaluative task in this case, paramount consideration will be given to the protection and safety of the community from the dangers posed by high risk sex offenders. That said, as I have had occasion to emphasise in other cases, the CHRO Act is not concerned with addressing rates of recidivism against the general criminal law or the fact that a defendant may commit further serious sex offences if not supervised under the Act. Neither is the CHRO Act concerned with how rates of recidivism might be addressed in the interests of community safety. In exercising the jurisdiction under the CHRO Act, this Court is not exercising the powers or function of a de facto parole authority. Neither is it concerned with the sufficiency or efficacy of the powers or function of other statutory bodies concerned with protecting children from serious harm, including by monitoring the conduct of persons convicted of child sex offences under the CPOR Act or by orders prohibiting conduct of a specific kind by "registrable persons" under the CPOPO Act, despite the operation of those Acts having the same protective purpose as the CHRO Act.
In determining whether to exercise the discretion in s 10A of the CHRO Act in favour of making interim orders, the Court also needs to be persuaded not simply that an unacceptable risk of the relevant kind will manifest if the defendant is not subject to supervision, but also the seriousness of the harm that will ensue in the absence of supervision orders (see State of NSW v Ceissman [2018] NSWSC 508 at [26]).
As I noted in State of NSW v Clarke [2019] NSWSC 411, the observations of Harrison J in State of NSW v Pacey [2015] NSWSC 1983 at [53] have particular resonance in that connection as they do on this application: It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release.
To similar effect, although with different emphasis, I also note the observations of Davies J in State of NSW v Williamson (No 1) [2019] NSWSC 812 where, in dismissing a summons at the preliminary stage, his Honour noted at [92] the test to be applied as follows: There is certainly evidence suggesting that the defendant is at risk of committing further serious offences but that is not the test the CHRO Act stipulates. Any judge before whom an application for an ESO comes must be satisfied to a high degree of probability that the defendant is an unacceptable risk of committing a further serious offence. Whilst my task [in] dealing with an ISO is not to predict the result for the outcome of an ESO application I have to be satisfied on a prima facie basis that the order should be made. That is, I must be satisfied that the facts, if proved, would justify the making of an order because the defendant is found to be an unacceptable risk to that high degree of satisfaction.

[6]

The evidence adduced on the preliminary hearing

The Crown relied upon the affidavit of Ms Camille Laker, solicitor, of 18 October 2019 together with a compendium of documents exhibited to her affidavit. That material was utilised for the preparation of a chronology of material events. The defendant proposed various amendments to the chronology which have been incorporated. They are included in the judgment as an agreed summary below. DATE EVENT 30 Jul 1954 The defendant is born (currently aged 64) as one of four children. He reported experiencing childhood trauma. Both he and his mother were abused by his father. Approx 1973 The defendant is married at 19 years of age. They have one child. He completes Year 10. Thereafter he was self-employed as an electrician (including operating his own business) and as a property manager. Approx 1991 The defendant separates from his wife. He reports extreme distress over the breakup. He has had no further contact with his son, then aged 6, since that time. Jan 1994 The defendant commences a de facto relationship with Lana Rafidi. They married in 2001. Ms Rafidi had two sons of her own prior to the commencement of the relationship. 11 Oct 1997 The defendant allegedly detains MO (14 years old) with intent to carnally know her and allegedly commits an aggravated sexual assault on her. Charged on 5 November 1997. The DPP (NSW) discontinues proceedings on 30 March 1998. 1999 The defendant purchases a property in Lansvale, NSW. Nov 2002 The defendant reports that Lana Rafidi ended the relationship suddenly without warning. He suffered depressed mood as a result. 24 Feb 2003 The defendant commits six counts of make false instrument. Charged on 1 June 2004 and convicted and sentenced to fines on 31 August 2004. 2003-2004 Lana Rafidi and her new partner make complaints to police alleging the defendant had spoken to her in contravention of an AVO and was having her followed. No charges laid. 21 Feb 2006 The defendant commits two counts of unlawful sexual intercourse (cunnilingus) on a 15 year old female (RD), in Clare, South Australia (Index Offences). 15 Jul 2009 Sentenced by Muecke DCJ after found guilty of two counts of unlawful sexual intercourse. Sentenced to 4 years and 6 months imprisonment commencing 15 July 2009 and expiring 14 January 2014 with a 2 year and 6 months non-parole period. Enters SA custody. 6 Nov 2009 SA Interstate Transfer Report prepared. Noted the defendant was a model prisoner who positively interacted with his peers and cooperated with unit staff. The defendant maintained his innocence. The report also noted the defendant exhibited good program involvement; agreed to participate in the sexual behaviours clinic, was assessed as having no criminogenic and no psychological/psychiatric issues. 16 June 2010 A pre-treatment assessment report prepared by a forensic psychologist and clinical psychologist in SA found "on the basis of a screening assessment … [the defendant was] estimated at low risk range of sexual reoffending should he not receive treatment and therefore is considered unsuitable" for the sexual behaviours clinic. 28 Oct 2010 Enters NSW custody (sentence of imprisonment transferred to NSW). 16 Aug 2011 Commences the Categorical Deniers Sex Offender Program. 24 Oct 2011 Pre-release report. The defendant maintained his innocence and alleged the victim (RD) had brought similar allegations against her uncle to obtain victim's compensation. Reported to be actively participating in all group sessions of the Deniers Sex Offender Program. Received positive work reports until mid-September 2011 after which he was cautioned for poor attitude to work. The report identified that the defendant was assessed as at a "low" risk of general reoffending but would nevertheless be supervised on the basis of a "medium-high" risk because of his sex offender status. 14 Jan 2012 Becomes eligible for release to parole. 21 Feb 2012 Pre-release report prepared. The defendant held a C2 classification which prevented his participation in pre-release leave programs. Completes the Deniers Sex Offender Program. Had not received institutional misconduct charges during NSW imprisonment and did not pose a management issue. Had regular visitation from friends. The Deniers Sex Offender Program report noted that: 28 Feb 2012 (i) Participation in the program can reduce the risk of reoffending. (ii) The defendant attended all possible groups, was consistently attentive, participated well, contributed, received feedback and understood material. He identified his risk factors for being the subject of an allegation and strategies for addressing those risks. (iii) The assessment of the defendant's dynamic factors did not alter the risk score/category on the Static-99R of 2 or "low/moderate". 22 Mar 2012 Released to parole to reside at Nunyara COSP (residing there until 4 April 2012). 2 Apr 2012 The defendant was served a notice outlining his reporting obligations under the CPOR Act. Between 24 April 2012 and 31 December 2017 the defendant reported to a case manager at Cabramatta Local Area Command. 2 May 2013 Breach of parole report. The defendant not present for scheduled home visits. Response to supervision considered borderline. Recommended that he be required to explain his non-compliance. 3 June 2013 Supplementary Report. Response to supervision still considered unsatisfactory. Difficult to engage and limited responses provided. Recommended he be issued a warning over non-compliance. 14 Jan 2014 The defendant completes his parole period. His initial response to supervision described as unsatisfactory as he was reportedly difficult to engage (due to him denying the offence and not believing his supervision was warranted) but his response to supervision improved. 2015 The defendant reports undergoing prostate surgery in 2015. 17 Jan 2018 The defendant was advised by NSW police of a change of his case manager for the purposes of his reporting under the CPOR Act. He previously had Det Snr Sgt Tucker as his case manager for approximately 5½ years, between 24 April 2012 and 31 December 2017. 25 Jan 2018 When police attended the defendant's residence under s 16C of the CPOR Act, the children were observed by police walking out of the premises, accompanied by their mother, at the request of the defendant. 26 Jan 2018 Charged with failing to comply with reporting obligations under the CPOR Act. Bail refused. At the time of arrest he was residing at the property in Lansvale (working as an electrician). 26 Mar 2018 Released to bail. 8 Sep 2018 Geriatrician report completed by Dr Joseph. The defendant reported being forgetful and his memory having declined. In cognitive testing he scored low. That score might be attributable to depression. Alzheimer's or vascular dementia was not excluded as a possible cause. Dr Joseph did not make a positive exclusion of Alzheimer's or vascular dementia but rather observed "his cerebral perfusion scan was un-diagnostic but it could exclude Alzheimer's Dementia and his PET scan did not show any evidence for Alzheimer's or vascular dementia". 15 Sep 2018 Psychological report completed by Ann Marie De Santa Brigida - moderate depression and severe anxiety diagnosed. At the time of assessment the defendant reported that his girlfriend was Thanh Pham (aged 34 years). Reported being prescribed antidepressant medication in the prior two years. 18 Sep 2018 Pre-sentence report. The defendant denied the offences and claimed the police were 'out to get me'. Demonstrated minimal insight into his offending. Considered unlikely to benefit from a period of supervision as assessed as a low-medium risk of reoffending. The Report additionally observed the defendant "did not present with any criminogenic needs which could be addressed by a period of supervision with Community Corrections". 19 Sep 2018 Sentenced after entering pleas of guilty to ten counts of failing to comply with reporting obligations under the CPOR Act between 1 January 2013 and 5 January 2018 (a further six counts taken into account on a Form 1). Sentenced at Liverpool Local Court to an aggregate sentence of 18 months imprisonment commencing 20 July 2018 and expiring on 19 January 2020 with a 6 month non-parole period. Returns to custody. 19 Jan 2019 Released to parole. Charged with three counts of failing to comply with reporting obligations under the CPOR Act between 26 January 2019 and 29 January 2019. Remanded to custody. The three further counts of failing to comply with reporting obligations concerned the following conduct: 29 Jan 2019 (i) Failing to report to police within 7 days of being released from custody (noting the defendant had however reported to Community Corrections as directed on two occasions between his release to parole and his re-arrest). (ii) Failing to report his "affiliation" with the Fairfield RSL through membership as a social member commencing 31 December 2016, such club being a reportable affiliation because as part of its services the club runs a "Youth Club" at which children attend, but at which it was not suggested the defendant had himself attended. (iii) Failing to report an eBay account with the username and identity "heness.uk2015". The defendant had received an email on 17 December 2018 (while he was still in custody), and received a text message on 21 January 2019 (two days after his release from custody) about his account. This breach was identified upon examination of the defendant's mobile phone which was seized at the time of his arrest for failure to report to police. The mobile phone had (undated) browsing history for the usage of the eBay Australia website, though it is noted that no other offences were evidenced by the phone examination. 30 Jan 2019 Returns to custody. 31 Jan 2019 Community Corrections notifies the State Parole Authority of the recent charges (which if proven would breach parole). Recommended his parole matter be stood over. 25 Jul 2019 Sentenced at Fairfield Local Court for two counts of failing to comply with reporting obligations after entering pleas of guilty. Sentenced to 10 months imprisonment commencing 29 January 2019 and expiring 28 November 2019 with a 7 month and 15 day non-parole period. 12 Sep 2019 Released to parole. 19 Jan 2020 Head sentence for the CPOR Act offences sentenced at Liverpool Local Court on 19 September 2018 set to expire.

[8]

The matters provided for in s 9(3) of the CHRO Act

In the process of giving appropriate consideration to the matters set out in s 9(3) of the CHRO Act it will be necessary to elaborate upon some of the events referred to in the agreed chronology including, in particular, the index offending in 2006 and the defendant's conduct underpinning the breaches of the CPOR Act between 2012 and 2018. It is the latter conduct which renders the defendant "a supervised offender", attracting the Court's jurisdiction under the CHRO Act and the former which satisfies "the offender precondition".
Before undertaking that exercise, however, I need to deal with an objection taken by Ms McGee to certain parts of the evidence upon which the State relied and included in the chronology. That evidence comprised a facts sheet and a complainant witness statement relating to one charge of aggravated sexual assault with a person under the age of 16, contrary to s 61J(1) of the Crimes Act 1900 (NSW); one charge of sexual intercourse without consent, contrary to s 61I of the Crimes Act; and a third count of abduction of a woman with intent to carnally know her, contrary to s 89 of the Crimes Act (since repealed) ("the 1997 offences"). All three charges were laid on the defendant's arrest on 5 November 1997. None of the charges were prosecuted and, accordingly, form no part of the defendant's criminal record. They were, however, relied upon by the State as constituting "other information that is available as to the likelihood that the offender will commit a further serious offence" as provided for in s 9(3)(i) of the CHRO Act and included in the chronology on that basis.
Briefly stated, the evidence relating to the 1997 charges is as follows: 1. In October 1997 the defendant was charged with offences including an alleged detain with intent and aggravated sexual intercourse without consent (victim under 16). The circumstances of the alleged offending included as follows. 2. MO and her mother migrated from Poland to Australia in 1995. They met the defendant when he was door knocking for signatures to a petition in about mid-1996. The defendant came back into contact with them in May 1997. Thereafter he regularly attended their home as a visitor. He promised MO's mother a job, to help her with her English and to find them a new residence. A relationship of trust developed. According to MO's mother, she became quasi engaged with the defendant in about August 1997. 3. On 11 October 1997, the defendant drove MO (under 16) and her mother to look at potential rental apartments. At some point MO accompanied the defendant in a car leaving her mother at home. Rather than driving to the shops, the defendant instead drove her to a premises. He drove the car into an enclosed garage and locked himself and MO inside the car. He fondled her and forcefully penetrated her vaginally and anally. He then drove her home and threatened her if she reported the offending. MO reported the alleged offences to her mother about five days later.
Separately tendered by the defendant as Exhibit 2 in the proceedings, without objection, was a letter from the Office of the Director of Public Prosecutions of 18 January 2000 which confirmed that on 13 August 1999 Mr Cowdery QC, the then Director of Public Prosecutions, directed that no further proceedings be taken in relation to the 1997 charges on the basis that "there was no reasonable prospect of conviction". The letter went on to note that in preparation for trial (which, I assume, was undertaken by either or both prosecuting counsel and instructing solicitor, including conferences with the complainant and her mother) "significant credibility issues" emerged (which must be taken to mean issues concerning the complainant's honesty and reliability) which were "instrumental in the decision to direct no further proceedings" be taken. The letter also stated that this decision was made despite the complainant's express wish that the defendant should be prosecuted.
I should also note that the solicitor's letter acknowledged that the defendant had given a version of events not amounting to a bare denial of the allegations, but claiming that on the day that he is alleged to have abducted the complainant and sexually assaulted her, he was with her in a car (as she alleged) but that he had a heated argument with her regarding his relationship with her mother and had driven her home after which he sought to sever contact with them both.
Ms McGee accepted that in undertaking its evaluative assessment of risk in proceedings under the CHRO Act, the Court may take into account alleged criminal conduct of a defendant/offender, including where that conduct has not resulted in a conviction (see for example State of NSW v Tiggelen [2018] NSWSC 1399 at [102] and the cases to which Harrison J referred). She submitted, however, that where the evidence is that the charges were not prosecuted because of grave concerns about the reliability or honesty of the complainant and/or her mother following an interrogation into the sufficiency of their evidence to support a finding of guilt by an officer of the Director of Public Prosecutions and then ultimately by the Director himself, it is not open to the State to rely upon the 1997 charges as capable of informing the evaluative exercise of risk in which the Court is engaged.
Further, to the extent that the evidence concerning the 1997 charges was admissible, Ms McGee submitted that I would exercise the discretion in s 135 of the Evidence Act 1995 (NSW) and reject the evidence in the evaluation of risk because the probative value of that evidence is outweighed by the danger of unfair prejudice to the defendant.
Mr McGorey submitted that this is not the forum where objections to the evidence comprising the supporting documentation relied upon by the State should be taken, or an occasion for the operation of the discretionary exclusion of evidence under the Evidence Act. He further submitted that a preliminary hearing is not an occasion for an assessment of the weight of any individual item of the evidence comprising the supporting documentation relied upon by the State in discharge of its evidentiary onus.
In the hearing, I determined that the evidence relating to the 1997 charges was admissible in that it was capable, even if in a very limited way, of bearing upon the likelihood of the defendant committing a serious sex offence in the future and, in that way, capable of informing the question whether the acceptable risk precondition is satisfied. I also determined that this was not a forum where the discretion in s 135 of the Evidence Act had any meaningful application. Here the Court is engaged in an evaluative exercise (both as the tribunal of fact and the tribunal of law) as to whether a statutory test has been met so as to engage the jurisdiction of the Court to make orders for the extended supervision of the defendant if satisfied of that fact at a prima facie level. Viewed in that way, there is no practical sense in which the risk of the unfair prejudice with which s 135 is concerned has any meaningful operation in deciding that question in a preliminary hearing.
I was, however, unprepared to accede to Mr McGorey's submission that the evaluative exercise engaged on this application eschews considerations of the weight of the supporting documentation. While it is true that in a preliminary hearing the Court is not to "weigh" the documentation for the purposes of predicting the ultimate outcome of the proceedings, in my view the evaluative exercise in which the Court is engaged in the preliminary hearing necessarily involves an assessment of the "weight" of particular aspects of the evidence, equally as it does the "weight" of the supporting documentation as a whole, when determining whether the State has evidence capable of discharging the burden of establishing that "the unacceptable risk precondition" is met such that interim orders might be made subject to the exercise of discretion.
In my view, the fact that an assessment was made by the New South Wales prosecuting authorities that there were no reasonable prospects of conviction because of credibility issues, significantly minimises the weight that should be given to the laying of the 1997 charges based, as it must be assumed they were, on the reasonable suspicion of the arresting police that the offences had been committed. Although there is no evidence elaborating on the "credibility issues" identified by the prosecuting authorities in the solicitor's letter, in circumstances where the defendant denied the allegations, and where the Crown was aware of that denial, they must be taken to have been of sufficient seriousness that a decision was made that there was no reasonable prospect of a conviction on any of the three counts. That position differs from alleged criminal conduct that did not result in conviction because a jury was not satisfied of guilt beyond reasonable doubt. In those circumstances, as other decisions of this Court have recognised, the fact that a defendant was prosecuted at trial has been treated as information bearing on the likelihood that the defendant will commit a further serious offence as provided for in s 9(3)(i) (see for example Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 per Adamson J at [27] and [124]). The position here also differs from a case where trial proceedings had commenced but were discontinued because a prosecution witness did not attend the trial, the circumstances with which Harrison J was concerned in Tiggelen.
I will return later in the judgment to consider the significance or weight that should be attributed to the 1997 charges and the submission by Mr McGorey that they are capable of revealing a pattern of sexual offending by the defendant against young girls.

[9]

The index offending and the views of the sentencing court - s 9(3)(h1)

As the chronology reveals, the index offences (the only serious sex offences on the defendant's criminal record) were committed in South Australia in 2006. They are the only offences of a sexual nature recorded in the defendant's criminal antecedents and, as the State accepts, despite the defendant having had the opportunity to commit further sexual offences by his unsupervised conduct with at least two female children aged between 11 and 13, he has not done so and has not been suspected of doing so.
The index offences concern two counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). The victim was aged 15 years at the time of the offending. The alleged sexual intercourse was cunnilingus.
It is an offence contrary to s 66C of the Crimes Act (NSW) to have sexual intercourse with a child aged between 10 and 16 years old. That offence constitutes a serious sex offence under s 5(1)(a)(i) of the CHRO Act.
Irrespective of the differences in the age of consent between New South Wales (16 years) and South Australia (17 years) in 2006, the elements of the respective offences against s 49(3) of the Criminal Law Consolidation Act (SA) and s 66C of the Crimes Act (NSW) are identical; being proof of "sexual intercourse" and that the complainant was below a specified age at the time of intercourse.
The facts underlying the index offences are summarised as follows: 1. In 2006 the defendant was in a relationship with K. K lived in a small country town in South Australia where she ran a restaurant. The defendant travelled from Sydney to visit and stay with K. 2. The victim, RD, was 15 years old and worked part-time at K's restaurant. 3. On 21 February 2006, RD went to K's house to clean the home. K and the defendant were at the home on her arrival. K and the defendant then left to go to K's restaurant but the defendant returned alone soon after. 4. RD gave evidence that the defendant gave her a glass of wine. She felt sick and vomited in the toilet. He gave her more wine to drink. He asked RD if she had a boyfriend and told her she was attractive. He then kissed her. She felt "blurry" and he picked her up and carried her to the master bedroom. He removed her jeans and underwear and committed two acts of cunnilingus on RD while she was on the bed. She gave evidence that she said "no", retreated up the bed and tried to push him away. He ceased when the front doorbell rang. RD dressed and left the premises. 5. The defendant gave evidence that he returned to the house and found RD drinking wine. He reproached her for doing so. RD said she wanted to be paid more than the agreed $20 to clean the house. She threatened to tell K he had touched her if he did not give her money. He told her to leave. She vomited before leaving. He believed she appeared affected by alcohol. He denied any sexual intercourse. 6. The defendant was acquitted of sexual intercourse without consent but convicted of two counts of unlawful sexual intercourse. 7. The sentencing judge found beyond reasonable doubt that RD had not consented to the intercourse and that his acquittal of "the rape charges" was a consequence of the jury not being satisfied that he knew she was not consenting or was reckless as to that fact. The sentencing judge found the offending had serious consequences for RD. The defendant had expressed no contrition or remorse. He continues to deny his guilt.

[10]

Other criminal offences

The contraventions of the CPOR Act noted in the chronology occurred between 2013 and early 2018. They were not detected until 2018. The defendant has been on the Child Protection Register since 22 March 2012 by reason of the index offending. As "a registered person" he has statutory reporting obligations pursuant to s 9 of the CPOR Act, specifically that he is obliged to report to police all relevant personal information where it involves contact with children.
Between 24 April 2012 and 17 January 2018, on at least 28 occasions, the defendant had contact with New South Wales police but at no time did he report that he had regular contact with nine children. He also failed to advise of: the registration details of the motor vehicle that was used to pick up one of the children on one occasion; a work address where he met six children; a work address where he was engaged to install child safety locks; a work address at a club where he came into contact with school-aged children; an affiliation with a club where children were engaged in various activities; and other relevant personal information relating to online internet usage and connections, including opening LinkedIn and Facebook accounts, and an email address and landline registered in the name of his company. He also failed to report that he had changed business premises.
This conduct attracted sixteen breaches of the CPOR Act. A further six breaches were taken into account on sentence on a Form 1. An aggregate sentence of imprisonment for 18 months with a non-parole period of 6 months was imposed.
The offending against the CPOR Act that involved children included the following: 1. TP was befriended by the defendant in 2013 when he was performing electrical work at her unit at the Unit Complex. TP has four children (aged between 7 and 13 years of age - the two eldest children, aged 11 and 13, are female). TP and her children are from a Vietnamese speaking background. TP speaks limited English. The defendant invited her children to his home to swim in his pool. Thereafter they attended his house on average about five times a week. In 2018 the defendant identified TP as his girlfriend. He provided TP with casual employment and provided the children "pocket money" in return for them doing chores around his house. The children called him "uncle". 2. The defendant also allowed the children to use his air hockey table, soccer table, pool table and drawing facilities. Body boards and children's bikes were found at his house. He also bought them iPads and computers, and took them on activities (beach and fishing trips). It appears he purchased some or all these items for their use. He had frequent unsupervised contact with the children. They sometimes showered at his home. 3. The defendant collected the 13 year old from school in his car once and was in text message contact with her. 4. He had contact with another female child (whilst she was aged 14 to 17 years) and a male child (whilst aged between 10 and 16 years), both of whom resided at the Unit Complex where he worked from time to time. He visited the children's units between 10 to 20 times when they were home. This included an occasion when the female was home alone. 5. He had contact with two female children aged 11 and 14 years old who had befriended the "T children" and accompanied them to the defendant's house to swim in his pool and play. They attended his house on about four occasions.
The State accepted that there is no evidence of any improper physical dealings or sexual interaction of any kind with any of the children at any time over the years between 2012 and 2018, and 2019 when the defendant conducted himself in breach of his reporting obligations. It is also accepted that when questioned by police and by school counsellors none of the children reported any such contact. Accordingly, there is no evidence of the commission of the grooming offence comprehended by s 66EB of the Crimes Act or any offences involving sexual contact or indecent dealings with children under the Crimes Act.
As noted in the chronology, the defendant was released to parole on 19 January 2019 after serving a non-parole period of 6 months. He was obliged to report to a police station within seven days of his release from custody. He failed to do so despite being the subject of a specific direction by his Community Corrections officer on 21 January 2019.
The defendant was arrested on 29 January 2019 for failing to comply with that reporting obligation. A check of his phone revealed he had set up an eBay account without reporting the same. It was also determined that he had been a social member of the Fairfield RSL Club since 31 December 2016. That club is affiliated with primary schools and a Youth Club met there three to four times a week. This conduct attracted three fresh charges under the CPOR Act.
The defendant was remanded in custody following his arrest. He entered pleas of guilty to two of those charges and was sentenced on 25 July 2019 to 10 months imprisonment commencing 29 January 2019 with a 7 month and 15 day non-parole period. The sentence imposed on those offences is due to expire on 28 November 2019. He is currently on parole for that offending.

[11]

The results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence - s 9(3)(d)

The following statistical assessments were performed in the course of the risk assessment by Dr Elzbieta Kobylinska, psychologist, and reported by her on 26 May 2019: 1. In the STATIC-99R, which assesses only static information, the defendant has been assessed consistently with a score of 2, placing him in the "low-moderate" range. Dr Kobylinska acknowledges that the STATIC-99R instrument is insensitive to changes in an offender's circumstances that may increase or decrease the actual risk of reoffending. 2. The STABLE-2007 identifies stable dynamic risk factors indicating criminogenic needs which, when taken with the STATIC-99R, can generate a composite assessment of risk/needs. The most recent administration of this test yielded an assessment that the defendant required a "low level of intervention and/or supervision".
Taking into account the frequently reported limitations on the use of predictive instruments and the fact that the defendant has not been shown to have sexually offended in any way for over thirteen years, I do not consider the use of predictive instruments in this case of great assistance in the assessment of the likelihood of the defendant committing a further serious sex offence.
In that connection, I also note that on multiple risk assessments protective factors were identified, including the defendant's stable employment, work ethic, financial situation, stable accommodation and a circle of supportive friends who have a demonstrated positive influence on him. The defendant is also assessed as having sufficient cognitive capacity to address issues that may present in the future that might have a destabilising effect. Importantly, no evidence of sexual preoccupation or the defendant using sex as a coping mechanism was identified. There is no evidence of substance abuse.
Whilst it appears to be accepted in the empirical literature that informs the formal process of risk assessment that an acknowledgement of past offending, and the risks associated with reoffending, can operate as a protective factor against future offending, the inverse does not follow. As noted by N Adams J in State of NSW v Wilson (Preliminary) [2017] NSWSC 1367 at [106], it cannot be the case that a defendant who denies serious sexual offending is, by that denial, to be regarded as a high risk sex offender. Moreover, as her Honour noted, the denial of sexual offending has not been linked to an increased risk of reoffending in the empirical literature.
Dr Kobylinska appeared to place some emphasis on the defendant maintaining his innocence in respect of the index offending and denying the conduct underpinning the 1997 charges. She treated that attitude as reflecting a failure to acknowledge or to demonstrate an understanding that his actions had an impact on both victims and, in that way, his attitude did not operate to reduce the occurrence of risk factors in the future. From that analysis it would appear that Dr Kobylinska proceeded on the assumption that the 1997 offences were in fact committed, although not prosecuted.
While that approach may have been open to Dr Kobylinska for the purposes of the preparation of the risk assessment report, where I have resolved, in the particular circumstances of this case, to give minimal weight to the 1997 charges in the assessment of the risk of future serious sex offending I am obliged to undertake, it follows that the weight to be afforded her risk assessment report is qualified to the extent that it is based upon a different working assumption as to the defendant's history of sex offending.
What also needs to be taken into account is the defendant's successful completion of the Denier's Program under the supervision of Mr Baird, psychologist, at Long Bay Correctional Centre and, further, that despite the defendant's willingness to engage in other custody based treatment or rehabilitation programs, he has been deemed ineligible or unsuitable for inclusion because of what was assessed as a lack of criminogenic needs and his low risk of reoffending.
It was accepted by the State that in completing the Denier's Program the defendant not only completed all of the program's requirements and attended all group sessions where that was possible within his custodial circumstances but that, in addition, the Psychology Service Progress Notes accessed by Dr Kobylinska note that his participation was positive, he offered regular and relevant contributions and received feedback openly without defensiveness. He also self-identified several risk factors to minimise what he considered as the risk of being accused of sexual abuse, including the following: 1. poor relationship skills and isolating emotionally from his partner; 2. low self-esteem; 3. poor coping skills, including withdrawing and isolation; 4. poor communication; 5. empathy issues; and 6. drinking more than usual.

[12]

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment - s 9(3)(c)

The risk assessment report prepared by Dr Kobylinska referred to above also includes the following so far as the defendant's attitude to the assessment and level of participation in its process: 1. The defendant consented to being interviewed. He was polite. His memory appeared intact. He communicated clearly and presented with an average range of intelligence. There were no indications of psychotic illness. 2. He reported running his own businesses continuously for about 25 to 30 years, including electrical contracting, installation of security systems and real estate. He has had four significant relationships. His last reported relationship lasted about two months before his incarceration. 3. The defendant denied having a romantic relationship with the mother of the T children, who was employed as a house cleaner for about four to five years. This is despite his report to Ms De Santa Brigida in September 2018 that they were previously in a relationship. Records show she visited him in prison approximately once a month. 4. The defendant denied the index offence stating the victim (RD) falsely accused him of sexual misconduct for financial motives. He also appeared to minimise his failure to comply with his reporting obligations under the CPOR Act blaming a detective who was "out to get him" as distinct from a failure to appreciate his obligations were or an attitude of defiance to his obligations for other reasons. He did not demonstrate an understanding of the factors that led to the contraventions of the COPR Act. 5. The areas of clinical concern were identified as cooperation with supervision, capacity for relationship stability (which I take to be a reference to intimate relationship stability given that social stability was recognised as a protective factor), deviant sexual preference and negative emotionality. The reference to "deviant sexual preference" was based upon "two adolescent" female victims aged 14 years old (the 1997 charges) and 15 years old (the index offending).
On that analysis, Dr Koblyinska considered the most likely scenario for future serious sexual offending would involve contact with younger adolescent girls aged between 13 to 17. She described the risk scenario as follows: [The] offending is likely to be planned and involve a degree of manipulation / seducing of the victim by offering something appearing attractive to the potential victim - help with homework, a car lift, alcohol, gifts, verbal compliments, etc. A potential victim would probably be known to [the defendant] and he would befriend her before sexual offending. The likely motivation would be a sexual gratification.
In Ms McGee's submission, the clinical concerns identified in (e) above fail to take into account that the defendant's compliance with his supervision under parole for the index offence (which, it must be acknowledged, expired over five years ago) substantially improved over the parole period and without breach. Subject only to a failure to report to police (cf reporting for parole supervision) his release to parole in January 2019 following the sentence for the breaches of the reporting obligations under the CPOR Act was also without incident. He has been on parole since his re-release in September 2019 without incident. (This is also a factor to be considered under s 9(3)(f).)
Ms McGee also queried, and in my view with some justification, how two marriages of 19 and 7 years duration respectively, with no allegation of sexual or violent behaviour in either, evinces "a lack of capacity for relationship stability" (also in (e) above) or how his relationship history has any bearing at all upon the assessment of risk with which the Court is concerned.
Ms McGee also observed that the defendant's "negative emotionality" in (e) above as a clinical concern (one of the dynamic risk factors used in clinical risk assessment under STABLE-2007 to describe states of mood or thinking on presentation in the assessment process) is not further elaborated upon in the risk assessment report as a risk factor with which the Court should be concerned. For my part, I query how the defendant's "feelings" about treatment by police or his "feelings" about his time in custody for breaches of his reporting obligations, accompanied by "feelings" of anger and frustration, have any relevant bearing on the risk assessment in which I am engaged, in particular, where the defendant has no history of mental health problems or treatment for any mental health condition such that his "feelings" might have an underlying pathology.
As regards the clinical risk factor described in (e) above as "deviant sexual preference", and the identification of a likely risk scenario involving the seduction and manipulation of adolescent girls, again with some justification, Ms McGee queried the basis for those findings where they each depend heavily upon a presumption that the alleged offending the subject of the discontinued 1997 charges actually occurred, and on the further assumption that the index offending occurred in a context where the adolescent complainant was seduced or groomed in advance of being assaulted, where there was no evidence that had occurred.
Ms McGee submitted that the proven history of the defendant's sexual offending reveals that it is unplanned, without any evidence of manipulation or grooming of the victim and, even in respect of the index offending, there was some doubt as to the circumstances in which alcohol was involved in the offences, that is, whether it was by the defendant offering it or whether the complainant had consumed alcohol of her own volition before the assault.
Additionally, and more concerning in my view, is that the appointment of the likely risk scenario in the risk assessment report appears to proceed upon an erroneous description by Dr Kobylinska of the breaches of the defendant's reporting obligations under the CPOR Act being "committed in relation to sexual offending". That is not only entirely contrary to the case the State advances but unsupported by any evidence.
In those circumstances, what is relied upon by the State in the risk assessment report as "a likely risk scenario" in support of the application by the State for an ESO and an ISO at the interim stage of proceedings, must be very heavily qualified by the fact that it is a scenario that is both unsupported by reliable evidence of previous sex offending (the 1997 charges) and positively contradicted by other evidence of what is wrongly understood to be offending in the context of sexual offending (the CPOR charges). For those reasons, I do not attribute to that aspect of the risk assessment any weight in the case advanced by the State in support of the orders sought at the preliminary hearing.

[13]

The level of the offender's compliance with any obligations to which he has been subject under the CPOR Act - s 9(3)(g)

I accept that the defendant's contraventions of the CPOR Act were serious, flagrant and repeated, as evidenced by his failure over a number of years to report his regular and apparently frequently unsupervised contact with a range of children in breach of his statutory obligations to do so. Further, I accept that the second tranche of breaches of the CPOR Act in 2019 indicate a persisting failure to appreciate the criminal consequences of a further and deliberate breach of his statutory obligations as a reportable person under the Act. The apparent persistence of an attitude of defiance, and what seems to be the defendant's tendency to attribute blame to others for his return to custody and the related financial costs and consequences to his business and working life, reflect poorly on his general attitude to the law which operates to monitor his social interactions. However, that attitude also needs to be considered in the context of the fact that over years of repeated and flagrant offending against the CPOR Act, and in circumstances where by reason of the nature and extent of those breaches he had the apparent opportunity to offend sexually against a number of children, there was no instance of sexual offending and no basis for suspecting sexual offending against any of the children or any "grooming" of them for the defendant's sexual gratification.
That being the case, there is nothing in the evidence adduced by the State to address in any meaningful way how the particular breaches of the defendant's reporting obligations inform or increase the risk of his committing a further serious sex offence unless kept under supervision under the CHRO Act, whatever else his conduct might reveal about his attitude to the law and law enforcement more generally.
Mr McGorey submitted that it is the conduct underlying the breach of his reporting obligations that is important (conduct which in his submission is able to be inferred from the facts which were before the sentencing court). He submitted that in the context of the historical index offences and the laying of the 1997 charges (irrespective of the fact that their weight diminishes by not having been prosecuted at trial), for the defendant to have deliberately pursued the company of children in his home through his relationship with their mother, including by providing toys and other activities to maintain his engagement with them (including excursions outside the home), and then deliberately failing to report that conduct to authorities, evidences a pattern of behaviour that significantly increases the risk of him committing another serious sex offence. Mr McGorey submitted that because the defendant is the person who created the environment of risk, the risk of further opportunistic offending should be viewed by the Court as unacceptable, thereby warranting the making of interim supervision orders in advance of further enquiries into the extent of risk in preparation for the final hearing of the Summons.
Mr McGorey also submitted that while there is an existing regime in the CPOR Act to address that risk, its efficacy in managing the risk of the defendant committing a serious sex offence involving children has been shown to be deficient, in particular because it relies on self-report and for five years the defendant enjoyed undetected and repeated unsupervised contact with children.
Ms McGee submitted that the State's rendition of the facts upon which the criminal breaches of the CPOR Act were based have a specious appeal to the evaluation of risk in the current context by promoting the suggestion that the defendant set up his house for the sole purpose of entertaining children, and that he maintained his social engagement with two families because of a deviant interest in the children, carrying with it the further insidious implication that he did so to use the children for his sexual gratification were the opportunity to present. In Ms McGee's submission, where the evidence is that the defendant has a range of productive social relationships and, to all accounts, functions in a wide and supportive social context, for his house to have surfboards, a swimming pool and a pool table does not carry with it the insidious imputations for which the State contends, since these facilities could be equally enjoyed by adults in his company, even if the children were invited or permitted to use them whilst visiting.
Ms McGee also emphasised that the facts do not in any way make clear the extent to which the defendant sought unsupervised contact with the children or that he did so without the knowledge and consent of their parents. As importantly, if not more so, is the fact that there is no evidence of any sexual misconduct towards any of the children at any time, such that the attribution by the State of sexual motives to the defendant's breaches of the CPOR Act is neither fair in itself nor fairly founded on the available evidence.
Ms McGee also submitted that the State's attempt to extract a pattern of offending from the 1997 charges through to the index offences in 2006 to the breaches of the CPOR Act in 2018 is similarly specious. She submitted the relationship with the 15 year old complainant in the index offences bears no relationship of any discernible kind with the children with whom he has had contact within their homes and in his home over an extended period of years. Ms McGee maintained her submission that I would not draw from the fact of the 1997 charges any support for the submission of the State that there is a pattern of behaviour established in the 30 years that have elapsed in order to lay the groundwork for the Court to find that the risk of future serious sex offending is unacceptable.

[14]

Determination

I accept it is my obligation to undertake the evaluation of risk at the preliminary stage of the hearing of the Summons on the assumption that material facts within the supporting documents are proved at the final hearing. In this case, however, that approach is heavily qualified by the findings I have made as to the weight to be given the 1997 charges in the assessment of risk and the need to discount the significance of the likely risk scenario nominated by the author of the risk assessment report. Included in the balance of the material which I am obliged to evaluate are the statistical assessments of risk which, again for reasons I have already indicated, are not persuasive indicators of an unacceptable level of risk of the defendant committing a serious sex offence. Importantly, the defendant has consistently been assessed as not exhibiting any criminogenic needs or risk factors which ought to be the subject of targeted treatment or intervention at this time, or that have been the subject of intensive supervision and monitoring to date, despite these options being available within the parole framework.
Furthermore, while the defendant's recent offending against the CPOR Act reflects an attitude of blatant disobedience of the law and his legal obligations as a reportable person under that Act, that conduct does not, in my view, elevate the risk of him committing a further serious sex offence to an unacceptable level. Neither does the underlying conduct have that effect.
I accept that there is a possibility that the defendant may commit another serious sex offence and, were that to happen, it would likely not be a random occurrence but opportunistic, in the sense of him seeking out and securing access to an adolescent girl or young woman in a social or interpersonal relationship. However, the possibility that he may conduct himself in that way does not, in the context of the application by the State for orders under the CHRO Act, translate to an unacceptable risk that he may do so such that the highly regulated scheme of supervision contemplated by an extended supervision order is the only appropriate means of addressing that risk.

At a glance

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Judgment (17 paragraphs)

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