State of New South Wales v Hill

Judgment 1This is yet another application relating to the Extended Supervision Order for Allan Troy Hill. Mr Hill's offences relate to adult women. The Court, as presently constituted, has issued a number of judgments in this matter. By notice of motion dated 4 September 2012, the State of New South Wales (hereinafter, "the State") is seeking an order varying the conditions of the Extended Supervision Order (hereinafter, "ESO") made by the Court on 26 June 2009 and varied on 21 December 2010. The order and variation are made pursuant to the terms of the Crimes (Serious Sex Offenders) Act 2006 (hereinafter, "the Act"). 2The issue between the parties is the question of electronic monitoring and the provision of a schedule of movements. 3On 21 December 2010, the Court varied the terms of the ESO and issued reasons for that variation (State of New South Wales v Hill (No 4) [2010] NSWSC 1504) the effect of which variation related to reasonable directions of the Community Compliance & Monitoring Group (hereinafter, "CCMG") that may be inconsistent with an express term of the conditions otherwise imposed or which may impose a condition that was initially sought by the State and refused by the Court. The effect of the order was also to extend the time during which electronic monitoring of the curfew would occur and the time during which a schedule of movements was to be provided by Mr Hill to the State. 4Since that time Mr Hill has spent some significant period in gaol and, in essence, the State seeks to extend the operation of those two aspects to a time that accounts for the period during which Mr Hill was incarcerated. These reasons for judgment need to be read in conjunction with State of New South Wales v Hill (No 1) [2009] NSWSC 1137 and State of New South Wales v Hill (No 3) [2009] NSWSC 1139, as well as State of New South Wales v Hill (No 4), supra. Each of those judgments will be referred to, where necessary, as No 1 Judgment, No 3 Judgment and No 4 Judgment respectively. 5The statements in No 4 Judgment as to the jurisdiction of the Court to make the orders continue to apply. The ESO was initially imposed on the application of the State and the Court, as presently constituted, determined that the State had satisfied the Court of the jurisdictional preconditions to the grant of an order and had satisfied the Court of the discretionary aspects for the making of such an order. 6In the No 3 Judgment I traced the history of certain breaches by Mr Hill of the ESO order that had been in place. It is necessary to reiterate some of those matters, in order to give context to that which follows. In the No 4 judgment, I said: "[7] During the proceedings for the making of the orders and giving rise to the third judgment, psychiatric evidence was adduced. Mr Hill did not oppose the making of the orders, but opposed certain conditions sought by the State. All of the conditions sought by the State were not imposed. Further, the orders were not imposed for the length of time for which the State contended, and the conditions that were imposed were, to some significant extent, different from those sought by the State. However, the Court made clear that, if circumstances warranted it, each of Mr Hill or the State could vary the orders. In particular the order imposing conditions for GPS satellite monitoring were made applicable for only 12 months from the day that the orders were made. [8] Mr Hill has breached the extended supervision orders on a number of occasions. First, he objected as a matter of principle to the wearing of GPS monitoring. He refused to wear the GPS unit and he was charged with a breach. I will not recount all of the details of that breach, which are summarised in the chronology presented and relied upon by Mr Hill in these proceedings. It is sufficient to say that the GPS unit was either removed from power and/or, if it be different, allowed to run down in terms of its battery. For that Mr Hill was sentenced, at Downing Centre Local Court, to 18 months' imprisonment. [9] He was also sentenced on the same day for failing to comply with a reasonable direction, namely, the signing of a bail undertaking. [10] On 27 April 2010 Solomon DCJ upheld the conviction for failing to comply with the ESO, being the condition relating to the GPS monitoring system, but allowed an appeal relating to the failure to sign the bail undertaking. Solomon DCJ quashed the sentences and imposed a sentence of a total of 12 months with a non-parole period commencing 27 June 2009 and expiring 25 March 2010. Mr Hill was released forthwith. [11] The breach for which he was sentenced was a breach, as already stated, essentially relating to an in-principle protest against the wearing of the GPS monitoring system. [12] As I understand it, the circumstances of the breach are not directly relevant. The circumstances were that he attended a police station, told them he refused to wear the GPS monitoring system and requested that he be arrested. [13] On 28 April 2010, a case note before the Court reports that Mr Hill had been drug free for five to six years. There is no suggestion that Mr Hill has partaken of alcohol in the whole of the time since the making of the interim supervision orders on or about 26 March 2009, however, other offences have been committed. [14] The last set of offences involved an act of threatened violence. Mr Hill, who is residing at a community offender support programme, COSP, is subject to a curfew at that residence. That curfew is more restrictive than the curfew imposed by the Court. Further, breach of the COSP curfew is, it seems, a breach of the direction issued under condition 3 of the orders which allows the departmental supervising officer to give reasonable directions with which Mr Hill is required to comply. A direction was given, which is Exhibit 4 in the proceedings, inter alia that Mr Hill abide by the rules of the COSP at which he was residing, including a curfew time between 6.00pm and 6.00am. [15] The offence in question, that is the one on 15 September 2010, occurred when it is alleged Mr Hill notified Corrective Services of his intention to attend his uncle's funeral in Forbes. A Corrective Services officer attended the COSP for, apparently, independent and irrelevant reasons, and while there indicated to Mr Hill that permission to attend the funeral had not yet been granted. Events occurred, the report of which events was the basis for charges being laid against Mr Hill, which charges occasioned his further imprisonment." 7I draw particular attention to the statement in the No 4 Judgment at [13] as to the proposition, noted in the case notes, in April 2010, that Mr Hill had been alcohol and drug free for some significant period. The most concerning aspect of this variation and the recent history of Mr Hill is that the more recent allegations of breach involve the consumption of illicit and disinhibiting drugs. 8In the Affidavit of Jonny George, sworn 3 September 2012, the following events are recounted: "22. Later that same day, I received a phone call from Mr Hill. I was driving and had to pull over to take the call. We had a conversation that included words to the following effect: Mr Hill: 'Jonny, I'm worried about the urine they took this morning.' Me: 'What are you worried about?' Mr Hill: 'Jonny, I've been using bupe and ice.' 'I took it because I was helping my friend. She's a junkie and she's struggling with getting off drugs.' Me: 'Who's your friend?' Mr Hill: 'I've known her for quite some time and might be thinking of the relationship becoming more serious.' ... 29. On 21 September 2011 I was contacted by CCMG officer Simon Gray who reported to me that he was concerned, after having spoken with Mr Hill, that Mr Hill may be under the influence of illegal drugs. Together with Mr Gray and Mr Abedine, I attended on Mr Hill's residence. On attending and speaking with Mr Hill at the premises, I formed the opinion that he was clearly affected by illegal drugs. He appeared to have difficulty standing up, and used the door to balance himself. His speech was extremely slow and deliberate and he seemed generally disoriented. At one point early in the attendance, Mr Hill walked a few steps before slumping awkwardly onto a couch. Mr Hill repeatedly answered 'why?' when questioned about matters including how he was coping in the community. He similarly answered 'why' when asked if he had been consuming drugs or alcohol. During the attendance, Mr Hill refused to undertake a breath test and provide a urine sample. Mr Hill's friend, Ms Kathy Visser, was also in the residence. Having regard to her appearance, movements and speech I formed the view that Ms Visser was also under the influence of illegal drugs. ... 35. Departmental case notes of 22 April 2012 and 28 April 2012 record Mr Hill as having reported using cannabis, with the latter case note making reference to Mr Hill having had a 'couple of joints whilst out socialising with friends'. Such reports raise concerns relating to the nature of Mr Hill's social influences and potential support structures and whether they may encourage or condone illegal drug use (a concern that similarly arises from Mr Hill's contact with Ms Visser). Copies of the case notes of 22 and 28 April 2012 are at Tab 10 of Exhibit JG-1." 9The second last (25 November 2011) report from Corrective Services Community Compliance Group before the Court in these proceedings remarks that Mr Hill's compliance with the imposed ESO has been problematic and his engagement with the CCMG has been unsatisfactory and challenging. 10I have remarked on earlier occasions that to some extent the behaviour described as "problematic" or "unsatisfactory and challenging" has been brought about by an in-principle disagreement to the strictures imposed by electronic compliance and the resistance to authority that Mr Hill displays. This judgment is not an appropriate forum in which to discuss the treatment of Indigenous Australians by the authorities over many years, but it is necessary to recognise that history, and the history of exclusion by "Anglo-Irish" society, in assessing the reaction of Mr Hill (and many others) to the imposition of restrictions by authorities. Reference to the Equality Before the Law Benchbook published by the Judicial Commission of New South Wales is instructive in that regard, particularly the statistics relating to incarceration and violence. Most members of the Australian community are only now learning the fate of Australia's Indigenous population in the past and the level of exclusion and discrimination that still occurs. It is not surprising, in those circumstances, that there is a resistance by Aborigines and Torres Strait Islanders to "authority". I consider that aspect of Mr Hill's behaviour must be assessed bearing those issues in mind. 11Nevertheless, the foregoing discount does not affect the issues of real risk in terms of Mr Hill's re-offending. In the last report (12 August 2012) to the Attorney General from the CCMG reference is made to the reporting period from 25 November 2011 to 12 August 2012 and the report notes that Mr Hill has been in custody for two separate periods and was in custody at the time of the writing of the report. Each of those periods of custody were due to charges laid in relation to the use of illicit substances which use was a breach of Mr Hill's ESO. 12It is necessary to return to the No 3 Judgment of 28 October 2009. In that judgment I discuss the risk factors relating to Mr Hill. I said: "[19] Notwithstanding that Dr Samuels refers to whether Mr Hill 'could' re-offend, the import of his opinion, and of the other evidence, satisfies the court to a high degree of probability that Mr Hill is likely to re-offend. Dr Roberts opined that Mr Hill 'represents a high risk of offending both violently and sexually.' Even Dr Westmore, qualified by Mr Hill, does not recommend the absence of a supervision order. The major issues related to the duration of the Extended Supervision Order and some of the conditions, particularly the requirement to wear a satellite navigation amulet and the reporting conditions associated therewith. Even if the term 'likely' meant 'more probable than not', the Court would be satisfied of the requirement. [20] In relation to the matters that are truly in issue, the most relevant evidence, in the exercise of the discretion of the Court, is the evidence of Mr Rowan, the evidence of Mr Hill and the evidence of Dr Westmore. I shall deal briefly with that evidence. Before doing so, I note that Dr Roberts, uncontrovertedly, opined that 'Mr Hill's acts of sexual violence are driven not only by a desire for sexual gratification, but by a desire to dominate, control and instil fear as a means of demonstrating masculinity. Whilst antilibidinal medication is expected to reduce libido and potentially mitigate aspects of his [Mr Hill's] offending behaviour related to his sex drive, it would not be expected that other aspects, which drive his violent offending, would be significantly altered.' (Exhibits C, Report 4 May 2009, page 40.) [21] As noted during the course of the proceedings, Mr Hill was an impressive person, who gave the impression that he genuinely desired to cease (or continue the cessation of) his abuse of alcohol and was remorseful for his past abuse of women. However, as also noted, the Court was observing Mr Hill, when he was sober. Moreover, his description of his past offending glossed over a number of the aspects of the offences, to the extent of a misrepresentation of them. Mr Hill was an honest witness. Indeed, he gave answers honestly and not necessarily answers that were in his interests. Mr Hill was particularly opposed to the electronic monitoring equipment that pinpointed his whereabouts at any particular time. He described it as 'like an invisible prison bar' by which he would 'feel trapped', if he were required to wear it. [22] His attitude to alcohol was somewhat ambivalent. He acknowledged that alcohol presented a significant problem for him, but, somewhat candidly, remarked that part of the programs in which he has been enrolled seemed to encourage the view that offenders could blame the alcohol. More importantly, he informed Dr Roberts, at a session organised to assess Mr Hill for the purposes of these proceedings, that he [Mr Hill] 'could safely use both alcohol and cannabis' (Transcript, page 101). The unanimous view of the expert witnesses, who have given evidence on this subject, is that Mr Hill could never safely use alcohol, and any use of alcohol by him would render him an immediate risk of relevant re-offending." 13At [33] of the No 3 Judgment, I said: "The Court is satisfied that, if Mr Hill were to remain sober and/or abstemious, he would not re-offend. As Dr Westmore has attested, the difficulty (and the risk) is that there is a likelihood that he will not remain abstemious, and, in order to protect the community, an Extended Supervision Order is required that would provide the structure to ensure the continuation of his current attitude and cement the alterations to his lifestyle. I also accept Dr Westmore's opinion that a finite period during which Mr Hill is required to answer to the Department (and be monitored in that compliance) would assist. If, as even the Department would not expect, Mr Hill were not able to maintain his current attitude to alcohol, it would be open to the Department to apply for a variation of the order beyond its initial short-term duration." 14The evidence before the Court in these proceedings confirms the approach taken by the Court on previous occasions. Patrick Sheehan, Forensic Psychologist, stated, in his Affidavit of 23 August 2012: at [15]: "In my risk assessment report of 23 February 2009 I assessed Mr Hill as presenting a high risk of sexually re-offending relative to other adult male sexual offenders. In my view, there is no evidence to warrant any reduction in Mr Hill's estimated risk at this time. Particularly having regard to Mr Hill's unsatisfactory progress under supervision since June 2009 as described below, I regard Mr Hill's overall assessment of 'high risk' of sexual recidivism as continuing to be valid at the present time." 15Mr Sheehan refers in particular to a number of themes in relation to Mr Hill's response. They include: ongoing drug use; hostility and non-compliance towards supervision; therapeutic disengagement; affective instability; problematic interpersonal relationships; lack of forward momentum or improved adjustment; and an ongoing tendency to externalise the consequences of his own behaviour. I consider the ongoing drug use, the therapeutic disengagement, consequential affective instability and his problematic interpersonal relationships as the most worrying. I recognise, however, that a forward momentum or improved adjustment may affect the other aspects. It is regrettable that consistent and stable employment has not been found. 16Further I accept Mr Sheehan's statement at [19] as to the manifestation of acute risk in a "scenario combining some or all of the following risk factors: Mr Hill being out at night ignoring his curfew; consuming alcohol and/or other drug; having conflict with women; feeling emotionally volatile (intense fluctuating emotions), angry and entitled; feeling that others are responsible for placing him in difficult situations; ignoring the influence of prosocial sources (therapist, supervisors, family, friends); feeling no real connection or stake in his community life, not anchored to a positive plan for living, not concerned about how a prison sentence could jeopardise such a plan; wanting to alleviate feelings of distress or powerlessness using the distraction of sex and thoughts of dominating a woman." 17As earlier stated, this is not a time for a discussion of the general issues associated with discrimination and exclusion. Nevertheless, studies by Professor Baumeister (now a Professor of Psychology at Florida State University) deal with the effect of exclusion and disempowerment on the behaviour of persons suffering from it, much of which accords with the issues just discussed (see, inter alia, R F Baumeister and M R Leary, "The need to belong: desire for interpersonal attachments as a fundamental human motivation" (1995) 117 Psychological Bulletin 497; R F Baumeister and M Muraven, "Identity as adaptation to social, cultural, and historical context" (1996) 19 Journal of Adolescence 405; R F Baumeister, G A Dori and S Hastings, "Belongingness and temporal bracketing in personal accounts of changes in self-esteem" (1998) 32 Journal of Research in Personality 222; J M Twenge, R F Baumeister, D M Tice and T S Stucke, "If you can't join them, beat them: effects of social exclusion on aggressive behaviour" (2001) 81 Journal of Personality and Social Psychology 1058; R F Baumeister, J M Twenge and N Ciarocco, "The inner world of rejection: effects of social exclusion on cognition, emotion, and self-regulation" in J Forgas and K Williams (eds), The Social Self: Cognitive, Interpersonal, and Intergroup Perspectives (2002) Psychology Press at 161; A W Crescioni and R F Baumeister, "Alone and aggressive: social exclusion impairs self-control and empathy and increases hostile cognition and aggression" in M Harris (ed), Bullying, Rejection, and Peer Victimization: A Social Cognitive Neuroscience Perspective (2009) Springer). 18Mr Sheehan made these comments on the application to vary the ESO. He said, in his Affidavit of 23 August 2012: "20. From a psychological risk assessment perspective, and as further described below, I am supportive of the State's current application to vary the ESO to re-introduce condition no. 4 (second limb only, ie Radio Frequency electronic monitoring) and condition no. 5 (schedule of movements). ... 22. I regard electronic monitoring by RF and the reintroduction of a requirement for a schedule of movements as being appropriate measures from a risk management perspective, particularly having regard to Mr Hill's progress under supervision and his current incarceration. 23. In this respect, the documentary material (including recent convictions) indicates that Mr Hill has continued to use illicit drugs while subject to supervision. Illicit drug use is a dynamic risk factor applicable to Mr Hill, and which heightens his risk of sexual recidivism. 24. The illicit drug use also indicates that Mr Hill is not living a stable life. The absence of stability in Mr Hill's life is itself a factor that points to increased risk of sexual recidivism. 25. In my view, the reintroduction of the condition relating to the provision of schedule of movements would assist in providing greater structure for Mr Hill. This will be important for him including upon his forthcoming release from gaol. 26. In this respect, a requirement to provide a schedule of movements would, in my view, be of benefit for Mr Hill by requiring him to plan ahead for a nominated period of time. This would help to ensure that Mr Hill was choosing activities in which to participate that are consistent with stability and are less likely to have negative consequences for him. The practice engages the offender to consider what they would like to achieve each week and to plan it. It creates skills in time management and brings clarity as to whether the individual is planning a balance of work, leisure, social time, rest etc. Over time, this may contribute to equip Mr Hill with the capacity to make improved choices and to act in personally meaningful ways. 27. From a psychological perspective, the requirement to provide a schedule of movements is, in effect, a form of rehabilitation that would be directed at enhancing positive capabilities of Mr Hill over time rather than simply suppressing dysfunctional conduct by Mr Hill. In other words, community protection would be assisted not simply by attempting to suppress negative conduct but also by increasing Mr Hill's strengths and capabilities so that he becomes better equipped to live a pro-social and personally meaningful life. In my view, the provision for a schedule of movements can function in this dual manner. It can create new habits that may extend beyond the expiry of the ESO to Mr Hill's long-term benefit (and thus also for the benefit of the community). I recognise that Mr Hill has struggled to adjust to this requirement while in the community under supervision. In my view, he finds the obligation aversive largely because he has a long history of living spontaneously and without inhibition from internal or external sources. However, in the past this impulsiveness has been problematic for Mr Hill in that it has facilitated him in engaging in anti-social conduct without first considering the consequences of his actions and, similarly, has predisposed him against pursuing a pro-social lifestyle that would ultimately [be] to Mr Hill's advantage. In my view, the potential benefits to Mr Hill (and the community), are such that it would be worth persevering with scheduling until it becomes a more instinctive consideration in Mr Hill's behavioural repertoire. ... 29. Consistent with the previous condition imposed by the Court, it may be expected that the provision of a schedule of movements would be subject to the ability of Mr Hill to notify of changes to the schedule as may be required. 30. Previously in these proceedings Dr Bruce Westmore had pointed to the need for structure in Mr Hill's life and which would benefit Mr Hill." 19As already noted, a significant risk factor that I had mentioned on past occasions was Mr Hill's use of alcohol and illegal drugs. In the No 4 Judgment I reiterated that which I had said in the No 3 Judgment. At [5] of the No 4 Judgment I said: "[5] ... As was made clear in the third judgment at [7], abuse of alcohol was a significant factor in each of Mr Hill's sexual offences, and I quote: '[7] Abuse of alcohol was a significant factor in each of the sexual offences with which Mr Hill has been charged over the years. It is generally accepted that, in the absence of alcohol or alcohol abuse, Mr Hill does not pose a significant threat of the kind with which the Act seeks to deal. Nevertheless, Mr Hill does pose a significant and dangerous threat, if and when Mr Hill imbibes alcohol. Fundamentally, the issue in these proceedings is whether there is, overall, a high degree of probability that Mr Hill is likely to commit a further serious sex offence, if he were not kept under supervision: see s 9(1)(a) of the Act. Necessarily, that depends upon the risk, if any, that Mr Hill will drink alcohol.' [6] I add that the reference should also have been to the participation in illegal drugs." 20I am still of that view. As is obvious from the proceedings over some significant time and the judgments I have issued, Mr Hill is an impressive person who, in my inexpert opinion, is intelligent with significant practical intelligence. He does not pose a threat, or a significant threat, when not affected by alcohol or drugs. Nevertheless the case notes tendered in these proceedings show that Mr Hill has been detected using cannabis, methyl amphetamine, oxazepam and temazepam. I also note the statements by Mr Hill that he believed his urine sample would show up "bupe", a reference to buprenorphine. Some or all of these drugs are disinhibitors. Such drugs, in terms of the risks to which the Court has already referred, are as problematic, if not more problematic, than alcohol. 21It is to Mr Hill's credit that he does not seem to have used alcohol. Nevertheless, it seems he takes a different view in terms of illicit drugs. 22I turn then to the nature of the orders and the resolution of them. As earlier stated, there are two aspects to this application. The first is electronic monitoring to enforce the curfew and the second is the provision by Mr Hill of a schedule of movements. 23As to the schedule of movements I agree with the opinion, already recited, of Mr Sheehan that the provision of a schedule of movements would assist in providing greater structure for Mr Hill. In my view there is a continuing need for a curfew and a continuing need for the provision of a schedule subject to the conditions that I have already imposed as to the alteration of that schedule. This will provide, as Mr Sheehan puts it, greater structure, and it will also enable the CCMG to know where Mr Hill ought to be. It also allows for a continuing capacity by the CCMG to test for the use of drugs. I would grant the orders sought for the alteration of condition 5 of the current ESO. 24As is obvious from the foregoing, I take the view that Mr Hill has to understand that the disinhibiting and mind-altering effect of illicit drugs make them as dangerous, or more dangerous, for Mr Hill than alcohol. This is not "wowserism", the experience in this Court is that so-called "soft" drugs have enormously deleterious effects on the consumer over the long term. 25Whatever be the long-term effects, the disinhibiting aspects make the use of illicit drugs a significant risk factor for Mr Hill. As a consequence, Mr Hill's motion is dismissed. It is not simply that the Court could not be seen to be countenancing their use; it is, for Mr Hill, extremely problematic. 26I next turn to the question of the second limb of order 4 and its extension. The State seeks to extend the second limb of order 4 for a further period of 12 months. Order 4, or the second limb thereof, deals with electronic monitoring for the period of the curfew that monitors only compliance with the curfew. The condition does not apply while Mr Hill resides at a COSP Centre. Further, any other accommodation would have to be approved by the CCMG pursuant to the terms of condition 16 of the ESO. 27The Court must balance the desire to ensure structure in Mr Hill's life and the protection of the community associated with that structure against the imposition of conditions restricting a person's liberty. 28In the particular and peculiar circumstances associated with Mr Hill, the question arises as to what benefit is obtained by the imposition of a condition as to electronic monitoring during the curfew that is otherwise imposed. It certainly gives greater certainty that Mr Hill is complying with his curfew. But the risk, in Mr Hill's case, is the consumption of alcohol and illicit drugs. 29As earlier stated and recited in these proceedings absent that consumption Mr Hill does not pose a significant risk. However, Mr Hill poses a significant risk overall because of the risk that alcohol and drugs will be consumed. 30The imposition of a condition relating to electronic monitoring of compliance with the curfew, while ensuring such compliance or, more accurately, notifying the CCMG of a breach of that compliance, does not guarantee or affect the capacity of the CCMG to ensure Mr Hill does not consume problematic substances. At the same time, the CCMG can check on Mr Hill's whereabouts by telephone to the approved accommodation or by random visit. Drug and alcohol tests will continue to be administered and Mr Hill continues to be required to comply with any request for urine sample. 31In all of the circumstances, I am not persuaded that an extension of the electronic monitoring of curfew compliance is warranted and I refuse that aspect of the order and make the following orders: (1)Pursuant to s 13 of the Crimes (Serious Sex Offenders) Act 2006, an order varying the extended supervision order made by the Court on 26 June 2009, and varied on 21 December 2010, by re-imposing condition No 5 for a further period of 12 months; (2)Pursuant to s 11 of the Crimes (Serious Sex Offenders) Act 2006, an order directing the defendant to comply with the conditions in the Schedule to the Order made on 26 June 2009 and varied on 21 December 2010, as amended in paragraph (1) above; (3)The defendant's motion filed 11 October 2012 is dismissed; (4)I direct the State of New South Wales to file an Amended Extended Supervision Order reflecting the foregoing.