State of New South Wales v Hill

The Statutory Criteria

1. The defendant is a "sex offender" within the meaning of ss.4 and 5I(2) of the Act, in that he is a person over the age of 18 years who has been convicted of a "serious sex offence". The relevant serious sex offence is an offence of Sexual Intercourse with a Person Aged 14 to 16 contrary to s.66C(3) of the Crimes Act 1900, which is an offence punishable by a maximum sentence of 10 years imprisonment. Such an offence is a "serious sexual offence" within the meaning of s.5 (a)(ii) of the Act.
2. At the time of filing and service of the summons initiating these proceedings, the defendant was serving a sentence of 4 years and 9 months imprisonment that was imposed upon him on 22 March 2012 for a number of offences contrary to s.66C(3) of the Crimes Act 1900, together with child pornography offences contrary to s.91H of the same Act.
3. The State's application having been filed when the respondent was still serving a custodial sentence for a "serious sexual offence", the respondent is a "supervised sex offender" for the purposes of s.5I(1) of the Act.
4. Thus the threshold statutory criteria for the State's application has been met.
5. The defendant opposed the State's application and, were an order to be made, he opposed the duration sought by the State for the order, and some of the conditions the State asked to attach to it.

The Nature of the Proceedings

1. The Crimes (High Risk Offenders) Act 2006 is intended to ensure the safety and protection of the community from offenders who pose a high risk of the commission of sexual offences or offences of violence (s.3(1)). The Act has a further object of encouraging the rehabilitation of such offenders (s.3(2)), although that object is subordinate to that of the protection of the community.
2. Section 5C(1) of the Act provides for an ESO to be made for the supervision of a "high risk sex offender". An individual will be a "high risk sex offender" if the Court concludes that the offender is a sex offender as defined by the Act and, additionally, if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if not kept under supervision: s.5B(2).
3. Satisfaction to a "high degree of probability" has been held to be a standard of proof higher than the civil standard but lower than the criminal standard: Attorney General for the State of NSW v Tillman [2007] NSWSC 605 at [27]; Attorney General for the State of NSW v Tillman [2007] NSWCA 119 at [5] and [18].
4. The Act provides no definition of what is meant by "an unacceptable risk" but, having regard to the object of the Act, the language used in s.5B(2), and the ordinary meaning of the words, the legislature must have intended the statutory test to be satisfied where the evidence establishes that there is a risk that the defendant will commit a serious sex offence which is sufficiently high that the making of an ESO is necessary to protect community and ensure its safety. Something of a balancing exercise must be undertaken by the Court in assessing the degree of risk posed by the defendant, balancing the needs of the community to be safe from the commission of serious sex offences, and the rights of the individual to his or her liberty.
5. In that regard I respectfully agree with the tentative view expressed by His Honour RA Hulme J in NSW v Thomas (Preliminary) [2011] NSWSC 118 of an unacceptable risk test, at [22] of the judgment.
6. The test tentatively expressed there is consistent with that applied in Western Australia in relation to comparable legislation, in Director of Public Prosecutions WA v Williams (2007) 176 A Crim R 110 (at [63]), and Director of Public Prosecutions WA v GTR (2008) 198 A Crim R 149, at [27].
7. In the former, Wheeler JA, with the agreement of Le Miere AJA, said, In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention: Director of Public Prosecutions WA v Williams (2007) 176 A Crim R 110 (at [63]).
8. See also NSW v Richardson (No. 2) [2011] NSWSC 276, State of NSW v Cruse [2013] NSWSC 1733, and State of NSW v Fisk [2013] NSWSC 364, where the approach taken in Western Australia was considered with approval.
9. In considering whether an individual is a high risk sex offender the Court must have regard to those matters referred to in s.9(3), together with any other matters it considers relevant.

The s.9(3) Considerations

1. As noted, the Court must have regard to the matters set out in s.9(3), and I have considered each of the matters referred to in ss.9(3)(a) to 9(3)(i) inclusive.
2. The matters referred to in s.9(3)(c) - s.9(3)(e), and s.9(3)(h) were considered in November 2014, when the Court made an interim order with respect to the defendant. Those matters are referred to in the earlier judgment and I do not propose to repeat them here, although I have again reviewed the relevant evidence for the purposes of determining the State's application for an ESO.
3. Section 9(3)(b) refers to the reports received from persons appointed pursuant to s.7(4). Pursuant to the orders of the Court of 28 November 2014 the defendant was examined by Dr. Andrew Ellis and Dr. Jeremy O'Dea, forensic psychiatrists.
4. Dr. Ellis was exhaustively briefed with information relating to the defendant, including details of his convictions in both Queensland and NSW; psychological reports referable to the defendant, Corrective Services file notes including a CUBIT treatment report, and psychiatric and medical reports concerning the defendant that had been prepared from time to time. The doctor interviewed the defendant on 12 January 2015.
5. Having reviewed the documentary material, taken a history from the defendant, and conducted an assessment of him, Dr. Ellis concluded that there was significant evidence for a neurocognitive disorder with impairments in short-term memory, attention and executive function. The defendant additionally displays significant mood symptoms suggestive of vulnerability to a mood disorder, with some antisocial personality traits.
6. Dr. Ellis was not able to conclusively diagnose paraphilia, considering that the defendant's offending against children may indicate impulsivity and poor judgment as opposed to primary sexual attraction to children. He considered that ongoing monitoring of the defendant's sexual interest would be important for risk management.
7. With the qualification that it is not possible to determine whether an individual will reoffend by the commission of a serious sexual offence, Dr. Ellis concluded that the defendant would fall into a group of persons with a risk for serious sexual offending that is statistically high in frequency with serious consequence, and greater than a theoretical average offender.
8. The doctor regarded the defendant's cognitive deficits as rendering him less amenable to psychological strategies to reduce the risk of reoffending. He referred to the defendant's impulsivity and poor planning skills as interacting with other risk factors, such as antisocial personality traits and cognitive impairment, to render protective strategies more difficult to implement, thus heightening concerns of sexual recidivism.
9. Dr. Ellis concluded that "the usual provisions of an ESO" were indicated to manage the risk posed by the defendant, with five years a reasonable period in which to establish stable functioning within the community and monitor the "chronic nature of the risk profile".
10. Dr. Jeremy O'Dea was similarly provided with detailed information concerning the defendant's medical and psychiatric history, offending history, response to rehabilitative programmes offered in the custodial setting, psychological assessments and the like. He saw the defendant twice, on 19 and 29 December 2014.
11. In his report of 21 January 2015 Dr. O'Dea reviewed the documentary material, noted the history he obtained from the defendant, and set out the results of his assessment of him. His opinion was broadly in conformity with that of Dr. Ellis. Indeed, Mr Hill's history of sex offending against underage post pubescent females may be better understood in the context of his overall personality, potential mood disorder and sex drive, rather than as part of a specific paraphilic disorder, with issues of disinhibition, impulsivity, and judgment related to his heterosexuality and overall sex drive, being central drivers for his sex offending behaviours to date.
12. He also concluded that the defendant posed a significant risk of committing serious sexual crimes. Although it is generally agreed that the best predictors of further sex offending are past sex offending and the presence of significant sexual deviance (such as Paraphilic Disorder), on the basis of at least Mr Hill's history of sex offending, and his personality and history of untreated Mood Disorder, it would seem very reasonable to assume that he has a significant risk of engaging in further serious sex offence, as defined in the New South Wales (High Risk Offenders) Act 2006, with this risk the appropriate focus of specific and structured risk management, in the community in the long term.
13. Dr. O'Dea's opinion is that, in the absence of appropriate treatment interventions, there is a "significantly high degree of probability" that the defendant will go on to commit a further serious sex offence in the community. He considered that supervision of at least five years was necessary to mitigate the risk the defendant poses. Mr Hill's risk of engaging in further sex offending behaviours in the community, and of committing a further serious sex offence in the community, is likely to be long term, and potentially of at least 5 years duration. Therefore, from a psychiatric risk management perspective, any appropriate risk management program implemented should be long term and at least of 5 years duration, and should be regularly monitored and reviewed every 6 to 12 months dependent on his progress.
14. There was also evidence before the Court as to the defendant's response to supervision pursuant to the interim supervision order to which he was subject from 1 December 2014: s.9(3)(f); s.9(3)(i).
15. There is no evidence as to compliance with reporting obligations under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004: s.9(3)(g).
16. The first of the s.9(3) considerations, that set out in s.9(3)(a), is the safety of the community. All of the evidence before the Court is relevant to this feature.
17. Having carefully considered the evidence, I am satisfied of the following propositions. 1. The defendant has a history of the commission of serious sexual offences against young girls, for which convictions were recorded in 2002 and 2010. Dr. O'Dea noted that the defendant did not display significant remorse or contrition for his offending behaviour, and spoke in a cavalier fashion about his situation. 2. The defendant has significant intellectual and cognitive deficits that impact upon his behaviour and his capacity to regulate his own conduct. 3. The defendant is assessed as emotionally immature, with a mental age (of 14 years) that is incommensurate with his chronological age. He has in the past offended against girls of an age similar to his functional age; there is a significant risk that the defendant will continue to socialise with girls of that age group if unsupervised. 4. By reference to actuarial risk assessment, the defendant has been assessed as presenting a high risk of sexual reoffending. 5. The defendant has failed to take advantage of treatment previously offered to him, having unsuccessfully undertaken the CUBIT programme. 6. The defendant has little or no insight into his situation. He does not believe he presents a risk of offending in the future as he has in the past, and appears hostile to a degree to treatment and intervention programmes. It is unlikely that he would voluntarily undertake therapy or other necessary treatment interventions in the community. 7. In the absence of appropriate treatment strategies the defendant's complex mix of cognitive and intellectual impairment, together with his particular personality profile, leave him at high risk of sexually reoffending.
18. In my view the defendant is a high risk sex offender within the meaning of the Act. The safety and protection of the community requires that an extended supervision order is made to regulate his conduct in the community.

The Duration of the Order and Conditions to be applied

1. At the hearing of this matter, the defendant contended that, if an order were to be made for his extended supervision, the order should not extend beyond 3 years. He also disputed the necessity for some of the conditions sought by the State.
2. As to duration, all of the evidence supports a conclusion that the safety and protection of the community is best ensured by a longer rather than a shorter order.
3. The maximum term of any order under the Act is 5 years: s10.
4. All expert opinion is that the defendant requires long term treatment. Dr. Ellis concluded that, From a psychiatric perspective a period of five years is considered reasonable in order to establish stable function in the community, monitor the chronic nature of the current risk profile and refine the appraisal of risk. His comorbid psychiatric conditions of personality and cognition impact upon likely treatment and supervision response. It is most likely that a period of 24 months will be required to secure stable independent accommodation, maintain a stable mental state and regular meaningful activity both occupational and social in the community, given the restrictions on persons subject to extended supervision orders. A further 36 months of regular review would be necessary to reevaluate risk in light of inconsistent history, poor engagement and adjustment to community settings. This period is estimated based on his current mental state, potential for paraphilia, personality dysfunction and current attitudes to supervision that will be unlikely to change in the short term. At this point a more informed appraisal of future risk in progress could be made.
5. Dr. O'Dea was of the view that "at least" 5 years was necessary to mitigate the risk posed by the defendant (see [105] of his report, extracted at [32] above).
6. In light of those opinions, and the seemingly intractable nature of the defendant's cognitive, intellectual and psychiatric impairment, I concluded that the safety of the community was best ensured by an ESO of 5 years, rather than of any lesser duration. I am conscious of the infringement upon the defendant's liberty that an ESO of such a period represents but, on all the evidence, such an infringement is necessary if the community is to be protected. The Act has a protective function, and the defendant's liberty, in the circumstances established by the evidence, is subordinate to the need to ensure the safety and protection of the community.
7. The State sought the imposition of conditions relating to Accommodation; Place and travel restrictions; Employment, Finance and Education; Non-associations; Access to the internet; Access to pornographic or classified material; Alcohol and drug use; Search and seizure; Personal details and appearance; Medical intervention and treatment; and Disclosure of information.
8. The respondent took no issue with the vast majority of the conditions sought, but raised a concern as to conditions which he submitted were not justified on the evidence, and could have the effect of leaving him socially isolated and lonely, social isolation from an age appropriate peer group being a clear risk.
9. The dispute as to the conditions to attach to the ESO was relatively narrowly focused.
10. Pursuant to s.11 of the Act the State sought an order (order 3b of the Summons) directing the defendant to comply with a number of conditions, a schedule of which was annexed to the Summons. The conditions sought to regulate the defendant's movements; accommodation; employment; finance and education; associations with others; access to the internet; access to pornographic or other classified material; possession and the use of drugs and alcohol; and matters connected with appearance and identity.
11. The focus of the dispute was as to the nature of persons who might attend any accommodation at which the defendant might reside from time to time; his capacity to execute legal and financial instruments; and the defendant's access to restricted material; and alcohol and drugs.
12. Attendance of others at the defendant's accommodation: The State sought a condition which prevented the defendant from permitting any person to stay overnight at his home without the prior approval of his supervising officer.
13. Although the effect of the condition is to require permission rather than to prevent overnight visitors, it was argued by the defendant that its effect would, in practice, be very restrictive and could hinder the formation or maintenance by the defendant of any legitimate relationships with others.
14. Since the real risk here is one of children spending extended periods of time with the defendant, and particularly overnight, the solution is to have a permissive requirement that related to children, but does not preclude the defendant having adult guests at his home.
15. The defendant's offending history, and the risk factor in his case, relates to children rather than adults. By requiring him to obtain his supervisor's approval for visits by children, the risk to the community can be managed without unreasonably impinging on the defendant's prospects of establishing healthy relationships with adults.
16. It is noted that one of the risk factors identified in the expert evidence is loneliness. It is not in the interests of the defendant, or of the community, for the defendant to be isolated from appropriate relationships with adults, rendering him lonely and alienated. Such a situation heightens the possibility of the defendant resorting to "trigger" scenarios such as the use of pornography, and the inappropriate use of the internet to interact with others.
17. It seemed proper in all the circumstances to impose the condition sought by the State, but amended so that it relates only to persons under the age of 18 who might visit the defendant at his home.
18. The execution of legal and financial instruments: This dispute related to two conditions which sought to impose approval requirements on the defendant, prior to the execution by him of any legal and financial instrument.
19. The State seeks the conditions because the defendant has in the past, in Queensland, held himself out as a business person to lure an underage girl to his home, subsequent to which the child was sexually exploited.
20. He has additionally of more recent times stated an intention of establishing a business, with the possibility that he will use any such business to ensnare young girls.
21. The link between the use by the defendant of a purported business to his residual offending renders the condition necessary in my view.
22. It is important to note that the disputed conditions do not prevent the defendant from entering a lease, establishing a business, and like activity. They simply require him to obtain the approval of his supervising officer from prior to doing so.
23. The condition imposes a requirement for the defendant that has the purpose and capacity to protect the community from the defendant using a business to facilitate offending conduct. The restriction upon the defendant's liberty is relatively slight, and justified in all of the circumstances.
24. Access to Restricted Material, Alcohol and Drugs: The disputed conditions represent an attempt to regulate the defendant's access to the internet, alcohol, and drugs other than that prescribed to the defendant by a medical practitioner.
25. Each poses a risk factor, according to the evidence adduced by the State.
26. Unregulated and excessive access to the internet by the defendant is regarded as a risk to the community because of the defendant's demonstrated history of using the internet to interact with an underage girl, leading ultimately to the sexual exploitation of the child. It is argued for the State that there is a risk of the defendant again using the internet and social networking sites to contact children for sexual purposes.
27. The defendant argues that the internet provides an essential service for the defendant, to be utilised for many legitimate purposes, such as seeking out rental accommodation. To restrict his access to it is to restrict his opportunity for legitimate engagement with persons and services.
28. In the modern age, at least some access to the internet is almost an essential requirement for daily living. It would be unfair to prevent the defendant from some reasonable access to the services and social interaction the internet offers.
29. Since the State's principal concern was of the defendant spending excessive amounts of time accessing the internet in an unregulated way, leading to an unhealthy isolation from other more productive activity, the appropriate response in my view was to provide some restriction on such access, without limiting it unjustly.
30. The orders made permit the defendant to use computers to access the internet, but require the defendant to comply with any direction from his supervisor as to the amount of time spent accessing the internet, and the places at which access may be had.
31. This should allow the defendant legitimate use of the internet, without such use becoming dangerously excessive, or by utilising computers that Departmental supervisors have no power to examine.
32. In this way, a reasonable balance may be struck between legitimate use, and conduct likely to precipitate sexual offending.
33. The argument concerning access to pornographic or other restricted material centred on whether such access could operate as a legitimate expression of sexuality or whether any use of such material would lead to an unacceptable risk of offending conduct. The State argued the latter proposition; the defendant the former.
34. As repugnant as many might find such material to be, the use and possession of pornography that falls within the bounds of legality is something available to members of the community. To deny the defendant access to legitimately available material in the absence of direct evidence of a link between such material and his history of sexual offending is not justified.
35. This is particularly so where the court's orders require the defendant to comply with any reasonable directions of his supervisors.
36. Should those that supervise the defendant in the future, who will have the capacity to closely monitor all aspects of his activities and conduct, become concerned that the defendant's use of restricted material is adverse to either risk management or rehabilitation, a direction in appropriate and reasonable terms can be given to him. The defendant is obliged to comply with any such reasonable condition. In my view any risk may be properly managed in this way without the need for a prohibitive condition.
37. The same can be said for any access to or use of illicit drugs by the defendant, although not of alcohol.
38. The criminal law provides a universally applicable prohibition of the possession or self-administration of prohibited drugs (see s. 10 and s. 12 of the Drugs Misuse and Trafficking Act 1986). Both offences are punishable upon conviction by a maximum penalty of 2 years imprisonment and/or a fine of $2200.
39. Although the State argued that it was preferable to include a specific prohibitive condition so that it is clear to the defendant that he may not possess or use prohibited drugs, I regard the criminal law as an adequate prohibition, to which the defendant is subject without anything further.
40. To impose a specific condition in this regard simply exposes the defendant to an additional and greater penalty for such an offence because of the additional liability attaching to any breach of the ESO. In my view, this unfairly jeopardises him and his liberty.
41. Accordingly I declined to impose a condition prohibiting the defendant from the possession or use of drugs already prohibited to him by operation of the criminal law.
42. The situation in relation to possession and use of alcohol is somewhat different. Although there is no evidence that alcohol played any role in the commission by the defendant of his past sexual crimes, there is evidence that access to alcohol is a risk factor in the defendant's case.
43. Both Dr. Ellis and Dr. O'Dea regarded alcohol as problematic for the defendant. Dr. Ellis, who was rather more guarded than Dr. O'Dea, opined that alcohol use was not recommended for the defendant. Dr. O'Dea went further, suggesting that the defendant should remain abstinent from alcohol use in the long term, both to promote his treatment and rehabilitation, and as a means of regulating the risk of re-offending.
44. On balance, I am satisfied that the evidence establishes that alcohol use by the defendant is likely to compromise both treatment for his mood disorder and psychiatric condition more generally, and to lessen the defendant's capacity to regulate his conduct. That is, his use of alcohol would tend to defeat both the objects of the Act, being the protection of the community, and the rehabilitation of the defendant.
45. On that basis, and despite the defendant's opposition to it, I imposed the condition on the defendant in the terms sought by the State.
46. It is acknowledged that the ESO sought by the State represents a significant infringement on the liberty of the defendant and upon his right to regulate his own affairs. However, the purpose of the legislation is clear, as is the priority it gives to the safety and protection of the community over the liberty and rights of the individual.
47. Mr. Hill poses an ongoing unacceptable risk of sexually offending. The orders made by the Court are intended to manage that risk.

The Orders

1. The orders made by the Court on 5 February 2015 are in accordance with order 3 of the Summons filed on 22 October 2014 as follows: Pursuant to s. 5C and s. 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 ("the Act"), the defendant be subject to a high risk sex offender extended supervision order ("extended supervision order") for a period of 5 years from the date of the order. Pursuant to s. 11 of the Act, direct the defendant, for the period of the extended supervision order, to comply with the conditions in the Schedule to the Order. Court further orders that: The plaintiff is permitted to provide the reports of Dr Andrew Ellis and Dr Jeremy O'Dea in these proceedings to: any medical practitioner or psychologist involved in treating and/or counselling the defendant; Community Corrections officers involved in the defendant's supervision. Orders were entered forthwith. Annexure A (358 KB, pdf)

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