HIS HONOUR: By amended summons filed on 17 March 2016, the State seeks the following relief:
1. An order:
1. pursuant to s 5C and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to a high risk sex offender extended supervision order ("the extended supervision order") for a period of five years from the date of the order; and
2. pursuant to s 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this Summons.
The prayers for relief in the amended summons are based upon the following supporting documentation:
1. Affidavits of Azam Bulbulia affirmed 1 March, 2 March, 14 March, 18 March, 16 May and 8 June 2016.
2. Affidavit of Clare McNaughton affirmed 11 March 2016.
3. Report of Dr Stephen Allnutt dated 29 April 2016.
4. Report of Dr Kerri Eagle dated 11 May 2016.
The orders are opposed.
For the reasons that follow, I consider that the application for an extended supervision order should be dismissed.
[2]
Background
On 21 March 2016, Rothman J conducted the preliminary hearing required under s 7(3) of the Act and made an order under s 7(4) appointing two experts separately to examine Mr Hill and furnish reports of their examinations to the Court. Rothman J also made an interim supervision order under s 10A for a period of 28 days to commence on 16 April 2016. On 13 May 2016, Adamson J made an order, pursuant to s 10C (2), renewing the ISO, so as to operate further until 10 June 2016.
Prior to the ISO made by Rothman J, Mr Hill had been subject to an extended supervision order for a period of three years, imposed by his Honour on 26 June 2009. Mr Hill has been convicted on multiple occasions of having failed to comply with certain conditions of his ESO and, as a result, has spent significant periods of time in custody. Consequently, by operation of s 10(1A) of the Act, the date of expiry of the ESO has been extended by reference to such periods of time in custody. The ESO expired on 15 April 2016.
Mr Hill is a 50 year old Aboriginal male who has previously been convicted of two sets of sexual offences committed in 1993 and 1998. In each case the victim was an adult female and the offences involved the use of a knife to threaten harm to the victim. In each case, Mr Hill was heavily intoxicated and/or under the influence of illicit drugs at the time of the offence.
With respect to the 1993 offences, Mr Hill was convicted in 1994 of one count of aggravated sexual assault and one count of attempt to have sexual intercourse without consent in circumstances of aggravation. He was sentenced to imprisonment for a total of 7 years with a 4 year non-parole period.
With respect to the 1998 offences, Mr Hill was sentenced to a total term of 10 years imprisonment with a non-parole period of 7 years on five counts of aggravated sexual assault, and a further count of aggravated break and enter and commit a felony. In addition to the use of a knife, a further aggravating feature of the 1998 offences was that Mr Hill committed them while on parole for the sexual offences committed in 1993.
Mr Hill has continued to deny responsibility for the 1998 offences.
Mr Hill's sentence for the 1998 offences expired on 27 March 2009. Before that occurred, the State commenced proceedings in this court seeking an order that he be subject to an ESO under the Act.
That matter was heard in June 2009. On 26 June 2009 Rothman J ordered that Mr Hill be subject to an ESO for a period of three years: see State of New South Wales v Hill (No. 3) [2009] NSWSC 1139. As already noted, Mr Hill has been convicted of failures to comply with the conditions of that ESO on nine separate occasions and has consequently spent significant periods of time in custody.
[3]
Threshold requirements
The Act sets out certain threshold criteria for the making of an application for an ESO under the Act: see s 5I. In the present case:
1. Mr Hill is a "sex offender" within the meaning of s 5B(2) of the Act by reason of having committed sexual offences in 1993 and 1998 that fall within the definition of "serious sex offence" within s 5(1)(a) of the Act, and separately as an "offence of a sexual nature" within the meaning of s 5(2) of the Act;
2. Mr Hill is a "supervised sex offender", within the meaning of s 5I(1) and (2) of the Act, because he is a person who, when the summons was filed, was a person under supervision pursuant to an existing ESO: s 5I(2)(b)); and
3. The application was brought within the last six months of Mr Hill's current custody or supervision: s 6(2). Mr Hill's ESO expired on 15 April 2016 and the summons was filed on 1 March 2016.
[4]
Primary object of the Act
The objects of the Act are stated in s 3 in the following terms:
"3(1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.
(2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation."
[5]
The test for making an ESO - s 5B(2)
Pursuant to s 5C(1), this Court may make an order for the supervision of an offender if the offender is a "high risk sex offender". Subsection 5B(2) provides that an offender is a "high risk sex offender" if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.
Section 9 applies to an application for an ESO. Under s 9(1), a Court that has received an application for an ESO can either make an ESO or dismiss the application. Subsection 9(3) sets out a list of matters to which the Court must have regard in determining whether or not to make an ESO in addition to any other matter the Court considers relevant.
[6]
"Satisfied to a high degree of probability" (s 5B(2))
The phrase "satisfied to a high degree of probability" constitutes the statutory standard of proof enlivening the Court's jurisdiction to grant an ESO. It is higher than the civil standard but lower than the criminal standard. Prior to the commencement of the Crimes (Serious Sex Offenders) Amendment Act 2013, the phrase "satisfied to a high degree of probability" appeared in s 9(2), as part of the test to be met for the grant of an ESO under s 9(1)(a).
In State of New South Wales v Fisk [2013] NSWSC 364, Beech-Jones J observed at [22] that the structure of the Act in its current form (which now accommodates the making of orders against high risk violent offenders as well as high risk sex offenders) appears to require:
1. that the Court first undertake a determination of whether a person falls within the definition of a "high risk sex offender" (under s 5B(2)) having regard to the relevant standard prior to considering whether or not to make an ESO; and
2. that it is only once the Court has made a determination that a person is a high risk sex offender that the criteria in s 9(3) are to be addressed.
His Honour found that aspect of the amended legislation to be curious insofar as "it is very hard to imagine a case in which a person could be found to satisfy the definition of being a 'high risk sex offender' but that a consideration of the criteria in s 9(3) would nevertheless result in the Court dismissing the application".
It has been held that the authorities with respect to the standard of proof as it formerly appeared in s 9(2) of the Act are "equally applicable" to the construction of s 5B(2).
[7]
"Unacceptable risk of committing a serious sex offence" (s 5B(2))
The phrase "unacceptable risk of committing a serious sex offence" was introduced into s 9(2) of the Act by the Crimes (Serious Sex Offenders) Amendment Act 2010, which commenced operation on 7 December 2010. It replaced the concept of "likely to commit a further serious sex offence".
When the Crimes (Serious Sex Offenders) Amendment Act 2013 was introduced on 19 March 2013 to establish a scheme for the extended supervision or continued detention of violent offenders, the phrase was relocated to s 5B(2) of the Act.
Subsection 5B(3) indicates, as did the former s 9(2A), that the Supreme Court is not required to determine that the risk of a person committing a serious sex offence is "more likely than not" in order to determine that the person poses an unacceptable risk if he or she is not kept under supervision. The phrase "unacceptable risk" is not defined by the Act. However, as s 5B(3) makes clear, the new test was not intended to elevate the threshold test to be satisfied.
In Lynn v State of New South Wales [2016] NSWCA 57, the Court of Appeal considered the meaning of the expression "unacceptable risk" within the context of the definition of a "high risk violent offender" in s 5E of the Act. Beazley P, with whom Gleeson JA agreed, held at [49]-[58] that a determination as to whether something is unacceptable is an evaluative task, and the words "unacceptable risk" are to be given their everyday meaning, in the context in which they appear. The Court of Appeal relevantly endorsed the approach taken by RA Hulme J in NSW v Thomas (Final) [2011] NSWSC 307 at [58].
The State contends that three further points may be emphasised about the jurisprudence on the "unacceptable risk" test and the requirements of that test as it appears in s 5B, read in the context of the Act as a whole.
First, it is preferable to avoid putting a gloss on the words of the statute which require the Court to consider matters such as the nature and likelihood of the relevant risk and form a judgment, based on the evidence, as to whether Mr Hill poses an unacceptable risk of committing a further serious sex offence. The determination of what is an unacceptable risk may require consideration of various factors (such as the perceived likelihood of recidivism and the type and nature of offences that may be committed absent supervision), and may entail a balancing of factors in cases where they might point towards differing outcomes (such as a low risk of recidivism versus likely drastic consequences to the victim if an offence occurs). Clearly, any analysis of the concept of unacceptable risk involves recognition that there will be a range of factors affecting risk and that some cases of unacceptability will be more obvious than others.
Secondly, while it appears that the Court is not required to consider all of the factors listed in s 9(3) in determining whether or not it is satisfied under s 5B(2) to a high degree of probability that a person poses an unacceptable risk of offending (as it must when determining under s 9 whether or not to make an ESO order at all), those factors should nevertheless inform the s 5B(2) analysis: see Fisk at [22].
Thirdly, it is important to recall, having regard to s 5B(3), that the Supreme Court may legitimately find in some situations that a person poses an unacceptable risk for the purposes of the statutory test even if the likelihood of them committing a further serious sex offence is determined to be low. Decision-making about unacceptable risk is highly fact-dependent but occurs in the context of ensuring community safety and protection.
[8]
Discretion not to make an ESO
Under the Act, if the State discharges its burden to establish that an offender is a high risk sex offender under s 5B, the Court still has a discretion whether or not to make an order, and must take into account the criteria in s 9(3).
[9]
Mr Hill's offending history and sentencing remarks: s 9(3)(h) and (h1)
[10]
The 1993 sex offences
On 9 March 1994 Mr Hill was sentenced by Judge Craigie in the District Court in respect of one charge of aggravated sexual assault and one charge of attempt to have sexual intercourse without consent in circumstances of aggravation. The offences were committed at Wellington, NSW on 16 March 1993. The victim of both offences was a 37 year old woman. After initially claiming that the victim had consented, Mr Hill ultimately pleaded guilty.
The circumstances of the offences are detailed in the remarks on sentence of Judge Craigie dated 9 March 1994.
The victim was walking home from a hotel in the early hours of the morning. As she turned into a laneway Mr Hill was crouching beside an iron fence. He grabbed at her several times stating "I want to fuck you." The victim tried to resist him but he grabbed her by the arm and punched her in the mouth. Mr Hill then knocked the victim to the ground and dragged her between a shed and a fence. He attempted to place his penis in the victim's mouth. When the victim attempted to escape Mr Hill placed his hands around her throat and attempted to strangle her, saying "Shut up, you bitch, I have got a knife in my back pocket, or I will kill you."
Mr Hill then ripped off the victim's bra and other garments and kissed her on the vagina. He forcefully penetrated her with his fingers. During the assaults the strap on the victim's bag broke and Mr Hill placed the strap around the victim's neck and commenced to strangle her with it. When she called out that she could not breathe Mr Hill pulled the strap tighter and said "Just shut up or I will kill you." The victim nearly lost consciousness before he let go of the strap. When the victim then felt the strap on her arm and attempted to throw it away, Mr Hill struck her with it. The victim's cries for help were heard by neighbours who called the police. Mr Hill was found at the scene in a position on top of the victim. He was arrested after attempting to climb over a fence.
Judge Craigie noted expert evidence regarding Mr Hill's history to the effect that after bouts of excessive alcohol consumption he becomes disinhibited and prone to violence, sexually and otherwise. Judge Craigie noted that Mr Hill had consumed a considerable amount of alcohol shortly before the sex offences "but not enough to blot out his intentions".
Judge Craigie sentenced Mr Hill to imprisonment for a total of 7 years expiring on 31 October 2000 with a 4 year non-parole period. He became eligible for release on parole on 31 October 1997.
[11]
The 1998 sex offences
On 23 April 1999, Mr Hill was found guilty by a jury of five counts of aggravated sexual assault and one count of aggravated break and enter and commit a felony. He committed the offences on 28 March 1998, while on parole in respect of the sex offences committed in 1993.
The circumstances of the 1998 offence are set out in the remarks on sentence of Judge Taylor dated 18 August 1999 and in the judgment of the Court of Criminal Appeal dated 16 February 2005: R v Hill [2005] NSWCCA 44.
The victim was a 42 year old woman who did not know Mr Hill. The circumstances of aggravation were the threat to inflict actual bodily harm on her by means of a knife. At an initial stage of the assaults Mr Hill held the knife to the victim's throat. The victim cut her hand when feeling where the knife was positioned.
The offences were committed at Dubbo and took place over a period of about an hour and a half. The sexual assaults commenced after Mr Hill broke into the victim's house at 5:30am. She noticed a strong smell of alcohol on her attacker. Mr Hill denied he was the attacker and the issue before the jury was identification. Judge Taylor described the Crown case as very strong.
The offences were premeditated and although the victim did not know Mr Hill, he made known to her during the assaults that he was aware of personal details about her, including her name, marital status, occupation and other intimate details.
The sexual assaults committed on the victim included penile vaginal penetration, penile anal penetration, digital vaginal penetration, and digital anal penetration. Mr Hill also told the victim that he intended to come back to see her again. Mr Hill was arrested within a few hours of the offences taking place.
In his remarks on sentence, Judge Taylor said:
"Throughout the attack upon her the complainant was in fear for her life. This was a particularly brutal and savage attack upon the complainant and one can only imagine what she suffered and the consequences that this vicious attack has had upon her. The apprehension of fear, the terrifying circumstances of a life threatening situation makes these matters very serious.
The Court takes into account the nature and degree of violence and the degree of premeditation.
The fact that the offender was only recently released to parole for a similar matter has given the Court cause for a great deal of concern."
In recounting Mr Hill's criminal history, Judge Taylor noted that "[h]e has a history of violence against women." This included a history of domestic violence against his de facto wife and a number of breaches of domestic violence orders. Judge Taylor also accepted the views set out in a report of Ms Anne Young, senior psychologist, to the effect that the index sex offences together with the 1993 sex offences and the previous domestic violence offences were part of a continuing pattern of behaviour and as "manifestations of a long term underlying difficulty".
In respect of each of the five counts of aggravated sexual assault, Judge Taylor sentenced Mr Hill to imprisonment for 10 years with a 7 year non-parole period. In respect of the further count of aggravated break and enter and commit a felony, he was sentenced to imprisonment for 8 years with a non-parole period of 5 years and 6 months. Both sentences commenced on 28 March 1999 and were concurrent. Mr Hill became eligible for release on parole on 28 March 2006.
On 22 September 2004, some five years after the expiry of the time allowed for the filing of an appeal, Mr Hill filed a notice of appeal against his conviction. The Court of Criminal Appeal refused leave to extend time for the filing of the appeal against conviction, determining that there was no substance to any matter that he wished to raise and because the delay in filing the appeal had not been satisfactorily explained: R v Hill [2005] NSWCCA 44.
Mr Hill has continued to deny responsibility for the 1998 sexual offences.
[12]
The connection between Mr Hill's use of illicit drugs or alcohol and his risk of sexual offending: s 9(3)(i)
Mr Hill's use of illicit drugs or alcohol has been identified by various professionals, and also Mr Hill, as a substantial factor in his risk of re-offending. It is high risk behaviour which directly relates to his offending.
In her report dated 11 May 2016 Dr Kerri Eagle diagnosed Mr Hill as having a severe substance abuse disorder. Dr Eagle further states: "it is apparent that his use of substances has a clear correlation with his sexual offending."
In addition, a pre-sentence report dated 22 November 1990 said of Mr Hill:
"He freely admits his past history of offences has occurred whilst he has been under the influence of alcohol."
In a later pre-sentence reported dated 6 April 1993 the probation officer said:
"He is described as being argumentative when intoxicated, leading on occasion to violent behaviour. It is believed by family members that [Mr Hill] needs a structured environment to acknowledge his problem and learn to control his severe behavioural changes when under the influence of alcohol…
[He] impresses as a man who is not fully aware of the effects alcohol has on his behaviour and it appears he has of late attempted to curb his intake. However, if he does not resolve his alcohol problem his future prognosis is poor and in light of his attitudes his motivation must be considered irresolute."
In his remarks on sentence in respect of the 1993 sexual offences, Judge Craigie referred to the expert report of Dr McMurdo to the effect that:
"…after bouts of excessive ingestion of alcohol, the offender becomes disinhibited and somewhat violent sexually…"
Mr Hill has a number of convictions for assaults and breaches of apprehended violence orders. In his report dated 15 November 1993 Dr McMurdo reported that:
"Your client admitted that he had quite regularly assaulted his partner. This was only after he had been drinking. He said that he became sexually and physically aggressive towards her and had been put on a restraining order because of this, but she had continued to live with him."
Dr McMurdo emphasised that it was essential that Mr Hill does not consume alcohol in the future. In respect of the 1993 sexual assault offence, Dr McMurdo said:
"He fears that he may have become disinhibited (my word not his) because of alcohol and become over aggressive as he frequently had been with his de facto partner."
In his remarks on sentence, Judge Taylor referred to the drinking of alcohol as a risk factor that had been present prior to the commission of the index offences.
In a psychological report dated 15 April 1996, Anne Young said:
"Mr Hill also has a past history of alcohol abuse which appears to have been worse since 1988. In the weeks before the offence he lost his job and his wife had left him. Due to his drinking and violence towards his wife there had been several prior separations.
…
He says that he realises that he will have to remain abstinent from alcohol to reduce the risk of violence."
A Pre-Release report dated 28 July 1997, prepared by the Probation & Parole Service, records that:
"Mr Hill agreed that his use of alcohol prior to and leading up to the offence, had spiralled out of control…Hill has admitted that there is a direct link between his sexually deviant behaviour and the disinhibiting effect alcohol has when he consumes it in large quantities."
In her psychological report dated 16 August 1999, in respect of the 1998 sexual offences, Ms Young stated:
"It is of concern that Mr Hill who had previously acknowledged drinking alcohol as a high risk behaviour for himself, was drinking within a very short time of release …
A number of his high risk factors for reoffending were present in the months after his release including drinking alcohol, deviant sexual arousal, and negative mood states."
The CUBIT treatment report dated 12 August 2008 identifies acute dynamic risk factors as being those that may indicate an individual's increasing immediate risk of re-offending. The report states that:
"Specifically, if Mr Hill was engaging in the use of alcohol or other drugs, this would be an immediate indicator of his increased risk of re-offending.
…if Mr Hill chooses to reject supervision by keeping secrets, missing appointments, or breaching conditions (eg not abstaining from alcohol use), he is at an increased risk of reoffending…
Any changes noted in the aforementioned dynamic risk factors should alert Mr Hill, his support network, and other professionals to his immediate increased risk of sexual recidivism and the need for immediate intervention."
In a risk assessment report dated 23 February 2009, Patrick Sheehan stated:
"In Mr Hill's case, there is some evidence that intoxication from alcohol and other drugs is an acute risk factor that is closely associated with his episodes of sexual abuse and other violence. I would not hesitate to specify that complete abstinence from these substances is the only viable option for the future in terms of the successful management of risk in Mr Hill's case."
In his reasons for judgment dated 28 October 2009, in respect of the imposition of the ESO, Rothman J emphasised the link between alcohol and Mr Hill's risk of sexual offending: State of New South Wales v Hill (No. 3) [2009] 1139 at [7]. In a subsequent judgment published on 21 December 2010, dealing with an application by the State to vary the terms of the ESO, Rothman J emphasised that illicit drugs were similarly linked to Mr Hill's risk of sexual offending: State of New South Wales v Hill (No. 4) [2010] NSWSC 1504 at [5]:
"[5] Mr Hill was granted bail in 2008 and relapsed into use of drugs and alcohol, for which his parole was revoked. 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."
In State of New South Wales v Hill (No. 5) [2013] NSWSC 140, dealing with a further application by the State to vary the ESO, Rothman J said:
"[19] As already noted, a significant risk factor that I had mentioned on past occasions was Mr Hill's use of alcohol and illegal drugs…
[20] I 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, methylamphetamine, 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.
[21] It 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.
…
[24] As 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.
[25] Whatever 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."
His Honour went on at [30] to say that "Mr Hill poses a significant risk overall because of the risk that alcohol and drugs will be consumed."
In his psychiatric report dated 3 March 2016 Dr O'Dea said at [66] that "it would appear reasonable to link, in a significantly direct manner, Mr Hill's history of Substance Abuse and Paraphilic Disorder." Dr O'Dea further said, at [68], that Mr Hill will need to remain abstinent from alcohol and illicit drugs in the long term in order to manage and minimise his risk of engaging in further sex offending behaviours.
[13]
Sex offender treatment programs: s 9(3)(e)
Mr Hill undertook the CUBIT program for high risk sex offenders while in custody prior to the ESO being made. He completed the program on 21 July 2008. His participation in the program is detailed in the CUBIT treatment report dated 12 August 2008 and also in the risk assessment report of Patrick Sheehan dated 23 February 2009.
Mr Hill's progress during CUBIT was twice interrupted when he was suspended from the program and he reportedly found it challenging and encountered difficulties at various stages. His overall participation in CUBIT was described as mixed, with improvements shown over time. On the negative side, Mr Hill encountered a number of difficulties during his time in treatment resulting in a lengthy suspension for aggressive behaviour within the CUBIT community. He also appears to have been somewhat ambivalent. Mr Hill was described as having made progress on a number of issues, including improving his emotion recognition skills, challenging unhelpful thoughts, intervening in aggressive behaviour, improving his self-esteem, improving his coping strategies and relationship skills. Further, after his return to CUBIT from suspension, his involvement and progress within the program was generally at an improved level.
In his risk assessment report, Mr Sheehan describes the CUBIT program as having been "an arduous process for Mr Hill".
While on release in the community, on parole prior to the current ESO being made, Mr Hill attended some group sessions in the community-based maintenance program conducted by the Forensic Psychology Services division of Corrective Services NSW at Surry Hills. His attendance was interrupted by periods of incarceration.
After the making of the ESO in June 2009, Mr Hill reportedly attended seven sessions of the custody-based maintenance program between October 2009 and April 2010, with his participation being described as "varied".
Mr Hill has also attended sessions of the community-based maintenance program since June 2009. He was referred, and re-referred, on a number of occasions, with his attendance again being interrupted by periods of incarceration. In March 2011 he was assessed as not suitable to continue in the community-based maintenance group due to hostility and lack of motivation, and its impact on group dynamics. Subsequently, Mr Hill was required to attend individual maintenance sessions on a 3-weekly basis. His participation, interrupted by periods of non-attendance including as a result of re-incarceration, was described as "mixed". Speaking of his attendances in 2012 Ms Donaldson reported:
"Mr Hill's progress in community-based maintenance was mixed. He experienced emotional outbursts; engaged in a range of justifications and distorted ways of thinking (e.g., about his drug use); shifted between attempting to assert some control over his situation, whilst placing responsibility onto others (those involved in his supervision); and demonstrated limited insight into a risk situation he had placed himself in (e.g., related to a volatile relationship). Mr Hill had difficulty challenging problematic thoughts, or recognising the need to challenge them."
Subsequent re-engagements with the Forensic Psychology Services have been relatively limited, as described in Mrs Donaldson's report, although prior to his most recent arrest and incarceration in October 2015, Mr Hill appeared to be engaging more positively. In respect of his engagement with sex offender treatment generally, Ms Donaldson concluded in January 2015 that:
"Overall, Mr Hill's participation in sex offender specific treatment indicates that Mr Hill gained an intellectual understanding of treatment concepts; however, he did not internalise or consistently apply learnt skills into his everyday life."
[14]
Section 9(3)(f) - level of offender's compliance with any obligations to which he has been subject while on parole or while subject to an earlier ESO
[15]
Non-compliance with prior parole orders
Mr Hill has a history of failing to comply with conditions of parole and having his parole order revoked. The 1998 sexual offences were committed while he was on release on parole in respect of the sentence imposed for the 1993 sexual offences.
Mr Hill also has a history of previous failures to abide by community-based orders while under the responsibility of Probation and Parole prior to 1998.
With respect to the 1993 sexual offences Mr Hill was released on parole on 31 October 1997. The Parole Board revoked this parole on 30 March 1998. During the period of parole, difficulties encountered with Mr Hill's supervision included:
1. being asked to leave his former partner's home when smelling of alcohol;
2. in breach of a direction by Probation and Parole to have no contact with his former partner, Mr Hill being observed under the influence of alcohol at her residence resulting in her requesting police assistance;
3. failing to attend appointments with his psychiatrist;
4. contacting his former partner in breach of parole conditions;
5. being subject to an AVO being made on behalf of his former partner.
Mr Hill was released on parole on 2 September 2008 in respect of the sentence of imprisonment for the 1998 sex offences. His parole performance is recorded as having declined markedly over time.
Contrary to his parole conditions, Mr Hill tested positive for methylamphetamine in November 2008, which resulted in a breach report and a warning letter from the State Parole Authority. A subsequent urine sample, taken in December 2008, tested positive for cannabis. Mr Hill was later observed acting strangely in the city around midnight on 31 December 2008, in breach of curfew requirements.
On 30 January 2009 police reportedly observed Mr Hill in Kings Cross drinking beer at 11:05 pm. He was described as loitering in a darkened area and being slightly affected by alcohol.
On 6 February 2009, following receipt of a breach report, the State Parole Authority made an order revoking Mr Hill's parole. He was returned to custody on 7 February 2009. On 11 February 2009, Mr Hill was convicted in the Local Court of failing to undergo a breath analysis on 7 February 2009.
[16]
Level of compliance with ESO
Since June 2009, Mr Hill has been convicted and sentenced in respect of a number of breaches of the ESO, as well as for an offence of threaten/intimidate a community corrections officer. These are referred to below in more detail.
[17]
Report from Corrective Services NSW - s 9(3)(d1)
A New South Wales Corrective Services "risk management report" dated 24 February 2015 has been prepared pursuant to s 9(3)(d1) of the Act by Terry O'Brien of Community Corrections. The report outlines a management plan that has been formulated to assist Mr Hill's supervision and case management, should he become subject to an ESO. Ms Clare McNaughton has provided an updated Risk Management Report dated 27 October 2015, and a further update to the Risk Management Report, dated 11 March 2016.
Subject to Mr Hill's continued progress, the risk management plan contemplates continuation of supervision on 'Stage 4' (without the imposition of electronic monitoring, a requirement to provide a weekly schedule of proposed movements or a curfew). Elements of the risk management plan would include weekly reporting contact, both at Community Corrections offices and at Mr Hill's residence, random urinalysis and breath analysis. He would also continue to attend the Forensic Psychology Services sex offender maintenance program, which is available only to persons subject to court-imposed orders or parole.
[18]
Psychiatric evaluation and risk assessment: s 9(3)(c), (d) and (i)
Dr Andrew Ellis and Ms Katherine Jones provided a report dated 22 September 2008 on behalf of the NSW Community Forensic Mental Health Service. They referred to Mr Hill's history of significant substance abuse and his previously demonstrated alcohol and cannabis dependence. Dr Ellis and Ms Jones noted that:
"During therapy he was open about his deviant sexual fantasies concerning rape, his interest in cruising for victims to rape and his tendency to get sexual pleasure out of frightening or hurting his sexual partner or victim."
Under the heading "Psychiatric Diagnosis" the authors referred to Mr Hill's sadistic paraphilia and antisocial personality traits:
"Mr Hill presented with a history of sadistic paraphilia by causing psychological suffering with intrusive fantasy urges and behaviour supporting this. These thoughts and fantasies related to his negative self-esteem, stressors and negative life situation. He denies experiencing any of these thoughts and urges since incarceration.
Mr Hill presents with antisocial personality traits such as a lack of respect for authority (charges whilst in prison), irresponsible and exploitative sexual behaviour, impulsive behaviour and decision-making, irritable and aggressive behaviour."
In the course of the ESO proceedings in 2009, Dr Anthony Samuels and Dr Samson Roberts were appointed by the Court separately to examine Mr Hill and provide expert reports. Dr Samuels provided a report dated 20 April 2009. Dr Roberts provided a report dated 4 May 2009. Dr Bruce Westmore also provided a report dated 28 May 2009. Each of these doctors emphasised the role of alcohol in Mr Hill's offending history.
After referring to further risk factors , including use of alcohol and illicit drugs, Dr Samuels said:
"Given these risk factors I think without appropriate supervision there is a likely risk that [Mr Hill] could commit a further sex offence if released to the community."
In his report, Dr Roberts said:
"Based on the information provided, it is my opinion that Mr Hill represents a high risk of offending both violently and sexually. In forming this conclusion, several matters were considered. Mr Hill scores in the high range on the STATIC 99. Whilst he has participated in various programs, including the CUBIT program whilst in custody and has developed a certain insight into his conduct, it is evident that he has not successfully integrated the theory presented to him into his day-to-day conduct. There are several accounts in the material, which reflect Mr Hill's propensity to revert to old patterns of interpersonal conduct and old attitudes when confronted or placed in a position in which he perceives a threat or challenge. The manner in which Mr Hill described a variety of issues at the time of my assessment of him, reflected a disorganized pseudo-philosophical rambling which, despite initially sounding superficially sophisticated, was lacking in substance and largely meaningless.
…
Further compounding Mr Hill's risk with respect to reoffending, is his derisive attitude towards control orders and those administering them, which at times he is able to contain. However in particular with respect to his attitude towards substance use, it is evident that he cannot even maintain an outward impression of acceptance in this regard.
It is my opinion that in the absence of supervision, Mr Hill is likely to reoffend. In my opinion, given his dismissive attitude towards supervision, only with the strictest supervision in place, would this risk be mitigated."
Dr Westmore did not recommend that Mr Hill be released from continued supervision.
Mr Patrick Sheehan, psychologist, provided a risk assessment report dated 23 February 2009. He assessed Mr Hill's risk of sexual re-offending as falling within the high risk category relative to other adult male sex offenders. Mr Sheehan also identified Mr Hill's history as consistent with a number of traits of Antisocial Personality Disorder.
Ms Meagan Donaldson provided a psychological risk assessment report dated 21 January 2015. She assessed Mr Hill by reference to both static and dynamic risk factors. Applicable dynamic risk factors included problems with general self-regulation, problems with supervision and treatment, problems with intimate and non-intimate relationships and problems with sexual self-regulation. Substance abuse was identified as an acute dynamic risk factor. Ms Donaldson concluded that Mr Hill continued to present a high risk of sexual offending relative to other adult male sex offenders.
Ms Donaldson also provided an addendum to her report dated 26 October 2015 which referred to developments since her first report. She concluded that, having regard to static and dynamic risk assessment, Mr Hill's risk of sexually re-offending remained in the high risk category relative to other adult male sex offenders.
Dr Jeremy O'Dea provided a psychiatric report dated 3 March 2016. Mr Hill declined to be interviewed for the purpose of the report, which Dr O'Dea noted in paragraph 7 of his report. Despite this limitation, his report provides a current and detailed analysis of factors applicable to Mr Hill and his risk of sexual recidivism. Dr O'Dea noted Mr Hill's extensive history of alcohol and other drug abuse and dependence and, in particular, his more recent abuse of amphetamines. Dr O'Dea further noted the history obtained by Dr Ellis, including the rape fantasies experienced by Mr Hill around the time of his 1993 sexual offence.
In his report, Dr O'Dea stated:
"[63]…I note Mr Hill's history, from his teenage years, of Substance Use Disorder, including alcohol, cannabis, amphetamine and heroin abuse and dependence, with at least ongoing amphetamine abuse in the community in 2015, and despite ongoing alcohol and other drug counselling and rehabilitation.
[64] Although I am not aware that Mr Hill has been given a definitive diagnosis of a personality disorder, I note that he has been considered to display antisocial personality traits.
[65] I also note that, by virtue of his reported urges and fantasies, and supported by his history of sex offending, Mr Hill has been diagnosed as suffering from a Paraphilic Disorder of Sexual Sadism Disorder, and gave a history of a relatively high sex drive and sexual activity.
[66] As I have not conducted a psychiatric assessment of Mr Hill in person, I am not in a position to make definitive psychiatric diagnoses regarding Mr Hill, nor make definitive statements regarding his risk management issues. However, it would appear reasonable to link, in a significantly direct manner, Mr Hill's history of Substance Abuse and Paraphilic Disorder.
[67] On the basis of Mr Hill's reported history of sexual sadism, his history of repeated sex offending, including whilst under community supervision, and his ongoing significant substance abuse and dependence, including in the recent past, it would seem reasonable to assume that he has a significant risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006, particularly if he were to continue to use alcohol and/or illicit substances, with this risk the appropriate focus of specific and structured risk management, including psychiatric treatment and risk management, in the community in the long term.
[68] Furthermore, It would appear reasonable to assume that Mr Hill will require to remain abstinent from alcohol, amphetamine and other illicit drug use in the community in the long term, in order to manage and minimise his risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006.
[69] This crucial goal of abstinence in the community would best be achieved by Mr Hill engaging in ongoing structured and supervised alcohol and other drug counselling and rehabilitation in the community in the long term, including consideration of residential alcohol and other drug rehabilitation in the community, at least in the medium term.
…
[70] In conjunction with this medical management of his Substance Use Disorder, Mr Hill should be referred to a suitably qualified and experienced forensic psychiatrist, for further assessment and treatment of his diagnosed Paraphilic Disorder. The combination of ongoing and active Substance Use Disorder and Paraphilic Disorder, in particular Sexual Sadism Disorder, would significantly increase the risk of a person engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence as defined in the New South Wales Crimes (High Risk Offenders) Act 2006, and both should be assertively treated in the long term in order to manage and minimise this risk."
Dr O'Dea assessed Mr Hill as presenting a high risk of sexual re-offending. Dr O'Dea continued:
[79]…With this in mind, from a full clinical psychiatric risk management perspective, and as judged by various actuarial and more so called dynamic risk assessment instruments, Mr Hill's risk of engaging in further sex offending behaviours in the community in the long term would seem to be considered significantly high and appropriate for specific psychiatric treatment as outlined above.
[80] More specifically, it would seem reasonable to consider that there would be a significantly high degree of probability that Mr Hill would be likely to commit a further 'serious sex offence' (as defined in Section 5(1) of the New South Wales Crimes (High Risk Offenders) Act 2006) in the community in the long term, if these above outlined treatment interventions above, and in particular successful psychiatric treatment of his Paraphilic Disorder and abstinence from alcohol and illicit drug use in the long term, were not successfully implemented in the context of community supervision and monitoring…
…
[82] Despite the fact that he has been under supervision in the community on a number of occasions since 2009, 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, remains long term, and of at least a further 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."
[19]
Reports of the Court-appointed psychiatrists - s 9(3)(b)
Dr Stephen Allnutt and Dr Kerri Eagle were appointed by the Court to assess Mr Hill and review the extensive documentation that has been generated in connection with him. Both experts support the making of an ESO for an extended duration of five years.
Dr Allnutt provided a report dated 29 April 2016, following an assessment of Mr Hill on 11 April 2016. He diagnosed Mr Hill as having a:
1. personality disorder: "[Mr Hill] demonstrates an enduring and inflexible pattern of behaviour that deviates from cultural norms with poor impulse control and maladaptive interpersonal functioning that is self-damaging and harmful to others. I would regard him as having a mixed personality disorder manifesting antisocial (he has a history of offending in the long-term in adulthood) and borderline (he has a history of unstable and intense interpersonal relationships, he engages in impulsive self-damaging behaviours, and probable affective instability) personality traits."
2. history of substance use consistent with a substance use disorder (currently in remission);
3. paraphilia disorder.
Dr Allnutt said:
"Given his history of voyeurism, stalking behaviour, and recurrent offending with a non-consenting person over a period of years, I would regard as manifesting a paraphilia disorder. Definitively diagnosing the nature of his paraphilia is difficult. It remains unclear to me whether he has experienced sexual arousal predominantly of the physical or psychological suffering another person, or whether the non-consensual interactions utilising weapons and threats are to achieve the sex act alone. Taking information as a whole, differential diagnosis would include: a sexual sadism disorder (non-consenting sexual activity with sexual arousal associated with physical or psychological suffering of another person, use of strangulation and derogatory words such as "bitch" and "slut") or an unspecified paraphilia disorder (utilising threat and intimidation to achieve non-consensual sex act, but not necessarily due to a need for physical or psychological suffering of another person to achieve sexual arousal)."
Dr Allnutt regarded Mr Hill as presenting with a high loading of clinical risk factors. He assessed him as presenting at least a moderate high risk of sexual recidivism.
Dr Allnutt said:
"He has a history of engaging in a number of wide ranging offences through his life. He has been convicted of two serious sex offences of a similar nature which is supportive of a pattern and consistent with in my opinion an underlying paraphilia which drives the offending.
This vulnerability persists and requires ongoing monitoring and rehabilitation. His offending has been associated with substance use and he has had difficulty since 2009 in maintaining abstinence...
On this basis despite his possible abstinence since 2013 and current acceptance of the need to be more compliant to his conditions, it is premature to change his risk status without further evidence of stability. I would regard him as remaining in a group of sex offenders of at least a moderate high risk of future sexual recidivism as compared to other sex offenders, having regard to the entirety of the information provided to me."
Dr Allnutt recommended consideration of anti-libidinal medication. Dr Allnutt considered that Mr Hill "must remain involved with a community sex offender rehabilitation program" and must abstain from substances.
Dr Eagle provided a report dated 11 May 2016, following an assessment of Mr Hill on 13 April 2016. She reported Mr Hill's accounts regarding the circumstances of the 1993 and 1998 sexual offences, the latter of which Mr Hill continued to deny. Dr Eagle also noted Mr Hill's report that he had forced his ex-partner to have sex and that "I just wanted to humiliate."
Dr Eagle regarded Mr Hill as having: "demonstrated limited insight into his offending behaviour, his substance use difficulties and his treatment needs."
Dr Eagle further said that Mr Hill:
"…denied any substance use disorder, referring to himself repeatedly as a 'user' not an 'addict.' He said he would cease his methadone as soon as he was off the order. His description of the 1993 Offences contained repeated minimisations and justifications for his behaviour, including to some extent victim blaming. He was unable to identify any ongoing problems associated with his offending (including his substance use or even his acknowledged resentment towards his mother). He justified his repeated breaches of his supervision order."
Dr Eagle diagnosed Mr Hill as having a:
1. Severe Substance Use Disorder: "He has displayed persistent problems involving the use of methamphetamines, heroin and cannabis. Despite the restrictions he has been placed under and the repeated sanctions he has received, he has continued to engage in problematic substance use. He has demonstrated the use of substances to cope. He has experienced a severe adverse psychiatric episode (psychosis) as a result of his substance use. He has demonstrated repeated failed attempts to control or reduce his substance use."
2. Sexual Sadism Disorder: "he experienced recurrent and intense sexual arousal from the psychological suffering of others (for instance the humiliation and fear of females) and this manifested in stalking and sexual offending behaviours. These behaviours occurred over a period of at least 12 months on one occasion (leading up to the 1993 offences). At the time of interview Mr Hill minimised and denied sexual arousal from the suffering of others but acknowledged a feeling of power and control when intentionally inducing the fear of a female. In several other reports (Ellis 2008; Young 1997; Young 1999) Mr Hill has been reported to have admitted to rape fantasies associated with sexual arousal, utilising pornography involving submissive females and getting sexual pleasure out of frightening or hurting his sexual partner."
3. Antisocial personality traits: this included "a failure to conform to social norms with respect to lawful behaviour (as evidenced by his repeated and versatile offending behaviours); deceitfulness; impulsivity; aggressiveness; a reckless disregard for the safety of others; consistent irresponsibility and lack of remorse."
4. Psychopathic personality traits. Mr Hill displayed a high number of psychopathic personality traits using the PCLR assessment.
Dr Eagle said the personality traits are pervasive and may explain some of the difficulties that have been encountered with Mr Hill's treatment and supervision. She assessed Mr Hill using assessment tools and clinical judgment. In her opinion, Mr Hill fell within a category of persons at high risk of sexual offending. Dr Eagle indicated that:
"In an analysis of Mr Hill's offending behaviour, it is apparent that his use of substances has a clear correlation with his sexual offending. Other factors of concern are Mr Hill's ongoing casual sexual contact with potentially vulnerable persons such as female substance users and prostitutes given his history of sexual deviancy. A scenario of particular high risk for Mr Hill would be the use of substances in the context of exposure to vulnerable persons perceived as available for casual sexual contact."
Dr Eagle also concluded that, given Mr Hill's deviant sexual disorder, anti-libidinal medication should be considered. In addition, she recommended that he be required to attend a further period of a residential rehabilitation drug and alcohol program to address his substance abuse disorder.
Dr Eagle's view of the conditions that the State sought to impose was as follows:
"Having regard to the above, I am of the opinion that the more restrictive conditions sought in the Amended Summons may assist in reducing Mr Hill's reoffending risk. Specifically, increased monitoring strategies ought to be done at the same time as assertive efforts to address Mr Hill's risk factors (such as his substance use disorder and deviant sexual disorder) for there to be a realistic prospect of effectively reducing Mr Hill's overall risk."
[20]
Section 9 factors: Crown's submissions
All of the s 9 factors are relevant to the safety of the community: s 9(3)(a). The Crown contended that the following matters should be emphasised regarding the s 9(3) factors, which are relevant not only to the discretion to grant an ESO, but also to the question of whether the Court would ultimately be satisfied that Mr Hill is a "high risk sex offender" for the purposes of s 5B(2). Mr Hill:
1. has a history of sexually offending against adult women in circumstances of aggravation involving the use of a knife;
2. is assessed as suffering from a Paraphilic Disorder of Sexual Sadism, and reportedly admitted to having experienced rape fantasies at the time of the first sex offences;
3. continues to deny responsibility for the 1998 sex offences for which he was convicted;
4. is assessed as having antisocial personality traits, and also psychopathic personality traits;
5. has a history of abusing illicit drugs and alcohol including, methylamphetamine. As the Court has held, and consistently with the expert evidence including that of Dr Eagle, the abuse of illicit drugs and alcohol is closely linked to Mr Hill's risk of sexual re-offending;
6. has recently been convicted of having used methylamphetamine in contravention of a condition of his current ESO and was released from custody only as recently as 28 February 2016;
7. has a history of failing to comply with parole and supervision requirements, and has been convicted, on multiple occasions, of having breached conditions of his ESO;
8. is recently assessed by Dr O'Dea as presenting a "significantly high" risk of sexually re-offending, and by Dr Eagle as falling within a category of persons at high risk of sexually re-offending. He is similarly assessed by Ms Donaldson as having a risk of sexually re-offending that is within the high risk category relative to other adult male sex offenders;
9. has been assessed by Dr O'Dea with a long term risk of engaging in further sex offending behaviours in the community despite having been subject to supervision on his current ESO when not incarcerated;
10. has continuing treatment needs and, as part of an ESO, is able to continue the sex offender maintenance program with Forensic Psychology Services; and
11. in the absence of supervision and support of the type that could be provided by an ESO, is likely sexually to re-offend.
[21]
Duration - Crown's submissions
The State submitted that the Court should make the order for five years or such lesser period as appeared to be appropriate. The maximum period permitted by the Act is five years, subject to extension by further application before the end of the period under s 5I(2)(b) of the Act.
The Crown contended that Mr Hill's risk of sexual recidivism, including his severe Substance Abuse Disorder and his Sexual Sadism Disorder, both of which are linked to his sexual offending, support the making of an order for a five year period. The two court-appointed experts and Dr O'Dea all support the making of an ESO for five years. Mr Hill will require long-term monitoring and treatment.
Dr O'Dea's 3 March 2016 report included the following:
"Despite the fact that he has been under supervision in the community on a number of occasions since 2009, 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, remains long term, and of at least a further 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."
Dr Eagle expressed the following opinion:
"If a further ESO is considered appropriate in the circumstances, a period of five years would be a realistic period to attempt to implement the interventions recommended above."
In this respect it was the view of Dr Allnutt that it was:
"…a determination that should be made by a legal adjudicator, not a psychiatrist. The most helpful way I can express this is to say that, given the difficulty he has at this stage maintaining himself in the community, the difficulty will persist for the foreseeable future and requires ongoing monitoring, support and oversight."
The State maintained that many of the conditions it propounded contained an element of flexibility, so that they could be relaxed over time if Mr Hill made satisfactory progress under supervision. The State contended that the general approach taken by Johnson J in State of New South Wales v Tillman [2008] NSWSC 1293 at [62]-[66] is appropriate:
"[62] In fixing the term of an extended supervision order, the Court is guided by the objects in s 3 of the Act to ensure the safety and protection of the community and to encourage serious sex offenders to undertake rehabilitation. Unlike a sentence of imprisonment, an extended supervision order may be varied or revoked under s 13 or a second or subsequent supervision order may be made against the same person: s 10(3). This reflects the different objects of the Act and the measures which the Act allows to achieve those objects.
[63] I do not think it is helpful to draw upon analogies from the area of sentencing law such as the concept of a "crushing sentence". The totality principle is designed to avoid a Court imposing a 'crushing sentence' in the sense that 'it will induce a feeling of hopelessness and destroy any expectation of a useful life after release': R v MAK (2006) 167 A Crim R 159 at 164; [2006] NSWCCA 381 at [17]; Kerr v R [2008] NSWCCA 201 at [27].
[64] The conditions of the extended supervision order which I propose to make in this case will themselves contain an element of flexibility. The Act provides incentive or encouragement for a person to maintain progress towards rehabilitation. The conditions of the order will provide a framework in which an objective measurement of rehabilitation may be made. At the same time, the terms of the order will serve to protect the community. All of this will occur, in this case, in the context of a person released from a decade in custody facing a range of challenges which will test the progress he has made, and allow him to demonstrate progress in a non-custodial, but nevertheless supervised context. This will be a long-term project.
[65] In the circumstances of this case, I am satisfied that an extended supervision order should be made for a period of five years. I do not consider that such a term will have a negative impact on the Defendant's prospects of rehabilitation.
[66] As Fullerton J observed in Attorney-General for NSW v Hadson at [32], much will depend on how the Defendant responds to the current program and whether any variation to the risk-management strategy is called for as assessed by those who manage him and monitor his progress."
Applying this approach in State of New South Wales v Atkins [2014] NSWSC 292, Johnson J said at [130] that he did not consider that the Court should fix a period less than that which is necessary in aid of the protection of the community.
[22]
Consideration
Part of the State's detailed and helpful written submissions included a reference to Mr Hill's offending history. The State dealt with this when considering the s 9(3) factors that are to be taken into account in these proceedings. The State prepared a table of these offences in the context of Mr Hill's offending history and sentencing remarks under s 9(3)(h) and s 9(3)(h1). That table is in the following format:
Date of conviction/ sentencing Offence Details of conviction and sentence
9 March 1994 One count of aggravated sexual assault (Crimes Act, s 61J) District Court - Judge Craigie
One count of attempt to have sexual intercourse without consent in circumstances of aggravation Imprisonment for 7 years with a 4 year non-parole period
23 April 1999 Five counts of aggravated sexual assault (Crimes Act, s 61J) District Court - Judge Taylor
One count of aggravated break and enter and commit a felony (Crimes Act, s 112) Effective total sentence of imprisonment for 10 years with a 7 year non-parole period
29 July 2009 Fail to comply with ESO Downing Centre Local Court - Magistrate Favretto
On 27 April 2010 conviction confirmed by District Court (Judge Solomon)- sentence varied to imprisonment for 12 months (commencing on 27/6/2009 and concluding on 26/6/2010) with a non-parole period of 9 months (commencing 27/6/2009 and concluding 25/3/2010)
17 December 2010 Fail to comply with ESO (1 count) Campbelltown Local Court
Intimidate/intend fear (1 count) Imprisonment for 3 months (commencing on 15/9/2010 and concluding on 14/12/2010) (concurrent)
20 December 2011 Fail to comply with ESO (2 counts) Sutherland Local Court - Magistrate Pearce
Imprisonment for 5 months (commencing on 21/9/2011 and concluding on 20/2/2012)
19 June 2012 Fail to comply with ESO (1 count) Sutherland Local Court - Magistrate Trad
Imprisonment for 3 months (commencing on 19/6/2012 and concluding on 18/9/2012)
2 April 2013 Fail to comply with ESO (3 counts) Sutherland Local Court - Magistrate Trad
Imprisonment for 4 months (commencing on 12/12/2012 and concluding on 11/4/2013)
28 November 2013 Fail to comply with ESO (2 counts) Sutherland Local Court - Magistrate Connell
Imprisonment for 9 months (commencing 8/11/2013 and concluding 7/8/2014) with a non-parole period of 5 months (commencing 8/11/2013 and concluding 7/4/2014)
Kogarah Local Court -
12 June 2014 Failure to comply with ESO (1 count) Magistrate Haskett
Imprisonment for 9 months (commencing 11/6/2014 and concluding 10/3/2015) with a non-parole period of 2 months (commencing 11/6/2014 and concluding 9/8/2014)
11 September 2014 Failure to comply with ESO (2 counts) Sutherland Local Court - Magistrate Huntsman
Imprisonment or 4 months (commencing 11/9/2014 and concluding 10/1/2015)
23 February 2016 Failure to comply with ESO (1 count) Dubbo Local Court - Magistrate Stewart
Imprisonment for 4 months, 14 days (commencing 15/10/2015 and concluding 28/2/2016)
[23]
This document raises a series of informative points.
First, it is apparent that Mr Hill has not committed a sexual offence since his release on parole following the completion of his period of custody for the 1998 offences. Mr Hill became eligible for release on parole on 28 March 2006 but was made subject to a three year extended supervision order by Rothman J on 26 June 2009. Mr Hill therefore did not commit a sexual offence during the seven years to date following his release and in purely chronological or historical terms has not committed any sexual offence since the second offence in April 1998.
Secondly, and as a necessary qualification of the first point, Mr Hill has been convicted of a series of breaches of the ESO that have led to him serving broken periods in custody totalling three years and three and a half months. None of these breaches has involved offending of a sexual nature. Indeed, but for the imposition of the conditions attaching to the ESO, Mr Hill would, all other things being equal, have remained at large in the community.
Thirdly, the conditions attaching to his ESO have not entirely prevented Mr Hill from resorting to the use of illicit drugs in any event. For example,
1. Mr Hill's conviction on 20 December 2011 involved one count related to the use of cannabis and methylamphetamine and a second count of failing to submit to drug and alcohol testing.
2. Mr Hill's conviction on 19 June 2012 related to a urine sample taken on 1 June 2012 that tested positive for cannabis.
3. Within the period from April to November 2013 when Mr Hill was in the community, further instances of reported or suspected drug use that did not result in a charge or conviction are recorded in the departmental case notes for 6 June, 19 June, 8 August, 22 August, 26 August, 9 September, 16 September, 18 September, 22 September and 12 October 2013.
4. On 28 November 2013 Mr Hill was convicted of having consumed cannabis and methylamphetamine.
5. On 12 June 2014 Mr Hill was convicted of breaching a condition of the ESO following detection of cannabis and methylamphetamine in a urine sample.
6. On 11 September 2014 Mr Hill was charged with two breaches of the ESO conditions, including one charge of failing to provide a urine sample.
7. On 6 October 2015 Mr Hill provided a urine sample that tested positive for methylamphetamine for which he was arrested and charged on 15 October 2015. That offence was dealt with on 23 February 2016.
Fourthly, despite detected use of illicit drugs in the approximately seven years to now, none of these instances has been associated with, or has led to, any further reports of sexual offending of any kind, even notwithstanding unanimous medical opinion and judicial acceptance of a strong connection between them.
Fifthly, alcohol does not appear to have featured at all in any of Mr Hill's breaches of the ESO conditions during his supervised time in the community over the preceding seven years.
It will be immediately apparent that there is considerable tension between the medical assessments of Mr Hill's risk of committing a serious sexual offence on the one hand and the way in which he has performed in the community on the other hand. One significant factor that is both recognised by the medical specialists who have examined and reported upon Mr Hill, as well as being quite evident from his conduct, is that he has been conspicuously unconcerned to comply with at least some of the ESO conditions and in fact appears to be quite strongly opposed to the various restrictions that they impose upon him. Despite the extraordinary detail of the several psychiatric and psychological diagnoses and predictions concerning him, I have not been provided with what I regard as a satisfactory explanation for Mr Hill's conspicuous success in avoiding regression to sexual offending in the context of an otherwise demonstrable lack of concern for less significant breaches of ESO conditions. This is particularly so having regard to the fact that Mr Hill has been very severely and promptly dealt with for these breaches, including reincarceration for periods together exceeding three years.
The unanswered question is whether or not Mr Hill's commendable success in avoiding the commission of any sexual offences is connected to the ESO monitoring and reporting regime or whether it is a function of a more fundamental shift in his endogenous propensities. Regrettably the answer to that question is not assisted by the analysis of any period when Mr Hill has been at large in the community but free of ESO conditions and monitoring. What does seem to me to be important is the fact that Mr Hill has not physically been prevented from being in the company of women but that he has nevertheless managed to avoid sexually re-offending. Clearly enough, whatever cavalier or potentially self-destructive attitude Mr Hill has evinced for the drug regime under which he has been required to operate, the same cannot be said for his attitude to the commission of sexual offences, not to say violent sexual offences.
There also does not appear to be evidence of significant regression to alcohol abuse. For example, unless I have misapprehended the evidence, Mr Hill has never been charged with breaches of ESO conditions to which he has been subject from time to time that were related to the consumption of alcohol or to being present on licensed premises or the like. This is of importance having regard to both the demonstrated and admitted association between alcohol induced disinhibition and Mr Hill's index offences, as well as the expert medical opinions about the relationship between alcohol consumption and the prospect of Mr Hill committing further sexual offences.
I raised the relationship between the conditions under which Mr Hill has so far operated in the community and his level of compliance with the conditions with Dr Eagle. I was interested to know what effect the proposed conditions proffered by the State would be likely to have on the chances of Mr Hill committing a further sexual offence. Part of the transcript of that discussion is as follows:
"HIS HONOUR: What I'm interested to know, doctor, is if Mr Hill has the risk of violent sexual re offending and he has the predisposition from a psychiatric perspective which you have identified, which of those conditions alone or in combination do you say would operate effectively to dissuade, even prevent, him from sexual re offending?
A. Well I'd have to make a number of comments about the nature of these types of supervision orders and the evidence behind their effectiveness. There's generally a consensus that they don't prevent re offending, however, they might reduce the person's exposure to scenarios which might increase their risk of re offending. So they're certainly not a preventive measure and I don't think psychiatrists believe that these types of supervision orders will prevent someone with this type of condition from re offending. However, there is some evidence that they can assist or be effective in enabling the person to have an adequate amount of monitoring in order for them to participate in treatments or programs that may be seen to reduce their dynamic or clinical risk factors. So in this case they might reduce his cognitions around his offending; they might be able to reduce his substance use by engaging in drug and alcohol work
Q. They don't seem to have done that in this case yet?
A. I agree.
Q. And that's not been associated with violent sexual re offending.
A. Well, no. But I guess, if a person is perceived to be under a certain amount of scrutiny for a period of time, then their…both their opportunity to re-offend and their perception that re offending might result in a harsh penalty would reduce their risk of re offending during that period of time but not completely.
…
Q. Mr Hill has demonstrated a significant annoyance and frustration with these conditions?
A. Yep.
Q. And he spent about three years and seven [sic, three] months back in gaol for breach of those conditions?
A. Yes.
Q. That rather suggests he doesn't have a difficulty with committing breaches of these conditions?
A. Well it's about his perception. So, in my view, Mr Hill doesn't believe he has a substance use disorder and doesn't believe he should be stopped from going about his life in the way he thinks he should be able to live it. Obviously my view is that he does have a substance use disorder and the use of substances reduces his ability to control his behaviour and thus increases his risk of engaging in violent sexual -
Q. I suppose that's what I'm driving at. He's abused substances?
A. Yes.
Q. Yet it hasn't corresponded in any way with a resurrection or repetition of any violent sexual conduct?
A. I do believe though he perceives that if he were to sexually re offend, that under the supervision order he would be detected and that that would result in a significantly harsher penalty. And so his position is that 'I have never re offended, but I can engage in substance use freely and at my will'. The difficulty with that scenario is of course that once the conditions are released and he doesn't need to have any drug and alcohol work, identify, attend to any form of monitoring, address any of these cognitions, then he will feel free to do all of the things that expose him to very high risk scenarios associating with others. I mean, I completely accept your point and I think it's a very difficult situation in this case because there has been arguably very little benefit from say sex offender treatment programs for Mr Hill.
Q. This level of insight, that is to say, recognition and understanding and acceptance of the relationship between breaches of conditions and consequences, is a fairly sophisticated notion; is it not?
A. It is absolutely and there's no certainty, it would just be my view.
Q. Without being unfair to Mr Hill, the material I've read doesn't suggest that he operates at an intellectual or cognitive level that is particularly sophisticated; would that be fair?
A. I haven't done a cognitive assessment on Mr Hill. He appeared to be oriented and there were no gross abnormalities in his level of function but certainly I don't know his intellectual capacity. But I agree, given his educational background and his experience and the way he interprets his circumstances, would suggest he has a very concrete or literal interpretation of things which would get in the way of that psycho treatment.
Q. If isn't already clear, what I need to get to the bottom of and what troubles me is, even notwithstanding the imposition of conditions of the sort the supervision order would carry, he hasn't, to the extent that he's been back in the community, re offended even though these conditions are not an absolute bar to his having to him doing so. That's what I have to come to terms with.
A. Sure. Yes, your Honour."
This discussion continued:
"HIS HONOUR: Can I just I'm not being critical but you've emphasised all of the negative sides of that so called high risk scenario identified in Ms McNaughton's report in the last two paragraphs.
A. Mm hmm.
Q. It seems that Mr Hill emerged from that high risk scenario without incident, does it not? In other words, no sexual offending, no violent sexual offending flowed from a situation you've identified as one that places him in a particularly vulnerable position?
A. Yes.
Q. You identified the risks and the negatives. Do we take anything positive from an incident of that sort that you've identified as exposing him to significant risks?
A. If your Honour means that he didn't re-offend in those circumstances, that could be reviewed - that can be viewed as a positive.
Q. When you say it could be, it has to be, doesn't it?
A. Well, it's one incident, in this case, in which he didn't re-offend in that high risk scenario, certainly.
Q. I have to balance all the material and it's the nature of evidence that's placed before me that is directed to identification of the risks?
A. Yes.
Q. I need to be able to put it into context.
A. Yes
Q. You'd be familiar with the fact that Mr Hill maintains that he's being, with these conditions of course, and has been for many years, effectively, not his words, set up to fail. I think he said to someone "every time I get up, I get knocked down again"?
A. Yes.
Q. And I need to understand both sides of the coin.
A. Absolutely. And all we can go on are the risk factors we know are associated with offending. We know very little about protective factors and the value of protective factors so I take your point, your Honour.
Q. And the reports don't, again for the reasons you've probably adumbrated, don't direct attention to them very much, if at all?
A. That's because there's not a lot of evidence around what not engaging in offending really means in the long term, particularly in the face of external controls and supervision and other disincentives."
Dr Eagle's evidence also contained the following:
"HIS HONOUR: Allowing for the obvious fact he spent time in custody with presumably no access to the type of victims that were the victims of these offences, by taking into account the fact that he has been in the community for some considerable time since his release to parole, and bearing in mind the relationship between, if there is one, his sex offending as a young person and his current age, what do we get from the fact that he's been free of offending for so long? What does that tell us, if anything?
A. I think that's very difficult to interpret in this case, given he has been either in custody or under supervision for that entire period.
Q. I've built that in.
A. Yes. Again, you know I think it's very difficult in these situations to know what the effect of that supervision has had in or role that supervision has had in preventing his re offending during that period. I think the concern for me are that he, despite all of the supervision that he has had and the treatments he's had, that he still finds it difficult to even control his own actions to the extent of complying with basic requirements of the supervision order with the knowledge that he could go back into custody. And so my concern would be that, given if you lifted the supervision order, that he would continue to engage in this type of behaviour, such as his substance use and exposure to vulnerable victims, but this would occur on a much higher frequency over, you know, whatever period of time, which he may be able to he may not intend to re-offend initially, but ultimately, if he is continually exposed to those high risk scenarios, that his risk of in fact re offending when he's intoxicated and when his control is reduced, is high."
Dr Eagle was asked to consider the question of whether Mr Hill's continued exposure to the present regime of conditions attaching to his ESO might be associated with any negative outcomes. She agreed that if the supervision order were to continue effectively without change, there is a risk that Mr Hill will become angrier and more opposed to the restrictions.
Dr Allnutt also gave evidence. Part of that evidence was as follows:
"HIS HONOUR: Put another way, external controls that didn't physically prevent the conduct from occurring would demonstrate that the internal controls were having a significant operative effect, wouldn't it? For example, a man in the community who is free to sexually abuse women, because he is not being monitored in any particular way day or night, but declines or does not do it, suggests that the internal controls are a significant factor in that result?
A. Yes.
Q. As opposed to being in prison, where you wouldn't know one way or the other?
A. Correct. However, one has to still bear in mind the, I suppose, motivating effect of the level of external monitoring that may be happening and the person's awareness of more immediate consequences and of discovery.
Q. But this man has demonstrated a complete disregard for external controls to the extent that he breaches the conditions and, even so, hasn't resorted to the sexual misconduct of the sort we are concerned to prevent.
A. True.
Q. What does that tell us?
A. Well, to me, the fact that … there's no evidence for offending, since he's been out in the community, which is 2009, where he had that opportunity, does, in principle, go towards a reduction of concern of risk, in principle.
So, the general principle would be that the longer one is in the community and does not offend, the lower the risk is over time, as far as a risk assessment perspective is concerned, when you're looking at populations of people. Individuals, it's difficult to say, but in populations, that is the general principle.
So…I do think that the fact that he hasn't offended from 2009 to now, which is seven years, since he's since in that opportunity period of time, needs to be seen in a positive light.
Q. When you say 'needs to be seen in a positive light', it's unambiguously positive, isn't it?
A. Yes, it is, it's positive. The concerns that balance that, though, are that he is breaching, but the main question is not his breaches, I think, of the orders because I think those breaches are really, in my view, culturally based and, in a sense, a protest. The main concern is the anxieties about whether he's using substances or not because what substances do is they diminish the internal control.
Q. But many of the breaches, I think I'm right, related to the abuse of substances?
A. Well, yes, they do.
Q. And they weren't related coincidently to any of the sexual behaviour we're concerned to prevent?
A. That's correct.
Q. I don't mean to cut you off, doctor.
A. Yes. If I just could just qualify that, though, that is correct and, again, that is a positive sign. So, in a sense, you could say that those circumstances have been, to some degree, tested.
Q. They have, yes.
A. The problem is - the concern is more, I think, to do with the relapse into significant substance use with an escalation of substances, with a daily loss of judgment and then, potentially, a relapse into the expression of the underlying vulnerability and that's, I think that, to me in this case is the anxiety. The question is how long do you go on trying to restrict that?
Q. That is absolutely the question.
A. That is the question."
Dr Allnutt went on, significantly in my view, to offer the following opinion:
"So, in my view…I placed him more in a moderate high group, rather than a high risk group because, to some degree, there has been - it has been tested. But I have concerns and I need to strictly apply the Static 99 and I would not if he had re-offended in any way, I might have modified a Static 99 score if it wasn't possible, or my overall view into a high risk. But given it's not clear, there's a lot of greyness to this case, there has been a number of - a period of time of non-offending, we kept him in the moderate low risk group, moderate high risk group because of that."
I raised with Dr Allnutt my concerns about Mr Hill's regular reincarceration for breaches of the ESO conditions and the effect that it would appear to have had upon him:
"HIS HONOUR: It is from my calculations he spent three and a half years in custody for the breach?
A. Yes. When I interviewed him I got a strong sense from him that he felt strongly aggrieved by that. At the same time there is concern for the community. Some are finding a balance between the two, his needs and the community needs and that's a difficult question for your Honour."
Finally for present purposes, Dr Allnutt's evidence included the following:
"JOHNSON: More broadly, what do we take…from the fact that there has been no sexual offending in 18 years effectively?
A. I think the more relevant period of time would be from 2009 onwards. If we consider that his preferred victim, sexual orientation is female, prison environment so I think what is the more relevant time is 2009 onwards. I think it is relevant. I think it has to be taken into consideration. There have been opportunities and as far as we are aware he hasn't availed himself and he has not acted out in a sexually inappropriate way.
So that is the best way I can answer that question is that that is a factor that needs to be taken into consideration with regard to internal capacities to control himself.
HIS HONOUR: An unambiguously positive factor is it?
A. It's a positive factor. I wouldn't say unambiguous. Unambiguous is that there is no evidence he has offended in that time.
Q. I understand your caveat but I can only operate on the evidence and the
evidence is there has been no such re-offending?
A. There has been no such re-offending.
Q. In that sense it is unambiguously positive isn't it?
A. If I can just understand
Q. Tell me what is negative about the fact he has failed to sexually offend since 2009?
A. It's not unambiguous I think there is a degree of ambiguity to it in that it's an unambiguous fact that he has not offended in that period of time. And that is a positive factor because it suggests internal control. It doesn't necessarily unambiguously negate ongoing risk.
Q. I'm not suggesting that it does?
A. Then in that sense I agree.
Q. Nothing negative can flow from the fact that he has not offended since 2009?
A. I agree, correct."
Section 5B of the Crimes (High Risk Offenders) Act 2006 provides as follows:
"5B High risk sex offender
(1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender.
(2) An offender is a 'high risk sex offender' if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.
(3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence."
It is not in dispute that Mr Hill is a sex offender. Taking into account all of the evidence, including the wealth of psychiatric and psychological opinions with which I have been provided, as well as the evidence touching the matters to which s 9(3) of the Act refers, I am satisfied on the balance of probabilities that Mr Hill poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. I am, however, not satisfied to a high degree of probability as required by s 5B(2) of the Act that Mr Hill poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. It follows that Mr Hill is not a high risk sex offender and that he cannot be made the subject of a high risk sex offender extended supervision order.
Mr Hill has not committed a sexual offence for the past 18 years. He has not committed a sexual offence while at large in the community since the completion of his non-parole period for the 1998 offences in 2009. Mr Hill has committed several breaches of the conditions attached to his extended supervision order, and has served over three years and three months in gaol as a result. These breaches have predominantly been associated with illicit drug use. None appears to have been associated with or connected to alcohol use or abuse. Mr Hill's greatest prospects of sexual re-offending are co-extensive with his vulnerabilities to drug and alcohol relapse. This was recognised and applied by Rothman J when he acknowledged that the unanimous view of the expert witnesses who have given evidence on this subject was that Mr Hill could never safely use alcohol, and any use of alcohol by him would render him an immediate risk of re offending. His Honour also said that Mr Hill did not pose a threat, or a significant threat, when not affected by alcohol or drugs.
In my opinion, a finding said to be based upon satisfaction to a high degree of probability that Mr Hill poses an unacceptable risk of committing a serious sex offence if not kept under supervision could not be reconciled with the demonstrated absence of sex offending for so long on the one hand and the absence of any satisfactory or demonstrable connection between that absence and the conditions imposed upon Mr Hill since his release on parole on the other hand. If Mr Hill had the propensities for sexual re-offending posited by the experts, it would in my opinion have been more likely than not that he would have regressed at some time during the three years and nine months in which he was at large in the community effectively free from absolute constraints upon his activities. Put another way, it follows almost inevitably if not at the very least persuasively from Mr Hill's success in controlling the psychiatric and psychological conditions so closely associated with the risk of regression to the commission of sexual offences, from which conditions the experts all contend he suffers, that his success is attributable in very large part to his independent and voluntary decisions to do so. I am unable to accept that Mr Hill has only been deterred or prevented from sexual offending by the extended supervision order conditions, for which Mr Hill has clearly shown a high level of disregard, if not contempt. If the medical opinions and evidence of s 9(3) factors combine to suggest that Mr Hill poses an unacceptable risk of committing a serious sex offence if not supervised, they do not in my opinion do so with sufficient force to satisfy me of the existence of such a risk to a high degree of probability. Any finding to such a standard would require me to ignore the historical success achieved by Mr Hill, in varying degrees of significance, since 1998 in general and 2009 in particular.
The standard that applies to the relevant finding has been prescribed by the parliament. It is higher than the civil standard. Having regard to the consequences of a finding pursuant to s 5B(2), so much is understandable. Whatever the reason for the prescription of that higher standard may be, I am unable in this case to be satisfied to a high degree of probability that Mr Hill poses an unacceptable risk. The understandably cautious and conservative expert predictions upon which the State relies in my view fail when assessing this risk of re-offending appropriately to accommodate or to take account of Mr Hill's demonstrated success as a functioning member of the community. The same can be said of the various s 9(3) factors to which the State has drawn my attention. Indeed, having regard to the setbacks encountered by Mr Hill as a person subject to an extended supervision order, with his several breaches of conditions and consequent returns to custody, that success seems to me to be all the more remarkable. It stands in the way of my being satisfied to a high degree of probability that Mr Hill poses the risk in question.
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Orders
In my opinion the following orders should be made:
1. Pursuant to s 9(1)(b) of the Crimes (High Risk Offenders) Act 2006, the application for an extended supervision order is dismissed.
2. Order the plaintiff to pay the defendant's costs of and incidental to these proceedings.
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Decision last updated: 05 July 2016