State of New South Wales v Hippett

Supreme Court of NSW|2016-10-10|Before: Schmidt J, Garling J

Judgment

Mr Hippett was in custody serving a sentence for an offence of aggravated break and enter and commit a serious indictable offence in breach of s 112 of the Crimes Act 1900 (NSW), which he had committed in March 2013 at Walgett in New South Wales, when 2016 Garling J made an interim continuing detention order against him under the Crimes (High Risk Offenders) Act 2006 (NSW) (see State of New South Wales v Hippett [2016] NSWSC 1180).
His Honour was satisfied on the evidence then led that "the Court at a final hearing would be justified in finding, to a high degree of probability, that Mr Hippett poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision or in detention" (at [85]).
The State now pursues final orders for Mr Hippett's extended supervision once released from custody. While Mr Hippett does not consent to the making of the orders sought, he did concede at the hearing that the evidence on which the State relied was capable of satisfying the onus which fell upon it under the High Risk Offenders Act, to establish the circumstances in which the Court is empowered to make such orders. The parties were also almost entirely agreed as to the conditions which should be imposed on Mr Hippett, in the event that the Court was satisfied that orders for his extended supervision should be made.
Mr Hippett's non-parole period expired on 20 March 2015, but he was refused release on parole. The term of his sentence expired on 20 September 2016. He is now a 21 year old Aboriginal man, with a history of serious sexual offending which explains the concessions that he made at the final hearing.
For the reasons which follow, I am well satisfied on the evidence then led that the orders which the State finally pressed by way of the further amended summons it filed at the hearing, must be made. That conclusion is inevitable, the evidence unarguably establishing as it does, to a high degree of probability that Mr Hippett poses an unacceptable risk of committing other serious sex offences, if he is not kept under the supervision proposed (see s 5B(2)).

The statutory scheme

It is s 5C of the High Risk Offenders which empowers the Court to make the orders sought. In exercising that power the objects of that Act specified in s 3 must be borne in mind. That section provides: "3 Objects of Act (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."
It is also not in issue that the evidence established that Mr Hippett is a "high risk sex offender", as defined in s 5B(2), which provides: "(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."
The meaning of the phrase "a high degree of probability" was considered in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [20] - [21]. It involves "something beyond more probably than not", so that the existence of the risk, that is the likelihood of Mr Hippett committing a further serious sex offence, has to be proved to a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt. I am well satisfied that the evidence which I will discuss meets that requirement.
The meaning of the phrase "an unacceptable risk" was considered in Lynn v State of New South Wales [2016] NSWCA 57. There it was observed at [51] that a determination of whether someone poses such a risk involves an evaluative task. That task must be undertaken in light of the provision made in s 5E(3), which provides that the 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." I am also well satisfied that the evidence establishes that Mr Hippett poses such an unacceptable risk.
A "serious sex offence" is defined in s 5(1) and an "offence of a sexual nature" in s 5(2). A "sex offender" is defined in s 4 to mean a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence. It is also common ground that Mr Hippett's record of offending brings him within these definitions.
An application for a high risk sex offender extended supervision order may be made only in respect of a "supervised sex offender", defined in s 5I to mean "a sex offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's current custody or supervision): (a) while serving a sentence of imprisonment: (i) for a serious sex offence, or (ii) for an offence of a sexual nature, or (iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or (b) pursuant to an existing extended supervision order or continuing detention order."
There is also no issue that Mr Hippett falls within this definition. When the proceedings were commenced he was still in custody serving his sentence. When the application for an extended supervision order was made at the final hearing, he was in custody pursuant to the interim detention order earlier made by Garling J.
The requirements for pursuit of an extended supervision order are those specified in s 6. There is also no issue that those requirements have been met in Mr Hippett's case, by the evidence on which the State's case rests, which addresses the requirements of s 9(3). I have had those requirements in mind, when considering that evidence. It included reports of psychiatrists and psychologists who have examined Mr Hippett, both recently and in the past. In the latest reports, experts have expressed opinions as to the likelihood of him committing further serious sex offences, as well as his criminal record and earlier sentencing remarks made by other judges. Section 9(3) provides: "(3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order)."
Under s 10(1A) an extended supervision order may not be made for a period exceeding 5 years from the day on which it commences. The term of the order finally pressed by the State was 3.5 years. The conditions which may be imposed under an extended supervision order include, but are not limited to, those specified in s 11. There is also no issue that the conditions sought by the State are conditions which the Court could impose on Mr Hippett, in its discretion, given the evidence.
Section 13 empowers the Court to vary or revoke an order it imposes, and s 12 makes it an offence for a person the subject of an extended supervision order to fail to comply with is requirements.

The evidence

Before Garling J, it was also not in issue that the offence for which Mr Hippett was then in custody serving his sentence was an offence of a "sexual nature" as defined in s 5(2) of the High Risk Offenders Act. Mr Hippett also then accepted that the evidence established the threshold matters which permitted the Court to make the interim detention order then sought by the State. In issue before Garling J was whether the evidence established that Mr Hippett "posed an unacceptable risk of committing a serious sex offence" (at [75]). On the final application this was no longer in issue.
Garling J concluded that an interim detention order had to be made on the evidence then led as to Mr Hippett's prior offending, given the views of experts who had earlier examined him; an April 2016 risk management report; and the evidence of the manager of the Extended Supervision Order team for Corrective Services NSW Ms McCarroll. Garling J conveniently described the evidence as to Mr Hippett's prior offending, which I adopt, as follows ([37] - [47]): "37 The initial offence, which was committed in September 2009, constituted a serious sex offence. Mr Hippett pleaded guilty before the District Court to an offence of non-consensual sexual intercourse in circumstances of aggravation contrary to the provisions of s 61J(1). At the time he committed this first offence, Mr Hippett was a juvenile. He was almost 15 at the time. The victim of the offence was at a party. Having consumed alcohol, she then went to a local licensed club, met up with her boyfriend and retired to her home, which was in Walgett. During the evening, Mr Hippett and three co-accused went to the victim's house and entered the victim's bedroom where she was sleeping. The four co-offenders illuminated the room with cigarette lighters and then, whilst filming the events, inserted an object into the victim's vagina. The victim was completely unaware of what had occurred until she saw the video later that morning. 38 Mr Hippett pleaded guilty before the District Court and came up for sentencing before G D Woods QC A-DCJ. His Honour concluded that the events in question amounted to: "… a rather immature, spur of the moment, voyeuristic activity [carried out] by some immature young men in an extended family setting. I consider that the incident comes towards the low range of objective seriousness". 39 His Honour imposed a term of imprisonment of 17 months, which he then suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 for a 17 month period. Mr Hippett was directed to accept the supervision of Juvenile Justice. 40 At the time he sentenced the offender, the sentencing Judge took into account an offence on a Form 1. That offence occurred in September 2011, again in Walgett, and constituted an offence against s 112(1) of the Crimes Act, namely entering the dwelling of the victim with intent to commit a serious indictable offence therein, namely, to indecently assault the victim and then break out of the dwelling. 41 The facts of this offence are remarkably similar to the index offence. In this case, in the early hours of the morning in a house in Walgett, Mr Hippett broke into the house and entered a bedroom in which a female and her 4 year old daughter were sleeping. He lifted the doona covering the female. This woke up the adult female, who yelled at him, and he left the bedroom and the house. In an interview with police, Mr Hippett said that he was drunk at the time, and that he knew the family. 42 In December 2011, Mr Hippett, whilst still a juvenile, was convicted of offences of assaulting police, behaving in an offensive manner and criminal damage to property in the early hours of the morning. The reason that Mr Hippett came to the attention of the police on this occasion was that they had been called to a house in the early hours of the morning where it was alleged that Mr Hippett had indecently assaulted a female. However, the material provided to police was not sufficient to enable them to proceed with a charge relating to the indecent assault. With respect to the offences of assaulting police, he was sentenced to concurrent control orders for a period of 6 months commencing on 2 June 2012 and expiring on 1 December 2012; with respect to the criminal damage to property and behaving in an offensive manner, Mr Hippett was sentenced to a 12 month good behaviour bond. 43 The State submitted that there are two other matters which, although they do not constitute prior offending, are matters to which the Court would be entitled to have regard to pursuant to s 17(4)(i) of the HRO Act. 44 The first is a series of facts surrounding a charge brought against Mr Hippett alleging that on 14 March 2010, he committed an offence of aggravated break and enter and commit a serious indictable offence contrary to s 112 of the Crimes Act in circumstances where he broke into a house in Walgett, entered the bedroom of a 14 year old girl and, whilst holding a mobile phone as a light source, asked the girl to have sex with him. His request was rejected. The young girl called out to her father and Mr Hippett left the house. 45 There is no material before the Court to indicate why that matter was dismissed by the Local Court at the conclusion of the hearing. Certainly, Mr Hippett was not convicted of the offence. 46 The police also provided records that Mr Hippett is suspected of committing a similar offence on 26 September 2012 at Walgett. It was said that in the early hours of the morning he broke into his niece's house and entered her bedroom, placed his hand under her sheets and asked her for sexual intercourse. She refused and told him to leave. He attempted to put his hands into her pants. She pushed him away and told him to leave, whereupon he did. 47 Although she was spoken to by authorities, and in so doing had disclosed the facts of this offence, the victim stated that she did not wish to pursue the matter and, accordingly, the authorities did not bring any charge against Mr Hippett.
Garling J considered that a Court hearing a final application would be entitled to take all of these matters into account (at [48]). There was no suggestion that his Honour was in error. I take a similar view.
On final hearing the State also relied on the September 2016 reports of the psychiatrist Dr Martin and the psychologist Mr Sheehan. Dr Martin was not required for cross examination, but Mr Sheehan was. Both had interviewed Mr Hippett, who was then participating in custody in a group program aimed at treatment of his sex offending. Records as to that participation were also in evidence. He had also received drug and alcohol counselling in custody.
Mr Hippett gave Dr Martin a history of considerable deprivation: an absent father; a neglectful mother who suffered alcohol and cannabis problems; being taken into the care of his aunties from age 8; disrupted education, with behavioural problems, truancy and expulsion from schools at Walgett and Mt Druitt, during a period when he described himself as a "wannabe gangster"; as well as arrest at age 13 or 14 for sexual assault in a group of which he was the youngest and about which he claimed innocence, despite conviction.
Mr Hippett told Dr Martin that he was willing to engage with the then proposed conditions of extended supervision, although he explained difficulties with writing down details of his movements, because of problems with writing. Dr Martin considered that Mr Hippett displayed partial, but fairly limited, insight into his behaviour and tended to minimise and externalise responsibility for his previous offending.
Dr Martin also received a history of Mr Hippett's problematic and chronic use of cannabis and alcohol; intoxication on a daily basis associated with anti-social behaviour going back to childhood; and repeated sexual offending.
Dr Martin concluded that Mr Hippett was at high risk of future sexual offending, with his exact risk dependent on factors such as his prior record of sexual offending against sleeping women; his significant minimisation and denial of responsibility for that offending, including earlier this year speaking in derogatory terms about women in Walgett; his significant problems with alcohol and cannabis, as well as paraphilia; as well as past violent conduct, albeit not while in custody. Dr Martin identified that Mr Hippett had problems with social adjustment, employment and non-sexual criminality, as well as displaying problems with planning, failure to complete the sex offending program in custody, as well as earlier breaches of bail.
Dr Martin considered, however, that rigorous proposed conditions then proposed by the State, particularly in relation to drug and alcohol use, accommodation and reporting would significantly reduce Mr Hippett's risk of re-offending, given his pattern of earlier offending at night against sleeping females at Walgett.
Dr Martin also considered that Mr Hippett's problems would likely be longstanding and for the foreseeable future, given his history. In his view he would require supervision for at least 5 years.
Dr Martin did not, however, consider that completion of the sex offenders program in custody would materially reduce Mr Hippett's risk of reoffending in the community. Effective controls of ensuring his abstinence from substance use, appropriate accommodation and monitoring of curfews were in his view likely to be the most effective management strategies for Mr Hippett. He also did not consider anti libidinal medication to be required in his case.
Mr Sheehan considered that without the conditions imposed on Mr Sheehan by the proposed order that it was: "highly likely that he would return to a manner of living in the community that would maximise his vulnerability to further sexual offending. In my view, due to the idiosyncratic nature of his sexual offending (breaking into homes late at night whist intoxicated in Walgett, seeking sex), this would suggest that the risk of reoffending could be effectively contained by enforcing alcohol abstinence and evening curfew in a location that is not Walgett. This would suggest to me that community based supervision would be adequate to have an appreciable impact in reducing risk of a serious sexual offence."
Mr Sheehan considered that simplicity of conditions would be important in engaging Mr Hippett's compliance with the proposed supervision order, as well as the structuring of conditions to those directly relevant to his risk of reoffending. He also considered that Mr Hippett would benefit from clear and transparent understanding of what he needed to achieve, so that further orders would not be sought, with a supervision order of 4 to 5 years being realistic, in his view, to stabilise him into community life. He also considered a considerable benefit of an order for a period of less than 5 years, to obtain his commitment to compliance.
These conclusions rested on what was described to have emerged from Mr Sheehan's interview with Mr Hippett, who he said presented as an unreliable historian, with a tendency to fixate on perceived injustices and to attribute those around him with a malevolent agenda.
Mr Hippett's account of his childhood differed to that given to Mr Martin in various respects, but he also described himself as having then been uncontrollable and having grown up in a social environment where violence, unemployment and alcoholism were common. He also recounted having experienced bullying at primary school at Walgett, which ceased when he fractured his tormentor's jaw.
Mr Hippett also gave Mr Sheehan an account of disrupted schooling; expulsion in year 10 after a similar history to that given to Dr Martin; as well as problems with literacy and numeracy. Mr Hippett said that he had not cooperated with attempts to enrol him at TAFE, or to coordinate employment assistance with Mission Australia. He had a resulting negligible history of paid employment and had never obtained a driver's license. He did express a desire to live and work in Dubbo and to live a stable life there, taking up an offer of employment available there with a cousin, which Mr Sheehan described, however, not to have been a solid plan.
Mr Hippett also gave a history of having had 182 sexual partners since becoming sexually active at 13 and sexual activity consistent with a very high sex drive. Dr Sheehan raised the possibility of wild exaggeration. Mr Hippett also gave inconsistent accounts of his custodial record, on the one hand spending much of his life from age 13 in custody and on the other, having spent no more than 3 years in juvenile detention.
Mr Hippett does not have a record of violence in custody, but has had poor engagement with parole services, as well as avoidance of treatment programs to address his offending behaviours. Mr Sheehan noted that he had also denied all prior sex offending other than his most recent offence, which he said may or may not have occurred, due to alcohol-related amnesia.
Mr Sheehan also found that Mr Hippett had poor insight, a hostile attitude to supervision and a highly problematic and spurious view that he "would be OK", if he stuck to beer and avoided spirits. Mr Sheehan considered this belief would expose Mr Hippett to high risk scenarios in future.
Mr Hippett told Mr Sheehan that he had been seeing a sex offenders' programs counsellor while subject to juvenile justice supervision, as part of bail conditions imposed in August 2012, but ceased attending in February 2013, a matter of weeks before his most recent sexual offence. He forcefully declined offers of referral to treatment in custody in December 2014 and April 2015, only consenting in February 2016, when told about this application. He also spoke harshly of the program in which he was later enrolled, hating his therapist and considering the program to be "all bullshit". Mr Sheehan noted however, that he had attended every session once he began the program and was recorded as becoming a vocal and attentive participant. Still, Mr Hippett denied having any treatment needs. He also threatened to terminate participation if subjected to a continuing detention order.
Mr Hippett also told Mr Sheehan that he would only accept a 3.5 year supervision order and would only commit to residence at Campbelltown Integration Support Centre, where he would be generally compliant with conditions imposed on him and that while he accepted that he could not live at Walgett, that if he needed to return for a funeral he would do so, even if that was not approved.
Mr Hippett's poor literacy, substandard verbal communication skills and general living skills were found to be consistent with a mild intellectual disability. Mr Sheehan also considered it likely that he had an antisocial personality disorder, but not a paraphilic disorder.
Mr Sheehan also noted a history of serious substance abuse directly related to Mr Hippett's sexual offending, which continued from age 13. Mr Hippett recounted becoming sexually aroused when intoxicated and in the company of females, although he claimed to have developed a high tolerance to alcohol. At times he described having used cannabis and alcohol every day, although he only described one episode of alcoholic blackout. Mr Sheehan concluded that he met the criteria for Alcohol Use Disorder (moderate in extended remission in controlled environment).
Mr Sheehan also discussed the limitations of risk assessment, but noted that on the actuarial Static 99R risk assessment, Mr Hippett scored in the high risk category of sexual re-offending compared to other male sexual offenders. Mr Sheehan discussed Mr Hippett's problems with psychological adjustment, social adjustment, manageability and contextual and environmental aspects of the risks which he poses, including without the support which he would receive from conditions imposed in a supervision order. He observed: "Mr Hippett's sexual offending would appear to have been influenced by: his Antisocial personality characteristic (impulsivity, poor consequential thinking, absence of constructive organised activity), intellectual disability (reducing his ability to accurately appraise his situation), feelings of boredom and disaffection, sexual hyperarousal (feeling high levels of sexual arousal as well as sexual urges as a means of placating negative mood states), poor attitudes towards women (objectification, labelling as "sluts") and Substance Use Disorder (further impairing his cognitive processes, increasing sexual arousal, and creating myopic focus on having needs met), as well as chaotic or disordered social environments (where there is aggression, disinhibition, and intoxication)."
Mr Sheehan considered the proposed conditions to be adequate to manage the risks which Mr Hippett posed, with the caveat that how he might respond to such strict supervision remained unknown. He considered that such conditions were most effective when strictly limited to the features of the specific risk profile which an offender poses. He said: "Unnecessary inclusions weaken effective management by confusing the issues and forcing managing staff to monitor aspects of the individual's activities that are not germane to risk. In addition, given Mr Hippett's poor literacy and borderline intellectual functioning, his ability to comply with any schedule of conditions is enhanced should the list of conditions be shortened or simplified."
The conditions which Mr Sheehan had reservations about were identified in his report and explored with him in cross-examination. These views no doubt led to the earlier discussions between the parties, which achieved a measure of agreement, both as to the term of the order and the other conditions to be imposed on Mr Hippett.
Also in evidence was an affidavit of Mr Devoy, the Unit leader of the Department's extended supervision order team, who outlined the accommodation options available to Mr Hippett, if released from custody, as well as the proposals for electronic monitoring, which Ms Kaye, the supervising officer who would be assigned to Mr Hippett and the author of a risk management report in evidence, had explained to him. The support available to Mr Hippett from the New Horizon Tribal Dreaming Program, which provides culturally appropriate support for indigenous offenders such as Mr Hippett in a range of identified areas, was also explained by Mr Devoy. He was also cross-examined as to how some of the proposed conditions would operate in practice.
Affidavits of Ms McCarroll, the manager of the extended supervision order team were also tendered, but she was not required for cross-examination. She explained in her affidavit the formulation of a case management plan for Mr Hippett; how it would be implemented and monitored; how his compliance with the proposed conditions of supervision would be monitored; and how they would develop, in consultation with others such as forensic psychology services. It is unnecessary to outline what was there said in detail, there being no issue between the parties as to the matters Ms McCarroll there explained.
Other documents in evidence include another Risk Management report, which found in November 2014 that Mr Hippett fell into the high risk level for general re-offending and for sexual offending.
Annexed to the affidavit OF Ms Pendlebury, a solicitor in the employ of the Crown Solicitor's Office, were other relevant documents, including as to Mr Hippett's criminal history, Mr Ardasinski's March 2016 Risk assessment report; Ms Kaye's March 2016 risk management report; Lerve J's sentencing remarks in April 2013; as well as records in relation to Mr Hippett's earlier offending, including Woods J's sentencing remarks for his offence of sexual intercourse without consent in circumstances of aggravation to which Mr Hippett had entered a plea of guilty; as well as other offending in 2011; 2010 allegations in relation to other alleged offending which did not lead to conviction; parole records, pre-release reports and Mr Hippett's bail history. It is unnecessary to further outline that extensive material.

The parties' cases

The State's case was that the evidence as to Mr Hippett's pattern of prior sexual offending, namely engaging in sexual conduct towards females after breaking into their homes at night, or otherwise entering the home unauthorised, supported the forming of the statutory opinions and the making of the final supervision order on the conditions sought.
Mr Hippett did not dispute that it was open to the Court to be satisfied to a high degree of probability, on that evidence, that he was a high risk offender who posed an unacceptable risk of committing a serious sex offence as defined, if not kept under supervision.
On the evidence I have discussed, the concession was properly made.
When the hearing commenced, all conditions were agreed, other than conditions 6 and 28. Condition 6 provided: "If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start"
Agreement on the terms of this condition was reached during the course of the hearing by the addition of the words "the plan may be provided verbally". That reflected the evidence as to Mr Hippett's difficulties with literacy and numeracy and the assistance available to him from his supervising officer and the New Horizon Tribal Dreaming Program.
Condition 28 provided: "lf the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history."
Mr Hippett submitted that such a highly invasive condition should not be imposed upon him, despite the evidence of Mr Sheehan and Mr Devoy and that any dispute between he and his DSO over disclosure of his record would be the subject of condition 3, which provides that "[t]he defendant must follow all reasonable directions by his DSO or any other person supervising him". That was not accepted by the State.
Both Mr Sheehan and Mr Devoy, who led the team who would be responsible for his supervision, had been called for cross examination.
Mr Sheehan considered that Mr Hippett's risks would largely be managed by the conditions which dealt with curfew and drug and alcohol abstention, accepting however, that it was important for his DSO to know who he was associating with and the relationships he might form, given the nature of his record. He also considered that disclosure of Mr Hippett's record was best left to be dealt with as a treatment matter. He had offended against females on the periphery of his past social life, although there were allegations of such offending against an adolescent niece, which Mr Sheehan agreed had to be considered, but he thought given less weight than the offences of which Mr Hippett had been convicted. Still, Mr Sheehan considered that disclosure of his record of sexual offending to others should come from Mr Hippett, not a DSO.
Mr Devoy had not read Mr Sheehan's report and given his role, could not express an opinion as to the appropriateness of a condition of the kind for which the State pressed. His role was to implement the conditions which the Court imposed.
In final submissions the State accepted that the drafting of the condition was deficient. It was intended to be written in simple English, so that Mr Hippett could understand it. It accepted that it did not make clear what a DSO who considered it necessary to tell someone who had entered a relationship with Mr Hippett about his record, was entitled to do. The condition it finally pressed was: "If the defendant starts a relationship with someone, he has to tell his DSO who, if following discussion between the DSO and the defendant, the defendant refuses to disclose his criminal history to that person, the DSO is permitted to do so."
While not accepting that there should be such a condition imposed upon him, Mr Hippett finally submitted that if it was to be imposed, it should provide: "If the defendant starts a relationship with someone, he has to tell his DSO. If, following discussion between the DSO, the defendant unreasonably refuses to disclose his criminal history, the DSO is permitted to do so ".
The State accepted that wording.

A supervision order must be made

As I have explained, it was finally accepted by Mr Hippett that the evidence was such that the Court could conclude that the statutory requirements I have discussed were satisfied and that an extended supervision order should be made. The concession was properly made.
I am satisfied that Mr Hippett does pose an unacceptable risk of committing a serious sex offence if he is not kept under supervision and that accordingly, an extended supervision order on the conditions which the State finally pressed must be made
Given the nature of Mr Hippett's criminal record, when considered in light of the evidence as to what he has told those who have recently examined him and the views those experts have formed, both as to the risk which he poses and the need for his supervision under conditions of the kind for which the State finally contended, consistently with those who have earlier examined him, as to the high risk of further offending which he poses, I am well satisfied that no other conclusion is open.

The length of Mr Hippett's supervision

The State initially sought a supervision order of 5 years. Mr Hippett later contended for an order of 3.5 years, so as to enhance his prospects of compliance with the order, by giving him a goal to work towards, for reasons discussed in Mr Sheehan's report. That approach was finally accepted by the State.
It is common ground that if an order is made for less than the maximum statutory term, it will be open to the State to approach the Court to extend the term of the order, if it emerges that Mr Hippett requires continuing supervision beyond the term of the initial order.
It is in the light of that aspect of the statutory regime that I have concluded that the order should be made for the agreed term. What Mr Hippett told Mr Sheehan as to his likely compliance with the conditions of any order imposed upon him, when considered together with views he has relatively recently expressed about females at Walgett, suggests that there is a real risk that he will breach the terms of the Court's order. The evidence also suggests that unless he alters his attitude significantly, he will either be returned to custody following breach of the order, or he will require supervision for a period beyond 3.5 years. Both presently appear to be real possibilities.
Whether they materialise lies entirely in Mr Hippett's own hands. The period of the order, one he himself has advocated for, gives him a real incentive to comply with its terms, so that neither of these adverse possibilities eventuate.
On balance I have been convinced by the views expressed by Mr Sheehan and the State's acceptance of them, that an order for supervision of 3.5 years should be made, in order to give Mr Hippett both an opportunity and real encouragement to comply with the terms of the order he himself finally advocated for.

The conditions of Mr Hippett's supervision

As I have indicated, apart from condition 28, the conditions were finally agreed and, I am satisfied on the evidence, are appropriate to impose on Mr Hippett. As to condition 28, I am also well satisfied that the condition as finally pressed by the State must be imposed upon him.
Mr Sheehan considered that informing any female with whom Mr Hippett might in future form a relationship about his criminal record was something which should occur, but that its timing ought to be managed as a clinical matter between Mr Hippett and his treating psychologist, his offending risk being managed by other conditions imposed upon him.
Despite Mr Sheehan's view, I consider that on Mr Hippett's record of sexual offending the disputed condition must be imposed upon him. That offending has been committed against females known to him, at night, when he breaks into their homes while they are asleep, even, it has been alleged against an adolescent niece. When that history is considered in light of the evidence of views he has recently expressed about his compliance with conditions of his proposed supervision, that circumstances might well arise which would have to be managed by his supervising officer, in respect of a female with whom he has entered into a relationship being told about his record, even over his objections, must be accepted.
On his history, Mr Hippett may well misjudge steps which are necessary for him to take, if he is to avoid relapse into serious sexual offending. In the event that after his release he unreasonably opposes his record being revealed to a female with whom he enters a relationship, for example one who is residing with other females, the need may realistically arise for a DSO to make the disclosure which condition 28 contemplates. Mr Hippett will avoid that, of course, if he makes the disclosure himself.
I have been considerably influenced in reaching this conclusion by the objects specified in s 3 of the Act, which include ensuring the safety and protection of the community. I am satisfied that this condition is necessary, if that statutory objective is borne in mind, as it must be, when the Court exercises its statutory discretions.

Orders

For those reasons, I make the following order in the terms sought in the final amended summons, as amended at the hearing: I order pursuant to ss 5C(1), 9(1)(a) and 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 ("the Act"), that the defendant be subject to a high risk sex offender extended supervision order for a period of 3.5 years from the date of the order, and pursuant to s 11 of the Act direct that the defendant comply with the conditions set out below. CONDITIONS PART A: Reporting and Monitoring Obligations Monitoring and Reporting
The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.
The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
The defendant must follow all reasonable directions by his DSO or any other person supervising him.
The defendant must attend either the police station nearest to his approved accommodation or the office at which the ESQ Investigation Team within 3 days of the date of this order and provide a copy of this order. Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements
If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start, the plan may be provided verbally.
If the defendant wants change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period
The defendant must not deviate from his approved schedule of movements except in an emergency.
The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. Part B: Accommodation
The defendant must live at an address approved by his DSO.
The defendant must be at his approved address between 6:00pm and 6:00am unless other arrangements are approved by his DSO.
The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
The defendant must not spend the night anywhere other than his approved address without the approval of his DSO.
The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO. Part C: Place and travel restrictions
The defendant must not leave New South Wales without the approval of CSNSW.
The defendant must surrender any passports held by the defendant to the Commissioner.
The defendant must not go to a place if his DSO tells him he cannot go there. Part D: Employment, finance and education
If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself make best endeavours to engage in available for employment, education, training or personal development program as directed recommended by the DSO.
The defendant must not start any job, volunteer work or educational course without the approval prior notification ofto his DSO.
The defendant must provide any information relation to his financial affairs, including income and expenditure, if directed by his DSO. Part E: Drugs and alcohol
1. The defendant must not possess or use illegal drugs and he must not possess or use prescription medication other than as prescribed.
1. The defendant must not consume alcohol unless approved by his DSO.
1. The defendant must submit to testing for drugs and alcohol as directed by his DSO.
1. The defendant must not enter any licensed premises without the approval of his DSO.
1. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO. Part F: Non-association Association with Children
1. The defendant must not approach or have contact with anyone who he knows is under 18 unless it has been approved by his DSO in writing. his DSO tells him he can, and he is with someone who has been approved in writing by his DSO. Associations with Others (not children)
1. The defendant must not associate with people that his DSO tells him not to.
1. The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol. The defendant must not engage the services of sex workers.
1. If the defendant starts a relationship with someone, he has to tell his DSO. If following discussion between the DSO and the defendant, the defendant refuses to disclose his criminal history to that person, the DSO is permitted to do so. lf the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.
The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile-based-social networking service Part I: Access to the internet and other electronic communication
1. The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.
1. The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.
1. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.
1. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
1. The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately. Part J: Search and seizure
1. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person.
1. For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched.
1. During a search carried out pursuant to condition [375] above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.
1. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
1. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions [375] to [4038] above. Part K: Access to pornographic, violent and classified material
1. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification or any other material as directed by the DSO. Part L: Personal details and appearance
1. The defendant must not change his name from Douglas Mark HIPPETT or use any other name without the approval of his DSO.
1. The defendant must not use any alias, log-in name, or a name other than Douglas Mark HIPPETT or use any email address other than those known to the DSO under condition 331 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.
1. The defendant must not change his appearance without the approval prior notification to of his DSO.
1. The defendant must let CSNSW photograph him.
1. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Part M: Medical intervention and treatment
1. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
1. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.
The defendant must take all medications that are prescribed to him by his healthcare practitioners.
If the defendant knowingly ceases to take medication that has been prescribed; either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.
1. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.
1. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 October 2016

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)