State of New South Wales v Howard

Supreme Court of NSW|2015-11-06|Before: Hall J, Button J, Mr P

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid of New South Wales (Defendant) File Number(s): 2015/224604

Judgment

The plaintiff, the State of New South Wales, commenced proceedings by way of Summons filed on 31 July 2015 in which a number of orders were sought pursuant to the Crimes (High Risk Offenders) Act 2006 ("the Act"). The Summons was subsequently amended and leave was granted to the plaintiff to proceed upon the Amended Summons dated 5 November 2015. The Amended Summons contained proposed conditions in respect of any order made pursuant to s 5C and s 9(1)(a) of the Act.
On 24 August 2015 this Court (Button J) made a number of orders including an Interim Supervision Order pursuant to s 10A of the Act.
A final hearing of the proceedings on the Amended Summons was held on 6 November 2015 on which occasion Mr T Hammond of counsel appeared on behalf of the plaintiff, and Mr P Coady of counsel appeared on behalf of the defendant.
In the Amended Summons the following orders were sought by the plaintiff: 3. An order: a. Pursuant to s 5C and s 9(1)(a) of the Act that the defendant be subject to a High Risk Sex Offender Extended Supervision Order ("the Extended Supervision Order") for a period of 5 years from the date of the order; and b. 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 Schedule A to this Summons. 4. An order permitting any reports prepared for the purposes of Order 1 to be provided to Corrective Services NSW, any agency involved in the defendant's supervision, and the defendant's treating clinician(s) or health care practitioner(s) involved in the supervision of, or the psychological and/or psychiatric care and assessment of the defendant.

Evidence in Support of the Amended Summons

The plaintiff relied upon the following affidavits: Affidavit of Jessica Wardle sworn 31 July 2015 exhibiting "JW-1" (one folder of material); Affidavit of Jessica Wardle sworn 13 August 2015; Affidavit of Jessica Wardle sworn 18 August 2015; Affidavit of Paul Yeomans affirmed 30 September 2015; Affidavit of Sally Shrubb affirmed 15 October 2015; Affidavit of Joyleen Nowrot affirmed 16 October 2015; Affidavit of Danielle Matsuo affirmed 16 October 2015; Affidavit of Myles Pulsford, 4 November 2015.
The plaintiff also relied upon the reports of two independent psychiatrists who had been appointed for the purposes of the proceedings. They were: Psychiatric Report of Dr Andrew Ellis dated 28 September 2015; and Psychiatric Report of Dr Jeremy O'Dea dated 6 October 2015.

Background

The defendant ("the offender") is presently 62 years of age. He has a prolonged history of sexual offending against a broad range of female victims. He has been convicted of sexual offences on five separate occasions. The victims of the first three convictions were adult women and strangers to the offender. The victims of the fourth conviction were four or five year-old girls. The last victim was a four year-old girl whose family the offender had befriended.
In respect of the latter offence, the offender was sentenced on 20 September 2007 by the Newcastle District Court for a total term of imprisonment of 9 years, with a non-parole period of 8 years to expire on 7 October 2014. His total sentence expired on 7 October 2015.
The offender's criminal history is set out in a table, a copy of which is Annexure A to the affidavit of Ms Wardle affirmed on 31 July 2015. The history of offences was summarised in the plaintiff's written submissions as follows: "2.1 The offender is a 62 year old man with a prolonged history of sexual offending against a broad range of female victims. His first sexual offence was in 1978 when he was charged with indecently assaulting a stranger on a public street whilst he was drunk. He was 25 years old. 2.2 Later in 1978, whilst on a 2 year recognizance for the first offence, he raped a woman in her car at knifepoint. She was an older woman and a stranger to him. He was sentenced to 13 years imprisonment without a non-parole period and this was later varied to provide for a head sentence of 9 years with a 4 year non-parole period. 2.3 In 1982, whilst on parole for the second offence, the offender and an accomplice forcibly kidnapped a partially-blind 17 year old girl off the street and detained her whilst repeatedly sexually assaulting her. For the crimes of abduction and sexual assault he was convicted and sentenced to 10 years and 7 years respectively, with a non-parole period of 5 years. 2.4 In 1989, the offender approached and indecently assaulted 2 young girls whilst they played with a third child. He was sentenced to 18 months periodic detention and placed on a 5 year good behaviour bond with supervision. 2.5 The index offences were committed in 2007 against a 4 year old girl. The offender's phone was found to contain numerous images of a young child in sexually explicit poses with the offender's genitalia. This included the child having his penis in her mouth and he performing cunnilingus on her. He was convicted of 15 counts of possessing child pornography, 11 counts of aggravated indecent assault and 2 counts of sexual intercourse with a child under 10. He received a term of imprisonment for 9 years with 8 years non-parole period."

The Legislative Framework

Section 3(1) of the Act states its primary object 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. Section 3(2) of the Act states that a further object of the Act is to encourage serious sex offenders to undertake rehabilitation. In that sense the legislative purpose is protective and not punitive: Attorney General for New South Wales v Gallagher [2006] NSWSC 340.
In an application for an Extended Supervision Order ("ESO") there are a number of threshold requirements specified in the Act which must be met. As discussed below, no issue arises in the present proceedings as the offender has conceded that all of the requirements have been satisfied. Be that as it may it is necessary to outline the statutory requirements for an application such as the present.
The State of New South Wales may make an application for an extended supervision order only in respect of a person who is a "supervised sex offender": s 5I(1).
The expression "supervised sex offender" is defined as: ● A sex offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for a serious sex offence, or an offence of a sexual nature, or serving a concurrent or consecutive sentence with a sentence of this type (s 5I(2)(a)); or ● A sex offender who, when the application for the order is made, is subject to an existing ESO or CDO (s 5I(2)(b)); and ● Where there is no more than six months before the expiration of the offender's total sentence of supervision (s 6(2)). (Plaintiff's Written Submissions at [4.5])
The plaintiff falls within the expression "sex offender" in that he is over the specified age (18 years) and has been sentenced to a period of imprisonment following his conviction of a serious sex offence: s 4.
The expression "serious sex offence" is defined in s 5. It includes an offence under Division 10 of Part 3 of the Crimes Act 1900, where, in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more and the offence has been committed with intent to commit an offence under Division 10 of Part 3 of the Act.
A serious sex offence also includes an offence under s 61K and s 66EA of the Crimes Act as well as under other specified sections of the Crimes Act where an offence is stated as punishable by imprisonment for 7 years or more.
It was submitted for the plaintiff that the Court would be satisfied that the offender is a "supervised sex offender" within the meaning of the Act and that he is therefore an offender in relation to whom the plaintiff may make an application for an ESO: Plaintiff's Written Submissions at [14.1].
It was further submitted that the Court would be satisfied that the evidence justifies a finding that the offender poses an unacceptable risk over the next five years of committing a serious sexual offence if he is not kept under supervision and thus has the power to make an ESO: Plaintiff's Written Submissions at [14.2].
It was further submitted for the plaintiff that the Court ought to grant the relief sought in the Summons, namely an ESO for a period of five years and that the defendant be directed to comply with the conditions sought by the plaintiff in the Amended Summons. It was further submitted that the Court would be satisfied that relief in the terms sought by the plaintiff should be granted: Plaintiff's Written Submissions at [14.3].
The Defendant's Outline of Submissions conveniently identifies the matters that the offender does not dispute, and those in issue. As to the latter, the principal matters contested by the offender are: 1. The period of the ESO sought by the plaintiff. 2. Specific conditions sought by the plaintiff for the purposes of such order (conditions 21, 23, 24, 27, and 36). In this regard I note that as at the hearing on 6 November 2015 only three conditions were contested by the offender, being conditions 21, 23 and 35 in the Schedule to the Amended Summons. 3. Order 4 as sought in the Summons (extracted above).
Part 1A of the Act, Supervision and detention of high risk offenders, contains provisions empowering the Court to make the orders sought in the present case. Section 5C is in the following terms: (1) The Supreme Court may, on application under this Act, make an order for the supervision of an offender if the offender is a high risk sex offender. (2) An order made under this section is an extended supervision order. (3) An extended supervision order made under this section may also be referred to as a high risk sex offender extended supervision order.
The provisions of Part 2, Division 2, Determination of application, are central to the present application. By s 9(1) the Supreme Court may determine an application for an ESO either by making an ESO or dismissing the application.
Section 9(3) importantly identifies a range of matters that the Court is required to take into account. That provision is in the following terms: 9(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). (4) In this section, a relevant offence means: (a) in the case of an application for a high risk sex offender extended supervision order - a serious sex offence, or (b) …
Section 10 of the Act, Term of extended supervision order, states that an ESO commences when it is made or when the offender's custody or supervision expires, whichever is the later: s 10(1).
Section 10(1A) provides: An extended supervision order expires at the end of: (a) such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended.
Part 2, Division 4 of the Act empowers the Court to specify conditions of an interim or final ESO: 11 Conditions that may be imposed on supervision order An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender: (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name, or (k) to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender's residential address, or (l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or (m) to comply with specified requirements in connection with the offender's access to and use of the internet, or (n) to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender.
Section 12 of the Act states that a person who fails to comply with the requirements of an ESO is guilty of an offence.
The Court is empowered to vary or revoke an ESO under the provisions of s 13 of the Act.

Disposition of the Proceedings

It is, of course, open to a defendant to adopt the position of identifying matters or issues that are not in dispute and those which are. In many cases that will be a convenient and proper course to follow.
It does not, however, follow that the Court in determining an application for an ESO is not itself required to be satisfied that the provisions of the Act have been met. To the contrary, it is necessary that the Court is independently satisfied that the threshold requirements for the making of an ESO have been satisfied before it undertakes the task of determining whether the power under the Act to make an ESO should be exercised in the particular case and if so, the conditions that are considered to be necessary and appropriate for the duration of the ESO.
The offender's position, as stated in the Defendant's Outline of Submissions was as follows: "1. SUMMARY OF POSITION 1.1 The defendant submits that the principal issue for determination will be the length and conditions of an Extended Supervision Order (ESO). 1.2 The defendant concedes the threshold issues that relate to the imposition of an ESO as contained in the Crimes (High Risk Offenders) Act 2006 No 7 (the Act), that is a) the defendant is a 'supervised sex offender' for the purposes of s 5I(2)(a) of the Act; b) the defendant meets the definition of a 'high risk sex offender' under s 5B; c) in the circumstances of this case, it is appropriate for the Court to exercise its discretion in favour of ordering the defendant be subject to an ESO under s 5C of the Act. 1.3 Accordingly, and in relation to the summons; a) the defendant consents to an ESO being made under Order 3a. in the summons, but submits the appropriate duration of the ESO is 3 years, rather than 5 years; and b) the defendant consents to the proposed conditions as set out in Scheduled A to the summons, except for proposed conditions 21, 23, 24, 27 and 36; c) the defendant does not consent to Order 4 in the summons."
Mr Coady in his written submissions noted the particular statutory provisions and applicable principles set out in [5.1]-[5.2] of the plaintiff's written submissions: Defendant's Outline of Submissions at [2.1].
However, Mr Coady emphasised that it must be remembered that the Act operates in the context of curtailing the defendant's liberty: Defendant's Outline of Submissions at [2.2]. In that case reliance was placed upon the principles of the common law which are protective of the right of freedom as enunciated in Fardon v Attorney-General (2004) 223 CLR 575 per Gleeson CJ at [14], and, in a different context, by the Court of Appeal in Nikolaidis v Satouris [2014] NSWCA 448 per Barrett JA at [33]-[42] (Beazley P and Ward JA agreeing).
The submission for the offender was: "2.3 The simplest reflection of the principles just described is that the orders sought should impose no greater derogation from the foundation right of freedom than is necessary to achieve the protective and rehabilitative objects of the legislation. See also the decision of the State of New South Wales v Donovan [2015] NSWSC 1254 per McCallum J (in the context of the Act) and Attorney-General v Maguire (No 2) [2014] NSWSC 288 per Garling J at [186] (in the context of Schedule 1 of the similarly expressed Mental Health (Forensic Provisions) Act 1990."
It was further submitted on behalf of the offender that relevant authority suggests that the "unacceptable risk" test should take account of the effect on the personal liberty of the defendant. Reference was made to the approach taken in the application of the "balancing test" in State of New South Wales v Anthony Joseph Russell [2015] NSWSC 488 and State of New South Wales v Hill [2015] NSWSC 489. In New South Wales v Kokkotas [2014] NSWSC 1624, it was noted that this Court (Button J) acknowledged that the Attorney-General and the defendant's representatives in that case adopted a joint position that the principles stated by Davies J in New South Wales v Richardson (No 2) [2011] NSWSC 276; (2011) 210 A Crim R 220, including the "balancing exercise" approach, were to be applied: Defendant's Outline of Submissions at [2.4].
In the written submissions for the plaintiff it was observed that to make a finding that the offender is a high risk offender, the Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if not kept under supervision: s 5B. If so satisfied, the Court may make an ESO for the supervision in the community of the offender: s 5C.
Attention was drawn to the provisions of s 5B and it was noted that s 5B(1) provides that an offender can only be made subject to an order "if and only if the offender is a high risk offender". Such a provision, it was submitted, emphasises the need for caution in the Court's approach to the making of an order.
It has been accepted that the test in s 5B(2) requires satisfaction to a "high degree of probability", this being a standard of proof that is higher than the civil standard, but lower than the criminal standard: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [14] per RA Hulme J citing Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27] and Cornwall v Attorney-General of New South Wales [2007] NSWCA 374 at [21].
As noted in the written submissions for the plaintiff at [5.5] the phrase "unacceptable risk" is not defined in the Act. Section 5B(3) provides that in determining that matter the Court is not required to decide that the risk of committing a serious sex offence is more likely than not if not kept under supervision. The prediction undertaken by the Court as to the risk posed is in relation to the period for which it can make an order, namely, a period of five years: Plaintiff's Written Submissions at [5.5].
In [5.6] of the plaintiff's written submissions reference was made to the observations in State of New South Wales v Darrego [2011] NSWSC 1449 by Fullerton J at [16]-[23].
It was also noted that in ordering that a defendant be subject to an ESO the words in s 9(2) of the Act are to be given their ordinary meaning in the context in which they appear in the Act with regard being given to the objects of the Act as observed by RA Hulme J in State of New South Wales v Thomas (Final) [2011] NSWSC 307.
It was submitted for the plaintiff in the present proceedings (at [5.20]) that the very scheme of the Act necessarily assumes that continuing detention orders and extended supervision orders will have onerous effects on the offender.
It was also noted for the plaintiff that s 5C of the Act provides for discretion in the Court as to whether or not an order should be made.
In relation to the power to impose conditions under s 11 of the Act it was submitted for the plaintiff that conditions may be imposed in accordance with that section which impose positive obligations as well as restrictions upon an offender, with reference made in that respect to the observations set out in Attorney-General for New South Wales v Tillman [2007] NSWCA 119.
Finally, the plaintiff in relation to the applicable principles in relation to the making of an ESO referred to the following test as stated in Wilde v State of New South Wales [2015] NSWCA 28 at [53], submitting that it was the correct approach: "Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order." (emphasis added)

The Evidence

The plaintiff relied upon the Risk Assessment Report of Narcisa Sutton, Senior Psychologist, dated 27 February 2015. The report is a lengthy and very detailed one based upon a wide range of material including information obtained from an interview and a review of the documentation identified on page 2 of the report.
Ms Sutton noted that the offender attended for interview on 20 February 2015. She observed that the offender's intelligence had been assessed to be within the normal range and there was no evidence of symptoms of agitation or mood disorder and that his thought processes appeared logical and coherent in both form and content: Risk Assessment Report at [6].
Ms Sutton observed that the offender had commenced the Custody Based Intensive Therapeutic (CUBIT) Sex Offender Program on 2 April 2014 and that his progress had been slow. In her view, she considered that his understanding of treatment concepts and principles appeared to be somewhat superficial: Risk Assessment Report at [48].
She noted that he was soon due to complete treatment and that his final report would provide more insightful and comprehensive information about his participation and treatment gains: Risk Assessment Report at [50].
Ms Sutton reported upon the actuarial assessment of static risk factors for the purposes of assessing the offender's risk of sexual re-offending. His total score on the STATIC-99R was 5. This placed him in the moderate-high risk category relative to other male sex offenders: Risk Assessment Report at [60]. It was noted that within the normative samples, the recidivism rates of the group of offender with the same score as the offender were between 11.4% and 25.2% over five years: Risk Assessment Report at [60].
Ms Sutton noted that the use of an instrument such as the STATIC-99R has limitations. Recidivism estimates and relative rankings provided by that measure are based on groups of individuals and therefore the estimate/rankings will not necessarily directly reflect the recidivism risk of an individual offender: Risk Assessment Report at [61].
The report considers the range of factors embraced in what is referred to as the Risk of Sexual Violence Protocol (RSVP). These include a total of 22 static and dynamic factors grouped into five different "domains": Risk Assessment Report at [63].
In the summary to the report the following conclusions are expressed: "Summary 73. Mr Howard presents with some risk factors in each of the domains covered by the RSVP. This suggests that the Moderate/High Risk score in the STATIC-99R is an accurate reflection of his risk of re‑offending. 74. Particularly salient dynamic risk factors include Mr Howard's sexual drive, his unsophisticated understanding of consent and sexual boundaries, and his unstructured, isolated lifestyle. Although he has made some gains in treatment in terms of accepting responsibility for the offences and understanding victim harm, he still appears to hold on to the idea that the offences would not have happened if he had not been sexually frustrated, if the child had not 'flashed' him, and if he had not had a camera to take photographs of the abuse."
In the Risk Assessment Report Ms Sutton also reviewed "potential risk scenarios". At [76] specific factors are identified which, if they materialised in the offender's case it was said would result in an acute high risk scenario for him.
The opinion was expressed that if the offender were to re-offend it would most likely be against a female child or young adolescent girl but that older vulnerable women, such as those with an intellectual disability, were also potential victims: Risk Assessment Report at [77].
As to the future, in the event of a supervision order being made, Ms Sutton stated that consideration should be given to a number of areas as set out in [83]-[92] of the report. These included his placement or residence, obligations to participate in the community based sex offender Maintenance Program (Forensic Psychology Services, Surry Hills) and monitoring in the context of his adjustment to life in the city. It was noted that participation in drug and alcohol counselling programmes may be advisable if the offender resorted to cannabis and alcohol. A condition should be imposed to ensure adherence to weekly schedules of movement that are submitted to the supervising officer.
In addition to these matters it was recommended that the need for intensive care management by a specialist team should be considered, with the team having ongoing access to psychologists and expertise in the treatment of sex offenders. This supervision needed to be intensive and targeted to the dynamic risk factors that have previously been identified.
It was noted that whilst supervision needs to be intense it was important that the style of supervision should promote the offender's autonomy by encouraging his input into the decision-making process whenever possible: Risk Assessment Report at [89].
The report also addressed the need for a condition as to electronic monitoring with exclusion zones in place around high-risk locations. It was stated in this respect: "91. The goal of these conditions would be to encourage the development and maintenance of a stable and sustainable lifestyle, so that new habits can be formed that might endure beyond supervision."
A copy of a Risk Management Report by Joyleen Nowrot, Community Corrections Officer, dated 7 April 2015 (Annexure D to Ms Wardle's affidavit affirmed 31 July 2015) was also relied upon by the plaintiff. The report was prepared to satisfy the requirements of s 9(3)(d)(i) and s 17(4)(d1) of the Act. It identified the sources of information which included the Risk Assessment Report referred to above and the judge's Remarks on Sentence dated 20 September 2007.
Ms Nowrot noted that at the time of interview the offender had been housed at the Nunyara Community Offender Support Program (COSP). It was noted that he has limited social support: Risk Management Report, p 3.
The relevant risk factors referred to in the Risk Assessment Report were noted and it was in light of these factors that a Risk Management Plan as outlined in the Report was undertaken.
The report identifies the various categories of risk to be managed and monitored and the nature and extent of risk management strategies as well as their limitations.
Amongst the many matters recommended for inclusion in the risk management strategy was the need for the offender to engage in sex offender maintenance sessions with Forensic Psychology Services with a view to minimising the risk of future offending and for the purposes of community reintegration: Risk Management Report at p 8.
It was also noted that the Risk Assessment Report prepared by Ms Sutton had stated that there was a need for the offender to be monitored in the context of his adjustment to life in the city and that participation in drug and alcohol counselling programs would be advisable. The Risk Management Report recommended that the offender would need to be subject to random drug and alcohol testing (p 9). Specific risks existing in the event of contact with children under 18 years of age were noted. As part of a management strategy, the need for a schedule of movements to be scrutinised by the Extended Supervision Order Team was recommended to ensure appropriate pro-social activities are planned in conjunction with appointments with required treatment providers. This would minimise the offender's contact with children (p 9). The report also noted that the offender should have no contact with children under the age of 18 unless being supervised by a responsible adult approved by Community Corrections.
The affidavit of Joyleen Nowrot affirmed 16 October 2015 contains details of her review of the relevant documentation concerning the offender as identified at [5] of her affidavit. She had been assigned (on 5 March 2015) the task of preparing the Risk Management Report preparatory to the application for the interim supervision order. The report stated that it was likely that the offender would resume receipt of the Disability Support Pension and that he had limited social supports. Accordingly, he would be encouraged to engage in pro-social support networks in the community.
A Treatment Report dated 20 July 2015 was prepared by Ms Marie Rubio, Psychologist, CUBIT, Metropolitan Special Programs Centre and Ms Megan Donaldson, Senior Psychologist, also of CUBIT, MSPC and was marked as Annexure B to Ms Wardle's affidavit affirmed 13 August 2015.
The Treatment Reports states that the offender participated in the CUBIT program between 2 April 2014 and 14 May 2015. It was noted that the program is a custody-based residential therapy program for men who have sexually abused adults and/or children. The program balances risk management with a strengths-based approach to treatment for individuals with moderate to high risks/needs (p 1).
The aim of the treatment program is to assist participants to develop skills, attitudes, values and resources identified as necessary to lead a fulfilling and offence-free life (pp 1-2).
The report provides a detailed account of treatment progress. It noted that during the course the defendant had gained an improved level of understanding of the issues surrounding his sexual offending from openly discussing his sexual beliefs (p 5).
Additionally, whilst he had initially demonstrated a poor understanding of the negative effects of sexual abuse on victims in general he came, through discussion, to show some remorse and his responses suggested that he recognised the seriousness of his offences (p 5).
In relation to the subject of risk assessment, the report refers to the static and dynamic actuarial risk factors and noted factors or signs that provided possible indications of the offender having difficulty with managing the identified risk factors (p 11).
In the conclusions and recommendations section of the report it was stated that, taking into account both static and dynamic risk factors, the risk rating of moderate/high on the STATIC-99R was considered as accurately reflecting the offender's current risk (p 13). It was there also stated: "… dynamic risk areas including sexual self-regulation, intimacy deficits and general self-regulation are ongoing areas of risk that require regular monitoring and management."
In relation to self-management plans it was noted that the offender accepted that he needs to be more mindful of his feelings, thoughts and actions and how they affect others and overall to improve his sexual self-control more effectively and consistently (p 13).
The report then stated at p 14: "… Mr Howard requires further work and ongoing emotional awareness to his sexual behaviours and attitudes; its effect on his thoughts and behaviours, and those of others. Therefore, he requires regular monitoring of his actual integration of his self-management plans into his day to day life to ensure he maintains a realistic view of his risk factors."
Finally, the report recommended that the offender participate in the Sex Offender Programs Community-Based Maintenance Program as has been noted and stated above.

(i) Report of Dr Andrew Ellis, Forensic Psychiatrist, 28 September 2015

Dr Ellis (like Dr O'Dea) undertook a detailed review of relevant documentary material which included information concerning the offender's past history of offending, his substance use and addiction history and his personal background and development and psycho-sexual history.
Both consultant psychiatrists also undertook an assessment based upon an interview with the offender.
In many respects the analysis and the conclusions made by Dr Ellis coincide with those undertaken and expressed by Dr O'Dea. The principal variance in their ultimate conclusions is the appropriate period or term for an ESO.
Dr Ellis concluded that: "The diagnosis of primary concern is paraphilic disorder (Paedophilia). He would meet criteria for a paedophilic disorder, attracted to girls. …" (p 10)
Dr Ellis noted that paedophilia is "… a chronic relapsing condition" (p 11). Dr Ellis noted that the offender's explanations for past offending were "devoid of motive" (p 11). He added "… the repeated nature of the assaults, despite parole supervision, indicates high risk taking" (p 11).
Dr Ellis noted various aspects of the offender's past personal history and concluded that various personality traits would meet a criteria for a diagnosis of "mixed personality disorder" (p 11).
He also identified that there was sufficient evidence to conclude that an alcohol use disorder had existed but was in remission in the controlled environment of prison (p 11).
On the question of the risk of further sexual offending, Dr Ellis noted the various actuarial measures that had been applied and concluded: "I would concur with the most recent total score provided in the report of Ms Sutton." (p 12)
Dr Ellis further observed: "Deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence. Mr Howard's offence history indicates this pattern of arousal for his most recent offences with repeated sexual advances or actions towards minors. Offending continued in a repeated pattern …" (p 13)
Dr Ellis noted that the offender had participated in a group sex offender treatment program and participants who complete such programs are in the group that demonstrate lower rates of recidivism (p 13).
Dr Ellis reviewed proposals for a treatment and supervision plan and conditions and obligations arising under such plans. He considered that the usual conditions as identified at p 15 of his report were supported in order to manage the risk factors present.
Dr Ellis concluded at p 16: "From a psychiatric perspective if an ESO is applied a period of three years is considered reasonable in order to improve function in the community, and refine the appraisal of risk. Paraphilias are chronic relapsing conditions and resistant to treatment and rehabilitative efforts. His comorbid personality style impacts upon likely treatment and supervision response. It is most likely that a period of 12 months will be required to secure stable independent accommodation, maintain a stable mental state and regular meaningful social activity in the community, given the restrictions on persons subject to extended supervision orders. A further 24 months of regular treatment in a psychological program, coupled with a regular review of antilibidinal medication should they be prescribed would be necessary …"
Dr Ellis stated that the period to which he referred was estimated based on the offender's current mental state, paraphilia, personality style and current attitudes to supervision that would be unlikely to change in the short term. His relatively old age compared to other offenders, and previous ability to remain in the community without offending, Dr Ellis stated, would warrant a review of his risk profile at that point. Dr Ellis added: "His psychiatric disorders are chronic and likely to persist beyond any period of supervision, but may be better internally controlled at that point." (p 16)

(ii) Report of Dr Jeremy O'Dea, Forensic Psychiatrist, 6 October 2015

Dr O'Dea in his report of 6 October 2015 set out a detailed medical and forensic history in relation to the offender as well as his history of offending.
Dr Ellis noted that the offender had completed the CUBIT program and referred to observations that had been made by Ms Sutton as to his progress whilst attending the program: Report of Dr O'Dea at [54].
In the Opinion section of his report, Dr O'Dea noted that the offender had a history of Alcohol Use Disorder from his early twenties that was related to at least some of the repeated sex offences (at [71]). He noted the offender's reported high sex drive at least in younger years, his history of intoxication at the time of at least some of the sexual offences and his apparently limited insight and remorse regarding his offending behaviours.
Dr O'Dea referred to his overall lifestyle and attitude to his offending as pointing to there being a significant anti-social component to his personality.
Dr O'Dea also observed at: "76. On the basis of his history of repeated sex offending, his history of alcohol use disorder, his personality and lifestyle, and his response to psychological interventions to date, it would seem reasonable to assume that Mr Howard 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, with this risk the appropriate focus of specific and structured risk management."
In relation to general risk issues, Dr O'Dea emphasised that caution should be used in assessing risk of future behaviours in individuals for the purposes of either treatment or supervision (at [81]). He also observed: "82. 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 Howard's risk of engaging in further offending behaviours in the community in the long term would be considered significantly high and appropriate for specific psychiatric treatment as outline above. 83. More specifically it would seem reasonable to consider that there would be a significantly high degree of probability that Mr Howard would be likely to commit a further sex offence, including a further 'serious sex offence' (as defined in Section 5 of the New South Wales Crimes (High Risk Offenders) Act 2006) in the community in the long term. Whilst it is not possible, or clinically appropriate from a psychiatric perspective, to place a percentage likelihood of Mr Howard committing a further 'serious sex offence', the significance of this risk from a clinical perspective may be considered commensurate to the likelihood as I understand is referred to in legal terms in Tillman v Attorney General for New South Wales [2007] NSWCA 327."
Dr O'Dea finally concluded: "86. Despite his age, Mr Howard's risk of committing a further serious sex offence would be considered as long term, and of at least 5 years duration. Therefore, from a psychiatric risk management perspective, any appropriate community risk management program implemented should be long term and of at least of 5 years duration, and should be regularly monitored and reviewed every 6 to 12 months dependent on his progress."

Determination of the Plaintiff's Application

In determining whether or not an ESO should be made in these proceedings as sought by the plaintiff, I have had regard, so far as is relevant, to the matters specified in s 9(3) of the Act. In particular in that respect the following matters are of central importance: 1. The safety of the community having regard in particular to: 1. The serious and extensive nature of the offender's past sexual offending. 2. The current assessments of relevant risk factors evaluated in the Risk Assessment Report tendered in evidence. 1. The analysis and conclusions of Drs Ellis and O'Dea who each conducted examinations of the defendant and both of whom were appointed under s 7 of the Act. 2. The analysis and conclusions contained in the Risk Management Report tendered in evidence. 3. The specific risk factors and other circumstances identified above.

Determination of the Term of the Extended Supervision Order

In accordance with the provisions of s 10(1) of the Act an ESO commences when it is made, or when the offender's current custody or supervision expires, whichever is the later.
By s 10(1A) of the Act, an ESO expires at the end of such period (not exceeding 5 years from the date on which it commences) as is specified in the order.
The evidence establishes that the defendant is a high risk sex offender within the meaning of s 5B(2) of the Act, that is to say, the evidence satisfies me to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.
Mr Coady on behalf of the defendant submitted that the appropriate term for an ESO was a period of three years, whereas, as earlier noted, the plaintiff contends that the appropriate term for such an order is a period of five years.
Mr Coady referred to State of New South Wales v Galanis [2015] NSWSC 133 in which Campbell J referred to a number of aspects that arose for consideration in that case on the question as to the duration of an ESO. As his Honour there observed, in determining the duration of such an order the determination is not to be an arbitrary one (at [62]). In that case it was determined that a period of 3 years and 6 months was adequate to achieve the purpose of an order if benefits or 'real gains' in terms of rehabilitation or education could be made during the period. His Honour observed at [62]: "… I am not confident that they can, and if this pessimism proves well-founded, doubtless a further application will be made."
In that case, the examining psychiatrists, Dr Ellis and Dr Samuels, had both supported an order of five years duration.
In his written submissions, Mr Coady observed that the dual purposes of protection of the community and rehabilitation of the offender must be kept in mind: Defendant's Outline of Submissions at [3.1].
He further submitted: "3.2 It is submitted that an appropriate term of any ESO is 3 years on the basis that: a. 3 years is a substantial period of time in the circumstances of the defendant's case; b. the conditions sought (and largely agreed to) are a continuous and comprehensive restriction on the defendant's liberty, which meet the purposes of the Act; c. taking the defendant's past compliance into account, he will most likely comply with the conditions of the ESO; d. the conditions adequately address identified risk factors; e. the plaintiff has the opportunity to make applications for subsequent order."
Mr Coady further relied in his written submissions upon sentencing remarks made on 20 September 2007 in the Newcastle District Court. They were to the effect that the offender had pleaded guilty at the first available opportunity and that he had been at liberty in the community for 17 years without any convictions for sexual offences. The sentencing judge found that the defendant genuinely regretted his actions although was not accepting full responsibility for them.
It was noted that it appeared that the offender was not granted parole but instead served his entire term: Defendant's Outline of Submissions at [3.6]. "3.7 In those circumstances, it is submitted that the imposition of further restrictions on his liberty may have a punitive effect, particularly where the defendant has served more time than he perhaps should have."
This lastmentioned comment related to a question as to whether or not an appropriate ratio of non-parole period to parole period had been fixed.
Additionally, reliance was placed upon the defendant's compliance with prison regulations.
Finally, it was submitted that three years was sufficient in circumstances where the defendant had completed the CUBIT course over 13 months in 2014/2015. The CUBIT Treatment Report, it was noted, referred to the defendant's improved level of understanding of the issues surrounding his sexual offending and expression of remorse: Defendant's Outline of Submissions at [3.9].
In the plaintiff's submissions a number of matters were identified as supportive of a term of five years for the ESO. Some of these have been referred to above whilst others are the subject of observations and findings set out below.
On the basis of the evidence, and having regard to the submissions made on behalf of the plaintiff and the offender, I have determined that in the circumstances of this case a five year term for the ESO is appropriate and necessary.
In reaching that conclusion I have had regard in particular to the following matters: 1. The criminal history of the offender involving multiple and serious sexual offences committed over a lengthy period of time. Such offences reveal a certain chronicity as well as diversity in his sexual offending. 2. The fact that the risk of sexual offending has been assessed as a moderate to high risk. 3. The limited progress achieved by the offender in the CUBIT program. The evidence indicates that such progress as was made was "slow" and somewhat superficial. In this respect I refer to the evidence of Ms Sutton and Ms Nowrot. Their evidence establishes that the plaintiff has a superficial understanding of the concepts and principles in respect of his risk management factors as have been exposed to him in the course of his treatment. 4. That, with the exception of the index offence, the defendant was on conditional liberty when he committed a number of sexual offences (either being on parole or under supervision on a bond). 5. The offender's past excessive use of alcohol as an associated risk factor and that the defendant has not engaged in any formal AOD counselling to date. 6. The repeated reports by the offender as to his unusually high sex drive and the assessment of Ms Sutton that sexual arousal is a significant risk factor for him. 7. The assessed risk factors, including in particular, the limited social supports available to the defendant in the community and the lack of pro-social relationships are likely to be ongoing and significant risk factors. They were in existence in his lifestyle at the time of his earlier offending.
The above matters I consider are directly relevant to the primary object of the Act, namely, to ensure the safety and protection of the community. There is, by my assessment, no evidence that supports the proposition that the defendant has achieved a level of rehabilitation so as to justify a term for an ESO less than five years. In other words, the evidence does not, in my assessment, establish the present case as one in which a lesser duration is warranted for the purpose of promoting the offender's rehabilitation.
The case does not fall, in my assessment, within the category in which a lesser term is appropriate having regard to what has been referred to as the "light at the end of the tunnel" proposition (as to which see observations made by Campbell J in State of New South Wales v Galanis, supra at [62]). I was impressed by the analysis of Dr O'Dea which I consider fully justifies his assessment that the defendant's risk of committing a further serious sex offence would be considered as long-term and of at least five years duration. On that basis, as Dr O'Dea further observed, any appropriate community risk management program could be implemented (and in my opinion, should be implemented) on a long-term basis of at least five years duration with regular monitoring and review every six to twelve months dependent upon the offender's progress.

Conditions

As previously noted, the Amended Summons sought an ESO with conditions pursuant to s 11 of the Act in the form set out in Schedule "A" to the Summons subject to minor amendments to conditions 42 and 47 (the reference in condition 42 to condition 35 was amended to refer to condition 40 and the reference to condition 38 in condition 47 was amended to refer to condition 37.)
As at the date of the hearing there were three Proposed Conditions disputed by the defendant. They are: Conditions 21 and 23 in Part D: Employment, finance and education, of the Proposed Conditions; and Condition 35 in Part H, Weapons, of the Proposed Conditions.
Proposed Condition 21 is in the following terms: "21. If the defendant is unemployed, the defendant must make himself available for employment, education, training or participation in a personal development program as directed by the DSO (Departmental Supervising Officer) unless he is assessed by a medical practitioner as being medically unfit to do so."
It was submitted for the offender that the inclusion of "employment" on the second line would place him under an obligation to accept employment and that the condition was excessive and was not one which addresses the risk of re-offending.
The opportunity for a high risk offender to gain and engage in employment would generally be seen as a positive constructive step in reducing a risk of re-offending as it provides an offender with a worthwhile focus that will often offset any temptation to re-offend (as in the past) if the offender is left idle or unoccupied.
On the other hand, any such condition ought not, in my opinion, subject an offender to an unreasonable requirement to accept employment if unsuitable, or otherwise beyond a person's capacity or capable of producing deleterious effects. Accordingly, I have concluded that the proposed condition should read: "… make himself available for employment (being employment that is reasonably suitable having regard to all relevant circumstances, including the offender's physical and/or mental capacity to undertake such employment), education, training …"
Proposed Condition 23 is in the following terms; "23. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO."
The inclusion of this condition was supported on two bases. First, to provide a basis upon which it may be determined if monies were being expended upon objects that may be capable of being deployed in activities associated with or conducive to further sexual offending. Second, as a basis for determining whether the defendant was managing his finances so as to avoid financial stress that may undermine his ability to self-manage.
I consider the first basis is a sufficient one for supporting the inclusion of this proposed condition. Whilst potentially being an intrusive intervention on the defendant's privacy, on balance, I nonetheless consider that it is a justifiable one having regard to the need for the defendant to maintain a resistance to the risk of re-offending.
Proposed Condition 35 is in the following terms: "35. The defendant must not possess or use any firearm within the meaning of s 4 of the Firearms Act 1996 or prohibited weapon as defined in s 4 and Schedule 1 of the Weapons Prohibition Act 1998."
It was submitted for the offender that this condition was not necessary because the possession of a prohibited firearm was already an offence in itself. It was submitted that the condition also does not appear to address the offender's risk of future offending.
The plaintiff noted that the offender had, in relation to one of his sexual assaults, used a knife, that he had previously enjoyed shooting as a recreational sport and has been convicted of a firearms offence. In those circumstances it was submitted that the condition should be included. Additionally, although ordinarily a person cannot possess a firearm or prohibited weapon without committing an offence, there are some exceptions under the Firearms Act 1996. This means that a person can, in some circumstances, possess a firearm without a licence or a permit.
The plaintiff submitted that although it is unlikely that the offender would fit within an exemption and be able to possess a firearm without contravening the legislation, the condition ensures beyond doubt that the offender is prohibited from possessing a firearm or prohibited weapon.
I consider that the proposed condition is useful in terms of the supervision and control of the offender. Although the possession of an unregistered firearm or other prohibited weapon is an offence, Proposed Condition 35 is more specific, and operates as a direct restriction on the possession of weapons by the offender. Further I do not consider that the offender would be in any way disadvantaged by the inclusion of the condition.

Order 4 in the Amended Summons

Order 4 sought by the plaintiff in its Amended Summons was in the following terms: "4. An order permitting any reports prepared for the purposes of Order 1 to be provided to Corrective Services New South Wales, any agency involved in the defendant's supervision, and the defendant's treating clinician(s) or health care practitioner(s) involved in the supervision of, or the psychological and/or psychiatric care and assessment of, the defendant."
Order 1 referred to the reports of qualified psychiatrics. As such, Order 4 applied to the reports of Drs Ellis and O'Dea.
As stated above at [20], the offender opposed the making of an order in the terms of Order 4. Mr Coady, on behalf of the offender, submitted that the Order was too wide and that the two psychiatric reports which had been prepared in relation to the offender should only be given to any psychological or psychiatric professional involved in the offender's ongoing care.
At the conclusion of the hearing on 6 November 2015 I indicated to Mr Hammond my preliminary view that the plaintiff should seek to be more specific in identifying the agencies that would be entitled to the reports. I directed each of the parties to provide a further written note on this point.
Following the hearing my Associate received communication from the parties stating that they had reached an agreement on the wording of Order 4. The offender consented to a revised order being made in the following terms: "An order permitting any reports prepared pursuant to Order 1 to be provided to any Corrective Services New South Wales Community Corrections officer involved in the supervision of the defendant, and any psychologist and/or psychiatrist involved in the supervision of, or the psychological and/or psychiatric care or assessment of, the defendant."
I consider that the amended form of the order is appropriate to overcome any danger of psychiatric reports relating to the offender becoming too broadly accessible.

Orders

I make the following orders: 1. An order under s 5C Crimes (High Risk Offenders) Act 2006 subjecting Kevin Howard to a high risk sex offender extended supervision order for a period of five years commencing 2 December 2015. 2. An order under s 11 of the Act directing Kevin Howard to comply with the conditions set out in Schedule A to these orders for the duration of Order 1. 3. An order permitting the reports of Dr Andrew Ellis dated 28 September 2015 and Dr Jeremy O'Dea dated 6 October 2015 to be provided to any Corrective Services New South Wales Community Corrections officer involved in the supervision of the defendant, and any psychologist and/or psychiatrist involved in the supervision of, or the psychological and/or psychiatric care or assessment of, the defendant.

State v Howard Schedule (29.5 KB, pdf) 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: 02 December 2015

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (1)

Cases Cited (18)

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