By an Amended Summons filed in this Court on 21 February 2023, the State of NSW ("the State") sought an order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 ("the Act") that HT ("the defendant") be the subject of an extended supervision order ("ESO") for a period of three years and orders pursuant to s 11 of the Act directing the defendant for the period of the ESO to comply with conditions set out in a Schedule accompanying the Amended Summons.
The State also sought interim and interlocutory relief which are the subject of this judgment. The State sought an order pursuant to s 7(4) of the Act appointing two qualified psychiatrists or psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to provide reports to this Court on the results of those examinations by a date to be fixed by the Court and directing the defendant to attend those examinations. The State also sought, pursuant to ss 10A and 10C of the Act, that the defendant be the subject of an interim supervision order ("ISO") for a period of 28 days from the expiration of his parole with accompanying orders that the defendant comply with the conditions set out in the schedule to the Amended Summons.
The application for interim and interlocutory relief was the subject of a preliminary hearing on 21 February 2023. The Court made the interim and interlocutory orders sought by the State on 9 March 2023. These are the reasons for that decision.
The defendant is a 42-year-old First Nations man of the Dunghutti and Kamilaroi people. The defendant's early life involved removal from his parents at three years of age due to concerns about neglect and exposure to abuse, drugs and alcohol use. He lived with an aunt until age 13, moved in briefly with another aunt, and then reunited with his father and brother at age 15 for a short period before leaving and living in whatever circumstances he could arrange. He completed year 10. His first criminal offending occurred between 1995-1996. Since 1999, his longest period in the community has been for 9 months from October 2003 to July 2004. He has two children to a former relationship and has had very little employment history. The Risk Assessment Report ("RAR") stated that the defendant reported having 6 daughters.
The defendant has been assessed as suffering from schizophrenia and this in part led to him only partly completing Custody-Based Intensive Treatment ("CUBIT") Program in 2013/14. He was estimated to be of borderline intelligence in 2012. In 2015, the defendant was formally assessed as having below average intellectual functioning. I agree with the submission of the State that a transcript of his evidence on sentence on 4 March 2010, together with an affidavit tendered in a sentencing proceedings (for the below mentioned offence contrary to s 112(2) of the Crimes Act 1900 (NSW) which involved aggravated break and enter and commit robbery in company in 2016 in an office and living area of a motel), was capable of suggesting reasonable verbal fluency and expression of concepts.
The defendant is presently serving a sentence of five years imprisonment for aggravated break and enter (in company) and commit armed robbery, which commenced on 13 March 2018 and expired on 12 March 2023, with a non-parole period of three years ("the s 112(2) offence"). The defendant was released to parole on 23 September 2022. The sentence was imposed partly concurrently and partly cumulatively with other break and enter sentences, the total term commencing 13 September 2016.
Whilst in custody, the defendant was charged with sexual offences which were resolved by a plea of guilty to one charge of indecent assault of a child under 16 (the repealed s 61M(2) of the Crimes Act). That offence was committed on 2 August 2016 ("the serious sex offence"). The defendant was sentenced on 3 April 2020 to a fixed term of six months imprisonment, backdated to commence on 2 September 2019 ("the serious sex offence sentence"). As such, the total term had already expired when it was imposed. That offence is a "serious sex offence" for the purposes of ss 5(1)(a)(i) and 5(1)(d) of the Act, carrying a maximum penalty of 10 years imprisonment.
The serious sex offence involved the defendant approaching a 15-year-old in the street and saying he would pay him $80,000 to do things to him as he had not "gotten any arse" since his release from custody. The defendant then hugged the child and pushed him down by his shoulders and told him to get on his knees and "suck my dick". The victim managed to push the defendant and run away. It is alleged that two hours earlier, the defendant had also approached a 14-year-old boy, offering him a way to make money.
The defendant's record includes a series of Form 1 offences for obscene exposure to females and one aggravated act of indecency from February 2000 and 2009, as well as offensive conduct (masturbating in the presence of a female). More seriously, he has a conviction for a house-breaking offence in 1999 where he is alleged to have approached a female in her bedroom, unzipped his pants, said "you know what I want" and pushed her down and lain on top of her, before fleeing when her husband returned. The precise facts of this allegation were in issue at sentence and were not ultimately decided by the Sentencing Court. There was a contest in these proceedings as to the weight the Court may place upon these alleged, unresolved circumstances.
In the early hours of the morning in 2009, the defendant entered the house of a woman he had previously approached, after saying he wanted to spend time with her and that he would be "really gentle" with her. After entering her house uninvited, he pushed her against her kitchen bench and touched her breasts and chest under her robe before fleeing when she screamed and yelled to her neighbour.
Separately, the defendant has convictions for assault occasioning actual bodily harm, robbery of an acquaintance using a knife, and burglary offences. He has a lengthy history of burglary offences. Whilst in custody, the defendant has had a number of reports of inappropriate conduct towards females and unwelcome sexual interactions with males. He has spent most of the past 13 years in custody, reoffending relatively quickly upon release.
It was not suggested by the State that any of aspects of the criminal history other than the serious sex offence itself would constitute a serious sex offence, however they were relied upon to support the State's arguments concerning the existence of an unacceptable risk of further serious offending that it was submitted the Court would find is established, on the whole of the material before the Court in the preliminary hearing.
[3]
The Positions of the Parties
The State submitted that the statutory preconditions in s 5B of the Act had been met in the present case. In particular, it was submitted that:
1. The defendant may be regarded as an "offender" for the purposes of s 4A of the Act and relying on the extended definition of serious sex offence in ss 5(1)(a)(ii) and (d) of the Act, for his 2020 indecent assault conviction.
2. That the Court would be satisfied of the high degree of probability that the offender posed an unacceptable risk of committing another serious offence if not kept under supervision under the order pursuant to s 5B(d).
It was submitted that the Court should, therefore, make the s 7(4) orders, exercise its discretion to make an ISO and make the conditions attached to the operation of the ISO in accordance with the State's position laid out in a Schedule produced by the parties on 24 February 2023, stipulating agreed and disputed conditions ("the agreed Schedule").
For the purposes of the preliminary hearing, the defendant made the following submissions:
1. The Court could be satisfied that the statutory preconditions in s 5B(a)-(c) are met, including, specifically, that the defendant was a supervised offender within the meaning s 5I.
2. The defendant did not accept that the statutory precondition in s 5B(d) was met.
3. In the event that the Court exercises its discretion to make an ISO, the defendant opposed the conditions sought by the State in the Amended Summons and submitted that the conditions ought to reflect his present parole conditions. Further, if the Court was minded to make conditions of the kind found in the Schedule to the Amended Summons, the defendant made particular submissions as to the disputed conditions in the agreed Schedule.
[4]
Statutory preconditions: s 5B(a)-(c)
There was no dispute that the Court may find that these conditions are satisfied for the purposes of this preliminary hearing, but some further short observations should be made in this respect, commencing with an analysis of the defendant's status as a supervised offender. The State's submissions in this respect have been broadly accepted and form the foundation for my analysis which follows below.
The State may only apply for an ESO where at the time of filing the application the offender is a "supervised offender" (s 5I(1) of the Act). There are four categories of supervised offender provided for under the Act in s 5I(2), each of them providing for an offender who is serving a sentence of imprisonment. The categories of supervised offender serving a sentence of imprisonment are, respectively, (i) for a serious offence: (ii) for an offence of a sexual nature; (iii) for an offence under s 12 of the Act; or (iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraphs (i), (ii) or (iii).
In the defendant's case, the sentence for the serious sex offence commenced during the currency of his existing, unexpired, sentence the s 112(2) offence. The sentence for the serious sex offence commenced on 2 September 2019 and the sentence for the s 112(2) offence commenced on 13 March 2018. The serious sex offence sentence also expired during the currency of his existing sentence, on 1 March 2020. Accordingly, the present s 112(2) offence sentence should be regarded as being served partly concurrently and partly consecutively with the serious sex offence sentence, thus complying with s 5I(2)(a)(iv).
Whilst the defendant's circumstances differ from those of the appellant in the State of NSW v Kaiser [2022] NSWCA 86 ("Kaiser"), the decision of the Court of Appeal in that case nonetheless provides support for the interpretation contended for by the State in this case. In Kaiser, Simpson AJA, with whom Bell CJ and Beech-Jones CJ at CL agreed, determined that s 5I(2)(a)(iv) embraced a situation where the relevant serious offence sentence (manslaughter) was still unexpired (but the offender was out on parole) when further non-serious offences were committed and when the defendant was returned to gaol and sentenced for those new offences. The non-serious offences resulted in three sentences being imposed, the first of which was concurrent with the unexpired portion of the manslaughter sentence and the second of which was partly concurrent and partly consecutive with the manslaughter sentence. The third sentence imposed commenced after the expiry of the manslaughter sentence.
The State in Kaiser had filed its initial summons during the currency of the manslaughter sentence. It then filed an Amended Summons during the currency of the second non-serious sentence. Her Honour determined (at [33]) that the Amended Summons was filed in accordance with s 5I(2)(a)(iv). Her Honour further observed that the third non-serious sentence would not be caught by s 5I(2)(a)(iv), as it was neither partly concurrent nor partly cumulative with the manslaughter sentence (commencing, as it did, after the expiry of the manslaughter sentence).
Her Honour's finding is sufficient support for the State's contention that, in the defendant's case, an application filed within 9 months of the expiry of the current s 112(2) offence sentence falls within s 5I(2)(a)(iv). It is a sentence which "is being served" at the time of the filing of the application. Further, in Kaiser, the subsequently imposed sentences were imposed in separate proceedings from the manslaughter offence, as is the case with the defendant's sentences (as between the s 112(2) offence sentence on the one hand and the serious sex offence sentence on the other). Whilst in the defendant's case the serious sex offence sentence was imposed after the other sentences (whereas in Kaiser it was the other way around), this does not, in my view, make any practical difference, when interpreting the language used in s 5I(2)(a)(iv). Further, a finding that the provision applies is consistent with the objects of the Act, whereas a finding that it does not is apt to produce an anomalous result, inconsistent with that purposive construction.
An "offender" means a person over 18 years who has at any time been sentenced to imprisonment following his conviction for a "serious offence": s 4A of the Act. A "serious offence" (s 4) for this defendant relevantly means a serious sex offence via s 5(1)(a)(i) where, in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more. The indecent assault offence under s 61M(2) carried a maximum penalty of ten year imprisonment. Notwithstanding the repeal of s 61M(2) of the Crimes Act, the offence is still caught by the terms of s 5(1) of the Act, as it is also an offence which can be regarded as "any other offence that, at the time it was committed, was a serious sex offence for the purposes of this Act."
[5]
S 5B(d): Relevant Principles
There is no dispute as to the relevant principles of the unacceptable risk test in s 5B(d) proffered by the State. The State's submissions as to relevant principles represent a convenient statement of principles for present purposes, and I propose to adopt them in what follows:
1. Guidance as to how the Court might approach its task under s 5B can be found in the decision of Beech-Jones J (as his Honour then was) in State of New South Wales v Fisk [2013] NSWSC 364 at [84], where his Honour observed (as to the wording of the Act when it only referred to serious sex offenders) that:
…the criteria in s 9(3) appear to be relevant to an assessment of whether a person falls within the definition of "high-risk sex offender" and especially to whether they pose an unacceptable risk "unless kept under supervision.
1. That approach was followed by Hall J in State of New South Wales v Wilde [2014] NSWSC 305, at [111] and by Harrison J in State of New South Wales v Kamm (Final) [2016] NSWSC 1, at [48].
2. In Lynn v State of New South Wales [2016] NSWCA 57, the Court of Appeal considered the unacceptable risk test. Justice Beazley P gave further guidance on what risk meant in terms of protection of the community. Her Honour observed at [59]-[61]:
[59] In Thomas (Preliminary) R A Hulme J made the following observation, at [20]: "Whilst bearing in mind the second of those two objects, I would regard the test in s 9(2) as being satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made."
… [60] In Darrego [2011] NSWSC 360 McCallum J commented, at [8], that: "…a formulation in these terms puts a gloss on the precise words of the test stated in the section, which does not require, in terms, that protection of the community be 'ensured' (although that is an object of the Act)."
[61] For my part, I do not understand that R A Hulme J, in using the words of the objects clause, intended to mean that "unacceptable risk" is to be determined in the sense of guaranteeing the safety and protection of the community. Rather, as the respondent has submitted the word "ensure" itself has shades of meaning and, in the context of the Act, the evaluation to be made under s 5E(2) is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection. As the respondent pointed out, were it otherwise, every risk would be unacceptable.
1. It should be noted that in State of New South Wales v Kamm (Final) [2016] NSWSC 1, Harrison J at [41] repeated a submission made by the State in his Honour's judgment which has relevance, namely:
The determination of what is an unacceptable risk may require consideration of various factors (such as the perceived likelihood of recidivism and the type and nature of offences that may be committed absent supervision), and may entail a balancing of factors in cases where they might point towards differing outcomes (such as a low risk of recidivism versus likely drastic consequences to the victim if an offence occurs). Clearly, any analysis of the concept of unacceptable risk involves recognition that there will be a range of factors affecting risk and some cases that are more obvious examples of unacceptability than others.
1. This jurisprudential approach has been followed in a number of subsequent decisions and in broad terms has been applied by the NSW Court of Appeal in a decision under the similar provisions of the Terrorism (High Risk Offenders) Act 2017. (See New South Wales v Naaman (No 2) (2018) 365 ALR 179; [2018] NSWCA 328 at [29].)
2. Having regard to the wording of s 5D, it is possible for the Court to legitimately find that an offender poses an unacceptable risk, even if the likelihood of them committing a further serious offence is determined to be something less than high.
To that summary of principles may be added my observations in State of NSW v McGorm (Final) [2019] NSWSC 484 at [189]-[204]:
[189] As to Sancar, the following comparisons were made:
"(1) the defendant had one conviction of a serious violence offence, namely, murder;
(2) the defendant also had disciplinary breaches linked to the use of illicit drugs and disciplinary offences. That position also applies in this case;
(3) reference was made to the observation at [83] by Garling J that the defendant in Sancar represented risk because of the length of his incarceration, institutionalisation, lack of strong peer support in the community outside family but, having regard to the relevant test of unacceptable risk, there was not a risk of serious violence offending."
[190] Turning to the defendant's written submissions regarding the application of s 5B(d), the defendant made the following submissions:
"(1) To order an extended supervision order, the Court must be satisfied on the evidence before it to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. Given the defendant's background, the only relevant serious offences about which there is any risk is the risk of further serious violence offences.
(2) The defendant submitted that the Court could not be satisfied to a high degree of probability that the defendant poses such an unacceptable risk.
(3) As an initial observation, the defendant accepted that there are aspects of the evidence against him which must disclose some risk of re-offending in a general sense. The defendant also accepted that, as a general proposition, supervision may be desirable to mitigate risk. However, a Court must not obfuscate the actual test to be applied in order for an order to be imposed. As his Honour Harrison J stated in Pacey (at [53]):
[53] It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release.
(4) In determining the 'unacceptable risk' test pursuant to s 5B(d), the Court is required to consider: 'First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest': Rothman J in State of NSW v Ceissman [2018] NSWSC 508 at [26].
…
Consideration
Unacceptable Risk: Section 5B(d)
[191] The decision to make or refuse an application for an extended supervision order is discretionary and requires an evaluative judgment to be undertaken by this Court according to the individual circumstances of the case and having regard to the objects of the Act: Lynn at [51].
[192] Section 5B of the Act provides the Court may make an extended supervision order if: the person is an "offender" who is serving or who has served a sentence of imprisonment for a serious offence (see s 4A of the Act); the person is a "supervised offender" (see s 5I of the Act); the application for the order is made in accordance with s 5I of the Act; and this Court is satisfied to "a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order".
…
[197] The unacceptable risk requirement in s 5B(d) essentially replicates the repealed definitions of "high risk violent offender" as existed prior to the 6 December 2017 amendment: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The authorities applicable before the amendments continue to be relevant (Garling J in State of New South Wales v Thurston [2018] NSWSC 421 at [116]-[117]; and, more generally, State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 at [56]-[60].
[198] As to those principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [20]-[39] (see also, State of New South Wales v French (Final) [2017] NSWSC 1475 (at [43]-[53])). By way of emphasis or elaboration, some further observations may be made.
[199] First, there may be instances when a person is held to pose an unacceptable risk, even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely "drastic" consequences to a victim if particular offending occurs (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 (Kamm) at [41] and [43] (per Harrison J)).
[200] Secondly, I accept the passage of the judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in Pacey and Wilson J in Simcock, as follows:
"[127] In considering the question of whether the defendant poses an 'unacceptable risk' of committing a 'serious sex offence' if he is not kept under supervision, I give the words 'unacceptable risk' their ordinary meaning. I also have regard to the observations of Harrison J concerning the question of 'unacceptable risk' in State of New South Wales v Pacey at [43] as follows:
'It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.
"[128] Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, 'Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate.'"
[201] Reference may also be made to the discussion of the test under s 5B(d) in State of NSW v Ceissman [2018] NSWSC 508 at [26] as follows:
"[26] It is further necessary for the Court to deal with the construction of the term, 'unacceptable risk', within the context of the HRO Act. Ordinarily, a risk is the possibility, chance or likelihood of 'harm, hazard or loss'. In many areas of the law, risk assessments are undertaken that identify and evaluate an injury that may be sustained as a result of a possible (and usually foreseeable) occurrence. In assessing a risk and whether it is unacceptable, there is a matrix of considerations that are required to be taken into account. First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest."
[202] Thirdly, the requisite finding under s 5B(d) may be made, in an appropriate case involving a single serious offence. In Kamm, Harrison J observed (at [44]):
"[44] … while it is necessary to bear in mind the limitations of attempting to draw comparisons with the factual circumstances of other cases, in State of New South Wales v McQuilton [2014] NSWSC 11, R A Hulme J imposed an ESO in respect of a sexual offender who had experienced pervasive rape fantasies, but had only been convicted of a single serious sex offence."
[203] Finally, the defendant accepted that there were aspects of the evidence against him, which must disclose some risk of re-offending in a general sense. The defendant also accepted that - as a general proposition - supervision may be desirable to militate risk. However, it was contended, such a consideration must not "obfuscate the actual test to be applied in order for an order to be imposed". Reliance, in this respect, was placed upon the judgment of Harrison J in Pacey (at [53]):
"[53] It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release."
[204] The evaluation of unacceptable risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate. Thus, unacceptable risk involves a consideration of the type and nature of offences that may be committed absent supervision and balancing those factors. That assessment must be absent the existence of "protective measures".
Counsel for the defendant placed significant reliance on the fact that the defendant had only been convicted of a single serious sex offence. While this is a relevant consideration, it does not preclude the Court from concluding that the State has met its onus and that the statutory test for imposition of an ISO has been satisfied when all of the relevant matters are considered, including the defendant's criminal history and other factors under ss 9(2) and (3) of the Act (see State of New South Wales v Hyde (Preliminary) [2022] NSWSC 540 ("Hyde"), per Schmidt AJ, at [20], [21] and [25]) and also the authorities bearing upon that issue above.
[6]
Preliminary Hearing Principles
As to the principles for a preliminary hearing, I refer to the judgment in State of NSW v PS (Preliminary) [2022] NSWSC 1740 where the following principles were stated:
[56] There was no dispute as to the statement of principles appearing in the written submissions for the State. In that light, it is sufficient to state the following principles for the purposes of this preliminary hearing and the applications for interlocutory and interim relief.
(1) The Court is not required to predict the outcome of the final hearing, rather the Court determines whether it would be reasonably open to make an extended supervision order at final hearing assuming proof of the matters. This involves a consideration to which I will turn shortly of the satisfaction of the conditions in s 5B of the Act and whether the Court might exercise a discretion under s 9(1) of the Act.
(2) If the Court is satisfied of the making of the extended supervision order in the circumstances the Court is mandated to make an order under s 7(4).
(3) Assuming that s 7(4) orders are made whether an interim order ought to be made is to be considered under s 10A of the Act. That provision is enlivened if it appears the defendant's supervision will expire before the final determination of the extended supervision order.
(4) In determining those matters the Court is required to consider the objects of the Act insofar as they concern the safety and protection of the community.
(5) Finally, it is appropriate to give weight at this stage of the proceedings to risk avoidance.
I note that the State also referred to various aspects of the judgment of Garling J in State of New South Wales v Sturgeon [2019] NSWSC 559 at [5]-[6] which was in the following terms:
[5] A preliminary hearing does not require the Court to be satisfied that the matters in the supporting documentation will be proved. The Court is only required to be satisfied that if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely "a high degree of probability": s 5B and s 5C of the HRO Act.
[6] The Court, in undertaking this exercise, is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is no part of the Court's function to predict the ultimate result, or assess the likelihood of the ultimate result. If on the matters alleged in the supporting documentation it is open to the Court at a final hearing to make a CDO or and ESO, then a conclusion that the Court would be justified in making the order, is inevitable. The issue is to be resolved without considering what evidence might be called by the defendant at a final hearing, and without taking into account any evidence which may be called by a defendant at an interim hearing, because such evidence would not cast light upon what is alleged in the supporting documentation: Attorney-General of NSW v Tillman [2007] NSWCA 119 at [98].
Further, the State referred to the judgment of Fullerton J in State of New South Wales v Heness (Preliminary) [2019] NSWSC 1710 at [28]-[29] as follows:
[28] In the hearing, I determined that the evidence relating to the 1997 charges was admissible in that it was capable, even if in a very limited way, of bearing upon the likelihood of the defendant committing a serious sex offence in the future and, in that way, capable of informing the question whether the acceptable risk precondition is satisfied. I also determined that this was not a forum where the discretion in s 135 of the Evidence Act had any meaningful application. Here the Court is engaged in an evaluative exercise (both as the tribunal of fact and the tribunal of law) as to whether a statutory test has been met so as to engage the jurisdiction of the Court to make orders for the extended supervision of the defendant if satisfied of that fact at a prima facie level. Viewed in that way, there is no practical sense in which the risk of the unfair prejudice with which s 135 is concerned has any meaningful operation in deciding that question in a preliminary hearing.
[29] I was, however, unprepared to accede to Mr McGorey's submission that the evaluative exercise engaged on this application eschews considerations of the weight of the supporting documentation. While it is true that in a preliminary hearing the Court is not to "weigh" the documentation for the purposes of predicting the ultimate outcome of the proceedings, in my view the evaluative exercise in which the Court is engaged in the preliminary hearing necessarily involves an assessment of the "weight" of particular aspects of the evidence, equally as it does the "weight" of the supporting documentation as a whole, when determining whether the State has evidence capable of discharging the burden of establishing that "the unacceptable risk precondition" is met such that interim orders might be made subject to the exercise of discretion.
[7]
Section 9(3)(h) Criminal history and pattern of offending behaviour disclosed by that history
For the purposes of the preliminary hearing, the State's summary of the defendant's criminal history was broadly accepted by counsel for the defendant. However, the defendant disputed the State's characterisation of the defendant's pattern of offending and the inferences concerning the risk of serious offending which the State sought to draw from aspects of the defendant's criminal history. In those circumstances, I shall adopt below the State's description of the criminal history before addressing the defendant's five arguments concerning how that history should be interpreted with respect to the assessment of risk of serious offending.
[8]
Early Offending
The defendant's first criminal activity occurred in February 1995 and involved possession of house breaking implements, break and enter with intent, steal motor vehicle and attempt steal. Further offences of breaking with intent and break enter and steal (8 counts) were committed in January 1996 and then a further break enter and steal offence in April 1996. Probation orders and then control orders were imposed.
Further offences of steal motor vehicle and attempt to steal vehicle, break enter and steal, driving unlicensed and receiving stolen goods were committed in 1996. In 1998, the defendant was convicted of several counts of break and enter, and common assault and wield knife in a public place (convicted, warrant to issue). The police facts for the assault and knife offence describe an altercation with others where the defendant had gone home and come back with kitchen knives, one of which he threw at the group being assaulted. In 1999, he was dealt with for resist officer in execution of duty and two further counts of break and enter with intent to steal. His first gaol sentence was imposed in August 1999 and involved a break and enter where he turned the power off to a home occupied by a female known to him, opened a locked security door with a knife and searched bedrooms where occupants were sleeping.
In 2000, the defendant was sentenced for an offence (committed on 15 December 1999) of breaking and entering a house and stealing and a second offence of entering a house with intent to commit assault occasioning actual bodily harm. The two offences were committed at the same house. The facts for the offences reveal that the defendant entered the house in the early hours of the morning after the parents and their three children had moved in the previous day. The female adult woke at 4:45 AM to see a man standing at the foot of her bed holding something sharp in his right hand, and, when she challenged him, he ran from the room. The female's partner chased after the man and got into his car to try and find him. The female victim then heard noises again in the house and saw the same man back in her bedroom and asked him "what do you want?" and the defendant said: "you know what I want" and undid his fly.
The female alleged that when she went to go to the door, the man grabbed her shoulders and threw her onto the floor and lay on top of her, at which point her partner returned in the car and the man got off her and ran out of the bedroom. In remarks on sentence for this offence, Christie QC D CJ said that the version of what occurred is not entirely on all fours with the version put forward by the defendant (who denied unzipping his fly or uttering those words) and that the female victim formed the very definite view that the intentions of the defendant towards her were at least partially of a sexual nature. His Honour went on to say that the defendant had pleaded guilty to a break and enter with intent to commit an assault occasioning actual bodily harm offence, so that he was to be sentenced on that basis, with the intent of assaulting the female victim. His Honour added that it is not to say that he did not accept the victim's belief that she was in immediate peril by reason of an attack of a sexual nature.
I note here the submission by counsel for the defendant that the Court could not place weight on an unproven fact, namely the defendant's intention to commit a serious sexual offence in circumstances of offending where no serious sexual offence occurred, or to commit a serious sexual offence of greater severity than that which eventuated. I will return to this submission later.
At sentence for the break and enter offences, the defendant was dealt with for four counts of wilful and obscene exposure, one count of aggravated act of indecency, goods in custody, and two counts of offensive conduct, on a Form One schedule. The facts for those matters were as follows. For the aggravated act of indecency, on 6 February 2000 the defendant jogged past the female victim in a laneway leading to a park and jumped on her and grabbed her on the groin area with both his hands and squeezed and said: "I want you baby". The victim took evasive action but fell to the ground with the defendant on top of her, and she kicked him and screamed "help, help, somebody help me", at which point the defendant got up and ran. She suffered minor bruising and soreness to her hip and shoulder.
On the same day, the defendant jogged past another female victim and shouted "hey" and the victim turned around and saw the defendant expose his penis. The same day, the defendant jogged up to a third female victim and said "hello" and then pulled his penis out of his shorts and exposed it and said: "do you want this babe?".
On 22 February 2000, a 13-year-old female victim was delivering the local paper and was approached by the defendant who said: "I'm Beau, give me the paper". The victim turned away and the defendant said: "give me a kiss goodbye". He then exposed his penis and commenced to wave it at the victim. On 25 February 2000, the defendant was standing in the laneway near an adult female victim's house and, after hearing a smashing sound, she saw him looking at her. She put her children in her vehicle and drove out of the driveway, at which point she saw him exposing his penis with both hands on it. The ages of the female adult victims were 44, 54 and 35.
On 21 February 2000, the defendant went to a Video Ezy store and stood in the adult video section and put both his hands down the front of his pants and started to play with his penis while looking at the female shop assistant. On 27 February 2000, the defendant went to the same store and the same adult section and chose an adult video and then put his hands down the front of his pants and started to play with his penis while looking at a different female shop assistant.
The State noted that the aggravated act of indecency (the repealed s 61O Crimes Act 1900) and indecent assault would arguably be offences "of a sexual nature" pursuant to s 5(2)(a) of the Act, but the obscene exposure and offensive conduct offences would not be. However, it was submitted that they are relevant to an assessment of risk as demonstrating significant sexual preoccupation and a preparedness to demonstrate that to strangers in public.
The defendant was sentenced to 4 years and 6 months imprisonment on 20 October 2000 and 18 months concurrent for the break and enter offences. On 24 March 2002 the defendant escaped custody at the Glen Innes Correctional Centre, having some five months of his sentence for the property offences remaining.
On 14 December 2002, the defendant assaulted a stranger in a service station in the early hours of the morning, after demanding that the victim buy him a packet of cigarettes. The defendant punched the victim in the face, breaking his nose and cheek bone. He was convicted of assault occasioning actual bodily harm and received a total sentence of 12 months imprisonment commencing 17 December 2002.
On 6 May 2005, the defendant was sentenced in Armidale District Court for one count of robbery whilst maliciously inflicting actual bodily harm and, on a Form One schedule, two offences of aggravated break enter and steal, and one offence of break enter and steal were taken into account. The robbery occurred on 17 April 2004 when the defendant and a friend were drinking alcohol with the victim and two other friends of the victim in the victim's flat. The defendant became verbally aggressive and walked into the kitchen, picked up a knife, waved it round and made threats about stabbing the victim and his friends. The defendant then punched the victim in the mouth and then headbutted him in the face. The defendant also punched the victim's friend in the face and demanded money from the victim and held a knife to his neck, and subsequently stole some alcohol, swords and a small amount of cash. The victim received sutures to a laceration on his wrist. The defendant received a total sentence of 6 years 5 months with a non-parole period of 3 years 6 months.
On 4 March 2010, the defendant was before Toner SC DCJ for an offence of break and enter dwelling house and commit indecent assault. At the time the defendant committed this offence he was on parole, having been released from the robbery offence summarised immediately above. His parole was revoked as a consequence of the fresh offence.
The facts of that offending are as follows. On 21 April 2009 the victim was at her home in Armidale when she heard a knock at the door and answered it to the defendant, who asked if someone called Mark lived there. The defendant said: "I just got out of gaol, I've been out of touch for a while and need somewhere to stay". The defendant asked to use her phone to call a friend and she was handed an ad from a newspaper, for a sex worker. She dialled the number and he said: "there's no answer" and left.
At around 2:00 AM on 26 April 2009, the victim woke to what she thought was a knocking sound on the door and saw the defendant at the door who said: "can you help me?" and said he needed somewhere to stay. He was told he couldn't stay there. He said: "I'm sorry I want to spend time with you. I promise I'll be really gentle with you". She shut the door and told him to go away. The defendant then came to the lounge room window and asked to be let in and was again told to go away, and then she found him in the kitchen. She dialled 000. The defendant pushed her against the kitchen bench and then put his hands under her robe and touched her breasts and chest, while she was saying no and screaming and yelling and calling out for a neighbour. When she screamed the defendant ran out of the door and the victim went and sought assistance from neighbours.
The following further matters were dealt with at sentence on a Form One schedule. At around 8:30 AM on 23 April 2009 the defendant approached a female walking her dog in Armidale and ask for directions to the cemetery. The victim then walked on and heard the defendant from behind her calling out "miss, miss". The victim turned around and saw the offender with his pants down and his penis exposed, playing with it. He apologised and said he had turned his life to Christianity.
The defendant was charged for an offence on 30 April 2009 at around 8:45 AM when another female victim was walking in Armidale. As she passed him, he stood up and said: "hi miss could I talk to you for a bit?". He said he had just been released from gaol and was having a panic attack. He asked if he could go to where she lived and she said no, but he followed her home and asked to come in, to which she said no. The victim then walked to a friend's house and called the police. The defendant was charged with commit act of indecency for the first Form One offence and stalking for the second offence. On sentence, the defendant received a total sentence of 5 years 7 months and 24 days, to commence on 1 April 2010, to be followed by the balance of his term for the robbery (as a result of the parole revocation). On appeal, the sentence was reduced to a non-parole period of 3 years 10 months with an additional term of 2 years 6 months. The defendant was in fact released from custody on 5 February 2016.
[9]
The Index s 112(2) Offence
On 5 April 2017, the defendant was sentenced in relation to three offences. The first was an offence of breaking and entering with intent to steal, committed on 19 August 2016 at a gymnasium. The second was an offence of aggravated break and enter and commit robbery in company, committed on 8 September 2016 at the office and living area of a motel and involving the operators of the motel as the victims. The third offence on 4 September 2016 involved aggravated breaking and entering and stealing in company at a laundry service.
In the s 112(2) offence, the defendant was armed with a large knife and a pole, while a second offender had two knives. Cash was stolen during the robbery. The defendant struck the male victim on the face at one point, causing a split lip.
The defendant was sentenced for the s 112(2) offence to a total term of 5 years imprisonment with a non-parole period of 3 years, commencing on 13 March 2018. For the break and enter with intent to commit a serious indictable offence, a fixed term of 15 months imprisonment commencing on 13 September 2016 and expiring 12 December 2017 was imposed, and for the offence of aggravated breaking and entering and committing a serious indictable a fixed term of 18 months imprisonment was imposed, commencing 13 March 2017 and expiring 12 September 2018.
[10]
The Serious Sex Offence
I shall expand upon the brief summary of the facts of this offending given at the beginning of the judgment (with some repetition in order to maintain the integrity of the narration).
The offence occurred on 2 August 2016, some 23 days after the defendant had been released from prison. The 15-year-old male victim was walking in a public street when the defendant approached and asked him if he knew where he could "get on it" and then asked him if he wanted to make some money. The victim agreed to go with the defendant to somewhere a bit private. The defendant took him to the basketball court in the local high school grounds, where he told him he had been released from gaol for murder and "I haven't gotten any arse since then, so I was thinking I could pay you $80,000 and I could do some things to you." The victim declined this offer, which the defendant raised to $120,000 and then offered $80,000 if the victim gave him a blow job, which the victim also declined.
The defendant suggested they walk to a brick wall, where he put both hands beside the victim's head and leant in and said: "If I had a million dollars, I'd have my way with you". The victim feared he would be killed, while the defendant told him he was a good looking and handsome boy. The victim then tried to walk away but the defendant grabbed his shoulder and pulled him in close, saying "give me a hug" and put both arms around him. The defendant then pushed the victim down by the shoulders and said "Well you've got no choice now. You're going to get on your fucking knees and suck my dick". The victim pushed the defendant in the stomach and ran away, but dropped his phone. The defendant called out to him that he'd dropped it, and the victim managed to persuade him to return it through a hole in a gate adjacent to them, with the defendant then saying: "Can I get a blow job before you go?".
In an interview with arresting police, the defendant claimed that some "tribal stuff" was going on (people who had died) and that he had been born bad but had read the Bible and was now cleansed so he did not have any dirty thoughts or sexual thoughts anymore and that rock spiders were telling him to do things.
The agreed facts disclosed that the defendant was identified having approached a 14-year-old boy in the same area and striking up a very similar conversation some two hours prior. The defendant was also identified as the person who had approached another young man fifteen days later in another town, striking up an almost identical conversation, including sexually propositioning the young man for the same amount of money.
On sentence, Priestley SC DCJ found that the indecent assault was constituted by the words used and the fact of seeking to force the victim into a position to perform fellatio.
[11]
The Defendant's Submissions Concerning Criminal History and Pattern Of Offending
In response to the defendant's criminal history and pattern of offending presented above, counsel for the defendant submitted that, when properly understood, the history should not result in the Court being "satisfied to a high degree of probability" that the defendant "poses an unacceptable risk of committing another serious offence if not kept under supervision" under an order for the following six reasons. I have derived these reasons from the defendant's written and oral submissions, and I will return to them later in my judgment:
1. Even though the Court may be satisfied that the defendant will commit another offence, the defendant's criminal history does not support the Court being satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence.
2. The defendant has only been convicted of one "serious offence" as defined under the Act, namely the "serious sex offence". I have earlier discussed how such a submission should be approached as a matter of principle.
3. When considering the range of offences which meet the statutory definition of a "serious sex offence", the offence committed by the defendant is at the lower end of that range as regards its maximum penalty. It is an offence which carries a maximum penalty of 10 years' imprisonment when dealt with on indictment and can also be dealt with summarily with a maximum penalty of two years' imprisonment. Other offences which meet the statutory definition of a "serious sex offence" carry the maximum penalty of imprisonment for life (presumably this refers to offences such as aggravated sexual assault in company, persistent sexual abuse of a child and sexual intercourse - child under 10).
4. The "serious sex offence" committed by the defendant was assessed by the sentencing judge as being in the low range of objective seriousness for offences of its type. This was one factor which contributed to the defendant being sentenced to a fixed term of six months' imprisonment for the offence served wholly concurrently.
5. The State mischaracterised the defendant's pattern of offending by inferring that the defendant poses a significant risk of sex offending of greater seriousness than the offences which he committed. The Court should not draw the inferences which the State sought to draw about the possible consequences of the defendant's conduct (i.e.. serious sex offending of greater severity) from the defendant's expressed state of mind and actions.
6. Each of the examples relied upon by the State to characterise the defendant as possessing an intention to commit a more serious offence involved the defendant voluntarily ceasing the offending following an interruption. These were not situations where the intervention of a third party was required to prevent the offence from continuing; rather, the defendant made an active decision to cease the offending in response to the victim's reaction.
I will now address each of these aspects. On the material before the Court, I do not consider that the defendant's submissions may be accepted as having the effect of significantly diminishing the defendant's risk of re-offending for serious sex offences in the manner proposed by the defendant, for the following reasons:
1. Counsel for the defendant conceded that, if the defendant's previous patterns of offending continue, there is a strong likelihood that he will have future involvement with the criminal justice system, (that is, that he will commit another offence). However, that criminal history does not indicate, it was contended, a sufficient likelihood that the defendant will commit another serious offence in future. As I foreshadowed in my discussion of the relevant principles at [23] above, I have taken into account that only a single serious sex offence has been committed by the defendant, but this must be weighed against the other factors I am required and permitted to take into account under ss 9(2) and (3) of the Act which indicate there is a sufficient risk that the defendant will commit another serious offence. I will address the following factors in more detail later in my judgment, but I note here four particular factors (enumerated (i)-(vii)) that support a finding of a risk of committing a serious offence, notwithstanding the defendant's commission of only one serious sex offence:
1. Dr Elliott's psychiatric report finds that the defendant was undergoing auditory command hallucinations when he committed the serious sex offence. Auditory hallucinations are an ongoing "chronic" symptom for the defendant, who stated that they were present on 12 December 2022 during a consultation with psychologist Ms Melanie Rowe. On 19 January 2022, Ms Kirrin Farrant noted that the defendant's support worker Tayla stated that the defendant had been experiencing "increased voices" and "increased paranoia, as he frequently believes he can hear someone trying to get into the house." It is possible that the severity of the defendant's auditory hallucinations may fluctuate, as he reported to Ms Melanie Rowe on 4 January 2023 that "his voices continue to be improved after the cultural ceremony at the beach." However, there is an ongoing risk that the defendant may undergo auditory hallucinations, including the command hallucinations he previously experienced, which caused him to commit, or contribute to his commission of, another serious sex offence.
2. On 19 January 2023, the defendant reportedly admitted to Ms Kirrin Farrant that he has used cannabis on four occasions since leaving custody. He has once tested positive for drug use after smoking cannabis with his brother after his father's funeral. Because much of the defendant's past offending has been in the context of drug use, the defendant's recent relapses into drug use, illustrate the defendant is at risk of both future drug use and offending. Given the defendant's pre-existing diagnosis of schizophrenia, there is a significant risk that future drug use by the defendant, including potentially cannabis use, may be associated with an increased risk of psychosis. This was raised by the State in cross-examination of the defendant's NDIS-funded behavioural psychologist Mr Justin Clark, who affirmed that this was his understanding.
3. At the time that Mr Clark wrote his report praising the defendant's progress in the community, he was not aware that the defendant had used cannabis on four occasions rather than the one occasion he admitted to Mr Clark. Mr Clark stated that he would not "rate" cannabis use "as a high risk factor" in comparison to methylamphetamine, which the defendant has not recently tested positive for. In this preliminary hearing it is not my role to assess precisely how much of a risk factor cannabis, or to assess the risk of cannabis use in comparison to other drugs the defendant has used in the past. In my view, the defendant's four occasions of cannabis use contribute to the satisfaction of the threshold of substantial risk for several reasons, including the availability of medical evidence such as Dr Elliott's psychiatric reports linking the defendant's drug-taking generally with the risk of further serious offending. The RAR similarly found that the defendant's "substance abuse and mental health appears to perpetuate his risk of sexual offending." The following excerpt from the RAR expands upon the defendant's risk of serious sexual offending associated with his substance abuse:
Substance abuse has been a risk factor identified to be directly related to [HT]'s risk of serious sexual, violent and general offending.
[HT] has admitted to intravenous drug use during his current incarceration despite prescribed monthly buvidal injections. [HT's] substance use has a direct effect on his mental health stability and experiences of psychosis. It is also likely that his general offending (e.g., break and enter) is to meet the need of funding illicit substances. As noted in [HT's] criminal history, he has engaged in or attempted to engage in sexual offending during the commission of break and enters. [HT's] access to potential victims would be considered a high-risk situation for impulsive sexual offending.
(My emphasis in italics.)
1. Indeed, counsel for the defendant conceded generally that "the use of illicit substances poses a risk factor for the defendant." I correspondingly evaluate the defendant's use of cannabis as a relevant risk factor. Given the role that auditory command hallucinations have played in the defendant's commission of a serious sex offence, there is a possible link between the risk of drug-induced psychosis and future commission of a serious offence.
2. On 4 January 2023 the defendant communicated to Ms Melanie Rowe "that when his order ends, he would like to stop all NDIS supports and live independently of all services except for Centrelink and the bank." Under the NDIS the defendant lives in supported accommodation, receives behavioural psychological therapy and is currently receiving 24/7 supervision by two support workers. As the State submitted, this support appears to have been essential in assisting the defendant to manage his mental illnesses, temptations to use drugs, and to support the defendant to live in the community without reoffending, including serious reoffending. If the defendant were to follow through with his expressed intention to cease all support services, which he would be at liberty to do once his parole ends if no other orders (such as an ESO or community treatment order) are implemented, this would increase his risk of reoffending, including committing another serious sexual offence.
3. It was also submitted by the State that the defendant had made various inconsistent statements concerning his intention to relocate to Nambucca (recorded on 30 January 2023 by Ms Kirrin Farrant) and to Glen Innes (a location where the defendant had committed a robbery - a statement recorded on 02 February 2023 by Ms Farrant), both of which would entail departing from his present NDIS supports including supported accommodation.
4. In cross-examination the defendant's NDIS-funded behavioural psychologist Mr Justin Clark stated that he would "expect" "somebody like" the defendant to "make statements off the cuff … plans coming and going change all the time". Mr Clark attributed the defendant's inconsistent statements about his plans as being "More likely the personality than the primary mental health condition." Regardless of whether this behaviour is characteristic for the defendant and a feature of his psychological disposition, it remains an indicia of risk that the defendant coulda commit a further serious sexual offence if he acts upon his expressed intentions to remove himself from his present supports. For the purposes of this preliminary hearing, the State has provided sufficient documentary basis for an indicia of risk which I am entitled to and should, in my view, take into account, without resolving conclusively at this preliminary stage complex questions of fact such as the precise cause of the defendant's inconsistent statements and the likelihood that he will act upon them.
With regards to the significance of the serious sex offence committed by the defendant being "at the lower end of that range [of serious sex offences] as regards its maximum penalty", I accept the State's submission, following Schmidt AJ in Hyde at [23]-[24], that the definition of a serious sex offence in s 5 of the Act does not provide for any distinction to be drawn between the specified offences such that the maximum penalty for an offence is not in itself a significant consideration under the Act.
With regards to the assessment by the sentencing judge that the serious sex offence was at the lower range of objective seriousness, this Court has before it additional or new material which was not before the sentencing judge. Notably, during oral submissions the State submitted that the defendant had disclosed to a community corrections officer after the serious sex offence that his intentions were more serious with respect to the 15-year-old victim than the outcome that eventuated. I note that on 30/11/2022 the case note report of Ms Kirrin Farrant, Kempsey Community Corrections, records the defendant as stating:
[...] he takes solace in the fact that the extent of his offending against the 16 y/o male, was nowhere near as serious as what his mind wanted him to do in that moment. He said he was by no means excusing or lessening his behaviour, just trying to indicate it could have been much worse.
When this intention to commit a more serious offence is taken into account alongside the defendant's history of auditory command hallucinations, there is a risk that the defendant's mind may in the future "wan[t] him to do" actions constituting a serious sex offence, and that the defendant will actually engage in such behaviour.
Counsel for the defendant contended that it would not be appropriate for the Court to draw inferences from such evidence concerning the defendant's state of mind to conclude that the defendant's previous offences might have been of greater severity. Counsel for the defendant submitted that the Court is to take the past offences on their facts. However, evidence concerning the defendant's state of mind during previous offending which reveals that his mind desired, or he experienced auditory command hallucinations or some other form of compulsion, to carry out sexual offending of greater severity is relevant to the risk of commission of future serious offences at this stage of the Court's assessment of the States application.
With regards to the argument that speculative inferences from the defendant's expressed or purported state of mind and his actions should not be drawn concerning the defendant's risk of committing further and more serious sex offences, it is my view that for the purposes of this preliminary hearing there is sufficient factual material before the Court to substantiate a finding that there exists significant indicia of the defendant's potential substantial risk of committing a further serious offence. By making this finding, I am not engaging in speculation, but interpreting the evidence presented to me, including the medical evidence, the RAR and the submissions based upon the material before the Court in this preliminary hearing, and drawing conclusions which are warranted by the multiple risk factors which are operative in the defendant's current context, having regard to the principles discussed earlier in the judgment.
With regards to the argument that during the serious sex offence and previous offences the defendant voluntarily ceased his offending behaviour based on the response of the victim, I accept the State's submission that there is no evidence that this motivated the cessation of offending behaviour rather than the fear of being caught or the realisation that he would not be able to achieve the outcome that he sought.
[12]
Section 9(3)(c) - Assessments by Qualified Psychiatrist and Psychologist
The State summarised the contents of nine reports by seven psychologists and psychiatrists ranging in date from 6 October 2000 to 14 January 2022. The State's compendious summary of these reports was uncontentious and, in my view, conformed with the material filed for the purpose of the preliminary hearing. I deem the most recent three psychiatric assessments by Dr Gordon Elliott to be the most relevant to the risk of further serious offending by the defendant. The summary of these assessments is extracted below, without commentary:
Report of Dr Gordon Elliott, psychiatrist (for the State Parole Authority), dated 14 January 2022.
Dr Elliott had prepared previous reports on the defendant on 29 March 2021 and on 10 February 2020. That 2020 report was prepared for proceedings in the Coffs Harbour District Court for the serious sex offence. Dr Elliott noted the concerns of a Ms Daniels who had herself noted that the defendant was suffering from psychotic symptoms on 12 October 2021. However, on review, Dr Elliott noted that the defendant presented as relatively stable. The defendant told Dr Elliott that he could not participate in sex offender programmes as he had to listen to the confessions of "a high profile paedophile".
Dr Elliott considered that the explanation for the supposed psychotic symptoms was a more mundane one but noted that the defendant claimed to be experiencing ongoing auditory hallucinations. The defendant claimed to have six daughters from multiple past relationships; Dr Elliott was uncertain whether this number of daughters was a deluded belief as he had only previously been told of one adolescent daughter (the defendant has two confirmed daughters and has queried recently whether he may have more). The defendant claimed that the auditory hallucinations no longer told him to engage in sexual behaviour, as he had reported to Dr Elliott previously. The defendant denied that he was at risk of sexual recidivism.
Dr Elliott concluded that the defendant's diagnosis remained one of chronic schizophrenia. He noted that the defendant appears to have accommodated what now seemed to be chronic auditory hallucinations. He noted that the defendant is significantly institutionalised. He noted that the defendant expressed an awareness that he would require support if he was to avoid a return to custody.
Dr Elliott, 29 March 2021. The plaintiff notes that in the further report dated 29 March 2021, Dr Elliott first reviewed the defendant on 30 July 2020, at which the defendant said his delusions about being made to perform sexual acts for elders in the Top End were no longer occurring and his auditory hallucinations had ceased altogether. However, at a further review on 25 February 2021 the defendant had deteriorated and reported auditory hallucinations, including voices telling him what to do and to do stuff that he didn't want to do. The defendant said he was bisexual. He said that he was disgusted by his previous sexual offences towards minors. Dr Elliot concluded at page seven of the report that there "appears to be a strong link to [the defendant's] relapses of psychosis and his offending behaviour, including and in particular his sexual offending".
Dr Elliott, 10 February 2020. In this report, Dr Elliott reviewed the defendant's progress. The defendant told him that when he was released from custody he had relapsed and started using buprenorphine and methamphetamines. Dr Elliott noted that the defendant's account of his substance use was varying and at times contradictory. The defendant told Dr Elliott that he had first heard voices aged 10.
It was in this review that Dr Elliott was told by the defendant that he was hearing voices from indigenous persons manipulating him, telling him that he was important and that he was required to continue having sex. The defendant claimed that these voices had been speaking to him when he committed the serious sex offence with the 15-year-old boy. Dr Elliott noted that the defendant's account of symptoms, whilst initially appearing to draw a deliberately close nexus between his mental illness and his offending, subsequently proved extraordinarily elaborate and hence convincing for genuine psychotic symptoms associated with and motivating his offending behaviour.
Dr Elliott observed that he was mindful that the defendant was more than aware of the potential for his illness to offer him mitigation with regards to sentencing but did not consider that he was feigning symptoms during the assessment. He considered that the defendant remained a high risk of both sexual recidivism and general offending and that his prognosis was extremely guarded.
(Emphasis in italics has been added by the plaintiff.)
I will now extract one passage of Dr Elliott's psychiatric report dated 10 February 2020 which is particularly relevant in supporting the causal link between the defendant's auditory hallucinations and his serious offence, and hence supporting the risk that the defendant may commit a future serious offence given that the defendant's auditory hallucinations have been ongoing. I note, as mentioned in the summary above, the context that Dr Elliott prepared this report for the purpose of proceedings concerning the serious sex offence. Dr Elliott's report indeed notes that "[HT] has been charged with indecent assault of a person under 16 years of age." This statement is significant because Dr Elliott's conclusion in the passage below, concerning the defendant's "genuine psychotic symptoms associated with and motivating his offending behaviour" can be read in the context where the most salient example of "offending behaviour" at the time of Dr Elliott's report is the defendant's serious sex offence. Thus, Dr Elliott's report firmly links the defendant's "psychotic symptoms" with the serious sex offence. The relevant passage is the following, and I have italicised for emphasis the causal link between auditory hallucinations and the serious offending:
[HT] then told me he was experiencing voices. It was initially difficult to discern whether he was referring to long past experiences of auditory hallucinations or more recent occasions. Eventually it became clear he was referring both to his recent time in the community, including around the time of the offence, and currently in custody. He spoke initially of his voices as like "an emotional storm." He then referred more specifically to hearing two female and one male Indigenous voices from people he believed were calling from the Top End of Australia. He said the voices were manipulating him, telling him that he was important and that he was required to continue having sex. His comments included statements such as, "these voices are from the top end. They said I am important to them sexually. They don't tell me that, but it's the only reason. I feel I'm being used to help elderly Aboriginal people. They always tell me to masturbate." He also spoke of the voices telling him that he is a rock spider or dog, common custodial terms for paedophiles and informants respectively. He complained however that, despite his extensive custodial experience, he has no knowledge of what these terms really mean and yet is somehow at risk because inmates around him can hear his voices referring to him in these terms.
[HT] went on to make direct remarks about his offences. He told me his symptoms caused him to, "behave foolishly with this young fella (the victim). There was no sexual contact. I asked him. I didn't force myself on anyone. There was no act, it was just stupid behaviour due to these voices." He again stated that he felt he was being manipulated by tribal people. He also spoke confusedly about these voices occurring since he was 10, and that between the age of nine to 13 years of age he was forced to perform sexual acts with other boys on camera. He spoke also of his brother giving him pornography when he was eight years of age, masturbating to the images and then hearing voices about sex ever since. He claimed he has struggled with the conflict between wanting to change his life, find God and stop offending, and the voices challenging these goals and telling him he is 'too important' sexually to alter his behaviour. He also made muddled contradictions about the effects of his antipsychotics, telling me despite the medication reducing his libido, seemingly a desired effect, he was instead suicidal. His account of symptoms, whilst initially appearing to draw a deliberately close nexus between his mental illness and his offending, subsequently proved extraordinarily elaborate and hence convincing for genuine psychotic symptoms associated with and motivating his offending behaviour.
Dr Elliott's psychiatric report of 29 March 2021 provides further evidence which supports my determination that the defendant's four recent occasions of drug use, his auditory hallucinations, and the interrelation between his drug use and the risk of psychoses, are indicia which increase his risk of committing a serious sexual offence. Dr Elliott's conclusion to this report stated:
[HT] has a number of historical risk factors for future offending. This includes his traumatic early developmental history, his underlying personality disorder, his major mental illness, his substance use problems, his extensive offending history from an early age and his repeated failures to comply with supervision.
I extract further relevant statements by Dr Elliott below:
He spoke of voices making him paranoid, or "Telling me what to do and what to say, telling me to do stuff I don't want to do, or something that has to be done for the worlds sake. I'm sick of it. I don't want to be told what to do." He gave further convincing examples of his auditory hallucinations, telling me that his voices, "Tell me that I have to lie to everyone, and it's for their own good and not my own."
Most recently he has suffered a relapse of psychotic symptoms as a result of custodial illicit substance use.
There also appears to be a strong link to [HT's] relapses of psychosis and his offending behaviour, including and in particular his sexual offending.
Dr Elliott's most recent psychiatric report dated 14 January 2022 records the defendant as stating that "he now considers his voices as part of his life and he has no power over them." As noted in the State's summary excerpted above, the defendant claimed that there had been a change since "his previous report of hearing voices urging him towards sexual behaviour":
He [the defendant] replied, "yeah I remember that, but they didn't talk about that anymore. I don't follow any of that shit. I'm not part of that anymore. I don't care what black magic they use on me up there in the Top End, I'd rather listen to white man's law than black man's law. (He said this latter part with a smile). I'm not influenced anyway by these voices anymore."
In my view, this change which the defendant reported during his interview on 4 January 2022 does not safeguard against the substantial risk that his auditory hallucinations may in the future, as they did in the past, command or encourage him to commit a serious sexual offence, and that the defendant will consequently commit such an offence.
Counsel for the defendant submitted that it is incorrect for the Court to rely on evidence about the defendant's ongoing delusions and auditory hallucinations to find that the defendant presents an unacceptable risk. It was submitted that the defendant's behaviour notwithstanding his auditory hallucinations indicates against finding unacceptable risk. Two incidents were pointed to where the defendant was willing to accept support during an escalation of his mental illness from his NDIS support workers. When the totality of the material before the Court is considered, including evidence as to the defendant's expressed desires to cease or relocate away from all such supervisory support services, in my view, the defendant requires mandatory supervision in order to safeguard against the commission of a future serious offence which is made more likely by his ongoing auditory hallucinations.
[13]
Section 9(3)(d) - Statistical Assessments As To Likelihood Of Persons With Histories And Characteristics Similar To The Offender Committing A Further Serious Offence
For the purposes of this preliminary hearing, the State's summary of the most recent statistical assessments was not disputed by the defendant, and is excerpted below:
2022 RAR. A Risk Assessment Report ("RAR") has been prepared by Rochelle Pateman, senior psychologist, dated 9 September 2022. Ms Pateman was unable to interview the defendant, who sent a message saying that "I want nothing to do with psychology". Consequently, an evaluation of the defendant's attitude to an ESO or his current level of sexual preoccupation, for example, was not able to be properly completed. However, Ms Pateman did have the benefit of other in-person clinical assessments of the defendant conducted over the last seven or so years.
In summary, Ms Pateman described the defendant as presenting with complex needs including significant mental illness, personality vulnerabilities, institutionalisation and chronic substance abuse. She also identified that the defendant presented with some treatment resistance regarding residual experiences of auditory hallucinations and his stability was further affected by intermittent substance abuse whilst in custody.
Ms Pateman noted that protective factors included that the defendant had made contact with family members and had been approved for NDIS funding and had commenced engagement with support services. She noted however that family members appear to lack appropriate insight into the defendant's risk related issues. She noted that the defendant's early childhood experiences appeared marred by significant neglect, abuse and poor role modelling, culminating in him engaging in substance abuse from a young age and, shortly after, commencing contact with the criminal justice system.
The defendant's sexual offending history was described as non-linear, which included the targeting of victims from a range of age groups and gender and within their homes and in public places. She described the defendant's offending behaviour as appearing opportunistic, with minimal planning, and it had exclusively occurred against strangers. Ms Pateman noted that the defendant's offending had also included interpersonal violence. She noted that the defendant's acceptance of responsibility for his offending and general behaviour fluctuated during his treatment in the SRP:SO sex offending programme in 2014 to 2015. This was characterised by minimising, justifying and shifting the focus of his sexual offending. He was also noted to engage in sexually abusive behaviour towards staff and other offenders, which he denied when challenged. He later acknowledged himself as potentially a high risk of reoffending, labelling himself "captain risky".
Ms Pateman noted that the defendant's institutional incident details records were fraught with instances of being assessed as at risk of self-harm and suicidality, actual self-harm, paranoid or bizarre behaviour, appearing to respond to hallucinations, threats to harm or kill others, abuse, threats and intimidation towards correctional staff, property destruction, fighting with other inmates, contraband possession and spitting at staff.
Ms Pateman relied particularly on the assessments conducted by Dr Elliott. She described the defendant's mental illness as a relatively treatment-resistant psychotic illness, complicated by ongoing substance abuse, antisocial personality traits and institutionalisation. She noted that he had also struggled throughout the years with medication compliance. He was currently prescribed a depot injection of Abilify. She noted that it was possible that the defendant over-reported the occurrence of auditory hallucinations in an attempt to receive secondary gains or minimise his responsibility. She noted Dr Elliott's view that there appeared to be a strong link between relapses of psychosis and offending behaviour, particularly sexual offending.
Ms Pateman stated that, "taking into consideration the defendant's personality vulnerabilities, inconsistent and at times atypical self-report and conflicting information on file, it is hypothesised that the defendant may at times malinger regarding his psychiatric experiences. This appears to occur in the context of secondary gain or to reduce his responsibility for his sexual offending".
Ms Pateman referred to the various treatment reports, which are summarised later in these submissions. She noted that during his current incarceration the defendant had not engaged in any offence-specific programmes and had declined participation in HISOP.
Risk assessment. A risk assessment of the defendant is set out from paragraphs [53]-[69] in the RAR. Ms Pateman noted that the last general risk assessment, using the LSI- R assessment, was conducted in February 2017 and the defendant's risk/ needs were assessed as falling within the high risk category for general and violent offending. The defendant's risk of sexual reoffending had been assessed previously using an actuarial risk assessment, the STATIC-99R. The most recent assessment was conducted in November 2020. Ms Pittman noted that new terminology is used to describe what was formerly referred to as the 'high risk' category and which is now referred to as 'well above average' risk, or level IVb. The rate of sexual recidivism for sexual offenders within the routine normative samples who had the same scores as the defendant fell between 37.8 and 50.1% over five years. 99.7% of sex offenders in the routine sample would score below the defendant's score. The rate of recidivism for individuals with a score of nine (the defendant's score) was estimated to be over eight times higher than that of the typical sex offender.
The STABLE- 2007 tool was also used to identify stable dynamic risk factors involved in sex offending for the defendant. The scoring of the defendant on the last administered STABLE- 2007 assessment was 16, which suggests a high density of criminogenic needs relative to other male sexual offenders. The areas of clinically significant concern for the defendant were his capacity for relationship stability, impulsivity, poor problem-solving skills, deviant sexual interests, and co-operation with supervision. Other areas of concern noted were significant social influences, general social rejection, lack of concern for others, negative emotionality, sex drive/preoccupation and sex as coping.
Ms Pateman reviewed the most recent STATIC 99R and considered it remained valid. She noted that the STABLE 2007 can be combined with the STATIC 99R to generate a composite assessment of risk/needs. The defendant's composite risk/needs level, when combining static and dynamic risk factors, was in the 'well above average' risk level.
She noted that the defendant's criminogenic needs included substance abuse, a risk factor directly related to his risk of serious sexual violence in general offending; problems cooperating with supervision and engaging in behaviour that adversely impacts on his medication compliance such as illicit substance abuse; limited opportunities to develop interpersonal intimacy skills as a result of spending most of his adult life in custody; engaging in a pattern of impulsive and poorly thought out decisions in both custody and the community relating to his offending; substance abuse, medication noncompliance and lack of stable accommodation.
Ms Pateman noted that the defendant had also recognised that he has poor problem-solving skills. She said that his experiences of negative emotionality and social rejection appear to be exacerbated when in poor mental health, with frequent themes of suspiciousness, paranoia and perceived injustices. She noted that he had a long history of sex offending and sexually inappropriate behaviour in custody and in the community and had also historically reported using masturbation to self-soothe when mentally unwell. He had reported to the PBDS that he used to masturbate 10 times a day, which suggests that it is likely that the defendant had previously experienced sexual preoccupation.
Ms Pateman said that it is difficult to assess the defendant's current levels of risk related to sexual preoccupation, due to his refusal to engage in the current risk assessment. She noted that in 2020 he was alleged to have been making unwanted sexual advances towards young Aboriginal men in custody, which was indicative of recent sexual preoccupation. The defendant had however reported experiencing a low libido related to his psychiatric medication regime. She noted that a protective factor included his receipt of support under the NDIS.
Ms Pateman considered that the defendant will require ongoing supports and extrinsic motivations to maintain stability in the community and to reduce his overall risk of reoffending. His risk scenario was wide- ranging. The most likely risk scenario for further sexual offending would be an opportunistic and impulsive encounter with a stranger of varying age or sex. She considered that he was most likely to engage in non-contact or exhibitionist sex-offending when in public places, whereas in private locations, such as in the commission of a break and enter or coaxing a potential victim to a secluded location, the defendant would be at an increased risk of engaging in contact sexual offences. She considered that it was possible that future sexual violence could approach the threshold of a serious sexual offence as defined in the Act.
So far as ongoing supervision was concerned, Ms Pateman considered that there were a number of risk management strategies that may or may not apply under an ESO. This included engagement with a psychologist, supporting the defendant to further develop culturally appropriate community supports, scrutiny of social contacts, unannounced home visits and drug and alcohol testing, ensuring compliance with the medication regime, possibly having an updated assessment of his intellectual functioning, and consideration of electronic monitoring equipment. The plaintiff notes that Ms Pateman was not suggesting that these things must be put in place but rather setting out matters that may or may not be imposed under an ESO.
[14]
Section 9(3)(d1) - Reports by Corrective Services NSW
I have had regard to reports prepared by Corrective Services NSW concerning the extent to which the defendant can reasonably and practicably be managed in the community. Two of these reports which are particularly relevant to the defendant's risk of committing another serious offence, as highlighted in the State's submissions, are the defendant's Pre-release Report dated 15 December 2020 and Supplementary Pre-release Report dated 7 January 2021.
The Pre-release Report notes that the defendant "stated he thought it would be safer for everyone if he was to remain in custody. He went on to say in the community he would "want drugs" and maybe "kill or hurt someone"". The Report also provides substantiation for the defendant's risk factors of drug use and auditory hallucinations, noting that:
[HT] has an unenviable history of poly substance abuse/ addiction issues which present a direct correlation to his offending behaviour. At the time of the offences he stated he was regularly smoking cannabis, drinking alcohol and injecting methyl amphetamine.
He admitted to un-prescribed buprenorphine use in custody however says he has not used since commencing the Buvidal replacement pharmacotherapy program several months ago. While he reported stability on this program he noted it seemed to wear off after a couple of weeks and had some unwanted side effects…
He reported in the period leading up to the [serious sex] offence, he was experiencing irrational thoughts and auditory hallucinations despite being treated via monthly injections. He claims to have been using illegal drugs due to unwanted side effects of his treatment.
The Supplementary Pre-release Report notes that "Records indicate he [the defendant] has been experiencing auditory hallucinations and homicidal thoughts". The defendant, during a period of mental health deterioration, "Expressed his intention to murder this person [a particular person in the community] upon his release".
The State's summary of the defendant's most recent Risk Management Report is excerpted below:
An RMR has been prepared by Mick Glover, Community Corrections Officer, dated 18 October 2022. It notes that the defendant is currently living in supported accommodation sourced through NDIS funding. Mr Glover interviewed the defendant by phone on 10 October 2022, and he noted that at times the defendant's understanding may have been compromised by cognitive or mental health issues. When asked to discuss his risks, the defendant only identified alcohol and drug issues. Mr Glover observed that the defendant appeared to have limited insight into the nexus between his drug use and consequent deterioration of his mental health and subsequent increased risk of re-offence. The defendant also disclosed that he had been using pornography.
Proposed risk management strategies include (i) weekly contact with his CCO and unannounced home visits on a minimum monthly basis, (ii) attempting to use behavioural change therapy through various exercises (including managing high risk environments, managing cravings and pro-social lifestyle), (iii) field visits and surveillance, (iv) monitoring associations, (v) electronic monitoring, and (vi) future psychological risk management intervention.
Other engagement/supervision contemplated includes a curfew and schedule (in order to develop a routine), accommodation requirements and supervision, place and travel restrictions (including not visiting a place where persons under 18 reside), finance/expenditure monitoring, employment monitoring, alcohol, drugs and weapons possession conditions, non-association conditions (including with children), internet/social media conditions to permit associations to be monitored, search and seizure relating to compliance with the ESO and associations, and conditions enabling directions to be given concerning engagement with psychology services and community mental health clinicians.
So far as electronic monitoring is concerned, Mr Glover pointed out that there is no requirement for this as part of the defendant's current parole. He suggests however that under an ESO it would assist in monitoring adherence to the schedule of movements and enable audits to be conducted to identify any concerning patterns in his behaviour, as well as monitoring his whereabouts.
[15]
Section 9(3)(e) - The Defendant's Participation in Treatment and Rehabilitation Programs
The State's summary of the defendant's participation in various rehabilitation and treatment programs was broadly accepted by the defendant with the caveat that it be read in the light of the defendant's cognitive limitations, mental illnesses, and traumatic background (including childhood sexual abuse). It is excerpted below:
The defendant has previously engaged in Alcohol and Other Drug Treatment (Relapse Prevention) within CSNSW custody. He has reportedly attended individual AOD counselling in Tamworth (possibly in 2001) and Lithgow (2003) as well as completing a group Relapse Prevention Program in Lithgow (2003). He has also completed the One Day Alcohol and Other Drug Program and the Getting SMART Programme at Grafton (in 2006 and 2007 respectively). He has also completed the Anger Management Program at Grafton Correctional Centre.
CUBIT treatment. The defendant was offered a place to in the CUBIT (sex offenders therapy program) in 2007, however refused due to characterising himself as a victim of childhood sexual abuse and stating that he did not want to associate with paedophiles.
The defendant subsequently accepted a second offer to participate in CUBIT in September 2013 and his engagement "varied, reflecting the effects of acute mental health symptoms, personality traits and fluctuating motivation". His input was characterised as demonstrating "a superficial understanding of concepts discussed" and his disclosure regarding sexual regulation and mental health symptoms "varied depending on his audience", with conflicting reports being made to CUBIT psychologists and Personality and Behavioural Disturbances Unit ("PBDU") staff. The defendant was assessed as actively mentally unwell during sessions, "consumed by recalling the details of delusions … responding to external stimuli", and on 30 January 2014 it was decided that his mental health symptoms, coupled with his difficulty in understanding the program concepts, merited suspension of his treatment.
On 21 May 2014, the defendant re-commenced CUBIT at MSPC, but was suspended on 23 May 2014 after two sessions when he touched the skirt of an education officer.
SRP: SO treatment. The defendant took part in the Self-Regulation Program: Sex Offending ("SRP:SO") between 10 November 2014 and 12 November 2015. In the course of the program, the defendant's intellectual functioning was assessed. His verbal comprehension index and his perceptual reasoning index scored in the low average range of intellectual functioning.
The defendant's understanding of concepts was described as "superficial" and he was observed to lack an understanding of treatment terms. During participation in the SRP: SO he was receiving depot anti-psychotic medication, however he continued to report experiencing auditory hallucinations. The defendant was noted to make threats of violence to staff and other program participants, with staff querying whether this behaviour was calculated to "avoid treatment or be removed from the therapeutic ward due to interpersonal difficulties with other offenders (e.g., problems related to owing other offenders tobacco or other products)."
The defendant was noted to have frequent absences from sessions due to sleeping in (as a result of reported insomnia in the lead up to his fortnightly dose of anti-psychotic) or complaints of nausea, complaints which were difficult to verify in terms of accuracy due to his "pattern of excusing himself when group discussions related to other group members' offences", which the defendant had reported that he had "difficulty listening to".
The defendant was also noted to provide contradictory information to different people, which the authors of the Treatment Report opined could be caused by (1) a lack of self-awareness; (2) attempts at manipulation; (3) altering information based upon the audience, e.g., expressing disgust for homosexual behaviour in-group but articulating homosexual fantasises and behaviour with other participants during individual contact; and (4) engagement in positive impression management.
The authors concluded that:
"The defendant's sexual offending and sexualised behaviour in custody would indicate long-standing difficulty with regulating his sexual urges. [The defendant] acknowledged becoming fixated on sex ("I was sexualising everything") whenever released from custody, experiencing arousal to exposing his genitals, and using masturbation to soothe himself when experiencing symptoms associated with his mental health. Much in the same way that instability in his mental health impacted negatively on [the defendant's] ability to regulate his emotions and general behaviour, poor mental health tended to result in [the defendant] being more sexually impulsive; hence acting upon deviant sexual urges that he could more successfully inhibit when mentally well."
During his participation in the program, despite denying any issues with sexual self-regulation, the defendant:
"… [acknowledged] engaging in sexual behaviour with another member of the therapeutic wing, [exposed] himself to another offender, pornography [was] discovered in his cell by custodial staff, and [disclosed] masturbating to sexual thoughts about a male therapist".
The defendant was placed on a behavioural management plan during his participation in the program, to assist him in increasing his compliance with supervision, however it proved to be ineffective, with the defendant continuing to breach conditions of the plan, wing guidelines and correctional centre routine throughout treatment. The authors of the report noted that "Reprimands for non-compliance with rules appeared to have limited consequence for [the defendant], and his constant rule breaking seemed to have the effect of fatiguing staff to the point that they no longer took notice of minor rule breaking".
Key warning signs for elevated risk for the defendant were noted to be unstable mental health, drug and illicit substance abuse, rejection of supervision and sexual pre-occupation.
The report-writers also noted that:
" The defendant has pattern [sic] of deceiving or lying to staff in an effort to obtain things that he wants which he may not be entitled to. All staff involved in his case management are encouraged to regularly converse so that instances of deceit can be detected and addressed. [The defendant] then benefits from being encouraged to distinguish between needs and wants, or seek his needs in less manipulative ways".
Proposed HISOP treatment. The defendant has been described as resistant to engaging in HISOP and has not participated in any further treatment during his most recent period of incarceration. On 21 May 2021, the defendant declined an offer to participate in HISOP, citing "various issues including association issues, recent deaths in the family, auditory hallucinations and fearing for his life".
Involvement with the Personality and Behavioural Disorders Service ("PBDS"). The defendant was referred to the PBDS on 10 January 2010 as a result of his continuing difficult institutional behaviour. In a behavioural assessment dated 28 July 2010, PDBU staff confirmed the previous diagnosis of Antisocial Personality Disorder made by Dr Delaforce on 6 October 2000. The behavioural assessment identified the following behavioural functions exhibited by the defendant in order of prevalence: forcing others to change their mind, for compliance; conduct motivated to obtain a tangible object (e.g. cigarettes); sexual gratification; behaviour motivated to avoid a particular demand; and expressing interpersonal difficulty as being disrespected or being treated unfairly.
The authors of the report stated:
"The defendant appears to have a very low tolerance for not getting his needs met immediately … [and] appears to have an expectation that people in his environment should meet his needs and finds it very difficult to cope with refusal of requests of delays in meeting his requests … he tends to react impulsively with anger or aggression when others do not comply with his expectation.
From analysing his sexual offences, the defendant also appears to have an expectation that others should meet his sexual needs as well. There is also some suggestion that he may derive sexual gratification from imposing his sexual behaviour upon others".
The defendant completed the Personality Assessment Inventory ("PAI") on 22 January 2001 and again on 22 November 2007. The first PAI returned a profile of someone "who might be described as pragmatic, independent, competitive, confident, egocentric, mistrusting and suspicious of others." The second PAI profile was invalid due to [HT] reporting "an unusually high and unlikely, number of negative symptoms", which was observed to be consistent with "a tendency to think in categorical terms".
The defendant has also reportedly completed a number of educational courses in custody, including in Aboriginal Arts and Cultural practices, general construction OHS, and an introductory cleaning course. In one of his sentence proceedings, the defendant claimed to have completed a carpentry course in custody.
The defendant has completed the Work Readiness in Education (WRED) program, which allowed him to gain employment within the gaol setting in April 2013. He has engaged in sporadic employment whilst in custody, with a note that he was employed as an activities sweeper for a time in 2003 at Lithgow Correctional Centre. He was employed for four months in Buy Ups/Canteen in 2018 and for one month in 2019, although internal movement impacted upon his capacity to continue this employment. He was also employed as a Grounds and Hygiene General Hand for a few months in 2020 before being transferred.
[16]
Section 9(3)(F) Compliance With Obligations While On Parole
The defendant submitted that his response to community supervision since 23 September 2022 has been largely positive. He relied on Mr Clark's report and case note concerning positive engagement after searching for "teen porn". (Pages 10 - 12).
In this respect, the State contended as follows:
The defendant's response to community supervision has been very poor. The defendant's first breach of probation occurred in December 1996, as a juvenile. He was then dealt with for breach of a community service order in December 1996. On his release from custody on 30 November 1999 for break, enter and steal, the defendant failed to comply with his post-release arrangements, which included a move to Sydney to take up an Aboriginal football scholarship, and instead moved to Coffs Harbour to live with his father. He re-offended sixteen days after his release by committing a further break, enter and steal and enter with intent offence, resulting in the revocation of his parole order on 1 January 2000.
Having served a non-parole period for that offence and following his release to parole on 5 December 2002, the defendant re-offended within thirteen days on 14 December 2002 by committing the offence of assault occasioning actual bodily harm. He returned to custody on 18 December 2002 and his parole was formally revoked on 13 February 2003.
The defendant was then released to parole on 28 October 2003 and his subsequent response was described as "unsatisfactory". He failed to report on numerous occasions, was living an itinerant lifestyle, failed to comply with directions, and, and when he did report on 5 December 2003, his Community Corrections Officer formed concerns that the defendant was substance affected due to his bizarre behaviour, in which he stated that he was having problems "controlling lustful thoughts". The defendant's parole was formally revoked on 18 December 2002 as a result of these failings and he was returned to custody on that date.
The defendant was released to parole on 29 October 2003 and returned to custody on 12 July 2004 to serve the balance of his parole as a result of being charged with destroy/damage property (two counts) and receive/dispose of stolen property (one count), offences which occurred on 1 July 2004.
The defendant was released to parole in relation to the aggravated robbery on 31 March 2009. He was paroled to live with his ex-partner and their two children. During his time on parole, he was encouraged to make appointments with a psychologist or therapist, however he did not do so. He subsequently reported that he "did not cope … and commenced abusing alcohol and other drugs." The defendant then re-entered custody on 1 May 2009 as a result of the commission of the 2009 break and enters (and where obscene exposures, acts of indecency and stalking were taken into account) in breach of his parole, and served balance of parole between 30 April 2009 and 18 December 2010.
The defendant was eventually paroled on 5 February 2016 to the Nunyara Community Offender Support Programs ("COSP"). A Breach Report dated 22 March 2016 noted that, whilst the defendant had breached his parole conditions by testing positive to cannabis on 29 February 2016, he had been "generally compliant with supervision" and therefore revocation was not recommended. He tested positive to cannabis and amphetamine on 14 March 2016 and left the Nunyara COSP on 24 March 2016 to reside with his uncle and aunt in Kempsey. He admitted to a Community Corrections psychologist on 5 April 2016 that he had engaged in further cannabis use since his arrival in Kempsey and was refusing alcohol and drug counselling at Durri Aboriginal Medical Service. As a result, a breach warning was issued on 7 April 2016.
On 5 April 2016, the defendant tested positive to cannabis and methylamphetamine and was noted to have "expressed a degree of ambivalence regarding meaningful redress of his substance abuse issues and also articulated difficulty in coping with conditional liberty. In addition, he intimated some difficulty in self/sexual regulation." He reported that his uncle was permitting his cannabis and alcohol use and had arranged a sexual encounter for him. The defendant reported that he "liked being stoned" and was unable to decline offers to take illicit drugs. He also reported "becoming sexually aroused when in the company of some females but had not acted on his urges".
Revocation of parole was sought on 14 April 2016, and the defendant returned to custody on 26 April 2016, where he remained until the expiry of his sentence on 7 July 2016. He was released from custody on this date and apparently "lapsed into substance abuse and was associating with negative peers immediately following his release". [HT] then entered custody on 14 September 2016 as a result of the commission of the index offences. He has been in custody since this time, until his parole on 23 September 2022.
I consider that, based on this analysis, it may be accepted that the defendant's response to community supervision to have been historically very poor. However, the defendant submitted that his response since 23 September 2022 has been largely positive. So too was the defendant's positive engagement after searching for "teen porn." I accept this recent history is showing positive signs but at this stage, the overall pattern would suggest the Court would be careful in making findings as to prospects of longer-term adjustments in this respect.
[17]
Section 9(3)(g) Compliance with Obligations under the Child Protection (Offenders Registration) Act 2000 NSW
Similarly, the defendant has been placed on the Child Protection Register. However, as the defendant has only recently been released to parole, and given his history of parole breaches, it is too early to predict if there will be compliance in the future.
[18]
Section 9(3)(H1) Views Of The Sentencing Court
As previously mentioned, the defendant focused on positive remarks by sentencing judge concerning low objective seriousness, (that it was not likely that the fellatio would be carried out), the defendant's remorse and that the treatment options the judge had regard to have largely been implemented (pages 6-8). I have earlier discussed the sentencing remarks in my consideration of the serious sex offending.
The remarks on sentence of Priestley SC DCJ for the serious sex offence include the following observations:
1. His Honour found that there was no planning, and that the victim was a random stranger. The offence was described as unsophisticated and as evidence of an unbalanced mental state.
2. His Honour assessed the offence as being in the low range of objective seriousness. He did however find that "the evidence suggests a meaning [sic] of the high likelihood of reoffending".
3. His Honour found that the defendant was institutionalised and noted that the defendant expressed concern of not being able to resist the command hallucinations if they direct him to harm others. His Honour noted the psychologist Ms Dombrowski's view that the defendant would require long term treatment and management over several years for treatment to be effective and to address his experience of trauma to achieve lasting gains, including his sexual abuse.
4. His Honour observed that any sentence to be imposed needed to be structured with the dates of the existing sentences already being served in mind.
In sentencing the defendant for the break enter and commit indecent assault offence from April 2009, Toner SC DCJ said that the defendant's history was disturbing, as was the nature of his offending behaviour over time. Toner SC DCJ added "this man is not in control of his sexual urges." He observed that the fact that the defendant had become a Christian did not appear to have done much to change his attitude to crime. He found that the matter did not go much further because the defendant "shot through" when the victim screamed.
In sentencing the defendant for the s 112(2) offence, Graham ADCJ referred to the defendant's substance abuse issues and observed that he had shown no great interest in seeking to do anything about it. His Honour noted that there appeared to be little evidence of remorse.
[19]
Section 9(3)(I) Any Other Information Available As To The Likelihood That The Offender Will Commit A Further Serious Offence
I note that the State provided an extensive summary of the defendant's misconduct and alleged misconduct in custody which counsel for the defendant contended was not relevant to the risk of commission of a further serious offence. I excerpt the State's submissions concerning s 9(3)(i) below:
The defendant has an extensive history of drug and alcohol abuse, commencing when he was 14 years of age with heavy cannabis and alcohol use. At the age of 19, he dabbled in ecstasy use and was apparently using ecstasy at the time of committing H8870843, the offences in which he, inter alia, exposed himself to women in the street and broke into a home, unzipped the fly of his pants, and said to the female victim, "You know what I want". In around 2016, he commenced using methylamphetamine in conjunction with alcohol, which he replaced with unprescribed Buprenorphine when he entered custody. The defendant's Buprenorphine abuse ceased in custody upon his being placed on the Buvidol program in April 2020, but he reported using intravenous unprescribed Suboxone in custody in January 2020, as it reduced the intensity of his auditory hallucinations. He has also reported abusing Suboxone during his previous 2009 - 2016 period in custody, as well as intravenous methadone and heroin.
The defendant had apparently been using intravenous drugs in custody between 21 November and 4 March 2022, with records indicating that he was found with gaol-made needles and requiring medical treatment for infected injection sites. In June 2021, he was found on two occasions smoking Buscopan in his cell and his urine subsequently tested positive for cannabis.
The plaintiff notes that, as at 29 September 2022, the defendant was prescribed 128mg of Bivudal (buprenorphine) monthly in the community, with an apparent intention to reduce this dose in the future. This is also referred to in an NDIS Service Model Assessment dated February 2022, which endorsed the use of alcohol and other drug counselling and rehabilitation.
Since release to parole, on 10 November 2022 the defendant was found to have used the search term "teen porn" on his browser and was informed that he could not search for that subject matter. Following the death of his father in November, the defendant self-reported experiencing auditory hallucinations including believing someone was breaking into his home, as a consequence of which he armed himself with a knife. later he experienced a hallucination about needing to masturbate to stop a young girl from being tortured. He also advised that he was not able to maintain an erection.
The defendant also relied on Mr Clark's report that defendant does not crave drugs and that is not a current clinical issue. Reliance was also placed upon compliance with Buvidal injection. For the purposes of this preliminary hearing, I do not propose to attach significant weight to his adverse conduct in custody but that should not be taken as an indication that the record of such behaviour is not relevant. I have taken into account his approach to drug taking in custody.
[20]
Section 5B(d): Conclusion in Preliminary Hearing
I am satisfied that for the purposes of this preliminary hearing there is an unacceptable risk that the defendant will commit another serious offence if not kept under supervision under an ESO. I come to this conclusion for the following reasons:
1. Counsel for the defendant sought to characterise the defendant's criminal history as one where his commission of a single serious sexual offence which the sentencing judge found to be of a low level of objective seriousness was the exception to a norm of offences which did not constitute serious sexual offences. It was submitted that the Court should therefore infer that the defendant likely posed a risk of future offending but not a risk of committing another serious sexual offence. It was submitted that it would not be appropriate for the Court to draw inferences about any worse consequences that might have eventuated in previous offences, and that those offences were to be taken on their facts, which involved disputed facts concerning the defendant's intentions to commit sexual offences.
2. I note that when assessing the risk of future serious offending I am required to consider the totality of the defendant's criminal history and not just his offences which constitute proven serious sex offences. I have taken into consideration both the pattern of sexual offences, ranging from wilful and obscene exposure and aggravated indecency to indecent assault of a child under 16, which the defendant has committed in public settings and the sexual elements of the offences alleged to have been committed in private homes in 1999 and 2009. I have noted the defendant's concerns about the probative value of facts concerning the alleged sexual offence during the 1999 offences of break and enter a house and steal, and enter a house with intent to commit assault occasioning actual bodily harm. I have taken into account this limitation on the probative value of these facts in the weight I have placed upon this particular instance in the criminal history.
3. The defendant's submission that there was no unacceptable risk of future serious sexual offending could not be accepted because of a number of currently operative risk factors addressed earlier in my judgment which indicate that the defendant does pose an unacceptable risk of future serious sexual offending. These risk factors include the defendant's ongoing psychotic symptoms including auditory hallucinations and ongoing drug use, both of which have been evaluated by the psychiatric reports and RAR as being causally linked to his risk of serious sexual offending. Evidence was presented which, for the purpose of the preliminary hearing, indicated that, at the time of the serious sexual offence, the defendant possessed intentions to commit a worse offence. Furthermore, significant evidence was presented concerning the defendant's intention to cease, or relocate away from, his current supports including NDIS accommodation and supervision by support workers and psychiatric and psychological treatment.
4. I did accept that, while taking into account that the defendant has only committed one serious sexual offence and has never been charged with intercourse, his broader criminal history reveals persistent harmful offending of a sexual nature. The RAR concludes that "Due to the severity of [HT's] previous sexual offending, it is possible that future sexual violence could approach the threshold of a "serious sexual offence"". At least three of the defendant's previous offences were interrupted in their course, for example by the victim screaming for help or assistance arriving at the scene. When the defendant's criminal history is taken together with his currently operative risk factors, substantial risk is sufficiently established for the purposes of a preliminary hearing.
5. This is the case notwithstanding the evidence indicating that the defendant has currently made some progress in adjusting to life outside prison, for example, by not re-offending and by engaging with support workers, psychologists, and community corrections officers.
6. As required by s 9(3)(d) of the Act I have taken into account the results of the statistical risk assessments carried out upon the defendant. The most recent assessment dated 9 September 2022 finds that the defendant belongs to the "well above average risk category for other adult male sexual offenders" and that "due to the severity of [his] previous offending, it is possible that future sexual violence could approach the threshold of a "serious sexual offence"". I have also taken into account the defendant's submissions concerning limitations of actuarial assessments and expert reports for predicting an individual's future offending behaviour. I find, however, that the detailed analysis of the defendant's history in the most recent RAR and its conclusions as to risk accord with my own finding of unacceptable risk based on the materials before this Court.
7. As required by s 9(3)(e) of the Act, I have taken into account the defendant's participation in various drug and alcohol treatment programs, employment and educational courses. I note his limited engagement with sex offenders therapy programs which he reported difficulty engaging with for various reasons including being a victim of childhood sexual abuse, and in which his participation was complicated by his mental illness.
8. In considering the options available that might reduce the likelihood of the defendant offending over time if he is kept in the community (s 9(3)(e1)) I have noted the defendant's listing of mechanisms currently in place (inclusion on the Child Protection Register, an NDIS funding package including psychological and psychiatric treatment and a Buvidal injection for opioid dependence). I also note the defendant's contention that imposition of a Child Protection Prohibition Order and/ or a Community Treatment Order can be sought to avoid imposing an ESO.
9. However, the defendant's reliance upon these factors faces two difficulties. First, whilst no doubt the existing mechanisms have protective and rehabilitative attributes, they do not specifically address the relevant risk as I have found it. I note the following passage from the State's written submissions which indicates the measures that may help address the defendant's risk of further serious offending:
…drug and alcohol rehabilitation (given that it may be considered to contribute to destabilising and/or disinhibiting the defendant's mental state), intensive supervision and engagement in pro-social activities, maintenance and monitoring of his mental health and medication compliance, ongoing psychological intervention for his issues underlying his sex offending, social and cultural community reintegration, and monitoring of the defendant for signs of increasing sexual preoccupation.
1. Secondly, the Court should not decide the present application upon protective measures to manage the risks which are presently undefined in their content and scope. The State should not as a matter of discretion have the present application addressed based upon such speculation; particularly when the ISO is designed to address identified risk and the Court must give weight to risk avoidance at this stage.
2. As per s 9(3)(f), I have considered the defendant's historical compliance with obligations while on release on parole, which both parties agreed has been "very poor". I note the defendant's history of re-offending, using drugs, and not complying with conditions or directions. I have considered the defendant's submissions concerning the positive progress the defendant has made since being released to parole from custody on 23 September 2022. I find that the defendant still poses an unacceptable risk despite this positive progress, however his most recent progress informs the conditions I have seen fit to impose under an ISO.
3. I have taken into account the views of the sentencing Court at the time the sentence of imprisonment was imposed on the defendant (s 9(3)(h)). The defendant drew attention to the statements by the judge who sentenced the serious sex offence concerning the finding of low objective seriousness, the low level of criminality in that offence, the lack of malice and doubts as to the likelihood of the fellatio happening, the defendant's expressed remorse, and the fact that Dr Elliott's recommendations concerning long term treatment, accommodation and case management, which his Honour had regard to, have been largely implemented.
4. However, in addition to my earlier observation regarding this issue, I consider there is substance in the submissions of the State in reply in this respect. The State drew attention to the sentencing judges' statements concerning the defendant's high likelihood of reoffending, the defendant's concern he would not be able to resist command hallucinations directing him to harm others, the defendant's need for long term treatment over several years, the defendant's inability to control his sexual urges, the defendant's substance abuse issues and little evidence of his remorse for the s 112(2) offence.
Additionally, I have taken into account all the s 9(3) factors which I am required to have regard to, in addition to any other matter I consider relevant, in coming to my conclusion. In my view, the totality of the defendant's criminal history, psychiatric and psychological reports, RAR and Corrective Services NSW reports and the bulk of other material before the Court, support the finding that the defendant poses an ongoing unacceptable risk of committing a further serious offence, to the requisite degree of satisfaction within the context of the receipt of materials in this preliminary hearing.
In coming to this conclusion, I have weighed the severity of the risk of the defendant's future serious sex offending, including the risk that he offends again against a child, against the likelihood of his future serious sex offending.
[21]
Discretion to make an ISO
Having satisfied the threshold requirements in s 5B(a)-(d) of the Act, I consider it is appropriate to exercise the Court's discretion to make an ISO. I am satisfied that this is appropriate because the nature of the unacceptable risk and the potential consequences of further serious sexual offending by the defendant are such that even with his existing level of supports an ISO is necessary to manage risk.
Specifically, this decision is supported by my reasoning above as to s 5B(d). Moreover, given the nature of the risk, it is not appropriate for no supervision order to be applied to the defendant once his parole expires, notwithstanding the existence of the present protective measures which after parole would consist of the NDIS supports (should the defendant remain willing to accept them) and the Child Protection Register. I do not consider either of these are sufficient to manage or mitigate the defendant's risk of further serious offending.
The Child Protection Register is not a significant protection measure because the defendant is not subject to a Child Prohibition Order. Notwithstanding the defendant's recent willingness to engage with NDIS supports, there would be no compulsion on the defendant to continue to accept the supervised accommodation and support workers. As discussed earlier in my judgment, the defendant has demonstrated real volatility concerning his ongoing engagement with services, expressing the intention to either discontinue or relocate away from all the services which supervise and treat him. On the material presently available, it cannot be assumed that the defendant would, if free of parole, necessarily maintain his engagement with psychological and psychiatric treatment or NDIS supports.
The defendant tried to meet this risk by contending that the defendant could be made the subject of a Community Treatment Order or Child Prohibition Order which the State had the opportunity to apply for and did not. For two reasons this contention cannot weigh against my decision to impose an ISO. First, in assessing whether an unacceptable risk exists under s 5B(d) the Court is assessing the defendant's risk "if not kept under supervision under the order". There is presently no extant Community Treatment Order or Child Prohibition Order for the Court to consider, let alone any terms of such an order which could speak to the assessment of risk.
Second, there is no evidence before the Court as to whether a Community Treatment Order or Child Prohibition Order by its nature and by its terms might arrest the relevant risks posed by the applicant to the extent that the applicant would not pose an unacceptable risk if not supervised under a supervision order.
[22]
CONDITIONS
The position of the parties as to conditions was two-tiered. The first tier involved a debate as to whether any conditions ordered by the Court would be confined to those already operating with respect to parole and whether those parole conditions would continue until the final determination of the matter. The defendant was in favour of this position, if the Court determined to make an ISO, which was opposed by the State.
The second tier, involving the conditions themselves, was engaged if the Court was not minded to make an order of that kind as sought by the defendant. The parties proceeded to refine the areas of dispute about conditions in oral submissions as well as in the agreed schedule. (This was also reflected in the Amended Summons filed by the State after the hearing).
[23]
Relevant Principles
Both parties referred the decision of Wilde v State of New South Wales [2015] NSWCA 28 as to how the Court will assess the appropriateness of a disputed condition urged by the State in the context of the scope, purpose and objects of the Act, (see State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813 ("Wilkinson") at [44] (iv) and State of New South Wales v Boney (Final Hearing) [2020] NSWSC 1375 ("Boney") at [119])) and the more recent cases dealing with the appropriateness or otherwise of various standard conditions including search and seizure, employment, association and disclosure of criminal record.
In considering the imposition of conditions, the defendant noted the following principles from Wilkinson set out by Hoeben CJ and CL (as his Honour then was) at [44]:
44 i) Having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however this right is not absolute: State of New South Wales v Donovan [2015] NSWSC 1254 at [83].
ii) In imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [68].
iii) A relevant consideration in imposing conditions is that a breach gives rise to criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].
iv) Conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53].
v) Conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36] to [38].
vi) Conditions must not be unjustifiably onerous or punitive, "[n]either may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision": State of New South Wales v Bugmy [2017] NSWSC 855 at [89].
vii) Conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice": State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].
viii) To ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [129]-[131].
Despite it being a final hearing, I adopt the approach set out in my decision in Boney at [119]-[127] in approaching the principles for the imposition of conditions. Those principles are as follows:
[119] The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 ("Wilde") held that s 11 vests the Court with a "broad" discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). As mentioned, the purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).
[120] Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to "facilitating rehabilitation" even when they do not personally require an offender to "undertake" rehabilitative steps (at [49]).
[121] The Court of Appeal further held at [53]-[54]:
[53] 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.
[54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a 'demonstrated' link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30)12 provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant's serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant's association with such groups.
[112] During the final hearing, submissions were advanced by the defendant as to State of New South Wales v Sturgeon (No 2) [2019] NSWSC 883 ("Sturgeon") at [99]:
[99] The bases upon which conditions are to be regarded as appropriate have been discussed in many cases. It seems that the following matters are regarded as relevant in determining what conditions ought be imposed:
(1) an appropriate condition may be one which constrains particular conduct, or else imposes positive conduct obligations which are to be fulfilled: Attorney-General for NSW v Tillman [2007] NSWCA 119 at [10];
(2) the imposition of conditions involves striking a balance between relevant considerations so as to provide an outcome which is "fit and proper": State of NSW v Ali [2010] NSWSC 1045 at [88]; State of NSW v Fisk [2013] NSWSC 364 at [96];
(3) as a breach of a condition has the consequence that an offence is committed, for which a term of imprisonment of up to 5 years may be imposed (s 12 of the HRO Act), there is a need for a proper basis to be demonstrated for a condition to be made in the first place: Ali at [88]; Wilde v State of NSW [2015] NSWCA 28 at [48];
(4) ordinarily, it will be necessary for any condition which is imposed to be related to the mitigation of the identified unacceptable risk which led to the Court's conclusion that the person was a highrisk offender: State of NSW v Burns [2014] NSWSC 1014 at [59]; Wilde at [53];
(5) any condition attached to an ESO must address issues relevant too identified risk factors in relation to future commission of serious offences and not criminal offending generally: State of NSW v Green (Final) [2013] NSWSC 1003 at [36]-[38]; Wilde at [45];
(6) any condition which is imposed is not to be unjustifiably onerous or simply punitive: Green at [37];
(7) a condition cannot be simply an expression of the State's paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense, or because it might be a convenient or resource-efficient means for the Department exercising supervision under the ESO: State of NSW v Bugmy [2017] NSWSC 855 at [89].
[123] Counsel for the defendant placed particular reliance on (4), as appears within the above extract from Sturgeon, in conjunction with the principles of Wilde to contend that for each condition imposed "there must be some sort of identification of the unacceptable risk and how that condition goes to it".
[124] In light of that submission, I turn to the decision of Button J in State of NSW v Farringdon [2018] NSWSC 874 ("Farringdon"). In Farringdon, the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements.
[125] In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant reoffending "and thereby aiding his rehabilitation" (at [37]). In applying the "test" set out in Wilde at [53]-[54], his Honour bore in mind "that one can expect the 'Departmental Supervising Officer' (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion" (at [46]).
[126] His Honour imposed the disputed conditions for the reasons outlined at [47]-[58]. Button J held (at [59]):
[59] …Those of them that do not directly relate to his prior offending do nevertheless relate to preventing its recurrence indirectly, in my opinion. As I say, I am relying upon his DSO to exercise his or her discretion with regards to them in a practical and common sense way.
[Original emphasis.]
[127] With respect, I accept Button J's statement of principles in Farringdon.
[24]
Adoption of parole conditions?
As well as the standard conditions of parole as per clause 219A(1A) of the Crimes (Administration of Sentences) Regulation 2014, the defendant is currently subject to the following additional parole conditions:
ADDITIONAL CONDITIONS
12. You must abstain from alcohol.
13. You must not use a prohibited drug or substance, except those that have been prescribed to you.
14. You must, if so directed by your Officer, participate in the following intervention, CSNSW Psychology.
15. You must comply with all directions of the mental health team, including treatment and medication (and if applicable, the conditions of a Community Treatment Order).
16. You must not contact, communicate with, watch, stalk, harass or intimidate the victim/s.
17. You must comply with all conditions and requirements of the Child Protection Register.
18. You must not contact, communicate, or associate with your co-offender/s, without the express prior approval of your Officer.
19. You must not frequent or visit the Glen Haven Motor Inn, Glen Innes.
The defendant is on the Child Protection Register which imposes a number of limited supervision requirements, including for example, notifying of changes of address. However, the Register does not impose prohibitions on individuals like a child protection prohibition order does.
The defendant currently receives support under the NDIS which will be reviewed on 19 April 2023. His funding is for:
Core supports - maintain accommodation and access the community.
Capacity Building Supports - improved daily living (Occupational Therapist), improved relationships (specialist behaviour intervention support), increased social and community participation (living skills development) and support coordination. (RAR, [80]).
The defendant is currently residing in accommodation which is part of his NDIS package accommodation and has two workers with him at all hours. He has two streams of psychological support: one through his parole connections and another through his NDIS package. I note that with the exception of Mr Clarke's evidence, the Court was not taken to any specific material about the care provided by NDIS workers.
Kinchela Boys Homes Corporation, who allocated the defendant a NDIS Access worker and Specialist Support Coordinator, is assisting him to locate suitable accommodation, which is one of his NDIS short-term goals.
The State opposed the adoption of parole conditions as the conditions attached to the ISO. It was correctly submitted that the serious sex offence was committed less than 12 months after he ceased participation in the CUBIT program and some 23 days after he had been released from custody, suggesting the parole conditions were not sufficient in this case.
In opposition, counsel for the defendant submitted that the defendant had been successfully supervised under the conditions of his parole since 23 September 2022. At the time of the preliminary hearing, he had been subject to those conditions for close to five months.
Counsel for the defendant submitted that the parole involves 19 conditions where are broad, stringent and have been formulated for the specific risk profile presented by the defendant. It was submitted that any conditions attached to an ISO should emulate the defendant's current parole conditions for the following reasons:
a. Through his ongoing compliance, it is clear that the defendant understands his parole conditions, the manner of their enforcement and his responsibilities pursuant to those conditions. Unnecessarily changing those conditions risks the defendant inadvertently or accidentally breaching the order.
b. The conditions sought by the plaintiff are far more onerous and restrictive than the current parole conditions. This regression in the defendant's freedoms, without any connection to increased risk, is unfairly arbitrary and runs the risk of discouraging the defendant from future positive engagement with any order. If the defendant was to disengage with his own rehabilitation, it assists neither object of the Act as contained in s.3.
If the defendant remains on his parole conditions as part of an ISO, those conditions will continue for a maximum time of three 28-day extensions, which is three months, until the final hearing.
In oral submissions, counsel for the defendant emphasised that it would make sense for the parole conditions to continue, considering the defendant's complex mental health diagnoses and level of cognitive functioning, rather than have a three-month period on different conditions "that may well change again at the time of a final hearing."
The defendant relied on the decision of Lonergan J in State of NSW v CD (Preliminary) [2021] NSWSC 1396 to support their position. Lonergan J adopted an offender's existing parole conditions as the conditions of the offender's ISO and summarised the reasons for that approach as follows (at [6]):
[6] [F]irst, the current parole conditions directly and adequately address any risk to the community presented by the defendant. Secondly, and significantly, they have a simplicity and clarity which the constellation of conditions proposed by the plaintiff do not. Thirdly, they are not overly paternalistic or inflexibly prescriptive. Fourthly, they are able to be understood and followed and they seem to have been functioning adequately over the last two weeks. Fifthly and importantly, they do not tend to unnecessarily criminalise uncontroversial and irrelevant elements of potential behaviour by the defendant. Sixthly, they tend to facilitate the necessary pursuit of the objects of the Act, the primary object of course being protection of the community, but the secondary object of rehabilitation of the offender which in turn has a role in increasing and improving the potential safety of the community.
As the defendant submitted, the defendant has been subject to the parole conditions for approximately five months, not two weeks, as was the case in the decision of Lonergan J.
In reply, the State submitted that "Each matter turns on its own facts and on the Court's assessment of the offender, the current parole conditions, the progress on parole, the nature of the risk, and the ESO conditions required to address that risk. It is important in that respect to differentiate between the purpose of parole and the purpose of conditions imposed under the Act."
The State relied upon the decision of Schmidt J (as her Honour then was) in State of New South Wales v Lee [2017] NSWSC 1766, at [86] as follows:
[86] In my view, specific conditions as to particular matters can be a useful way by which different aspects of the risks which an offender poses can be addressed. Not only do they make clear to the offender what conditions are imposed upon him by the order, they also make clear to those supervising him, both the extent and limits of the broad discretion which condition three would otherwise give them, as to those matters. They also make clear to any other reader of the Court's order, a police officer for example, the conditions which have been imposed as to identified matters.
I accept the position of the State in this respect. Given I have found that there is an unacceptable risk of the defendant committing a further serious offence if not supervised under an ESO, addressing that unacceptable risk is the foundation for the structuring of the conditions to address the risks the subject of these findings, rather than simply relying on the existing parole conditions even if there has been, over the last five months, adherence to them.
It is true that it is only three months until a final hearing, but if a final ESO is made, there is a substantial chance that conditions will be fashioned specifically to deal with the risks and the consequences thereof in the context of evaluations made from the principles of s 5B(d).
Following Schmidt J's decision in Lee, individual case plans are managed so that when an offender approaches the completion of an ESO there can be a gradual reduction of restrictions and an increase in independence. This can only be achieved where the conditions give the supervisors the necessary discretion to permit such relaxation.
I accept that there is a possibility as to some destabilisation of the defendant after the imposition of new or additional conditions. But there is little evidence as to the real likelihood of the same or whether any instability may or may not be successfully managed. In fact, the defendant's own evidence counts against him on this point. The defendant indicated that after the expiration of his parole, he would cease all engagement with support services except Centrelink (see the affidavit of Ms van Lieven, page 6) and relocate to Glen Innes which is a place where he committed the robbery offence he is currently serving a sentence for (affidavit of Ms van Lieven, page 13). Whether or not the existing parole conditions have sufficiently restrained the defendant to date, that has occurred in circumstances where the defendant had an expectation that those controls may end within a relatively short timeframe. The defendant continues to demonstrate a real instability which, considering the principles above, indicates a greater need for the imposition of specific, risk management conditions in a context where the Court should give weight to risk avoidance. I consider the ISO and the conditions I will attach to it will serve that purpose.
[25]
Conditions 5 and 5A
Proposed conditions 5 and 5A are as follows:
5. Subject to condition 5A, the defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.
5A. The defendant is not required to wear electronic monitoring equipment unless he is directed to comply with condition 5 by a DSO. A DSO may direct the defendant to comply with condition 5 if any of the following occurs:
i. The defendant is charged with an offence of breaching the ISO or the ESO, or with a serious offence or an offence of a sexual nature as defined under the Act; or
ii. The defendant is charged with a serious indictable offence involving violence;
iii. A DSO is reasonably of the opinion that condition 5 is needed due to a significant increase in the risk of the defendant committing a serious offence as defined under the Act.
The State submitted that the Court can reasonably assume that an experienced DSO will be aware of "the nature of the risk and the factors which inform the risk, having regard to the Risk Assessment Report findings." If the defendant was not electronically monitored, it was submitted that the only effective monitoring of the defendant would be if there was a breach of the ISO or if he committed a serious offence.
The word "significant" in condition 5A(iii), it was submitted by the State, is to try and confine the phrase "increase in risk".
Mr Glover, a Community Corrections Officer who interviewed the defendant, noted that there is no requirement for electronic monitoring as part of the defendant's current parole but that under an ESO, this would assist in ensuring adherence to the schedule of movements and enable audits to be conducted to identify any concerning patterns in his behaviour, as well as the monitoring his whereabouts. The RAR at [90] also recommends that the defendant may be obliged to wear electronic monitoring.
Counsel for the defendant opposed this condition on the basis that the defendant has not be subject to electronic monitoring while on parole and it is not necessary now. It was submitted that electronic monitoring is unnecessary, considering the defendant is living on a remote property in a regional area.
Further, the defendant submitted that the words in condition 5A(iii), "significant increase," are too subjective and vague and that the Court would be minded not to make this condition.
In my view, there is not a sufficient basis for the defendant to resist the imposition of this condition merely because the applicant is not presently the subject of such a restraint whilst on parole. However, it is equally the case, that the State's contention that the electronic monitoring may assist in monitoring adherence to the schedule of movements, if fixed as a condition, is not a sufficient basis for the imposition of the condition unless there is some demonstration, by evidence, to make that connection in the present case.
No other basis has been provided by the State for the imposition of electronic monitoring in this case to manage risk, over and above those protections afforded by scheduling itself.
Whilst the provisions in condition 5A represent a concession by the State, modifying the circumstances in which electronic monitoring might be used, and while it might be excepted that a DSO would act reasonably in directing the compliance with that condition, the very nature of the qualifications in 5A create doubt in my mind as to whether electronic monitoring is necessary, in this case.
Overall, at this stage, the State has not shown that electronic monitoring would be appropriate to address the risks that I have found in a direct or even in an indirect way.
I reject conditions 5 and 5A.
[26]
Conditions 6, 7 and 8
The State pressed the imposition of a weekly schedule of movements to be provided by the defendant three days before it is due to start. It was submitted that a schedule would the mean that the DSO would have a greater understanding of what he is doing and that a dialogue could be created between those who manage him and his behaviours and the DSO, whose role is to manage risk. Further, the State also relied upon the ongoing concerns around the defendant's attempts at drug use.
The RAR at [90] also recommends that the defendant may be obliged to provide a schedule of his daily activities. This is because it may assist in improving his decision-making skills, impulsivity and limiting his access to potential victims (e.g., break and enter offences).
Counsel for the defendant submitted that there is nothing to suggest that scheduling, which the defendant has not be subject to on parole, is now necessary. It was submitted that if the Court decided to impose scheduling that a new condition 8A be inserted, as follows:
The defendant is not required to comply with conditions 6, 7 or 8 during the currency of any ISO or ESO except that all of these conditions will reapply if at any time the defendant refuses to be supported by service providers in accordance with his National Disability Insurance Scheme ("NDIS") package or the defendant refuses to continue to engage with and accept the assistance of his available NDIS service providers.
The proposal in condition 8A has implicit within in that the provision of support through NDIS is sufficient to manage the risk such that him walking away from that support would create a scenario in which conditions 6, 7, and 8 are triggered. However, I have not accepted the premise of that proposition, namely, that support is sufficient to manage the risks as I have found them.
I agree with the State that in the absence of electronic monitoring and given the ongoing concerns around the defendant's attempts at drug use and mental instability, both associated with the risk of further offending, scheduling is required.
I also agree with the State that a schedule of movements would introduce a greater degree of certainty on the part of those supervising him outside of Kirinari House (that is, the DSO), to understand what he is doing.
Despite the defendant's current supervision being such that people accompany him wherever he goes, a scheduling condition would provide force to this routine and as the RAR states, it could reduce the risk of him engaging with potential victims.
I accept conditions 6, 7 and 8. I reject proposed condition 8A.
[27]
Condition 10
The State submitted that the curfew within condition 10 is an important way of ensuring some stability and routine (important to reintegration which in turn indirectly reduces risk) and removing the temptation, for example, to obtain illicit drugs.
Again, counsel for the defendant submitted that the present parole conditions do not involve a curfew and it is not necessary to implement one now. It was also submitted that there have not been issues with the defendant being out at night-time and that the defendant's pattern of offending is random, rather than more frequently at night. There is no suggestion that being out at night-time would elevate his risk.
I accept the defendant's position in this case.
[28]
Condition 13
The original condition 13 was as follows:
13. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.
The State pressed the original version of condition 13 on the basis that "the defendant's assessed risk scenarios were not confined to opportunistic approaches to strangers and also included increased risk of contact sex offences in private locations." Further, it was submitted that persons over the age of 18 can still be vulnerable.
The defendant opposed this condition. An amended condition was proposed in the following form:
13. The defendant must promptly notify a DSO of any visitor under the age of 18 entering and remaining at his approved address and must not permit any person under the age of 18 to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.
It was submitted that preventing persons over the age of 18 from visiting the defendant's approved address is not sufficiently connected to the defendant's risk profile (see the RAR at [84]).
The defendant's approach to this condition, considering the nature of the risk, is expressed too narrowly expressed in the light of my earlier findings. However, even adopting an indirect approach to the management of risk as in Farringdon, the State has not demonstrated why a condition of the kind identified in Condition 13 is necessary. Accordingly, I will adopt the approach of the defendant because there is at least a clearly defined risk in relation to persons under 18 years of age.
[29]
Condition 22
The State submitted that drug purchase use and consequent potential deleterious effect on already unstable mental health is a significant risk factor, where command hallucinations have been linked to serious sex offending by Dr Elliott. Hence, the condition mandating the provision of any information relating to the defendant's financial affairs if directed by a DSO, was pressed.
Counsel for the defendant opposed this condition on the basis that it is not sufficiently connected to the mitigation of the risk of a serious offence and is inappropriate in circumstances where a financial guardianship application is pending.
I accept the defendant's submissions in this respect.
[30]
Conditions 40, 44, 45 and 46
Proposed conditions 40, 44, 45, and 46 were as follows:
40. The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.
…
44. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.
45. The defendant must not delete or edit any communications, applications or search history from his phone, computer or any electronic device or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.
46. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.
The State submitted that the considering the defendant admitted to searching 'teen porn' on his phone, the use of the internet to contact and meet up with vulnerable persons is an obvious potential future risk factor.
Counsel for the defendant submitted that any issues with internet use have been adequately addressed by the defendant's current parole conditions and that these sorts of conditions are more appropriate for defendants with a history of sexual offending and moulding on the internet. The defendant does not have that past criminal history and as such, these conditions are not sufficiently connected to his risk profile.
I agree with the State regarding Conditions 40, 44, 45 and 46. The concern is that the defendant might use the internet to attempt to contact or meet up with people under the age of 16.
The State's submission is supported by the RAR at [90] which recommended that the defendant's access to the internet and electronic devices be monitored in order to scrutinise his social contacts and aim to increase pro-social influences.
[31]
Amendments
22 March 2023 - Judgment amended to use the pseudonym "HT" in reference to the defendant.
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Decision last updated: 22 March 2023