State of New South Wales v Jacob Wiggins

Supreme Court of NSW|2024-03-11|Before: Button J, Hulme J, Ierace J

Introduction

This judgment resolves a contested application by the State of New South Wales (the plaintiff) for the imposition of an extended supervision order (ESO) of two years' duration upon Mr Jacob Wiggins (a pseudonym adopted to protect a victim of child sexual assault; the defendant) pursuant to ss 5H and 5I of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). It is made in the context of three previous applications to this Court, as follows.
On 27 October 2021, pursuant to a summons, RA Hulme J imposed an interim supervision order (ISO) upon the defendant (I do not provide a direct reference here to the judgment, because, at that stage, a pseudonym had not been adopted).
A few months later, on 10 February 2022, I imposed an ESO of two years on the defendant, pursuant to the same summons: see State of NSW v Wiggins (a pseudonym) (Final) [2022] NSWSC 67. The judgment may be found by way of hyperlink here.
A few months ago, on 15 December 2023, Ierace J imposed a fresh ISO upon the defendant, pursuant to a fresh summons: see State of New South Wales v Wiggins (a pseudonym) (Preliminary) [2023] NSWSC 1553. That judgment may also be found by way of hyperlink, here.
At the (second) final hearing before me on 11 March 2024 pursuant to the second summons, in the absence of any calling into question of fact or evaluative assessment in my judgment or the judgment of Ierace J, it was explicitly agreed by both parties that I should not go over old ground. I shall not do so: this judgment assumes familiarity on the part of the reader with those two previous judgments, and will focus very much on all that has happened during the currency of the ESO imposed by me, and the ISO imposed by Ierace J. Furthermore, because I believe that the answer to the question of whether I should impose an ESO of at least the proposed duration is absolutely clear, I shall be concise indeed.

Facts

To recap extremely briefly: the defendant is now 74 years of age. He has shown himself on two occasions, separated by many years, ready to have sexual contact with a person who is incapable of consenting to such contact either by way of their age, or by way of their level of cognitive function. He was imprisoned twice for that behaviour.
He has also been imprisoned on several other occasions, because of breaching conditional liberty imposed as a result of his offending. Some of those breaches were very concerning, in that a recurrent theme was the defendant placing himself in situations of close contact with persons who were either children, or cognitively or developmentally impaired, or both. Furthermore, as I remarked in my judgment of over two years ago, they tended to possess a flavour of recalcitrance on his part.
As for events since February 2022, it is true, as his counsel submitted, that there have been some positive developments, as follows.
First, the defendant has forged some pro-social connections in the community, such as having contact with other senior citizens, watching football on television with a neighbour, and speaking with others in his local community while running errands.
Secondly, he has not committed another sexual offence, let alone a serious sexual offence as defined by the Act.
Thirdly, the two recent expert reports ordered by Ierace J, when construed in a way that counsel for the plaintiff conceded is appropriate, are to the effect that the defendant presents only an average risk of reoffending, at least on the basis of statistical and actuarial analysis. They also emphasise that the defendant has sought to reintegrate himself into the general community, engage in regular company with volunteers and other seniors, and maintain a fairly ordinary daily routine.
Fourthly, the defendant has never actually been formally diagnosed as suffering from paedophilia, which may suggest that his offending, and the risk of his offending, is not based upon an embedded sexual attraction to children.
Fifthly, although in the past the defendant has expressed the opinion that therapy is close to useless for him, he has sought psychological help whilst in the community, on his own initiative.
On the other hand, the following adverse matters have developed in the past two years, as emphasised for the plaintiff.
First, he was convicted of breaching the ESO by way of having unapproved contact with his stepson; notably, that person is also a convicted sex offender. The defendant was placed upon a community corrections order (CCO) as a result of that offence, and is still subject to it.
Secondly and relatedly, the response of the defendant to his conditional liberty has been unsatisfactory. In particular, he cannot or will not comply with the schedule of movements that I imposed as a condition, with the result that his Departmental Supervising Officer (DSO) has not been prepared to "step down" the rigour of that condition in practice.
Thirdly, several months after the delivery of my judgment regarding the imposition of the ESO, the defendant was charged with a number of offences of child sexual assault against a now adult woman, alleged to have been committed two decades or so ago in Victoria. Those accusations are denied, and are making their way through the criminal justice system of that State. In those criminal proceedings, he possesses the presumption of innocence; in these proceedings, in accordance with the joint position of the parties, I give these latest unproven charges little weight. Having said that, in the scheme of things, they must surely be seen as a negative development.
Fourthly, in my previous judgment I was prepared to accept on balance the assertion of the defendant that he himself had been the victim of child sexual assault many years ago. He now firmly denies that proposition, as confirmed by his counsel. The result is not only that it is impossible to tell where the truth lies in that regard; it is also that his prevarication about a significant matter calls his credibility into question more generally.
Fifthly, the two expert reports both opined that any removal of supervision would leave the defendant vulnerable to risky associations, noting that his ability to develop self-regulation skills generally was inadequate. The defendant's lack of insight or change in attitude regarding his previous offending, and continuing unwillingness to discontinue relationships with vulnerable or adverse social contacts, demonstrates, it was said, that he remains a risk without external control orders in place.
Sixthly, and to my mind most adversely, whilst on conditional liberty the defendant has struck up a "chatting acquaintance" with a person with the following attributes. She is: female; based upon her reported habit of sleeping on trains, penniless and vulnerable; and significantly cognitively impaired. All of that, in the context of my earlier judgment, would be of obvious concern.
What is even more concerning is the undisputed fact that one of their conversations turned to discussions of very intimate parts of the female body. I interpolate that it is noteworthy that the previous offence committed against a cognitively impaired woman in January 2016 was preceded by nothing more than a few weeks' contact between the defendant and that victim.

Determinations

That factor, seen in the context of all the other adverse aspects of developments since February 2022, and in the context of all the adverse aspects of my judgment of that time, sounds to my ear an alarm bell that can only be described as loud and clear.
Accepting the concession for the defendant that all mechanistic statutory preconditions for the imposition of an ESO have been fulfilled, and focusing upon the central test to be found in s 5B of the Act, I am well satisfied that the defendant poses an unacceptable risk of committing another serious sex offence - as defined in s 5(1) - if not kept under supervision under an ESO.
And I should say at this stage that other aspects of my comfortable satisfaction are my opinions: that a CCO would certainly not adequately fulfil the protective function of an ESO to be found in s 3 of the Act; that, despite his advanced years, the defendant is by no means physically incapable of committing a serious sex offence; that the two latest expert reports, taken as a whole, are not favourable to him; and that the flavour of recalcitrance, first identified by me over two years ago, has not dissipated and, if anything, has intensified.
In similar vein, in the circumstances of this case and for the same general reasons, I am well satisfied that there is no discretionary basis upon which I should refuse to impose that order.
And as I have said, I regard the proposed duration of it as soundly based.
It follows that an ESO of the length sought by the plaintiff will be imposed.
Turning then to conditions, those proposed by the plaintiff were contingently agreed, except three, all of which went to the single topic of scheduling. By way of my own assessment, I accept the implicit concession of the defendant that all the agreed conditions possess the statutory characteristic of being appropriate.
As for the disputed conditions, as I have said the compliance by the defendant with the schedule has been problematic, repeatedly. One of the experts respectfully suggested that, if a schedule of movements were imposed, the DSO should approach it flexibly, perhaps by way of declining to require it or to enforce it, as a matter of discretion. And I am prepared to accept the submission for the defendant that that opinion could be interpreted as a respectful suggestion to me that no such condition should be imposed at all.
Determining this final issue: as I remarked at the hearing, I well understand that complying with a rigorous ESO can be demanding, aggravating, and frustrating. I also understand that the arousing of those emotions in a supervised person is hardly conducive to their rehabilitation. But the simple fact is that that worthy goal is not the primary aim of such an order: the primary aim is protection of the community, in accordance with s 9(2) of the Act.
Regrettably, things have reached a point where I am concerned about the true commitment of Mr Wiggins to his rehabilitation. And in my respectful opinion, it is counterintuitive for a refusal to comply with a condition imposed by this Court to be thought of as a good reason for that condition simply to be abandoned. The orthodox consequence of non-compliance with conditional liberty of any kind is, sadly, that the person subject to it may well find themself in prison. I am well satisfied that a schedule of movements remains appropriate in this case. The precise degree to which it is required in practice will of course be a matter for his DSO.
In short: all conditions sought by the plaintiff will be imposed.

Orders 1. The defendant is subject to an extended supervision order for a period of 2 years from 25 March 2024. 2. The defendant, for the period of that extended supervision order, must comply with the conditions annexed to this judgment. Schedule of Conditions - Wiggins (a pseudonym) (130061, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2024

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