State of New South Wales v Joensen

Background to the application

1. The defendant is a 50 year old man with a history of sexual offending. The defendant reported that he was sexually assaulted on a number of occasions when he was 12 years of age by an older boy at school and also experienced bullying, prompting him to attempt suicide on three occasions, when aged 14, 16 and 18. He was described as being "noticeably emotionally immature for his age" and his "preferred social contact was always with younger boys".
2. The defendant completed Year 12 and gained employment in the security industry, where he worked for two years until he was incarcerated. He has been employed as a trolley collector during the periods between prison sentences. On his release to the community in 2013, he qualified for the Disability Support Pension for anxiety, depression and "institutionalisation".
3. As to the defendant's family, his mother passed away in 1997. He has a younger sister. He has been in two long term de-facto relationships, producing two daughters, aged 15 and 12, to different partners. He has not had contact with his older daughter since she was 18 months old and had regular contact with his younger daughter whilst he was in the community. He is not currently in a relationship.
4. The defendant's criminal history commenced in August 1987, when he was 18 years of age. He pleaded guilty to committing an act of indecency on an 11 year old boy who lived across the street from him. He took the boy for a walk to a deserted beach where he tied his hands, covered his eyes and mouth and then rubbed his penis against the boy's body until he ejaculated. He then released the boy, who complained to his mother. When interviewed by a forensic psychiatrist, the defendant admitted other sexual assaults on three other children (two male and one female), but was not charged. He received a 4 year good behaviour bond with supervision. His supervision was suspended early due to his positive progress.
5. In March 1992, when aged 23, the defendant was charged with aggravated sexual intercourse without consent of a 12 year old girl, to which he pleaded guilty. He was still subject to the bond at the time. The defendant was living with his parents and had known the victim, BT, who lived in the same street, for about two to three months. He had tied up the victim and blindfolded and gagged her. He received a sentence of 12 years imprisonment with a NPP of 5 years.
6. The defendant was released to parole on 13 March 1998. He participated in group therapy sessions as part of a community-based sex offender program for three and a half years until 2002, and took anti-libidinal medication.
7. In 2006, the defendant committed the offences of aggravated kidnapping, aggravated sexual assault, aggravated indecent assault and common assault. The victim was a 16 year old girl who was related to the defendant's then de facto partner. She joined their household the year before when aged 14, when her mother went into hospital. The defendant tied her hands and legs with rope and placed a belt in her mouth which he covered with duct tape. He then indecently assaulted her and had digital vaginal penetration before releasing her. He was sentenced to 8 years and 8 months imprisonment, with a NPP of 6 years and 2 months.
8. The defendant completed the Custody-based Intensive Treatment program ("CUBIT"), a custody based residential therapy program for sex offenders, and was released to parole in March 2013. He was deemed a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW) ("the CPOR Act"). The defendant initially resided at the Tomago Community Offender Support Program ("COSP") and later the Nunyara COSP, where he remained until about March 2015. He was subject to electronic monitoring and scheduling until the expiration of his parole in July 2015.
9. In September 2015, during an annual compliance review under the CPOR Act, police seized the defendant's phone for analysis and discovered recorded images on seven occasions of a female victim in various stages of undress which included images of her naked breasts. The defendant had known the victim since she was four or five years old. He had been giving her massages in his bedroom to alleviate her pain from spinal bifida. She would change before the massages began and was unaware that she was being recorded. When informed of the videos, she made a formal complaint and the defendant was charged with acts of indecency towards a person over 16 years. Police also discovered video files in password protected folders downloaded from the internet, depicting sexual assaults, including the sexual assault of a handcuffed victim. The defendant pleaded guilty to one count with two others taken into account on a Form 1, and was sentenced to 3 years and 9 months imprisonment with a NPP of 2 years and 6 months. This is his current sentence.

The relevant legislative provisions

1. The preliminary statutory requirements for an application for an ESO are satisfied. Section 6 of the Act stipulates that the application may not be made until the last nine months of the offender's current custody or supervision and that it must be accompanied by material relevant to a determination of the appropriateness or otherwise of an ESO, as set out in s 9(3) of the Act. This material includes a report prepared by Corrective Services NSW that considers "the extent to which the offender can reasonably and practically be managed in the community", commonly known as a Risk Management Report: s 9(3)(d1). The application must also include a forensic report assessing the likelihood of the offender committing a serious offence (known as a Risk Assessment Report) pursuant to s 9(3)(c) and may include a draft of the kinds of conditions, in addition to the condition statutorily required pursuant to s 11(2), that are considered to be appropriate: s 6(4). This application is made within the required time frame and is accompanied by these reports.
2. A preliminary hearing for an ISO is required prior to the final hearing for an ISO pursuant to s 7(3) of the Act. The purpose of the preliminary hearing is to determine whether the Court "is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO": s 10A(b) of the Act. If not, the Court must dismiss the application: s 7(5).
3. If the Court is so satisfied, the Court must make orders appointing two psychologists and/or psychiatrists to conduct separate examinations of the offender and furnish reports to the Court pursuant to ss 7(4) and 7(5) of the Act, which are intended to assist the Court at the final hearing. The Court may make an ISO for 28 days, which may be renewed up to a maximum period of three months: s 10C of the Act. The power to make an ISO remains discretionary: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [30].
4. Thus it is necessary to evaluate the sufficiency of the supporting material to make an ESO, pursuant to the relevant statutory test.
5. There are four prerequisites for the making of an ESO, set out in s 5B of the Act: "(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community; (b) the person is a supervised offender (within the meaning of section 5I); (c) an application for the order is made in accordance with section 5I; and (d) the Supreme 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."
6. The first three requirements are satisfied. In relation to s 5B(a), "serious offence" is defined at s 4 to include a "serious sex offence", which is defined in s 5(1) to include an offence within Div 10 of Pt 3 of the Crimes Act that is punishable by imprisonment for 7 years or more. The offence pursuant to s 61J of aggravated sexual assault, for which the defendant was sentenced on 25 November 1992, is within this Division.
7. Sections 5B(b) and (c) of the Act are also satisfied. Section 5I provides that an application for an ESO may only be made in respect of a "supervised offender" which is defined to include an offender who is in custody or under supervision while serving a term of imprisonment for, inter alia, "an offence of a sexual nature": s 5I(2)(a)(ii). The offence for which the defendant is currently serving a sentence of imprisonment, namely, an offence of indecency, comes within that definition pursuant to s 5(2)(a). A person is taken to be serving a sentence of imprisonment if he or she is on parole in respect of that sentence: s 5I(3).
8. The key provision is s 5B(d) of the Act, namely, whether the 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. Section 5D provides that the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
9. Section 9(2) provides that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration. This is consistent with the stated primary object of the Act, which is outlined in s 3(1) as "the safety and protection of the community". A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).
10. At a preliminary hearing, the Court does not weigh the supporting documentation or predict the result at the final hearing. In Tillman, the Court of Appeal referred to the counterpart provisions in the Crimes (Serious Sex Offenders) Act 2006 (NSW), being ss 16(1)(b) and ss 17(2) and (3), which preceded the current legislation. The Court stated, at [98]: "The task assigned by s16(1)(b) is for the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order (s16(1)(b)). In determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing that documentation or predicting the ultimate result. The power is enlivened if the supporting documentation would, if proved, justify the making of either category of final order bearing in mind the elevated standard of proof stated in ss17(2) and (3). That threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Indeed, it is to be considered without taking into account the evidence (if any) called by the offender at the interim hearing: such evidence may go to (relevant) discretionary matters, but would not cast light upon what is alleged in the Attorney General's supporting documentation." (emphasis in original)

Consideration

1. There was no objection by the defendant to the tender of any of the material relied upon by the plaintiff for the limited purpose of the preliminary hearing. I will consider that material in the framework of s 9(3) of the Act, which itemises the matters that the Court must have regard to when determining whether or not to exercise its discretion to make an ESO. The matters that are relevant at the preliminary hearing stage are as follows.

Section 9(3)(c): the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment

1. As this is a preliminary hearing, there has not yet been a psychiatric report prepared expressly for the purpose of the application by the plaintiff for an ESO. However, over the years, there have been a number of forensic psychiatric and psychological examinations of the defendant.
2. In 1998, the defendant admitted to Associate Professor McConaghy that he had committed previously unknown sexual offences against three other children. He recommended that the defendant undergo imaginal desensitisation treatment to assist in controlling his sexually deviant urges.
3. In 1992, psychologist Brian Hodge considered the defendant to be "deeply disturbed and potentially dangerous" and his sexual behaviour to be "entrenched, compulsive and fetishistic".
4. In 2008, psychiatrist Dr Stephen Allnutt assessed the defendant as having: "… a number of paraphiliac interests. Predominantly, sexual sadism, paedophilia and frotteurism and in this sense manifests tendency to sexually deviant behaviour."
5. Dr Allnut recommended that the defendant participate in the sex offender treatment program and be prescribed antidepressant medication.
6. In 2016, Dr Richard Furst concluded that the defendant's offences: "… are likely to have been driven by his sexual deviance, in the form of a paraphilia/sadomasochism. He belongs to a group of adult male sex offenders generally considered to be at a moderate-high risk of re-offending."

Section 9(3)(d): the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence

1. A Risk Assessment Report was prepared by Gillian Tulloh, a senior psychologist with the Serious Offenders Assessment Unit Department of Corrective Services NSW, dated 14 February 2019. Ms Tulloh noted that the defendant had consistently scored in the medium or medium to low risk ranges in terms of likely reoffending when assessed utilising the Level of Service Inventory- Revised actuarial risk assessment tool ("LSI-R"), in 2012, 2013, 2014 and 2017. The LSI-R takes into account dynamic and static factors to assess the risk of general and violent recidivism within 12 months of release.
2. The defendant was assessed using the STATIC-99R, which is an actuarial risk assessment tool intended to predict sexual reoffending based on static factors in November 2017. The defendant fell into the high risk category relative to other male sexual offenders. Ms Tulloh reassessed the defendant using this tool and similarly obtained a score that was consistent with the 2017 assessment.
3. Ms Tulloh also applied a dynamic assessment tool, the Stable-2007, which returned a score suggesting "a high density of criminogenic needs relative to other male sexual offenders". These were the defendant's capacity for relationship stability, general social rejection, poor problem-solving skills, sex drive/sexual preoccupation, the use of sex as coping and deviant sexual preference.
4. Ms Tulloh concluded that the defendant is in the high-risk category of sexual reoffending.

Section 9(3)(d1): any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community

1. A Risk Management Report, dated 3 March 2019, was prepared by Marc Corcoran, a Senior Community Corrections Officer. Mr Corcoran noted the defendant's prior offending whilst on parole and the Risk Assessment Report by Gillian Tulloh, and set out in his report a "management strategy" designed for the defendant when he is released back into the community. He proposed that this would be reviewed every two months and updated as necessary, to reflect any significant changes in his circumstances.

Section 9(3)(e): any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs

Section 9(3)(e1): options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time

1. Ms Tulloh reviewed the defendant's participation in offender programs, noting that he participated in the "imaginative desensitisation course" recommended by Associate Professor McConaghy, but he later commented that it "did not work for me". The defendant participated in the Sex Offender Redirection Training ("SORT") program, beginning in the early 1990s. The facilitator reported that he was "unconvinced" that the defendant did not present a risk to the community.
2. The defendant began CUBIT in 2012 and completed 10 months of the program. In 2017, he applied to attend again (the program is now called the High Intensity Sex Offender Program ("HISOP")) and recommenced the program in September 2018. He was still in the program at the time Ms Tulloh wrote her report, in February 2019. The defendant's primary therapist reports that he "appeared to understand the key concepts, was participating in the therapeutic process and was appropriate in his interactions with other offenders in the program." He indicated that the defendant's insight into his offending was "poor but appeared to be improving with intervention". Ms Tulloh noted that the defendant is expected to finish the program by the time of his release on 29 August 2019.
3. Ms Tulloh noted in her report that the defendant would be willing to be assessed for anti-libidinal medication and that Dr Furst had recommended that it be considered in his report in 2016. Ms Tulloh said: "Assessment for anti-libidinal medication may be the only further intervention that could significantly reduce [the defendant's] risk of sexual re-offending."

Section 9(3)(e2): the likelihood that the offender will comply with the obligations of an extended supervision order

Section 9(3)(f): without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order

Section 9(3)(g): the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004

1. Although the defendant has a history of compliance with directions whilst in custody, his offending in the community has sometimes occurred whilst subject to conditional liberty. His second set of offences were committed whilst he was subject to a good behaviour bond for his first set, even though supervision had been suspended because of his apparent compliance up until that point.
2. The defendant's most recent offences were also committed whilst he was on parole. He had not disclosed to his parole officer, as he was required to do, that the victim had been visiting him at home for three months by the time the offences came to light, when his mobile phone was inspected.

Section 9(3)(h): the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history

1. In written submissions, the plaintiff aptly described the disturbing pattern that emerges from the defendant's criminal history: "The defendant has committed sex offences on four separate occasions since 1987 commencing when he was 18 years of age. This includes three separate occasions of him getting his child victims in a place where he is alone with them, whether in his house, bedroom or car or in a remote location, where the child is unable to call for immediate help. He bound, gagged and blindfolded his victims and committed numerous offences on them ranging from indecent assaults to digital penetration. The impact of these offences on the victims has been grave. The defendant also admitted committing other offences, prior to 1987, for which he has not been charged. The majority of his victims have been children he has previously met. With the exception of the victim of his 1992 offending, he met all his victims through his relationship with significant others in the victims' lives. He developed a friendship or emotional attachment with the victims using their trust to lure them into a situation where he could commit the offences."

Section 9(3)(h1): the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender

1. When sentenced for his second set of offences on 25 November 1992, Acting Judge Moore of the District Court noted that the defendant had caused "serious psychological harm" to the victim. His Honour adopted the psychological report of Brian Hodge, including a conclusion that "there is within his personality the chance of re-offending".
2. Judge Helen Murrell SC sentenced the defendant for his third set of offences in 2008. Her Honour said: "It would be naïve to think that the offender cold ever be risk free so far as future offences are concerned. However, there is some reason to hope that intense and prolonged supervision upon release will promote prospects of rehabilitation."
3. The defendant was sentenced by Acting Judge Solomon for his most recent offences. His Honour considered that the defendant: "… has shown absolute disregard for the past four orders of the courts, and that being the case, the sentences I impose today will reflect the principles contained in Veen (2) [(1988) 164 CLR 465; [1988] HCA 14]."

Conclusion

1. I am satisfied that, if proved, the supporting documentation would justify the making of an ESO. In coming to that conclusion, I have borne in mind the requisite standard of proof for the making of an ESO, namely, a high degree of probability that the offender poses an unacceptable risk of committing another serious offence (in particular, another serious sex offence) if not kept under supervision under the order: s 5B(d) of the Act.
2. The next matter to be considered is whether, pursuant to s 10A, "the Supreme Court may make an order for the interim supervision of an offender", I exercise the statutory discretion to make an order for interim supervision. I am independently satisfied that it is appropriate to do so.
3. I emphasise that this finding by me is not a pre-judgement of the application for an ESO. On the contrary, I am required by the Act for the purposes of considering an ISO to assume that the supporting material is, in due course at the final hearing, proved, which of course may not be the case. At the final hearing, there may be material tendered or witnesses called on behalf of the defendant's case on the issue of whether an ESO is justified.

Conditions

1. Counsel for the parties have negotiated sensible changes to the proposed conditions. I am grateful to them for these efforts, which have saved considerable court time and resulted in only two remaining contentious issues with respect to the proposed conditions.
2. A condition proposed by the plaintiff concerning accommodation would require the defendant to obtain permission from his Department Supervising Officer (DSO) before a person could "enter and remain, or stay overnight" at his residence. If he is in share accommodation, this would be a difficult condition to comply with. Following further submissions at the hearing, an alternative wording has resolved that issue.
3. The defendant objects to another condition that is proposed by the plaintiff, which would require him to "take all reasonable steps" to make himself available for employment, education, training or participation in a personal development program, as directed by the DSO. A breach of a condition of an ISO is a criminal offence. There can be no doubt that it is in the interests of both the defendant and the community for him to be in employment, but given the time that he has been in prison, it will be a challenge for him to secure work. In view of the fact that the Court is concerned with an interim supervision order which will be in place for no longer than three months, I decline to make that condition.
4. The defendant also objected to a proposed condition that would require him to give 7 working days' notice to his DSO before commencing any paid employment, volunteer work or educational course and complying with the DSO's direction in relation to whether he can commence that activity. The defendant submits that the condition is unnecessary given other scheduling conditions and the capacity of electronic monitoring, but I am of the view that it is necessary. It is appropriate for his DSO to consider work-place, education and volunteer social situations given his past offending and the need to monitor his social relationships.

Orders

1. Accordingly, I make the following orders: 1. Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to an interim supervision order from 29 August 2019 for a period of 28 days. 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is directed to comply with the conditions of the interim supervision order which are set out in the Schedule to this judgment. 3. Pursuant to s 7(4)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), two qualified psychiatrists or registered psychologists (or a combination of such persons), as agreed between the parties, are to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court. 4. Pursuant to s 7(4)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is directed to attend those examinations. 5. Access to the Court's file by a non-party in respect of any document will only be granted with the leave of a Judge of the Court and only after the parties have been given notice of the non-party's application for access and have been afforded an opportunity to be heard.

State of NSW v Joensen (Prelim) Schedule of conditions (86.3 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2019