State of New South Wales v Joensen

Legislative scheme and legal principles

1. The objects of the Act are set out in s 3: 3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.
2. The objects must be borne firmly in mind when making any orders under the Act.
3. The procedural requirements set out in ss 5B(a)-(c) and 5I of the Act have been met. There is no issue in that regard. The issues for determination are limited to whether the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision (s 5B(d)), and if so, what are the appropriate conditions to impose pursuant to s 11 of the Act.
4. The principles for the necessary evaluative task are well known and set out in succinct form in paragraphs [12]-[18] of the plaintiff's written submissions: "[12] The unacceptable risk precondition requires the exercise of a discretionary judgment. [1] The objects of the Act should be held in mind when undertaking this evaluative task. [2] [13] Intrusions on the defendant's right to liberty and privacy by the ordering of an ESO are not relevant considerations for the first stage analysis. [3] [14] The Court must be satisfied that the existence of the unacceptable risk is higher than the civil standard of proof and is "beyond more probably than not". [4] [15] An "unacceptable risk" is one that is intolerable or far from normal expectations or required standards. [5] [16] The Court is not required to determine that the risk of a person committing a serious offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious offence (s 5D). Basten JA held in Lynn at [126] that: The nature of the risk …. had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community. [17] Determining what is an "unacceptable risk" includes a consideration of the type and nature of the offences that may be committed absent supervision and balancing those factors, if necessary, for example where there is low risk of recidivism versus likely drastic consequences to the victim. [6] [18] The Court may legitimately find a person poses an unacceptable risk for the purpose of the unacceptable risk test, even if the likelihood of them committing a further serious offence is determined to be low. [7] "

Section 9(3) considerations

1. I must have regard to the factors set out in s 9(3) of the Act.

The reports (and oral evidence) received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination: section (9)(3)(b)

1. Both of the Court appointed experts are of the view that the defendant remains at high risk of re-offending. During oral evidence on 18 November 2019, Dr Furst articulated a significant concern about the level of risk of re-offending associated with the defendant, volunteering "He worries me…overall". [8]

Dr Furst

1. Dr Furst assessed the defendant on 23 September 2019, having previously coincidentally assessed him in November 2016 for a pre-sentence report. He noted the lengthy history of sexual deviance/paraphilia (BDSM), the interest in pornography, especially involving bondage or rape fantasies from age 16 and that the defendant found it more arousing than mainstream pornography. Dr Furst also noted the defendant described to him a tendency to turn to BDSM when he felt bad emotionally.
2. Dr Furst noted the defendant told him that his sexual offending was "a power trip", and he is vulnerable to offending when he feels powerless and the "world is against him".
3. His paraphilia is the most relevant clinical disorder. There is also an underlying personality disorder and a tendency to decompensate under stress and self-harm.
4. Dr Furst concluded that the defendant poses a "much higher" risk of committing a further serious offence of a sexual nature than the typical male sex offender and that that risk is unlikely to change in the foreseeable future hence the need for long term assertive monitoring and management.
5. Dr Furst concluded that the risks are best managed through ongoing assertive community measures, including consistent supervision, scheduling and monitoring, participation in psychological counselling and treatment in accordance with the proposed ESO.
6. In his oral evidence Dr Furst noted the usefulness of planning a schedule of activities as something that would reduce anxiety and social isolation as "the therapy itself is actually planning to go out and do things rather than staying at home". [9] Dr Furst also said it would be "artificial" for the Court to impose a time frame for relaxation of schedule of movements because it may coincide with an unsuitable time to do so, for example, [10] three years from now he may be depressed and so at risk, [11] and "…it's impossible to say how he will go". [12]
7. Dr Furst also noted that the defendant was on the Child Protection Register when he re-offended. [13]

Dr Martin

1. Dr Martin interviewed the defendant on 11 September 2019. In that interview the defendant denied any attraction to children but acknowledged that children have been his victims as they were "easier to groom" and there was more opportunity to offend using bondage against children as they were easier to dominate. He described interest in bondage, discipline and sadomasochism "because of control issues" and admitted to sexual fantasies of that type.
2. The defendant told Dr Martin that he viewed "rape porn" and that he has previously spent up to three hours per day watching this, two or three times per week. He attributed viewing this type of pornography to emotional problems. He denied paraphilic fantasies, but acknowledged that he was potentially at risk of further re-offending given his past history stating: "it's a part of me".
3. Dr Martin concluded that the primary psychiatric diagnosis is sexual sadism disorder and that he qualifies for other paraphilic disorders including paedophilic disorder and behaviours consistent with voyeuristic disorder. Dr Martin described these disorders as "chronic and enduring and are highly likely to be relevant and associated with future risk to others in the foreseeable future".
4. Dr Martin concluded: "In my opinion, it is likely that his sexually deviant interests continue and he acknowledged this himself, meaning that he will require assertive management of the risk issues in the future. Risk factors might be mitigated with assertive management and treatment and supervision. It is unlikely that age will significantly mitigate this risk in the foreseeable future."
5. In terms of future risk Dr Martin concluded: "The most significant issue in relation to future risk in my opinion is the nature of the previous offending, with its sadistic quality, the fact that there are a number of paraphilias present including sexual interest in children in the past, and that he has offended while under supervision and after engaging in treatment."
6. In his oral evidence Dr Martin agreed with Dr Furst that scheduling of movements (as well as electronic monitoring) was important: "I would say the schedule of movements actually adds to the structure and actually addresses the monitoring aspect of it in terms of managing risks. Because it's proactive as opposed to reactive, to just following where someone's movements might be. It actually sets out a plan of where the person is. So it anticipates potential problems, and triangulates, and makes sure he is sticking to that plan." This can be combined with discretion to lessen restrictions if the defendant is compliant and stable, [14] using the staged approach referred to in Ms Grabham's affidavit. [15]

The results of any statistical or other assessments as to the likelihood of the offender committing a further serious offence: sections 9(3)(c) and (d)

1. A number of the assessments referred to under this consideration are many years old, however I have referred to them as they illustrate the long term nature of the impulses and the chronicity of the focus and behaviour of the defendant.

Associate Professor McConaghy, psychiatrist: 1988

1. The defendant reported being aware of impulses to carry out acts similar to his 1987 offending (set out at [7] above) since he was 15 years old.

Mr Jones, psychologist: 1988

1. Paedophilic interests were noted but it was not possible to say how ingrained those were at that stage.

Mr Hodge, clinical psychologist: 1992

1. Mr Hodge concluded that the defendant was "deeply disturbed and potentially dangerous" and that his sexual behaviour was "entrenched, compulsive and fetishistic", noting little control over his thoughts, fantasies and images relating to sexual activity in the context of bondage and mastery. Mr Hodge had no confidence that the defendant would not re-offend.

Mr Wallis, psychologist: 1992

1. Mr Wallis concluded that the defendant had developed a sexual fixation on pre-pubescent and pubescent females and had paedophilic bondage fantasies.

Mr Taylor, clinical psychologist: 1998

1. Reference was made to a bullied and isolated childhood during which there were revenge and control fantasies. Mr Taylor took the view that the offending behaviours were attempts to gain revenge on women and more generally on society.

Dr Allnutt, psychiatrist: 2008

1. Dr Allnutt concluded that the defendant's domination fantasising had become progressively more complex and entrenched. He developed strong feelings of anger and resentment towards women which manifested in rape fantasies and the fantasies became more detailed as he reached his later teen years, principally revolving around humiliation and power.
2. Dr Allnutt assessed the defendant as presenting a significant concern for future sexual recidivism, because of his underlying paraphilic disorder.

Ms Dewson, psychologist: 2013

1. Ms Dewson referred to the way in which the defendant has developed long term sadistic and concerning fetishes against a background of sound difficulties. The effect of her opinion is helpfully set out in [83] of the plaintiff's written submissions noting that the defendant: "[83] …has historically developed sadistic sexual fantasies in order to achieve a sense of control over his circumstances. The themes of his fantasies involved hurting and dominating others, which has transcribed into his offending behaviour. He identified that his index offence was motivated by revenge and that he utilised sexual violence to inflict humiliation and degradation on the victim on the victim. The nature of his sexual fantasies and subsequently his offending behaviour suggests that he harbours hostile attitudes towards some women and at times a lack of concern for others. It appears that this is isolated to certain individuals rather than a general lack of concern for all."

Dr Furst, forensic psychiatrist: 2016

1. Dr Furst considered the defendant's level of psychosocial adjustment to be relatively poor, and he has chronic impairment in this respect by virtue of his chronic depression, anxiety and personality disorder, notwithstanding previous therapy interventions including CUBIT. Dr Furst noted the defendant met the criteria for paraphilia, pervasive depressive disorder (chronic dysthymia), panic disorder with agoraphobia/social phobia and borderline personality disorder. In terms of the likelihood of recidivism, Dr Furst stated that the defendant's offences are likely driven by his sexual deviance, specifically paraphilia/sadomasochism. He belongs to a group of adult male sex offenders generally considered to be at a moderate to high risk of re-offending.

Ms Tulloh, psychologist: 2019

1. Ms Tulloh concluded based on the risk assessment tools that the defendant was in the high-risk category of sexual re-offending.

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 participating in any such programs: section 9(3)(e)

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: section 9(3)(e1)

1. I adopt and agree with the evidence extracted by Ierace J in respect of this issue at [37] to [39] of his judgment. [16] "[37] 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. [38] 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. [39] 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.""

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

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)(f)

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: section 9(3)(g)

1. I agree with and adopt the analysis of Ierace J in respect of these considerations at [40] to [41] of his judgment. [17] "[40] 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. [41] 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."

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: section 9(3)(h)

1. The criminal history has been set out in [7] of this judgment. Obviously there is a disturbing pattern to the defendant's criminal history.

Conclusion as to the statutory basis for imposing an ESO

1. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision. I accept in full the plaintiff's written submissions [18] as to why I should reach this view: 1. The defendant's long history of sexual offending. The defendant has committed sex offences on four separate occasions since 1987 when he was aged 18 years. This has included both offences against males and females and adults and children. Although he has lived in the community for extended periods without offending, he has not succeeded in controlling his sexual offending proclivity over the long term. 2. The defendant's paraphiliac disorders, including sexual sadism, paedophilia and voyeurism. His offending behaviour involved an interest in children along with an interest in rape and violent fantasies. 3. The results of the actuarial testing and lack of support in the community. The defendant is assessed as a high risk of sexual recidivism. He has a lack of protective factors in the community. He has previously offended whilst on parole and engaging with sex offender maintenance therapy. 4. The unanimous opinion of the experts that the defendant poses a high risk of committing a further serious offence of a sexual nature and that assertive and consistent supervision would mitigate that risk. The experts are of the opinion that the defendant's disorders are chronic and enduring and are highly likely to be associated with future risk to others in the foreseeable future. 5. The defendant's own statements regarding the considerable support and structure in the community he requires to cope and not re-offend. He recognises he is a risk and that his offending behaviour is part of him. The defendant is institutionalised and has a history of mental health problems. His long-term reintegration into the community is likely to be difficult and stressful which may trigger risk factors. Difficulty coping would materially increase his risk of sexual recidivism.
2. The evidence is replete with repeated references to significant concerns as to the entrenched and chronic nature of the impulses and fetishes that the defendant wants to and has on previous occasions acted out. His propensity to choose children or people he can dominate as his victims serves to underscore this unacceptable risk.

Conditions

1. The principles and considerations to be taken into account when determining what conditions are appropriate were usefully collected in State of New South Wales v Sturgeon (No.2) [2019] NSWSC 883 by Garling J: "[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: (a) 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]; (b) 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]; (c) 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]; (d) 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 high risk offender: State of NSW v Burns [2014] NSWSC 1014 at [59]; Wilde at [53]; (e) any condition attached to an ESO must address issues relevant too [sic] 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]; (f) any condition which is imposed is not to be unjustifiably onerous or simply punitive: Green at [37]; (g) 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]."

Consideration

1. Ultimately the parties negotiated and agreed upon the form of conditions of the ESO. I am satisfied these conditions are appropriate and indeed necessary for mitigation of the risks that the defendant poses.

Orders 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) Adrian Scott Joensen be subject to a high risk offender extended supervision order for 5 years from today. 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) for the period of the high risk offender supervision order that Adrian Scott Joensen comply with the conditions set out in the Schedule to this judgment.

Schedule of Conditions - Joensen (145 KB, pdf)

Endnotes

1. Lynn v State of NSW 91 NSWLR 636; [2016] NSWCA 57 (Lynn) per Basten JA at [82].
2. Lynn (supra), Beazley P at [55].
3. Lynn (supra) per Beazley P at [44].
4. Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21] per Mason P, Giles and Hodgson JJA.
5. Lynn (supra) per Beazley P at [50] and [51].
6. Kamm v State of New South Wales (Final) [2016] NSWSC 1 (Kamm) Harrison J at [41] 10.
7. Kamm (supra), Harrison J at [43]; State of New South Wales v Sleeman (preliminary) [2018] NSWSC 562 per R A Hulme J at [13].
8. T9.20.
9. T6.20-25
10. T8.40-44
11. T9.1-8
12. T9.20
13. T9.1-2
14. T8.11-21
15. Affidavit of Kelli Grabham affirmed 15 July 2019
16. State of New South Wales v Joensen (Preliminary) [2019] NSWSC 1106.
17. State of New South Wales v Joensen (Preliminary) [2019] NSWSC 1106.
18. Plaintiff's Written Submissions at 19-(e). 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: 20 November 2019