State of New South Wales v Joensen - [2019] NSWSC 1614 - NSWSC 2019 case summary — Zoe

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State of New South Wales v Joensen

[2019] NSWSC 1614

Supreme Court of NSW|2019-11-18|Before: Lonergan J, Ierace J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-11-18

Before

Lonergan J, Ierace J

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

Judgment

A summons filed on 28 May 2019 seeks final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") that the defendant be subject to an Extended Supervision Order ("ESO") for a period of 5 years and that he comply with conditions of the ESO prescribed by the Court.
An Interim Supervision Order ("ISO") was granted by Ierace J in State of New South Wales v Joensen (Preliminary) [2019] NSWSC 1106 on 28 August 2019 (to commence on 29 August 2019) and the defendant is currently subject to the conditions appended to that judgment.
It was accepted by the defendant through written submissions for the final hearing that the statutory indicia are fulfilled for the making of a final order for the period sought, noting "this is an inevitability, based on his history of offending", but some issue was taken regarding a number of the proposed conditions.
Ongoing discussion between the parties further narrowed the issues to only the question of the necessity for the weekly schedule of movements. That remaining issue was resolved after oral evidence from Dr Martin and Dr Furst on 18 November 2019 with the addition of a further note to proposed condition 8.
Despite the now complete resolution of controversy between the parties, the Court still needs to address the statutory tests and survey the evidence. This can now be done in shorter compass than would otherwise be necessary.
This judgment will first set out the relevant background extracted from the preliminary judgment, second, set out the statutory requirements for the final ESO and the evidence tendered that fulfils those requirements, and finally comment on the appropriateness of the agreed conditions within that context.

[2]

Background

The background to this application was set out by Ierace J in State of New South Wales v Joensen (Preliminary) [2019] NSWSC 1106 at paragraphs [6]-[14]: "[6] 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". [7] 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". [8] 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. [9] 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. [10] 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. [11] 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. [12] 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. [13] The defendant completed the Custody-based Intensive Treatment program ("CUBIT"), 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. [14] 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."

[3]

Legislative scheme and legal principles

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.
The objects must be borne firmly in mind when making any orders under the Act.
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.
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] "

[6]

Dr Furst

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.
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".
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.
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.
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.
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]
Dr Furst also noted that the defendant was on the Child Protection Register when he re-offended. [13]

[7]

Dr Martin

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.
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".
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".
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."
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."
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]

[24]

Conclusion as to the statutory basis for imposing an ESO

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.
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.

[25]

Conditions

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]."

State of New South Wales v Joensen

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