State of New South Wales v KAS

Judgment 1By its amended summons filed on 26 June 2012 the plaintiff, State of New South Wales, seeks the following orders against the defendant, whom I shall refer to as KAS -

An order pursuant to s 7(4) of the Crimes (Serious Sex Offenders) Act 2006 ("the Act"): (a) appointing two qualified psychiatrists to conduct separate psychiatric 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; (b) directing the defendant to attend those examinations.
An order pursuant to section 8(1) of the Act that the defendant be subject to an interim supervision order from 28 July 2012 for a period of 28 days, and pursuant to s. 11 of the Act, direct that, for the period of the interim supervision order, the defendant comply with the conditions set out in the Schedule to this Summons.
An order pursuant to section 9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of 3 years from the date of the order and pursuant to s. 11 of the Act, direct that the defendant comply with the conditions set out in the Schedule to this Summons. 2On the hearing before me on 24 July 2012 Mr Kell of counsel, for the plaintiff, sought only the first two of those orders and proposed a program to deal with the remaining matters sought in the amended summons. Mr Johnston of counsel, for the defendant did not oppose my making the orders sought, save for one matter. 3It is accepted that the defendant is a sex offender who has committed serious sex offences, as those terms are defined in the Crimes (Serious Sex Offenders) Act 2006 ("the Act") and is susceptible to orders of the Court made under the Act. 4The defendant has served a number of terms of imprisonment for serious sex offences. He was released to parole on 14 June 2012 and his last sentence will expire on 28 July 2012. 5For present purposes the relevant sections of the Act are these - Section 3 (1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation. ... Section 6 (1) The State of New South Wales may apply to the Supreme Court for an extended supervision order against a sex offender who, when the application is made, is in custody or under supervision: (a) while serving a sentence of imprisonment: (i) for a serious sex offence, or (ii) for an offence of a sexual nature, or (iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), whether the sentence is being served by way of full-time detention, intensive correction in the community or home detention and whether the offender is in custody or on release on parole, or (b) pursuant to an existing extended supervision order or continuing detention order, referred to in this Part as his or her "current custody or supervision". (2) An application may not be made until the last 6 months of the offender's current custody or supervision. (3) An application must be supported by documentation: (a) that addresses each of the matters referred to in section 9 (3), and (b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence. (4) An application may indicate the kinds of conditions that are considered to be appropriate for inclusion under section 11 in the event that an extended supervision order is made. Section 7 (1) An application for an extended supervision order must be served on the sex offender concerned within 2 business days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (2) The State of New South Wales must disclose to the offender such documents, reports and other information as are relevant to the proceedings on the application (whether or not intended to be tendered in evidence): (a) in the case of anything that is available when the application is made, as soon as practicable after the application is made, and (b) in the case of anything that subsequently becomes available, as soon as practicable after it becomes available. Note: Section 21A (6) provides that the State of New South Wales must not disclose a victim statement to the offender unless the person who made the statement consents to the disclosure. (3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application. Section 8 (1) If, in proceedings on an application for an extended supervision order, it appears to the Supreme Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court may make an order for the interim supervision of the offender. (2) An order under this section commences on the day fixed in the order in that regard (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order. (3) An order under this section may be renewed from time to time, but not so as to provide for the supervision of the offender under such an order for periods totalling more than 3 months. Section 9 (1) The Supreme Court may determine an application for an extended supervision order: (a) by making an extended supervision order, or (b) by dismissing the application. (2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (2A) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence. (3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports 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, (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 sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (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 sex offence, (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, (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, (f) 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, (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 , (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, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature. ... Section 11 An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender: (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name. 6 As to s 7(4), the test whether the supporting documentation "if proved" would justify the making of an extended supervision order imposes an elevated standard of proof. It is lower than the criminal standard but higher than the civil standard, similar to the requirement of a prima facie case to be made out in committal proceedings: Attorney General for NSW v Hayter [2007] NSWSC 983 per Price J at [6]. The test is to be applied without considering evidence called by an offender at an interim hearing or that the offender might call at the final hearing. The Court is not involved in weighing the documentation or predicting the ultimate result: Attorney General for NSW v Tillman [2007] NSWCA 119 at [98]. 7In order to make an extended supervision order at a final hearing the Court must be satisfied "to a high degree of probability" that the offender poses "an unacceptable risk of committing a serious sex offence" if not kept under supervision. See Attorney General for NSW v Tillman, per Bell Jat [27]. 8In NSW v Thomas (preliminary) [2011] NSWSC 118 RA Hulme J expressed a tentative view at [20] that the test for unacceptable risk is 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. Simpson J approved that formulation in NSW v Conway [2011] NSWSC 588 at [30]. 9The defendant was born on 12 February 1973 and is 39 years old. He came under the notice of the Children's Court when he was 14 and was dealt with over the years for many occasions of misbehaviour including offences of dishonesty and violence. In 1988 he was suspended from school after a report that he and his younger brother held down girls and fondled their breasts and vaginas. After he came of age he began to be dealt with in the Local Court but not for any offence of a sexual nature. 10Just before Christmas 1996 he impregnated his 11 year old cousin, in whose house he was staying at the time. He pleaded guilty in the District Court after DNA tests proved it highly probable that he was the father of the child delivered to the girl. He was sentenced to imprisonment. The Crown appealed against the sentence and it was increased in the Court of Criminal Appeal to a head sentence of 4 years and 6 months with a non-parole period of 2 years and 3 months. 11Between 1 November 1997 and 5 April 1998 the defendant committed two serious sexual offences against an 8 year old girl. Between 24 March and 18 December 1998 he committed two further offences against the same girl. Between 10 December 1998 and 20 April 1999 he committed a further offence against the girl, who was then 9 years old. The child was the daughter of a woman with whom the defendant had entered a relationship. 12In the first event the defendant touched the child's vagina with his finger but did not penetrate. In the second he had her suck his penis. He ejaculated. In the third he again touched her vagina without penetrating her. In the fourth he again had her perform fellatio until he ejaculated. His activities in the fifth were of much the same kind. 13The sentencing Court took the view that he was in the position of step-parent and that his actions, which occurred over a period of about 2 years, constituted breaches of trust. For the five offences the defendant was sentenced to an effective total term of imprisonment of 11 years with a non-parole period of 8 years. The Court of Criminal Appeal refused him leave to appeal against the severity of the sentences. 14Before the Court is a treatment report written on 30 April 2012 by Sophie Purcell, Specialist Psychologist, and Maggie Cruickshank, Acting Therapeutic Manager. Both authors had the management and assessment of the defendant under the CUBIT (Custodial Based Intensive Treatment) program. CUBIT is a custody based residential program for men who have sexually abused adults or children. The program balances risk management with a strengths-based approach to treatment for individuals with moderate to high risk and needs. The program lasts between 6 and 10 months. 15Also before the Court is a risk assessment report written by Senior Specialist Psychologist Patrick Sheehan, acting director of the sex and violent offender therapeutic program, and Danielle Moatsuo, also of the CUBIT program. 16Those having the management of the defendant were troubled about his attitude to illicit drugs. He was diagnosed as having opioid dependence with physiological dependence, amphetamine dependence with physiological dependence and alcohol dependence. During his teenage years he was diagnosed with schizophrenia and then again during the early stages of his sentences in 1999 and 2000, but the opinion was that his psychotic symptoms were probably related to drug use. There is no suggestion now that the defendant is psychotic. 17During his time in custody the defendant was dealt with 29 times for misconduct. More than half the offences were for drugs in urine or for failure to supply urine for testing. Substances detected in the urine included cannabis, buprenorphine and methamphetamine. 18The defendant's failure to come to terms with his offending against the children was reported on. 19In 2001 the defendant was found suitable to enter the CUBIT program, but he declined to do so. In 2006 he was again offered the opportunity to commence the program but he began to make excuses for not doing so and was ultimately regarded as having refused the offer. In 2010 he was again advised that he was suitable and was offered a position to begin, but again he refused to sign. It was not until 2011 that he finally consented to enter the program. One result of this delay was that he could not fully complete it and in the end it had to be rushed. 20Early in the program he participated and his prospects looked favourable. Later on, however, although he said that he wanted to progress through treatment, his behaviour was inconsistent. His progress slowed. He experienced high levels of shame and discomfort when attempting to explore past behaviour. He engaged in "avoidant-based coping through shifting responsibility to others". He offered minimal self-disclosure. He neglected to acknowledge a sexual attraction to children or access to children as a risk factor. 21Those reporting considered that the defendant fell in the moderate-high risk category, relative to other male sexual offenders, of sexually reoffending. 22Mr Sheehan considers that the defendant's history, including his previous poor response to supervision and his history of abusing illicit drugs and alcohol, suggests that he will probably struggle to apply treatment gains outside the CUBIT therapeutic unit. Mr Sheehan considers that the risk of his use of illicit drugs raises concerns as to his ability to benefit from treatment. 23Mr Sheehan considers that the disinhibiting effect of alcohol and illicit drugs is relevant to the risk of his sexual reoffending. 24Mr Sheehan points out that the offence committed in December 1996 was impulsive and opportunistic, whereas the offences committed against the child of his partner were committed over a long period and involved an element of planning. Mr Sheehan was struck by the defendant's versatility in that respect. 25Mr Kell drew attention to the following matters, each of which appears from the evidence before the Court, as justifying the orders sought - (i) The defendant is assessed as presenting a moderate to high risk of sexual recidivism by reference to both static and dynamic risk factors; (ii) The defendant has a history of having committed sexual assaults against female children, which have extended over a number of years. He has convictions for having committed 6 sexual offences against 2 different female children on different occasions. Further, the offences charged against the victim of the index sexual offences reflected part of a wider course of conduct by the defendant involving sexual assaults against the victim over a two year period; (iii) The defendant meets the diagnostic criteria for Paedophilia, and also for Antisocial Personality Disorder; (iv) The defendant has a history of abusing illicit drugs and alcohol. Illicit drugs and alcohol are identified, including by the defendant as being linked to his sexual offending; (v) Although the defendant has recently completed the CUBIT program, concerns were expressed regarding the extent of his participation in the program; (vi) The defendant has continued to abuse illicit drugs despite being in custody. Even when recently undertaking the CUBIT program the defendant was detected as having used methyl amphetamine and cannabis; (vii) The defendant is likely to abuse illicit drugs or alcohol upon his release into the community; (viii) Absent intensive supervision and monitoring, the defendant may obtain access to potential victims, whether from partners, relatives, friends or neighbours - including, conceivably, access to the younger children of his de facto partner (the mother of victim CLP) with whom he has kept in contact while in custody; (x) The defendant is identified as having continued need for sex offender treatment in terms of the community maintenance program, which is available only for offenders who are subject to supervision requirements, such as an ESO; (xi) The defendant has not have any significant period of supervision on parole - of the type contemplated by Judge Bellear when finding circumstances and allowing for, potentially, a period of 3 years on supervised parole. 26I am satisfied that the material in the documentation supporting the plaintiff's application, if proved, justifies the making of an extended supervision order. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision. 27Accordingly, I conclude that orders should be made generally in accordance with paragraphs 1 and 2 of the amended summons. There is, however, one matter of disagreement as to the conditions which should apply. Order 2 proposes that the defendant be subject to an interim supervision order for the period of which he should comply with conditions set out in the schedule to the orders. Order 4 of the draft schedule is as follows - The defendant must wear such electronic monitoring equipment as may from item to time be directed by the Departmental supervising officer and comply with all instructions given by a CCMG officer in relation to the operation of such equipment, and must no tamper with or remove such equipment 28Mr Johnston, for the defendant opposes the imposition of that condition. 29When a condition of the kind contended for is imposed, subjects are monitored electronically by the fitment of an anklet which allows monitoring in a fixed location, for example a place of residence, as well as by a global positioning system, which enables supervisors to track the subject's movements, recent and present. The Community Compliance and Monitoring Group (CCMG) can designate places where the subject should not go and the equipment can be programmed to sound an alarm audible to the subject on entry into any such place. The condition contended for would work in conjunction with condition 5, about which there is no dispute. It provides that -

Vehicles 30. The defendant must notify his Departmental supervising officer of the make, model, colour and registration number of any vehicle: a. owned by him; or b. driven or to be driven by him, whether hired or otherwise obtained for his use. Search and Seizure 31. If the Departmental supervising officer reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff at the defendant's approved accommodation; b. to monitor the defendant's compliance with the extended supervision order or an interim supervision order; or c. because the Departmental supervising officer reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence; then the Departmental supervising officer may direct, and the defendant must submit to, a: d. search and inspection of any part of, or any thing in, the defendant's approved accommodation; e. search and inspection of any part of, or any thing in, any vehicle owned or hired by the defendant; and/or f. search and examination of his person in his approved accommodation. 32. For the purposes of paragraph 31.f: a. a search of the defendant means either or both a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a Departmental supervising officer of the same sex as the defendant, or by a Departmental officer of the same sex as the defendant under the direction of the Departmental supervising officer concerned. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 33. During a search carried out pursuant to paragraph 31, the defendant must allow the Departmental supervising officer to seize any thing found in the defendant's approved accommodation, any vehicle owned or hired by the defendant, or on the defendant's person, whether in the defendant's possession or not, which the Departmental supervising officer reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved accommodation; b. the welfare or safety of any member of the public; or c. the defendant's compliance with the extended supervision order or an interim supervision; or which the Departmental supervising officer reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence.

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Judgment (16 paragraphs)

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