HER HONOUR: Christian Paul Keech has been convicted of 19 sexual offences on six separate occasions, as well as a number of other offences. Mr Keech is currently on parole for federal offences of transmitting and possessing child pornography. His conditions of parole are strict but that supervision will come to an end on 4 February 2016 at the conclusion of the sentence imposed for those offences.
The State of New South Wales contends that Mr Keech poses an unacceptable risk of committing a serious sex offence if not kept under supervision beyond that date and, accordingly, seeks an extended supervision order under the Crimes (High Risk Offenders) Act 2006 (NSW).
The Act makes provision for two kinds of order calculated to achieve its objects of protecting the community (its primary object) and encouraging high-risk sex offenders and high-risk violent offenders to undertake rehabilitation. The primary method of protection contemplated by the Act is an order for the extended supervision of an offender beyond the term of the sentence during which the application is made. The State can also seek a continued detention order but such an order may only be made in the event that the court is satisfied that adequate supervision will not be provided by an extended supervision order.
The application in the present case was supported by a thoughtful and extremely helpful report prepared by Narcisa Sutton, a senior psychologist employed by Corrective Services New South Wales, who said:
"In the event that Mr Keech is considered suitable for a Continued Detention Order, he could potentially engage in the custodial maintenance program. However, in my opinion, this is unlikely to help Mr Keech. His primary difficulty, as previously identified, is in applying treatment gains to real life settings, specifically to the community. Therefore a focus on intensive case management including anti-libidinal medication and attendance to the community maintenance programme may provide a better outcome."
State of New South Wales v Keech [2015] NSWSC 1469 | Case summary | Zoe
Reflecting that assessment, the State has sought only an extended supervision order in the present case.
The summons was filed on 2 September 2015. The index offence in respect of the application is an offence of aggravated indecent assault on a person under 16, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The defendant was sentenced for that offence on 4 February 2013 at Campbelltown Local Court. He was imprisoned for 16 months commencing on 4 May 2014 and concluding on 3 September 2015, the day after the date on which the summons was filed. Previously, the defendant had been sentenced on 24 January 2013 for the child pornography offences to which I have referred. He was sentenced for those matters by Haesler SC DCJ who sentenced him to a term of imprisonment with a non-parole period of two years (expiring on 4 October 2014) and a balance of term of one year and four months, the total sentence expiring on 4 February 2016.
The Crimes (High Risk Offenders) Act imposes a number of conditions for the making and consideration of an application for an extended supervision order. The first is the question of the State's authority to make the application. An application may only be made in respect of a person who is a "supervised sex offender" within the meaning of s 5I. A "supervised sex offender" is one who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for a serious sex offence or an offence of a sexual nature or for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment, either of a serious sex offence or an offence of a serious nature.
At the time the present application was made, the defendant was serving a sentence of imprisonment for a serious sex offence, being the offence of aggravated indecent assault to which I have referred. As at that date, he was also serving a sentence for another offence which was being served partly concurrently with the sentence imposed for that offence (namely, the child pornography offences). Whilst it was not necessary to determine this issue for present purposes, in my view the present application could have been brought by the State on the strength of the concurrent sentence. That is, the application could have been brought later than 2 September 2015. In any event, it is not necessary to determine that issue since the State took the cautious approach of filing the summons the day before the expiration of the sentence imposed for the index serious sex offence. The State clearly had authority to make the application in accordance with the terms of s 5I.
Next, s 6 of the Act imposes a number of requirements with respect to an application. The first is that the application must indicate whether the extended supervision order sought is one relating to the offender as a high risk sex offender or a high risk violent offender. That is specified in the summons; the defendant in the present case is identified as a high risk sex offender.
Secondly, the application may not be made until the last six months of the offender's current custody or supervision. Whether one treats the application as relating to the period of custody in respect of the child pornography offences or the index offence, that condition is satisfied.
Next, an application must be supported by documentation of the kind identified in s 6(3) of the Act, particularly including documentation that addresses each of the matters referred to in s 9(3). That, for present purposes, must necessarily be taken not to include the reports of the two independent experts appointed under s 7 at the preliminary hearing (since at this point that material does not exist) but otherwise the application satisfies that requirement.
Assuming compliance with the requirements of s 6 of the Act, s 7 provides for certain pre-trial procedures which must be undertaken. The affidavit material before me satisfies me that the administrative requirements of that section have been satisfied in the present case. More importantly, under s 7(3) of the Act, the court is to conduct a preliminary hearing into the application. The principles relating to preliminary hearings are now well established. The task has been described as being in the nature of the prima facie case test applied by magistrates as part of committal proceedings. The purpose of the preliminary hearing has been said to be to weed out unmeritorious applications and to ensure that the statutory requirements have been met. It is at the stage of the preliminary hearing that the court must consider whether to appoint qualified experts, be they psychiatrists, psychologists or other kinds of practitioners identified in the section, for the purpose of obtaining the reports which in turn become the further material under s 9(3) to which the court must have regard at the final hearing. As already noted, the affidavit evidence in the present case addresses each of the matters and I have considered that material against the requirements of s 9(3).
The task posed for the court at the pre-trial procedure is to consider whether it is satisfied that the matters alleged in that supporting documentation would, if proved, justify the making of an extended supervision order. If satisfied in those terms, the court must make an order of the kind specified in s 7(4)(a) and direct the defendant to attend the relevant examinations. If not satisfied in the terms of the section, the court must dismiss the application.
The order sought by the State today is for the appointment of two qualified psychiatrists to conduct psychiatric examinations of the defendant. As already noted, the section alternatively permits the appointment of two psychologists, or one psychiatrist and one psychologist, or two psychiatrists and two psychologists. I am satisfied in the present case that it is appropriate (subject to indicating my satisfaction in the terms of the section) to proceed according to the orders proposed by the State of appointing two qualified psychiatrists. There was at one point earlier this morning some question as to whether two qualified psychiatrists could be retained so as to provide reports within the time required by the prescriptive temporal regime imposed by the Act but that issue has been resolved. I would indicate that I would not, in the circumstances of this case, have been prepared to proceed on the strength of evidence of psychologists rather than psychiatrists, the defendant's issues plainly being ones which raise the need for psychiatric assessment, in my view.
The defendant consents to the order proposed by the State today. Whilst that is a helpful indication, it does not of course obviate the need for the Court independently to make an assessment as to whether it is satisfied in the terms of the Act. In the present case, the application was supported by an affidavit which exhibited three volumes of material. I have had some opportunity to consider the content of those volumes but have not considered them in the detail that would otherwise have been necessary. The contents of the affidavit itself and the annexures to the affidavit (being the three principal reports that support the present application) provide, in my view, an adequate foundation for the assessment required to be made today.
However, in making that assessment, it is to be recalled that the appointment of two medical practitioners, be they psychiatrists or psychologists, with the requirement to direct the offender to attend examinations by those persons is the only truly penal aspect of the Act plainly intended by Parliament to overcome the entitlement of a person not to be exposed to penalty without conviction, as explained recently by the Court of Appeal in State of New South Wales v Donovan [2015] NSWCA 280 at [117].
I turn then to consider whether the material before the Court is such as to establish that, if proved, it would justify the making of the extended supervision order. As noted by Mr Hammond on behalf of the State, the three principal documents to which regard may be had in making that assessment are the two reports of risk assessment prepared by Ms Marie Rubio, CUBIT psychologist, and the report of Ms Sutton to which I have already referred. I have considered the content of those reports in detail.
Ms Sutton's first report was prepared on 15 December 2014 in response to instructions from the Attorney-General to consider the defendant for the present application. Ms Sutton noted that Mr Keech was at the time of her first examination (and remains) a 39-year-old man who has been convicted of sexual offences against a number of females on six separate occasions. She noted that his victims were between ages eight and 20 years and that his offences had included a variety of different kinds of offending including obscene or threatening letters and phone calls, a conviction for exhibitionism, one for voyeurism and three convictions for sexually touching adolescent girls in public places. She also noted a conviction for possession of child pornography. As already noted, that was in fact a conviction including an offence of transmission of child pornography. Ms Sutton noted Mr Keech's participation in a number of CUBIT therapeutic programs. At the time of her examination, he was undergoing that program for the third time. She observed the respects in which the program had failed to give the defendant the ability to implement the skills learned. She assessed him as being a person who posed a high risk of sexual recidivism noting, fairly, that his sexual assault convictions did not fall within the most serious category but observing that he had during the course of his treatment programs reported more "intrusive" offences including an offence to which he evidently admitted against an 18-month-old infant, as to which she said, "If true, they are indicative of potential for more serious harm."
Ms Sutton observed a number of positive features concerning the defendant's engagement with treatment and also discussed the prospect of his undergoing anti-libidinal medication, recording the fact that there is "some empirical evidence to suggest that suppression of testosterone levels can be associated with a reduction of sexual arousal and sexual fantasy or preoccupation". Ms Sutton recorded that the defendant displayed a fairly sophisticated understanding of his risks and the strategies that he had in the past failed to put in place or that had not worked for him. She said on this occasion (writing in December last year) that he reflected on the reasons of his lack of motivation for rehabilitation, offering the suggestion that:
"committing the offences was sexually satisfying, and though he was aware that offending would result in a gaol sentence, gaol is not a deterrent for him. He has not had negative experiences and feels quite comfortable in the familiar structured environment of prison".
By the time of her next report, Ms Sutton assessed that circumstance as having changed for the better, in this respect. She recorded that there was a shift in the defendant's motivation. She referred back to her earlier remarks about his feeling comfortable in gaol and said that Mr Keech now:
"appeared to look forward to his time in the therapeutic community. He now repeatedly states that he is sick of gaol and demonstrated some anxiety about the outcome of his parole hearing. He also expressed a desire to be a normal person, including getting a job, repairing relationships with his family and finding a network of friends who do not do drugs."
Ms Sutton reported (in a way that confers some basis for optimism in respect of this defendant) that Mr Keech has shifted his attitude towards authority, now recognising that some authority figures, such as his therapist and his supervising officer, are there to help him with his pro-social goals.
Before turning to Ms Rubio's report, I should also record the content of a risk management report prepared by Ms Pauline Jeffress, a community corrections officer with the extended supervision order team. The content of Ms Jeffress's report is of a kind that is common in applications such as the present. She addressed the extent to which the defendant can reasonably and practicably be managed in the community and listed the kind of conditions to which he might be subject under an extended supervision order. I should note that Ms Jeffress recorded that, should the Court find it appropriate, Mr Keech could be made subject to electronic monitoring which she considered would provide a critical tool in his supervision and management. Without pre-empting the conclusion of the final hearing in these proceedings, it seems to me that that would be an important condition, having regard to the factors recorded in the other reports.
I turn then to Ms Rubio's treatment report. She records in detail the defendant's offence history and describes in a helpful way his understanding of his offending behaviour, including his acknowledgment of a number of "problematic core beliefs" that have contributed to his offending behaviour, such as the belief that it does not cause much harm, that children will not hurt or judge him and that females exist for the pleasure of males. Ms Rubio has evidently engaged (in what appears to me to be a very constructive way) with Mr Keech in understanding the need to resist those problematic core beliefs and his pathways to offending. Perhaps most importantly, her analysis reveals the importance of supervision but also the ways in which supervision might well be adequate to meet the risk posed by Mr Keech. Ms Rubio concluded:
"Taking into account both static and dynamic risk factors, the risk rating of 'high' on the Static-99R is considered as accurately reflecting Mr Keech's current risk. Dynamic risk areas including sexual self-regulation, intimacy deficits and general self-regulation are ongoing areas of risk that require regular monitoring and management."
Ms Rubio noted that Mr Keech's progress through treatment has appeared positive and that he demonstrates good insight into his offending behaviours but also observed his difficulties faced when he experiences overwhelming emotions and does not engage in positive behaviours of the kind intended to be taught to him by the treatment he has been given. Ms Rubio concluded by recommending that the defendant participate in the community-based maintenance program for sex offenders to provide him with additional support and the opportunity to review the strategies learned in the CUBIT program.
The mandatory considerations under s 9(3) of the Act are addressed in careful detail in the written submissions of Mr Hammond. I have had regard to the detail of those submissions. Mr Hammond's submissions also summarise some of the psychological reports of psychologists who have assessed the defendant at earlier stages, going back as far as 2000. I have considered that material but, plainly, the most pertinent consideration at this stage is that set out in the more recent material.
Mr Hammond submitted that the evidence clearly establishes that the defendant is a paedophile with other psychiatric conditions, including antisocial personality disorder and cannabis use disorder that are chronic in nature. He observed the assessment of the defendant as being in the high range of sexual offence recidivism on both actuarial and dynamic risk assessment tools. As noted in Mr Hammond's submissions, Ms Sutton's report set out a hypothetical risk scenario based on Mr Keech's previous offending on the strength of which she assessed that there is a risk of his committing an offence of the kind of an aggravated indecent assault, including touching of an adolescent schoolgirl. I have paid careful attention to that part of Ms Sutton's report and consider it to be a realistic appraisal of the risk. Mr Hammond also noted that cannabis use is a particular problem for the defendant and that there is a clear link between his cannabis use and a heightened risk of sexual offending.
Mr Hammond further noted in his submissions that the defendant has used anti-libidinal medication previously, reporting some success. However, in 2009 he ceased taking the medication without seeking medical advice and shortly afterwards committed sexual offences. Mr Hammond noted that every psychologist and psychiatrist who has assessed Mr Keech has recommended the use of anti-libidinal drugs. That is plainly an element which, if proved, would point strongly towards the need for supervision.
I accept, as submitted by Mr Hammond, that, if proved, the evidence in the present case is strongly supportive of an order for the offender's extended supervision. I hasten to add that that is the premise to be established at the final hearing; namely, that the material presented at the preliminary hearing is proved and, of course, at the final hearing, the Court must have regard to additional material being the reports of the two independent experts. Further, the Court always retains a discretion as to whether to make orders as sought. But at the present stage, and having regard to the test posed at the preliminary hearing, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order against Mr Keech. It follows in accordance with the terms of the Act that I must make the orders sought.
I make orders 1 to 5 in the Short Minutes of Order provided by the State, which I note were consented to by Mr Scragg on behalf of the defendant:
1. Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006;
1. That Dr Anthony Samuels, psychiatrist, and Dr Adam Martin, psychiatrist, be appointed to conduct separate examinations of the defendant and to furnish reports on the result of those examinations to the Supreme Court of New South Wales by 28 October 2015; and
2. Directing the defendant to attend those examinations.
1. The plaintiff to file and serve any evidence and submissions on which it relies for the final hearing by 11 November 2015.
2. The defendant to file and serve any evidence and submissions on which he relies for the final hearing by 25 November 2015.
3. The matter be listed for hearing on 10 December 2015 with an estimate of one day.
4. Direct that access to the court file in respect of any document shall not be granted without the leave of a judge of the Court. If any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to be given the opportunity to be heard.
I grant liberty to the parties to apply to relist the matter on one day's notice.
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Decision last updated: 07 October 2015