State of New South Wales v Keech

Supreme Court of NSW|2015-12-10|Before: Hulme J, McCallum J

Solicitors: Crown Solicitor's Office Legal Aid NSW File Number(s): 2015/257621

Judgment

HIS HONOUR: The State of New South Wales ("the State") has applied for an extended supervision order ("ESO") in respect of Mr Christian Paul Keech pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). Mr Keech is currently on parole, expiring on 4 February 2016.
Proceedings were commenced in this Court by the filing of a summons by the State on 2 September 2015. A preliminary hearing was held before McCallum J on 17 September 2015. Pursuant to her Honour's orders, two psychiatrists, Dr Anthony Samuels and Dr Adam Martin, conducted examinations of Mr Keech and furnished reports to the Court.
At the final hearing before me on 10 December 2015, Mr Keech accepted that the Court would likely find that the statutory preconditions to the making of an ESO would be established and as a consequence he did not oppose it. The State contended that the duration of the order should be 5 years but Mr Keech argued that 3 years was a more appropriate period. Mr Keech also objected to one of the proposed conditions.
For the reasons which follow I have concluded that the order should be made and that it should be for a period of 5 years.

The statutory provisions

Having regard to the concessions made by Mr Keech it is unnecessary to set out the relevant provisions of the Act, explain their application by reference to authority, and provide elaborate reasons for my conclusions. It will suffice to say that I am satisfied that all of the statutory pre-conditions are established. I am also satisfied on the basis of a consideration of the various matters listed in s 9(3) of the Act that Mr Keech is a "high risk sex offender" (as defined) who is a "sex offender" (as defined) and that there is "a high degree of probability that he poses an unacceptable risk of committing a serious sex offence if he … is not kept under supervision" (s 5B(1)).
To provide some explanation and also to provide a context for my reasons as to the contested issues it is necessary to refer to some of the evidence.

General background

Mr Keech was born in Mudgee in 1975. He is 40 years of age. He completed Year 10 at Kandos High School and then worked as a farmhand. He has a forklift driver's licence. He was married in 2000 and has two children, a fourteen year old boy and an eleven year old girl. His children live with foster parents and Mr Keech has no contact with them. He separated from his wife in 2003. He still has some contact with his parents.

Criminal offending

Mr Keech's criminal history commenced in 1994. He has been convicted of 19 sexual offences on 6 separate occasions committed against females aged between 8 and 20 years. He has also been convicted for a number of drug possession offences.

May 1996 - improper use of postal service

Mr Keech was charged with improper use of a postal service to menace after he sent a letter to a girl inviting her to have sex with him and threatening her with rape if she did not. He pleaded guilty and was placed on a two year good behaviour bond on 9 August 1996.

September 2000 - aggravated acts of indecency

On 6 September 2000 Mr Keech stood naked masturbating at the glass door of his lounge room and made a whistling noise to the victim as she walked past with a friend. On 9 September, he yelled out of his car window at two girls aged 9, "why don't you go and have sex with someone. I have had kids like you at my house, and if you're not gone by the time I get back, you will be like the other little girls. I'll hurt you". The following day he stopped his car near the same girls and said, "do you want to look at my dick?"
Mr Keech was arrested on 13 September 2000. He had in his possession a folder containing a number of letters written to and from females between the ages of 15 and 32. The letters sought information about the girls' sexual behaviour and preferences. He was charged with various counts of committing acts of indecency and was granted bail. He pleaded guilty to these offences on 30 November and was sentenced to 18 months imprisonment.

October 2000 - offensive use of carriage service

Between 1 and 3 October, whilst on bail for the above charges, the offender telephoned a number of females, leaving sexually explicit and threatening messages. In one particular message, left on the phone of a 17 year old girl on 3 October, Mr Keech said "… baby I want to fuck your tight pussy, so be at the park …". He left a further message which threatened rape. He left similarly sexually explicit messages on the phone of another 17 year old girl and on the phone of two sisters where he detailed sexual acts he wished to perform and threatened them if they did not attend a park to meet him that evening.
On 5 October Mr Keech was arrested. He admitted making the calls. He denied intending to use violence and denied receiving any sexual gratification from the acts. He was not granted bail and was sentenced on 30 November at the same time as for the above offences and was sentenced to 6 months imprisonment.

June 2003 - breach Child Protection Register and loitering

Mr Keech was charged with failing to report a change of address to police as required under the Child Protection (Offenders Registration) Act 2000 when he moved to Glenn Innes. He was also charged with an offence under s 11G(1)(b) of the Summary Offences Act 1988 (NSW), namely, being a child sexual offender and loitering near premises frequented by children. Mr Keech had been attending the children's playground at a local park and had visited pornographic internet sites at a public library. He pleaded guilty to both charges and was given a six month suspended sentence (s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) for each charge. After breaching this sentence he was re-sentenced to two further s 12 bonds. He breached these bonds and was sentenced to six months imprisonment commencing 15 November 2004.

May 2005 - loitering and peep/pry

On 18 May 2005 Mr Keech followed a female into a public toilet and looked at her over the cubicle door. He later disclosed that he masturbated during this incident as he watched her pull down her garments. The victim saw Mr Keech walk past her about 5 days later; she contacted police and he was arrested. Mr Keech entered a plea of guilty to being a child sexual offender loitering without reasonable excuse in a place regularly frequented by children and also peep/pry. He was sentenced to nine months imprisonment (six months non-parole) for the loitering charge and two months imprisonment to be served concurrently, for the peep/pry charge.

November 2007 - aggravated indecent assault and loiter

On 25 November 2007, Mr Keech walked up behind a 12 year old girl who was walking with a friend in the mall of a shopping centre and felt her bottom. Police later found Mr Keech under some stairs looking up girls' skirts and following some of them. He pleaded guilty to aggravated indecent assault and loitering without reasonable excuse in a place frequented by children and in which children were present. He was sentenced in May 2008 to 16 months imprisonment with 12 months non-parole. He disclosed to a psychologist that he was "fairly high" on cannabis at the time of the offending and was sexually aroused when he touched the victim.

December 2009 - aggravated indecent assault

On 4 December 2009, Mr Keech was in a shopping centre when he approached a 15 year old girl shopping in her school uniform with her mother and touched the girl's buttocks. Later that day, in the same shopping centre, Mr Keech came up behind the same girl and placed his hand on her buttocks. A week later, Mr Keech was at the same shopping centre. He approached a 13 year old girl, touched her buttocks, walked away and then came back to her and said "nice tits". Mr Keech was charged on 17 December 2009 after being arrested at his home in possession of a large bowl of cannabis. He pleaded guilty to several counts of aggravated indecent assault and possess prohibited drug and was sentenced on 16 April 2010 to a total of two years imprisonment. He was released on parole on 16 January 2012 but it was revoked on 3 May 2012 following his arrest in April 2012 for further indecent assault charges.

December 2011 - using a carriage service to transmit child pornography

Mr Keech was charged with using a carriage service to transmit child pornography material and with possessing child pornography material in December 2011. He admitted to creating a fake email address, pretending to be a 15 year old girl, to send child pornography material to a person in the United States. More than 350 child pornography images were transmitted on 70 occasions. He was sentenced for this offence in January 2013 and received a head sentence of imprisonment for 3 years 4 months expiring on 4 February 2016. Mr Keech was released on parole for this offence on 16 September 2015.

April 2012 - aggravated indecent assault

In April 2012, Mr Keech walked up behind a 15 year old girl who was shopping for underwear with her mother and touched the girl's buttocks. He repeated this a few minutes later. Mr Keech fled when the girl's mother contacted security. Mr Keech was arrested around two weeks later when the girl and her mother recognised him in the same shopping complex. He was charged with aggravated indecent assault and sentenced in February 2013 to 16 months imprisonment. The non-parole period of 10 months expired on 3 March 2015.

Uncharged matters

A number of other incidents, for which Mr Keech has not been charged, were disclosed by him during the CUBIT program in 2002 including performing "dry sex" and oral sex upon an 18 month year old girl, digitally penetrating an 8 year old girl and raping a 14 year old girl. In 2008 Mr Keech admitted the offence against the 18 month old girl to his supervising officer and later told Dr Samuels that he had performed sexual acts upon babies on a number of occasions when he was babysitting for friends.

Ms Narcisa Sutton report - 15 December 2014

A Risk Assessment Report dated 15 December 2014 was prepared by Ms Narcisa Sutton, Senior Psychologist. She found Mr Keech's sexual deviancy to be an ongoing risk factor and assessed Mr Keech as having a high risk of sexual recidivism. Mr Keech reported a high sex drive, engaging in "excessive sexual behaviour" and explained that he considers sex to be a "maladaptive coping mechanism". He acknowledged his sexual attraction to adolescent girls and the fact that he has entertained rape fantasies. Mr Keech also reported a long history of substance abuse and recognised that he is likely to resort to cannabis use when things are not going well for him.
Ms Sutton identified a number of risk factors using a professional risk management tool known as the Risk for Sexual Violence Protocol ("RSVP"). Relevantly, she expressed concern about Mr Keech's difficulties benefiting from treatment (Mr Keech was in the early stages of the CUBIT program at the time of this report). He had "not demonstrated any observable therapeutic benefit in terms of enhanced ability to self-manage his deviant interests". His history of failing to comply with supervision was also concerning with Ms Sutton observing that "he has continued to behave in ways that breach his supervision conditions, including sexually reoffending".
Ms Sutton recommended an ESO as opposed to a CDO for Mr Keech, concluding that he would "benefit [from] long term supervision and support in the community". She continued, "his primary difficulty … 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". Ms Sutton also recommended that supervision operate to "promote Mr Keech's autonomy by encouraging his input into the decision making process wherever possible".

Ms Narcisa Sutton updated report - 5 July 2015

Ms Sutton interviewed Mr Keech again after he had completed the CUBIT program (for the third time) and prepared an updated report dated 5 July 2015. She affirmed her earlier finding that Mr Keech has a high risk of sexual recidivism. She supported an ESO, being of the opinion that "without on-going support to implement the skills learnt in therapy he is likely to return to the high risk behaviours associated with his offending".

Dr Adam Martin report - 30 September 2015

Dr Martin, a court appointed psychiatrist, interviewed Mr Keech and provided a report dated 30 September 2015. Dr Martin diagnosed Mr Keech with paedophilia, explained as "a chronic history of having urges, fantasies and behaviours associated with being sexually attracted to pre-pubescent girls". He made a secondary diagnosis of substance misuse disorder.
The risk of Mr Keech committing further serious sex offences in the absence of adequate monitoring and management was assessed by Dr Martin as significant. Like Ms Sutton, he also used the RSVP tool to identify a range of risk factors. He noted Mr Keech's sexual violence history and the variety of sex offences committed by Mr Keech over a long period of time. He referred to Mr Keech's lack of insight into his offending, impulsivity, problems with supervision and history of non-compliance with treatment. Dr Martin summarised the risk factors in the following useful way, "Essentially, Mr Keech presents with primarily a paedophilic disorder but with a background of other deviant behaviours. There is a background of chaotic development history with a lengthy history of behavioural problems and impulsivity, problems with intimate relationships with age appropriate people, social disengagement and educational and employment problems, a background history of abuse of multiple illicit substances, multiple incidents of sexual and non-sexual offending, with breaches of parole conditions and drug use even while in gaol. There are obviously multiple risk factors relevant which mean that Mr Keech is at significant risk of reoffending without significant monitoring and treatment intervention".
Dr Martin supported the application for an ESO. He was of the view that the proposed conditions were comprehensive and appropriate. In particular, he supported the proposed conditions concerning electronic monitoring and anti-libidinal medication. Dr Martin's opinion regarding the appropriate duration of an ESO is dealt with at [37] below.

Dr Anthony Samuels report - 8 October 2015

Dr Samuels, the second court appointed psychiatrist, interviewed Mr Keech and provided a report dated 8 October 2015. He diagnosed Mr Keech with multiple paraphilic disorders, a substance use disorder and an underlying anti-social personality structure. Mr Keech was assessed as having a high risk of committing a further sexual offence. Dr Samuels was particularly concerned by the versatility of Mr Keech's offending: "[Mr Keech's] sexual preferences have ranged from males and females, from animals to males and females, to baby infants, to pre-pubescent females and adult victims. There seem to be few boundaries to his sexual offending and this, of course, raises his risk of future offending".
The importance of Mr Keech maintaining a regime of anti-libidinal medication was emphasised by Dr Samuels, as was regular attendance at the Forensic Psychology program. The latter is an opportunity for Mr Keech to be monitored and for intervention to occur if there is evidence that deviant behaviours are becoming more prominent.
Dr Samuels also supported the application for an ESO of "at least five years". He observed, "I do not see Mr Keech's risk of re-offending as dramatically decreasing during that time. I do have some scepticism in relation to whether or not Mr Keech will be able to cope with the provisions of an ESO and whether he will [be] able to curb offending behaviour should he find himself in situations where he has access to a potential victim and/or where he places himself in a situation where it increases the prospects of encountering the victim".

Duration of an extended supervision order

The plaintiff seeks an order for 5 years which is the maximum length available under the Act.
Mr Keech submitted that 3 years is a sufficient duration for the following reasons: a) Unlike some offenders who lack insight into their offending and risk factors, Mr Keech recognises that staying out of gaol may be difficult for him given his long history of incarceration, but that he wants to try; b) Mr Keech accepts the need for the ESO to manage his risk, agreeing that there are future risks which need to be assertively managed; this is demonstrated by his acceptance of most of the conditions sought by the State; c) Mr Keech's acceptance of the role of his supervising officer in assisting him to manage his risk is reflected by the nature of the amendments he seeks to some conditions - to allow discretion to his DSO in relation to some matters, and to ensure the conditions are clear and not open to inadvertent breach; d) He is receiving treatment with an injectable anti-libidinal medication; Depo-Provera, to good effect, and without the unacceptable side-effects caused by other medications he has taken; his compliance with this treatment can be easily monitored, and he does not oppose the conditions in Part K of the ESO in relation to medication intervention and treatment; e) A period of three years is sufficient time for the comprehensive regime of supervision and assistance created by the ESO to help him to set goals and routines, and to adapt to living in the community; f) A period of three years is a lengthy period in which to closely monitor Mr Keech in the community. If the need arises the State may apply for a subsequent order, or an amendment to the existing order, if warranted.
Mr Barrow made further submissions at the hearing. He emphasised Mr Keech's co-operation in agreeing to the making of an order and with the vast majority of the conditions including electronic monitoring and taking anti-libidinal medication.
Mr Barrow submitted that the imposition of a 3 year order would provide Mr Keech with a goal to work towards; some "light at the end of the tunnel". He drew attention to the recourse open to the State to make an application for a further extended supervision order if the 3 year period proved to be insufficient. In relation to this I am mindful of the practical reality that if Mr Keech complies with the terms of the order and makes progress in his rehabilitation the intrusive and onerous nature of the conditions will be relaxed over time. This, in itself, should give Mr Keech a goal to work towards; perhaps even to the extent that the longer the period the greater the incentive will be.
I have previously referred to Ms Sutton having expressed the view that Mr Keech represented a "high risk of sexual recidivism" and her belief that he would benefit from "long-term supervision and support in the community".
Dr Samuels assessed the risk of Mr Keech committing a further serious sex offence as being in the "High range" and said he thought the duration "of at least five years is appropriate". He added, "I do not see Mr Keech's risk of re-offending as dramatically decreasing during that time".
Dr Martin said that Mr Keech posed a "significant risk of committing further serious sex offences if he were not to be closely monitored and managed for his paraphilic disorder". He also said that the "issues are likely to be long-term and that he will need supervision for many years". He added, "I do not think the risk of re-offending is likely to diminish dramatically in the short, medium or long-term future and I would support the proposition of an Extended Supervision Order of up to five years in these circumstances".
It is not without significance that Mr Keech has undertaken the CUBIT program three times and still presents a significant, or high, risk of further serious sex offending. This underscores the assessment by the two psychiatrists about the long-term nature of the risk.
Another factor relevant to a determination of the duration of an order is Mr Keech's poor compliance with supervision in the community in the past despite his completion of relevant programs. Ms Narcisa Sutton said in her 5 July 2015 report: "Mr Keech has made good progress in treatment and his presentation suggests he is motivated for change. These therapeutic gains may attenuate his risk level. However his offence history suggests that, in spite of similar past therapeutic gains and apparent willingness to change Mr Keech was unable to maintain the positive changes and implement the relevant risk management strategies identified after his release to the community."
Whilst Mr Keech has said that he wants to try and stay out of gaol, he has not got off to a very good start. On 25 November 2015 a notice of a proposal to revoke parole was issued on behalf of the Attorney General for the Commonwealth on account of Mr Keech's use of cannabis and possession of an undisclosed mobile phone. Mr Keech has provided a response in which he did not deny the substance of the allegations but sought to explain them; submitting that his parole should not be revoked.
An affidavit of Graeme Conn, the Acting Manager of Security in the Corrections Intelligence Group, was provisionally read at the hearing. Counsel for Mr Keech objected to it on the basis of relevance and on the basis of certain aspects of its content. I consider that some aspects of it are relevant and will take it into account in a limited way. That is, it discloses that Mr Keech has been in contact with and has received telephone calls from a current inmate who is a convicted child sex offender. It is a condition of Mr Keech's parole that he must not contact any convicted sexual offender. Although most of the contact referred to in the annexure to the affidavit was initiated by the inmate, there is reference in quotations from the recording of the conversation to Mr Keech having sent a message to him.
These recent events must be considered in the context of Mr Keech's long history of breaching the conditions of various forms of conditional liberty.
One of the positive aspects in relation to Mr Keech's risk of re-offending is that he has been receiving anti-libidinal medication. But there is legitimate grounds for concern that if he were at some stage to discontinue this (like he did in 2009) the risk would increase quickly and significantly. In addition, cannabis use is linked to some of his past offending and he has demonstrated recently that he is still disposed to use that drug. His explanation to the Commonwealth Attorney-General was that his recent lapse was because "I was under a lot of stress".

Conclusion

Despite the matters raised in support of the submission that an order should be made for a shorter period, Mr Keech's long history of offending and the chronic nature of the underlying causes, together with the weight of the expert evidence, lead me to conclude that nothing less than the maximum period of five years must be imposed.

Proposed conditions of an extended supervision order

A relatively small number of the conditions the State proposed were the subject of either objection or suggested modification. The State agreed or acquiesced in relation to most of these to the point where only one objection remained.
Proposed condition 14 is that Mr Keech must not permit any person to enter and remain, or to stay overnight, at his residence without prior approval of his DSO.
Mr Keech did not object in principle to this condition but pointed out that compliance would be difficult if he was living in shared accommodation, a boarding house or the like where he would have little control over who "entered and remained". Mr Hammond, counsel for the State, pointed out that the condition referred to Mr Keech "permitting". If a person was to enter (etc) a place where he was living at the invitation of a co-resident he would not be held responsible. I accept that proposition.
Mr Barrow submitted, however, that whilst his client had no objection to the "stay overnight" component, he should be permitted to spontaneously allow someone to come into his home, or the room in a shared facility that he occupied. It was suggested that the type of accommodation Mr Keech is likely to be able to afford will be in the nature of a boarding house and I accept that. Having to refuse to allow someone to enter his room, or having to seek the prior approval of his DSO, would be embarrassing, awkward or cumbersome. It would inhibit his ability for pro-social engagement with others and tend to isolate him. It could be potentially destructive of opportunities to develop healthy acquaintanceships.

Conclusion

Condition 3 is that Mr Keech "must follow all reasonable directions by his DSO or any other person supervising him". I believe that is a sufficient safeguard and flexible enough to deal with the specific concern that proposed condition 14 is intended to address. I propose to delete the latter.

Orders

I make the following orders in terms of prayers 2 and 3 of the Summons: 1. Pursuant to s 5C and s 9(1) of the Act that the defendant be subject to a high risk sex offender extended supervision order ("the extended supervision order") for a period of five years from 15 December 2015. 2. Pursuant to s 11 of the Act, direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the schedule to the order. 3. An order permitting any reports prepared for the purposes of Order 1 to be provided to Corrective Services New South Wales, any agency involved in the defendant's supervision, and the defendant's treating clinician(s) or health care practitioner(s).

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: 16 December 2015

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