State of New South Wales v KML

Background to the application

1. The defendant has a criminal history commencing in 1993 when he was aged 19. It comprised relatively minor matters attracting non-custodial sentences until 2000, when he pleaded guilty to seven counts of sexual offences against children which occurred between 1997 and 2000. Four were counts of sexual intercourse with a child aged under 16 years and three were counts of inciting an act of indecency in respect of a child aged under 10 years. There was an eighth count, being inciting an act of indecency in circumstances of aggravation. The victim was his sister then aged 27, the aggravating factor being her serious intellectual disability. Twenty-four other charges were taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Twenty-three involved acts of indecency upon a child or inciting acts of indecency by a child, twelve of those in respect of a child aged under ten and eleven in respect of a child aged under 16. In all, five children were involved, aged between 4 and 10. The twenty-fourth charge taken into account was the possession of a small quantity of cannabis.
2. The defendant received wholly concurrent sentences, the longest being 5 years with a non-parole period of 3 years. He was not released to parole, thus serving the total sentence in prison because he had not satisfactorily addressed his offending behaviour.
3. In 2013, the defendant was sentenced by the Brisbane District Court for further sexual offences against children: three counts of use carriage service to procure a person under the age of 16 years for sexual activity and one count of using a carriage service to groom a person under the age of 16 years for sexual activity. He was sentenced to 3 years of imprisonment, to be released on a recognizance after serving a minimum of 12 months full time custody on the condition that he be of good behaviour for a period of 5 years.
4. The defendant was subject to community supervision for the first two years. His response was poor. On multiple occasions in 2014 and 2015 he was dealt with in the Queensland Magistrates Court for minor matters of a non-sexual nature, mostly attracting fines but eventually a brief sentence of imprisonment.
5. In 2016, he was sentenced by the District Court in Sydney for the index offence, namely, possessing child abuse material; he was found to have video and audio files containing images on his mobile phone of an adult engaging in penetrative sexual acts with a child. He was on the Child Protection Register in Queensland, at the time.
6. Whilst in custody, the defendant has been the subject of disciplinary charges for possessing letters and photographs of a sexual nature involving children.
7. The non-parole period of his sentence expired on 20 September 2017, but he was not released on parole until 30 November 2018, leaving approximately 5 months before his sentence would expire.
8. On 14 and 21 January 2019, two breach of parole condition reports recommended that his parole be revoked. The nature of the alleged breaches were the consumption of alcohol, failing to comply with directions, superficially engaging in therapy with a psychologist and attempting to contact his sister. The State Parole Authority considered the reports on 27 March 2019 and declined to vary his Parole Order, noting that his parole expires imminently, but also noting an on-going need for intensive case management.
9. On each of the two occasions the defendant has served a custodial sentence in NSW, he attempted the Custodial-Based Intensive Treatment sex offender program ("CUBIT"). Both times, for different reasons, his participation was unsatisfactory.
10. The supporting material includes reports that document an unfortunate childhood. The defendant's parents divorced when he was aged five and his mother was institutionalised for a psychiatric condition. He and his brother were placed in a boy's home. A psychological report from 1980, when the defendant was aged six, reported that "he is a rejected child, unsure of his future and looking back on a past which is full of deprivation of all types and significant loss". He claimed to having been the victim of child sexual abuse including a rape when he was aged seven. As Judge Goldring observed, when sentencing the offender in 2000: "It is unfortunate that many, probably most, of those who are charged before these courts with offences involving sexual abuse are themselves the victims of abuse but that ... is no excuse, nor does it mean that such people can escape being penalised if they commit similar offences themselves."

The relevant legislative provisions

1. There are certain preliminary statutory requirements for an application for an ESO. Section 6 of the Act requires that the application may not be made until the last 9 months of the offender's current custody or supervision and that it be accompanied by material relevant to a determination of the appropriateness or otherwise of an ESO, as set out in s 9(3) of the Act. This material includes a report prepared by Corrective Services NSW that considers "the extent to which the offender can reasonably and practically be managed in the community", commonly known as a Risk Management Report (s 9(3)(d1)). The application must also include a forensic report assessing the likelihood of the offender committing a serious offence (known as a Risk Assessment Report) (s 9(3)(c)) and may include a draft of the kinds of conditions, in addition to the condition statutorily required pursuant to s 11(2), that are considered to be appropriate (s 6(4)).
2. The current application is made within the required time frame and is accompanied by the necessary documentation.
3. The purpose of the preliminary hearing of an application for an ESO is to determine whether the Court "is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO": s 7(4). If not, the Court must dismiss the application: s 7(5).
4. If the Court is so satisfied, the Court will make orders appointing two psychologists and/or psychiatrists to conduct separate examinations of the offender and furnish reports to the Court (s 7(4)), which are intended to assist the Court at the final hearing. If it is apparent that the final determination as to an ESO will not be made before the offender's custody or supervision expires, the Court may make an ISO for twenty-eight days, that may be renewed up to a maximum period of three months. The power to make an ISO remains discretionary: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [30].
5. Accordingly, although this is a preliminary hearing, it is necessary to evaluate the sufficiency of the supporting material to make an ESO, pursuant to the relevant statutory test.
6. Section 5B of the Act stipulates four prerequisites for the making of an ESO. These are that: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community; (b) the person is a supervised offender (within the meaning of s 5I); (c) an application for the order is made in accordance with s 5I; and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
7. The first three requirements are satisfied. In relation to s 5B(a), "serious offence" is defined at s 4 to include a serious sex offence, which is defined in s 5(1) to include an offence within Div 10 of Pt 3 of the Crimes Act which is punishable by imprisonment for 7 years or more. The offences for which the defendant was sentenced in 2000 are within this Division.
8. Sections 5B(b) and subs (c) of the Act are also satisfied. Section 5I provides that an application for an ESO may only be made in respect of a "supervised offender" which is defined to include an offender who is in custody or under supervision while serving a term of imprisonment for, inter alia, "an offence of a sexual nature": s 5I(2)(a)(ii). The defendant's current sentence is for an offence that comes within that definition: s 5(2)(c). A person is taken to be serving a sentence of imprisonment if he or she is on parole in respect of that sentence: s 5I(3).
9. This leaves the key provision of s 5B(d) for consideration, namely, whether the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. Section 5D provides that the Court is not required to determine that the risk of an offender committing a serious offence is "more likely than not" in order to determine that there is an "unacceptable risk" of the person committing such an offence.
10. I note that s 9(2) provides that "[i]n determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Supreme Court", consistently with the stated primary object of the Act, which is "the safety and protection of the community": s 3(1). A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).
11. At a preliminary hearing, the Court does not weigh the supporting documentation or predict the result at the final hearing. In Attorney General for New South Wales v Tillman, the Court of Appeal referred to the counterpart provisions (ss 16(1)(b) and 17(2) and subs (3)) in the Crimes (Serious Sex Offenders) Act 2006 (NSW), which preceded the current legislation, stating at [98]: "The task assigned by s16(1)(b) is for the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order (s16(1)(b)). In determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing that documentation or predicting the ultimate result. The power is enlivened if the supporting documentation would, if proved, justify the making of either category of final order bearing in mind the elevated standard of proof stated in ss17(2) and (3). That threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Indeed, it is to be considered without taking into account the evidence (if any) called by the offender at the interim hearing: such evidence may go to (relevant) discretionary matters, but would not cast light upon what is alleged in the Attorney General's supporting documentation." (emphasis in original)

Consideration

1. There was no objection by the defendant to the tender of any of the material relied upon by the plaintiff for the limited purpose of the preliminary hearing. I will consider that material in the framework of s 9(3) of the Act, which itemises the matters that the Court must have regard to, when determining whether or not to make an ESO. The matters that are relevant at the preliminary hearing stage are as follows.

Section 9(3)(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 offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment

1. The Risk Assessment Report was prepared by psychologist Samuel Ardasinski, with the findings supported by psychologist Cherice Cieplucha, and is dated 28 September 2018. The defendant participated voluntarily and willingly. The authors were of the opinion that the defendant meets the diagnostic criteria for paedophilia and a substance abuse disorder. As well, they assessed him as likely having a personality disorder with borderline, avoidant and antisocial traits, noting that such individuals tend to have difficulty coping in times of stress.
2. The defendant's level of risk was assessed as being in the highest risk category for sexual reoffending. They stated: "… in his case, the combination of personality and sexual disorders will necessarily mean [the defendant] remains at risk of committing further sexual offending, including serious sexual offending, until such time as he can adequately self-manage the symptoms of his personality disorder or his paraphilias, or both."
3. However, the author also observed that the defendant lived in the community between 2005 and 2013 without conditions and did not come to police attention, which may suggest that he has demonstrated a capacity to live in the community "offence-free".
4. The author noted that the defendant acknowledged that his use of alcohol was "prolific" and "offence-related", and that he conceded that abstinence would be critical to him avoiding reoffending in the future. Mr Ardasinski noted that the defendant had been wait-listed for a specific substance-abuse course whilst in custody, however, his involvement in the 'CUBIT' program rendered him unavailable for the substance-abuse course.

Section 9(3)(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

1. The material includes a Risk Management Report, dated 22 October 2018. The report notes that the defendant has post-release accommodation where he is presently accommodated, which is supervised and subject to a curfew. The report identifies known risk factors and proposes strategies to deal with each of them, including the use of scheduled and unannounced field and home visits and surveillance.

Section 9(3)(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

1. The defendant partook in the CUBIT program on both occasions he was in custody in NSW, both times failing to complete the program. According to the Risk Assessment Report, the first time he was discharged four months into the minimum eight-month program after breaching confidentiality rules and threatening to assault an officer.
2. The second time he was in the program for an extended period, it seems from October 2017 until his release on parole in November 2018. Even so, although he appeared to be committed to completing the program, in the opinion of his treating therapist, his offence-related factors were not satisfactorily addressed.
3. The Risk Assessment Report notes that "[o]verall, [the defendant] appears to have only ever superficially engaged in treatment".

Section 9(3)(e1): options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time

1. The Risk Management Report proposed that when released the defendant would have the benefit of therapy provided by Forensic Psychology Services and supervision intended to reduce his impulsivity. A Child Protection Prohibition Order was regarded as insufficient by itself to reduce the Defendant's risk of re-offending.

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

Section 9(3)(f): without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order

Section 9(3)(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

1. It is convenient to consider these three matters together. The defendant committed the index offence whilst he was subject to the Queensland Child Protection Register. As noted above, the Risk Management Report considered that a Child Protection Prohibition Order would be insufficient by itself to reduce the Defendant's risk of re-offending.

Section 9(3)(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

1. The defendant's criminal history for child sexual offences, as noted, is significant. It covers a range of ages of victims from as young as four years old, as well as victims of both sexes and victims who are, and are not, related to him.

Section 9(3)(h1): the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender

1. The defendant was sentenced for the index offence in 2016 by her Honour Judge Noman SC of the District Court. He was sentenced for the earlier NSW offences in 2000 by his Honour Judge Goldring of the District Court. The remarks on each occasion provide background to the offences and a profile of the defendant at each stage. However, I do not find them to be of assistance in determining the issue before me.
2. I am satisfied that, if proved, the supporting documentation would justify the making of an ESO, bearing in mind the requisite standard of proof for the making of an ESO, namely, a high degree of probability that the offender poses an unacceptable risk of committing another serious offence (in particular, another serious sex offence) if not kept under supervision under the order: s 5B(d).
3. The next matter to be considered is whether, pursuant to s 10A, "the Supreme Court may make an order for the interim supervision of an offender", I exercise the statutory discretion to make an order for interim supervision. I am independently satisfied that it is appropriate to do so.
4. I emphasise that this finding by me is not a pre-judgement of the application for an ESO. On the contrary, I am required by the Act for the purposes of considering an ISO to assume that the supporting material is, in due course at the final hearing, proved, which of course may not be the case. At the final hearing, there may be material tendered or witnesses called on behalf of the defendant's case on the issue of whether an ESO is justified.

Conditions

1. Counsel for the parties have negotiated sensible changes to the proposed conditions. I am grateful to them for these efforts, which have saved considerable court time and resulted in only two remaining contentious issues with respect to the proposed conditions.
2. The defendant opposes proposed condition 4, which requires electronic monitoring. It was submitted on his behalf that the offending for which he was sentenced in 2000 was opportunistic in that it came about because all but one of the child victims were children of a woman he was having a relationship with, and the other child was a friend of those children. Other offences were electronic in nature and therefore could be committed from a range of geographic locations. Accordingly, it was submitted, electronic monitoring is an unnecessary measure because it bears no relationship to the pattern of past offending.
3. I disagree. The material discloses that, historically at least, the defendant's efforts to facilitate under-age sexual encounters have been more than opportunistic. The Risk Assessment Report noted that, in relation to those same offences: "[The defendant] acknowledged meeting the victims' mother through a phone chat-line, and indicated that he opted towards meeting single mothers, and why: 'they were easy targets … desperate and vulnerable … and they might have a hot daughter that I could get access to - kill two birds with one stone … no father figure around to chase me away'."
4. A psychological report dated 17 September 2004 recorded that he would pose as an 18 year-old on chat lines in attempts to pick up "teenage girls" and would travel on a particular bus where he hoped to "pick up teenage girls travelling home from school". The material also includes reference to his past modus operandi for seducing Asian female tourists, which bespeaks a tactical approach to facilitating sexual encounters that involved advance planning to bring about the desired result.
5. More recently, the day after the defendant was released on parole, he attended his supervised residence with a medication intended to enhance "performance and libido". Although he initially denied that he intended using it for libido purposes, ten days later he agreed that was the reason. The following entry in the case notes from 14 December 2018, recording feedback from his psychologist, is also concerning, given the defendant's history of placing himself in situations where he could engage with children and others: "… concern raised in relation to [the defendant's] presentation during his appointment - it was noted that he attended in sporty attire (tank top, sporty shorts and runners) in which [the defendant] previously identified that he dresses younger to attract children."
6. I am satisfied that electronic monitoring is an appropriate condition.
7. The defendant objects to three draft conditions concerning gambling. One, condition 35, prohibits it outright. Another, condition 22, obliges the defendant to provide to his Departmental Supervising Officer ("DSO") "any information relating to his financial affairs, including income and expenditure, if directed by his DSO". The plaintiff has explained that this is a measure intended to allow a check that the defendant has not been gambling. The third, condition 36, requires him to "seek assistance in controlling his or her gambling if directed by the DSO".
8. The defendant has a history of occasionally engaging in gambling. The material does not disclose a direct nexus between this activity and his sexual offending. However, there is a clearly-established link between his drinking alcohol and his sexual offending which he has conceded, and there is a suggestion that when he gambles, he is more inclined to drink alcohol.
9. In Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28, the Court of Appeal considered the appropriateness of conditions under s 11. The Court, at [53], stated that a direct link is not required between offending and a prohibited behaviour: "Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order."
10. A relevant consideration in respect of this issue is whether there is any overlap with other conditions. The defendant will be prohibited in any event from entering licenced premises without permission, which automatically prevents him from entering casinos, and probably all premises with poker machines, of his own volition. He is also forbidden from possessing or drinking alcohol. Accordingly, I reject draft conditions 22 and 35 and include draft condition 36. The indirect link between gambling and sexual offending is also sufficiently addressed by the defendant being required to attend counselling, if the DSO considers it appropriate, to address any problems the defendant may be having with gambling, thereby managing any risk.
11. I make the following orders: 1. Two qualified psychiatrists or psychologists (or a combination of such persons), as agreed between the parties, are appointed to conduct separate 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. 2. An order directing the defendant to attend upon those examinations. 3. Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is made the subject of an interim supervision order commencing 20 April 2019, for a period of 28 days. 4. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is directed to comply with the conditions set out in the Schedule to this judgment for the period of the interim supervision order. 5. Access to the Court's file by a non-party in respect of any document shall not be granted without the prior notification to the parties of the non-party's application for access, and without the leave of a Justice of the Court.

State of NSW v KML Schedule of Conditions (170 KB, pdf)

Amendments 24 April 2019 - Minor typographical errors corrected, particularly at [30] and [50]. Minor formatting errors corrected. 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: 24 April 2019