State of New South Wales v Kokkotas

Judgment 1In accordance with a summons filed on 13 October 2014, the plaintiff seeks the following orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act): (1)Orders pursuant to s 7(4) of [the Act]: (a)Appointing one qualified psychiatrist and one qualified psychologist to conduct separate psychiatric and psychological examinations (as the case may be) 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 that the defendant attend those examinations. (2)An order pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order from 20 January 2015 ("the interim supervision order") for a period of 28 days. (3)An order pursuant to s 11 of the Act directing that the defendant, for the period of this interim supervision order, comply with the conditions set out in the Schedule to this Summons. 2Two final orders contained in the summons were not pressed at the stage of this preliminary hearing. Furthermore, after discussions between the parties, the original conditions of the proposed interim supervision order (ISO) were amended by the plaintiff. The conditions now sought by the plaintiff are contained in an amended document entitled "Schedule A" that was filed in Court on 17 November 2014, and marked to that effect. 3It can be seen that, in a nutshell, the plaintiff submits that I should require the defendant to attend upon a psychiatrist and a psychologist, who are to furnish reports to this Court. Secondly, the plaintiff submits that I should order that the defendant be subject to an ISO of 28 days' duration that is to commence when his current parole period expires completely on 20 January 2015. 4The defendant disputes that the test for ordering the preparation of the reports, and for making an ISO, has been made out. He also submits that, even if that test be made out with regard to making an ISO, I would not exercise my discretion to do so. In the alternative, if an ISO is made, he disputes that it should contain conditions with regard to electronic monitoring of scheduled activities and movements of the defendant. 5In short, the following issues require determination by me. First, has the statutory test that mandates psychiatric and psychological examination been made out? Secondly, has the identical test for the making of an ISO been made out? Thirdly, if so, should I impose one? Fourthly, if so, should the conditions include electronic monitoring and ancillary conditions? Chronological background 6On 21 January 2006, the defendant, then aged 21 years, committed a number of very grave offences. He subsequently pleaded guilty to them, and was sentenced in the District Court of New South Wales. On an indictment were two counts: armed robbery and aggravated sexual intercourse without consent. As well as that, an offence of detaining a person with intent to obtain an advantage and an offence of indecent assault were taken into account on sentence by way of a Form 1, pursuant to the Criminal Procedure Act 1986 (NSW). 7To state the offences and their circumstances succinctly, at about 2:45 am a 24-year-old woman was using a public phone on a street in Rockdale. The offender, to whom she was a stranger, walked up to her and produced a large knife. He demanded that she accompany him. He walked her about 200 metres towards a public toilet block. Whilst doing so he said "Do as I say or I'll kill you". She complied with his demands due to her fear that he may use the knife to harm her. She pleaded to be freed. Instead, she was forced to enter a cubicle where she complied with the demand of the defendant that she remove her clothing. The defendant also disrobed to a degree, and thereafter forced the victim to perform oral sex upon him. After that, he ordered her to lie naked on her back on the tiles of the public toilet. Thereafter he inserted his penis into her vagina without her consent, and eventually ejaculated inside her person. At some stage he also squeezed and grabbed her breasts. The victim was thereafter allowed off the floor and permitted to dress herself. The defendant demanded that she hand over $500 in cash and a gold coloured bracelet that she was wearing. The defendant then fled the scene. 8The police established a crime scene. Some time later, the defendant approached them and confessed that he was the assailant. He was arrested, and was taken into custody. He had never been charged with any offence before. 9The defendant pleaded guilty and was sentenced by his Honour Judge Keleman SC on 8 December 2006. Dr Westmore, forensic psychiatrist, in a report of 22 May 2006 that was placed before the Court, noted a history from the defendant that he was drunk at the time of the offences. Dr Westmore felt that the level of intellectual functioning of the defendant was at the borderline level. He diagnosed the defendant with depression, a sexual disorder, probable psychosis, and a problem with alcohol. 10Professor Greenberg, a second forensic psychiatrist, in a report of 7 December 2006 that was also tendered, took a history that for one or two years before the commission of the offences, the defendant had been having "rape fantasies". The psychiatrist diagnosed the defendant as suffering from an issue with alcohol abuse, and as having a "schizoid personality with borderline traits". 11His Honour did not demur from these findings. His Honour also found that the defendant had led a lonely life as a child and adolescent, had a history of hearing voices telling him to do things, and had been incapable of working. 12His Honour emphasised the gravity of the offences. His Honour also found that, if given appropriate help, the prospects of rehabilitation of the defendant were "reasonable". 13The learned sentencing judge imposed an overall head sentence of imprisonment for nine years to date from the date of arrest, with a non-parole period of five years six months. It can be seen that that head sentence will expire completely on 20 January 2015, and that the non-parole period expired on 20 July 2011. 14In custody, the defendant did not present a management problem. Far from committing offences against others, it seems that he was quiet and submissive; indeed, it could well be that he was sexually preyed upon by other prisoners. It became clear during his years of incarceration that he suffered from serious mental problems. 15The defendant commenced the well-known CUBIT program for incarcerated sexual offenders on 24 March 2011. In order to permit him to complete the program, he did not seek release at the end of his non-parole period. He completed the program on 31 May 2012, and was released to parole on 20 July 2012. Although he was subject to conditional liberty, he had more or less unfettered access to children. In particular, he was not subject to electronic monitoring. 16On 3 November 2012, the defendant was breached with regard to the condition of his parole that he not drink alcohol. He admitted that he had been drinking for some weeks. However, a decision was taken not to revoke his parole. 17The defendant also sent a lengthy text message to his sister on the same day. Part of it was as follows: Everytime I see a women my dick gets hard, non consensual sex [sic] 18On 27 March 2013, the defendant was again breached with regard to drinking alcohol. Again, his parole was not revoked. 19On 24 August 2013, the defendant was admitted to hospital after a suicide attempt on his part by way of taking an overdose of prescription drugs. 20On 23 June 2014, whilst engaging in group psychological therapy, the defendant for the first time said things suggesting that he could be someone who is sexually aroused by children. The record of that meeting shows that he stated that he "also has thoughts about children when he masturbates", and immediately afterwards asked "[A]m I going to get into trouble?" 21On 27 June 2014, when questioned about that revelation, the defendant claimed that he does not experience any "mental imagery" of children. He also denied that he ever had sexual thoughts about his nieces and nephews, whom he was in the habit of walking to and from school on occasion. 22On 11 August 2014, Ms O'Neill, forensic psychologist, created a detailed risk assessment report about the defendant. To summarise her opinions succinctly, she was of the view that the offences of 2006 occurred in a context of abuse of alcohol, increasing feelings of loneliness and frustration, and previous rumination about non-consensual sex with a woman. She accepted that the defendant has a complex mental health diagnosis, including (at the time of her report) schizophrenia, disassociative identity disorder (in layperson's terms, multiple personalities), and a distorted personality. She noted that the defendant had been generally compliant with his supervision and medication, although she characterised his use of alcohol whilst on parole as a "high risk behaviour". She expressed the opinion that the same factors that could predispose the defendant to suicide could also predispose him to a repetition of sexual offending. If he were to reoffend, she would expect it to be a penetrative offence against a stranger by way of a threat with a weapon; in other words, much like the offence of 2006. 23By way of actuarial assessment, she came to the view that the defendant is a moderate to high risk of sexual reoffending when compared to other male sexual offenders. 24On 27 August 2014, Ms Taumalolo created a risk management report that sets out all of the mechanisms that would be put in place if an ISO or ESO were made. Ms Taumalolo concluded that the proposal (which is reflected in the conditions sought by the plaintiff) is "considered adequate to address the risks that [the defendant] presents to the community". 25On 4 September 2014, the parole of the defendant was altered to require him to be subject to electronic monitoring, and to provide detailed weekly schedules of his proposed activities and movements that require approval by the authorities. Aspects of statutory structure 26It is convenient to move through the relevant provisions of the Act and briefly record the position of the parties with regard to them. 27The parties agreed that the defendant is a "sex offender" as defined in s 4 of the Act, and that the offence he committed in 2006 is a "serious sex offence" as defined in s 5. 28The parties agreed that the defendant is a "supervised sex offender" as defined in s 5I of the Act. 29The defendant did not dispute that the requirements with respect to an application contained in s 6 of the Act had been the subject of compliance by the plaintiff. 30The parties also agreed that, pursuant to s 7(4) of the Act, if I am satisfied that "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order", then I must make the orders sought by way of s 7(4)(a) with regard to the psychologist and psychiatrist. 31With regard to s 10A(a) of the Act, there was no dispute that it is most unlikely that the substantive proceedings will be completely determined before 20 January 2015. 32With regard to s 10A(b), it was agreed that I may make an ISO if "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order". 33Both parties further agreed that the tests in s 7(4) and s 10A(b) are relevantly identical. It was also their joint position that judges of this Court have repeatedly assessed that test as similar to the test of whether or not a prima facie case has been established in committal proceedings with regard to a criminal offence: Attorney General (New South Wales) v Tillman [2007] NSWCA 119; Attorney General (NSW) v Hayter [2007] NSWSC 983 at [6]; State of New South Wales v Manners [2008] NSWSC 1242 at [8]; and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]. 34The parties agreed that, in determining whether the test in ss 7(4) and 10A(b) had been made out, I need to consider the test in s 5B. That section is as follows: 5B High risk sex offender (1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender. (2) An offender is a high risk sex offender if the offender is a sex offender and 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. (3) 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. 35The parties also agreed that, in considering that question, I am required to consider the matters contained in s 9(3) of the Act to the extent that they are available to me. 36Finally, the parties adopted the joint position that a soundly useful discussion of the correct approach to the test in s 5B is contained in the judgment of Davies J in New South Wales v Richardson (No 2) [2011] NSWSC 276, (2011) 210 A Crim R 220. I respectfully agree with that joint submission. In that case, his Honour relevantly said as follows at [90]: Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. Submissions of the plaintiff 37The plaintiff submitted that, when one considers eight aspects of the evidence, taken at its highest, I would have no difficulty in being satisfied that there is a prima facie case for an extended supervision order (ESO) being made in due course, and therefore the test applicable to both questions before me is made out. Those aspects were as follows. 38First, the defendant has been assessed as being at a moderate to high risk of reoffending by way of a sexual offence when compared to a cohort of other male sex offenders. 39Secondly, it is clear from the report of Ms O'Neill that she considers that, if it be the case that the defendant does reoffend, it will not be a trivial offence. Rather, she considers that it would be an offence similar to sexual offence committed in 2006, and one that would fall within the definition of a "serious sex offence" as defined in s 5(1) of the Act. 40Thirdly, the risks that could, both individually and in combination, predispose the defendant to committing such an offence, are: drinking alcohol; sexual preoccupation, including deviant preoccupations; and loneliness and social isolation. 41Fourthly, the plaintiff notes that the defendant has expressed an intention to drink alcohol, albeit moderately, once his parole period ends, even despite his awareness that doing so increases the risk of him reoffending. 42Fifthly, since his release to parole, the defendant has repeatedly reported to various persons in authority intrusive sexual fantasies that involve non-consensual sexual contact and the infliction of sexual violence. That has been the case even despite the readiness of the defendant to take anti-libidinal medication. 43Sixthly, the defendant has enjoyed a very constructive therapeutic relationship with his psychologist, Mr Baird, over many months. However, if the conditional liberty of the defendant comes to an end on 20 January 2015, it will be impossible for the defendant to continue seeing Mr Baird, who is employed by the Department of Corrective Services. 44Seventhly, if the defendant were to stop seeing the psychologist whom he himself regarded as being of the most benefit to him, his isolation and loneliness could increase. It could also be the case that he would not comply with his medication and mental health programs as a result. 45Eighthly, although there is no established link between the commission of the offences in 2006 and the mental health issues of the defendant, if the defendant after 20 January 2015 chose to discontinue his medications (including anti-libidinal medication), he would have more trouble coping, and may well turn to alcohol. The ultimate result of all of that could be catastrophic. 46In short, the plaintiff accepted that this application has some unusual features. In particular, the defendant had not repeatedly committed sexual offences before January 2006. Nor has he failed since his release to parole some 2 ½ years ago; to the contrary, he has proceeded quite well. Still and all, the plaintiff submitted that the concatenation of circumstances would lead me to be satisfied that that test for mandatory psychiatric and psychological evaluation has been made out, as has the test for the making of a brief ISO, with conditions that include electronic monitoring. Submissions of the defendant 47The position of the defendant was as follows. 48First, it is noteworthy, and highly unusual in an application such as this, that the defendant had committed no offences (sexual or otherwise) before 21 January 2006. Nor has he committed any offences after that time. Whilst not denying the seriousness of what occurred on that date, the defendant submitted that it is more difficult for the plaintiff to make out the requisite tests when there has been only one explosion of serious offending, and that occurred almost nine years ago. 49Secondly, the defendant has completed a rehabilitative programme, and indeed was content to postpone his release to parole in order to permit that to occur. 50Thirdly, it is true that there have been a couple of lapses with regard to alcohol. But the defendant has neither offended whilst on parole, nor had his parole revoked. 51Fourthly, the evidence establishes that the defendant is making a sincere effort to rehabilitate himself, and one can have a degree of confidence that he has been successful. Indeed, it seems that in this case the various facets of the system are working as they should: the defendant is able to use the strategies that he developed in the rehabilitative programme to avoid reoffending; he has been able to maintain his good behaviour with the help of psychological services provided by the Department of Corrective Services; and he has been deterred from reoffending by the prospect of being returned to custody to serve his balance of parole. 52Fifthly, it is true that some months ago the defendant revealed that there is some connection between his masturbation and the thought of children. But in a sense he is to be commended for his frankness and desire to get help. And in any event, the defendant subsequently sought to explain that it is merely a connection between that activity and that thinking, rather than any fetishized focus on children in a sexual way. Finally, the defendant has made it clear that, he having been a victim of child sexual assault himself, he would never dream of sexually assaulting a child. 53Sixthly, it is true that there is evidence that, for a number of months before the commission of the offences in January 2006, the defendant had been fantasising about committing an offence of sexual violence. But the defendant was a different person in 2005, almost 10 years before the date when his parole will completely expire and any question of an ISO arises. That is because of his completion of CUBIT, the deterrence that the thought of a return to custody has provided, and his maintenance of good behaviour by way of extensive psychological help. 54Seventhly, if it be the case that the therapeutic relationship with Mr Baird must come to an end, the evidence shows that the defendant has many other professionals who are assisting him with his psychological and psychiatric issues. He will by no means be bereft of help if Dr Baird becomes unavailable. Determinations 55I turn first to discuss the question of whether or not the test in ss 7(4) and 10A(b) of the Act has been made out. In considering that question, I have considered all of the matters referred to in s 9(3) of the Act. I have also considered the primary object of the Act pursuant to s 3(1); namely, ensuring "the safety and protection of the community". 56I accept that the defendant has made a sincere and commendable effort to rehabilitate himself after his deplorable behaviour of 21 January 2006. But the fact is that the defendant suffers from a constellation of conditions that call for a substantial degree of caution. 57The first is schizophrenia, or something very similar to it. 58The second is that he has multiple personalities. One of those personalities is someone whom he himself has described as "evil", and who enjoys the infliction of "pain and suffering". 59Thirdly, he is, if not intellectually disabled, of borderline intelligence. 60There are also a number of significantly adverse circumstances. 61The first is that he is very isolated in the community, and really sees only members of his family and extended family. He is not working and survives on a disability pension. He has few, if any, friends. He does not enjoy a intimate romantic relationship. 62Secondly, contrary to his parole conditions, he has drunk alcohol on a number of occasions since his release. It is a matter of common experience that that is liable to disinhibit him. It is also highly significant that he was intoxicated by alcohol on the evening of the offences in 2006. Whilst I accept the truthfulness of his statements that alcohol serves to relax him and disinhibit him socially, it is a matter of concern that he has expressed an intention to drink again once his parole expires. 63Thirdly, he has not been completely compliant with his medication since his release to parole. 64Fourthly, he attempted suicide by way of an overdose in August of 2013. It is troubling that Ms O'Neill has expressed the opinion that the same factors that could give rise to suicidal thoughts and actions could also give rise to an elevated risk of the commission of a serious sexual offence. 65Fifthly, whilst I accept that the defendant has the benefit of a diverse team that is helping him in the community, it is regrettable that the psychologist whom he regards as being most helpful will not be available to the defendant once his parole period comes to an end. 66Sixthly, not only does the defendant think of children whilst masturbating, but he has also made it clear that he continues to derive pleasure from the thought of the infliction of sexual violence. It is true that it seems that the defendant has been able to apply strategies with regard to coping with that latter phenomenon, but to my mind it remains a matter of deep concern. 67Seventhly, the defendant committed a very grave sexual offence in the past. I accept the expert opinion that if he were to re-offend, it would be by way of an offence of at least equal gravity. 68In light of all of those conditions and circumstances, I am well satisfied that a prima facie case has been made out for the imposition of an ESO in due course. To express my satisfaction in terms of the test contained in s 7(4) and s 10A(b) of the Act, it appears to me that the matters alleged in the supporting documentation filed by the plaintiff would, if proved, justify the making of a high risk sex offender ESO. That is because, they would, if proved, have the potential to satisfy a judge of this Court "to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision". 69It follows that, in accordance with the mandatory nature of s 7(4), I must make the orders sought by the plaintiff with regard to compulsory psychiatric and psychological examination, and will do so. 70Turning to s 10A of the Act, as I have said I accept that the defendant has made a real effort to rehabilitate himself, and continues to do so. Still and all, to the extent that the statute reposes in me a discretion as to whether or not to make an ISO, I consider that the circumstances that I have outlined, and in particular the risk to the community that I believe exists as a result of their existence, militate strongly in favour of me exercising my discretion to make such an order. It follows that I will make an ISO of 28 days' duration to commence on 20 January 2015. 71The last question requiring determination by me is whether I should include in the conditions of that ISO a requirement that the defendant be electronically monitored. This matter is finely balanced. 72On the one hand, there is force in what has been put on behalf of the defendant. 73First, it seems that the concern that led to electronic monitoring and detailed scheduling becoming part of his conditions of parole only arose from a passing reference on his part in group therapy in June 2014, combined with the fact that since shortly after his release to parole he has been in the habit of walking the children of his siblings to and from school on a regular basis. 74Secondly, the offences of 21 January 2006 had nothing to do with the commission of sexual offences against children. 75Thirdly, the defendant has never committed a sexual offence (or any other offence) against a child, either before 2006 or afterwards. In particular, for over two years between July 2012 and September 2014, he was living in the community without electronic monitoring, and there is no suggestion that he took the opportunity to commit offences against children. 76Fourthly, it was submitted that one can infer that the imposition of electronic monitoring and scheduling was really a question of bureaucratic or administrative convenience once it became clear that the current application would be made, rather than a question of the identification of a real need to protect the community from danger. 77Fifthly, it is noteworthy that Ms O'Neill did not refer to the need to protect the community (whether adults or children) from the commission of sexual offences by the defendant as a basis for electronic monitoring; to the contrary, she focused on other factors. 78Finally, counsel for the defendant explained that, if it were a matter of his client "electing" between, on the one hand, being permitted to walk his nieces and nephews to and from school and, on the other hand, being subject to 24 hour a day electronic monitoring, the defendant would prefer to forego that particular contact with his nieces and nephews for a period of 28 days. 79There is force in all of those submissions. But there are some powerful countervailing considerations. I repeat that the defendant is a man of limited intellectual capacity. He suffers from schizophrenia or something like it. He also suffers from multiple personalities, one of whom seems to be, on his own description, an extremely unpleasant and anti-social personality. He has been drinking alcohol whilst on parole, just as he had been doing before the offences of 2006. Things reached a point of crisis last year that led him to seek to end his life. It is not a matter of a man simply revealing as part of his psychological therapy that he thinks of children whilst masturbating. Rather, it is a matter of that revelation having been made by a man who has committed extremely serious and no doubt deeply psychologically damaging sexual offences in the past. 80Most importantly, I respectfully reject the submission made on his behalf that the medical records taken as a whole would lead one to be not overly concerned by his statement that he thinks of children whilst masturbating. Despite the efforts of the defendant after that revelation to minimise its significance, to my mind its meaning is clear: the defendant connects children with sexuality, and derives sexual pleasure from thinking of them. I do not accept that the fact that he thinks of children whilst masturbating is in some sense a coincidence, or to be discounted as being of no great moment. To the contrary, I consider that it is a matter of serious concern. 81In short, I think that is appropriate and reasonable that the electronic monitoring of the schedule of the defendant continue for four weeks after his parole expires. In coming to that view, I have borne in mind that conditions of this kind should not be "unjustifiably onerous or simply punitive": see State of New South Wales v Green (Final) [2013] NSWSC 1003 at [38]. I have also borne in mind that breach of a condition will expose the defendant to criminal sanction: see State of New South Wales v Fisk [2013] NSWSC 364 at [96]. Nevertheless, I repeat that on reflection I consider that the extension for 28 days of electronic monitoring of the scheduled activities of the defendant is appropriate. 82It follows that I shall impose all of the conditions sought in the document marked as having been filed in Court on 17 November 2011. 83I make the following orders: (1)Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): (a)One qualified psychiatrist, Dr Andrew Ellis, and one qualified psychologist, Dr Katie Seidler, are appointed to conduct separate psychiatric and psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 30 January 2015; (b)The defendant is directed to attend those examinations. (2)Pursuant to s 10A of the Act, the defendant is subject to an interim supervision order from 20 January 2015 for a period of 28 days until 16 February 2015. (3)Pursuant to s 11 of the Act, the defendant is to comply with the conditions set out in the Schedule filed in Court on 17 November 2014 and marked to that effect for the period referred to in order two. (4)The matter is relisted before the Common Law Registrar at 9 am on Tuesday 25 November 2014.