State of New South Wales v Levy - [2020] NSWSC 1531 - NSWSC 2020 case summary — Zoe

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State of New South Wales v Levy

[2020] NSWSC 1531

Supreme Court of NSW|2020-10-27|Before: Schmidt AJ

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Source facts

Court

Supreme Court of NSW

Decision date

2020-10-27

Before

Schmidt AJ

Source

Original judgment source is linked above.

Judgment (18 paragraphs)

[1]

Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid (Defendant) File Number(s): 2020/203770

[2]

Judgment

By a summons filed in July 2020 the State sought orders under the Crimes (High Risk Offenders) Act 2006 (NSW) that Mr Christopher James Levy be subject to an extended supervision order for a period of three years. This judgment deals with the interim order sought, subject to specified conditions, as well as the appointment of two psychiatrists to conduct psychiatric examinations of Mr Levy and to provide reports to the Court.
There was no issue between the parties that an interim order should be made and that two psychiatrists should be appointed. At this stage of the proceedings, only some of the conditions of supervision proposed in the schedule to the summons were in issue. After the hearing some further conditions were agreed, the Court being advised on 29 October that the conditions in issue were conditions 5 - 7, 15(c), 15(d), 15(e), 15(g), 15(i), 15(j), 16, 17, 20, 27, 28, 30 - 40, 41, 43, 45 and 53.
The application was supported by affidavits sworn by the State's solicitor Mr Vidler in July 2020; by another solicitor Ms Kallinosis in October 2020; and by a High Risk Offender Applications and Operational Governance Officer employed by Corrective Services NSW in the Extended Supervision Team, Ms Grabham, in October 2020. Annexed to these affidavits were various relevant documents, including Yehia DCJ's sentencing remarks, custodial records, risk assessment and other reports concerning Mr Levy and notes Mr Levy had himself made during treatment he had received in custody. This evidence was unchallenged.

[4]

The disputed conditions

The disputed conditions must be considered in light of the nature of Mr Levy's offending, what the evidence establishes about the risks which he poses and the conditions which were not in dispute. A copy of the schedule which the parties provided after the hearing, which identified the finally proposed conditions and Mr Levy's position in relation to them, is thus attached.
Consistently with the objects of the Act, specified in s 3, such conditions may either impose constraints or positive obligations. They must strike a balance between relevant considerations, in order to provide an outcome which is fit and proper: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at [37]-[39]. Section 3 provides: (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.
The defence case rested on the limits of the actuarial instruments used in undertaking the risk assessments in evidence. It was noted that the assessments undertaken in 2017 concluded that Mr Levy fell within the medium risk category for general and violent offending and the low/moderate range for sexual reoffending, although they had not taken into account his non-contact offences. Those undertaken in 2019 had assessed him in one case as posing an above average risk and in another as posing a perceptibly higher risk than a typical offender, with his score estimated to be almost two times higher than that of the "typical" sex offender.
As to his identified criminogenic needs, it was noted that Mr Levy's most concerning risk factor had been identified to be his sexual preoccupation. This presented in various ways: his reported sexual attraction to pre and post pubescent girls; viewing abusive materials with increasingly younger victims; and his opportunistic progression from attempting to groom early teens using text or social media, to a contact offence with a prepubescent child.
It was submitted to be relevant that Mr Levy had made gains in the treatment he had pursued and had responded well to suggestions and challenges made by his therapist. Nonetheless, he had been assessed as still falling within the above average category for sexual offending and needing ongoing monitoring and supervision, to manage his risks.
The defence case was also that insufficient account had been taken by the State of the support available to Mr Levy in the community from his parents and their sincere undertaking to monitor his compliance with the conditions imposed upon him. It was relevant that they now have a proper understanding of the extent and nature of his offending.
Thus the disputed conditions were argued to be unnecessary, too onerous, or not sufficiently connected with the risks which he poses, to be imposed upon him.

[6]

The risks which Mr Levy poses

Mr Levy also has a relevant reported history of alcohol and considerable drug abuse from age 13. He reported abstinence from cannabis from 5 days before going into custody, but admitted ongoing drug use in custody 3-4 times a week since September 2019, which resulted in a period of suspension from the HISOP program. Ongoing poor behaviour in May also led to formal warnings and another suspension.
Since August 2020 there have been no reported breaches of Mr Levy's conditions of parole in relation to drug abuse.
There was no issue that the evidence established that Mr Levy poses a considerable risk of further serious sexual offending against children, given the attraction which he has already acted on.
Mr Levy's HISOP report indicated that his participation in the program had been mixed. He had identified sexual attraction to female children and addiction to sex and pornography as significant risk factors. However, he had failed to identify other risky behaviour and was resistant to and defensive and dismissive of feedback. He also preferred to rely on external supervision and restrictions to manage his behaviour, as he often felt unable to regulate his own behaviour.
Mr Levy reported increasing social isolation in 2010 after a relationship breakdown when he spent days smoking cannabis, playing Xbox and watching pornography. This led to feelings of anger and depression and while he was able to maintain employment, he began accessing child abuse material, about which he had always been curious. He saw no negative consequences from this and his sexual interest in children increased over time to the point that, by 2014, 80% of what he viewed on-line involved child abuse.
Mr Levy found his high sex drive increasingly difficult to manage and his increasingly unhelpful attitudes towards women exacerbated his fantasies of having a child partner. His drug abuse escalated and the violence of material which he viewed online increased. In 2014 when he began actively seeking sexual contact with children, Mr Levy described himself to be obsessed and out of control. His contact offences fuelled his desire to pursue such offending and he engaged in reckless behaviour, seeking to procure such sex by messaging the mothers of children and others, which ultimately led to his arrest.
The factors Mr Levy identified during treatment which had led to his offending were his deviant sexual interests in female children; sexual pre-occupation and hypersexual arousal; sexual dysregulation and disinhibition; use of pornography; poor problem solving; poor coping with drug use and not managing his mental health.
As he progressed through the program Mr Levy found it easier to manage his sexual thoughts about children, but he was resistant to working on cognitive issues which related to his risk factors. This was reflective of an ongoing pattern of avoiding and minimising his problems and not accepting help and support. He remained sexually preoccupied. He did not see hypersexual arousal as a risk factor and had disrespect for rules and authority associated with his online offending and drug use, which was thus a significant risk factor for him.
The report identified that Mr Levy's sexual behaviour would thus have to be monitored, given that he considered daily use of pornography to manage his hypersexual arousal to be desirable on release to the community. This made it unlikely that his proposed self-management strategies would be effective. A lot of time and money spent online was considered to represent an increased period of risk.
Mr Levy's ongoing sexual interest in children was considered to require ongoing supervision, as was his engagement with his support network, including his family members, given past drug use and the nature of his relationships with some family members. It was also considered to be highly likely that engaging in social media would significantly increase his risk by providing him with access to potential victims, including extended family members; the means to procure child abuse material and the opportunity to engage in grooming behaviours. This would occur either by Mr Levy targeting children directly or making contact with women with the goal of gaining access to their children.
Initial high supervision of Mr Levy was thus recommended, especially monitored use of the internet, with the goal being reduction of supervision as he built internal management strategies; managing substance abuse; engaging in employment and developing positive social connections outside his immediate family. It was suggested that there should be no unsupervised access to those under 18; the appropriateness of anyone supervising his access to children should be assessed by Community Corrections; and he should not access social media accounts such as Facebook or Twitter or apps such as KIK and WhatsApp.

[8]

Schedule of Movement

While electronic monitoring was agreed, provision of a schedule of movements was opposed. The conditions sought were: "Schedule of Movements 5. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 6. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period 7. The defendant must not deviate from his approved schedule of movements except in an emergency."
Mr Levy opposed those conditions, submitting that electronic monitoring would provide adequate supervision and that the disputed conditions would prevent him spending time with his family if, for instance, it was spontaneously decided to go somewhere as a family unit. Given that his support network comprised almost entirely of family members, access to them was argued to be critical.
The conditions would also inhibit Mr Levy's capacity to reintegrate into the community and have a negative impact on his social isolation and opportunity to pursue work. Given his successful compliance with his current conditions of parole, it was argued that these conditions were thus too onerous.
I am satisfied that the conditions proposed should be imposed.
Ms Grabham described the operation of the monitoring system which operates by reference both to electronic monitoring and a schedule of movements.
Mr Levy presently has to provide a schedule of movements as a condition of his parole and it is proposed that this would continue, scheduled movements being intended to avoid Mr Levy having regular contact with children.
Ms Grabham explained that advance notice of Mr Levy's proposed movements permits supervising staff to undertake random surveillance and compliance check as to his whereabouts. It also enables staff to decide whether to contact Mr Levy by telephone, or to despatch a team member, or even a police officer, if that is identified to be needed.
Ms Grabham considered that the proposed conditions were appropriate in Mr Levy's case, given the nature of his past behaviour, which included accosting school aged girls in public places. They also permitted third party checks to be undertaken as to circumstances which could heighten the risk of Mr Levy re-offending.
I am satisfied that the evidence well established that the disputed conditions do provide the least intrusive conditions which provide an appropriate balance between the intrusion into his life which will result from these conditions, the risk which Mr Levy continues to pose and the likelihood that they will help manage those risks.
The monitoring team operates 24 hours a day, 7 days per week. This enables Mr Levy to contact a team member by phone even after normal staffing hours of 8 am to 10 pm. The proposed conditions will thus not preclude Mr Levy seeking approval for any spontaneous departure from his schedule, if an opportunity for work or a family outing arises unexpectedly, for example. There is no reason to suppose that such approval will be unreasonably refused.

[9]

Place and Travel restrictions

Paragraphs (c), (d), (e), (g), (i) and (j) of proposed condition 15 were opposed and the insertion of the words "unless in the direct supervision of Shane Levy or Sharon Levy" sought. Condition 15 provides: "15 Without limiting condition 16 above, the defendant must not go to any of the following without the prior approval of a DSO: a. Day-care centres, pre-schools and schools; b. Amusement parlours, amusement parks and theme parks; c. Cinemas; d. Libraries and museums; e. Camping grounds and caravan parks; f. Children's playgrounds, parks, and areas with play equipment provided for the use of children; g. Pools, playing fields and sporting facilities; h. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; i. Residences where the defendant knows that persons aged under 18 years ordinarily reside; and j. Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies)."
Mr Levy's case was that condition 15 was redundant and/or disproportionate given that other conditions, especially electronic monitoring, would adequately mitigate his risks of re-offending. Further, that what was proposed would preclude him in engaging in pro-social activities and meaningfully reintegrating into the community.
It was also submitted that because his offending profile was predominantly seeking access to victims online, or opportunistic contact with children unsupervised, electronic monitoring and the proposed supervision of his parents adequately managed his risks.
The State opposed the amendment.
I am satisfied that the proposed condition should not be amended. It also helps provide an appropriate balance of the intrusion into Mr Levy's life, given his impulsivity and the risks which he continues to pose to children. The restrictions which the condition imposes are likely to help manage those risks.
What was proposed would permit him to attend places where he could have contact with children, without prior assessment or approval, which I am satisfied would not be appropriate, given the risks which he poses.
The evidence also did not establish that Mr Levy's parents were prepared to undertake the supervision that the amendment proposed would require, let alone that this would be an appropriate way in which to manage the risks which he poses. There are other conditions which enable Mr Levy to obtain prior approval to attend such places as part of his schedule of movements.
Those other conditions are a balanced basis for him to access such venues, given the risks which he poses.

[11]

Employment, finance and education

Clause 17 provides: "17. The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.
Mr Levy's case was that his stable employment before he went into custody demonstrated his capacity to be a productive member of the community and that, since release, he had transitioned successfully back into family life. It was argued that there were case management goals which could give rise to a breach of this condition, which was unnecessary; given the obligation imposed upon him by condition 1 to obey all reasonable directions he was given.
Given the ongoing risk which Mr Levy poses and the reported activities involved in his offending, I am also satisfied that these conditions form a part of the appropriate balance which the conditions imposed must achieve and should be imposed.
Ms Grabham described how officers worked to help offenders plan for meaningful use of their time and to engage in employment, without requiring them to do so. This includes appropriate checking to assess whether proposed employment would present opportunities to gain access to children or to anti-social associates, such as those listed on the Child Protection Register.
In order to give reasonable directions, an officer must have relevant information about what Mr Levy proposes to pursue by way of work and education and information used to develop a case management plan will assist in ensuring that what he pursues does not involve inappropriate contact with children.
Clause 20 provides: "The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO."
Mr Levy relied on State of NSW v Vincent [2017] NSWSC 858 where, on making final orders, Harrison J concluded that this condition was burdensome and disproportionate and thus should not be imposed.
In Mr Levy's case his record of considerable drug abuse was involved in his prior offending, with the result that the conditions proposed in respect of drug use have been agreed, that being one of the risk factors identified in the reports.
In those circumstances and given that the orders to be made are interim, rather than final orders, I am satisfied that this condition also forms part of the necessary balance which must be struck and should thus be imposed. Detection that Mr Levy is using his available funds to buy drugs will potentially be important to the management of the risk which he poses.

[13]

Access to the internet and other electronic communications

Conditions 30-40 provide: "30. The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information. 31. The defendant must not use any alias, electronic identity, log-in name, name other than "Christopher Levy" or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers. 32. The defendant must only use an electronic device which has the ability to access the internet, or a telecommunications service, after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO. 33. The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed. 34. The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind. 35. The defendant must not use any coded or encrypted messaging application or service. 36. The defendant must provide any code (including any access, pass or decryption key or combination, password or PIN that enables access to electronic data that is otherwise protected locked or encrypted) used by the defendant to encrypt or otherwise limit access to any electronic data or any electronic communication which is found to be on the defendant's electronic devices or accounts as a result of a search or a remote inspection. 37. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services (including picture messaging), online community services, multi player video games and other telecommunications-based services including text, image and voice services. 38. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order. 39. The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO. 40. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO."
Mr Levy's case was that the conditions were unnecessarily lengthy and their objective could be achieved by fewer conditions relating to phone and computer use. The wording which would achieve this outcome was, however, submitted to be: "30 The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed. 31. The defendant must advise the DSO of any change to the inventory listed in conditions 30 immediately. 32. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices (Devices) including but not limited to: a. producing his Devices if requested to do so by the DSO; and b. prohibiting the defendant deleting records on Devices regarding searches carried out using search engines, websites accessed, text messages sent and received, emails sent and received, and data downloaded; and c. relating to his access to the internet. 33. The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, social media accounts in monitoring compliance with this order. 34. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO."
Given the nature and extent of Mr Levy's offending, his admitted use of child abuse material for years beforehand and the risks he continues to pose, I am also satisfied that the conditions proposed should be imposed as part of the balance which must be struck.
I do not accept that the conditions proposed for Mr Levy are an improvement on the drafting of the proposed conditions.
To the contrary, they remove sensible obligations and restrictions, such as that precluding use of an alias or name other than his own, or email addresses which he does not disclose and requiring him to consent to his providers sharing information about his accounts, without which such information is unlikely to be provided.

[14]

Search and seizure

Condition 41 provides: "41. The defendant must submit to the search by a DSO or on behalf of a DSO of his person and residence and the search and seizure of his vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under his control.."
This clause was objected to as permitting search and seizure of property belonging to Mr Levy's parents. That, however, is not what the clause provides for. The condition pressed was: "If the DSO reasonably believes that a search of the type referred to in sub-paragraphs d to g) below is necessary to confirm his continuing compliance with conditions of the ESO, the DSO must inform the defendant of the basis of the suspicion. The defendant must then, if directed, consent to that search or those searches including: a) for the safety and welfare of residents or staff or persons present at the defendant's approved address; b) to monitor the defendant's compliance with this order; or c) because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d) search and inspection of any part of, or anything in, the defendant's approved address that is property that belongs to him; e) search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant; f) search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g) search and examination of his person."
Reliance was placed on authorities where the view has been taken that such conditions should be modified to bring it into closer alignment with the statutory powers of search and seizure in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW): State of New South Wales v Tannous [2020] NSWSC 292 at [62] - [63]; State of New South Wales v Grooms (Final) [2019] NSWSC 353 at [106]-[108] State of New South Wales v Baldwin [2019] NSWSC 1882 at [76] and State of New South Wales v Steven Single [2019] NSWSC 176 at [51].
I am satisfied that in order to achieve an appropriate balance, the proposed condition should also be modified to some extent, so that search and seizure must depend on reasonable belief that it is necessary, but that if Mr Levy does not submit, he will be in breach of the condition. It should thus provide: "41. If the DSO reasonably believes that a search is necessary to confirm the defendant's continuing compliance with conditions of the ESO, upon the DSO informing the defendant of the basis of that belief, the DSO may direct and the defendant must submit to: (a) the search and examination of his person; (b) the search and inspection of his residence and any storage facility, garage, locker or commercial facility under his control; and (c) the seizure of his vehicle, computers and electronic and communication devices for inspection."