State of New South Wales v Ley Thomas Baker

Introduction

1. The plaintiff seeks an extended supervision order in respect of the defendant for the period of five years. The defendant does not oppose the making of such an order but there is disagreement about the appropriateness of some of the conditions. The first question concerns whether he should be required to be electronically monitored. The proposed condition is - 4. The defendant must wear such electronic monitoring equipment as may from time to time be directed by the Departmental supervising officer and comply with all instructions given by a corrrectional services officer in relation to the operation of such equipment, and must not tamper with or remove such equipment. I amended this condition by adding, after the word "officer", where first appearing, the words "in writing, giving substantive reasons".
2. The second issue concerned the requirement to provide a schedule in advance of his movements when directed to do so by the Departmental supervising officer. Again, I varied the proposed condition by requiring the direction to be in writing, giving substantive reasons.
3. The third question was whether the condition requiring the defendant to observe a curfew if required to do so by the Departmental supervising officer was appropriate. This condition was altered in the same way to require reasons.
4. Lastly, objection was taken to the conditions that the defendant must take medication (including SSRI's) prescribed for him although he was not required to take anti-psychotic or anti-libidinal medication (not including SSRI's) unless he consented. I declined to vary this condition.

The statutory criteria

1. An offender can only be made the subject of a high risk sex offender extended supervision order if the Court can be satisfied that the offender is a "high risk sex offender" (s 5B(1)). Section 5B(2) provides - "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." [Emphasis original]. A "sex offender" is defined in s 4 to mean "a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence." The defendant's conviction in 2000 of sexual intercourse without consent in circumstances of aggravation constitutes a "serious sex offence" (s 5(1)(a)(ii)). Because the defendant is the subject of an interim supervision order, he is a 'supervised sex offender', a necessary precondition for the making of a high risk sex offender extended supervision order (s 5I).
2. The meaning of "an unacceptable risk" was considered by the Court of Appeal of Western Australia in Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297; (2007) 176 A Crim R 110, in relation to the Dangerous Sexual Offenders Act 2006 (WA). Wheeler J (with whom Le Miere J agreed) stated at [63] - "In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention."
3. In State of New South Wales v Richardson (No 2) [2011] NSWSC 276; A Crim R 220 Davies J said 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."
4. Section 9(3) of the Act sets out the matters to which the Court must have regard when considering whether to the make an extended supervision order. These are discussed below (though not in the statutory order) -

Section 9(3)(h) - criminal history and patterns of offending behaviour

1. Brief details of the offences for which the defendant has been sentenced are as follows. On 19 August 1974 the defendant was sentenced to a term of 14 years 3 months imprisonment with a non-parole period of 5 years 3 months and 7 days in respect of a series of offences committed between 30 August 1972 and 4 April 1974. The defendant entered a plea of guilty to two counts of rape and five counts of common assault involving seven females aged between 14 years and 20 years. These offences conform to a similar pattern: on all occasions the defendant used a replica gun to threaten and subdue his victims; five out of the seven offences were committed against women previously unknown to him who were alone on the street at night; and the defendant either asked his victims for directions or offered them lifts as a pretext for approaching them.
2. The first sexual offence in this series occurred on 2 December 1972 and involved an 18 year old female. After threatening the victim with the replica gun, the defendant led her to the backyard of an unoccupied house. He told her to take off her clothing and forced her to engage in vaginal intercourse. The defendant threatened to kill the victim if she told anyone. The second sexual offence occurred on 6 July 1973 and involved a 20 year old female. The defendant pulled up alongside the victim as she was walking home and offered her a lift, which she accepted. After the defendant grabbed the victim's breast, she asked to be let out of the car, at which point the defendant threatened her with the replica gun. The defendant blindfolded her and forced her to remove her clothing. He bound the victim's hands behind her back and forced her to engage in vaginal intercourse and ejaculated. He let the victim out of the car and drove off, leaving her bound, blindfolded and naked. The other offences involved threats with a replica pistol and varying degrees of violence clearly in an attempt to sexually assault the victims who, however, managed to escape. In one case, he ran away after pushing the victim into a bush, threatening to kill her and hitting her on the head with the pistol.
3. The defendant was released on 7 November 1981 with something over 2 years 2 months to serve on parole. On 13 December 1981 (1 month and 6 days after his release) the defendant was arrested for offences occurring on 8 and 10 December 1981. On 8 December 1981 the defendant approached a female at a bus stop. He produced a knife and grabbed her by the top of her dress but she escaped. On 10 December 1981 the defendant drove alongside the victim as she was walking home after midnight and asked her for directions. He forced her into his car, bound her hands and held a knife at her throat. He later untied her hands and drove to deserted bush land. He threatened the victim with a knife and told her to take her clothes off. He kissed the victim and put his fingers inside her vagina. He attempted to have anal intercourse with her, but stopped when she cried out in pain. He then had vaginal intercourse with the victim for about 20 minutes until he ejaculated. Later he forced the victim to undo his pants and, grabbing her by the hair, forced her to perform oral sex upon him. The defendant told the victim that he did not know if he should slit her throat or let her go, and tied her hands behind her back. Five hours after first abducting her, the defendant drove the victim to an area near her house and allowed her to leave. The defendant was sentenced to 8 years imprisonment with a non-parole period of 3 years and was released on parole on 11 November 1985.
4. On 11 February 1987 the defendant was convicted of threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse. The offence was committed on 22 March 1986 and involved a 26 year old female. Once again the defendant used the offer of a lift in his vehicle to approach the victim. He then threatened her with a knife and bound her hands. He drove to a remote location and forced the victim to remove her clothes. He then had vaginal intercourse with her until he ejaculated. The defendant then drove around with the victim still in the car, telling her he was not sure whether or not to release her, as he was afraid that she would report the offence. He spoke of killing her as a possible solution. He made a note of her address from her drivers' licence and said he had friends who would find her and kill her if she reported the offence. The defendant was sentenced to 10 years imprisonment, with a non-parole period of 7 years and 6 months. The earliest date on which he might be released was 21 July 1994 but, in the meantime, he was convicted of an additional offence, which led to a further sentence.
5. This additional offence occurred on 14 March 1986. At about 11.30 pm the defendant invited a 16 year old female who was walking home into his car to give him directions. After the victim got into the vehicle, the defendant produced a knife and attempted to restrain the victim. She managed to jump from the moving vehicle, dislocating her shoulder and suffering extensive abrasions and gravel rash. On 4 September 1987 the defendant was sentenced for one count of abduction and one count of assault occasioning actual bodily harm.
6. The defendant was released to parole on 13 February 1997. On 18 January 1998 the defendant approached an 18 year old female on the street. He agreed to pay the victim $50 for oral sex. The victim got into the defendant's van and began performing oral sex. The defendant produced a knife and threatened to kill her. He tied her hands behind her back, gagged her, and had anal intercourse with her. When she screamed the defendant threatened to cut her throat if she did not stop. He ejaculated inside her. The victim later ran from the van and found a nearby police officer. On 5 April 2000 Howie DCJ (as his Honour then was) sentenced the defendant to 16 years imprisonment with a non-parole period of 12 years on one count of aggravated sexual intercourse without consent.

Section 9(3)(h1) - views of the sentencing court at the time of sentencing the defendant

1. Howie DCJ found that the defendant's taking a knife with him and obtaining strips of sheeting to be used to bind the victim proved he had planned to commit the offence. His Honour stated that his primary function, in light of the defendant's pattern of offending behaviour, was the protection of female members of the public from the defendant by way of his removal from society, further stating - There can be no doubt that the prisoner presently presents a danger to females alone on the streets and may well do so for the rest of his life unless he continues to receive treatment for a very considerable period. He apparently acknowledges this state of affairs and has been co-operative with those persons who have tried over the years by counselling or treatment to change or at least control his behaviour in this regard. … It seems to me this is not yet a case where the rehabilitation of the prisoner should be disregarded in favour of isolating him from the community, but the offence is so grave and the danger he poses to the community is so significant and his risk of re-offending is so high, that this factor seems to me to be a matter which cannot be reflected in a substantial way in determining the total sentence to be served by the prisoner. It can only be reflected if at all in the determination of whether he should be able to be released before the expiration of that sentence.

Section 9(3)(f) - compliance with obligations while on parole or earlier extended supervision order

1. The defendant committed the offences dated 8 and 10 December 1981 approximately one month after having been released to parole on 7 November 1981 for the offences committed between 1972 and 1974. Following his conviction for these offences, the defendant was sentenced to a period of 8 years with a non-parole period of 3 years. The defendant committed further offences on 14 and 22 March 1986, some four months after having been released on parole on 11 November 1985 for the offences committed in 1981.
2. On 4 June 2012 the defendant was released on parole in respect of the 1998 offence, and took up residence at Nunyara COSP Centre. In September 2012 he found employment as a yard hand and in October of that year he moved into independent accommodation in Ashfield. His parole expired on 17 January 2014.
3. The Parole Progress Report of 1 April 2013 stated that the defendant was engaged in full-time employment and maintaining independent accommodation; he was attending Forensic Psychological Services on a weekly basis and participating appropriately. It was noted that the defendant had demonstrated an ability to comply with his conditional liberty and associated conditions.
4. On 8 August 2013 the defendant was arrested and charged with possession of a prohibited drug, being cannabis. He admitted to police that he had smoked cannabis the previous evening and intended to smoke the cannabis in his possession that evening. The offence and the admissions regarding having used cannabis were in breach of the defendant's parole conditions. He entered a plea of guilty on 26 September 2013 and was fined $250.

Section 9(3)(e) - participation in previous treatment or rehabilitation programs

1. Whilst in custody the defendant participated in the Custodial Based Intensive Treatment (CUBIT) program, which he completed in July 2010. His Treatment Report noted that the defendant's participation in the program was generally positive: he participated well in group discussions, completed homework tasks satisfactorily, was supportive of other group members, and was willing to challenge problematic attitudes expressed by other group members in a respectful and insightful manner. As he progressed through the program, he became more open to being challenged and questioning himself. He learnt to improve his communication skills during the course of the treatment. The treatment focused particularly on encouraging him to be less defensive and to communicate his intimate thoughts and feelings more openly, which he was more effectively able to do in the later stages of the program. However, it was also noted that, in the context of discussions regarding his offending behaviour, the defendant was guarded and had difficulty acknowledging full responsibility for his decisions to offend. These issues were particularly important given the long history of offending and the defendant's poor response to supervision and past treatment. It was recommended that the defendant be supervised and managed as a high risk offender until he was able to comprehensively demonstrate that he could manage his risk of re-offending.
2. For eleven months from December 2010, the defendant participated in the Custodial Maintenance Program. His participation was satisfactory though, at times, he exhibited a poor communication style. While the defendant engaged in some unhelpful behaviours, he was able to recognise this immediately and intervene, taking responsibility for his behaviour. He was able to discuss his thoughts and attitudes in the lead up to his past offences, and, although he denied that he had any current unhealthy sexual thoughts, was able, through the use of role play, to identify how he could intervene and challenge those thoughts in the future. The defendant was also active in general discussions on how to develop healthy relationships and how to problem solve effectively.

Section 9(3)(b) - reports received from court appointed psychiatrists

1. Pursuant to s 7(4) the Court appointed Dr Jeremy O'Dea and Dr Andrew Ellis to examine the defendant and provide reports on the results of those examinations.
2. In his report of 5 March 2014 Dr O'Dea stated that the defendant's history of repeated sex offending, with an apparently consistent pattern … against previously unknown female victims, predominately over the age of 16 but apparently all post pubertal, with acknowledged coercive and sadistic components, would point to a specific Paraphilic Disorder of Sexual Sadism Disorder. … …[I]t would seem reasonable to assume that he has a significant risk of engaging in further sex offending behaviours in the community in the long term, including committing a further serious sex offence in the community in the long term.
3. Dr O'Dea thought treatment alone would not be adequate to manage the risk of re-offending and advised that therapy in addition to ongoing psychological supervision in the community in the long term, judicious use of testosterone lowering medication … is likely to prove the most appropriate and effective intervention in managing and minimising [the] risk of engaging in further sexual offending behaviours in the community in the long term. While he urged caution in relying on the actuarial tests, such as Static 99 or Static-99R, he considered it to be "reasonable to consider that there would be a significantly high degree of probability that [the defendant] would be likely to commit a further 'serious sex offence'" and recommended that an appropriate risk assessment of at least 5 years duration should be implemented to be monitored and reviewed every six to 12 months.
4. A troubling matter, in light of Dr O'Dea's opinion that anti-libidinal medication was the most effective intervention, was the strong opposition expressed by the defendant to taking this medication on the grounds of what he thought were its side effects.
5. In his report of 24 February 2014, Dr Ellis diagnosed the defendant as having the paraphilic disorder of Sexual Sadism, stating that this condition is chronic, evidenced by the similar pattern over decades and would appear to be his primary pattern of sexual arousal. He also diagnosed the defendant as meeting the general criteria for a personality disorder. Although the effectiveness of actuarial tests, such as Static 99 and Static 99R is doubtful as they do not discriminate between re-offending sexual offences and serious sexual offences, he agreed with the results of the defendant's last test, which placed him in the medium to high risk category. Adding structured professional and clinical parameters resulted in assessing the defendant as falling into a group of persons with a high risk of offending. Specific treatment and supervision would likely reduce this risk. Again, although anti-libidinal medication was likely to be effective, the defendant adamantly refused to consider taking it.
6. Dr Ellis thought an initial period of four years' supervision would be reasonable, essentially (as I understand it) to establish a baseline function in the community and refine appropriate conditions and support. His condition is chronic and relapsing, resistant to treatment and rehabilitative efforts, as had already been clearly demonstrated. The defendant's own attitude to his offences was (as I read the history taken by Dr Ellis) highly defensive, significantly rationalised and problematic.

Section 9(3)(c) and (d) - risk assessment (other than court-appointed psychiatrists)

1. In the CUBIT report of 15 September 2010 the defendant was assessed using the Static 99-R as in the moderate-high risk category relative to other male sex offenders. In a report of 7 November 2013 a senior psychologist with Corrective Services NSW carried out a psychological risk assessment of the defendant by reference both to actuarial risk assessment and dynamic risk factors and arrived at the same result. Both reports that the recidivism rates for sexual offenders within the normative samples with the same score as the defendant were between 11.4% and 25.2% over five years, and between 22.6% and 35.5% over ten years. Using the Risk of Sexual Violence Protocol ('RSVP') to assess dynamic risk factors, the defendant's was found to have some risk factors in each domain, although there was evidence of significant on-going positive changes since the defendant had completed the CUBIT program. This analysis erred on the side of caution due to the fairly recent nature of those positive changes and the untested long-term ability of the defendant to apply the new learnt skills to refrain from re-offending. His overall risk was still within the moderate-high risk category of sexual offending relative to other adult male sexual offenders, with some caution necessary as to the significance of his recent gains. An extended supervision order would allow the defendant to be managed under supervision to gain more evidence of his ability to maintain his therapeutic gains and manage his risk in the community.

Section 9(3)(d1) - reports prepared by Corrective Services NSW

1. It is sufficient to state that these reports are broadly in line with the material already summarised. The proposed risk management plan involved, amongst other things, closely monitoring the defendant's contact with females and implementing avoidance strategies through home visits, field observations, risk assessments, restrictions on movement in the community, monitoring of associates, approving employment activities and conducting suitability assessments on potential accommodation.

Section 9(3)(i) - psychiatric and psychological diagnosis

1. A number of psychiatric assessments have been made throughout the defendant's interaction with the justice system. They are consistent with and do not add much of significance to what has already been referred to and do not need to be summarised further.

Section 9(3)(a) - the safety of the community

1. It is clear that the defendant would pose a significant risk to the community if he were not subject to a high degree of supervision and monitoring. The conditions that have been imposed reflect this need.

Discussion

1. As I previously stated, the plaintiff contended that the Supervision Order should be granted for a period of five years, the maximum term prescribed by the Act. Dr O'Dea was of the opinion that at least five years of supervision would be necessary, while Dr Ellis considered that an order for a period of four years would be reasonable.
2. An extended supervision order is not a punishment, but rather is designed to be a protection to the community against the risk of further serious offences being committed posed by persons who have exhibited a tendency to commit such offences.
3. I consider it appropriate in this case that the supervision order be limited to a term of three years. While the opinions expressed by Dr O'Dea and Dr Ellis strongly indicate the likely necessity of an extension of the supervision order, as I stated in State of New South Wales v Scerri [2012] NSWSC 271 - the future is unpredictable and, although an application can always be made if circumstances change, that is not the same as requiring a fresh application to be made in three years time to remind the parties - and the community - that the Court is ultimately responsible, in accordance with the law, for making orders that affect the basic human right to be free from physical restraint.
4. Section 11 of the Act permits the imposition only of such conditions as it "considers appropriate", including those specified in the section. As Johnson J observed in State of New South Wales v Tillman [2008] NSWSC 1293 at [68], the Court is to strike a "balance between relevant considerations" which included the matters to which the Court has had regard in determining whether to make an extended supervision order. Amongst the other considerations are the ordinary rights of the subject to go about his or her lawful activities free from officious and unnecessary restrictions and the fact that breaches of the conditions incur criminal penalties. Ultimately, the purpose of conditions is to mitigate the risk of the defendant's committing further sexual offences. For this reason, it is obvious that there need not be a link between the condition and the circumstances of the offences that have triggered the order or the way in which they were committed. The conditions must address identified risk factors but these must be considered in a realistic way and not treated as some statutory scheme. In the nature of things, there can be no bright line: the relevant factors are inherently incommensurable. The condition must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice. (See Wilde v State of New South Wales [2015] NSWCA 28, in which the authorities are usefully collected.)
5. So far as the conditions as to electronic monitoring, curfew and scheduling are concerned, it seems to me that the problematic features of the defendant's rehabilitation, as demonstrated in his accounts of his offending and attitudes to the Court appointed psychiatrists and the likelihood of his continuing to represent a moderate to high risk of sexual reoffending, together with the uncertainty of the appropriateness of particular supervisory approaches to which those doctors referred, require the retention by the Departmental supervising officer of the power to impose monitoring or the other limits on the conduct of the defendant. His compliant conduct to date does not weaken this consideration. At the same time, I think it is reasonable that the defendant understand the reasons for the imposition of these variations should they be made, hence the requirement for them to be provided in writing. In respect of the anti-psychotic and anti-libidinous drugs, the defendant already has the right to refuse to take them without breaching the conditions of the order. It was submitted that he might feel pressured to take them if they were prescribed. This is not a good reason for amending or refusing to impose the proposed condition.

Conclusion

1. To make an extended supervision order, I am required to be satisfied "to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he… is not kept under supervision". I am so satisfied and, accordingly, make the supervision order as stated at the beginning of these reasons.

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: 29 April 2015