State of New South Wales v McQuilton

Completion of sentence and making of interim order 8The defendant was released on parole on 20 July 2012. His parole was revoked on 11 January 2013 and he was returned to custody the following day. His sentence expired on 4 November 2013. On 31 October 2013, Adams J granted the plaintiff's application for an interim supervision order to commence upon the defendant's release. The conditions of the interim order are the same as those proposed by the plaintiff as being the subject of the final order. Adams J also appointed two psychiatrists to conduct separate psychiatric examinations of the defendant and to furnish reports. The psychiatrists were Dr Andrew Ellis and Dr Samson Roberts.

Expert assessments of risk of re-offending 9The three primary reports relied upon by the plaintiff concerning the risk of the defendant committing a further serious sex offence are those of Dr Ellis, Dr Roberts and Ms Narcisa Sutton, senior psychologist, Corrective Services NSW. Ms Sutton's report was prepared to assist on the question whether the current application should be made. There are other reports within the material tendered by the plaintiff but it is unnecessary to refer to them, particularly given the concession by the defendant.

Dr Andrew Ellis 10Dr Ellis examined the defendant on 8 November 2013. The history provided by the defendant included additional information about his offence. It included that he was feeling very depressed at the time. He was watching between six and eight hours of violent pornography on a daily basis and masturbating to the images. He woke that day at about 1pm and began watching television. The thought came into his head to "go and rape" somebody. He had this thought in his head in the past. He had imagined how this might occur, planning the details of an encounter and masturbating to this imagery. His sister used to attend the dance studio near the car park and he had previously thought about this as a location to enact his rape fantasies. He said that the attack upon the victim was "nerve wracking" but exciting. 11The defendant told Dr Ellis that at age 14 he was spending two hours a day viewing pornography and masturbating. This escalated over time. The pornography that most fascinated him were images of pain and fear in female victims. He has been interested in depictions of heterosexual bondage, discipline, sadism, masochism, voyeurism, rape, torture, urination and anal sex. He has looked at images of bestiality. He currently masturbates every second day to fantasies of sadism and masochism. 12The defendant said that he had masturbated while fantasising about women he had met in real life, imagining them in situations of bondage and discipline. He described an escalation in the level of pain and humiliation inflicted in these fantasies. 13He told Dr Ellis that he had tried voyeurism on four or five occasions, describing going to people's houses and looking inside their windows. He found this to be sexually exciting and later masturbated to the memory of these activities. 14The defendant was in a relationship for three years with his first sexual partner, commencing when they were both 13. He told Dr Ellis that as the relationship progressed he would often put her down and enjoyed humiliating her. He suggested that they engage in sadomasochistic sex but she declined. Normal sexual intercourse with her became dull for him. 15He then had a six-week relationship with a friend of his first girlfriend when he was aged 17. They engaged in normal sexual activity which he did not enjoy. Apart from what was described as a "one night stand" at the age of 25, he has had no other sexual partners. 16Dr Ellis' diagnosis of "primary concern" is Sexual Sadism Disorder. He also diagnosed Voyeuristic Disorder, Gambling Disorder and Alcohol Use Disorder, the latter currently in remission in a partially controlled environment. 17Dr Ellis also noted "a constellation of attenuated psychotic (delusion and hallucination like) symptoms". He said the defendant "also presents with attenuated anxiety and depressive symptoms alongside poor interpersonal function". Further, he considered "the prodrome of a psychotic disorder like schizophrenia is highly likely, but must be confirmed after investigations, history from his mother and serial assessments by a psychiatrist". Other personality dysfunction could be present. 18In a discussion of the assessment of risk of re-offending, the following paragraphs extracted from Dr Ellis' report are significant: Deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence. Mr McQuilton's index offence indicates this patter of arousal, as does his report of engaging in voyeurism. There is a direct nexus between his masturbatory fantasy and criminal action. His behaviour escalated from fantasy, to planning and mental rehearsal, actual voyeuristic rehearsal to action. Serious physical coercion was employed. Antilibidinal medication is the best treatment to address deviant arousal. Behavioural techniques may reduce deviant arousal, however deviant arousal was not identified as a prominent issue when he underwent psychological treatment, therefore unlikely to have been addressed. ... A consideration of the type of possible sexual offence should be considered in an estimation of risk. In the case of Mr McQuilton, given the particular pattern of sexual arousal, the most likely type of victim would be a woman in a situation where they were alone or in a position of vulnerability. The associated intimidation and loss of a sense of bodily integrity would be of the type where physical and psychological injury are foreseeable. 19Dr Ellis concluded the risk assessment section of this report as follows: In considering actuarial, structured professional and clinical parameters in the absence of any treatment of supervision, Mr McQuilton would fall into a group of persons with a risk [of] offending that is high, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk.

Dr Samson Roberts 20Dr Roberts examined the defendant on 20 November 2013. The defendant told Dr Roberts that the making of an extended supervision order would be "ridiculous"; although he conceded that there might be some value in supervision over a twelve-month period to assist his reintegration into the community. 21The defendant told Dr Roberts about his experience with rape fantasies. He said that they were not as prevalent, nor as intense, as they had been previously. He claimed that he was now able to keep such thoughts in check. He was asked whether he had other sexual fantasies and he referred to kissing, touching and fondling. I note the absence of any mention of the types of fantasies he told Dr Ellis about: sadism, masochism, bondage and discipline. 22The history provided to Dr Roberts included longstanding depression. He told the doctor that he felt that it (currently) could be better controlled. He also spoke of a belief that people were plotting against him or trying to get him locked up and trying to control his mind. 23The defendant recounted his mental state at the time of the index offence. He felt deeply depressed, paranoid, "almost psychotic" and isolated from everyone. He was short, direct and dismissive of other people; people were potential enemies; and this related to all people, including family, friends and strangers. Women were not people with personalities, but were seen as physical, sexual creatures. He acknowledged that he continued to have such thoughts and feelings on occasions but not all the time as used to be the case. 24Thoughts of the potential impact of his conduct on the victim did not occur to him in the period preceding the offence. Feelings of being lost, empty and frustrated overrode all thoughts that he had of not doing it. During the assault he had thoughts of stopping but a voice told him, "You've come this far you've got to keep going and you'll feel better afterwards". He said that it was his intention to take the assault further; to engage in sexual intercourse (by which I assume he meant penile/vaginal intercourse). He claimed, however, that he was not sexually aroused. Part of his fantasy had been to tie the victim up, but he had not thought the plan through and did not having anything with which to do so. 25The defendant told Dr Roberts that in retrospect he did not feel good thinking about the offence and that he "should have reached out in other ways"; he should have talked to someone about what he was going through. 26Dr Roberts concluded that an appropriate diagnosis was Schizophrenia. He noted that the defendant had been prescribed antidepressant medication since 2009 and antipsychotic medication over the past ten months. However he considered that the latter maybe at a dosage level that was too low and should be reviewed. 27In the section of his report dealing with the assessment of risk of re-offending, Dr Roberts included: [I]t is considered that his risk of reoffending is lower than the suggested actuarial assessments of risk. An assessment of his risk which includes consideration of dynamic factors influenced by the presence of what was previously an untreated psychotic illness, would represent an overestimation. There remains however, the potential for dramatic escalation of risk in the context of non-compliance with medication. ... [I]t is imperative, from a psychiatric perspective, that Mr McQuilton remains compliant with pharmacological treatment and psychiatric follow up indefinitely. Schizophrenia represents a life-long psychiatric illness requiring indefinite pharmacological treatment. ... Overall, Mr McQuilton represents a moderate risk of recidivism. If his psychiatric condition were fully treated, his risk would diminish. Conversely, if his condition deteriorated, his risk could escalate. Close monitoring and management by mental health services is therefore imperative in the management of his risk.

Ms Narcisa Sutton 28It is unnecessary to make extensive reference to the content of this report as it formed part of the bundle of documentation received and considered by Dr Ellis and Dr Roberts. It is, however, appropriate to note Ms Sutton's opinion as to the risk of the defendant re-offending. 29Ms Sutton considered that a "plausible risk scenario would be if he were to return to a similar way of life as he had during his previous supervision period" (on parole) and if certain matters occurred. She then listed about a dozen matters, including neglect in complying with his medication regime; lack of structure to his lifestyle such as with employment, recreational and social activities; becoming isolated and rejecting assistance from others; and returning to deviant pornographic material. She referred to this as "an acute high risk scenario". 30Ms Sutton stated that any reoffending would most likely be relatively spontaneous and with the use of force, rather than being preceded by grooming of his victim. The potential for escalation of physical violence should the victim be unable to escape, particularly if the defendant's mental health deteriorated, could not be discounted. 31It was noted, however, that the defendant had only the one offence in his criminal history and so "he does not act out on every opportunity these high risk factors are present". She also noted that when he was on parole, he was in fact exposed to a "high risk scenario" and chose to seek help by talking to his psychologist about his violent sexual fantasies. 32Ms Sutton's conclusion as to the risk of re-offending (which includes reference to the outcome of a treatment program the defendant had undertaken in gaol; something I will say more about later) was: In my opinion, the overall totality of evidence suggests that Mr McQuilton is in the moderate-high risk category of sexual offending relative to other adult male sexual offenders. There has been no identifiable resolution of the risk factors associated with his index offence, except for the evidence of Mr McQuilton's self-awareness of his negative mood state and elevated risk, and his willingness to seek assistance to avoid reoffending. Although this was a positive treatment outcome, particularly in terms of community safety, the expectation is that the offender would be able to put in place strategies to avoid entering risk states. Mr McQuilton failed to implement the self-management strategies identified in treatment, and chose to ignore the reminders and warnings of his support group and treating professional.

Conclusion 33In summary, the opinions of the three expert describe the defendant's risk of reoffending as moderate (Dr Roberts), moderate-high (Ms Sutton) and high (Dr Ellis). 34The reasoning and conclusion of Ms Sutton more supports that of Dr Ellis than that of Dr Roberts. Dr Ellis' diagnoses were similar to those made by Professor David Greenberg in his report of 26 April 2013 to the Parole Authority. 35Both Dr Ellis and Dr Roberts were available for cross-examination at the hearing but counsel for the defendant only sought to question Dr Roberts. Such cross-examination was concerned with conditions of an order rather than whether an order should be made at all. 36I consider the opinion of Dr Ellis to carry more weight than that of Dr Roberts, and I say that with the utmost respect. It seems to me that there was a far more detailed history given by the defendant to Dr Ellis. Absent from that given to Dr Roberts are matters of concern; for example, a greater degree of involvement by the defendant in deviant sexual thoughts and behaviour in the past as well as the present. His disclosure of his thoughts and motivations attending the index offence were also more detailed and, in some respects, graphic. 37I am satisfied to a high degree of probability that the test in s 5B(2) has been established: that the defendant is a high risk sex offender because he poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.

Whether to make a high risk sex offender extended supervision order 38The foregoing is a threshold issue. I turn now to the question of whether a high risk sex offender extended supervision order should be made. 39In considering this issue it is necessary to have regard to the matters listed in s 9(3) of the Act as well as anything else that is relevant. 40A number of these matters have already received consideration upon my review of the three expert reports. 41Another factor is the extent to which the defendant can reasonably and practicably be managed in the community. The plaintiff sought to place a report of that nature before me in the form of an affidavit of Mr Zouhier Abedine who is the Manager of the "Extended Supervision Order Team" within Corrective Services NSW. Counsel for the defendant objected to the reading of this affidavit on the basis that it was served late and well beyond the timetable previously set and he had been denied the opportunity to properly consider it. Accordingly I will ignore it. 42Treatment or rehabilitation programs in which the defendant has had the opportunity to participate are required to be considered. I discuss that in the next section of this judgment. 43The level of compliance with supervision obligations in the past must be considered. This can be stated briefly: the defendant's performance whilst on parole last year culminated with revocation a little under six months after he was released. A failure to adequately comply with treatment requirements was one of the concerns. 44An offender's criminal history and any relevant remarks of the sentencing judge must be considered. There is nothing apart from the index offence in the history and there was nothing said by the judge that adds anything of significance in the present context. 45The most significant matter to be considered under the s 9(3) factors is "the safety of the community". I will refer to this shortly.

Past treatment for sexual offending 46The defendant commenced the Custodial Based Intensive Treatment (CUBIT) program in February 2011. It has been noted that he was not completely candid about the some of the circumstances attending his offence. He was not forthcoming about the sadistic nature of his sexual fantasies, the pornographic material he was accessing, and the entrenched and pervasive nature of the problem. He was suspended from the program in October 2011 because of intimidating and aggressive behaviour towards another participant. 47He re-entered the program in February 2012 but was discharged a short time later. Thereafter he completed the program via participation in "Custody Maintenance groups" and individual therapy sessions. Treatment report notes indicated that at times he failed to implement the strategies he was supposed to have acquired and engaged in "problematic behaviours" in the gaol. 48The defendant's adherence to treatment requirements whilst on parole was inadequate. He re-engaged with the CUBIT program when he returned to custody to serve the balance of parole. 49Dr Roberts referred to the defendant's participation in CUBIT (and I suspect this relates to 2011-2012): It is apparent that during his participation in the CUBIT program he made threatening comments, sexually inappropriate comments, experienced sexual fantasies about the therapist, developed misunderstandings with other offenders and engaged in such conduct as to create the impression that he was irrational and experiencing persecutory thoughts. 50Dr Roberts made the comment that the defendant's psychotic symptoms compromised his participation in CUBIT. The fact remains that the defendant does not have the benefit of successful engagement in the program. 51The plaintiff initially tendered a report concerning the defendant's renewed involvement with the program after he was returned to custody this year. It was served late. Mr Scragg objected to the tender because he had not had the time and opportunity to consider it and confer with Dr Roberts about it. Ultimately the plaintiff did not press the tender.

Safety of the community 52The safety of the community is the first of the factors listed in s 9(3). The primary object of the Act is stated in s 3 to be: [T]o 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. 53Recitation of the facts of the offence, noting the sexually deviant thoughts and behaviours of the defendant as set out earlier (particularly in the history given to Dr Ellis) and having regard to the difficulties inherent with the defendant's mental health and its direct impact upon the risk of re-offending, are sufficient to explain my conclusion that it is highly desirable that the defendant not be permitted to live in the community without supervision for some period of time. 54I propose to make the order sought.

Duration of order 55The plaintiff initially sought an order for a period of five years whilst the defendant suggested that two years was appropriate. Ultimately there was agreement that the period should be two years six months. 56I am satisfied that two years six months is an adequate and appropriate term. If the defendant's progress towards rehabilitation is less than hoped for and the safety of the community is still at some risk towards the end of that period, there remains the option for the plaintiff to make an application for a further order: s 10(3) of the Act.

Conditions of the order 57A schedule to the summons set out the conditions originally sought by the plaintiff. Following discussions with the defendant's legal representatives during the day of the hearing of the application, there was some modification which was reflected in an amended schedule that was handed up. There remained a dispute about a number of matters but before turning to them it is appropriate to mention the opinions about conditions expressed in the reports of Dr Ellis and Dr Roberts. 58Dr Ellis spoke in favour of there being conditions relating to: · Reporting and monitoring obligations; · Stable accommodation, initially in supported accommodation close to treatment providers, such as a COSP in Sydney, and then gradual transition to an environment close to family (if assessed as supportive and stable) and employment; · obtaining stable employment; · psychiatric oversight in terms of refining the diagnosis and prescribing medication; · counselling and treatment to promote abstinence from illicit substances, alcohol and gambling; · monitoring and surveillance, including electronic monitoring which should be flexible and tailored to the degree of rehabilitation progress to maximise the safety of the community; and · controlling the defendant's access to pornographic material. 59Dr Roberts felt that the conditions set out in the schedule to the summons were appropriate. While he supported there being adequate communication between treating clinicians and the defendant's supervisors, he expressed caution about this not compromising the defendant's ability to openly discuss his symptoms with those who are treating him. He considered that the defendant may believe that disclosure of certain matters might lead to re-incarceration. 60Dr Roberts made specific comment about electronic monitoring, stating that there was no strong argument either in favour of it or against it. Abstinence from alcohol consumption was supported, as was control over access to pornography. 61Mention should also be made to two affidavits the reading of which was objected to by the defendant. I referred earlier to the affidavit by Mr Abedine, the manager of the Extended Supervision Order Team. I was told it was "intended to assist the Court to understand the relevance of certain conditions and risk ... factors associated". There was also the affidavit of Ms Vicki McCarthy who has been the defendant's case manager under the interim order. The objection to each of these was on the basis that they had been served late and counsel had not had sufficient opportunity to consider them and obtain instructions. Due to that lack of fairness I will uphold the objection in each case. The effect, however, is that I am denied knowing whether the defendant has, or has not, been compliant with his obligations under the interim order; subject to an aspect I will mention at the end of this judgment.

Electronic monitoring 62The plaintiff proposes a condition that the defendant be subject to electronic monitoring of his movements. The condition includes provision for flexibility and discretion about this in that it includes the term, "as may from time to time be directed by the Departmental supervising officer". As a practical matter, electronic monitoring has been imposed as part of his supervision under the interim order and it is highly likely to continue for some time after the making of a final order. 63Persuasive arguments were put by counsel for both parties in support of and in opposition to the inclusion of this condition. In the end I consider the condition to be appropriate. It will provide a useful tool for the defendant's supervisors to ensure compliance with various other conditions. 64Dr Roberts anticipated that the defendant should be at an optimal level of treatment within about six to nine months. He also spoke of various ways in which electronic monitoring is intrusive and would negatively impact upon the defendant's level of paranoia. 65Ideally, provided the defendant is sufficiently compliant with the conditions of the order, electronic monitoring should only be necessary for a small proportion of the period of the order. It there is any unreasonableness in the length of time over which this monitoring is in place there is the remedy of seeking a variation of the conditions of the order.

Curfew 66The proposed condition concerning a curfew is not mandatory but is subject to the discretion of the supervising officer. The defendant opposes it because it provides a barrier to re-establishing life in the community. In my view, stability of lifestyle is a highly desirable goal in reducing the risk of re-offending. A curfew, at least in the initial phase of the defendant's reintegration into society, would be appropriate.

Leaving the jurisdiction 67Proposed condition 14 would require the defendant not to leave the State of New South Wales without the written permission of the Commissioner of Corrective Services. The problem is that his family live in the Albury Wodonga region. The plaintiff proposed undertaking to ask the Commissioner to consider granting permission in advance for the defendant to go Wodonga, Tangambalanga and Barnawartha. 68I suggested whether the proposed condition could be amended to insert an exception that would permit him to travel to those places. Counsel for the defendant supported the suggestion. Counsel for the plaintiff did not have instructions. I propose to make an amendment.

Departmental contact with employers 69Proposed conditions 15 and 16, to which no objection was taken, provides that the defendant not engage in any employment and the like without approval and that he provide information to his supervising officer about such employment. Objection was taken to proposed condition 17 which, in short, would enable the defendant's supervisor to contact any employer for the purpose of obtaining information relating to the employment. 70The objection was based upon concern that this condition would be "a barrier to the defendant obtaining employment and re-establishing himself in the community". There was concern that if a departmental officer contacted an employer, he or she would need to know, because of privacy reasons at least, who the inquirer was and the purpose of the inquiry. 71I do not know whether the defendant has up until now been found to be frank and honest with his supervising officer or otherwise. I consider that condition 17 is necessary to enable proper effect to be given to condition 15 without leaving this aspect solely in the defendant's hands under condition 16. In this regard I have assumed that any inquiries of an employer would only be made if absolutely essential and with the utmost discretion.

Non-association 72Proposed condition 18 is that "the defendant must not associate with any persons specified by the Departmental supervising officer". The defendant opposed it and argued that there should only be a restriction on associating with sex offenders and the victim of his offence. Those matters are caught by proposed condition 19 to which no objection was taken. 73Counsel for the plaintiff submitted that this was a useful condition in that it provided the supervising officer with the discretion to prevent the defendant having contact with people who may encourage antisocial behaviour or behaviour that would be contrary to the interests of his rehabilitation and mental health recovery. I accept that submission.

Disclosure in relation to intimate associations 74This proposed condition would require the defendant to inform his supervising officer if he enters into any sexual or intimate relationship. It would also permit disclosure to the other person of information about the defendant's offence history "if the officer is satisfied that to do so is necessary or desirable in the interests of the safety of the other person". 75This condition was opposed on the basis that it would be a barrier to the defendant initiating a relationship and that his history is something that he should disclose at a time of his choosing. 76The defendant has had a negative attitude to women and his aberrant thoughts, if he gave effect to them, would expose any women to significant risk. Such attitude and thoughts are said by Dr Roberts to have abated but not entirely. It would promote the protection of the community to provide for this discretion in the supervising officer.

Place restriction 77Proposed condition 21 is that the supervising officer have a discretion to specify places or districts that the defendant must not frequent or visit. Counsel for the defendant submitted that if there is any such place or district then it should be specified now. It was also submitted that any concern of the plaintiff was addressed by proposed condition 3 which required compliance with "any reasonable direction" of the supervising officer. 78If the defendant accepts that he can be given directions as to places he should not frequent or visit under condition 3, I can see no reasonable basis for the objection to proposed condition 21. And it is desirable to spell it out specifically so there can be no misunderstanding.

Restriction of attending licensed clubs 79Proposed condition 25 would require the defendant to have prior approval before attending licensed premises, including hotels, bars, licensed clubs and racecourses. There was an objection to the inclusion of licensed clubs. It would impede the defendant's participation in sporting activities which are supported or co-ordinated by such clubs. 80There is a concern about the defendant's involvement with gambling and, to a lesser extent, alcohol. There should be no bar to his involvement with sporting activities that would involve association with a licensed club but there should be the ability of the supervising officer to exercise some level of control to ensure it is in keeping with his rehabilitation.

Application by plaintiff to reopen in relation to the electronic monitoring condition sought 81The composition of this judgment, including the proposed orders, was completed more than a week before it was to be delivered. Two days before it was due to be delivered, the plaintiff filed a notice of motion seeking the reopening of its case. 82Evidence in support of the motion indicated that on 30-31 December 2013 the defendant had breached conditions of the interim supervision order to which he was then subject. He was required to submit to electronic monitoring but on the afternoon of 30 December had removed the electronic monitoring equipment and left it concealed in vegetation in Hyde Park. He was found the following morning at about 5.30am on the oval at Cranbrook School, a male only day and boarding high school. It was later discovered that he was not wearing any underwear. Near to where he was found on the oval were a pair of men's underwear, a pair of scissors, and an almost empty bottle of bourbon. 83Conditions of the interim supervision order included that the defendant subject himself to electronic monitoring and not tamper with such equipment; that he not possess or consume alcohol; and that he not carry any weapon. He had also been given a direction that he comply with a 6.00pm curfew. 84Police arrested the defendant and charged him with entering inclosed lands and breaching his interim supervision order. The matter remains pending in the Local Court and he has been refused bail. It is important to stress that the allegations remain to be proved. 85The issue to which the plaintiff asserted the new evidence was relevant was the dispute about whether there should be a condition concerning electronic monitoring. The plaintiff was not seeking to add any further conditions or modify its stance as to the term of the extended supervision order it seeks. 86The defendant opposed the application to reopen. Counsel for both parties cited authorities relevant to such an issue. 87It is unnecessary to discuss the law that is relevant to this; I had already decided that there should be an electronic monitoring condition. The fresh evidence would add nothing of significance, except perhaps as serving to confirm my resolve in that regard. For this reason I refused the plaintiff's application.

Orders 88I make the following orders: 1 Pursuant to s 5C and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") the defendant is subject to a high risk sex offender extended supervision order ("the order") for a period of two years six months expiring on 23 July 2016. 2 Pursuant to s 11 of the Act the defendant is directed for the period of the order to comply with the conditions set out in the schedule to the order.

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 January 2014