State of New South Wales v McQuilton - [2014] NSWSC 11 - NSWSC 2013 case summary — Zoe

NSWNSWSC

State of New South Wales v McQuilton

[2014] NSWSC 11

Supreme Court of NSW|2013-12-20|Before: Hulme J, Adams J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2013-12-20

Before

Hulme J, Adams J

Source

Original judgment source is linked above.

Judgment (24 paragraphs)

[1]

Judgment 1The Attorney General, on behalf of the State of New South Wales ("the plaintiff"), has applied for a high risk sex offender extended supervision order in respect of Daniel Anthony McQuilton ("the defendant") pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). 2There is no dispute that the defendant is what the Act calls a "high risk sex offender". Having considered the material relied upon by the plaintiff, for the reasons set out below I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision: s 5B(2) of the Act. 3There was also no dispute that an extended supervision order should be made. There was a dispute about the duration of such an order but ultimately the parties agreed upon that. There remained a dispute about the conditions to be imposed. 4The making of any extended supervision order imposes significantly upon the liberty of the subject. For this reason, and notwithstanding the concession, it is necessary to ensure that all of the statutory requirements have been met and the making of an order is justified.

[2]

The index offence 5The defendant is not a repeat sex offender; in fact he has only been convicted of one "serious sex offence", an offence of aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act 1900 (NSW). His Honour Judge Blackmore SC sentenced him for that offence on 6 March 2009 to imprisonment for 5 years 3 months with a non-parole period of 3 years. 6That offence occurred on 31 July 2008 in a car park in Albury at about 10pm. He was 21 years of age at the time and his victim, a stranger to him, was aged 20. She was returning to her car after attending a dance class when he grabbed her around the face with his fingers in her mouth. He told her he was not going to hurt her but there was a struggle and he hit her a number of times. During the course of this he put his hands in her pants and digitally penetrated her vagina. Ultimately, she managed to break free and fled. She sustained severe bruising over areas of her head and numerous bruises and scratches to most parts of her body. 7The matter received some media publicity. About a week later the defendant surrendered himself at a police station and admitted the offence. He told police that he had wanted to physically hurt the victim because he had been "feeling a bit frustrated with just, just women in particular, just women in general". He claimed it was a "spur of the moment thing". The sentencing judge rejected a prosecution submission that the defendant had "laid in wait for the victim". The defendant has subsequently admitted that he had seen the victim about an hour before the offence and made the decision to wait for her to return to her car to perpetrate the offence against her. Whilst waiting for her, he attempted to talk himself out of committing the offence, recognising that it was "wrong", but that his "want for sex" was greater and it prevailed.

[5]

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.

[6]

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.

[7]

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.

[10]

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.

[13]

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.

[22]

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.