State of New South Wales v Mintern

Supreme Court of NSW|2014-09-18|Before: Hidden J

Judgment 1HIS HONOUR: The plaintiff, the State of New South Wales, seeks an extended supervision order under s 5C of the Crimes (High Risk Offenders) Act 2006 against the defendant, Neil William Mintern. Counsel for the defendant, Mr Johnston, acknowledges that there is evidence to justify such an order, the only matters in dispute being the duration of the order and the terms of some of the conditions attached to it. Nevertheless, I must satisfy myself upon the material before me that such an order is appropriate. However, the approach taken by counsel means that I do not need to recite the evidence in any detail. I am satisfied that an order should be made.

Background 2The defendant is a 29 year old man, of Aboriginal extraction. He was born in Victoria, but his family later moved to western New South Wales. His parents separated when he was 4 years old. There was a history of domestic violence and excessive drinking in his extended family and in the community in which they lived. He has reported being exposed himself to neglect, sexual abuse and violence as a child. In 2008 his mother was murdered by her former partner. He was in custody at the time and was not permitted to attend her funeral. 3He gained his School Certificate but he was a poor student. His literacy and numeracy are limited. His employment has been as an unskilled rural labourer. There is a history of the use of drugs and, more importantly, abuse of alcohol, although it appears that he is not currently alcohol dependant. 4He has been in a long standing relationship, and is the father of five children. The relationship has been marred by conflict and violence towards his partner. However, as will be seen, he is anxious to re-establish his ties with her and the children, who are living in Orange. Other members of his family still live in the western area of the state.

Offences 5The defendant has a disturbing history of sexual offending. He was dealt with for a variety of sexual assaults on three occasions as a juvenile, while he was living in Victoria. The first was committed when he was only 13 years old, the victim being a 4 year old boy. The second and third offences were committed when he was 15 and 17 years old respectively. The second offence was the indecent assault of a female juvenile justice worker while he was being escorted in a vehicle. The third was a sexual assault of some gravity upon a 15 year old girl, who was a stranger to him, accompanied by a measure of violence. 6The index offence was an aggravated sexual assault committed in Bourke in 2005. The victim was a 21 year old woman, who was well known to him. Both of them were intoxicated. He assaulted her physically such that, in combination of her consumption of alcohol, she lost consciousness. While unconscious he had penile/vaginal intercourse with her. He was not arrested for that offence until two years later and, upon his conviction, he was sentenced in the District Court to imprisonment for 6 years and 8 months with a non-parole period of 3 ½ years. 7In October 2007, before his arrest for the index offence, he assaulted his partner with considerable violence. For that offence he received a 12 month suspended sentence, which was subsumed within the full time sentence for the index offence.

Custody/parole 8While in custody he completed the CUBIT program, although there were both positive and negative aspects of his participation in it. He also completed several other programs, including "Getting SMART", but his participation in those was unsatisfactory. 9He was released on parole in August 2011. In March 2012 he was charged with a number of offences of sexual assault said to have been committed against his partner over a period of a few days in that month. He denied the offences, but admitted having slapped her arm on one occasion. In July 2012, his partner provided a written statement to police withdrawing her allegations. In the event, he pleaded guilty to common assault, on the basis that he had slapped her on the arm while knowing she was pregnant, and again received a 12 month suspended sentence. 10Earlier this year, his partner told parole staff that she had been sexually assaulted on those occasions but had withdrawn her complaints following pressure from the defendant, his family and her own family. However, I must treat those allegations as unproved and have regard only to the conviction of common assault. That offence, of course, was committed while he was on parole. 11Following his release on parole in August 2011, his response to supervision was generally good. In particular, he apparently maintained compliance with a condition that he abstain from alcohol and, after a shaky start, engaged positively in the Forensic Psychology Services' maintenance program. After the breakdown of his relationship with his partner, he was able to obtain stable accommodation and secured part-time employment. 12However, his parole was revoked at the end of March 2012 following his having been charged with the offences against his partner to which I have referred. He was again released on parole in October of that year, but that parole was revoked in January 2013 because of his failure to observe conditions concerning residence. In a report prepared for a parole hearing in December 2013 he was said to have accepted little responsibility for his past offending and to have declined to participate in therapeutic programs available in custody. 13He remained in custody until his release at the expiration of his sentence on 24 June 2014. He has since been subject to an interim supervision order.

Psychological/psychiatric reports 14The defendant has been assessed by Mr Patrick Sheehan, psychologist, and Dr Richard Furst and Dr Samson Roberts, psychiatrists. All three reports are lengthy, based not only on interviews with the defendant but also upon examination of a large body of material. Dr Furst and Dr Roberts also gave oral evidence. The opinions of the three experts are not in conflict and the effect of their evidence can be summarised briefly. 15All three diagnosed Antisocial Personality Disorder. Dr Furst, whose observations were consistent with those other the other two experts, put it this way: "Mr Mintern has a history of behavioural problems and conduct issues dating back to his early childhood, difficulty accepting responsibility, avoidance, impulsivity, poor coping skills, difficulty with authority figures, emotional instability, association with antisocial peers, interpersonal difficulties, evidence of irritability, and other emotional problems that are most likely keeping (sic) with a personality disorder as his primary psychiatric problem, probably of the antisocial type." 16Dr Furst also diagnosed substance use disorder (alcohol), and all three noted the association of alcohol with the index offence and the need for him to remain abstinent. Dr Roberts also diagnosed Attention Deficit/Hyperactivity Disorder. Although two of his early offences involved child victims, none of the experts diagnosed paedophilia. 17Mr Sheehan concluded that the defendant presents a high risk of reoffending sexually, having regard to static and dynamic factors. Both psychiatrists agreed. Again, it is convenient to set out a passage from the report of Dr Furst: "Mr Mintern has a pattern of sexual offending dating back to his adolescence and continuing throughout his adult life, including sexual offending associated with non-sexual violence towards his victims and intoxication. He has offended against both male and female victims of various ages, including both familiar and stranger victims, which offers little reassurance in terms of his future risks and general prognosis. In my opinion, Mr Mintern belongs to a group of male offenders that are considered to be at high risk of re-offending in a sexual manner." 18Mr Sheehan identified relevant risk scenarios, emphasising the defendant's need to find structure in his life, maintain stable accommodation, avoid alcohol, deal with distress and frustration so as to avoid conflict and aggression with those close to him, make considered decisions, and be responsive to supervision or correction. Were he to re-offend, Mr Sheehan opined, it would most likely be "relatively spontaneous", evolving from incidental contact with a potential victim, and unfolding quickly. Victims could be adults or children, but most likely adult women. Offences could range from indecent touching to "more invasive penetrative sexual acts" and may well be accompanied by force or violence. He might also be "substance affected at the time of offending." 19Dr Furst was of the view that "his risk factors are unlikely to show much change over time" and emphasised the need for "targeting of his offending behaviour and personal risk factors through ongoing psychological therapy", as well as abstinence from alcohol and other drugs. 20It is apparent from the psychiatric evidence that treatment of a personality disorder is long term. Dr Roberts expressed the view that the disorder "is not expected to fluctuate over time." The prognosis is "generally considered poor," but it "may improve with treatment or gradually diminish in intensity with age." 21Dr Roberts and Dr Furst gave their general approval to a set of proposed conditions of an extended supervision order, those conditions being derived from a risk management report which is in evidence. There has been some alteration of them since. The defendant currently resides at a COSP. At the hearing some attention was given to the prospect of his re-establishing contact with his partner and his children and, in due course, returning to the Orange/Bathurst area to live with them. This was dealt with in all three reports and also in the oral evidence of Dr Furst and Dr Roberts. In addition, I received helpful evidence from Ms Saane Taumalolo, an employee of Corrective Services New South Wales and unit leader of the extended supervision orders team. 22Put shortly, the effect of this evidence is that he must spend a period, probably of the order of 12 months, in Sydney under close supervision to achieve the gains sought to be made by the extended supervision order. He finds living in Sydney, away from his family and his familiar milieu, stressful. However, a premature return to that milieu, exposing him to the risk factors associated with his offending and depriving him of the intensity of supervision and psychological intervention available here, would be undesirable. 23Ultimately, his return to Orange and to his family is desirable, but when that can be achieved cannot be predicted with any certainty. In the meantime, re-establishing contact with his partner and children would be fostered by their visiting him in Sydney and his undertaking short trips to Orange, subject to departmental direction. Recently he was permitted to travel to Orange for the funeral of a child, his partner's niece, returning the same day. He was able to be monitored electronically during that trip.

Conclusion and orders 24In all the circumstances, 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. 25The State seeks an extended supervision order for 5 years. Mr Johnston submits that that period is excessive. Both Dr Roberts and Dr Furst supported a 5 year period in their reports. Dr Roberts noted the defendant's inadequate progress in therapy while in custody, his personality disorder and ADHD, his history of substance abuse, and his "relative lack of insight into the nature, severity and risk factors associated with his offending behaviour." He saw a "long term comprehensive approach" as necessary. In oral evidence he emphasised that the treatment of a personality disorder "is invariably very protracted." 26Dr Furst in his report referred to the defendant's "past history of offences and his personality structure", factors which he described as "unlikely to change significantly over the next 5 years." However, in oral evidence he fairly acknowledged that the duration of the order is a matter for the court. He envisaged that the defendant would need treatment for about 12 months in Sydney, noting "ongoing issues of supervision if he went back to the family area." That ongoing supervision he saw as being necessary for "probably at least 2 years." 27While I accept that a 5 year period of treatment is clinically desirable, I am not persuaded that the protection of the community necessitates his being subject to an extended supervision order for that long. In the light of the evidence of Dr Furst, I consider 3 years to be sufficient. The State can, of course, seek a variation of the order under s 13 of the Act, should that appear necessary. 28A large number of conditions of the order, most of them now familiar in matters of this kind, are proposed. They provide for supervision of the defendant's accommodation, his movements, his associations, and his internet access. Although he has not been diagnosed as a paedophile, his early offences involving children lead to conditions controlling his access to children. Consumption of alcohol and illicit drugs is prohibited. Provision, of course, is made for his medical treatment, particularly psychiatric and psychological intervention, and his rehabilitation is fostered through education, particularly in literacy and numeracy, as well as employment training and the development of financial responsibility. 29For the most part Mr Johnston consents to these condtions, and I am satisfied that they are appropriate. I shall deal only with those which are in dispute. 30Part A, conditions 5-7 deal with electronic monitoring, requiring the defendant to wear that equipment if directed to do so by his departmental supervising officer. Mr Johston submitted that these conditions are unduly onerous, noting the defendant's concern that monitoring might prevent his return to living in a regional area. However, electronic monitoring is normally imposed in these cases for good reason but, importantly, is at the discretion of the supervising officer. Plainly enough, that discretion might be exercised if a move back to a regional area rendered monitoring impracticable. I note, however, that he was able to be monitored while he was recently at Orange for the funeral. 31Part C, condition 8 would require the defendant to keep a driving log if directed to do so. Mr Johnston's concern was his capacity to comply with such a condition, given his limited literacy. Ms Taumalolo observed recently that he seemed to have some capacity to understand the written conditions of his interim supervision order. However, whether his writing skills are sufficient to deal with this condition is unclear. The monitoring of his movements is adequately dealt with in other conditions. This condition should be deleted. 32Part E, condition 7 would require the defendant to notify his supervising officer of any person whom he proposed to befriend who, to his knowledge, was the parent, guardian or sibling of a child under the age of 18. Mr Johnston accepted that conditions governing his access to children were appropriate, given the history of his offending. He argued, however, that the word "befriend" is too vague, noting that the defendant is likely to have varying degrees of contact with the parents, guardians or siblings of children who are friends of his own children. I agree with Mr Johnston that his access to children is sufficiently controlled by other conditions. This condition should be deleted. 33Part L, condition 1 would require the defendant to undergo any assessment recommended by his medical "or other professional" consultant to determine treatment required in relation to his risk of re-offending. Here also, Mr Johnston argued that the term "professional consultant" is too wide and could embrace people outside the field of medicine or disciplines related to it. However, it appears to me that the expression is meaningful given that Part L is headed "Medical intervention and treatment obligations" and condition 1 is by its terms directed to treatment, as are the other conditions in this Part.. Plainly enough, the expression must be understood in that context. 34Part L, condition 8 would require the defendant, at the direction of his supervising officer, to enter a "specified service program", including any residential rehabilitation program. Mr Johnston objected to the requirement relating to residential rehabilitation, saying that nothing in the psychiatric or psychological material suggests that such a course would be necessary. As matters stand, that is so. However, as counsel for the State, Ms Mahoney, explained, the condition is directed to the possibility of a deterioration of his lifestyle and a relapse into excessive alcoholic consumption. The requirement would be imposed, she said, only if it were clearly needed and as a last resort. This condition is appropriate. 35Finally, Part M, condition 7 would require the defendant to notify his supervising officer of details of any "maritime vessel" which he owns or drives. Mr Johnston queried the need of this condition, noting that there was no suggestion that he "owns a boat or a submarine." I very much doubt that the defendant would ever acquire the kind of vessel to which this condition is directed. It should be deleted. 36I request the parties to settle a form of order giving effect to 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: 24 September 2014

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