State of New South Wales v Neal

Risk assessments

1. The defendant was interviewed for the purpose of a risk assessment by Dr Richard Parker, a senior psychologist at the Serious Offenders Assessment Unit, on 17 April 2018.
2. Dr Parker said that the defendant had been diagnosed as suffering from an intellectual disability. He also had a history of anxiety and depression for which he has been taking Zoloft for some period of time.
3. He was sexually abused by his stepfather throughout his childhood, or for a period of three years from the age of fourteen, depending which of the different accounts given to various psychologists is accepted. He attended a special school from his earliest years at school, and reported being bullied which resulted in fights.
4. Although the defendant had abused marijuana when he was in his mid-twenties, and had occasionally used ecstasy and amphetamines, his most problematic substance was alcohol. He began drinking at 16 with heavy use on weekends and after work.
5. Whilst he was in custody he participated in the Self-Regulation Program: Sexual Offenders (SRP:SO) between December 2013 and June 2015. This is a prison-based residential therapy program for men who have sexually abused adults and/or children, who have an intellectual disability or other cognitive impairment, have limited adaptive skills in the gaol environment and who need both intensive treatment and a controlled, safe environment.
6. Dr Parker noted some matters in the treatment report from the program which suggested that the defendant experienced difficultly independently recalling treatment concepts, even those that had been repeated numerous times. The author of the report said that that was likely related to weaknesses in his cognitive functioning rather than motivation. The report also said that when he was calm the defendant reported feeling in control of his thoughts, choices and actions. However, when physiologically aroused (specifically when feeling angry) the defendant reported less responsibility for his behaviour due to perceiving an anger response as warranted or inevitable. Dr Parker commented that the defendant may have problems independently resisting the urge to offend, particularly when he was in a heightened emotional state.
7. Dr Parker assessed the defendant's risk of re-offending using a number of protocols. On the Level of Service Inventory - Revised, the defendant scored 27 out of a possible 54, which placed him in the moderate category for risk of re-offending. On the STATIC-99R his score placed him in Category IV-b which was the highest level for the risk of re-offending. Dr Parker said the recidivism rate of individuals convicted with sexual offences with the same score as the defendant would be expected to be 3.8 times that of the "typical" sexual offender.
8. On the STABLE 200, used to identify stable dynamic risk factors, the defendant scored 13 out of a possible 26, which was classified as high. When combining the STATIC-99R with the STABLE 2007 to generate an overall risk level, the scores yielded a very high risk level.
9. Dr Parker considered that the criminogenic needs relevant for the treatment and supervision of the defendant were attitudes, self-regulation, intimacy deficits and sexual preference. Dr Parker thought that the defendant's intellectual disability likely impeded his ability to understand that his desires could be quite separate from another person's. He thought that there was some evidence that the implicit theory of dangerous world (a person believes the world is a hostile place and, as a consequence, they have to behave in ways that would not otherwise be acceptable) might be active for the defendant, since he blames his ex-partners for some of the offending.
10. Dr Parker thought that it appeared likely that when an opportunity coincided with a desire to act, the defendant struggled to restrain himself, particularly when under the influence of mind-altering substances. Dr Parker said that the defendant appeared to have an intellectual understanding that children could be harmed by sexual activity, but appeared to have difficulty understanding that his sexual contact with children had harmed them.
11. Dr Parker concluded that, as a result of the defendant's intellectual disability and thinking patterns which had developed over his lifetime, the defendant would struggle to integrate fully into society. His poor problem-solving skills and his difficulties with intimacy placed him at risk of making further poor choices. The most likely scenario for a future serious offence would be something similar to the previous offences. Perhaps through a sexual relationship or some other type of friendship, the defendant would gain access to a child.
12. Separately to that process, the defendant was likely to continue to struggle with understanding and complying with conditions imposed under the Child Protection Register or any other form of legal restrictions. Whether he seeks to offend or not, Dr Parker considered it highly likely that the defendant would breach the orders, either as a way of finding a different method to access victims, or simply due to a lack of understanding of the orders. He considered that the defendant was at a high risk of committing further sexual offences.
13. There is a detailed risk management report from the Senior Community Corrections Officer and the High Risk Offender Applications and Operational Governance Officer from the Metropolitan Extended Supervision Order Team. That report had particular regard to the risks identified by Dr Parker which needed management or monitoring, being attitudes, self-regulation, intimacy deficits and sexual preference. The strategies proposed in the report were similar to what one sees generally with high risk sexual offenders, but paid particular attention to the defendant's intellectual disability and the nature of his past offending. One particular problem area at that time unresolved was accommodation.

Determination

1. I am satisfied that the threshold requirements in s 5B(a), (b) and (c) are met.
2. On the basis of the material I have seen, particularly the report of Dr Parker, I am satisfied that if that evidence was accepted at a final hearing, an extended supervision order ought to be made.
3. I note that the defendant does not oppose the making of the order for the appointment of the psychiatrists and/or psychologists and does not oppose an order that he be subject to an interim supervision order.
4. The defendant does not resist a finding for the purpose of the preliminary hearing only that the Court would be satisfied to the requisite standard that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the ISO.
5. In relation to the proposed conditions, counsel for the defendant submitted that the Court should have regard to the total number of conditions appropriate to be imposed on a mildly intellectually impaired defendant. She submitted that the State seeks that the defendant comply with 47 conditions notwithstanding his intellectual functioning lies at the 1st percentile of the population and within the lower extreme range of functioning. She submitted that the sheer number of individual conditions was inappropriate in those circumstances. She submitted further that the wording of some of the conditions should be modified to wording appropriate to the defendant's intellectual capacity and functioning. Attention was drawn to a number of words which a person with the defendant's intellectual capacity is likely to have difficulty understanding. Where a breach of any condition exposes the defendant to a maximum penalty of imprisonment for five years, it was submitted that some redrafting was necessary in the circumstances.
6. Counsel for the defendant also submitted that the Court could only be satisfied that a condition is appropriate if the Court could have confidence that the defendant could comply with the conditions because he understands the conditions and is cognizant of the consequence of any breach of a condition. Counsel submitted that the defendant is currently on 19 conditions attached to his parole which are expressed in plainer English than the proposed conditions for the ISO. Further, the defendant is also required to comply with conditions of the Child Protection Prohibition Order, which conditions are different again.
7. Counsel drew attention to the decision of Rothman J in State of New South Wales v Thurston [2017] NSWSC 1760. That was a decision involving the imposition of an interim supervision order. Justice Rothman considered at [42] that he was satisfied "given the behaviour that has occurred since June 2017" that the conditions imposed on the ISO should be the conditions the defendant had imposed whilst on parole.
8. At the conclusion of the hearing, and partly in response to a suggestion and offer by counsel for the defendant, I directed that she forward to the Crown Solicitor or counsel for the State suggestions of conditions which needed to be modified so that they were more readily understandable by the defendant. I directed that, thereafter, the Crown Solicitor respond to the suggested conditions.
9. I was subsequently provided with a document containing two conditions, but where the second condition was a list of things that the defendant must do or not do when told by his DSO. The matters listed in that condition were an attempt to put into plain English many of the conditions proposed by the plaintiff in the summons filed.
10. The plaintiff submitted that the conditions proposed in plainer English differed markedly from the conditions sought by the State in the schedule to the summons. The plaintiff detailed the particular conditions which were not covered by the defendant's proposed conditions. The plaintiff submitted that the lack of specificity and detail in the defendant's proposed conditions were highly problematic particularly if a dispute were to arise about compliance. The plaintiff submitted that the purpose of an ISO or ESO is to specify the rights and obligations of the parties for the duration of the order. That means also the rights and obligations of the DSO.
11. I have concluded, particularly given that the orders I make impose an ISO only, that the conditions proposed by the plaintiff should attach to the ISO, but without any implication that they are the appropriate orders to be imposed if an ESO is made. There are a few reasons for that conclusion.
12. First, and principally, although there is evidence of the low intellectual functioning of the defendant, neither counsel nor the Court has any proper understanding of the defendant's ability to comprehend the plaintiff's proposed conditions. That particular issue is a matter for which assistance ought to be sought from the experts who are to be engaged to provide reports pursuant to orders that I will make.
13. Secondly, whilst the legal advisors to the defendant are to be commended for drafting conditions in relatively plain English, the conditions suffer from a number of the defects raised by the plaintiff in its submissions. A number of the conditions in the plaintiff's proposed conditions are not covered by the defendant's conditions. Further, there is force in the plaintiff's submission that the purpose of an ISO or ESO is to specify the rights and obligations of the parties for the duration of the order. The conditions are intended to define the rights and obligations not only of the defendant but the rights of the DSO as well. The defendant's conditions do not do that very well. There is an unsatisfactory width in the chapeau to condition 2, with the result that a DSO may well not be precisely aware of the limits of his or her rights and powers to require things to be done or prevent other things from being done.
14. In my opinion, and bearing in mind that the present judgment is concerned only with an ISO which will last no longer than three months, the better course is for the ISO to be made subject to the conditions put forward by the plaintiff. When the reports of the experts are available, with any assistance they can give in terms of the extent of the defendant's understanding and capacity for comprehension in relation to the conditions, the precise wording of the conditions can be re-visited at the time of the making of the ESO. I consider, in any event, that more attention and negotiation needs to be given to the defendant's proposed conditions to ensure that they sufficiently establish the parameters of the behaviour which is allowed and forbidden and to the powers of the DSO, bearing in mind that a breach of the conditions is a criminal offence which can result in incarceration.
15. Accordingly, I make the following orders:
16. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): a. Appointing two qualified psychiatrists or two registered psychologists, or one qualified psychiatrist and one registered psychologist, to conduct separate psychiatric or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 1 February 2019; and b. Directing the defendant to attend those examinations.
17. An order: a. Pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order; b. Pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days commencing 7 December 2018; and c. Pursuant to s 11 of the Act directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the schedule to this summons.
18. The parties are to file signed short minutes of order by 19 December 2018 in relation to the plaintiff's application for a renewal of the orders that the defendant be subject to an interim supervision order for a period of 28 days.
19. The plaintiff is to file and serve any evidence and submissions on which it relies for the final hearing by 7 February 2019.
20. The defendant is to file and serve any evidence and submissions on which he relies for the final hearing by 14 February 2019.
21. The matter be listed for final hearing on 21 February 2019.
22. The defendant is to advise the plaintiff which witnesses are required to attend to give evidence at the final hearing at least one week prior to the hearing.
23. The defendant is to appear by AVL if possible.
24. Liberty to apply to relist the matter on one day's notice.

Departmental Supervising Officer (DSO) (including any person acting as the DSO for the time being)

Monitoring and reporting

1. The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the order.
2. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
3. The defendant must follow all reasonable directions by his DSO.

Electronic monitoring 4. The defendant must wear electronic monitoring equipment as directed by the DSO.

Schedule of movements 5. If directed, the defendant must work with his DSO to prepare a weekly plan (called a schedule of movements). The schedule of movements is to be prepared 3 days before it is due to start The defendant is entitled to all reasonable assistance from his DSO necessary to prepare the schedule of movements. 6. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period. 7. The defendant must not deviate from his approved schedule of movements except in an emergency. 8. The defendant must truthfully answer questions from his DSO about where he is, where he is going and what he is doing.

Part B: Accommodation 9. The defendant must live at an address approved by his DSO. 10. The defendant must allow his DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 11. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. 12. The defendant must not permit any person to stay overnight at his approved address without the approval of his DSO.

Part C: Place and travel restrictions 13. The defendant must not leave New South Wales without the approval of CSNSW. 14. The defendant must not go to a place if his DSO tells him he cannot go there. 15. Without limiting condition 14 above, the defendant must not go to any of the following places without the approval of his DSO. a. Day care centres, pre-schools and schools; b. Amusement parlours, amusement parks and theme parks; c. Cinemas; d. Libraries and museums, e. Camping grounds and caravan parks; f. Children's playgrounds, parks, and areas with play equipment provided for the use of children; g. Pools, playing fields and sporting facilities; h. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; i. Residences where the defendant knows that persons under 18 ordinarily reside; or j. Internet cafes or other businesses or venues which provide public access to the internet either for payment or for no charge (other than employment agencies). 16. Unless approved by his DSO, the defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment.

Part D: Employment, finance and education 17. If directed by his DSO, the defendant must make himself available for employment, education, training or participation in a personal development program. 18. The defendant must not start any job, volunteer work or educational course without the approval of his DSO.

Part E: Drugs and alcohol 19. The defendant must not possess or use: a. illegal drugs; b. prescription medication (unless prescribed by a healthcare practitioner); or c. alcohol (unless approved by his DSO). 20. If directed by his DSO, the defendant must submit to testing for drugs and alcohol. 21. If directed by his DSO, the defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation, and must not discharge himself from such programs and courses without prior approval of his DSO.

Association with children 22. The defendant must not approach or have contact with anyone who he knows is under 18 unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO.

Associations with others (not children) 23. The defendant must not associate with people that his DSO tells him not to. 24. Unless approved by his DSO, the defendant must not engage the services of sex workers. 25. If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history. 26. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service.

Part G: Access to the internet and other electronic communication 27. The defendant must work with his DSO to prepare a list (called the IT list) containing: a. all devices used by the defendant to access the internet, communicate electronically or store electronic communications/data (eg, mobile phones, tablets, computers and data storage devices, etc), including the credentials required to access these devices (eg, user names/log-in names, passwords, etc); b. all communications services used by the defendant (eg, email services, social media services, applications, etc), including the credentials required to access these services (eg, user names/log in names, passwords, etc); and c. details of all providers used by the defendant to access any telecommunications networks (eg, telephone service providers and internet service providers), including all subscriber information (eg, phone numbers, account numbers, etc). The defendant is entitled to all reasonable assistance from his DSO necessary to prepare the IT list. 28. The defendant must advise his DSO of any change to the information contained in the IT list as soon as possible after the change is made 29. The defendant must not use any credentials (eg, user names/log-in names, passwords, etc) other than those known to the DSO under condition 27 above, on any communications service (including any social media service) used by the defendant. 30. In monitoring compliance with this order, the DSO (or any other person requested by the DSO) may remotely inspect any communications service used by the defendant, including the defendant's email services and social media services. 31. The defendant must obey any reasonable directions by his DSO about the use of: a. any devices used by the defendant to access the internet, communicate electronically or store electronic communications/data; or b. any communications services used by the defendant. 32. The defendant must allow his telephone service provider and/or internet service provider to share information about his accounts with his DSO.

Part H: Search and seizure 33. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to g below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person. 34. For the purposes of the above condition: a. a search and examination of the defendant's person means a garment search or a pat-down search; and b. to the extent practicable a pat down search will be conducted by a DSO of the same sex as the defendant, or by an officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 35. During a search carried out pursuant to this order, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 36. The defendant must allow CSNSW to search any mobile phone, tablet, computer oi data storage device that he may use. 37. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to this order.

Part I: Access to pornographic and classified material 38. Unless approved by his DSO, the defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 or Restricted Category 1.

Part J: Personal details and appearance 39. The defendant must not change his name from "Grant David Neal" or use any other name without the approval of his DSO. 40. The defendant must let CSNSW photograph him. 41. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part K: Medical intervention and treatment 42. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 43. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. 44. The defendant must take all medications that are prescribed to him by his healthcare practitioners. 45. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. 46. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.

Part L: Information sharing 47. The defendant must agree to any information being shared between officers at those agencies that are directly involved in his supervision including, but not limited to, his DSO and officers of CSNSW

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: 27 November 2018