State of New South Wales v Norstead

Supreme Court of NSW|2023-05-11|Before: Rothman J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2019/00234873

JUDGMENT

HIS HONOUR: By Further Amended Summons filed in Court on 11 May 2023, the plaintiff seeks the following final relief: 1. an order pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") that the defendant be subject to an Extended Supervision Order from the date of the order for a period of 3 years; and 2. an order pursuant to s 11 of the Act directing the defendant to comply with the conditions set out in the Schedule to this Further Amended Summons during the duration of the final order referred to in [1] above.
The defendant, Jason Norstead (a pseudonym applied as a consequence of the defendant being a victim of child sexual offences), opposes the orders sought on the basis that he does not pose an unacceptable risk as defined in the Act. Further, if the Court were satisfied that the defendant poses an unacceptable risk, issue is taken with a small number of conditions that are now proposed in the Further Amended Summons. The small number of conditions sought by the State of New South Wales (hereinafter "the State" of "the plaintiff") being opposed results from discussions between the parties, and in particular, counsel for the parties, and a significant degree of agreement in relation to conditions that might be appropriate. Each party has provided the Court with written submissions. I congratulate counsel for those submissions and for the degree of consensus that has been obtained as to appropriate conditions, if an order were to be made.

Principles

The principles that are applicable to the imposition of an Extended Supervision Order ("ESO") have been rehearsed on many occasions. There are technical preconditions to the making of an order which relate to the timing of the application and the status of the defendant at the time that an order issues. The defendant concedes that the State has complied with those technical preconditions, but the Court is required to be satisfied independently.
In order for the Court to issue an ESO on a defendant, the Court is required to be satisfied that the person is an offender who is serving, or has served, a sentence of imprisonment for a serious offence; is a supervised offender; and the application for the order has been made in accordance with s 5I of the Act. The foregoing are that to which I have earlier referred as the "technical preconditions". [1]
In order for the defendant to be a "supervised offender" he is required to be in custody or under supervision (an Interim Supervision Order or parole). [2] The defendant is currently incarcerated in relation to an offence committed after the index offences upon which the State relies for the purpose of this application.
Further, an application for an ESO must be made no later than the last nine months of the defendant's current custody or supervision, at the time of the application. The initial summons upon which the State relies was lodged at a time when the aforementioned time limitation was satisfied. The defendant has been imprisoned since then and it is unnecessary to determine compliance with the timing in relation to the current period of imprisonment.
An Interim Supervision Order ("ISO") was previously issued by the Court (Button J). The ISO has not expired because, in accordance with the Act, the operation of the ISO is in abeyance during any period of imprisonment. The ISO is in abeyance and has almost its full period of operation to run.
By the provisions of s 4A of the Act, an offender is defined as a person who is, amongst other things, incarcerated as a result of a conviction for a "serious offence". In turn, a "serious offence" means a serious sex offence or a serious violence offence. A serious sex offence is an offence under various provisions of the Crimes Act 1900 (NSW) that is punishable by imprisonment of 7 years or more and, in the case of an adult, is committed in circumstances of aggravation. [3]
A serious violence offence is also defined and is relevantly constituted by conduct that causes death or grievous bodily harm, with the intention of causing either one or with a reckless indifference to causing it, or attempting such an offence with that intention. [4]
The index offence is an offence of aggravated indecent assault contrary to s 61M of the Crimes Act and relates to the detention and assault of a 12-year-old girl in her home. As a consequence, the index offence was one within the provisions of Div 10 of Pt 3 of the Crimes Act and was therefore an offence of a sexual nature as defined in ss 5(1) and 5(2) of the Act.
As a consequence of the foregoing, the Court is satisfied that the technical pre-conditions for the imposing of an ESO on the defendant have been satisfied. Apart from the foregoing technical requirements, the Court is required to be satisfied "to a high degree of probability" that the defendant poses an unacceptable risk of committing another serious offence if an ESO does not issue. [5]
In determining whether the defendant satisfies the "unacceptable risk" condition, the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not. [6] The relationship between satisfaction to "a high degree of probability" of an unacceptable risk and the express provision that the Court need not be satisfied on the balance of probabilities that a serious offence will be committed has been the subject of a number of comments by judicial officers. There is no tension between the two prescriptions.
In order for the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk, the Court assesses the unacceptability of the risk on the basis of two factors: a real and not ephemeral risk that the defendant will commit a serious offence; and the harm that will be occasioned if such a risk manifests. The authorities establish that, in those circumstances, the risk of committing a serious offence does not need to be more probable than not and as long as the risk of committing a serious offence is not insignificant, it is then utilised in the assessment of whether the defendant poses an unacceptable risk, measured with the harm that will be occasioned if the defendant were to commit a serious offence. It is the assessment of unacceptable risk which is in issue between the parties in these proceedings and requires assessment by the Court.
As has been stated previously, a high degree of probability for the commission of an offence, the effect of which would be a minor injury, may not be an unacceptable risk. However, where there is a likelihood, being something more than a mere possibility, that an offender will commit an offence, the effect of which would be horrendous or heinous, the mere fact that the likelihood of the commission of the offence is low does not, in and of itself, render the risk otherwise than unacceptable.
Often, defendants concentrate on the low probability of the commission of an offence without regard to the fact that as long as the risk of the commission of the offence is real and not illusory or ephemeral, such risk must be weighed with the harm that will be occasioned if the risk were to manifest, before the Court can be satisfied that the risk is unacceptable. A concentration on the low probability of the commission of an offence is understandable because most often the offence, evidenced by the index offence, is one that would occasion significant harm.
Almost by definition, because the offender against whom such an ESO is sought must be a "serious offender", the manifestation of the risk of offending will necessarily involve serious consequences. The difficult task for the Court is to assess and weigh the combination of the two factors in order to determine whether, to a high degree of probability, the defendant poses an unacceptable risk.

Background

The defendant is a 44-year-old man who grew up in Sydney. He is from a large family, being one of six siblings. The defendant had a dysfunctional home-life while growing up. His home-life was marred by domestic violence and substance abuse.
The defendant left school at a young age and commenced an apprenticeship. He reports that he commenced polysubstance abuse at a young age.
The defendant has three surviving children to three separate relationships. His Police record indicates domestic violence across all of those relationships. Two of his children are in the care of the Minister.

Prior Criminal History

The defendant's criminal history is extensive. He entered juvenile detention at 17 years of age. He reported being abused in juvenile detention, to which some attention will be paid later in these reasons. His non-sexual offending spans between 1997 and 2011 and includes common assault, damaging property, drug offences, driving offences and trespassing/housebreaking.
The most significant prior offences include an assault occasioning actual bodily harm, which was perpetrated upon a former domestic partner on 1 August 2003. The actual bodily harm was occasioned by a punch to the left eye.
Also of note is an indecent assault charge in 1996 when the then 17-year-old defendant followed a 33-year-old woman from an empty train platform, grabbed her, pushed her into a bush and touched her in intimate areas. The attack was interrupted by bystanders calling Police.

The Index Offences

The first tranche of offences requiring the Court's consideration are charges of aggravated indecent assault, aggravated enter dwelling with intent, and take and detain person with intent to obtain advantage, which involved an assault occasioning actual bodily harm. These offences occurred on 20 January 2002. It took law enforcement agencies some time to link the offence to the defendant.
The conduct involved the defendant breaking into a residential premises and restraining the only person present. The victim was a 12-year-old girl.
The defendant asked her for money and threatened to rape her if she did not tell him where it was. He also removed her underpants and touched her genital area as she struggled. He stole some items before departing. The victim was left with bruising from her restraints.
Police took a sample from which they derived DNA. The sample was derived from a cigarette butt which, in 2011, was identified as belonging to the defendant. It was discovered that the defendant had targeted the house after having attended it previously to undertake gardening services. The defendant reported high levels of drug use during this time and denied a history of sexual interest in children.
The defendant was charged and pleaded guilty to the offence. He was sentenced on 30 July 2012. In delivering the sentence, Armitage DCJ noted that, while the defendant's prior criminal record was not so serious, the offending in question was extremely brutal and unfeeling, and terrifying to the young victim. His Honour held that the offending was planned. His Honour did not accept that the defendant was remorseful but did accept that the defendant wished to get on top of his drug problem and turn his life around.

The 2019 Offences

The second tranche of offences took place on 29 May 2019, while the defendant was on parole. In early 2019, the defendant's stability in the community had been compromised due to a variety of factors, including accommodation instability and non-compliance with drug management programs. He was also experiencing conflict in a relationship with a younger woman (19 years of age).
The defendant was increasing his drug use and failing to comply with the requirements imposed upon him, both in relation to the child protection register and by Community Corrections. He was in breach of his parole conditions in several respects.
On 29 May 2019, the victim of the offending attended a motel to supply a small quantity of prohibited drugs to the defendant's daughter. Shortly after the victim arrived, he received a text message, purportedly from the defendant's daughter, to the effect that she was in the shower and directing him to the room key.
When the victim opened the door, the defendant and his co-offender grabbed him. The victim was then assaulted by both offenders. They demanded and stole money and drugs. The defendant threatened the victim with a metal bar. The co-offenders took the victim in a car and drove him around until they arrived at the victim's house, at which point they stole further drug paraphernalia and money.
On 7 June 2019, the defendant was charged and was found guilty in a judge alone trial. In sentencing the defendant, Buscombe DCJ found that the defendant was the instigator of the offending and that he had failed to engage with the rehabilitation offered to him by Community Corrections. He was sentenced to 5½ years in gaol with a non-parole period of 3 years and 8 months.
As earlier stated, the original Summons and application for an ESO was commenced by the plaintiff, while the defendant was on parole, following his sentencing in 2012 for the 2002 offences. The Court (Button J) imposed an ISO on the defendant on 27 August 2019.
Following the imposition of the ISO, the defendant was sentenced for the 2019 offences and has been in gaol since that time and continues to be imprisoned. The term of imprisonment imposed in 2019 has a non-parole period which renders the defendant first eligible for parole on 26 August 2023. Nevertheless, on the application of the State, an ESO is sought to be imposed on and from the date upon which the order is made, pursuant to the terms of the Act.

Evidence and Submissions

As is usual, Button J, when imposing the ISO on the defendant, ordered expert reports in accordance with the Act. The Court presently has two reports provided in accordance with those orders. The first report is from Professor Susan Hayes, being a report of 3 April 2023. Professor Hayes has provided a curriculum vitae and is currently Professor Emeritus at the Central Clinical School, School of Medicine and Health, University of Sydney. She is a Forensic Psychologist.
The Court also has the benefit of another expert report from Dr Andrew Ellis, a Forensic Psychiatrist. The report is dated 11 April 2023.
Each of Professor Hayes and Dr Ellis gave evidence in conclave in the proceedings and they were cross-examined by counsel for the defendant. Apart from the expert reports, the State relied upon the Affidavit of Benjamin Madden of 29 July 2019; three Affidavits of Briony O'Loughlin of 1 March 2023, 19 April 2023 and 8 May 2023; and an Affidavit of Jonathan Vasiliou of 14 August 2019. The defendant did not rely upon any additional affidavit evidence and relied upon the opinions expressed by the experts and other material otherwise adduced. The defendant did update that material by the tendering of case note reports which were relevant to one of the conditions, namely whether the defendant should be allowed contact with his sister and her children. [7]

Report of Professor Hayes

Professor Hayes interviewed the defendant by telephone on 9 March 2023. In her report, Professor Hayes noted that the defendant was rational with no obvious thought disorder. He described a difficult upbringing in housing commission, with a violent father who pushed him to be more aggressive.
The defendant outlined his work history after leaving school at a young age, as well as his experience in detention at age 17. He told Professor Hayes that, while he was in detention, he was the subject of sexual abuse and, as a consequence, could not bear to be around groups of people. This made employment difficult for him, after he left detention.
Professor Hayes noted that while the defendant admitted that he had become institutionalised, he was able to express plans for his future upon release. The defendant told Professor Hayes that he would like to buy a property in Broken Hill and work from home, utilising money he expected to receive from a personal injury claim arising from the sexual abuse to which earlier reference has been made. In fact, by the time that the proceedings were heard by the Court, the personal injury claim had been resolved and the settlement of the claim involved the payment to the defendant of approximately $200,000.
The defendant expressed concern to Professor Hayes that he would "get on drugs" as a way to deal with social phobia. The defendant outlined that he had a number of children with a number of different women, but did not express a desire to recommence any of the relationships with them upon release, recognising that at least one of the relationships with one of the women was a "drug relationship", involving significant co-dependency.
The defendant reported that he had some ongoing physical injuries as a result of a motor vehicle accident as a child. He also explained that he had been diagnosed with post-traumatic stress disorder ("PTSD"), social anxiety, and anti-social behaviour. The defendant informed Professor Hayes that, as a result, he is unable to participate in any group programs or group therapy. He explained that he had struggled with drugs but was currently taking buprenorphine and was hoping to stay away from drugs in the future.
Professor Hayes considered that the defendant gave the impression of being of average intelligence or low average intelligence, and he participated satisfactorily in the interview. The report noted that the defendant, in the view of Professor Hayes, suffered PTSD, Depression, Anxiety, and Substance Use Disorder (in remission in prison). Professor Hayes considered that these diagnoses contributed to the risk posed by the defendant of future serious sex offences. Her report noted that, in her view, the defendant's hypervigilance arising from PTSD results in the defendant easily converting from anxiety to rage and that rage would result in sexual aggression.
Further, Professor Hayes expressed the view that the problems with substances could make the defendant have lower inhibitions or increased impulsivity if he were to relapse. Professor Hayes expressed the opinion that the defendant's offending was impulsive and that his history showed that he was prone to relapse to drug abuse.
The report of Professor Hayes records the professor's observation that the defendant exhibited denial in relation to the index offending and minimised the sexual elements of the offence. Professor Hayes noted that the defendant's difficulty relating to others had the effect that he had difficulty understanding the impact of his behaviour on others.
Professor Hayes expressed the opinion that the defendant would need to continue psychological and/or psychiatric treatment in the community, as well as continue his prescribed medications. She thought that if the defendant were compliant with that regime, the risk posed by his psychiatric conditions could be ameliorated. She did note that this would need to be long-term as the defendant's conditions were chronic.
Further, Professor Hayes noted that the defendant posed a risk of committing a further serious sex offence. The opinion that Professor Hayes expressed in her report was that the defendant's sexual and violent offending were intertwined and that a violent confrontation could easily become an opportunistic sexual offence, particularly as the records show that the defendant's behaviour can deteriorate quickly in the community. Professor Hayes noted that past assessments categorised the defendant's risk of further sexual and violent offending as high and she expressed the opinion that it had not changed.
In relation to the risk posed by the defendant, Professor Hayes explained that it would fluctuate, depending on the presence of risk factors. Those risk factors included: mental illness; cessation of counselling; and relapse into drugs. While the mental illness is a continuing and stable factor, the most acute risk factors are the cessation of counselling or relapsing into drugs. These latter risk factors are less predictable and would have a serious effect.
Professor Hayes rated the defendant under one of the usual tools, STATIC-99, which rated the defendant as "well above average risk". When Professor Hayes combined that result with the ARMIDILO-S assessment she concluded that the overall risk was "high".
Professor Hayes also dealt with the proposed ESO conditions to which she lent support and expressed the view that the conditions would not be counter-productive to his clinical treatment. She also considered that an ESO of 3 years would be appropriate in the circumstances.

Report of Dr Andrew Ellis

As earlier stated, Dr Ellis reported on 11 April 2023. By the time Dr Ellis interviewed the defendant, the personal injury claim relating to the childhood abuse had been resolved and the defendant had received the settlement sum. Dr Ellis' examination of the defendant occurred by video link.
The defendant told Dr Ellis that he was a "changed man". The defendant attributed this change to his own motivation and not to the efforts of Corrective Services, about which he expressed a negative view. The defendant indicated that the only way for him to progress was to "move on with his life" and not have any more involvement with parole. He also expressed dissatisfaction with the proposed conditions of the ESO.
Dr Ellis assessed the defendant as having intense emotional expression, but not suffering from thought disorder or delusion. Dr Ellis diagnosed a substance use disorder, PTSD, and Personality Disorder with antisocial and borderline traits. There was no evidence of cognitive disability.
Dr Ellis also assessed the defendant using STATIC-99 and the defendant rated in the above-average category for the risk of committing a further serious offence. While Dr Ellis noted that there was no clear pattern of sexual offending, the defendant's personality dysfunction and substance difficulty increased his risk across all types of sexual offences, according to the report.
Dr Ellis emphasised the importance of the defendant continuing his psychological and psychiatric treatment, with specific treatment geared towards sexual offending. He also noted that the defendant would need to be monitored for drug use. As to the making of an ESO and the conditions of the ESO that were proposed at that time, Dr Ellis was supportive of both and was supportive of the community treatment plan, but thought that a 2 year period for the ESO would be more appropriate.

Other Reports or Relevant Documents

The Court has also been provided the report of psychologist, Dr Champion, dated 2 June 2012. This report was prepared at the request of Legal Aid following the 2002 offences. Dr Champion assessed the defendant in gaol and noted that he was, at that time, awaiting sentencing. At the time, the defendant did not disclose any Depression, Suicidality, Anxiety, or PTSD.
Dr Champion suspected that there was a mood disorder based on the defendant's relationship with substance use and offending. The defendant did inform Dr Champion that he had been bashed in 2000 or 2001 and that he had memories and/or intrusive thoughts relating to that incident. He did not disclose any PTSD or recurring memories about the abuse he alleged was suffered in juvenile detention. Nor did he disclose the sexual abuse in juvenile detention at all. Dr Champion did not diagnose any mental illness other than Substance Use Disorder and noted that there did not seem to be scope for mitigation of the then offences on the basis of mental illness.
Also before the Court is a Risk Assessment Report of 20 March 2019 prepared by Nicole Ahern, Psychologist. Ms Ahern assessed the defendant on 12 February 2019 while he was in the community. She noted that, at that stage, he had completed the High Intensity Sex Offender Program in gaol, but had failed to make any behavioural or attitudinal changes. Ms Ahern noted that, at the time, the defendant had been taking part in one-on-one interventions.
Ms Ahern expressed the opinion that the defendant seemed to want to avoid sexual and general offending but doubted whether he would be capable of following through with that goal. Ms Ahern noted that the defendant presented as euthymic (neither depressed nor highly elevated mood) and polite. Nevertheless, the defendant minimised, and was defensive about, his risky behaviours.
Ms Ahern also summarised the defendant's life, criminal history and index offending and then outlined the defendant's history of non-compliance with community supervision. The report noted that the defendant had been the subject of several breach reports and had an attitude of superficial engagement only. There were periods during which the defendant displayed poor communication and non-attendance while in the community and being managed by Corrective Services.
Ms Ahern also assessed the defendant as falling within the "high" category for general and violent offending and "well above average" for sexual offending. The tools that Ms Ahern utilised for the assessment were STABLE-2007 in which the defendant displayed a high loading of criminogenic needs relative to other male sexual offenders. These included a reduced capacity for relationship stability and a lack of general self-regulation or cooperation with supervision.
Overall, Ms Ahern concluded that the defendant would benefit from continued monitoring under an ESO, which she considered would be the best manner of increasing his pro-social influences, manage the risk of relapse into substance abuse, and generally monitor his progress reintegrating into the community.
The Court has also had regard to a Risk Management Report of 23 April 2019 prepared by Marc Corcoran of Corrective Services. The report notes that the defendant's engagement with Corrective Services since 1997 had been marred by his poor response to supervision.
Mr Corcoran outlined the management strategy employed at that stage, which involved weekly face-to-face interviews, field visits, drug testing and the like. The focus was on building strategies to address risk, as well as maintaining employment and remaining abstinent from drugs. The defendant was also being encouraged to continue with psychological services.
Ms Donaldson, a forensic psychologist, prepared a Supplementary Risk Assessment Report on 4 July 2019. This report was necessary as a result of the further offending of the defendant. The further offending related to the 2019 offences to which earlier reference has been made.
After noting that the parole granted to the defendant had been revoked, Ms Donaldson also referred to conditions of parole being breached by the defendant. Those breaches included failing to reside at approved accommodation; having no fixed abode; failing to comply with substance use treatment; and, to the extent that it is different, testing positive for amphetamines.
A further breach report issued in late May 2019 and was noted by Ms Donaldson in her Supplementary Risk Assessment Report. The May 2019 breach was a failure to attend scheduled appointments; failing to comply with the Child Protection Register; and, failing to inform Police that the defendant had moved and purchased a motor vehicle. In June 2019, the defendant was charged with the 2019 offences and was bail refused.
Ms Donaldson noted that all of the foregoing events coincided with accommodation instability, the defendant having ceased work, the re-establishment of a relationship with a much younger woman, and substance abuse. As a consequence, Ms Donaldson was concerned about the defendant's ability to manage himself in the community.
Ms Donaldson noted that the defendant's risk categorisation remained unchanged with his general risk of sexual reoffending still rated as "well above average". She supported the recommendations of Ms Ahern in her earlier Risk Management Report and considered that they continued to remain relevant to the defendant.
In the report of psychologist, Professor Coyle, of 24 November 2021, which was prepared at the request of the defendant's solicitors in a personal injury claim relating to the abuse while in juvenile detention, the Psychologist, Professor Coyle, noted that the defendant had well-entrenched PTSD and Depression, with comorbid personality disorder and substance abuse disorders. He attributed the PTSD to sexual abuse suffered by the defendant in juvenile detention. He also thought that the sexual abuse played a part in the defendant's difficulty with drug abuse throughout his life. The report recommended that the defendant needed psychological treatment and also recognised that he had an irretrievably diminished earning capacity.
The Risk Assessment Report of 13 December 2022, prepared by Nicole Ahern in order to supplement her earlier report to which reference has been made, was not drafted as a result of a further interview. Rather, Ms Ahern reviewed updated documents and commented on whether and how they influenced her original risk assessment. In this later report, Ms Ahern expressed the opinion that the greatest likelihood of reoffending involved the defendant becoming non-compliant with psychotropic medication or relapsing into drug use. Ms Ahern, in this later report, expressed the view that these risks related to the risk of general offending, but the likelihood of further sexual offending specifically was unknown.
Ms Ahern noted that the defendant's risk of sexual offending generally remains above average and that it may arise if he experiences rejection, loneliness, or relationship disharmony. This would give rise to feelings of entitlement and may cause the defendant to fall back into maladaptive coping strategies and impulsive sexual offending. In her view, an ESO would be helpful in managing the risk and in ensuring that the defendant complied with treatment and sex-offending programs as well as other general monitoring measures.
The last report to which reference is to be made in these reasons is the Risk Management Report of 7 February 2023 prepared by Jason Saad of the ESO team at Corrective Services. This report was prepared following the updated Risk Assessment Report to which reference has just been made.
Mr Saad noted that the current risk assessments reflected a high risk of general offending, a well-above average risk of sexual reoffending, and a high risk of violent offending. Mr Saad expressed the view that the defendant's risk factors were his poor problem-solving skills, difficulty with cooperation with supervision, and substance use. There was a common thread of communications from the defendant which related to his perception about his situation and the grievances arising from that perception, the possibility of an ESO, and being engaged in intervention.
Mr Saad noted that the defendant was reluctant to participate in group therapy and that he continued to state that he "didn't do anything wrong", when referring to his offences. Mr Saad inferred that the defendant maintained or expressed a desire not to comply with the obligations of an ESO, but remained open, at least to a limited degree, to the idea of individual therapy. This report, which is dated 7 February 2023, records that Mr Saad informed the defendant that the view of Corrective Services was that all of the conditions were necessary to manage the defendant in the community and encourage him to develop a pro-social lifestyle. Of course, since that time, the conditions have changed and there are agreed conditions in a different from, and ameliorating some of the strictures originally imposed which were the subject of application on 7 February 2023.
The Affidavit of Benjamin Madden of 29 July 2019, outlines the basic factual background of the defendant's offending and the commencement of these proceedings. The Exhibit thereto contains copies of the defendant's criminal history, the Risk Assessment Report and the Risk Management Reports then available. The Affidavit of Jonathan Vasiliou of 14 August 2019 annexes various Police records relating to prior offending of the defendant from 1996 to 2019.
The first Affidavit of Briony O'Loughlin of 1 March 2023 is the first of the Affidavits in support of the application for an ESO. It refers to the ISO imposed by Button J, the subsequent sentencing of the defendant for the 2019 offences and the circumstance that, as a consequence, the ISO remains in abeyance. The Affidavit exhibits a bundle of documents relating to recent criminal proceedings and updated risk management and risk assessment reports.
The second Affidavit of Ms O'Loughlin of 19 April 2023 provided additional information on the defendant's recent progress in gaol. Copies of the defendant's psychology notes and OIMS notes are annexed to the Affidavit. The psychology notes reflect that between 2017 and 2019, the defendant was engaging with the service, although there was disclosed some instability arising in 2019, which coincided with his arrest for the 2019 offences and brought to an end his engagement with the service. There is an OIMS case note of 15 March 2023 which records that the defendant became irate when it was suggested he take part in programs. The defendant indicated that programs do not work and that no-one in parole helped him or cared. The defendant reiterated his opposition to group environments and flatly refused to take part in any programs.
The third and last Affidavit of Ms O'Loughlin of 8 May 2023, again updated information on the defendant's interactions in prison. The Affidavit annexes case notes evidencing that the defendant reported ongoing issues with participating in programs which, according to the defendant, arose as a consequence of the defendant's mental health problems. There is a review note of 4 May 2023, which records that the defendant said he would not contest the ESO order itself as he was a "changed man" (consistent with that which was said to Dr Ellis). The defendant indicated that his plan was to live with his parents for a while and then look at buying a property in western NSW.
As earlier stated, Ex 1, the only evidence tendered by the defendant, relates to the submission that the defendant wishes to have nominated exceptions to the restrictions on contact with children. The nominated exceptions were the children of his sister, which Ex 1 evidences and evidences the consent of his sister.

Consideration of Unacceptable Risk

I have already set out the principles that are to be applied in determining whether the defendant poses an unacceptable risk as described in the legislation. As already stated, the Court is satisfied that the technical preconditions to the making of an ESO have been met. The defendant is a supervised offender and the application for an ESO was brought in the prescribed timeframe. Further, the defendant is a person who has been convicted of a serious offence, as defined in the Act.
The past offending of a sexual nature is not the worst offending amongst sexual offences in the Crimes Act. The foregoing comment is not intended to understate the seriousness of the offence but it informs the level of damage that has been inflicted in the past on account of the defendant's offending. Nevertheless, sexual offending on a child has lifelong effects.
Moreover, the defendant is aware of that because of his own victim status. Thus, even though the sexual offence in question and the conduct in question was not the most serious of sexual offences in the criminal calendar, its damage would be and the risk of damage is significant.
Complicating the issue of risk is that the defendant's offending has also been violent, impulsive and opportunist. The defendant lacks insight into his behaviour and criminality.
As the submissions for the defendant point out, there are a number of necessary steps that are needed before the sexual offending will occur. First, there needs to be a factor which disinhibits the defendant, such as recourse to illicit substances or the like.
Secondly, as a consequence of that aggression and/or disinhibition associated with the risk factors, the defendant would have to engage in a violent, aggressive offence. Thirdly, if such an offence were to occur, there would need to be at the scene of the offence a person on whom the sexual offence could be perpetrated. This, according to the submissions of the defendant, renders the probability of a sexual offence very low.
There is little doubt that the psychiatric condition suffered by the defendant contributes to his offending. So much was confirmed by the oral evidence of the experts. If the Court were sentencing, such a factor would be significant and may, in appropriate circumstances, have led to an amelioration of the sentence to be imposed. However, the Court is not sentencing. The Court is assessing risk.
The existence of the psychiatric conditions, which it is accepted led to the offending, renders the risk to the community greater than it would otherwise be and, in that sense, mirrors the comments of Gleeson CJ in R v Engert. [8]
The submission of the defendant on the low probability of a sexual offence occurring is only superficially persuasive. The defendant, it is said, has not been guilty of sexual offending in the past 18 years. Nevertheless, the defendant has, in the past 18 years, been in the community for relatively short periods.
Notwithstanding the fact that a number of circumstances need to arise before offending will occur, in the past, those circumstances have coalesced while in the community for a short time and therefore the existence of those circumstances does not render the sexual offence being unlikely to occur. The Court is concerned with the probability that the risk will manifest.
The Court needs to be satisfied that it is likely that a serious offence will be committed by the defendant. The term "likely" is not concerned with the civil standard of proof, namely that the risk that a serious offence will be committed is more probable than not, it is concerned only with the existence of a sufficiently substantial probability to be referred to, in its ordinary meaning, as "likely".
The "likelihood" should be at the upper end of the scale of likelihood, but not necessarily exceeding 50%. It must be probable in the sense that it is more than merely possible that the defendant will commit further serious offences. [9]
The other aspect of the matrix to be applied to the ascertainment of the unacceptable risk is the seriousness of the harm, with which the Court has already dealt, at least in part. The seriousness of the harm is the seriousness of the damage that is likely to occur if the risk of the commission of a serious offence were to manifest.
Taking into account the nature and seriousness of the defendant's offending against a child victim; the gravity of any potential sexual reoffending; the expert reports and opinions otherwise expressed as to the high or well-above average likelihood that an offence will occur in the absence of supervision; the lack of insight into the offending, particularly as it affects the prospects of the defendant's rehabilitation; the defendant's substance use disorder and the likelihood that, without supervision, he will lapse into use of illicit substances; the fact that the offending occurred while the defendant was subject to supervision under parole; and the defendant's psychiatric conditions, the Court is satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not subject to an ESO. As a consequence of that satisfaction and the level of satisfaction, an ESO will be imposed upon the defendant.
The Court is not directly concerned with the rehabilitation of the defendant. The Court is not determining how best to treat the defendant. The Court is concerned with risk. Rehabilitation and treatment are relevant to the assessment of that risk, particularly in the longer term.

Conditions to be Imposed

As earlier stated, the parties have discussed the conditions that were initially sought to be imposed if an ESO were to issue. The parties have reached substantial agreement as to the appropriateness of conditions and each of the parties are, as earlier stated, to be congratulated for that approach. As at the date of hearing, there were four conditions that were in issue.
Before dealing with those four conditions, the Court makes clear that the conditions that have been agreed are, in the view of the Court, appropriate conditions given the risk and nature of the risk, including the issues associated with substance abuse, applicable to the defendant. It is necessary to deal with the issues between the parties on the conditions sought to be imposed.
During the course of submissions, the Court suggested a resolution of the issues between the parties associated with Conditions 10 and 26. Those Conditions deal with the accommodation in which the defendant will reside and a restriction on the purchase or encumbrance of goods or the obtaining of credit. While there was a degree of agreement between the parties, whether or not there was agreement, the Court determines that each of those Conditions, as initially framed, will have an additional sentence added. The additional sentence will be in the following terms: "The aforesaid approval will not be unreasonably withheld."
The next matter in issue with which the Court will deal is the terms of Condition 32 and the exception that is sought by the defendant to the prohibition on associating with a person under the age of 18. Exhibit 1 in the proceedings, as already stated, goes to the consent of the defendant's sister and her partner to the association of the defendant with the children of their household. The defendant's sister is aware of the nature of the offences of which the defendant was convicted. It is not absolutely clear, but seems to be the case that the sister's partner is also aware of those offences. They consent to the defendant associating with their children.
I do not doubt that the defendant's sister and the partner of his sister consider that they are acting appropriately and properly in relation to the children. There is certainly no suggestion to the contrary. Nevertheless, the assessment of the risk to those children is not a matter that is ameliorated by the consent of the parents of the children. It is a matter for the assessment of the Court and experts. Each of the experts are concerned at the appropriateness of a blanket exception for nominated children.
The Condition as it currently exists allows association with persons under the age of 18 with "the written permission of a DSO" and in accordance with requirements reasonably determined by the DSO. Those conditions may include that the contact takes place in the presence of an adult.
A condition that the defendant have contact with his sister's children in the presence of his sister or her partner does not prevent the defendant from building a relationship with those children. In the absence of written permission from the DSO, it would prevent the defendant from being with the children in the absence of either his sister or her partner. Such a restriction would, for example, prevent the defendant from taking the children to a movie or park or from babysitting for his sister and her partner. However, such a restriction depends upon the absence of written permission from the DSO, which is not necessarily problematic. In those circumstances, I do not allow an exception to the provisions of Condition 32.
Lastly, I deal with the issue of electronic monitoring. The defendant seeks a sunset clause such that the electronic monitoring will operate only for six months. Given the nature of the risk and the capacity of electronic monitoring to ensure that the defendant does not frequent children's playgrounds and places where illicit drugs are likely to be available, it seems to me that electronic monitoring is appropriate.
Apart from the prohibitive aspects of electronic monitoring, it, on the expert advice, facilitates stability and regulation in conduct and the implementation of a regime that allows the defendant to promote rehabilitation better. Against those factors is the capacity of the State to apply for a variation of the Conditions, were the Court minded to impose a sunset clause as submitted by the defendant.
If, as expressed, the defendant is minded to undertake rehabilitation and is genuine in that desire, it is likely that electronic monitoring will not be "necessary" or "essential" for a long period. Nevertheless, at the moment it is essential and the determination of whether it remains essential is a matter that must be assessed after the progress of the defendant is considered. On balance, the Court will impose Condition 5 and not ameliorate its application by the insertion of a sunset clause. It is, ultimately, for the DSO to determine whether, given the progress of the defendant, electronic monitoring is appropriate.
Given the opinions expressed by the experts and the nature of the evidence as a whole, the Court is of the view that the ESO operate for the period stated by Dr Ellis, namely for 2 years. The Court acknowledges that the opinion of Prof Hayes is that a 3-year term is appropriate and that is the term sought by the State. The Court is also mindful that, if the opinion of Dr Ellis is not borne out, the State has the capacity to apply for a further ESO. I direct the State to provide the Court with an electronic copy of the Conditions, amended in accordance with these reasons.
In the foregoing circumstances, the Court makes the following orders: 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant shall be subject to an Extended Supervision Order for a period of 2 years from the date of the entry of these orders; 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is directed, for the period of the Extended Supervision Order, to comply with the Conditions as set out in the Schedule of Conditions of Supervision attached to these orders; 3. Access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. ********** 230518 - Schedule of Conditions - State of NSW v Norstead (19-234873) (72123, docx) 230518 - Schedule of Conditions - State of NSW v Norstead (19-234873) (72123, docx)

Endnotes

Crimes (High Risk Offenders) Act 2006 (NSW), s 5B.
Crimes (High Risk Offenders) Act 2006 (NSW), s 5I(2) and (3).
Crimes (High Risk Offenders) Act 2006 (NSW), s 5.
Crimes (High Risk Offenders) Act 2006 (NSW), s 5A.
Crimes (High Risk Offenders) Act 2006 (NSW), s 5B(d).
Crimes (High Risk Offenders) Act 2006 (NSW), s 5D.
Exhibit 1 in the proceedings.
(1995) 84 A Crim R 67.
Tillman v Attorney General for the State of New South Wales (2007) 70 NSWLR 448; [2007] NSWCA 327; TSL v Secretary to the Department of Justice (2006) 14 VR 109; [2006] VSCA 199; Cornwall v Attorney General for New South Wales [2007] NSWCA 374.

Amendments 18 May 2023 - Amendment made to Order 2 18 May 2023 - Schedule of Conditions attached. 21 July 2023 - Schedule of Conditions - non-publication requirements 21 July 2023 - Schedule of Conditions - Non-publication requirements 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: 21 July 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (15 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (5)

Cited By (1)