State of New South Wales v O'Sullivan

Supreme Court of NSW|2022-02-15|Before: Lonergan J

Judgment

On 13 December 2021 the State of New South Wales, the plaintiff, commenced proceedings against Michael O'Sullivan, the defendant, seeking an extended supervision order (ESO) of 3 years under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act").
The plaintiff also seeks interim orders for supervision, (ISO), for 28 days commencing on 30 May 2022 and the appointment of two suitably qualified experts pursuant to s 7(4) of the Act to examine the defendant and report to the Court.
This judgment only deals with the making of the interim orders.
In light of the material tendered by the plaintiff and the concessions made by his counsel in the written submissions and at the hearing, I am satisfied that the orders sought by the State should be made.
The only matter for debate was whether Conditions 4 and 21 of the plaintiff's proposed Conditions should be made.
Having heard that debate, I am of the view Conditions 4 and 21 should be ordered together with all the other conditions in the Schedule annexed to this judgment, and these are my reasons.

Relevant legal test

The application at this stage is limited to an ISO of 28 days length. At this stage I am not engaged in the task of weighing up material contained in the evidence or predicting the result of the plaintiff's application at final hearing.

Attitude of the defendant

In his written submissions, counsel for the defendant informed the Court that the defendant did not oppose the imposition of an ISO including most of the conditions proposed by the State.
Express, (and appropriate), concessions were made for the purposes of this interlocutory application that: 1. The application was made within the time required: (s 6(1) of the Act. 2. The defendant is an "offender" because he has served a term of imprisonment for a serious offence: s 4A of the Act. 3. The defendant is a "supervised offender" because he is currently serving his balance of parole and so is deemed under s 5I(3) to be a person who is serving a sentence of imprisonment: (s 5I(2) and (3)). 4. 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.

Conclusion - the defendant presents as an unacceptable risk

Recognising the Court is entitled to rely on those concessions and having read the material tendered and considered it in light of the mandatory matters set out in s 9(3) of the Act, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of sexual offending against children if not kept under supervision under the order.
I will outline briefly some of the more significant background matters that support my view.
The defendant was born in 1972 and was exposed to sexualised behaviours involving minors from a very young age via his paternal grandfather.
He has been married twice. The first relationship came to an end at the time he committed opportunistic sexual offences against two of the daughters of his then wife in 1996 whilst she was in hospital and the children were in his care. The children were aged between 5 and 7 years old. He was sentenced for touching each on their vaginas outside their clothing and, taken into account on a Form 1, asking each child to touch his penis.
The index offending covered the period April to June 2014 where the defendant was found communicating with his father (who was in custody at the time for sexual offending), apparently discussing and planning procuring under-aged persons for sex. On execution of the search warrant, skype material including photos and messages involving in particular a male child overseas and other online material about sexual behaviour with children was found at the defendant's home.
The defendant pleaded guilty to three counts of use carriage service to groom a child under 16 for sex, one count of use carriage service to solicit child abuse material, one count of produce child abuse material and three counts of disseminate child abuse material. He was sentenced by Bennett SC DCJ to a 6 year term of imprisonment with a non-parole period of 2 years.
Child Protection Offenders Prohibition Orders made in the Local Court under the relevant legislation will expire on 18 May 2025. The orders, whilst they prohibit certain conduct towards and associations with children or places they may be, have no real coercive powers to direct the defendant and require him to manage the risks that such behaviours will occur.
As set out in the report of Ms Wright, Chief Psychologist at the Serious Offenders Assessment Unit on her assessment of the defendant in July 2021, he has limited insight into risk issues, made contact with a convicted child sex offender while on parole and has criminogenic needs that include now entrenched deviant sexual interest in children, attitudes supportive of sexual offending, sexual preoccupation and sex as coping; sexual violence history; intimacy deficit, poor capacity for relationship stability; general social rejection and loneliness, significant (negative) social influences, poor problem solving and planning skills and issues with cooperation with supervision. He has limited protective factors.

Principles regarding the imposition of conditions

Section 11 of the Act empowers the Court to impose conditions it determines are appropriate and contains an illustrative list of the types of conditions that can be made.
Whilst there is no express limit on the conditions that may be made, the focus must be on conditions that are appropriate for achieving the purposes of that Act. As stated by Basten JA in Lynn v State of New South Wales [2016] NSWCA 57 at [129], the Court "will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kinds of conditions are likely to be effective".
The conditions that are imposed must be stringent and reasonably specific to reducing the particular risks of reoffending in the community: State of New South Wales v BG (Final) [2019] NSWSC 200 per Fagan J at [39]; State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883 per Garling J at [103].

Proposed Condition 4: Electronic monitoring

Issue has been taken by the defendant regarding the need for electronic monitoring (Condition 4), and a condition requiring provision of financial information to his DSO if required (Condition 21).
The electronic monitoring proposed by the plaintiff is part of the group of conditions that deal with monitoring the defendant's movements in the community: "The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment".
The plaintiff argued that this condition is an appropriate way to monitor whether the defendant is entering high risk areas where children will be located and whether he is contacting or meeting with other offenders who have engaged in sexual offending against minors given his history of attempting to contact at least one person of this category whilst on parole.
The defendant argued that he has been on parole for two years and has demonstrated perfect compliance with monitoring and is proactive in notifying the authorities of even minor deviations in his schedule.
In my view, given the unacceptable risk the defendant presents to children, his entrenched sexual interest in them and his compliance so far in circumstances where he must know any deviation from his schedule will be seen and noted, electronic monitoring is appropriate to manage risk.

Financial information: (Proposed Condition 21)

The plaintiff seeks a condition that: "The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO".
The rationale is that review of those records will alert the supervisor to any spending associated with grooming or purchasing child abuse material (possibly overseas over the internet) or obtaining employment or attending places that provide the defendant with access to children.
The defendant argued that this condition is inappropriate and an unreasonable invasion of privacy.
In my view the condition is appropriate and directed to addressing the risk the defendant will surreptitiously re-engage with grooming and/or accessing child abuse material. Access to financial records is a legitimate way for those supervising the defendant to check whether he is spending on sexual services or other prohibited items or activities.
Although both conditions in issue are intrusive, they have an obvious efficacy in addressing the risks to the community posed by the defendant.

Orders

I make the following orders: 1(a) Two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) as agreed by the parties are to conduct separate psychiatric or psychological examinations of the defendant and are to furnish reports to the Supreme Court on the results of those examinations by a date to be agreed by the parties. 1(b) The defendant is directed to attend those examinations. 2(a) The defendant is to be the subject of an ISO from midnight 17 February 2022. 2(b) The ISO is to be for a period of 28 days. 2(c) The defendant is to comply with the conditions set out in the Schedule appended to this judgment for the period of the ISO. 3(a) The defendant be subject to an ESO for a period of 3 years from the date of the order. 3(b) The defendant, for the period of the ESO, comply with the conditions set out in the Schedule to this judgment.
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.

State of NSW v Michael O'Sullivan (143199, pdf) State of NSW v Michael O'Sullivan (143199, pdf) 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 February 2022

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Judgment (9 paragraphs)

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Cases Cited (6)