The State of New South Wales seeks an order that the defendant be subject to an extended supervision order (ESO) for a period of three years. In the interim, the State seeks orders pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (CHROA) appointing two qualified psychiatrists and/or registered psychologists to examine the defendant and furnish reports to the Court, and an order that the defendant be subject to an interim supervision order (ISO) from 5 April 2021.
The defendant did not oppose the imposition of an ISO, and consented to the appointment of the expert psychiatrists/psychologists. He did oppose some of the proposed conditions.
The defendant was sentenced on 27 August 2010 for three offences committed on 5 April 2009, and for an offence connected with those offences that occurred between 9 April and 6 June 2009. Count 1 was an assault with an act of indecency contrary to s 61L of the Crimes Act 1900 (NSW). Counts 2 and 3 were each sexual intercourse without consent in circumstances of aggravation, namely that the defendant intentionally inflicted actual bodily harm on the victim, contrary to s 61J of the Crimes Act. Count 4 was an offence of doing an act intending to persuade a person to be called as a witness in a judicial proceeding to give false evidence, contrary to s 323 of the Crimes Act.
The defendant was sentenced in respect of count 4 to a fixed term of 18 months' imprisonment commencing 6 April 2009 and expiring 5 October 2010. In respect of count 1 he was sentenced to a fixed term of 18 months' imprisonment commencing 6 October 2009 and expiring 5 April 2011. For count 3 he was sentenced to ten years' imprisonment commencing 6 April 2010 and expiring 5 April 2020, with a non-parole period of six years and six months expiring 5 October 2016. For count 2 he was sentenced to imprisonment for ten years and six months commencing 6 October 2010 and expiring 5 April 2021, with a non-parole period of seven years expiring 5 October 2017.
The offences constituted by counts 2 and 3 are serious sex offences by reason of being offences under Div 10 of Pt 3 of the Crimes Act, where the offence is punishable by imprisonment for seven years or more and the offence is committed in circumstances of aggravation.
Although the defendant was eligible for parole on 5 October 2017, he was not released to parole until 5 December 2019, principally because he had not completed certain sex offender courses whilst in custody. His overall sentence expires on 5 April 2021.
[3]
Legislation
Section 5B of the CHROA provides:
5B Making of extended supervision orders - unacceptable risk
The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:
(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and
(b) the person is a supervised offender (within the meaning of section 5I), and
(c) an application for the order is made in accordance with section 5I, and
(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
Section 5I(2) and (3) define a supervised offender to include someone who is on parole for a serious offence. Section 4 defines serious offence as, relevantly, meaning a serious sex offence.
Section 7(4) and (5) of the CHROA provide what is to occur at a preliminary hearing. In addition, the Court is given power to make an ISO under s 10A of the Act. In both cases, the test for making orders under ss 7(4) and 10A is the same, namely:
That the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
If that is so, the Court must make the orders in s 7(4) appointing the psychiatrists and/or psychologists, and may make an ISO under s 10A. I am satisfied pursuant to s 10A(a) that the defendant's supervision on parole will expire before the present proceedings are determined.
The present application was made whilst the defendant was released to parole for a serious sex offence. Accordingly, the prerequisites in s 5B(1)(b) and (c) are made out. The defendant is a supervised offender pursuant to s 5I(2)(a).
[4]
Legal principles
The task of the Court at the preliminary hearing on an application for an ISO is not to predict the ultimate result. Rather, the test is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]; see also State of NSW v Clarke [2019] NSWSC 411 at [7]-[11].
In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Beazley P said, when discussing the meaning of the phrase "unacceptable risk":
[50] As the respondent pointed out in its submissions, by reference to dictionary definitions, the word "unacceptable" requires context in which, or parameters against which, the "unacceptable" risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is "so far from a required standard, norm expectation, etc as not to be allowed". The Oxford Dictionary defines the word by reference to its antonym "acceptable". Something is "acceptable" if it is "tolerable or allowable, not a cause for concern; within prescribed parameters".
[51] What the court, therefore, must find to be unacceptable is the "risk" that the offender poses "of committing a serious violence offence if … not kept under supervision". The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.
…
[58] …[T]he proper approach is to give the words of s 5E(2) [now s 5B(d)]:
"… their everyday meaning, in the context of the provision in which they appear, and having regard to the objects of the Act"
as stated by R A Hulme J in Thomas (Final) at [38], and as I have explained above.
In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J said at [71]:
Unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate.
[5]
The defendant's background
The defendant was born in March 1978. He was the only child of his parents' union. His father was an indigenous Australian. His parents separated prior to his birth. After being placed into foster care for a brief period of time, the defendant was raised by his mother until she subsequently met and remarried another partner. That relationship lasted several years, during which time two sons were born.
When that relationship broke down, the defendant's mother commenced a relationship with another partner when the defendant was aged about seven years. The defendant described this person as a violent alcoholic. As a result, the defendant was exposed to parental discord, family violence and substance abuse. He also said that he had experienced physical and emotional abuse by that person. As a result of this environment, the defendant began to rebel against his mother.
He left home at the age of 15, and resided with a friend and his friend's mother for about 12 months. He continued to have regular contact with his mother during this period. When her relationship with his stepfather broke down, he returned to live with her when he was aged 16 or 17.
The defendant had difficulty at school in his early years. He was bullied over the colour of his skin. He struggled with learning difficulties and was placed in special classes in high school. He was suspended several times for behavioural disturbances before leaving school at the start of year 9. At around that time he formed connections with older antisocial peers, and began abusing drugs and alcohol. That apparently coincided with the period of time when he left home and first came into contact with the police and the juvenile justice system.
He was first convicted of a number of motor vehicle offences in 1993 when he was aged 14. The defendant then offended multiple times every year up to and including 1999. Whilst the earlier offences committed when he was a child frequently involved motor vehicle offences, by the time he was 17 he had been charged with indecent assault and an aggravated sexual assault. The first of those charges was dismissed. The second one was committed for trial but the DPP decided not to proceed with the matter.
In his early adult years the offending also involved minor drug offences and violent offending, including contravening an apprehended domestic violence order, for which he received a suspended 5 months' prison sentence.
When the defendant was aged around 27 years, he was convicted in 2006 of two counts of sexual intercourse with a person aged between 14 and 16 years, and with assault occasioning actual bodily harm. He was sentenced to periods of imprisonment for those offences. Other offences prior to the index offences included preventing a potential witness from attending a proceeding, for which the defendant was sentenced to 16 months' imprisonment, some drive while disqualified offences and another offence of contravening an ADVO.
The defendant reported a history of employment from around the age of 18 years, working as a storeman for several companies for periods of employment for up to 18 months at a time. Following a period of incarceration he worked in two further jobs but was fired from both of them. At the time of the index offences he was receiving government benefits.
[6]
The index offences
The facts of the index offences are well summarised in the Risk Assessment Report prepared by Holly Cieplucha, a senior psychologist with the Serious Offenders Assessment Unit on 21 August 2020.
19. Mr Pearson had been in a domestic relationship with the victim who was 26 weeks pregnant at the time of the offence, for just over three years. According to the Agreed Facts and Judges Sentencing Remarks (Judge Ellis, 27/08/2010), on the evening of 5 April 2009, an argument ensued between Mr Pearson and the victim over a claim that the victim was having an affair. The victim denied the allegation however Mr Pearson continued with this accusation.
20. Mr Pearson began to slap and punch the victim to the side of the face whilst she was seated on the lounge and he was standing over her. After she stood up, he grabbed her hair, dragged her into the kitchen, pushed her into the sink and slapped her across the face again. He then grabbed her head and smacked her head onto the floor three times.
21. The victim ran into the bedroom and Mr Pearson followed her, punching her to the back of the head and causing her to fall to the ground. He then threw her on the bed and placed both of his hands around her neck and started choking her. The victim started to black out, her vision became unclear and she was gasping for breath. The victim managed to break free and run down the hall before Mr Pearson ran after her and started punching her to the back of the head, causing her to fall forward. He then grabbed the back of her hair, pulled her head back and again punched her to the face causing her to start blacking out again.
22. Mr Pearson retrieved a knife sharpener from the kitchen, came over the top of the victim, who was still lying on the ground and said "I will just have to finish you off. The victim got up and went to the front sliding door but it was locked. Mr Pearson grabbed her and threw her onto a bed in the lounge before starting to choke her again. Mr Pearson hit the victim on the left arm and top of the shoulder with a knife sharpener. He also punched her to the side of the head which again caused her to fall to the ground. He rolled her over and punched her and kicked her in the stomach despite the fact that she was heavily pregnant. He said "this baby is probably not mine anyway".
23. Sometime later the offender emptied a six hundred mill bottle of Pepsi over the victim's head and again punched her to the head which caused her to fall to the ground. Mr Pearson then told the victim to have a shower. In the bathroom, he punched her a few times to the shoulder. The victim huddled down beside the toilet and Mr Pearson punched her again twice. The victim stood up before he grabbed her and pushed her down on the toilet. He said "sit there, I'm going to piss on you". The offender then started to urinate on her head, and said "turn your head and put your face on it".
24. The victim stood up and went into the bedroom where her son was sitting on the bed watching television. The offender then pushed the victim into the shower and turned the water up so it was very hot. The victim pushed her way out, went back into the bedroom and fell onto the bed. She fell in and out of consciousness, she came to lying half on and off the bed with the offender choking her with "something other than his hands". Mr Pearson said "you're a slut and I'll show you what sluts are worth" before forcing her legs apart and engaging in digital vaginal and digital anal penetration.
25. The victim, Mr Pearson and their son later headed out the door to the front area of the house. The victim saw a lady walking down the road, approached her and asked her to call the police. The lady refused. Mr Pearson came over and punched the victim to the head. She then ran to a nearby house and walked in and the occupants rang the police after the victim said "he's going to kill me".
26. Between 19 and 21 May 2009, the victim received a number of voicemails from Mr Pearson instructing her to prepare an affidavit stating that he did not assault her and to fabricate a story that she was actually assaulted by another girl. Mr Pearson also sent the victim a two-page letter (14/05/2009) instructing her to write an affidavit lying about what had happened.
[7]
Psychiatric evidence
The defendant was seen by Dr Matthew Jones, a psychiatric registrar, at Hornsby Ku-ring-gai Hospital in November 2003. He reported a recent history of paranoid thoughts, agitation, depression and anger management problems. Dr Jones noted that the defendant had attempted drug rehabilitation three times and was successful on his third attempt. Dr Jones said that the defendant showed no signs of a major depressive illness or psychotic disorders. He said diagnostically it would be best to describe him as having dysthymia, as well as a personality disorder. He also had lifelong polysubstance abuse issues and some difficulties with impulse control.
The defendant was assessed by Dr Stephen Allnut, a psychiatrist, when he was facing charges of assault and preventing a potential witness from attending proceedings in September 2006. The defendant denied that he experienced any unusual voices, visions, tastes or smells. He said he did not receive messages from the TV, the radio or the newspaper. He denied any thoughts of external control, and he did not report the usual themes consistent with delusional beliefs.
Although he denied that he abused substances, he also told Dr Allnut that he had commenced using speed at the age of 14, and used it until he was 26 or 27. He also used cannabis from the age of 12 until that time. He had abused methylamphetamine in the past. Two years prior to seeing Dr Allnut he commenced using amphetamines, which he took for approximately six months on a daily basis, but he then stopped using them. He had used anabolic steroids for about six months some three years before seeing Dr Allnut.
Dr Allnut said that the defendant provided a history of the emergence of a Bipolar Affective Disorder approximately two and a half to three years earlier. Dr Allnut noted that the diagnosis had been confirmed by Professor Gordon Parker, and that the defendant had been treated with Zyprexa. Dr Allnut recommended that the defendant undergo a drug and alcohol rehabilitation program.
Dr Allnut examined the defendant again in June 2010 in preparation for his sentencing for the index offences. The defendant told Dr Allnut that he noticed a change in his mental state occurring in about 2008 after stopping his medication. He began to have paranoia and to hear things. He had increased vulnerability to stress, irritability, agitation and fluctuation in mood which worsened over time in the context of ongoing drug abuse. He claimed to be hearing voices saying that his girlfriend was cheating on him.
Dr Allnut said that the defendant was manifesting residual symptoms of resolving mood disorder. He said the defendant provided a history consistent with probable Bipolar Affective Disorder characterised by periods of mood fluctuations with periods of mania and depression. In addition, he probably experienced psychotic symptoms, predominantly aggravated by the concurrent abuse of a variety of illicit substances.
On 22 October 2019, the defendant was assessed by Dr Gordon Elliott for the purposes of a parole review. Dr Elliott said that the defendant's presentation was not consistent with a pervasive mood disorder such as Bipolar Affective Disorder or a Major Depressive Disorder. He said, with respect to Dr Allnut and Professor Parker, that the defendant's history in custody did not support the diagnosis that they had made. Dr Elliott said that the defendant had persisting features of anxiety, but his other maladaptive personality traits were under much better control following the completion of his intensive psychological treatment programs in the CUBIT unit. Dr Elliott noted that the defendant had a significant history of major substance use disorders, in particular cannabis, stimulant and opiate use disorders.
Dr Elliott considered that psychological interventions, programs and practical assistance would be the main avenues of care for the defendant. Dr Elliott thought that the defendant would also benefit from maintenance drug and alcohol counselling to ensure that he remains abstinent during the high risk initial release period from custody.
[8]
Risk Assessment Report
As mentioned earlier, a Risk Assessment Report (RAR) was prepared on 21 August 2020 by Ms Holly Cieplucha.
Ms Cieplucha concluded:
Taking into account both static and dynamic risk factors, Mr Pearson's combined risk rating is in the 'Well Above Average' risk level compared with other male sexual offenders. The most salient risk areas for Mr Pearson are hostility to women, problem solving skills and negative emotionality. Mr Pearson's risk of violent re-offending is estimated to be within the High range with his highest treatment needs being in the areas of violent lifestyle, interpersonal aggression, emotional control, weapon use, substance use, stability of relationships, violence cycle and impulsivity.
Ms Cieplucha noted that the defendant had previously been assessed using the Wechsler Abbreviated Scale of Intelligence, at which time he was found to be functioning in the low average range of intelligence.
Ms Cieplucha reviewed the defendant's involvement in the High Intensity Treatment Program (HISOP) in which he had participated prior to his release on parole. She said that during treatment the defendant was described as reluctant to work on behaviours or attitudes that he perceived to be in the past. She said that according to his treating therapist, the defendant did not feel they were present anymore and tended to view them as context specific. That at times led to difficulty in realising the day to day impact of patterns in his life or the potential risk presented in his future. He was happy to discuss certain aspects of his offending, but became defensive when pressed or challenged.
This was consistent with what the psychologist herself found when she discussed his offending with him. She noted that he expressed remorse and shame for his actions, but struggled to consider the impact of his actions on his most recent or prior victims. She said that whilst he claimed his behaviour was something he would never forget, he also believed "it's time to move on, the past is the past".
Ms Cieplucha noted also that the defendant was referred to the Forensic Psychology Services community based maintenance following completion of HISOP, and he commenced weekly maintenance groups on 18 December 2019. She said that whilst the defendant described his engagement as helpful, particularly in managing situational anxiety and depression, departmental records suggested he had been unwilling to discuss certain issues in group, including disclosure of his offence history, had been difficult to engage, and was reactive to feedback.
Ms Cieplucha noted that the defendant completed the EQUIPS Addiction Program in 2018. The case notes indicated that he participated well and gained insight over the course of the program.
Ms Cieplucha noted previous risk assessments before carrying out her own. He had been assessed in January 2020 on the Level of Service Inventory - Revised (LSI-R), an actuarial risk instrument consisting of both static and dynamic risk factors related to general reoffending, as falling into the medium range of risk/needs for general and violent offending.
The defendant had been assessed in 2007 on the Hare Psychopathy Checklist - Short Version (PCL:SV) and the Historical Clinical Risk Management - 20 (HCR-20) as being in the high risk range, and on the Violence Risk Appraisal Guide (VRAG) as being in the very high risk range.
The STATIC-99R is an actuarial risk assessment instrument concerned with sexual recidivism. The total score ranges from -3 to 12. The defendant was assessed using the instrument in 2007 where his score was 6. That placed him in the high risk category relative to other male sexual offenders. He was re-assessed in 2011 and his score at this time was 7, placing him in the high risk category.
He was assessed using the Static-99R Coding Rules Revised 2016 Scoring Manual in 2019 where his score was 5. The difference from the 2007 assessment was a reduction by one point on the basis that the defendant claimed he had lived with a lover, and by another point because of his age at that time.
Ms Cieplucha assessed him using the STATIC-99R where his score remained at 5. That placed him in the Above Average Rrisk or Level Iva, which is the second-highest risk category described by the tool.
The defendant was assessed using the STABLE-2007 tool in 2019 following completion of HISOP. This is a tool developed to assist clinicians in identifying stable dynamic risk factors. The defendant's total score was 16, suggesting a high density of criminogenic needs relative to other male sexual offenders. He was reassessed using that tool by Ms Cieplucha in August 2020 where his score was 14. That score also suggested a high density of criminogenic needs.
Combining the STABLE-2007 and the STATIC-99R placed him in the Well Above Average Risk level, or Level IVb.
Ms Cieplucha also assessed him using the Risk of Sexual Violence Protocol (RSVP). This is a structured professional judgment tool where the offender is considered against a specific list of 22 dynamic risk factors deemed important in the literature. The factors relate to sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability.
Dynamic risk factors relevant to the defendant included psychological adjustment (attitudes that minimize sexual violence, self-awareness, stress or coping), mental disorder (substance use, violent or suicidal ideation) and social adjustment (intimate and non-intimate relationships and non-sexual criminality).
Finally, the defendant was assessed by Ms Cielplucha using Dynamic Risk Factors (Actuarial Assessment - Violent Offending) (VRS). This is a conceptual actuarial risk assessment specifically developed to assess the risk of violence for forensic clients, and in particular those who are being considered for release from institutions to the community after a period of treatment. The overall result of the VRS estimated the defendant's risk of being convicted of further violent offences as being within the high risk range.
In discussing risk scenarios, Ms Cieplucha said:
73. Mr Pearson's convictions for sexual and non-sexual violence have involved both child and adult female victims within the context of intimate relationships. Therefore, the most likely scenario for future serious sexual or non-sexual violence would be against an intimate partner and would involve Mr Pearson experiencing feelings of inadequacy, lack of trust and jealously, loss of control or fear of rejection. He may seek out a younger, more vulnerable partner if he were unable to establish a relationship with an age appropriate female. A weapon or implement may be used both to threaten and intimidate a partner or to further the commission of the an offence. Mr Pearson's risk of sexual and non-sexual violence would be heightened by a return to substance abuse.
Ms Cieplucha concluded her report by saying:
80. In the event that no order is imposed, after 05/04/2021, Mr Pearson would be at unconditional liberty. He would have no support from, or any monitoring by CSNSW. Mr Pearson would be able to engage an appropriate service provider for further psychological assistance or to address his substance abuse issues however may be less motivated to do so without the oversight and direction of CSNSW. It may be that he could independently remain offence free however his ability to self-manage in the community in recent times is limited.
Ms Cieplucha reviewed the recent case notes concerning the defendant, and sent an email on 25 March 2021 which relevantly said:
Since the time of the inital assessment on the STABLE-2007 Mr Pearson has experienced a number of changes to his personal circumstances which appear to have impacted positively on his overall risk rating. He has adjusted to residing on the Central Coast with his mother, where he has an increased social support network. I understand that he has been engaged with his cousin who appears to be prosocial and has provided Mr Pearson with some limited casual employment. There is no evidence to suggest he is engaging with antisocial peers. He has not demonstrated overt signs of hostility since the original assessment, is no longer reporting feelings of loneliness that were apparent prior to his move to the Central Coast. I understand from case notes that he has been engaging well with his Community Corrections Officer and EPS therapist and receives support from his mother to assist when he has been stressed, not coping or needing to make decisions. Outside of a few minor deviations appears to his schedule, he appears to be adhering to supervision requirements well and cooperating with supervision. I understand that he has maintained compliance with the Methadone program such that he had reduced his dose and transitioned to a weekly Buvadil injection. His mental health appears to have stabilised and there is no evidence in case notes to suggest a high level of distress or emotional reactivity. I believe he has commenced participating in a community based program (Positive Lifestyles Program) and appears to be benefitting from this.
As a result of this information, Mr Pearson's assessed level of risk appears to have reduced from the high risk category to the moderate risk category. Overall, Mr Pearson's composite risk/needs level, when combining static and dynamic risk factors, now falls in the Above Average Risk level, or Level IVa, warranting a Medium level of supervision. On average, individuals in Level IVa are expected to have roughly twice the rate of recidivism compared to the average individual convicted of a sexually motivated offence.
A Risk Management Report was prepared by Alexandra Crichton and endorsed by Kelli Grabham, the High Risk Offender Applications and Operational Governance Officer, on 7 October 2020. The report noted the assessments that had been carried out by Ms Cieplucha in the RAR, the defendant's current parole conditions, the defendant's behaviour in custody, his willingness to undertake intervention and the programs he had undertaken while in custody. The report also noted the defendant's response to Community Corrections supervision over the years.
The report then set out some recommended conditions based on the defendant's risk factors, risk scenarios and prior offending. The conditions concerned a schedule of movements, accommodation, electronic monitoring, employment and education, non-association, electronic communications and internet access, search and seizure, personal details and appearance, medical intervention and treatment, programs and risk related interventions, and contact with children under 18 years of age.
[9]
Determination
As noted earlier, the defendant consented to the appointment of two independent experts, and indicated that he would not be heard against the making of an ISO. It is, nevertheless, the Court's obligation to come to a determination whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. In order to justify the making of an ESO, the Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
The two index offences contrary to s 61J(1) of the Crimes Act were serious instances of a serious sex offence. The sentencing judge found that the offending was at the upper end of the mid-range. The attack on the victim was one of prolonged violence. The victim was fortunate that she did not sustain grievous bodily harm as a result of the assaults upon her. The matter was seriously aggravated by the fact that, to the defendant's knowledge, the victim was 26 weeks pregnant. Notwithstanding that, the defendant punched and kicked the victim in the stomach, seemingly because he had formed the view that the baby she was carrying was probably not his.
The violence involved the two counts of sexual intercourse when she was not physically able to resist him because of the violence inflicted on her, including choking. The violence only ceased when the victim managed to escape from the defendant whilst in the street, and run to a nearby house where the occupants rang the police.
Nor was this the first time the defendant had engaged in violence towards a person with whom he was in an intimate relationship. In February 1999 he was convicted of assault occasioning actual bodily harm and other offences in relation to his partner. These offences were committed on 1 January 1998.
Later in 1999 he was convicted of using an offensive weapon to prevent lawful detention. That and other offences arose out of an assault on his then girlfriend.
In December 2004 the defendant contravened an ADVO where he threatened and, arguably, assaulted his then partner, for which he was sentenced to five months' imprisonment, suspended on entering into a s 12 bond.
In 2006 the defendant was convicted of two counts of sexual intercourse with a person aged between 14 and 16 years and with assaulting her and occasioning actual bodily harm. For those offences he was sentenced to imprisonment for one year, four months and one week with a non-parole period of nine months.
The RAR determined that the defendant's combined risk rating was 'Well Above Average' risk levels compared with other male sexual offenders when taking into account both static and dynamic risk factors. His risk of violent reoffending was said to be within the high range. The most salient risk areas for sexual violence were hostility to women, problem solving skills and negative emotionality. His highest treatment needs in relation to violent offending were in the areas of violent lifestyle, interpersonal aggression, emotional control, weapon use, substance use, stability of relationships, violence cycle and impulsivity. I accept, as a result of the recent information from Ms Cieplucha, that the defendant's overall risk has reduced, but he still remains within the second-highest category, being Level Iva.
At the present time there appears to be disagreement amongst the psychiatrists as to the defendant's proper diagnosis. However, even on the report most favourable to him, the report of Dr Elliott of 30 October 2019, Dr Elliott considered that he had persisting features of anxiety, and Dr Elliot had concerns that the defendant remained reliant on mirtazapine to manage his anxiety symptoms. Dr Elliot was also concerned with the possibility that he would return to substance abuse, although he had made considerable advances in that area in the past few years. Dr Elliott considered that he should be subject to random urinary drug screening to ensure he remained abstinent from all illicit substances. Such drug screening could not take place if no ESO was in place.
Although it may be accepted that the defendant has been progressing well since his release on parole, the period of time is only for some 16 months in circumstances where he has spent the previous ten years in custody.
All of these matters cause me to reach the view that if the matters alleged in the supporting documentation are proved, that would justify the making of an ESO.
[10]
Conditions
The defendant opposes some of the proposed conditions by the State absolutely, and in other cases provides suggested alternatives. The parties negotiated on the conditions up to the commencement of the hearing, so that by that time only 3 groups of conditions were not agreed.
In State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813, Hoeben CJ at CL said this concerning conditions:
[43] Section 11 of the Act allows the Court to impose such conditions under a supervision order as the Court considers appropriate. This power is constrained by the scope of the Act: Winters v Attorney General of NSW [2008] NSWCA 33 at [19]. Assistance can be drawn from the purpose and statutory objects of the Act. The primary object of the Act, as provided for in s 3(1) is to provide for the extended supervision of such offenders "so as to ensure the safety and protection of the community". Subsection (2) provides that another object of the Act "is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation".
[44] Important principles to be considered in relation to the imposition of conditions are:
(i) having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83];
(ii) in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68];
(iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36];
(iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53].
(v) conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38].
(vi) conditions must not be unjustifiably onerous or punitive, "nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision": State of New South Wales v Bugmy [2017] NSWSC 855.
(vii) conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice": State of New South Wales v Ley Thomas Baker (No 2) at [36].
(viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible (Lynn v State of New South Wales at [129]-[131].
In State of New South Wales v Bugmy [2017] NSWSC 855, Fullerton J said at [89]:
The Court is entitled to expect that that the conditions the plaintiff proposes that Mr Bugmy be subject to are drafted to address what are identified in the evidence as the risk factors to his further violent offending (State of New South Wales v Burns [2014] NSWSC 1014 at [59]). The conditions must not be unjustifiably onerous or simply punitive (see Wilde v State of NSW (2015) 249 A Crim R 65; [2015] NSWCA 28 at [45] citing RA Hulme J in State of New South Wales v Green (Final) [2013] NSWSC 1003). Neither may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision under an extended supervision order. The conditions to be imposed in this case must be at least capable of moderating or minimising the risk of Mr Bugmy inflicting serious violence, in contrast to reducing or minimising the risk of him offending in other ways.
In State of New South Wales v Sturgeon (No 2) [2019] NSWSC 883, Garling J said:
[100] Judges of this Court have for many years drawn attention to the inappropriateness of the State seeking standard or common form conditions in all matters in which an ESO is sought. Such standard or common form conditions do not accord with the relevant constraints to which reference has just been made. The State took such an approach when it first filed the Summons but after the preliminary hearing and as matters were raised, adjusted those conditions. At the start of the final hearing, the State filed a Further Amended Summons which attached the third set of amended conditions which it was seeking.
[101] During the course of final oral submissions, the State's position often changed with respect to particular conditions - counsel would put submissions in support of a particular condition and then, in light of comments made from the Bench or views expressed, would receive instructions not to press for a particular condition or to press for a re-drafted condition; submissions were put which pressed for the imposition of one proposed condition, although counsel conceded that the condition sought was to prohibit some conduct in respect of which there was no risk that the defendant would engage in it.
[102] This approach does not accord with the duty of any party in civil proceedings. Rather, it suggests that the State is seeking to avoid its obligation to seek conditions which relate to the risk posed by the particular defendant, and instead to proceed by asking for all standard conditions as a matter of course regardless of the evidence and their relevance to a defendant.
[103] As Fagan J noted recently in State of NSW v BG (Final) [2019] NSWSC 200 at [39], if conditions are imposed that are stringent and not reasonably specific to reducing the particular risks of re-offending in the community, they give rise to the real prospect that a breach of them, followed by prosecution and imprisonment, would interrupt and impede the liberty of the defendant and their realistic prospects of rehabilitation. Such a consequence would frustrate the secondary object of the HRO Act, which is to encourage a defendant to undertake rehabilitation.
In State of New South Wales v Burns [2014] NSWSC 1014 Beech-Jones J said at [59]:
…Usually it will be necessary for such a condition to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender as a high risk sex offender.
In Wilde v State of New South Wales [2015] NSWCA 28 the Court of Appeal said at [53]:
Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.
[11]
Conditions 5 to 7 - Schedule of movements
The defendant opposes these conditions. The defendant submitted that he has been the subject of scheduling requirements since his release on 5 December 2019. The Offender Integrated Management System (OIMS) case notes show that he has been keeping to his schedules although "struggling with some of the EM scheduling". The defendant submitted that the ongoing requirement for scheduling is oppressive, and counter-productive to his rehabilitation. The defendant's submissions detailed a number of occasions where issues arose about scheduling to submit that the approach being taken on those occasions was oppressive.
The defendant submitted that his pattern of offending and risk profile relates to domestic relationships and not to opportunistic or premeditated attacks. In that way, he submitted that the requirement does not truly mitigate the risk. He submitted further that neither the RAR nor the RMR indicated that the scheduling was a necessary requirement in the interests of community protection.
The State accepted that the defendant has been compliant with his schedule of movements since his release. The State accepted that it is a restriction on the defendant's liberty, but says that the conditions are not addressed to opportunistic or premeditated attacks. The State submitted that the schedule of movements is intended to promote the defendant's engagement in activities which are prosocial, and to help him manage his time. If left to his own devices, the State submitted he may become bored and frustrated, and may engage in inappropriate activity, which might involve antisocial people and drugs. The State submitted that if the defendant progresses to Stage 3 in the monitoring, he will no longer be required to comply with a schedule of movements.
As noted earlier, the RAR said that the most likely scenario for future serious sexual or non-sexual violence would be against an intimate partner, and would involve the defendant experiencing feelings of inadequacy, lack of trust and jealousy, loss of self-control or rejection. The justification by the State for the proposed schedule of movements is to avoid boredom, and to ensure that the defendant's time is spent in prosocial activities, lest he be tempted to resort to illicit drugs.
The defendant has completed courses to assist in his abstinence from drugs. The evidence suggests that he has been successful in staying abstinent from drugs since some minor prison breaches during his present sentence, albeit they occurred some years ago. The risk of a resort to drugs is small.
The defendant has complied well with his scheduling arrangements since his release to parole. It is apparent from some of the incidents recorded in the OIMS case-notes that the strictness with which the existing schedule is being enforced may well be counter-productive, in the sense that the obvious frustration which the defendant feels may result in bad behaviour which may in turn lead to a breach of his conditions. That is certainly not conducive to assisting the rehabilitation of the defendant, and could have the result, by increasing the defendant's anxiety, of putting the community at risk. I note what was said in that regard by Fullerton J in Bugmy at [89] (see [65] above), and by Fagan J in State of NSW v BG (Final) [2019] NSWSC 200 at [39] cited by Garling J in Sturgeon (No 2) (see [66] above).
In addition, his risk level has reduced since the first assessment made by Ms Cieplucha (see [51] above).
In these circumstances, I consider that the limited time the defendant will be on an ISO is an appropriate time to give the defendant the opportunity to demonstrate that he is compliant generally with his conditions, not because he is required to be, but because he wants to be. The defendant has a strong incentive to do so because he would know that at any time the ISO is renewed, and at the time any ESO is put in place (quite apart from the power in s 19 of the CHROA), the Court could impose the conditions concerned with a schedule of movements.
Proposed conditions 5 to 7 should be omitted.
[12]
Condition 12
The condition originally proposed by the State said this:
The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.
The defendant submitted that this was unworkable because he was living at his mother's premises and did not have the right to determine who should enter and stay at the premises.
As a result, the State proposes the following modified condition:
The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not invite any person to stay overnight at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.
The defendant submitted that this condition did not form part of the parole conditions, there had been no problem from visitors visiting or staying at the defendant's residence, and that the condition did not deal with the identified risk, which was sexual violence against an intimate partner.
In my opinion, the State's modified condition is appropriate. Given the most likely scenario of risk, a person who may stay overnight with the defendant is not conceptually far removed from a person who might be an intimate partner of longer-standing. An appropriate dichotomy is between a random, impulsive attack on a stranger (here, not a risk), and sexual violence against a woman that is known to the defendant (here, the most likely risk scenario), whether any sexual relationship is of longer or shorter duration.
The State's modified condition should be included.
[13]
Condition 51
The State proposes the following condition:
The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.
The defendant submitted that the condition is too broad and is not properly tailored to mitigate the defendant's specific risk profile. He submitted that his physical health is irrelevant to previous offending and the risk of future offending. The key issues, the defendant submitted, are substance abuse and associated mental health issues, and the condition should be restricted to those matters.
The defendant proposed that the condition should read:
The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults if the consultation relates to his mental health or alcohol and/or substance use.
The defendant relied upon what was said by Hoeben CJ at CL in Wilkinson (Preliminary) at [97] to [99].
The State submitted that the defendant has significant physical health problems which have caused him stress and anxiety. The State submitted that if the defendant experiences stress about his health, that presents as a potential risk because of the defendant's past history of adopting poor coping mechanisms, including using drugs and resorting to interpersonal violence.
The defendant's proposal assumes that there is a clear demarcation between physical and mental problems. There is force in the State's submission that the defendant's physical health impacts upon his anxiety condition, which may in turn manifest itself in poor coping mechanisms. It does not seem that any such link between the offender's mental health issues and physical ailments (if any) was identified in Wilkinson. Each case must, of course, be decided on its own facts. I am satisfied there is such a link in the present case.
The condition as proposed by the plaintiff should be included.
[14]
Conclusion
I make the following orders:
Order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):
a. That two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) be appointed to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court;
b. That the defendant attend those examinations.
Order pursuant to ss. 10A and 10C(1) of the Act, that the defendant be subject to an interim supervision order commencing from midnight on 31 March 2021 for a period of 28 days ("the interim supervision order").
Order pursuant to s. 11 of the Act, the defendant is, for the period of the interim supervision order, to comply with the conditions set out in the Schedule to this judgment.
Access to the Supreme 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 of access.
The matter is listed before Bellew J for directions at 9:30am on 8 April 2021.
SCHEDULE OF CONDITIONS OF SUPERVISION
KEITH PEARSON
Departmental Supervising Officer (DSO)
Corrective Services NSW (CSNSW)
In these conditions:
"CSNSW" means Corrective Services NSW.
"Commissioner" means Commissioner for Corrective Services
"Defendant" means Keith Pearson, otherwise known as Keith Jon Adams, the defendant in these proceedings and the subject of the order.
"Electronic Identity" means each of the following:
(a) an email address,
(b) a user name or other identity allowing access to an instant messaging service,
(c) a user name or other identity allowing access to a chat room or social media on the internet,
(d) any other user name or other identity allowing access to the internet or an electronic communication service.
"DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.
"Material" includes:
1. any written or printed material;
2. any picture, painting or drawing;
3. any carving, sculpture, statue or figure;
4. any photograph, film, video recording or other object or thing from which an image may be reproduced;
5. any computer data or the computer record or system containing the data; and
6. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.
"NSWPF" means NSW Police Force.
"Associate" includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication).
"Search" includes:
1. A garment search, being 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; and
2. A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.
Part A: Reporting and Monitoring Obligations
Monitoring and Reporting
The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.
Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.
The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.
Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.
Part B: Accommodation
The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements.
The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant.
The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.
The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not invite any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.
Part C: Place and travel restrictions
The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.
The defendant must not leave New South Wales without the approval of the Commissioner.
The defendant must comply with any reasonable direction from his DSO not to go to a particular place.
Without limiting condition 12 above, the defendant must not go to any of the following without the prior approval of a DSO:
a. Amusement parlours, amusement parks and theme parks;
b. Cinemas;
c. Libraries and museums;
d. Pools, playing fields and sporting facilities;
e. Concerts, theatre shows, movies, events and activities intended for the entertainment of children;
f. Residences where the defendant knows that persons aged under 18 years ordinarily reside; and
g. Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies).
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, without the prior approval of a DSO.
Part D: Employment, finance and education
The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.
The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.
The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his or her next interview with a DSO.
The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO.
Part E: Drugs and alcohol
The defendant must not use prohibited drugs, or abuse drugs unlawfully obtained.
The defendant must not possess or consume alcohol without the prior approval of a DSO.
The defendant must submit to drug and alcohol testing.
The defendant must not enter any licensed premises including hotels, bars, racecourses and licensed clubs, but excluding cafes and restaurants, without the prior approval of a DSO.
The defendant must attend and participate in programs and courses for drug and alcohol rehabilitation as reasonably directed by a DSO and must not discharge himself from such programs and courses without prior approval of a DSO.
Part F: Non-association
Association with Children
The defendant must not associate with anyone whom he knows or reasonably should know is under 18, other than incidental contact in a public place; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO.
Associations with Others (not children)
The defendant must not associate with any person or persons specified by a DSO.
Without limiting condition 25, the defendant must not associate with any person held in custody without prior approval of a DSO.
The defendant must agree to a DSO disclosing his criminal history to another person, if the disclosure is reasonably necessary.
Disclosure under this condition is only reasonably necessary if the DSO believes on reasonable grounds that the disclosure is necessary to ameliorate the defendant's risk of further sexual offending.
If the defendant's DSO is to make such a disclosure, he must give the defendant (within a reasonable timeframe as agreed between the DSO and the defendant) the opportunity to tell the other person.
The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation
Part G: Weapons
The defendant must not possess or use any of the following, without a DSO's prior approval:
a. any implement made or adapted for use for causing injury to a person; or
b. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.
Part H: Access to the internet and other electronic communication
The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information.
The defendant must not use any alias, electronic identity, log-in name, name other than "Keith Pearson" or "Keith Jon Adams" any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.
The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.
The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.
The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.
The defendant must not use any coded or encrypted messaging application or service.
The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant's electronic devices or accounts as a result of a search or a remote inspection.
The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services.
The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.
The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.
The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.
Part I: Search and seizure
The defendant must submit to the search of his person and residence and the search and seizure of his vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under his control.
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 J: Access to pornographic, violent and classified material
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 and Restricted Category 1, or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence.
Part K: Personal details and appearance
The defendant must not change his name from "Keith Jon Adams" or use any name other than "Keith Jon Adams" or "Keith Jon Pearson" without notifying a DSO.
The defendant must not significantly change his appearance without the approval of a DSO.
The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.
If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.
Part L: Medical intervention and treatment
The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.
The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.
The defendant must attend, upon the direction of a DSO, any therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.
The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.
The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.
The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.
The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.
The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him. Before disclosing his criminal history, a DSO must first inform the defendant of their intention to disclose his criminal history and the reason for the disclosure.
[15]
Amendments
30 March 2021 - Typographical error in [92].
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: 30 March 2021