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[2012] NSWSC 308
Supreme Court of NSW
2011-09-09
Adams J, McCallum J
Original judgment source is linked above.
Judgment Introduction 1The State of New South Wales applied for an extended supervision order in respect of the defendant under s 9(1) of the Crimes (Serious Sex Offenders) Act 2006 (the Act) for a period of four years. The original Summons was filed in the Court on 30 May 2011 and after several amendments now takes the form of a Further Amended Summons filed in Court with leave on 5 September 2011. At preliminary hearing of the application before McCallum J on 23 June 2011 in accordance with s 7(3) of the Act her Honour made orders under s 7(4) "appointing two experts to conduct psychiatric examinations of the defendant and furnish reports of those examinations to the Court." 2At the time of the hearing before me the defendant was on parole, having been sentenced by the District Court on 8 May 2007 to 5 years imprisonment commencing on 12 September 2006 and concluding on 11 September 2011 with a non-parole period of 3 years on one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. 3On 9 September 2011 I made the extended supervision order, although only for three years, in respect of the defendant, who did not oppose it. There was some controversy about some of the conditions sought by the plaintiff, which was resolved after discussion sufficiently appearing in the transcript. Although, in effect, the defendant consented to the supervision order, the Court itself is required to consider certain matters specified in the Act and be independently satisfied that the statutory requirements are met. I was so satisfied after perusing the material tendered in the proceedings and, hence, decided that the order should be made. Having regard to the timeframe, it was not possible to provide reasons at the time and I informed the parties that I would do so in due course. These are those reasons. The statutory criteria 4Section 9(2) of the Act prescribes the test which must be applied by this Court when determining whether or not to make a an extended supervision order under s9(1)(a). Section 9(3) lists the matters which the Court must consider in determining whether or not to make an extended supervision order. Accordingly, before considering whether to make the application it is necessary to have regard to criteria established in s9(3). Section 9(3) criteria 5The following are relevant in the defendant's case. Section 9(3)(h) - criminal history 6 On 10 May 1988 the defendant was sentenced in the District Court to an effective term of 16 years imprisonment commencing on 18 October 1987 with a non-parole period of 7½ years in respect of eight counts, comprising four counts of sexual intercourse without consent in respect of two separate victims, two of break and enter with intent to commit a felony, one of malicious wounding and one of armed robbery, committed against female victims on 28 June, 7 July and 6 October 1987. On 15 September 1995 the defendant was sentenced to a further aggregate term of imprisonment of nine years commencing on 28 February 1995, with a fixed term of 3 years concluding on 27 February 1998 in respect of one count of assault occasioning actual bodily harm and a minimum term of six years on each of three counts of aggravated sexual intercourse without consent to be served concurrently and an additional term of three years commencing on 28 February 2001. On 8 May 2007 the defendant was sentenced to a further term of five years imprisonment, backdated to commence on 12 September 2006, with a non-parole period of three years on one count of sexual intercourse without consent. All told, the defendant has been convicted of, inter alia, 5 counts of sexual intercourse without consent and 3 counts of aggravated sexual intercourse without consent against 4 female victims committed between June 1987 and August 2005. The defendant entered pleas of guilty to all of the offences for which he was sentenced. 7Brief details of the offences for which the defendant has been sentenced are as follows. While a private soldier in the Australian Army and living at the East Hills army barracks, the defendant, then aged 22, drove to the female army personnel barracks at Moorebank in the early hours of the morning of 28 June 1987 having consumed a quantity of wine. He gained access to the room occupied by a 21 year old female who was asleep. He covered her mouth with his hand and placed a knife against her throat. She woke and, in trying to push the knife, away cut her thumb. The defendant threatened her with the knife and thereafter forced her to engage first in oral and then vaginal intercourse, finally binding her wrists and ankles with electrical tape he had brought with him. 8In the early hours of 7 July 1987 the defendant, after having consumed a quantity of beer and smoked marijuana, returned to the female barracks at Moorebank and, in possession of a knife, gained access to the room of a 21 year old female. The victim, who woke to find the defendant sitting on her bed, pushed out at the defendant and cut herself. After a brief exchange in which the defendant said to the victim "I am going to undress", he touched the victim's vaginal area and the two struggled, the victim attempting to knee the defendant in the groin. During the struggle the two fell to the floor and the victim screamed, alerting another soldier who entered the room. As she did so, the defendant regained his footing and ran past her, subsequently cutting her arm when both women sought to restrain the defendant. 9On the morning of 6 October 1987 the defendant drove to Kings Cross and engaged the services of a female prostitute aged 17 years. The defendant drove her to a location in Potts Point where he produced a knife and demanded that she perform oral intercourse upon him, which she did. At the direction of the defendant, who was still holding the knife, she subsequently undressed and the defendant had vaginal intercourse with her. He then demanded money and, upon receiving forty dollars, he threw all of her clothing from the car, excepting a grey leather coat which she was wearing, ejected her from the car and drove off. 10Whilst at liberty on parole for the offences committed in 1987 the defendant, early on the morning of 28 February 1995, approached a 34-year-old female prostitute on Canterbury Road and offered her money in exchange for sex. She entered the defendant's car and the pair drove to an industrial estate in Riverwood where he produced a knife and stabbed the victim, resulting in a small cut to her right hand. The defendant threatened her with the knife and directed her to undress and perform oral sex on him. The defendant digitally penetrated the victim's vagina and had penile intercourse with her, after which she managed to escape from his car and flag down a police vehicle which pursued the defendant. He was arrested a short time later. 11Early on the morning of 21 August 2005, some 18 months after the expiration of his sentence for the offences committed in 1995, the defendant stopped his vehicle next to the victim, a 20 year old female who was working as a prostitute, and offered her a lift, which she accepted. Whilst en route the victim agreed to have sex with the defendant for $70 and she directed him to a factory car park where, after placing a condom on the defendant's penis, she performed oral sex. The pair then attempted to have consensual penile vaginal intercourse, however the victim was unable to relax. The defendant then removed the condom despite objections. The victim's offer to return the money was rejected by the defendant, who then had penile vaginal intercourse with the victim and ejaculated. He unlocked the car doors, she alighted and he drove off. The victim flagged down a police vehicle and was taken to a nearby hospital where she was examined. The semen tested matched the defendant's DNA. Section 9(3)(h1) - views of the sentencing court 12 In sentencing the defendant in respect of his last conviction, Flannery DCJ said "[i]t is clear from the [defendant's] criminal history that he has a serious psycho-sexual problem. He has been incarcerated as a result of it for approximately seventeen out of the last twenty years." Her Honour went on to say - It appears that, although the [defendant] was eligible for release at the expiration of his six year minimum term in respect of the 1995 matters, he was not in fact released until after he had served the total sentence of nine years. The result was that he had no supervision at all after what was effectively a seventeen year sentence. One cannot help but think if he had been supervised, we might not be here today. Section 9(3)(f) - compliance with obligations while on parole 13The defendant committed the offences on 28 February 1995, some two years and nine months prior to the expiry of his parole order on 15 November 1995, having been released on parole on 16 July 1992 in respect of the sentences imposed in May 1988. Section 9(3)(e) - previous treatment or rehabilitation programs 14A Department of Corrective Services Risk Assessment Report dated 7 April 2011 (DCS Report) lists the defendant's history of psychological treatment and involvement in rehabilitation programs. While in custody in 1992 the defendant participated in eight individual sessions with a Department of Corrective Services psychologist regarding his sexual offences. Between 1996 and 1998 he participated in individual sessions with two Departmental psychologists. The risk assessment report indicates that these sessions were directed to addressing "victim empathy and understanding of offending." 15Between December 1998 and 16 February 1999 the defendant attended 12 sessions of the Sex offender Psycho-Education program (SOPE). SOPE is not considered a treatment program as it was designed to prepare offenders for undertaking therapeutic programs such as the CUBIT. The defendant participated in CUBIT between February 1999 and February 2000. The report on his progress found that - "[w]hile [the defendant] has taken responsibility for his sexual offending behaviour, recognised the elements that led to his decision to offend and made improvements in expressing his feeling and dealing with them, he still needs to devote effort to managing uncomfortable emotional states by himself...[the defendant] also needs to work on challenging his distorted views about relationships and associated self-esteem issues." The report also found that his "risk of sexual reoffending is in the high range" and that his "risk for sexual recidivism is still viewed as high." 16Between March and July 2000 the defendant participated in the maintenance program for sex offenders while at the Kirkconnell Correctional Centre, the purpose of which was to "help the [defendant] maintain and consolidate the treatment gains...made in CUBIT". A report prepared by the Clinical Co-ordinator found that, despite undertaking the program the defendant "failed to address the issues raised in [the CUBIT] report as requiring further work ... [and concludes] that the his "risk of reoffending remains high ... [and] could not be managed in the community". 17The defendant undertook CUBIT between 20 March and 19 November 2009 for a second time while in custody for the offence for which he was sentenced on 8 May 2007. His participation in the program was described as "varied", fluctuating between appearing "motivated to engage in treatment" and "when experiencing negative mood states...[appearing]...to experience difficulty challenging these unhelpful thoughts and participating in group processes." The defendant "acknowledged and took responsibility for his sexual offences and attempted to explore issues directly relevant to his offending including deviant sexual fantasies and negative attitudes towards women" however "[i]t appeared that [he] experienced difficulty identifying personal decisions in his life that contributed to his unhealthy lifestyle and his current offences and, at times, externalised blame for problematic behaviours and life stressors." The report concluded (inter alia) that the defendant's "level of understanding of the nature of his offending was sound, as evidenced by his ability to identify the salient factors contributing to his sexual offending behaviour" although "at times, [he] appeared to continue experiencing some difficulties intervening in problem behaviours..." and that he "should be encouraged to maintain contact with his family, engage in open communication and explore appropriate avenues in which he can develop prosocial adult friendships". 18Following his completion of CUBIT the defendant participated in the Custodial Maintenance Program between December 2009 and September 2010 and then, commencing in November 2010, the Community Maintenance program which he commenced in November 2010. The case notes indicated that he "has participated adequately in group". He denied the ongoing experience of deviant sexual thoughts, but volunteered that his main current risk factors were "bottling up his emotions" and "not talking about issues ... However, there is a lack of depth in [his] participation and he will be encouraged to provide more open insight into his inner thoughts as he adjusts to the new group". Section 9(3)(b) - reports from court-appointed psychiatrists 19On 23 June 2011 MaCallum J made orders appointing Dr Samson Roberts and Dr Andrew Ellis, Forensic Psychiatrists, to conduct separate psychiatric examinations of the defendant pursuant to s 7(4) of the Act. They interviewed the defendant on 15 July and 1 August 2011 and produced reports dated 5 and 6 August 2011 respectively, which were tendered before me. In order to avoid unnecessary repetition it is convenient to briefly summarise the factual and historical information provided by both doctors, identifying any material divergences, and then discuss their individual findings. 20At the time of the interviews, the defendant was 46 years of age, single, unemployed and receiving social security payments. He resided at a Community Offender Support Program Facility in Western Sydney and is subject to electronic and GPS monitoring. He grew up in Newcastle as the eldest of three children and, upon completing his High School Certificate, undertook an apprenticeship in pattern making which he completed. He was unable to find work, was employed as a paper salesman and joined the Army Reserve before enlisting in the Army at age 22. The descriptions offered to both doctors concerning his childhood were consistent. He described his mother as "pretty strict" and "authoritarian" (giving examples of her extreme and humiliating treatment of him) and his father as "a quiet distant man" and his relationship with both as being "distant". Both doctors noted that while the defendant denied being the subject of sexual abuse as a child he had previously disclosed being sexually abused by his father. 21The accounts given to both doctors do not disclose any illicit drug or alcohol dependency, recording that, despite drinking heavily in his early twenties and experimenting with cannabis and speed, he is abstinent from both alcohol and illicit drugs. 22The defendant gave consistent histories about his early sexual experiences. While he has had a number of sexual partners, Dr Roberts noted that the longest sexual relationship lasted a period of 2 years. Dr Roberts also noted that in respect of his consensual sexual relationships the defendant "stated that there was no violence involved nor did he consider that there was any sexual conduct of an aberrant nature". 23He has a history of depression, which he informed Dr Roberts he first experienced in his early teens, although he was not diagnosed as suffering from the illness until 1995. Between 1987 and 1995 he made a number of attempts at suicide. Between 1995 and 2003 he was prescribed medication for his depression, which Dr Roberts noted was effective in stabilising his mood. Despite being weened off this medication in 2003 the defendant has recommenced taking antidepressant medication as prescribed by his general practitioner and is content with the treatment of his "depressive condition". The defendant is also currently taking a number of other medications including Androcur, an antilibidinal medication. The defendant suffers from a number of minor medical conditions for which he is being treated or partially treated. He has reported side effects from the Androcur.
Findings of Dr Ellis 24Dr Ellis conducted a mental state examination on the defendant. He expressed the view that the defendant satisfied the individual diagnostic criteria for the paraphilia sexual sadism, citing "a decades long history of sexual urges, fantasy and masturbation to topics of physical and psychological pain or humiliation of others". He also expressed the view that the defendant would satisfy the criteria for a major depressive and avoidant personality disorders, the former being characterised by "disturbance of sleep, appetite, energy, concentration, a low mood and typical depressive cognitions", matters which he said were "exacerbated by his stressful current predicament". Dr Ellis noted that at present he is "subject to stress of public exposure, loss of his job and partner" and that his "current circumstances limit his ability to function over and above his personality difficulties. He has difficulty forming and maintaining relationships, and sustaining work or study". 25Using the Static-99R instrument for assessment of risk, Dr Ellis found the defendant to be "in the high risk category relative to other male sexual offenders...the rates of sexual recidivism for sexual offenders within the normative samples who had the same total score as [the defendant] were between 14.7-31.2 percent over five years, and 27.6-41.9 percent over ten years. The recidivism rate of individuals convicted/charged with sexual offences with the same score as [the defendant] would be expected to be 2.91 times higher than the "typical sexual offender". In addition, he noted that the STATIC-99R "takes into account the research showing low rates of sexual recidivism for persons over the age of 40. This research reflects the general decrease in aggression and sexual arousal with age, and the general maturing of personality", concluding that the defendant "has yet to demonstrate that there has been a decrease in these factors in his personal case, although I note he has not had a significant opportunity to do so, being incarcerated and under supervision". 26 So far as any personality factors are concerned, Dr Ellis observed that the defendant had not been diagnosed with an antisocial personality disorder but that he presented with "personality dysfunction, in terms of an avoidant personality style" and that while this may interfere with the treatment of the defendant, it is "not as likely ... as if any antisocial orientation [were] present." 27Dr Ellis noted that the defendant has shown a "propensity" to mood instability, in particular depressed mood and that relapses to depressed mood have been "associated with the disinhibition of [the defendant's] sexually deviant urges." He also noted that substance use had figured in the defendants offending, although more so in earlier offences, and that while substance abuse is not a major factor in re-offending, it "serves to disinhibit underlying sexual impulses". In so far as treatment of the defendant is concerned, Dr Ellis stated: "[the defendant] has been recorded as improving in his understanding of behaviour by his treating clinicians, but has been regarded as displaying only an intellectual understanding and requiring further intervention... At this assessment he displayed minimization of personal responsibility for offences, and a desire to avoid scrutiny contrasting with emphatic statements that he would not reoffend. This may be due to ingrained beliefs and attitudes resulting from his sexual arousal pattern, or an inflexible personality style. These attitudes could contribute to ongoing risk by influencing behaviour in at risk situations, (sic) by interfering with treatment progress." 28Dr Ellis added - "In considering actuarial and clinical parameters in the absence of any treatment or supervision, [the defendant] would fall into a group of persons with a risk of reoffending that is high, and greater than a theoretical average offender. Treatment and supervision would likely reduce this risk."
Findings of Dr Roberts 29Dr Roberts, consistently with Dr Ellis, found that the defendant meets the DSM-IV TR diagnostic criteria for sexual sadism and a major depressive disorder. He said that the defendant's sexual sadism was "characterised by recurrent sexual arousal in the context of fantasies and acts of violence" and that it can be "moderated through treatment". Dr Roberts concluded that the Static-99R has been "moderated" by steps undertaken by the defendant which indicate that the he has "developed an insight into risk factors associated with his offending behaviour". Dr Roberts identified those factors as including the defendant's seeking antilibidinal treatment, participation in psychological treatment, gaining full time employment (a matter which appears to be inconsistent with the information provided to Dr Ellis), continuing abstinence from alcohol and illicit drug use and participation in sex offender programs. Dr Roberts therefore concluded that "[the defendant] represents a person of moderate risk of committing a further serious sex offence in the event that he is not subject to an Extended Supervision Order of the nature proposed."
Section 9(3)(c) and (i) - assessment as to likelihood of the defendant committing further serious sex offences 30In addition to the reports of Dr Ellis and Dr Roberts, I have before me the DCS Report prepared by Mr Sheehan, psychologist. 31The Report includes an assessment of the defendant's risk of re-offending. In assessing the defendant Mr Sheehan measured static and dynamic risk factors to conclude that "[t]he overall totality of evidence suggests that [the defendant] remains in the high risk category of sexual offending relative to other adult male offenders". While noting the limitations in the predictive reliability of the Static-99R and like systems Mr Sheehan concluded that the defendant's score of 6 on the applicable range placed him "in the high risk category relative to other male sexual offenders". 32A number of other psychologists who have made assessments of the defendant have referred, in different ways, to the high risk of reoffending presented by the defendant. 33As mentioned above, the defendant has been taking Androcur medication. He commenced in custody and has continued daily while on parole. 34As has been mentioned when dealing with the circumstances of the offences, there is some, though weak, evidence that alcohol was relevant. I note that Dr Roberts supports a condition recommending abstinence from alcoohol and illicit drugs, given their disinhibiting effect. Section 9(3)(a) - safety of the community The defendant has a history of sexual assaults associated with deliberate sadistic violence. In all but the last occasion, the defendant used a knife to force his victim to submit. Some offences were planned to a greater or lesser extent. The last offence appears to have been spontaneous. His psychological makeup plainly disposes him to commit these offences and makes him a real danger if he is not closely supervised. He has complied with his parole conditions, which are similar to those presently proposed for continuing supervision. Conclusion 35Under s 9(1) of the Act, the court is empowered to determine an application for an extended supervision order by either making an order or dismissing the application. Independently of the consent of the defendant, I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if "he... is not kept under supervision". The defendant disputed the necessity for some of the orders proposed by the applicant. I have made some minor adjustments to the language to give greater specificity. Otherwise, except as to the period of supervision, the orders are as sought. 36The applicant sought four year's supervision. It is self evident that the time which is needed before supervision can be relaxed or even ended is unknown but must be significant. There is no real basis for assessing what this period will be as a matter of reason based on evidence. I would accept that there is every likelihood that it will be at least four years. However, having regard to the serious character of a supervision order and the extent to which its terms impinge on the defendant's right to be at liberty, it seems to me that the Court's supervisory function requires the matter to be returned to the Court on the expiration of three years for a fresh consideration to be given to continuing or varying the order. I am aware, of course, that the defendant can apply for a variation or even termination of the order at any time. Moreover, regular reports of his functioning and progress are required to be made. At the same time, this process cannot be allowed to assume the appearance of a bureaucratic exercise. Interference with liberty is a very serious matter and, fundamentally, a matter for the independent courts to determine. To my mind, this principle is best vindicated - where the question of the necessity for the order is at all events essentially speculative - by requiring the applicant to justify continuance of the order to a Court after three years has elapsed. 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: 10 April 2012
State of New South Wales
Reed