State of New South Wales v Richard John Darrego

Judgment 1By summons filed on 28 January 2011, the State of New South Wales seeks an order pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 that Richard Darrego be subject to an extended supervision order. 2Section 7(3) of the Act requires the Court to conduct a preliminary hearing into the application. The further course of the proceedings is mandated by the outcome of that inquiry. Section 7(4) provides that if the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Court must make orders appointing two experts, either psychiatrists or psychologists as specified in the section, to conduct separate examinations of the offender and to furnish reports to the Court on the results of those examinations. The Court must also in that event make an order directing the offender to attend those examinations. If the Court is not satisfied in the terms of s 7(4), the Court must dismiss the application pursuant to s 7(5) of the Act. 3The preliminary hearing in the present application was conducted by me on 15 March 2011. At the outset of the hearing it was conceded on behalf of the defendant that the Court could be satisfied in terms of s 7(4) on the strength of the supporting documentation served by the plaintiff. Plainly, however, such a concession does not obviate the need for the Court to address the statutory test. If authority is needed for that proposition, it may be found in a series of decisions of this Court in Attorney General for the State of New South Wales v Hayter [2007] NSWSC 983 at [4] per Price J; State of New South Wales v Manners [2008] NSWSC 1242 at [4] per Johnson J; State of New South Wales v Thomas ( Preliminary) [2011] NSWSC 118 at [10] per RA Hulme J. 4The Court's task under s 7(4) is informed by s 9(3), which is the source of the Court's power to make an extended supervision order. Subsection 9(2) provides that an extended supervision order may be made if, and only if, the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. In determining whether or not to make an extended supervision order, the Court must have regard to a series of matters identified in s 9(3) in addition to any other matter the Court considers relevant. 5The test as formulated in s 9(2) is a new test introduced by the Crimes (Serious Sex Offenders) Amendment Act 2010, which took effect from 7 December 2010. The previous formulation of the test required to be addressed in determining whether to exercise the power to make an extended supervision order (and other powers under the Act) was expressed in terms of whether the offender was "likely" to commit an offence of the specified kind. The Court of Appeal had held in Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327 that in order to be satisfied in those terms, the Court was not required to be satisfied that it was more likely than not that such an offence would be committed. In other words, the test did not require a degree of probability exceeding fifty per cent (at [88] to [90] per Giles and Ipp JJA; Mason P disagreeing at [8] to [18]). The principle there accepted by the majority is now reflected in s 9(2A), which was introduced as part of the amendments made last year to which I have referred. However, it remains necessary to consider the content of the test as newly formulated in s 9(2). 6So far as the parties have ascertained, the only consideration of the new formulation is in a decision of Justice R A Hulme in State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118. In that case his Honour expressly noted at [21] that, for the purpose of a preliminary hearing and in circumstances where, as here, the orders were not opposed, his Honour's conclusion as to the proper construction of the new section was a provisional view on his Honour's part. 7It was urged upon R A Hulme J that the phrase "unacceptable risk" meant a risk "which does not ensure adequate protection of the community." After noting the objects of the Act set out in s 3, his Honour concluded (at [20]) that the test in s 9(2) would be satisfied: "if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made". 8For my part, I am concerned that a formulation in those terms puts a gloss on the precise words of the test stated in the section, which does not require, in terms, that protection of the community be "ensured" (although that is an object of the Act). The test in s 9(2) turns on the Court's assessment of the risk posed by the offender of committing a serious sex offence if unsupervised and the Court's judgment as to whether that is an unacceptable risk. 9Since this is also a preliminary hearing, I indicate that I do not intend to express any final view as to the proper construction of the new test any more than R A Hulme J did in Thomas . Nonetheless, it seems to me that the Court's approach to the present task might be informed by the jurisprudence in the field of medical negligence proceedings as to the obligation of a medical practitioner to warn a patient of a material risk inherent in proposed treatment. In that context, there is a useful discussion of the notion of risk in the judgment of Gummow J in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at 453 to 456, [60] to [69]. 10Gummow J emphasised (at [69]) the importance, as a first task, of defining the risk in question. His Honour explained the need to consider the circumstances in which (in that context) the injury could occur, the likelihood of the injury occurring and the extent or severity of the potential injury if it does occur. Whilst those matters were plainly being discussed in a different context, they provide some guidance in the present context. It seems to me that in approaching the Court's task under s 7(4), it may be helpful to analyse the risk posed by the offender of commission of a serious sex offence in the same way. 11It may be preferable not to dilate upon the circumstances that would satisfy the statutory test, even in terms that mirror the language adopted in the statement of the objects of the Act. The task for the Court is to form a judgment after considering the relevant risk as to whether that risk is unacceptable. 12Against those propositions I turn to consider the State's application in the present case. 13It may be observed that there is no issue that the Court's jurisdiction to make an order has properly been invoked. The threshold requirements for the making of an application are contained in s 6 of the Act. In particular, the defendant is a "sex offender" within the meaning of s 4 of the Act, as he has in the past been sentenced to imprisonment following his conviction for a "serious sex offence" as defined in s 5 of the Act, being the offence of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900. Further, as required by s 6(1) of the Act, at the time the application was filed, the defendant was in custody serving a sentence of imprisonment for a serious sex offence, or an offence of a sexual nature, being the offence of aggravated indecent assault to which I have already referred. Finally, the application was brought within six months before the conclusion of the defendant's current custody or supervision as required by s 6(2) of the Act. 14The reference in s 7(4) of the Act to "the matters alleged in the supporting documentation" is a reference to the documentation which is required to be provided in support of an application in accordance with s 6(3) of the Act. That section provides that an application must be supported by documentation addressing each of the matters referred to in s 9(3) which, as I have already noted, is the section that contains a list of mandatory considerations to be taken into account by the Court. Separately, the application must include a report by a qualified psychiatrist, psychologist or registered medical practitioner assessing the likelihood of the offender committing a further serious sex offence. It is convenient first to deal with the second of those documents which, in the present case, consists of the report of a psychologist, Mr Patrick Sheehan. 15As a preliminary matter, I should note that Mr Sheehan's report wrongly stated that Mr Darrego had been convicted of sexual offences against a total of two male children and three female children. Mr Sheehan subsequently corrected that statement. The correct position is that Mr Darrego has convictions for sexual offences against only one male child victim. Mr Sheehan stated however that this correction did not cause him to alter any of the views expressed in his report. 16Mr Sheehan provided an executive summary of his report in the following terms: "Mr Darrego is a sixty year old male who has been convicted on three separate occasions of sexual offences against children. There are two male victims aged between five and six, and three female victims aged between four and eight years. Mr Darrego has an extensive history of non-sexual crime. Mr Darrego completed an intensive sex offender treatment program in 2001 but subsequently sexually re-offended after the expiry of that sentence. He has recently undertaken that program for a second time, attracting a generally positive treatment report. He is assessed as a high risk of sexually re-offending relative to other male sex offenders. The combination of an entrenched deviant sexual interest in children, poor emotional management and general anti-sociality have predisposed Mr Darrego to sexual offending throughout his adult life and will require community supervision and support to transfer his treatment gains into his community life in a way that might generate confidence in mitigating future risk." 17The contents of Mr Sheehan's report bear out that summary. The report contains an overview of the offender's sexual offending history and general criminality, which describes the offences on his criminal record. 18The report also contains a consideration of a prior psychiatric diagnosis in respect of Mr Darrego. In that respect, Mr Sheehan noted that whilst there is no compelling evidence that Mr Darrego has a history of major mental illness, there is a report from Justice Health which refers to an identified early history of sexualisation, hyper-sexuality and subsequent development of multiple paraphilias in Mr Darrego including voyeurism, fetishism and paedophilia. Mr Sheehan states that he agrees with the opinions expressed in that earlier report. He notes that Mr Darrego does meet the diagnostic criteria for paedophilia and has an enduring and recurrent intense sexual interest towards children, particularly female. 19Mr Sheehan expressed the opinion that there is also sufficient evidence to indicate in Mr Darrego the presence of anti-social personality disorder. 20Separately, the report records a history of alcohol use which Mr Sheehan states "could be described as problematic." The particular significance of that history is that it has been identified as a contributing risk factor in assessing the prospect of his re-offending in the context of serious sex offences. 21An important consideration in Mr Sheehan's report is his analysis of Mr Darrego's attitude to risk and treatment. As noted in the executive summary, Mr Darrego re-offended after undertaking the CUBIT program and subsequently undertook that program again. 22Mr Sheehan noted that during previous sentences of imprisonment, Mr Darrego was known to equivocate between acknowledging his sexual offending behaviour and maintaining a position of denying his sexual offences, on occasions blaming his convictions on victimisation and inadequate legal processes. Mr Sheehan noted that Mr Darrego made some steps towards a more responsible attitude during his experience in a sex offender treatment program in 2001, but appeared to reflect a more proactive stance during his more recent participation in that program in 2009. Significantly, however, Mr Sheehan observed that Mr Darrego: "Still experiences emotional difficulty discussing his offending history, mostly in terms of shame and embarrassment. His effective discomfort is expressed by anger, hostility and a sense of being unfairly persecuted. Understandably, he would prefer not to think about it. However, he will need to work on being able to withstand these feelings if he is to maintain enduring vigilance in managing his risk of sexually re-offending." 23Mr Sheehan's report concludes with a helpful analysis of the nature of the risk which this Court must consider. He describes a series of scenarios which might contribute to a lapse into offending behaviour, which he describes as cumulative. Those risk factors include circumstances such as resuming the consumption of alcohol, having insecure relationships with others, placing himself in situations where he will have access to young children, coping with uncomfortable emotional states by becoming angry, blaming and holding others responsible for his situation, and discontinuing his anti-libidinal medication and returning to deviant sexual fantasy. Concerningly however, Mr Sheehan states: "I would qualify this by adding that given the intensity of Mr Darrego's deviant arousal under some circumstances, it may be that the presence of arousal and the availability of a child may be sufficient to trigger an offence under circumstances when Mr Darrego is experiencing intense and overwhelming arousal. Were he to re-offend, it would most likely be against a female or male under ten years and would most likely involve sexual touching, simulated intercourse, with the possibility of oral sex. There would likely be some brief grooming behaviour present such as the provision of gifts, but the progression to sexual contact may unfold quickly. The presence of violence or aggressive force would be unlikely." 24I should briefly refer to the risk assessment conducted by Mr Sheehan by reference to the static test known as the Static-99. The limitations of such testing are well-recognised. Mr Sheehan noted that on a previous assessment under that test, Mr Darrego had scored eight, which placed him in the high risk category in terms of what are known as static variables. Presently his score according to that instrument is five, which places him in the moderate-high risk category. However, as explained by Mr Sheehan, the reason for the difference is that a newly introduced revision to the instrument requires that three points be deducted from the raw score of an offender who is aged sixty years or over. Mr Darrego has recently turned sixty and accordingly attains a score of five by proper application of the present version of the instrument. In Mr Sheehan's view, however, having regard to the dynamic factors discussed in his report, that score underestimates Mr Darrego's risk of sexual recidivism as an individual. 25Based on dynamic factors, Mr Sheehan concluded that Mr Darrego is a man whose risk of sexually re-offending is in the high risk category relative to other men. Mr Sheehan stated that the determination of relative risk was decided by reason of the fact that Mr Darrego had more elements of risk and fewer protective factors than other male sexual offenders in Mr Sheehan's experience. The report is well-reasoned and, if accepted, would on its own in my view justify the making of extended supervision orders. 26I should however make brief reference to the mandatory considerations in s 9(3). I have considered all of the factors listed in that section. Section 9(3)(h) directs attention to the defendant's criminal history. Mr Darrego has convictions for seven serious sexual offences committed in 1986, 1994 to 1995 and 2005. The offences were committed against four separate victims, namely, a five year old girl, a five year old boy, a girl aged seven or eight and a four year old girl. 27Of most concern is the offence most recently committed in 2005. The facts of that offence as recorded in the remarks on sentence of Acting Judge Woods dated 20 September 2005 are that the victim was sitting on the floor in the retail section of the Salvation Army store at Dubbo. She was playing with toys while her mother was browsing in the store. Mr Darrego entered the store and appeared to be browsing, when he picked up a doll from a display, approached the victim and placed the doll on her lap. He placed his other hand under the victim's skirt and grabbed her in the area of her vagina or buttocks. The assault continued until the victim moved away and looked for her mother, who raised the alarm. What is plainly alarming about the description of facts given of that offence is, as noted by Mr Sheehan, that it discloses an apparent lack of impulse control. 28Judge Woods remarked when sentencing the offender that the psychological evidence before him explained the offender had said he had an urge to fondle the girl and it just came on him in an instant. His Honour found that the psychologist's report suggested offending behaviour reflecting an entrenched paedophilic arousal pattern. I can only express my agreement with those remarks. 29Although the sentence imposed by Judge Woods was overturned by the Court of Criminal Appeal, it was not in circumstances that disclosed any more lenient analysis of the objective seriousness of the offence save as to the specific ground on which the appeal was upheld, namely, that the judge had wrongly taken into account the offender's prior history as a matter going to the assessment of the objective seriousness of the instant offence. 30The earlier offences of which Mr Darrego has been convicted are equally alarming. In 1986, the offences came about after Mr Darrego lured a young female child into a shed on the pretext of showing her some kittens, which it appears were not there. Judge Ducker, who sentenced Mr Darrego for those offences, was satisfied that Mr Darrego quite clearly lured the child into the shed for the purpose of sexually abusing her, which he did. The assault on that occasion included Mr Darrego placing his penis near the child's vagina and engaging in cunnilingus with her when she was a five year old child. 31It is not necessary to describe all of the conduct giving rise to the other matters of which Mr Darrego has been convicted. It is enough to say that plainly there is ample support for Mr Sheehan's conclusion, if those allegations were proved, that there is an entrenched pattern of paedophilic behaviour. 32I have already referred in the context of summarising Mr Sheehan's report to some of the other matters which I am required to take into account under s 9. For present purposes it is enough to say that the other allegations made in the supporting material, if proved, provide ample support for his conclusions. The material to which I have had regard satisfies me that the matters there alleged, if proved, would justify the making of an extended supervision order. It follows that in accordance with the terms of s 7 of the Act, I must make the orders sought by the State. 33Separately, the State seeks an interim supervision order under s 8 of the Act. The test in respect of such orders invokes the same considerations as arise under s 7. A difference however is that the making of an interim supervision order is discretionary. In the present case, the making of such orders is not opposed by the defendant, expressly on the basis that he reserves his right to contest whether such orders should ultimately be made. There is no inconsistency in his adopting that position in circumstances where the test applied by this Court requires the Court to assume that the allegations in the supporting documentation are proved. Plainly, the defendant is entitled to contest whether any of those allegations is in fact proved at the final hearing. In the meantime, however, his position in not opposing the making of the orders fortifies me in thinking that I should exercise my discretion to make the orders sought by the State. Separately, I am of the view that the orders sought are appropriate having regard to the material I have summarised. 34For those reasons I make orders in the terms of the form of order provided by counsel for the plaintiff, that is, orders 1, 2, 3, 4 and 5 in that document, noting that I will insert in paragraph 3, 3 May 2011 as the date on which the proceedings should come before me for further mention.