State of New South Wales v Shields - [2022] NSWSC 469 - NSWSC 2022 case summary — Zoe

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State of New South Wales v Shields

[2022] NSWSC 469

Supreme Court of NSW|2022-04-08|Before: Wright J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-04-08

Before

Wright J

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

Introduction

By a summons filed on 25 February 2022, the plaintiff, the State of New South Wales, seeks interim and final orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act), including an extended supervision order (ESO), against the defendant, Mr Thomas Shields.
The matter came before me for a preliminary hearing on 8 April 2022 at which time the State sought: 1. an order pursuant to s 7(4) of the CHRO Act for the appointment of two qualified psychiatrists or psychologists (or a combination of them) to examine the defendant and provide reports to the Court; and 2. an interim supervision order (ISO) pursuant to s 10A of the CHRO Act for 28 days to take effect from when the defendant's current custody expires at midnight on 24 April 2022, with the conditions set out in the schedule to the summons.
The written submission filed on behalf of the defendant for the purposes of the preliminary hearing expressly stated that he did not wish to be heard against the imposition of an ISO, but he reserved his position in relation to any subsequent final hearing, in relation to the imposition of an ESO. Further, the defendant did not oppose the Court including in the ISO some, but not all, of the conditions proposed in the schedule to the summons. The defendant also did not oppose the making of the order for examination and report under s 7(4) of the CHRO Act.
Given the limited scope of the matters in dispute, these reasons can be somewhat shorter than might otherwise be the case.

[2]

Statutory requirements for the making of an ISO and examination orders

In proceedings for an ESO, the Court may make an interim order for an ISO under s 10A of the CHRO Act, if it appears to the Court that: 1. the defendant's current custody will expire before the proceedings are determined, and 2. the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
Since the defendant's current custody will expire at midnight on 24 April 2022 and he has not yet been examined under s 7(4), I was satisfied that his current custody will expire before the present proceedings are determined.
Under s 5I(1) of the CHRO Act, an application for an ESO may be made only in respect of a supervised offender. It was not in dispute and I was satisfied that the defendant was a supervised offender, as that expression is defined in s 5I(2), given that he is serving sentences of imprisonment for serious sex offences, namely offences of using a carriage service to groom a person under 16 years contrary to s 474.27 of the Criminal Code (Cth).
All of the statutory conditions for the State to make an application for an ESO in s 6 and the pre-trial procedures set out in s 7(1)-(2) have been complied with in this case. In addition, it was correctly accepted by the defendant that the requirements for the making of an ESO in s 5B(a)-(c) were met.
Thus, if the Court is satisfied following the preliminary hearing that "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order": 1. it must make orders appointing either two psychiatrists, two psychologists, one of each or two of each, to conduct examinations and to furnish reports to the Court on the results, and to direct the offender to attend such examinations: s 7(4) of the CHRO Act; and 2. it may make an ISO: s 10A of the CHRO Act.
In the circumstances of the present case, whether "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order" turns on whether the Court, assuming those matters are proved, is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an order, as required by s 5B(d) of the CHRO Act.
As noted above, for the purposes of the interim hearing, the defendant did not contest that, assuming the matters alleged in the supporting documentation were proved, he posed an unacceptable risk of committing another serious offence if not kept under supervision.
In determining whether I was satisfied that the matters alleged, if proved, would justify the making of an ESO, I took into account the following principles: 1. the objects of the CHRO Act in s 3, including the primary object of providing for the extended supervision of high risk sex offenders so as to ensure the safety and protection of the community and the other object of encouraging such offenders to undertake rehabilitation; 2. section 5D which provides that a Court asked to make an ESO: "is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence"; 1. determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration: s 9(2) of the CHRO Act; 2. the test in s 5B(d) requires the exercise of a discretionary judgment: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [82] (Basten JA) but the right of an offender to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn at [44] and [55]-[58] (Beazley P), [128] (Basten JA), [148] (Gleeson JA); 3. the Court must be satisfied that the likelihood of the defendant committing a further serious offence is higher than the civil standard of proof, in other words it is "beyond more probably than not", but it is not a requirement that the finding be made to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]; and 4. the task being performed at the preliminary hearing stage is not to weigh up the documentation, or to predict the ultimate result, or to consider what evidence the defendant might call at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]. It has been described as being similar to applying a prima facie case test, taking the plaintiff's case at its highest: State of New South Wales v Dickson (Preliminary) [2019] NSWSC 1116 at [43] (Johnson J).

[3]

Matters alleged in the supporting documentation

The supporting documentation included: 1. the defendant's criminal history in both New South Wales and Victoria and other records relating to his custodial history; 2. the risk assessment report dated 17 December 2021 of Ms Cieplucha, Senior Psychologist, Serious Offenders Assessment Unit, Risk Management Programs. Ms Cieplucha's report included details of the defendant's family, education, employment and relationships as well as his medical and psychiatric history. She also reported on his offending behaviour including the index offending and the earlier sexual offending in 2009. The defendant's involvement in offender programs, including: High Intensity Treatment Program (HISOP); Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS); and A Real Understanding of Self Help (RUSH), was considered. Ms Cieplucha recorded that using the Level of Service Infantry - Revised (LSI-R) actuarial risk instrument, the defendant scored in 2020 in the high range of risk/needs for general and violent offending. His risk of sexual reoffending was assessed on a number of occasions using the Static Risk Factors (Actuarial Assessment-Sex Offending) - STATIC - 99R, and the defendant's scores indicated that his risk was "Well Above Average". Using the Dynamic Risk Factors - STABLE - 2007 tool, the defendant was assessed as having a high density of criminogenic needs relative to other male sexual offenders and when the STABLE - 2007 was combined with the STATIC - 99R to generate a composite assessment of risk/needs, the defendant was in the "Well Above Average Risk level". Assessed using the Risk of Sexual Violence Protocol (RSVP) structured professional judgement tool, the results suggested that the defendant fell in the "Moderate/Elevated risk category for repeat sexual violence". Ms Cieplucha also identified the dynamic risk factors which were judged to be relevant or potentially relevant when considering the defendant's risk of sexual reoffending and her conclusions included the following: "[The defendant] is a 44-year-old male whose risk of sexual reoffending has been estimated to be in the Well Above Average risk range for sexual offending based on an actuarial measure of risk. … In the event that no order is imposed after 24/04/2022, [the defendant] would be an unconditional liberty. He would have no support from, or any monitoring by CSNSW. [The defendant] would be able to engage an appropriate service provider for further psychological assistance to address outstanding criminogenic needs relating to his sexual offending 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 given his repeat sexual offences and outstanding criminogenic needs on the background of an impulsive and unstable lifestyle with limited social supports, his ability to self-manage is uncertain. …". 1. the risk management report dated 6 January 2022 of Mr Begg, Community Corrections Officer, Extended Supervision Order Team. Mr Begg's report noted that the defendant fell in the high risk category of sexual offending and summarised the risk factors relevant to the defendant as including: problems with stress or coping and suicidal ideation; problems resulting from child abuse and problems with major mental illness; problems with substance abuse; problems with intimate relationships/capacity for relationship stability and general social rejection/loneliness; sexual deviance; problems with employment and nonsexual criminality; problems with planning impulsivity and problem-solving; and, cooperation with supervision. Mr Begg also recommended various conditions be included in any management plan including: electronic monitoring; the submission of a weekly schedule of movements to improve his planning skills and provide improved structure into his daily routines, although it was noted that, "[g]iven [the defendant's] pattern of sexual offending, a curfew condition may not be warranted"; accommodation and place and travel restrictions; a finance condition that would allow Community Corrections to scrutinise expenditure; drug and alcohol abstention conditions, especially in light of the potential forensic link between alcohol and other drug consumption and the defendant's sexual offending; conditions limiting his associations with children and antisocial peers and others who may have access to children; limited access to the internet and other electronic communications; search and seizure conditions given the nature of the defendant's index offending by use of electronic devices and the history of polysubstance abuse potentially related to the sexual offending; conditions in relation to personal details and appearance noting that the defendant utilised two different aliases in relation to his offending and provided false information around his age and sex in order to gain access to his victims through online platforms; medical related conditions designed to ensure that the defendant complies with medical prescriptions and to allow Community Corrections to monitor his mental health in the community; and weapons conditions having regard to the defendant's prior convictions in relation to firearms and other weapons offences. 2. court attendance notices and a statement of facts in relation to the index offending between May and September 2018 which involved two offences of using a carriage service to solicit child pornography contrary to s 474.19(1) of the Criminal Code, two offences of using a carriage service to groom a person under 16 years contrary to s 474.27 of the Criminal Code, one offence of using a carriage service to transmit an indecent communication contrary to s 474.27A(1) of the Criminal Code and one offence of failing to comply with reporting obligations contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW), in respect of all of which the defendant pleaded guilty; 3. the report dated 24 August 2019 of Dr Andrew Ellis, forensic psychiatrist. Dr Ellis diagnosed the defendant as having a substance use disorder and a borderline personality disorder and noted that he may suffer from a mood or anxiety disorder that was currently being treated by his medication regime. The doctor was also of the opinion that given the nature of his two sets of convictions for sexual offending there was potential evidence that he may have a diagnosis of hebephilia. Dr Ellis's conclusions included: "His prognosis is guarded. He has failed to routinely engage with community mental health services and relapses to drug use. He has offended while subject to conditional liberty. Borderline personality disorder can be difficult to treat, and alienate treating clinicians. If he is able to abstain from substances then his chances of desisting from offending would be improved. This should be the first goal of rehabilitation. … He should undergo substance use education and relapse prevention. He should aim for abstinence from substances and submit to testing for drug used to encourage this. He would benefit from psychological therapy directed at his personality and experience of early developmental trauma. There are evidence-based psychotherapies for this such as dialectical behaviour therapy or metallisation based therapy that would be suitable for him. He would benefit from attending a group based sex offender treatment program, if this is offered to him. He would benefit from improved social communication skills achieved by attending groups. He would benefit from further vocational training." 1. sentencing remarks of Graham ADCJ of 11 October 2019 in relation to the index offending for which the defendant received an effective sentence of 3 years 6 months, expiring on 24 April 2022, with a non-parole period of 2 years. Those remarks included: "This was a prolonged bout of offending, which involved two potential victims and was not, in its terms, a minor instance of any of those four offences. It was committed by a person who seems not to have any great degree of insight into what he was doing. There is no overt expression of remorse or contrition. The best that can be said is that his behaviour was, as he put it, reckless and stupid. He was unable to obtain sexual offender treatment during the course of his Victorian sentence, apparently being ineligible for that course. He has had not a great deal of contact with professionals who might be able to assist him. His overall criminal history certainly does not suggest that he is a person who has learned from orders that have been made, whether they be overtly punitive or mild orders intended to assist him to avoid further conflict with the criminal law. … The circumstances, as revealed by these offences, his history of offending and the findings of Dr Ellis, would all suggest that he is not a person about whom it could be said that he has any low risk of reoffending. The Court should approach sentencing on the basis that there is a real risk that he would reoffend. The Crown submitted that he is a very real threat to the community. Presently, there is some element of truth in that submission, though I would not put it as highly as that. … "; 1. police fact sheets in relation to other, non-sexual offending by the defendant; 2. reasons for sentence of 20 May 2009 of Judge Duckett of the County Court of Victoria in relation to five offences of committing an indecent act with a child under 16 years committed in 2002 and 2003 for which the effective sentence was 3 years 6 months, with a non-parole period of 2 years; 3. records and notes of Corrective Services NSW and Justice Health in relation to the defendant; 4. the defendant's STATIC-99R coding form, STABLE-2007 tally sheet, ACUTE-2007 tally sheet; 5. notes in relation to the defendant's participation in custody based sex offender programs; 6. pre-sentence reports, breach reports, a recent pre-release report and similar reports relating to the defendant; and 7. the HISOP treatment report dated 25 February 2022 of Andrew Fordyce, Psychologist, CUBIT, MSPC 2, Long Bay Correctional Centre. Mr Fordyce's report included the following conclusions and recommendations: "33. [The defendant] is a 45-year-old male, who completed the high Intensity Sex Offender Program. Overall, his progress in treatment was mixed. While his engagement was generally appropriate and he displayed a conceptual understanding of the treatment content, his capacity to relate this to his own offending behaviour and implement required changes was inconsistent. As such, [the defendant] would benefit from ongoing support in consolidating his progress in treatment and maintaining his self-management plans. 34. In addition to the recommendations made throughout the report, the following recommendations are made to assist with risk management and reintegration: … • That he maintain abstinence from all drug and alcohol use, and that he engage in case management from a Community Corrections Officer and random monitoring to manage his risk of relapse into substance misuse. He should be referred to drug and alcohol services for assessment and treatment if he returns a positive urinalysis or self-discloses drug use; … • That any contact with persons under the age of 16 is monitored by an appropriate adult, and discussed with his Community Corrections Officer; • And that his use of technology (such as mobile phones, laptops and cameras) be regularly and randomly assessed for appropriateness. Use of sexually-explicit material should be raised with him and considered in terms of risk. …".

[6]

Conditions 6-8 - Scheduling

Proposed conditions 6-8 were in the following terms: "6. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 7. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period 8. The defendant must not deviate from his approved schedule of movements except in an emergency."
The defendant submitted that these conditions constituted a significant intrusion on the defendant's liberty and their effect was oppressive in that, if the defendant deviated from his approved schedule of movements, he would be at real risk of criminal sanctions including reimprisonment. It was also said that the conditions were oppressive because of the defendant's mental health conditions including, for example, those diagnosed by Dr Ellis. While I accepted that requiring a person in the defendant's position to prepare and adhere to a weekly plan of activities would be likely to have a therapeutic benefit for the person as well as the benefit of assisting in the protection of the community, as explained by Mr Begg, in my view if the defendant were required to comply with a rigid and overly prescriptive schedule of movements this might be oppressive and counter-productive. As a result of discussions between the bench and counsel during the hearing, amended wording for conditions 6-8 was agreed which would be likely to have the therapeutic and protective benefits sought by the State without the potential oppressive effects identified by the defendant. Accordingly, I propose to direct that the defendant comply with conditions relating to a weekly plan amended as follows: "6. If directed, the defendant must provide a weekly plan (called a schedule of movements) of appointments and activities and this is to be provided 3 days before it is due to start. 7. If the defendant wants to change anything in his schedule of movements weekly plan once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period 8. The defendant must not deviate from his approved schedule of movements attend his appointments and activities in his weekly plan except in an emergency."

[11]

Conditions 46 and 47 - Search and seizure

Proposed conditions 46 and 47 were as follows: "46. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search. 47. 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."
The defendant's submission that these conditions in their proposed form provided "an unlimited power" to search the defendant's person and his property without warrant and without any requirement for "reasonable belief" as a precondition to the exercise of the power. It was noted that the legislature had already made express provisions for search and seizures by NSW Police under the Law Enforcement (Powers and Responsibilities) Act 1997 (NSW). In addition, it was submitted that conditions 36, 39 and 43 already allowed monitoring of the defendant's devices and use of the internet and the search and seizure power was unnecessary. In light of the defendant's mental health issues and circumstances, it was contended that the proposed conditions were oppressive, were open to potential abuse and went beyond what was necessary.
The State in effect submitted that the ability to search and seize property on an effectively random basis enhanced the protective effect of the conditions generally by encouraging compliance with the other conditions imposed as part of the supervision order. It was also submitted that it would be difficult to specify the circumstances in which a search would be reasonable.
In my view, the search and seizure powers in the conditions are not primarily for investigative or law enforcement purposes, but rather serve the purpose of encouraging and monitoring compliance with the other conditions imposed. If the conditions are complied with this has potential benefits both by way of ensuring the protection of the community and encouraging rehabilitation of the defendant. Nonetheless, I accepted that there was some scope for inappropriate use of the power and that it could have adverse consequences if the defendant's mental health were not adequately taken into account. In addition, it appeared to me that the reference in proposed condition 47 to "this Order" was confusing and should be a reference to "condition 46".
In all the circumstances, I was satisfied that the proposed conditions 46 and 47 were generally appropriate and should be included but that the wording should be amended so as read as follows: "46. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search, provided due consideration is given to the defendant's privacy and mental health. 47. 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 condition 46."

[25]

Part I: 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 THOMAS JOHN SHIELDS or 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.

State of New South Wales v Shields

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Judgment (29 paragraphs)

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