State of New South Wales v Stevenson

Judgment 1HIS HONOUR: By a summons filed 6 May 2013, the State of New South Wales, the plaintiff, seeks an order pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (the Act), that Jason Leslie Stevenson, the defendant, be subject to an extended supervision order for a period of five years from the date of the order; and pursuant to s 11 of the Act, that he be directed to comply with the conditions set out in the amended schedule as ordered by Hidden J on 17 May 2013. 2The defendant was sentenced on 19 August 2011 for five offences of sexual intercourse with a person between the ages of 14 and 16 years contrary to s 66C(3) Crimes Act 1900. The offences were committed in February 2010. The total term of imprisonment was 20 months commencing on 21 September 2011 and expiring on 20 May 2013, with a non-parole period of 13 months expiring on 20 October 2012. An offence contrary to s 66C(3) Crimes Act is a "serious sex offence" by virtue of s 5 of the Act and the defendant is a "sex offender" as defined in s 4. 3On 17 May 2013, Hidden J made an interim supervision order for 28 days pursuant to s 11 of the Act which was to commence on 20 May 2013. The defendant was ordered to comply with the conditions set out in the amended schedule to the order. Orders were also made pursuant to s 7(4) of the Act appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant. The interim supervision order has been subsequently extended to expire on 12 August 2013. 4The plaintiff now seeks that the period of supervision be extended to five years. 5Whilst the defendant does not oppose the making of an extended supervision order, he disputes the length of the order that is sought. He also proposes that some of the conditions of the supervision order be removed or reduced. 6Pursuant to the orders made under s 7(4) of the Act, the Court has received the report of Dr Jeremy O'Dea, psychiatrist, dated 19 June 2013 and the report of Dr Andrew Ellis, psychiatrist, dated 15 June 2013. The plaintiff's core tender bundle has been received into evidence without objection (ex A). 7Notwithstanding the lack of opposition to the making of an extended supervision order, an order may only be made if the Court is satisfied that the defendant is "a high risk sex offender": s 5C of the Act. Section 5B(2) provides: "An offender is a high risk sex offender if the offender is a sex offender and 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". 8Section 5B(3) is as follows: "The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence." 9The plaintiff bears the onus of proof. The standard of proof is high. What is required is for the Court to be satisfied to a high degree of probability: Cornwall v Attorney General for New South Wales [2007] NSWCA 374. 10The Court is to have regard to the matters identified in s 9(3) of the Act in addition to any other matter it considers relevant in determining whether or not to make an extended supervision order. The serious sex offences 11The offences contrary to s 66C(3) Crimes Act were committed in 2010. Shortly stated, each offence involved the same 15 year-old girl. The defendant had stayed with the girl's family and on his return home, she decided to travel with him. The girl's grandmother reported her granddaughter to be missing and indicated that she may be on a bus with the defendant. Police intercepted the bus and the girl was removed. Both admitted to police to having "consensual" sex on a number of occasions. The girl told police that the defendant was aware of her age. 12In his remarks on sentence, Richardson LCM said that "the victim of this offence was a very willing participant and, in fact, probably could be said to have initiated [the defendant's] interest in having sex with her" (ex A TB 18 p8). His Honour noted that "this is [the defendant's] first major sex offence" (ex A TB 18 p10). Sexual offending history 13There are other offences on the defendant's record that have a sexual undertone. On 25 November 2011, the defendant was convicted of "use carriage service to menace/harass/ offend." The victim, a 47 year old homosexual identifying male, made contact with the defendant through an on-line chat and dating website. The two men started chatting in late April 2010 through the website and through email and text messages. The men arranged to meet up but the defendant did not attend at the agreed place and time. Further text messages were received by the victim from the defendant with themes of sex with children. The defendant purported to offer his children (both male and female) for sex with the victim and indicated that he engaged in sexual activity with the children. The victim reported the matter to police. For this offence, the defendant was sentenced to 6 months imprisonment. 14There are two other offences with a sexual undertone on the defendant's record. He was convicted of the common assault of a 13 year-old girl on 23 February 2005. The police facts reveal that the defendant grabbed the victim from behind, placed his hand over her mouth, his other hand around her waist and dragged her backwards. The victim escaped and ran away. The defendant was convicted and sentenced to 12 months imprisonment which was suspended upon his entering into a s 12 bond, with the condition that he accept supervision by the probation and parole service for as long as considered necessary. 15The defendant was also convicted of the common assault of a seven year-old girl on 16 February 2005. The police facts disclose that the defendant approached the girl on the street, grabbed her from behind, placed his hand on her mouth and dragged her backwards. The girl managed to escape before anything else occurred. For this offence, the defendant was sentenced to 12 months imprisonment which was suspended on his entering into a s 12 bond for 9 months. A condition of the bond was that supervision was to concentrate on the sexual offenders program. 16In his account of these offences to Dr Ellis, the defendant described "fantasising about school girls around the time". In his report Dr Ellis wrote: "He reported that "I couldn't keep it in anymore", and that his attempt to grab the schoolgirls was an attempt to initiate some kind of sexual activity with them" (ex A TB 20 p7). The defendant's release on parole 17The defendant was released on parole for the s 66C(3) Crimes Act offences on 20 October 2012. The State Parole Authority revoked his parole on 22 February 2013. The report of Patrick Sheehan, senior forensic psychologist, sets out the background of the parole revocation which includes (ex A TB 16 p6): a. Within two weeks of release, the defendant reported that he had been in telephone contact with a 15 year-old female he met through Facebook. b. The defendant made contact with a 17 year-old female associate of the 15 year-old female, with this female reporting that the conversation moved very quickly to sexual themes. c. Within three weeks of release, the defendant was using dating websites to meet women. d. The defendant was reported to have a false Facebook profile. e. The defendant was found to have pornographic images of women on his phone with the ages of the women estimated to be between 14 years and 18 years. There were also images of the defendant's erect penis stored on the phone. f. The defendant, under an alias, spent time, including unauthorised access, with a young female who had recently turned 16. The defendant did not disclose his sex offending to her or her mother. The young female later reported being scared of the defendant. g. An unauthorised female was found in the defendant's room on 9 February 2013. She had turned 16 one month earlier but had been communicating with the defendant for some months. The female reported the defendant threatened self-harm and was physical with her. The defendant admitted having unprotected sexual intercourse with the female. h. The defendant stayed overnight at a motel with two females aged 16 and 17 years. 18Whilst on parole, the defendant was residing in a Community Offender Support Program (COSP) facility. He was obliged to comply with his parole conditions which included treatment. Graham Rendell, South and West Regional Supervisor, wrote in an email dated 14 February 2013 of the difficulty that he had experienced in seeing the defendant each week. Mr Rendell stated (at ex A TB 15 p1): "...Mr Stevenson's apparent single-minded deviant predatory behaviour towards very young vulnerable young women, his violent and manipulative behaviour towards his fellow COSP residents, his complete disregard for the rules of the COSP, his similarly (sic) disregard for his parole conditions, and apparent unwillingness to make the smallest effort to re-engage with the community. It is difficult to see that Mr Stevenson has gained anything positive from his incarceration: His behaviour since his release demonstrates what I consider a very serious escalation from the young man I assessed for what I believe was a sex offence in 2005. I can think of little that I believe will restrain him at this present time from continuing to predate on as many vulnerable young women as he can." Psychiatric and Psychological Evidence 19Celia Langton, a psychologist, assessed the defendant's risk of re-offending by reference to both his static risk factors using an instrument known as STATIC-99R and his dynamic risk factors. The defendant's total score of seven by the application of the STATIC-99R placed the defendant in the high-risk category relative to other male sexual offenders. 20The dynamic risk factors identified by Ms Langton, included diversity of sexual violence, problems with stress or coping, superficial compliance with treatment, sexual pre-occupation and problems with supervision. Ms Langton concluded that taking into account both static and dynamic factors, the risk rating of high on the STATIC-99R accurately reflected the defendant's current risk. 21The defendant, whilst in custody, had completed the Self Regulation Program: Sexual Offending (the SRP). Ms Langton observed (at ex A TB 13 p16): "...He has participated for ten months in a 12-18 month treatment program. While he has learnt concepts and appropriate behaviours to manage his risk of re-offending, he often does not follow through with these strategies, particularly in terms of developing healthy, appropriate relationships". 22I note that Mr Sheehan, by the use of STATIC-99R scored the defendant's static risk factors as eight. Dr Andrew Ellis concurred with that score. Mr Sheehan observed that the defendant exhibited relevant risk factors in all five domains of the RSVP dynamic risk assessment tool and in less structured examination of known risk factors. He opined that the defendant represents a high risk of sexual offending relative to other adult male sexual offenders. He stated that the defendant's potential for escalation to more violent sexual offences could not be discounted given his history of aggression and violence towards women and his intense reaction to feelings of jealousy and rejection. 23In his report Dr Ellis considered that the defendant's "...reported sexual fantasy with accompanying sexual urges whilst in sexual activity is consistent with a diagnosis of paedophilia, attracted to females, non exclusive type" (ex A TB 20 p8). He noted that paedophilia usually manifests as a chronic relapsing condition. His diagnosis included an alcohol dependence disorder and an antisocial personality disorder. Dr Ellis expressed the opinion that the defendant "would fall into a group of persons with a risk of offending that is high, and greater than a theoretical average offender" (ex A TB 20 p11). Dr Ellis observed that specific treatment and supervision would likely reduce the risk. 24Dr Jeremy O'Dea, in his report stated (at ex A TB 21 p9 par 54-55): "...Although [the defendant] has only acknowledged awareness of a sexual interest in post pubertal female children, there is evidence of a potential sexual interest in pre-pubescent female children that would point to a psychiatric diagnosis of heterosexual paedophilia. His reference to sexual activity with prepubescent male children in text messages of 14 June 2010 may point to an additional homosexual paedophilic interest. Whilst a specific sexual interest in post pubescent female children may not be conceptualised from a psychiatric perspective as paedophilia, in [the defendant's] case, it appears specific and resilient to control, at least at this stage..." 25Dr O'Dea opined that the defendant's risk of engaging in further sex offending behaviours in the community in the long term, including committing a further serious sex offence as defined in the Act, would be considered significantly high. A high risk sex offender 26Considering in combination, the defendant's pattern of various sexually based offending, his history of non-compliance with parole conditions and the expert evidence, particularly the opinions of Dr Ellis and Dr O'Dea, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. The extended supervision order 27As I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence, the conditions of the extended supervision order must be stringent. Relevantly, the primary object of the Act is to provide for the extended supervision of high-risk offenders so as to ensure the safety and protection of the community: s 3(1) of the Act. 28The defendant opposes the plaintiff's application that the extended supervision order be made for a period of five years. The defendant submits that the length of the order could be appropriately set in the range of somewhere between two and three years. The defendant refers to s 3(2) of the Act which provides: "Another object of the Act is to encourage high risk sex offenders... to undertake rehabilitation." 29It is submitted that the primary purpose of the Act should be balanced by tailoring an order that encourages the defendant to undertake rehabilitation. The defendant refers to having made some positive steps towards rehabilitation and by seeing some light at the end of the tunnel that will encourage his further rehabilitation. 30Another submission was that if the length of the extended supervision order was five years, the order would be two times longer than the total term of the sentence for the serious sex offences. The Court was also reminded that the defendant was subject to the Child Protection (Offenders Registration) Act 2000 for at least 15 years. 31The maximum term of an extended supervision order is five years: s 10(1A) of the Act. Section 13(1) of the Act relevantly provides that the Court may at any time vary or revoke an extended supervision order on the application of the State of New South Wales or the offender. 32Dr Ellis expressed the following opinion about the length of the order (at ex A TB 20 p13): "From a psychiatric perspective a period of four years is considered reasonable in order to establish a baseline function in the community, and refine the appraisal of risk." 33Dr Ellis explained that it is most likely that a period of 12 months would be required for the defendant to secure stable accommodation and regular meaningful activity in the community, given the restrictions on persons subject to extended supervision orders. A further 24 months of regular treatment in a psychological program, coupled with medication and review was necessary as the defendant has had limited treatment for either paraphilia or substance abuse. Dr Ellis considered that a further period of 12 months was required to monitor the defendant's consolidation. 34In cross-examination, Dr Ellis accepted that it was possible that the defendant might achieve each of these stages more rapidly, particularly if he agreed to take anti-libidinal medication to which he had responded well, but in setting the time frames, he considered the aspects of the defendant's case that were not average. Dr Ellis said that one of the factors that suggested a longer period of supervision was that after the defendant had completed the SRP, he almost immediately engaged in high-risk behaviours. 35Dr O'Dea stated (at ex A TB 21 p12): "Mr Stevenson's risk of engaging in further sex offending behaviours in the community, and of committing a further serious sex offence in the community, is likely to be relatively long term and of at least 5 years duration. Therefore, from a psychiatric risk management perspective, any appropriate risk management program implemented should be long term and at least 5 years duration, but should be regularly monitored and reviewed every 6 to 12 months dependent on his progress." 36In cross-examination, Dr O'Dea expressed a concern that if the defendant's treatment was discontinued at the end of three years, he would rapidly return to pre-treatment risk. Dr O'Dea accepted that if the defendant was compliant with an anti-libidinal medication regime, the risk would be reduced but said that at the end of the three year period, the risk management recommendations from the psychiatric perspective would be the same. 37The progress report (ex B) indicates that the defendant has made some progress towards responding to supervision in recent times. However, a troubling aspect that remains, in my view, is the defendant's non-compliance with the conditions of his parole by engaging in high-risk behaviours. 38Whilst some of the questions in cross-examination of the psychiatrists by Ms Cook, the defendant's counsel, were put on the basis of the defendant taking anti-libidinal medication, there is no evidence that the defendant has commenced the use of this type of medication. The decision to take anti-libidinal medication remains one for him. The submission that compared the length of the proposed order with the term of imprisonment for the serious sex offences has no substance as the primary object of an order is to ensure the safety and protection of the community. The obligations imposed on the defendant by the Child Protection (Offenders Registration) Act do not provide the monitoring and treatment that the defendant requires. 39I accept the opinions of Dr Ellis and Dr O'Dea that an order for two to three years would be insufficient to ensure the primary purpose of the Act and the rehabilitation of the defendant. In any event, it will be open for the defendant to apply at any time to vary or revoke the order. 40It seems to me that Dr Ellis' opinion that the term of the order should be four years is to be accepted for the reasons that he gave. I propose to start the order from the date of the original interim supervision order which commenced on 17 May 2013. 41The defendant objects to the requirement in condition five of the proposed orders to notify the Department of his movements one week in advance. The defendant submits that this is unworkable in the long term and should be reduced to 24 or 48 hours. The defendant contends that a more frequent notification of a schedule of movements is more likely to position him to succeed and positively progress towards rehabilitation. 42Ms Mahony, counsel for the State, argues that the requirement for a week in advance promoted structure and the development of pro-social planning skills. Ms Mahony referred to the evidence of Dr Ellis when he said (at T06/08/13 T22 L1-8): A. Yes. I think having a structured working, or studying, week is very important in people's rehabilitation and reintegration into society. It's something that most people do for granted, is keeping a diary and having a schedule of what they're going to do, but particularly for someone who's had difficulty organising their life and maintaining stable activities in their life. Having a schedule in that sort of way can assist in them getting on with all the things they need to get done and, you know, give them guidance and advice as how they're going to reestablish themselves into general society. 43Dr O'Dea in his evidence expressed the opinion that from "a practical commonsense perspective" that it is likely to be better done a day or two in advance rather than a week in advance as circumstances change (T06/08/13 T9 L8-9). 44The purpose of advanced notification of movements is not confined to providing a structure for the defendant but assists in the management of the defendant's risk. The risk management report notes that "[a]dvanced notification of proposed movements enables officers to verify the appropriateness of the locations and, where necessary, conduct risk assessments of the proposed locations" (ex A TB 17 p3). I do not think that 24 to 48 hours notice would enable the officers who are charged with monitoring the defendant sufficient time to determine that his movements are appropriate. Furthermore, it is apparent that the defendant has benefited from the requirement of seven days notice. In the progress report, the authors state (at ex B p2): "To Mr Stevenson's credit, his response to supervision appears to have improved once boundaries were set, and a structure and routine was established with his weekly schedule". (italics added) 45As presently drafted, conditions five and six allow for flexibility as a shorter schedule period may be approved by the supervising officer and any changes to the schedule may be made at least 24 hours in advance, unless a shorter period is approved. 46I do not consider that in the circumstances of this case that the period of 7 days is unreasonably long. I do not propose to make any change to condition five. 47The defendant next raises conditions 26 and 30 that include prohibitions on the consumption of alcohol and attendance at licensed premises. The defendant submits that there is no demonstrable or inferred nexus between the defendant's offending history and the consumption of alcohol. The defendant points out that the lack of correlation between alcohol use and offending was noted by Dr O'Dea at paragraph 58 of his report. The defendant contends that these conditions are unnecessary to achieve the purposes of the Act and proposes that conditions 26 and 30 be entirely deleted, whilst conditions 28 and 29 be amended by deleting any reference to alcohol. 48It is evident from the psychiatrists' reports that the defendant has had a long-standing problem with the excessive consumption of alcohol. He told Dr Ellis that he had experienced alcoholic blackouts, where he could not remember events and symptoms of alcohol withdrawal in the mornings where he would have shaky and sweaty hands. Dr Ellis diagnosed alcohol dependence. Dr Ellis states (at ex A TB 20 p10): "Substance use is not described immediately during the offences. Similar to a disordered mental state, substance use itself is not a major factor, but serves to disinhibit underlying sexual impulses, and predisposes to disordered mental states. If alcohol dependence is not addressed it may lead to further cognitive problems, poor emotional regulation and deviant sexual disinhibition." 49Dr Ellis considered that the defendant would require formal intervention to abstain from alcohol. 50The relevant content of paragraph 58 of Dr O'Dea's report which was referred to by the defendant is as follows (at ex A TB 21 p10 par 58): "In addition, although there is not a established correlation between [the defendant's] alcohol and other drug use and his offending behaviour, it is reasonable to assume that he will require to be abstinent from alcohol and illicit drug use in the community in the long term in order to assist him to better manage his sexuality and thereby minimise his risk of engaging in further sex offending behaviours in the community in the long term." 51I accept the opinions of the psychiatrists on this issue. I am satisfied that conditions 26, 28, 29 and 30 seek to address the defendant's alcohol dependence which may lead to sexual disinhibition and further serious sex offending. These conditions promote the primary object of the Act and I do not propose to interfere with them in any way. 52The defendant objects to condition 13 which provides for a curfew to be imposed at the discretion of the Departmental supervising officer. The defendant contends that he is 26 years old and there is no demonstrable or inferred correlation between his offending history and "the hours of darkness" curfew (DWS par 25). 53Condition 13 is as follows: "If directed by his Departmental supervising officer, the defendant must be at his approved address between 9pm and 6am (or such other hours as may be specified by the Departmental supervising officer) unless his presence at another place during those hours has been approved by his Departmental supervising officer." 54The risk management report sets out the reasons for condition 13. The ability to impose a curfew is said to be an important tool in the defendant's management, assisting in providing structure and stability for the defendant. The curfew requirement, if imposed, will be flexibly applied and reviewed. The authors of the report further state (at ex A TB 17 p5): "The curfew condition, if imposed, will most importantly ensure that there is an allocated time at which [the defendant] will be known to be at his approved place of residence and therefore be subject to random visit and testing for illicit substances and alcohol." 55Given the defendant's unacceptable risk of committing a serious sex offence, his sexual interest in post pubertal female children, his alcohol dependence and his breach of parole, I am satisfied that condition 13 promotes the primary object of the Act and I do not accede to the defendant's request to delete it. Should the curfew be imposed in an inflexible way and without regard to the progress that the defendant may make towards rehabilitation, the defendant may apply to this Court to vary the conditions of the order. 56Accordingly, I make the following orders: