State of New South Wales v Strong, Robert

Supreme Court of NSW|2018-07-11|Before: Latham J, Harrison J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2018/163005

Judgment

By way of an Amended Summons filed 11 July 2018, the State of NSW seeks an order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") to allow for the examination of the defendant by two psychiatrists, an interim supervision order ("ISO") pursuant to ss 10A and 11 of the Act from 28 July 2018 for a period of 28 days and an extended supervision order ("ESO") pursuant to ss 5B and 9(1)(a) of the Act a period of 5 years. The defendant is currently subject to a continuing detention order ("CDO") imposed by Harrison J on 29 July 2016, expiring 28 July 2018: State of NSW v Strong [2016] NSWSC 1041.
Ancillary orders are sought restricting access to the Court file and disclosure of the expert reports to Corrective Services NSW.
The hearing before me was conducted on an interim basis, that is, only the order appointing the psychiatric experts and an ISO are presently required. It is anticipated that the fresh reports will inform the parties further for the purposes of determining in the future whether an ESO should be made, the nature of the conditions attaching to it, and the duration of the order.
The defendant does not wish to be heard in relation to whether he qualifies as a "high risk offender" under the Act, nor does he oppose the making of an ISO and the appointment of two appropriately qualified psychiatrists for the purposes of assessing him. The dispute between the parties was distilled to some of the proposed conditions attaching to the ISO, although they were largely resolved in the course of the hearing.

The Preliminary Hearing under the Act

The primary object of the Act is to ensure the safety and protection of the community (s 3(1)). This is the paramount consideration (s 9(2)). The rehabilitation of offenders remains a secondary objective (s 3(2)). The Act is protective, not punitive.
Section 7(4) of the Act provides that the Court must make an order appointing two psychiatrists to examine and report upon the defendant, upon satisfaction that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. Section 10A provides that the Court may make an ISO if it appears to the Court that the offender's current custody or supervision will expire before the proceedings are determined, and that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. Therefore, the touchstone for the exercise of the broad discretion under s 10A is relevantly the same as the mandatory order under s 7(4), that is, whether the plaintiff has established the justification for an ESO.
The matters to be taken into account under s 9(3) for the purposes of determining whether an ESO is warranted include:- (b) the reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence.
The Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under the ESO (s 5B(d)).
A high degree of probability means something 'beyond more probably than not' so that the existence of the risk, that is, the likelihood of the offender committing a further serious sex offence, must be proved to a higher degree than the civil standard of proof, albeit not beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. The risk or likelihood itself must be a sufficiently substantial probability to satisfy the criterion 'likely'.
The Court is not required to determine that the risk of a person committing a serious offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious offence (s 5D). Basten JA held in Lynn v State of NSW [2016] NSWCA 57 at [126] that:- The nature of the risk …. had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders.
As R A Hulme J observed in State of NSW v Golding (Preliminary) [2018] NSWSC 1041 at [17] to [19], it is not the Court's task at the preliminary hearing stage:- 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 is a task that has been described as being akin to applying a prima facie case test, taking the plaintiff's case at its highest: see, for example, State of New South Wales v Brookes [2008] NSWSC 150 at [13] (Fullerton J); State of New South Wales v Manners [2008] NSWSC 1242 at [8] (Johnson J). The test in s 10A ("the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order") was adopted as part of the provision for making an interim supervision order in s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW). In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, Rothman J (at [7]) rejected a submission that "'prima facie' proof is required of the matters alleged" and explained that "matters alleged" referred to the facts sought to be established by the plaintiff, not the conclusion to be drawn from them. Thus, he said (at [9]) that "it is necessary for the State of New South Wales to allege certain facts, which, if proved, would lead to a conclusion that would justify the making of an ESO". There does not appear to be controversy about this. What the Court is required to do is to proceed upon the assumption that the facts alleged in the supporting documentation are proved and to consider whether those facts would justify the making of an ESO.

The Defendant's Criminal History

The defendant's criminal history may be summarised as follows:- 1. In February 1975, the defendant was convicted of assaulting a female. He placed his hand under a stranger's dress and under her underpants. He was released on a 12 month good behaviour bond. He was 15 years old at the time. 2. In May 1977 the defendant was convicted of assault with intent to rape. He entered a 28 year old woman's unit around 6am, threatened her with a long steel meatfork and demanded sex. After she threatened to call the police he struck her head. He put a chain around her neck and choked her unconscious. He tore off her clothes and put his penis between her legs and simulated intercourse to ejaculation. He was 17 years old. He was sentenced to 4 years and 6 months' imprisonment. 3. In April 1983, the defendant was convicted of inflicting grievous bodily harm with intent to have sexual intercourse and sexual intercourse without consent. The defendant and another man approached a 17 year old girl on the street and abducted her. They forced her into a nearby churchyard, punched her numerous times to her face to stop her screaming, removed her clothes and forcefully engaged in penile vaginal sexual intercourse. The defendant was 24 years old. 4. In May 1983, the defendant was convicted of inflicting grievous bodily harm with intent to have sexual intercourse and sexual intercourse without consent. The defendant broke into the flat of an 83 year old woman while she was asleep. He punched her and ripped open her nightgown. He had penile vaginal sexual intercourse with her. She lost consciousness during the attack and was later found wandering her neighbourhood in an injured state. She received 30 stitches to the head. He was 24 years old. For this and the offence at (iii) he was sentenced to 20 years' imprisonment with a 14 year non-parole period. He was released on 23 April 1996. 5. In July 1997, the defendant was convicted of indecent assault. The defendant grabbed a woman's groin. He was later found to have a screwdriver in his sock. He was sentenced to 6 months' imprisonment and released on 12 July 1997. 6. In January 1998, the defendant was convicted of stalking, malicious damage and unlawful entry. The defendant stalked an 18 year old girl living alone. He attended her unit at midnight claiming to be injured. She refused him entry, and he attempted to break in. He was sentenced to 2 years' imprisonment with 18 months non-parole. He was released on 27 July 1999. 7. In September 1999, the defendant was convicted of committing an act of indecency. The defendant exposed and fondled his genitals at a woman running past him. He was sentenced to 9 months' imprisonment, with a 6 month non-parole period. 8. In 2001, the defendant was convicted of stalking with intent and intimidate with intent. The defendant sent sexually explicit letters to a woman he had met once. He developed an infatuation, moved into a house across the street from her, began to stalk her, entered her yard, approached her house, bragged to others that she was 'his woman'. He was sentenced to 5 years' imprisonment which was reduced to 4 years 6 months on appeal with a non-parole period of 2 years 6 months commencing 4 October 2000. 9. The defendant was pronounced an habitual criminal by Freeman DCJ on 29 June 2001 and sentenced by the Court of Criminal Appeal to imprisonment for 8 years concluding 3 October 2008. 10. In February 2010, the defendant was convicted of sexual intercourse without consent. The defendant was staying at his sister's house, where the female victim also resided. The victim awoke in her bed to find the defendant having penile vaginal intercourse with her. He was sentenced to 6 years, 3 months' imprisonment, with a 4 year non-parole period. He was experiencing psychotic symptoms at the time of offending.

Psychiatric and Psychological Evaluations of the Defendant

The psychiatric reports which were prepared variously for the purposes of the defendant's sentencing and incarceration date from August 1977. At that time, Dr Reid first considered that the defendant was "mentally retarded". The defendant had denied delusions, although there had been an earlier report by him of hearing voices.
In November 1983, Dr Duffy described the defendant as having no insight, and being "angry with women". Alcohol was a significant factor, given that the defendant was intoxicated in the course of his sexual offending in 1983.
In 1992, the defendant was hospitalised, and subsequently diagnosed with schizophrenia.
In 1995, Dr Lucire described the defendant as developing multiple strong erotic unrequited attachments and of becoming menacing when rejected. The defendant said he had committed more offences than he had been convicted of and made threats to rape women. Dr Lucire considered the defendant had a severe personality disorder and was intermittently psychotic. He experienced voices telling him to kill.
In 1996, Dr Lewin considered the defendant had a paranoid disorder but was not psychotic. Dr Westmore thought that the defendant did not suffer from a mental illness but that he had a severe personality disorder and impaired capacity to control his sexual impulses.
In 2001, the defendant was diagnosed with an antisocial personality disorder with psychotic features. In 2002, the defendant was on anti-psychotic and anti-depressant medication. He had been experiencing command hallucinations since the rape of the 83 year old woman in 1983. According to Dr Allnutt, the defendant felt justified raping women in retaliation for the historical rapes of aboriginal women. The defendant was angry with women who rejected him and he thought that the majority of women were evil. He said he had minimised his hearing of voices when speaking to psychiatrists in the past. Dr Allnutt considered that the defendant presented as a diagnostic dilemma because he was on the border between a severe personality disorder and a psychotic mental illness. He was an extremely disturbed individual, who required further examination.
In 2003, Dr Nielssen considered that the defendant had a psychotic illness requiring long-term medication. Dr Allnutt believed in 2004 that the defendant suffered from a chronic psychotic disorder complicated by substance abuse and an underlying antisocial personality disorder.
In 2006, Dr Samuels thought that the defendant suffered from paranoid schizophrenia and displayed little insight into his offending. Dr Samuels recommended a Community Treatment Order on release.
In 2010, Dr Furst reported that the defendant heard voices telling him to kill people. The defendant was drinking alcohol and using illicit drugs. The defendant claimed not to remember his 2010 offence. Dr Furst diagnosed the defendant with schizophrenia.
In 2011, a Forensic Psychology Services' assessment observed that whilst the defendant had completed a specially designed sex offender treatment program in 2008, his underlying medical/neurological condition meant that he was unable to engage in the treatment process adequately and the effectiveness of lowering his risk of sexual offending was of a low standard. The defendant's ability to make informed decisions about his needs was likely to be impaired.
A neuropsychological assessment in 2013 found that the defendant was impaired, with a lower than average brain function. A Self-Regulation Program Report in 2014 determined that the defendant could only learn things by rote, had problems with executive thinking and exhibited a low attention span. The defendant acknowledged his offending but struggled to recall what he was thinking at the time. Whilst the defendant claimed a desire not to reoffend, his risk of reoffending was assessed as high. The identified risk factors included substance abuse (including alcohol), non-compliance with medication, and hallucinations.
In 2014, Dr Chan reported that the defendant had spent 17 months in a sexual self-regulation program. The defendant was free of psychotic symptoms but there was evidence of an antisocial and borderline personality disorder, and cognitive and frontal lobe impairment. Dr Chan recommended a Community Treatment Order and antilibidinal medication.
In 2015, Dr Elliott found no evidence of psychotic symptoms. Most of the options for managing the defendant in the community had been exhausted. The defendant required intensive levels of multi-agency support, with coordinated care if he was ever to have a prospect of reintegrating into the community. The defendant remained at high risk of sexual reoffending, which would be at an "extreme" level if he relapsed into substance use.
In March 2016, a psychological report to NCAT recommended the appointment of a public guardian, given that the defendant had spent most of his adult life in custody and had little opportunity to develop the necessary skills for living in the community.
In 2016, Dr Martin considered that the defendant had very limited insight into his psychological and behavioural issues. The defendant had a predisposition to psychotic symptoms, substance abuse, cognitive problems, and a highly disordered way of relating to others. Dr Martin considered that the defendant presented a high risk of future sexual offending if not monitored extremely closely. Dr Martin recommended antilibidinal medication. Dr Martin was also of the view that psychological treatment would not have a major impact on reducing the risk over the next 5 years. The defendant was suspected of exhibiting a sexual sadism disorder.
Dr Ellis also suspected that the defendant displayed a sexual sadism disorder in 2016, together with schizophrenia and paraphilia. Dr Ellis made a provisional diagnosis of antisocial personality disorder. He recommended antilibidinal treatment. He thought the defendant was likely to relapse and represented a serious risk to himself and others. The defendant's risk of reoffending was statistically high.

Risk Assessment

The reports prepared for the purposes of s 9(3) of the Act disclose that the defendant continues to pose an overall high risk of sexual reoffending relative to other male sex offenders. He has been taking antilibidinal medication which may moderate the risk of reoffending. There have been no concerning behaviours that have warranted further intervention during the term of the CDO. The defendant's mental health has remained stable. The defendant is subject to a guardianship order, so that if his mental health declined, a further application for a Community Treatment Order could be made.
The defendant has undergone some treatment programs for substance abuse but has not made any significant treatment gains. Mr Ardasinski, a psychologist, noted that "it appears likely that he continues to pose a high risk of sexually reoffending in the future". There was no clear offence pathway to predict the nature of the defendant's reoffending because each offence had been different.
It remains a matter of concern that the defendant is released to suitable accommodation. This matter is complicated by the fact that it remains dangerous for the defendant to be around female staff. His family support ceased after he sexually assaulted a relative in 2010. The defendant's willingness to continue his medication regime in the community is described as ambivalent. For these reasons, it is recommended that the defendant undertake a community based sex offender program upon release, including intensive monitoring and supervision.
The statistical assessment of the defendant's risk of reoffending is assessed at 8 which is "well above average risk", and 5 times higher than that of the typical sex offender. This may have changed since the test was carried out in 2015, on the basis that the defendant has been on antilibidinal medication and has maintained stable mental health. Mr Ardasinksi maintains that the defendant remains a high risk overall.

Consideration

Having regard to the defendant's history and the prevailing view of several forensic psychiatrists and psychologists over a number of years, to the effect that the defendant's psychiatric health is gravely compromised and difficult to treat, it is abundantly clear that the defendant requires ongoing supervision and care. The defendant's risk of reoffending remains a matter of concern, notwithstanding some recent positive developments arising out of the antilibidinal medication and some stabilisation of the defendant's mental health. It is essential in my view that the defendant receives further assessment in the light of these relatively recent gains and in preparation for his foreshadowed release into the community.
The defendant's objection to the proposed condition requiring electronic monitoring of his movements is premised on the failure of electronic monitoring to actually reduce the risk of reoffending. It is submitted that electronic monitoring stigmatises the defendant without effectively preventing offending behaviour. The plaintiff's submission that the intention is to monitor the defendant "in real time" goes a considerable way towards meeting the defendant's complaint. I accept that this condition is justified in the circumstances of this case.
I am well satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. Accordingly, I make the following orders:- 1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): 1. Two qualified psychiatrists or registered psychologists (or a combination of such persons), as agreed between the parties, are appointed to conduct separate examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by 29 August 2018. 2. The defendant is directed to attend the examinations in order 1a. 1. Pursuant to s 10A of the Act the defendant is made the subject of an interim supervision order commencing on 28 July 2018, for a period of 28 days. I note that the timetable which has been agreed upon between the parties for the purposes of a final hearing requires two further extensions of the interim supervision order and it is agreed that such applications for extensions may be made to a Judge in Chambers. Accordingly, the parties have leave to approach the Registrar of the Court for that purpose. 2. Pursuant to s 11 of the Act the defendant is directed to comply with the conditions set out in the schedule to this order for the period of the interim supervision order. NSW v Strong Schedule (31.8 KB, pdf) 3. The matter is listed for final hearing in the week of 15 October 2018. 4. The plaintiff is to file and serve any further evidence by 7 September 2018. 5. The plaintiff is to file and serve written submissions by 14 September 2018. 6. The defendant is to file and serve any evidence and written submissions by 28 September 2018. 7. Access to the Court's file by a non-party in respect of any document shall not be granted without the prior notification to the parties of the non-party's application for access, and without the leave of a Justice of the Court. 8. Liberty to restore on 3 days' notice.

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: 18 July 2018

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