State of New South Wales v Veeran

Supreme Court of NSW|2015-02-12|Before: Hulme J, Hidden J

JUDGMENT

HIS HONOUR: The State of New South Wales ("the State") has applied for an extended supervision order for a period of five years in respect of Mr Davendran Veeran pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW), ("the Act").
The State commenced proceedings by the filing of a summons in this Court on 10 September 2014. A preliminary hearing was held by Hidden J on 8 October 2014. His Honour appointed Dr Andrew Ellis, psychiatrist, and Ms Jenny Howell, psychologist, to conduct examinations of Mr Veeran and furnish reports. His Honour reserved his decision as to the making of an interim supervision order. On 19 November 2014 his Honour gave judgment and made an order pursuant to s 10A of the Act that Mr Veeran be subject to an interim supervision order. Such order has been continued by other judges of the court until now.
Mr Veeran does not consent but he does not contest the making of an order. The dispute in the matter is confined to the length of the order and to whether one of the conditions proposed by the State should be included. Notwithstanding the concession, it is necessary for me to be satisfied that all of the statutory pre-conditions for the making of an order are established.
A number of affidavits and a substantial volume of documentary evidence was read and tendered without objection and none of the deponents and authors were required for cross-examination.

Ms Julie Bates

A Risk Management Report was prepared by Ms Julie Bates, a unit leader of an extended supervision order team, dated 24 July 2014. It refers to an assessment undertaken by Ms Laura O'Neill (see below) of Mr Veeran being within a medium to high risk category for re-offending. This assessment identified a number of areas of concern and they were: ● alcohol abuse ● non-compliance with supervision ● personal relationships (domestic violence) ● mental health stability ● non-compliance with medication ● stress/anxiety ● lack of constructive and positive social activities
The risk management plan proposed by Ms Bates addresses issues of reporting obligations, electronic monitoring and schedules, accommodation, education/employment, non-association generally, child protection register, alcohol and other drugs, access to weapons and medical intervention and treatment obligations. It was Ms Bates' view that the risk management strategies as outlined in relation to those various topics would be adequate to address Mr Veeran's risk in the community. She indicated that those strategies would be subject to ongoing review with a view to reducing the intensity of monitoring subject to Mr Veeran's compliance.
One of the conditions discussed by Ms Bates is the subject of dispute, that is, whether there should be a condition requiring Mr Veeran to wear electronic monitoring equipment. Ms Bates' assessment was that electronic monitoring in conjunction with the requirement that Mr Veeran provide a schedule of proposed movements in advance would be critical tools in his supervision and management. Electronic monitoring can be used to restrict movement at particular times of the day or night. For example, it can identify breach of a curfew condition. It can also detect entry into any area contrary to the conditions of a supervision order. This, it is said, will enable a greater capacity to monitor compliance outside of face to face interaction and will compliment other risk management strategies which are applicable to Mr Veeran's individualised risk management plan.
I note the evidence in the affidavit of Sunil Nambiar, affirmed 7 January 2015, which describes the nature of the electronic monitoring equipment now used, which is much less intrusive and cumbersome than the equipment that was previously available. At the hearing, Mr Veeran willingly showed me the device he wears on his ankle and it certainly appears to be smaller and probably lighter.

Ms Laura O'Neill

Ms Laura O'Neill is a psychologist employed by Corrective Services NSW and has been so since July 2008. In that time she has worked primarily in relation to serious violent and sex offenders. She prepared a psychological risk assessment report in respect of Mr Veeran dated 2 July 2014, for the purpose of assessing his risk of re-offending. She determined that he presented a moderate to high risk of sexual re-offending relative to other adult male sex offenders.
Ms O'Neill reported that Mr Veeran had refused to engage in any therapeutic intervention whilst in custody in relation to his sexual offending. It was her opinion that his poor literacy would not prevent him from participating in such programs. She also reported that he minimised his offending behaviour and had limited insight into his offending and future risk. She said his lack of understanding and insight about the factors that contributed to his offending is of concern as he may not have sufficient skills to avoid and/or manage risky situations on his return to the community.
In relation to the question of managing Mr Veeran's risk of re-offending Ms O'Neill gave evidence in an affidavit affirmed 25 September 2014 as follows: "Mr Veeran's offending pathways in the past have involved his exposure to life stressors which he then appears to ruminate on and have difficulty coping with. In the absence of positive social supports, he sought out the company of inappropriate peers, vulnerable women or children. He appears to have sexualised the behaviour of the victims, possibly engaging in cognitive distortions that justify his offending behaviour such as an entitlement to sex. In regards to his prior offence, it appears that Mr Veeran experienced or perceived rejection and dismissal from the victim, leading to further angry rumination. It is clear in his prior offence that alcohol may have disinhibited his behaviour; however, the role of alcohol in the commission of the index offence is unclear. However, as Mr Veeran has demonstrated only limited insight into the other potential factors which have triggered his reoffending in the past, it is considered that therapeutic intervention would provide Mr Veeran with the skills to ascertain whether there are factors in his life which increase his risk. Given his limited insight into the various precipitants of his offending to date, such a determination may provide a greater understanding of the best risk management strategies for him to avoid any re-offence in the future. It is only through a lengthy period of treatment, followed by close monitoring and supervision, where Mr Veeran's movements, habits, attitudes and so on, are recorded, can effective risk management strategies [be] formulated to address his specific needs. In my view, he would be incapable of developing these strategies without intensive therapeutic intervention."
Ms O'Neill said that an offender's acknowledgement of risk and the identification of relevant risk factors can be a protective factor in reducing the risk of re-offending as it allows the individual to reduce the likely occurrence of risk factors in the future. Of concern is that Mr Veeran denied the 1998 offence and he blamed the 2004 offence on the 13 year old victim, stating that she initiated the sexual contact and refused to accept his initial rebuff. He acknowledged that having sexual intercourse with a 13 year old was against the law, although he minimised his behaviour by stating that the victim's mother had told him that she was 16 years old and that she "acted like a woman". He also claimed that he was unaware that she had a disability (in fact a severe intellectual disability) until after the offences. In addition he justified the behaviour by claiming that the 13 year old victim was also having sex with 30 to 40 other men. It is something of an understatement for Ms O'Neill to then state that Mr Veeran's account of the 2004 offence "demonstrated a limited acceptance of responsibility for his behaviour".
Ms O'Neill's report includes a detailed discussion of "dynamic risk factors". They are grouped under the headings, "problems in intimate and non-intimate relationships"; "cognitions and attitudes that justify or support sexual offending"; "problems with general self-regulation"; and "superficial engagement with supervision". Under the second of those headings Ms O'Neill wrote: "The presence of cognitions justifying sex with children and with women who are inferior to him may indicate that Mr Veeran is at immediate risk of offending."
Ms O'Neill acknowledged that Mr Veeran's history did not suggest that he would sexually act out on every occasion the risk factors identified are present. She noted that, given his long history of intimacy deficits and poor coping, it could be surmised that he had been exposed to numerous high risk situations where he did not commit a sexual offence. However she continued by saying: "The future risk is chronic in nature in that over time as he was exposed to these risk factors without intervention or interruption, there would be fewer impediments to a sexual offence and eventually he would re-offend."
Ms O'Neill was also of the view that any future offending by Mr Veeran is likely to be "relatively opportunistic". It was her opinion that in the event that Mr Veeran became the subject of an extended supervision order, it is likely that he would benefit from intensive supervision and case management. Ms O'Neill discusses the potential conditions of an order and I note that she includes reference to a condition relating to electronic monitoring.

Ms Jenny Howell

Ms Jenny Howell, one of the Court-appointed experts, interviewed Mr Veeran on 24 October 2014.
Mr Veeran accepted that he had consumed alcohol prior to the sexual offences in 1998 and 2004/5 but asserted that he was not drunk. He had been a regular user of alcohol but completed the Getting Smart program in 2000 or 2001 and attended AA meetings for about two and half years after his first release from custody. His intentions in relation to alcohol consumption in the future are not clear. Ms Howell noted his acknowledgment that it was a factor in relation to both offences and regarded it as an established criminogenic risk for him.
Medication currently prescribed for Mr Veeran was identified by Ms Howell as used in the treatment of depression. Mr Veeran related this condition to "long standing issues and his current circumstances".
In the context of saying he had no interest in taking anti-libidinal medication, Mr Veeran asserted that he did not have problems managing his sexual behaviour. He said that he would not engage in sexualised behaviours around women or children in the community and that custody had been a deterrent to re-offending.
Mr Veeran did not accept responsibility for either of the sexual offences in his history. Ms Howell reported that "he did not identify that his behaviour was wrong, or potentially caused harm to the identified victims and said that he feels 'vulnerable' to future malicious allegations". She continued: "Mr Veeran did not express genuine and appropriate regret and remorse for the harm to the victims and their families. He demonstrated very little understanding of issues related to consent and sexual boundaries and he did not acknowledge that his offending behaviour was unacceptable. He denied ever having acted inappropriately or engaging in sexually harmful behaviours with a child."
With the aid of a number of predictive tools, Ms Howell assessed Mr Veeran as having a moderate to high risk for future sexual offending relative to other men who sexually offend. This was supported by clinical assessment. It was her opinion that "he does pose a risk of committing a further serious sexual offence as defined by the Act".
Mr Veeran proposed a risk management plan to Ms Howell that was based on his refraining from entering into any sexual relationship in the future. He said that his time in custody has served as a deterrent to future offending. In her discussion of possible treatment options, Ms Howell stated, "Mr Veeran's sexual offending risk is chronic; he has not participated in sex offender specific treatment when offered and has no realistic risk management plan".
It was Ms Howell's assessment that Mr Veeran's risk of committing a serious sex offence can be managed in the community "if the recommendation[s] of the Risk Management Plan are adhered to". This is a reference to the plan set out in the Risk Management Report by Ms Bates to which I have earlier referred. Ms Howell considered the issues addressed by the plan were "adequate to address Mr Veeran's risk in the community" and that "the conditions of supervision sought by the State are appropriate". She did not mention it specifically, but I take this to include support for the proposal that there be electronic monitoring.
As to the duration of an order, it was Ms Howell's opinion that it should not be less than three years. She explained that "this would allow time for Mr Veeran to complete treatment through the Community Maintenance Program facilitated by Forensic Psychology Services and assess his level of community reintegration".

Dr Andrew Ellis

Dr Andrew Ellis, psychiatrist and the other of the Court appointed experts, reviewed a body of documentary material and interviewed Mr Veeran on 2 November 2014. I note the following matters from his report.
The account Mr Veeran gave about his current situation included that "his thoughts revolve around the reasons why he came to prison, largely the sense of injustice he feels at his situation". (I reiterate that Mr Veeran pleaded guilty and there was no appeal.)
Mr Veeran gave an account of his sexual offending that conflicted with what Dr Ellis read in the documents with which he had been provided: "[h]e categorically denied engaging in behaviour described in untested allegations". In relation to the 1998 offence concerning the 66 year old victim, he maintained that he was innocent and it was only because of "legal events" that he pleaded guilty. In relation to the index offence concerning the 13 year old victim, he claimed that he only had sex with her on one occasion and that he had been prevailed upon by her to do so. What he told Dr Ellis about each incident was broadly consistent with what he had told Ms Howell, although I note that he also at times claimed to Ms Howell that he had been in a relationship with the older of the two victims.
Dr Ellis reported that Mr Veeran "states that he will refuse to engage in any rehabilitative programmes, particularly the CUBIT program if he stays in prison. He says he will refuse to engage in any kind of psychological treatment when in the community."
Dr Ellis made the diagnosis of "Substance Use Disorder (Alcohol), currently in remission in a controlled environment".
The report considers a variety of risk factors in relation to Mr Veeran committing a further serious sexual offence. It concludes under that topic: "In considering actuarial, structured professional and clinical parameters in the absence of any treatment or supervision, Mr Veeran would fall into a group of persons with a risk for serious sexual offending that is statistically moderately high in frequency with serious consequence, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk."
Dr Ellis considered that "the usual provisions of an ESO [extended supervision order] are considered appropriate to manage the risks presented in this case. Specific monitoring and treatment for alcohol use is recommended to be reinforced."
As to the term of an extended supervision order, Dr Ellis opined: "From a psychiatric perspective a period of five years is considered reasonable in order to establish stable function in the community, monitor the chronic nature of the current risk profile and refine the appraisal of risk. His comorbid psychiatric conditions of personality and substance use impact upon likely treatment and supervision response. It is most likely that a period of 24 months will be required to secure stable independent accommodation, maintain a stable mental state and regular meaningful activity both occupational and social in the community, given the restrictions on persons subject to extended supervision orders. A further 36 months of regular review would be necessary to reevaluate risk in light of inconsistent history, poor engagement and adjustment to community settings. This period is estimated based on his current mental state, potential for paraphilia, personality dysfunction and current attitudes to supervision that will be unlikely to change in the short term. At this point a more informed appraisal of future risk in progress could be made. His psychiatric disorders are chronic and likely to persist beyond any period of supervision, but may be better internally controlled at that point."

Whether there should be an extended supervision order

Having reviewed all of the material I am satisfied that Mr Veeran is a "sex offender" within the meaning of that term in s 4 of the Act: he is over the age of 18 and he has been sentenced to imprisonment following his conviction for a "serious sex offence", namely aggravated sexual intercourse with person aged 10 or above but under 14, contrary to s 66C(2) of the Crimes Act 1900 (NSW) which is punishable by imprisonment for 20 years.
I am satisfied, that Mr Veeran is also a "high risk sex offender" within the meaning of that term in s 5B and that there is a high degree of probability that he poses an unacceptable risk of committing a "serious sex offence" (as defined in s 5(1)) if he is not kept under supervision.
Having regard to the support for the making of an extended supervision order by the experts, I propose to accede to the application. It remains to determine the following issues.

Duration of the order

The State seeks an order for the maximum period of five years. Mr Johnston, counsel for Mr Veeran, argued that it should be for less, perhaps three years.
A relevant matter in determining the duration of an order is to recognise that it constitutes a substantial fetter on a person's liberty. However, it is also necessary to have regard to the objects of the Act set out in s 3. The primary object is to "ensure the safety and protection of the community" whilst another object is to encourage the subject to undertake rehabilitation.
Mr Hammond, counsel for the State, drew attention to the evidence that Mr Veeran was an untreated sex offender with an assessed risk of re-offending in the moderate to high range. His denial of responsibility for his offences and lack of insight into risk factors relevant to the possibility of re-offending are enduring.
Mr Hammond acknowledged the possibility of the State seeking, in effect, an extension of the period of supervision but submitted that this was not a reason to refrain from making an order for the five year period sought if such a period was considered by the Court to be appropriate.
Mr Hammond invited acceptance of the opinion of Dr Ellis that five years was appropriate. He noted that Mr Veeran's condition is chronic and likely to continue beyond even a five year period of supervision. Further, it was submitted that even though the conditions proposed by the State are quite onerous, there is a built-in facility for them to be relaxed over time, subject to Mr Veeran's progress and compliance.
Mr Johnston argued that Mr Veeran's risk has been assessed as moderate to high, not high; his criminal history is serious but not as serious as others; and that he has been compliant with the interim supervision order. He referred to two other cases in which extended supervision orders have been made for three years and submitted that such a period, adequate in Ms Howell's opinion, could be the subject of extension by further application by the State if it was considered necessary.
Mr Johnston also highlighted the difficulty of making predictions about how Mr Veeran might respond and progress; he might present an unacceptable risk of re-offending now and in the near future but it is difficult to say whether that would remain the case for the next five years. There were positive signs in terms of Mr Veeran's response to the interim supervision order in that there is no suggestion of any failure to comply with its very strict conditions; he is progressing in seeking employment; and he has commenced to engage in counselling with Forensic Psychology Services by having recently attended one appointment and with another scheduled in the near future.
It was also submitted that a period of five years provides less incentive for both Mr Veeran and his supervisors to proceed with the process of rehabilitation; a shorter period would provide more focus upon achieving as much as can be done in a more efficient and timely fashion.
I have had regard to all the submissions that were made. I accept as Mr Johnson submitted that making predictions about what may or may not occur in years to come is difficult. What weighs heavily in my mind is Mr Veeran's entrenched attitude of denial of responsibility for his offending behaviour and demonstrated resistance to treatment for what he sees as a non-existent problem. I accept that the past offences have been committed against victims who were known to him and in a domestic rather than public setting. However, that does not provide any guarantee that his risk of further offending is confined to such an environment. The differential in the ages of his victims tends to indicate that his offending as been opportunistic and indiscriminate.
I note that the Commissioner of Corrective Services is required by s 13 to provide the Attorney General with annual reports so an assessment may be made about whether an application should be made to vary or revoke an order. Such an application may be made by either the State or a defendant. This in itself could provide an incentive for Mr Veeran to comply and progress with a view to receiving an assessment that there is no longer a continued need for supervision. However, for the reasons outlined in the preceding paragraph, I propose to order that the period of supervision be for five years.

Whether there should be an electronic monitoring condition

Mr Johnston argued that a requirement that Mr Veeran wear an electronic monitoring device was burdensome and the cause of discomfort. His client is concerned about its negative impact on his ability to obtain employment and upon his mental health condition. It was also submitted that electronic monitoring would provide no protection against further offending, given the nature of the past offending in domestic settings.
I have already expressed my view about the latter of those submissions. In short, I do not accept it.
I do accept that wearing a monitoring device is intrusive, probably uncomfortable, and perhaps regarded by Mr Veeran as punitive. However, it is only intended to be something required in the early period of the supervision order and may be discontinued once there is confidence in the ability of Mr Veeran to comply with his obligations. I accept the evidence of Ms Bates that there is significant utility in having this monitoring capability available for such time as it is considered necessary.
I decline to exclude an electronic monitoring condition from the order.

Orders

I make the following orders: 1. Pursuant to s 5C and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") the defendant is subject to a high risk sex offender extended supervision order ("the order") for a period of five years expiring on 16 February 2020. 2. Pursuant to s 11 of the Act the defendant is directed for the period of the order to comply with the conditions set out in the schedule to the order.

Amendments 10 March 2015 - [62] Date corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2015

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