State of New South Wales v Wayne Norman Baldwin

Supreme Court of NSW|2019-09-26|Before: Cavanagh J

Judgment

By summons filed on 23 August 2019, the plaintiff, the State of New South Wales ("the State") brings proceedings against the defendant, Wayne Norman Baldwin, pursuant to the Crimes (High Risk Offenders) Act 2006 ("the Act").
As set out in the summons the State seeks a number of different orders including that the defendant be subject to an Interim Supervision Order ("ISO") for a period of 28 days and then that the defendant be subject to an Extended Supervision Order ("ESO") for a period of two years from the date of the order.
In addition, the State seeks orders pursuant to s 7(4) of the Act appointing a qualified psychiatrist and registered psychologist to conduct examinations and furnish reports to the Court and directing that the defendant attend those examinations.
The defendant has previously been the subject of earlier orders: see State of New South Wales v Baldwin [2016] NSWSC 1141 ("Baldwin No 1") and State of New South Wales v Baldwin [2016] NSWSC 1498 ("Baldwin No 2").
The orders were that the defendant be subject to an ESO for a period of 2 years and 10 months from 14 October 2016 (the "Existing ESO"). The defendant has not, since the making of that order, committed a serious sex offence as that term is defined in s 5 of the Act, but has acted in breach of the existing ESO.
He is currently in custody awaiting a hearing on charges relating to breaches of the existing ESO. It is agreed between the parties that, because of the defendant's time in custody, during which the existing ESO would be suspended, the existing ESO would have a further 39 days to run from the date on which he might be released from custody.
In these circumstances, the State is not seeking today an ISO but is seeking orders 1 and 6 set out in the summons, in essence appointing a qualified psychiatrist and a registered psychologist to conduct examinations of the defendant and to furnish reports to the Court and directing the defendant to attend those examinations, pursuant to s 7(4) of the Act.

The Relevant Legislation

As set out in s 3 of the Act, the primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders, so as to ensure the safety and the protection of the community. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. In making any orders under the Act I would have regard to the objects of the Act.
As set out in the defendant's written submissions, the defendant accepts that: 1. he is a serious sex offender as defined in ss 5 and 5A of the Act; 2. he is a supervised offender for the purposes of ss 5(a) and (c); and 3. he has been the subject of an extended supervision order being the existing ESO.
The Court may make an order for the interim supervision of an offender (s 10A) if in proceedings for an ESO it appears to the Court that: 1. the offender's current custody and supervision 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.
Section 7 of the Act deals with pre-trial procedures. The opening words of s 7(4) are identical to those contained in s 10A(b). For the purposes of the orders sought today, it is thus necessary to be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. If so satisfied the Court must make the orders set out in ss 7(4)(a) and (b). However, if the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Court must dismiss the application: s 7(5) of the Act.
The defendant did not contest the proposition that I would be satisfied as referred to in s 7(4) but both counsel helpfully reminded me that the Court must be satisfied itself independently of the position adopted by the parties. I should emphasise that, in determining whether any ESO might be made, the safety of the community must be the paramount consideration of the Court: s 9(2) of the Act. I accept, as submitted by the State, that at the preliminary stage I should adopt a precautionary or risk avoidance approach: State of New South Wales v Winters [2007] NSWSC 611.
It is not necessary that the Court be satisfied at the preliminary stage that the matters alleged in the supporting documentation will be proved. The Court is only required to be satisfied that, if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely, a high degree of probability: ss 5B and 5C of the Act; State of New South Wales v Wilmott (Preliminary) [2019] NSWSC 776; State of New South Wales v Sturgeon [2019] NSWSC 5595.
It follows, that on the preliminary hearing, the Court is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. Nor is it necessary for the Court to predict the ultimate result or to assess the likelihood of the ultimate result: see Sturgeon at [6] and Wilmott at [7].
As set out in s 6(3), an application for an ESO must be supported by documentation that addresses each of the matters referred to in s 9(3) and that includes a report prepared by a qualified psychiatrist, psychologist or medical practitioner that assesses the likelihood of the offender committing a serious offence. Further, an application may indicate the kinds of conditions that are considered to be appropriate for inclusion under s 11 in the event that an ESO is made.
The supporting documentation must address the matters set out in s 9(3). It does not seem necessary for me to repeat all of those matters at this time, but one of the matters set out in s 9(3)(b) are reports received from the persons appointed under s 7(4) to conduct examinations of the offender and the level of the offender's participation in any such examination. The State seeks an order today in respect of the obtaining of such reports.
The Court does not at this preliminary stage consider any evidence that might be called by the defendant at an interim hearing or of any evidence that might be called by the defendant at a final hearing because the evidence does not cast light on what is alleged in the supporting documentation; see Attorney General for New South Wales v Tillman [2007] NSWSC 119 at [98]. The defendant did not submit any evidence on the application today.
In the State of New South Wales v Stevenson (Preliminary) [2019] NSWSC 492 RA Hulme J summarised the task that the Court is required to undertake at the preliminary stage at [19] as follows: "What the Court is required to do is to proceed upon the assumption that the facts alleged in the supporting documentation are proved and consider whether those facts would justify the making of an ESO."
An ESO may be made if the matters set out in s 5B(a) - (c) are established and if the Court is satisfied to a high degree of probability, that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d).
Being satisfied to a high degree of probability means something beyond more probably than not. The existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof although not to the criminal standard of beyond reasonable doubt: see Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
The meaning of "an unacceptable risk" in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No. 2) [2018] NSWSC 1921 at [23] and [24] as follows: 23. As to the meaning of the phrase "an unacceptable risk", the case law establishes the following: (a) What the court must find to be unacceptable is the "risk" of the offender "committing a serious [sex] offence if he or she is not kept under supervision" (see Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [51] (Beazley P)). (b) The word "unacceptable" - which means, relevantly, "so far from a required standard, norm, expectation etc as not to be allowed" - is one that "requires context in which, or parameters against which, the unacceptable risk can be measured" (see Lynn at [50]). (c) While the HRO Act does not specify "the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made", this "must be so" because "[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made" (see Lynn at [51]). (d) The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community (see Lynn at [55]). (e) The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk (Lynn at [44], [55]-[58], [128], [148]). Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO. 24. The "unacceptable risk" inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: New South Wales v Simcock [2016] NSWSC 1805 at [71].
An ESO may not be made unless the Court is satisfied within the meaning of s 5B(d) that the offender poses an unacceptable risk as referred to in that section. Of course even if such a finding is made, the Court still has a discretion in the making of an ESO.

Submissions

The State submitted that I would be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
It is not in issue that the matters set out in ss 5B(a), (b) and (c) of the Act are established. I must have regard to s 5B(d).
The State relied on two affidavits of Josh Pallas affirmed on 22 August 2019 and 9 September 2019. The supporting documentation is exhibited to these affidavits or otherwise tendered separately.
The State identified seven factors which it submitted, having regard to the supporting documentation, established that the defendant poses an unacceptable risk of committing another serious sexual offence if not kept under supervision. Those factors are: 1. the defendant maintains a sexual attraction towards teenage boys; 2. the Static assessment of the defendant's risk of sexual re-offending continues to place him in the high risk category, notwithstanding his age; 3. the defendant has limited insight into the risk factors associated with his offending behaviour; 4. the defendant has limited internal restraints to prevent further offending behaviour; 5. the defendant's engagement in treatment is superficial and in the absence of a compulsion to attend treatment he is unlikely to attend; 6. the defendant continues to display a grooming behaviour; and 7. the defendant presents well and as such has been able to gain unsupervised access to children.

Supporting documentation as to s 9(3) of the Act

I will turn now to some of the matters alleged in the supporting documentation, having regard to the matters in s 9(3) of the Act.

Criminal History

The defendant is now 73 years of age. As was observed in Baldwin (No. 2) he has had a long history of committing sexual offences against boys. His criminal history includes the following: 1. On 7 April 1978 he was convicted of indecent assault on a 15 year old boy and sentenced to a term of imprisonment. 2. On 10 August 1994 he was convicted of numerous incidents of assault over a two year period against boys of 12 to 14. He received a 12 month sentence with a non-parole of four months. 3. On 13 June 1995 he was convicted of an aggravated indecent assault and sentenced to a further term of imprisonment for a period of 19 months with a non-parole period of four months. The victim was a teenage boy. 4. On 6 September 2007 he committed an offence of loitering near a school, being a convicted sex offender. 5. On 11 March 2009 he was convicted of child pornography offences. 6. On 22 March 2009 he was convicted of two counts of using a carriage service to transmit child pornography and one account of possessing child pornography. 7. On 16 December 2011 he was convicted of two offences of aggravated indecent assault as well as having been found to contravene his obligations under the Child Protectors (Offenders Registration) Act. Those convictions related to a 13 year old boy with Asperger's syndrome.
In his sentencing in respect of his last offences, Judge Ellis described one of the counts as involving serious criminality although not in the worst case category. His Honour found the offence was aggravated because the victim suffered from Asperger's syndrome and because of the degree of grooming involved in the offence.
I note also that the defendant's criminal record includes a number of offences for dishonesty.

The Risk Assessment Report

I will now turn to the Risk Assessment Report which was completed by Dr Richard Parker dated 14 June 2019. This report was prepared at the request of the Commissioner for Corrective Services New South Wales. As noted by Dr Parker, the defendant falls in the level IVB category, well above the average risk level. This results from a combination of the Stable-2007 with the Static-99R to generate an overall risk level. The State submits that this ranking puts him in the highest risk category.
As Dr Parker says, the combined risk rating may be useful in determining the level of supervision or attempted intervention required by Mr Baldwin.
As emphasised on behalf of the defendant, he was released from custody on 5 February 2015 and has not committed since any serious sexual offence. This results in his risk level dropping from IVB to IVA, but that level remains an above average risk, that is, he falls into the well-above average risk category for sexual re-offending compared with other male sexual offenders.
Dr Parker also notes that whilst the defendant has built up some support in the community that should serve to minimise the risk of repeat sexual offending as he enters his mid-70's, his insight is still deficient for such a prolific offender who has undertaken so many years of intervention through the CUBIT and FBS programmes. He notes that the defendant's main expressed motivation to avoid re-offences is a threat of apprehension and sanction through re-incarceration.
Dr Parker noted that the defendant fits the category of a committed offender, someone who will actively seek opportunities to re-offend, grooming parents in seeking opportunities to be alone with a vulnerable child. Committed offenders may also take advantage of opportunities as they occur.
He noted that the key role in supervision would be to limit the defendant's opportunity to gain access to potential victims.

The Earlier Report of Dr Parker dated November 2015

Dr Parker's comments that despite going through the CUBIT programme, he still had limited insight into his offending behaviour. As Dr Parker said, it would be important that the defendant consented to undertake psychological therapy but it seems that his capacity for a real insight into his offending behaviour and victim empathy are quite limited. Dr Parker concluded that his attraction to teenage boys remained strong despite recent prostate surgery and a claim of impotence.
As referred to in the first factor submitted on behalf of the State, the findings of Dr Parker are to the effect that the defendant is a committed offender who has an on-going attraction to teenage boys.
The defendant also has limited internal restraints to prevent offending behaviour. Again, there has been a consistent pattern of chronic sexual violence, although the defendant submitted that it was not direct physical violence during the commission of the offences. These matters are also identified in the report of Dr Adams.

Report of Dr Samuels

For the purposes of this application, the State also relied on the report of Dr Anthony Samuels dated 29 August 2016, a report prepared for the earlier application for the existing ESO. He emphasised that the defendant was placed in the high range risk of re-offending on the Static-99R, State-99R and Stable-2000 which was reflective of his criminal profile.

Report of Dr Adams

As stated in the report of Dr Adams dated 29 September 2016 the defendant has engaged in sexual violence that is chronic in nature, that is, sexual violence that has been persistent and frequent. The sexual violence has involved psychological cohesion, including the prior establishing of a relationship with the victim, for the sole purposes of furthering violence and the offering of payment. Dr Adams says that it is evident that the defendant is engaged in sexual violence with vulnerable victims, both of a young age, and as he notes, one who suffered from a mental disability being as Asperger's disorder.

The Risk Management Report

Another critical supporting document is the Risk Management Report completed by Kelli Grabham on 12 July 2019. In this report, there is reference to the defendant's history of breach, whether on parole or during the period of the existing ESO. It is noted that he had been the subject of two recognisances in 1997 and 1996. Whilst he generally reported as directed, both recognisances were breached due to re-offence. He was subject to a period of supervised parole commencing in May 2009. However, he continued to be resistant to address his offending behaviour and minimise his offences throughout his supervising period.
Whilst in custody in 2014 his parole was initially refused on the basis of the need to complete intervention targeting sexual offending. When released, he was not subject to breach action prior to his parole expiring on 2 August 2016. He has been largely compliant with aspects of supervision, such as submission of schedules, the operation of monitoring equipment, reporting and directing, but his response to supervision, it is said, has been regarded as superficial in some respects. He has further expressed resistance to completing some activities through the terms of his supervision.
As identified in the Risk Management Report the defendant has on occasions failed to comply with the existing ESO. On 20 January 2017, the defendant was arrested for failure to comply with his ESO for having contact with a known child sex offender. On three occasions, he was in breach of the written direction he had been given on 25 November 2016. On 3 October 2018, he had coffee with a single mother of a two year old daughter, pushing the child's stroller and being left alone with the child while the mother was in the toilet or shopping. This made him in breach of the ESO condition prohibiting him from being in the company of any person under the age of eighteen without prior approval of the DSO or without responsible adult supervision. He was ultimately sentenced to one month imprisonment for breach of the ESO.
On 28 February 2019 he was given a warning by his DSO for having contact with another mother with a one year old child, and then on 9 August 2019 he was charged with five offences of failing to comply with ESO and refused bail. As I have said, he remains in custody.
Although these matters are yet to be determined, I am able to have regard to the allegations as set out in the police facts (see State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 at [14]). The allegations of breach relate primarily to the defendant having increased contact with a lady and attending her apartment, including when her daughter was present. Subsequently the lady and her daughter attended the defendant's apartment on the invitation of the defendant. This conduct is alleged to be in breach of conditions 13 and 26 of the existing ESO on the basis that he was not permitted to allow any child to enter his apartment and was not allowed to have any contact with the child.
Subsequently when the police attended at his home unannounced on 30 July 2019 he did not disclose contact with the lady or her daughter, and there was an allegation that he did not disclose that he had been in her apartment. Again, subsequent to this visit by the police, it is alleged that both the defendant had visited the lady in her apartment and that the lady and her daughter had again attended at the defendant's premises on the invitation of the defendant. This is alleged to be again in breach of conditions 13 and 26 of the existing ESO.
Indeed, in the police facts it is alleged that the defendant has had regular contact with the daughter. The incidents are so regular that the daughter is extremely comfortable with the defendant and will give him a high five when she sees him or cuddle his leg. It is alleged that there have been occasions when the defendant has been playing around with the daughter and tickling her. The police allege that the defendant is continuing to show behaviours consistent with the grooming of the child and her mother.

Section 9(3) of the Act

As I have said, in determining whether I am satisfied that the matter alleged in the supporting documentation would, if proved, justify the making of an ESO. the court must have regard to the matters set out in s 9(3) of the Act. Whilst I have referred to and considered the critical parts of the supporting documentation it has not been necessary to restate every aspect of that supporting documentation.
I have considered the matters referred to in: 1. s 9(3)(e1) and in particular the Risk Management Report; 2. s 9(3)(e2): I have already referred to the matters relating to the likelihood that the defendant will comply with the obligations of an extended supervision order; 3. s 9(3)(f): I have covered in some detail the level of the offender's compliance with obligations to which he has been subject, particularly while subject to an earlier ESO; 4. s 9(3)(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. I have already referred to this; 5. s 9(3)(h): I have considered the offender's criminal history in some detail; 6. s 9(3)(h1): the views of the sentencing court at the time of the sentence of imprisonment. I have referred to the views of Judge Ellis already; and 7. s 9(3)(i): any other information that is available as to likelihood that the offender will commit a further serious offence. As I am permitted to, I have had regard to the defendant's breaches of the existing ESO and the allegations made against him in the police facts, which have not yet been the subject of determination.
In all these circumstances, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. In accordance with s 7(4) of the Act, I must make the orders which are sought at this time in the preliminary hearing. As such, I make the following orders: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): 1. appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and psychological examinations as the case may be of the defendant and to furnish reports to Supreme Court on the results of those examinations by 30 November 2019; and 2. directing the defendant attend those examinations; 1. An order restricting access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in respect of the application for access; 2. Liberty to restore the matter on 48 hours' 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: 02 October 2019

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