State of New South Wales v Webster

State of New South Wales v Webster - [2016] NSWSC 999 - NSWSC 2016 case summary — Zoe

[3]

The relevant legislation

Section 3 of the Act provides: "Objects of Act (1) The primary object of this 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 protection of the community. (2) Another object of this Act is to encourage high-risk sex offenders and high-risk violent offenders to undertake rehabilitation."
The legislative purpose of the Act is protective, not punitive. As appears from the terms of s 3, the protective purpose is fundamental.
Section 5(1) of the Act relevantly defines "serious sex offence". The definition includes an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW) which is punishable by a sentence of seven years or more, such as an offence under s 61L (assault with act of indecency): s 5(1)(a); and an offence under s 61K of the Crimes Act (threaten to inflict actual bodily harm with intent to have sexual intercourse): s 5(1)(a1).
Section 5B provides: "High risk sex offender (1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender. (2) 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. (3) 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."
Section 5C confers power on this Court to make an ESO in respect of a high risk sex offender. Implicit in s 5C is that the supervision imposed by an ESO is sufficient to counter what would otherwise be an "unacceptable risk". Supervision can only be regarded as "adequate" if it is effective to reduce the risk such that the offender no longer poses an unacceptable risk.
Section 5H entitles the plaintiff to apply to this Court for an ESO. Section 5I(1) provides that an application for a high risk sex offender ESO may be made only in respect of a supervised sex offender. A person who is serving a sentence of imprisonment for a serious sex offence, or an offence of a sexual nature, or for another offence which is being served with a sentence for a serious sex offence or an offence of a sexual nature, is, relevantly, a supervised sex offender: s 5I(2)(a).
Section 6 provides that an application for an ESO may not be made until the last six months of the offender's current custody and must be supported by documentation including a report by a relevant expert (qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence.
Section 7 provides for pre-trial procedures. Of present relevance, s 7(4) provides: "(4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations."
Section 9(3) provides that the following are to be taken into account in determining whether to make an ESO: "(a) the safety of the community, (b) the reports received from the persons appointed under section 7 (4) [court-appointed experts] 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 relevant 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 relevant offence, . . . (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, (f) 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, . . . (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 in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order).
Section 10 provides that an ESO can be made for a total of five years. Section 10A provides for an Interim Supervision Order (ISO) to be made in certain circumstances. The decision whether to make an ISO is to be made by reference to the same considerations as apply to an ESO. Section 10A provides: "Interim supervision order - high risk sex offender The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order."
Section 11 provides for the conditions that may be imposed on an ESO (or ISO). A breach of ESO (or ISO) conditions is an offence under s 12 of the Act.
These proceedings are to be conducted as civil proceedings: s 21.

[10]

Sexual offences in 1995 and 1996

On 26 November 1995, at about 10pm, the defendant telephoned the victim in response to an advertisement in the paper for "massage services". He made a booking and went to her home at about 11pm. He threatened her with a knife and sexually assaulted her. She reported the matter to police who arrested the defendant shortly afterwards. He was charged with threaten to inflict actual bodily harm with intent to have sexual intercourse. He was granted bail. While he was on bail he committed a further three offences of a similar nature. On 6 January 1996 at 3am he arranged for a woman who was to perform "massage services" to come to his house. He threatened her with a knife and sexually assaulted her. The victim reported the matter to police who arrested the defendant on 6 January 1996 and charged him with three offences: threaten to inflict actual bodily harm with intent to have sexual intercourse; aggravated sexual intercourse; and assault occasioning actual bodily harm.
The defendant was assessed by Dr Susan Hayes on 26 June 1996, following which Dr Hayes prepared a pre-sentence report dated 28 June 1996. She took a history of his disrupted childhood. His parents separated when he was six months old. He was brought up by his grandmother. He took up boxing and got into many fights in the playground. He had no friends. He wanted to do the Higher School Certificate but instead began an apprenticeship with BHP as a fitter and turner. This did not work out. The defendant's father brought him to Sydney. He abused alcohol and drugs, including heroin. He was unable to explain to Dr Hayes why he had committed the offences for which he was to be sentenced. Dr Hayes concluded: "Whatever the reason for Mr Webster's actions, the fact that he has little insight into his own actions and motivations is indicative of the need for long term counselling. He needs counselling not only in relation to his sexual behaviour and relationships with women, but also in relation to his self-esteem and coping behaviour generally. Whilst Mr Webster has been successful in overcoming his heroin addiction mainly on his own, with six months counselling, achieving insight into his own behaviour is a task in which he will need considerable assistance both through programs designed specifically for sex offenders and also programs designed for anger management and coping skills."

[11]

The sentence imposed by Karpin DCJ for the 1995 and 1996 offences

The defendant remained in custody until he was sentenced for the four offences referred to above by Karpin DCJ on 10 December 1996. The total sentence commenced on 6 January 1996 and expired on 24 December 2006. In the remarks on sentence, his Honour described the facts of the offences as "disturbing". Of the victim of the first offence, his Honour said: "The immediate effect on the victim was shock and bruising for which she received treatment. . . She reports some substantial consequences of the attack which was made on her, in terms of fearfulness and hysteria and emotional distress, including inability to sleep at times and fear or continuing in her occupation and indeed, of leaving her house. None of these might seem to be very surprising consequences of the attack to which she was subject."
Of the victim of the second offence, his Honour said: "She reports a number of consequences of the assault upon her including fear of men and a loss of trust in people generally, problems with flashbacks and irrational mood swings. She has lost a substantial amount of weight. She was particularly concerned, as a consequence of these events, that her daughter might discover her mode of occupation."
His Honour concluded: "Clearly, the offences are extremely serious. There was initially neither co-operation nor any indication of contrition. . . . It is clear that people in the community require protection and that the victims in each case should be able to carry out their chosen work without finding themselves placed at risk as these two women were. The objective circumstances of each of these offences calls for a severe penalty. . . . [when providing for a lengthy additional term, his Honour said] it will be essential that the prisoner's return to the community be carefully monitored to ensure that when he is released from custody on the next occasion, he is in a fit position to deal with problems which arise from living in the community with a view to ensuring that he does not, once again, fall into criminality and therefore return to the present system."
His Honour also made reference to the need for counselling which had been recommended by Dr Hayes, whose report was tendered at the sentence hearing.

[14]

Sexual offences in May 2004

On 20 May 2004 the defendant approached a woman on a train bound for Penrith and engaged her in conversation. He asked her where she lived to which she responded "Granville". When she disembarked at Clyde, the defendant got off the train and followed her. He threatened her with a knife, dragged her to a nearby laneway, and demanded money and jewellery. The defendant instructed her to take his penis out and stroke it. She complied as he was threatening her with a knife. She tried to grab the knife, as a result of which she cut her hand. He continually said to her, "Don't fuck with me, I can't get girls any other way". He told her to put his penis in her mouth. The victim tried to calm him down and continued to try to get the knife. A dog began to bark, as a result of which a light came on. The victim heard a male voice. The defendant paused, at which time the victim was able to run away and get help. Police found the defendant at Clyde Station and arrested him. He pleaded guilty to robbery armed with offensive weapon and assault with an act of indecency in the Local Court and pleaded not guilty to threaten to inflict actual bodily harm with intent to have sexual intercourse. The defendant changed his plea to the last offence to guilty in the District Court.
On 12 July 2004 an application was made by the assigned officer of the Burwood District Office for the community service order to be revoked on the grounds of the charges referred to above, as a result of which he was taken into custody.
A pre-sentence report dated 26 July 2005 was prepared in respect of the defendant by Dr Peter Ashkar who addressed risk factors and the potential for rehabilitation in the following terms: "The current assessment reveals a number of factors that have contributed to Michael's offending behaviour, Contributing acute dynamic factors include negative mood state (e.g.,. sadness and anger) and problematic substance (alcohol) use. Contributing stable dynamic factors include intimacy deficits, negative social influences, problems with general self-regulation (e.g., testing known risk factors, breaking conditions of community supervision), and problems with sexual self-regulation (e.g., using sex as a method of coping with negative emotions). CLINICAL OPINION Michael's current offending behaviour is the combined result of individual (i.e., personality, emotional regulation) and contextual (i.e., relationship, substance use, antisocial peers) factors. Personality change, enhancement of emotional regulation, substance use intervention, and dissociation from antisocial peers is required in order to minimise his risk of engaging in similar types of offending behaviours in the future. Michael has the intellectual resources and social skills to benefit from intervention. The current assessment provides no evidence of clinical psychopathology or neurological impairment. His offending prognosis will depend on his willingness to affect positive change. At this point he appears motivated to do so."
Dr Ashkar addressed the need for supervision to manage the risk the defendant poses and said: "Michael appreciates the role that antisocial and criminal peers play in his offending behaviour. He nonetheless remains extremely vulnerable to their influence. It will be extremely important for Michael to maintain his distance from these people until such time that he is able to demonstrate a rejection of antisocial values and beliefs. The pursuit of employment, prosocial peers, and other prosocial interests will help to provide Michael with the resilience he needs to affect and sustain positive change. Regular supervision is recommended upon his release into the community to ensure his adaptive social functioning (e.g., treatment compliance, effective management of his substance use, dissociation from antisocial peers, employment stability)."

[15]

Remarks on sentence for 2004 offences

On 29 July 2005 Armitage DCJ sentenced the defendant for a total term of 11 years with a non-parole period of 9 years for the three offences referred to above to which he had pleaded guilty. The term commenced on 29 July 2005 and is due to expire on 28 July 2016, with a non-parole period of nine years which expired on 28 July 2014 (the individual sentences are set out in the table below). Judge Armitage set out the following extract from the victim impact statement in the remarks on sentence: "Mental Illness or Nervous Shock In the fourteen months since the offence I have found my ability to handle stress considerably decreased as a result of being a victim. This has impacted considerably on my studies. After being a straight distinction student I have had to withdraw from subjects because I could not handle juggling the intense stress and workload of a job and the same amount of part time study. I have had to change some life plans as a result. I have also had to cope with feeling far more vulnerable and less confident. This experience has changed who I am, how I see myself and my relationship to the world. It has significantly impacted on the last fourteen months of my life changing what I would have been doing and where I want to be career wise and in my personal life. An assault this personal will have a reverberating effect on my life for years to come. It has done significant damage."
His Honour continued: "That is a clear indication of very considerable emotional harm. I concede that there is no psychological or psychiatric evidence of that, but I think I can take into account as a lay matter from the victim's statement, which was not suggested is in any way untrue by the defence submissions (and rightly so) that the victim has experienced considerable emotional harm as a result of the offences."
In the further remarks on sentence given on 12 August 2005 (to correct an error in the original sentence imposed), Armitage DCJ said: "What you did was so dangerous that the young girl could very easily have been killed. There was a struggle with a knife and your intention was obviously to have sexual intercourse with her."
The defendant sought leave to appeal against the sentence. The Court of Criminal Appeal granted leave and allowed the appeal, but only so as to set aside the parole order (which was made without power). The appeal against sentence was otherwise dismissed: Webster v R [2006] NSWCCA 346. Justice Sully (Beazley JA, Hislop J agreeing) said: "[9] In my opinion, this submission [that the sentence was manifestly excessive] can be disposed of shortly and on the basis of the following propositions: . . . [6] The learned primary Judge took the view, and in my respectful opinion correctly so, that the criminal antecedents of the applicant were of particular concern. The applicant had a long and bad criminal record. It included convictions in December 1996, and in the Parramatta District Court, of four offences: an offence of threatening to inflict actual bodily harm by a weapon with intent to have sexual intercourse; a second offence of threatening to inflict actual bodily harm by a weapon with intent to have sexual intercourse; an offence of aggravated sexual intercourse without consent; and an offence of assault occasioning actual bodily harm. In respect of those matters various sentences of imprisonment were passed upon the applicant, their aggregate effect being a total sentence of 11 years comprising a minimum term of 5 years and an additional term of 6 years. The applicant was at liberty on parole at the time he committed the offences of 20 May 2004. It is trite that criminal offences are to be treated as being the more serious by reason of the fact that they were committed in breach of parole. [7] The remarks on sentence, read fairly overall, place great emphasis upon the need to sentence the applicant in a way giving proper recognition to the imperative need to protect members of the public, and especially members of the public described by his Honour as "innocent young girls", from offences of the kind committed by the applicant in May 2004. [10] I am unpersuaded that the measure of accumulation upon which the learned sentencing Judge settled, was appellably excessive. The overall result was, undoubtedly, a severe one, but so it ought to have been, given the nature of the particular offences; and given, also, the troubling features of the particular offender's criminal antecedents."

[19]

Risk assessment report dated 11 November 2015 by Samuel Ardasinski and Danielle Matsuo

On 2 November 2015, Samuel Ardasinski and Danielle Matsuo carried out a psychological risk assessment in respect of the defendant which placed him in the high risk category of sexual offending. In the risk assessment report dated 11 November 2015 Mr Ardasinski and Ms Matsuo identified the factors which tended to increase the risk of re-offending in the following passage: "Michael appreciates the role that antisocial and criminal peers play in his offending behaviour. He nonetheless remains extremely vulnerable to their influence. It will be extremely important for Michael to maintain his distance from these people until such time that he is able to demonstrate a rejection of antisocial values and beliefs. The pursuit of employment, prosocial peers, and other prosocial interests will help to provide Michael with the resilience he needs to affect and sustain positive change. Regular supervision is recommended upon his release into the community to ensure his adaptive social functioning (e.g., treatment compliance, effective management of his substance use, dissociation from antisocial peers, employment stability)."
Ms Ardasinski and Ms Matsuo described the risk posed by the defendant in following terms: "If Mr Webster were to return to a lifestyle characterised by alcohol misuse and/or problem gambling; if he becomes frustrated within the context of an intimate relationship or some other relevant stressors (financial hardship, association with criminal acquaintances, etc.); if he allows himself to indulge in deviate sexual fantasy in this context; if he encounters a vulnerable young adult female or makes the decision to contact an escort in this state, the potential for sexual or other violence approaching the threshold considered under the Crimes (High Risk Offenders) Act 2006 may be considered of significant concern."
They said further: "Successful risk management would involve containment of those behaviours associated with risk (such as alcohol use, intimacy issues, sexual preoccupation and weapon use)."

[28]

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 (s 9(3)(h))

The defendant has a lengthy criminal history. The offences involving violence and of a sexual nature which are most relevant to the present application are summarised below. Date of offending Offence/ Provision of Crimes Act 1900 Sentence 15 December 1979 Common assault/ s 61 Total term of 2 years hard labour with non-parole period of 9 months and 15 days 28 September 1982 Unlawful and carnal knowledge and abduction; common assault/ s 89 and s 61 Total term of 10 years to date from 15 August 1983; non-parole period of 4 years and 9 months 15 May 1989 Assault occasioning actual bodily harm/ s 59 Six months hard labour to date from expiry of previous sentence 26 November 1995 Threaten to inflict actual bodily harm with intent to have sexual intercourse/ s 61K(b), S 61J Total term of 8 years; minimum term of 4 years to commence from 6 January 1996 and expire on 24 December 1999. Additional term of 4 years from 25 December 1999 to 24 December 2003. 6 January 1996 Threaten to inflict actual bodily harm with intent to have sexual intercourse/ s 61K(b), s 61J, s 59 Total term of 11 years. Minimum term of 5 years from 6 January 1996 to 24 December 2000. Additional term to commence on 25 December 2000 and expire on 24 December 2006. Aggravated sexual intercourse/ s 61K(b), s 61J Assault occasioning actual bodily harm/ s 59 Fixed term of 2 years from 6 January 1996 to 5 January 1998 4 October 2002 Common assault/ s 61 200 hours of community service; revoked as a result of subsequent offending before it was completed 20 May 2004 Robbery Armed with Offensive Weapon/ s 97(1) Fixed term of 4 years and 6 months commencing on 29 July 2005 and expiring on 28 January 2010. Assault with Act of Indecency/ s 61L Fixed term of 2 years and 3 months commencing on 29 July 2008 and expiring on 28 October 2010. Threaten to Inflict Actual Bodily Harm With Intent to Have Sexual Intercourse/ s 61K(b) Imprisonment for 8 years with a non-parole period of 6 years commencing on 29 July 2008 and expiring on 28 July 2014, with the additional term expiring on 28 July 2016.

[33]

Conclusion

I was satisfied, following the preliminary hearing on 18 July 2016, that the matters alleged in the supporting documentation (being the affidavit of Mr Bulbulia affirmed 24 June 2016 and its exhibit) would, if proved, justify the making of an ESO. Accordingly, I was obliged by s 7(4) to make orders appointing two relevantly qualified experts to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations, and directing the offender to attend those examinations. I was also, on the same basis (that the matters alleged in the supporting documentation (being the affidavit of Mr Bulbulia affirmed 24 June 2016 and its exhibit) would, if proved, justify the making of an ESO), entitled to make an order for an ISO under s 10A as it appeared to me that the defendant's current custody will expire before these proceedings (for an ESO) are determined. I was persuaded that it was appropriate to make an order for an ISO for the maximum period of 28 days.
I note the parties' agreement that, if an ISO is granted, the conditions of any such ISO are to be those attached to the schedule to the summons. I note that the defendant has reserved his right to object to an ESO to take issue with any or all of the proposed conditions at the final hearing. I am satisfied that the conditions set out in the schedule to the summons are appropriate conditions for the ISO which I ordered.
At the conclusion of the preliminary hearing on 18 July 2016, I made the following orders, the reasons for which are set out above: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act): 1. appointing two qualified psychiatrists (as agreed) to conduct separate psychiatric examinations of the defendant and to furnish reports to this Court and the result of those examinations by a date to be agreed between the parties; and 2. directing the defendant to attend those examinations. 1. An order: 1. pursuant to s 10A of the Act that the defendant be subject to a high risk sex offender interim supervision order from 28 July 2016 ("the interim supervision order"); 2. Pursuant to s 10C(1) of the Act that the interim supervision order be for a period of 28 days; and 3. Pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the schedule to the summons which will be reproduced in the formal version of the order. 1. Grant liberty to the parties to restore the matter before me on 3 days' notice.

[45]

Part J: Search and seizure 41. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person. 42. For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 43. During a search carried out pursuant to condition 41 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 44. The defendant must allow CSNSW to search any phone, tablet device, data storage device, computer or online applications (including emails, websites and social media accounts) that he may use. 45. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 41 to 44 above.

At a glance

Court

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Before

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Judgment (49 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)

Cited By (1)