State of NSW v Colebrook

State of NSW v Colebrook - [2016] NSWSC 1702 - NSWSC 2016 case summary — Zoe

[4]

Offences in January 1996

While on parole for the offences referred to above, the defendant committed offences of aggravated sexual assault (contrary to s 61J(1) of the Crimes Act 1900) and aggravated break enter and steal. The circumstances of the commission of these offences are set out below.
At about 11pm on 13 January 1996, the victim V2, returned home to her ground-floor unit and went to bed. Her brother and his girlfriend were also at home in bed in another room. In the early hours of the morning of 14 January 1996, the defendant broke into the unit and cut the telephone line. He entered V2's bedroom with a knife and a tea towel. He put the towel over V2's head to stop her from seeing his face and put the blade of the knife against her throat. V2 woke up. The defendant instructed her not to scream and told her to remove her pants. He threatened to cut her if she tried to look. V2 removed her pants and underwear. The defendant held the knife against her throat and ordered her to tell him that she loved him. She acceded to his demand. She was crying.
The defendant forced his penis into V2's vagina and had penile intercourse. He then forced her to suck his penis. The defendant removed two rings from V2's fingers and told her not to move for a few minutes after he had gone. He said: "If I hear anything I'll come back and finish it."
V2 was terrified throughout the ordeal. Although her brother was close at hand she believed that if she called for help she would be killed. She was also concerned not to alert the defendant to the presence of others, whom she did not want to expose to harm. A vaginal swab was conducted and a DNA sample was taken which matched the defendant. He was not apprehended in respect of these offences until nine years later (see below).
From about February 1996 until May 1996 the defendant lived with Amy in a dining room, which was converted into their bedroom, in a house which was occupied by a woman, her three children and her de facto. The woman subsequently became the victim of the offences committed by the defendant in August 1996 which are addressed below in chronological sequence.

[5]

Offences in April 1996

At about 9.10pm on Thursday 4 April 1996 V1 went to licensed premises in Bidwill with friends. After some time they moved to another location in the area. Later in the evening V1 had an argument with a friend which resulted in her walking in the street by herself at 1.30am. She walked along King Square, Bidwill, to soccer fields and continued along the fence line to the fields. She noticed that the defendant was following her. He was carrying a tea towel and a knife. He placed the blade of the knife against her throat and grabbed her. He threatened to kill her if she made a noise. He tied the tea towel around her head and told her that he would kill her if she tried to escape. He instructed her to climb over the fence, which she did. V1 said: "I've got a daughter, please don't kill me." While she was still blind-folded he told her to slide under the gate of the Bidwill High School. He unzipped his pants and instructed her to suck his penis. She complied in the belief that he would kill her if she did not.
He instructed her to remove her clothes. She begged him not to. When she was naked, he instructed her to lie on the ground with her knees up. He had sexual intercourse with V1. He ordered her to tell him that she liked it, which she did because she was so terrified. He then instructed her to stand facing the wire fence and instructed her to bend over. He proceeded to have penile/ anal intercourse with her. He then instructed her to get dressed and directed her to another location. At one point he pulled her by her hair. She begged to be released and told him again that she had a daughter. He asked for her name and address. She provided false details. He then instructed her to pull down her pants and bend over. He again had penile/ anal intercourse with her. He told her to remove her pants and sit down. He then left the scene.
When V1 realised that the defendant might have left, she removed the blindfold and sought assistance. The police were called. V1 attended hospital where a sexual assault investigation kit was completed and swabs taken from V1's vagina. DNA analysis of the swabs indicated the presence of male DNA.
The defendant was not apprehended in relation to these offences until thirteen years later (see below).

[7]

Offences on 15 August 1996

The facts relating to the August 1996 offences are taken from the facts as found by the sentencing judge, Holt DCJ in the remarks made on 26 May 1997: "On 15 August 1996 V3 was residing in a Housing Commission residence at A2 with her three children C1, C2 and C3. She went to bed around 11pm after speaking on the phone to a friend by the name of M1. She was awoken at an unknown hour when she felt a hand over her eyes demanding money. She was then struck several times to the head and her head was covered with a pillowcase. The accused said, "Suck it or I'll kill your kid". She was then made to suck the prisoner's penis and he ejaculated in her mouth. He later took her downstairs - had a drink from the fridge and upon returning upstairs, had penile intercourse with her after ripping her panties off and shortly thereafter attempted to do the same thing again. During this episode of intercourse the two youngest children, C3 (aged eighteen months at the time) and C2 (aged three and a half at the time) came into the room. C3 sat on her mother's chest. The prisoner pushed C3 away causing him to land on the floor. The prisoner then tied V3 up using nylon rope and said, "Give me all your jewellery, slut". Whilst this was happening V3 felt a sharp serrated object, which she believed to be a knife, against her throat. Then having taken off her nine rings and watch he left her tied up in C2's room whilst he searched the house. He returned to demand her keycard PIN number which she gave, and left V3 tied up in C2's bedroom. He had apparently searched the house and removed eighty dollars from her handbag, as well as a mobile phone and keycard. V3 remained in C2's bedroom until daybreak. Having managed to free herself, she called out to a neighbour M2 to whom she made the first complaint nominating the prisoner as the person responsible. The prisoner was confronted around 5pm on 16 August by M3, M4 and M5 at his home but denied any involvement in the matter. Fingerprints were found on two items: the prisoner's left index finger on the handbag sleeve and the prisoner's right thumb on a Department of Social Security card.
On 16 September 1996 V3's watch was found in a cassette holder in the defendant's caravan. As a result the defendant was interviewed by police about the offences. He denied any involvement. He was charged with the August 1996 offences and was refused bail.
In October 1996, Amy's child, who was the defendant's second daughter, was born. According to Amy, she and the defendant were engaged to be married.
On 9 December 1996 the defendant was convicted and sentenced for other unrelated summary offences committed before 16 August 1996: assault and breach of an apprehended violence order. The sentences for these offences commenced on 16 September 1996 (being the day on which he was taken into custody following his arrest for the August 1996 offences).
In February and March 1997 the defendant was tried by jury for the August 1996 offences. He gave evidence at the trial in which he denied any involvement. Amy also gave evidence which supported the defendant's evidence.
On 7 March 1997 the appellant was convicted by a jury of all five counts on the indictment. On 26 May 1997 the defendant was sentenced by Holt DCJ to a total term of 10 years with a minimum term of 7 years, commencing on 12 February 1997 (to take account of the period in custody from 16 September 1996 for unrelated offences), which comprised the following sentences. Count Offence/ Crimes Act section Max penalty Sentence imposed 1 break enter and steal with corporal violence/ s 112 20 yrs 10 yrs with minimum term of 7 yrs commencing 12.2.97 2 sexual intercourse without consent/ s 61I 14 yrs 5 yrs fixed term commencing on 12.2.97 3 sexual intercourse without consent/ s 61I 14 yrs Ditto 4 attempted sexual intercourse without consent/ ss 61(I), 344A 14 yrs Ditto 5 false imprisonment (common law misdemeanour) Discretion-ary 2 yrs fixed term commencing on 11.2.99

[9]

Intervening events

In 1999, while he was in Lithgow Gaol, the defendant married Amy, the mother of his second child. Shortly thereafter Amy stopped seeing him and has since divorced him.
In 2001 a DNA profile was created for the defendant (according to a statement of undisputed facts in the sentence hearing in July 2010 for the April1996 offences).
On 11 February 2004 the defendant's non-parole period for the sentence imposed for the August 1996 offences expired.
On 8 February 2005, the defendant was charged with the January 1996 offences. He admitted his involvement, in the face of what Knox DCJ (the sentencing judge) described as "overwhelming evidence of guilt in the form of the DNA evidence".
On 2 March 2005 the defendant was reclassified as A2 (maximum security) as a result of having been charged with further offences of a sexual nature. He was transferred to Goulburn Gaol.
On 9 March 2005 the defendant was interviewed by psychologists, Lyn Vidler and Sharon Kennedy, at the request of the Parole Board. They noted in their report that the defendant continued to deny responsibility for the August offences. They reported: "General Self-Regulation: Mr Colebrook's offences were violent in nature. This could indicate that the offences were motivated by thoughts and feelings related to anger and revenge. However, since Mr Colebrook has not completed offence-specific treatment we do not have a good assessment of this dynamic risk factor. Sexual Self-Regulation: Mr Colebrook continues to deny responsibility for the offences. Thus, he has not identified sexual fantasies or behaviour that may increase his risk of reoffending. Since the offences were violent in nature and were carried out despite the presence of children, it is important that he identify the deviant sexual thoughts that led him to offend. This would be a focus of treatment. At this stage we do not have a good assessment of this dynamic risk factor. Taking into consideration both static and dynamic risk factors, Mr Colebrook presents at an overall high risk of sexual recidivism at this time. It is recommended that Mr Colebrook be required to complete CUBIT prior to release. However, the CUBIT programme is available only to inmates classified to minimum security. Until Mr Colebrook is assessed as suitable for a minimum-security classification he will remain ineligible for the CUBIT programme. In addition, he would need to accept some responsibility for his offences before his application for entry into the CUBIT programme would be accepted."

[12]

The sentencing remarks in August 2005 with respect to the January 1996 offences

The defendant's sentence for the January 1996 offences was reduced by 25% for his plea of guilty. The sentencing judge, Knox DCJ, noted in respect of the plea: "While the plea is some evidence of contrition, such a finding must be tempered by the fact that the acknowledgement of guilt was in the face of overwhelming evidence of guilt in the form of the DNA evidence."
His Honour noted that, despite the defendant's lengthy criminal record, this was the first offence of a sexual nature. The sentencing judge also noted that the defendant had, until about June 2002, a consistent history of institutional misconduct which involved violence and threats. However, his behaviour changed when he undertook the training course. His Honour was not, however, persuaded that the defendant had "turned the corner", although he found that "there may be some prospects of rehabilitation". His Honour also noted that the defendant was on conditional liberty at the time of the offending in that he was on unsupervised parole, although he was apparently unaware of that fact.
Of the offending conduct, the sentencing judge said: "In my view the prisoner's moral culpability in this instance cannot be regarded as anything other than very high. What occurred was, in my view, a shocking rape of a young woman, not known to the prisoner, which was carried out in her own bed, in her own home at night. It involved unprotected penile and oral intercourse at the point of a knife in frightening and humiliating circumstances. On any view of these objective factors it would have been a terrifying ordeal and one which, in my view, is at the upper end of the scale of offences of this nature. The offence warrants a condign penalty sufficient to satisfy the needs for general deterrence and to personally deter the prisoner and make him realize that whatever his unresolved issues may be in relation to his attitudes to women that the community will never tolerate this kind of behaviour."
The sentencing judge imposed the following sentences for the January 1996 offences. Count Offence/ Crimes Act section Maximum penalty Sentence 1 Aggravated sexual assault/ s 61J(1) 20 yrs 9 yrs with non-parole period of 6 yrs commencing 10.8.03 2 Aggravated break enter and steal to commit felony/ s 112(2) 20 yrs 6 yrs with non-parole period of 4 years commencing 10.8.03

[19]

Sentencing in July 2010 for the April 1996 offences

The defendant gave evidence at the sentence hearing. According to the remarks on sentence of Quirk DCJ, he said that: "…it was his practice at the time, he having been in and out of custody from about the age of eighteen up to the time of these offences, to go out at night "looking for a crime to commit", mostly to provide proceeds to enable him to purchase marijuana and alcohol, and for that reason he took with him a knife and a cloth. He said that he was not particularly fussy as to what crime he would commit and he conceded that a sexual offence was "not out of the question"."
The sentencing judge noted the other offences (January and August 1996) for which the defendant had already been sentenced and considered the issue of totality. Her Honour quoted extensively from the CUBIT report (referred to above) and outlined the defendant's post-release plans as follows: "On his release to parole he has arranged to reside with his uncle and aunt. His aunt, Gwen Jerrow, gave evidence before me. She was a composed and impressive witness, and I accept that she is prepared to assist the offender in any way that she can on his release to the community. Jason Winfield, his half-brother, who has his own printing business, has also undertaken to assist the offender in obtaining work, indeed, by giving him work himself, until he can obtain work as a trainee electrician. He will require continuing assistance and supervision on his release from custody."
The sentencing judge also formed a very positive view of the defendant's future prospects, as is evident from the following passage from the remarks on sentence: "The offender is now 38 years of age. He was 24 years old when he committed these offences. Because of the delay in bringing him before the court for sentence on these matters, he is able to demonstrate a remarkable change in his attitudes, and to demonstrate the rehabilitation which has taken place since he has been in custody, particularly over more recent years, when he has been undertaking his trade course, and more particularly since he has successfully completed the CUBIT programme. His evidence before me, as I think I have indicated, was, I thought, sincere. He did not appear to be manipulative. His remorse and empathy appeared to be genuine and I accept, as he said, that the person who was committing these offences and the other offences in 1996 has turned into a "different man". The offender, although acknowledging that he has to "pay for his crimes" and to "serve more time" for his crimes, told the Court that he thought he had a brighter future, and that he would no longer be a threat to the community, something which I sincerely hope will turn out to be the case."
Her Honour discounted the sentence by 27% to take account of the defendant's plea of guilty and remorse. After sentencing the defendant, Quirk DCJ told him that she had accepted that he was a "changed man".
The offences, maximum penalties and sentences imposed are set out in the following table: Count Offence/ Crimes Act section Maximum penalty Sentence imposed 1 Aggravated sexual assault/ s 61J(1) 20 yrs 7 yrs to date from 16.9.08, with non-parole period of 3 yrs 2 Aggravated sexual assault/ s 61J(1) 20 yrs 7 yrs to date from 16.9.08, with non-parole period of 3 yrs 3 Aggravated sexual assault/ s 61J(1) 20 yrs 8 yrs to date from 16.9.08 with non-parole period of 3 yrs Form 1 Aggravated sexual assault/ s 61J(1) (Form 1) [taken into account on count 3

[24]

Risk assessment report of Ms Youssef and Ms Matsuo dated 1 February 2016

On 11 December 2015 the defendant was interviewed by two psychologists, Ms Youssef and Ms Matsuo, for the purposes of a risk assessment in anticipation of these proceedings. Ms Youssef and Ms Matsuo noted that, before being released to parole in September 2015 the defendant had not, since turning 18, spent more than a continuous period of 10 months out of custody. His responses to questions about substance use were summarised in the following passage in the report: "When asked in interview about his plans to manage his substance use in the community and specifically if he was utilising AOD services he said "No, I don't need to, I have it under control…that won't be a problem for me". Mr Colebrook's lifestyle prior to prison, as well as his time in prison, suggest ongoing struggles with lifestyle prior to prison, as well as his time in prison, suggest ongoing struggles with substance use. Mr Colebrook denied that substance use was a contributing factor to his sexual offending behaviour although it appears to be part of the "illegal" lifestyle he described which is a risk factor for his offending behaviour. Although Mr Colebrook continues to remain complaint with his methadone treatment, his insight regarding other relapse prevention strategies and other ways to manage his substance use indicate limited insight."
Ms Youssef and Ms Matsuo noted that the defendant scored 5 on the Static 99R scale which placed him in the moderate-high risk category. His dynamic risk factors were assessed by reference to the STABLE-2007. He scored 10, which placed him in the moderate category. When these scores were combined, the resultant score indicated a moderate/ high risk level.
Ms Youssef and Ms Matsuo also administered the Risk of Sexual Violence Protocol (RSVP), which is a structured professional judgment instrument developed to help identify and manage factors identified as associated with sex offending. Ms Youssef and Ms Matsuo examined five domains: sexual violence history; psychological adjustment; mental disorder; social adjustment and manageability. They considered the defendant to present the following risk factors in the domain of sexual violence history: chronicity of sexual violence; diversity of sexual violence (with known and unknown victims, outside and indoors; threats and use of weapon and a range of penetration methods); and physical coercion. When considering the domain of psychological adjustment Ms Youssef and Ms Matsuo noted that, although the defendant acknowledged his sexual offences at the time of interview, he categorically denied the offending from 1996 until 2005 when new charges were brought against him. Accordingly they considered him to meet the criteria for extreme minimisation or denial of sexual violence. They identified the defendant's attitudes of sexual entitlement and rationalising sexual violence as meeting the criteria for attitudes that support or condone sexual violence. They also considered him to have problems with self-awareness and noted: ". . . Mr Colebrook reasoned that one of the primary motivators for his sexual offending behaviour was wanting to ejaculate without a woman complaining "of a sore jaw…or not wanting it".
Ms Youssef and Ms Matsuo identified the defendant as having problems with stress or coping and noted that he told them of his excessive alcohol use from age 16 and daily cannabis use from age 18. They considered his excessive use of alcohol to highlight "an unhelpful way of dealing with negative emotions".
In the domain of mental disorder, Ms Youssef and Ms Matsuo identified sexual deviancy as a possible risk factor although they considered it to be unclear whether he had thoughts or fantasies of rape leading up to the offending. They noted depressive tendencies as well as problems with substance abuse, which they concluded was used as a coping mechanism and constituted a risk factor because it has a "disinhibiting effect and facilitates behaviour which could lead to another offence". In the social adjustment and manageability domains, Ms Youssef and Ms Matsuo also identified problems.
Ms Youssef and Ms Matsuo identified the following potential risk scenarios: "12.2 Were Mr Colebrook to reoffend, it is likely to be relatively opportunistic and impulsive, with the victim being a stranger or someone he knows. The victim would most likely be an adult female, on her own, at night. The offence could occur in a private place such as the victim's home or a building or a public space such as a park. Overall, the factor most likely to provide an exponential escalation in Mr Colebrook's risk of reoffending is him wandering around, late at night "roaming" for unlocked homes or a lone woman. Mr Colebrook may have consumed some substances (e.g. alcohol, marijuana) in the hours leading to an offence, however this is not a necessary factor for his offending behaviour. 12.3 Based on his risk factors, the following situations are warning signs for Mr Colebrook: Engaging in poor coping strategies, i.e. consuming alcohol, withdrawal, argumentative, aggressive; Engaging in an unfulfilling relationship where he feels rejected, unworthy, and unwanted; Feeling that he is not meeting his sexual needs; Feeling bored, lonely, aimless and isolated; Residing in unstable accommodation, leading an itinerant lifestyle; Wandering around late at night on his own; Re-engaging with anti-social peers and/or living an anti-social lifestyle; Rejecting support services and poor compliance with supervision (e.g., not attending scheduled appointments, not complying with reporting obligations)."
Ms Youssef and Ms Matsuo identified conditions which could be imposed on any ESO which would be beneficial in ameliorating the risk posed by the defendant.
Mr O'Neil required Ms Youssef for cross-examination. For a medical reason which Mr O'Neil accepted to be reasonable and sufficient, she did not attend for cross-examination. He objected to the report on that basis but I allowed it. Although the fact that Ms Youssef was not cross-examined, might in other circumstances affect the weight of the report, the report is consistent with the reports of the court-appointed experts and with other materials. Ultimately the defendant did not press his opposition to an ESO and can be taken to have accepted that the condition precedent for making such an order was established by the plaintiff's evidence. In these circumstances, I am not persuaded that less weight ought be given to the report on the basis of Ms Youssef's unavailability. I note that Ms Matsuo, who co-authored the report, was not required for cross-examination.

[29]

Dr Eagle

Dr Eagle, a qualified forensic psychiatrist, assessed the defendant on 21 September 2016 and prepared a report dated 4 October 2016. Dr Eagle opined that the defendant did not have a major mental illness at the time of assessment. She considered that he had alcohol use disorder in remission. She considered that the defendant's history and presentation suggested the possibility of sexual sadism disorder and noted that: "He described over a period of at least 6 months recurrent sexual arousal from the sexual assault of another person who was non-consenting. He described feeling powerful and in control during the repeated sexual assaults. He reported arousal and masturbation in response to memories of the assaults for a sustained period of time following the Index Offences [the offences in January, April and August 1996]. He has reported overcoming these behaviours in a controlled environment."
Dr Eagle also considered the defendant to display traits consistent with antisocial personality disorder such as pervasive failure to conform to social norms; deceitfulness; impulsivity; reckless disregard for the safety of others; consistent irresponsibility; lack of remorse; irritability and aggression. Her conclusion was that he has a substance use disorder and an antisocial personality disorder and probably a sexual sadism disorder.
On the basis of historical, clinical and risk management factors, Dr Eagle considered the defendant to pose a high risk of violent sex offending. She identified the following scenarios as being particularly risky: "Scenarios that would place Mr Colebrook at a substantially higher risk of offending include those involving the use of illicit substances or alcohol; engaging in criminal activity or associating with others similarly involved; in a perceived invalidating or unfulfilling relationship; in circumstances that present an opportunity to offend (i.e. carrying a weapon, unemployed, walking the streets late at night)."
Dr Eagle considered that the defendant would benefit from a longer period of supervision having regard to the risk factors and the prolonged period of incarceration.
Dr Eagle was cross-examined extensively by Mr O'Neil about her opinion that the defendant posed a high risk of re-offending. However, following the luncheon adjournment, Mr O'Neil announced that the defendant no longer challenged the making of the order and confined his challenge to the duration of any ESO and the conditions to be imposed. Accordingly I do not consider it necessary to refer to Dr Eagle's opinion about the various indicators of risk which were referred to in her cross-examination.
It was put to Dr Eagle in cross-examination that the positive report that followed the defendant's completion of the CUBIT program indicated that the risk he posed was substantially reduced. Judge Quirk's positive findings on his prospects of rehabilitation in the remarks on sentence were also put to Dr Eagle. Her response to the effect of the defendant's participation in the CUBIT course was as follows: "So somebody who refuses to engage in any sex offender treatment programme would on a risk assessment looking at dynamic factors be considered at high risk than someone who did engage in a risk assessment programme. . . . So I think it is very positive for Mr Colebrook's future prognosis that he is able to engage in a, and willing to engage in a, sex offender treatment programme and he should continue to. Sex offender treatment programmes conducted in custody, however, are unable to demonstrate that or give the offender an opportunity to show that they are able to address the factors in a community setting and refrain from offending in a community setting where the real stressors of life that were surrounding them at the time they did the offending are present."
As to the length of the order, Dr Eagle considered that one would need at least two or three years to be able to assess whether the interventions had been of benefit and whether the risk posed by the defendant had been reduced as a result. However, she said: "So, there could be a number of factors that impact on that over the next two or three years. He might drop out of contact, relapse into drug use and that would potentially prolong that period of time before you could really determine whether the interventions have been successful or have been able to reduce his risk."
I propose to refer to Dr Eagle's evidence about particular conditions when addressing the conditions to which the defendant, through Mr O'Neil, takes objection.

[30]

Dr Adams

Dr Adams assessed the defendant on 27 September 2016 and 17 October 2016. He prepared reports dated 24 October 2016 and 23 November 2016.
At the time of the first assessment, the defendant reported that he was working regularly installing shelving and racking for an agency, employed on a casual basis. By the time of the second interview, such work was no longer available, although there is a prospect of its being available in the future.
He gave Dr Adams the following history of substance abuse while on parole and subject to an ISO: "Mr Colebrook said he remained abstinent for approximately six months following his release from custody in 2015, but then smoked cannabis for a few weeks on a daily basis. He said he had not smoked any cannabis for the two weeks prior to my first assessment however. He related his use of cannabis to his stressors at around this time, in particular his partner being sexually assaulted. He said he smoked two "snow cones", which he said contained methamphetamine as well as cannabis. He said during this two-week period he also consumed alcohol until intoxicated on a couple of occasions, but that over recent weeks he had remained abstinent. He said he had not used any illicit substances intravenously since his release."
Dr Adams considered the defendant to have a history of mood disorder and severe substance use disorder. Dr Adams noted that these opinions were formed as a result of two interviews and suggested that his Justice Health records might provide a more detailed view of his clinical presentation. These records were provided to him and formed the basis of his second report.
Dr Adams identified the risk factors of concern in the following passage: "In my opinion the most relevant risk factors that require assertive management include Mr Colebrook's worsening symptoms of major depression, psychological adjustment issues, re-emergence of illicit substance use and alcohol use, social adjustment difficulties, and his difficulties engaging with his current management plan. I have highlighted possible additional management strategies below."
Dr Adams considered a "long-lasting" management plan to be appropriate. He said: "It is my opinion that Mr Colebrook's current management plan - as depicted in the Schedule of Conditions of Supervision [schedule to the summons] provided - is appropriate. However, I note Mr Colebrook's dislike and frustration with the current restrictions. This will require careful review and monitoring in his ongoing management. Where possible, appropriate adjustments should be made. As discussed above, it is concerning from a psychiatric perspective that Mr Colebrook's overall presentation appears to be deteriorating. Of particular concern is his deteriorating mental state, worsening symptoms of major depression, recent use of cannabis and alcohol, reported lack of employment, and reported lack of social support network. These are all aspects that require assertive monitoring and appropriate management as a matter of priority."
Dr Adams prepared a second report dated 23 November 2016 in which he reported his opinion following review of the Justice Health notes. He regarded the notes as consistent with his opinion that the defendant suffers from a recurrent major depressive illness.
In his oral evidence Dr Adams explained his view that an ESO of five years would be appropriate: "Q. Why would, in your opinion, an order with conditions lasting five years be appropriate, what would be achieved in five years? A. Certainly, from a psychiatric perspective, it is important to state that the exact timeframe is difficult to comment upon specifically. We don't have any evidence base to say that five years is the exact cut‑off for someone best to be managed in the community. That's important. However, in Mr Colebrook's case, if we go back through his history and look at difficulties with problematic behaviour, offending and all the risk factors we have talked about before, they date back several years, a long time. Therefore, in terms of considering his continuing care and the problems that he is facing currently, I think it is fair to say that his ongoing management and follow‑up needs to be for a long period."

[45]

Consideration

The long-term risk that the defendant poses to the community is not to be underestimated. The violence and misogyny of his offending behaviour are important features of the defendant's offending, as is his intoxication at the time of offending. I regard the prospect that the risk posed by the defendant to the community (and in particular to adult women) could be adequately managed by the defendant himself (by reference to risks and rewards) as dubious.
The duration of an ESO is to be determined as a matter of judgment, having regard to the wording of the Act. The relevant offences were committed over a relatively short period (from January to August 1996) when the defendant was in his twenties. He is now in his forties. However, the offences were very serious and terrorised the women concerned. Although the defendant pleaded guilty to the April 1996 and January 1996 offences, he did so only in the face of overwhelming DNA evidence from samples extracted from the vaginas of his victims. In relation to the August 1996 offences, where there was no such evidence, he continued to deny his guilt well after the Court of Criminal Appeal had dismissed his appeal against his convictions. He has spent almost all of his adult life in custody. These matters do not augur well for a speedy rehabilitation. The factors that led to the offending behaviour are long-standing and complex. They derive from the defendant's early life, his attitudes to women and sex; and his long-standing substance abuse. These attitudes and ways of thinking and behaving are not readily amenable to change, particularly as the defendant has been incarcerated for almost all of his adult life.
I note that the defendant is said to be in an intimate relationship which was formed not long after his release on parole. For reasons given above, I do not consider that this can be regarded as a protective factor in the present case as the defendant was in a relatively long-standing, loving relationship with Amy, who was for at least part of the period of his offending pregnant with their child, when he committed the offences in January, April and August 1996. Indeed, Dr Eagle and Ms Youssef and Ms Matsuo have identified as a risk factor the defendant's perception (irrespective of whether it corresponds with reality) that any current intimate relationship is unfulfilling.
There is no reason to suppose that there will be any significant amelioration of what I have found to be the unacceptable risk posed by the defendant in the next five years. It would not, in my view, be appropriate in these circumstances to grant an ESO for a period less than the five-year maximum permitted by the Act.

[50]

Condition 13

Proposed condition 13 provides: "The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO."
Mr O'Neil submitted that condition 13 is otiose as its purpose is fulfilled by condition 24 (the non-association condition). In the alternative, Mr Neil submitted that the condition was unduly restrictive and not appropriate to the risk posed. He contended that none of the offences was committed against anyone who lived with the defendant or who was in an intimate relationship with him. In the alternative, Mr O'Neil proposed that the words "If directed" be added at the beginning of this clause and the words "after 9pm" be added after "remain".
Ms Kaye considered condition 13 to be problematic in the current circumstances since the defendant resides in a house with five other adults who ought be at liberty to invite people home spontaneously without the requirement that the DSO give prior permission. She expressed concern that he might be in breach of the condition whenever another adult asks someone to the house where the defendant is living.
I do not consider the non-association condition 24 to serve the same purpose as condition 13. For condition 24 to be of utility, the DSO must know in advance of any person with whom the defendant might associate. Condition 13 places the onus on the defendant to obtain permission. I regard this as reasonably necessary in light of the offending conduct. The offences committed in January and August 1996 were committed when there were others in the residence at the time of the assaults. Having regard to the threats made to the victim in the January 1996 offences, she could not even cry out for help to her brother, who was in another room in the unit.
Further, I note that, although the defendant was not living with V3 in August 1996, he and Amy had lived in V3's house for a period before they moved out earlier that year. His familiarity with the house meant that he knew that the laundry window was not locked and he used it as his means of entry. Thus, I do not accept the submission that the condition is not related to the offending behaviour or the risk posed by the defendant.
I do not consider it to be either necessary or appropriate to refine this condition for the defendant's present circumstances. The DSO may give conditional approval. For example Ms Kaye's approval might be subject to the condition that the person who enters, remains or stays overnight, not sleep in the defendant's room. Alternatively, the DSO might give approval to any person invited onto the premises by any of the five adults in the house. The DSO might give approval for Jasmine to stay overnight. Given the length of the ESO, and the defendant's stated intention to move to his own accommodation, I consider the condition to be appropriate and reasonable in its current form.

[55]

Conditions 29-33

Proposed conditions 29-33 provide as follows: "29 The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed. 30 The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order. 31 The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet. 32 The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. 33 The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately."
Mr O'Neil submitted that these conditions were irrelevant since there was no evidence that the defendant's offending conduct was in any way related to the telephone or the internet. Mr Fernandez pressed the conditions on the basis that the internet was in such an early stage of its development when the defendant was taken into custody in 1996 that no inference ought be drawn that the internet would not create or enhance the risk posed by the defendant. He also submitted that mobile phones with internet access were not available when the defendant went into custody in 1996. He also submitted that, having regard to the violent and sadistic features of the defendant's offending, it was important that the DSO be in a position to monitor any devices the defendant might have to ascertain whether he was accessing material which depicted such behaviour.
I am persuaded that the conditions are reasonable and appropriate. The potential for the internet to arouse those who are stimulated by violence or sadism as well as identify those who might be in the area and available for sexual intercourse are both factors which make the conditions appropriate. To deprive the DSO of access to the defendant's devices could put the DSO at a significant disadvantage in managing the risk which the defendant poses to the community. Furthermore conditions 29-33 are ancillary to the enforcement of condition 39 (prohibition on access to pornographic, violent and classified material).

[57]

SCHEDULE OF CONDITIONS OF SUPERVISION DANIEL MICHAEL COLEBROOK Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) Part A: Reporting and Monitoring Obligations Monitoring and Reporting 1 The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order. 2 The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO. 3 The defendant must follow all reasonable directions by his DSO or any other person supervising him. Electronic Monitoring 4 The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements 5 If directed, the defendant must provide, either orally or in writing, a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 6 If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period 7 The defendant must not deviate from his approved schedule of movements except in an emergency. 8 The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. Part B: Accommodation 9 The defendant must live at an address approved by his DSO. 10 The defendant must be at his approved address between midnight and 5.00am unless other arrangements are approved by his DSO. 11 The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 12 The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. 13 The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO. Part C: Place and travel restrictions 14 The defendant must not leave New South Wales without the approval of CSNSW. 15 The defendant must surrender any passports held by the defendant to the Commissioner. 16 The defendant must not go to a place if his DSO reasonably tells him he cannot go there. Part D: Employment, finance and education 17 If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO. 18 The defendant must not start any job, volunteer work or educational course without the reasonable approval of his DSO. 19 The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO. Part E: Drugs and alcohol 20 The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed. 21 The defendant must submit to testing for drugs and alcohol as directed by his DSO. 22 The defendant must not enter any licensed premises without the approval of his DSO. 23 The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO. Part F: Non-association Associations with Others (not children) 24 The defendant must not associate with people that his DSO reasonably tells him not to. 25 The defendant must not associate with any people who are consuming or under the influence of illegal drugs. 26 If the defendant starts an intimate relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history. 27 The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service Part G: Weapons 28 The defendant must not, without reasonable excuse, have custody of a knife or other cutting implement in a public place. Part H: Access to the internet and other electronic communication 29 The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed. 30 The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order. 31 The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet. 32 The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. 33 The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately. Part I: Search and seizure 34 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 anything in, the defendant's approved address; e. search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or anything 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. 35. 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. 36. During a search carried out pursuant to condition 35 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. 37. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 38. 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 34 to 37 above. Part J: Access to pornographic, violent and classified material 39. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, or any other material as directed by the DSO. Part K: Personal details and appearance 40 The defendant must not change his name from "Daniel Michael Colebrook" or use any other name without the approval of his DSO. 41 The defendant must not use any alias, log-in name, or a name other than "Daniel Michael Colebrook" or use any email address other than those known to the DSO under condition 30 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email. 42 The defendant must not change his appearance without the approval of his DSO. 43 The defendant must let CSNSW photograph him. 44 If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Part L: Medical intervention and treatment 45 The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 46 The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. 47 The defendant must take all medications that are prescribed to him by his healthcare practitioners. 48 If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. 49 The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. 50 The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

Parties

Applicant/Plaintiff:

State of NSW

Respondent/Defendant:

Colebrook

Legislation Cited (3)

Crimes Act 1900(NSW)

Crimes (Administration of Sentences) Act 1999(NSW)

Crimes (High Risk Offenders) Act 2006(NSW)

Cases Cited (5)

Introduction

By summons filed on 27 July 2016, the State of New South Wales (the plaintiff) sought an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of Daniel Colebrook (the defendant) for a period of five years, on the conditions set out in the schedule annexed to the summons. Except where otherwise stated all references to legislative provisions in these reasons are to the Act. The plaintiff also sought an interim supervision order (ISO) against the defendant pursuant to s 10A pending the final hearing of this matter and an order pursuant to s 7(4) appointing either two psychiatrists or a psychiatrist and a psychologist to examine the defendant and report to the Court on the examinations.
On 12 September 2016 Wilson J made orders under s 7(4) and ordered an ISO to commence on 15 September 2016, being the day on which the defendant's sentence expired: State of New South Wales v Colebrook [2016] NSWSC 1295.
The ISO has since been renewed twice. The most recent ISO is due to expire on 7 December 2016.
Mr O'Neil, who appeared on behalf of the defendant, ultimately accepted that it was open to the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision. However, Mr O'Neil contended that, if an ESO was made, it ought not be for the maximum period of five years. He submitted that an ESO of two years' duration would be sufficient. Mr O'Neil also took issue with some of the conditions, which will be referred to in more detail below.

Evidence

The plaintiff relied on the following evidence: 1. Affidavits of Rita Giurastante sworn 27 July 2016 (including Exhibit R-1) and 15 November 2016; 2. The following reports of the experts appointed by the order under s 7(4) referred to above: a report of Dr Kerri Eagle dated 4 October 2016 and a report of Dr Jonathan Adams dated 24 October 2016.
With one exception, Mr O'Neil did not object to any of the plaintiff's evidence, much of which comprised material that had been produced pursuant to orders under s 25 of the Act (referred to below) and was therefore admissible under s 25(3). Mr O'Neil objected to the risk assessment report of Caroline Youssef and Danielle Matsuo on the grounds that Ms Youssef was not available for cross-examination. I allowed the report, the weight of which will be considered when its substance is addressed below. Mr O'Neil also required Dr Eagle, Dr Adams and Rebecca Kaye, the defendant's Departmental Supervising Officer (DSO) to attend for cross-examination. Their oral evidence will be addressed below.
The defendant adduced no evidence, save for documents tendered in cross-examination. It is not appropriate for me to draw any inference against the defendant by reason of his not giving evidence as the Act does not displace the privilege against exposure to a penalty, save for the obligation upon an offender to be examined by the two independent experts: State of New South Wales v Donovan [2015] NSWCA 280 at [115]-[119] per Beazley P and Macfarlan and Leeming JJA.

[2016] NSWCA 57

[1999] NSWCCA 262

[2015] NSWCA 28

Cited By (2)

State of New South Wales v Colebrook

State of New South Wales v McGrath

At a glance

Court

Decision date

Before

Source

Judgment (58 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (5)

Cited By (2)