State of NSW v Howard

Background

1. To recap very briefly: the defendant is a mature man in his late 60s. He suffered a deprived and disrupted upbringing. He was placed in what was then called a boys' home at an early age for property offences. There is a suggestion of cognitive impairment arising from a head injury in a motor vehicle accident decades ago (although it has also been said that perhaps the defendant "deliberately forgets" events that he does not wish to discuss).
2. As a young man, on two separate occasions, he committed serious sexual offences against adult women when he was intoxicated by alcohol. The latter set of offences was particularly grave, featuring as it did the abduction of a visually impaired young woman and subjecting her to repeated penile/vaginal sexual assaults in company. For each occasion of offending, the defendant was imprisoned, albeit for remarkably short periods by the standards of today.
3. Years later, he approached some young girls in a children's playground and committed indecent assaults against them. For those offences, he received a sentence of periodic detention and was placed on a bond.
4. There was a significant gap in the offending of the defendant, in the order of seventeen years. In 2006, however, he subjected a young girl no older than five to various forms of sexual intercourse. The case was overwhelming, because police located photographs of the offences occurring that had been created by the defendant for his own subsequent sexual gratification.
5. On 20 September 2007, Armitage QC ADCJ imposed a total head sentence of imprisonment for 9 years to commence on 8 October 2006 and expire on 7 October 2015, with a non-parole period of 6 years 9 months, to expire on 7 July 2013.
6. The defendant was not released at the end of his non-parole period. Indeed, although he completed a well-known custodial therapeutic program for sexual offenders, he was not released until the expiry of the entirety of his head sentence. By that stage, the plaintiff had commenced the proceedings that ultimately led to the pre-existing ESO to which I have referred.
7. As one would expect, over the years the defendant has been seen by countless probation and parole officers, psychologists, and psychiatrists. Since 2015 at the latest, the clinical and statistical assessments of risk of committing further serious sexual offences, especially against young girls, is (to speak generically, and erring on the side of caution) elevated.
8. In some senses, the ESO has proceeded quite well. The defendant has not been convicted of any offence, other than breaching the conditions of the ESO itself, the details of which I shall provide shortly. In particular, there has been no suggestion of an offence, or an attempted offence, or any preparation for an offence, against a child. He has engaged over many months in psychological treatment in the community, though his degree of insight into the gravity of his crimes - in particular, the profound condemnation with which Australian society views sexual contact between adults and children - remains open to question. He has a degree of support from a longstanding female friend, and has also succeeded in living in shared accommodation. His aspirations are limited, and focus upon enjoying a quiet life that includes fishing.
9. On the other hand, the defendant has been proven to have breached the ESO on three separate occasions, and was returned to custody as a result to serve short sentences; that is why the ESO remains on foot.
10. The first of those breaches was surreptitiously possessing a bottle of bourbon and having become drunk as a result. That was seen to be serious, because of the admitted role that alcohol has played in (at least) the offences committed against adult women, albeit many years ago.
11. The second and third breaches were, in my opinion, more concerning. They featured not only the possession of adult pornography, but also the possession of videos that depicted young girls and even toddlers and babies. In normal circumstances, they would be thought of as anodyne, being as they were in the former case a television show about youthful dance competitions, and in the latter case instructional videos for the care of babies and very young children. But in the context of the offending of the defendant over many years, and the inescapable inference that he has been sexually attracted to children for the same period, they are inevitably troubling. And that concern is confirmed by the indirect admissions of the defendant that his possession of those items was connected with sexual gratification.

Determination of preliminary application

1. That is the context in which the preliminary came before me for hearing on 31 January 2022. The written submissions for the plaintiff emphasised the chronicity of the sexual offending of the defendant; the seeming lack of insight even now, after very many years in custody and on conditional liberty; the recent breaches; the gravity of the consequences of a possible further sexual offence against a child or adult; and the contingent nature of the test at this preliminary stage.
2. Counsel for the defendant confirmed orally what he had said in writing: that for the purposes of the preliminary application, and without admission as to the final disposition of the matter, he conceded that all statutory preconditions for ordering mandatory examinations and imposing a brief but renewable ISO had been established. He specifically conceded that the central normative test to be found in s 10A(b) of the Act had been made out.
3. I respectfully accept that concession. In my opinion, despite the measure of progress that has been made, there remains a real concern not only that the defendant is sexually attracted to children, but also that he may be prepared to act upon it. I say that because he must have appreciated that the illicit possession of videos that depicted young girls, and naked babies and toddlers, could lead to his return to custody, as indeed it did. And yet he possessed them nevertheless.
4. In my opinion, it can very comfortably be said that "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order."
5. Nor do I believe that there is any discretionary basis for refusing the preliminary application; to be clear: counsel for the defendant made no submission to the contrary.
6. It follows that orders 1 and 2 sought in the summons of 5 October 2021 will be made shortly. That leaves for resolution a dispute about conditions, helpfully circumscribed by the parties.

Resolution of dispute about conditions

1. The vast majority of the conditions sought by the plaintiff were advisedly agreed to by the defendant. I have reviewed them myself, and agree that they are "appropriate", to use the word to be found in s 11(1) of the Act.
2. Turning to disputed conditions, proposed condition 5 was said to be too burdensome, and also, through its excess of rigour, to exacerbate the risk of an inadvertent breach by the defendant.
3. It was said by counsel for the defendant that any schedule of movements should be limited merely to destination, modes of travel, and the proposed date. In other words, it was said that more detail, including times, was uncalled for.
4. I respectfully disagree. Speaking generally, it is to be recalled that the defendant has breached his ESO on three occasions. One of those featured consumption of a substance that is disinhibiting in general and, in his case, has been criminogenic. The two other occasions featured surreptitiously obtaining possession of videos depicting babies, toddlers, and children for the purposes of sexual gratification. Finally, the point is soundly made by counsel for the plaintiff that a lack of specificity as to times would mean that observation and enforcement would be effectively impossible.
5. Condition 5 will be made as sought.
6. Condition 6 was opposed on the basis that, rather than seeking approval for a movement, the defendant should merely notify it, with the Departmental Supervising Officer (DSO) given the right to disapprove such a notification only if satisfied that the movement "would give rise to a risk of committing a serious offence or a risk of breach of another condition of this order", pursuant to alternative condition 7. As for the suggestion that the latter, in its terms, merely reproduces what a DSO would seek to achieve in any event, it was said that the inherent intrusiveness of a schedule of movements called for specificity of purpose on the part of the authorities.
7. Again, I respectfully disagree. I see no reason why, in light of repeated breaches, convictions, and reincarceration, the "onus" should be "shifted", from a system of approval to a system of notification and disapproval on specified grounds.
8. Separately, I regard alternative condition 7 as extraneous: whilst I accept that a schedule of movements is a significant curtailment of autonomy, the purposes of which the alternative condition speaks are those that underpin the whole system of supervision by a DSO, and little is achieved by their explicit inclusion.
9. For those reasons, proposed conditions 5, 6 and 7 will be made as sought by the plaintiff.
10. Proposed condition 20, which requires the defendant to "provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO" was opposed for being overly burdensome. But one can readily infer that the defendant spent some of his limited financial resources in purchasing the alcohol and the videos that I have described. And in any event, it is not inconceivable that he may unexpectedly enjoy a windfall; for example, by way of a poker machine payout. If such a thing were to occur, I believe that it is soundly necessary for his DSO to know about it.
11. Condition 20 will be imposed as sought by the plaintiff.
12. The final dispute related to proposed "Part H: Access to the internet and other electronic communication", and pertained to proposed conditions 33 to 43 inclusive.
13. They were resisted by the defendant on the basis that they go beyond the conditions of the ESO to which he has been subject for many years.
14. Counsel for the plaintiff accepted that those conditions have been expanded upon by way of what I called at the hearing "mini-conditions" imposed by directions of the DSO, themselves made pursuant to broadly drawn conditions of Hall J. And she conceded that such directions could be given in the future. But she submitted that, in the interests of clarity, the restrictions upon the digital conduct of the defendant should all be in one place, and given judicial imprimatur.
15. Counsel also submitted that the nature of the index offences (which included, as I have recounted, creating and possessing child abuse material by way of the photographs of his own crimes) warranted increased electronic monitoring.
16. She also submitted that, although none of the breaches featured digital contact, the majority of them showed the lengths to which the defendant is prepared to go to obtain deviant sexual gratification.
17. I respectfully disagree. If the defendant advisedly opposes through his counsel the amalgamation and rationalisation of the applicable restrictions, and he subsequently breaches as a result of alleged confusion, the consequences will be on his own shoulders. I also think that alterations now could themselves lead to confusion.
18. Furthermore, whilst there have been breaches, and concerning ones, it is noteworthy that none of them relate to digital activities.
19. Thirdly, the alternative conditions proposed by the defendant - which, to repeat for emphasis, are undisputedly those to which he has been subject for years - supplemented by more detailed directions, are, in my opinion, sufficient. I see no reason to go further in that regard with regard to restriction of his liberty. And I say that not forgetting the creation of the photographs many years ago.
20. Fourthly and finally, proposed conditions 44 to 46 inclusive - which are explicitly agreed to by the defendant - provide a very broad power of search and seizure, including with regard to digital devices. Combined with the pre-existing alternative conditions 33 to 35, I consider that sufficient.
21. Accordingly, Part H as proposed by the plaintiff will not be imposed as conditions. Instead, alternative conditions 33 to 35 proposed by the defendant will be imposed.

Orders

1. I make the following orders: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): (a) Appointing two qualified psychiatrists, psychologists (or combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) Directing the defendant to attend those examinations. 1. (a) Pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order ("the interim supervision order''); (b) Pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days; and (c) 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 attached Schedule. Howard - Schedule of Conditions - 3.2. 2022 (201303, pdf)

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