State of NSW v Mitchell

Supreme Court of NSW|2009-04-16|Before: Buddin J

Introduction 1 HIS HONOUR: By summons filed on 24 March 2009, the plaintiff seeks orders pursuant to the Crimes (Serious Sex Offenders) Act 2006 ("the Act") against the defendant, Barry James Mitchell. The final relief which is sought in the summons is an order that the defendant be made subject to an extended supervision order pursuant to s 9(1)(a) of the Act for a period of 5 years. The plaintiff has indicated that it will not be seeking an order for the continued detention of the defendant. 2 The matter has proceeded today as a preliminary hearing pursuant to s 7(3) of the Act. The plaintiff seeks an order, pursuant to s 7(4) of the Act, appointing two qualified psychiatrists to each conduct an examination of the defendant as well as an order directing the defendant to attend those examinations. The plaintiff also seeks an order, pursuant to s 8(1) of the Act, that the defendant be made subject to an interim supervision order for a period of 28 days with effect from 29 April 2009, which is the day upon which the sentence that he is currently serving will expire. 3 The defendant was sentenced on 1 August 2006 by Norrish DCJ (the sentencing judge) to a term of three years and four months imprisonment with a non-parole period of two years and six months in respect of an offence of aggravated assault with an act of indecency (the matter of aggravation being the age of the victim who was aged 14). That offence attracts a maximum penalty of imprisonment for 10 years. A concurrent sentence of 12 months imprisonment was imposed for a further offence of inciting an act of indecency. 4 In support of the present application, the plaintiff relies upon two affidavits of Nicholas Matti Kelly, affirmed on 24 March 2009 and 8 April 2009 respectively. Exhibited to the second affidavit of Mr Kelly are two folders of documents which are relevant to these proceedings. In view of what is disclosed in that material, the defendant does not oppose the court making the orders sought in this preliminary hearing. Nevertheless it is still a matter for the court to determine if the statutory requirements have been established. 5 It is clear that the defendant is serving a sentence for a "serious sex offence" within the meaning of s 5 of the Act. A "serious sex offence" is one which is relevantly punishable by imprisonment for 7 years. As I have said, the more serious of the two offences of which the defendant was convicted, attracts a maximum penalty of 10 years imprisonment. Accordingly, by reason of his having been sentenced to imprisonment following his conviction for a serious sex offence, the defendant is a "sex offender" within the meaning of s 4 of the Act. 6 The plaintiff's entitlement to make this application arises from the fact that the applicant is serving a sentence of imprisonment for a "serious sex offence": s 6(1)(a)(i) of the Act. 7 The Act provides for a preliminary hearing to be undertaken in which the Court is to consider whether it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a final order. If they would, the Court is required to order that psychiatric examinations be undertaken of the defendant: s 7(4) of the Act. If the Court is not so satisfied, the application must be dismissed: s 7(5) of the Act. 8 Section 8(1) of the Act empowers the Court to make an interim supervision order if, relevantly, the offender's current custody will expire before the proceedings are determined and the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. The interim supervision order cannot exceed 28 days although it can be renewed from time to time but not so as to exceed a total period of 3 months. 9 In those circumstances, it is necessary to have regard to s 9 of the Act and in particular to the factors identified in s 9(3) of the Act. 10 In State of New South Wales v Manners [2008] NSWSC 1242 Johnson J observed: The objects of the Act are set out in s.3 which states, in summary, that the primary object of the Act is to provide for extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. A further object of the Act is to encourage serious sex offenders to undertake rehabilitation. …

In Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 at [98], the Court of Appeal emphasised that the task of the Court, at the preliminary hearing stage, was not to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing. It has been said that the test to be applied at this stage is similar to the prima facie case test applied by magistrates as part of committal proceedings: Attorney-General for the State of New South Wales v Hayter at [6]; State of New South Wales v Brookes [2008] NSWSC 150 at [13].

One purpose of the preliminary hearing procedure is to allow the Court to filter out unmeritorious applications at an early stage. Another purpose is to give the Court the benefit of the expert opinions of two independent witnesses before making a final decision.

Section 9(2) provides that an extended supervision order may be made if, and only if, the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit further serious sex offences if he is not kept under supervision. The application for final relief requires consideration of the factors contained in s.9 of the Act. It is necessary, for the limited purposes presently required, to refer to s.9 factors and their application to this Defendant.

The Court of Appeal has stated that the word "likely" in s.9(2) of the Act, does not require a degree of probability exceeding 50%: Tillman v Attorney-General for the State of New South Wales [2007] NSWCA 327 at [88]-[90], [92]. The word "likely" may be taken to mean a "sufficiently substantial probability" : Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21]. [paras 6, 8-11] 11 His Honour's remarks are apposite to the present case. 12 Section 9(3) of the Act is in the following terms: In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant : (a) the safety of the community, (b) the reports received from the persons appointed under section 7 (4) 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 serious sex 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 serious sex 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, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 , (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, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature.

13 The s 9(3) factors which are relevant to the defendant are addressed below, albeit not in the order in which they are listed in the subsection. The factor referred in s 9(3)(b) cannot be addressed at this stage whilst the factor in s 9(3)(g) does not apply to the defendant.

Section 9(3)(h): the defendant's criminal history… and any pattern of offending disclosed by that history. 14 The defendant is 67 years old having been born in April 1941. The following table sets out the sex offences for which he has been convicted, and the dates on which he committed those offences. The details of each of the victims is in bold type in order to highlight the pattern that emerges from the defendant's history of offending: Date Offences and details of conviction and sentence Sep-Oct 1980 Committed offences against PC: male, 13 yrs old. 23 Sep 1981 Convicted, County Court, Melbourne: attempted buggery (2 counts); indecent assault on male person (4 counts). Sentenced to 2 years imprisonment, with a non parole period of 9 months. 21 Nov 1985 Committed offences against BB: male, approximately 20 yrs old, with an intellectual disability. 9 Apr 1986 Convicted, Balranald Local Court: indecent assault. Sentenced to $500 fine; three year good behaviour bond. 6 June 1993 Offences committed against BP: male, 20 yrs old, with an intellectual disability. 11 Apr 1994 Convicted, Orange District Court: Aggravated sexual intercourse without consent (2 counts) Sentenced on each count to 6 years imprisonment, with non parole period of 3 years. 9-23 Aug 1999 Offence committed against LF: male, 12 yrs old. 18 Nov 1999 Convicted, Gosford Local Court: aggravated indecent assault. Sentenced to 1 year 9 months imprisonment, with a non parole period of 15 months, backdated to commence 8 October 1999. Offences committed against JB: male, 14 yrs old. 30 Dec 2005 Convicted, Wagga Wagga District Court: (1) aggravated indecent assault; and 1 Aug 2006 (2) incite child under 16 years to commit act of indecency. Sentenced re (1) to 3 years and 4 months imprisonment, with a non parole period of 2 years and 6 months backdated to commence 30 December 2005. Sentenced re (2) to12 months imprisonment backdated to commence 30 December 2005.

15 In addition to his record of committing sexual offences, the defendant was convicted in 1970 of stealing and in 1988 of a charge of mid-range PCA. 16 At the time of the index offences, to which the defendant pleaded guilty at the first reasonable opportunity, he was working as a handyman in a country town. The facts giving rise to those offences can be briefly stated. On 30 December 2005, the defendant asked the victim to assist him with some work. When the work was completed, the defendant took the victim back to his home where he made the victim a drink of hot Milo and sat next to him on the couch whilst he watched cricket on the television. After a while, the defendant touched the victim by putting his arm around him and kissing his forehead. He then touched the victim on his leg and then on his penis through his clothing. He remarked that the victim had a big penis. The defendant then asked the victim if he, the victim, wanted to masturbate him. He was touching the victim as he did so. The defendant and the victim then went into the defendant's bedroom where the defendant rubbed the victim's penis through his clothing until the victim ejaculated. The victim reported the incident to his father as soon as the defendant dropped him home later that evening. 17 The sentencing judge observed that the offences bore considerable similarity to the circumstances of the offence for which the defendant had been convicted in 1999. In that case, the defendant had known the victim for more than 18 months. He had cultivated a friendship with him and had on occasions invited the victim to his house where he had offered him cigarettes and alcohol. On an occasion in August 1999, when the victim had stopped in to see the defendant on his way to school, the defendant had offered the victim money in exchange for his allowing the defendant to perform an act of masturbation upon him. 18 The sentencing judge noted that: [t]he criminal history of the prisoner involving acts of indecent assault committed upon male persons, as I understand it, extends back over almost twenty-five years. Whilst I have seen longer records and more serious records in some respects, there are significant matters on the prisoner's criminal history and the facts of at least two of those appearances in court inform me of the character of that previous conduct. 19 Although there had been periods during which the defendant had not offended, the sentencing judge considered that his antecedent criminal history manifested a continuing attitude of disobedience to the law. 20 Mr McElhone, a senior psychologist with the Department of Corrective Services prepared a report dated 20 February 2009, for the purposes of the present application. In that report, he described the defendant's offending history as reflecting "a long-standing pattern of deviant sexual interests and behaviour" with a number of offences reflecting careful planning and grooming of the victims. His conclusion is consistent with the view expressed by Dr O'Dea who prepared a report in July 2006 on behalf of the defendant for the sentencing hearing. Dr O'Dea considered that the defendant's criminal history, together with his reported awareness of a specific sexual attraction to male children around puberty, satisfied the psychiatric diagnostic category of "Paedophilia, Sexually attracted to Males, Non Exclusive, Not Limited to Incest (Homosexual Paedophilia)". 21 Ms Jones and Dr Ellis of the Sexual Behaviours Clinic of the NSW Community Forensic Mental Health Service (CFMHS), examined the defendant whilst he was participating in the Department's Custody Based Intensive Treatment Program (CUBIT). They reached a similar conclusion in their report which is dated 17 November 2008.

Section 9(3)(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 serious sex offence. 22 The defendant has been assessed on a number of occasions in recent years by reference to the Static 99 instrument. In April 2008, Mr Sheehan, a psychologist with the Department of Corrective Services scored the defendant as a 6. In December 2008, Ms Solomon, another psychologist with the Department, scored the defendant as a 7. In his report of 20 February 2009, Mr McElhone considered the defendant's score to be 7, which places him in the high risk category relative to other male sex offenders. 23 In a supplementary report dated 19 March 2009 Mr McElhone expressed the opinion, based on the defendant's pattern of previous offending, that if he were to re-offend, "it is likely that his offences would be against vulnerable male victims".

Section 9(3)(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 24 Between August 1996 and June 1997, the defendant participated in structured individual sex offender sessions with a departmental psychologist, Mr Feelgood, at Kirkconnell Correctional Centre. In a report prepared by Mr Feelgood and Ms Young for the Probation and Parole Service, Mr Feelgood described the defendant as having made progress and that he appeared to be committed to pursuing a non-abusive lifestyle. At the same time, however, the report noted that the therapy was made difficult by the defendant's poor recall and by the fact that he was slow in grasping the concepts presented to him. Mr Feelgood expressed the view that the defendant would require strict supervision and counselling were he to be released on parole. 25 After he was released on parole, the defendant continued to receive individual counselling from Mr Greg Lee, a psychologist. He was assessed by a departmental psychologist, Ms Narci Sutton, for his suitability for participation in the Community Based After Care group (COBAC). In a report dated 11 May 1999, Ms Sutton noted that although the defendant demonstrated some positive changes, he nonetheless had a "very superficial understanding of the dynamics underlying his offences, and of the behaviours and situations that put him at risk of reoffending". She went on to say that "on a widely used actuarial scale of sex offender recidivism (RRASOR) he fell within the high risk category for sexual offending". Ms Sutton also expressed concerns about the defendant's need to help young men and how this had been a feature of the "grooming" process which had been apparent in his previous offences. 26 It appears that the defendant also received individual counselling on a weekly basis following his release on parole in 2001. His parole officer reported that the defendant did not instil confidence in her that he would not re-offend when his parole expired. She observed that it "would not be unlikely that Barry will re-offend again given his lack of emotional and physical peer support network". 27 As I have indicated, whilst the defendant has been serving his current sentence he has participated in the CUBIT program. The defendant commenced that program on 30 April 2008 and completed it on 4 December 2008. Ms Solomon was the defendant's treating therapist whilst he was doing the CUBIT program and after he completed it she prepared a report which is dated 19 December 2008. 28 In her report, Ms Solomon described CUBIT as a "prison based residential therapy programme for men who have sexually abused adults and/or children [which is] designed to help participants work on changing the thinking, attitudes and feelings which led to their offending behaviour." 29 Ms Solomon made the following observations of the defendant's participation in the program: From the outset, Mr Mitchell appeared moptivated and engaged in treatment to address his offending behaviour. He was an active member of the group, and was supportive to other group members. From the beginning of treatment he was able to identify areas he needed to address in order to live a good life and took steps to make changes. Importantly, he saw the benefits of utilising the CUBIT community in order to practice implementing these changes. This included participating in a range of Education classes, which had the benefit of assisting him with improving his self esteem and developing more realistic expectations of himself. Thus, Mr Mitchell appeared to take responsibility for his own treatment and saw the value of being proactive in this process. At times, however, Mr Mitchell could become overwhelmed and flustered when presenting tasks in group. On these occasions he would make negative self-statements (eg "I did it wrong)" and could react defensively to feedback. Mr Mitchell recognised the need to manage this more appropriately and hence attempted to be better prepared for presentations. He also identified communication, assertiveness, problem solving and self esteem as areas that could assist him in these kinds of situations. Furthermore, while Mr Mitchell was able to provide insightful feedback to group members, he at times delivered it in a passive aggressive style…Mr Mitchell recognised that this was a pattern he engaged in throughout his life, and hence identified assertive communication as a treatment goal. 30 So far as the level of the defendant's understanding of his offending behaviour was concerned, Ms Solomon noted that the defendant had identified an "offence pathway" which began with his feeling unwanted and not having much regard for himself. She said that he reported feeling easily overwhelmed by problems which would lead him to "engage in a range of avoidant and emotion-focussed coping strategies, including drinking alcohol, masturbation, sex, denial of the problem, keeping secrets, isolating himself and engaging in self pity". Ms Solomon went on to say that: [i]f his previous attempts to manage his difficult feelings are unsuccessful Mr Mitchell may become angry and blame others. This may lead to him engaging in sexual fantasies about adolescent males, and seeking opportunities to access and groom a potential victim. A sexual offence may occur at this point. Mr Mitchell may then pretend that everything is normal, but ultimately cycle back to feeling low about himself. 31 Ms Solomon then made an assessment of the defendant's "dynamic risk factors, [being] those factors that are related to sexual recidivism and [that] are amenable to change". She observed that: [a]lthough Mr Mitchell reported that he had not used alcohol for several years prior to his current incarceration, he recognised that it had been a relevant factor in some of his earlier offences. Consequently, if Mr Mitchell were to again engage in the abuse of alcohol, this would be an indicator of his increased risk of reoffending. … In relation to emotional distress, Mr Mitchell has identified that this was a significant factor in the lead up to the 1999 sexual offence. Specifically, Mr Mitchell reported that due to community hostility and vigilante activity he believed that committing a sexual offence was the only way to escape the situation. Clearly, if Mr Mitchell is experiencing similar distress or feeling overwhelmed and engaging in self pity, this would again indicate that immediate intervention is required. In regard to collapse of social supports, Mr Mitchell identified that in the short time prior to committing the index offence, a close friend of his passed away, and he had difficulty coping with this loss. Mr Mitchell has identified two elderly friends as his current social supports. If either of these friends passed away Mr Mitchell may require increased support and assistance to manage his risk effectively. Finally, Mr Mitchell has a history of establishing access and ongoing contact with adolescent males through a range of situations. If he continued to try and create situations in which he could spend time with children or other vulnerable individuals (eg adult males with an intellectual disability), this would be a clear indicator of his increased risk of reoffending. 32 Ms Solomon referred to a range of techniques which the defendant had learnt and which he said that he proposed to utilise in order to manage his risk factors. She noted that he was able to demonstrate a satisfactory understanding of his self management plans, the content of which she described as being "relevant and insightful". 33 Although there can be no disputing that the CUBIT program has been of benefit to the defendant, some of the answers which he provided in response to questionnaires that he completed after the program finished, give rise to concerns about some of the attitudes which he apparently still continues to hold. 34 Since completing CUBIT, the defendant has been participating in the Custodial Maintenance Program. According to the progress notes of his first maintenance session on 14 January 2009 which were prepared by Ms Laura O'Neill, the psychologist who runs the group, the defendant identified knowledge of thoughts and feelings and victim empathy as "the most important things he got out of CUBIT". In her notes for the following two sessions, held on 28 January and 18 February 2009 respectively, Ms O'Neill described the defendant's reaction to the news that the plaintiff may make an application under the Act for an extended supervision order as positive. In her notes of the 18 February session, Ms O'Neill recorded that the defendant viewed the potential application under the Act as a positive development, and that he indicated that he had "few supports, but particularly none in Sydney". 35 In addition to the cognitive behavioural therapy offered in CUBIT, Mr McElhone noted in his initial report that the CFMHS had examined the defendant and had commenced him on a course of Selective Serotonin Reuptake Inhibitors (SSRls) which can have the effect of reducing a person's sex drive. 36 In a supplementary report dated 10 March 2009, Mr McElhone considered that the defendant's agreement to take SSRls medication could indicate that he was motivated to more effectively manage his risk in relation to sexual offending. Taking such medication could reasonably be expected to assist in the management of the defendant's negative mood states which have in the past been associated with his offending behaviour. Nevertheless it is axiomatic that even though the defendant has been taking his medication in custody, there is no guarantee that he will continue to do so upon his release into the community.

Section 9(3)(c) : The results of any other assessment prepared by a ..registered psychologist…as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment 37 In his initial report, Mr McElhone expressed the opinion that the defendant's Static-99 score fairly represented his risk at the time of that report. In reaching that conclusion, Mr McElhone placed particular emphasis on a number of risk factors including the fact that the defendant has an extremely limited support network as well as his long-standing pattern of deviant sexual interests and behaviour. 38 Mr McElhone, in his supplementary report observed that his conclusion is consistent with that reached by Dr O'Dea in his report of 25 July 2006 although it is to be observed that the defendant has completed CUBIT since Dr O'Dea prepared his report. Dr O'Dea there expressed the opinion that: with a history of specific deviance,… repeated sex offending, alcohol abuse and dependence, cognitive impairment and apparent social isolation, …Mr Mitchell's risk of further sexual offending in the community in the long term would be considered significantly high and warrant specific risk management. 39 Dr O'Dea expressed the view that it was: [l]ikely that the judicious use of testosterone lowering medication, in conjunction with psychological intervention and supervision in the community would prove the most effective in managing and minimising Mr Mitchell's risk of engaging in further sex offending behaviours in the community in the long term. 40 In addition, he recommended that the defendant abstain from alcohol. Mr McElhone noted in his initial report that the CHMHS had conducted the relevant tests to assess the defendant's suitability for testosterone lowering medication and determined that he was not suitable because he is osteopaenic.

Section 9(3)(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. 41 The defendant has not previously been the subject of an extended supervision order. However he has been released from custody on parole on three occasions and on one occasion has been placed on a recognisance. 42 The defendant's first period of parole was spent in Victoria but there is nothing to suggest that he committed any breach of his parole conditions. In relation to the recognisance on which he was placed in 1986 following his conviction for indecent assault, the defendant was convicted of a charge of mid-range PCA but committed no offences of a sexual nature during the period for which he was to be of good behaviour. 43 On 21 June 1997, the defendant was released on parole having served the minimum term of 3 years of the overall 6 year term to which he was sentenced in 1994 for aggravated sexual intercourse without consent. Condition 14 of his parole order stipulated that he was not to be in the company of any person under the age of 18 unless accompanied by a responsible adult. Some time between 9 and 23 August 1999, and whilst he was still on parole, the defendant committed the offence against LF to which reference was made earlier. He was arrested for that offence on 8 October 1999. The breach of parole report prepared by the Probation and Parole Service, dated 12 October 1999, referred to information received from police which indicated that the defendant had continued to associate with minors in direct contravention of a condition of his parole. On 5 November 1999 the Parole Board confirmed its initial decision, made on 19 October 1999, to revoke parole. The defendant was again released on parole in 2001 for a period of six months. He completed that period of parole without incident. 44 Although the minimum term for the index offences expired on 29 June 2008, the defendant has not been released on parole. In a pre release report prepared by the Probation and Parole Service, dated 25 March 2008, it was noted that at the time the defendant was about half way through the PREP course, and that he was waitlisted for the CUBIT program. On 24 April 2008, the State Parole Authority made an initial decision to refuse parole because of the "risk of re-offending, need to further address offending behaviour (Sex offending), no suitable post release accommodation". It confirmed its decision on 19 May 2008, after the defendant indicated that he did not want to seek a review of the initial decision. On 5 December 2008, having completed the CUBIT program the defendant applied for parole on the ground of manifest injustice. However, at its meeting on 16 January 2009 the State Parole Authority refused his application.

Section 9(3)(i); any other information available as to the likelihood that the offender will in future commit offences of sexual nature. 45 Mr McElhone, Ms Solomon, and Dr O'Dea each identified the defendant's abuse of alcohol as a contributing factor to his level of risk and it is clear that a number of his offences have been committed whilst he was affected by alcohol. The defendant has himself acknowledged that alcohol is an acute risk factor in his case. The defendant's alcohol abuse is currently in remission, but as Ms Jones and Dr Ellis point out in their report, he is currently in a "contained environment" with no opportunity for access to alcohol. In light of the disinhibiting effect of alcohol and the role it has played in the defendant's history of offending, it remains relevant to an assessment of the likelihood of the defendant committing further sex offences were he to be released without supervision.

Age 46 As the defendant is now almost 68 years old, his age may also be a factor that is relevant in considering the likelihood of his committing further offences of a sexual nature. In his initial report, Mr McElhone outlined the state of research concerning the effect of age on sexual recidivism. He observed that: [a] number of studies suggest that for extra-familial child molesters the high risk period is from the late 20s to the mid-40s, followed by a decline thereafter. Factors that may contribute to this decline include a reduction in sexual drive with age, increased self control, and fewer opportunities for developing relationships with children. The evidence from current research is limited to the extent that it is not possible to make any empirically-based statements about the influence of age-at-release on the risk of sexual reoffending for high risk offenders at age-of-release 60 years or older. 47 In considering the likelihood of the defendant's committing further serious sex offences, it is pertinent to observe that he only commenced offending when he was 40 years old, and that he was 64 years old when he committed the index offences in 2005.

Section 9(3)(a); The safety of the community 48 Ensuring the safety of the community is one of the primary objects of the Act. All of the matters to which reference has been made are relevant to that issue. 49 In that context, the following factors remain of significance:

(i) As Ms Jones and Dr Ellis point out in their report: Mr Mitchell meets the criteria for paedophilia, homosexual orientation, according to the DSM-IV-TR. He reported experiencing a recurrent fantasy involving sexual activity with a particular boy "James", throughout his life span. He has a history of sexual offending towards young boys, approximately 13 years of age, and towards young adult men with intellectual impairment. (ii) the defendant engages in grooming behaviours.

(iii) the defendant is aware that his offending takes a particular pattern, but has been unable in the past to capitalise on the benefits from treatment which he has received. On the other hand, it is important to recognise that the treatment which he has previously received was not of the intensity of the CUBIT program, and nor was the treatment provided by people with expertise in treating sex offenders.

(iv) other than perhaps two people who live in the town where he committed the index offences, the defendant has no social support network. Following a pre-release visit, a probation and parole officer expressed the view that it was unlikely that he could resume living there due, inter alia, to the high level of community resentment towards him and especially as the victim still lives in the town.

(v) the defendant has a history of alcohol abuse, and on at least one occasion has offered alcohol to a victim as a means of encouraging that person to visit his home.

(vi) the defendant is prone to isolation, low self-esteem and rumination ; and

(vii) the defendant has a patchy record whilst subject to supervision, with the 1999 offence occurring whilst he was on parole. 50 In the light of the material which has been placed before the court, I am satisfied that the matters alleged in it would, if proved, justify the making of the orders which are sought. Nor are there any countervailing factors which would justify the court in refusing to make them. In my view the need to protect the community and the need to facilitate the defendant's rehabilitation require that the defendant be subject to conditions upon his release from custody. Accordingly I make the following orders.

1 Pursuant to section 7(4)(a) of the Crimes (Serious Sex Offenders) Act 2006 ("the Act"), two qualified psychiatrists are to conduct separate psychiatric examinations of the defendant and each of those psychiatrists is to furnish a report to the Court on the results of those examinations on or before 4.00 pm on 14 May 2009. I note that Dr Jeremy O'Dea and Dr Anthony Samuels will conduct those examinations.

2 Pursuant to section 7(4)(b) of the Act, the defendant is directed to attend the examinations referred to in Order 1 above.

3 Pursuant to section 8(1) of the Act, the defendant is to be subject to an interim supervision order with effect from 29 April 2009 for a period of 28 days and he is to comply with the conditions which are set out in the Schedule which is annexed to this judgment. I note that the original of the Schedule has been signed by the defendant and by the solicitor for the plaintiff.

Schedule INTERIM SUPERVISION ORDER; CONDITIONS APPLICABLE TO BARRY JAMES MITCHELL Reporting and monitoring 1. During the period of the extended supervision order the defendant must accept the supervision and guidance of the Probation and Parole Service, the Community Compliance Group and the Child Protection Watch Team for as long as necessary as determined by the Departmental Supervising Officer. 2 The defendant must report personally once a week to the Departmental Supervising Officer and as otherwise directed by that officer. 3 The defendant must comply with any reasonable direction given by the Departmental Supervising Officer or any other departmental officer who may from time to time be involved in supervision of the defendant. 4 For at least the first twelve months of the extended supervision order the defendant must wear electronic monitoring equipment as directed by the Departmental Supervising Officer and must comply with all instructions given by a Corrective Services officer in relation to the operation of such equipment. The defendant must not tamper with or remove such equipment. At the end of twelve months the Commissioner must review this condition and must, following such review, not unreasonably refuse to withdraw this condition. 5 The defendant must inform the Departmental Supervising Officer of his proposed daily movements 48 hours in advance (or for a lesser period if directed by the Departmental Supervising Officer) and must obtain prior approval from that officer for any proposed change 24 hours in advance. 6 Condition 5 does not apply if the defendant requires urgent medical attention and he is either unable to inform the Departmental Supervising Officer of his proposed movements in advance or is unable to obtain prior approval from the Departmental Supervising Officer for any proposed change 24 hours in advance. 7 The defendant must be of good behaviour for the period of the supervision order.

Accommodation 8 For the duration of the extended supervising order the defendant must reside at such accommodation as is approved in advance by the Departmental Supervising Officer. 9 The defendant must accept home visits at the approved accommodation, including visits without prior notice by the Departmental Supervising Officer or any other departmental officer. 10 For the first twelve months of the extended supervision order the defendant must be at his address between the hours of 9 pm and 6 am the following morning, unless his presence at another place during those hours has been approved in advance by the Departmental Supervising Officer. 11 The defendant must not leave New South Wales without the prior written permission of the Commissioner or his delegate. Restrictions on employment and other activities Employment 12 The defendant may only enter into employment arranged or approved by the Departmental Supervising Officer and must not enter into or undertake employment unless it has been so arranged or approved. 12A The defendant is not to take up employment during period of the interim supervision order as made or extended. Alcohol and other drugs 13 The defendant must not consume any alcohol or illicit drugs or abuse prescription medication. 14 The defendant must submit to drug and alcohol testing as directed by the Departmental Supervising Officer. Association with children 15 The defendant must not approach or have any unsupervised contact with children aged 16 years or under. 16 Without limiting the immediately preceding condition, the defendant must not associate with any persons reasonably directed by the Departmental Supervising Officer. 17 The defendant must not attend any child care centres, preschools, primary schools, high schools, amusement parlours, any children's playground or area in a park where children are present, caravan parks or houses where children 16 years or under ordinarily reside unless accompanied by a person approved by the Departmental Supervising Officer. 18 The defendant must not approach or have any contact with children under 16 years of age at any sporting facility, sporting venue or public swimming pool. Personal details and appearance 19 The defendant must not change his name from Barry James Mitchell, use or be known by any other name without prior approval of the Departmental Supervising Officer. 20 The defendant must not, without the approval of the Departmental Supervising Officer, change his facial appearance, including facial hair or the colour of his hair and must not alter the length of his hair to the extent that he cannot be reasonably recognised. 21 If the defendant's proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental Supervising Officer. Treatment 22 The defendant must participate in treatment, including maintenance provided by the Forensic Psychology Services, and rehabilitation as directed by the Departmental Supervising Officer, including attendance at and engagement in community maintenance programs for sex offenders. 23 The defendant must accept psychological and psychiatric treatment as may be provided by an Area Health Service in consultation with or by the Community Forensic Mental Health Service (CFMHS), including counselling and psychological therapy. 24 The defendant must accept such assessments as may from time to time be required to determine what is required for the treatment referred to above in orders 24 and 25. 25 The defendant must consent to taking selective serotonin re-uptake inhibitors, or any other anti-libidinal medication, if directed by the Departmental Supervising Officer acting in consultation with an Area Health Service and/or the CFMHS or other medical practitioner provided that a medical practitioner has certified that the defendant is a suitable candidate for such medication and has prescribed such medication for him. 26 The defendant must attend regular medical consultations, physical examinations and pathology testing as directed by the Departmental Supervising Officer in consultation with the Area Health Service and/or the CFMHS. 27 The defendant must engage a general practitioner as soon as reasonably practical and must notify the Departmental Supervising Officer of the identity and address of the general practitioner. 28 The defendant must disclose to his Departmental Supervising Officer the identity of any other medical or mental health practitioner, including psychologists, whom he consults. Disclosure of information 29 The defendant must waive his right to the confidentiality of all information disclosed by him during treatment to his doctors, including any psychiatrist or other specialist and any psychologist. 30 The defendant must consent to his general practitioner, his other medical practitioner, his treating psychologists or psychiatrists, the Area Health Service, CFMHS, and Forensic Psychology Services sharing information about him, including reports on his progress and information he has disclosed during treatment with each other and with the Departmental Supervising Officer and other departmental officers involved in his supervision. 31 The defendant agrees to all sharing of information between the Departmental Supervising Officer, the Department, CFMHS, any treating Area Health Service, the defendant's general practitioner and any treating psychologist or psychiatrist. 32 The defendant must attend a six monthly meeting with all agencies or parties in attendance if required by the Departmental Supervising Officer at which point the management plan may be reviewed and adjusted if considered appropriate. 33 The defendant must comply with any direction made by the Departmental Supervising Officer regarding access to or use of the World Wide Web and the internet by him and without limitation the Departmental Supervising Officer may direct the defendant to use on any computer a parental lock or other device or software that may restrict access to or permit access only to certain websites. 34 If and as directed by the Departmental Supervising Officer, the defendant must: (a) permit the Departmental Supervising Officer and any computer technician employed or engaged by or on behalf of the Department to assist or advise the Departmental Supervising Officer to access and inspect any computer owned by the defendant, including the temporary removal of the computer from his place of residence for the purpose of inspection; (b) provide the Departmental Supervising Officer and the computer technician with any requested assistance to enable them to access and inspect any computer owned or used by the defendant, including providing them with any required passwords; (c) permit the Departmental Supervising Officer and the computer technician to make copies of any files or materials on any computer owned by the defendant that the Departmental Supervising Officer reasonably believes may be relevant to the management of the defendant's risk of reoffending. **********

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

CITATION : State of NSW v Mitchell [2009] NSWSC 283

CASES CITED : State of New South Wales v Manners [2008] NSWSC 1242

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (27 paragraphs)

Parties

Cases Cited (6)