Mr Jacob Wiggins (a pseudonym adopted in order to protect a child victim; the defendant) was born several years after the end of World War II, and is now in his early 70s. He endured a very impoverished and deprived upbringing: amongst other factors, his father was a travelling carnival worker, and the life of the family was disrupted and difficult as a result. When the defendant was a child, his father suffered a serious workplace injury, and his mother spent time as an inpatient in a psychiatric hospital. To make matters worse, the defendant has claimed that, as a child, he himself was more than once the victim of sexual assault, a proposition that I accept on balance.
The defendant left school at the age of thirteen, and, as one would expect, has been employed in unskilled positions only. He has enjoyed two long-term relationships with adult women and claims, remarkably, to have fathered ten children throughout his life. Heavy drinking was a problem many years ago, but that seems to have abated. He states that he retired from employment at the age of sixty, well over a decade ago. Several years ago, the defendant suffered a "massive heart attack", and, as one might expect of a man of his age and background, he suffers from significant challenges to his physical health.
As for his intersections with the criminal justice system, they began when he was a youth. Convictions for such things as vagrancy and the like speak not only to the passage of time since then, but also his deprivation at the time.
In September 2003, aged in his fifties, he committed an offence of indecent assault against a person under the age of ten. The victim was his natural daughter, who was then aged 6 years 5 months. An important part of the context of that offending is that there is evidence that his daughter suffered from emotional and psychological problems, and was developmentally delayed.
It was not until 8 February 2007 that Judge Nicholson SC imposed a head sentence of 4 years 11 months 2 weeks, with a non-parole period of 2 years 3 months, each to commence on the date of imposition, and the non-parole period to expire on 7 May 2009.
In May 2005 (that is, between the date of that offence and the imposition of sentence for it), the defendant was accused of having committed other child sexual abuse offences, but was acquitted after a hearing. In accordance with the position agreed between both counsel and me at the hearing, I regard those allegations as not irrelevant, but give them far less weight than matters in which there has been a conviction.
After release on parole for the sentence imposed by Judge Nicholson SC on 21 July 2009, the applicant became subject to various statutory forms of conditional liberty as a convicted child sex offender. The relevant pieces of legislation were the Child Protection (Offenders Registration) Act 2000 (NSW) and the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). As is well known, these two Acts impose a significant burden on persons in the position of the defendant, and breaches of their requirements can be constituted by acts, or omissions, or circumstances that would otherwise be lawful.
Soon after his release, the defendant had developed a friendship with a family living in a suburb of Sydney, some members of whom were young children. Notably, all members of the family, including the adults, were developmentally delayed. It eventually came to light that he had shared a bedroom with one of the children. Not only that, but on at least two evenings, he had shared his bed with another of the children. His claim was that the child had crept into his bed late at night, and the defendant, by then aged about sixty, had seen fit to do nothing to stop it.
On 12 February 2010, he was sentenced to imprisonment for nine months for those two statutory breaches, they having occurred between July and October 2009. It is significant that the first of those failings occurred almost immediately after his release to parole for sexually assaulting his own daughter.
The defendant was released again in June 2011. This time he resided for a period in closely supported accommodation maintained by the Department of Corrective Services (DCS). He lived thereafter in the community for some years, but was in and out of custody again from early April 2016 until 15 September 2017, as follows.
Throughout 2016, he breached statutory conditions again. On 3 March 2016, he engaged in babysitting when he w as prohibited from doing so. On 14 November 2016, he had phone contact with his daughter, the victim of his initial offending. And finally, that phone contact had been facilitated by a social media username that the defendant had not reported to the police.
For the first offence, he received a fixed term of imprisonment for three months; for the second offence, a fixed term of imprisonment for nine months; and for the third offence a head sentence of imprisonment for 13 months, with a non-parole period of 10 months, was imposed. He was released for a time, as I have said, in mid September 2017. By that stage he was on parole, and also on bail, the latter as a result of having been charged with the following conduct.
Reverting in the chronological overview a little, by January 2016, the defendant, then 66 years of age, had struck up a friendship with a woman who was aged 24. That young woman was developmentally delayed, and has been assessed as having an IQ of 45 (I understand the average IQ of members of the community to be 100). She has also been described as having a "moderate" intellectual disability (it is well known that that term needs to be approached very cautiously). At the relevant time, the young woman was living in supported accommodation due to her cognitive deficits.
On 24 January 2016, the defendant and the young woman had sexual intercourse in a modest caravan and annexe in which the defendant was residing in the backyard of a friend's house in a Sydney suburb. He ultimately pleaded guilty to one count of having sexual intercourse with a person suffering from a cognitive impairment, constituted by penile/vaginal intercourse. The offence did not come to light for some time, and it was not until 5 April 2017 that charges were laid.
There were further delays in the matter being resolved, in that it was not until 6 April 2020 that Judge Hanley SC imposed sentence upon the defendant. In the meantime, the defendant had returned to custody on 10 April 2019. The sentence was made up of a head sentence of imprisonment for 3 years, to commence on 29 October 2018, and expire on 28 October 2021, with a non-parole period of 18 months, to expire on 28 April 2020.
At the time of imposing sentence, his Honour emphasised the "great abhorrence" with which the community regards offences of having sexual contact with a person who is either not consenting, or incapable of consenting. His Honour noted that therapy undertaken by the defendant had been seemingly unsuccessful. In ameliorating the sentence, his Honour gave significant weight to the physical health difficulties of the defendant.
The defendant was duly released to parole in late April 2020. He was subject to that form of conditional liberty, and the other statutory forms of which I have spoken. He was living in shared accommodation in a suburb of Sydney. It came to light that the 13-year-old daughter of one of his housemates was staying the night, if not living there, for a period of time. Of significant note is that that child suffers from autism. The defendant had brought her presence in the home in which he was living to the attention of no one until 9 December 2020.
At this time, he was charged with breaching a statutory condition, and also had his parole revoked. As a result of the latter, he was promptly returned to custody the day after his revelation, and served the balance of parole until the expiry of his head sentence on 28 October 2021.
The charge was resolved on 14 December 2021, as it happens the day following the hearing before me of the application that leads to this judgment. It was agreed at the hearing that, because the guilt of the defendant had not been resolved at that stage, with the result that I could hear only incomplete submissions about it, I would approach it merely as a matter of logistics or custodial structure, not as a matter that could be taken into account adversely to the defendant with regard to the substantive question.
In any event, he was convicted, and received a head sentence of imprisonment for 10 months to commence on 28 August 2021 and expire on 27 June 2022 with a non-parole period of 5 months, which expired on 27 January 2022. After the hearing, I was given to understand by the parties that the defendant was released on that date, and remains subject to parole conditions.
To complete this thumbnail sketch of offending, incarceration, and conditional liberty: on 27 October 2021 after the preliminary hearing of this application, R A Hulme J imposed an interim supervision order (ISO) of 28 days. It was suspended for a time by the operation of statute, and commenced on the day of the recent release of the defendant, and will expire, by my calculation, on 24 February 2022.
[2]
Application
That is the context in which the State of New South Wales (the plaintiff) moved on an amended summons, filed in court on the day of the hearing, seeking a final order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") against the defendant. The order is an extended supervision order (ESO), and features a large number of conditions.
By the time of the hearing, the case for the plaintiff had been expanded by receipt of the two reports mandated by R A Hulme J. I focus on them in this judgment, not least because they are the most recent.
The first of them was prepared by Dr Dewson, a forensic psychologist. She emphasised that, over the years, despite pleas of guilty on his part and, on at least one occasion, scientific evidence of unlawful sexual contact that was virtually overwhelming, the defendant has maintained denials of sexual offending, and sought to avoid moral if not legal responsibility for it.
She confirmed that the defendant suffers neither from intellectual impairment nor acute mental illness, although he does suffer from various physical ailments.
She invited attention to the unsatisfactory response to supervision of the defendant during many periods of conditional liberty, and what she regarded as very limited insight into his own offending on his part.
She queried whether the defendant should be thought of as a "true paedophile" in the sense (as I understand it) of a person who is sexually aroused only by prepubescent children; rather, she posited that underpinning the long-standing offending of this man now in his early 70s could be an "emotional congruence" with children, again as I understand it, arising from his own limitations.
She recounted that the defendant is not particularly opposed to an ESO, and at the least regards it as preferable to further incarceration.
Finally, the forensic psychologist expressed the opinion that the defendant presents a moderate risk of reoffending generally, and the same risk of reoffending by way of a sexual offence, based on her clinical observations and statistical analysis. (I interpolate the understanding of both the psychologist and me that the test for assessment of risk in the Act is more rigorous, in that it focuses upon the commission of a "serious sexual offence" as defined there).
I accept the opinions expressed by the psychologist in her report. Indeed, approaching the matter as a layperson sitting as the tribunal of fact, and doing one's best to apply common sense to the defendant's life history that I have sketched, I regard caution and concern about the potential future conduct of the defendant as almost inevitable.
Dr O'Dea, a forensic psychiatrist with special expertise regarding deviant sexual behaviour, did not sharply contradict any opinion expressed by the psychologist.
He noted that there is no suggestion of a problem with substance abuse as being an underlying criminogenic factor.
He thought that the defendant could be considered as suffering from a personality disorder.
He expressed the view that an underpinning explanation could be a "lack of control" with regard to vulnerable females. He spoke of signs, in the past at least, of the defendant possessing a very high sex drive. The psychiatrist noted that anti-libidinal medication may play a constructive role, but noted a reluctance on the part of the defendant to take it.
Dr O'Dea felt that an ESO of at least two years could play a beneficial role. That was because the ultimate view of the forensic psychiatrist was that, reflecting upon the risk that the defendant may commit a further sexual offence in the community over the long-term, it may be significantly high (again, based on clinical assessment and statistical tests).
As before, I accept the opinions of that medical expert, for the same reasons: not only his qualifications, his careful analysis of data, and the cogency of his opinions, but also the application of my own, more straightforward analysis as a layperson founded upon reflecting on the past in trying to predict the future.
The other salient evidence placed before me can be summarised more briefly.
The plaintiff also relied upon three risk assessment reports of Dr Richard Parker and Dr Jason Saad that had been obtained by the DCS. These findings were largely consistent with the findings of the mandatory examinations. Dr Parker observed that the defendant does not seem to have learned to avoid risky behaviour, including behaviour that may lead to reincarceration. He posited that the defendant would be largely reliant on others to ensure compliance with any conditions of an ESO. Dr Saad was of the opinion that several monitoring and compliance conditions would be of benefit.
The report also detailed that, whilst incarcerated, the defendant had engaged with treatment and rehabilitation programs including the Moderate Intensity Sex Offender Program (MISOP) to address his deviant sexual behaviour. Notably, however, these programs were conducted between 2009 and 2011, quite some years ago. His progress in these programs was limited, and he developed little insight into his offending. That assessment of others has been borne out by the serious offending against a cognitively impaired young woman in which the defendant engaged many years thereafter, and his repeated returns to custody.
Finally with regard to a sketch of the evidence, a report from the DCS has explained the practicalities of the operation of an ESO, and the potential rehabilitative benefits of it for the defendant.
[3]
Aspects of hearing
At the final hearing, neither of the two experts to whose evidence I have given emphasis was required for cross-examination.
Nor did the defendant tender any evidence to contradict or supplement the documentary evidence placed before me by the plaintiff.
Counsel for the defendant, no doubt advisedly, neither consented to nor opposed the imposition of an ESO. To expand upon that: she accepted that all statutory mechanistic preconditions to the making of that order had been established. And she did not wish to be heard about the central test to be found in s 5B(d) of the Act. Of course, her position was that its satisfaction was a matter for me.
Separately, she did not submit that there was any discretionary basis upon which an ESO should not be imposed.
Nor did she submit that its proposed duration of two years was inappropriate.
Finally, after a period of constructive discussion between the legal teams, it was made clear that there was no dispute about the appropriateness (to adopt the statutory test) of the final iteration of the conditions of the ESO sought by the plaintiff.
[4]
Determination
In the circumstances outlined above, I respectfully think that the answer to the question of whether the order sought by the plaintiff should be made does not require justification beyond the following.
Over a span of many years, the defendant has shown a readiness to engage in sexual contact with persons who are incapable of giving consent, by way of their age, or their cognition. One of the victims was 6 years old, suffered from psychological difficulties, was his natural daughter, and was completely at his mercy. Another, one can readily infer, was a young woman of significant vulnerability who was in no position whatsoever to provide any form of informed consent to sexual contact with the defendant, then aged in his mid-sixties.
It is true that those two occasions of sexual offending against two victims are, as I have said, separated by a span of many years. But the intervening period is punctuated by repeated breaches of conditional liberty that are certainly troubling. That is because they establish, in my opinion, a readily discernible pattern. It is a pattern of the defendant ending up in the company of children - often ones who are rendered more vulnerable than usual by developmental delays and the like - in circumstances that are concerning, if not suspicious.
Furthermore, bearing in mind that this man does not suffer from an intellectual deficit that could interfere with understanding of what he must not do, I do think that there is a disturbing flavour - at the least of recalcitrance, if not of compulsion - in his conduct. That is especially so bearing in mind that he must have known for years that breaching his statutory and other responsibilities would very likely lead to a return into custody, as indeed it has on many occasions. And yet those breaches have occurred nonetheless.
In my opinion, on all the evidence, the plaintiff has comfortably established the unopposed proposition that I can be satisfied "to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order." And in coming to that position, I have borne in mind the statutory command to afford paramountcy to the safety of the community. (I shall not go on to discuss the other mandatory factors to be found in s 9 of the Act seriatim, because I believe that all of them are dealt with, albeit briefly, in this judgment, read as a whole.)
Inevitably, in light of the failings on various forms of conditional liberty of the defendant in the past, one can only approach his prospects of success on an ESO with caution. But that assessment does not constitute any reason not to impose one.
Nor is there any discretionary reason to fail to do so.
Reflecting on the length of the ESO, I regard it as appropriate, and certainly not overly lengthy.
Finally, as I have said, none of the conditions ultimately arrived at were opposed by the defendant through his counsel. I have reflected on them myself, and regard all of them as appropriate.
[5]
Orders
For those reasons, I make the following order:
1. Pursuant to ss 5B, and 9(1)(a) of the Act the defendant is the subject of an extended supervision order ("the extended supervision order") for a period of two years; and
2. Pursuant to s 11 of the Act, the defendant, for the period of the extended supervision order, must comply with the conditions set out in the schedule to this judgment.
[6]
Wiggins (a pseudonym) Schedule of conditions13.12.21 (204893, pdf)
[7]
Amendments
10 February 2022 - Schedule added.
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Decision last updated: 10 February 2022