The State of New South Wales v Dillon

Supreme Court of NSW|2014-08-22|Before: Hidden J

Solicitors: Crown Solicitor (plaintiff) Legal Aid Commission (defendant) File Number(s): 2014/60403

Judgment

HIS HONOUR: The plaintiff, the State of New South Wales, brought proceedings against the defendant, James Gilbert Scott Dillon, under the Crimes (High Risk Offenders) Act 2006. Pursuant to s 5C(1) of the Act, the State sought an extended supervision order on the basis that the defendant is a high risk sex offender within the meaning of s 5B(2). The proceedings had a rather lengthy interlocutory history, which need not be recounted. Counsel for the State, Mr David Kell, and for the defendant, Mr Matthew Johnston, are both very experienced in matters of this kind and I was assisted by their refinement of the issues in written and oral submissions.
On 22 August 2014, I made an extended supervision order for 3 years, subject to a schedule of conditions. These are my reasons for that decision.
The defendant did not oppose the making of an extended supervision order, although there were issues as to the length of the order and some of the conditions sought by the State. Mr Johnston acknowledged that the statutory prerequisites for such an order were met. In particular, it was accepted, for the purpose of s 5B(2), that I would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. Nevertheless, that is a matter which I must determine for myself, having regard to the matters set out in s 9(3). In the light of the material before me, I was so satisfied.

Index offences

On 9 October 2003, he was sentenced at Wollongong District Court for a number of sexual offences arising from two separate incidents to an aggregate term of imprisonment for 9 years with a non-parole period of 7 years, dating from 28 November 2002. The incidents giving rise to those offences occurred in 2001 and 2003.
On 6 December 2001, he had been a visitor at the family home of a 6 year old girl. While the girl's parents were in a nearby room, he digitally penetrated the girl's vagina, causing bleeding. He reported that he had been sexually aroused by her sitting on his lap. For this he was charged with sexual intercourse with a child under the age of 10 years, pursuant to s 66A of the Crimes Act 1900.
On 27 November 2002, he committed a series of offences against a 15 year old girl at Bellambi. He pointed a black replica pistol at her, and threatened to kill her if she did not go with him. He took her to an area with shrubs and tried to unzip her top. He began to kiss her neck but she escaped. As she ran away, he called out to her that he knew where she lived and was going to kill her.
Police came to the area and arrested him, after an altercation during which he was armed with a knife. Nearby police found the black replica pistol, as well as a backpack which contained items of female clothing, including women's and children's underwear, pornographic pictures of women, a set of bolt cutters, a wheel brace and a face mask. At the time of his arrest he admitted that he was wearing a number of pairs of women's underwear.
This incident gave rise to charges of detaining a person with intent to obtain an advantage, namely sexual gratification, assault, and using a prohibited weapon without authorisation. At the time of the 2001 offence, he was on parole for armed robbery. At the time of the 2003 offences, he was on bail for the first offence and, indeed, had failed to appear in respect of it.

Custody/parole

While in custody, the defendant undertook the CUBIT program, demonstrating a generally positive participation. He was released on parole on 18 February 2011. Again, he demonstrated a positive attitude to adjusting his behaviour in the community and was generally co-operative with supervision. He participated in some counselling and alcohol and other drug programs. However, he used drugs and drank alcohol, in breach of one of his parole conditions, and on one occasion experienced self-harm ideation. His parole was revoked, with effect from 17 July 2011. On 27 November 2011, he was released following the expiry of his sentence.

Further offences

On 20 December 2011, a magistrate made an order under the Child Protection (Offender's Prohibition Orders) Act 2004, which included a restriction against the defendant's unsupervised contact with persons under the age of 18 years (CPPO). However, in March 2012 and again in June 2012, he was arrested for breaches of that order, having been in company with a 3 year old child on one occasion and adolescents on three other occasions. These are "offences of a sexual nature" for the purpose of s 5 of the Crimes (High Risk Offenders) Act. He was also charged with being a convicted child sexual offender loitering near a public place, an offence under s 11G of the Summary Offences Act 1988, arising from his being in the vicinity of children outside an arcade in Cabramatta. Further, he was charged with indecent assault of a 16 year old girl by slapping her on the buttocks.
Finally, he was charged with threatening to influence a witness (s 322 of the Crimes Act), arising from a letter sent to a neighbour in Cabramatta, who knew three of the adolescents the subject of other charges, asking that person to convey to them that there would be "payback" if "I do time because of them … ." He was charged with the first breach of the CPPO in March 2002, and several of the later charges were committed whilst on bail for that charge. He was re-arrested on 7 June 2012, and it was while in custody that he wrote the letter conveying the threat to the witnesses. The process of his being dealt with for these offences was complex, and need not be recounted. It is sufficient to say that between 2012 and 2013 he was dealt with for these offences by two different magistrates, and sentenced to terms of imprisonment.
He was released on parole on 8 August 2013, and took up residence at the Nunyara COSP facility. There he was found to be using cannabis and drinking alcohol. On 6 October 2013, in the course of a breath test for alcohol, he was observed to be intoxicated and agitated and became aggressive with COSP staff. Police were called and, after an altercation, he was charged with intimidation and assaulting and resisting officers in the execution of their duty. He later admitted to having taken methamphetamine prior to that incident.
His parole was revoked, and on 27 November 2013 he was sentenced in the Local Court to short terms of imprisonment for those offences. He was ultimately granted parole on 14 July 2014, and upon his release resided at Forster House in Surry Hills.

Expert reports

There are in evidence reports from a psychologist and two psychiatrists, all of whom have considerable experience in this area: a risk assessment report of Mr Patrick Sheehan, psychologist, and psychiatric reports of Dr Samson Roberts and Dr Jeremy O'Dea. The three reports are comprehensive, and are founded upon interviews with the defendant and a substantial body of material, which is also in evidence. For present purposes these reports can be summarised briefly, focusing on the conclusions of their authors.
Mr Sheehan, who report was prepared on 5 December 2013, referred to the defendant's convictions for sexual offences and noted his "consistent failure to be dissuaded from anti-social behaviour by the presence of community based supervision." He referred to his involvement in CUBIT and in programs upon his release to parole in February 2011, but added that, despite his progress in some areas, he "continued to engage in intermittent drug use, alcohol use, unstable interpersonal relationships, and poor coping (self-harm ideation)." He noted the breaches of the CPPO and the other charges leading to the revocation of his parole, and his later offences at the COSP leading to his final period of custody.
Mr Sheehan saw the defendant as meeting the diagnostic criteria of a Substance-related Disorder, an Anti-social Personality Disorder and a Borderline Personality Disorder. He saw many of his "problematic behaviours" as related to his personality disorder, which he described as chronic and "likely to continue to impede his ability to function into the future." He expressed the view that, in the absence of intensive support and supervision, his "lapses of judgement would escalate and predispose him to high risk situations." He considered him to be "a high risk of sexual reoffending relative to other male sex offenders." The mitigation of that risk would require "community supervision and support" until he could "reliably demonstrate the ability to respond effectively to life stressors without recourse to the pathological coping behaviours associated with his sexual offending."
In his report Mr Sheehan identified a number of risk scenarios which could lead to the defendant reoffending. These included a lack of structure in his life, a tendency to use sex to deal with stress, feeling "angry-vengeful and sexually aroused simultaneously", feeling more in control in the company of young people, engaging in paraphilia such as the collection of women's and children's underwear for sexual gratification, and escalating the consumption of alcohol and other drugs (particularly amphetamines). Mr Sheehan predicted that, if he were to reoffend, it would most likely be against a female child and could involve "anything from non-penetrative touching, kissing to sexual intercourse." The victim might be a stranger, or a known acquaintance of family or associates. The offence would most likely be spontaneous, and violence or aggressive force was possible.
The reports of Dr Roberts and Dr O'Dea, from a psychiatric perspective, were broadly to the same effect. Dr Roberts reported that the defendant suffers "a constellation of diagnoses, including Personality Disorder, Substance Misuse Disorder, and a possible Paraphilia." Dr O'Dea diagnosed a severe personality disorder, with "significant antisocial, borderline and psychopathic traits." He also saw the defendant as having problems with sexual deviance and as satisfying the diagnostic criteria of a Paraphilic Disorder.
All three experts recognised the significance of substance abuse in his pattern of offending. Dr Roberts saw him as at a "high risk of reoffending", and Dr O'Dea reported that his "risk of engaging in further sex offending behaviours in the community in the long term would be considered significantly high … ."
What also emerges from the psychiatric reports is the chronic nature of personality disorders. Dr Roberts observed that, having regard to the defendant's age and the nature of his diagnosed disorders, they are "expected to be enduring in nature," and "represent chronic, potentially life-long conditions." He summarised the position in this way: "Personality disorders require long-term treatment. The prognosis for treatment of personality disorders is poor, in particular where the pathological personality style has endured into middle age. Even in cases where there appears to be success in moderation of personality pathology through therapy, external stressors have the potential to prompt regression to past behaviours associated with the underlying personality disorder. It is nevertheless appropriate that Mr Dillon is supported in his pursuit of treatment to manage his personality disorder and to improve his psychological resources. This is expected to improve his ability to integrate into society, cultivate support and develop independence. It is considered that factors arising from Mr Dillon's personality represent those factors that collectively play the greatest role in Mr Dillon's overall risk. Treatment of personality disorder potentially represents that aspect of Mr Dillon's overall management with lowest prospect of success. It would therefore be prudent to potentially target his use of substances and his sexual drive, although it represents a lesser contributor to his overall risk, on the basis that the rate of success of treatment for these conditions is expected to be higher."

Order sought

From this brief summary of a large body of material it is apparent that an extended supervision order was appropriate. As I have said, areas of dispute were the duration of the order and some of the proposed conditions.
As is commonly the case in these matters, the State seeks an order for the maximum period permitted under the Act, 5 years, and that duration is supported by the two psychiatrists. Indeed, Dr O'Dea wrote that from a psychiatric risk management perspective, any "management program" should be of at least 5 years duration (and monitored regularly dependant on the defendant's progress). Counsel for the State, Mr Kell, relied upon the doctors' opinions, emphasising the chronic nature of the defendant's disorders and the need for long-term treatment.
The doctors' approval of an order for 5 years is, of course, a therapeutic assessment. My decision on the matter is a legal one, directed to the protection of the community but mindful of the onerous conditions which the order imposes upon the defendant, breach of which carries a penal sanction. Counsel for the defendant, Mr Johnston, cited the reference to these considerations in my decision in State of New South Wales v Garry Allen Conway [2011] NSWSC 925 at [28], and the decision of Button J in Attorney General for the State of New South Wales v Steadman [2013] NSWSC 170 at [82]. Another relevant factor is that an order for a shorter period may be more conducive to a defendant's commitment to rehabilitation through the supervision regime. Mr Johnston noted that the defendant had not committed a serious offence since 2002, and it seems that during his last period of custody and since his release he had been making good progress in a drug and alcohol program. Finally, it is to be borne in mind that it is open to the State to seek an extension of the order should the circumstances require it.
For all these reasons I determined that the order should be for 3 years.
I turn, then, to the disputed conditions. Part A, condition 4 requires the defendant to notify a police officer at a police station nearest to him of the fact of the order and its terms. Mr Johnston argued that this was a pointless exercise, as the defendant was already subject to an interim supervision order which had been reported to police. However, Mr Kell made the point that it was necessary for police to be aware of the final order, the conditions of which might differ from the interim order. I allowed that condition to stand.
Part B, condition 2 requires the defendant, if residing at a residential facility, to obey all reasonable instructions given by staff necessary to ensure the good order of the facility and the safety and welfare of the residents, staff or visitors. Mr Johnston noted that he was at the time of the hearing at Forster House, an institution with its own rules and regulations and disciplinary procedures, and that a failure to observe an instruction should not carry criminal sanction as a breach of a condition of the order. On the other hand, Mr Kell made the point that the defendant would not necessarily remain at Forster House and could be at other residential facilities during the term of the order. He also noted that the condition is not directed to any instruction given by a member of staff, but only those necessary to ensure good order in the facility and the safety and welfare of people in it. In my view, such a condition is appropriate and I allowed it to stand.
As proposed, part C, condition 4 limited the defendant's attendance at various places where children might be present, requiring approval of the departmental supervising officer and the presence of an approved adult to do so. Mr Johnston queried the necessity of including cinemas in condition 4(a)(iv), but the focus of his objection was the requirement that the defendant be in the presence of an approved adult: 4(d). I accepted his argument as to that, taking the view that the requirement to obtain the permission of the supervising officer was sufficient to achieve the purpose of the condition as a whole. Par 4(d) was deleted.
As proposed, part D, condition 1 required the defendant to enter available employment if and as directed by his supervising officer. No doubt, it would be beneficial to the defendant's rehabilitation to be employed. However, I was persuaded by Mr Johnston's argument that he should be able to refuse to enter into employment involving inappropriate skills, conditions or salary, and he should not be required under pain of criminal sanction to accept any employment directed by his supervising officer. The condition also would require him to make himself available for education, training or participation in a personal development program as directed. As to this, I also accepted Mr Johnston's argument that these should be matters of incentive and that there should not be "a stick component." This condition was deleted.
As proposed, part D, condition 6 would prevent the defendant from executing a wide variety of contractual documents, including a lease, a mortgage and a contract of sale, without the approval of his supervising officer. Mr Johnston argued that this condition was too broad, and in the course of oral argument there was discussion of confining it to transactions of a minimum value. I determined that it should apply to transactions to the value of $500 or more, and the condition was amended accordingly.
Part E, conditions 9 to 11, as proposed, would have prevented the defendant's unsupervised contact with adults who are at risk of victimisation due to mental status, disability or incapacity (described as a "vulnerable person") without the prior approval of his departmental supervising officer. The difficulty with these conditions is that it requires the defendant to make his own judgement as to whether the person is relevantly vulnerable. Mr Johnston pointed out that the primary issue with the defendant is the protection of children, an issue adequately addressed by other conditions in this part preventing his contact or association with any persons specified by his supervising officer and specifically directed to the contact with children. The matters raised by Mr Johnston in relation to the conditions objected to were addressed by Beech-Jones J in State of New South Wales v Burns [2014] NSWSC 1014 at [61] - [62]. These conditions also were deleted.
Finally, as proposed, part H had two conditions. The first prohibited the defendant from possessing or using any firearm or prohibited weapon as defined in the Weapons Prohibition Act 1998. The second would have prevented him from carrying on his person, outside his residence, any knife, syringe, or other cutting instrument, or any rope, cord, cable ties, or other instrument of restraint. As to the first condition, I accepted Mr Johnston's argument that it did no more than prohibit conduct which would be, in any event, an offence under the Weapons Prohibition Act. As to the second condition, there was nothing in the evidence to suggest that the defendant might resort to the use of a rope, cord, cable tie or other instrument of restraint. As to his carrying a knife, there could be any number of reasons why he might legitimately need to do so. The practical course, it seemed to me, was to leave the reference to knife, syringe or other cutting instrument but to provide that he might have them in his possession with the permission of his supervising officer. That condition was amended accordingly.
All the remaining conditions are of a kind now familiar in these matters, and I accepted that they are suitable.

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