The State of New South Wales v Sharpe

The Act

Having set that material out, I now come to the Act's requirements. Section 5H of the Act confers upon the State the power to apply to this Court for an ESO against an offender. Section 5I(1) provides that an application for a high risk sex offender can only be made in respect of a "supervised sex offender". Section 5I(2) defines a "supervised sex offender" as a sex offender who is in custody or under supervision when the application for the order is made.
Section 4 defines a "sex offender" as a "person over the age of 18 years who has at any time been sentenced to imprisonment following his … conviction of a serious sex offence". "Serious sex offence" is defined by s 5 as including an offence under Division 10 of Part 3 of the Crimes Act, where in the case of an offence against an adult or child the offence is punishable by imprisonment for 7 years or more (s 5(1)(a)(i)). In Mr Sharpe's case, his numerous convictions under s 61M(2) of the Crimes Act satisfy this requirement. Accordingly, as Mr Sharpe is still in custody, he is therefore a "supervised sex offender".
Section 6(1) of the Act requires that an application for an ESO must specify whether the ESO sought is a high risk sex offender extended supervision order or a high risk violent offender extended supervision order. The summons meets that requirement.
Section 6(2) provides the application must be made in the last six months of the offender's custody or supervision. It follows from what I have stated that that requirement has been complied with. Section 6(3) provides that the application must be supported by documentation that addresses each of the matters referred to in s 9(3), and includes a report that assesses the likelihood of the offender committing a further serious sex offence, or a further serious violent offence. The Risk Assessment Report meets that requirement.
Section 9(3) of the Act specifies various criteria that the court must consider in determining whether to make an extended supervision order. Those criteria are as follows: (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 relevant 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 relevant offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (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, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order). The material which I have outlined addresses those criteria.
Section 7(3) provides that a preliminary hearing of this kind must be conducted within 28 days after the application is filed, or such further time that the court may allow a hearing being conducted within that period.
Section 7(4) confers on the Court the power to grant the first form of relief sought by the State, namely, the power to appoint two psychiatrists or two psychologists, or a combination thereof, to examine Mr Sharpe and direct that he attend the examination. The Court is obliged to make that order if it is satisfied that the matters alleged in the supporting documentation justify the making of an ESO.
The reference to the "matters alleged in the supporting documentation" means that, on the hearing of this application, the Court does not undertake any assessment of the matters referred to in the document or material. Instead it takes that material as given.
In terms of whether those are matters which, if accepted, would justify the making of an ESO, this directs attention to ss 5B and 5C. Section 5C(1) confers on this Court the power to make an order for the supervision of an offender, if the offender is a "high risk sex offender".
Section 5C(2) defines such an order to be an ESO. A high risk sex offender is defined by s 5B(2). That definition is satisfied "if the offender is a sex offender, and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a sex offence if he or she is not kept under supervision". The assessment of whether that test is satisfied involves consideration of the criteria in s 9(3) set out above.
There is no doubt the phrase "high degree of probability" imposes a high threshold. However, what the court needs to be satisfied of to a high degree of probability is not that the offender will necessarily commit a serious sex offence, but whether he poses an unacceptable risk of committing a serious sex offence.
In this context, the reference to "unacceptable risk" is something that involves a consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate (State of New South Wales v Simcock [2016] NSWSC 1805 at [71]).
This brings me to the essence of the submission put on behalf of Mr Sharpe at this hearing, namely, that, "[t]he evidence at its highest supports a contention that Mr Sharpe is primarily and most likely at risk of reoffending in a manner that does not meet the definition of "serious sex offence"".
This submission draws attention to the fact that a number of the sex offences for which Mr Sharpe has been convicted do not meet the definition of serious sex offence that I referred to earlier, in that the maximum penalty for the offence is below seven years imprisonment. In particular, the various acts of indecency that he has committed on a regular basis over the years do not meet the definition of "serious sex offence".
I have already accepted the general proposition that the offence that, if released and not supervised, Mr Sharpe is most likely to commit, is such an offence. Nevertheless, that is no answer to the State's application. The fact that there may be a particular form of sex offence, which is not a serious sex offence, which a person has an especially high risk of committing if they are released, does not mean that there is nevertheless not a high degree of probability that they pose an unacceptable risk of committing a more serious sex offence, specifically one which carries a maximum penalty of seven years imprisonment or more.
As I have already stated, a review of Mr Sharpe's criminal record reveals that he is, or has been to date, indiscriminate when it comes to considering the age of the victims. Further, while on a number of occasions he has engaged in acts of masturbation in the presence of the victims, he has also repeatedly touched persons under the age of 16 years.
In my view the material considered as a totality, and taken as given, clearly demonstrates that there is an unacceptable risk of his committing a serious sex offence of the kind that he has already been convicted of on a number of occasions, namely, a contravention of s 61M(2) of the Act.
The risk is unacceptable both in terms of the likelihood of it eventuating and in terms of the gravity of that risk. The acts of touching in a sexual way of persons under the age of 16 may have far-reaching consequences for those victims. It follows that I am satisfied that an order under s 7(4) of the Act should be made.
The power to make an ISO is conferred by s 10A of the Act. Section 10A empowers the Court to make an order if it appears to the Court that the offender's current custody or supervision will expire before the proceedings are determined and if the matters alleged in the supporting documentation will, if proved, justify the making of an high risk sex offender supervision order.
In relation to the first of those criteria, as noted, Mr Sharpe's sentence will expire on 2 June 2017. Having regard to the state of this Court's lists, and the necessity for the parties to prepare for a hearing and to obtain the psychiatric or psychological reports as a consequence of the orders being made under s 7(4), there is no realistic possibility that the matter will be dealt with to finality by the time Mr Sharpe's sentence expires.
In relation to the second criteria, it follows from my earlier conclusion that I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender ESO against Mr Sharpe.
The conclusion that I have reached reflects my assessment of the criteria listed in s 9(3), namely: the safety of the community; the effect of the reports and material provided by Corrective Services concerning Mr Sharpe's management in the community; the level of his compliance with any obligations to which he has been subject or will be subject; the level of his compliance with his obligations under the Child Protection (Offenders Registration) Act 2000; his overall criminal history; the views of the sentencing court as expressed in the various penalties imposed, and the other information that is available.
During the course of argument, Counsel for Mr Sharpe indicated that if the Court was minded to make an ISO, then before the Court came to impose conditions she would seek the opportunity to confer with Counsel for the plaintiff. Accordingly, before making any final orders, I will adjourn. [Parties addressed re conditions]
The parties have now had the opportunity to discuss the proposed conditions. At the conclusion of their discussions, however, they remained at odds over the appropriateness of five aspects of the conditions sought to be imposed by the State pursuant to s 11 of the Act. As to the balance of the conditions, I have reviewed them. In light of the material put forward by the State on this application, I find that they are "appropriate".
The first disputed condition is condition 4 which concerns electronic monitoring. The State seeks a condition of the ISO be imposed requiring Mr Sharpe wear electronic monitoring equipment as directed by his Departmental Supervising Officer. This condition interlinks with conditions 5 to 8, which concern his movements. It can be accepted that the imposition of electronic monitoring equipment to monitor a person's location represents a significant intrusion into their freedom. Nevertheless, bearing in mind Mr Sharpe's criminal history, which involves him having committed sexual offences in shopping centres and the like, I consider that it is appropriate to impose an electronic monitoring condition as part of the process of facilitating compliance with his movement conditions and certain place restrictions to which I will refer.
The second disputed condition is clause 10. It seeks to impose a curfew condition that requires Mr Sharpe to reside at his approved address between 9.00am and 6.00pm, unless other arrangements are approved by his Departmental Supervising Officer. I do not consider that it is appropriate to impose this condition at this point. It seems likely that Mr Sharpe will be residing in a COSP facility upon his release. Such facilities usually have their own curfew conditions. It is likely that he will have to comply with those conditions as part of his requirements of residence.
A review of his pattern of offending does not reveal that there is any heightened risk of him committing an offence between 9.00pm and 6.00am. It was submitted that there was a greater likelihood that he may encounter single females during that time and offend against them. However, given the spontaneous nature of his offending in open public places, the suggestion of some premeditated or sexual predatory behaviour on his part, at least having regard to his record and the material, is speculative. Further, it is to be recalled that if there is a concern about his night-time movements for the period of the ISO, that can be addressed with the electronic monitoring equipment.
Clause 17 precludes Mr Sharpe from attending a number of public facilities without the prior written approval of his Departmental Supervising Officer. This includes schools, amusement parlours, cinemas, live camping grounds, children's playgrounds, playing fields, sporting facilities, concerts, internet cafés or residences where he knows that persons under 18 ordinarily reside. On its face, this is a very significant intrusion into his freedom of movement. On Mr Sharpe's behalf it was submitted that, overall, it would hinder his reintegration into the community.
Nevertheless, when one recalls the nature of Mr Sharpe's offending, it is appropriate to impose this condition notwithstanding the significant restrictions it places upon his freedom. As I stated, Mr Sharpe appears to have committed spontaneous sexual offences in public places, especially where children are to be found.
The next contest concerns the entirety of Part G of the conditions, which concerns access to the internet and other electronic communications. This can be considered with the last remaining contested area, Part I, which concerns access to pornographic, violent and classified material. The monitoring of his internet and other communications seems to be justified, partly because it is a means of ensuring that he is complying with the balance of his conditions and also because of a concern that he may be accessing content that includes pornographic, violent and classified material.
Again, this represents a significant intrusion on his freedom. Nevertheless, given the concerns raised, both in the Risk Assessment Report and the Risk Management Report about his sexual drive, I consider that these conditions are "appropriate", at least as an interim measure, to ameliorate the various risk factors. Those conditions will be imposed.
Accordingly, the Court orders that: (1) Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (the "Act"), the defendant is to be subject to an Interim Supervision Order for a period of 28 days to take effect from 3 June 2017 and that, pursuant to s 11 of the Act, for the period of the Interim Supervision Order, the defendant is to comply with the conditions in the Schedule annexed to the Summons filed 29 March 2017 (other than clause 10). (2) The Court appoints Dr Andrew Ellis psychiatrist, to examine the defendant and furnish his report to the Court by no later than 2 June 2017. (3) The Court appoints Dr Jeremy O'Dea, psychiatrist, to examine the defendant and furnish his report to the Court by no later than 2 June 2017. (4) Grant the parties liberty to apply to the Manager of Listing to obtain a hearing date with an estimate of one (1) day. (5) The matter stand over for directions before the Registrar at 9:00am on Tuesday, 2 May 2017.

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Cases Cited (1)

Cited By (13)