The State of New South Wales v Sharpe

Index Offence

1. Mr Sharpe is 32 years old. His most recent relevant offence ("the index offence"), was committed on 4 June 2015 when he committed an act of indecency against a person under 16 years contrary to s 61N(1) of the Crimes Act 1900. That provision carries a maximum penalty of 2 years imprisonment.
2. The victim of Mr Sharpe's offence was a 14 year old girl, who was unknown to him. The act of indecency was his conduct of masturbating in front of her whilst he was on a train. The offence was committed whilst he was on parole for another offence. Mr Sharpe pleaded guilty on 16 June 2015. He was sentenced to a term of 2 years imprisonment with a non-parole period of 15 months.
3. Mr Sharpe was released to supervision on parole on 3 September 2016. However, he was arrested for other offences in October 2016. Around that time his parole was revoked. He eventually pleaded guilty to those other offences and was sentenced to a fixed term of 2 months which ran concurrent with the existing sentence. That sentence finished on 17 December 2016.
4. Nevertheless, his parole order was still revoked, and that revocation was confirmed in March 2017. In the end result he is to remain in custody serving his sentence until the expiry of the head sentence for the index offence on 3 June 2017.

Criminal History

1. The material provided by the State indicates that Mr Sharpe had a deprived and difficult upbringing. It seems that, from his early teenage years, he developed difficulties with alcohol and abused prohibited drugs. His schooling was disrupted. He left school at a relatively early age.
2. In September 1998, while only 13, he was convicted of aggravated indecent assault on a person under 16 years, contrary to the then s 61M(1) of the Crimes Act. That offence carried a maximum of 7 years imprisonment. The facts involved him touching a five year old girl.
3. In August 2004 Mr Sharpe was charged with five counts of aggravated indecent assault on a person under the age of 16 years, contrary to s 61M(1) of the Crimes Act. The offences were committed between 2001 and September 2002 when Mr Sharpe was aged between 16 and 17 years. They were committed upon a girl who was between eight and ten years old. They involved him touching her on her vagina and him exposing himself to her.
4. In November 2008 Mr Sharpe was charged with committing an act of indecency with a person over 16 years, contrary to s 61N(2) of the Crimes Act. The maximum penalty for that offence was 18 months. He was sentenced in the Local Court on 4 November 2009 to 6 months imprisonment for that offence.
5. At the time of the commission of the offence Mr Sharpe was 24 years old. The victim was 19 years old. Mr Sharpe sat down just outside of a retail shop on some grass near the victim. He pulled his penis out of his shorts and masturbated for about five minutes while looking in the direction of the victim.
6. On 30 January 2009 Mr Sharpe was charged with committing an act of indecency contrary to s 61N(2) of the Crimes Act. The maximum penalty for that offence was 18 months imprisonment. He was also sentenced for that matter on 4 November 2009. He received a sentence of 14 months imprisonment with a non-parole period of 8 months. The victim of this crime was aged 22.
7. According to the police facts, Mr Sharpe approached the bus stop where the victim was waiting. He sat on the ground opposite the bus stop with his erect penis exposed through the bottom of his shorts and began masturbating while looking at the victim.
8. In early February 2009 Mr Sharpe was charged with two counts of indecent assault on a person under 16 years contrary to s 61M(2) of the Crimes Act. The maximum penalty for that offence is 10 years imprisonment. These offences occurred on 26 January 2009. Mr Sharpe's victim was aged nine years old.
9. The facts record that he followed the victim and her family around a shop in a shopping plaza. He touched the victim on the bottom on one occasion with his hand, and later made a thrusting gesture towards her with his pelvis. He was also sentenced for that offence on 4 November 2009. He received a sentence of 14 months imprisonment with a non-parole period of 8 months.
10. On 20 April 2009 Mr Sharpe was charged with two counts of indecent assault on a person under the age of 16 years contrary to s 61M(2) of the Crimes Act. The maximum penalty for that offence was 10 years.
11. The police facts record that the victim was aged 14 years. Mr Sharpe walked up behind her on two occasions while she was at the retail shops in a shopping plaza and touched her on the buttocks on both occasions. He was sentenced for those offences on 4 November 2009. He received a custodial sentence that ran concurrently with the sentences that I have just referred to.
12. On 23 March 2011 Mr Sharpe was charged with two counts of sexual intercourse with a person between the age of 14 and 16 years, contrary to s 66C(3) of the Crimes Act and two counts of aggravated sexual intercourse with a person between the age of 14 and 16 years. He was indicted on those charges but never convicted.
13. The requirement in the Act that, on these applications, the Court proceed on the basis that the matters alleged in the supporting documentation are proved raises something of a conundrum, where the supporting documentation revealed that charges were laid but did not proceed to conviction. In the end result, nothing in this judgment turns upon a consideration of the circumstances surrounding that matter.
14. On 16 May 2012, Mr Sharpe was charged with three counts of indecent assault on a person under the age of 16 years contrary to s 61M(2) of the Crimes Act. That offence carries a maximum penalty of 10 years. The offences were committed one week prior. His victim was aged 10.
15. The police facts record that he touched the victim on the buttocks on three occasions while she was shopping with her mother. Mr Sharpe was convicted of these offences on 5 February 2013 and sentenced to 22 months imprisonment commencing on 16 May 2012 with a non-parole period of 10 months.
16. On 25 September 2014, Mr Sharpe was charged with three counts of committing an act of indecency with a person of 16 years or over contrary to s 61N(2) of the Crimes Act. That offence carries a maximum penalty of 18 months. He was convicted of that offence on 20 April 2015. He was sentenced to an aggregate term of 18 months commencing on 25 September 2014 with a non-parole period of 7 months.
17. This recitation of Mr Sharpe's criminal history reveals that he is a persistent sex offender. One notable aspect of the crimes that he committed is that most of his victims were unknown to him. Another is that much of the offending occurred in a public place. Further, the criminal history reveals that he was generally indiscriminate as to the age of the victim of his offending.
18. In a submission that I will return to, his counsel submitted that, if there was a risk of him committing further offences, it was an offence involving some form of act of indecency. With that assessment, I agree.
19. However, the material also indicates a significant and appreciable risk of the commission by Mr Sharpe of an indecent assault on a person under the age of 16 years. Any repetition of that conduct will constitute an offence under s 61M(2) of the Crimes Act, which carries a maximum term of 10 years imprisonment.
20. Another noticeable feature of Mr Sharpe's record is that, by and large, he has a very poor history of compliance with obligations imposed either by law or by the courts. A number of the convictions to which I referred involved either breaches of parole conditions or bail and the like.
21. Further, from an early period he has been placed upon the child protection register, but nevertheless on occasions he failed to comply with the requirements of the relevant legislation. As I have said, he is currently being detained in custody beyond the expiry of his non-parole period because of a breach of his parole conditions in committing further offences.

Rehabilitation and Reports

1. One matter of potential significance to this application concerns what is revealed in the material about Mr Sharpe's lack of participation in sex offender treatment programs. Two matters should be noted. First, in June 2011, according to the materials, Mr Sharpe was offered the opportunity to participate in a custody-based offenders program, but he did not consent.
2. Second, in March 2016 he was found suitable for participation in the Custody-based Intensity Treatment ("CUBIT") program. Mr Sharpe elected not to participate in that program.
3. The recorded reasons for his not doing so were said to be that he asserted that the relevant District Court Judge recommended treatment for him on the "outside", and that he considered that it would be more beneficial to him than completing treatment in custody. He otherwise asserted that, as his charges did not involve violence and his offending was on the "lower end of the scale" he need not complete the program. He referred to the Judge's remarks when he was sentenced, and stated "I decline custody based treatment due to my past childhood experience and due to my psychologist's recommendation, that I complete one-on-one treatment".
4. Placed before the Court on this application were two reports, which have some significance to the statutory scheme. The first such report was a "Risk Assessment Report", dated 18 October 2016, completed by Richard Parker, a senior psychologist in the Serious Offenders Assessment Unit. Dr Parker's report includes the following assessment: "He is assessed as being at high risk of committing further sexual offences. His behaviour appears to be quite compulsive and often occurs in the context of dysfunctional lifestyle, with concomitant substance abuse. He appears to have a high sexual drive and/or a preference for impersonal sex. In response to an abusive childhood, he adopted a view of the world which sees that world as a hostile, threatening place where people are not to be trusted. This led to him having a sense of entitlement, that he can take what he wants, without regard to the rights of others. Mr Sharpe has steadfastly resisted engaging in treatment for either his sexual offending or his substance abuse. The same thinking patterns that underpin his offending are likely to be responsible for this resistance to treatment."
5. Under the heading "Risk Scenarios", Mr Parker stated, amongst other matters: "If Mr Sharpe were to reoffend, he would probably begin by abusing alcohol and/or illicit drugs. This would form part of a generally anti-social lifestyle, with little aim or purpose. This life-style would isolate him from prosocial people and reduce the likelihood of forming appropriate relationships. When he felt the urge for sexual satisfaction, he would gravitate towards public places, with the aim of exposing himself, or touching children. Were such behaviours allowed to go unchecked, it is possible he could escalate to more extreme forms of sexual offending. If he was able to access a potential victim in a private situation, escalation would also be more likely".
6. The potential escalation that Mr Parker adverted to in the last part of this extract appears to be an escalation that extends beyond the offences for which Mr Sharpe has already been convicted. Nevertheless, as I will explain, a number of the offences for which he has previously been convicted constitute "serious sexual offences" under the Act.
7. Also placed before the court on this application was a document entitled "Risk Management Report", which was prepared on 31 December 2016. The report identifies the risk factors; identified in Mr Parker's assessment as being substance abuse, "sexual drive/preoccupation/preference", intimacy deficits and sexual attitudes.
8. The report identifies the post-release options available for managing Mr Sharpe. This includes residence in a Community Offender Support Program Centre ("COSP"), or an integrated support centre, and directions that he attend forensic psychologist services once he is released in order to continue to address his offending behaviour and to assist him in building coping strategies for a law abiding life-style. The report notes that as Mr Sharpe has been assessed as having a high risk of sexual reoffending, it is intended that he will be required to attend group sessions on a weekly basis.
9. The balance of the report addresses the various risk factors, and outlines aspects of the management strategy for dealing with those factors. Most, if not all, of these matters are reflected in the proposed conditions that the State seeks to impose on Mr Sharpe's Interim Supervision Order. These include monitoring third party contacts, monitoring his movements, referral to psychological services, referral to alcohol and other drug services, alcohol and drug testing, prohibitions on contact with children under 18 years of age, and associated and non-association restrictions.

The Act

1. 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.
2. 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".
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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".
10. 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.
11. 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.
12. 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]).
13. 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"".
14. 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".
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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]
24. 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".
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.

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. Decision last updated: 09 May 2017