The State of NSW v O'Sullivan

Supreme Court of NSW|2009-07-22|Before: Price J

CITATION : The State of NSW v O'Sullivan [2009] NSWSC 704

DECISION : 1) Pursuant to s 13(1) of the Crimes (Serious Sex Offenders) Act 2006, revoke the interim supervision order made by the Court on 15 May 2009 and renewed by further orders made on 11 June and 8 July 2009 with effect on and from 4pm on 22 July 2009. 2) Pursuant to s 17(1)(a) of the Act make an extended supervision order in respect of the defendant for a period of 5 years to commence on and from 4pm on 18 May 2009 and, pursuant to s 11 of the Act, direct that the defendant comply with the conditions set out in the schedule to these orders. 3) I direct that the defendant's risk and resultant risk management plan be reviewed by the Department of Corrective Services at least once a year. 4) I direct that access to the Court file in respect of any document shall not be granted without the leave of a Judge of the Court. If any application is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to be heard.

CATCHWORDS : Serious sex offender - application for extended supervision order not opposed - consideration of length of order.

Crimes Act 1900 s 66(1) LEGISLATION CITED : Crimes (Serious Sex Offenders) Act 2006 s 10(1)(b), s 13(1), s 11, s 17(1)(a), s 17(1)(b), s 17(3), s 17(4)(a), s 17(5)

CASES CITED : Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327

PARTIES : The State of New South Wales Daniel Ross O'Sullivan

COUNSEL : D Staehli SC and D T Kell (Plaintiff) J Watts (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11846/2009 The State of New South Wales v O'Sullivan

1 HIS HONOUR: By a summons filed on 6 April 2009, the State of New South Wales, the plaintiff, sought an order pursuant to s 17(1)(b) of the Crimes (Serious Sex Offenders) Act 2006, (the Act), that the defendant be subject to a continuing detention order for a period of up to 5 years from the date of the order. In the alternative, the plaintiff sought an order pursuant to s 17(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of 5 years from the date of the order and pursuant to s 17(5) and s 11 of the Act that he be directed to comply with the conditions set out in the schedule to the summons. The plaintiff no longer seeks a continuing detention order. The present application is for an extended supervision order. 2 The defendant was sentenced by Geraghty DCJ on 19 November 2004 for three counts of sexual intercourse with persons aged between 10 years or over and under 14 years contrary to s 66(1) of the Crimes Act 1900. The offences were committed between 1 November and 31 December 2002. The total terms of imprisonment imposed (each of the sentences being imposed concurrently) was 5 years 6 months to date from 19 November 2003 and expire on 18 May 2009, comprising of a non-parole period of 4 years 6 months with an additional term of 12 months. 3 Two offences involving anal penetration of the defendant by the two victims were included on a Form 1 and taken into account on sentence.

4 The defendant completed his sentence on 18 May 2009. 5 On 15 May 2009 I made an interim supervision order pursuant to s 8(1) of the Act which was to commence on the defendant's release from custody and to expire on 14 June 2009. The defendant was ordered to comply with the conditions set out in the schedule to the order. The interim supervision order has been subsequently extended to expire on 9 August 2009. 6 The plaintiff now seeks that the period of extended supervision be for 5 years. Short minutes of order have been tendered which include in the attached schedule conditions to which the defendant will be subject. Whilst the defendant does not oppose the making of an extended supervision order, he disputes the length of the order sought by the plaintiff.

7 Mr Watts, counsel for the defendant, submits that the defendant's progress towards rehabilitation justifies a reduction in the length of the order to 3 years. Mr Watts points out that the defendant whilst in custody participated in the PREP and CUBIT programs and has been compliant with the terms of the interim supervision order since his release.

"Objects of Act 1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. 2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation."

9 Part 2 of the Act provides for the making of an extended supervision order against a sex offender. Section 4 of the Act defines sex offender to mean a person who has at any time been sentenced to imprisonment following his conviction of a serious sex offence. The offences contrary to s 66(1) of the Crimes Act, for which the defendant was sentenced by Geraghty DCJ, are serious sex offences as defined by s 5 of the Act. 10 Although the defendant does not oppose the making of an extended supervision order, such an order under s 17(1)(a) of the Act may be made if and only if the Court "is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he is not kept under supervision."

11 The plaintiff bears the onus of proof. The standard of proof is high. What is required is for the court to be satisfied to a high degree of probability (see Cornwall v Attorney General for New South Wales [2007] NSWCA 374). In Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327 the meaning of the word, "likely" in ss 17(2) and (3) of the Act was considered. Giles and Ipp JA said at [89]: "Accordingly, we would hold that the word 'likely' in ss17(2) and (3) denotes a degree of probability at the upper end of the scale, but not necessarily exceeding 50 per cent."

12 What was said in Tillman applies to the meaning of the word 'likely' in s 17(1)(a) of the Act. 13 The court is required to have regard to the matters identified in s 17(4)(a) - (i) in addition to any other matter it considers relevant in determining whether or not to make an extended supervision order.

14 The offences for which the defendant was sentenced by Geraghty DCJ involved sexual offences against two 12 year old boys. Shortly stated, the defendant's offending included the carrying out of acts of oral sex on the victims and the victims having anal intercourse with the defendant.

15 During his remarks on sentence Geraghty DCJ said: "O'Sullivan engaged with an associate in predatory and premeditated anti-social behaviour. This was an activity which is completely unacceptable to the community. He engaged in what can only be regarded as corrupting young members of the community. He classified himself as a paedophile when he introduced himself to the two boys. Vulnerable members of the community, sons of mothers and fathers, brothers of young men need to be kept safe from such perverted overtures of men like O'Sullivan and his friend."

16 The defendant's criminal history includes convictions for an offence of aggravated indecent assault which was committed on a 9 year old boy; an offence of inciting a young person then under the age of 16 years to commit an act of indecency with the defendant for which the defendant was sentenced by Shillington DCJ in the District Court in September 1997 to a total effective term of imprisonment of 4 years consisting of a minimum term of 2 years with an additional term of 2 years. These offences were committed in breach of a 3-year good behaviour bond which the defendant entered into at the District Court at Queanbeyan on 16 August 1993 following a conviction of indecent assault. 17 The defendant's record of convictions commences on 17 December 1962 and contains other offences of indecent assault on male persons for which he has been sentenced to terms of imprisonment. This history of serious sexual offences reveals a longstanding pattern of sexual offending against prepubescent boys.

18 Court orders or parole conditions on other occasions have been breached by the defendant. In 1962 he was placed on a 2-year probation order to be of good behaviour which he breached by committing an offence of wilful and obscene exposure. While the defendant was on parole in 1999, he was found to be consuming alcohol in a house with a 14-year-old boy which was in breach of his parole conditions and parole was revoked.

19 Mr McElhone, a psychologist, in his report dated 9 January 2009 at paragraph 18 provides in further detail the defendant's behaviour which resulted in the parole revocation. Psychiatric and Psychological Evidence 20 Mr McElhone assessed the defendant's risk of re-offending by reference to both his static risk factors using an instrument known as STATIC-99 and his dynamic risk factors. The defendant's "raw score" of 9 by the application of the STATIC-99 placed the defendant in the high risk category relative to other male sexual offenders. 21 A score of 9 placed the defendant in a group of offenders who on average sexually re-offend at 39 per cent over 5 years and 45 per cent over 10 years. 22 The dynamic risk factors identified by Mr McElhone included intimacy deficits, general self-regulation, sexual self-regulation and co-operation with supervision. The psychologist concluded that in relation to sexual re-offending the defendant has been identified as being in a high risk relative to other male sexual offenders.

23 On the basis of his previous pattern of offending, Mr McElhone opined that if the defendant was likely to re-offend it is likely his offences would be against male persons under 16 years. He recommended that the defendant live in a Community Offenders Support Program (COSP) Centre for some time following his release and that he participate in community based maintenance.

24 In a supplementary report dated 23 March 2009 Mr McElhone makes reference to his assessment utilising the updated norms for the STATIC-99 and confirms a score of 9 which places the defendant in a group of offenders who sexually re-offend over a 5 year period at a rate of between 28.2 per cent and 44 per cent and over a 10 year period at a rate of between 39.8 per cent and 54.3 per cent. 25 Mr McElhone considers that the STATIC-99 actuarial risk assessment fairly represents the defendant's risk of re-offending.

26 The defendant's high score on the STATIC-99 does not by itself establish that the defendant is likely to commit a further serious sex offence. The STATIC-99 is a predictive tool of limited value. I take his high score into account as a guide in conjunction with the assessments made of him by the psychiatrists and psychologists founded upon his personal risk factors.

27 The defendant is 63 years old. His father is 86 years old and his mother is the same age. The defendant's parents separated after 54 years of marriage. He has a half brother and sister. The defendant married in 1973 and has a son and a daughter. It seems he has been separated from his wife for many years. The defendant had reported that he proposed to live with Elaine whom he met in 1995 and with whom he planned to live. It appears from the confidential exhibit which is annexed to the affidavit of Silvia Tzolova that this relationship has come to an end.

28 Anna Hoy, a psychologist, in a report dated 6 March 2009 noted that it is questionable how much assistance the defendant's son will be able to provide given that in the past he has been aware that his father was engaging in problematic behaviour and had not taken steps such as contacting police. Miss Hoy identified the defendant's risk factors as including low self-esteem, poor communication, inappropriate fantasies and being secretive. It seems that the defendant's supports in the community are limited. 29 Between 7 April 2008 and 25 February 2009, whilst in custody, the defendant participated in a Custody Based Intensive Treatment Program (CUBIT) for high-risk sex offenders. He prior to that time completed the PREP program. 30 Miss Hoy details the progress the defendant made in CUBIT and concludes that the defendant's participation in CUBIT was positive. The defendant, she states: "Developed good insight into his offending behaviour and strategies to manage this and to develop a more healthy and pro-social future life."

31 Miss Hoy opines that the defendant does have the ability to cope with his past difficulties, particularly if given assistance but states: "However, being realistic about these and preparing for all eventualities would mean he is better equipped to deal with these if they do arise. This is particularly important given that Mr O'Sullivan continued to have difficulties identifying high risk situations, the need for further development to his risk factors, release and good life plans."

32 The psychologist recommended that the defendant strongly consider the use of medication to assist him in exerting appropriate control and to provide him with relief from any intrusive or concerning sexual interests given the extensive nature of his sexual dis-regulation in the past.

33 Two psychiatrists, Dr Anthony Samuels and Dr Jeremy O'Dea, have provided reports to the Court pursuant to the order made on 15 May 2009. Dr Samuels in a report dated 11 May 2009 expresses the opinion at page 19: "Given his offending history, his actuarial risk score on the STATIC-99 and a systematic review of potential risk factors utilising the RSVP which confirms a plethora of risk factors for further acts of sexual violence (chronicity and diversity of offending, escalation of violence and use of physical and psychological coercion, minimisation and rationalisation of offending behaviour, problems with coping, prior abuse, sexual deviance, personality flaws, possible mental illness in the past, relationship difficulties, non-sexual criminality and problems with supervision and treatment) place him in a high risk category of offenders."

"All of these factors suggest to me that Mr O'Sullivan remains at high risk of committing a further serious sex offence if released into the community and not kept under strict supervision and monitoring."

35 Dr Samuels diagnosed the defendant as fulfilling DSM-IV-TR diagnostic criteria for Paedophilia sexually attracted to males (aged 8 to 12 years old), Non Exclusive Type DSMV-TR code 302.2. He found nothing to suggest that the defendant was suffering from a major psychiatric disorder in the form of an affective or anxiety disorder or psychotic illness.

36 Dr O'Dea in a report dated 3 June 2009 did not diagnose the defendant as suffering from a major psychiatric illness but diagnosed him as suffering from homosexual paedophilia. The defendant has, Dr O'Dea observed, "a strong specific and at least predominant if not exclusive sexual attraction to prepubescent male children, in particular male children between the ages of 8 and 12 and that he has not been able to control these urges and behaviours despite prior attempts at psychotherapy". Dr O'Dea stated that the defendant would be considered to fall into the group of sex offenders with a significant high risk of engaging in further serious sex behaviours and also of committing a further serious sex offence as defined in the Act. He considered that the defendant's risk of engaging in further sex offending behaviours is specifically related to his history of homosexual paedophilia which should be actively treated and managed. 37 Dr O'Dea states at [72-73]:

"To date at least, psychological interventions alone have not proved successful in preventing Mr O'Sullivan committing further sex offences. His accounts of the benefits of the CUBIT program appeared at best superficial and he was not able to give me an adequate account of his understanding of his sex offending behaviour or a credible account of how he was going to successfully manage his risk in the community in the long term.

I note that he continued to deny at least significant components of his sex offending behaviours... I am not aware of good evidence that denial in and of itself predicts the commission of further serious sex offences."

38 The psychiatrist considered that it was appropriate that the defendant commence a trial of testosterone lowering medication in addition to the proposed psychological and corrective supervision and monitoring program.

39 There are two reports from Dr Andrew Ellis. The defendant has given informed consent to 'SSRI' medication and is taking Zoloft. The likely desired effects of that medication is a reduction in unconventional sexual fantasies, urges and masturbation. The Likelihood of Committing a Further Serious Sex Offence

40 Considering in combination the defendant's history of non-compliance with good behaviour bonds and parole conditions, his pattern of various sexual offending and the expert evidence, particularly the opinions of Dr Samuels and Dr O'Dea, I am satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision. The Order of Extended Supervision

41 As there is a high degree of probability that the defendant is likely to commit further serious sex offences, the conditions of extended supervision order must be stringent. The primary object of the Act is to ensure the safety and protection of the community. The defendant consents to the proposed orders, the sole matter in dispute being the length of the extended supervision order.

42 The maximum term of an extended supervision order is 5 years: s 10(1)(b) of the Act. Section s 13(1) of the Act relevantly provides the Court may at any time vary or revoke an extended supervision order on the application of the State of New South Wales or the offender. 43 Dr Samuels expressed the following opinion about the length of the order at page 23:

"Given Mr O'Sullivan's very long history of offending and taking into account the fact that he is a relatively fit looking 63-year-old man, I would see his risk of committing a further sexual offence as continuing and that I think it would be appropriate for such an order to be put in place for at least five years."

"Mr O'Sullivan's risk of engaging in further sex offending behaviours in the community is likely to be relatively long term and of at least 5 years duration, and any risk management plan should reflect this. However, the exact treatment, supervision and monitoring needs may change with time and should be regularly reviewed at least on a 6 to12 month basis."

45 The defendant has made encouraging progress towards rehabilitation. He has completed the PREP and CUBIT programs whilst in custody. Furthermore, the contents of the confidential exhibit support the steps that he has taken to comply with the interim supervision order. However, as I have discussed with counsel during the course of oral submissions, the troubling aspect is the defendant's non-compliance with Court orders and conditions of parole in the past and his serious sex offending. 46 I accept the opinions of Dr Samuels and Dr O'Dea as to the length of the extended supervision order. It will be open, however, for the defendant to apply at any time to vary or revoke the order. I propose to commence the order from the date of the original interim supervision order which commenced on 18 May 2009.

Pursuant to s 13(1) of the Crimes (Serious Sex Offenders) Act 2006, revoke the interim supervision order made by the Court on 15 May 2009 and renewed by further orders made on 11 June and 8 July 2009 with effect on and from 4pm on 22 July 2009.

Pursuant to s 17(1)(a) of the Act make an extended supervision order in respect of the defendant for a period of 5 years to commence on and from 4pm on 18 May 2009 and, pursuant to s 11 of the Act, direct that the defendant comply with the conditions set out in the schedule to these orders.

I direct that the defendant's risk and resultant risk management plan be reviewed by the Department of Corrective Services at least once a year.

I direct that access to the Court file in respect of any document shall not be granted without the leave of a Judge of the Court. If any application is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to be heard. **********

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