State of New South Wales v Alliband

Case •

[2020] NSWSC 1585

•

10 November 2020

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: State of New South Wales v Alliband [2020] NSWSC 1585
Hearing dates: 23 October 2020
Date of orders: 23 October 2020
Decision date: 10 November 2020
Jurisdiction:Common Law
Before: Wilson J
Decision:

Appointment of experts

(1) An order pursuant to s. 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):

(a)   Appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and/or psychological examinations (as the case may be) of the defendant, and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court; and

(b)   Directing the defendant to attend those examinations.

Interim relief

(2)   An order:

(a) pursuant to s. 10A of the Act that the defendant be subject to an interim supervision order ("the interim supervision order") from 24 October 2020.

(b) Pursuant to s. 10C of the Act that the interim supervision order be for a period of 28 days.

(c) Pursuant to s. 11 of the Act directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to these Orders.

(3)   The report of Dr Samuels is to be furnished to the Court by 24 November 2020

(4)   The report of Dr Pullman is to be furnished to the Court by 27 November 2020.

(5)   The plaintiff is to file and serve any evidence upon which it relies by 13 November 2020.

(6)   The plaintiff is to serve written submissions by 30 November 2020.

(7)   The defendant is to serve written submissions and evidence by 4 December 2020.

(8)   By no later than 5pm on 4 December 2020, the Plaintiff is to provide to the chambers of the judge allocated to preside at the final hearing a working copy of each document relied upon by the parties for the purposes of the final hearing, including any aides memoire of the parties and any statement of agreed facts (or similar).

(9)   Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

(10)   Liberty to apply to relist the matter on two working days' notice.

Hearing

(11)   The matter is listed for final hearing of the application on 8 December 2020.

Catchwords:

HIGH RISK OFFENDER – preliminary proceedings – application for interim supervision order – current custody expired – question of jurisdiction of the Court to impose interim supervision order – construction of s 10A of Crimes (High Risk Offenders) Act – requirement to construe provision consistently across Part 2 – question of conditions to be imposed – orders made

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Interpretation Act 1987 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(2009) 239 CLR 27; [2009] HCA 41

Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3

State of New South Wales v Windle (No 5) [2020] NSWSC 385

Category:Principal judgment
Parties: State of New South Wales (Plaintiff)
Arthur Alliband (Defendant)
Representation:

Counsel:
G Wright (Plaintiff)
S McGee (Defendant)

Solicitors:
Crown Solicitor for NSW (Plaintiff)
Legal Aid Commission of NSW (Defendant)
File Number(s): 2020/199086
Publication restriction: None.

Judgment

  1. HER HONOUR: On 23 October 2020, an Amended Summons filed by the State of New South Wales (“The State”) with leave that day, seeking an extended supervision order against the defendant, Arthur Alliband, came before me for hearing with respect to the preliminary orders sought. The application is one brought pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the CHRO Act”), and the State argues that, if he is not made the subject of an extended supervision order (“ESO”) in the community, the defendant poses an unacceptable risk to others of committing a serious offence. The preliminary orders sought are as follows:

“Appointment of experts

  1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

  1. Appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and/or psychological examinations (as the case may be) of the defendant, and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court; and

  2. Directing the defendant to attend those examinations

Interim relief

  1. An order:

  1. Pursuant to s 10A of the Act that the defendant be subject to an interim supervision order (“the interim supervision order”).

  2. Pursuant to s 10C of the Act that the interim supervision order be for a period of 28 days

  3. Pursuant to s 11 of the Act directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Amended Schedule to this Summons.”

  1. An order is also sought restricting access to the Court’s file until such time as the parties can be heard on any application for access.

  2. Without admissions the defendant accepted that, if the Court had jurisdiction to make the orders, the matters alleged by the State in the supporting documentation, if proved, provided a proper basis for the orders to be made. To the extent that there was a dispute, it focused on two issues: the question of the Court’s jurisdiction to make the orders sought; and the nature of the conditions attaching to any interim supervision order (“ISO”) that may be made.

  3. Concluding that the Court did have jurisdiction to hear and determine the matter, the preliminary orders were made on 23 October 2020, with some variation to the conditions imposed. My reasons for making orders were reserved until today.

The Question of Jurisdiction

  1. The defendant is presently serving the additional term of a sentence imposed upon him on 21 July 2017. On that date he was dealt with for an offence of sexual assault contrary to s 61I of the Crimes Act 1900 (NSW) (“the index offence”) and sentenced to a term of imprisonment of 4 years and 6 months, commencing on 1 July 2016 and expiring on 31 December 2020. Although the defendant was eligible for release to parole on 31 May 2019 after serving the non-parole period (“NPP”) of 2 years and 11 months imprisonment, he was not released to parole, with parole being granted only on 12 October 2020. That parole remains current until the last day of the year, when the overall sentence expires.

  2. Section 10A of the CHRO Act provides a power for the Court to make an order for a defendant’s interim supervision. It is these terms:

10A Interim supervision order

The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court:

(a) that the offender’s current custody or supervision will expire before the proceedings are determined, and

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.

  1. Because of the proximity of the date upon which the defendant’s sentence expires, a date for the final hearing of the matter - being 8 December 2020 - was obtained during the course of the preliminary hearing. Allowing some time for the matter to be considered by the presiding judge and orders made, it would thus be possible for the State’s Amended Summons to be heard and finally determined prior to 31 December 2020, at a time when the defendant will still be subject to supervision under parole orders.

  2. Notwithstanding the currency of the defendant’s parole supervision, the State pressed the application for an ISO. There was an issue between the parties as to whether, in those circumstances, the Court had jurisdiction to make the order, bearing in mind the terms of s 10A(a).

  3. The defendant argued that, as his supervision would not expire prior to the final determination of the Amended Summons, the Court could not be satisfied that his “current custody or supervision will expire” for the purposes of s 10A(a), and thus there was no jurisdiction for the Court to make an ISO. The Court was referred to a decision of Hamill J in State of New South Wales v Windle (No 5) [2020] NSWSC 385 where, in determining whether an ISO should be imposed upon a defendant who was already the subject of an ESO, his Honour said, at [1]:

“This is a preliminary hearing in relation to an application by the State of New South Wales for an extended supervision order ("ESO") under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW). The defendant is Mr Windle. Mr Windle is currently subject to an existing ESO, which is due to expire on 11 June 2020. The final hearing of the State's present application is listed on 1 June 2020. Because the final hearing will occur before the expiration of the existing ESO, there is neither need nor jurisdiction to make an interim order at this stage: see Crimes (High Risk Offenders) Act 2006, s 10A.”

  1. The State argued that “current custody” and “supervision” are phrased in the alternative, being separated by the word “or”, and that s 10A must be construed consistently with s 5I of the Act. Section 5I provides that an application for an extended supervision order may only be made in respect of a “supervised offender”. The phrase “supervised offender” is given a particular meaning for the purposes of Part 2 of the Act. It is, pursuant to s 5I(2):

5I     Application for extended supervision order

…

(2) A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender’s current custody or supervision):

(a) while serving a sentence of imprisonment:

(i) for a serious offence, or

(ii) for an offence of a sexual nature, or

(iii) for an offence under section 12, or

(iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or

(b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.

…

  1. The State argued that the material time at which the “current custody or supervision” is to be considered is the time at which the application for an extended supervision order is made and, at that time, it was clear that the defendant’s “current custody” would expire.

  2. As I indicated to the parties during the course of the hearing, although the plain words of the section, at a glance, lead to the construction urged on the Court by the defendant, and previously given to s 10A by Hamill J in Windle (No 5), on closer consideration I do not think it is correct.

  3. Consistent with authority, it is appropriate to have regard to the ordinary meaning of the words, but it is also necessary to consider those words in the overall context of the purpose of the Act, as mandated by s 33 of the Interpretation Act 1987 (NSW). As was observed by French CJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, at [4]:

“The starting point […] is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose”.

  1. Although the words “current custody or supervision” in their ordinary sense suggest that the custody or supervision falls to be considered at the time that consideration is given to the matter, if regard is had to the context of the section, that construction cannot be maintained. Context and purpose is important, as was made clear in Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3 where the High Court said, at [26]–[27]:

“The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose. [….]

There are textual and purposive indicators to be considered in determining the preferred construction.”

  1. Here, the context is given by Part 2 of the Act. For the purposes of that Part, s 5I provides the meaning of “current custody or supervision” and it is, as the State submits, the status of either custody or supervision at the time when the application for an ESO was made.

  2. It is important to construe the meaning and operation of s 10A having regard to its position in Part 2 of the Act. Section 5I provides the meaning of “current custody or supervision” for the purposes of Part 2. It would be inconsistent, with s 5I, and contrary to ordinary principles of statutory construction, to give the phrase a different meaning in s 10A to that provided by s 5I for the whole of Part 2 of the Act.

  3. At the time the State made its application, 3 July 2020, the defendant was in custody, with that custody likely to end before the proceedings could be finally determined, as it indeed has. On that basis, the Court has jurisdiction to make an ISO, if all other requirements are met.

  4. Although I am loathe to disagree with the construction given to the phrase by Hamill J in Windle, and a contrary decision of a judge of this Court would ordinarily be a basis for serious pause for thought, I did not find Windle persuasive or of great assistance. It is clear that, in the particular circumstances of that case, where the defendant was subject to an ESO and neither party had cause to dispute or even truly consider the meaning to be given to s 10A, his Honour did not undertake any informed analysis of it. It is clear that he was not asked to construe the provision, and had no reason to look more closely than the words of the section in isolation. Looked at in that way his Honour reached the obvious conclusion, in what was an ex tempore judgment. The outcome may well have been different had his Honour been required to examine the matter carefully.

The Evidence

The State’s Case

  1. The State read the affidavit of Jessica Murty, affirmed on 2 July 2020, which annexed a volume of material exhibited as JM-1; together with two further affidavits from Ms Murty, affirmed on 20 August 2020 and 12 October 2020 respectively. The summary of some of the most relevant material that follows is drawn from that evidence.

Criminal History

  1. The defendant’s first interaction with the criminal justice system was when, as a child, he was fined by the Children’s Court on 22 May 2007 for shoplifting. Thereafter, he has appeared before the Local or District Courts with some regularity.

  2. In January 2008, the defendant was charged with destroying property. On conviction in February 2008 a community service order was imposed upon him. He breached the order and was called up in August that year. When he failed to appear he was convicted ex parte and a warrant issued for his apprehension. When he was bought before the Local Court at Penrith in October 2010, a 6 month supervised bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was imposed. The defendant breached his bond and was called up in May 2010 and another bond, this time pursuant to s 12 of the same Act, was imposed in July of that year, for a period of 12 months. That bond too was supervised with the defendant directed to accept drug and alcohol rehabilitation. The defendant also breached the s 12 bond and was again called up. A further supervised s 12 bond was imposed in May 2011.

  3. A conviction for a 2008 break enter steal was recorded in 2009, with the District Court ultimately quashing the sentencing orders made in the Local Court – over a period of time, given the defendant’s history of breaching community based sentences and being called-up and re-sentenced – and discharging the defendant pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) in October 2012.

  4. In 2009, the defendant was also convicted of offences of larceny, entering enclosed lands, shoplifting, entering a restricted area, receiving stolen property, and break enter and steal. Community based sentencing orders were made, with breaches of the orders following, and call-ups for the breaches. After the defendant breached the s 12 bonds imposed upon him after the first set of breach action, he was sentenced to terms of imprisonment. Those sentences were, however, quashed on appeal to the District Court, with the defendant being discharged by that court pursuant to s 32 of the Mental Health (Forensic Provisions) Act.

  5. In 2011, the defendant was charged with goods in custody. Although, after being convicted ex parte in the Local Court, he initially received a term of imprisonment by way of sentence, that sentence was quashed on appeal and again a s 32 discharge was ordered by the District Court in October 2012.

  6. In February 2014, the defendant was convicted and fined for an offence of assault occasioning actual bodily harm. He was further fined for a traffic matter later in 2014; and later still fines were imposed for possessing a prohibited drug, and for having custody of a knife in a public place.

  7. In August 2014, the defendant was charged with his first serious sexual offences, being two counts of having sexual intercourse with a child above the age of 10 years and below the age of 14 years. He was sentenced in the Penrith District Court to concurrent terms of imprisonment, of 31 months and 15 months, with a NPP fixed with respect to the first term of 18 months. The NPP expired on 29 February 2016.

  8. On the very day of his release to parole, 29 February 2016, the defendant committed the index offence, together with an offence of indecent assault, the latter being ultimately taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act when sentence was imposed for the sexual assault. The parole to which he had been released was, unsurprisingly, revoked.

The Facts of the Defendant’s Sexual Crimes

  1. The facts of the index offence are set out in the remarks on sentence of the sentencing judge. The complainant in the matter was 16 years old at the time of the offence. She was catching a train from Helensburgh to Redfern, and saw the defendant, who had earlier been released from prison, sitting behind her. They struck up conversation, and the complainant asked the defendant for a cigarette. The two got off the train together at Seven Hills, went to a park, where they sat on a bench and had some pre-mixed alcoholic drinks the defendant had purchased.

  2. A friend of the complainant, who was 15 years old, was invited to join the pair for drinks and arrived at the park. At about 7.45pm, the defendant and the complainant’s friend went to a bottle shop, and the defendant purchased more alcohol. They returned to the park and continued to drink. After a number of drinks the complainant began to vomit.

  3. Having been seen in the park by the complainant’s carer, the group moved to another park and kept drinking.

  4. The defendant then committed the acts which were reflected by the charge on the Form 1 document before the sentencing court, the offence of indecent assault. He pulled the complainant onto his lap, put his hands under her shirt and bra, squeezed her breasts and rubbed her vagina in a circular motion on the outside of her pants. The complainant said, “Can you stop” and pushed him away. He pulled her back onto his lap a few times.

  5. At about 10.30pm, the complainant telephoned her carer and asked to be collected. She went towards a nearby KFC store to be picked up. Following her, the defendant told her, “If you don’t stop crying I’ll have to kiss you”. The complainant said, “No I don’t want anything to do with you, I love my boyfriend”. He kissed her despite her protests.

  1. The defendant pushed the complainant down onto her back and pulled her pants and underpants down to her knees. She tried unsuccessfully to pull her pants back up. He licked and bit her vagina. She tried to wriggle away from him and asked him to stop. He stopped and the complainant sat up and pulled her pants up. She walked home and called the police.

  2. Police attended the park and found evidence of the encounter, including empty cans, a prepaid Visa card issued to the defendant, a letter addressed to the defendant and a cover sheet of a recorded interview conducted with him. Closed circuit surveillance systems had captured the complainant and the offender together at various locations.

  3. On 1 March 2016, the defendant was arrested and interviewed by police. He claimed to have been drinking alone in the park. He admitted talking to the complainant at Redfern Station, and walking with her at Seven Hills. He denied attending the park with her and drinking with any other girls that night.

The Sentencing Remarks

  1. In sentencing the defendant for these crimes, his Honour Judge Williams SC of the District Court of NSW stated that the offences committed were accurately described by the Crown “as probably the worst case of breach of parole that one can imagine”. His Honour noted that the offence that the defendant pleaded guilty to was one count under s 61l of the Crimes Act, and carried a maximum penalty of 14 years, and a standard non-parole period of 7 years imprisonment. The defendant had entered a guilty plea at the earliest possible opportunity and was entitled to the 25% utilitarian discount.

  2. The sentencing judge traced the defendant’s criminal record beginning in 2006 up until 2016. After being arrested for the index offences on 1 March 2016, the defendant returned to custody and has been in custody since. He served the balance of his parole, which expired on 30 March 2017, before being refused bail and held in custody until the date of sentencing.

  3. The sentencing judge briefly traced the defendant’s personal history. He had seven older half-siblings, and was one of five children to his parents. His father was a fruit picker, but had been injured badly in a traffic accident. The defendant attended the scene and saw a “huge hole in the rear of his father’s skull which shocked him and led him to have intrusive memories of the incident”. His father had a disabling brain injury, and had been in nursing care since that time. The defendant was placed in foster care at the age of four by authorities, and went through a number of placements. He went to a special school, lived in a refuge and never obtained a driver’s licence, impacting on his employability. The judge acknowledged that the defendant had a dysfunctional upbringing, an interrupted education that had left him with significant literacy problems, and that his background had impaired his capacity to engage in employment.

  4. His Honour noted that Dr Nielssen had formed a view that, as of 2015, the defendant had had a depressive illness which was in remission, and that a developmental disability related to both his education and upbringing. He had been treated by a general practitioner with medication for these issues.

  5. The sentencing judge also noted the circumstances of the offending on the previous occasion, and his Honour Judge Delaney’s sentencing judgment. His Honour noted that, despite recommendations from Dr Nielssen that were accepted by his Honour Judge Delaney, the defendant had no treatment or counselling when he was in custody for the best part of 2 years and 10 months.

  6. The sentencing judge took into account the report of Mr Sheehan, psychologist, from 22 May 2017, and was prepared to accept that the defendant had been sexually abused by his father, and emotionally, sexually and physically abused by foster parents. The defendant was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) at 10 years of age, and prescribed dexamphetamine until he was 17. His highest educational achievement was to attempt an Information Technology course at TAFE when he was 17, but he was unable to read the text book and ultimately failed the course. He had held a job at McDonalds at the age of 17 for a few months, but had mainly relied on the Newstart allowance. He had had three tumultuous relationships. There was a significant history of abuse of cannabis and alcohol, commencing in his teenage years, with abuse of methamphetamines from the age of 24, after the death of his son.

  7. Mr Sheehan in his report noted a long history of dysregulation with labile mood, angry outbursts, suicidal ideation including one hanging attempt at aged 16, and self-harming behaviour, leading to a diagnosis of depression, and a prescription of an antidepressant in 2012. Mr Sheehan was not convinced in relation to the defendant having an autistic spectrum disorder. He also noted that the possibility of disordered sexual arousal needed to be considered in relation to the defendant, but that he did not meet the diagnostic criteria for a paedophilic disorder. Mr Sheehan believed that the defendant needed individual treatment to address his own abusive childhood experiences before engaging in group treatment programs. Due to resource limitations, Mr Sheehan believed it would take about two years in custody for the administrative and treatment to be successfully achieved, and the defendant’s future release to parole would require meticulous planning and close attention.

  8. The sentencing judge noted that acceptance of this by counsel for the defendant involved a practical concession that a period of two years in custody is justified by the objective and subjective circumstances for this case. The sentencing judge accepted the submissions made by counsel for the defendant, that taking into account the matters of:

“impulsiveness and relative opportunistic offending by an intoxicated offender without an attempt to disguise his identity, indeed disclosure of his name and tattoos, no threats of violence, no evidence of physical harm, no actions designed to degrade or shame the victim, the sexual offending itself was cunnilingus in relation to the principal count, the duration was limited and he stopped when asked, recognising that the victim was vulnerable in the sense that she was intoxicated as a result of alcohol supplied by the offender and was 16 years of age, and the offending was isolated to that against the complainant was not part of a larger course of conduct, the offending falls below the midrange of objective seriousness for offences of this nature, so that the standard non-parole period should not be applied and should remain a guidepost only. ”

  1. His Honour identified as aggravating factors that the offence was committed while on conditional liberty, with the defendant being on parole for child sexual offences. His Honour noted that the defendant’s criminal history disentitled him to leniency. He stated that

“there is a risk of reoffending but his prospects of rehabilitation are enhanced if he participates in the particular programmes to which I have referred”.

  1. The sentencing judge took into account the mental health diagnoses relevant to the defendant, and his experience in custody, where he was held in protective custody, with threats and actual violence due to the nature of his offending preventing him from accessing treatment and drug programmes. His Honour stated that “his experience in custody will be more onerous than that of the average prisoner”.

  2. His Honour considered that the defendant’s mental conditions should be taken into account, there being a causal nexus between “his experience of child sexual abuse and his offending and provisional diagnoses of post-traumatic stress disorder”. It “reduces the need for general deterrence due to his mental condition and the risk of offending which is apparent and may be mitigated by his apparent desire to engage in treatment programmes’”.

  3. The sentencing judge made a finding of special circumstances due to the more onerous conditions of custody that were likely to apply, questions of totality, and the need for an extended period of supervision to facilitate the defendant’s rehabilitation and reintegration into the community, and moderate any risk of reoffending. A sentence of 4 years and 6 months, commencing on 1 July 2016 and expiring on 31 December 2020 was imposed, with a non-parole period of 2 years and 11 months, expiring on 30 May 2019.

Past Psychiatric Assessments

  1. Reference has already been made to the report of Patrick Sheehan of 23 May 2017, which was before the sentencing court on 21 July 2017.

  2. The defendant was earlier assessed by another forensic psychologist, Ms Chelsea Dewson, who prepared a report dated 13 September 2016 at the request of the defendant’s then solicitors, also for use on sentence relevant to the index offences.

  3. Ms Dewson obtained a history from the defendant only with difficulty; she regarded him as a poor historian with apparent memory deficits and concrete cognitive abilities such that his developmental history was difficult to follow. He gave an account of his family circumstances similar to that given to Mr Sheehan, although he said that he was one of seven children born to his parents, with his father having four daughters to an earlier relationship. The defendant himself has had four children, although two of his children died in infancy.

  4. He described a traumatic upbringing to Ms Dewson, broadly consistent with that described to Mr Sheehan. He said he had been removed from the care of his parents at an early age and placed with a series of foster carers, each of whom he described as “shit”. He had frequently run away from what he described as environments in which he was subjected to emotional, physical, and sexual abuse. He returned to live with his parents in his mid-teens.

  5. The defendant’s education was sporadic, being interrupted by changing residential placements and his own truancy. His friend group mainly consisted of older anti-social individuals, with whom he engaged in substance abuse and crime. Other than one short term paid position, stated to be as a mentor rather than at McDonalds, as asserted to Mr Sheehan; the defendant has never worked, and been reliant upon government benefits.

  6. His father was involved in a serious motor vehicle crash in 2006, sustaining severe head injuries. The defendant saw his father at the scene, prior to any medical intervention. His father was thereafter hospitalised, and later placed in a care facility due to the severity of his permanent injuries. The defendant holds himself responsible for his father’s accident, his father having left the family home following an argument with the defendant, only to be struck by a car.

  7. Two of the defendant’s sons died at an early age, and Ms Dewson regarded the defendant as being largely unable to deal with the associated grief. Neither of the surviving children are in his care.

  8. Although the defendant described his own sexual history in a way consistent with ordinary bounds, Ms Dewson thought it likely that he has “experienced barriers to managing his sexual impulses in the past”.

  9. An extensive polysubstance abuse history was noted, with periods of sobriety only when incarcerated. Ms Dewson concluded that the defendant has “few skills to manage substance abuse in the community”. He associated extreme intoxication with his sexual offending.

  10. Although the defendant reported having been previously diagnosed with ADHD and Asperger’s Syndrome, Ms Dewson noted no clinically significant symptoms during her assessment. She thought that he presented as likely meeting the criteria for a Major Depressive Disorder, and chronic Post Traumatic Stress Disorder (“PTSD”) as a consequence of childhood abuse, witnessing his father’s injuries, and the death of his two sons. Ms Dewson thought that the defendant was probably functioning in the low-average range of intellectual ability.

  11. In terms of risk assessment, Ms Dewson was not able to make a full assessment and she noted some reservations about the opinion she expressed, which was that he presented a moderate – high risk of sexual recidivism, and particularly with respect to “non-consenting sexual intercourse with a post-pubescent female”. Treatment for his sexual offending conduct was required.

  12. A psychiatric report prepared by Dr Olav Nielssen on 17 November 2015 was similarly obtained by lawyers acting for the defendant at a time when he faced sentence for sexual offending.

  13. The history given by the defendant to Dr Nielssen was markedly different to that given to Mr Sheehan and Ms Dewson in 2016. Notably, he said he had no recollection of ever having been the victim of sexual abuse and, although he had been taken into foster care at a young age, he had been well treated. He attributed his cognitive issues to a head injury as a child, rather than to interrupted schooling. He claimed to have successfully completed an IT court at TAFE. He said he began using methamphetamines when his son died, and placed his sexual offending in that context.

  14. Dr Nielssen diagnosed the defendant with a developmental disorder, a substance use disorder, and a depressive illness, in remission. He thought his intelligence was at the bottom of the normal range. The doctor did not think the defendant had any abnormal sexual interest, but placed him at a moderate – high risk of both sexual and non-sexual recidivism. He thought that sexual offender counselling was indicated.

  15. In 2012, Kathryn Wakely prepared a psychological report concerning the defendant, again for use in court sentencing proceedings. The history given to Ms Wakely by the defendant differed again to that given to other professionals, with the defendant asserting that he had been sexually abused as a child by a man who was involved in a relationship with his mother at a point when his parents were “taking a break” in their relationship. He said that he was one of five children to his parents, with a total of fourteen siblings and half-siblings. He reported behavioural issues as a child which led to frequent exclusions from school. His literacy skills were described as “poor”.

  16. The defendant said that he had suffered repeated head trauma as a child, and had significant loss of sight in one eye as a consequence of botched surgery. Otherwise, he said that he had been diagnosed with ADHD and Asperger’s Syndrome. He had been diagnosed with depression.

  17. Ms Wakely assessed the defendant as falling within the Low Average range of intelligence. She noted diagnoses of depression and a Personality Disorder. Those diagnoses had been earlier made by Dr Chaudhary, psychiatrist, in 2011.

CSNSW Reports and Notes

  1. As the defendant approached the end of the NPP of the sentence imposed upon him in 2017, he was assessed for suitability for release to parole. A report of March 2019 noted that the defendant expressed regret for his offending and acknowledged the likely impact on the victim, but was unable or unwilling to offer further insight regarding his attitude towards his offending. He attributed his behaviour to the effect of alcohol but could offer no further thoughts or perceptions towards explaining his conduct.

  2. The defendant did not consider that he experienced unresolved issues in respect to his use of violence or aggression. The defendant acknowledged that he had unresolved issues in respect of his sexual behaviour and needed to engage in appropriate treatment. In relation to his attitude towards the victim, the defendant was “able to postulate some potential impacts his offending may have had on the victim,” and initially stated that he may have “screwed up her life” and thought she may experience trauma, stress and anxiety. He expressed a willingness to undertake therapeutic intervention and consented to a referral to Sex Offender Programmes, but was unwilling to engage in any treatment in relation to dealing with his own “victim issues”. It was noted that “he has yet to have demonstrated a capacity for behaviour change under supervision, including committing the index offence only hours after his previous release to parole”. It was noted that his Protection Limited Association (“PRLA”) status inhibits his involvement in such sex offender programmes.

  3. The defendant had incurred one institutional offence for possessing a drug implement. He was classified as a C2 Minimum Security Inmate. He had not participated in any offence related or other programmes during the custodial term of his sentence. He has not availed himself of educational programmes or services. Since September 2018, he had been employed as a unit sweeper.

  4. Community Corrections did not recommend that a parole order be made for the defendant, instead recommending that he be required to complete sex offender treatment in custody. A supplementary report was prepared on 24 April 2019, which stated that there had been no significant change to his circumstances.

  5. A pre-release report dated 21 January 2020 observed that the defendant had commenced the High Intensity Sex Offender Program (“HISOP”) on 3 September 2019. The treating psychologist reported that the defendant had shown some progression in treatment but was progressing at a slower than expected rate. It was advised that the defendant seemed hesitant to hand in task work and had issues building on trust within the group, which impacted upon his progress.

  6. The defendant was placed on a Behavioural Management Plan in December 2019 after an aggressive interaction with another inmate. He was working on managing anger and impulsivity with the programme psychologist. Despite slow progress, the psychologist advised that the defendant “appears to be motivated to complete treatment”. The defendant claimed to have benefited from treatment and advised he had learnt about “triggers associated with his risk of sexual offending and issues of impulsivity”, particular benefiting from an activity that focused on his life story and identified strengths, risks and patterns. The defendant expressed a wish not to be considered for parole at that stage, until he completed the HISOP, and release was not in fact recommended. On 24 April 2019, a supplementary report stated that since the preparation of the earlier report on 6 March 2019, there had been no significant changes to the defendant’s circumstances.

  7. He was ultimately released to parole on 23 October 2020.

Risk Assessment Report

  1. On 10 February 2020, Tara Rouse, Acting Senior Psychologist of the Serious Offenders Assessment Unit prepared a Risk Assessment Report (“RAR”) in relation to the defendant. The report was prepared at the request of The Commissioner, Corrective Services New South Wales (“CSNSW”) and in anticipation of an application under the Act (which requires a risk assessment report). The recommendations expressed by Ms Rouse are supported by Cherice Cieplucha, chief psychologist of the Risk Management Programs.

  2. Ms Rouse conducted an interview via the “Videolink” system on 11 February 2020, for approximately 95 minutes. She was also provided with relevant documentary material for the purpose of the report.

  3. At the time of the interview, the defendant was 30 years old. Ms Rouse noted that several elements of the defendant’s presentation were unable to be assessed due to the “Videolink” format of the interview, including his height, issues with hygiene or malodour, and other body language. She stated that he appeared “somewhat immature for his stated years”. His mood appeared “stable, euthymic and variable, with appropriate negative reactions when discussing the loss of his mother and son as well as his childhood”. He was polite and compliant.

  4. Ms Rouse traced the defendant’s psychosocial history as evidenced in documentary material, noting that it demonstrated “a convoluted and disturbed upbringing”. She briefly summarised the report of Mr Ardasinski dated 28 November 2016: the defendant was one of five children, born to his parents’ union, with a number of other half siblings. At the age of four, he was placed into foster care with two of his siblings, being removed from his family after his mother suffered a “mental breakdown”. According to file material, he was sexually abused as a child and had experienced childhood neglect and other forms of abuse within foster care settings. He did poorly at school and was medicated for attentional deficits, and placed into behavioural schools for years 7-10. The defendant started using alcohol and cannabis in his teens and more recently started using the amphetamine “ice” after one of his children died. He has fathered four children to three different women, two of whom are deceased, and all of whom were removed from their parents and placed into foster care. He has never gained employment and has a history of homelessness.

  1. Ms Rouse also referred to Mr Sheehan’s report of the defendant dated 23 May 2017, in which the defendant denied memory of the abuse or neglect he suffered within his family of origin, with no memory prior to being placed into foster care. He reported suffering further abuse and neglect during his foster care placements. Mr Sheehan noted that the defendant “shut down emotionally” when other psychologists broached the subject of his own sexual abuse as a child during interviews. To Ms Rouse, the defendant referred to two periods of sexual abuse that he experienced as a child, although “he did not go into detail which was context appropriate”. Ms Rouse believed that the defendant’s openly noting his own abuse in treatment and their interview can be viewed as “progress”.

  2. Ms Rouse traced the defendant’s psychiatric history, relying on the psychiatric opinions provided to her; which noted that the defendant has a history and diagnosis of depression. To Ms Rouse, the defendant reported being compliant with medical treatment for depression. He stated that he suffers from depression and related his experience of symptoms to both his past trauma and substance use. Ms Rouse noted that he had previously reported some deliberate self-harm during his teenage years, but denied ever being admitted to a psychiatric hospital. The defendant told Ms Rouse that he had periods of “low mood and suicidal ideation” which Ms Rouse noted was consistent with previous reports. Mr Sheehan, in 2017, did not support the view that the defendant met the diagnostic criteria for a Paedophilic Disorder, but opined that he would meet the criteria for several substance use related disorders.

  3. The defendant reported that he was diagnosed with Asperger’s Syndrome, PTSD, and depression at age 24. Ms Rouse noted that, as described in previous reports, “the Asperger’s diagnoses may be better explained as him experiencing ADHD and not an Autism Spectrum Disorder”. Ms Rouse believed that the defendant displayed symptoms of ADHD, PTSD and a “complex grief reaction” and “it would be worthwhile for Mr Alliband to explore these in adjunct to a personality disorder diagnosis in the future”.

  4. Ms Rouse noted that previous reports cited a long standing issue with drug and alcohol abuse for the defendant, he having previously been diagnosed with a Substance Use Disorder by Dr Nielssen in 2015, and with Mr Ardasinski stating that alcohol, cannabis and methamphetamine (or “ice”) were problematic for the defendant in 2016. The defendant reported that the death of his son was a trigger for his increased substance use. Ms Rouse noted that, however, the defendant had had issues with drugs throughout his life, and that he had recounted to numerous sources that he was heavily intoxicated on the night of the index offence

  5. In relation to his prior community supervision, Ms Rouse described his response to community supervision as “poor”, noting that the defendant has not fulfilled the requirements of his orders pertaining to attending programmes, addressing his mental health and substance abuse, and maintaining contact with community corrections.

  6. In relation to the index offences, the defendant denied experiencing thoughts of a sexual nature when observing the victim on the train on the day of his release. In previous psychological interviews, the defendant’s comments regarding the index offence indicated he had poor memory due to his level of intoxication, and demonstrated confusion pertaining to decisions he made. To Ms Rouse, he admitted being motivated to purchase alcohol shortly after his release from prison. Ms Rouse stated that the defendant took responsibility for his sexual offending. She stated that, however, he demonstrated “limited insight into internal factors that contributed to it” and:

“He made weak links between his own abusive upbringing and his current sexual offending and agreed that this should be explored further in HISOP treatment. He continued to assert that the main contributing factors to his offending are substance use (including alcohol) and impulsivity. He recalled that he felt bad when the current victim displayed distress, however, it is noted in the facts that he persisted with the sexual offending after this point. With reference to his sentence, he felt that he had been dealt with fairly by the NSW Justice system”.

  1. It was noted that, during his most recent custodial term, the defendant has incurred only one offence, for Possess Drug Implement on 28 March 2018. During his previous period of incarceration, he received only one internal charge for Disobey Direction in 2015. The defendant commenced the HISOP on 3 September 2019, and at the time of the consultation with Ms Rouse, was continuing treatment, expected to be completed in August 2020. He did not receive treatment for sexual offending behaviour during his prior sentence.

  2. According to the HISOP treatment notes, the defendant progressed at a slow rate, most likely hindered by his poor ability to build trust in others. He was involved in an aggressive interaction with another inmate participating in HISOP in December 2019, which resulted in him being placed on a Behaviour Management Plan. According to Ms Baron in June 2020, the defendant has moderated his behaviour accordingly since being placed on the plan, and is motivated to complete treatment. The defendant was previously found eligible and suitable to participate in the EQUIPS programme, aimed at addressing criminogenic needs. He was, however, reluctant to change his protection status in order to attend. Ms Rouse encouraged the defendant to participate in an addictions treatment programme, such as EQUIPS Addiction, in the future.

  3. Various risk assessments were administered to the defendant in custody. An assessment was last undertaken in 2018 by Community Corrections Staff using the LSI-R, an actuarial risk instrument that provides an indication of a level of risk of general and violent recidivism within 12 months post-release, and of an individual’s needs in terms of supervision in custody, if released on parole, and their criminogenic needs. This assessment saw the defendant’s risk/needs as falling within the “Medium/High risk category for general and violent offending”.

  4. The STATIC Risk Factors actuarial risk assessment instrument (“STATIC-99R”) that positions offenders in terms of their relative degree of risk for sexual recidivism and produces estimates of future risk, was administered by K Murphy on 5 March 2019 for the defendant. The results of this revealed a score of “7”. For the purpose of this report, Ms Route noted that “as this assessment remains valid, another STATIC-99R was not administered”. The score of 7 was described as “Well Above Average Risk” or “level IVb”. Ms Rouse noted that the authors of the STATIC-99R have indicated that Level IV offenders “would be perceptibly higher risk than the typical offender”. The rates of sexual recidivism for sexual offenders within the ‘routine’ normative samples who scored the same as the defendant were between 24% and 30.7% over five years. Another normative sample saw individuals who had the same total score as the defendant reoffending at a rate of between 25.1% and 37% over five years. The rate of recidivism for individuals with a score of 7 is estimated to be about five times higher than the ‘typical’ sex offender. Mr Ardanski also administered the STATIC-99R to the defendant in 2016, placing him in the “Well Above Average or Level IVb range, with a total score of 8”. The limitations of this instrument were also noted.

  5. Assessment of dynamic risk factors, by administration of the “STABLE-2007” tool, returned a score of “10”, which is suggestive of “a Moderate density of criminogenic needs relative to other male sexual offenders”. Ms Rouse noted that this assessment is consistent with results of previous STABLE-2007 results, where the defendant received a score of 11 in 2016. The risk areas that were identified to be relevant to the defendant included “Significant Social Influences, Capacity for Relationship Stability, Lack of Concern for Others, Emotional Identification with Children (Teenagers), General Social Rejection, Impulsivity, Poor Problem Solving Skills, Sexual Pre-occupation, Deviant Sexual Preference and Cooperation with Supervision”.

  6. Combining the score results from both the STABLE-2007 and STATIC-99R tools, an ‘overall risk level’ can be generated. The defendant yields a “well Above Average or Level IVb risk rating.” Ms Rouse noted that this suggests that the defendant “would require a high level of supervision upon his eventual release, and a high level of intervention to address his outstanding criminogenic needs”.

  7. Ms Rouse assessed a number of risk factors as relevant when considering the defendant’s risk of reoffending, including significant social influences. The defendant reported several family members with whom he had reconnected who could provide support and a friend he wants to reside with. Ms Rouse noted that, although the defendant’s support appears positive, he has not accessed these supports during periods in the community previously. She also stated that:

“notably, Mr Alliband seems to seek the external constraints of having others manage his risk and ensuring he adheres to his routine and restrictions, rather than display a confidence that he can implement this compliance himself”.

  1. Ms Rouse also noted that, as observed in prior assessments, intimacy deficits and identification with young adults were a risk factor for the defendant. In his 2017 report, Mr Ardasinski noted the defendant’s history of problematic intimate relationships; stating that the defendant has a recorded history of domestic violence, drug use and homelessness within the context of his relationships, and that he had suggested he does not feel like an adult “inside.” Ms Rouse pointed to the defendant’s presentation during her interview with him, where he appeared to be immature and naïve. Coupled with the evidence surrounding the index offence, where the defendant typed into the victim’s phone “’Do you like me”, Ms Rouse stated that this could lend “further support to the notion that he may feel more comfortable in relationships with, or at least communicating with, teenagers”. Ms Rouse also opined that this risk factor is compounded by the defendant’s tendency to experience loneliness even when in relationships or surrounded by others. He reported feeling lonely most of his life, where his feelings escalated after his son died and his romantic relationship broke down.

  2. Impulsivity and problem solving deficits were identified as another risk factor for the defendant. Ms Rouse noted that the defendant appeared to struggle with making long term plans and displayed a history of impulsive behaviour; pointing to an incident where he impulsively threw a mug at another participant in treatment whom he believed was not behaving correctly. The defendant himself had noted that impulsivity is one of his biggest risk factors, and he is currently addressing this in treatment. Ms Rouse noted that, although the defendant seeks stability through employment and housing, he has made little effort to obtain them.

  3. Ms Rouse opined that there was possibly sexual deviance and sexual pre-occupation in the defendant’s victim choice, but clarified that “this may be best explained by him choosing vulnerable and more easily coerced victims whom are teenagers, rather than an attraction to young females”. She believed further treatment work should establish this difference. To Ms Rouse, the defendant denied having relationships with other teenagers. There was reference in the documentation provided to Ms Rouse to the defendant having had a 13 year old girlfriend and other girlfriends under 18 when with his former partner. She believed that, coupled with the defendant’s repeated denial of sexual thoughts and claims of minimal masturbation, it is possible that the defendant “cycles between recurrent and pre-occupying sexual thoughts with deliberate attempts to suppress them”. She noted that the latter “is a tentative hypothesis”.

  4. Ms Rouse also opined that another risk factor for the defendant is cooperation with supervision. She stated that his participation in treatment and compliance with the HISOP program indicated that he is willing to follow directions of authority; however “his marked history concerning compliance when previously under supervision in the community suggests that upon release, he may become easily distracted and divert from the recommendations of his supervising officer”.

  5. Previous assessment highlighted other additional dynamic factors for the defendant as escalation of sexual violence, psychological coercion in sexual violence, and problems resulting from child abuse.

  6. Ms Rouse concluded that the defendant’s childhood experiences created an environment “where he was unable to either form secure attachments to his caregivers or develop appropriate boundaries, a positive self-identity or adequate affective regulation”. Ms Rouse stated that, coupled with substance abuse, impulsivity and a “rudderless” lifestyle, “a trajectory was set culminating in the current offending behaviour”. The defendant continues to struggle with impulsivity and substance use, and displays a history of problematic sexual boundaries coupled with impulsive hedonistic behaviour. Ms Rouse noted that there is “no clear evidence of a paraphilia”. She believed that his current treatment needs could not be determined until completion of HISOP and further assessments post-treatment.

  7. Ms Rouse opined that the most likely risk scenario for the defendant would involve the consumption of substances and access to vulnerable female teenagers, whom he may befriend and “ingratiate himself, projecting himself as a trust worthy, strong and protective person”. Substance use would act as a “disinhibitor” to crossing sexual boundaries. Ms Rouse noted that family contact is limited; with two aunties and one cousin that the defendant felt supported by. The defendant claimed to have a friend he plans to reside with post release. Ms Rouse could not establish the ability or willingness of these people to provide adequate support from the materials provided.

  8. In summary, Ms Rouse concluded that the defendant falls in the Well Above Average risk category of sexual reoffending. His history of serious sexual offending, the very brief time in the community prior to committing the index offence, and the presence of multiple dynamic risk factors “suggest he will require ongoing management and supervision to mitigate his risk”.

  9. Ms Rouse suggested that the defendant could engage in intervention to address his substance abuse issues, and may benefit from participating in the Real Understanding of Self Help (“RUSH”) programme if available to him. She believed that the strict monitoring, intensive supervision and case management of an ESO would be of benefit to the defendant “given the structure an ESO provides”. She concluded that “continued support and intervention in navigating interpersonal relationships, emotion regulation and problem solving would be critical in preventing relapse to his offending cycle”. Ms Rouse concluded that an additional period of supervision would allow the defendant “an opportunity to develop comprehensive plans to manage his risk and for supported integration into the community”.

Risk Management Report

  1. On 6 March 2020, Alexandra Crichton, a Community Corrections officer within the Extended Supervision Order Team, prepared a Risk Management Report (“RMR”) in accordance with s 9(3)(d1) and 17(4)(d1) of the Act. Ms Crichton’s report was endorsed by Kelli Grabham, High Risk Offender Applications and Operational Governance Officer, within the Extended Supervision Order Team on the same date.

  2. Ms Crichton interviewed the defendant; contacted his FACS caseworker and his proposed co-resident and friend; and reviewed CSNSW records and other relevant documentary material, including the RAR prepared by Ms Rouse on 10 February 2020.

  3. Ms Crichton traced the defendant’s prior management by Community Corrections, stating that the defendant’s previous response to supervision by Community Corrections had been “poor” and characterised by “little progression or engagement”. The defendant first had contact with Community Corrections in 2008, and was directed to engage in an anger management programme which he was withdrawn from due to unreliability. He was also subject to a Community Service Order at this time, which he breached due to failure to attend. In 2011, he was determined to be “unsuitable” for an Intensive Correction Order by Community Corrections due to “unresolved mental health issues, ongoing self-harm behaviour, failure to begin drug and alcohol intervention and lack of motivation and or ability to comply”. Shortly after, he was arrested for other offences.

  4. Ms Crichton noted that the defendant had expressed an intention not to apply for parole until he had completed the CUBIT programme, and that he believed it had been beneficial for him thus far. The suitability of his accommodation post-release was still to be assessed at the time of the RAR report; however, Ms Crichton noted that the defendant had agreed to apply to the CSNSW Nunyara Community Offender Support Program and CSNSW Integrated Support Centre if deemed unsuitable. She stated that the defendant hoped to visit his father upon release, who resides in a nursing home. The defendant is one of 15 siblings, but has no reported contact with his siblings who were all put into foster care as children to the best of his knowledge.

  5. Ms Crichton stated that the defendant’s main motivators for avoiding reoffending were his two young daughters, who are currently in foster care. Upon release from custody, the defendant will be permitted to attend six supervised visits per year with his youngest daughter and four supervised visits per year with his eldest daughter; Ms Crichton stated that “this may assist toward his stability whilst under supervision”. Ms Crichton also noted that, as the defendant has never been employed for longer than two months in the community, that despite his willingness to engage in employment, “due to his low level of intellectual functioning and failure to do so in the past this might prove difficult for him to achieve”. The defendant appeared open to the idea of seeing a community based psychologist under the mental health care plan, and is willing to engage with Forensic Psychology Services (“FPS”) upon release, if appropriate.

  6. Ms Crichton noted that an assessment undertaken using the LSI-R on 5 February 2018 found the defendant to fall in the medium to high risk level for general reoffending, and a psychological risk assessment undertaken by Ms Rouse on 10 February 2020 assessed the defendant to fall in the Well Above Average risk category of sexual offending. Ms Crichton referred to the risk factors identified in Ms Rouse’s RAR, noting that these factors and the information contained in the RAR formed the basis of the risk management plan.

  7. Ms Crichton concluded that, in relation to the identified risks, management strategies to manage risks would include weekly face-to-face interviews; conducted with the defendant at his approved residence, at a Community Corrections Office or at another location in the community; assisting to monitor his mental health and ensuring abstinence from substance use; and focusing on the development of a case plan that assists to address and manage the defendant’s risk factors. Practical Guide for Intervention (“PGI”) exercises would be utilised to assist in working on interpersonal relationships, impulsivity, managing his environment and cravings, and achieving goals. The interviews would also be used as a tool to monitor and encourage engagement with supervision and services. Due to his previously poor engagement, Ms Crichton noted that CSNSW’s ability to employ this management strategy may be limited.

  1. Scheduled and unscheduled home visits, field visits and surveillance by Community Corrections and the Extended Supervision Order Investigation Team (“ESOIT”) would be conducted at a minimum monthly, to assist in monitoring victim access, friendships and intimate relationships, and ensuring the defendant is engaging in prosocial activities. The utility of this management strategy is dependent on the suitability of his residence and co-resident, and Ms Crichton noted that this would need to be assessed closer to his release date.

  2. Weekly contact would be maintained with third parties, such as FPS, ESOIT, the Corrections Intelligence Group (“CIG”) in relation to his risk management. Other third party contacts would include the defendant’s co-resident, FACS, family and friends, to monitor and ensure his relationships are pro-social in nature. Ms Crichton noted that if the defendant were to begin an intimate relationship, full disclosure of his criminal history would need to occur to monitor stability, progress, victim access issues, and any risk factors that arise. If the defendant is subject to electronic monitoring, regular contact would occur with the Electronic and External Monitoring Group (“EEMG”) to monitor his movements and ensure he adheres to the approved schedule. This strategy is reliant on the defendant’s consent to contact third parties for the purpose of verifying information, and on the defendant being transparent with Community Corrections. If he were to disengage, the ability to monitor him would by hindered.

  3. Electronic monitoring, schedules of activities, and curfews would also provide tools by which to monitor the defendant’s activities and movements. This would allow certain areas to be identified as high risk “exclusion zones” and send alerts to Community Corrections in the event that the defendant entered them. The ability to impose a curfew would assist in mitigating the defendant’s ability to offend, given the nature and timing of his prior offences. There are limitations to the efficacy of such measures: they would not prevent any high risk situations or offending behaviours occurring when the defendant is engaging in an approved activity, travelling somewhere or at his approved residence.

  4. Ms Crichton proposes continued referral to CSNSW psychological services to address the defendant’s sexual offending, identify and manage scenarios involving heighten risk, and confirm his level of engagement, progress and any concerns that have arisen which Community Corrections can then aid in addressing. The efficacy of this strategy is limited by the voluntary nature of it, and dependent on the defendant’s level of engagement and transparency with his therapist.

  5. Ms Crichton also recommends referral of the defendant to psychological services to address his mental health issues, and grief and loss associated with the deaths of two of his four children. He would be required to follow a medication regime prescribed by his treating medical practitioners. Ms Crichton again noted that the effectiveness of psychological treatment is contingent upon the defendant’s level of engagement and transparency with the psychologist.

  6. Referring the defendant to alcohol and drug services to address the risk of relapse was also a suggested management strategy. The limitations of this include the reliance upon the defendant engaging properly, and the risk of relapse if he was to associate with other drug or alcohol users. Subjecting the defendant to random and targeted drug and alcohol testing to ensure abstinence from alcohol and illicit substance use was also recommended by Ms Crichton. There are limitations to the efficacy of such measures, including if the defendant refuses to provide samples for analysis, in which case Community Corrections would be unable to carry out testing.

  7. Restrictions could also be placed on the defendant’s contact with children, such as requiring him to be with a “responsible adult present, as approved by his supervising officer” when having contact with any person under the age of 18. This will be coupled with observations, home visits and third party and CIG checks to monitor compliance with this obligation. However, supervisors are not always able to observe the defendant in order to mitigate this risk, and the defendant may also have contact with a child when engaging in approved activities and fail to disclose this to his supervising officer.

  8. Prohibiting the defendant from entering places that are identified as high risk and requiring individuals who wish to have contact with the defendant to undergo CIG checks could also assist in managing relationships and social influences. This strategy could be used alongside others such as electronic monitoring, the use of exclusion zones, third party checks and home visits to ensure compliance with restrictions, identify risks and monitor his behaviour. This is dependent on the court imposing electronic monitoring as a condition of the ESO.

  9. The risk management report would be regularly reviewed.

Determination

  1. As earlier noted, no issue was taken by the defendant that the evidence supported the making of an ISO, on the basis that there was jurisdiction to do so. That was a concession sensibly and properly made and I am satisfied to a high degree of probability that, if the matters alleged in the supporting documentation are proved, the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision.

  2. Being also satisfied that the Court had jurisdiction to make an ISO, I concluded on the day of hearing that it was thus appropriate to make such an order, and an ISO was imposed.

  3. There was a dispute about the necessity of imposing all of the conditions which the State sought to have imposed upon the defendant, and not all of the proposed conditions were in fact made. By reference to the condition numbers of the Schedule of Conditions the State sought to have imposed, dispute focused on:

Conditions 5, 17, 21, 30, 33 – 43, 45, 46, 57.

  1. Of those, the Court imposed the following conditions for these reasons.

  2. Condition 5, although with an alternative form of words, to ensure that the defendant receives any assistance he needs in preparing a schedule of movements, there being clear evidence that he is likely to need such assistance.

  3. Condition 17, since the condition does not prevent the defendant from attending places connected with entertainment of a sexual nature, it simply requires him to obtain the approval of his supervisor prior to doing so. Having regard to the defendant’s history of committing serious sexual crimes, and the need to manage the risk that similar offences could be committed in the future, this is a reasonably measure to protect the community.

  4. Condition 21, since this provides a mechanism by which any supervising officer could detect troubling financial activity, such as unexplained spending possibly linked to the acquisition of drugs or alcohol, where access to substances is a risk factor.

  5. Condition 30, which was imposed for the same reasons as condition 17.

  6. Condition 41 was imposed, although in an amended form as proposed by the defendant. Some capacity for the supervising officer to inspect the defendant’s use of and access to the internet is necessary, for the purpose of ensuring compliance with restrictions on his access to classified or restricted sexual material.

  7. Condition 42 was imposed because it promotes the ability of the supervising officer to monitor the applicant’s use of electronic devices to ensure such use is not inconsistent with compliance with the order.

  8. Condition 44 was imposed as a necessary measure to allow for the applicant’s proper supervision, and to ensure his compliance with the order.

  9. Condition 45 was imposed as a necessary corollary to condition 44.

  10. Condition 46 seeks to regulate the defendant’s access to restricted sexual material, but was imposed in the more directly targeted terms suggested by the defendant.

  11. The Court declined to impose the balance of the disputed conditions.

  12. Those conditions that the Court declined to impose were unnecessary in the defendant’s particular circumstances, and bearing in mind the short period of interim supervision prior to final hearing; or were unnecessary having regard to other conditions that were imposed, which provided adequate power to the supervising officers to appropriately monitor the defendant’s behaviour.

  13. The order was directed to commence from the day following the hearing.

  14. For these reasons, the Court made the following orders on 23 October 2020:

Appointment of experts

  1. An order pursuant to s. 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):

  1. Appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and/or psychological examinations (as the case may be) of the defendant, and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court; and

  2. Directing the defendant to attend those examinations.

Interim relief

  1. An order:

  1. Pursuant to s. 10A of the Act that the defendant be subject to an interim supervision order ("the interim supervision order") from 24 October 2020.

  2. Pursuant to s. 10C of the Act that the interim supervision order be for a period of 28 days.

  3. Pursuant to s. 11 of the Act directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to these Orders.

  1. The report of Dr Samuels is to be furnished to the Court by 24 November 2020

  2. The report of Dr Pullman is to be furnished to the Court by 27 November 2020.

  3. The plaintiff is to file and serve any evidence upon which it relies by 13 November 2020.

  4. The plaintiff is to serve written submissions by 30 November 2020.

  5. The defendant is to serve written submissions and evidence by 4 December 2020.

  6. By no later than 5pm on 4 December 2020, the Plaintiff is to provide to the chambers of the judge allocated to preside at the final hearing a working copy of each document relied upon by the parties for the purposes of the final hearing, including any aides memoire of the parties and any statement of agreed facts (or similar).

  7. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

  8. Liberty to apply to relist the matter on two working days' notice.

Hearing

  1. The matter is listed for final hearing of the application on 8 December 2020.

**********

Decision last updated: 10 November 2020

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

1

State of New South Wales v Alliband (Final) [2021] NSWSC 29