State of New South Wales v Ambrym (Preliminary)

[2020] NSWSC 298

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Ambrym (Preliminary) [2020] NSWSC 298
Hearing dates:	26 March 2020
Decision date:	30 March 2020
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Two experts appointed to provide reports and interim supervision order for 28 days made
Catchwords:	HIGH RISK OFFENDER – serious sex offender – application for interim supervision order – conditions – electronic monitoring – access to financial information – access to internet, electronic devices and communications – access to healthcare information – condition abrogating privilege against self-incrimination is permissible
Legislation Cited:	Crimes Act 1990 (NSW), s 112 Crimes (High Risk Offenders) Act 2006 (NSW), ss 7(4), 10A, 11, 12
Cases Cited:	New South Wales v Baldwin [2019] NSWSC 1882
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Colin James Ambrym (Defendant)
Representation:	Counsel: Ms C Melis (Plaintiff) Mr E Anderson (Defendant)   Solicitors: Crown Solicitors Legal Aid NSW
File Number(s):	2020/60731

Judgment

1. HIS HONOUR: The State of New South Wales filed a summons on 25 February 2020 whereby it sought an extended supervision order (ESO) in respect of Mr Colin Ambrym under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. The State seeks orders pursuant to s 7(4) of the Act for two experts to examine Mr Ambrym and provide reports. It seeks an order pursuant to ss 10A and 11 for an interim supervision order (ISO) applying to Mr Ambrym. It also seeks an order restricting (but not necessarily preventing) access to the court’s file.

3. Mr Ambrym does not oppose the making of these orders but has raised various issues as to the appropriateness of some of the conditions of the ISO.

4. Although there is that concession by Mr Ambrym, it is a matter for the court to be satisfied that all of the statutory preconditions have been met before orders are made. The very helpful submissions of counsel for the State set out the relevant legislative provisions, construed the way they have been by various authorities of the Court of Appeal and this Court. They also provide an analysis of the evidence that is before the court and submissions as to how that evidence satisfies all of the legislative requirements. Having looked at the evidence myself and considered the uncontested submissions of the State, I am satisfied that the orders sought by the State should be made.

Factual background   

5. Mr Ambrym is aged 35.

6. On 21 June 2014, while he was on bail for the charge of affray he committed the index offence; aggravated break and enter and commit serious indicatable offence (s 112 of the Crimes Act 1990 (NSW)). The serious indictable offence was aggravated sexual assault. The circumstance of aggravation was deprivation of the victim’s liberty.

7. The facts were that the victim, who was 15 years old, was at home alone. Mr Ambrym entered through a closed but unlocked back door. Upon seeing the victim, he put his hand over her mouth to stop her making any noise. He said he would not rape or harm her but that he was going to tie her up. He escorted her to a bathroom area where she took off her jacket, top and jeans. Mr Ambrym placed his hand inside the victim’s underwear and inserted his finger in her vagina. At this time, the victim’s father arrived home, causing Mr Ambrym to flee.

8. Mr Ambrym was sentenced to 5 years 6 months imprisonment to commence on 3 October 2014, expiring 2 April 2020. The non-parole period ended on 2 April 2018.

9. On 1 February 2018, the State Parole Authority (SPA) determined that Mr Ambrym be released to parole on 2 April 2018. He was released on that date and was placed on the Child Protection Register.

10. On 6 December 2018, Community Corrections recommended that parole be revoked following notification by the police of an act of indecency by Mr Ambrym on public transport on 16 November 2018. The SPA revoked parole. The act of indecency involved Mr Ambrym boarding a bus and masturbating in the presence of a 16-year-old girl. Mr Ambrym approached the victim while masturbating and attempted to engage her in conversation.

11. On 4 February 2019, Mr Ambrym was convicted of committing an act of indecency and stalking/intimidating in relation to this conduct. He was sentenced to 10 months’ imprisonment commencing 17 December 2018 with a non-parole period of 7 months. A statutory parole order required release on parole on 16 July 2019.

12. On 20 May 2019, Mr Ambrym signed a letter stating that he did not wish to be considered for release under "manifest injustice" (whatever that is a reference to) on the basis that he would like to return to Albury upon his release. On 19 August 2019, he signed a further letter stating that he still did not wish to be released but would remain in custody until April 2020.

13. In addition to the foregoing, Mr Ambrym has been convicted of a number of offences of violence. These include:

Common assault (committed 17 August 2001; received a bond for 6 months).

Assault occasioning actual bodily harm (committed 8 January 2004; received a bond for 12 months with supervision plus a $200 fine).

Assault occasioning actual bodily harm and assault (committed 16 January 2011; received a suspended sentence bond for 12 months).

Affray (committed 15 December 2013; sentenced to imprisonment for 12 months with a non-parole period of 6 months commencing 3 July 2014).

Risk Assessment

14. A Risk Assessment Report by Ms Rochelle Pateman, Acting Senior Psychologist, Serious Offenders Assessment Unit, dated 15 November 2019, contains a detailed assessment of factors relevant to the risk alleged which prompts the State to bring the application. It is summarised as follows:

“Mr Colin Ambrym was convicted for a 2014 serious sex offence against a 15-year old female victim occurring whilst he was subject to conditional bail for a charge of ‘Affray’. In 2018 Mr Ambrym was then convicted of a second sex offence against a 16 year old female victim whilst on parole for his aforementioned sex offence. Mr Ambrym completed his sentence on 16/10/2019 and is now serving his initial balance of sentence after declining release to parole again.

Mr Ambrym is an Aboriginal male with a long history of chronic alcohol abuse who provides conflicting accounts as to the extent of his methamphetamine abuse. He has been previously convicted of both violent offences (including domestic violence) and driving offences but served his first custodial sentence for his 2014 sex offence.

Mr Ambrym has currently been assessed as posing a ‘well above average risk’ of future sexual offending. He has also been assessed as posing a Moderate-High risk of future general offending.

Mr Ambrym consented to a referral to sex offender programs on 14/12/2015 and was subsequently assessed as suitable for HISOP (formerly CUBIT program). He was granted parole on 02/04/2018 prior to being allocated a place in the treatment program. Mr Ambrym was referred to Forensic Psychology Services (FPS) in the community and attended three of six scheduled sessions. Following his return to custody Mr Ambrym refused to consent to another sex offender program referral on 06/06/2019 citing that he had received treatment with FPS. Mr Ambrym is yet to participate in any appropriate custody-based treatment program for his sexual offending and his current sentence expires on 02/04/2020. …

If he were to be subject to an Extended Supervision Order, the mitigation of future risk may be enhanced by ongoing community supervision and substance abuse intervention, as well as participation in community-based programs and/or individual risk management sessions with Sex Offender Programs. This would require consideration as to whether his risks of serious sexual offending can be adequately managed in community settings with intensive supervision.”

15. Ms Pateman described Mr Ambrym’s risk scenarios in the following terms:

“Mr Ambrym’s most likely scenario for further sexual offending would involve him being under the influence of alcohol and methamphetamines and opportunistically sexually offending against a stranger teenage female who is alone. It is likely that this will occur in the context of emotion dysregulation, relationship difficulties and overwhelming stress (e.g. financial difficulties, high service engagement requirements and pressure from supervising bodies). Mr Ambrym may experience a sense of hopelessness, isolation and rejection, precipitating alcohol use to cope with negative emotionality and attempts to re-establish a connection with antisocial peers in an effort to belong. It is anticipated that Mr Ambrym’s issues may be further exacerbated by his relapse into alcohol use and potentially aggressive behaviour, leading to increasing alcohol consumption to cope. When under the influence, it is likely that Mr Ambrym may impulsively use methamphetamines upon being offered it by peers.”

16. Ms Pateman said the extended supervision order may or may not include the following features:

a.   Mr Ambrym could be re-referred to the community-based Sex Offender program, provided by Forensic Psychology Services, Surry Hills. He may be provided with individual risk management intervention to focus on his specific risk factors for sexual offending.

b.   Mr Ambrym could participate either in the EQUIPS Addiction program as provided by CSNSW, or alternatively, be referred to a local drug and alcohol service to engage in substance related intervention.

c.   Mr Ambrym’s social contacts would be scrutinised, with the aim of increasing pro-social influences, and any relationships or associations could be monitored to ensure that Mr Ambrym is not using alcohol or illicit drugs.

d.   Mr Ambrym may be subject to unannounced home visits and breath-analysis/urinalysis/drug-swab testing.

e.   He may be obliged to wear electronic monitoring equipment and to provide a schedule of his daily activities. This may assist in improving his decision-making skills, which would be relevant to his risk, considering his impulsive personality traits.”

17. At the conclusion of her report, Ms Pateman noted that if no order were to be made, Mr Ambrym would be at unconditional liberty when released on 2 April 2020 and would not be eligible for further support from Corrective Services NSW. She said that whether this would be considered “unacceptable” was a matter for the court.

Conditions of an ISO

18. I turn to the conditions that are proposed by the State to which objection was taken by Mr Ambrym.

Electronic monitoring

19. It was submitted by counsel for Mr Ambrym that the regime of conditions proposed by the State and largely acceded to by Mr Ambrym imposed very high degrees of restriction and regimentation on his movements, associations and conduct. It was submitted that little, if any, additional risk minimisation is likely to flow from the imposition of an electronic monitoring condition.

20. It was submitted that this was particularly so when one had regard to the circumstances of Mr Ambrym’s previous sexual offending. They were committed spontaneously, opportunistically and while under the influence of methylamphetamine. Electronic monitoring, if it had been in place at the time, would not have prevented the offences occurring. The most likely risk scenario described by Ms Pateman involved opportunistic offending of a similar kind.

21. Counsel for the State referred to the objects of the Act set out in s 3; the primary object is to ensure the safety and protection of the community.

22. It was submitted that before Mr Ambrym returned to custody following the commission of an offence while on parole, his lifestyle was characterised by a considerable degree of instability. For example, in Ms Pateman's report it is said that Mr Ambrym “appeared to destabilise after a few months and isolated himself from his newly established support network”. Concerns were raised by Community Corrections and other stakeholders that he may have relapsed into substance abuse because of his increasingly erratic behaviour. [1] The report also described a “steady decline” prior to parole being revoked after Mr Ambrym had ceased contact with Forensic Psychology Services, AOD counselling and his Indigenous support network. [2] Prior to that, his engagement with services was described as inconsistent and he had failed to attend multiple appointments.

    1. Risk Assessment Report (RAR) at [21]

    2. RAR at [36]

23. In the Risk Management Report (RMR) it was said that electronic monitoring would assist in monitoring attendance at locations which were relevant to his known risk factors. Locations such as licensed premises, places known for substance abuse, or residences of identified negative peers/family members would be relevant. It was submitted that this would reduce the chance of Mr Ambrym being in a position where he may engage in opportunistic offending. He would be required to submit a weekly schedule of movements, and there is no objection to that condition. It was important, according to the submissions of the State, for any deviation to be detected instantaneously and intervention activated promptly. It was submitted that the provision of a schedule of movements without monitoring would mean that the supervising officer would be significantly reliant upon Mr Ambrym as to whether he had complied with his obligations in relation to his movements.

24. In my view the provision of electronic monitoring is warranted at this stage. Mr Ambrym will be released into the community on 2 April 2020 without any recently demonstrated stability. A facility to monitor his compliance with the various requirements of his supervision would be important. In this regard, I am mindful that Mr Ambrym has been supervised on various occasions in the past and his response has varied and has sometimes been quite poor. It should be borne in mind that at this stage, the Court is only concerned with making an order that will be in force for a maximum of 90 days. Some different considerations apply when a court is being asked to make an order that, as in this case, could be in force for as long as five years.

Financial affairs

25. Proposed condition 19 is that Mr Ambrym must provide any information relating to his financial affairs, including income and expenditure, if directed by his Departmental Supervising Officer (DSO).

26. It was submitted that this condition is unwarranted in the light of Mr Ambrym’s criminal history and the circumstances in which he might precipitate any future serious offending. It was submitted to be a significant invasion of his privacy in circumstances where it is unclear how it would usefully contribute to the protection of the community or could be reasonably measured and appropriate having regard to the objectives of the Act.

27. Counsel for the State submitted that this condition was designed to enable the DSO to investigate Mr Ambrym’s financial circumstances as an aid to determining what was going on in his life at any particular point. For example, if he was in receipt of Centrelink benefits, as was anticipated, and was found to be without money to pay for the essentials of life at any point, enquiries might be warranted as to whether he was using money for drugs and/or alcohol, both of which were risk factors.

28. It is of some note that the proposed condition is only activated if Mr Ambrym is directed to comply by his DSO.

29. Alcohol and drugs are a significant component of Mr Ambrym’s risk factors. If he were to re-engage with abuse of either substance his doing so would be relatively easily exposed if the DSO had access to his financial information, particularly given that it is anticipated that he will be receiving relatively modest benefits from Centrelink. I note also that the "most likely risk scenario" described by Ms Pateman refers to a situation in which Mr Ambrym may be experiencing "overwhelming stress". She cites as one example, "financial difficulties".

30. I am inclined to the view that at least at the interim stage this condition should be included.

Access to the internet and other electronic communication

31. Conditions 29 to 33 and 37 are designed to enable the DSO to monitor Mr Ambrym’s use of mobile phones and other electronic devices.

32. A similar objection was taken to these conditions as was taken in respect of the financial affairs condition, namely that they amounted to a significant invasion of Mr Ambrym’s privacy and it was unclear how they could usefully contribute to the protection of the community or be appropriate having regard to the objectives of the Act. More specifically, the use of electronic devices has never been a feature of Mr Ambrym’s offending behaviour in the past.

33. The concern of the State in proposing these conditions is, in part, to enable the DSO to monitor the contacts Mr Ambrym has. They have the facility to monitor his physical contacts to a significant extent but in the current climate there is more likely to be a greater level of contact made by alternative means, namely by telephone or other electronic communications. This was said to be a particular concern in the current era of distancing and possible social isolation.

34. Another benefit of having conditions such as these is that it would aid the effective utilisation of the condition concerning financial affairs (condition 19). That condition would have greater efficacy if the DSO was able to see bank statements, for example, through an internet device rather than having to wait until paper copies become available.

35. Monitoring Mr Ambrym’s communications and interests via phone and electronic devices would appear to be a useful tool in the overall supervision and management of Mr Ambrym’s risk factors. His risk of offending may relate to his association with negative peers and their (and potentially his) use of alcohol or drugs. These conditions should remain, at least for the interim period.

Obtaining information from healthcare practitioners

36. Proposed condition 48 would require Mr Ambrym to agree to his healthcare practitioners sharing information with the DSO “as to the fact of his attendance at appointments and his overall progress in therapy or counselling including the practitioner’s general opinion as to the development of his insight into offending, risk factors and attitudes to reduce his risk of offending”. To meet a concern that this intruded into doctor/patient relationships and the general entitlement to medical privacy, the following note has been added to the condition:

“NOTE: It is understood that a relationship of trust and confidentiality with healthcare practitioners is fundamental to the defendant’s engagement with and treatment by healthcare practitioners.”

37. Counsel for the State submitted that this condition is not about the DSO asking health practitioners in-depth details about what Mr Ambrym has discussed with them. It was designed to allow inquiry as to whether he was attending sessions, whether his behaviour during the sessions had been appropriate, and whether certain risk factors are being addressed. It was submitted that this would then allow the DSO to refer Mr Ambrym to appropriate services, if necessary, in addition to those he was already receiving for management of his risk.

38. It was also submitted that the condition is necessary because of Mr Ambrym’s history of disengaging with treatment services. This in the past has been in situations where Mr Ambrym experienced periods of increased stress and destabilisation.

39. Counsel for Mr Ambrym submitted that the note recognised the problem but did not solve it. Reliance was placed on some progress notes from when Mr Ambrym was receiving counselling with Forensic Psychology Services in 2018 in support of the contention that he has an understandable distrust of certain aspects of society. There was concern that the proposed condition appears in the context of the State compelling him to engage with healthcare practitioners and then permitting representatives of the State to inquire into the substance and progress of that treatment. It was submitted that the treatment that the State wants Mr Ambrym to participate in would be far more likely to succeed if his privacy and confidentiality was respected.

37. I do not understand the proposed condition to involve divulgement by a healthcare practitioner of matters that have been revealed by Mr Ambrym during counselling sessions. It appears to be more directed to the general aspects of his attendance and progress at treatment.

38. It certainly is important for the DSO to be aware of whether Mr Ambrym has attended appointments as required. His overall progress and development of insight into his risk factors and attitudes to reducing his risk of offending are significant matters for the DSO to be aware of in order to adjust the level of supervision that might be necessary to reduce the level of risk posed to the community, as well as promote the rehabilitation of the defendant. At least for the present time, I am of the view that this condition should remain. The note which accompanies the condition should be sufficient alert to a legitimate concern about the divulgement of information that exceeds the intended purpose of the condition.

Accommodation and travel and place restrictions

42. Proposed condition 10 is that the defendant lives at an address approved by his DSO and proposed condition 14 is that he is not to leave New South Wales without the approval of the Commissioner of Corrective Services NSW.

43. Although one was foreshadowed, counsel for Mr Ambrym indicated at the hearing that there was no longer an objection to each of these conditions. The significant issue, however, is that Mr Ambrym should be able to live within the Riverina area. It was submitted that this is an area “where he is welcomed and supported and feels that way”. The concern is that if he did not have approved accommodation in that area he may be required to live some distance away, perhaps in metropolitan Sydney. If he was required to live in a place that isolates him from his family support, there was a risk that things may go awry as they had in the past.

44. It is difficult to precisely determine the appropriateness of what is proposed because available accommodation for Mr Ambrym is yet to be identified and approved. I agree with the submission that it would be highly desirable that he be permitted to live in the Riverina area, as close as possible to those who are available to support him. The best that can be done is to add to condition 10 the following sentence: "Preference should be given to a location in the Riverina area if possible".

Responding to questions from the DSO

45. Proposed condition 8 would require Mr Ambrym to truthfully answer questions from his DSO and other supervisors about “where he is, where he is going, and what he is intending to do in a specified timeframe or on a specified date”.

46. Proposed condition 9, which has been deleted by the State, would have required Mr Ambrym when answering questions from his DSO about where he is and what he is doing, to not provide information that is false.

47. The State contends that condition 8 should apply and condition 9 should not. Mr Ambrym contends to the contrary.

48. Mr Anderson referred to s 12 of the Act which provides for an offence of failing to comply with the requirements of an extended supervision order or interim supervision order. The applicable penalty is 500 penalty units or imprisonment for 5 years or both. He submitted that proposed condition 8 may expose Mr Ambrym to conviction if he were bound to answer questions in the manner framed in the condition. He submitted that this raised a question of privilege against self-incrimination. Mr Anderson submitted that the Act does not expressly, or by necessary intendment, exclude the operation of the privilege. Accordingly, it was submitted that proposed condition 8 is unlawful.

49. Counsel for the State referred to the judgment of Beech-Jones J in State of New South Wales v Baldwin [2019] NSWSC 1882. In that case his Honour was also met with a submission that a proposed condition sought to abrogate a privilege against self-incrimination. His Honour dealt with that in a way that I find persuasive: see [91]-[92].

50. I am satisfied that proposed condition 8 is appropriate given that it is designed to empower the DSO to be provided with truthful answers by Mr Ambrym as to his whereabouts and movements. This is an essential aspect of monitoring risk.

Non-association

51. Proposed condition 24 is a prohibition on unapproved approaches or contacts with children. Proposed conditions 25 and 26 deal similarly with others who are not children.

52. It was foreshadowed that there was an objection to proposed conditions 25 and 26 but, at the hearing, Mr Anderson indicated that the objection was not pressed.

53. In relation to proposed condition 24, it is Mr Ambrym’s contention that three children should be specifically mentioned as exceptions to the prohibition; they being his son, sister and nephew. It was submitted that nothing in his past offending or past behaviour suggested that those people were at any risk from Mr Ambrym. Nor was there any assessment of any risk arising in the future. It was submitted that these three children were crucial parts of Mr Ambrym’s family and support apparatus; being able to associate with them would assist him to reintegrate into society.

54. Counsel for the State submitted that it would be preferred that Mr Ambrym only be permitted to have contact with children after the DSO has been given an opportunity to arrange for appropriate checks to be conducted. She indicated that the necessary checks would be made in relation to the three children so that he could have contact with them as soon as possible after his release into the community.

55. There is insufficient information available to me at this interim stage to make an assessment myself as to the appropriateness of Mr Ambrym having contact with the three nominated children. It is notable that his past offending has included serious incidents involving children. Accordingly the safest course is to leave it to the DSO to carry out a check which is not anticipated to take very long and hopefully would lead to approval.

Cessation of mental health medication

56. Proposed condition 47 is that if Mr Ambrym knowingly ceases taking mental health medication that has been prescribed for him, whether temporarily or permanently, he is to notify the DSO within 24 hours of having done so. The objection is that there should be notification within 3 days rather than 24 hours.

57. Mr Anderson submitted, and there was no contest about this, that Mr Ambrym was not currently assessed as suffering from any mental health issues and is currently not medicated. It was submitted that three days to report the cessation of any medication that may be prescribed is a reasonable time in circumstances where breach of any condition of the order would be a criminal offence.

58. Having regard to the fact that that there is no objection to the condition itself and the only issue is as to the duration, the resolution of this dispute is straightforward. In my view there is nothing burdensome about requiring notification within 24 hours. If the situation does arise that Mr Ambrym is prescribed mental health medication and he was to decide to cease taking it, it would likely be more beneficial if that came to notice sooner rather than later.

Conclusion

59. I am satisfied that the concession that the orders proposed by the State should be made was soundly based and such orders will be made.

60. My conclusions as to the proposed conditions are indicated above. Subject to modification of one of them (condition 10), the orders will be as proposed by the State.

Orders

61. I make the following orders:

1. Pursuant to s 7(4) of the Act:

a.   appoint two qualified psychiatrists and/or psychologists (or any combination of two such persons) as agreed by the parties to conduct separate psychiatric and/or psychological examinations 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.   direct the defendant to attend those examinations.

2. Pursuant to s 10A of the Act:

a.   the defendant be subject to an interim supervision order from 2 April 2020; and

b.   pursuant to s 10C(1) of the Act, the interim supervision order is for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined; and

c. pursuant to s 11 of the Act, direct that the defendant, for the period of the interim supervision order, comply with the conditions set out in Schedule A to the Summons as modified.

3.   Access to the Court’s file for any document shall not be granted to a non-party without leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

**********

Endnotes

Decision last updated: 31 March 2020