State of New South Wales v Baldwin

[2016] NSWSC 1141

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Baldwin [2016] NSWSC 1141
Hearing dates:	5 August 2016
Date of orders:	05 August 2016
Decision date:	16 August 2016
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) appointing Dr Jonathan Adams and Dr Anthony Samuels to conduct separate psychiatric examinations of the defendant and to furnish a report to this Court on the results of those examinations by a date to be agreed between the parties and, further, directing the defendant to attend those examinations. 2. A further order pursuant to s 10A of the Act that the defendant be subject to a high risk sex offender interim supervision order from 9 August 2016. Pursuant to s 10C(1) of the Act that interim supervision order is to be for a period of 28 days, and pursuant to s 11 of the Act, I direct the defendant for the period of the interim supervision order comply with the conditions set out in the schedule to this order.
Catchwords:	CIVIL LAW – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – high risk sex offender – preliminary hearing – interim supervision order - appointment of experts to conduct psychiatric examination
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	State of New South Wales v Lynn [2013] NSWSC 1147
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Wayne Norman Baldwin (Defendant)
Representation:	Counsel: Ms G Lewer (Plaintiff) Ms A Cook (Defendant)   Solicitors: Crown Solicitor’s Office (NSW) (Plaintiff) Legal Aid (NSW) (Defendant)
File Number(s):	2016/210954
Publication restriction:	None

Judgment

1. By Summons filed on 12 July 2016, the plaintiff seeks orders against the defendant, Wayne Norman Baldwin, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. The matter came before me on 5 August 2016, at a preliminary stage of the proceedings, to consider whether an order should be made for the defendant to be subject to an interim supervision order pending final determination of the State’s application (s 10A), with a further order appointing two psychiatrists to separately examine the defendant and report on those examinations to the Court (s 7(4)).

3. At the conclusion of the preliminary hearing I made the orders as noted above. These are my reasons for making the orders sought by the State.

4. The nature of these proceedings, the details of the applicable legislation and the principles that apply to its implementation by the Court have been the subject of regular consideration and it is unnecessary to restate those matters here in any detail. It is sufficient to note the relevant provisions of the legislation and the basis of its application to the defendant.

5. The defendant is a person who has been previously convicted of serious sexual assault offences against children and it is not disputed that he is a "sex offender" as defined by s 4 of the Act. The State's application having been filed when the respondent was still serving the parole portion of a sentence for a "serious sexual offence", the respondent is a "supervised sex offender" as contemplated by s 5I(1) of the Act.

6. For the purposes of this preliminary hearing, it is conceded by the defendant that, were the matters set out in the material tendered by the State proved, he would be assessed as a high risk sex offender, such that the Court would be justified in making an extended supervision order: s 7(4) of the Act.

The Preliminary Proceedings

7. The test to be applied when considering whether the documentary material is capable of justifying the making of the orders sought has been held not to be a stringent one (State of New South Wales v Lynn [2013] NSWSC 1147, per Button J at [18]) and is akin to the "prima facie case" test. It does not involve any prediction of the outcome of the final hearing. Simply put, if the Court is satisfied that the supporting documentation is capable of establishing a prima facie case for the final relief sought by the State, the jurisdictional test for making an interim order is met.

8. In support of its application, the State tendered a large quantity of documentary evidence to establish the facts and circumstances surrounding the commission of the serious sex offences that the defendant has been previously convicted of, together with material which might be broadly categorised as relevant to risk assessment.

The Defendant’s Criminal History

9. On 16 December 2011, the defendant was sentenced following his conviction for two offences of aggravated indecent assault. The circumstance of aggravation relied upon in each instance was the age of the victim, who was a child.

10. His conviction for those offences, one of which is the index offence for present purposes, is but the latest in a series of criminal convictions the defendant has accrued since 1967. A number of the entries against him are for serious sexual offences as defined by the Act. It is that history of criminality, and more particularly sexual offending against children, that is the basis of the State’s application.

11. The defendant’s record of sexual offences against children began with a conviction in 1978 for an offence of indecent assault, the victim of which was a 15 year old boy. The offence recognised acts of both fellatio (which at the time constituted an indecent assault rather than an act of sexual intercourse, as it would now be), and fondling the victim’s genitals. The defendant was sentenced to a term of 6 months hard labour, to use the then current terminology.

12. In 1994 the defendant was convicted in Queensland of a number of sexual offences, all of them a type of indecent assault. The offences had been committed over a two year period against two children aged, respectively, 12 and 14 years old. The defendant had been in a position of authority over the children and had abused that trust to assault them.

13. After serving the sentence imposed upon him in the Southport District Court, being a total effective term of 12 months imprisonment with eligibility for release to parole after 4 months, the defendant offended again in New South Wales. He was convicted in Byron Bay Local Court of an aggravated indecent assault committed in May 1994 and sentenced to a further term of imprisonment, a period of 19 months with a non-parole period of 4 months. The victim was a young teenage boy.

14. Perhaps in the context of a sexual relationship with a 16 year old boy, the defendant incurred his next criminal conviction, for an offence of loitering near a school being a convicted sex offender. The offence, which appears to have occurred when the defendant was waiting at the school of a 16 year old child with whom he was involved, was committed in September 2007. The defendant was convicted of the offence at the Burwood Local Court in March 2009 and sentenced to 9 months imprisonment, with a non-parole period of 2 months.

15. Soon after, he was convicted of further offences of a sexual nature, being dealt with in the Sydney District Court for two counts of using a carriage service to transmit child pornography, and one count of possessing child pornography. The defendant had sent two emails to a boy of 14 years which contained a number of images of children engaged in acts of sexual intercourse. He was also found to have material of that nature in his possession when a search warrant was executed upon premises connected with him.

16. The two most recent offences were dealt with in the Gosford District Court and punished by a total sentence of 6 years and 3 months imprisonment, with a non-parole period of 4 years and 3 months. The sentence commenced on 10 May 2010, and the defendant was released to parole on 5 February 2015. He remained on parole until the expiration of the sentence, on 9 August 2016.

17. The defendant was serving the sentence imposed upon him by the District Court when the State filed the application, and he was thus a “supervised sex offender” in the final six months of the period of supervision, as is required by s 5I(1) and s 6(2) of the Act.

Risk Assessment Report

18. In addition to evidence directed to the defendant’s past criminal conduct, the State tendered evidence relevant to risk assessment. Pursuant to s 9(3)(d1) of the Act, a risk management report was prepared by appropriately qualified staff of the Department of Corrective Services, with the author concluding that the risk posed to the community by the respondent could be adequately addressed through supervision and monitoring. A number of restrictions on the respondent's living circumstances and conduct were considered necessary.

19. Dr Richard Parker, a psychologist, conducted a one hour interview with the defendant and prepared a risk assessment report dated 24 November 2015. The following summary is extracted from Dr Parker’s report.

Psychosocial History

20. The defendant spent his childhood in Sydney, and reported growing up in a “caring family” (Report of Dr Parker, [11]). His father, who was employed in the Navy, passed away in 1989 and his mother in 2012. The defendant maintained a close and supportive relationship with his mother until her death, but has not had a relationship with his two sisters since his conviction in 2002.

21. The defendant completed Year 10 at the age of 16, and after working for a short period as a salesman, joined the Navy. During his employment with the Navy he was in a relationship with another sailor for a period of five years, and an intermittent relationship with a woman from Western Australia for three years.

22. He was involved in the HMAS Voyager disaster in 1964, which resulted in the deaths of 76 sailors. The defendant told Dr Parker that:

“…he was involved in rescuing sailors and recovering dead bodies. He said this left him depressed and with Post Traumatic Stress Disorder (PTSD). He said this led to heavy drinking” (Report of Dr Parker, [13]).

23. After ceasing employment with the Navy, the defendant had a number of other jobs, including working with the ambulance service. He was, however, unemployed for periods of up to three years, because of the ongoing symptoms of PTSD and problematic alcohol consumption.

24. The defendant reported experiencing two sexual assaults to Dr Parker. The first assault occurred when the defendant was a child, around the age of 10, perpetrated by an older cousin. The second assault was alleged to have been committed by two senior Navy officials.

25. The defendant has not had any significant relationships since leaving the Navy, although he reports multiple sexual encounters of an impersonal nature. Dr Parker assessed the defendant as “…socially isolated…” (Report of Dr Parker, [52]).

26. The defendant has had prostate surgery, which he reports has left him impotent. Dr Parker noted that while the surgery altered the way in which the defendant offended (non-contact and non-penetrative offending), the surgery did not prevent the defendant committing further sexual offences.

Custodial History

27. Dr Parker noted:

“Mr Baldwin has generally been regarded as a well-behaved prisoner, who has received no institutional charges during any of his sentences in NSW or Queensland prisons. Most reports describe him as a polite and dedicated worked who interacts well with both staff and other inmates.” (Report of Dr Parker, 20)

28. Whilst in custody, the defendant has completed the intensive CUBIT program for sexual offending. The treatment completion report commented that the defendant often only participated at a superficial level and engaged in “positive impression management” (Report of Dr Parker, [21]). While the defendant was able to gain a theoretical appreciation of the impact of his offending, he did not appear to be personally affected by such realisations. Dr Parker opined:

“…while it is a good sign that Mr Baldwin completed CUBIT, and has continued to attend maintenance treatment, it is unclear whether he has internalised the attitudes and beliefs needed to make acting upon his desires as disdainful to him, as it is to most other people.” (Report of Dr Parker, [56])

29. The defendant has also completed the Getting SMART program while in custody. After noting that an officer for the program suggested that the defendant had only undertaken the program to better his chances of parole, Dr Parker expressed reservation about the defendant’s level of insight in relation to the program:

“… [D]espite this treatment, he struggled to articulate how he could avoid the patterns associated with his offending. He said he no longer feels tempted to drink alcohol and would talk to one of his support people if he felt tempted to offend, but did not articulate any rationale for this beyond avoiding returning to prison and losing the life he currently has in the community.” (Report of Dr Parker, [24])

30. In the community, the defendant continues with maintenance treatment, seeing a private psychiatrist and psychologists from Corrective Services NSW.

Alcohol Abuse

31. The defendant recounted to Dr Parker that his alcohol consumption became problematic after involvement in the HMAS Voyager incident. He saw a psychologist in 2005, and reported that this provided some relief, although other issues remained unresolved.

32. The defendant told Dr Parker that he is no longer “tempted” by alcohol (Report of Dr Parker, [26]). There is no evidence to suggest that the defendant has relapsed since being released subject to parole.

Risk Posed by the Defendant

33. The combined actuarial risk assessments of the Static-99R and Stable-2007 place the defendant in the high overall risk category.

34. Dr Parker assessed the defendant as a ‘committed offender’, being someone who:

“… will actively seek opportunities to offend, grooming parents and seeking opportunities to be alone with a vulnerable child. Committed offenders may also take advantages of opportunities as they occur.” (Report of Dr Parker, [53])

35. In order to offend, the defendant has, in the past, either utilised pro-social relationships with adults who have given him access to young children, or won the trust of young children directly. Dr Parker noted that the defendant has previously “…gone out of his way to initiate, and prolong, this contact” (Report of Dr Parker, [9]).

36. Dr Parker concluded that an ESO would be appropriate in the circumstances; principally as a means to limit the defendant’s access to future victims, thus managing the risk he poses.

Conclusion

37. In determining whether orders should be made pursuant to s 7(4) of the Act, the Court must consider whether the matters advanced in the documentary evidence would, if proven, ground an order for an extended supervision order. Section 5C(1) provides for the making of an extended supervision order against a "high risk sex offender." Section 5B(2) provides that a "sex offender" will be a "high risk sex offender" if the Court is satisfied to a high degree of probability that the relevant individual poses an unacceptable risk of committing a serious sex offence if unsupervised. Section 9(3) sets out a number of matters to which the Court must have regard when determining an application for an extended supervision order.

38. In considering whether to make an interim supervision order pursuant to s 10A the same determination is made: whether the matters advanced in the supporting documentation would, if proven, warrant the making of an extended supervision order. The additional requirement for an interim order is that the respondent's custody or supervision will expire prior to the final disposition of the matter.

39. Without admissions as to the final outcome of the State's application, the respondent concedes both that the custody to which he was subject at the date of hearing will shortly expire, and that the documentary material relied upon by the State would, if proven, justify the making of an extended supervision order.

40. Having considered the supporting documentary material tendered by the State, and proceeding on the basis that that material can be proved, I am satisfied that the respondent is a high risk sex offender, and that it is appropriate to make the orders sought by the State pursuant to s 7(4) and s 10A of the Act.

41. The defendant’s criminal history of itself, suggests a degree of risk of the commission of further such offences, with the defendant apparently habituated to the commission of sexual crimes against children as a way of life. It is clear from Dr Parker’s evidence that the risk suggested by the defendant’s past is, in fact, very real. Dr Parker has concluded that the defendant is a “committed offender” whose engagement with rehabilitative programmes is superficial, and directed to nothing more than obtaining and maintaining his liberty.

42. The supervisory regime proposed by the State is clearly necessary to manage the risk the defendant poses to children.

orders

1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) appointing Dr Jonathan Adams and Dr Anthony Samuels to conduct separate psychiatric examinations of the defendant and to furnish a report to this Court on the results of those examinations by a date to be agreed between the parties and, further, directing the defendant to attend those examinations.

2. I make a further order pursuant to s 10A of the Act that the defendant be subject to a high risk sex offender interim supervision order from 9 August 2016. Pursuant to s 10C(1) of the Act that interim supervision order is to be for a period of 28 days, and pursuant to s 11 of the Act I direct the defendant for the period of the interim supervision order comply with the conditions set out in the schedule to this order.

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Decision last updated: 17 August 2016