State of New South Wales v Bou-Antoun (Preliminary)

[2022] NSWSC 513

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Bou-Antoun (Preliminary) [2022] NSWSC 513

Hearing dates:

14 April 2022

Date of orders:

29 April 2022

Decision date:

29 April 2022

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1) Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (''the Act''), the Court:

(a)   appoints two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed;

(b)   directs the defendant to attend those examinations.

(2) Pursuant to ss 10A and 10C of the Act, the defendant be subject to an interim supervision order for a period of 28 days commencing 2 May 2022.

(3) 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 the Schedule annexed to this judgment.

Catchwords:

HIGH RISK OFFENDERS – extended supervision order – preliminary hearing – appointment of psychiatrists or psychologists – aggravated sexual assault – solicit murder – entirety of adult life in custody – sexual preoccupation – diagnosed with mental illness in custody – relevance of unproven charges in assessing risk – high risk of committing further serious offence – interim orders not opposed – certain conditions opposed – interim supervision order made

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), s 5

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 4A, 5, 5B, 5D, 5I, 6, 7, 9, 10A, 10C, 11

Crimes Act 1900 (NSW), ss 26, 61J

Mental Health Act 2007 (NSW)

Cases Cited:

Attorney General for New South Wales v Tillman [2007] NSWCA 119

Bou-Antoun v R [2013] NSWCCA 305

Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67

R v Carroll (2002) 213 CLR 635; [2002] HCA 55

State of New South Wales v Devaney (Preliminary) [2021] NSWSC 1432

State of New South Wales v Donovan [2015] NSWSC 1254

State of New South Wales v John Owen Conway [2011] NSWSC 976

State of New South Wales v Nikua (Final) [2021] NSWSC 1240

State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813

State of New South Wales v Mills (No 2) [2017] NSWSC 1442

State of NSW v Thomas [2010] NSWSC 677

Winters v Attorney General of New South Wales (2008) 182 A Crim R 107; [2008] NSWCA 33

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Kevin Bou-Antoun (Defendant)

Representation:

Counsel:
R Rodger (Plaintiff)
K Stares (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2021/290879

Publication restriction:

Nil

Judgment

1. By summons filed on 13 October 2021, the plaintiff seeks an order that the defendant be subject to an extended supervision order (“ESO”) for a period of five years pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). Various conditions are sought as part of that order.

2. Prior to any final order being made the plaintiff seeks interim orders. Those orders include:

1. an order pursuant to s 7(4) of the Act appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations and provide reports on the defendant, and a corresponding order directing the defendant to attend those examinations; and

2. an order pursuant to s 10A of the Act that the defendant be subject to an interim supervision order (“ISO”) for a period of 28 days commencing from midnight on 1 May 2022, in compliance with the proposed conditions.

3. An order has previously been made that this 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 as to the application.

4. The defendant does not oppose the making of orders under s 7(4) and an ISO but does oppose some of the proposed conditions to be attached to the ISO.

Legislative scheme

5. The Act is designed to address the “almost intractable problem” of how “the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release”: State of New South Wales v Donovan [2015] NSWSC 1254 at [3].

6. The objects of the Act are set out in s 3:

3      Objects of Act

(1)     The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

(2)     Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.

7. Section 9(1) of the Act provides that this Court may determine an application for an ESO by making an order or dismissing the application. Section 9(2) provides that in determining whether or not to make an ESO “the safety of the community must be the paramount consideration”. It follows that ESOs are, in their nature, protective and not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5] (“Tillman”).

8. Section 7(3) of the Act requires a preliminary hearing into the application be conducted within 28 days of the filing of the application. Section 7(4) provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court must make orders appointing the relevant experts to conduct examinations and furnish reports to the Supreme Court (and directing the defendant to attend those examinations). If, on the other hand, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an order, I must dismiss the application: s 7(5).

9. Section 10A provides:

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.

10. It is to be noted that s 7(4) mandates the making of certain orders if the relevant test is satisfied while s 10A provides the additional requirement in s 10A(a) and, by the use of the word may, a discretion as to whether an order will be made: see Tillman at [32]. Otherwise, both provisions provide for the same threshold, that is, “that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order”: s 7(4). That test draws attention to the central provision with respect to ESOs, s 5B, which provides:

5B      Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:

(a)     the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(d)     the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

11. Section 5D further clarifies the test in s 5B by providing that the Court "is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence".

12. The expression “supporting documentation” in ss 7 and 10A (“the matters alleged in the supporting documentation”) is defined in s 4 to mean the documentation referred to in s 6(3). That subsection provides that an application for an ESO must be supported by documentation that addresses each of the matters referred to in s 9(3) of the Act, and a report prepared by a qualified psychiatrist, registered psychologist, or registered medical practitioner that assesses the likelihood of the offender committing a serious offence.

13. The test thus requires satisfaction that the “matters alleged in the supporting documentation would, if proved, justify” a positive finding with respect to each of the matters in s 5B. The “matters alleged in the supporting documentation” does not include material put before the Court by the defendant said to cast light on the matters alleged, and I am accordingly not allowed to consider any such material in applying the test in s 7(4) of the Act: see State of New South Wales v Devaney (Preliminary) [2021] NSWSC 1432 at [16]-[21].

Factual background

14. The following matters are derived from a summary of the factual background provided by the plaintiff. I do not understand there to be any dispute as to the accuracy of these matters.

15. The defendant is 37 years old. He was born in Lebanon and immigrated to Australia with his family in 1987. He reports experiencing a violent upbringing and difficulties in school. He was often involved in fights as a child and was expelled in year 9.

16. The defendant’s criminal record began in 2000 at the age of 15.  In 2000 and 2001, he committed minor property and driving offences and a common assault offence.  In 2002, he was charged with “take and detain person with intent to obtain advantage” (“unproven charge”).  It was alleged that a male passenger in the car driven at the time by the defendant took a woman from another car into his car, and that the defendant locked the car, drove off and told her that he would return her to her friends if she kissed him.  The defendant was convicted of this offence in the Children’s Court on 1 December 2003, but this was overturned on appeal in 2006.  While the plaintiff relied on this matter (viewed in the context of later offending), the authorities suggest that, if admissible, that admissibility is limited to the use of the material in risk assessment tools: State of NSW v Thomas [2010] NSWSC 677 at [39]; State of New South Wales v John Owen Conway [2011] NSWSC 976 at [27]-[39]. It may be that there is a greater, or different, restriction based on the defendant’s entitlement to the full benefit of his conviction: Garrett v The Queen (1977) 139 CLR 437 at 445; [1977] HCA 67; R v Carroll (2002) 213 CLR 635; [2002] HCA 55 at [35]-[50]. In the present case, given that reasons were given for the acquittal it is possible to have regard to facts surrounding the event which do not controvert the acquittal, as set out in the reasons of Sorby DCJ overturning the conviction. That is the basis on which I propose to have regard to this evidence.

The index offences

17. In 2003, the defendant committed one count of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 (NSW) and one count of solicit murder contrary to s 26 of the Crimes Act (together, “the index offences”, the term used by the parties to describe the offence triggering s 5B(a)).

18. The facts of the index offences are neatly summarised by Latham J in Bou-Antoun v R [2013] NSWCCA 305 (the defendant’s sentence appeal judgment) at [8]-[20]:

“8   On the night of [29] March 2003 the [defendant] and a co-offender picked up the complainant and her girlfriend in a car driven by the [defendant]. The [defendant] was introduced as "Michael". Both the [defendant] and the co-offender made it clear to the complainant that they did not want her friend in their company. They drove to a service station where everyone got out of the car.

9   Sometime later, the complainant went for a drive with the [defendant]. He parked the car, undid his pants and exposed his penis. The complainant said "I'm not doing this", left the car and rang her girlfriend. Her girlfriend attempted to speak to the complainant but the phone was confiscated by the co-offender who had remained in her company. The co-offender informed the complainant that her girlfriend was going to Bondi in another car and that they would all meet there. The [defendant] then took the complainant's phone and removed the battery.

10   The car then proceeded to drive towards Bondi. En route, the complainant repeated that she did not want to have sex. The [defendant] said to the co-offender "If she says anything to the police we'll kill her because you can get less years for killing her than for rape". The [defendant] then threatened to dump the complainant in the river.

11   When the party arrived at Bondi, the complainant started to walk away. The co-offender grabbed the complainant by the arm saying "I don't trust you". He hugged the complainant from behind and the complainant struggled. The complainant refused to have any sexual activity with the co-offender. The [defendant] then approached the complainant and slapped her face saying "From now on you're going to do what we say". The co-offender then commenced kissing the complainant, removed his penis from his pants and forced the complainant to masturbate him. The co-offender then undid the complainant's pants and had penile/vaginal intercourse with her. He was not wearing a condom. During sexual intercourse the complainant said again that she did not want sexual activity. The [defendant] was standing a short distance away at this time.

12   After the co-offender had finished, the complainant started to dress and commenced walking away. The [defendant] said to her "Give me a head job". The [defendant] exposed his erect penis to the complainant. The complainant refused, however the [defendant] grabbed her hand and forced her to masturbate him. The [defendant] then removed the complainant's pants and underpants and had penile/vaginal intercourse with the complainant. This was repeated within a short period of time. After a third episode of intercourse, the [defendant] removed his penis and masturbated until ejaculation. The complainant continued to protest during all of this sexual activity.

13   The complainant made an immediate complaint to police. Both offenders were identified through the registration number of the car and the mobile phone records. In addition, a telephone intercept revealed that the offenders were discussing what defence they should raise in the event that they were charged. The [defendant] also made a number of enquiries trying to identify and locate the complainant after he became aware of her complaint but prior to his arrest on 2 May 2003. Following arrest, he declined to take part in a record of interview. He was refused bail and remained in custody.

14   On 2 December 2003, police were informed that the [defendant] was attempting to engage someone to kill the complainant for money. The [defendant] asked his cellmate if he knew anyone who would carry out a contract killing. The cellmate said that he knew a hitman. The [defendant] gave his cellmate some pieces of paper which contained the complainant's name, her physical description, her likely address and mobile phone number. The cellmate provided this information to the police.

15   Between 16 December and 23 December 2003 a number of conversations between the [defendant] and his cellmate were recorded pursuant to a listening device warrant. During those conversations the [defendant] states a number of times that he wants the complainant dead. The [defendant] and the cellmate discuss a proposed visit to the jail of the prospective hitman, the amount required for the murder ($23,000) and the downpayment required for the engagement of a hitman ($3000). The [defendant] is heard to say "I want her knocked off, I want her killed" and "I just want to kill that bitch, I want to kill her".

16   On 17 December 2003, an undercover police officer posing as the hitman visited the [defendant] in his cell. The conversations recorded between them included statements by the [defendant] that he wanted the complainant killed, that his father was aware of the plans and would arrange payment, and the [defendant’s] wishes that the complainant should suffer. In this regard, the [defendant] says "The way I want it done is, I want you to hold her captive in the car. You take her to a nearby park and then I want you to rape her, make it look like she was sexually assaulted and then I want you to pop her in the stomach, pop her in the eye and pop her in the forehead ....... I want her to feel lots of pain .......... It's up to you how long you enjoy it, you know. Tell her it's from, its from Michael."

17   Later the same day the [defendant] confirmed with his cellmate that the arrangements had been made. On 22 December 2003 the [defendant] impresses upon his cellmate his desire to go through with the plan of killing the complainant, notwithstanding his cellmate insisting on a number of occasions that he was able to call it off.

18   The undercover police officer met with the [defendant’s] father on 22 December 2003. During this meeting, the arrangements for the murder of the complainant and the payment were discussed. Following this meeting, there were telephone conversations between the [defendant] and his father wherein the [defendant] urges his father to pay the deposit. Later the same day the [defendant’s] father paid $3000 to the undercover police officer.

19   On 29 December 2003 the [defendant’s] cell was searched by police officers. In the course of the search, the [defendant] said "If the Crown witness has been killed that means I go home." Later that day, the [defendant] said to his father in the course of a telephone conversation "Unbelievable, someone has killed her dad, maybe it's Fadi. Only God knows she must have gone with some others and they killed her. She didn't know me. Someone has killed her. .......... I'm happy she's dead. God did it, she lied about me."

20   The [defendant] was charged with solicit to murder on 30 December 2003.”

Sentences

19. The defendant pleaded guilty to both charges. He was sentenced by Sorby DCJ on 12 May 2006 to a fixed term of imprisonment of 5 years in relation to the aggravated sexual assault charge, and to a partially concurrent term of 15 years, with a non-parole period of 10 years in relation to the solicit murder charge. The total effective sentence was 19 years, with a non-parole period of 14 years.

20. Sorby DCJ found that the sexual assault offence fell at “less than the mid range of seriousness”. In coming to this view, his Honour identified as aggravating factors the fact the offence was committed while the defendant was on bail for the unproven charge noted above, the use of threatened and actual violence (including a threat of death), the substantial harm caused to the complainant, and the degree of planning. His Honour allowed a 15% discount for his late plea to this offence.

21. Sorby DCJ found that the solicit murder offence fell “above the middle range” of objective seriousness. His Honour stated that the fact that he “was planning to eliminate by murder the chief Crown witness in the case against him strikes at the very heart of our criminal justice system” and emphasised the need for general deterrence. His Honour identified as aggravating factors the threat and use of violence against the complainant, the fact that the offence was committed while in custody, the involvement of gratuitous cruelty, the substantial emotional harm caused and the fact the offence was “part of an organised criminal activity on the night”. His Honour allowed a 25% discount for his early plea to this offence.

19. As to the defendant’s subjective case, his Honour took into account his youth, minor criminal record and his pleas of guilty. In coming to the sentences imposed, his Honour also considered the principle of parity in respect of the sexual assault offence for which the co-offender was sentenced by Shadbolt DCJ two years prior, and the principle of totality in sentencing the defendant for the two offences. His Honour found special circumstances on the basis of the youth of the defendant and the fact this is his first experience of imprisonment.

20. The defendant filed a notice of intention to appeal against sentence. For reasons not presently relevant the appeal was not pursued expeditiously and, ultimately, after consideration of the merits, on 5 December 2013, the Court of Criminal Appeal refused the application for extension of time: Bou-Antoun v R.

Release from custody

24. The defendant’s non-parole period concluded on 1 May 2017. He was released on parole on 16 June 2021. His sentence will conclude on 1 May 2022. Since being released on parole he has predominantly resided at an Integrated Support Centre (“ISC”) and for a period with one of his sisters. Since February 2022, he has been living alone in a privately leased residence.

Assessment of risk

25. In determining whether the matters in the supporting documentation would, if proved, justify the making of an ESO, I am required to have regard to the factors set out in s 9(3). Those factors (as presently relevant) are as follows.

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner: s 9(3)(c)

26. I have had regard to the risk assessment report prepared by Samuel Ardasinski, forensic psychologist, dated 12 July 2021.

27. Based on Mr Ardasinski’s assessment of the defendant’s current risk, the defendant’s risk of violent offending under the Violence Risk Appraisal Guide – Revised tool was in the eighth of nine “bins”, a high-risk classification (58% of offenders in that category reoffended violently within five years and 78% reoffended violently within 12 years). The defendant’s risk of sexual offending under the STATIC-2002R tool was “Above Average”. In addition, the defendant was assessed in the “Moderate/Elevated risk category” for the risk of repeat sexual violence under the Risk of Sexual Violence Protocol. A number of specific risk indicators were identified, such as a history of an escalation of his sexual violence, a lack of insight into his index offending, his psychotic illness, his problems with securing employment and his relatively poor performance in building essential social and interpersonal skills.

28. Mr Ardasinski identified a number of criminogenic needs relevant to the defendant, including poor decision making, sexual preoccupation, a lack of stable relationships, inappropriate attachments to female custodial staff, a lack of pro-social associations and poor coping skills. However, he also identified several protective factors, such as his strong family contact, stable accommodation (as at the time of assessment) and professional supports such as from the National Disability Insurance Scheme (“NDIS”).

29. Mr Ardasinski noted, in the light of material suggesting the defendant’s desire to meet “many women upon release”, the possibility that the defendant could engage in similar conduct to that which precipitated the index offences, including by “cruising for impersonal sex late at night and being reckless as to the consent of any female partners he seeks out in that vein”.

30. Mr Ardasinski concluded, based on all the evidence, that the defendant falls in the Moderate-High risk category for violent offending relative to other adult male violent offenders and in the Moderate-High risk category for sexual offending relative to other adult male sexual offenders.

31. I have also had regard to the various other reports tendered on the application.

The results of any statistical or other assessment: s 9(3)(d)

32. This matter has been considered in the context of the reports tendered on the application.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community: s 9(3)(d1)

33. I have had regard to the risk management report of Shantelle Hodgkinson, Community Corrections Officer, dated 10 August 2021. The report noted that the defendant’s response to supervision while on parole and residing at the ISC has been satisfactory. In relation to the proposed risk management plan, the report stated that the defendant would have weekly contact with Community Corrections and both scheduled and unannounced home visits. His compliance would be monitored through covert and face-to-face surveillance, as well as through contact with stakeholders such as treatment providers. The recommended conditions include electronic monitoring to ensure adherence to his schedule of movements. Conditions in relation to accommodation, place and travel restrictions, employment and education, use of drugs and alcohol, association with others and medical intervention, amongst others, were recommended in light of the defendant’s criminal history and the criminogenic risks identified by Mr Ardasinski. A search and seizure condition and conditions relating to access to the internet and electronic devices were proposed to assist in the monitoring and enforcement of other conditions.

Any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs: s 9(3)(e)

34. In 2018, the defendant completed the High Intensity Sex Offender Program (“HISOP”) within the Custody-based Intensive Treatment (“CUBIT”) residential unit. I have had regard to the HISOP treatment report of Tim Wu, psychologist, dated 24 January 2019, which indicated the defendant was largely compliant with custodial and the CUBIT rules while in the CUBIT residential unit. However, Mr Wu noted the defendant had difficulties with establishing and maintaining interpersonal relationships in the CUBIT residential unit. He also displayed overfamiliar behaviours with staff, particularly female staff that he found attractive, and was observed to make slightly flirtatious comments and to engage in inappropriate eye contact and sexualised talk, although he was reportedly able to make changes over time to interact appropriately with female staff. He concluded in the report that the defendant “maintained poor insight with sexual preoccupation” and would require ongoing support with problem solving and assertive communication.

35. I have also had regard to progress notes from the Corrective Services NSW Forensic Psychology Service. These notes revealed that he has been engaging consistently with the service during his time on parole and pursuant to the conditions of his release. However, the defendant has on some occasions suggested that he was engaging in order to receive a positive report. The progress notes also indicated that the defendant in a telephone call with a psychologist on 6 July 2021 described his time in CUBIT as “a load of shit” and thought most CUBIT members just say “what you want to hear”.

Options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time: s 9(3)(e1)

36. I have had regard to the fact that the defendant is subject to reporting obligations pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW) and to a Child Protection Prohibition Order (“CPPO”) pursuant to s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), commencing on 19 July 2021 for a period of five years. The latter restricts the defendant’s contact with persons under the age of 18, access to premises likely to be frequented by children and communication with child sex offenders, but does not directly address the risk he poses to women over the age of 18.

37. I note there are additional community supports available to him including the Auburn Community Mental Health Team, an NDIS Package and a Community Treatment Order to manage his mental health.

38. I have also had regard to the risk management report setting out the conditions which, in the opinion of Community Corrections, would be sufficient to manage the defendant’s risk in the community.

The likelihood that the offender will comply with the obligations of an extended supervision order: s 9(3)(e2)

39. The aggravated sexual assault offence was committed while the defendant was on bail for other charges, and the solicit murder offence occurred while he was in custody. However, the defendant was not the subject of any misconduct charges in the 6 years prior to his release on parole, has complied with his parole conditions to date and there is nothing to suggest that he has not been compliant with the conditions of his CPPO. I accept the terms of any ESO will be carefully explained to the defendant. Given these matters, I accept he has the capacity to comply with the obligations of an ESO.

The level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order: s 9(3)(f)

40. The defendant has successfully complied with the conditions of his parole since his release. A report prepared by the Probation and Parole Service, dated 16 August 2021, indicated that his response to supervision has been satisfactory and reported no issues or concerns in relation to his behaviour, or signs of unstable mental health.

The level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004: s 9(3)(g)

41. His obligations under these Acts has been addressed above. It is understood he has been generally compliant.

42. Progress notes from the Corrective Services NSW Psychology Service dated 9 November 2021 refer to an incident where a female sent him a photograph of herself when she was 12 years old, but no charges were laid in this regard.

The offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

43. The defendant’s criminal history is outlined in the factual background above.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender: s 9(3)(h1)

44. The views of the sentencing court are set out above in the factual background.

Any other information that is available as to the likelihood that the offender will commit a further serious offence: s 9(3)(i)

45. I have had regard to all other materials tendered on this application including the inmate profile document, and the psychiatric reports of Dr Mohammad Haque and Dr Gordon Elliott contained in Exhibit DY-1 to the affidavit of David Yang affirmed on 13 October 2021.

46. This material reveals that he has been diagnosed with chronic, treatment resistant paranoid schizophrenia, which could have a broad effect on his risk of offending (although not specifically on his risk of sexual offending). The materials tendered also reveal his poor custodial history, which includes more than 50 institutional misconduct charges between 2003 and 2015, and his possible lack of insight and acceptance of responsibility for the index offences.

Determination

Would the matters alleged in the supporting documentation, if proved, justify the making of an order?

47. I approach this test on the basis discussed above. While the defendant does not oppose to the making of an ISO or an order for an assessment by two suitably qualified experts, it remains for me to be satisfied these orders should be made.

48. There is no issue, based on the matters alleged in the supporting documentation that the defendant satisfies s 5B(a). That is, he is an “offender” (as defined in s 4A) and has served a sentence of imprisonment, by way of actual custody, for a “serious offence” (as defined in ss 4 and 5A). The index offences committed by the defendant fall under the definition of a “serious offence” by virtue of the aggravated sexual assault offence being a “serious sex offence” and the solicit murder offence being a “serious violence offence”. The aggravated sexual assault is a serious sex offence as it is contrary to s 61J of the Crimes Act and committed in circumstances of aggravation: s 5(1)(a)(ii). The solicit murder offence is a serious violence offence as it is a serious indictable offence (within s 5A(3)(a)) constituted by “conspiring with or inciting another person to commit” the offence of murder: s 5A(1)(b).

49. I am further satisfied the defendant is a “supervised offender” within the meaning of s 5I (as required by s 5B(b)) and an application has been made in accordance with s 5I (as required by s 5B(c)).

50. As ss 5B(a), (b) and (c) are satisfied, the question for resolution is the test in s 5B(d): that is, whether I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the Court’s satisfaction to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. Given the defendant’s concession for the purposes of the interim hearing that s 5B(d) is satisfied, I will be relatively brief with respect to this issue.

51. The defendant’s circumstances are somewhat unusual. At the time of the commission of the index offences his criminal history was relatively minor. He then committed two extremely serious offences with the result that now, at the age of 37, he has spent his last 18 years in jail compromising the entirety of his adult life thus far. The offences and his attitudes to them at the time were such as to give rise to real concerns with respect to the prospect of him committing further serious offences.

52. The defendant’s time in custody did not, at least for many years, progress well. He spent a significant number of years in maximum security. Relatedly, he committed, and was punished in respect of a large number of internal offences. These offences were committed with some consistency from the time of his imprisonment. His record shows two offences in 2003, six offences in each of 2004, 2005 and 2006, five offences in each of 2007 and 2008, two offences in 2009 and then culminating in 10 offences being committed in 2010. However, from that time on there appears to have been significant decline in internal offences. In 2011 there was a single offence for failing to comply with correctional centre routine. In 2012 there were three offences, two in relation to disobeying a direction and one of intimidation. In 2014 there was a single offence of failing to supply a urine sample and in 2015, two offences, one said to be for “assaults” and the other for failing to attend muster. Significantly there have been no further offences since 2015. Correspondingly, the defendant was able to progress in his classification. In 2013 his classification was reduced from A2 (a maximum security classification) to a B classification (medium security). In 2016 it was further reduced to a C1 classification and subsequently in July 2019 to a C2 classification (each of which are within the minimum security range). This led in turn to his ultimate release on parole. He has now been on parole for a period of approximately 10 months with no issues with respect to his compliance. Despite this progress, concerns remain with respect to his attitude towards women, relationships and his sexual preoccupation. These concerns are based on various behaviours including overfamiliar behaviour with female staff he found attractive, sexualisation of women and suggestions his engagement in programs has been functional and self-serving rather than real (as discussed in the context of s 9(3)(e) above).

53. Complicating matters, the defendant demonstrates a borderline range of intellectual functioning. Further, he has been diagnosed with a mental illness subsequent to entering custody, and which is not related to the commission of the index offences. It has, however, likely had an impact on his internal discipline record. While his schizophrenia is termed chronic, and treatment resistant, it appears that diagnosis and treatment for that illness have corresponded with the progress in custody referred to above. Nonetheless, while the treatment appears to be effective in controlling negative behaviours, he remains delusional (consistent with the treatment resistant diagnosis).

54. While the presence of treatment resistant mental illness is, in the context of an individual that has committed serious offences in the past, apt to raise concern, Dr Elliott, consultant psychiatrist, Justice Health and Forensic Mental Health Network, said to the State Parole Authority in his report of 6 November 2020:

“… the primary risks of Mr Bou-Antoun’s schizophrenia appeared to be towards himself, primarily through starvation or dehydration. His illness does not appear related to his original offences and it does not appear that his delusional beliefs are tied to his future risk of sexual recidivism. His illness may cause impairment of judgement and a lack of ability to gauge consequences however, with a broad effect on risk.”

55. Thus, while the defendant’s illness does not appear to go directly to his risk of sexual recidivism, it appears to be a complicating factor given its capacity to heighten his risk.

56. The defendant’s history and in particular the proportion of his life he has spent in jail together with his cognitive deficit and chronic mental illness result in some uncertainty as to his ability to transition into the community. While I accept that he appears to have made progress during the term of his release on parole, for the majority of that time he was either in supported accommodation (to which he was released) or living with his sister. It is unfortunate, and through no fault of the defendant, that he is no longer able to live with his sister who clearly provided significant support to him. The result is that he has, since February been living in rented accommodation on his own. That said, he is not completely isolated. He has the benefit of a support worker through NDIS. He is also subject to a Community Treatment Order under the Mental Health Act 2007 (NSW).

57. While I have considered all of the above matters independently, I note that they form the basis of the risk assessment of Mr Ardasinski who has assessed the defendant’s risk of committing a further serious offence as being high.

58. As a result, I am satisfied that the test in s 7(4) of the Act is met. That is, I am satisfied the matters alleged in the supporting documentation, if proved, justify a finding to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an order.

Section 10A of the Act – additional considerations

59. As noted above, s 10A which relates to the making of an ISO, provides the same threshold test as s 7(4) but has some additional features. Section 10A(a) requires that it “appears to the Court” that the offender’s “current custody or supervision will expire before the proceedings are determined”. The defendant’s sentence expires on 1 May 2022. I am, on this basis, satisfied that the condition in s 10A(a) is met.

60. Further, as noted above, s 10A invests the Court with a discretion as to whether to make an order even if the preconditions in s 10A(a) and (b) are satisfied. The evidence tendered by the defendant, comprising an affidavit of Claire Stimpson, a solicitor for the defendant, affirmed on 28 March 2022, an affidavit of Rachel Henderson, one of the defendant’s NDIS Support Coordinator, affirmed 28 March 2022 and a bundle of Corrective Services case note reports in relation to the defendant dating from 17 March 2022 to 11 April 2022, is relevant to this exercise. It was, however not submitted that I should not exercise my discretion in favour of making an order and I do not find a basis on which I would do so.

59. For the reasons above, I am of the view that an ISO should be made. I turn now to the determination of the appropriate conditions of the order.

Conditions

Appropriate conditions

62. Section 11(1) of the Act provides that an interim supervision order “may direct an offender to comply with such conditions as the Supreme Court considers appropriate”. An inclusive list of directions which may be given is then set out at ss 11(1)(a) to (n).

63. Section 11(2) provides a mandatory condition that the offender must not leave New South Wales except with the approval of the Commissioner of Corrective Services.

64. The power to impose conditions is constrained by the scope of the Act: Winters v Attorney General of New South Wales (2008) 182 A Crim R 107; [2008] NSWCA 33 at [19]. Regard must be had to the primary objects in s 3 of the Act.

65. Having noted the above matters, Hoeben CJ at CL in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 said (at [44]):

“Important principles to be considered in relation to the imposition of conditions are:

(i)    having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute;

(ii)    in imposing conditions, the Court needs to strike a balance between competing considerations;

(iii)    a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty;

(iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act;

(v)    conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence;

(vi)    conditions must not be unjustifiably onerous or punitive, ‘nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision’;

(vii)    conditions ‘must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice’;

(viii)   to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible.” (citations omitted)

66. The conditions should be framed with these factors in mind.

67. The ISO will be in place for a maximum period of 3 months: s 10C(2). Given this, my reasons in relation to the appropriateness of the various conditions sought will be short. The conditions to be imposed are set out in the Schedule to these reasons in a way which shows the modifications to the conditions sought in the summons.

Part A: Reporting and Monitoring Obligations

68. The defendant did not oppose conditions 1 – 4. In my view they are appropriate. I note that condition 4 requires the defendant to submit to electronic monitoring as directed by a Departmental Supervising Officer (“DSO”). I acknowledge the intrusive nature of such monitoring and its impact on the defendant’s privacy. Against that, I note that he is in a transitional phase going from a lengthy period where his liberty has been largely curtailed, through to a comparatively short period on parole during which time electronic monitoring has been in place. In light of this, I am of the view that electronic monitoring should continue.

69. Conditions 5 – 7 sought by the plaintiff relate to the provision of a schedule of movements. The plaintiff seeks what might be termed “strict scheduling”. This would require the defendant to provide, if directed, a weekly schedule of movements three days prior to its commencement and from which he may not deviate other than in an emergency. Any desired change would require the defendant to seek approval from a DSO, 24 hours in advance, unless a DSO approves a shorter period. The defendant does not oppose scheduling but submits it should be of a less rigorous nature. The defendant contends for a condition requiring the defendant to provide an honest summary of his anticipated movements each week setting out the places he intends to go, his purpose, the means of travel and the date. The primary difference is that while the locations and purposes of travel will be advised, it would be unconstrained by a strict timetable or travel route. I was informed that under the defendant’s current parole strict scheduling has been imposed.

70. The plaintiff stresses that, particularly in circumstances where the defendant is now living alone, a high level of structure is required. The plaintiff further raises a concern based on the risk of impulsive or opportunistic offending. The defendant submits that the plaintiff’s proposed strict scheduling is not tailored to meet the defendant’s risk. This is said to be particularly so in light of the defendant’s agreement to a curfew, addressed below.

71. In my view, while scheduling is appropriate given the issues in transitioning to greater liberty discussed above, a strict timetable involves a significant deprivation of liberty with little benefit with respect to the amelioration of risk. While there may be a concern in relation to impulsive offending it is not clear to me that strict scheduling offers any significant advantage in this regard. In circumstances where the defendant will be subject to a curfew, sufficient protection is obtained by the combination of electronic monitoring, and advance notice of the places the defendant proposes to visit, together with the date and the purpose of the visit. The scheduling conditions should also be understood in the context of the place and travel restrictions referred to below.

72. I do not, however, consider it appropriate that the defendant be unconstrained as to the travel route as proposed by the defendant or that he be permitted to deviate from the schedule without giving prior notice to his DSO. Such an allowance has the potential to render other aspects of the monitoring largely nugatory. On this basis I regard conditions 5 – 7 in the attached Schedule as appropriate.

Part B: Accommodation

73. The parties agree as to conditions regarding the defendant’s accommodation and a related curfew. I am of the view that the agreed conditions are appropriate.

Part C: Place and travel restrictions

74. The parties agree with respect to conditions surrounding place and travel restrictions. I am of the view that these conditions are appropriate.

Part D: Employment, finance and education

75. The parties agree to conditions with respect to employment, finance and education. Proposed condition 19 in its current form requires the defendant to, amongst other things, “take all reasonable steps to participate in interventions as recommended by a DSO” including employment. For the reasons given by Rothman J in State of New South Wales v Mills (No 2) [2017] NSWSC 1442, such a condition including employment is not appropriate. The condition will read “the defendant must take all reasonable steps to participate in interventions as recommended by a DSO concerning the development of a case management plan with respect to education, training or participation in personal development programs”.

Part E: Drugs and alcohol

76. Proposed conditions restricting the possession and use of prohibited drugs or drugs unlawfully obtained, and compliance with drug and alcohol testing are uncontroversial and appropriate. The plaintiff further seeks the condition that the defendant not possess or consume alcohol without the prior approval of a DSO. There is no evidence linking alcohol with his offending behaviour. The plaintiff stresses that, despite this, alcohol is, for anyone, disinhibiting. While I accept that alcohol has the potential to add an additional factor to the uncertainties which attend the defendant’s risk, I am not of the view that such a condition is appropriate. I propose a condition that the defendant comply with all reasonable directions from a DSO with respect to ceasing or reducing alcohol use. Such a condition is consistent with the defendant’s current parole condition. While I was informed that this condition has not been utilised over the time the defendant has been on parole, I am of the view that it provides a level of protection without being unduly onerous.

Part F: Non-association

77. The conditions proposed by the plaintiff in relation to the defendant’s associations were not opposed and are appropriate.

Part G: Weapons

78. The conditions proposed by the plaintiff in relation to weapons were not opposed and are appropriate.

Part H: Access to the internet and other electronic communication

79. The conditions in relation to access to the internet were largely agreed. The plaintiff did not press what was condition 38 in the summons which would have prohibited the defendant using any coded or encrypted messaging application service. In addition, I would not impose proposed condition 35 which would have required the defendant to disclose to a DSO in advance his use of any electronic device which has the ability to access the internet, and for the DSO to see and approve the device. Such a condition is fraught, given the modern reality that many devices, including devices such as televisions, can be used to access the internet. Making a payment in a café by credit card is likely to result in the use of a device with access to the Internet. Additionally, given the other conditions that will be imposed, the condition adds little, if anything. Condition 34 will be modified to operate consistently with this.

Part I: Search and seizure

80. The defendant did not oppose the conditions in relation to search and seizure which are in my view appropriate.

Part J: Access to pornographic, violent and classified material

81. The plaintiff did not press for the condition originally sought in this regard. Rather, the parties agreed with the condition in the terms set out in the attached Schedule which I regard as appropriate.

Park K: Personal details and appearance

82. There was no dispute with respect to conditions in this regard which I consider appropriate.

Part L: Medical intervention and treatment

83. The parties agreed in relation to conditions in this category, with the exception of the condition relating to the sharing of information. With respect to this, the defendant contended that the New South Wales Police Force should not be included in a condition requiring the defendant to agree to information sharing between that body, a DSO and Corrective Services NSW. In circumstances where the legislature has provided for information sharing between specified agencies in s 24AF and s 24AG of the Act, I do not regard it as appropriate to impose on the defendant a condition that he separately “agree” to the sharing of information. I do not regard any uncertainty on the part of the various agencies as to the operation of the legislation to be a sound basis on which to impose the condition. The other conditions in this category are appropriate and will be imposed.

Conclusion

84. An ISO should be imposed. The conditions I regard as appropriate in all the circumstances of this case, based on the above reasons, are those set out in the Schedule to this judgment. It is not appropriate to order that the ISO commence from “midnight on 1 May 2022” as sought in the summons: see State of New South Wales v Nikua (Final) [2021] NSWSC 1240 at [7]. The defendant’s sentence expires on 1 May 2022. He remains subject to the sentence for the entirety of 1 May. I apprehend what is sought is an order that commences at the conclusion of 1 May. The conclusion of 1 May is the commencement of 2 May. An order that commences on 2 May is temporally contiguous with the expiry of the defendant’s sentence on 1 May. It is therefore sufficient to impose the order such that it commences on 2 May 2022.

ORDERS

85. I make the following orders:

1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act2006 (''the Act''), the Court:

1. appoints two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed;

2. directs the defendant to attend those examinations.

2. Pursuant to ss 10A and 10C of the Act, the defendant be subject to an interim supervision order for a period of 28 days commencing 2 May 2022.

3. 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 the Schedule annexed to this judgment.

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State of NSW v Bou Antoun - Schedule of Conditions (147595, pdf)

Decision last updated: 29 April 2022