State of New South Wales v Brookes (Preliminary)
[2024] NSWSC 647
•28 May 2024
Supreme Court
New South Wales
Medium Neutral Citation: State of New South Wales v Brookes (Preliminary) [2024] NSWSC 647 Hearing dates: 28 May 2024 Date of orders: 28 May 2024 Decision date: 28 May 2024 Jurisdiction: Common Law Before: Button J Decision: Interim supervision order imposed for 28 days.
Expert reports mandated.
Catchwords: HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order and mandated reports – history of sexual offences against children – where defendant has been subject to multiple supervision orders over many years – somewhat advanced age of defendant – physical and cognitive impairments – where defendant has chronic sexual attraction to children – imposition of order and conditions not opposed by experienced counsel – supervision required to mitigate risk – interim supervision order imposed
Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) s 10A
Cases Cited: State of New South Wales v Brookes [2008] NSWSC 150
State of New South Wales v Brookes [2008] NSWSC 473
State of New South Wales v Brookes (Final) [2017] NSWSC 215
State of New South Wales v Brookes (Final) [2022] NSWSC 731
State of New South Wales v Brookes (Preliminary) [2016] NSWSC 1593
State of New South Wales v Brookes (Preliminary) [2022] NSWSC 206
State of New South Wales v Brookes (Supreme Court (NSW), Hidden J 15 September 2011, unrep)
State of NSW v Brookes [2010] NSWSC 728
Category: Principal judgment Parties: State of New South Wales (Plaintiff)
Alexandria Brookes (Defendant)Representation: Counsel:
Solicitors:
P Aitken (Plaintiff)
E Kerkyasharian (Defendant)
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s): 2024/92813 Publication restriction: Nil
REVISED EX TEMPORE JUDGMENT
Background
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The sad story of the life of the defendant has been told in many, many judgments of this Court since 2008, all regarding the Crimes (High Risk Offenders) Act 2006 (NSW) (“The Act”): State of New South Wales v Brookes [2008] NSWSC 150; State of New South Wales v Brookes [2008] NSWSC 473; State of NSW v Brookes [2010] NSWSC 728; State of New South Wales v Brookes (Supreme Court (NSW), Hidden J 15 September 2011, unrep); State of NSW v Brookes (Supreme Court (NSW), Hidden J, 12 December 2011, unrep); State of New South Wales v Brookes (Preliminary) [2016] NSWSC 1593; State of New South Wales v Brookes (Final) [2017] NSWSC 215; State of New South Wales v Brookes (Preliminary) [2022] NSWSC 206; State of New South Wales v Brookes (Final) [2022] NSWSC 731.
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Indeed, quite apart from that litigation, the litigation that has led to the proceedings today arose from events in 1986, when the defendant was first dealt with for an offence to do with child sexual assault, notably almost 40 years ago.
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He is now almost 60. Although I do not propose to go over, yet again, the facts of this matter, I will say the following.
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I accept on balance that, tragically, this man himself was victimised in that way as a child, and that kind of offending, to use a layperson's term, “imprinted” itself seemingly on his own development. What has resulted is a chronic sexual attraction to children that can be thought of as paedophilia. And he has shown in the past that he is prepared to act on it.
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Without detailing, yet again, that offending: all of it by its nature was serious, and some of it was extremely serious, leading to him spending eleven years continuously in custody.
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The picture is complicated by this man's cognitive impairment, seemingly as a result of a brain injury suffered many years ago; a suggestion of schizophrenia, though I think on the current evidence that cannot be said with certainty; as well as that, despite his relatively young age, he is quite severely physically disabled.
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Perhaps surprisingly, as I detailed in my judgment two years ago, he has been quite open about his sexual attraction to children. It could be that that openness is a function of his cognitive impairment.
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To be weighed against those negative factors is the fact that he was last convicted of committing an offence against a child almost a quarter of a century ago.
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He was last charged with such an offence, I believe, in 2009, fifteen years ago. The proceedings were withdrawn. That does not mean that they are be disregarded entirely by me. But by their withdrawn nature I give that allegation very little weight.
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Furthermore, although there was an extended period when he could not or would not comply with various forms of conditional liberty, that came to an end, again, about 15 years ago.
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In truth, as part of repeated extended supervision orders (ESOs), his life seems to have unfolded in an isolated way, in a constrained way, but without incident.
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I think the point can be reflected upon (as I did two years ago) as to whether or not there is a correct or incorrect phenomenon occurring whereby this man's liberty is repeatedly curtailed for fear that he might commit a serious offence, with the result that one never comes to know, after all these years since his last proven offending against a child, whether there remains a substantial risk if he were not subject to conditional liberty.
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As the Bar table and I usefully discussed, it is accepted that that is not a matter for today at this preliminary stage, but it might very well come down to a question of onus and precise reflection on risk on the next occasion.
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In fact, the applicant is living - sadly at his age - in an aged care facility, where he is quite closely monitored, as I understand it not just because of his physical disabilities, but also in accordance with his current ESO. In particular, when he is out and about in the community, as I understand it, although he is not subject to electronic monitoring or a schedule of movements, he remains subject to “line of sight” observation.
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He is also taking anti-libidinal medication. I think one can infer that that is playing a positive role.
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It is also the case that a guardianship order is in train, and I believe that that might come to fruition next month.
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To be weighed against that: as I have said, I continue to accept that this man has a chronic, entrenched sexual attraction to children, and in the past he has shown himself ready to act on it.
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It is also the case that, even more recently, during the currency of this ESO, he has said some odd, troubling things about how he feels about children, and his interest in them. Without descending into a level of detail, he used an acronym that may have been a joke. If it was, it was an extremely unfunny one. And the very fact that he made that kind of joke at all is troubling.
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Just reverting to the guardianship order, that might be a form of conditional liberty, as I understand it. But, really, for a man in the position of the defendant, I think that it could play only quite an insufficient role in terms of constraining him.
Determination
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The making of the orders sought today at this preliminary stage is not opposed. A written concession has been made by one counsel very experienced in criminal and quasi-criminal law, and it has not sought to be withdrawn by another counsel, also very experienced in criminal and quasi-criminal law. And it has been made absolutely clear of course, that any concession as to today cannot be thought of, directly or indirectly, as a concession with regard to the next phase of this litigation.
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My own opinion is that it is clear that all mechanistic statutory conditions for making the orders sought today have been fulfilled.
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As for what I call the "fulcrum test" in s 10A of the Act, at this preliminary stage there is no doubt, I think, that things are proceeding quietly and constructively. But I do think that there is a serious question, even now, about how the defendant would behave if he were completely at liberty; by that I mean, not constrained by any form of conditional liberty, even allowing for his physical disabilities. And I remain concerned, I must say, that this man's sexual attraction to children is at the least lingering. And if he were not called upon to take anti-libidinal medication I think there is a real concern, to put it bluntly, about what he might do.
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At this stage, I think the fulcrum test is established. I do not see any discretionary reason why I would not make the preliminary orders sought today, and there have been no submissions made about that.
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For those reasons, I propose to make the orders sought.
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Finally, I have looked at the conditions myself - bearing in mind there is no dispute about their appropriateness, again at this stage - and I am affirmatively of the opinion that they are appropriate, at this stage.
Orders
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In short, the preliminary orders in the summons will be available in sealed form from the Registry as soon as reasonably practicable.
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Decision last updated: 28 May 2024
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