State of New South Wales v Brookes (Preliminary)

[2022] NSWSC 206

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Brookes (Preliminary) [2022] NSWSC 206

Hearing dates:

28 February 2022

Decision date:

04 March 2022

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

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

(a)   order that two qualified psychiatrists or psychologists (or any combination of such persons) be appointed to conduct separate examinations of the defendant and to furnish reports to the Supreme 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 Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to an interim supervision order (“the interim supervision order”), commencing on 10 March 2022;

(3) Pursuant to s 10C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the interim supervision order is for a period of 28 days;

(4) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule attached to this judgment;

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

Catchwords:

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order

Legislation Cited:

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

Cases Cited:

State of New South Wales v Lynn [2015] NSWSC 665

State of New South Wales v Hayter (Final) [2020] NSWSC 1581

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Alexandria Brookes (Defendant)

Representation:

Counsel:
Mr P Aitken (Plaintiff)
Mr J Wilcox (Defendant)

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

File Number(s):

2016/307034; 2021/356726

Judgment

1. HIS HONOUR: By summons filed on 15 December 2021, the plaintiff seeks interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). Orders are sought for the appointment of two forensic psychiatrists and/or psychologists to examine Alexandria Brookes (“the defendant”) and furnish their reports to the Court and directing the defendant to attend their examination: s 7(4) of the Act. The plaintiff also seeks orders subjecting the defendant to, and obliging him to comply with, an interim supervision order (“an ISO”) for a period of 28 days from 10 March 2022: ss 10A, 10C(1) and 11 of the Act. On that date, an extended supervision order (“an ESO”) to which he is presently subject will expire.

2. By way of final orders, the plaintiff seeks an ESO for a period of three years from the date of that order, and an order requiring the defendant’s compliance with it: ss 5B, 9(1)(a) and 11 of the Act. Finally, an order is sought that would prevent access to the court file by a non-party without prior notification to the parties, so as to allow them an opportunity to be heard.

3. The defendant does not submit that the application does not comply with the statutory prerequisites for an application for an ESO which are set out in s 6 of the Act, as to the relevant timeframe and the documentation which must accompany the application. I am satisfied that the application meets those requirements. In addition, the defendant does not dispute the proposed conditions of an ISO, if one is imposed. The sole issue in dispute between the parties as to the final orders that are sought by the plaintiff is whether s 5B(d) of the Act is satisfied. Section 5B provides, relevantly:

“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—

…

(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.”

4. That test is qualified by s 5D of the Act, which provides:

“5D   Determination of risk

For the purposes of this Part, the Supreme 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.”

5. The key question that arises in the context of this preliminary application for an ISO is set out in s 10A(b) of the Act:

“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—

…

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

The defendant’s history of criminal offences

6. The defendant is a 57 year old male who has committed serious sex offences against young children in New South Wales and in Queensland. His criminal offending commenced with entries in the Children’s Court for arson, stealing and carrying a cutting weapon. The defendant’s first serious offence as an adult was committed in 1987, when he was aged 22. He abducted a two year old girl at a train station and was apprehended when leading her to the male toilets. He was convicted of the offence of abduction of a child, for which he received a sentence of 2 years imprisonment with a non-parole period of 12 months.

7. In 1987, whilst on parole for that offence, he and a co-offender abducted three pre-pubescent siblings, drove them to Queensland and subjected them to repeated sexual assaults over two days. He was convicted of several offences in the Supreme Court of Queensland. These offences were fraudulently taking a child under the age of 14 years with intent to deprive; indecent dealing with a girl under 14 years; carnal knowledge of a girl under 12 years of age; two counts of indecent dealing with a boy under 14 years; three charges of carnal knowledge against the order of nature; permitting carnal knowledge against the order of nature; and gross indecency. He received a total effective sentence of imprisonment for 11 years.

8. The defendant was released in 1999. In 2001, while attending a church in Sydney with a woman and her nine year old son, he took the child to a toilet and indecently assaulted him. The defendant was convicted of indecent assault of a child under the age of 10 years and was sentenced to a term of imprisonment of 3 years and 6 months, with a non-parole period of 18 months.

9. The defendant was released in 2004, having served his entire sentence. In 2005, he was convicted of two counts of failing to comply with reporting obligations contrary to the Child Protection (Offenders Registration Act) 2000 (NSW). For each of these offences the defendant received a sentence of imprisonment of 8 months with a non-parole period of 1 month, to be served concurrently. For a further such offence in 2007, he received a 12 month sentence of imprisonment.

10. In 2008, the defendant was the subject of an ESO for a period of five years. In 2009, he was convicted on three separate occasions of failing to comply with the ESO and received partially concurrent sentences of imprisonment of 12 months, 6 months and 9 months respectively. On 9 July 2010, a continuing detention order was imposed for a period of 14 months and 2 weeks, to expire on 22 September 2011. A further five-year ESO commenced on 12 December 2011. A third ESO, for a period of five years, commenced on 10 March 2017 and will expire on 9 March 2022.

11. The defendant has self-reported sexual offences for which he has not been charged. He has claimed to have sexually assaulted a pre-pubescent niece from a time when he was also pre-pubescent until his mid-teens. The defendant also claims to have sexually assaulted some 20 to 50 other victims.

The defendant’s cognitive functioning and mental health

12. The defendant was assessed by an occupational therapist in February 2021, who noted that he had a history of traumatic brain injury. The therapist noted that a CT scan, taken in 2019:

“… demonstrates focus of gliosis inferior of the left frontal and temporal lobes … as a result of this he has decreased cognitive functioning, poor planning, sequencing of tasks, low motivation and often demonstrates self-neglect.”

The therapist further noted that the defendant is “easily led and demonstrates poor impulse control”.

13. Dr Andrew Ellis, a forensic psychiatrist, assessed the defendant in 2017. Dr Ellis diagnosed the defendant as having a paraphilia disorder, namely paedophilia, which is directed at both male and female children. Dr Ellis continued:

“His combination of mood instability, impulsivity, intermittent psychotic symptoms (hallucinations and delusions) alongside cognitive impairments (at clinical review in memory and higher order executive function) is consistent with a mild neurocognitive disorder and a psychotic disorder due to a general medical condition (epilepsy and cerebral atrophy). He has structural damage to his brain, as well as functional impairment with seizures. This has likely led to a wide range of mental symptoms that are intermittent. Diagnosis has been complicated as the symptoms interact with his underlying personality.

He would meet criteria for antisocial and borderline personality disorder, in addition to the other described mental disorders, as his personality disturbance predated other conditions …

He would meet criteria for a substance use disorder, primarily cannabis and prescription benzodiazepines.” (emphases in original)

The defendant’s capacity to live independently

14. In a report dated 8 March 2016, Dr Richard Parker, a forensic psychologist, provided an overview of the defendant’s progress in the community to that date:

“30.   [The defendant] has been subject to supervision under an [ESO] since 22 September 2011. Initially he was housed at Campbelltown Community Offender Support Program (COSP). While that was intended to be for a transition period of about six months, there were many difficulties in his management which resulted in him remaining in COSP accommodation for three years, mostly at Nunyara COSP.

31.   These difficulties resulted from a combination of [the defendant’s] extremely poor living skills, psychiatric problems and numerous physical complaints. His physical complaints included enuresis, encopresis, epileptic fits, headaches and numerous gastric complaints. His psychiatric problems included psychosis, anorexia, anxiety and depression. His poor living skills meant that he often failed to keep himself clean and had to be reminded to clean himself, his clothing and bedding. He has been hospitalised many times over the last four years.

32.   Despite all these difficulties, and many setbacks, [the defendant] has slowly improved to the point that he is now in independent accommodation, with supports from Community Corrections, NEAMI and Forensic Psychology Services (FPS) … While it is acknowledged that the intensive supervision restricts his opportunities to offend, this represents the longest period the defendant] has remained in the community throughout his adult life.”

15. The defendant’s progress since 2018 was reviewed in an ESO Completion Report, prepared in July 2021, which provided:

“During the second year of the [ESO], [the defendant] experienced a number of health concerns which appeared to impact on his engagement with supervision however overall he was described as compliant with the conditions of his ESO and engaged with service providers appropriately. His assessed risk level and risk factors were described as remaining largely unchanged … [The defendant] was residing in Mascot in a one bedroom unit sourced through St George housing at the commencement of the current [ESO]. He was supported for up to 35 hours per week by Mission Australia with the aim to increase his independence in the community. He was initially subject to ‘line of sight’ supervision with Mission Australia when attending social outings and medical appointments in the community. He was also provided with assistance with general living skills and cleaning services however case notes often reflected his residence appearing to be unkempt and in a ‘state of filth.’ … [The defendant’s] lease through St George housing expired in May 2018 however due to difficulty locating alternative housing his lease was extended on a number of occasions.”

16. In late 2018 and 2019, the defendant had multiple admissions to hospital. Reasons for his admission that were listed in hospital records included urinary incontinence, urinary retention, functional decline, falls, lethargy, inability to manage his catheter, poor self-care and chronic weight loss. He was assessed by an aged care assessment team in November 2019. That assessment concluded that the defendant required: “supported 24-hour care in a structured environment that can assist him with his [activities of daily living] and health needs” and that he should be approved for “High level residential respite and permanent residential care”. The defendant was relocated to an aged care facility in Orange later that month (“the aged care facility”) and remains there. It is a secure facility, intended for patients who pose a risk to the community.

17. The defendant receives assistance from the aged care facility staff with all aspects of daily living, including washing and dressing. An occupational therapy assessment has deemed the defendant to be “Fully Dependent”, in terms of daily living skills including money, medication, travel and transport, shopping, meal preparation, laundry and housework. He was deemed to need support between 20 to 23 hours per day, seven days per week. The assessment did not consider other options, including the following, as suitable or viable:

“… public/community/social housing, home ownership and/or private rental, shared housing/accommodation, own home with funded support, living with family home with funded support, supported accommodation through Supported Independent Living (SIL) and or Specialist Disability Accommodation (SDA).”

18. The defendant has qualified for assistance through the National Disability Insurance Scheme (“the NDIS”). An NDIS plan for him commenced in March 2021. In general terms, the plan provides for a high level of care. From the advent of the Covid-19 pandemic until early February 2022, the defendant’s opportunities to leave the aged care facility have been curtailed. When he does leave, the defendant remains under line of sight observation by NDIS or aged care facility staff members, although they are not obliged to report any concerning behaviour to the defendant’s ESO Departmental Supervising Officer (“DSO”).

19. In her report dated 25 October 2021, Catherine Sapula, a forensic psychologist, noted the following:

“During this assessment [the defendant] expressed his wish to cease antilibidinal medication and re-locate to independent living in Sydney once he completes his current order. He stated that he plans to ‘settle down, get married … have kids’. He reported that it is reasonably important for him to have children because ‘I just want to be a father’. [The defendant] remained adamant that he no longer poses any risk of reoffending, thus he would not be a risk to any children he may father or parent. He also did not seem to consider his current health circumstances as relevant. He conceded that raising children can be challenging but that he is willing to try, ‘I am quite patient with children’.”

Treatment

20. The defendant attempted sex offender treatment programs whilst in custody in Queensland but did not complete any of those programs. In 2002, while in custody in New South Wales, he attempted the Custody-Based Intensive Treatment program, then known as the CUBIT program, but was discharged from it for unsatisfactory performance. In 2010, he re-entered the program, completing it in 2011.

21. Following the defendant’s release from custody in 2011, he commenced sessions at Forensic Psychology Services at Surry Hills (“FPS”) and continued to engage with them until July 2019. Ms Sapula noted:

“… Progress notes suggest that he continued to focus on his dynamic risk factors, including mood fluctuations, negative emotionality, deviant sexual attraction and strategies to manage these. [The defendant] attended approximately 27 sessions, initially on [a] three weekly basis, then monthly from about April 2018, and finally on [a] six weekly basis from about March 2019. [The defendant was] described as demonstrating an ‘intellectual knowledge of how to manage risk via use of distraction and avoidance techniques’.

Consultation with his previous FPS therapist confirmed the recent information provided by her to the author of an ESO Completion Report, in that:

‘there had been little shift in [the defendant’s] deviant arousal to children and that he would sexualise children he came into contact with in the community, particularly at locations such as bus stops and shopping centres. Whilst he has had little opportunity to display the same behaviours in recent times it is considered likely that he would continue to experience deviant thoughts and arousal patterns.’”

22. I note that the defendant is regularly administered anti-psychotic and anti-libidinal medication. According to a Risk Management Report dated 2 November 2021 by Keli Wood, a Community Corrections Officer, there are no sex offender treatment programs available in Orange, where the defendant presently resides. It is outside the catchment area for FPS and the local Corrective Services (“CSNSW”) psychologist is only able to offer case management advice to Community Corrections, although the defendant did have one session with a CSNSW psychologist in February 2021. The defendant has had no contact with a psychiatrist since moving into the aged care facility.

The defendant’s current level of risk

23. A Risk Assessment Report dated 25 October 2021, prepared by Ms Sapula, noted:

“During the current ESO period [the defendant] was issued with one written warning on 5/05/2017 for approaching a woman with her child in the pram whilst entering a pharmacy. This occurred while [the defendant] was accompanied by a Mission Australia support worker. A review of footage confirmed that [the defendant] spoke to both the mother and her child, although he had not made physical contact. Although [the defendant] has not incurred further warnings, the records suggest similar concerning behaviours that generally focused on [the defendant] intensely observing very young children, and on one occasion attempting to communicate. These instances were reported by the ‘line-of-sight’ support workers on or about 14/08/2017, 30/08/2017, 23/20/2017, 15/11/2017, 29/11/2017, 19/05/2018, 21/06/2018. These events are more comprehensively detailed in the ESO Completion Report. According to additional information not available at the time of that report, there were other similar incidents during August 2017.

… Since his relocation to [the aged care facility] on 21 November 2019, his movements have been severely restricted due to the health orders. Nevertheless, a concern was flagged by staff that [the defendant] was viewing children’s TV programs. The information around this is somewhat unclear but [the defendant] was spoken to by a CSNSW Psychologist on 29/01/2021, during which time he denied watching programs to view images of children. [The defendant’s] current ComCor Officer described his progress in [the] following terms: ‘[The defendant] has also increased his awareness regarding his impulsivity, and whilst he is still prone to impulsive behaviour such as arguing with co-residents and staring at small children when in the community, he appears to have improved his awareness in managing his behaviours.’” (footnotes omitted)

24. The Level of Service Inventory – Revised (“LSI-R”) assessment tool was most recently administered to the defendant in February 2021. The LSI-R assesses both static and dynamic risk factors and needs, in terms of criminogenic factors related to general offending. The defendant’s risk factors and needs were assessed as falling within the medium risk category for general and violent offending.

25. As to assessments of the defendant’s risk of sexual reoffending, his static risk factors were assessed in 2016 by Dr Parker utilising the STATIC-99R assessment tool. The score was reviewed and re-scored by Ms Sapula in October 2021 and found to place the defendant in the highest risk category. The defendant’s dynamic factors for sexual reoffending were assessed using the STABLE-2007, most recently in July 2021 by Holly Cieplucha, a psychologist. The results were reviewed by Ms Sapula and confirmed to indicate a “Moderate density of criminogenic needs” relative to other male sexual offenders. When combined with the results of the STABLE-2007, the defendant’s composite risk and needs were assessed as being in the “Well Above Average risk” category of sexual offending.

The defendant’s submissions

26. The defendant submitted that the test set out at s 10A of the Act was not satisfied in view of four factors. Firstly, the defendant’s mobility and general well-being was so compromised by his ailments that he lacked the physical capacity to pose a threat to children, even if he desired to do so. Secondly, the defendant has not committed an offence against a child for 20 years, or offended against an ESO since 2009, which the defence submitted demonstrates significant rehabilitation. Thirdly, the only concerning behaviour that the defendant has exhibited during the course of his current (third) ESO was his staring at children, and that has not occurred since June 2018, some three and a half years ago. Fourthly, although the defendant had expressed aspirational intentions to return to the broader community and, ideally, start a family, he does not intend to change his conditions of care in the immediate future.

The plaintiff’s submissions in response

27. The plaintiff submitted that the absence of criminal offending and concerning behaviour since mid-2018 was equally capable of explanation by the medication that the defendant is obliged to take and his effective confinement to the aged care facility as a result of restrictions imposed by Covid-19 and the line of sight supervision that applies whenever he leaves those premises. The plaintiff submitted that there is a difference between a manifest risk and an underlying risk. In the absence of an opportunity for the defendant’s level of risk to be tested, the plaintiff submitted that there is no evidence that it has been mitigated.

28. The plaintiff submitted that the defendant’s expressed desire to cease taking anti-libidinal medication, if acted upon, would significantly elevate his risk above its current level. There is a need for forensic assessments so that the Court may arrive at an informed opinion as to the level of risk currently posed by the defendant.

Consideration

29. A relevant consideration for the Court considering the final orders sought, and therefore a matter which is relevant to the s 10A test, is the gravity of the offending behaviour that the defendant is at risk of committing as well as the likelihood of that occurring: see, for example, State of New South Wales v Lynn [2015] NSWSC 665 at [68]; State of New South Wales v Hayter (Final) [2020] NSWSC 1581 at [123]. Having regard to the nature and circumstances of the defendant’s past convictions for child sexual assault, the risk posed is offending of a particularly dangerous nature.

30. The defendant’s circumstances are unusual because, in spite of him being on his third five-year ESO and not having exhibited concerning behaviour since mid-2018, he has had little opportunity to demonstrate whether he continues to pose a risk in the broader community, and if he does pose such a risk, its extent. Ms Sapula’s report, in its concluding paragraphs, appropriately acknowledges the difficulty that follows from this circumstance in predicting how the defendant would fare if released from the constraint of an ESO. I also note that the defendant’s present place of residence, in Orange, has meant that he cannot be subjected to continuing treatment for his paedophilia, whereas if he was in his preferred location, in Sydney, the services of FPS would again be available.

31. In these circumstances, where it is not possible to gauge the defendant’s current level of risk by having regard to his performance in the community, additional weight should be placed on the results of psychological assessments, which I note suggest that the level of risk of the defendant committing a sexual offence is high.

32. I conclude that the material that has been tendered by the plaintiff on the application for interim orders would, if proved, justify the making of an ESO. I decline to exercise the discretion that arises from the terms of s 10A in the defendant’s favour and will make the interim orders as sought.

Orders

33. I make the following orders:

1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):

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

2. direct the defendant to attend those examinations;

1. Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to an interim supervision order (“the interim supervision order”), commencing on 10 March 2022;

2. Pursuant to s 10C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the interim supervision order is for a period of 28 days;

3. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule attached to this judgment;

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

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Conditions of supervision Brookes (81350, pdf)

Decision last updated: 04 March 2022