State of New South Wales v Brookes (Preliminary)

[2016] NSWSC 1593

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Brookes (Preliminary) [2016] NSWSC 1593
Hearing dates:	10 November 2016
Decision date:	10 November 2016
Before:	R A Hulme J
Decision:	Interim supervision order for 28 days with two qualified psychiatrists appointed to conduct separate psychiatric examinations of the defendant
Catchwords:	HIGH RISK OFFENDER – sex offender – preliminary hearing – application for interim supervision order – Crimes (High Risk Offenders) Act 2006 (NSW) – application not opposed – order made
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) ss 7(4), 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 [2008] NSWCA 212 State of New South Wales v Brookes (Supreme Court (NSW), Barr AJ, 16 April 2010, unrep) 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)
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Alexandria George Brookes (Defendant)
Representation:	Counsel: Mr P Aitken (Plaintiff) Mr M Johnston SC (Defendant)   Solicitors: Crown Solicitors Legal Aid NSW
File Number(s):	2016/307034

Judgment

1. HIS HONOUR: By a summons filed on 14 October 2016 the State of New South Wales ("the plaintiff") seeks various orders under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). This is a preliminary hearing and the orders sought at this stage are to the effect that the defendant, Mr Alexandria George Brookes, be examined by two psychiatrists for the purpose of them furnishing reports to the Court and that Mr Brookes be made the subject of an interim supervision order. Ultimately, the plaintiff will be seeking a high risk sex offender extended supervision order for a period of 5 years.

2. Mr Brookes is represented by Mr Johnston SC. In written submissions, Mr Johnston has indicated that his client does not oppose the making of the orders sought at this preliminary stage. He accepts that all of the preconditions in the Act are satisfied. However, Mr Brookes reserves his position to challenge at the final hearing the making of an extended supervision order, its length, and the proposed conditions.

3. Notwithstanding this concession it is necessary for me to be satisfied that the making of the orders is authorised by the provisions of the Act and is appropriate in the circumstances. However, the fact of the concession means that I may state my reasons more succinctly than would otherwise be the case.

Procedural history

4. Mr Brookes has been the subject of previous applications under the Act:

State of New South Wales v Brookes [2008] NSWSC 150: Fullerton J made an interim detention order for a period of 28 days from 21 February 2008 which was subsequently extended.

State of New South Wales v Brookes [2008] NSWSC 473: Grove J made a 5 year extended supervision order on 15 May 2008.

State of New South Wales v Brookes [2008] NSWCA 212: an appeal to the Court of Appeal against the judgment of Grove J was dismissed on 4 September 2008.

State of New South Wales v Brookes (Supreme Court (NSW), Barr AJ, 16 April 2010, unrep): Barr AJ made an interim detention order for a period of 28 days from 30 April 2010 which was subsequently extended.

State of NSW v Brookes [2010] NSWSC 728: Kirby J made a continuing detention order on 9 July 2010 for a period of 14 months and 2 weeks from 9 July 2010 until 22 September 2011.

State of New South Wales v Brookes (Supreme Court (NSW), Hidden J, 15 September 2011, unrep): Hidden J made an interim supervision order for a period of 28 days from 22 September 2011 which was subsequently extended.

State of NSW v Brookes (Supreme Court (NSW), Hidden J, 12 December 2011, unrep): Hidden J made an extended supervision order for a period of 5 years until 11 December 2016.

Criminal offending and related history

5. Mr Brookes was born in 1964. His New South Wales and Queensland criminal histories include the following:

11.3.80	Minda Children's Court	Arson	Committed to an institution for 12 months
18.8.81	Cobham Children's Court	Stealing	Committed to an institution in general terms
6.10.81	Cobham Children's Court	Stealing (x 2); Carry cutting weapon	Committed to an institution for 4 months and placed on a 3 year supervised recognizance to be of good behaviour
2.5.83	Blacktown Court of Petty Sessions	Break, enter and steal	Fined $500
21.11.83	Blacktown Court of Petty Sessions	Public mischief	12 month recognizance to be of good behaviour
4.12.84	Balmain Court of Petty Sessions	Goods in custody; Illegal use conveyance; various driving offences	4 months imprisonment and fines
16.2.87	Sydney District Court	Abduct child with intent to deprive	2 years imprisonment with non-parole period 12 months from 9 October 1986
20.7.87	Brisbane Magistrates Court	Breach bail (x 2)	3 months imprisonment
28.6.88	Brisbane Supreme Court	Fraudulently take child under age of 14 with intent to deprive; Indecent dealing with girl under 14; Carnal knowledge of girl under 12; Indecent dealing with boy under 14 (x 2); Carnal knowledge against the order of nature (x 3); Permit carnal knowledge against the order of nature; Gross indecency	11 years imprisonment with hard labour
16.11.93	Inala Magistrates Court	Assault correctional services officer	Fined $100
15.6.99	Redcliffe Magistrates Court	Found in dwelling house or yard without lawful excuse	Fined $200
16.2.00	Redcliffe Magistrates Court	Use telecommunications service in offensive manner	Fined $500
20.9.01	Penrith District Court	Indecent assault of child under age 10	3 years 6 months imprisonment with non-parole period of 18 months from 21 January 2001
12.1.05	Parramatta Local Court	Fail to comply with reporting obligations under Child Protection (Offenders Registration) Act 2000 (NSW) (x 2)	8 months imprisonment with non-parole period 1 month from 20 December 2004
23.5.07	Bankstown Local Court	Fail to comply with reporting obligations	12 months imprisonment from 22 February 2007
10.2.09	Bankstown Local Court	Fail to comply with extended supervision order	12 months imprisonment with non-parole period 8 months from 5 June 2008
9.11.09	Campbelltown Local Court	Fail to comply with extended supervision order	6 months imprisonment from 19 October 2009
8.12.09	Waverley Local Court	Fail to comply with extended supervision order	9 months imprisonment from 31 July 2009

6. There appear to have been a considerable number of occasions in which Mr Brookes has engaged in sexual offending against children for which he has not been charged: State of NSW v Brookes [2010] NSWSC 728 at [20]-[23].

7. The child abduction offence for which Mr Brookes was sentenced on 16 February 1987 occurred when he was almost 22 years of age. He abducted a 2 year old girl at a railway station and took her towards the toilets. There was an issue about whether his motive was sexual.

8. Whilst serving the sentence for that offence he and another inmate, Dennis Ferguson, planned to abduct three children of an acquaintance of Ferguson; boys aged 7 and 8 and a girl aged 6. Ten days after he was released from gaol on 16 July 1987, he and Ferguson took the three children from Sydney to a Brisbane motel where they were subjected to serious sexual assaults over a two day period. He and Ferguson also engaged in sexual behaviour with each other in the presence of the children. This led to the convictions in the Brisbane Supreme Court and the 11 year sentence from which Mr Brookes was released at its expiration on 5 January 1999.

9. After committing some relatively minor offences in Queensland, Mr Brookes returned to New South Wales. In January 2001 he indecently assaulted a 9 year old boy after meeting him at a church service and taking him to a toilet block. This followed an unsuccessful attempt to take a 4 year old boy to the toilet with him. This brought about the sentence of 3 years 6 months imposed by the District Court at Penrith. Although he was allowed a 2 year parole period within that sentence he was not released until 20 July 2004 when the full term had expired.

10. Mr Brookes was required to report to a police station pursuant to his obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) following his release from gaol. He absconded but was arrested soon after. He must have been granted bail because he breached an obligation to inform police of a change of address. These offences brought the 8 month sentence imposed in the Local Court at Parramatta on 12 January 2005. To circumvent the 1 month non-parole period, the Parole Board revoked his parole and he served the full term of the sentence and was released on 19 August 2005.

11. Mr Brookes was thrice charged with breaching the extended supervision order made by Grove J on 15 May 2008. Kirby J subsequently calculated that in the 23 months following Mr Brookes' release on that order he spent 20 months in custody serving sentences. The first breach occurred within a matter of weeks. The breach that founded the charge dealt with in the Local Court at Bankstown on 10 February 2009 was not the only breach. Pictures were found in his room of babies and children aged between 6 and 10 years. He threatened a housemate with a knife. A knife was found in his room. He was reported to be repeatedly staring at children when being escorted in public despite being warned not to. Contrary to his notified schedule of movements he went for a walk one day, ignored an alarm on his electronic monitoring device that he was approaching an exclusion zone, and entered a property which contained a child care centre. He had been warned not to have any contact, direct or indirect, with a particular woman but he contacted her through a third party.

12. Mr Brookes was released on parole on 10 February 2009. He was still subject to the ESO made by Grove J. In less than a month he was found to be hoarding medication in his room and was again charged with breaching the order. This brought the 6 month sentence imposed in the Local Court at Campbelltown.

13. Further, repeated instances of contacting the woman he was prohibited from contacting brought the 9 month sentence imposed in the Local Court at Waverley on 8 December 2009. That sentence expired on 30 April 2010. It was around that time that the plaintiff brought the further proceedings that culminated in the making of the continuing detention order by Kirby J on 9 July 2010.

14. When that continuing detention order was nearing its end the plaintiff applied for an extended supervision order. Hidden J noted from the reports that were before him that Mr Brookes had made some progress but it was considered appropriate that he remain supervised in the community for an extended period. Dr Stephen Allnutt and Dr Samson Roberts, both experienced psychiatrists in this field, were both of the view that Mr Brookes remained a high risk of sexual offending. Dr Roberts remarked that Mr Brookes' psychiatric diagnosis of Schizoaffective Disorder rendered him predisposed to disinhibited behaviour and impaired judgment in the event that the condition is not adequately controlled. He had paedophilic tendencies that rendered him prone to sexual attraction to children which was being moderated through the treatment provided to him.

15. Mr Brookes did not challenge the making of the ESO which Hidden J made on 12 December 2011.

Risk assessment

16. A risk assessment report by Dr Richard Parker, senior psychologist, Serious Offenders Assessment Unit of Corrective Services NSW dated 8 March 2016 is before the Court. It is lengthy but helpful. For present purposes it is only appropriate to quote a portion of the executive summary Dr Parker provided:

“Mr Brookes is [a] 51 year old man with a personality disorder, a sexual attraction to children and a range of health problems. He had a dysfunctional childhood where he was allegedly subject to sexual abuse and was removed from his parents’ care on many occasions. He commenced offending in his teens and amassed a substantial number of non-sexual offences through his teens and twenties.

…

He is assessed as being at high risk of committing further sexual offences. Of great concern is his willingness to engage in both serious offending (involving abduction) and to engage in opportunistic offending with little premeditation.

After his release from his last offence, Mr Brookes’ compliance with supervision was highly problematic, resulting in a number of breaches and returns to custody.

Most recently, Mr Brookes has been managed in the community for over four years on an Extended Supervision Order. This supervision has been highly problematic, punctuated by numerous hospitalisations and a range of difficult behaviours. Despite this, Mr Brookes has complied with the conditions of his order, assisted by a lengthy stay in the COSP and assistance from a support service which provides one to one contact and some group activities.

His stability has slowly improved over this time. The goal would be to encourage further development and maintenance of a more independent, stable and sustainable lifestyle, so that new habits can be formed that might endure beyond supervision. An important ingredient of this is a way for Mr Brookes to feel good about himself and feel part of society, rather than being an outcast. Central to this will be the ability of Mr Brookes to participate in activities that are both enjoyable and that reinforce a connection to society. This will necessarily involve a gradual reduction in the level of restraint – it is unclear how loose this can become without imposing an unacceptable risk to society.

In the event that no further order is imposed, Mr Brookes’ sentence will expire on 11 December 2016. Mr Brookes would still continue to receive support from [a community support service] and mental health services. However, he would also be free to refuse to engage with these services. Whether the potential risk of Mr Brookes being left unsupervised in the community would be considered “unacceptable” is a matter to be determined by the court.”

Compliance with the current extended supervision order

17. An "Extended Supervision Order Completion Report" prepared by Ms Allison Roberts, Community Corrections Unit Leader, Metropolitan Extended Supervision Team, dated 3 May 2016 describes Mr Brookes' performance under the current ESO.  It is useful to set out some extracts from that report.

18. Under the heading "Current Circumstances", Ms Roberts wrote:

“Whilst he has been able to maintain independent living since October 2014 it has not been without its challenges and it is doubtful and Mr Brookes could attain a satisfactory quality of life without intensive support. His only social interactions are through [a community support service] and without the benefit of a network of family and friends to rely on his options are limited in respect to engaging in pro social and independent activities.

…

Mr Brookes attends Forensic Psychology Services (FPS) every three weeks and a Forensic Psychiatrist every three months. He is administered intravenous anti-psychotic and anti-libidinal medication fortnightly. He is taken to all these appointments by [community support service] workers.”

19. Under the heading "Overview of Response to Extended Supervision Order" she wrote:

“Although he has not breached his current Order, Mr Brookes’ current difficulties lie in his capacity to maintain a stable period of independent living free of the volatility of acute mental illness. For three years he resided in the COSP and his leaving that structured environment has been fraught with regular hospitalisations.

As a result he has been unable to demonstrate sufficient periods of stability that would allow for opportunities to progress him through the stages of ESO supervision. This has resulted in him remaining on Stage 1 of Electronic Monitoring throughout the term of his Order. This stage is the most restrictive phase of EM with activities that are closely scrutinised with limited timeframes. He is also subject to a curfew of 9pm-6am.

It would also seem that his limited intellectual abilities have also affected his capacity to learn basic living skills and the prospect of Mr Brookes being able to live independently and functioning at a rate that does not require some form of support is doubtful.”

20. One of the conditions of the current order is that Mr Brookes not associate with other sex offenders. In relation to this, Ms Roberts wrote:

“Mr Brookes has in the past aligned himself with another child sex offender and together they perpetrated a series of significant child sex offences against three abducted children.

If Mr Brookes was no longer supervised by way of an ESO there remains a risk of him forming inappropriate associations. While he has not shown any interest in maintaining any contacts with known sex offenders, he has yet to demonstrate any real capacity to make appropriate choices in forming friendships or contacts with pro social people either.”

21. Ms Roberts concluded her report as follows:

“If Mr Brookes was not given a further ESO there would be insufficient time to introduce and assess his behaviours unassisted in the community. Mr Brookes clearly requires an extended period to gradually progress him through the stages of supervision and ensure he was able to develop and entrench pro social behaviours whilst in the community.

In light of the above information it is recommended that a further Extended Supervision Order be sought.”

Assistance from a community support mental health service

22. The manager of the community support service who has been overseeing the services provided to Mr Brookes since October 2013 provided an affidavit in which he indicates that Mr Brookes has been seen twice daily for six days per week with appointments lasting up to three hours at a time. He has been assisted with developing independent living skills including meals, cleaning, shopping, medication management, attending social activities and being supported to all appointments.

23. The manager deposed that his organisation is prepared to remain engaged with Mr Brookes – provided the ESO is extended by the Court. For reasons which are provided and would not be appropriate to set out here, the continued involvement of this organisation with Mr Brookes, which has been quite clearly beneficial to him, would be in serious jeopardy if a further ESO was not made.    

Risk management plan

24. A risk management plan by Ms Roberts dated 14 September 2016 is before the Court. Ms Roberts has carefully considered the management of Mr Brookes within the community and her report provides support for the conditions that are proposed by the plaintiff if a supervision order is made.

Submission for the plaintiff

25. Detailed and helpful written submissions were provided by counsel for the plaintiff. They included that the following factors supported the making of an ESO:

●   The defendant’s prior history and pattern of offending

●   Lack of community support

●   Reduced degree of insight

●   Lack of ability to properly manage day to day living and medication schedules

●   Need for intensive community support

●   Ongoing mental health issues and fragility associated with poor nutritional habits and self-care

●   Some evidence of an apparent ongoing sexual interest in children despite anti libidinal medication

●   Consistent expert opinion that his issues will require long term management and supervision in the context of an assessed high risk of sexual reoffending

Conclusion

26. From my perusal of all of the material, I am satisfied that the matters relied upon by the plaintiff in the supporting documentation would, if proved, justify the making of an ESO.

26. As a consequence I must make the orders described in s 7(4) of the Act which I will do.

27. I am also satisfied that it is appropriate to make an interim supervision order pursuant to s 10A of the Act.

Orders

29. I make the following orders:

1.   Two qualified psychiatrists are to conduct separate psychiatric 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.

2.   The defendant is to attend those examinations.

3. Pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order from 11 December 2016 (“the interim supervision order”).

4. Pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days.

5. Pursuant to s 11 of the Act, the defendant, for the period of the interim supervision order, is to comply with the conditions set out in the Schedule attached to the Summons.

6.   An order permitting any reports prepared for the purposes of Order 1 to be provided, prior to the final hearing of the matter, and subject to the defendant’s consent, to the author of a risk assessment report or risk management report, or any other person providing an affidavit to the court in relation to the proceedings, for the purposes of providing comment about the proposed conditions or the term of the proposed ESO.

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Decision last updated: 10 November 2016