State of New South Wales v Burns
[2014] NSWSC 1014
•24 July 2014
Supreme Court
New South Wales
Medium Neutral Citation: State of New South Wales v Burns [2014] NSWSC 1014 Hearing dates: 24 July 2014 Decision date: 24 July 2014 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: The Court notes:
1. The undertaking proffered to the Court by the plaintiff, the State of New South Wales through Counsel that the Commissioner of Corrective Services will pay any cost relating to the electronic monitoring of the defendant, including the costs of installing, maintaining and operating the electronic monitoring equipment. And that, in the event that the Commissioner of Corrective Services does not pay such costs, the State of New South Wales undertakes that it will pay such costs.
The Court orders that:
2. Pursuant to s 5C(1) and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006, the defendant be subject to a high risk sex offender extended supervision order for a period of 5 years from 11 August 2014.
3. Pursuant to s 11 of the Act, directs that the defendant for the period of the extended supervision order, comply with the conditions in Schedule A to these Orders.
4. There be non-publication of the references in the reasons for decisions delivered on 24 July 2014, to:
i. Mr Burns' current residence and future residence; and
ii. the geographic location of Mr Burns' current residence and workplace.
5. No access be granted to any third party to the Court file in these proceedings without the parties first having an opportunity to be heard in relation to the granting of such access.
6. The plaintiff is permitted to provide the report of Dr Furst and Dr O'Dea in these proceedings to:
a) Mr Burns' treating psychologist/psychiatrist; and
b) Corrections officers and Community Justice Program staff involved in his supervision.
Catchwords: SEX OFFENDERS - application for an extended supervision order - long history of sexual and violent offences - orders made - no question of principle. Legislation Cited: - Child Welfare Act 1939 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 4, s 5, s 5B, s 5C, s 7, s 9, s 10, s 11
- Crimes (Sentencing Procedure) Act 1999, s 33Cases Cited: - State of New South Wales v Fisk [2013] NSWSC 364
- State of New South Wales v Ali [2010] NSWSC 1045Category: Principal judgment Parties: State of New South Wales (Plaintiff)
Clifford Keith Burns (Defendant)Representation: Counsel:
Ms S. Callan (Plaintiff)
M. Johnston (Defendant)
Solicitors:
I.V. Knight, Crown Solicitor (Plaintiff)
NSW Legal Aid (Defendant)
File Number(s): 2014/157699 Publication restriction: See order 4.
ex tempore Judgment
On 26 May 2014 the State filed its summons in this proceedings. It relevantly sought an order pursuant to s 5C and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the "Act") that Mr Burns be subject to a "high risk sex offender extended supervision order" ("ESO") for a period of five years from the date of the order, and that pursuant to s 11 of the Act he be directed for the period of the ESO to comply with various conditions set out in the schedule to the summons. I will return to address those conditions later in this judgment.
On 12 June 2014 this Court conducted a preliminary hearing and made orders, inter alia, appointing two psychiatrists to examine Mr Burns (see s 7(3) and (4)).
The Crimes (High Risk Offenders) Act 2006 (NSW)
I described the operation of the Act in State of New South Wales v Fisk [2013] NSWSC 364 ("Fisk") at [9] to [23]. I will not repeat that description, save for one matter. I will apply the principles there discussed. The one matter to note is that in Fisk at [23] I noted that the definition of "high risk sex offender" in s 5B(2) of the Act required the Court to be "satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision" and that ordinarily, where powers are conferred on the Court requiring it to be satisfied of a matter, the parties cannot by their consent confer on the Court a power to make such an order. In this case the making of an ESO premised upon a finding that Mr Burns is a "high risk sex offender" is not opposed. However, even if it was consented to, it is my view that the Court would still need to consider that matter for itself. I propose to do that.
Mr Burns' background and intellectual disability
Mr Burns was born 9 August 1959. He will shortly turn fifty-five. In her comprehensive submissions, counsel for the State, Ms Callan, addressed aspects of Mr Burns' personal history in considerable detail. I will briefly outline some aspects of it.
Mr Burns was the youngest of three children. It appears that he was raised in a household that was disrupted by alcohol and violence. The material that was tendered reveals that, as early as 1971, Mr Burns was being subjected to psychological assessments which included assessments of his IQ. The material indicates that he was again tested in 1972, 1977, 1979, 1981, 1983, 1986, 1992, 2002 and 2009. The results varied little and were all in the subnormal range. The most recent assessment of Mr Burns on the Wechsler Abbreviated Scale of Intelligence Test yielded an IQ result of 53, which placed his overall level of intellectual functioning in the lower extreme range, that is in the first percentile of the general population.
The material also indicates that in 1972 Mr Burns, then aged twelve, was declared an "uncontrollable child" under the Child Welfare Act1939 (NSW). He was committed to the care and control of the relevant Minister. It seems that soon after he commenced living at a facility to house intellectually disabled boys. Both his parents died shortly afterwards.
Mr Burns' offences (s 9(3)(h) and (h1))
Mr Burns has a significant criminal history, commencing when he was convicted in 1976 of stealing and motor vehicle offences. Thereafter there followed a steady stream of stealing offences with some instances of violence. I will outline the offences that are of particular significance to this application.
On 18 November 1976 Mr Burns was charged with indecent assault upon a six-year-old girl. In brief it seems that he led the girl and her cousin from a bus stop to the rear of some nearby shops, pulled down the victim's underpants, got on top of her and placed his tongue inside her mouth. He then left. It seems that Mr Burns did not initially appear before the Court but a warrant was issued. He ultimately appeared before a Children's Court to face a charge of, inter alia, indecent assault. The sentence imposed is recorded as him being "committed to an institution until 18 years".
From this time until 1990 Mr Burns was convicted of six sets of offences, the most serious of which I can discern were assault and break, enter and steal.
On 12 February 1990 Mr Burns committed the offences of assault occasioning actual bodily harm and sexual intercourse without consent. It seems that the victim of that offence was a student aged seventeen who had fallen asleep at Kings Cross. Mr Burns struck the victim over the head with a bottle. He attempted to impose himself upon her although the victim continued to resist. Mr Burns threatened her with a bottle and unbuttoned her jeans, lay on top of her and inserted his erect penis into her vagina. The police attended shortly afterwards. Mr Burns struggled with both police officers before being subdued and arrested.
On 22 September 1992 Mr Burns was sentenced in the District Court on a charge of having sexual intercourse without consent to a minimum term of two years with an additional eight months imprisonment, and on a charge of assault occasioning actual bodily harm to a minimum term of one year with an additional four months imprisonment. Both sentences were made concurrent.
Mr Burns committed four other sets of offences from November 1990 to January 1998. They included an offence of escape lawful custody committed on 31 December 1992. For that he was sentenced to a further term of three months imprisonment commencing 7 January 1994.
On 25 February 1999 Mr Burns was convicted in the District Court of two offences that were committed on or between 5 July 1998 and 10 July 1998. The two offences were assault occasioning actual bodily harm and aggravated indecent assault, the circumstance of aggravation being that the victim had a physical disability. The victim of the offence was an elderly lady who had previously sustained a stroke which left her disabled on the left side of her body. She was unable to use her left hand and arm. She had apparently met Mr Burns several years previously through a nearby church where she worked.
It seems that on 5 July 1998 the victim met Mr Burns. He asked to stay at her house that night and she agreed. He stayed for two nights. He is said to have returned on 10 July 1998. Once inside the victim's house he began massaging the victim's shoulder and then grabbed both her breasts. When she protested he punched her in the face and pushed her to the head and pulled down her jeans. He punched her a number of times in the face and left the premises. The victim was taken to a hospital and received stitches about her left eye and right eyebrow. There is no doubt she was deeply shocked and distressed by the incident.
The sentencing judge observed that Mr Burns' alcohol dependency and mental state had to some extent mitigated the objective seriousness of the offences. Nevertheless Mr Burns was sentenced to a minimum term of twelve months imprisonment, and an additional term of two years in respect of the offence of assault occasioning actual bodily harm. In respect of the charge of acting indecently, Mr Burns was sentenced to one year imprisonment which was to be served concurrently. Mr Burns was eligible for release on parole for these offences on 10 July 1999 and the overall term expired on 10 July 2001.
On 24 October 2002 Mr Burns was convicted of maliciously inflicting grievous bodily harm. Again his victim was an elderly woman who had befriended him if only for a brief period in a pub. It seems that Mr Burns had walked to the victim's home with her. He barged his way into the house. The victim had no recollection of what happened after this but she was later found lying naked on the floor, unconscious and bleeding from head injuries. The victim remained in a coma for several days during which she also suffered a heart attack. When she regained consciousness the victim had to re-learn how to walk and feed herself. Ultimately the victim sustained memory loss and brain damage causing paraesthesia in one of her fingers, weakness in her right hand and involuntary movements in the right leg which caused her to have difficulty walking. Mr Burns had at some point explained that the offence arose after he consumed a considerable amount of alcohol.
Mr Burns was sentenced in the District Court to a term of seven years imprisonment commencing 31 May 2001 and expiring 30 May 2008, with a non-parole period of five years expiring on 30 May 2006. The sentencing judge noted that the assault was very serious given the high level of violence involved.
On 7 May 2009 Mr Burns was convicted in the District Court of one offence of sexual intercourse without consent. Another offence of assault occasioning actual bodily harm was taken into account on a Form 1 (see s 33 of the Crimes (Sentencing Procedure) Act 1999). Once again the victim was a woman whom Mr Burns had befriended at a pub. Both Mr Burns and the victim had consumed a considerable amount of alcohol. While at the pub Mr Burns had placed his hand up the back of the victim's shirt and unclasped her bra and bikini top strings. He told the victim to pull her arms inside her jumper, which she did. Mr Burns removed her bra and bikini and reached inside her jumper and touched her left breast. The victim told him to stop. She leant forward towards the table feeling sick. The victim felt Mr Burns put his hands down a gap in the back of her pants and insert two fingers into her vagina. She sat up again and told him not to do that. The victim and Mr Burns then left the pub. They walked to a nearby park. At this point Mr Burns punched the victim in the head and face several times. When she fell to the ground he continued to kick her and punch her. Her screams for help were heard by a passer-by who came to her assistance.
Mr Burns was later arrested. In an electronically recorded interview he made admissions about "smacking [the victim] about", fondling her breasts, and inserting his fingers into her vagina. Again, the material before the sentencing judge indicated that Mr Burns had consumed a large amount of alcohol before the offences were committed. The sentencing judge described the offence as very serious. Further, the sentencing judge also identified the troubling feature that Mr Burns had previous convictions, including convictions of a sexual nature. The sentencing judge noted that the offence was not premeditated, that both Mr Burns and the victim had consumed a large amount of alcohol, and that Mr Burns expressed remorse. Of particular significance is the observation of the sentencing judge that, in light of Mr Burns' criminal history, his prospects of rehabilitation were remote.
Mr Burns was sentenced to a total of six years imprisonment to date from 12 August 2008 with a non-parole period of four and a half years expiring 11 February 2013. It is for this offence which Mr Burns is currently serving a sentence, although he has now been released on parole.
Mr Burns' compliance with parole obligations (s 9(3)(f))
A review of Mr Burns' criminal history reveals repeated non-compliances on his part with his bail conditions. Further, he has a reasonably significant history of committing offences while on parole and in a number of respects has failed to comply with his parole conditions. For example, I have already noted his conviction for escaping lawful custody. Further he committed the offence in May 2001 of maliciously inflicting grievous bodily harm while on parole for the offences committed in July 1998. On 19 June 2001 the Parole Board revoked Mr Burns' parole for those offences. A report was provided to the Parole Board shortly prior to their decision which referred to his being charged for the May 2001 offences, but also noted that he had been uncooperative and engaged in threatening behaviour while he was on parole.
On 21 June 2007 Mr Burns was released on parole for the offence of maliciously inflicting grievous bodily harm. Initially he was subject to close supervision, but he failed to report to the parole service on 1 August 2007. His parole order was revoked on 3 August 2007. Mr Burns then remained in custody until his sentence expired on 31 May 2008. He committed the most recent offence ten weeks after he was released. He was eligible for release in respect of that offence on 11 February 2013 and was released to parole on 24 April 2013. However his parole was revoked on 31 May 2013 and he was returned to custody on 5 June 2013. The Correctional Service material concerning his period on release reveals that Mr Burns had difficulty controlling his emotions and he ultimately left a Community Offender Support Program ("COSP") facility without permission.
In November 2013 Mr Burns was accepted into the Community Justice Program ("CJP"). This is a government initiative targeted at people with intellectual disabilities who have had difficulties with the criminal justice system. The CJP runs an intensive residential facility called xxx. It provides on-site supervision for twenty-four hours a day seven days a week, as well as escorts for residents while they are in the community. The facility is located in a rural setting outside of xxx. Mr Burns was released again on parole on 7 January 2014 and commenced living at xxx. He has lived in that facility since then.
Generally Mr Burns has received positive reports from the supervising officer at Correctional Services since his release, and has generally adapted to his living arrangements at xxx. He has had weekly contact with his Corrections Officer, Mr Johns, fortnightly contact with a Corrections Services psychologist, and attends Alcoholics Anonymous twice a week. In June 2014 Mr Burns secured a job working at a car wash in xxx.
It seems that part of the supervision under the CJP and by Corrections Services involves there being "line of sight" supervision of Mr Burns. In July 2014 this level of supervision was reduced to some degree, in that he was able to attend his approved employment and able to travel to meet his Correctional Services Officer unescorted. Apparently this totals six and a half hours per week of unsupervised time.
Mr Burns' participation and treatment in rehabilitation programmes (s (9)3(e))
Whilst he was in custody for the offences committed in May 2001 Mr Burns was offered the opportunity to attend a "life skills" group run by a female member of staff to address his negative attitude to women. Mr Burns declined. Otherwise, during his period of custody Mr Burns was assessed as unsuitable to attend a variety of programmes for sex offenders, principally because of his intellectual disability.
When Mr Burns returned to custody after he committed an offence in 2008, he signed consents expressing his willingness to participate in a number of rehabilitation programmes. One of those programmes was the Sexual Offenders Preparatory Group ("PREP"), which is a 14-week group programme whereby offenders are informed about and are motivated to attend treatment. However, this was not pursued because in December 2010 Mr Burns became agitated and confrontational towards a female staff member in relation to his entry to the programme. This led to an institutional misconduct punishment.
Another such programme was a "self-regulation programme for sexual offenders" ("SRP"), which is a residential therapy programme for men who have sexually abused adults and/or children and who have an intellectual disability. Mr Burns participated in that programme, which was coordinated by Ms Celia Langton, specialist psychologist, between 6 June 2011 and 24 January 2013. Ms Langton reports that at the outset Mr Burns did not engage in sessions for several months due to fear of losing control when expressing his emotions. However, as I will explain further, Ms Langton states that his performance in the programme generally improved as time passed.
Psychiatric or psychological assessments and additional and other assessments of likelihood of committing offences
Ms Callan's submissions comprehensively surveyed all of the available psychiatric and psychological reports concerning Mr Burns. As is to be expected there are a significant number of such reports prepared in relation to Mr Burns for his sentencing in 1992, 1999 and 2002. Not surprisingly, the reports identified Mr Burns' risk factors, including his deprived background, intellectual disability, his lack of insight and his alcohol dependence. Again, and as is to be expected, as his offending behaviour continued, the identification of these risk factors ultimately led to very guarded assessments of his prospects of re-offending being proffered. Thus, for example, in a report dated 18 October 2002 provided to Mr Burns' solicitors Dr Westmore stated:
"I understand he had a past history of acting aggressively and it is likely that his aggressive behaviour arises as a result of a combination of factors, including his intellectual disability, his social and sexual limitations and certain specific circumstances including possible alcohol consumption and possible sexual rejection. It is possible that he had some dysfunctional features to his personality or a personality disorder with antisocial traits.
It is of some concern that such a serious matter has occurred at the age of forty-four in this man. Generally, individuals with personality difficulties of an antisocial type are tending to show signs of settling with advancing years."
Similarly, a psychologist's report dated 5 May 2009 reported Mr Burns as stating:
"[Mr Burns] reported a history of difficulties in interacting with women. He stated he is not able to be in the presence of women without experiencing deviant thoughts and worrying about his self control."
I referred earlier to Ms Langton's role with Mr Burns in relation to the SRP programme. Ms Langton prepared a report dated 30 January 2013. In her report Ms Langton analysed Mr Burns' pattern of offending and stated as follows:
"Mr Burns' offences have occurred with known women. He views most female friends as potential sexual partners, and places a high importance on sexual activity as a means of gaining intimacy. When intoxicated, he has followed through on his urges and attempts to gain intimacy, which has been met with resistance from the women. Mr Burns viewed this sexual rejection as a general rejection of him as a person, and therefore as a catastrophic event. He ruminated on these negative thoughts of himself and the women, leading to feelings of humiliation, desperation and anger. He would then physically assault the women.
Should Mr Burns re-offend it is likely to occur in the context of attempted intimacy and sexual rejection from a known woman. ,,, His offences have tended to be impulsive rather than planned. ... He will likely be heavily intoxicated, leading to disinhibition. ... It is also possible that Mr Burns may offend opportunistically against a female in a sudden attack, however this scenario is less probable and would likely follow intense feelings of stress, helplessness and sexual arousal. His warning signs would likely be much more evident in a situation such as this, meaning that intervention should be possible prior to Mr Burns' reaching such an intensity in his self-appraisals."
Ms Langton described Mr Burns' performance in the SRP programme. As I have indicated, initially she considered that his participation was problematic. It was said to be punctuated by outbursts, but she considered that as time progressed he became more comfortable participating in group discussions. She characterised this as a "major treatment gain". She said that by the end of treatment he was able to return to the treatment room after five minutes in circumstances where he became upset and apologised for his behaviour and participated in the rest of the session.
Ms Langton also stated:
"Taking into account both static and dynamic risk factors, the risk rating of moderate-high on the STATIC-99R is considered as under-representing Mr Burns' current risk. Mr Burns has made gains in his coping, relationships, self-efficacy and self-awareness. His engagement in group sessions, ability to manage his emotions, and level of tension have improved since he started treatment. However, he has a number of important outstanding dynamic risk factors, and without intensive support in the community he may experience difficulty maintaining the gains he has made in treatment. His trauma-related symptoms combined with features of his intellectual disability have prevented him from participating fully in treatment."
The reference to "STATIC-99R" is to the method of assessing potential recidivism for sexual offenders, that I described in Fisk at [65]. The statement by Ms Langton that the results had under-represented Mr Burns' current risk was a reference to a score that he had achieved on that assessment of 5, which placed him in the medium to high risk category relative to other male sexual offenders.
Ms Kathleen Harle, a registered psychologist employed by the Department of Corrective Services, prepared a psychological risk assessment concerning Mr Burns dated 7 April 2014. Ms Harle assessed Mr Burns on the STATIC-99R scale, or at least according to its methodology. This assessment yielded a score of 9, which placed Mr Burns in the high risk category relative to other male sexual offenders. Ms Harle acknowledged that Mr Burns had previously been scored as a 5 on the STATIC-99R scale, but she explained that she had additional information and otherwise noted the limitations on that method of assessment. In any event, I have already noted that Ms Langton's view was that the earlier STATIC-99R result had understated the level of risk posed by Mr Burns. Ms Harle also considered the so called "dynamic risk" presented by Mr Burns using the Risk of Sexual Violence Protocol ("RSVP"), which comprises 22 dynamic risk factors.
Ms Harle noted that Mr Burns' sexual violence is chronic in terms of persistence and early onset, and it has the degree of diversity in terms of the victim's age and his dealings and past relationship with the victim. She noted that Mr Burns displayed significant problems of self-awareness and insight. He had problems with social adjustment. Otherwise she noted that he had difficulties in identifying goals, delaying gratification and was otherwise impulsive.
Ms Harle concluded that the circumstances in which Mr Burns might re-offend were likely to be relatively opportunistic, evolving from an encounter with a "stranger victim" who was likely to be an adult female and vulnerable either as a result of their age, intoxication, mental health or intellectual disability. Such an offence was likely to involve sexual touching and most likely to be accompanied by physical violence. All of this was most likely to occur when Mr Burns was under the influence of alcohol. This analysis is consistent with that of Ms Langton and is consistent with Mr Burns' pattern of offending.
In the affidavit accompanying her report Ms Harle concluded that the "RSVP" protocol suggested that Mr Burns presented a high risk of committing further offences. Further, her overall assessment was that he presented an "overall high risk" of sexual offending relative to other male sexual offenders. She added that "in this respect the phrase 'high' includes the top end of spectrum of risk". Otherwise Ms Harle emphasised the importance of effective supervising and monitoring in relation to Mr Burns.
Reports under s 7(4) (s 9(3)(b))
As contemplated by the Court's orders made pursuant to s 7(4), reports were provided by two forensic psychiatrists, Dr Richard Furst and Dr Jeremy O'Dea.
Dr Furst interviewed Mr Burns on 7 July 2014. He also interviewed Mr Burns' case worker and reviewed an extensive amount of documentation. This included the reports that I have referred to above.
Dr Furst considered that Mr Burns had a substance abuse disorder, had acquired a head injury in childhood and an intellectual disability, antisocial personality traits and likely paraphilia. Dr Furst assessed Mr Burns as having a score of 9 out of 12 on the STATIC-99R "instrument" which, according to Dr Furst:
"[I]ndicates that Mr Burns belongs to a group of individuals considered High Risk over the long term of committing a further sexual or non-sexual violent offence."
Overall Dr Furst considered Mr Burns had a high risk of committing a further serious sexual offence. He also considered that such a risk could be managed by his being in the community and supervised pursuant to an ESO. Generally Dr Furst considered that the conditions suggested by the State and the proposed period of the ESO, namely five years, was appropriate. Dr Furst suggested that consideration be given to the administration of anti-libidinal medication and anti-alcohol craving medication.
Dr O'Dea interviewed Mr Burns for a period of one and a half hours and reviewed the available documentation. Dr O'Dea did not diagnose Mr Burns as suffering from a major psychiatric illness. However, he considered he had a mild intellectual impairment. Dr O'Dea considered that Mr Burns' history of sexual violent offending "points to specific problems for sexual deviance", but considered that they "may be better understood as related to disinhibition of his sex drive whilst intoxicated with alcohol, or at other times, and in the context of his intellectual impairment, rather than as in direct response to his specific and strong sexual deviant (paraphilic) urges or fantasies". He considered that Mr Burns' condition may be better characterised as a "general Paraphilic Disorder rather than any specific Paraphilic Disorder".
Ultimately Dr O'Dea concluded:
"With this in mind, from a full clinical psychiatric risk management perspective, and as judged by various actuarial and more so called dynamic risk assessment instruments, Mr Burns' risk of engaging in further sex offending behaviours, and of committing a further serious sex offence, in the community in the long term, would be considered significantly high and appropriate for specific psychiatric treatment as outlined above."
Dr O'Dea also considered that the risk posed by Mr Burns was likely to be a long term one, thus justifying a period of supervision for five years.
Other available information concerning the likelihood of commission of further sexual offences (subs (9)(3)(i))
Notwithstanding aspects of his history that I have already noted, Ms Callan fairly submitted that overall Mr Burns responds to "well structured environments". I am not satisfied that this is generally the case but Ms Harle's and Ms Langton's reports suggest that that is the case, at least in recent years.
Ms Callan also submitted that Mr Burns' history of alcohol and gambling was relevant to his commission of offences. I am somewhat doubtful about the relevance of gambling, but clearly there is a link between his alcohol consumption and his re-offending. This link heightens the risk of re-offending but it also provides some comfort that, if he is supervised in a manner that reduces or eliminates his alcohol consumption, the risk can be mitigated, at least to some extent.
Ms Callan also noted that Mr Burns has been living at the facility at xxx, which is highly regulated. She also noted the concern about proposals to have him live in a less restrictive facility in xxx. I will return to address this.
Reasonable and practical management of Mr Burns in the community (s 9(3)(d1))
The State tendered a Risk Management Report concerning Mr Burns dated 22 April 2014. The report outlined a risk management plan concerning Mr Burns. It was authored by two officers from Community Corrections. The plan involves Mr Burns engaging in face to face interviews on a weekly basis at a minimum, as well as being subjected to unannounced home and field visits. The report noted that Mr Burns currently receives 24 hour supervision under the CJP programme. However, it also proposed electronic monitoring and the provision of a schedule of proposed movements by Mr Burns. The report proposes that any ESO that is made include conditions prohibiting alcohol and drug consumption, and allow supervision by a programme of regular testing. The report also anticipates that directions be given requiring Mr Burns to attend any suitable drug and alcohol rehabilitation programme. The report appeared to contemplate the continuing accommodation of Mr Burns at xxx, although, as I have indicated, the possibility of him being transferred to a less restrictive facility in xxx has been raised.
An affidavit from a Correctional Services Officer, Mr Yeomans, states that there is a problem with the full-time implementation of electronic monitoring in the xxx area. As I understand the position, the overall result is that at present it is not possible to implement Global Positioning System ("GPS") monitoring on Mr Burns' movement in the community. Instead it is possible to install a device at his residence, which would at least monitor compliance with any curfew conditions.
Ms Callan also read an affidavit from a Senior Community Corrections Officer, Mr Phillip Johns, outlining the approach that he anticipates will be adopted to the supervision of Mr Burns under an ESO. The only matter I need note is that Mr Johns has concerns about a change in Mr Burns' accommodation from xxx to xxx that I have mentioned earlier. He nevertheless outlines various steps he proposes to take to mitigate any increased risk that might arise from such a change. I also note that Mr Johns describes the increased level of supervision of Mr Burns that will be undertaken if electronic monitoring in the xxx area is not to be implemented, as appears likely.
Safety of the community (s 9(3)(a))
The overall effect of the material is that there has been a consistent pattern of the assessment of Mr Burns' risk of re-offending as being high. Those opinions, his history of offending, his history of alcohol problems and his intellectual deficits coalesce to overwhelmingly satisfy me that he does present such a risk. I will shortly address the test in s 5B. I simply note at this point that I have no doubt that the making of an ESO is warranted.
Further, I otherwise note that in the recent period, the risks imposed by Mr Burns have been mitigated by his being accommodated in the highly regulated environment at xxx. Thus at present the risk to the safety of the community posed by Mr Burns is being managed.
The making of an Extended Supervision Order
There is no doubt that Mr Burns is an "offender" for the purposes of s 5B(1) and 5B(2) (see the definition of "offender", "sex offender" and "serious sex offence" in s 4 and s 5). Further, I am satisfied that he is a "high risk sex offender". In particular, I am satisfied to a high degree of probability that Mr Burns poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.
I have already described the level of risk that he has been assessed as presenting. If left in an unsupervised and unstructured environment, the material overwhelmingly satisfies me that it is highly likely that Mr Burns will commit some further sex offence and in particular a "serious sex offence" in the future. That risk is clearly unacceptable. Such a judgment is informed by both the level of risk and the consequences if the risk materialises. In this case, as in similar such cases, the consequences for a putative victim, their family and the wider community can be severe.
Accordingly, having regard to those findings and the matters in s 9(3) which I have addressed, I am satisfied that the pre-conditions to the making of an ESO have been made.
Section 5C(1) is expressed in terms of a discretion. It is difficult to conceive of a case in which an offender meets the test for being a "high risk sex offender", but nevertheless the Court in the exercise of its discretion declines to make an order. It is not necessary to speculate about that further because this is certainly not such a case. There is, in my view, an overwhelming case for the making of an ESO. Further, having regard to the long term nature of the risk presented by Mr Burns that I have outlined, the appropriate period for such an order in my view should be the maximum one, namely, five years (see s 10(1A)(a)).
Conditions
Schedule A to the summons filed by the State contained an extensive list of conditions that the State sought for inclusion in the ESO pursuant to s 11 of the Act. Those conditions addressed reporting and monitoring obligations, accommodation, place and travel restrictions, employment, finance and education, non-associations, access to the Internet, access to pornographic, violent and classified material, access to weapons, alcohol and drugs, gambling, search and seizure, personal details and events, medical intervention, treatment obligations and, finally, disclosure of information.
In determining whether it is appropriate to include a particular condition, it is necessary to have regard to the fact that the effect of their inclusion is to expose the relevant offender, in this case Mr Burns, to criminal sanctions if they are breached. It follows that a proper basis needs to be demonstrated for including the conditions in the first place (see State of New South Wales v Ali [2010] NSWSC 1045 at [88] per Johnson J). Usually it will be necessary for such a condition to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender as a high risk sex offender.
I have reviewed the conditions that were ultimately sought by the State in its revised form of order, and I am satisfied that they meet the above test. It is necessary, however, for me to make some comments to clarify that position.
The ultimate form of order that was handed up by the State was modified following some focussed submissions made on behalf of counsel for Mr Burns, Mr Johnston. Thus Part E, which deals with non-associations, had originally included proposed clauses 8 to 10, which affected Mr Burns' ability to interact with persons who were described or defined as "vulnerable persons", that is, persons who were at risk of victimisation due to mental status, disability or incapacity. There is no doubt that conditions which are designed to reduce or even eliminate interactions between persons who are so vulnerable, or at least female persons who are so vulnerable, and Mr Burns are desirable. The principal problem raised by Mr Johnston with those conditions was that, as formulated, they required Mr Burns himself to form an opinion as to whether a particular adult was "at risk of victimisation due to mental status, disability or incapacity". In light of his own intellectual deficits, that exercise would be very difficult for him to undertake. It was submitted it was oppressive for him to be exposed to a criminal sanction for contravening them.
Ultimately the State did not press conditions 8 to 10 in Part E, although it did seek to retain the definition of vulnerable person as being "any adult who is at risk of victimisation due to mental status, disability or incapacity". Other non-association conditions incorporate that definition, although those conditions require a departmental officer to apply that test rather than Mr Burns. Otherwise it should be noted that the balance of the conditions, in my view, give ample power to the Department to give clear directions to Mr Burns concerning whom he may associate with and whom he may not.
One matter that was raised by Mr Johnston concerned condition 1 in Part G which relates to access to pornographic, violent and classified material. As phrased, the condition restricts Mr Burns from accessing material which meets the following classifications:
"Refuse classification, X18+, R18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the Departmental supervising officer."
Mr Johnston's concern was that material that fell within classification "R18+" was potentially available on free to air television, or perhaps on pay television, and the result is that Mr Burns could accidentally be exposed to such material and breach the condition. It was, however, clarified that material which is "R18+" is not available, at least on free to air television and presumably on pay television. Instead such material is modified to obtain an "R" rating and is thus broadcast.
The only other matter to note about the conditions concerns electronic monitoring. The proposed conditions include a power to require Mr Burns to wear electronic monitoring equipment if directed by the relevant Departmental supervising officer. The current position is, as I have indicated, that there are some technical difficulties in implementing that in xxx. However, the possibility that they may be overcome of course exists. For reasons that I have already outlined, it is clear that if electronic monitoring is available, then the relevant officer should have the power to require Mr Burns to wear such devices.
The concern raised by Mr Johnston, however, relates to the cost of that exercise. He sought the provision of an undertaking from the State that that cost would be borne by it or by the Commissioner of Corrective Services. The undertaking is proffered, and I will note that in the orders I am to make shortly.
Accordingly, the Court notes the undertaking proffered to the Court by the State of New South Wales through its counsel that the Commissioner of Corrective Services will pay for any costs relating to the electronic monitoring of the defendant, including the costs of installing, maintaining and operating the electronic monitoring equipment and that, in the event the Commissioner of Corrective Services does not pay such costs, the State of New South Wales will pay such costs.
The Court will make orders in accordance with the order handed to me by counsel for the State, signed by me, dated today and placed with the papers, including the conditions that have been initialled and amended by me and annexed to the order.
[A non-publication order concerning the location of Mr Burns' work and residence was also sought.]
Having regard to the potential for reprisals and the evidence concerning the need to promote Mr Burns' rehabilitation, I am satisfied that the making of a non-publication order in respect of material identifying the whereabouts of Mr Burns is justified.
Accordingly, I will make orders 3 and 4 in the handwritten note and I will otherwise make order 5. That will be signed, initialled by me and placed with the papers.
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Decision last updated: 07 August 2014
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