State of New South Wales v Conway

[2011] NSWSC 925

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Garry Allan Conway [2011] NSWSC 925
Hearing dates:	18 July 2011, 20 July 2011
Decision date:	11 August 2011
Jurisdiction:	Common Law
Before:	Hidden J
Decision:	Extended supervision order made
Catchwords:	SERIOUS SEX OFFENDER - application for extended supervision order - issues only as to duration of order and terms of proposed conditions
Legislation Cited:	Crimes (Serious Sex Offenders) Act 2006
Cases Cited:	Conway v R [2010] NSWCCA 31 State of New South Wales v Manners [2008] NSWSC 1376
Category:	Principal judgment
Parties:	State of New South Wales (plaintiff) Garry Allan Conway (defendant)
Representation:	Barristers Ms S Callan (plaintiff) Mr P Johnson (defendant) Solicitors I V Knight - Crown Solicitor for State of NSW (plaintiff) S E O'Connor - Solicitor for Legal Aid Commission (defendant)
File Number(s):	2011/108814

Judgment

1. The plaintiff, the State of New South Wales, seeks an extended supervision order under s 9(1) of the Crimes (Serious Sex Offenders) Act 2006 against the defendant, Garry Allan Conway. I received and considered a large volume of evidence on the application but, given the manner in which it has been approached by the parties, it is not necessary to recite it in any detail.

1. The defendant's criminal history includes convictions for sexual offences, committed against female victims aged 19 years or younger, on three occasions. On each occasion he was sentenced to substantial terms of imprisonment.

1. On the first occasion, in March 1984, he was convicted of breaking and entering with intent to commit a felony, being sexual assault, and of sexual intercourse without consent. The offences arose from an incident late at night in December 1982, when he broke into a house on the central coast where the victim, who was 16, was babysitting overnight. It seems that he had had contact with her earlier that day and knew that she would be there. He found her in a bedroom and had forcible penile/vaginal intercourse with her. He pleaded guilty to the two charges.

1. He later gave, and has since maintained, an explanation of the offences which is, to say the least, implausible. He was working at the time as the doorman at a massage parlour. He claimed that a prostitute at the parlour had invited him to have intercourse with her. He said that the offences occurred at her home, that he had been drinking, that he climbed through the window and assumed that she was the person in the bedroom. It was only when he forced himself upon the victim that he realised his mistake.

1. On the second occasion, in June 1997, he was convicted of two offences against his daughter and a third offence against a girl, a friend of his daughter, who was a State ward and who was temporarily living with them. The offences against his daughter were part of a pattern of offending extending over some years. Both offences were forced penile/vaginal intercourse. The first, sexual intercourse with a child under 16 by a person in authority, was committed in 1987, when she was 10 years old. At that time he was on parole in respect of the sentences for the first set of convictions. The second offence, carnal knowledge of his daughter, occurred in 1996, when she was 19. This led to her becoming pregnant, and she gave birth to the child.

1. The third offence, committed against the girl who was a State ward, was also committed in 1996. It was sexual intercourse without consent, occasioned by his inserting his finger into her vagina when she was intoxicated and had fallen asleep. She was then 15. Two further offences against her, of indecent assault, were taken into account on a Form 1. To all three offences on the indictment he again pleaded guilty.

1. On the third occasion, in February 2008, he was convicted after a trial of aggravated sexual assault and aggravated indecent assault, the circumstance of aggravation in each case being the age of the victim. She was the 12 year old daughter of a woman with whom he had begun a sexual relationship in September 2006. The offences occurred later in that year. He approached the victim when she was in the bath, rubbed her breasts and used his fingers to open her labia. He appealed unsuccessfully against these convictions: Conway v R [2010] NSWCCA 31. He has continued to maintain his innocence of the offences.

1. In respect of those offences he became eligible for release on parole on 17 June 2009. However, as he had not undergone sex offender treatment because he maintained that he was not guilty of the offences, he did not press for it. In any event, the State Parole Authority decided not to release him because of his perceived risk of re-offending, his need to address his sex offending behaviour, and the lack of confirmed post-release accommodation. The sentences expired on 18 June 2011. For that reason I made an interim supervision order under s 8 of the Act and that order was renewed by Schmidt J.

1. The defendant is now 54 years old. He was brought up in the south western area of Sydney, leaving school at the age of 14. To the two psychiatrists who examined him for the purpose of these proceedings he described a difficult childhood. He said his father was an alcoholic and his mother was violent towards him. He left home around the age of 15, and he described an occasion when he was sexually abused by an older man.

1. He married at the age of 19 and the relationship endured for over 20 years. However, he had affairs with various women on several occasions, as well as sometimes engaging the services of prostitutes. The marriage ended, as I understand it, when his sexual abuse of his daughter came to light. He has had no contact with his children for some years. He is not currently in an intimate relationship.

1. He underwent some treatment for his sexual offending from 1996 to 2001. In 1996-97, while at liberty, he received counselling from a psychologist. He returned to custody in June 1997 following his conviction of the second set of offences. Between 1998 and 2001 he undertook the Sex Offender Re-directional Training (SORT) program, in which he appeared to make some progress. However, he was noted to have a distorted attitude towards women, difficulty in expressing victim empathy, a "victim stance" concerning his offences, and the use of religiosity to reduce his sense of responsibility for them.

1. He discharged himself from the program in 2001. A senior psychologist, Dr Blake, observed in a report that he was a "rather rigid and intransigent" person, who tended to avoid confrontation in relation to his crimes, that he had a "rather rudimentary" understanding of his offending, and that that offending involved "poor self-image and misdirected anger", using sex as a means of feeling more adequate and leading to "masturbatory 'virgin fantasies'." Dr Blake noted that he had made efforts towards treatment, but concluded that he needed a more extensive regime such as the Custody Based Intensive Treatment (CUBIT) program. However, he was not prepared to participate in any further treatment.

1. After his release on parole in June 2003, arrangements were made for him to consult a psychiatrist, Dr O'Dea. However, after an initial session with that doctor later that year he did not return and did not pursue treatment. As I have said, after his return to custody at the end of 2006 in relation to the offences the subject of the third set of convictions, he refused any treatment because he maintained his innocence of those offences.

1. Of the many reports generated over the years which are in evidence, it is sufficient to refer to those of Mr Patrick Sheehan, psychologist and Dr Anthony Samuels and Dr Stephen Allnutt, psychiatrists. Their reports were prepared for the purpose of these proceedings. Each of them consulted with the defendant earlier this year and had regard to a volume of background material, comprehensively summarised in their reports.

1. The three experts have arrived at the same conclusions about the defendant. His intelligence is within the low-average to average range. He does not suffer from any major psychiatric illness. However, his sexual interest in young girls meets the criteria for paedophilia. He has a history of the use of alcohol and cannabis, which was associated with the offences the subject of the first and second sets of convictions. On actuarial assessment, having regard to static and dynamic risk factors, there was found to be a moderate to high risk of his re-offending.

1. For present purposes, it is sufficient to refer to the view of Dr Allnutt, which is to the same effect as that of the other two experts. Among other things, Dr Allnutt said of the defendant:

"In my view, he has ongoing problems with self-awareness in that I do not believe he has adequate appreciation of his deficits in his knowledge about his sexuality; he has not yet demonstrated an adequate understanding of his underlying proclivity to sexual offending.

...

In my opinion there is a significant risk of future serious sexual offending involving both pre-pubertal and post-pubertal girls under age 16, in circumstances where he has unsupervised access to them; his risk is increased when he is using substances as this likely disinhibits him; he is at ongoing risk of engaging in touching behaviour, digital penetration and sexual intercourse; this risk extends to girls within and outside his family and could involve a degree of physical coercion as well as the grooming of parents of girls to secure access; and that this could occur even while under legal supervision."

1. Dr Samuels and Dr Allnutt considered the conditions of an extended supervision order proposed by the State, and found them generally to be suitable. I shall turn to those shortly.

1. There is no doubt that the defendant is a "sex offender", as defined in s 4 of the Crimes (Serious Sex Offenders) Act , having been sentenced to imprisonment more than once following his convictions for offences amounting to a "serious sex offence", as that expression is defined in s 5. By s 9(2), I may make an extended supervision order if I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. It is not necessary in this case to examine the authorities on that subsection. Having examined the material which has been placed before me, I am satisfied that its terms are met. Counsel for the defendant, Mr Johnson, did not put any submission to the contrary. He did not oppose an order being made, and I am satisfied that it should.

1. Moreover, subject to the exceptions to which I shall refer, Mr Johnson did not argue against the conditions of the order proposed by the State. Those conditions would place the defendant under the supervision of the Community Compliance and Monitoring Group (CC&MG) and, where appropriate, the Probation and Parole Service. The conditions would govern:

• reporting to his departmental supervising officer and the monitoring of his movements;
• accommodation, including initial residence at a Community Offenders Support Program (COSP) centre;
• departmental approval of any employment he might undertake;
• prohibition of the consumption of, or access to, alcohol or illicit drugs;
• supervision of his relationships and associations;
• non-association with children;
• prevention of his access to pornography (including via the internet);
• requirements as to his personal details and appearance;
• obligations to undergo treatment;
• supervision of his access to counselling or support groups;
• requirements of disclosure of information.

Provision is also made for departmental review of these conditions from time to time.

1. In accepting that an extended supervision order should be made, I have had regard to the matters referred to in s 9(3) of the Act. There is no need to set them out. However, I should record that, in accordance with par (d1) of that subsection, I have had regard to material from Corrective Services NSW, of which CC&MG is a specialised unit, establishing that the defendant can reasonably and practicably be managed in the community. The unit can afford him the long term, specialised supervision and support which he clearly needs upon his release after a lengthy prison term.

1. The only area of contention between the parties is the duration of the order, although Mr Johnson also seeks clarification or modification of a few of the proposed conditions.

Duration of order

1. By s 10(1A) of the Act , the maximum period of an extended supervision order is 5 years. The State seeks that period. Mr Johnson submitted that it should be 3 years. In his report, Mr Sheehan observed that the defendant's history "suggests that were he to re-offend, it may occur within 3 years of release." However, counsel for the State, Ms Callan, relied on the views of Dr Samuels and Dr Allnutt.

1. Addressing this question in his report, Dr Samuels wrote:

"I would favour a longer duration order as at this stage I can see no clear reason why Mr Conway's risk status is likely to substantially change in the course of the next 5 years. Obviously if he were shown to have made great gains in terms of psychological therapy, became willing to take anti-androgens, or his medical status or factors in his social situation changed substantially reconsideration of some of his conditions would need to occur."

Dr Allnutt had this to say in his report:

"The duration of an order ultimately is a legal decision and not a clinical decision; to assist the court in this determination the court might wish to consider that he is at this stage 54 years of age; while in most offender groups rates of recidivism reduce with age; at this stage there is concern about the reduction in risk for sexual recidivism prior to age 60, as it appears that rates of sexual offending remain relatively constant until that age; he has not yet addressed his index offending and he falls into a high risk group."

1. By the expression "index offending", of course, Dr Allnutt was referring to the third set of convictions. Mr Johnson pointed out that the defendant has always maintained his innocence of those offences and, no doubt, would continue to do so. He argued that an acknowledgement by the defendant of his guilt of them is unlikely to be forthcoming, no matter how long he is subject to supervision.

1. The purpose of the Act is protective, not punitive. By s 3, its primary object is to ensure the safety and protection of the community, and another object is to encourage serious sex offenders to undertake rehabilitation. Obviously, the pursuit of that second object contributes to the achievement of the first. Ms Callan referred me to the examination of the factors bearing upon the duration of an order by Hulme AJ (as he then was) in State of New South Wales v Manners [2008] NSWSC 1376, at [80] - [99]. In that case his Honour made an extended supervision order for 5 years. While I find his observations helpful, that matter turned, of course, on its own facts.

1. Undoubtedly, the interests of the community demand that the defendant be subject to a lengthy period of supervision with appropriate conditions. He has recently been released from prison, and his personal circumstances are such that he needs a good deal of support to achieve a stable lifestyle. It is so long since he has undergone any counselling for his sexual offending that he is effectively untreated. On the other hand, while the protective purpose of the Act is paramount, the restrictions its application would impose upon his lifestyle and his freedom of movement and association are not irrelevant: cf Manners at [90].

1. I have not found this important question easy to resolve. It is common ground that, in determining the length of an extended supervision order, I should impose an order for the minimum period which achieves the objects of the Act. The basis of Mr Sheehan's view that any re-offending by the defendant would be likely to occur within 3 years of his release is not apparent from his report. I can see the force of the reasoning of Dr Samuels and Dr Allnutt for the desirability of a longer period of supervision.

1. Nevertheless, as Dr Allnutt properly observed, this decision is a legal one, not a clinical one. After careful consideration, I am persuaded by Mr Johnson's submission that 3 years is a significant period in which to monitor the defendant in the community, and provide significant scope for professional intervention. That lesser period, in my view, would provide a greater incentive to the defendant to pursue his rehabilitation and, in particular, to commit himself genuinely to treatment. It should be borne in mind that, by s 10(3) of the Act, this Court could make a further extended supervision order, and s 13 provides for the revocation or variation of an order on the application of the State or the defendant. That being so, the position can effectively be reviewed at the end of the 3 year period.

1. The extended supervision order I make will be for 3 years.

Condition 6

1. Proposed condition 6 would require the defendant to notify his supervising officer of his movements in advance by providing a schedule in writing, if directed by the officer to do so. Further, except in the case of emergency, he would have to notify his supervising officer of any proposed change to that schedule at least 24 hours in advance.

1. Mr Johnson was concerned about the breadth of the discretion conferred upon the supervising officer by that condition, and asked that an upper limit be placed upon the period within which the notification must be made and the period in respect of which it is to made. At present, pursuant to the interim order, the defendant is required to notify 72 hours in advance his movements over a 7 day period. In other words, he is required on a Wednesday to provide a written schedule of his proposed movements for the week commencing on the following Saturday.

1. Mr Johnson told me that that regime has been working well enough. I think upper limits of that order are reasonable and would be consistent with the administration of the monitoring processes which the supervision order must enable. The condition should require notification not more than 72 hours in advance of the defendant's movements over a period of not more than 7 days. The provision for notification at least 24 hours in advance of any proposed change to the schedule, except in case of emergency, should remain. I would appreciate it if the parties would redraw condition 6 accordingly.

Conditions 3, 36 and 37

1. Condition 36, under the heading "Treatment obligations", requires the defendant to accept such psychological and psychiatric treatment as may be provided by relevant health services. Condition 37 would require him to accept sex drive reduction medical treatment or any other therapy, including anti-libidinal treatment, if prescribed for him, and would require that he not unreasonably refuse his consent for treatment of that kind. Condition 3, under the heading "Reporting and monitoring", would require him to comply with any reasonable direction given by his supervising officer or any other departmental officer who might be involved in his supervision.

1. Ms Callan made it clear that the State does not seek a condition that the defendant be required to take anti-libidinal medication, accepting that he should undergo treatment of that kind only if he consented to it. This is consistent with the opinions of Dr Samuels and Dr Allnutt. Mr Johnson's concern was that such a requirement might be seen to be imposed by condition 37 and the general requirement in condition 3 that the defendant comply with reasonable directions given by departmental officers.

1. It was agreed that the position should be clarified by deleting condition 37 and adding a note at the end of the conditions in the following terms:

"In relation to conditions 3 and 36, it is noted that the "reasonable directions" (in condition 3) and the participation in treatment (in condition 36) do not include requiring the defendant to take any medication that may be prescribed without his informed consent."

A somewhat similar course was taken in State of New South Wales v Manners : see the note at the end of the conditions set out at [119].

1. Subject to these alterations, I am satisfied that the proposed conditions are appropriate. Before making a formal order, I direct the parties to provide a revised set of conditions in accordance with these reasons. I note that this will include the use of new titles for the health services referred to in the conditions under the heading "Treatment obligations."

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Decision last updated: 19 August 2011