State of New South Wales v Cook (Final)

[2019] NSWSC 51

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Cook (Final) [2019] NSWSC 51

Hearing dates:

22 November 2018

Date of orders:

10 December 2018

Decision date:

06 February 2019

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court made the following orders:

 

(1) pursuant to s 5B and s 9(1)(a) of the Act that the defendant shall be subject to an extended supervision order (“the extended supervision order”) for a period of 3 years from 10 December 2018; and

(2) pursuant to s 11 of the Act, direct that the defendant, for the duration of the extended supervision order, comply with the conditions set out in Schedule to the further amended summons filed on 22 November 2018.

Catchwords:

CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – serious sex offence – application for extended supervision order – whether the defendant is a supervised offender – whether the defendant poses an unacceptable risk of committing another serious offence – consideration of factors in s 9 – extended supervision order made for 3 years – conditions imposed – orders

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (High Risk Offenders) Amendment Act 2017 (NSW)

Cases Cited:

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
R v Cook [2004] NSWCCA 52
State of New South Wales v Bugmy [2017] NSWSC 855
State of New South Wales v Burns [2014] NSWSC 1014
State of New South Wales v Cook [2018] NSWSC 1386
State of New South Wales v Dillon (Final) [2018] NSWSC 1626
State of New South Wales v French (Final) [2017] NSWSC 1475
State of New South Wales v Green (Final) [2013] NSWSC 1003
State of New South Wales v Kamm (Final) [2016] NSWSC 1
State of New South Wales v Pacey [2015] NSWSC 1983
State of New South Wales v Simcock (Final) [2016] NSWSC 1805
State of New South Wales v Thurston [2018] NSWSC 421
State of New South Wales v TT (Preliminary) [2017] NSWSC 1797
State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367
Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Daryl Norman Stanley Cook (Defendant)

Representation:

Counsel:
D New (Plaintiff)
A Cook (Defendant)

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

File Number(s):

2018/220938

REASONS FOR Judgment

1. By a further amended summons filed in Court on 22 November 2018 (“the application”), the State of New South Wales (“the State”) sought an order that Daryl Norman Stanley Cook (“the defendant”) be subject to an extended supervision order for a period of 3 years from the date of the order, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). A related order was sought pursuant to s 11 of the Act directing the defendant to comply with the conditions set out in the Schedule accompanying the further amended summons (those conditions are set out in Annexure A to this judgment).

BACKGROUND   

The Offences

2. The defendant has committed two “serious sex offences” as defined under s 5(1)(a) of the Act:

1. On 14 September 2011, following a DNA match, the defendant was arrested and charged with respect to four counts of aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act 1900 (NSW), as to an offence committed in 1993 (“the 1993 offence” and the offence the subject of this application). The circumstances of aggravation were that the victim was under the age of sixteen. The defendant was, in fact, not found guilty of the offence until 15 June 2012. On 29 August 2012, he was sentenced to an aggregate sentence of 7 years imprisonment, with a non-parole period of 5 years and 3 months, commencing from 14 September 2011.

2. In 6 April 2001, the defendant committed an offence contrary to s 61K of the Crimes Act of threaten to inflict actual bodily harm on a person by means of an offensive weapon, namely, a knife, with intent to have sexual intercourse with her. The victim was seventeen at the time. He was sentenced to 8 years' imprisonment (non-parole period of 6 years), commencing on 11 April 2001, the day of the defendant's arrest (“the 2001 offence”).

(The 1993 and 2001 offences shall be hereinafter, collectively, referred to as “the offences”).

3. I now turn to an overview of the offences.

The 1993 offence

4. The following summary is based upon the remarks on sentence of Judge Flannery SC on 29 August 2012:

1. On 30 April 1993, the victim (“V1”), who was fifteen at the time, went to town at about 6.30pm. She met up with some friends at the Amusement Centre and at some stage, she and her friend (“M1”), went to the cinema in Horton Street to go to the toilet. When they were outside the cinema complex, they were asked by the defendant, who was standing against the front doors, whether they would like to have a joint. They refused.

2. At about 9pm, V1 decided to go home, as she had run out of money. By then it was dark. As she was walking over the bridge near the Red Carpet Motel in Port Macquarie, she heard the sound of coins or keys jangling and turned to see what the noise was. She saw the defendant running and moved over to let him go past. When she was almost across the bridge, she was grabbed by the defendant, who put his hand around her mouth and neck. She screamed, kicked and punched him in the mouth. He then pulled her down to the bottom of an embankment, told her to be quiet and said that he had a knife. He then took a small pocket knife out of his pocket, put it to the back of her neck, behind her left ear and said he was not going to hurt her, he just wanted to talk. She was “freaking out”, hysterical and struggling to get away. When they got to a fence, he pushed her down and started kissing her and sticking his tongue down her throat. She tried to get away from him by kicking and pushing him. He then hit her in the mouth with his fist, which caused her lip to split. He then touched her all over and asked if it felt good. She was crying and asking him to let her go. He then tried to take off her belt and jeans while she was fighting with him. He said "I want to suck your pussy".

3. After he had pulled her jeans down, he inserted his finger or fingers in her vagina (count 1). She was crying and asking him to stop. He kept saying, "Doesn't it feel good". He then pulled down her pants and lay on top of her and inserted his penis inside her vagina (count 2). It hurt. She asked him to let her go and he said, "I can in five minutes". She was crying and trying to push him off. He took his jumper off and put it over her face. He then kissed her and put his tongue down her throat and then performed cunnilingus on her (count 3).

4. He then put her legs over his shoulders and his penis into her vagina again (count 4). She was crying and asking him to let her go. At some stage she recognised his voice as the voice of the man who had offered her a joint outside the cinema. It was too dark for her to recognise him otherwise. He then told her to get dressed and to walk in a particular direction and not to look at him.

5. As a result of the commission of the 1993 offence, V1 had a split lip, a bruised hand, from where she hit the defendant, a slight abrasion behind her ear and bleeding from her vagina for three days. Three earrings were also pulled out of her ear.

6. On 14 September 2011, after the police were advised that the defendant's DNA profile matched the DNA profile of the samples taken from V1 on 30 April 1993, the defendant was arrested and charged. The defendant entered pleas of “not guilty” and elected to be tried by Judge alone. He was found guilty and sentenced ten days later.

The 2001 offence

5. On 19 July 2002, the defendant was found guilty by jury verdict. On 20 November 2002, he was sentenced by Acting Judge Mahoney to 12 years’ imprisonment, with a non-parole period of 9 years, commencing from 12 July 2001.

6. On 12 March 2004, following an appeal brought by the defendant, the verdict of guilty for the 2001 offence was set aside and a new trial ordered: R v Cook [2004] NSWCCA 52.

7. The Court found the defendant made good two grounds of his appeal, namely, that there was a miscarriage of justice and that the defendant did not receive a fair trial in that:

1. the trial judge erred in admitting evidence of flight (R v Cook at [49]); and

2. having admitted evidence of flight, the trial judge erred in not directing the jury how they were to use that evidence of flight as part of the circumstantial case (R v Cook at [52]).

8. On 1 November 2004, following the remittal to the District Court, the defendant was again found guilty by jury verdict.

9. The following summary of the circumstances of the 2001 offence is based upon the remarks on sentence of Judge Keleman on 17 December 2004:

1. On 5 April 2001, the victim (“V2”), who was 17 at the time, went into Port Macquarie for a night out with two of her friends, arriving at around 9.30pm. They went into a kebab shop in the main street of Port Macquarie, a location where young people meet to socialise. Her two friends then went off to a nearby night club and V2, who was underage and precluded from accompanying them inside those premises, remained at the kebab shop talking to friends.

2. After a period of time, V2 walked with one of her male friends to a nearby marina to see if any of their other friends were there. Not many of their friends were there so they returned to the kebab shop, arriving back at about 12.30am. On this occasion or the earlier occasion that she had been at the kebab shop that evening, one of her male friends introduced her to the defendant who was there at the kebab shop, after which she went and sat with one of her male friends on one of the two seats located on the footpath a short distance from the kebab shop. The defendant came and sat on the adjoining seat.

3. Sometime later, but before 2am in the morning, the defendant walked up to V2 outside the kebab shop and asked her if she would have sex with him that night, to which she replied, “No”. She then walked away from the defendant and spoke to one of her male friends and told him she was going to the toilet. V2 then proceeded to walk to the public toilets situated in a nearby bus terminus. On the way there, she stopped outside a nightclub where she spoke to the mother of one of her girlfriends for a few minutes. She then left her girlfriend's mother and proceeded towards the public toilets, and in doing so she walked past the entrance to the Coles store which faced the Coles car park where she observed, outside the entrance doors to the store, the defendant talking to the store security guard.

4. As she was proceeding through the car park she heard the defendant’s footsteps close behind her and as she increased her walking pace so did the defendant. She then took out the mobile telephone she had with her and phoned her male friend whom she had informed earlier that she was going to the toilet and asked to speak to one of her two girlfriends (“W1”), with whom she had travelled into Port Macquarie that evening. During that conversation she asked W1 to come down to the toilets as she was being followed.

5. V2 walked into the female toilets and locked the toilet cubicle and sat on the toilet. She then heard the defendant's footsteps entering the female toilets and she then sent a text message at about 2.10am to the same male friend she had telephoned minutes earlier, asking him to come to the toilets.

6. A short time later she saw the defendant's hands appear in an opening a fair way up in the wall of the toilet cubicle she was in. The defendant then entered the toilet cubicle through the opening and landed in the toilet cubicle on his feet beside V2. She screamed. The defendant pulled out a cap from behind his back and removed from it a knife with a blade of about twenty centimetres in length. He put the blade of the knife against her throat. She screamed again, and he then put his hand over her mouth. The defendant told her to shut up and do as he said or she would “cop it”. The defendant then, told her to come for a walk to the park with him and he would not have to use “this” as he held the knife to her throat.

7. The defendant then unlocked the toilet cubicle door as she pulled up her pants. When he opened the cubicle door she observed that he had another knife, which he described as a boning knife, sticking out the back of his jeans. He then told her that she was to walk out with him and pretend that they were boyfriend and girlfriend and that they were in love. The defendant then, standing behind her with his hand held over her mouth and the knife pressed to her throat, proceeded to take her out of the female toilets. On the way out V2 was able to observe the defendant in the mirror of the washbasin area and noticed he had two tattoos on his lower left arm as the sleeves of his shirt had been rolled up. He also said to V2 words to the effect, “Look what you make me fucking go through. See what you fucking do to me”.

8. The defendant then walked V2 out of the toilet block while holding the knife to her throat and his hand over her mouth. At that point in time V2 believed that she was better off if she was able to remain near the bus terminus as she believed she had a better chance of being seen by someone there, so she stumbled and fell to the ground on her knees. The defendant then pushed her onto her back and then hopped on top of her with his legs on either side of her.

9. After he pushed her to the ground he again pressed the knife to her throat and held his hand over her mouth. He then referred to her home address where she had been living until only days before and also made reference to her ex-boyfriend with whom she had only broken up with a week or two before. He then said to her words to the effect, “You are going to fuck me right now. We are going to do it". The defendant then grabbed V2 on her vagina over the outside of her jeans and then put his hand back over her mouth. She then bit his hand, causing him to take his hand away, and then she screamed. She then heard W1 call out and saw her running towards them. The defendant then got up and grinned at V2 and said that if she went to the police she would cop it. V2, who had also stood up, continued to scream and ran off in the direction of the Coles store while the defendant ran off in the opposite direction, pursued briefly by W1, who then returned to the Coles store where the distraught V2 had met the security guard who came to her aid after hearing her screams. Police arrived shortly after, following which V2 was taken to the police station where she made a statement.

10. On 11 April 2001, police located a plastic bag which contained a number of items of clothing including the shirt and shoes worn by the defendant when he attacked V2, which plastic bag he had left with a casual employer two days before on 9 April 2001. The defendant was arrested later on 11 April 2001.

10. Further details as to the defendant’s criminal history and patterns of offending behaviour will considered below as part of the Court’s mandatory consideration under s 9(3).

Course of Proceedings

11. By a summons filed on 18 July 2018 (“the summons”), the State sought the following relief:

Preliminary hearing orders

1. An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the

Act"):

a. Appointing two qualified psychiatrists, psychologists (or any combination of such persons) 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. Directing the defendant to attend those examinations,

Interim Orders

2. An order:

a. pursuant to s. 10A of the Act, that the defendant be subject to an interim supervision order from 13 September 2018 ("the interim supervision order"); and

b. pursuant to s. 10C(1) of the Act, that the interim supervision order be for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined; and

c. pursuant to s. 11 of Act directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this Summons.

Final relief

3. An order:

a. pursuant to s. 5B and s. 9(1)(a) of the Act that the defendant be subject to an extended supervision order ("the extended supervision order") for a period of 3 years from the date of the order; and

b. pursuant to s. 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A to this Summons.

Other orders

4. An order that access to the Court's file for any document shall not be granted to a non-party without leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

12. The summons was the subject of a preliminary hearing before Button J on 2, 3 and 28 August 2018. On 28 August 2018, his Honour granted leave to the State to file an amended summons in Court (the amendments concerned particular conditions set out in the Schedule to the amended summons). His Honour reserved his decision.

13. By a judgment issued on 11 September 2018: State of New South Wales v Cook [2018] NSWSC 1386 (“the preliminary hearing”), Button J made orders, which included, inter alia, that the defendant be the subject of an interim supervision order from 13 September 2018 for a period of 28 days pursuant to ss 10A and 10C(1) of the Act; and that, pursuant to s 11 of the Act, for the period of the interim supervision order, the defendant was to comply with the conditions in the Schedule attached to his Honour’s judgment.

14. That interim supervision order was renewed pursuant to s 10C(2) of the Act for a period of 28 days on the same conditions, on two subsequent occasions:

1. On 9 October 2018, Davies J renewed the defendant's interim supervision order to commence from 11 October 2018 and expire on 7 November 2018; and

2. On 5 November 2018, the Duty Judge renewed the same in Chambers, with consent of the parties, to commence from 8 November 2018.

15. At the final hearing on 22 November 2018, before the Court as presently constituted, the State sought and was granted leave to file a further amended summons in court; the amendments concerned the conditions set out in the Schedule to the further amended summons. The matter proceeded upon the application.

16. Prior to the final hearing, the matter was brought before Bellew J for directions on Monday, 20 November 2018. On that occasion, the defendant addressed the Court with respect to the difficulties in acquiring evidence from the defendant’s general practitioner as to his physical health (“medical evidence”). The defendant sought an extension of time to file and serve that evidence by the end of that same day, which was not opposed. The solicitor for the defendant, Ms Bridget Kennedy, confirmed that, in the event the report was not available, the defendant would proceed without it and file and serve submissions by the same date. His Honour granted an extension to 5.00 pm on 20 November 2018.

17. At the final hearing, counsel for the defendant, Ms Angela Cook, confirmed that the defendant was unable to obtain the aforementioned medical evidence. Instead, the defendant relied, in that respect, upon the evidence as to the defendant’s physical health referred to in the material tendered by the State.

18. On 5 December 2018, with consent of the parties, the interim order was renewed for a further period of six days or until the proceedings were finally determined, commencing on 6 December 2018 (being the third and final available renewal available under the Act, only until 11 December 2018).

15. On 10 December 2018, the Court made the orders which appear below and indicated that the reasons for judgment would appear in due course.

16. The orders were as follows:

1. pursuant to s 5B and s 9(1)(a) of the Act that the defendant shall be subject to an extended supervision order (“the extended supervision order”) for a period of 3 years from 10 December 2018; and

2. pursuant to s 11 of the Act, direct that the defendant, for the duration of the extended supervision order, comply with the conditions set out in Schedule to the further amended summons filed on 22 November 2018.

(The Schedule is annexed to this judgment).

21. These are the reasons for decision with respect to those orders.

STATUTORY FRAMEWORK AND LEGAL PRINCIPLES

Objects of the Act

22. The Act’s primary object is ensuring the safety and protection of the community in relation to high risk offenders: s 3(1). Another object of the Act is to encourage, inter alia, high risk offenders to undertake rehabilitation. The safety of the community “must be the paramount consideration” when determining an extended supervision order application: s 9(2).

23. The word “ensure”, which is referred to in the object of the Act, is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) at [61].

Application of the Act

24. The State may apply for an extended supervision order against “an offender” pursuant to Pt 2 Div 1 s 5H. The proceedings are to be conducted as civil proceedings pursuant to s 21 of the Act.

25. There are four preconditions to the making of an extended supervision order reflected in s 5B of the Act. That provision is as follows:

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:

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(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.

Unacceptable risk

26. The unacceptable risk requirement in s 5B(d) essentially replicates the repealed definitions of “high risk sex offender” as existed prior to the 6 December 2017 amendment: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The authorities applicable before the amendments continue to be relevant (Garling J in State of New South Wales v Thurston [2018] NSWSC 421 at [116]-[117]; and, more generally, State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 at [56]-[60].

27. As to those principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [20]-[39] (see also, State of New South Wales v French (Final) [2017] NSWSC 1475 (at [43]-[53])). By way of emphasis or elaboration, two observations may be made.

28. First, there may be instances when a person is held to pose an unacceptable risk even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely “drastic” consequences to a victim if particular offending occurs (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 (“Kamm”) at [41] and [43] (per Harrison J)).

29. Secondly, I accept the passage of the judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, as follows:

[127] In considering the question of whether the defendant poses an “unacceptable risk” of committing a “serious sex offence” if he is not kept under supervision, I give the words “unacceptable risk their ordinary meaning. I also have regard to the observations of Harrison J concerning the question of “unacceptable risk” in State of New South Wales v Pacey at [43] as follows:

“It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.”

[128] Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, “Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate.”

FINDINGS OF FACT AND CONCLUSIONS AS TO FACTORS IN S 9(3)   

Evidence before the Court   

30. The Court received in evidence a substantial amount of documentary material pursuant to s 25 of the Act, which included, inter alia, the following:

1. reports and records produced by Corrective Services NSW (“CSNSW”);

2. reports from the court appointed experts: Dr Katie Seidler, Forensic Psychologist (dated 22 October 2018), and Dr Jeremy O’Dea, Forensic Psychiatrist (dated 23 October 2018);

3. a Risk Assessment Report (dated 29 January 2018) produced by Mr Samuel Ardasinski, Senior Specialist Psychologist with the Serious Offenders Assessment Unit of CSNSW, together with a Supplementary Risk Assessment Report (dated 19 June 2018).

31. The State also relied upon the following evidence by affidavit:

1. Ms Johanna Fisher, solicitor for the Crown Solicitor’s Office, affirmed 13 July (together with exhibit JF-1), 23 July, 2 August, 9 August (together with exhibit JF-2) and 5 November 2018, respectively; and

2. Ms Annette Caffery, Manager, Extended Supervision Order Team at CSNSW, affirmed 23 July, 5 November and 19 November 2018, respectively.

32. The defendant relied upon the evidence tendered by the State without objection. No evidence was adduced by the defendant.

33. During the course of proceedings, only Drs Seidler and O’Dea were required for cross-examination.

Background Matters   

34. The defendant is a 58 year old man.

35. He has been in custody almost continuously since 1972 when he was 12 years old.

36. The following summary of the defendant’s developmental background is based upon the psychologist report of Ms Barbara Aldrich, dated 2 September 2002. As to his family life, the following was noted:

1. The defendant was the youngest of three children born to the marriage of Cecelia and Norman Cook. He has two older sisters, Rhonda and Debbie.

2. The defendant’s father was described as “a very bad alcoholic and a cruel womaniser”. He reportedly would bring his girlfriends home and sleep with them in the matrimonial bed. He would expect the defendant’s mother to look after them. The defendant’s parents broke up in 1962 – the defendant was two years old at the time.

3. The defendant’s mother had a relationship with Stanley Haddon, shortly after leaving the defendant’s father. They had a son, Richard. Apparently, Mr Haddon was “a very sadistic man as well as a violent alcoholic”. The defendant said that he was targeted by Mr Haddon’s “brutality”. Mr Haddon also beat the defendant’s mother and sister. The defendant said that he often took the blame for things that his sisters did because he could not bear to see them beaten.

4. The physical violence of Mr Haddon was described as including: hitting with closed fists, suffocation, “flogging with a stock whip”, shooting at the defendant and chasing the defendant with a butcher’s knife. Certain particular events were recalled by the defendant: Mr Haddon got angry and shot and buried the defendant’s dog, that same night he “chopped up a bicycle” that the defendant had won.

5. The defendant reported extreme abuse was a “daily” occurrence and “that most of this severe abuse occurred when he was between the ages of about ten and fourteen years”.

37. As to the defendant’s background and offending, Ms Aldrich provided the following summary:

He was first incarcerated when he was eleven years of age. He was committed in general terms for his first offence when he was eleven and this first time in an institution was for 18 months. Once he was incarcerated he continued to attract custodial sentences for any subsequent appearances before the court. He has calculated that he has spent 25 years in jail between 1972 and the present.

[The defendant] seems to have spent most of his adolescence in one institution or another. He reports that when he was about 12 or 13 he was living at Mittagong Boys Home. He says that the manager and the dentist repeatedly sexually assaulted him. This amounted to him being forced to masturbate these men, being masturbated by them and attempted anal penetration. These assaults happened on numerous occasions over six or seven months.

Aside from the sexual molestation, it is well known how harsh the conditions and treatments were in the boy’s homes of this era. He says that he was never able to tell anyone about his treatment at these homes, and this led to his having many psychological problems as a child and adolescence. He chewed his nails and wet the bed nightly and he reports having been a very anxious child.

[The defendant] was placed in the adult jail when he was 17 years of age. While he was in Maitland jail in 1979 he says that he was raped, assaulted and stabbed by another inmate. His assailant had been forcing his cellmate to have sex with him and [the defendant] hit him one night when he had had enough of watching these assaults and being silent. This man apparently went wild and stabbed [the defendant] in the chest, leg and arm before knocking him unconscious and raping him as well. This man was a known and convicted rapist and [the defendant] believes that he should never have been in a cell with him. Corrective Services evidently documented this rape, but no action was ever taken as [the defendant] was advised not to press charges for his own safety.

It was after this sexual assault that he began to use heroin when he was next released. He says that he had never used any illicit drugs prior to this, but a friend had told him that it would take away all of his emotional pain, it did, in fact, take away his pain and he continued to use heroin up until about 1988. He says that he managed staying clean without help until about four years ago. At that time he was experiencing a lot of emotional problems and he was thinking of going back to heroin. He reports that he got on the methadone program to avoid going back to heroin.

…

Whilst he has been in jail this time his maternal grandmother, whom he was very close to died. She had been one of the few people who had maintained contact with him over the years. Her loss has been devastating for him. He was not allowed to attend her funeral.

38. Finally, with respect to his experience with relationships, Ms Aldrich reported:

Despite his years of incarceration, [the defendant] has managed three significant relationships. When he was about 20 he formed a relationship with Kerry Kens a New Zealand woman he met. This was a very brief relationship as he was sent back to jail. They had a son, Luke. Kerry was apparently killed in a motor vehicle accident in 1984 and their son died of leukaemia four months later. [The defendant] is still very distressed by these events.

…

He reports that he has had other, insignificant liaisons over the years.

Criminal Offending

39. The defendant’s criminal history consists of a mixture of violent, sexual and other offences dating back to 1972. Details of the defendant's criminal history are recorded in the following documents:

1. Criminal History - Bail Report document;

2. Inmate Profile document; and

3. Conviction, Sentences and Appeals documents.

40. The defendant was first brought before the Children's Court at about 11 years of age. The defendant’s subsequent convictions include, inter alia, offences of interpersonal violence, assault with intent to rob, common assault, contravene ADVO, stalk/intimidate with intent to cause fear of physical/mental harm, property damage, stealing, break-and-enters, robberies, driving offences and several counts of escape lawful custody.

Sexual Offending

First charge for a sex offence – the 1980 charge

41. The defendant was charged with rape on 4 January 1980 (“the 1980 charge”). He was found not guilty by jury verdict on 15 September 1981. The State contended that this charge is, from a clinical perspective, relevant to risk.

42. The alleged offence, with respect to the 1980 charge, appeared to involve a sexual assault in company of a young woman who was driven by the defendant and two associates to a park in the middle of the night, before being driven back home again. The defendant was aged 19 when he was charged with this alleged offence. In the comments and observations attached to the summary of facts for this alleged offence, it was noted: "[i]n cases such as this, the absence of evidence of a struggle by the girl and the lack of any physical injury are generally regarded as being synonymous with ‘a weak Crown case’”.

43. Mr Ardasinski did not discuss this rape charge in his interview with the defendant because he was found not guilty. He did, however, identify the charge as a matter relevant to risk. Both Drs Seidler and O’Dea noted the charge and verdict in the context of their respective summaries of the prior offending of the defendant.

44. The Court is not in a position to make a finding of fact in relation to the unproven allegation against the defendant. That evidence may only establish an allegation of rape was made, with respect to a young female, and to that end, it is limited to the defendant’s risk of re-offending. This will also be relevant to the application of the paramount consideration in s 9(2) of the Act. Thus, the evidence with respect to the unproven charge is applicable to the assessment in that limited respect and for the purposes of making the evaluative judgment. As this Court observed in French at [72]:

[72] … the Court … must make an evaluative judgment as to whether the defendant is a high risk sex offender. As the discussion of principles above recognises, that evaluative judgment involves, inter alia, an assessment of that kind being made within the context of the objects of the Act; the principal object being to ensure the safety and protection of the community. It is appropriate that the Court examine all relevant material bearing upon the making of that judgment…

First conviction for a sex offence – the 1981 offence

45. On 27 February 1981, the defendant was charged with assault with intent to rape. He pleaded guilty to the alternative charge of assault occasioning actual bodily harm (“the 1981 offence”). The plea as to the alternative charge was accepted in full discharge of the indictment. The defendant was sentenced to one year hard labour by Williams J on 11 September 1981 in Penrith.

Second conviction for a sex offence – the 2001 offence

46. The 2001 offence is the defendant’s second conviction for a sex offence (although it chronologically occurred after the 1993 offence) and was summarised earlier in this judgment.

47. The defendant denied committing the 2001 offence to Dr O’Dea, Dr Seidler and Mr Ardasinski. By the defendant’s account, the victim owed him money for marijuana that he had sold her, the victim fabricated the sexual assault for revenge and he was charged as part of a police conspiracy. He maintained this account notwithstanding a strong Crown case against him, which included evidence of the defendant being in the area on that night and identification evidence.

Third conviction for a sex offence – the 1993 offence

48. The 1993 offence was a historical offence and, as previously mentioned, appears as the defendant’s third conviction for a sex offence as a result of later obtained DNA evidence.

49. The defendant’s attitude towards the 1993 offence differed amongst the court appointed experts and Mr Ardasinski, as follows:

1. The defendant told Dr O’Dea that he thought the victim was inviting him to have sex with her.

2. The defendant told Dr Seidler that he asked the victim if he could have sex with her and when she refused he raped her.

3. The defendant accepted responsibility for the 1993 offence to Mr Ardasinski. He stated that the reason for his not guilty plea was because he was embarrassed in front of his mother.

50. In an earlier psychological report by Mr Mark Howard dated 26 June 2012, the defendant claimed the sexual intercourse was consensual and the defendant did not know the victim was 16 years old

Breach of reporting obligations – “offence of a sexual nature”

51. On 10 May 2011, the defendant was fined for a breach of s 17 of his reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (“the CPOR Act”). This was an “offence of a sexual nature” under s 5(2)(f) of the Act.

52. The defendant had been living with a woman and her children (an 11 year old girl and a 14 year old boy) for 3 months and on weekends the defendant's partner stayed with the defendant and she had three children aged 14,11 and 7. Neither of these women were aware of the defendant's criminal history or his obligations under the CPOR Act. The defendant failed to notify police of these living arrangements.

Views of Sentencing Court

The 2001 offence

53. Judge Keleman in his remarks on sentence, as to the 2001 offence, stated:

The present offence was committed by the defendant engaging in what can only be described as predatory and violent conduct which was planned and premeditated, and which involved the defendant attacking a seventeen-year-old girl at night with a knife at a time when and a place where he believed she would be totally vulnerable and defenceless, and in circumstances where he intended that his use of his knife for a considerable period of time would instil sheer terror...

54. His Honour also found the defendant had poor prospects of rehabilitation because "of his poor history of response to supervision whilst on parole and the commission of the present offence in circumstances where it is claimed that his life was stabilising".

55. Judge Keleman noted that the reports of Dr Westmore and Ms Aldrich detailed that the defendant is "extremely institutionalised" and that because of this the defendant would require significant professional support on his release to reduce his risk of re-offending. His Honour noted that, in the opinion of the authors of those reports, the defendant, although showing some positive rehabilitative signs, held an unrealistic view of how hard it would be to reintegrate in the community.

56. The remarks on sentence of Acting Judge Mahoney, prior to the retrial, may be noted. First, his Honour found the defendant’s prospects of rehabilitation to be an “unlikely eventuality”. In that respect, he observed:

Any realistic evaluation of his past criminal record could not lead to any other conclusion. All the indications are that he is prepared to resort to threats of violence to get his own way. He displays no appreciation of the need to obey the law or to respect other people's rights. He is 42 now. His psychologist [Ms Aldrich] reports that he is prepared to mend his ways now, but I note that he said the same thing to Dunford J in June 1995.

The 1993 offence

57. Judge Flannery noted the comments of Mr Howard, psychologist, that the various dynamic aspects of risk associated with the defendant's offending at the time have altered to some degree over the intervening years, that the defendant has aged, has not been convicted of related offences for more than a decade, he has abstained from substance use and attempted to achieve stability in the community. Notwithstanding that assessment, Judge Flannery described the defendant’s prospects of rehabilitation as “guarded”.

57. His Honour also considered that the material suggested that the defendant's degree of stability was related to his desire to make his mother proud of him.

Parole   

Release on Parole on 22 April 1993

59. The 1993 offence occurred eight days after the defendant’s release on parole.

Contraventions of Apprehended Domestic Violence Orders in 2000 and 2001

60. The defendant has contravened apprehended domestic violence orders on 3 November 2000, 11 December 2000 and 11 April 2001.

Decision to refuse parole on 1 March 2007

61. The non-parole period for the 2001 offence expired on 10 April 2007. A Pre-Release Report was prepared on 14 November 2006 by Mr Graeme Chaseling, Parole Officer at Parklea Parole Unit. The report did not recommend release on parole. Mr Chaseling submitted, in this respect, “the Police are better equipped to ensure the safety of the community than this Service, and a multidisciplinary approach may complicate, rather than reinforce surveillance of [the defendant]”.

62. The report also revealed the defendant’s negative attitude towards Community Offender Services and parole. The defendant maintained that “he was innocent of the charges for which he was convicted, and that in his view, any willingness to co-operate with Community Offender Services would be an admission of guilt”. Further, the defendant was reported to have said “that he did not want to be released to Parole, because his refusal to accept supervision would bring additional legal difficulties upon him. Even if release to Parole was forced upon him, he said, he would not accept supervision”.

63. On 1 March 2007, the defendant’s release to parole was refused for the following reasons:

Unable to adapt to normal lawful community life, risk of reoffending, no post-release plan, need to address offending behaviour (AOD / violence / sex offending), does not seek parole.

Consider due date. That is stand over to 14 February 2008 for Probation and Parole Officer's report and correctional centre report for parole consideration. Parole Authority requites the reports not later than 1 February 2008.

Decision to refuse parole on 15 April 2008

64. On 5 February 2008, Ms Nerrissa O’Neill, Probation and Parole Officer at Kempsey District Office produced a Supplementary Pre-Release Report. Her opinion was supported by Mr Graeme Haggerty, Unit Leader/Manager at Kempsey District Office. As to the defendant’s attitude towards “conditional liberty”, she reported:

When initially approached regarding his option to apply for further consideration, [the defendant] indicated that he was not interested however reconsidered that stance within the hour and decided to apply He expressed that he did not believe he would gain parole and stated “… if I re-offend it will be your fault because you have not given me to opportunity to reintegrate”. [The defendant] also indicated if it is the Authority’s intention to refuse his parole he has no desire make an appearance to appeal that decision and stated “they can punch it”. He went on to say “… I’ll just do the rest of my time two years will be a pinch of piss and then I get out and they can’t make me do a thing”.

[the defendant] has historically indicated that he would not comply with parole conditions however, did not make that assertion on this occasion. He has stated that he will comply with reporting instructions and attend a specialist psychologist as directed however asserted that he is "not guilty of a sex offence. I will see them but I am not a sex offender”.

When asked if he was prepared to participate in interventions relating to violence and alcohol and other drugs issues he stated that he does not believe he has an Alcohol and other Drug Issue, nor is he a violent person.

65. Ms O’Neill did not recommend the release of the defendant on conditional liberty:

[The defendant] continues to deny his responsibility for his offending; he refuses to participate in programs that have been identified as appropriate for addressing his criminogenic needs despite having been assessed as being at High risk of sexual recidivism, He has continued to acquire institutional misconducts and externalises blame for his current situation.   

Although [the defendant] has expressed that he is now prepared to co-operate with Probation and Parole Supervision and comply with any conditions placed upon him if granted conditional liberty he has unashamedly stated that he is not phased he is not granted parole.

Taking into consideration [the defendant’s] refusal to accept responsibility for his offence and his continued refusal to consider participating in appropriate programs conditional liberty cannot be recommended at this time. Should [the defendant] reconsider his stance on program participation, engage in and complete same then a positive recommendation may be forthcoming.

66. On 3 April 2008, Ms O’Neill produced another Supplementary Pre-Release Report. She noted that the defendant “did not wish the Authority to reconsider its intention to refuse his parole”. Further, she reported that the defendant “made statements that inferred if he does not succeed when he is released into community living that it will be responsibility and fault of others rather than his own”. Ms O’Neill maintained her recommendation opposing parole.

67. On 15 April 2008, the defendant’s release on parole was refused for the following reasons:

The State Parole Authority has sufficient reason to believe that if released from custody at this time [the defendant] would not be able to adapt to normal lawful community life: risk of reoffending; need to address offending, behaviour (AOD/Violence/Sex offending).

Release from custody from 2009-2011

68. The defendant’s sentence for the 2001 offence expired on 10 April 2009. Following his release, the defendant resided with his mother in Tweed Heads.

69. The defendant was convicted of the following offences at Tweed Heads Local Court:

1. stalking or intimidation with intent to cause fear of physical or mental harm, on 28 October 2010; and

2. drive whilst disqualified from holding a license, on 23 December 2010.

He received a s 9 bond with respect to each conviction.

70. On 14 September 2011, he was charged and arrested with respect to the 1993 offence, a historical offence.

71. The defendant did not re-offend, with respect to a serious sex offence, in that period.

Provisional decision to grant parole on 7 November 2017

72. The non-parole period for the 1993 offence expired on 13 December 2016.

73. On 13 October 2016, the State Parole Authority formed a decision not to release the defendant to parole owing to the “[n]eed [for the defendant] to complete a program to address offending behaviour of sex offending”.

74. On 7 November 2017, the State Parole Authority confirmed its provisional decision to grant parole (“subject to Commissioner’s submission”). In a Stand Over notice addressed to the Governor of the Junee Correctional Centre, the authority noted that, having regard to s 135(1) and (2)(a)-(k) of the Crimes (Administration of Sentences) Act 1999 (NSW), “it is satisfied that release to parole is in the public interest”. In particular, the following observations were made:

The likelihood of [the defendant] engaging in treatment prior to his sentence expiration is considered to be low, and the Authority form[ed] the view that releasing the offender, to engage in interventions within the community context whilst subject to conditional liberty is to the batter protection of the community than releasing the offender at sentence expiration.

75. The Authority also identified the following as “critical issues”:

[The defendant] can be described as institutionalised and would require support upon his release. The Authority is aware that parole has previously been denied for [the defendant] to participate in sexual offending intervention, however, circumstances now preclude this possibility. When weighted against [the defendant] remaining in custody until the expiration of his sentence and unable to make any therapeutic gain with release to the structure of ISC and access to said intervention, the Authority determines that release of [the defendant] is in the public interest.

76. On 22 November 2017, Ms Jennifer Priest, Community Corrections Officer at Long Bay Correctional Complex, produced a Supplementary Pre-Release Report. Ms Priest, cited the defendant’s progress in custody, the availability of suitable accommodation and his eligibility to participate in a weekly treatment program facilitated by Forensic Psychology Services (“FPS”), in making a recommendation for release to parole.

77. By a further Supplementary Pre-Release Report dated 29 November 2017, Ms Priest confirmed that the defendant had accepted a treatment offer to participate in the Custody Based Intensive Treatment program (“CUBIT”) at Metropolitan Special Programs Centre (“MSPC”), which was of “approximately 6-10 month in duration”. The defendant was transferred to MSPC on 27 November 2017.

78. On 28 November 2017, during an interview with Community Corrections, the defendant advised that he was prepared to remain in custody to complete the CUBIT program and signed the relevant paperwork reflecting that decision. Ms Priest reported: “To his credit, [the defendant] has agreed to participate in the program and therefore does not seek release to parole at this juncture”. Further, in support of Ms Priest’s report, Mr Robert Messitt observed:

It is positive to note that [the defendant] has accepted a treatment offer and it has been confirmed that he will have adequate time left on his sentence to complete such. His requires to remain in custody to complete the program also demonstrates his willingness to engage in treatment.

Interim Supervision Order

79. The defendant was released from custody on 13 September 2018. As earlier mentioned, he was the subject of an interim supervision order from the date of his release. The affidavit of Ms Caffery, Manager, Extended Supervision Order Team at CSNSW, affirmed 5 November 2018, set out a summary of the defendant’s behaviour and compliance whilst subject to the interim supervision order. She deposed that her account was informed by, inter alia, her communications with the defendant’s Departmental Supervising Officer (“DSO”) Mr Peter Edsall, Unit Leader at Lismore Community Corrections Office. Mr Edsall has been the defendant’s DSO since the commencement of the interim supervision order and was in regular contact with Ms Caffery.

80. Ms Caffery set out an account of defendant’s medical history. A summary of her evidence follows:

1. On 30 September 2018, the defendant was admitted to Tweed Heads Hospital after reporting “acute abdominal pain”.

2. On 3 October 2018, the defendant underwent a Magnetic Resonance Imaging scan.

3. On 5 October 2018, the defendant was discharged from hospital.

4. The defendant told the DSO that he was diagnosed with “pancreas divisum”, which causes episodes of pancreatitis. The DSO was yet to confirm the diagnosis and its impact on the defendant’s health.

5. The defendant has had medical issues with his eyes and his been seeing Dr Purser at Queen Street Medical Centre in Murwillumbah.

6. Dr Purser is the defendant’s GP and prescribes the defendant’s methadone.

81. At the time of Ms Caffery’s affidavit, she also deposed “the DSO is attempting to have the defendant provide the DSO with copies of any medical reports that the defendant received while being on the ISO”. None were since provided.

82. Ms Caffery also provided an account of “[t]he DSO’s observations of the defendant’s physical limitations”. That is extracted, in full, below:

16. I understand that the DSO has observed the defendant walking with the aid of a walking stick. The DSO has observed the defendant have issues navigating obstacles such as steps, crossing the road during traffic, and walking long distances.

17. The DSO has not seen the defendant use a wheelchair or walking frame since leaving custody.

18. The DSO has also noticed that the defendant’s vision seems impaired at times.

19. The DSO told me that he has been able to manage the defendant under the ISO. The defendant’s location and the defendant’s medical matters have not affected that management.

83. As to the defendant’s compliance during his period under the interim supervision order, Ms Caffery deposed:

20. The defendant has breached his ISO on 12 and 24 October 2018 for deviating from his approved schedule of movements. Both instances relate to the defendant stopping at shops on the return journey to home without prior approval. These matters were referred to Tweed Heads Police on 26 October 2018 and I am yet to receive a formal response from them.

21. The defendant has otherwise been compliant with all other conditions of supervision and reporting whilst subject to the ISO.

Behaviour in Custody   

84. The following summary was prepared by Mr Chaseling and is derived from the Pre-Release Report dated 14 November 2006:

Correctional Centre Behaviour

Since 1980, [the defendant] has been involved in 36 instances of institutional misconduct. During his most recent period of incarceration, he has had four instances of institutional misconduct, including:

• 17/04/2008, Fail to comply with correctional Centre Routine, for which he

received 28 days off buy-ups.

• 09/02/2006, Possess Drug, for which he received 14 days off phone calls.

• 08/01/2006, Fail Urine Test, for which he received 84 days off contact visits.

• 01/10/2005, Fall Urine Test, for which he received 42 days off contact visits.

The drug related nature of three of the above offences indicates that [the defendant] may have unresolved addiction issues. [It’s] questionable whether the two earlier punishments were a specific deterrence, as [the defendant] has not received any visits since 30th March 2005.

Nevertheless, a perusal of [the defendant’s] institutional misconducts during previous periods of incarceration revealed a pattern of more serious institutional misconducts, including fighting, intimidation, abusive language, etc, which indicated that he has moderated his behavior in more recent years. Custodial staff confirmed this, describing [the defendant] as reliable and compliant albeit a bit of a nuisance sometimes, as he is generally to be found in or around the wing office. Staff attributed this to [the defendant's] fear of other inmates, as he is known amongst inmates, staff said, as an informant.

Participation in Pre-Release Leave Programs

By virtue of his E (escapee) classification and protection status, [the defendant] is ineligible for Pre-Release Programs.

PROGRAMS AND SERVICES IN CUSTODY

Psychological

Although generally unwilling to engage in programs, [the defendant] self refers to the psychologist on occasions, when he worries about his mother. According to the psychologist and area manager, he has been doing this for a long time, although his mother, he stated, is reasonably well at the moment It appears, from conversations with the inmate and staff, that [the defendant] is somewhat emotionally needy.

In interview, the psychologist, Area Manager and Unit Custodial staff described [the defendant] as “institutionalized". Indeed [the defendant] described himself thus during an informal conversation, as did his honor [sic] in the sentencing remarks. This conclusion appears to be based upon [the defendant’s] frequent and lengthy periods of incarceration throughout his life, together with traumatic childhood events whilst institutionalized. [The defendant's] poor history of reintegration into the community during periods of liberty appears to confirm this conclusion.

It may be reasonable to conclude that [the defendant] may require intensive support and supervision to assist him to successfully reintegrate into the community, notwithstanding his reluctance to accept supervision. Given his reluctance in this regard, it is difficult to suggest how [the defendant] may be assisted to succeed upon his release from custody.

Employment

[The defendant] is employed as the wing sweeper in the protection unit of Parklea Correctional Centre. He has held this position for approximately two years. The area manager described [the defendant] as a "trusted and reliable" inmate.

85. On 5 February 2008, Mr Haggerty produced a Supplementary Pre-Release Report. He observed the following:

Correctional Centre Behaviours: Since the matter was last before the Authority [the defendant] has acquired 4 further institutional charges.

30 March 2007	Possess Create Prohibited Goods	28 days off Buy Ups
3 April 2007	Possess Create Prohibited Goods	7 days off contact visits
21 April 2007	Intimidation	3 days In cells
9 July 2007	Possess Create Prohibited Goods	1 day off television

When asked about the above offences, the inmate denied having any institutional charges.

[The defendant] recently applied for continued SMAP status. The inmate initially became a SMAP inmate as a result of assisting Police investigations in the past and evidently considers it is necessary to remain segregated for his own protection. [The defendant] said that he wished he had never helped the authorities.

Education: [The defendant] has participated In Education whilst at MNCCC from September 2007 until December 2007.

Employment: [The defendant] Is the hairdresser In the SMARPed and reports are that he takes this responsibility seriously.

Programs: [The defendant] has limited access to programs due to his SMAP status, additionally; his continued denial of guilt further impinges on his ability to be included in CUBIT or CORE as does the inmates outright refusal to participate.

86. On 22 November 2017, Ms Priest confirmed that the defendant’s classification was approved on 17 November 2017 for him to progress “from an E2 Medium Security (Escapee) Inmate to a C1 Minimum Security Inmate”.

87. As to the defendant’s behaviour in custody, Ms Priest observed: “[the defendant] has not incurred any Institutional Misconduct's since the provision of the Anniversary Report dated 8 October 2017” (being a period of almost 2 months at the date of her report).

88. Ms Priest also reported that, on 13 November 2017, a Custodial Officer at Junee Correctional Centre advised that the defendant “mixes well with other inmates, has had the same cell mate the whole time he has been in Junee, no issues with them, maintains a walking stick and has some mobility issues, no trouble within the Unit pretty quiet compliant to routine and direction”.

89. Mr Ardasinski made the following observation as to the defendant’s behaviour and progress in custody:

18. [The defendant] has been largely managed on protection whilst incarcerated, and since he has cumulatively served such a lengthy period in custody, he exists quite comfortably in the custodial environment. The majority of his case-notes indicate that he is mostly a compliant inmate, with few issues raised from a security standpoint He has been described as "short tempered" at times (e.g. Watene, 12/2/17, OIMS), but his demeanour and attitude towards custodial staff appears to have improved markedly since he was first incarcerated for the current charges in 2011.

19. [The defendant] has received a number of institutional misconducts over the years, but only three (3) during his current term of imprisonment: Fail to Comply with Correctional Centre Routine (26/8/12), Disobey Direction (11/6/18) and Stealing (22/3/17).

20. [The defendant's] mobility issues, which are associated with his chronic back pain, have restricted his capacity to undertake custody-based employment during this sentence. Educational and other programs have also been avoided during the current term of imprisonment, until his commencement in his current treatment program.

90. Mr Ardasinski also reported that, during his time in custody, the defendant turned “on his fellow prisoners as an informant, which resulted in his not sitting neatly within either the ‘us’ or ‘them’ camp in prison settings”.

Reports of Court Appointed Experts   

Diagnoses by the Court Appointed Experts

207. Those factors are also relevant to the granting of the conditions sought by the State. It should be re-emphasised, in that respect, that the court appointed experts generally supported the conditions proposed. I will deal with particular objections by the defendant below.

CONDITIONS   

Submissions – General   

208. The parties made submissions regarding the making of conditions with respect to an extended supervision order.

209. The State, in this respect, relied upon the opinion of Dr O’Dea. He opined that the proposed conditions and anticipated plans in the Risk Management Report of Ms Kirkwood would address the defendant's risk of further serious sex offending. Dr Seidler opined that some conditions were unnecessary given the defendant's "past sexual offending".

210. The State, in this respect, relied upon the decision of the Court of Appeal in Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 (at [53]):

Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.

211. In the event the Court was minded to grant the extended supervision order sought, the defendant initially advanced the submissions developed at the preliminary hearing. It was contended the order should be for a duration in the range of 12 months and the conditions should be limited to those necessary to reduce risk. The conditions should reflect the level of identified risk of this particular defendant rather than standard conditions that are ordinarily imposed. It was contended that the conditions proposed by the State were onerous and the Court should have regard to the relevant authority.

212. The defendant’s submission was supported by reference to the following authorities: State of New South Wales v Burns [2014] NSWSC 1014 at [59]; State of New South Wales v Green (Final) [2013] NSWSC 1003; and State of New South Wales v Bugmy [2017] NSWSC 855 at [89].

213. Further short submissions were advanced by both parties at the final hearing, which were directed to particular controversies regarding conditions. Those submissions are reflected in the discussion below.

Submissions – Particular Issues   

214. The primary focus of the defendant’s contentions, as to the conditions sought by the State in Annexure A to the further amended summons, were as follows: electronic monitoring (conditions 4-6); schedule of movements (conditions 7-10); and access to the internet and electronic communications (conditions 38-41). I shall address each issue seriatim.

Electronic monitoring and schedule of movements

215. The defendant contended that the Court would not be satisfied to the relevant threshold that the conditions relating to both electronic monitoring and the schedule of movements were required to mitigate against the risk of further serious sex offending.

216. Further, as to the duration of the sunset clause proposed at condition 5, it was contended by the defendant, that should the Court be minded to make an extended supervision order, with the conditions proposed by the State, condition 5 would require reconsideration depending upon the duration of the order, particularly if the order was for a duration less than 3 years.

217. The State relied, in this respect, upon the observations and findings of Button J at the preliminary hearing (at [38]-[40]), extracted below:

[38] As for the disputed conditions, the first three of them pertain to electronic monitoring. Counsel for the defendant submitted that that is simply uncalled for, in light of the passage of time since the commission of the last sexual offences in 2001, the degree of optimism in the risk assessment report, and the period already spent living quietly without incident.

[39] I respectfully accept all of that. But the fact is that, on two separate occasions, whilst out and about in the evening, the defendant inflicted horrific sexual violence on two young females, which unquestionably had grave, perhaps lifelong, psychological consequences for its victims. One of those incidents was denied for a time, and one of them has never been admitted. More generally, over the years the defendant has shown himself capable of other acts of profound violence as well. He also possesses a longstanding proclivity to abscond, demonstrated by his repeated convictions for escape. In all the circumstances, I think that electronic monitoring, in the measured terms proposed, is indeed appropriate.

[40] For the same reasons, I consider that the provision of a schedule of movements is also apposite.

218. The State contended that both court appointed experts recognised the utility of electronic monitoring. Reference was also made to the defendant’s accommodation in a retirement home, with “vulnerable” people; an observation that was also regarded as a relevant consideration to risk assessment, by Dr O’Dea.

219. As to the same, the State submitted such a measure was “appropriate” and responded to “specific facts” of this case. The State made reference to the particular operation of the condition, namely, with compliance, the defendant’s risk would be deemed less and “then the stages of supervision can progress”.

220. Turning to the schedule of movements, the State submitted that such conditions assist with risk reduction through the provision of structure. It was contended, in this respect, that the defendant lacked the skills or motivation to implement routine on his own. When Dr Seidler questioned the defendant on his plans for his future the defendant's answers were "vague" and the defendant told Dr Seidler that "he does not intend to do anything consistently productive with his time". This will elevate his criminogenic risks.

221. Regard was also had to the affidavit of Ms Caffery. She deposed how particular conditions propose to reduce the defendant’s risk of re-offending. First, electronic monitoring and a schedule of movements reduce the risk of impulsive offending (a behaviour of antisocial personality disorder) and enable the ESO Team to intervene when necessary to prevent access to potential victims. The State submitted, this is relevant to the defendant’s circumstances: “[t]he defendant has a history of several offences of escapes lawful custody and lives on the border of NSW and Queensland. He has expressed to the experts resentment for being on the ESO and there is a risk, in the event he no longer has his family as a protective factor, of evading the jurisdiction”.

222. In advancing its submissions, the State noted the opinion of Dr O’Dea that the provision of schedules in advance has utility but can be difficult for offenders. As to this difficulty, the State highlighted the “flexibility” of the conditions and referred to a selection of instances in the OIMS case notes in which the defendant’s schedule was modified on 27 September 2018, 30 and 31 October 2018.

223. With respect, I consider the reasons given by Button J in the preliminary hearing for ordering the conditions in the Schedule to the amended summons regarding electronic monitoring and the schedule of movements provisions are compelling. The material provided in the final hearing merely reinforced those conclusions.

224. When that evidence as to electronic monitoring and the schedule of movements is taken together with, inter alia, the evidence of the defendant’s substantial criminal background, which includes several convictions of escape lawful custody; his well-documented difficulties and poor attitude towards authority and with supervision (albeit with more recent improvement); and his location at Tweed Heads on the border of NSW and Queensland, the conditions sought by the State are appropriate. The measures will enhance the safety to the community by encouraging compliance, particularly having regard to the operation of a sunset clause and the imposition of structure and routine vis-à-vis the schedule. The encouragement of an avoidance of deceptive behaviour, will reduce the risk of re-offending.

Access to the internet and electronic communications

225. The defendant contended, in this respect, “there is no associated risk with this defendant using any form of social media or electronic devices to further in any way his capacity to commit a further serious offence”. The defendant then proceeded to distinguish the defendant from other types of sex offenders, to which such conditions may be required:

If this was a sex offender before the Court who had a history of grooming people, children on line, or meeting people on Tinder and then committing sexual offences, there would be less weight to any objection to these conditions. But this is a man who is living in a retirement village with his mother, no indication during the period of the currency of the interim supervision order there has been any difficulty whatsoever with internet or access to the internet or any efforts at grooming or anything of that kind.

226. As to that submission, I note the findings of Button J at the preliminary hearing (at [43]-[44]):

[43] The final conditions that were in dispute pertained to monitoring of access by the defendant to the internet, and his use of other electronic communications. The point was soundly made by counsel for the defendant that neither the internet, nor mobile phones, nor any other electronic or digital device or method of communication were part of the sexual offending of the defendant.

[44] So much may be accepted. But at the time of at least some of that sexual offending, mobile phones were not widely available, and the internet was in its infancy. Quite apart from that, regrettably, over many years, by way of his offending against property, the defendant has shown himself to be a chronically dishonest and untrustworthy person. At least for the period of the ISO that I will impose, I consider that restriction and monitoring of his use of the internet and other forms of electronic communication are indeed appropriate.

227. The State, in this respect, primarily contented that such conditions provide “a measure of oversight in relation to who he is communicating with, perhaps for the purposes of monitoring his substance use disorder, should he re-engage with selling drugs as he did in 2011”.

228. On balance, I find that it is appropriate to impose these condition in the terms proposed by the State and without further modification. Whilst accepting the defendant did not previously have access to internet at the time of his offending, I reach this decision having regard to the scope, purpose and objects of the Act, and find it is appropriate to impose such conditions, particularly as a form of oversight in light of the remarks of Button J at the preliminary hearing and the submissions of the State, so as to address the risk of future sexual offending.

Duration   

229. As to duration, the State submitted that the appropriate period for an extended supervision order is 3 years. This was supported by the aforementioned evidence of nature and extent of the defendant's past offending, identification of the risk of further offending, and the defendant’s antisocial personality disorder.

230. I turn firstly to the opinion expressed by the court appointed experts. Dr O'Dea supported an extended supervision order for a duration of 3 years, which “should be regularly monitored, reviewed and modified as appropriate every 6 to 12 months, dependent on his progress”. He considered that the defendant required management and supervision in the long term and also commented that the proposed conditions and anticipated plans in the Risk Management Report would address the defendant's risk of further serious sex offending.

231. In contrast, Dr Seidler opined that supervision for 3 years was unnecessary with respect to the defendant’s risk of sexual recidivism and opined that the duration could be reduced to 12 months. It may be noted, Dr Seidler commented that, if an extended supervision order was addressing “general risk” then a duration of 3 years would be justified in the light of the defendant's "antisociality and... institutionalisation". Thus, Dr Seidler considered supervision of moderate intensity would manage the defendant's risk "although [the defendant] may need greater intervention and active management in relation to his general criminal risk".

232. Mr Ardasinski opined that the defendant would benefit from “ongoing supervision and professional support” and “the long-term aim would be to foster problem-solving and stress-coping abilities in [the defendant] such that he no longer requires the assistance of external bodies to contain his risk of sexual or other offending”. He did not express an opinion as to the specific length of either supervision or support.

233. As to duration, the defendant made the following submission:

[I]f the Court was satisfied to the relevant threshold in being so satisfied, the Court might just be over the line, or the Court might be very far over the line. If the Court is very far over the line, that might extend to a longer order. If the Court is just over the line, noting the age of this defendant, the obvious health issues, even though they are not particularised in any greater way, the Court in my submission would err towards the lesser period.

234. The State submitted it is difficult to reconcile the opinion of Dr Seidler, in this respect, given the defendant's antisocial personality disorder, which according to Dr Seidler, was the dynamic risk factor that leads him to commit serious sex offences.

235. The State also submitted that the opinion of Dr Seidler exceeded the scope of her appointment: “[w]hat Dr Seidler was appointed to assist the court with was an assessment of his risk, not how that should be dealt with in terms of time, and that’s why it’s often a legal question”.

236. Counsel for the State maintained that “there is an ability for the defendant to seek a variation or a revocation under s 13 and then to put before the court why the ESO is no longer necessary because of a change in circumstances, but for your Honour to shorten the duration on the possibility that that risk may change is inviting speculation on the fluctuation of risk, whereas at this stage your Honour is just being invited to consider the risk upon the evidence before the court”. In reply to the State’s contentions, with respect to the capacity for an order to be varied by a mechanism of the Act, the defendant submitted: “That potential option for the defendant within the legislative regime does not in any way facilitate the Court getting over the relevant threshold in terms of whether or not an order should be made and if the Court does get over that threshold, then it gets over it either just, comfortably or incredibly comfortably”. It does not assist.

237. In light of the evidence before the Court, I consider the appropriate period for an extended supervision order to be that proposed by the State. The order, therefore, should be made for 3 years. In the event that medical evidence emerges as to the nature, extent and duration of any physical afflictions of the defendant that would shed further light on the nature and extent of the risk and, in particular, the appropriate duration for supervision, then an application for variation may be made by the defendant.

CONCLUSION   

238. The orders made and entered with respect to this matter on 10 December 2018 were made for the foregoing reasons.

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Annexure_A (397 KB, pdf)

Decision last updated: 07 February 2019