State of New South Wales v Cruse (No. 2)
[2014] NSWSC 128
•14 March 2014
Supreme Court
New South Wales
Medium Neutral Citation: State of New South Wales v Cruse (No. 2) [2014] NSWSC 128 Hearing dates: 26 & 27 February 2014 Decision date: 14 March 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. Orders that pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 ("the Act") the Defendant be subject to an extended supervision order for a period of 5 years from the date of the order.
2. Orders that pursuant to s 11 of the Act, for the period of the extended supervision order, the Defendant is directed to comply with the conditions set out in the Schedule to this Order.
3. Notes that:
a. Pursuant to s 10(2) of the Act, the Defendant's obligations under the extended supervision order are suspended while the Defendant is in lawful custody whether under this or any other Act or law.
b. Lawful custody for the purposes of s 10(2) of the Act may include detention as an involuntary patient in a mental health facility under the Mental Health Act 2007, or escorted leave from any such facility, at least in circumstances where the Defendant's freedom is directly controlled and limited.
4. Directs that access to the Court file in respect of any document shall not be granted without leave of a Judge of the Court. If any application is made by a non-party in respect of any document, the parties are to be notified by the registrar so as to enable them to be heard.
5. Grants liberty to apply on two day's notice.
Catchwords: CRIMINAL LAW - Crimes (High Risk Offenders) Act 2006 - serious sex offender - sexual offending commenced when offender was 17 - multiple offences - offending when under the influence of drugs and alcohol - application for extended supervision order - whether offender an unacceptable risk of commission of further serious sex offences - conditions of supervision order - whether offender should be barred from viewing R18+ material - whether offender should be prevented from access to offender's young sons - whether s 11(g) of the Act inconsistent with Family Law Act - requirement to take prescribed medication - length of order Legislation Cited: Bail Act 1982 (WA)
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Serious Sex Offenders) Act 2006 (NSW)
Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW)
Evidence Act 1995 (NSW)
Family Law Act 1975 (Cth)
Family Law Regulations 1984 (Cth)
Family Violence Act 2004 (Tas)
Family Violence Protection Act 2008 (Vic)
Judiciary Act 1903 (Cth)
Mental Health Act 2007 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Telecommunications Act 1997 (Cth)Cases Cited: AA v BB [2013] VSC 120
Commonwealth of Australia v The Australian Capital Territory [2013] HCA 55
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; 198 A Crim R 149
Director of Public Prosecutions (WA) v Williams [2007] WASC 206; 176 A Crim R 110
Dunne v P [2004] WASCA 239; (2004) 29 WAR 232
Faheem Khalid Lodhi v Regina [2007] NSWCCA 360
Juries Against Illegal Laws Incorporated v The State of Tasmania [2010] FCA 578
P v P [1994] HCA 20; (1994) 181 CLR 583
State of New South Wales v Conway [2011] NSWSC 976
State of New South Wales v Richardson (No. 2) [2011] NSWSC 276; (2011) 210 A Crim R 220
The State of NSW v Colin John Fisk [2009] NSWSC 778
Veen v The Queen (No 2) (1988) 164 CLR 465
Victoria v The Commonwealth (1937) 58 CLR 618Category: Principal judgment Parties: State of New South Wales (Plaintiff)
Edward Frances Cruse (Defendant)Representation: Counsel:
H Bennett (Plaintiff)
G Scragg (Defendant)
Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s): 2013/339906
Judgment
On 9 November 2007 the Defendant was sentenced in respect of three serious sex offences being two counts of assault with an act of indecency and sexual intercourse without consent (the "index offences"). The victim of these offences was his step-daughter who was 16 years old at the time. He was sentenced overall to a non-parole period of four years commencing 10 December 2007 and concluding 9 December 2011 with an additional term of two years expiring 9 December 2013. He did not seek, and has not been granted, parole and his overall sentence expired on 9 December 2013.
On 5 December 2013 the State of New South Wales made application for an extended supervision order under s 9 of the Crimes (High Risk Offenders) Act 2006 (NSW) ("C(HRO) Act") and sought interim supervision orders under ss 10A and 10C. On that day I made an interim supervision order for 28 days which has been three times extended. This interim order expires on 9 March 2014. This judgment concerns the State's application for a final order under the Act.
The index offences are not serious sex offences because the Defendant's stepdaughter was an adult for the purpose of the Act (see the definition of child in s 4) and the offences were not committed in circumstances of aggravation within the meaning of ss 61I and 61L Crimes Act 1900 (NSW) (see s 5(1)(a) C(HRO) Act). However, the Defendant had been previously convicted on 30 April 1993 of offences that amount to serious sex offences. I shall refer to these offences later in this judgment. The Defendant's conviction in 1993 for these offences means that he is a sex offender within the meaning of s 4 of the Act. Since the Defendant was in custody at the time the present application was made he is a supervised sex offender - s 5I. That enables the State to make the present application - see s 5H.
What had to be demonstrated for an ESO to be made was formerly found in s 9(2) of the Act but is now to be found within the definition of a high risk offender in s 5B(2).
The Act was formerly known as the Crimes (Serious Sex Offenders) Act 2006 (NSW). It was amended, relevantly, by the Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW) which rearranged important sections of the Act to accommodate the inclusion in the Act of what are called high risk violent offenders. However, despite the rearrangement of various provisions in the Act, identical or similar wording of these provisions has been been maintained so that the learning which had been developed in the case law will remain of assistance.
Section 5B provides that if and only if the offender is a high risk sex offender can an extended supervision order be made. Section 5B(2) says:
An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.
In Director of Public Prosecutions (WA) v Williams [2007] WASC 206; 176 A Crim R 110 Wheeler JA (with whom Le Miere AJA agreed) said at [63]:
In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
In Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; 198 A Crim R 149 Steytler P and Buss JA said at [27]:
The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk - A return to basics (2006) 20 AJFL 249, 252), the advantage of the phrase 'unacceptable risk' is that 'it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case ... '.
In State of New South Wales v Richardson (No. 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 I said at [90]:
Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. ...
The Defendant's background
The Defendant's personal background is set out in some detail in the reports of the psychiatrists Dr Jeremy O'Dea of 23 January 2014 and Dr Andrew Ellis of 7 January 2014. It is not necessary to repeat that history in this judgment. It is sufficient to note that the Defendant is an Aboriginal man brought up in a home that involved violence and alcohol. His father died when he was very young and at the age of about ten he was sent to a boys' home in Goulburn. He ran away from that home and was sent to another home in Tumbarumba where he says that he was physically and sexually abused by his foster parents.
That abuse appears to have affected him significantly because, for a period of time, he explained his subsequent criminal sexual behaviour by reference to it. Although, as will appear later, the Defendant seems to have accepted his wrongdoing and the involvement of alcohol and cannabis in his offending, the physical and sexual abuse he endured as a teenager reappeared during the assessment by the psychiatrists in recent times.
The Defendant has a long history of sexual offending.
In August 1974 at Tumut Children's Court he was charged, at the age of 17 years, with rape. The circumstances were that the Defendant had consumed alcohol and entered the bedroom of the victim who was aged 15 years and was "severely mentally retarded". He engaged in penile/vaginal intercourse and was disturbed when the victim's sister turned on the light and screamed. The Crown accepted a plea at Goulburn Supreme Court on 14 February 1975 to a charge of carnal knowledge. By way of sentence he was committed to the care of the Bungarimbul Anglican Children's Home for a period of two years and six months.
On 15 September 1980 he was convicted at Port Augusta Criminal Court of attempted rape. He had become infatuated with a young woman living next door to him. He attempted to get her drunk and then tried to force her to have sexual contact. He was sentenced to nine months hard labour.
In October 1983 he was convicted at the Court in Moruya of two charges of sexual intercourse without consent and assault a person with an act of indecency. The victim was a three year old boy. The Defendant did not know the child or his family. The Defendant entered the victim's house at night and laid down with the child in his bed. He inserted his penis into the child's mouth and took the child's penis into his own mouth. The Defendant was very drunk at the time and said he could not recall the details due to his intoxication. He was sentenced in Wollongong Supreme Court on 5 November 1984 to concurrent sentences of 3 years and 6 months.
In September 1991 the Defendant grabbed a ten year old girl by the hand in a shopping arcade and pulled her into the men's toilet. He penetrated the child's vagina with this fingers and forced her to fellate him twice ejaculating into the child's mouth on each occasion. He was charged and released on bail.
In January 1992 whilst he was on bail for those offences he was introduced to a 16 year old woman at a hotel dance. He offered to drive her home. He drove past her house, stopped the car at a boat ramp and made advances towards her. She tried to get out of the car but was pulled back by the offender who forcefully touched her breasts and tried to kiss her. The Defendant punched her in the face and digitally penetrated her while she continued to struggle. To stop her struggling he jammed his fingers down her throat causing her to choke.
On 30 April 1993 he was sentenced in relation to all of these offences with both victims. (These were the serious sex offences referred to earlier.) He was sentenced to eight years imprisonment with a minimum term of five years and six months. He was refused parole in 1998 and later opted not to reapply. He was released at the end of the head sentence in January 2001.
The facts involved in the index offences are these. The victim was the daughter of the Defendant's partner and the assaults took place in the bedroom of the daughter, a bedroom she was sharing with her two younger sisters at the family home. The Defendant had been drinking heavily. He entered the bedroom and laid down beside the victim who was sleeping on a mattress on the floor. He fondled and squeezed her breasts and left in response to complaints from one of the other girls in the room. However, he later returned and put his hands inside the victim's shorts and put his finger in her labia although the Sentencing Judge indicated that there was no significant penetration. He then licked the victim on the outside of her boxer shorts in the area of her vagina.
The Sentencing Judge, whilst noting the seriousness of the offence which included the large difference in age and the fact that the victim was a member of his household considered that the offences were at the low end of the seriousness range and sentenced accordingly.
The State sought and obtained information about the Defendant's history from other organisations and jurisdictions. Some of the material obtained was from the Australian Federal Police about two alleged rapes in Canberra in late 1985. The Defendant was investigated as part of the enquiries.
The Defendant objected to the evidence about these matters being admitted, relying on s 135 Evidence Act1995 (NSW). The State relied on s 25 of the C(HRO) Act to argue that the material must be admitted. Section 25 relevantly provides:
(1) The Attorney General may, by order in writing served on
any person, require that person to provide to the Attorney General any document, report or other information in that person's possession, or under that person's control, that relates to the behaviour, or physical or mental condition, of any offender.
...
(3) Despite any Act or law to the contrary, any document or report of a kind referred to in subsection (1) or (2A), or any copy of any such document or report, is admissible in proceedings under this Act.
The State argued that subs (3) had the effect that s 135 Evidence Act had no operation with respect to material obtained under s 25. After the hearing concluded and I had reserved my decision an email was sent to my associate from the Crown Solicitor explaining that the material from (inter alia) the Australian Federal Police was not obtained pursuant to s 25. Its admissibility was, therefore, at large.
Mr Scragg, for the Defendant, argued that the material's prejudicial nature outweighed its probative value particularly because the Defendant was not convicted. In fact the matters did not proceed to trial.
The evidence is, in the first place, relevant to matters listed in s 9(3)(a) and (i) of the C(HRO) Act: State of New South Wales v Conway [2011] NSWSC 976 at [39]. In most circumstances allegations alone are likely to be sufficiently prejudicial that they would outweigh any probative value. In the present case, however, records of interview with the Defendant demonstrate some concerning admissions. In an interview on 10 December 1985 this appears:
Q58. The girl has also told us that you punched her about the face several times when you were in the grassland area. What do you have to say to that.
A. I wanted to hit her but I didn't want to hurt her real bad.
Q59. Why did you want to hit her.
A. I wanted to get physical with her to keep her there.
Q60. Did you in fact punch her.
A. I remember punching her but I can't remember having a clenched fist.
Q61. Why did you punch her.
A. Because she didn't want to have sex with me.
Q62. Where did you punch her and how many times.
A. I think I punched her in the side to start with and then I remember hitting her a couple of times in the face.
Q63. What happened then.
A. She then agreed to have sex if I didn't punch her.
Q64. Did you have sexual intercourse with her.
A. Yes I did.
Q65. Can you tell me how you did that.
A. I undone my trousers and lifted her dress and layed (sic) her down on the ground and then I got on top of her and had sexual intercourse with her.
Q66. Why did the girl have sexual intercourse with you.
A. So that I wouldn't hit her anymore.
...
Q71. Where did you go.
A. We went down to a drain way and continued having sex down there.
Q72. Why did the girl go down there with you.
A. I don't think she said anything when I asked her to go down to the drain.
Q73. Do know why she went with you to the drain.
A. Probably afraid of getting hit again. I wasn't going to punch her again anyway.
...
Q98. ... What did you do after you grabbed the woman.
A. I saw that one of the doors was partly open and I had asked her to go in there she said what are you doing this for I think I said I'm not going to hurt you I just want your money and after I had got her into the room I asked her to take her clothes off.
Q99. Can you describe that room for me.
A. It was a very small tool shed or something.
Q100. Why did you ask her to take her clothes off.
A. Because I wanted to have sex with her.
Q101. What happened then.
A. I then took my clothes off, not completely, and asked her to have oral sex, she said I don't know what to do cause I haven't done this before I then told her just to put it in her mouth, after doing that for a short time I asked her to turn around and lean forward then I had sex with her from that position.
Q102. Was the woman agreeable to having sex with you.
A. She probably wasn't agreeable but there was no indication shown by her that she wasn't.
The last segment of the extract (questions 98 to 102) concerns a second woman with whom the Defendant had sex on the same evening as the woman discussed in the earlier parts of the record of interview.
There was no evidence before me to suggest that the admissions contained in the record of interview were not freely made. The admissions of violence in connection with a desire for sex are consistent with some of the offences for which the Defendant has been convicted and are consistent with the assessments made of the Defendant by the psychiatrists. Its probative value far outweighs any prejudice to the Defendant.
Expert assessments of risk of re-offending
Narcisa Sutton
The Defendant was examined at the request of the Commissioner of Corrective Services by a senior psychologist with the Department, Narcisa Sutton. She prepared a report dated 8 October 2013.
A useful starting point is the Executive Summary of that report which relevantly says this:
Mr Cruse has a documented history of childhood trauma, as a member of the Stolen Generation, and has suffered frequent periods of clinical depression leading to suicidal ideation and behaviour. He also has a significant history of alcohol abuse, and there is evidence that the majority of his offences have been committed while heavily intoxicated.
Until his current period of incarceration Mr Cruse had been reluctant to participate in the Custody Based Intensive Treatment (CUBIT) Sex Offender Programme. He is now in the final stages of completing CUBIT and his participation appears to have been consistently conscientious. His written work, and his discussion of the dynamics of his offence behaviour demonstrate significant gains in insight.
Actuarial assessment of sexual offence risk, based on his offending history, places Mr Cruse in the high risk category relative to other sexual offenders. His therapeutic gains and reported family support may attenuate this risk level, as long as Mr Cruse remains abstinent from alcohol and committed to an offence-free life style. However in my view the stability of these gains is as yet unproven, thus his risk remains high and on-going supervision from Community Corrections would be essential to monitor his progress and assist with his goals. Mr Cruse stated that he is aware of his need for on-going assistance to maintain his treatment gains, and welcomes the added support an ESQ might provide.
Ms Sutton carried out a series of tests and assessments on the Defendant. Two of those which concern the likelihood of sexual re-offending are the Static - 99R instrument and the Risk of Sexual Violence Protocol (RSVP).
The Defendant's total score on the Static - 99R was 7 which places him in the high risk category relevant to other male offenders. The recidivism rate for those who score 7 is around 5.25 times higher than the recidivism rate expected for "typical" sex offenders (those scoring a two on the instrument). Around 96% of the sexual offenders in the routine sample scored below the Defendant's score.
The Static - 99R instrument has limitations which Ms Sutton acknowledges. This view was shared by the two psychiatrists who provided reports and gave evidence.
The RSVP was developed to assist in the identification and management of a comprehensive range of factors identified by the literature as related to sexual offending. It includes a total of 22 both static and dynamic factors grouped into five domains, sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. These factors are not mutually exclusive.
It is not necessary to detail all of the sub-categories of the five domains and how the Defendant fits into those categories and meets the criteria. It is sufficient to note that Ms Sutton concludes that the Defendant presents with risk factors in all but one of the domains covered by the RSVP. That, she said, suggests that the high risk score on the Static - 99R is an accurate reflection of his risk.
She concluded that when the Defendant is likely to re-offend it would most likely be while intoxicated. It is likely to be spontaneous rather than be preceded by the grooming of the victim. The offence is likely to unfold quickly and the victim is more likely to be an adolescent girl.
Ms Sutton also said that the Defendant's long history of sexual re-offending suggests that without ongoing support to implement the skills learnt in therapy, at least in the early stages after his release, he was likely to return to the high risk behaviours associated with his offending.
Ms Sutton examined various documents made available to her dealing with the Defendant's response to supervision at various times including when he had been on parole. His record in that regard was somewhat mixed although the most recent conditional liberty in 2005 was completed satisfactorily.
Dr Jeremy O'Dea
Dr O'Dea interviewed the Defendant at Dr O'Dea's rooms on 20 December 2013 and at the Munyara COSP (where the Defendant resides) on 16 January 2014 for a total of four hours. Dr O'Dea provided a detailed report about the Defendant's personal history. He also provided considerable detail about each of the sex offences in respect of which the Defendant has been convicted. In doing so he sought and obtained the Defendant's recollection of the offences together with his reactions to them.
In relation to the Defendant's reaction to his offending Dr O'Dea said this:
Whilst he conveyed remorse for many of activities through his life, in particular his sex offences, he readily returned to the injustices and trauma he had suffered through his life, often as direct or indirect justification for his actions.
Dr O'Dea considered the Defendant's main psychiatric problems were with long standing alcohol and cannabis use disorder, sex offending behaviours associated with his substance abuse, sexual deviance and personality problems including a diagnosis in 1992 of paranoid personality disorder. Dr O'Dea considered his longstanding Depressive Disorder and Post Traumatic Stress Disorder should be assessed and treated by a psychiatrist in the community in the long term. He thought successful management of his moods was likely to reduce the risk of further alcohol or other drug use and offending behaviour.
Dr O'Dea said that whilst his history of trauma and disadvantage might help understand the genesis of his substance abuse, forensic and psychiatric problems, Dr O'Dea did not draw a direct causal connection between his history of trauma and disadvantage on the one hand and his sex offending behaviours on the other. Rather, his sex offending was best understood in the context of his alcohol and cannabis abuse, his apparent sexual deviance including his reported awareness of a sexual attraction to female children, and his personality profile that would satisfy the psychiatric diagnostic classification of antisocial personality disorder.
His overall sex offending behaviours could be best understood in the context of a strong and deviant sex drive, often expressed impulsively when disinhibited by alcohol and cannabis use, and with coercive and sadistic components at times that might in part be instrumental.
Dr O'Dea said it was reasonable to assume that the Defendant has a significant risk of engaging in further sex offending behaviours including a risk of committing a further serious sex offence as defined in the Act.
Dr O'Dea considered that the judicious use of testosterone lowering medication was likely to prove the most effective intervention because it was unlikely that psychological therapies alone would adequately manage his risk of committing a further serious sex offence in the long term.
Of some concern was the Defendant's reaction to Dr O'Dea's suggestion of anti-libidinal medication. The Defendant told Dr O'Dea that he probably would not take such medication even if he was told to do so. He said he would take medication for anxiety, depression or pain but when it came to matters of sexuality he said he had worked on his offending behaviour through CUBIT.
Significantly, Dr O'Dea thought that the Defendant's risk of engaging in further sex offending behaviours in the community and of committing a further serious sex offence was likely to be relatively long term and of at least five years duration. He said, therefore, that from a psychiatric risk management perspective any appropriate risk management program should be long term and at least of five years duration. It should be regularly monitored and reviewed every six to twelve months depending on the Defendant's progress.
Dr Andrew Ellis
Dr Ellis interviewed the Defendant on 23 December 2013 for a period of three hours. He had available to him a large number of documents that formed part of the exhibits in these proceedings. At the time of the assessment the Defendant had been out of custody for two weeks living in a COSP facility. He was not working but was collecting a Newstart allowance. He was not taking any medication nor seeing any health professional but was scheduled to start a psychological group for sex offenders and to arrange drug and alcohol counselling.
Dr Ellis appears to have focused more closely on the Defendant's personal background and behaviours, and Dr Ellis did not go into great detail concerning the sex offences individually. However, when he gave an account of the offences to Dr Ellis he provided the following:
He describes being intoxicated with alcohol, or suffering from a hangover for all the offences. He reported that he enjoyed the feeling of orgasm during the offences, that they were exciting, that he was experimenting and that at the time he did not care about consequences. He thought that some of the victims were giving him signals, but that now he is aware that he was misinterpreting neutral behaviour. He thought at the time that he was entitled to sex, that others had taken it from him and had gone unpunished (referring to his repost of sexual abuse in childhood). He justified his actions as okay, and did not care that they were against the law. He reported that the offences towards children were motivated by his fascination for young girls, that he really enjoyed his first girlfriend, that this was an experience that felt like normal and not like being the kid from the boys home. He reported that he wanted to recreate this kind of experience for himself.
Dr Ellis also reported the following:
He reports that he has always had a "fascination" for school-aged females. He reports that their appearance is attractive to him, he finds them beautiful and the uniform is alluring. He reports that approximately 40% of his masturbatory fantasies have been directed towards under-aged females. He reports that he is more aware of this direction of his sexual arousal now, and it provides some kind of answer for him about his offending behaviour. He feels that he is trying to recreate his first sexual experience with his girlfriend.
Dr Ellis said that the Defendant now accepted full responsibility for his offences, that he was very selfish and greedy, and that he was not respecting the law or other people. Dr Ellis diagnosed him with Paedophilic Disorder, Alcohol Use Disorder, Cannabis Use Disorder and Post Traumatic Stress Disorder. He thought there was sufficient information to conclude a diagnosis of Personality Disorder with features of schizoptypy, borderline and anti-sociality.
Whilst recognising the limitations of Static - 99R Dr Ellis concurred with the total score provided in the report of Ms Sutton.
Dr Ellis said that deviant sexual arousal was consistently identified as the most prominent risk factor for sexual re-offence. He said that the Defendant's offence history indicated that pattern of arousal for some offences. Dr Ellis thought there was direct nexus between his masturbatory fantasy and criminal action. He noted psychological coercion used with some of the victims and serious physical coercion for at least one of the offences. Dr Ellis said that if alcohol and cannabis use was not addressed it might lead to further cognitive problems, poor emotional regulation and deviant sexual disinhibition.
Dr Ellis noted that he had completed a group sex offender treatment program whilst in custody. He said the persons who completed such programs were in a group that demonstrated lower rates of recidivism. He noted the Defendant's age and said that increasing age was associated with less general criminal behaviour and specifically less sexual offending.
Dr Ellis considered the type of possible sexual offence in estimating the Defendant's risk. He said the most likely type of victim would be a child or woman in a situation where they were alone or in a position of vulnerability. An additional victim could be a minor placed under the Defendant's supervision. Physical and psychological injury were foreseeable.
Dr Ellis thought the Defendant would fall into a group of persons where the risk of offending was high and greater than a theoretical average offender. Specific treatment and supervision would likely reduce the risk.
Dr Ellis thought that from a chemical perspective anti-libidinal medication was indicated in the Defendant's case if his mental state allowed it. Dr Ellis did not assess his capacity in that regard. As he did to Dr O'Dea, the Defendant indicated to Dr Ellis that he was not currently interested in that type of medication but would consider it if he was finding recurrence of paedophilic fantasy when in the community. Dr Ellis thought that the Defendant should be referred to a forensic psychiatrist with experience prescribing that type of medication so that the medical assessment and further explanation could be provided to him.
Dr Ellis thought that it would be ideal if the Defendant was reviewed by a forensic psychiatrist over the course of his rehabilitation. He thought the Defendant may benefit from anti-depressant medication. He thought that the Defendant would require formal intervention to assist in abstaining from both alcohol and cannabis. He thought that it would not be effective for the Defendant to rely solely on self-help groups such as the twelve step programs. He thought the Defendant might benefit from anti-craving medication for alcohol.
In relation to the frequency and intrusiveness of monitoring including electronic monitoring Dr Ellis thought it should be gradually reduced in response to positive progress.
In relation to the period of supervision Dr Ellis said this:
From a psychiatric perspective a period of five years is considered reasonable in order to establish a baseline function in the community, and refine the appraisal of risk. Paedophilia is a chronic, relapsing condition and resistant to treatment and rehabilitative efforts. He has multiple co-morbid psychiatric conditions that impact upon likely treatment and supervision response.
Dr Ellis thought that a period of 24 months would be required to secure stable accommodation, a stable mental state and regular, meaningful activity in the community. During that time he thought it unlikely that a person would have the focus to benefit from intense sex offender therapeutic activity. He said a further 24 months of regular treatment in a psychological program, coupled with review for the need for medication and review of medication would be necessary. The psychological program would focus on methods for controlling deviant sexual arousal. He suggested the additional 24 months because the Defendant's mental state, paraphilia, Substance Use Disorder and current attitudes to supervision meant that things would be unlikely to change in the short term. Finally, Dr Ellis thought a further period of 12 months would be required to monitor the consolidation.
He thought that the Defendant's psychiatric disorders were chronic and were likely to persist beyond any period of supervision. However, he thought that by the end of five years he would have reached an age where sexual offence recidivism was rare.
The Defendant's attitude to the order
Mr Scragg of counsel, who appeared for the Defendant said that whilst the Defendant would not consent to an Extended Supervision Order (ESO) such an order was not opposed. Mr Scragg accepted that there was evidence available which, if accepted, would justify the making of an ESO.
The Defendant, however, submitted that certain of the conditions sought to be imposed were inappropriate or unduly burdensome. In addition, the Defendant submitted that the period of the ESO should not be five years. The Defendant indicated that he would not oppose a term of two and half years.
The conditions which the State asks to attach to the ESO are, for the large part, conditions that are normally attached to ESO's for serious sex offenders. I accept that it is necessary to have regard to whether each and all of those conditions should be imposed upon any particular Defendant because particular matters relating to one offender might be of little significance for another.
I have looked carefully at the conditions sought to be imposed. Subject to what appears below in relation to the conditions that are opposed by the Defendant I consider that all of the other conditions should be attached to the ESO. In coming to that view I take into consideration that those conditions were not disputed by the Defendant.
Condition 20B
This condition provides:
The defendant must not contact or communicate by any means (directly or indirectly), or attempt to contact or communicate by any means (directly or indirectly) with any near relative of the victim of the index offence who is under the age of 16 years, unless such contact or communication is permitted by order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).
The condition sought at an earlier time by the State was this:
Without limiting condition 19 above [a condition preventing the Defendant from associating with any persons specified by the departmental supervising officer), the Defendant must not contact or communicate by any means (directly or indirectly) with, or attempt to contact or communicate by any means (directly or indirectly), with any near relative of the victim of the index offence.
Argument at the hearing was directed to the earlier form of this condition. What is contained in [66] above was put forward only when the matter came back for further argument on the day immediately preceding the day on which the final orders were required to be made. At the hearing the State submitted that the purpose of the condition was to prevent contact with the Defendant's two sons to his former partner Megan Perry. At the time of further argument the State submitted that the condition was also designed to prevent the Defendant having contact with the underage children of the victim's sisters.
The Defendant submitted that the prohibition contained in this condition should not extend to prevent him from having contact with his sons XYZ and ABC and their mother Megan Perry. It appears that XYZ and ABC are aged seven and eight years respectively. They were born to the Defendant and Megan Perry. The victim from the index offences was a child of Megan Perry from a prior relationship. It is not clear when the Defendant last had contact with his sons but Dr O'Dea reported that at the time he saw the Defendant, the Defendant had no current contact with his sons. It seems likely that he has not seen his sons since he was incarcerated in November 2007.
Nor is it clear when he last had contact with Megan Perry. The Defendant told Dr Ellis that he did not know the whereabouts of the boys as they had been in the custody of their mother or with the Department of Community Services. In fact an order to that effect was made by the Children's Court at Cooma on 31 March 2009 varying earlier orders made on 23 August 2006 and 21 February 2007.
The Defendant submitted, not only that this order if made should exclude any reference to his sons, but also that s 11(g) of the Act, which specifically enables the making of a condition that prevents an offender from associating or making contact with specified persons, was invalid as being inconsistent with the Family Law Act 1975 (Cth) at least insofar as it could be used to prevent an offender from having contact with his or her children.
There was some debate about this issue at the hearing and the question of the issue of Notices under s 78B Judiciary Act1903 (Cth) was raised by me and discussed with counsel. By reason of the need for any order to be made by 9 March (therefore, effectively 7 March because 9 March was a Sunday) I said this during the hearing:
Mr Scragg, my prima facie view is that the Act is not inconsistent, but there may be limitations on conditions that can be imposed under the Act. I do not think, at the moment, that it is a matter that I should adjourn proceedings to issue notices to the Attorneys General. I will hear anything further you want to say when we are dealing with this condition later on about it. I will give consideration to the 78B point in my final judgment. If I form the view at that stage that notice should be given, I will notify the parties and I will not issue a final judgment and I will bring them back. But I just don't think it is something I should now decide on the run when there are these time issues involved.
Notwithstanding, and without any reference to me, the Crown Solicitor issued s 78B notices to all the Attorneys-General in the Commonwealth. This created a serious timing problem because of the duty on the Court not to proceed in the cause until a reasonable time had elapsed since the giving of the notices (s 78B(1)).
I was advised on 6 March that responses had been received from all of the Attorneys indicating that they did not wish to be heard on the point. I was also advised that the parties had agreed on modifications to the proposed conditions that were said to overcome the constitutional problem. This also involved the Defendant withdrawing submissions asserting a conflict between the Family Law Act and the C(HRO) Act.
However, the problem raised cannot be solved in that way. The jurisdiction of the Court under the Act is not one that can be established or satisfied by consent between the State and a defendant either as to the making of an order or as to the conditions that are imposed. Section 11 requires the Court to consider the conditions "appropriate". A lack of opposition to any given condition may make it easier for the Court to find it appropriate but that will not necessarily be so. Further, when a constitutional issue is raised the Court must satisfy itself that any condition imposed does not conflict with any federal Law. This necessitated further argument on the issue on 6 March.
The delay occasioned by the issue of the s 78B Notices meant that orders had to be made on 7 March with reasons to follow.
The Defendant submitted that Part VII Family Law Act deals with children. In particular Division 2 of the Part provides for parental responsibility. S 61F provides:
In:
(a) applying this Part to the circumstances of an Aboriginal or
Torres Strait Islander child; or
(b) identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;
the court must have regard to any kinship obligations, and child-rearing practices, of the child's Aboriginal or Torres Strait Islander culture.
I note in passing that there was no evidence in these proceedings about kinship obligations or child-rearing practices of the children's Aboriginal culture. The relevance of the Defendant's reliance on this section was, therefore, obscure.
The Defendant pointed also to Subdivision D of Division 8 of Part VII which provides for circumstances where allegations of child abuse and family violence arise. The Defendant' argument appeared to be, by analogy with what was decided in Commonwealth of Australia v The Australian Capital Territory [2013] HCA 55, that s 11(g) of the C(HRO) Act cannot operate concurrently with the aforementioned provisions of the Family Law Act. The Defendant drew attention to s 68N Family Law Act and what is provided for in the definitions of family violence order and family violence in ss 4 and 4AB respectively. The Defendant pointed out that the C(HRO) Act is not a prescribed State Act under the Family Law Regulations for the purposes of the regime in Division 11 of Part VII of that Act.
The State argued that there is no inconsistency arising from any intention of the Family Law Act to cover the field that the C(HRO) Act is concerned with relevant to s 11(g). Further, the State argued that there is no direct inconsistency between the State and Commonwealth laws. At best there might be operational inconsistency if an order was made under Part VII Family Law Act that was otherwise incapable of performance by reason of the condition imposed pursuant to s 11(g). However, that is not the case here because no order had been made under Part VII.
In my opinion the State's arguments should be accepted. In P v P [1994] HCA 20; (1994) 181 CLR 583 the joint judgment said:
19. A law of the Parliament conferring jurisdiction upon a federal court in general terms will, in the absence of a clear legislative intent to the contrary, ordinarily be construed as not intended to confer jurisdiction to make an order authorizing or requiring the doing of an act which is specifically prohibited and rendered criminal by the ordinary criminal law of the State or Territory in which the act would be done. Of course, the nature of the jurisdiction or the matters which have historically been determined in the exercise of that or a like jurisdiction may suffice to make clear such a contrary intent.
20. Quite apart from any question of constitutional power, the reason why a law conferring jurisdiction in general terms is to be construed in the manner indicated is that it is ordinarily to be presumed that it is the intent of the Parliament that jurisdiction conferred in general terms will be exercised in the context of, and within the confines imposed by, the ordinary criminal law of the relevant State or Territory. That approach to construction is prima facie applicable to the provisions of the Family Law Act conferring welfare jurisdiction with respect to children of a marriage upon the Family Court.
21. On the other hand, that ordinary approach to construction does not extend to the case where the State or Territory prohibition under criminal sanction is not imposed solely as part of the ordinary criminal law, but is imposed as an integral part of a statutory scheme conferring upon a local judicial or administrative body jurisdiction or powers which overlap or compete with the jurisdiction conferred by the Commonwealth law. Nor is it applicable to a case where the State or Territory prohibition is imposed as part of a general regulatory scheme which operates within the very area which the jurisdiction validly conferred by the Commonwealth law was intended to control. In such cases, there is no presumption that it was the intent of the Parliament that the jurisdiction conferred by the Commonwealth law should be overridden by, or subjected to, the prohibitions and requirements of the overlapping or competing State or Territory scheme. If, in such a case, the terms and operation of the Commonwealth law disclose a legislative intent to cover the relevant field, s.109 of the Constitution will apply to render invalid the State or Territory law to the extent that it intrudes within the area validly occupied by the Commonwealth law. If the terms and operation of the Commonwealth law disclose no such legislative intent, the existence and extent of inconsistency between the Commonwealth and the State or Territory laws will depend upon the terms and operation of each. Commonly, when that is so, the State or Territory law will be inconsistent with the Commonwealth law and invalid pursuant to s.109 of the Constitution to, but only to, the extent that it would "alter, impair or detract from" (Victoria v. The Commonwealth ("the Kakariki")) the Commonwealth
law's conferral of jurisdiction by directly or indirectly precluding, overriding or rendering ineffective an actual exercise of that jurisdiction. The practical effect of that pro tanto invalidity of the State or Territory law is that orders made in the exercise of the Commonwealth jurisdiction will prevail over the provisions of the State or Territory law or orders made or acts done in the exercise of power or authority which the State or Territory law purportedly confers. (citations omitted)
The Court of Appeal in Western Australia in Dunne v P [2004] WASCA 239; (2004) 29 WAR 232 noted that the Bail Act 1982 (WA) was not a prescribed law of the state for the purposes of the definition of "family violence order" in the Family Law Act. The Court held that P v P was distinguishable because the prohibition in the Bail Act which made it an offence to breach a condition imposed on a defendant's bail was imposed as part of the general criminal law. The condition in that case was one which prevented the defendant from contacting his wife in any way. An order had earlier been made by a Court of Petty Sessions under the Family Law Act preventing the parties to the marriage from telephoning one another "save and except in the case of an emergency or matters affecting the welfare of the children". It was held that the bail condition was not invalid or inoperative.
In AA v BB [2013] VSC 120 Bell J held that there was no inconsistency between the Family Law Act and the Family Violence Protection Act 2008 (Vic). His Honour held at [105] that the Family Law Act did not intend to exclude State law with respect to family violence. Similarly, Marshall J held in Juries Against Illegal Laws Incorporated v The State of Tasmania [2010] FCA 578 that the Family Violence Act 2004 (Tas) was not invalid as being inconsistent with the Family Law Act.
I do not consider that there is indirect or "cover the field" inconsistency (see Victoria v The Commonwealth (1937) 58 CLR 618) between the Family Law Act and s 11(g) C(HRO) Act. Part VII of the Family Law Act assumes the existence of State laws in relation to such matters. Nor is there direct inconsistency because it is not necessarily the case that orders under each Act will be incapable of performance together. However, it may be the case that at some point operational inconsistency will arise. Sections 68P and 68Q Family Law Act contemplate such inconsistency and provide for it.
Provided that the condition imposed under the C(HRO) Act does not preclude the Defendant being able to apply under the Family Law Act, there is no present inconsistency between the two Acts. If the court having jurisdiction under the Family Law Act makes an order enabling contact with the Defendant's sons operational inconsistency may arise. As the State submits, there is no conflicting order at the present time.
If the condition does not preclude the right to apply under the Family Law Act, the ESO will not be removing any rights of the Defendant, contrary to the Defendant's submission.
An affidavit was read on behalf of the State which annexed a statement by the victim of the index offences pursuant to s 21A of the Act. The affidavit also annexed a statement from the victim's mother who was the former partner of the Defendant. There was no objection to this statement although its status and relevance must be doubtful. The statement said this:
I, Megan Perry, mother of [XYZ] and [ABC] wish that an AVO be taken, on our behalf, against Edward Cruz (sic). I as the parent also do not want him to have access to either of his children. I have no desire for him to know of the whereabouts of myself or the two boys. Further, I do not want him to know of their educational facilities or any personal; information.
Whilst I understand Ms Perry's perspective, the issue of contact with the Defendant's sons cannot be based on Ms Perry's views about the matter. This Court is not the appropriate place for the determination of the rights of parents to have contact with their children except insofar as the C(HRO) Act requires the imposition of a condition on an ESO based on the risks that must be considered from the evidence adduced on an application such as the present one. Nor is it appropriate for this Court to impose a condition that would prevent the Defendant from applying to the Family Court or other court given jurisdiction under the Family Law Act if he chooses to do so. Such a condition may well be struck down under s 109 of the Constitution.
Further, it is always open to a Defendant to make application to this Court under s 13 to vary or revoke an ESO which would include varying or revoking a condition imposed. If the Defendant wished to make contact with his sons it would always be open to him, if the Family Court was minded to accede to any such application, to apply to this Court also with evidence to have the condition varied or removed.
The purpose of the conditions of the ESO is not to punish the Defendant but to protect those who might be potential victims.
The Defendant has said to a number or doctors and psychologists that he is entirely heterosexual and has no homosexual inclinations. Nevertheless one of the victims of his offending was a three year old boy. As noted, the offence was committed when the Defendant said that he was very drunk and had in fact entered the wrong flat where the child was sleeping. He told Dr O'Dea:
I think it happened because I was insecure ... lonely ... and sexually inadequate ... I wasn't normal ... I'd just got out of a bad marriage.
In the light of Ms Sutton's opinion that re-offending was most likely to occur while the Defendant was intoxicated with the offence being spontaneous and the psychiatrist similarly being of the view that the combination of a deviant sex drive expressed impulsively when disinhibited by alcohol and cannabis, I consider that there is an unacceptable risk that the Defendant may commit a serious sex offence involving the boys. I note that there was no restraint on his actions despite the fact that the victim of the index offences was his step-daughter and the offence took place in the home.
On the other hand, I can see no basis upon which it is appropriate to restrict the Defendant from having contact with Megan Perry if he wishes to do so. If, as appears, she does not wish him to contact her she is in a position to say so to him and, if necessary, in appropriate circumstances, obtain an Apprehended Violence Order if that is what she fears. She is not a victim under this Act and her statement cannot provide a proper basis for so restricting the Defendant.
Nor, in the circumstances where the Defendant has no desire to make contact with the victim's sisters' daughters, is there any basis for this particular condition including other than the Defendant's sons. These other children are sufficiently protected by other conditions such as 19 and 25.
For the reasons given earlier the condition in should be varied to provide:
The defendant must not contact or communicate by any means (directly or indirectly), or attempt to contact or communicate by any means (directly or indirectly) with his two sons to his former partner Megan Perry unless such contact or communication is permitted by order of a court exercising jurisdiction under the Family Law Act 1975 (Cth). This condition does not prevent or restrict the Defendant making application to the Family Court of Australia or any other court having jurisdiction under the Family Law Act in respect of his sons.
Condition 34
This condition provides:
The Defendant must not purchase, possess, access, obtain, view, participate or listen to material classified as Refused Content, X18+, R18+, restricted category 1 and restricted category 2, or any other material as directed by the departmental supervising officer.
The Defendant submits that there should be no prohibition on his accessing material within the classification of R18+. The Defendant submits that this material is available to anyone over the age of 18 years with movies with such classifications being shown on television and cinemas.
The State argued that the Defendant should not be entitled to access material classified as R18+. I was taken to parts of the CUBIT treatment report which tended to show a link in the Defendant's mind between violence and sexual arousal particularly in relation to children. The following passages were said to be relevant:
25. ...As a result, his sense of entitlement increases and he becomes sexually aroused to thoughts of power and domination over vulnerable victims (e.g, children)
26. As a result of this work, Mr Cruse identified that at the time of offending the following factors resulted in a sexual offence: using alcohol and other drugs; not using supports; not managing thought of revenge; being sexually aroused to thoughts of violence; sexualising women and children; feeling sexually and emotionally inadequate; using sex to cope; being sexually preoccupied; and, being alone with children.
...
41. Historically, Mr Cruse had difficulties with his sexual self-regulation. He was sexually preoccupied, which manifested through prolific sexual activity (e.g., one night stands both in and out of longer term relationships, "private dancers", use of pornography and masturbation two or three times a day). Mr Cruse felt sexually inadequate in adult relationships. Therefore, he sexualised children (e.g., "she was dressed elegantly") and used sexual thought and behaviours to feel in control and adequate (e.g., sexual thoughts about children and violence).
...
43. It is recommended that Mr Cruse continue to monitor his sexual thoughts and behaviours, and implement strategies to manage inappropriate sexual thoughts. In particular, due to his difficulties managing thoughts of revenge and his sexual arousal to thoughts of violence, it will be important for Mr Cruse to take responsibility for his sexual thoughts and behaviour at times when he is having difficulty managing his emotions.
The State argued that violence was a significant issue in films with an R18+ rating. That could, however, be said also of films with lower ratings and about many television shows. It is necessary to be realistic and, as both Doctors O'Dea and Ellis said, to draw a line that is "practical and implementable". Where films classified as R18+ are shown on television, let alone at the cinemas, and there is no suggestion that the Defendant should not be permitted to watch television it is completely impracticable to include a condition that prevents his accessing such films.
It is, however, appropriate to restrict the Defendant from accessing material with the other ratings. I accept, as the psychiatrists acknowledge, that a healthy sexual outlet is important for the Defendant, but as Dr O'Dea said, with some agreement from Dr Ellis, the aim of his treatment was to refocus him away from sexual issues and particularly deviant sexual matters. His access to any form of pornography was not going to be helpful.
Condition 34 should be altered to omit any reference to material rated R18+.
Condition 37
This condition provides:
The Defendant must not use or attempt to use equipment for the purposes of recording still or moving photographic images of persons reasonably known by the Defendant to be the age of 16 years or under.
The Defendant submits that he should not be prevented from taking photographs of his sons XYZ and ABC. Because of the determination I have made in relation to condition 20B this consideration does not arise. However, the parties agree that there should be added to the condition the following:
unless those persons are his children and contact with those children is permitted by order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).
In the light of the foregoing discussion I also agree that it is appropriate to add those words to the condition.
Condition 47
This condition provides:
The Defendant must take any antipsychotic, anti-libidinal (including SSRI's) or other prescribed medication if and as prescribed by a medical practitioner. The note at paragraph 52 below applies.
Paragraph 52 provides:
It is noted that the "reasonable directions" (in condition 3) and the participation in treatment (in conditions 46 and 47) do not include participation in treatment, or requiring the Defendant to take medication that may be prescribed, without his informed consent.
The Defendant submitted that he should not be required to take anti-libidinal medication. He accepted that, in the first instance by reason of paragraph 52, the Defendant cannot be forced to go onto anti-libidinal medication. Indeed, the psychiatrists say that no-one should be forced to take it against their will. That would have to be true of other medication prescribed for the Defendant also including any anti-depressant medication. The only people forced to take medication are involuntary patients under the Mental Health Act 2007 (NSW) or perhaps the Mental Health (Forensic Provisions) Act 1990 (NSW).
The Defendant's concern is that if, at some stage the Defendant agreed to take anti-libidinal drugs but then did not want to continue with them, he would be in breach of condition 47 with possible criminal sanctions. This, of course, would apply to all medication in that situation.
It is not at all clear how the regime contained in paragraphs 46, 47, 49 and 52 of the conditions is supposed to operate. It is not appropriate that the Defendant be at risk of criminal sanctions for not wanting to take any drugs even if they are prescribed nor for not wanting to accept some form of psychological or psychiatric treatment. If paragraph 52 expressly enables the Defendant to refuse the drugs or treatment at the beginning it is illogical that he should not be entitled to refuse the drugs or treatment at a later time. It is not apparent what flows from, or happens after, a notification under paragraph 49.
Of course, in the long term it may work against the Defendant if he will not accept treatment, including by drugs. If he has not been rehabilitated by the expiry of the ESO a further application may be made by the State. I do not accept, however, that by the imposition of conditions under the present Act the Defendant can be forced to take medication or undergo treatment that he does not wish to undertake. As I have said, the psychiatrists, do not consider that course to be appropriate.
The regime set out in paragraphs 45 to 52 of the conditions is well-intentioned. It is useful if it remains to encourage the Defendant to follow professional advice in relation to all forms of treatment. In my opinion, paragraph 52, on its proper construction, is not confined to an initial refusal
to undergo treatment or to take a prescribed medication. It continues to apply so that if, at a later time, the Defendant does not wish to continue some form of treatment including taking medication he is free to do so subject only to making the notification required by paragraph 49. In that way, it is not necessary to remove the reference to anti-libidinal drugs from paragraph 47.
The length of the ESO
The State sought the maximum period of five years during which the ESO will be in place. The Defendant said that he would not oppose an order for two and a half years. The Defendant pointed to what was said by Howie J in The State of NSW v Colin John Fisk [2009] NSWSC 778 and what was said by Spigelman CJ in Faheem Khalid Lodhi v Regina [2007] NSWCCA 360.
The case of Fisk does not provide any assistance. Howie J noted that the State submitted the order should be in place for five years with the Defendant submitting it should be place for no more than 12 months. Howie J fixed on the period of three years based on his assessment of the risk of re-offending. He added:
Within that period the Defendant can seek a variation or revocation of the order and should have the onus. Thereafter the State can seek a further order and should have the onus to show that it is required for the protection of the public.
That is simply the position that the Act contemplates.
Lodhi was an appeal concerning (inter alia) the sentence for an offence concerned with terrorism. The issue of protection of society (Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 and 477) was a relevant consideration. In that context, Spigelman CJ said:
[106] The difficulty of predicting future behaviour, which is in any event inherent in other sentencing principles including general and personal deterrence and rehabilitation, is often referred to as one of the defects of reliance on individual incapacitation as a basis for increasing the severity of a sentence. The other significant issue is the sense of unfairness of punishing a person not for what they have done, but for what they may do in the future. (See generally Franklin Zimring and Gordon Hawkins Incapacitation: Penal Confinement and the Restraint of Crime (1995) Oxford University Press, New York, at 62ff; Andrew Ashworth "Criminal Justice Act 2003 (2) Criminal Justice Reform: Principles Human Rights and Public Prosecutions" (2004) Criminal Law Review 516 esp at 519-521; Mirko Bagaric "Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?" (2000) 20 Criminal Law Journal 21 esp at 28-29; Andrew von Hirsch and Andrew Ashworth Principled Sentencing: Readings on Theory and Policy (1998) Hart Publishing, Oxford Ch 3; Andrew Ashworth Sentencing and Criminal Justice 4th ed (2005) Cambridge University Press, Cambridge at 80ff.)
It can be seen that the remarks were made in the entirely different context of the appropriate sentence for a crime that had been committed. That is not what the Act under consideration here is concerned with. It is not to punish further a Defendant for a crime for which he has served his or her sentence. It is principally for the protection of society but also with the rehabilitation of the Defendant as a consideration.
It may be accepted that there is a difficulty in predicting future behaviour. However, that is a necessary element in the making of any order under the present Act. The Court must look to the risk of future behaviour guided by professional opinion and other considerations as the Act requires.
The evidence from the psychiatrists in this case points strongly to a five year period for the order. Dr Ellis provides detailed reasons which deal with the focus of the treatment and rehabilitation of the Defendant. Independently, Dr O'Dea considers that the risk will last for five years.
Dr Ellis, when challenged by Mr Scragg about the length of the order, said this:
I think what I am suggesting there is that treatment ought be long term given that the condition itself is unlikely to remit, paedophilia is unlikely to remit in two years and, in fact, it is likely to continue on beyond the length of any order that the Court would make. But the first period of 24 months is more about re-integrating someone into community society plus looking at issues around sexual offending and after that period, which is really a stabilisation period in my view, then a further 24 months of regular treatment is required for consolidation of that and I have given that length of time based on the number of co-morbid problems that are presenting alongside the paedophilia and the previous responses to rehabilitative efforts. So, again, my psychiatric view for a period of five years is based, not just on the types of interventions that would have the best chance of reducing risk, but also the likely chronicity of the problems and the number of problems that Mr Cruse has presented with. (emphasis added)
There is a further matter which tends to reinforce Dr Ellis's view that the Defendant's problem is a chronic one and is unlikely to remit any time soon. During the Defendant's incarceration for what were arguably his worst offences (the serious sex offences) with the second committed whilst on bail for the first, the Defendant wrote on 27 April 1998 to the Parole Board as follows:
In the past I was always to proud to accept any form of help, but with the right kind of help, encouragement, and a lot of re-thinking, I eventually saw a bright future in front of me. For me to think that far ahead, I realised the first thing that I should do was to accept full responsibility for my actions, and to seek the necessary help required. Right throughout my sentence I have fixated myself on the Judge's comments, and I truly believe that I have followed through (without apprehension) to address my offending behaviour.
... I have concentrated and focused on these issues realising that needed desperately to give up Alcohol and other Drugs completely, and to live a drug-free life upon my release.
...I am forty years of age, and at this point in time I have never been more serious or dedicated in reforming or rehabilitation and I understand fully the meaning of these two words. I have been honest with myself and the Department of Corrective Services and I have humbled myself to enable the necessary changes to take place. I have reluctantly considered changes in the past, but after making these vital steps, I do feel a better person.
This sentence has been the biggest struggle of my life thus far but after these adjustments, I feel very confident of not ever re-offending and returning to prison.
Perhaps somewhat presciently, the Parole Board refused the Defendant parole and he was released at the end of his sentence in January 2001. The index offences were committed in January or February 2005. Assuming, charitably in the Defendant's favour, that he meant what he said in that letter, his later re-offending demonstrates clearly the pervasiveness of the Defendant's problems. It is no surprise that both psychiatrists independently thought that five years (or even more) was needed to ensure any hope of rehabilitation.
I have given earnest consideration to whether a shorter period should be imposed, leaving it to the State to demonstrate after that time that the Defendant still remains an unacceptable risk. However, I consider that the evidence points strongly to the need for a lengthy period of supervision which includes treatment. The Defendant has offended constantly since the age of 17. The offending may be partly explicable from a psychiatric point of view because of a very scarred childhood with alcohol and drug addiction superimposed. But that does not mean that the unacceptable risk is not there for future re-offending. As I have mentioned earlier, the purpose of this legislation is not punitive but protective.
Having heard from the psychiatrists the sense I have, particularly from Dr Ellis, exemplified in the passage I have set out at [116] above, is that they are not optimistic about any cure of the problem, and certainly not in any short-term period. Dr Ellis speaks of the problem extending beyond the time of any order the Court can make.
I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk for a period of at least five years. If that position changes it is always open to the Defendant to apply under s 13 to be released from the order or to vary its conditions. I cannot be satisfied any other course is appropriate for the protection of potential victims.
Orders
It was for these reasons that I made the following orders on 7 March 2014:
1. Orders that pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 ("the Act") the Defendant be subject to an extended supervision order for a period of 5 years from the date of the order.
2. Orders that pursuant to s 11 of the Act, for the period of the extended supervision order, the Defendant is directed to comply with the conditions set out in the Schedule to this Order.
3. Notes that:
a. Pursuant to s 10(2) of the Act, the Defendant's obligations under the extended supervision order are suspended while the Defendant is in lawful custody whether under this or any other Act or law.
b. Lawful custody for the purposes of s 10(2) of the Act may include detention as an involuntary patient in a mental health facility under the Mental Health Act 2007, or escorted leave from any such facility, at least in circumstances where the Defendant's freedom is directly controlled and limited.
4. Directs that access to the Court file in respect of any document shall not be granted without leave of a Judge of the Court. If any application is made by a non-party in respect of any document, the parties are to be notified by the registrar so as to enable them to be heard.
5. Grants liberty to apply on two day's notice.
Schedule
Supervision Conditions
Oversight
For the purpose of these conditions, the Departmental supervising officer is the corrective services officer authorised from time to time by the Commissioner of Corrective Services to manage and supervise the Defendant pursuant to the extended supervision order. The Department is the Department of Attorney Genera! and Justice ("the Department"). Corrective Services NSW is a division of the Department.
Reporting and monitoring obligations
1. For the duration of the supervision order, the Defendant must accept the supervision of Corrective Services NSW.
2. The Defendant must report personally once a week to the Departmental supervising officer or otherwise as directed by that officer.
3. The Defendant must comply with any reasonable direction given by the Departmental supervising officer or any other corrective services officer who may from time to time be allocated to the Defendant's case.
4. The Defendant must wear such electronic monitoring equipment as may from time to time be directed by the Departmental supervising officer and comply with all instructions given by a corrective services officer in relation to the operation of such equipment, and must not tamper with or remove such equipment.
5. If directed by the Departmental supervising officer, the Defendant must inform the Departmental supervising officer of his movements in advance by providing a schedule. The schedule must be:
a. in writing;
b. for a period of 7 days ("the schedule period"), unless a shorter schedule period is approved by the Departmental supervising officer; and
c. given to the Departmental supervising officer at least 3 days in advance of the schedule period.
6. The Defendant must notify the Departmental supervising officer of any change to the schedule at least 24 hours in advance, unless a shorter period is Approved by the Departmental supervising officer.
7. Condition 6 does not apply in the case of emergency, including if the Defendant requires urgent medical attention, and he is unable to notify the Departmental supervising officer.
8. The Defendant must respond accurately to the best of his knowledge and ability to all enquiries by his Departmental supervising officer, or any other corrective services officer who may from time to time be allocated to the Defendant's case, about his whereabouts and movements generally.
Accommodation
9. For the duration of the order the Defendant must reside at accommodation approved by the Departmental supervising officer.
10. Except with the prior approval of the Departmental supervising officer, the Defendant must not permit any person to reside either temporarily or a permanent basis, for any period at the Defendant's approved accommodation.
11. Except with the prior approval of the Departmental supervising officer, the Defendant must not stay overnight, or for any other temporary period, at a place other than approved accommodation.
12. The Defendant must permit entry and accept visits at his approved accommodation, including visits without prior notice, by the Departmental supervising officer or any other corrective services officer who may from time to time be allocated to the Defendant's case.
13. If directed by his Departmental supervising officer, the Defendant must be at his approved address between 9pm and 6am (or such other hours as may be specified by the Departmental supervising officer) unless his presence at another place during those hours has been approved by his Departmental supervising officer.
14. The Defendant must not leave the State of New South Wales without the written permission of the Commissioner of Corrective Services ("the Commissioner") or his delegate.
Restrictions on employment and other activities
Employment
15. The Defendant must not engage in volunteer work, practical training as part of an educational or vocational course, or paid or unpaid employment (including self employment) other than that which has been approved by the Departmental supervising officer.
16. The Defendant must notify his Departmental supervising officer of:
a. the nature of his employment or proposed employment;
b. any offer of employment;
c. the hours of work each day;
d. the name of his employer or proposed employer; and
e. the address of the premises where he is or will be employed.
17. Without limiting condition 3 above, if directed to do so by the Departmental supervising officer, the Defendant must make his employer aware of his offending history and that he is subject to any interim supervision order or extended supervision order and the terms of the order.
18. The Defendant must agree that, if the Departmental supervising officer considers it appropriate to do so, the Departmental supervising officer may disclose to any prospective or actual employer of the Defendant information relating to the Defendant's criminal history and may notify such prospective or actual employer that the Defendant is subject to a supervision order and the terms of the order.
Non-associations generally
19. The Defendant must not associate with any persons specified by the Departmental supervising officer. This condition excludes any person with whom contact has been authorised by order of a court exercising jurisdiction under the Family Law Act1975 (Cth).
20. Without limiting condition 19 above, except with the prior permission of the Departmental supervising officer the Defendant must not knowingly associate with any person convicted of a "serious sex offence" or an "offence of a sexual nature" as defined by the Act (except in the course of living in the COSP Centre or other Departmental facility or attending the community-based maintenance program conducted by the Forensic Psychology Services section of Corrective Services NSW).
20A. Without limiting condition 19 above, the Defendant must not contact or communicate by any means (directly or indirectly) with, or attempt to contact or communicate by any means (directly or indirectly) with, the victims of the sexual offences for which the Defendant was sentenced on 14 February 1975, 15 September 1980, 5 November 1984, 30 April 1993 and 9 November 2007 ("the index offence").
20B. The Defendant must not contact or communicate by any means (directly or indirectly), or attempt to contact or communicate by any means (directly or indirectly) with his two sons to his former partner Megan Perry unless such contact or communication is permitted by order of a court exercising jurisdiction under the Family Law Act1975 (Cth). This condition does not prevent or restrict the Defendant making application to the Family Court of Australia or any other court having jurisdiction under the Family Law Act in respect of his sons.
21. Should the Defendant enter into a relationship with another person ("the other person"), involving sexual or intimate contact, he must notify the Departmental supervising officer at the earliest opportunity. The Departmental supervising officer may disclose the Defendant's offence history to the other person if the officer is satisfied that to do so is necessary or desirable in the interests of the safety of the other person or any child of or related to that person, or who from time to time be in that person's care, custody or control.
22. Should the Defendant propose to befriend another person whom he knows to be the parent or guardian (or otherwise a person with care and control eg teacher) of a child under the age of 16 years or whom he knows to be a sibling of a child under that age he must notify the Departmental supervising officer as soon as reasonably possible. The Departmental supervising officer may disclose the Defendant's offence history to the other person if the officer is satisfied that to do so is necessary or desirable in the interests of the safety of the children under the age of 16 years being related to that person, or who from time to time may be in that person's care, custody or control.
23. The Defendant must obtain written permission and approval in advance from his Departmental supervising officer prior to joining or affiliating with any club or organisation.
24. The Defendant must not frequent or visit any place or district specified by the Departmental supervising officer.
Non-association with children
25. The Defendant must not:
a. approach, associate, initiate, encourage, request or maintain any contact with a child under the age of 16 years;
b. use any other person to approach, associate, initiate, encourage, request or maintain any contact with any child under the age of 16 years;
c. attend any schools, pre-schools, day care centres, amusement parlours, amusement parks, theme parks, camping groups, caravan parks, children's playgrounds, parks and playing fields; or
d. attend any such further place, where children or a child may from time to time be present, as the Departmental supervising officer may direct,
unless the Defendant:
e. has prior written permission of the Departmental supervising officer; and
f. is in the presence of an appropriate adult, being a person previously approved in writing by the Departmental supervising officer for the purpose of this condition.
Alcohol and drugs
26. The Defendant must not, without prior approval of the Departmental supervising officer:
a. possess or consume any alcohol (including any alcohol-based products such as methylated spirits);
b. possess or consume any illicit drugs;
c. possess any prescription medication other than prescription medication specifically prescribed to the Defendant by a medical practitioner in the quantities prescribed, or abuse prescription medication or other forms of medication.
27. The Defendant must submit to drug and alcohol testing as directed by the Departmental supervising officer or any other officer, who from time to time is allocated to his supervision.
28. The Defendant must attend and participate in such programs and courses relating to drugs and alcohol (including residential programs), as directed by the Departmental supervising officer.
29. The Defendant must not go to any licensed premises, excluding restaurants and cafes, but including hotels, bars, licensed clubs and racecourses, without the prior approval of the Departmental supervising officer.
Access to the Internet and pornography
30. (a) The Defendant must not possess or view pornography (including child pornography) and must not access, or attempt to access, pornography by any means.
(b) Without limiting sub-paragraph (a), the Defendant must not access the internet to view or to download pornography.
31. The Defendant must comply with any direction made by the Departmental Supervising Officer regarding access to the internet by him, and without limitation the Departmental Supervising Officer may direct the Defendant to use on any computer or other device (including mobile phone or tablet computer) a parental lock or other device or software that may restrict access to or permit access only to certain web sites.
32. If and as directed by the Departmental Supervising Officer, the Defendant must:
a. permit the Departmental Supervising Officer, and any person ("the technician") employed or engaged by or on behalf of the Department, to access and inspect any computer or other device (including mobile phone or tablet computer) owned by the Defendant, including the temporary removal of the computer or other device from his place of residence or his person for the purpose of inspection;
b. take all available steps to permit the Departmental Supervising Officer and the technician to have access to and inspect any computer or other device (including mobile phone or tablet computer) used by or owned by the Defendant;
c. provide the Departmental Supervising Officer and the technician with any requested assistance to enable either or both of them to access and inspect any computer or other device (including mobile phone or tablet computer) owned or used by the Defendant, including providing them with any required passwords;
d. permit the Departmental Supervising Officer and the technician to make copies of any files or materials on any computer or other device (including mobile phone or tablet computer) owned by the Defendant that the Departmental Supervising Officer reasonably believes may be relevant to the management of the Defendant's risk of re-offending.
33. The Defendant:
(a) must not access, join and/or connect to any internet based social networking service, including web-based, e-mail, instant messaging services and on-line community services, without approval from the Departmental Supervising Officer; and
(b) in circumstances where the Defendant accesses, joins and / or connects to any internet based social networking service, the Defendant must inform the Departmental Supervising Officer of any login identification name and password for any internet based social networking service he joins and / or connects to, including web-based , e-mail, instant messaging services and on-line community services.
Access to classified material
34. The Defendant must not purchase, possess, access, obtain, view, participate or listen to material classified as Refused Content, X18+, Restricted Category 1 and Restricted Category 2, or any other material as directed by the Departmental Supervising Officer.
Access to weapons
35. The Defendant must not, without reasonable excuse, have a weapon on his person or in his possession.
Vehicles
36. The Defendant must notify his Departmental supervising officer of the make, model, colour and registration number of any vehicle:
a. owned by him; or
b. driven or to be driven by him, whether hired or otherwise obtained for his use.
Recording images
37. The Defendant must not use or attempt to use equipment for the purposes of recording still or moving photographic images of persons reasonably known by the Defendant to be the age of 16 years or under, unless those persons are his children and contact with those children is permitted by order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).
Search and Seizure
38. If the Departmental supervising officer reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary:
a. for the safety and welfare of residents or staff at the Defendant's approved accommodation;
b. to monitor the Defendant's compliance with the extended supervision order or an interim supervision order; or
c. because the Departmental supervising officer reasonably suspects the Defendant of behaviour or conduct associated with an increased risk of the Defendant committing a serious sex offence;
then the Departmental supervising officer may direct, and the Defendant must submit to a:
d. search and inspection of any part of, or any thing in, the Defendant's approved accommodation;
e. search and inspection of any part of, or any thing in, any vehicle owned or hired by the Defendant; and/or
f. search and examination of his person in his approved accommodation.
39. For the purposes of paragraph 38f:
a. a search of the Defendant means either or both a garment search or a pat-down search.
b. to the extent practicable a pat-down search will be conducted by a Departmental supervising officer of the same sex as the Defendant, or by a corrective services officer of the same sex as the Defendant under the direction of the Departmental supervising officer concerned
NOTE:
"Garment search" means a search of any article of clothing worn by the Defendant or in the Defendant's possession, where the article of clothing is touched or removed from the person's body.
"Pat-down search" means a search of a person where the person's clothed body is touched.
40. During a search carried out pursuant to paragraph 38, the Defendant must allow the Departmental supervising officer to seize any thing found in the Defendant's approved accommodation, any vehicle owned or hired by the Defendant, or on the Defendant's person, whether in the Defendant's possession or not, which the Departmental supervising officer reasonably suspects will compromise:
a. the safety of residents or of staff at the Defendant's approved accommodation;
b. the welfare or safety of any member of the public; or
c. the Defendant's compliance with the extended supervision order or an interim supervision;
or which the Departmental supervising officer reasonably suspects relates to behaviour or conduct associated with an increased risk of the Defendant committing a serious sex offence.
Personal details and appearance
41. The Defendant must not change his name from Edward Francis Cruse, or use any name other than Edward Francis Cruse without the prior approval of the Departmental supervising officer.
42. The Defendant must not, without the approval of the Departmental supervising officer, change his appearance to the extent that he cannot be easily recognised.
43. If the Defendant's proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental supervising officer.
44. The Defendant must provide his Departmental supervising officer with information regarding any tattoos or permanent distinguishing marks that the Defendant has (including details of any tattoo or mark that has been removed).
Medical intervention treatment obligations
45. The Defendant must undergo a comprehensive assessment, as recommended by a treating or consulting clinician, to determine what is required for treatment in respect of the Defendant's potential for sex offending.
46. The Defendant must accept psychological and psychiatric treatment as may be provided by a treating clinician.
47. The Defendant must take any anti-psychotic, anti-libidinal (including SSRI's) or other prescribed medication if and as prescribed by a medical practitioner. The note at paragraph 52 below applies.
48. The Defendant must not take any medication or substance which, to the Defendant's knowledge, may affect the effectiveness of any medication prescribed under condition 47 being taken by the Defendant, unless the Defendant's treating medical practitioner prescribes such medication.
49. If the Defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, he is to notify his Departmental supervising officer within 24 hours of ceasing to take the medication.
50. The Defendant must attend regular medical consultations, physical examinations, pathology testing, and medical imaging as directed by a treating clinician,
51. If directed by his Departmental supervising officer, the Defendant must accept and participate in maintenance or other rehabilitation programs as may be offered to him, including the maintenance program provided by the Forensic Psychology Services.
52. It is noted that the "reasonable directions" (in condition 3) and the participation in treatment (in conditions 46 and 47) do not include participation in treatment, or requiring the Defendant to take any medication that may be prescribed, without his informed consent.
Disclosure of information
53. The Defendant must disclose to the Departmental supervising officer the identity of any treating or consulting clinician that he consults, as soon as reasonably practicable.
54. The Defendant must consent to his Departmental supervising officer and other officers from the Department (including from Corrective Services NSW) collecting and using all relevant information regarding the Defendant's progress while subject to supervision, which may include confidential medical information disclosed in the course of his treatment.
55. (a) The Defendant must agree to the disclosure of all information between:
(i) his Departmental supervising officer, and / or
(li) other officers from the Department (including from Corrective Services NSW), and / or
(iii) any treating or consulting clinicians,
(b) The disclosure by any treating or consulting clinician is limited to circumstances where that treating or consulting clinician believes the Defendant is at risk of:
(i) committing a further serious sex offence, or
(ii) is demonstrating behaviours that may lead to the commission of a further serious sex offence, or
(iii) is at risk of breaching a condition of his supervision relevant to (i) and (ii) above, or
(iv) is with the consent of the Defendant.
56. The Defendant must provide his Departmental supervising officer details of any carriage service (within the meaning of the Telecommunications Act1997 of the Commonwealth) used, or intended to be used, by the Defendant.
57. The Defendant must provide his Departmental supervising officer details of any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act1997 of the Commonwealth) used, or intended to be used, by the Defendant.
58. The Defendant must provide his Departmental supervising officer with details of the type of any internet connection used, or intended to be used, by the Defendant, including whether the connection is a wireless, broadband, ADSL or dial-up connection.
59. The Defendant must provide his Departmental supervising officer with details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used, or intended to be used, by the Defendant through the internet or other electronic communication service.
Further the Court notes and recommends
Review of grievance
60. In the event the Defendant is aggrieved by any decision of the Departmental supervising officer, he may set out his grievance, in writing, to the Commissioner of Corrective Services who is to consider his grievance and make appropriate directions as to supervision, if required.
Review of order
61. At the expiration of 6 months from the date of this order (and at the end of each six monthly period thereafter, if the Defendant is still then subject to electronic monitoring), the continued need for the Defendant to wear the electronic monitoring equipment will be reviewed by the Departmental supervising officer and, for this purpose, the Departmental supervising officer may consult with (either jointly or separately) any treating or consulting clinician and must consult with the Defendant.
62. The conditions of the extended supervision order to which the Defendant is subject shall be reviewed by the Commissioner:
a. on each occasion a review is conducted under condition 61; and
b. at the expiry of 12 months from the date on which a decision is made (if any) that the Defendant is not required to wear electronic monitoring equipment and at the end of each 12 month period thereafter.
The purpose of a review under condition 62 is for the Commissioner to consider any possible adjustments of the conditions of the extended supervision order and/or consideration by the State as to whether an application should be made to the Court to vary the conditions if considered appropriate. For the purposes of this review, the Commissioner may consult with (either jointly or separately) any treating or consulting clinician and the Defendant. For the purpose of this condition, the Commissioner may act through an authorised officer.
63. Following a review under condition 61 or condition 62, the reviewer must notify the Defendant in writing of the result of the review.
64. The Department is to arrange for the Departmental Supervising Officer or another officer of Corrective Services NSW to provide a report, prior to the final hearing, as to the Defendant's compliance with the interim orders and progress under his period of supervision of "Order of the Court".
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Decision last updated: 14 March 2014
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