State of New South Wales v DB (Final)

[2019] NSWSC 1097

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v DB (Final) [2019] NSWSC 1097
Hearing dates:	6 August 2019
Decision date:	27 August 2019
Jurisdiction:	Common Law
Before:	Ierace J
Decision:	(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subject to an extended supervision order for a period of three years. (2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), for the period of the extended supervision order, the defendant is directed to comply with the conditions set out in the Schedule to these orders.
Catchwords:	HIGH RISK OFFENDERS – Application for extended supervision order – final hearing – history of serious sexual offending involving children – breaches of ISO and Child Protection Prohibition Order – 3 year extended supervision order imposed with conditions
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 5D, 9, 11
Cases Cited:	State of New South Wales v DB (Preliminary) [2019] NSWSC 75 State of NSW v Grooms (Final) [2019] NSWSC 353
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) DB (Defendant)
Representation:	Counsel: A Mykkeltvedt (Plaintiff) S Hall (Defendant)   Solicitors: Office of the Crown Solicitor for NSW (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2018/355500
Publication restriction:	Order made 28 May 2019: (1) In accordance with ss 7 and 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the publication of the name of the defendant, along with the publication of any information that will identify him, is suppressed, so as to facilitate the operation of s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW). This order will apply throughout the Commonwealth of Australia. (2) Nothing in these orders prevents the defendant or his legal representatives from identifying him as the defendant in these proceedings should it become necessary to do so in proceedings before another court.

Judgment

1. HIS HONOUR: The State of New South Wales (“the plaintiff”) commenced proceedings by summons filed on 19 November 2018 against the defendant, DB, seeking interim orders for an interim supervision order (“ISO”) and final orders for an extended supervision order (“ESO”) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). At that time, the defendant was serving a sentence of 20 months for the offence of providing false or misleading information, contrary to s 18 of the Child Protection (Offenders Registration) Act 2000 (NSW). A form 1 offence of contravening a prohibition or restriction in an Apprehended Violence Order (“AVO”) was taken into account. The non-parole period expired on 22 February 2019.

2. On 13 February 2019, I made orders imposing an ISO, and for the preparation of reports to be furnished to the court pursuant to s 7(4) of the Act. The ISO was renewed by Bellew J on 11 March 2019 and the final hearing set down for 6 May 2019.

3. On 11 March 2019, the defendant was arrested and charged with four counts of breaching an order made pursuant to ss 5 and 13(1) of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). He was refused bail, which had the effect of suspending the ISO’s operation pursuant to s 10C(1A) of the Act. On 23 April 2019, Bellew J vacated the listing of the hearing, following an application by the defendant for an adjournment on the basis that police had advised that further charges were contemplated arising from their seizure of electronic items from the defendant’s residence. The matter came before me for hearing on 6 August 2019. No further charges have been laid.

4. At the outset of the hearing, the defendant indicated that the application for an ESO for a period of three years was not opposed and that the only dispute was as to the terms of some of the conditions. Nevertheless, I am required by the terms of the legislation to be independently satisfied as to the necessity of an ESO and the appropriate duration.

Background to the application

5. I set out the respondent’s criminal history in State of New South Wales v DB (Preliminary) [2019] NSWSC 75 (“the preliminary hearing judgment”), as follows:

“4   The defendant has been convicted of, and received custodial sentences for, child sex offences on three occasions.

5   In 2012, the defendant was convicted of two counts of sexual intercourse in 2010 (when aged 17) with a person under ten years old, namely, 8 years old. He received a sentence of 3 years 3 months, to be served in a juvenile detention centre, with a non-parole period of 1 year to commence on 27 February 2012. A recommendation was made by the sentencing judge that he immediately commence the sexual offender program.

6   The defendant was due to be released on parole on 28 August 2013. Earlier that month, whilst on an approved overnight stay with his parents, he engaged in grooming behaviour via social media. He was not charged, but his release was delayed until 12 December 2013.

7   On 18 April 2016, the defendant was convicted of certain offences committed in September 2014, when aged 21, whilst he was on parole. These were, procuring a child under 14 years (namely aged 13 years) for unlawful sexual activity, failing to comply with reporting obligations and possessing child abuse material. The defendant had made contact with the victim through social media and via a 14 year-old girl, who he offered $100 to be shared with the victim if she persuaded him to allow the defendant to masturbate him. The ‘failure to comply’ offence was his failure to disclose his accessing the social media services.

8   The defendant received a sentence of 3 years’ imprisonment with a non-parole period of 2 years, to expire on 19 June 2017, from his Honour Acting Judge Garling of the District Court.

9   The defendant was released on parole on that date. Four days later, on 23 June, he was arrested for providing false or misleading information under the Child Protection (Offenders Register) Act 2000 (NSW) and for contravening an AVO. The former charge concerned his failure to disclose his use of a telephone to contact a female witness, apparently the girl he approached when committing the September 2014 offences, asking her to contact the same boy and another young person. The latter charge was a breach of an AVO in respect of the boy involved in the September 2014 offences.

10 The defendant received a sentence of 20 months’ imprisonment to expire on 22 February 2019, with a 13 month non-parole period expiring on 22 July 2018. He was released on that date and on 26 September 2018 he was made the subject of an order pursuant to s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) for five years, which significantly restricts his communications, associations and movements. At the time the application for this order was made by police, the officers were unaware that the Attorney General was contemplating an application for an ESO under the Act.

11   On 11 December 2018, the defendant was charged with a breach of his prohibition order. Details of the nature of the alleged breach are not known, but he has received an additional condition that he must submit to electronic monitoring.”

6. The defendant has since entered a plea of guilty to the December charge. On 11 March 2019, the defendant was charged with a further four counts of contravening his Child Protection Prohibition Order (CPPO), said to have occurred on 28 February 2019. He was refused bail and returned to custody. The defendant has entered pleas to three of these four charges. One of the charges to which he has pleaded guilty involved him using a mobile phone to access a website on which he could view images of children. It is not suggested that the images were exploitation material. The five charges all relate to his use of electronic devices. On 8 June 2019, the defendant was charged with a second count of contravening his CPPO in December, bringing the charges to a total of six.

The relevant legislative provisions

7. As I found in the preliminary hearing judgment, at [12]–[19] and [23], the application complies with the statutory requirements for the bringing of an application for an ESO.

8. The key provisions for the final hearing are as follows:

“5B   Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:

…

(d)   the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

…

5D   Determination of risk

For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.

…

9   Determination of application for extended supervision order

…

(2)   In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.”

9. Section 9(3) requires the Court to have regard to certain matters, which are relevantly considered below.

Section 9(3)(b): the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination

Section 9(3)(c): the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment

10. In the preliminary hearing, I made orders pursuant to s 7(4) of the Act for the provision of two psychiatric and/or psychological reports, which have been prepared and tendered for the purposes of this hearing. Dr Adam Martin, forensic psychiatrist, and Jenny Howell, forensic psychologist, have prepared reports, dated 14 March 2019 and 17 April 2019 respectively. A further Risk Assessment Report has been prepared by Dr Marcelo Rodriguez, dated 30 July 2019.

11. Dr Martin said that the defendant participated in his consultation “cooperatively and responded to the interview in a seemingly forthcoming manner”. He diagnosed the defendant has having a “paedophilic disorder”. The defendant presented with features of:

“… emotional dysregulation and unhappiness and has complained of depressive and anxious symptoms and has most recently expressed suicidal ideation, apparently resulting in a hospital admission and being prescribed an anti-depressant.”

12. Dr Martin considered that the defendant posed “a significant risk of future sexual offending”. He rated the defendant’s risk as “high”, taking into account his history of serious sexual offending involving penetrative sexual acts against an eight-year-old boy, his breaches of supervision conditions and his further sexual offending.

13. Dr Martin thought that the defendant’s risk could be mitigated by an ESO and that the proposed conditions “appear reasonable and appropriate”. He thought the balancing of the defendant’s needs and rights against the community’s need for safety was “a very difficult and complex issue”. He thought a three year period for the ESO did not “seem unreasonable”, given the enduring nature of the risk.

14. Dr Richard Parker, a senior psychologist with the Serious Offenders Assessment Unit, prepared a report dated 30 November 2017 in respect of the defendant. He noted that the defendant denied a sexual attraction towards children and lied about his cessation of anti-libidinal medication, “suggest[ing] that shame is a likely factor in this behaviour”. Dr Parker considered that shame, unlike guilt, can be a treatment obstacle among sexual offenders. He thought that the defendant’s sense of shame probably originated in his awareness from an early age that his homosexuality was viewed by others as unacceptable. He concluded on this point:

“As the primary difference between shame and guilt relates to the generalisation from an action to identity (‘I did a bad thing’ versus ‘I am bad’), a key goal of ongoing treatment will be to assist [the defendant] to formulate a positive identity, where he can acknowledge his offending as wrong, but not allow that to define him. With sexual offending against children, this task is extremely difficult, due to the level of reprobation associated with this type of offending – something [the defendant] has experienced first-hand.”

15. Against the background of Dr Parker’s concern, Dr Martin was asked whether the proposed conditions of the ESO could worsen the treatment obstacle of “shame” identified by Dr Parker. Dr Martin agreed with the problem posed by that state, describing it as “an unhelpful emotion in that it can lead to isolation, avoidance and not engaging in addressing the underlying problem [paedophilia]”. Dr Martin said the proposed condition that the defendant wear an ankle bracelet so as to enable electronic monitoring, if viewable, would be “unhelpful” in this regard. It could lead to vigilantism and interplay with the defendant’s sense of shame at his criminal behaviour. On the other hand, Dr Martin noted that this had to be balanced with the community’s need for monitoring in order to provide protection.

16. Jenny Howell described the defendant’s participation in the interview process as one of engaging openly in their discussion of his offences. She diagnosed the defendant as having a Major Depressive Disorder. Ms Howell noted that although he participated in the sex offender program when in juvenile detention, he has not completed an adult sex offender treatment program. Although he has expressed interest in partaking in the Custody-Based Intensive Treatment program (“CUBIT”), he has been unable to because his periods of incarceration have been too brief for him to gain entry. He has attended therapy programs in the community with Forensic Psychology Services (“FPS”), but had not formed a therapeutic relationship.

17. Ms Howell considered that the defendant’s risk of reoffending could be managed effectively in the community with the benefit of an ESO.

18. Ms Howell was also asked about Dr Parker’s concerns as to how the defendant’s issues with shame would be affected by the proposed conditions of the ESO. She reported that the defendant became emotionally distressed when she raised the issue of shame with him. She regarded it as “a treatment issue” that required addressing in therapy, and considered that it may impact on his ability to form an intimate relationship because of the shame that would flow from a possible partner becoming aware of his criminal history.

Section 9(3)(d): the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence

19. Dr Martin referred to, and agreed with, the assessment of Dr Parker, which was that the defendant scored highly on the Static-99R. The recidivism rate of persons convicted of sexual offences with a score of the same level as the defendant would be expected to be 7.3 times higher than a “typical sexual offender”.

20. Ms Howell referred as well to the defendant’s Static-99R score, and also his Risk for Sexual Violence Protocol (“RSVP”) score, which assesses both static and dynamic factors. An assessment based on both tests yielded a result of his risk for re-offending being in the “Well Above Average Risk” category of committing a further serious offence.

21. Dr Rodriguez referred to the defendant’s part scores on the Static-99R and thought that his score was inflated by some static items that were coded as present but which in fact had little applicability to him. He thought the defendant could be effectively managed on an ESO. Dr Rodriguez recommends that the Static-99R be used alongside “clinical judgment” as dynamic factors may be more accurate in assessing risk of reoffending.

Section 9(3)(d1): any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community

Section 9(3)(e): any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs

22. Two affidavits have been prepared by Kelli Grabham, who is a member of the Departmental ESO Team, dated 17 April 2019 and 22 July 2019. She noted that the defendant’s father had expressed frustration at what he regarded as the high level of supervision imposed on the defendant when he was released on parole in July 2018 and resided with his parents.

23. A visit was conducted at the defendant’s parents’ home on 18 March 2019. It was assessed as unsuitable for the defendant when released. Essentially, the concern was that the defendant’s parents, although well meaning, were not suitable as supervisors; their expectations of the defendant and their awareness of the risks associated with him were unrealistic. His most recent charges had allegedly involved him accessing his mother’s mobile phone.

Section 9(3)(e1): options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time

24. Dr Rodriguez was of the opinion that the defendant does not have a history of chronicity of sexual violence, noting that to date there has been one contact sexual offence. He was of the opinion that “[t]his risk factor could be diminished if he is able to develop a loving and intimate relationship with an age-appropriate partner”. He concluded:

“In my opinion, [the defendant] is a vulnerable person due to his psychological conditions. He requires consistent psychiatric/psychological treatment, which is scarcely available in custody. In such contexts there is a high risk of institutionalisation, which is known to result in negative long-term effects such as re-offending (which was identified in the sentencing remarks of Judge Haesler at Campelltown District Court on 28 February 2012).” (emphasis in original)

25. Ms Grabham has assessed the defendant as suitable for accommodation at the Nunyara Community Offender Support Program (“COSP”). She proposes that he would be referred to FPS for therapy for his Paedophilic Disorder and a referral would also be made for assessment for anti-libidinal medication by an accredited psychiatrist.

Section 9(3)(e2): the likelihood that the offender will comply with the obligations of an extended supervision order

26. The expert reports do not expressly address this consideration, but I note the defendant’s pleas of guilty to some of the alleged breaches of the CPPOs in December 2018 and February 2019.

27. I also note Ms Howell’s observation that:

“[The defendant’s] description of his offending suggests he lacks reasonable self-appraisal of his general mental processes and reactions, particularly as they relate to his history and risk of sexual violence. He appears to have little awareness of both his own motivation and the consequences of his sexual behaviour.”

Section 9(3)(f): without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order

Section 9(3)(g): the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004

28. I have noted the recent CPPO breaches, some alleged and others conceded by the defendant by his guilty pleas, and his past commission of a serious offence whilst on parole.

Section 9(3)(h): the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history

29. This has already been noted above.

Section 9(3)(h1): the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender

30. In the preliminary judgment, I noted comments by the sentencing judge in respect of the defendant’s 2010 offences. I would add to that the above reference to that judgment by Dr Rodriguez.

Conclusion

31. Having regard to the forensic expert evidence as to the level of risk posed by the defendant and the material on which those opinions are based, I am independently satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision when he is released back into the community. I am of the opinion that it is necessary for the ESO to be for a period of three years.

Proposed conditions of the ESO

32. Detective Sergeant Erryn Williams has affirmed an affidavit to the effect that, if an ESO is made by this Court, he will make a variation application of the CPPO to Picton Local Court (which is the court dealing with the outstanding breach of CPPO charges) for the purpose of ensuring that the conditions of the CPPO and those of the ESO coincide.

33. As a result of sensible discussions between the parties, the remaining disputed terms of the conditions of the ESO are only those governing the defendant’s schedule of movements and a related condition concerning his accommodation. I have modified the terms proposed by the plaintiff as to the schedule of movements, in similar terms to those proposed by the defendant, which coincide broadly with terms that were imposed by Fullerton J in State of NSW v Grooms (Final) [2019] NSWSC 353.

34. In exchanges with counsel at the hearing, I explored the possibility of having two standards of scheduling, one along the lines of what is proposed by the plaintiff, which would be stricter than that proposed by the defendant. Initially the stricter level of scheduling would apply, and after a period of time the less strict form would commence, subject to the defendant complying successfully with the stricter form of scheduling. However, I have come to the conclusion that the defendant’s proposed level of scheduling is all that is required, in combination with the availability of electronic monitoring should the DSO consider it necessary.

35. The effect of the re-draft is that the weekly schedule of movements is less stringent in detail and easier for the defendant to seek permission to modify the schedule, by contacting his DSO. It also allows breaches in circumstances where there is a reasonable explanation and the defendant informs his DSO as soon as is practicable.

36. I have modified the proposed accommodation condition, so as to enable the defendant to have persons stay overnight at his approved place of residence, provided he complies with the non-association conditions which are set out at Part F.

Orders

37. I make the following orders:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subject to an extended supervision order for a period of three years.

(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), for the period of the extended supervision order, the defendant is directed to comply with the conditions set out in the Schedule to these orders.

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State of NSW v DB Schedule of conditions (145 KB, pdf)

Amendments

30 August 2019 - Typographical errors in the Schedule of Conditions corrected

Decision last updated: 30 August 2019