State of New South Wales v DB (Preliminary)

[2019] NSWSC 75

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v DB (Preliminary) [2019] NSWSC 75

Hearing dates:

11 February 2019

Date of orders:

13 February 2019

Decision date:

13 February 2019

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1)   Two qualified psychiatrists or psychologists (or a combination of such persons), as agreed between the parties, are appointed to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court.

 

(2)   An order directing the defendant to attend upon those examinations.

 

(3) Pursuant to s 10A of the Crimes (High Risk Offender) Act 2006 (NSW), the Defendant is made the subject of an interim supervision order commencing today, 13 February 2019, for a period of 28 days.

 

(4)   Pursuant to s 11 of the Crimes (High Risk Offender) Act 2006 (NSW), the defendant is directed to comply with the conditions set out in the Schedule to this judgment for the period of the interim supervision order.

 (5)   Access to the Court's file by a non-party in respect of any document shall not be granted without the prior notification to the parties of the non-party's application for access, and without the leave of a Justice of the Court.

Catchwords:

HIGH RISK SEX OFFENDER -- Extended Supervision Order – preliminary hearing – application for interim supervision order

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (High Risk Offender) Act 2006 (NSW)
Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
Child Protection (Offenders Register) Act 2000 (NSW)

Cases Cited:

Attorney General of New South Wales v Tillman [2007] NSWCA 119

Category:

Procedural and other rulings

Parties:

State of New South Wales (Plaintiff)
DB (Defendant)

Representation:

Counsel:
J Emmett (Plaintiff)
S Hall (Defendant)

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

File Number(s):

2018/355500

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 and final orders for an extended supervision order (“ESO”) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The defendant, aged 25, is presently serving a sentence of 20 months for 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 AVO was taken into account. The non-parole period will expire on 22 February 2019.

2. The summons seeks orders to the effect that the defendant be subject to an interim supervision order (“ISO”) for 28 days, to be renewed every 28 days for a maximum period of three months. The summons also seeks an order appointing two psychiatrists and/or psychologists to examine the defendant and furnish reports. By way of final relief, the summons seeks an ESO for three years. Finally, the summons seeks orders that access not be granted to the Court’s file for any document to a non-party, without leave of a Judge of the Court and with prior notice to the parties.

3. This is a preliminary hearing, for the purpose of considering the orders sought concerning the appointment of the psychiatrists and/or psychologists, and whether an ISO is appropriate.

Background to the application

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.

The relevant legislative provisions

12. Section 6 of the Act requires that an application for an ESO may not be made until the last 9 months of the offender’s current custody or supervision. The current application is made within that time frame.

13. Section 7 of the Act requires there to be a preliminary hearing of the application for an ESO and that if, following the preliminary hearing, the Supreme Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, it must dismiss the application: s 7(5).

14. Section 10A of the Act provides:

“10A   Interim supervision order

The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court:

(a)   that the offender’s current custody or supervision will expire before the proceedings are determined, and

(b)   that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.”

15. Section 10A(a) is satisfied: the defendant’s non-parole period expires on 22 February 2019. Section 10A(b) effectively requires the Court to determine whether the supporting documentation would, if proved, justify an ESO, although even if it does, the power to make an ISO remains discretionary: Attorney General of New South Wales v Tillman [2007] NSWCA 119 at [30].

16. Section 5B of the Act stipulates four prerequisites for the making of an ESO. These are that:

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

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

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

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

17. The first three requirements are satisfied. In relation to s 5B(a), “serious offence” is defined at s 5 to include an offence within Div 10 of Pt 3 of the Crimes Act 1900 (NSW) which is punishable by imprisonment for 7 years or more. The defendant has served a sentence of imprisonment for an offence against s 66EB of the Crimes Act, which satisfies these requirements.

18. In relation to s 5B(b) and (c), s 5I provides that an application for an ESO may be made only in respect of a “supervised offender” and defines that term to include an offender who is in custody while serving a term of imprisonment for, inter alia, “an offence of a sexual nature”: s 5I(2)(a)(ii). A person is taken to be serving a sentence of imprisonment if he or she is on parole in respect of that sentence: s 5I(3).

19. The term “an offence of a sexual nature” is defined in s 5(2)(f) to include an offence under s 18 of the Child Protection (Offenders Registration) Act 2000 (NSW). The defendant is on parole in respect of a sentence of imprisonment imposed for a breach of that Act. Accordingly, the defendant satisfies the requirements of s 5B(b) and (c), as well.

20. This leaves s 5B(d) for consideration, namely, whether 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. I note that s 9(2) provides that:

“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.”

21. The Court’s task on a preliminary hearing of an application for an ESO is to determine whether, pursuant to s 10A(b), the matters alleged in the supporting documentation would, if proved, justify the making of such an order, bearing in mind the standard of proof articulated in s 5B(d): see Attorney General of NSW v Tillman at [98]. The safety of the community is the paramount consideration in determining whether or not to make an ESO: s 9(2).

22. Although the application for an ISO is not opposed by the defendant, s 7(4) requires the Court to be independently satisfied that:

“… the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order ...”

At a preliminary hearing, the Court is not involved in weighing that documentation or predicting the result at the final hearing: Attorney General of NSW v Tillman at [98].

23. The Act stipulates that the supporting documentation for the application must address each of the matters referred to in s 9(3), including a risk assessment report that assesses the likelihood of the defendant committing a serious offence: s 6(3). The plaintiff contends that there is an unacceptable risk of the defendant committing a serious sex offence. This term is statutorily defined at s 5(1) and includes certain state sexual offences perpetrated against adults and children.

Consideration

24. Most of the material relied upon by the plaintiff to establish an “unacceptable risk” pursuant to s 5B(d) at the final hearing in due course, is contained in Exhibit SEJ-1, referred to in the affidavit of Stephanie Johns dated 16 November 2018 which was formally read by the plaintiff on the application.

25. There was no objection by the defendant to the tender of any of the material relied upon by the plaintiff, which includes two risk assessment reports prepared by psychologists Dr Richard Parker and Cherice Cieplucha, the most recent dated 9 October 2018, in anticipation of and for the purposes of the application. Essentially, the authors affirm their assessment in their earlier report which was dated 30 November 2017, that the defendant represents a well above-average risk.

26. In their earlier report, the authors noted the defendant’s apparent sexual attraction to children in spite of his denial of such an attraction, his lack of response to treatment and his history of attempting to make contact with children even when specifically forbidden from doing so. They stated, at 10:

“It is concerning that, despite having spent 21 months in custody for interactions with persons under the age of 18, one of [the defendant’s] first actions after release from custody was to ‘allegedly’ attempt to contact his victim.”

27. They applied the Static 99R test to the defendant and concluded, at 9, that:

“Compared to other adult male sex offenders, [the defendant’s] score is in the 99th percentile. Taking into account that about 1.2% of sex offenders share the same score as [the defendant], the percentile means that roughly 98.5% of offenders scored lower than [the defendant], and 0.3% scored higher.”

28. They observed that the conditions that accompany an ESO would benefit him and provide a higher degree of protection to the community. They concluded, at 13:

“The goal would be to encourage further development and maintenance of a stable and sustainable lifestyle, so that new habits can be formed that might endure beyond supervision.”

29. They also noted, at 3, that he is presently receiving the benefit of risk management sessions from Forensic Psychology Services, which will cease when his current prohibition order expires. An ESO would enable services of this type to continue.

30. The balance of the documentation in support of the application for both the ESO and ISO purports to address the relevant requirements of s 9(3) of the Act, which are considered below.

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

31. The material includes a Risk Management Report, dated 10 December 2017, and a supplementary report dated 17 October 2018. At the time of the preparation of the first report, the defendant was in custody. It outlined a proposed community-based risk management plan that incorporated weekly interviews by his supervising Community Corrections Officer at their office, his residence or via field visits as well as field surveillance and home visits (both scheduled and unannounced) at least monthly. Contact would be made with a range of persons he has contact with, to monitor his level of engagement, identify any concerns and determine his compliance with conditions. These contacts would include his therapist, psychiatrist, employment service case worker, local police and his parents. The report noted that he has been referred to Forensic Psychology Services (“FPS”) for assessment of his treatment needs.

32. Other aspects of the management plan include a proposed referral to a psychiatric review and a range of social contact prohibitions, concerning, amongst others, persons under the age of 18 years.

33. At the time of the second report, the defendant had been released into the community. It concluded that the earlier Risk Management Report remained valid, although it recommended additional measures, including a power of search of his property and person and the content of his internet-capable devices, a prohibition on him deleting material from his devices and a prohibition on his use of another person’s telecommunications or internet-capable devices.

34. Both reports specified the potential limitations on each aspect of their proposed management strategy; for example, in relation to the last point, the defendant could simply fail to declare his use of another person’s telecommunications or internet-capable device. In his written submissions, the plaintiff fairly conceded, and correctly in my opinion, that “they are not limitations that suggest an ESO involving those strategies would be unworkable or impractical”.

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

35. The plaintiff has indicated that the limited time that the defendant has spent in custody has precluded him from the opportunity to partake in custody-based programs such as CUBIT.

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

36. The first Risk Management Report proposed that when released the defendant would have the benefit of therapy provided by FPS. The supplementary report notes, at 2:

“It would appear that he attended FPS for his first appointment on 16 September 2018. However, this appointment did not go forward and was cancelled by FPS. It would appear that a further appointment is yet to be scheduled.”

The Risk Assessment Report dated 9 October 2018 also noted, at (6), he had not commenced therapy with FPS.

37. It is difficult to overstate the urgency of the need for the defendant to have the benefit of therapy, particularly now that he is residing back in the community. Assuming the quote from the supplementary Risk Management Report correctly states the situation, it is to be hoped that, if it has not already done so, FPS will quickly re-schedule an assessment and commence therapy with the defendant.

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

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

38. It is convenient to consider these three matters together. The defendant’s track record of compliance (or lack thereof) with the terms of conditional release and the prohibition orders made pursuant to the Child Protection (Offenders Prohibition Orders) Act does not inspire confidence that he will be compliant with the terms of an ISO or ESO.

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

39. Although not extensive, the defendant’s record is serious by virtue of the nature of the offences and the pattern they disclose, namely, a sexual fixation on children.

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

40. The defendant was sentenced in respect of the 2010 offences by his Honour Judge Haesler of the District Court, sitting in a closed court, since the defendant himself was a child (a young person) at the time of the commission of the offences. In combination with the agreed facts, the remarks provide background to the offences and a profile of the defendant at that stage. However, I do not find them to be of assistance in determining the issue before me.

41. In the remarks on sentence on 18 April 2016, his Honour Acting Judge Garling notes that the defendant is:

“… a risk to the community, especially if he does not take medication and especially if he does not give police the information they need to monitor his behaviour.”

The nature of the medication is not apparent, but there are references elsewhere in the supporting documentation to the defendant having a diagnosis of Attention Deficit Hyperactivity Disorder.

42. I am satisfied that, if proved, the supporting documentation would justify the making of an ESO, bearing in mind the requisite standard of proof for the making of an ESO, namely, a high degree of probability that the offender poses an unacceptable risk of committing another serious offence (in particular, another serious sex offence) if not kept under supervision under the order.

43. The next matter to be considered is whether, pursuant to s 10A: “the Supreme Court may make an order for the interim supervision of an offender” (emphasis added), I exercise the statutory discretion to not make an order for interim supervision. In view of the seriousness of the defendant’s past non-compliance with conditional release and prohibition orders in particular, I consider it inappropriate not to make an order for interim supervision.

44. I emphasise that this finding by me is not a pre-judgement of the application for an ESO. On the contrary, I am required by the Act for the purposes of considering an ISO to assume that the supporting material will be proved in due course at the final hearing, which of course may not be the case. At the final hearing, there may be material tendered or witnesses called on behalf of the defendant on the issue of whether an ESO is justified.

Conditions

45. The plaintiff’s summons has a proposed Schedule of Conditions of Supervision. In her written submissions, counsel for the defendant objected to some of these. At the preliminary hearing, counsel for the plaintiff modified some of the proposed conditions in response to the defendant’s concerns, although areas of disagreement remain. I make the following determinations in relation to the three proposed conditions that are not accepted by the defendant.

Proposed condition 13:

“The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.”

46. Counsel for the defendant submitted that the defendant lives with his parents in their residence, and therefore he does not enjoy exclusive control over who is invited into the residence either briefly or stay overnight. Furthermore, friends of his family, perhaps with children, might drop in, unannounced. If he was to avoid breaching the condition by quickly leaving the residence himself or staying somewhere else overnight, he would be contravening other conditions that require him to foreshadow his movements and have them approved by his Departmental Supervising Officer (“DSO”) a week in advance. I also note a condition that he not spend the night anywhere other than his approved address without the approval of his DSO. The only other residents on the premises are the defendant’s parents.

47. Counsel for the plaintiff countered that if there are such visitors, he can phone his DSO for advice. If he or she is off duty, there is always a DSO on call who can be contacted by the monitors in the electronic monitoring room, who are available around the clock, all week. He proposed adding the words: “or any other DSO”. He was instructed to oppose the suggestion that the word “person” is replaced with “a person under the age of 18 years” because it did not address the concern that he could use an associate who visits the premises as an intermediary to access children at risk.

48. The defendant’s parents have been supportive of their son throughout his adult life and therefore it is unlikely they would jeopardise his liberty by inviting guests without telling him in advance, so the defendant could seek permission to socialise with them. A more realistic problem is relatives and friends of the parents dropping in, unannounced, particularly accompanied by children. A sensible solution in these circumstances is that he excuses himself and retires to his bedroom until he is able to obtain guidance from his DSO or, if it is after hours or on the weekend, contact another DSO through the electronic monitoring room. With those concerns in mind, I have redrafted the proposed condition in these terms:

“13.   The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO. If the defendant becomes aware of his parents inviting persons to visit, he is to seek the prior approval of his DSO to remain on the premises during the visit. If visitors for his parents arrive without prior notice, he is not to socialise with them unless and until he has the approval to do so of his DSO or any other DSO.”

Proposed condition 22:

“The defendant must not consume alcohol without the prior approval of his DSO.”

49. Counsel for the defendant submitted that there was no material suggesting that the defendant’s consumption of alcohol was connected to his offending and that Dr Parker, in the 2017 Risk Assessment Report, noted that (based on information obtained in an interview of the defendant) that he only occasionally drank alcohol.

50. Counsel for the plaintiff pointed out that a parole court report prepared in 2013 noted a history that he first drank alcohol when he was aged 13 and developed a pattern of binge drinking on most weekends for several years thereafter. From the age of 18, he would consume an average of three standard drinks every second day. I note that at the time of that report (15 April 2013), he was aged 19.

51. The passages in the two reports are not necessarily contradictory, as he was aged 19 at the time of the first report, and 24 at the time of the second. His drinking habits may have changed in the intervening six years. Apart from the first report, I have not been taken to any other material suggesting that alcohol is an issue. There is no suggestion of a link between his ingestion of alcohol and the commission of the offences. I note there is no objection to a further condition permitting his DSO to subject him to testing for alcohol. I do not propose to include the proposed condition.

Proposed condition 23:

“The defendant must not enter any licensed premises without the approval of his DSO.”

52. Counsel for the defendant submitted that the conditions requiring electronic monitoring and advance approval of a schedule of movements rendered condition 23 unnecessary. Counsel for the plaintiff acknowledged the force of that submission. I do not propose to include the proposed condition.

Orders

53. Accordingly, I make the following orders:

1. Two qualified psychiatrists or psychologists (or a combination of such persons), as agreed between the parties, are appointed to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court.

2. An order directing the defendant to attend upon those examinations.

3. Pursuant to s 10A of the Crimes (High Risk Offender) Act 2006 (NSW), the defendant is made the subject of an interim supervision order commencing today, 13 February 2019, for a period of 28 days.

4. Pursuant to s 11 of the Crimes (High Risk Offender) Act 2006 (NSW), the defendant is directed to comply with the conditions set out in the Schedule to this judgment for the period of the interim supervision order.

5. Access to the Court's file by a non-party in respect of any document shall not be granted without the prior notification to the parties of the non-party's application for access, and without the leave of a Justice of the Court.

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Schedule of Conditions of Supervision (153 KB, pdf)

Amendments

26 February 2019 - Defendant's name anonymised

26 April 2019 - Small typographical errors corrected throughout.

27 August 2019 - Small typographical errors corrected throughout.

Decision last updated: 27 August 2019