State of New South Wales v De La Torre

[2011] NSWSC 1263

Supreme Court

New South Wales

Medium Neutral Citation:

State of NSW v Roy De La Torre [2011] NSWSC 1263

Hearing dates:

19/10/11

Decision date:

28 October 2011

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Order, pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 that Mr De La Torre be subject to an Extended Supervision Order for a period of five years from 28 October 2011.

(2) Order pursuant to s 11 of the Crimes (Serious Sex Offenders) Act 2006 that Mr De La Torre comply with the conditions set out in Schedule A which is attached to this judgment.

(3) Order that access to the court file in respect of any document shall not be granted without the leave of a Judge of the Court.

(4) I direct that in the event that any application for access is made by a non-party to the matter in respect of any document contained on the court file, that the Registrar of the Court is to notify the parties to the summons and provide them with an opportunity to make submissions with respect to whether that access should or should not be granted.

Catchwords:

SERIOUS SEX OFFENDER - Crimes (Serious Sex Offenders) Act 2006 - Serious sex offender - Paedophilia non-exclusive type - Sentence served - Resident of community support program facility - Application for extended supervision order - Orders unopposed except for duration and residential suitability condition - Evidence of high risk of respondent committing a serious sex offence if does not accept treatment and supervision - Five year supervision order appropriate from psychiatric perspective to reintegrate, consolidate and monitor - Respondent can seek variation of orders in the future - Residential condition sought by respondent prohibiting refusal of accommodation by reason only that it has shared common rooms interferes with soundly based Corrective Services policy - Applicant's orders made

EVIDENCE - Serious sex offender - Unchallenged psychiatric evidence - Evidence not illogical or inherently improbable - No suggestion of inaccuracy or unreliability of the history relied upon by experts - Evidence accepted

EVIDENCE - Expert evidence - Serious sex offender - Predictions of criminal dangerousness - Caution due to reliability issues

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004
Child Protection (Offenders Registration) Act 2000
Crimes (Serious Sex Offenders) Act 2006
Crimes Act 1900

Cases Cited:

Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Attorney-General for NSW v Tillman [2007] NSWCA 119
Cornwall v Attorney-General for NSW [2007] NSWCA 374
Fardo v Attorney-General for Qld (2004) 223 CLR 575
Hull v Thompson [2001] NSWCA 359

Category:

Principal judgment

Parties:

State of New South Wales
Roy De La Torre

Representation:

L Fernandez (P)
E Ozen (D)
Crown Solicitor's Office (P)
Legal Aid commission (D)

File Number(s):

SC 2011/244925

Publication restriction:

Nil

Judgment

1. Roy De La Torre, who is now 53 years old, has spent nearly 20 years in jail for sexual offences committed against young girls aged between five and 11 years old.

1. In accordance with the Crimes (Serious Sex Offenders) Act 2006 (SSO Act), Mr De La Torre is a sex offender who has committed more than one serious sex offence.

1. On 21 December 2010, Mr De La Torre was released from prison on parole. Since that time he has lived at the Nunyara Facility, which is part of the Community Offender Support Program (COSP).

1. On 29 July 2011, the State of NSW filed an application in this Court by a summons, for interim and final orders, pursuant to the SSO Act, for an extended supervision order with respect to Mr De La Torre. The State also sought certain orders which would facilitate an ultimate hearing and determination.

1. On 25 August 2011, Adams J made orders, which were consented to by Mr De La Torre, that he be the subject of an interim supervision order pursuant to s 8(1) of the SSO Act for a period up to 4pm on 23 October 2011. His Honour also made orders, which were again consented to, pursuant to s 7(4) of the SSO Act, for Dr Andrew Ellis and Dr Anthony Samuels, expert psychiatrists, to undertake examinations of Mr De La Torre and provide those reports to the Court.

1. A final hearing of the proceedings was fixed for 19 October 2011.

1. On that day the State sought and, without opposition, was granted leave to rely upon an amended summons.

1. The matter was heard on 19 October 2011. For the reasons articulated below, I have decided that an extended supervision order ought be made for a period of five years upon the conditions sought by the State.

Nature of the Proceeding

1. The amended summons sought an order pursuant to the SSO Act in the following terms:

"3. An order pursuant to section 9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of 5 years from the date of the order and pursuant to section 11 of the Act, direct that the defendant comply with the conditions set out in the Schedule to this Summons."

1. As well, a further order was sought by the State, and was not opposed by Mr De La Torre, in the following terms:

"4. An order that access to the Court file in respect of any documents shall not be granted without the leave of a Judge of the Court. If any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to be given the opportunity to be heard."

1. The schedule to the summons sought the imposition of 50 different conditions. Mr De La Torre agreed to all of those conditions and did not oppose their imposition, but he sought that one additional condition ought be imposed. The State opposed that condition.

1. Mr De La Torre only put in issue two matters, namely:

(a) whether an additional condition, namely Condition 9(a), which related to the assessment of reasonable accommodation, ought be included; and

(b) whether the 5 year period sought in the summons for the extended supervision order was appropriate. He instead submitted that a 3 year period was appropriate.

1. In order to determine whether the Court should make the orders in the summons, and for what period and upon what conditions, it is necessary to examine the SSO Act and the relevant authorities which provide guidance to the implementation of the SSO Act.

1. It is appropriate to note the particular context in which the Court's determination takes place. It is one in which Mr De La Torre, who is represented by counsel, consents to the making of an extended supervision order, except for a period more than three years. It is one in which he does not himself give evidence, nor does he tender evidence in his case. His counsel does not seek to cross-examine any of the deponents in the State's case. His counsel does not request any of the doctors who have provided a report to be made available for cross-examination.

1. In short, the matter proceeded, largely by consent, and without challenge to the evidence relied upon by the State.

1. Nevertheless, the Court is called upon to exercise a discretion in a way which fulfils the object of the SSO Act.

Crimes (Serious Sex Offenders) Act 2006

1. The Act has two objects. They are set out in s 3 in the following terms:

"3. Objects of Act

(1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community.

(2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation."

1. Mr De La Torre is, by reason of the crimes for which he was sentenced by Rummery J in the District Court of NSW on 28 February 1997, a sex offender within the meaning of the Act. Some, at least, of those crimes constituted serious sex offences within the meaning of the Act.

1. The terms upon which this Court may make an order of the kind sought in the Summons are set forth in s 9 of the Act. That is in the following form:

" 9 Determination of application for extended supervision order

(1) The Supreme Court may determine an application for an extended supervision order:

(a) by making an extended supervision order, or

(b) by dismissing the application.

(2) An extended supervision order may be made if and only if 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.

(2A) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence.

(3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:

(a) the safety of the community,

(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,

(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 sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment,

(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 sex offence,

(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,

(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,

(f) 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,

(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,

(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,

(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature."

1. The maximum period for which an extended supervision order may be made is five years. However, the State may apply for a second or further extended supervision order against the same offender: s 10 of the SSO Act.

1. When making an extended supervision order, the court may direct an offender to comply with such conditions as it thinks appropriate, including those specified in s 11 of the SSO Act.

1. It is of importance, in considering the appropriate order to make, to recognise that a supervision order once made may be varied or revoked. Section 13 of the Act is in the following terms:

" 13 Supervision order may be varied or revoked

(1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State of New South Wales or the offender.

(1A) The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part.

(2) For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months."

1. There have been a number of authorities which it is appropriate to consider in the hearing and determination of an application of this kind. Attorney-General for NSW v Tillman [2007] NSWCA 119 is authority for these propositions:

(a) The SSO Act is protective rather than punitive in its intent as is revealed by the stated objects in s 3: at [5];

(b) The conditions which the Court considers appropriate which may be imposed upon an extended supervision order can impose constraint as well as positive obligations. Such conditions can extend to ordering mandatory participation in treatment and rehabilitation programs: at [10];

(c) The standard of proof is high for the making of final orders: at [18];

(d) The powers under the respective provisions, including s 9, entail a discretion, enabling the Court to refuse to make an order in a proper case even if the necessary pre-conditions are satisfied: at [32].

1. In Cornwall v Attorney-General for NSW [2007] NSWCA 374 at [21], the Court held that the expression " ... a high degree of probability " indicated that the likelihood of an offender committing a further serious sex offence

"...does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. "

1. The Court was also careful to note that:

"the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion 'likely'."

1. I should also note that, although dissenting in the result, Kirby J in Fardo v Attorney-General for Qld (2004) 223 CLR 575, said that predictions of criminal dangerousness have long been recognised by experts in law, psychology and criminology to be unreliable: at [124]. He drew attention to the remarks of Professor Kate Warner in "Sentencing review 2002-2003" (2003) 27 Crim LJ 325 at 338 where she said:

"... An obstacle to preventative detention is the difficulty of prediction. Psychiatrists notoriously overpredict. Predictions of dangerousness have been shown to have only a one third to 50% success rate ... While actuarial predictions have been shown to be better than clinical predictions - an interesting point as psychiatric or clinical predictions are central to continuing detention orders - neither are accurate."

1. Kirby J went on to say at [125] this:

"Judges of this Court have referred to such unreliability ... Even with the procedures and criteria adopted, the Act ultimately deprives people such as the appellant of personal liberty, a most fundamental human right, on a prediction of dangerousness, based largely on the opinions of psychiatrists which can only be, at best, an educated or informed 'guess'."

1. I approach the discharge of the consideration of the matters in this case having regard to the caution expressed by Kirby J, but nevertheless recognising that the legislation has provided the relevant discretion to the Court and that the discretion is one in which it is proper for the Court to exercise.

Mr De La Torre

1. It is appropriate to record some features of Mr De La Torre and his history which form some of the fundamental matters of fact upon which the orders are sought.

(a) Criminal history (including views of the sentencing court): s 9(3)(h) and s 9(3)(h1) Crime (Serious Sex Offenders) Act

1. On 12 September 1990, Mr De La Torre was arrested and taken into custody as a consequence of his conduct on that day. On 27 March 1991 he pleaded guilty to one count of kidnapping contrary to s 90A Crimes Act 1900, and one count of indecent assault with act of indecency contrary to s 61E(1) of the Crimes Act .

1. The maximum penalty for the first of those two offences was 20 years, and the maximum penalty for the second of those two offences was four years.

1. The learned sentencing judge, Abadee J, recorded his findings in his Remarks on Sentence.

1. In brief, the offences were committed in circumstances where Mr De La Torre, having hired a motor vehicle, drove around the streets of Orange. By a ruse, he enticed a nine year old girl into his motor vehicle and then drove the motor vehicle some distance from the city of Orange and kept the young girl confined as a passenger in the vehicle. At one point in time during the course of the victim being in the motor vehicle, Mr De La Torre placed his hand underneath the victim's school tunic and touched her on the top of her leg near her underpants.

1. The prisoner returned the victim to the city of Orange where he dropped her off near Orange High School. At the time he did so, he threatened the victim that if she told anyone, he would return and " get her ".

1. Abadee J expressed these remarks about the offence:

"In relation to the events, I am satisfied that they occurred in circumstances which created for this young girl feelings of terror, horror, fear and apprehension as to what was to happen to her. Such was further compounded by what in fact did happen to her. She was not merely taken into a car in the city area, but driven from the town to a lonely area of the countryside. The matter is also aggravated by the threat made to her following the indecent assault and before she was released ..."

1. His Honour noted that he took a serious view of the offence which he found fell within the serious category.

1. He imposed concurrent sentences of a minimum five year non-parole period for the kidnapping offence and a fixed term of imprisonment of one year for the indecent assault offence. His Honour directed that the earliest date upon which Mr De La Torre would be eligible for release on parole was 11 September 1995.

1. Mr De La Torre was released from Kirkconnell Corrective Centre pursuant to an order for parole on 11 September 1995.

1. It was not long before Mr De La Torre was again offending. In the period from 1 December 1995 through to 30 April 1996, Mr De La Torre committed two offences of indecently assaulting a person under 10 years of age, contrary to s 61M(2) of the Crimes Act . The first of these offences occurred when Mr De La Torre was present in the house with a nine year female child. Whilst that child was visiting him with her parent, Mr De La Torre was with her in a bedroom without adult supervision. He kissed her on the lips for about a minute having pushed her onto the bed in a bedroom. He held the victim down and attempted to remove her underpants. The victim resisted and so Mr De La Torre discontinued this conduct, but persisted with an indecent assault by rubbing the victim with his hand on the outside of her clothes in the area of her vagina.

1. The second of the two indecent assault offences occurred whilst a five year old female was playing on a slippery dip in a park in the housing estate where Mr De La Torre lived. Whilst the five year old was happily playing, Mr De La Torre inserted his hand between her legs and rubbed her on the outside of her clothing in the area of her vagina.

1. On 10 July 1996, whilst living as Jesmond, Mr De La Torre took his small dog for a walk in bushland adjacent to a cycleway in the Jesmond Park area. In the park, he approached a number of young children of both sexes, but ultimately made contact with a nine year old girl. He enticed the young child to a concealed area of the bushland which was completely hidden from public view. He removed his victim's clothing and made her lie down naked on the ground on her back. He then produced a tube of lubricant and smeared some of this into the victim's vagina. He then undertook an act of forceful penile-vaginal intercourse, ultimately withdrawing his penis and ejaculating onto his victim. He required the victim to dress herself and returned her to the main park area and then left.

1. At the sentencing which occurred before Rummery DCJ in the District Court of NSW on 28 February 1997, Mr De La Torre asked that five further charges of conduct contrary to s 61M(2) of indecent assault upon a child under the age of ten years and a further two charges contrary to s 61M(1) of the Crimes Act of indecent assault upon a child under the age of 16 years, all of which occurred at Kelso near Bathurst between 1 December 1995 and 31 May 1996, be taken into account when the Court dealt with his plea.

1. His Honour, the learned sentencing Judge, said this:

"The series of sexual assaults occurred when the prisoner was on release from custody to serve on parole subject to conditions, an additional term of twenty months penal servitude following his sentence of one year for assault, commit act of indecency upon a nine year old victim concurrently with a longer sentence of five years for kidnapping his victim on her way home from school with her six year old sister. The series commenced about three months after the prisoner's release to parole and in breach of it. The assaults were also in breach of the condition of parole that he not be in the company of children under the age of sixteen years unless accompanied by a responsible adult. The most serious offences occurred when he was on bail for the Kelso offences, which bail also required him to be of good behaviour and to report daily to Mayfield Police."

(b) Treatment whilst in custody: s 9(3)(e) Crimes (Serious Sex Offenders) Act

1. In the initial period of imprisonment between 1990 and 1995, Mr De La Torre was seen individually by prison psychologists on a large number of occasions. By late 1993 he had participated in both group and individual sessions, with the "Sex Offender Assessment Program" at the Cooma Correctional Centre.

1. In 1994, having been relocated to the Kirkconnell Correctional Centre, Mr De La Torre engaged in a "structured Relapse Prevention Program". Whilst at Kirkconnell Mr De La Torre engaged in at least 18 sessions with the prison psychologist, who ultimately strongly recommended that his community reintegration would be assisted by him going into community treatment with a qualified and experienced psychologist.

1. During the course of an interview on 18 June 2011, Mr De La Torre told Mr Patrick Sheehan, the senior specialist psychologist attached to the Serious Sex Offender Review Group, that his interaction with therapists whilst both in custody and during his period in the community, had not been genuine. I agree that this was so. It does not stand to his credit on this application. He does not appear to have been willing to participate in these treatment programs.

1. During his second period of custody, Mr De La Torre participated in the CUBIT Program between 28 February 2007 and 18 February 2008. The CUBIT Program is a custodial based intensive treatment program facilitated by a specially trained psychologist. It is designed for sex offenders who are assessed as being within the moderate to high risk category, and thus requiring modest to high treatment needs.

1. It is an intensive, residential, group-based treatment program during which participants learn and practice their behaviour in a therapeutic environment that is closely monitored. It generally requires eight to ten months to complete. Although the format is primarily group-based, that is augmented by individual sessions.

1. The psychologist overseeing the CUBIT Program, and Mr De La Torre's participation in it, wrote this in a discharge summary of 13 May 2008:

"During his time in CUBIT, Mr [De La Torre] appeared motivated and engaged in treatment to address his offending behaviour. He participated satisfactorily in group processes and was an active member of the CUBIT community. Over the course of treatment Mr [De La Torre] took responsibility for his offending behaviour and the full extent of the harm that this caused. He developed a proficient understanding of the factors that contributed to his offending and he constructed meaningful self management plans to assist him to intervene in problematic behaviours and set up his life so that it is not conducive to sexual offending. At times Mr [De La Torre] appeared to have some difficulties implementing his management strategies when he was experiencing intense emotions."

1. I am satisfied that Mr De La Torre willingly and fully participated in this treatment program, and has benefited by his participation.

1. It was recommended that Mr De La Torre participate in the Custodial Maintenance Program upon his discharge from the CUBIT Program.

1. On 9 April 2008, up to and including 4 August 2010, Mr De La Torre participated in the Custodial Maintenance Program. This is a group-based psycho-therapeutic program designed for men convicted of sexual offences who have completed a program such as CUBIT.

1. Over the two years of his participation, Mr De La Torre attended 42 treatment sessions.

1. The relevant notes and reports indicate that overall, Mr De La Torre, could be described as having made further treatment gains during this period. It is also clear, particularly from the report of Mr Sheehan of 23 June 2011, that although progress was initially slow, as he continued to progress through the Custodial Maintenance Program, Mr De La Torre experienced fewer episodes of negative coping and developed an increased ability to intervene earlier when such behaviours did surface.

1. It was noted during the course of the Custodial Maintenance Program, that despite encouragement by maintenance therapists, Mr De La Torre continued to decline the offer of assessment for anti-libidinal medication.

1. Notwithstanding this declining of an assessment for anti-libidinal medication, I am satisfied that Mr De La Torre fully and willingly participated in the Custodial Maintenance Program.

1. Mr De La Torre was released from custody in December 2010. He was then accommodated at Nunyara.

1. He commenced in the Community Maintenance Program, a similar program to that which occurred during his custody, and has continued in that Program, attending it on a weekly basis. His attendance and participation have been satisfactory.

(c) Diagnosis and Risk: s 9(3)(b), s 9(3)(c) and s 9(3)(d) of the Crimes (Serious Sex Offenders) Act

1. On 15 November 2010, Dr Satish Dayalan, a consultant forensic psychiatrist with Justice Health, concluded that in accordance with DSM-IV-TR, Mr De La Torre would be diagnosed with the condition known as Paedophilia Non-Exclusive type.

1. Dr Anthony Samuels, one of the two forensic psychiatrists appointed by Adams J in accordance with s 7(4) of the SSO Act, in a report of 7 September 2011, also concluded that Mr De La Torre fulfilled the criteria in DSM-IV-TR for Paedophilia Non-Exclusive type. He noted that there were suggestions from Mr Sheehan's Risk Assessment Report of other paraphilia, but no clear evidence for this.

1. Mr Sheehan, in his report of 23 June 2011, accepted as accurate the diagnosis of Dr Dayalan.

1. In a report of 8 October 2011, Dr Andrew Ellis, who was one of the two forensic psychiatrists appointed by Adams J in accordance with s 7(4) of the SSO Act, concluded that Mr De La Torre would meet the:

"...diagnostic criteria for the paraphilias of paedophilia, voyeurism, masochism and fetishism. Paedophilia is subtyped as attracted to females, and non-exclusive."

1. Dr Ellis noted that although Mr De La Torre had suffered depression in the past, and was possibly at risk of future episodes of depression, that he did not currently meet the criteria for a mood disorder.

1. A number of experts have assessed Mr De La Torre's risk of re-offending. Mr Sheehan, in his affidavit of 14 October 2011, expressed the opinion that having regard to both actuarial assessment using the STATIC-99R and Dynamic Risk Assessment, that Mr De La Torre presented a high risk of sexually re-offending relative to other adult male sexual offenders.

1. He expressed this opinion:

"65. In my view when Mr De La Torre's parole order expires, the likelihood of him being able to successfully manage his risk of sexual recidivism would be enhanced if supportive resources, supervisory conditions and monitoring were made available. Conversely, continued supervisory conditions and monitoring would be likely to decrease the risk of Mr De La Torre re-offending. ...

66. The mitigation of future risk will require community supervision and support until such a time that Mr De La Torre can reliably demonstrate the ability to respond effectively to life stressors without recourse to the pathological coping behaviours associated with his sexual offending."

1. Dr Anthony Samuels, in his report of 7 September 2011 expressed the opinion that Mr De La Torre was at moderate to high risk of committing a further sexual offence if not supervised. Dr Samuels arrived at this opinion by utilising a structured professional judgment approach which incorporated elements of clinical risk assessment, actuarial risk assessment and structured professional guidelines.

1. Dr Ellis in his report of 8 October 2011, expressed this opinion:

"In considering actuarial and clinical parameters in the absence of any treatment or supervision, Mr De La Torre would fall into a group of persons with a risk of offending that is high, and greater than a theoretical average offender. Treatment and supervision would likely reduce this risk."

1. It is apparent from his report that Dr Ellis had regard to the STATIC-99R actuarial measure and as well, clinical considerations.

1. A number of the experts gave consideration to the type of possible or hypothetical sexual offences that should be considered when estimating risk. They each separately concluded, in similar terms, that the most likely type of victim would a female child in a situation in which the child and Mr De La Torre were alone, or else their interaction occurred in a position of vulnerability.

1. I conclude upon the basis of these opinions that there is a high risk of Mr De La Torre committing a serious sex offence if he does not accept treatment and supervision.

Other Mandatory Relevant Considerations

1. Section 9(3) of the SSO Act requires that the Court must have regard to a number of listed matters in determining whether or not to make an extended supervision order. I have already addressed a number of them. It is appropriate that I address the matters which remain.

(a) Safety of the Community: s 9(3)(a) of the Crimes (Serious Sex Offenders) Act

1. In my opinion, the safety of the community generally, and that particular group within the community of young females, is at high risk if Mr De La Torre is released into the community without supervision.

1. Put in another way, there is a real risk of Mr De La Torre committing a further offence if he is released into the community without treatment. The safety of the community cannot be ensured if Mr De La Torre is released without any extended supervision order.

1. It follows that from the perspective of the community, an extended supervision order, with appropriate conditions is necessary for protection of the community.

(b) Expert Reports: s 9(3)(b) Crimes (Serious Sex Offenders) Act

1. As noted above, I have received and had regard to the reports of Dr Samuels and Dr Ellis, who were the psychiatrists appointed by Adams J under s 7(4) of the Act, to conduct examinations of Mr De La Torre. I am satisfied from the contents of those reports that Mr De La Torre participated in a satisfactory way in the consultations and examinations, and I have had close regard to the opinions expressed by each of the experts and the material upon which those opinions were based.

(c) Corrective Services Commission Report: s 9(3)(d1) Crimes (Serious Sex Offenders) Act

1. Mr Jonny George, whose opinion is contained in an affidavit affirmed on 17 October 2011, is responsible for formulating the risk management plan for Mr De La Torre and, as well, reviewing and adjusting that plan as required over a period of time.

1. A Risk Management Plan has been prepared which is contained in a report of Corrective Services NSW and which is annexed to Mr George's affidavit.

1. The report contains the following to which I have had careful regard:

"As part of Mr De La Torre's case management, a case management plan has been formulated which incorporates the strategies recommended in the proposed Risk Management plan. The case management plan takes into consideration recommendations of assessing psychologists and psychiatrists and seeks to develop a management plan which encourages the successful reintegration of the offender into the community whilst maintaining public safety.

...

The Risk Management Plan (RMP) produced below demonstrates the strategies utilised by the [Community Compliance and Monitoring Group] to reasonably and practically manage the offender in the community. These strategies seek to address criminogenic factors, reduce the risk of re-offending and enhance the safety of the community."

1. Mr George, in his affidavit, notes that he agrees with the Risk Management Plan and expresses his view that the plan will reasonable and practically manage Mr De La Torre in the community.

1. I am satisfied on the evidence of Mr George and the proposed Risk Management Plan Report compiled by Nicholas Vrzic on 2 August 2011, that Mr De La Torre can be reasonably and practically managed in the community if an extended supervision order were made.

(d) Compliance with Obligations: s 9(3)(f) Crimes (Serious Sex Offenders) Act

1. Since being released on parole in December 2010, the evidence satisfies me that Mr De La Torre has complied with any obligations to which he has been subject, including such obligations as existed in accordance with the interim extended supervision order made by Adams J in April 2011.

(e) Other Mandatory Matters: s (3)(g) Crimes (Serious Sex Offenders) Act

1. There is no material before me to indicate that Mr De La Torre has failed to comply with any obligations pursuant to the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004. I have recounted his criminal history, including any pattern of offending behaviour disclosed by that history, and I have taken into account the views of the sentencing courts, namely Abadee J and Rummery DCJ, considering the making of an extended supervision order.

1. There is nothing in the views of the sentencing court which would suggest that such an order should not, at this time, be made.

Period of Any Order

1. The State of NSW submits that the appropriate period for any order is five years.

1. Counsel for Mr De La Torre does not oppose the making of an order but submits that any order ought be made only for three years.

1. Dr Samuels in his report expresses his opinion in this way:

"It seems likely that Mr De La Torre is going to represent an ongoing risk to the community and a 5 year order would seem appropriate from a psychiatric perspective."

1. Dr Samuels goes on to note that it may be appropriate across this period to review the conditions imposed on Mr De La Torre in order that he might be " rewarded for the progress he makes " and as well, because " over time allowing him slightly more freedom will be a test of his progress ".

1. Dr Ellis in his report, expressed a sound basis for the period of five years as opposed to any shorter period. He said:

"A period of five years would be suggested in order to establish a baseline function in the community, and refine the appraisal of risk. It is most likely that a period of 12 months will be required to secure stable accommodation and regular meaningful activity in the community, given the restrictions on persons subject to extended supervision orders. During this period of time, it is unlikely that a person will have the focus to benefit from intense therapeutic activity. A further 36 months of regular treatment in a psychological programme, coupled with medication and review of this medication would be necessary to consolidate the modest gains made in custodial programs. This period is estimated based on his personality disorder and paraphilia that will be unlikely to change in the short term. Involvement in structured activity and appropriate social groups will also consolidate a routine promoting a positive lifestyle. A further period of 12 months would be required to monitor the consolidation. At this point a more informed appraisal of future risk in progress could be made."

1. Mr De La Torre did not adduce any evidence from any expert psychiatrist or psychologist to challenge either this opinion or the opinion of Dr Samuels. He did not adduce any evidence which suggested that three years was the appropriate period for an extended supervision order. His counsel did not seek to challenge by cross-examination the opinions expressed by Dr Ellis or Dr Samuels.

1. Where a witness, including an expert, is not cross-examined, then, prima facie, the Court ought to accept the unchallenged evidence: Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [112] per Tobias and McColl JJA. However, such evidence is not necessarily to be accepted where either there is a credible body of contradictory evidence, or the evidence is on its face illogical or inherently inconsistent. I do not regard the evidence as falling into either of those categories. I note that no submission was made that the evidence was on its face, illogical or inherently inconsistent, and as I have earlier pointed out, there was no evidence adduced which contradicted what Dr Ellis or Dr Samuels said.

1. In the case of an expert, if the evidence is based on a history that is incomplete or incorrect, or else where the factual assumptions that the expert makes are not made out, then the Court may disregard even, unchallenged, expert evidence: Hull v Thompson [2001] NSWCA 359 at [21] per Rolfe AJA (Sheller JA and Davies AJA agreeing). There is no suggestion here of any inaccuracy or unreliability of the history relied upon by either Dr Samuels or Dr Ellis.

1. In this case, I find the evidence of Dr Ellis persuasive. It is logical and it provides a proper basis for his opinion that the appropriate length of an extended supervision order is five years and not something shorter.

1. In particular, I note that he regards a period of three years of regular treatment in a psychological program and a period of review thereafter as being essential. This opinion is inconsistent with the defendant's submission that the order ought only extend for three years.

1. I am satisfied that it is both necessary and appropriate for the period of the extended supervision order to be five years.

1. I note that in the event, as hoped, Mr De La Torre makes significant progress, so that some of the conditions ought be modified, then he is at liberty in accordance with the SSO Act, to bring proceedings seeking a variation to any extended supervision order. In those proceedings, the onus would fall on him to persuade the Court that such a variation ought be made.

1. I do not regard this as unfair or unjust, as his counsel submitted, because ultimately the primary object to be achieved by an extended supervision order is the protection of the public. His rehabilitation, whilst not inimical to the primary purpose, is not the primary purpose.

Accommodation Condition

1. Mr De La Torre's counsel submits that the Court ought impose a condition in the following terms, in addition to all other of the suggested conditions:

9(a) The Departmental Supervising Officer is not to refuse approval for any accommodation proposed by the Defendant, by reason only that any such accommodation has shared kitchen, bathroom, or common room areas.

1. Mr De La Torre's counsel submitted that given that his client has a limited income, and was keen to live in independent accommodation, an aim approved of by Corrective Services NSW, that many places of accommodation within the affordable price range would have a shared kitchen, bathroom or a common recreation area.

1. Mr De La Torre drew attention to a number of entries in the Case Notes which he submitted indicated that Corrective Services NSW had an intractable policy not to approve of accommodation where there was a shared kitchen, bathroom or a common recreation area.

1. According to the Case Note reports, on 6 August 2011, as a consequence of a phone call with a staff member, Mr Simon Gray, the following is recorded:

"Offender states the property he is proposing has a communal bathroom - advised offender he would not be able to live in a property with a communal bathroom as CCMG need to be able to manage a risk. Explained CCMG would not be able to manage this risk appropriately as it was impossible to determine who would have access to a communal bathroom and there is a duty of care to both the offender, other residents and visitors to the property."

1. On 14 August 2011, in a further Case Note of a review discussion, the following note is to be found:

"Discussed his restrictions on accommodation. Roy is finding it difficult to find suitable accommodation with the restrictions of the 500 metre rule in communal living. He stated he had looked through almost 80 properties in the last fortnight. At this point ASW interrupted and reminded Roy that he had been informed numerous times by staff that exemptions can be applied for and that this had been confirmed by CCMG.

1. On 31 August 2011, a further entry is contained to this effect:

"Also discussed accommodation and the difficulty in finding suitable properties. Advised CCMG realised the difficulties in obtaining suitable accommodation but it would not be approved for him to live in a property with shared bathrooms etc with members of the public. Advised he would need to continue searching and CCMG would only be able to consider properties on a case by case basis."

1. As well, the Case Notes contained numerous references to difficulties that Mr De La Torre had in finding suitable accommodation. Of interest, most of the difficulties seemed to be associated with the geographical location of the accommodation in relation to the presence of schools, childcare centres or other like places, where it might be expected that children would gather.

1. I am satisfied from reading all of the Case Note reports that considerable care and attention is being paid by the relevant CCMG staff to obtaining suitable accommodation for Mr De La Torre, or else approving suitable accommodation found by Mr De La Torre for himself.

1. I am reluctant, by the making of a specific condition of the kind that Mr De La Torre seeks, to interfere with what may be a general policy, which is soundly based. Accordingly, I will not impose the condition sought.

1. However, it is appropriate that I record these remarks. What seems to me to be relevant is that the accommodation in which Mr De La Torre is to live, is a place which enables him to comfortably comply with all of the conditions imposed with his extended supervision order. It is obviously in his interests that he be accommodated independently of Nunyara and to live in the community. There seems to be no disagreement about this.

1. However, I do note that when Mr De La Torre travels to work or, with approval, to other places of social recreation, that it is essential at those places that he shares toilets, recreational areas, and at his work place, a kitchen or kitchenette with others. The CCMG has no control over who might be in those places at any given time.

1. Indeed, as counsel for Mr De La Torre submitted, he is entitled to use public toilets as he travels to and from work and his place of residence.

1. In other words, it is not possible for Mr De La Torre to live, work and socialise in the community without, from time to time, accessing communal facilities such as bathrooms, kitchens and recreation rooms.

1. What seems to me to be important is not the fact of those rooms being communal, but rather who it is likely Mr De La Torre will encounter when he uses those rooms.

1. Having regard to that likelihood, I have no doubt that some communal accommodation, to use a shorthand term, would be entirely acceptable, whereas others might not be.

1. In short, I will not impose the condition requested, but I do express my view that if such a rule exists, then it ought not be inflexibly applied.

Summary

1. I am satisfied on all of the material that, to a high degree of probability, Mr De La Torre poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.

1. I am satisfied that the period of supervision ought be five years.

1. I am not satisfied that I ought impose the condition with respect to accommodation which Mr De La Torre seeks.

Undertaking

1. It is appropriate that, before proceeding to make orders, I record the terms of an undertaking to the Court made by the plaintiff. It is this:

The State of New South Wales will pay for any cost relating to the electronic monitoring of the defendant, including the costs of installing, maintaining and operating the electronic monitoring equipment.

1. Were it not for that undertaking, I would not have been prepared to make an extended supervision order upon the conditions sought by the State.

Orders

(1) I order, pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 that Mr De La Torre be subject to an Extended Supervision Order for a period of five years from 28 October 2011;

(2) I order pursuant to s 11 of the Crimes (Serious Sex Offenders) Act 2006 that Mr De La Torre comply with the conditions set out in Schedule A which is attached to this judgment;

(3)   I order that access to the court file in respect of any document shall not be granted without the leave of a Judge of the Court;

(4)   I direct that in the event that any application for access is made by a non-party to the matter in respect of any document contained on the court file, that the Registrar of the Court is to notify the parties to the summons and provide them with an opportunity to make submissions with respect to whether that access should or should not be granted.

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Decision last updated: 28 October 2011