State of New South Wales v Delaporte

[2022] NSWSC 436

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Delaporte [2022] NSWSC 436

Hearing dates:

04 April 2022

Date of orders:

27 April 2022

Decision date:

27 April 2022

Jurisdiction:

Common Law

Before:

Garling J

Decision:

See [64]

Catchwords:

HIGH RISK OFFENDERS — interim supervision orders — interim supervision order agreed — conditions disputed

Legislation Cited:

Crimes (High Risk Offenders) Act 2006

Cases Cited:

Attorney General for NSW v Kapeem bht Jennifer Thompson (Preliminary) [2018] NSWSC 619

Attorney General for NSW v Tillman [2007] NSWCA 119

Attorney General for NSW v Winters [2007] NSWSC 611

State of NSW v Delaporte [2014] NSWSC 1395

State of NSW v Lynn [2013] NSWSC 1147

State of NSW v Thomas (Preliminary) [2011] NSWSC 118

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

State of New South Wales (P)
Jason Aaron Delaporte (D)

Representation:

Counsel:
P Aitken (P)
G Marsden (D)

Solicitors:
Crown Solicitors Office (P)
NSW Legal Aid (D)

File Number(s):

2014/219799; 2021/356714

Publication restriction:

Access to Court file not permitted without leave of this Court.

Judgment

1. On 14 December 2021, the State of NSW (“the State”) commenced proceedings against Jason Delaporte claiming by way of final relief, an order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (“the Act”) that he be subject to an Extended Supervision Order (“ESO”) for a period of three years.

2. In that Summons, the State also sought relief pursuant to s 7(4) of the Act appointing two suitably qualified experts to examine the defendant and report to the Court. Finally, the State sought the imposition of an Interim Supervision Order (“ISO”) for a period “… commencing on the expiry date of the defendant’s current extended supervision order”.

3. This judgment deals with the making of those interlocutory orders.

Relevant Legal Test

4. The principal orders which are being sought are for an ISO. On such an application, the Court is not engaged in the task of weighing up the material contained in the evidence, or else predicting the ultimate result of the State’s substantive application. Rather, the Court needs to be satisfied that on the facts and matters contained in the supporting documentation provided to the Court by the State, the Court would, if those facts and circumstances were proved, be justified in making an ESO.

5. This is a test analogous to that which formerly applied for the determination of whether a prima facie case existed sufficient to justify the committal of a defendant to stand trial: see Attorney General for NSW v Kapeem bht Jennifer Thompson (Preliminary) [2018] NSWSC 619 at [16]; Attorney General for NSW v Tillman [2007] NSWCA 119 at [38]; State of NSW v Thomas (Preliminary) [2011] NSWSC 118 at [11].

6. The test is not a stringent one: see State of NSW v Lynn [2013] NSWSC 1147 at [17]-[18]. It is also appropriate on an interlocutory application such as this to have regard to the objects of the Act and to give weight to risk avoidance: see Attorney General for NSW v Winters [2007] NSWSC 611 at [7].

Relevant History

7. On 13 October 2014, Button J imposed a continuing detention order on the defendant for a period of four months to expire on 20 February 2015. In addition, he imposed an ESO of two years duration from 20 February 2015 to 19 February 2017 (“the 2015 ESO”). His Honour’s reasons are to be found at State of NSW v Delaporte [2014] NSWSC 1395.

8. The orders made by Button J were at a time when the defendant was on parole pursuant to a term of imprisonment of 16 years, commencing on 4 May 2000, for committing a number of sexual offences including serious sex offences in 1998. Whilst on parole, in August 2014, the defendant committed a series of property offences for which he was subsequently sentenced to 5 years and 6 months fulltime imprisonment. His parole was revoked and he was returned to custody. Because his parole was revoked and he returned to fulltime custody, the 2015 ESO which was to commence on 20 February 2015 (“the 2015 ESO”), was suspended. Ultimately, the defendant was not released into the community and the 2015 ESO did not commence until 3 May 2018.

9. During the course of the 2015 ESO, in October 2018, the defendant was arrested and taken into custody and charged with failing to comply with the conditions of the 2015 ESO in that he tested positive to methamphetamine. The defendant pleaded guilty to that breach and was sentenced to 15 months imprisonment with a non-parole period of 10 months. The 2015 ESO was again suspended.

10. On 29 October 2019, the defendant was again released to the community on the 2015 ESO. On 21 January 2021, the defendant was arrested and taken into custody and charged with two offences of failing to comply with conditions of the ESO in that he accessed various internet sites without approval. He was sentenced to 18 months imprisonment with 12 months non-parole. On 16 January 2022, the defendant was released into the community and has been in the community whilst supervised pursuant to the 2015 ESO since that time.

11. The consequence of the various suspensions of his ESO means that the 2015 ESO imposed by the order of Button J will expire on 29 April 2022.

12. That is the date upon which the State seeks the imposition by this Court of an ISO.

Attitude of the Defendant

13. In written submissions, counsel for the defendant informed the Court that the defendant:

1. did not oppose the appointment of the two experts and the supplementary directions for him to attend the examination by those experts; and

2. did not oppose an order that he be subject to an ISO for a period of 28 days commencing on the expiry date of his current ESO.

14. However, the defendant did oppose a number of the conditions set out in Schedule A to the State’s Summons. It will be necessary to return to the conditions in due course.

15. Counsel for the defendant did not seek to cross-examine any witness for the State nor was any objection taken to the evidence tendered by the State. The defendant called no evidence.

16. Counsel for the defendant made the following concessions for the purpose of this interlocutory application only:

1. the application was brought within the requisite time period: s 6(1) of the Act;

2. the defendant is an “offender” who has served a sentence of imprisonment for a “serious sexual offence”: ss 5B(a) and 5(1);

3. the defendant is a supervised offender within the meaning of ss 5B(b) and 5I; and

4. the application was made in accordance with s 5B(c) and 5I.

17. The defendant accepted that, for the purposes of the preliminary hearing, the supporting documentation tendered by the Crown would, if proved, satisfy the Court to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under supervision: ss 5B(d) and 7(4) of the Act.

18. Submissions by the defendant’s counsel pointed out that the concession with respect to the supporting documentation provided by the State was based upon the following factors:

1. the assessment of the defendant’s risk of sexual offending is “well above average” compared to other men who have offended sexually according to the STATIC-99R Actuarial Risk Assessment;

2. the assessment that the defendant has a “high density of criminogenic needs” relative to other male sexual offenders according to the STABLE-2007 assessment tool;

3. the assessment that the defendant continues to have outstanding treatment needs;

4. the defendant’s prior breaches of the 2015 ESO; and

5. the defendant’s pattern of offending, including the multiple sexual offences he committed against different females between August and October 1998.

19. As I have previously noted, in other similar matters, these proceedings are civil proceedings in which the defendant is represented by counsel. This Court is entitled to rely upon such explicit concessions, properly made by counsel, as constituting sufficient reason to make the interlocutory orders by way of an ISO with conditions for the protection of the community.

20. The supporting documentation and the helpful submissions of the State amply justify the concessions which were made by counsel for the defendant. Together, they satisfy me that the orders by way of an ISO and the appointment of suitably qualified experts ought be made. The ancillary relief ought also be granted.

Conditions

21. The State sought the imposition of 56 conditions on the ISO – only some of which were disputed.

22. In light of the position reached, I propose only to deal with those conditions which were the subject of oral submissions, and which apparently remained in dispute between the parties. It is most convenient to deal with these sequentially.

Condition 7

23. The State seeks the imposition of the following condition:

“7.   The defendant must not deviate from his approved schedule of movements except in an emergency.”

24. The defendant objected to this and sought to have specific exclusions included which would enable him to deviate from his approved schedule if he wished to go to a public toilet.

25. The State submitted that such a circumstance would be likely to be held by a Court to be an emergency. The State submitted that it was appropriate to leave the objective determination of the existence of an emergency to a Court.

26. In my view, there needs to be both a subjective and objective element rather than relying upon a wholly objective ex post facto assessment which may result in a breach of a condition when the defendant did not intend any such breach.

27. It seems to me that the appropriate condition, and the one which I would impose to deal with an occasion where, as a matter of urgency, the defendant needs to vary from his schedule of movements is as follows:

“7.   The defendant must not deviate from the approved schedule of movements except in case of any circumstances which the defendant reasonably regards as being an emergency. In such circumstances, the defendant is to notify a DSO of that deviation without delay.”

Condition 17

28. The condition proposed by the State was as follows:

“17.   The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.”

29. The defendant objected to the inclusion of the word “employment” in that condition. The State agrees to delete it. Accordingly, condition 17 will be imposed in the following terms:

“17.   The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include education, training or participation in personal development programs.”

Conditions 28 and 56

30. The State seeks the imposition of the following clause:

“28.   The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary.”

31. The defendant opposes this on the basis that it is an undue invasion of his privacy. Condition 56 has a similar issue and it is convenient to deal with that as well. It is in the following form:

“56.   The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.”

32. The State submits that these conditions are both necessary and appropriate for two reasons. First, such disclosure may be relevant when necessary to address the risk of commission of a serious offence. Secondly, the State submits it may be necessary to inform a person with whom the defendant was embarking on a relationship or a health or allied health practitioner who may be seeing the defendant alone in therapy sessions, for their personal protection.

33. The defendant submits that the disclosure of his criminal history as contemplated by Conditions 28 and 56 should only be made where it is reasonably necessary to address the risk of commission of a serious offence. He also submits that before any such disclosure is made, he should be so informed and given the opportunity to make the disclosure himself.

34. I am not persuaded that the State should have an entitlement, in the circumstances of this particular case, to make a blanket disclosure to all people about the defendant’s criminal history, where that is thought to be reasonably necessary.

35. In my view, the conditions and restrictions suggested by the defendant are appropriate. Disclosure is only necessary where it may relate to the risk of the commission of a serious offence and the defendant should be given the opportunity to make the disclosure himself before a DSO does.

36. In my view, Condition 28 is an appropriate one in the following terms:

“28.   The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary to address a risk of the commission of a serious offence. Before any disclosure is made, the defendant must first be so informed and given the opportunity to make the disclosure himself.”

37. Condition 56 should be in the following terms:

“56.   The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him to the extent that it is relevant to his risk of reoffending or rehabilitation. Before any disclosure is made, the defendant must first be so informed and given the opportunity to make the disclosure himself.”

Condition 32

38. This condition relates to access to the internet and use of electronic communications. Condition 32 as proposed by the State is in the following terms:

“32.   The defendant must not use any alias, electronic identity, log-in name, name other than Jason Aaron Delaporte or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.”

39. The defendant agrees to this condition but does not agree to the use of the word “immediately” where it appears as the last word of the second sentence. The defendant proposes the phrase “as soon as practicable”. This phrase is not suitable to the State.

40. The word “immediately” appears in the condition so as to emphasise the urgency with which notification needs to be made. This is to enable a DSO to undertake supervision of the defendant and investigate to see if the defendant has breached the conditions.

41. In my view, the appropriate words to insert are “without delay”. Accordingly, I would impose as Condition 32, the following:

“32.   The defendant must not use any alias, electronic identity, log in name, name other than Jason Aaron Delaporte or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list without delay. This includes phones, tablet devices, data storage devices or computers.”

Condition 36

42. This condition as proposed by the State is in the following terms:

“36.   The defendant must not use any coded or encrypted messaging application or service.”

43. The defendant seeks the addition of the word “knowingly” with respect to the use of any such application or service.

44. Ultimately, after submissions, the parties were agreed or, alternatively, did not oppose a condition in the following terms, which is the condition which will be imposed:

“36.   The defendant must not use any message application or service which he knows, or ought reasonably to know, is coded or encrypted. If the defendant is unsure whether a messaging application or service is encrypted, he can ask his DSO first.”

Condition 40

45. Condition 40 addresses the deletion, or alteration, by the defendant of any applications and other functions on his electronic devices without the prior consent of a DSO. The defendant proposed to insert the word “knowingly” prior to the words “delete or alter”. It was submitted that the defendant may not know if he was doing something on one or more of his devices which had the effect of deleting or altering any application or other stored data in a variety of forms.

46. In my view, the appropriate condition ought be as follows:

“40.   The defendant must not by any positive act delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application, chat or communication history from his phone, computer, tablet nor any other electronic device without prior consent of a DSO.”

Condition 46

47. The State seeks the imposition of the following condition:

“46.   The defendant must not significantly change his appearance without first notifying a DSO.”

48. The defendant objected to this condition because of its vagueness and because the phrase “significant change” could mean different things to different people. I agree with that submission. In my view, an appropriate condition would be as follows:

“46.   The defendant must not change his appearance to the extent that he cannot be easily recognised without first notifying a DSO.”

49. I observe that this reflects the existing condition in the 2015 ESO.

Condition 53

50. The State proposes a condition in the following terms:

“53.   The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.”

51. The defendant takes issue with the word “immediately” and submits consistently with the submissions made with respect to Condition 32, that the phrase “as soon as practicable” should be inserted instead.

52. In my view, a proper and appropriate condition is one which uses the words “without delay” instead of the word “immediately”. I would permit Condition 53 in the following terms:

“53.   The defendant must notify a DSO without delay if he ceases to take, or declines to commence taking, any medication referred to in the above condition.”

Condition 54

53. Condition 54, as sought by the State, is in the following terms:

“54.   The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them with each other and with a DSO.”

54. The defendant submits that this condition is only appropriate if, at the end of the condition, the following words are added, “to the extent that it is relevant to his risk of reoffending or rehabilitation”.

55. The submissions orally and in writing, canvassed the reasons for on the one hand, the State seeking to have as broad a condition as possible, and on the other, for the defendant seeking to restrict it.

56. The appropriate wording of this condition, in my view, lies somewhere in between the respective positions of the parties .

57. Condition 54 will need to be expressed in these terms:

“54.   The defendant must agree to his treatment and service providers and health care practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO, where those practitioners consider such information to be relevant to his ongoing risk management and rehabilitation.”

Condition 55

58. Condition 55 is the final condition in dispute between the parties.

59. The State seeks the imposition of a condition in the following terms:

“55.   The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.”

60. The defendant agrees to the condition providing that the organisations NSWPF and CSNSW are deleted in their entirety and that the following phrase is added: “to the extent that it is relevant to his risk of reoffending or rehabilitation”.

60. In the course of oral submissions in response to a question from the Bench, counsel for the defendant agreed that a condition which terminated after the words “his supervision” and did not include the balance of the sentence proposed by the State would address the concerns which the defendant has.

61. The State in oral submissions accepted that the condition could be so phrased with the addition of the words “directly or indirectly” after the words “that are”. The defendant did not oppose this addition.

62. In light of those submissions, Condition 55 will be in the following terms:

“55.   The defendant must agree to any information being shared between those persons and agencies that are directly or indirectly involved in his supervision.”

Orders

64. I make the following orders:

1. Order, pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006, that two qualified psychiatrists, psychologists, or any combination of such persons, are to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations within seven days of the preparation of the report.

2. Order that the defendant attend those examinations.

3. Order, pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006, that the defendant be subject to an Interim Supervision Order from 29 April 2022.

4. Order, pursuant to s 10C(1) of the Crimes (High Risk Offenders) Act 2006, that the Interim Supervision Order be for a period of 28 days, unless renewed on further application by the State for another period of 28 days, or until the proceedings are finally determined.

5. Order, pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006, that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out a Schedule A to the Summons dated 14 December 2021, subject to such amendments as reflect the terms of this judgment.

6. Order that access to the Court file for any document shall not be granted to a non-party without leave of a Judge of this Court and providing that prior notice is given to the parties so as to enable them to be heard in respect of the application for access.

7. Stand the proceedings over to 9am on 11 May 2022 before the Registrar at Common Law.

8. The parties have liberty to apply.

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Decision last updated: 27 April 2022