State of New South Wales v DJM (final)

[2023] NSWSC 337

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v DJM (final) [2023] NSWSC 337

Hearing dates:

3 April 2023

Date of orders:

3 April 2023

Decision date:

03 April 2023

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

1. Order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act2006 that the defendant be subject to an extended supervision order for a period of 2 years commencing 6 April 2023.

2. Order pursuant to s 11 of the Act directing that the defendant for the period of the extended supervision order comply with the conditions set out in schedule A to the amended summons.

Catchwords:

HIGH RISK OFFENDER

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act2006 (NSW)

Child Protection (Offenders Registration) Act2000 (NSW)

Category:

Principal judgment

Parties:

State of New South Wales (plaintiff)
DJM (defendant)

Representation:

Counsel:
K Curry (plaintiff)
D Bhutani (defendant)

Solicitors:
Crown Solicitors’ Office (NSW) (plaintiff)
Karim & Nicol Lawyers (defendant)

File Number(s):

2022/318652

Publication restriction:

No

JUDGMENT

1. FAGAN J: This is the final hearing of a summons filed by the plaintiff on 24 October 2022 seeking an extended supervision order of two years duration in respect of the defendant, pursuant to ss 5B and 9 of the Crimes (High Risk Offenders) Act2006 (NSW). The defendant is presently subject to an interim supervision order made by Wright J on 3 February 2023. That order was renewed by order of Yehia J made on 1 March 2023 and is due to expire on 5 April 2023.

2. The first of the statutory criteria upon which the defendant may be liable to the making of an extended supervision order is that he is an "offender who [has served] a sentence of imprisonment for a serious offence": s 5B(a). In 2008 and 2009 the defendant committed three counts of sexual assault of a child under 16 years of age contrary to s 61J(2) of the Crimes Act 1900 (NSW) and three offences relating to child abuse material contrary to ss 91G and 91H. He was arrested on charges for those offences in October 2009. He pleaded guilty in the Local Court and was sentenced on 20 February 2012. His total effective sentence, after reduction in the Court of Criminal Appeal, was to a term of 13 years and 4 months imprisonment, which commenced on 8 October 2009 and expired on 7 February 2023, with a non-parole period of 10 years that expired on 7 October 2019. The defendant was released to parole under supervision on 13 September 2021.

3. The second criterion for the making of an extended supervision order is that the defendant is "a supervised offender" within the meaning of s 5I: s 5B(b). The defendant satisfies that requirement in that, when the plaintiff's summons was filed, he was serving the balance of his sentence for a serious offence on parole under supervision.

4. Thirdly, the plaintiff's application is required to have been made in accordance with s 5I: 5B(c). That requirement is met in this case by the circumstance that when the plaintiff's summons was filed the applicant was still serving the parole period of his sentence for the offences of 2008 and 2009 and he was within the last 9 months of that term.

5. The fourth and final criterion is the substantive question of whether the Court "is satisfied to a high degree of probability that [the defendant] poses an unacceptable risk of committing another offence if not kept under supervision" under an extended supervision order: 5B(d). That is to be determined having regard to the safety of the community as the paramount consideration, under s 9(2), and taking into account the matters listed in paras (a) to (i) of s 9(3).

6. The defendant in this case does not oppose the making of the order and he makes no submission about the duration of it, if made. The defendant takes issue with only one of the conditions that are sought by the plaintiff pursuant to s 11. Notwithstanding the defendant's lack of opposition to the making of an order it is incumbent on the Court to satisfy itself that the pre-condition in s 5B(d) is met and to give reasons for so finding.

The Index Offending

7. The defendant was born on 24 May 1970. In 2008 and 2009 at age 38 to 39 years he resided at Rosebery. At that time five children were periodically in his sole care. The oldest of the children was a girl aged 12 to 13 years during 2008 to 2009. She is the complainant in relation to the three counts of aggravated sexual assault that are the index offences forming the basis of the present application.

8. The complainant and the next three children in order of age, all of whom were at times in the defendant's care, were his step-children. He had been married to their mother between December 2001 and about June 2003. The couple were divorced and living apart in 2008 and 2009. The fifth and youngest child who was at times in the defendant's care was a son born to the defendant and his estranged wife. That boy was aged about seven years at the time of the index offending.

9. The three counts of aggravated sexual assault involved full penile-vaginal penetration and digital penetration. The sentencing judge recorded in her remarks on sentence that answers given by the defendant in a recorded police interview showed his sexual intercourse with this child on three spread over about 10 months, from December 2008 to early October 2009, was seen by the defendant "as part of normal activity".

10. The offences concerning child abuse material included that the defendant directed the complainant to pose naked with her legs open and took multiple photographs that he disseminated to an adult male associate. Another offence concerned him setting up a webcam and filming himself having intercourse with the complainant. This activity was live-streamed to another adult male recipient.

Earlier criminal record

11. In October 2001, at age 31, the defendant committed two offences of sexual intercourse with a 14-year-old girl. The first offence involved digital penetration of the young girl's vagina and the second involved oral intercourse with her. The defendant was at that time engaged to the aunt of the victim and the aunt is the woman whom the defendant subsequently married, the mother of the complainant in relation to the 2008 to 2009 index offences. There is no evidence that the victim of the 2001 offences was forced.

12. The defendant was sentenced to concurrent terms of 2 years for each of the 2001 matters, each of them with a non-parole period of 1 year. It was after his release to parole in June 2003 that his wife, the mother of the complainant in the index offences, separated from him and they divorced. Also at that time The defendant was recorded on the register maintained under the Child Protection (Offenders Registration) Act2000 (NSW).

Risk assessment report by Corrective Services

13. A senior psychologist of the Serious Offenders Assessment Unit within Corrective Services prepared a risk assessment report in relation to the defendant dated 27 July 2022. By the application of an actuarial tool for assessing static risk factors the senior psychologist found the defendant to be an "above average" risk of repeat offending of the same type. The actuarial measure of dynamic risk factors indicated "a high density of criminogenic needs relative to other male sexual offenders". In combination the static and dynamic factors indicated to the senior psychologist an "above average risk level" of re-offending. Underlying these assessments the senior psychologist found that from a young age the defendant had struggled to maintain a stable intimate relationship with any age appropriate partners. Social isolation, loneliness and increased time with children had contributed to his past offending. He was found to have poor insight into his crimes.

14. At interview with the senior psychologist the defendant blamed his victims for having initiated sexual contact and claimed his webcam filming of the sexual intercourse with the complainant of 2008 to 2009 was an accident. From a judicial perspective such a lack of insight is a negative indicator for prospects of rehabilitation. From the senior psychologist's perspective it limits the benefit that the defendant might otherwise have gained from such sex offender programs as he has undertaken and/or may in the future undertake. The senior psychologist stated that both past episodes of sexual offending, separated by about seven or eight years, were against pubescent females and followed from the formation of a family connection and a period of familiarity.

15. The senior psychologist has expressed the opinion that if an extended supervision order were to be made the conditions might usefully be directed to limiting the risk of such a scenario being repeated and/or providing a means for Community Corrections to identify such a situation, if it were developing, and to intervene to limit the risk of it progressing to the commission of further offences.

Reports of Court appointed experts

16. Pursuant to Wright J's orders of 3 February 2023 Dr Marcelo Rodriguez, psychologist, and Dr Calum Smith, forensic psychiatrist, were appointed under s 7(4) of the Act. They have furnished reports, both dated 6 March 2023. On the basis of an extensive interview and a wide ranging review of the defendant's history, including reports on him by personnel of Corrective Services, Dr Rodriguez concluded he meets the criteria for diagnosis of paedophilic disorder according to the Diagnostic and Statistical Manual of Mental Disorders 5th ed (“DSM-5”). Dr Rodriguez found this diagnosis fell within the non-exclusive heterosexual type. He said this:

At interview he acknowledged the history of ongoing arousal to young “pubescent” female children in the 13 to 16 age group, which suggests an underlying hebephilia. He has reported an enduring sexual interest in pubescent female since at least his early thirties.

17. Further, Dr Rodriguez referred to the defendant's history of a depressive disorder, probably since the early 2000s. He is of the opinion this is likely to meet DSM-5 criteria for persistent depressive disorder. He said the defendant's depression "seems to wax and wane" and that he "continues to manifest depressive symptoms as highlighted by his reported symptoms during this interview". The doctor said following with respect to the chronicity and likely duration of the defendant's paedophilic disorder:

His paedophilic disorder is a relapsing condition, chronic in nature and not amenable to “cure” although it can be managed by external control, internal control, medication, and supportive therapies. If conditions and circumstances of the offender are not managed, individuals tend to relapse, which could be the case with [the defendant]. These paedophilic disorders are life-long, although they may be "dormant" for many years and the person will not relapse in that time. He continues to lack insight into his offending and manifests cognitive distortions believing that the victims were in a relationship with him, and it is possible that they enjoyed the sexual contact. He has externalised blame for his offending on depression instead of being insightful that he has a hebephiliac interest.

Individuals with depression can relapse frequently, depending on their level of stress, and personality factors. It is likely that [the defendant] has a personality vulnerability for depression, which results in the adoption of unhelpful strategies to combat depression. The duration of this disorder tends to be lifelong and can interposed with periods of major depressive disorder.

…

If the opportunity arose, [the defendant] is highly likely to sexually re-offend against vulnerable individuals in his care. Individuals with paedophilic disorders have been found to be at a higher risk for sexual re-offending than those individuals without the disorder. For this reason, due to his inability to marshal his sexual arousal, [the defendant] should never be in the company of a child without supervision. Having said this, [the defendant] is likely to be a lower risk of sexual offending against stranger victims, ie, extrafamilial victims. Notwithstanding, he has befriended young females online and his risk for sexual offending through accessing potential victims through social media / should not be underestimated.

18. Dr Rodriguez provided the following conclusion as to whether the defendant's risk of reoffending could be managed in the community under an extended supervision order:

In my opinion [the defendant] could be suitably managed with an ESO in the community, which would include a comprehensive risk management plan with strict supervision and monitoring. In my opinion an ESO is appropriate for [the defendant]. In view of the risks outlined by the extensive review of documentation, the actuarial and dynamic assessment conducted, empirical evidence from such restrictive measures undertaken elsewhere and my clinical assessment/interview with him.

19. Dr Smith similarly conducted an interview with the defendant and made a comprehensive examination of written records in relation to him. At p 39 of his report he made the following diagnoses:

Hebephilia - [the defendant] has a sexual arousal to post pubescent woman. This is a lifelong condition and the link to risk should be clear, it drives the sexual offending. The treatment is as he is receiving. The issue is with his engagement with the treatment.

Depression - this is a diagnosis that has been made multiple times before, and he is on medications for. He is compliant with the medication for this. This is likely to be a relapsing remitting condition in [the defendant’s] case. He himself links his mental state to his offending, so it does link to the risk.

Complex trauma - [the defendant] is the victim of trauma himself. He reported the sexual assault of a counsellor at school. He reported [that he] was the victim of a hold up whilst working at a petrol station. He has reported anxiety, flashback and avoidance based on this. I believe this also impacts on the risk.

20. Dr Smith concluded there is reason to be wary of the defendant's progress and ongoing risk, given issues around his lack of insight and lack of reflective capacity. \ Dr Smith did not consider the defendant could be managed simply by maintaining him on the Child Protection Register. He pointed out the defendant was on that register in 2008 and 2009 when the index offences were committed. He expressed the following view:

I believe that the defendant's risk is subtle and, therefore, difficult to gauge accurately. I have already outlined the concern regarding the lack of progress in therapy sessions and what I believe this may indicate. Various issues have been discussed with officers in the community (in my view not to the extent required). I do not believe that management by the local police force, as I understand a person on the child protection register to be, would reach the necessary level of monitoring and supervision.

21. Dr Smith’s concern regarding lack of progress in therapy rests in large part upon the defendant's reports to him, at interview, of his attitude to those sessions. The defendant has undergone the High Intensity Offender Therapeutic Program (“HISOP”), formerly known as Custody Based Intensive Treatment (“CUBIT”), but was reported as experiencing significant difficulty in listening to and considering the feedback in treatment. According to the report of his response to that program, he tended to respond defensively and perceived that he was being personally targeted by therapists in the group. He behaved inappropriately and in a sexualised manner towards other participants in the program.

Conclusion on s 5B(d)

22. The evidence to which I have referred to this point is sufficient to satisfy me to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, of similar type, if not kept under supervision pursuant to an order such as that sought by the plaintiff. A great deal more evidence has been placed before me that I have not referred to specifically. It is sufficient to say that in the remaining evidence there are no counter‑indications to the conclusion that I have reached under s 5B(d). I am satisfied two years is a suitable duration and that the conditions sought by the plaintiff are appropriate.

Condition 11

23. Condition 11 requires that the defendant must not permit any person to stay overnight at his address other than any person ordinarily resident there, unless he has the prior approval of his Departmental Supervising Officer (“DSO”). The defendant submits this should be modified to require only that notice be given to the DSO but that prior approval not be necessary before any invitee might stay overnight with him.

24. This is the only point of contention about the conditions sought by the plaintiff. It is relevant that the defendant is now 52-years-old and resides in a one bedroom apartment provided by the Department of Housing of the New South Wales Government. It is not likely that there would be many occasions when he would wish to have someone stay overnight with him or that frequent occurrence of overnight stays would be important to his ongoing socialisation and rehabilitation. For the few occasions when an overnight stay may occur it does not appear to me to be a significant curtailment of his liberties that he should first obtain his DSO's approval. On the other side of the issue, the requirement of prior approval may well prove to be a useful check upon close associations being formed by the defendant and may assist those who are responsible for supervising him under the order to ensure that any factors tending to heighten his risk of re-offending are not introduced. I will, accordingly, make the extended supervision order with condition 11 in the terms that are sought by the plaintiff.

Orders

25. Orders will be entered as follows:

1. Order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act2006 that the defendant be subject to an extended supervision order for a period of 2 years commencing 6 April 2023.

2. Order pursuant to s 11 of the Act directing that the defendant for the period of the extended supervision order comply with the conditions set out in schedule A to the amended summons. 

**********

SCHEDULE TO THE ORDERS MADE On 3 April 2023

CONDITIONS OF SUPERVISION

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

In these conditions:

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services

“Defendant” means “DJM”, the defendant in these proceedings and the subject of the order.

“Electronic Identity” means each of the following:

(a) an email address,

(b) a user name or other identity allowing access to an instant messaging service,

(c) a user name or other identity allowing access to a chat room or social media on the internet,

(d) any other user name or other identity allowing access to the internet or an electronic communication service.

“DSO” means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.

“Material” includes:

1.   any written or printed material;

2.   any picture, painting or drawing;

3.   any carving, sculpture, statue or figure;

4.   any photograph, film, video recording or other object or thing from which an image may be reproduced;

5.   any computer data or the computer record or system containing the data; and

6.   any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

“NSWPF” means NSW Police Force.

“Associate” includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication).

“Search” includes:

1.   A garment search, being a search of any article of clothing worn by the defendant or in the defendant’s possession, where the article of clothing is touched or removed from the person’s body; and

2.   A pat-down search, meaning a search of the defendant where the defendant’s clothed body is touched.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.
2. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.
3. The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.

Electronic Monitoring

4. Subject to conditions 4A and 4B, the defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.

4A. After a period of 1 month from the imposition of the ISO, the defendant will no longer be required to wear the electronic monitoring equipment and condition 4 will cease to apply.

4B.  Condition 4 will reapply if at any time during the term of the ESO any of the following occurs: (i) the defendant is charged with an offence of breaching the ESO.

Schedule of Movements

5. If directed by his DSO, the defendant is to provide a summary of his anticipated movements each week (or over successive weeks) for approval, limited to places he intends to travel to, the purposes and means of his travel to those places, the dates of travel, but not his travel route or precise timetable. If so directed, the defendant is to provide that summary no later than noon on the Monday immediately following the issue of the directions. It must be an honest summary of the defendant’s anticipated movements.
6. A DSO must not withhold approval of the defendant’s attendance at any location unless attendance would give rise to a risk of committing a serious offence to a risk of breach of another condition of this order.
7. It will not be a breach of this condition if the defendant departs from the summary, provided the defendant notifies his DSO of his change of plans before doing so, or if that is not possible, as soon as is reasonably practicable afterwards.

Part B: Accommodation

8. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant’s address or living arrangements.
9. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
10. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.
11. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.

Part C: Place and travel restrictions

12. The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW.
13. The defendant must not frequent or visit any place or district specified by a DSO.
14. Without limiting condition 13 above, the defendant must not go to any of the following without the prior approval of a DSO

a.      Camping grounds and caravan parks;

b.      Residences where the defendant knows that persons aged under 18 years ordinarily reside.

Part D: Employment, finance and education

15. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.
16. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO.

Part E: [Deleted]

17. [Deleted]
18. [Deleted]
19. [Deleted]

Part F: Non-association

Association with Children

20. The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO.

Associations with Others (not children)

21. The defendant must not associate with any person or persons specified by a DSO.
22. Without limiting condition 21, the defendant must not associate with any person held in custody without prior approval of a DSO.
23. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. Before disclosing the defendant’s criminal history, a DSO will first inform the defendant of the intention to disclose the criminal history and the reason for the disclosure and will give the defendant an opportunity to, within a reasonable time as set by the DSO, make the disclosure himself.
24. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation

Part G: Access to the internet and other electronic communication

25. The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information).
26. The defendant must not use any alias, electronic identity, log-in name, name other than “DJM” 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.
27. The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.
28. The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.
29. The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.

29A. The requirement for details for “internet sites” is limited to any social networking sites, gaming sites, any websites that allow communication with other users or any other website as directed by the DSO.

30. The defendant must not use any coded or encrypted messaging application or service.
31. The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant’s electronic devices or accounts as a result of a search or a remote inspection.
32. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services.
33. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.
34. The defendant must not 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 or any other electronic device without the prior consent of a DSO.
35. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

Part H: Search and seizure

36. If the DSO reasonably believes that a search is necessary:

a.       for the safety and welfare of residents or staff or persons present at the defendant’s approved address;

b.      to monitor the defendant’s compliance with this order; or

c.      because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;

then the DSO may direct, and the defendant must submit to:

d.      a search and inspection of any part of, or anything in, the defendant’s approved address;

e.      a search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant;

f.       a search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or

g.      a search and examination of his person.

37. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out pursuant to this Order.

Part I: Access to pornographic, violent and classified material

38. If the defendant purchases, possesses, accesses, obtains, views, participates in or listens to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO, he must notify his DSO within 24 hours of having done so.

Part J: Personal details and appearance

39. The defendant must not change his name from “DJM” or use any other name without notifying a DSO.
40. The defendant must not significantly change his appearance without the approval of a DSO.
41. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.
42. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.

Part K: Medical intervention and treatment

43. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.
44. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.
45. If the defendant takes any medication, he must only take medication that is prescribed to him by his healthcare practitioners in the manner prescribed.
46. 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.
47. 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.
48. 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.
49. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

Amendments

05 April 2023 - DJM

Decision last updated: 05 April 2023