State of New South Wales v DK by his Tutor JGK (Final)

[2022] NSWSC 1372

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v DK by his Tutor JGK (Final) [2022] NSWSC 1372

Hearing dates:

26 September 2022

Date of orders:

13 October 2022

Decision date:

13 October 2022

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Under s 9(1)(a) Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to an extended supervision order for a period of 5 years commencing on 23 October 2022;

(2) Under s 11 of the said Act, direct that the defendant is to comply with the conditions set out in the schedule to this judgment for the duration of the extended supervision order.

Catchwords:

HIGH RISK OFFENDERS – Crimes (High Risk Offenders) Act 2006 – extended supervision orders – final hearing – serious sexual offending – where defendant already subject to ESO – imposition of scheduling conditions – application granted

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Crimes Act 1900 (NSW), ss 61M, 61O, 66, 66A

Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 5C, 5I, 6, 7, 9, 10, 11, 17, 21

Cases Cited:

State of New South Wales v DK [2018] NSWSC 53

State of New South Wales v DK (Preliminary) [2022] NSWSC 993

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
DK by his Tutor JGK (Defendant)

Representation:

Counsel:
J.S. Caldwell (Plaintiff)
S.M. Fernando (Defendant)

Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2022/164731

Publication restriction:

Section 15A Children (Criminal Proceedings Act) 1987 (NSW). The name of the defendant must not be published or broadcast in a way that connects him with the criminal proceedings referred to in this judgment.

Judgment

1. By summons filed on 6 June 2022, the State of New South Wales (“the State”) applies for a second Extended Supervision Order against the defendant (“DK”): s 10(3) Crimes (High Risk Offenders) Act 2006 (NSW) (all subsequent references to legislation in this judgment are references to that Act unless otherwise specified). Upon reading the consent to act as tutor filed in that regard, at the commencement of the proceedings I ordered that DK is to proceed by his tutor JGK, his father. I have adopted initialisms anonymising the identity of DK and his father in compliance with the requirements of s 15A Children (Criminal Proceedings) Act 1987 (NSW).

2. DK is proceeding by his tutor for a number of reasons: first, these are civil, not criminal proceedings (s 21); secondly, a guardianship order has been made in favour of the New South Wales Trustee & Guardian in respect of matters of management of DK’s finances by the Civil and Administrative Tribunal (“NCAT”); thirdly, evidence lead before me, which is not in dispute, establishes to my satisfaction that DK suffers from, inter alia, a mild intellectual disability and a borderline personality disorder; and finally, he is living “independently” in supported accommodation in a granny flat where he is provided with 24 hour supervision under funding by the National Disability Insurance Scheme (“NDIS”).

3. I am satisfied that his mental health conditions make him somewhat chaotic, impulsive and unstable; and he has a very pronounced tendency toward deliberate self-harm of a very serious type upon which he frequently acts resulting in regular, sometimes extended, periods of hospitalisation. Dr Furst, one of two experts appointed by the Court under s 7(4) related this last matter to DK’s borderline personality disorder, also describing it as “a pathological help-seeking abnormal illness behaviour indicative of factitious disorder (imposed on self)” (Report dated 9 September 2022, p. 7). Taking all of these factors into account, I am satisfied that DK is unable to adequately look after his own interests in the management of this litigation.

Procedural history

4. On 2 February 2018, Fullerton J made orders subjecting DK to a continuing detention order for a period of 6 months from 2 February 2018 under ss 5C and 17(1)(b) and an extended supervision order (“ESO”) for a period of 4 years commencing on the expiration of the continuing detention order under s 5B and 17(1)(a). The ESO expired on 31 July 2020: State of New South Wales v DK [2018] NSWSC 53. On 26 July 2022, Chen J ordered that DK be subject to an interim supervision order (“ISO”) commencing on 31 July 2022 for a period of 28 days from that date and subject to compliance with the conditions under s 11 his Honour imposed: State of New South Wales v DK (Preliminary) [2022] NSWSC 993. That ISO has been extended twice by Bellew J and expires on 23 October 2022.

Issues

5. By his counsel, Ms Fernando, much as he did before Fullerton J, DK “does not resist the making of an ESO if the Court is satisfied to the necessary standard that an ESO should be made”, nor does DK resist 53 of the 54 conditions sought by the State. Ms Fernando argues that the duration of any ESO should not exceed 4 years. She does not dispute that the State is entitled to apply for the ESO and that the application complies with the Act’s procedural requirements. In particular, Ms Fernando accepts:

“… there is evidence on which the Court may be satisfied, to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious offence unless he is kept under supervision”.

6. The real matters of contest between the parties relate to the conditions to which DK will be subject under s 11 if an ESO is made. He opposes condition 5, requiring electronic monitoring and seeks a modification of condition 24 to permit “supervised contact with his 17-year-old brother, BL”.

7. As these proceedings are civil proceedings, I accept that Ms Fernando is entitled to make these “concessions”. Despite what I have said about DK’s ability to manage the litigation without the support of his tutor, the proceedings are adversarial, and the Court is entitled to act on the concession of counsel properly made. I have noticed the specific form in which the first “concession” is made. It is predicated upon the Court being otherwise satisfied. I will evaluate the evidence upon which the State relies to support the making of an ESO.

8. However, the concession of counsel properly made facilitates the exercise of judicial power in a given case. As a practical matter, I would have thought that unless I formed the view that the evidence tendered by the State was incapable of supporting the conclusions necessary to justify the making of an ESO, the persuasive onus lying upon the State, including the statutory standard of a “high degree of probability” which conditions the making of a finding that DK presents an unacceptable risk of committing another serious offence if not kept under supervision, will be so much more easily discharged. In effect, in relation to those matters, the State is pushing somewhat at an open door because of the concessions which I accept are properly made.

Background and index offending

9. DK was born on 7 January 1997 and is aged 25 years. His index offending was committed as a juvenile. On 8 October 2021 DK was charged on indictment with nine counts of having sexual intercourse with a child under the age of 10 years contrary to s 66A(1) Crimes Act 1900 (NSW), two counts of aggravated indecent assault against a child under the age of 16 years contrary to s 61M(2) of that Act and one count of committing an aggravated act of indecency against a person under the age of 10 years contrary to s 61O(2) of that Act. There was also an alternative count. The offending was alleged to have occurred between February and November 2011 when DK was aged 14 years. The victims of the offending were his twin half-sisters, who were 9 years of age at the time of the offending. With the first victim, the offending involved penile penetration of her vagina, penetration of her vagina with a tampon, enforced fellatio, placing her hand on his penis and masturbating in her presence. In relation to the second victim, the offending involved penile penetration of her vagina on more than one occasion, touching between her buttocks and rubbing his penis over her vagina on the outside of her underwear. Some of the offending occurred in the presence of both of them.

10. In due course, DK pleaded guilty and was sentenced by Ellis DCJ on 22 March 2013 when aged 16 years. His Honour imposed a total effective sentence of imprisonment of 4 years and 8 months commencing on 15 March 2013 and expiring on 14 November 2017 with a non-parole period of 1 year and 8 months expiring on 14 November 2014.

11. From the time of his incarceration, it became apparent that, inter alia, DK was pervasively depressed, had ongoing suicide ideation and was commencing on a course of deliberate self-harm, which quickly accelerated or escalated. Although he maintained he would not act upon it, he had ongoing sexual interest in children, notwithstanding the commencement of a course of anti-libidinal medication.

12. Due to the intractability of his psychological symptoms, on 23 November 2015 he was transferred to the Austinmer Adolescent Unit of the Forensic Hospital. However, he continued with deliberate self-harm and attempted suicide by strangulation. These symptoms temporarily subsided with inpatient treatment. He was discharged from the forensic hospital on 23 December 2015.

13. He was released to parole on 24 February 2016, but his conditional liberty was not of long duration. He attempted suicide by cutting his wrists within about a week of his release. He was admitted to the High Dependency Mental Health Unit at Nepean Hospital on 9 March 2016 and returned to custody upon the revocation of his parole order on 30 March 2016.

14. He remained in custody until the expiration of his sentence, and then under the CDO of 6 months duration imposed by Fullerton J. While in custody he was constantly under special management arrangements, initially under the High Risk Assessment Team at Junee Correctional Centre, then the Acute Crisis Management Unit (“ACMU”) at Bathurst Correctional Centre before being transferred to the ACMU at Long Bay. He alternated between the ACMU and the Additional Support Unit at different times. Both these units are specialist units for offenders with intellectual disabilities or other cognitive impairments. Since his release from custody at the conclusion of the CDO he has been under supervision by way of an ESO or more recently an ISO on the same conditions.

Other offending

15. While in custody DK disclosed other previously undetected child sex offending. This is to his credit, if I may put it that way, because there can be no doubt that the offending would have gone entirely undetected had he not volunteered it and acknowledged his guilt. After the expiration of his sentence on 8 February 2017, DK asked to speak to police about the other matters. His admissions led to him being charged with two counts of indecent assault contrary to s 61M(2) Crimes Act with a cousin, said to have occurred when DK was 14 years of age and his female cousin, 4 years old. He was also charged with one count of sexual intercourse with a person under the age of 14, but over the age of 10, contrary to s 66(1) of the same Act. The victim on this occasion was aged 12 or 13 years. The victim was a girl who might be said to have been his girlfriend at the time. He was then 15 years of age and on bail pending sentence.

16. His cousin could not accurately recall the event when interviewed by police. It is uncertain what account the second victim gave. It is important to bear in mind that this disclosed offending occurred around the same time as the index offending and before he was dealt with for that offending.

17. On 27 June 2018 Children’s Magistrate McManus sentenced DK individually for each of the three offences to which he pleaded guilty. The sentences her Honour imposed resulted in a total effective control order (he was dealt with as a juvenile over the objection of the prosecution) of a period of just short of 2 years and 3 months commencing on 27 February 2017 and expiring on 25 May 2019. The effective non-parole period was one just short of 17 months expiring on 24 July 2018. The structure adopted by her Honour meant that DK was eligible for release under a statutory parole order about 1 week before the expiration of the CDO imposed by Fullerton J on 1 August 2018. As a practical matter, the balance of the term to be served on parole became subsumed in her Honour’s ESO.

Legal framework

18. The Court’s power to impose an Extended Supervision Order is conferred by s 9. The Court may determine an application for an ESO by either making the order or dismissing the application. The discretion to make either of those orders is to be informed by the mandatory considerations spelt out in subss 9(2) and (3). It is not necessary to tarry over those provisions now except to say the paramount consideration is “the safety of the community”: s 9(2).

19. The power to make an order, however, is conditioned upon satisfaction of paras 5B(a) to (d). Of these, s 5B(a) is certainly satisfied as DK is an offender who has served a sentence of imprisonment for a serious, as it happens, sexual offence in custody. He is also a supervised offender for the purpose of s 5B(b) as when the current application for an ESO was made on 6 June 2022, DK was an offender who was under supervision under the then subsisting ESO made by Fullerton J which expired on 31 July 2022: s 5I(2)(b). For this reason, the State’s application was made in accordance with s 5I and the s 5B(c) condition is thus satisfied.

20. For the reasons that I will fully explain below, I am also satisfied to the requisite “high degree of probability” that DK poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO, thus s 5B(d) too is satisfied.

21. For largely the same reasons, I am also satisfied that the correct exercise of my discretion whether or not to make an ESO, having regard to the considerations contained in subss 9(2) and (3) requires the making of a second ESO against DK.

DK’s personal circumstances

22. As Ms J Caldwell of Counsel, who appeared for the State, put it in her oral submissions, DK’s personal circumstances from birth through childhood and into early adolescence were indeed “tragic” (4.4T).

23. He was the youngest of three in his full sibship. He has older and younger half-siblings from each parent’s other unions. As Ms Sarah Wright recorded in the Risk Assessment Report for the purpose of this application dated 17 March 2022 (s 6(3)(b)), DK “had a dysfunctional childhood marked by instability of caregivers, disrupted attachments, exposure to abuse and trauma, and early sexualisation” (Risk Assessment Report (“RAR”), at [9]). His parent’s relationship was very dysfunctional, and they separated when he was aged 18 months. DK’s mother formed a new relationship and DK resided with his mother and stepfather. It seems that he had witnessed sexual activity between his mother and stepfather on the one hand, his father and his father’s girlfriend on the other, and had early exposure to pornography including child abuse pornography. It emerged later that he had been sexually abused by his stepfather from about the age of 2 or 3.

24. From a young age he apparently engaged in overt displays of adult-like sexualised behaviour which extended to engaging in sexually inappropriate and abusive behaviour towards young children. He was involved in sexual activity with a girl at school at the age of 6 and received intervention from a psychologist. He was involved in “sexualised kissing of a cousin and sexual activity” with his second cousin (RAR). Apart from the sexual abuse DK was subject to neglect and physical, verbal and emotional abuse from his mother. He and his siblings were removed from her care in 2006. They were placed in foster care with relatives, but the placement broke down due to his sexualised behaviour involving downloading pornography and masturbating into stolen underwear.

25. He was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiant Disorder as a child. He was medicated with the standard treatment for ADHD until aged about 14 or 15. He was disruptive at school, demonstrating emotional and behavioural problems which were described as “quite extreme”. On one occasion he brought a knife to school. As a young teenager he had a history of binge drinking.

26. I have set out a summary of the index offending and the disclosed offending above. DK has no history of other offending either before his conviction for the index offending or since his release under the previous ESO.

The statutory risk assessment report

27. Each of the experts in the case, Ms Wright (and Dr Richard Parker), Dr Carollyne Youssef and Dr Richard Furst, agree that the usual clinical aides or tools employed to assist in the assessment of a risk of further serious offending, whether they be standard actuarial risk assessment tools or structured professional judgment tools, are inapplicable in DK’s case because they have not been validated for the deployment in the case of juvenile offenders which category, in Dr Furst’s view, refers to offenders under the age of 17. I repeat that DK was 14 at the time of the index and other offending. Accordingly, the experts are reliant upon their own unassisted or unaugmented professional judgment.

28. The current RAR was principally prepared by Ms Wright, a Senior Forensic Pathologist with the Serious Offenders Assessment Unit. Her report was countersigned by Dr Richard Parker, who was then the Acting Chief Psychologist, Risk Management Programs, both of Corrective Services NSW. DK, as he was entitled to do, declined to be interviewed by Ms Wright for her assessment. Accordingly, and of necessity, she undertook what might be referred to as a desktop, or document, review of DK’s extensive Corrective Services file. She recorded the various diagnoses that had been proffered for DK’s psychiatric and neuropsychological symptoms, which are largely those set out above (at [2]-[3]). Given her limited role, I do not propose to focus on her record of those matters as Dr Furst had the advantage of a mental health examination of DK, as did Dr Youssef. Ms Wright referred to DK’s disturbing and ongoing record of deliberate self-harm. She said (at [34]):

“[DK’s] self-harming appears to serve various purposes: affect regulation and tension reduction, to feel pain, to reduce social distance, to elicit a care response from others and to get his own way. He has described hurting himself in order to feel the pain because of what he has done (i.e. sexual offending) and much of his self-harming behaviour can be described as shame driven.”

She recorded that DK had complained to Dr Parker on 28 August 2018 that his self-harm was “an addiction”.

29. Ms Wright also noted that it had been accepted that DK meets the criteria for a mild intellectual disability. She also recorded the support DK receives through the NDIS and also through Community Corrections in the administration of the ESO. She referred to “a network of professional supports”:

“A multidisciplinary committee of key stake holders from various agencies has been convened to ensure a collaborative and co-ordinated response to [DK’s] management in the community” (RAR [37]).

30. As with the other experts, Ms Wright observed that DK’s response to the previous ESO was marred by his chronic deliberate self-harm. She stated that from her review since the imposition of the ESO on 31 July 2017 to 14 January 2022, which were the last records available to her, DK had had 18 hospital admissions to 8 different hospitals “the vast majority of which were due to self-harm, suicide ideation, suicide attempts, to review his pain or wounds from previous self-harming behaviour and/or surgery to treat his wounds and remove foreign objects from his body” (RAR [42]). He had spent a total of 303 days in hospital with admissions ranging from 1 day to 22 days. His longest period in the community between hospital presentations was 4 months from May to September 2019 and the frequency of his self-harming behaviour is “noticeably” escalating. Part of the escalation was due to a temporary reduction in the hours of support and supervision provided to DK by NDIS.

30. Mainly for this reason, DK’s supervision under the ESO has largely been focused on crisis management rather than addressing his criminogenic needs. This has meant that he has made little progress under supervision especially in relation to the potential for reduction in electronic and other monitoring conditions. He has not progressed beyond Stage 1 of 4, although consideration is currently being given to progressing him to Stage 2. I interpolate that it is my impression that he is much more settled in his current supported environment than he has been in other placements at various times since his release from custody under the ESO. Obviously this has not served to reduce the incidence of his deliberate self-harm.

31. His Department Supervising Officer (“DSO”) reported that DK demonstrated:

“General compliance with the [ESO], engaged willingly with professionals as required to address his ongoing risk and behavioural issues, however it was noted that his progress was largely disrupted by recurring instances of self-harm and suicidal ideation, resulting in numerous hospital admissions. There has been little change in this.”

His hospitalisations have limited his ability to progress through supervision.

33. He has received three written warnings for non-serious, in my view, breaches of conditions. As I have said, he has not committed any serious breaches nor engaged in further sexual offending. There was a concern in January 2020 after a girl’s hair clip was found in his bedroom. This gave rise to a good deal of suspicion, but there is no evidence of any untoward conduct towards the owner of the clip.

34. The first warning related to non-adherence with medication, failure to inform his DSO of visitors and disengagement with interventional services; the second related to misuse of medication; and the third related to tampering with electronic monitoring equipment. There has been no warning or breach since 14 March 2021. He has been compliant with his supervision, other than on 18 December 2020, when he refused to take his antibiotics. He does decompensate and states that he would prefer to return to custody or that he wanted to die. He continues to honestly report occasional intrusive thoughts of sexual interest in young children. He insists that he does not wish to act upon them. But from time to time he deliberately self-harms to punish himself, as it were, for these thoughts.

35. For the purpose of risk assessment, Ms Wright regarded the following matters as relevant: continuing deviant sexual interest; intimacy deficits, general social rejection and loneliness; problems resulting from childhood abuse; impulsivity and poor problem solving; and emotional dysregulation. There were some protective factors mainly arising out of the extensive network of professional supports provided by the ESO team and his NDIS funded support workers in his supported accommodation. He also has had the benefit of treatment with private psychiatric and psychological professionals.

36. Without direct input from DK, Ms Wright acknowledged that her formulation of risk was “tentative” (RAR [65]). Acknowledging that when the first ESO was imposed DK’s risk of reoffending had been rated by Dr Parker and others as being high, and that little progress had been made since then, Ms Wright expressed the opinion, “it is likely that [DK’s] risk of sexual re-offending continues to be high” (RAR [77]). She added, however:

“… the difficulty is that there was a lack of empirical data to draw on that relates to risk of sexual reoffending in [DK’s] case. Based on the nature of his past sexual offending, the limitations he has experienced in addressing his criminogenic needs, and his ongoing experience of sexual thoughts about children despite anti-libidinal medication, it is possible that future sexual violence could approach the threshold of a “serious sexual offence” as defined …”.

37. Ms Wright considered that if a second ESO was not imposed DK would be at unconditional liberty and would be deprived of the support he currently has available from Community Corrections. Importantly she stated:

“He will continue to have NDIS supports in place, however they will not have any coercive powers over him. His continued medication with Androcur does not require CS NSW oversight so this would still be available to him once at unconditional liberty. [DK] could not be mandated to engage in interventions to target his criminogenic needs … [DK] himself is conflicted about the prospect of a further [ESO]. He denies that he is a risk to anyone but himself and he dislikes being categorised as a high risk sex offender; however, he also enjoys the support, supervision, monitoring and sense of security that has been involved with his current ESO and he has expressed fear that he would “have no one” if no further [ESO] is imposed.” (RAR [82])

Dr Carollyne Youssef

38. As I have said, Dr Youssef is one of the Court appointed experts. Her opinion is set out in her report of 4 September 2022. The general history recorded by Dr Youssef is generally consistent with that I have set out above. There are perhaps differences in emphases. Dr Youssef does point out that during his detention DK successfully undertook three technical certificates: Certificate 1 in Horticulture; Certificate 1 in Commercial Cleaning; and Certificate 2 in Animal Care. He expressed an interest in continuing animal welfare studies at TAFE, if permitted by his DSO. I should say that DK agreed to be interviewed by Dr Youssef. DK has performed some work in landscaping and lawn mowing (I think on a voluntary basis) and he is also undertaking some work as a commercial cleaner through the organisation currently providing his accommodation through NDIS. However, this latter work is only available once every fortnight. He would like to do more.

39. Dr Youssef also emphasised DK’s deliberate self-harm behaviours which she noticed had commenced when he was taken into custody. She recorded that he expressed the view that “self-harming is a form of self-punishment for his offences” (Report [45]).

40. More recently he has been informed through the interdisciplinary committee convened to manage his case that he may only attend Blacktown Hospital when he requires hospitalisation. He is not happy about this because he prefers Nepean Hospital and likes the nurses there better (Report [47]).

41. Without discarding it entirely Dr Youssef questions the validity of the diagnosis of mild intellectual disability mainly because it appears that the full battery or suite of neurocognitive or psychometric testing necessary to support the diagnosis appears not to have been carried out.

42. Dr Youssef dealt with the index and other offending in quite some detail in a manner consistent with the facts as I have summarised them above. But when discussing these matters, she said DK was “unable to identify any risk factors or warning signs and showed little insight into his offending behaviour” (Report [71]).

43. Dr Youssef pointed out that risk assessment presents difficulty, bearing in mind that DK’s offending occurred when he was an adolescent and from a neurodevelopmental perspective, a juvenile male brain functioning “more closely resembles the brain of a younger teenager than that of a mature adult” (Report [88]). She also recorded, what appears to be well-known in her profession, that victims of child or adolescent sexual abuse may be more likely to report higher levels of social isolation, anxiety and low self-esteem, and may be more likely to have sexual interests orientated towards younger children. She stated:

“Generally, adolescents who have engaged in sexual offending behaviour are fundamentally different from adults who have sexually offended and require a different set of guidelines with respect to assessment, intervention and public policy approaches (citation omitted).” (Report [89])

44. Dr Youssef had regard to the presence or absence of capacities within DK that could protect him against offending, but he has difficulties with emotional self-regulation. From his own account during their interview DK does not report “a pro-social sexual identity”. He does not engage in anything, or at least much, by way of “personally meaningful scheduled leisure activities”. He is currently in stable accommodation and his finances are well-managed. He has access to additional support provided by appropriately qualified professionals both through the ESO team and the NDIS. Dr Youssef regarded this as DK’s “strongest protective factor” (Report [107]).

45. Dr Youssef was of the opinion that DK was at risk of further serious offending if not kept under an ESO. She formulated the risk in terms of a relatively opportunistic sexual offence against a female pre-pubescent child or perhaps a male. She regarded him as having the capacity to offend against an adolescent victim, and this brings to mind the other offending against his sometime girlfriend. She regarded as likely, a risk scenario developing where DK isolated a child and offended “on his own”. Although he may offend in the presence of other children, the victim of further offending was likely to be a child known to him. Any offending behaviour is likely to be intrusive including sexual touching or sexual intercourse. It is apparent, of course, that this formulation of risk really reflects DK’s past offending. Although Dr Youssef did not apply a rating in the spectrum of low, medium or high to her risk assessment she did state that there could be “an exponential escalation in [DK’s] risk of re-offending if his current protective supports were withdrawn” (Report [110] – [111]).

46. Dr Youssef was of the view that DK met the diagnostic criteria for paedophilic disorder which is considered to be a lifelong condition; complex PTSD arising out of his repeated trauma as a child; a borderline personality disorder associated with suicidal ideation and deliberate self-harm behaviour; and a persistent depressive disorder. He requires a comprehensive treatment plan to address his multiple conditions especially paedophilia. His chronic deliberate self-harm needs to be addressed “in the first instance”, otherwise it will continue to interfere with his progress (Report [118.2.10]).

47. Dr Youssef believes DK’s risk can be adequately managed in the community under an ESO provided his deliberate self-harm is appropriately managed. She points out that NDIS support workers have no coercive powers and generally cannot impose conditions on the conduct and behaviour of those they are supporting. In her opinion an ESO with a duration of 4 years is adequate to allow DK to progress to “reintegration and desistance” (Report [118.6.3]).

Dr Richard Furst

48. Dr Furst’s opinion is set out in his report of 9 September 2022. Dr Furst recorded the criminal history and other relevant matters of history largely in a manner consistent with the summary I have set out above. While recording that there has been no further offending, Dr Furst does point out that DK has remained “highly emotionally unstable” (Report p. 7). As I have already said, Dr Furst regards the deliberate self-harming behaviour as “a pathological help-seeking abnormal illness behaviour indicative of factitious disorder (imposed on self)” (Report p. 7).

49. Dr Furst records his disagreement with the approach of DK’s treating psychiatrist Dr Rajneesh Singh who is treating DK for depression and “mood congruent psychotic symptoms”. Dr Furst is of the opinion that treatment modalities such as anti-psychotic medications, Lithium and the suggestion of electro-convulsive therapy are inappropriate. Dr Furst is of the view that DK’s primary diagnosis is his borderline personality disorder and that the modalities of treatment suggested will be ineffective in treating that condition. Dr Furst says, in fact, borderline personality disorder is intractable to treatment, but may lessen in severity as DK ages.

50. On mental state examination, Dr Furst regarded DK’s presentation as “consistent with a mild intellectual disability”. Dr Furst also accepts that DK’s overall level of intellectual functioning is in the borderline/extremely low range. His full-scale IQ of 66 is at the upper end of the mild intellectually disabled range.

51. Dr Furst confirmed that formal actuarial and dynamic risk assessment tools are not able to be applied in DK’s case because all of his offending took place before he turned 17. Dr Furst also pointed out that there had been no opportunity for DK to demonstrate his capacity to manage his risks himself “in the absence of a high-level of professional support, external supervision and monitoring because of the intensity of his management whilst in the community over the last 4 years” (Report p. 18). He also agrees with the opinions of Ms Holly Cieplucha, another departmental forensic psychologist, that there is a need “for a gradual reduction in his level of supervision to be confident that he can manage high (risk) situations in the future” (sic) (Report p. 18). He also agreed with that expert that there would be an elevation in DK’s risk in the event that supervision were removed. His view was that the ESO should be renewed.

52. As I may have indicated already, Dr Furst is a little more “hardnosed” than some of the other examiners. He regards the self-harming behaviours as self-imposed. However, like Dr Youssef he regards that aspect of his behaviour as multifactorial. He stated (Report p. 19):

“[DK] has grossly abnormal self-harming behaviours and care-eliciting behaviours as a maladaptive means of coping with stress, for attention and/or just because (he) has become habituated to self-harm and into various parts of his body, including hands, feet and urethra”.

There is no evidence of an enduring psychotic disorder, but he has a severe borderline personality disorder.

53. Given the combination of co-morbidities suffered by DK, Dr Furst is of the view that should the current restrictions to which he is subject be relaxed and were he to have access to a young child or children again in a family setting there is little if anything in his clinical presentation that would offer any assurance that “DK [would desist] (from) further sexual offending against a child, even if he continues to take Androcur and continues to have psychological inputs/treatment” (Report p. 21).

54. Dr Furst pointed out that DK was a victim of sexual abuse himself and that male victims of childhood sexual abuse have approximately eight times the risk of sexually abusing children or adult victims themselves in adult life compared to adults who have no history of childhood sexual abuse (Report p. 22).

55. Dr Furst concluded his opinion by stating (Report p. 22):

“The combination of [DK’s] intellectual disability and his severe personality disorder is ominous in relation to [his] future risk of sexual offending. He lacks the capacity to control himself and lacks the capacity to adequately think through the consequences of his actions, instead acting impulsively, often doing whatever he wants when he sees fit and doing things that elicit help to meet his unmet emotional needs, rather than considering the welfare of others around him. [DK] then often feels guilty and ashamed afterwards. Therefore, he will likely continue to make similar self-defeating mistakes and exhibit similar problematic behaviour to those he comes into contact with throughout the course of his life ahead, mistakes and errors of judgment that could easily involve him victimising young children in a sexual manner if he has sufficient access to them.”

56. Dr Furst also points out that where the pattern of extreme self-harm continues, an ESO provides a type of protection to DK who is at a risk of dying at his own hands and/or by misadventure if the ESO is not continued. I should say in this regard that although the safety and the protection of the community is the primary object of the Act, another object is to encourage high risk offenders to undertake rehabilitation. These last comments of Dr Furst may be understood as engaging with that other object, although I acknowledge a rehabilitative purpose alone could not justify the imposition of an ESO.

Section 9(3) considerations

57. I have already dealt in detail with the s 7(4) expert reports, which favour the making of an order. They also both express the view that DK participated in the examination in an appropriate way. Given the way the issues have been formulated for determination, I do not propose to undertake a full review of other psychiatric and psychological evidence relevant to the question of risk as referred to in s 9(3)(c). I have had regard to those matters and generally they favour the making of an order. There is no expert evidence that favours the exercise of my discretion to dismiss the application. As I have already pointed out statistical actuarial or structured professional judgment tools as to the likelihood of persons in the position of DK committing a further serious offence are not valid in the assessment of the risk he presents, given his age at the time of the offending. I record that Ms Wright who prepared the statutory risk assessment report is of the view, albeit tentatively, because DK did not consent to an interview with her, that he presents a high risk of further serious offending if not kept under supervision.

58. I have had regard to a significant body of evidence including the various affidavits of Ms Kellie Grabham, a senior officer of Corrective Services NSW attached to the Extended Supervision Order Team. I am well-satisfied that, notwithstanding the difficulties, DK can reasonably and practicably be managed in the community.

59. Turning to paragraph (e) and (e1) of s 9(3), the most significant difficulty concerning DK’s management is his extreme deliberate self-harming behaviour. As I have pointed out, the experts regard this as multi-factorial. I am impressed by Dr Furst’s opinion about this matter in particular. From the time DK entered custody until the present this aspect of his condition has been the most significant barrier to the provision of appropriate ongoing treatment and rehabilitation programs to assist in the management and mitigation of his criminogenic needs and the resulting risk he poses. This aspect of his condition has disrupted and interfered with the provision of ongoing programs both in custody and in the community. Overcoming that particular difficulty will be no easy task. But it is necessary that it be overcome or its significance reduced if treatment and rehabilitation leading to real progress under an ESO are to be effective.

60. Having said that, when he is not in hospital DK has been compliant with the order while in the community. From my consideration of the custodial record, he was very largely compliant while in custody. The difficulty has been that management of his self-harming behaviour has diverted attention and resources from the provision of ongoing programs which might make a difference to him and to the risk that he presents. This does not mean that programs should not continue to be offered. He has, when not in hospital, complied with the programs made available to him and the treatment offered to him on a one-on-one basis.

61. I am satisfied for the purpose of s 9(3)(e2) that DK will generally comply with his obligations under an ESO as he has in the past. My impression is, I repeat, that his non-compliance has been essentially minimal and when he is corrected, he complies with the correction.

62. Section 9(3)(g) does not arise for consideration. The whole of DK’s criminal history relates to the child sex offences, as I have detailed above. His criminal history is perhaps one of the most salient aspects of the case informing the assessment of risk. I have had regard to the views of Ellis DCJ, however, at this stage nearly 10 years after DK was sentenced, they are with respect, prescient as they were, not very significant in the assessment of whether an order should be made.

57. There is no other information available which significantly informs the question of the likelihood that DK will commit a further serious offence.

Conclusions

64. As I have said, I am persuaded to the high degree of probability necessary that DK does present an unacceptable risk of committing another serious offence if not kept under an ESO. I have also considered whether, notwithstanding that finding, it would be appropriate to dispense with the making of an order and I have decided on the basis of the evidence I have discussed, the correct exercise of my discretion is that a further order should be made.

65. So far as duration is concerned, I acknowledge that Dr Youssef has suggested 4 years and Dr Furst, perhaps pessimistically, has indicated that in his opinion supervision is required indefinitely. The State seeks a duration of 5 years, which is the maximum duration available under the Act in respect of a single order. Ms Fernando submits I should make the order for 4 years in accordance with Dr Youssef’s opinion.

66. Although there may not be much in it, given the lack of progress that has been made over the last 4 years, I am of the view that an order of 5 years duration is appropriate. Given how entrenched DK’s relevant psychological conditions are and in particular the intractable nature of his deliberate self-harming behaviours, I am of the view it will take a considerable time for him to achieve a state where it would be appropriate to release him from supervision. In that regard, I should say that I have considered the option of dispensing with an order in light of the high level of care DK is receiving under the NDIS. However, I have been persuaded that the supervision provided under that therapeutic scheme is not sufficient to guard against the risk I have identified because of the absence of compulsion. In particular, I regard the coercive nature of the supervision available under an ESO, when appropriate, as central to the management of DK’s risk of reoffending in a serious way.

Conditions

67. Given the lack of progress made by DK I consider it necessary to re-impose the conditions to which he has been formerly subject under s 11. There is little issue about this. As I said at the outset, Ms Fernando took issue with the electronic monitoring requirement and sought to exclude supervised contact with DK’s brother from the non-association condition.

68. During the course of oral argument, Ms Fernando suggested a form of middle ground on the electronic monitoring condition. She suggested the imposition of a “sunset clause” requiring the removal of electronic monitoring if DK continued to be of good behaviour including non-offending for a further period of 6 months. The condition which she proposed would permit the re-imposition of electronic monitoring in the event of some future offending or significant non-compliance.

69. I appreciate that electronic monitoring is a most intrusive condition. It is a significant limitation upon the liberty of the person subject to the order. At the same time, in the case of child sex offenders who continue to be subject to a paedophilic disorder, geographical limitations are significant to the management of the risk they present to the community and effective monitoring is an important means of ensuring compliance with such restrictions.

70. Having considered all of the evidence, I am rather of the view that part of DK’s deliberate self-harming behaviour is partly a form of self-punishment when he experiences intrusive sexual thoughts concerning young children. But it is hardly an appropriate risk management tool. The fact that he fights his intrusive thoughts in that way in my judgment does not effectively reduce the risk. Rather it is the greatest single stumbling block in the path of his progress. I have come to the conclusion that the management of the implementation of the electronic monitoring condition should be left within the discretion of the DSO and his or her superiors. If I may put it this way, it would be pleasing if DK could be progressed to Stage 2 at least, which is barely less restrictive than Stage 1 in electronic monitoring as this may provide a level of encouragement to continuing improvement. However, unless some effective means of addressing DK’s self-harming behaviour can be found, I am pessimistic about further progress. I will leave Condition 5 as it is proposed.

71. I turn then to Condition 24. Ms Fernando seeks some modifications so that DK may have supervised contact with his younger half-brother BK in his father’s home without first obtaining permission from his DSO. In this regard, I am of the view that the modification is appropriate. Notwithstanding Dr Youssef’s view that it is possible DK could seek to offend with an adolescent, BK is over 16 years of age. Overwhelmingly the evidence in the case is that the central aspect of DK’s risk concerns pre-pubescent female children. I would not modify the condition generally for that reason, but that consideration is of significance. Obviously contact with BK depends upon BK’s willingness to engage with DK. However, assuming that he is, and bearing in mind that what is proposed is, after all, supervised contact, the supervision being provided by their father or one of DK’s NDIS case workers, I am of the view that no particular elevation of the risk is involved in what is proposed. I propose that Condition 24 be amended by adding at the end of it:

“This condition does not apply to contact or association between the defendant and his brother, BK, provided at all times the contact or association is under the supervision of the father of the defendant and BK or an NDIS case worker responsible for the care and supervision of the defendant.”

Orders

72. My orders are:

1. Under s 9(1)(a) Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to an extended supervision order for a period of 5 years commencing on 23 October 2022;

2. Under s 11 of the said Act, direct that the defendant is to comply with the conditions set out in the schedule to this judgment for the duration of the extended supervision order.

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SCHEDULE OF 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 [DK], 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.

4. The defendant must not engage in any threatening, intimidating or abusive behaviour towards CSNSW or electronic monitoring staff involved in his supervision that would cause the staff member to fear for their safety and/or interfere with or impede supervision.

Electronic Monitoring

5. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.

Schedule of Movements

6. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

7. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period

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

Part B: Accommodation

9. 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.

10. The defendant must be at his approved address between 9PM and 6AM unless other arrangements are approved by a DSO.

11. 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.

12. The defendant must not spend the night anywhere other than his approved address, any alternative approved addresses (if relevant) or a medical facility without the approval of a DSO.

13. The defendant must promptly notify a DSO of any child who enters and remains at his approved address, and any adult visiting him who enters and remains 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

14. The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW.

15. The defendant must not frequent or visit any place or district specified by a DSO.

16. Without limiting condition 15 above, the defendant must not go to any of the following without the prior approval of a DSO:

1. Day-care centres, pre-schools and schools;

2. Amusement parlours, amusement parks and theme parks;

3. Cinemas;

4. Libraries and museums;

5. Camping grounds and caravan parks;

6. Children’s playgrounds, parks, and areas with play equipment provided for the use of children;

7. Pools, playing fields and sporting facilities;

8. Concerts, theatre shows, movies, events and activities intended for the entertainment of children;

9. Residences where the defendant knows that persons aged under 18 years ordinarily reside; and

10. Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies).

17. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO.

Part D: Employment, finance and education

18. 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.

19. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.

Part E: Drugs and alcohol

20. The defendant must not possess, use or abuse drugs unlawfully obtained.

21. The defendant must not possess or consume alcohol unless he has provided prior notice of his intent to do so to a DSO.

22. The defendant must comply with all directions provided to him by a DSO in relation to alcohol consumption.

23. The defendant must submit to drug and alcohol testing.

Part F: Non-association

Association with Children

24. 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. This condition does not apply to contact or association between the defendant and his brother, BK, provided at all times the contact or association is under the supervision of the father of the defendant and BK or an NDIS case worker responsible for the care and supervision of the defendant.

Associations with Others (not children)

25. The defendant must not associate with any person or persons specified by a DSO.

26. Without limiting condition 25, the defendant must not associate with any person held in custody without prior approval of a DSO.

27. The defendant must not engage the services of sex workers, without prior notification to a DSO.

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

29. The defendant must notify a DSO prior to joining or affiliating with any club or organisation

Part I: Access to the internet and other electronic communication

30. 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.

31. The defendant must not use any alias, electronic identity, log-in name, name other than [“DK”] 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.

32. 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.

33. 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.

34. 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.

35. The defendant must not use any coded or encrypted messaging application or service.

36. 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.

37. 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.

38. 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.

39. 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.

40. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

Part J: Search and seizure

41. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search.

42. 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 K: Access to pornographic, violent and classified material

43. The defendant must not, without the prior approval of his DSO, purchase, possess, access, obtain, view, participate in or listen 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 with respect to concerns related to risk of committing a serious offence.

Part L: Personal details and appearance

44. The defendant must not change his name from [“DK”] or use any other name without notifying a DSO.

45. The defendant must not significantly change his appearance without the approval of a DSO.

46. 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.

47. 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 M: Medical intervention and treatment

48. 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.

49. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.

50. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.

51. 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.

52. 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.

53. 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.

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

Decision last updated: 13 October 2022