State of New South Wales v JC

[2023] NSWSC 507

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v JC [2023] NSWSC 507

Hearing dates:

03 May 2023

Date of orders:

03 May 2023

Decision date:

19 May 2023

Jurisdiction:

Common Law

Before:

Garling J

Decision:

See [46]

Catchwords:

HIGH RISK OFFENDERS — application by the State for an extended supervision order (“ESO”) pursuant to the Crimes (High Risk Offenders) Act 2006 in relation to the defendant — where defendant accepted that the statutory preconditions for an ESO were established — where defendant only disputed one of the conditions imposed by the proposed ESO — electronic monitoring condition — whether ESO should be made — whether electronic monitoring condition should be imposed — ESO made — electronic monitoring condition imposed

Legislation Cited:

Civil Procedure Act 2005

Crimes (High Risk Offenders) Act 2006

Crimes Act 1900

Court Suppression and Non-publication Orders Act 2010

Cases Cited:

Decision Restricted [2017] NSWSC 1634

State of NSW v JC [2011] NSWSC 976

State of NSW v JC (Preliminary) [2023] NSWSC 31

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

State of NSW (P)
JC (D)

Representation:

Counsel:
A Mykkeltveldt (P)
J Wilcox (D)

Solicitors:
Crown Solicitor’s Office (P)
Legal Aid NSW (D)

File Number(s):

2022/311550

Publication restriction:

Orders made under the Court Suppression and Non-publication Orders Act 2010 on 3 May 2023

JUDGMENT

1. On Wednesday 3 May 2023, I heard an application by the plaintiff, the State of New South Wales (“the State”) for an Extended Supervision Order (“ESO”) for a period of 4 years pursuant to the provisions of the Crimes (High Risk Offenders) Act 2006 (“the Act”) in relation to the defendant, JC.

2. At the conclusion of the hearing, I made an order that the defendant be subject to an ESO for a period of 4 years, and that he comply with the conditions attached to such ESO. At that time, I indicated that I would deliver my reasons in due course. These are my reasons.

The Proceedings

3. On 19 October 2022, the State commenced these proceedings by filing a Summons.

4. On 21 October 2022, Bellew J ordered that the defendant be known by the pseudonym set out in the title to these proceedings.

5. On 31 January 2023, the day of the preliminary hearing of these proceedings, the State, pursuant to a grant of leave, filed an Amended Summons.

6. On 2 February 2023, for the reasons which he then gave, Chen J made the usual preliminary orders appointing two qualified experts to examine the defendant and report to the Court. He also imposed an Interim Supervision Order (“ISO”). Chen J’s reasons for making those reasons are set out in State of NSW v JC (Preliminary) [2023] NSWSC 31.

7. After the defendant was examined by the two appointed experts, and after further interlocutory steps occurred, the matter came on for hearing before me on 3 May 2023.

Factual Background

8. I am indebted to Chen J for his concise summary of the factual background of the defendant, so far as relevant to the making of these orders. What follows is largely drawn from his judgment. The evidence before me was the same, in this respect, as the evidence before Chen J.

9. The defendant is currently 36 years old. He suffers from a form of intellectual disability and receives support from the National Disability Insurance Scheme (“NDIS”). He lives in supported accommodation in the community.

10. On 19 September 2007, after a plea of guilty, the defendant was convicted of sexual intercourse with a person under the age of 10, contrary to s 66A of the Crimes Act 1900. At that time, the defendant was 20 years old. He was sentenced to 4 years imprisonment by Payne DCJ commencing on 19 June 2007. The non-parole period was fixed at 2 years and 3 months. The defendant was released on 27 April 2011. It can be observed that the defendant was not released at the earliest practicable date, and that he served all but 7 weeks of his sentence.

11. On 8 September 2011, for the reasons which he then gave, Davies J imposed an ESO (“the first ESO”) on the defendant for a period of 3 years: State of NSW v JC [2011] NSWSC 976.

12. Whilst subject to the first ESO, the defendant wrote a letter to a psychologist in which he disclosed a history of sexual offending involving seven victims. That offending occurred between May 1998 and February 2007, namely from a time when the defendant was 11 years old to when he was 20 years old. The offending involved sexual offences against victims who were less than 16 years old.

13. The defendant was arrested and subsequently charged with the offending referred to in the letter to the psychologist. He was convicted of the 18 offences disclosed in that letter and was sentenced by Toner SC DCJ to an aggregate term of 4 years imprisonment with a non-parole period of 2 years. That sentence expired on 28 August 2017.

14. On 29 November 2017, Harrison J imposed an ESO (“the second ESO”) on the defendant for a period of 5 years. His Honour’s reasons are to be found in at [2017] NSWSC 1634.

15. The second ESO expired on 15 February 2023. The defendant has been subject to a series of interim orders since the expiry of the second ESO.

16. After the commencement of the proceedings by the State in October 2022, in entirely separate proceedings heard by the NSW Civil and Administrative Tribunal, the defendant, on 6 February 2023, was made the subject of a Guardianship Order. The consequence of that order is that, for the purposes of the Civil Procedure Act 2005, the defendant is a person under a legal incapacity.

17. Accordingly, on 1 May 2023, a Tutor was appointed to have the carriage of these proceedings on behalf of the defendant.

The Defendant’s Attitude to these Proceedings

18. In written submissions filed on 1 May 2023, the position of the defendant was articulated in the following way by the counsel appearing for the defendant (I note that it is the defendant’s Tutor who has given the instructions as to the defendant’s position on behalf of the defendant):

“4. It is accepted that the statutory preconditions under s 5B(a)-(c) [of the Act] are established.

5. While it is a matter for the Court’s independent satisfaction, there is evidence on which the Court would be satisfied that the test under s 5B(d) is established: that is, that the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under further supervision under an ESO.

6.   The expert evidence unanimously supports an ESO of four years’ duration as sought by [the State].

7.   This assessment of the ultimate effect of the evidence is not challenged by the defendant’s tutor.

8.   The defendant (by his tutor) puts in issue the electronic monitoring condition only.”

19. That position of the defendant was confirmed in oral submissions by counsel, who indicated that he did not propose to put any submission to the Court contrary to the orders sought by the State, except for the electronic monitoring condition.

20. I accept all of these concessions. They are concessions made in civil litigation by the defendant and are articulated on his behalf by counsel.

21. Although the defendant is under a legal incapacity, a Tutor has been appointed and the Court can accept that counsel is acting upon proper and rational instructions.

22. Accordingly, it will only be necessary to record what I regard as a sufficient evidentiary basis for the Court to be satisfied of all preliminary matters necessary for the orders sought by the State to be made.

23. I will consider the disputed condition separately.

Expert Reports

24. Dr Sathish Dayalan, a forensic psychiatrist, completed a report which was tendered in evidence. The report was dated 22 March 2023. Dr Dayalan expressed the following view with respect to the defendant’s diagnosis:

“[The defendant] has presented with deficits in intellectual functioning since childhood and had attended special classes due to learning difficulty. It is further noted that standardised intelligence testing had repeatedly demonstrated intellectual functioning in the extremely low range.

These intellectual deficits have contributed to deficits in adaptive functioning that have impacted upon his employment, education and social relationships. [The defendant] suffers from mild intellectual disability as per the criteria in the Diagnostic and Statistical Manual for Mental Disorders Version 5.

A long history of sexual offending against prepubescent children is noted. [The defendant] admitted to having sexual fantasies and urges involving prepubescent children. He continues to manifest behaviour that indicates sexual attraction towards children. [The defendant] suffers from paedophilia-non-exclusive type, sexually attracted to both males and females.

History of smoking cannabis for several years was noted but [the defendant] was rather vague in giving details of his cannabis use. It is likely that he suffered from a cannabis use disorder that is currently in remission.

[The defendant] has attracted diagnoses of obsessive-compulsive disorder and paraphilias such as bestiality, mysophilia and vorarephilia. At the time of assessment, [the defendant] did not appear to be suffering from these conditions. He is currently receiving treatment with high dose antidepressant medication that could be managing the obsessive-compulsive disorder.” (emphasis in original)

25. Dr Dayalan addressed the issue of whether the defendant posed a risk of committing further serious sex offence in this way:

“[The defendant] presents with a high loading of static and dynamic risk factors for sexual recidivism … In my opinion, [the defendant] continues to pose a risk of committing a further serious sex offence.

…

The static risk factors do not significantly fluctuate over time. In regard to the dynamic risk factors, reduction in his sex drive/preoccupation can be expected if he received treatment with antilibidinal medication. Ongoing psychological intervention can potentially improve his problem solving and distress tolerance to reduce his reliance upon sex as a way of coping with distressing emotions. Support in establishing a pro-social support network could assist with addressing dynamic risk factors such as significant social influences and sense of social rejection. Given his cognitive impairment, any shifts in the dynamic risk factors will be very gradual despite engagement in treatment.”

26. In describing the effect of the previous ESOs, Dr Dayalan said:

“The ESO conditions have played a key role in containing his risk of reoffending and any reduction in the conditions has to be done in a graded manner especially given the high loading of static and dynamic risk factors. His presentation is further complicated by his intellectual disability and limited psychosocial support. Of concern [the defendant] has indicated that he would leave his current accommodation and stay in his own residence close to his mother if he was not subjected to a further ESO. In my opinion, his risk of reoffending cannot be managed in the community if he was not subjected to an ESO.”

27. I accept these opinions of Dr Dayalan.

28. The second expert who examined the defendant was a forensic psychologist Dr Carollyne Youssef, who produced a report dated 21 March 2023.

29. She summarised the results of her examinations and presented her conclusions which included the following:

1. “[The defendant] grew up surrounded by emotional and sexual abuse as a child with somewhat dismissive parenting from his mother. [The defendant’s] father was in prison for the prolonged sexual abuse of the defendant’s sisters, […] reports suggest that [the defendant] was also sexually abused”;

2. “By later adolescence and early childhood, [the defendant’s] relationships with others were superficial and sexualised [… with] his understanding of attachments and connection being sexual and his sense of defectiveness [which prevented him] from feeling as though he belonged. Together, this prevented him from being able to establish meaningful connections with others”;

3. “[The defendant] shows a propensity towards sexualising his contact with others, demonstrating a difficulty in separating emotional intimacy from sexual contact, with an attachment system that is primarily sexualised and a view of others as sexual objects”; and

4. “[The defendant’s] immaturity and underdeveloped self imply that although his offending behaviour is damaging to his victims, his intent appears to be more reflective of his inability to meet his emotional and relational needs coupled with a sexualised coping framework and diverse and deviant sexual interests that are persuasive for [the defendant]”.

30. In Dr Youssef’s opinion, the defendant meets the relevant diagnostic criteria for Intellectual Development Disorder and Paedophilic Disorder (non-exclusive type, sexually attracted to both genders).

31. Dr Youssef noted that paedophilia is considered a lifelong condition. Dr Youssef noted that deviant sexual interest, including having a paraphilia, is consistently identified as one of the best predictors of sexual re-offending amongst those individuals who sexually offend. She concluded that the defendant posed a risk of committing a further serious sex offence and that his risk of recidivism suggested a high degree of outstanding dynamic risk. She noted that he had very few protective features. Accordingly, she described him as falling in the well above average risk category.

32. Dr Youssef thought that the risk posed by the defendant could be adequately managed in the community, but that there needed to be a further ESO. She thought that his risk was likely to be best managed within a supportive and multi‑disciplinary, staged approach aiming towards the reduction of restrictions and monitoring. She thought that the focus would need to be on stabilising the defendant’s current sexualised behaviours before working towards reducing his restrictions in the community to allow for his reintegration and to reduce further institutionalisation.

33. Dr Youssef’s opinion was not challenged, and I accept it.

Discernment

34. Based on these expert opinions together with, and having regard to, the defendant’s extensive history of sexual offending, the fact that the defendant has an intellectual disability, and has other diagnosed conditions and disorders, I have no doubt whatsoever that the defendant presents a very high risk of committing a serious sex offence if he is not managed in the community by an ESO.

35. I am well satisfied that an ESO should be made, and that it should be for a period of 4 years.

Electronic Monitoring Condition

36. As I noted above, the only proposed condition that the defendant disputed was condition 5. It provides that the defendant “must wear electronic monitoring equipment as directed by the DSO or any other person supervising him”. The reference to the “DSO” is a reference to a Departmental Supervising Officer at Corrective Services NSW who is assigned to the defendant pursuant to an ESO.

37. Both Dr Dayalan and Dr Youssef recognised that an electronic monitoring condition was intrusive. They also recognised that the defendant did not want to be subjected to such a condition. So much is clear from their remarks, the defendant’s submissions, and the Court’s general knowledge of what is involved with wearing an electronic monitoring device.

38. Dr Youssef said that the defendant should remain on electronic monitoring for a period of time whilst his restrictions are eased. She recommended that this period of time should be for at least 18 to 24 months. She noted, of course, that the easing of such a restriction would depend upon any change in his dynamic risk factors and in his behaviour.

39. Insofar as electronic monitoring was concerned, Dr Dayalan said that the need for ongoing electronic monitoring condition and the schedule of movements condition requires careful consideration given the restrictive nature of those conditions. It was noted that since he is always accompanied by a Disability Support Worker when in the community, who always remains within line-of-sight, there may not be a need for electronic monitoring.

40. I concluded, contrary to the defendant’s submissions, that based upon the expert opinion, electronic monitoring should be in place. The period for which it should be in place is something which I am unable to determine because that period will depend upon the progress which the defendant makes in his behaviour and in minimising his risk.

41. In coming to that conclusion, I also noted a Risk Management Report which noted that the purpose of an electronic monitoring condition was:

“Electronic monitoring would assist Community Corrections to continue monitoring adherence to his order conditions, and regular movement audits will continue to be conducted which would assist the ESO Team to identify any concerning patterns in his behaviour that may be related to his identified risk factors. It would also eliminate the possibility of [the defendant] visiting other residences unknown to Community Corrections if he were to develop a relationship or friendship, which could increase the risk of him having access to children.”

42. The Risk Management Report also noted that electronic monitoring exclusion zones, which would include schools and child-related facilities, would provide a strong mitigation of the risk to any potential child victims from the defendant.

43. Based on all of these opinions, I was satisfied that it was appropriate to include the electronic monitoring condition. The condition, as expressed, has the qualification “as directed by the DSO or any other person supervising him”. Therefore, it will be a matter for the DSO to determine when it will be appropriate to cease or suspend that condition, including perhaps after a trial of a period of reduced observation.

44. I was satisfied that the imposition of an electronic monitoring condition directly related to the applicant’s risk of reoffending. I was also satisfied that the condition was one which related to the reduction of harm to children in the community, which was a risk if the defendant was not subject to the condition.

Summary

45. It is for these reasons that I made the orders which are set out below.

Orders

46. These are the orders which I made on 3 May 2023:

1. Order pursuant to s 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006, that the defendant be subject to an Extended Supervision Order for a period of 4 years commencing 3 May 2023.

2. Pursuant to s11 of the Crimes (High Risk Offenders) Act 2006, order that the defendant for the period of the Extended Supervision Order complies with the conditions set out in the schedule to these Orders.

3. Order pursuant to ss 7 and 8(1)(a) and 8(1)(d) of the Court Suppression and non-Publication Orders Act 2010 that the defendant shall be identified in relation to these proceedings by the pseudonym “JC”.

4. The order at paragraph 3 shall apply:

1. to all media including, but not limited to, print, radio, television, internet and social media;

2. throughout the Commonwealth; and

3. until further order of the Court.

5. An order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

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Decision last updated: 19 May 2023