State of New South Wales v JC (Preliminary)

[2023] NSWSC 31

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v JC (Preliminary) [2023] NSWSC 31

Hearing dates:

31 January 2023

Date of orders:

2 February 2023

Decision date:

02 February 2023

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (‘the Act’):

(a) Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

(b) Directing the defendant to attend those examinations.

(2) An order:

(a) Pursuant to ss 10A and 10C of the Act that the defendant be subject to an interim supervision order for a period of 28 days from 14 February 2023; and

(b) Pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions as set out in the Schedule to the Amended Summons filed 31 January 2023.

Catchwords:

HIGH RISK OFFENDERS — Interim detention orders — Application — serious sexual offending — whether risk mitigated by imposition of interim supervision order — where interim supervision order made

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

State of New South Wales v BG (Preliminary) [2022] NSWSC 1065

State of New South Wales v Chaplin [2019] NSWSC 471

State of New South Wales v Davis (Preliminary) [2021] NSWSC 53

State of New South Wales v Devaney (Preliminary) [2021] NSWSC 1432

State of New South Wales v Dickson (Preliminary) [2019] NSWSC 1116

State of New South Wales v Donovan [2015] NSWCA 280

State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041

State of New South Wales v Ibrahim (Final) [2021] NSWSC 793

State of New South Wales v JC [2017] NSWSC 1634

State of New South Wales v Kaiser [2022] NSWCA 86

State of New South Wales v Kamm (Final) [2016] NSWSC 1

State of New South Wales v Shields (Preliminary) [2022] NSWSC 469

State of New South Wales v Simcock (Final) [2016] NSWSC 1805

State of New South Wales v Sturgeon [2019] NSWSC 559

State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813

Tannous v State of New South Wales (2020) 103 NSWLR 183; [2020] NSWCA 261

Wilde v State of New South Wales [2015] NSWCA 28

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
JC (Defendant)

Representation:

Counsel:
Mr A Mykkeltvedt (Plaintiff)
Mr J Wilcox (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid Commission of NSW (Defendant)

File Number(s):

2022/311550

Publication restriction:

Non-publication orders made

JUDGMENT

Introduction

1. The defendant has a history of repeated sexual offending against children – of both genders – across a range of ages. The offending has been both planned, and impulsive. He has been imprisoned on a number of occasions.

2. Since his release, the defendant has been subjected to a number of extended supervision orders. Most recently, he was placed on a 5 year extended supervision order (‘ESO’) by Harrison J which commenced on 29 November 2017, and is due to expire on 15 February 2023.

3. The State of New South Wales (‘the State’) alleges that the defendant continues to pose an unacceptable risk of committing another serious sexual offence such that orders, both interim and final, should be made against him under the Crimes (High Risk Offenders) Act 2006 (NSW) (‘the Act’). The defendant does not contest that, for the purposes of the preliminary hearing, “the statutory preconditions for the making of interim orders are established”, but the defendant “takes issue with some of the conditions of supervision under the proposed ISO”. At the hearing, the dispute about the conditions reduced further: it was confined to whether the proposed condition for electronic monitoring should be ordered.

4. The State moved on an Amended Summons, filed in Court without opposition at the hearing, dated 31 January 2023.

5. In relation to interim orders, the State seeks the appointment of experts to conduct psychological and/or psychiatric examination of the defendant and for those experts to report to the Court upon the results of those examinations, as well as an order directing the defendant to attend such examinations. It also seeks an interim supervision order (‘ISO’), and an order that the defendant comply with the conditions set out in the Schedule to the Amended Summons.

6. The final relief sought by the State is an ESO for a period of 4 years and, for the period of such ESO, an order that the defendant comply with the conditions set out in the Schedule to the Amended Summons.

7. The State read, in support of the interim orders, the affidavits of Jamie McLachlan affirmed 2 November 2022 and 24 January 2023 and an affidavit of Peter Russell sworn 30 January 2023. The defendant read an affidavit of Tracey Reynolds affirmed 18 January 2023.

8. The reasons that follow deal with the interim relief sought.

9. All references to legislative provisions in these reasons are, unless otherwise specified, references to the Act.

The legislative scheme

Extended supervision orders

10. In State of New South Wales v BG (Preliminary) [2022] NSWSC 1065 at [8]-[16], I set out the legislative scheme, and organising principles, relating to continuing detention, and extended supervision, orders.

11. What follows draws largely upon what I have there set out.

12. The Act has two express objects. The primary object “is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community” (s 3(1)). Another object “is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation” (s 3(2)). These objects are protective, not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5] (Mason P, Santow and Tobias JJA) (‘Tillman’); Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [147] (Beazley P).

13. The Act seeks to fulfil these objects by conferring jurisdiction on the Supreme Court to make orders, extending beyond the terms of imprisonment imposed by sentencing courts, for the extended supervision (s 9(1)), or for the continuing detention (s 17(1)), of convicted offenders: State of New South Wales v Kaiser [2022] NSWCA 86 at [6] (Simpson AJA, Bell CJ and Beech-Jones JA agreeing).

14. Section 5H of the Act permits the State to apply for an ESO “against an offender”. However, s 5I(1) qualifies this by providing that an order can only be made against a “supervised offender”. Section 5I(2)(b), relevantly here, defines “supervised offender” to mean “an offender who, when the application for the order is made, is…under supervision…under an existing” ESO.

15. The defendant conceded that he is a supervised offender for the purposes of s 5I, and I find that he is. That is because, as the State submitted, he is currently under supervision under the ESO made on 29 November 2017.

16. Section 6 of the Act sets out a number of requirements with respect to an application for an ESO. One is that the application “may not be made until the last 9 months of the offender’s current custody or supervision” (s 6(1)). It is accepted by the defendant that this element is satisfied, and I find that it is. The State’s application is made within the last 9 months of the defendant’s supervision that was ordered by Harrison J on 29 November 2017: it was agreed that the order so made expires on 15 February 2023 and the State’s Summons was filed on 19 October 2022.

17. Another requirement is that the material that must accompany the application for an ESO addresses the matters in s 9(3) of the Act (s 6(3)(a)) and includes a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that “assesses the likelihood of the offender committing a serious offence” (s 6(3)(b)). I am satisfied that the material in the affidavit of Jamie McLachlan affirmed 2 November 2022 and 24 January 2023 addresses these matters (some of which are dealt with, later in these reasons, when addressing the matters in s 9(3) of the Act), and the defendant did not contend otherwise.

18. The application may also indicate the kinds of conditions that are considered appropriate for inclusion under s 11 — in the event that an ESO is made: s 6(4). This has occurred; in fact, this was the area of dispute on this application.

19. Section 7 of the Act prescribes a number of pre-trial procedures relating to the making of, and dealing with, an application for an ESO: the application must be served on the offender (the defendant) within 2 business days of the application being filed, or such further time as the Court may allow (s 7(1)); the State must disclose to the offender material relevant to the application (s 7(2)); and the Court must hold a preliminary hearing within 28 days of the filing of the application, or within such further time as the Court may allow (s 7(3)). I am satisfied that these pre-trial procedures have been complied with and, like the position the defendant took in relation to the matters referred to in s 6, the defendant did not submit to the contrary.

The preliminary hearing

20. A preliminary hearing is required to be conducted when an ESO is sought (s 7(3)).

21. When an ESO is sought, s 7(4) of the Act provides that if, following the preliminary hearing, the Court “is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO”, the Court must make two orders. The first is an order appointing a qualified psychiatrist and/or a registered psychologist (or several of them) to examine the offender, and to furnish reports to the Court (s 7(4)(a)). The second is an order that the offender attend the examinations (s 7(4)(b)).

22. If, following the preliminary hearing, the Court is “not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO”, the Court must dismiss the application: s 7(5).

23. The Court may make an ISO in proceedings for an ESO if it appears to the Court that “the offender’s current custody or supervision will expire before the proceedings are determined” (s 10A(a)) and “that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO” (s 10A(b)).

24. Generally, the ISO will be for a period of 28 days: s 10C(1)(a). An ISO may be “renewed from time to time, but not so as to provide for the supervision of the offender under such an order for periods totalling more than 3 months”: s 10C(2).

25. An application for an ISO, and for the appointment of psychiatrists and/or psychologists to examine the defendant (and report to the Court following such examinations) is to be assessed on the basis that the Court is required to be “satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO…”: ss 7(4) and 10A(b).

26. That s 7(4) directs attention to “the matters alleged in the supporting documentation” has a number of consequences that should be noted. First, the task being performed at the preliminary hearing stage is not to weigh up the documentation, or to predict the ultimate result, or to consider what evidence the defendant might call at the final hearing; rather, it is for “the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order”: Tillman at [98] (Mason P, Santow and Tobias JJA); State of New South Wales v Shields (Preliminary) [2022] NSWSC 469 at [12] (Wright J). The task has been described as being similar to applying a prima facie case test, taking the plaintiff's case at its highest: State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [17] and [19] (R A Hulme J) (‘Golding’); State of New South Wales v Dickson (Preliminary) [2019] NSWSC 1116 at [43] (Johnson J).

27. Secondly, it is impermissible for a defendant to adduce evidence that might “cast light” on — or contradict — the matters alleged in the supporting documentation: Tillman at [98] (Mason P, Santow and Tobias JJA); State of New South Wales v Devaney (Preliminary) [2021] NSWSC 1432 at [20]-[21] (Dhanji J).

28. Thirdly, “there is no place at a preliminary hearing for the undertaking of any challenge, by cross-examination or otherwise, of any person who has stated facts, including expert opinions, in the documentation supporting the State’s application, or else who has written reports of the kind referred to, or who has undertaken any of the assessments referred to…”: State of New South Wales v Sturgeon [2019] NSWSC 559 at [13] (Garling J).

29. Before moving to consider whether the preconditions to the making of a ESO have been satisfied, it should be noted that the defendant accepted that the statutory preconditions for the making of an ESO were present. I will next address – briefly in light of the concession made by the defendant – the conditions of engagement to the making an ESO.

Sections 5B and 5C of the Act

30. I will start by addressing the statutory provisions that relate to the making of an ESO.

31. In relation to an application for an ESO, ss 7(4) and 10A(b), by their reference to the requirement that the Court be satisfied that the matters alleged in the supporting documentation justify the “making of an extended supervision order”, direct attention to s 5B of the Act. Section 5B contains four cumulative criteria that must be satisfied in order for an ESO to be made. They have been described as “identifying the conditions of engagement of statutory powers to make continuing detention orders or extended supervision orders”: Tannous v State of New South Wales (2020) 103 NSWLR 183; [2020] NSWCA 261 at [14] (Basten JA, McCallum JA and Simpson AJA agreeing).

32. By s 5B, the Court may make an ESO upon satisfaction of the matters in ss 5B(a)-(c) and, by s 5B(d), of satisfaction to “a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order”.

33. The defendant has accepted that the statutory preconditions in s 5B(a)-(c) of the Act have been met (see [3] and [29], above). I find that they are, for the following reasons.

34. Section 5B(a) requires the defendant to be “an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community”.

35. In order to consider whether the requirements of this section are met, it is necessary to make reference to some other sections which define concepts within s 5B(a).

36. Section 4A of the Act defines “an offender” to be a “person who – (a) is of or above 18 years of age and, (b) has at any time been sentenced to imprisonment … to be served by way of full-time detention … following the person’s conviction for a serious offence”. It is clear that the defendant is above 18 years of age: s 4A(4). And it is also clear, and I find, that the defendant satisfies s 4A(b), for the following reasons.

37. Section 4(1) of the Act defines, relevantly, “serious offence” as meaning “(a) a serious sex offence”. The term “serious sex offence” is defined by s 5(1).

38. The defendant has been sentenced to full-time imprisonment following his conviction for a serious offence (s 4A(b)) – the “serious offence” is a “serious sex offence”, being, as the State submitted, an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW) where, in the case of an offence against a child, the offence is punishable by imprisonment for 7 years or more. (Here, the reference to the serious sex offence is a reference to the various offences which resulted in the defendant being sentenced by Payne DCJ in 2007 and Toner SC DCJ in 2015: see [48]-[54], below).

39. Section 5B(b) requires the defendant to be “a supervised offender (within the meaning of s 5I)”. Section 5I(2) relevantly defines “supervised offender” to mean “an offender who, when the application for the order is made, is in custody or under supervision”. The defendant is, as I have earlier noted, currently the subject of an extended supervision order made by Harrison J. He is, therefore, a “supervised offender”.

40. Section 5B(c) requires the application for the order to be made in accordance with s 5I. However, the reference in s 5B(c) to s 5I is “a drafting or cross-referencing error and should have been a reference to s 6”: State of New South Wales v Kaiser at [124] (Simpson AJA, Bell CJ and Beech-Jones JA agreeing). I have previously made a finding that the requirements stipulated by s 6 have been met.

41. Having established the matters in ss 5B(a)-(c), s 5B(d) of the Act remain to be considered. Those sections require the Court to be “satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order”. As I have earlier noted, notwithstanding that the defendant concedes (for the purposes of the preliminary hearing) this issue, whether the terms provided by that section has been met remains an issue for my determination.

42. For the reasons set out below, I am satisfied to the requisite degree required by s 5B(d). Before doing so, some of the concepts within the section will first be addressed.

High degree of probability

43. The high degree of probability “qualifies the state of the judge’s satisfaction, not the degree of the risk”: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [122] (Basten JA) (‘Lynn’).

44. The Court must be satisfied that the likelihood of the defendant committing a further serious offence is higher than the civil standard of proof, in other words it is “beyond more probable than not”, but it is not a requirement that the finding be made to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA); Golding at [14] (R A Hulme J); State of New South Wales v Shields (Preliminary) at [12] (Wright J).

Unacceptable risk

45. The concept of “unacceptable risk” is expanded upon by s 5D, which is in the following terms:

“For the purposes of this part, the Supreme Court is not required to determine the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of a person committing such an offence.”

46. The concept of an “unacceptable risk” has, unsurprisingly, been the subject of considerable judicial consideration, which establishes the following:

1. The phrase is to be given its everyday meaning within its context having regard to the objects of the Act: Lynn at [55]-[58] (Beazley P).

2. What the Court must find to be unacceptable is the risk that the offender poses of committing another serious offence if not kept under supervision; that is, an assessment of the likelihood in the absence of any supervision: Lynn at [51] and [55] (Beazley P); State of New South Wales v Donovan [2015] NSWCA 280 at [24] (Beazley P, Macfarlan and Leeming JJA). That finding provides the basis for imposing control on the offender: Lynn at [127] (Basten JA).

3. The interests of the offender to liberty and privacy are not relevant to the assessment of whether there is an “unacceptable risk”, but can be taken into account when considering whether to make, under s 9 of the Act, an ESO or to dismiss the application: Lynn at [44] (Beazley P), [143] (Basten JA), and [148]-[149] (Gleeson JA).

1. Unacceptability of risk “involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J) (‘Simcock’); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J). The nature of the risk “posed had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition”: Lynn at [126] (Basten JA).

2. An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43] (Harrison J); Golding at [16] (R A Hulme J); State of New South Wales v Devaney (Final) at [73] (Dhanji J).

Factual background

General

47. The defendant was born on 10 November 1986, and is currently 35 years of age. He is intellectually disabled, and receives support from the National Disability Insurance Scheme (‘NDIS’). He lives in the community, in supported accommodation.

48. On 19 September 2007, the defendant was convicted of sexual intercourse with a person under the age of 10 (following entry of a plea of guilty), contrary to s 66A of the Crimes Act 1900 (NSW). The offence was committed on 5 March 2007. At the time of offending, the defendant was 20 years old. The defendant was sentenced to a term of imprisonment by Payne DCJ of 4 years, commencing 19 June 2007. The non-parole period was fixed at 2 years and 3 months.

49. The defendant was released on 27 April 2011.

50. On 8 September 2011, Davies J imposed an ESO, for a period of 3 years, on the defendant: [2011] NSWSC 976. In ordering that the defendant be subject to an ESO, Davies J noted that whilst the defendant had been convicted of only one offence at that time, there was evidence of an array of other sexual offending against children: at [10]-[16].

51. On 31 July 2013, the defendant disclosed historical sexual offending involving seven victims in a letter to a psychologist (Calinda Payne). The offending included sexual intercourse with a person under 10 years, sexual intercourse with a person aged 10 – 16 years, aggravated indecent assault and committing act of indecency. The offending occurred between May 1998 and February 2007. The defendant was eleven years old when he committed the first of the offences charged, and twenty years old when he committed the last of them.

52. The defendant was arrested on 29 August 2013 (and subsequently charged) in connection with the offending referred to in the 31 July 2013 letter. On 24 April 2015 the defendant was convicted of 18 offences that were disclosed in that letter and subsequently sentenced by Toner SC DCJ to an aggregate term of imprisonment of 4 years, with a non-parole period of 2 years. That sentence expired on 28 August 2017.

53. On 23 November 2007 Harrison J made a continuing detention order for a period of three months: [2017] NSWSC 1634 at [2]. On 29 November 2017, as earlier noted, Harrison J imposed an ESO on the defendant for a period of 5 years: at [33](1).

54. It appears, however, that the defendant was not released from custody until 15 April 2018 – with the consequence, so the State argued, that the ESO made on 29 November 2017 “was suspended until the date of [JC’s] release and is therefore due to expire on 15 February 2023”: State’s submissions at [38]. At the hearing, the defendant accepted this to be so.

The determination of the application: assessment of the risk

55. Section 9(1) empowers the Court, when determining an application for an ESO, to make such an order (s 9(1)(a)) or to dismiss the application (s 9(1)(b)).

56. In determining whether or not to make an ESO, the “safety of the community” is the paramount consideration of the Court: s 9(2).

57. Further, the Court must take into account – in addition to any other matter the Court considers relevant – the matters in ss 9(3)(a)-(i), but is not to consider “any intention of the offender to leave New South Wales (whether permanently or temporarily)”: s 9(4).

58. The 12 matters that must be considered, under s 9(3), “fall into two broad categories: first, there are reports and sources of information which may be provided in evidence, including, for example, the criminal history of the offender. The other category identifies evaluative judgments which must be made”: Tannous v State of New South Wales at [18] (Basten JA, McCallum JA and Simpson AJA agreeing).

59. These provisions — ss 9(2)-(4) of the Act — are relevant not only when considering whether to make an ESO following a final hearing, but also as to whether the Court should make an ISO following a preliminary one.

The matters in s 9(3)

Reports under s 7(4) of the Act: s 9(3)(b)

60. There are currently no reports from persons appointed under s 7(4) of the Act — thus there is no material of that kind to consider.

Psychiatric and other assessments: s 9(3)(c)

61. There were three reports in evidence: a report from Dr Andrew Ellis, consultant forensic psychiatrist, dated 4 October 2017; a report from Dr Susan Pulman, consultant forensic psychologist and clinical neuropsychologist, dated 10 October 2017; and a ‘risk assessment report’ from Dr Richard Parker, Senior Psychologist, Serious Offenders Assessment Unit, Corrective Services NSW, dated 7 July 2022. (This last report was supported by the Acting Chief Psychologist, Risk Management Programs, Cherice Cieplucha. It is convenient simply to refer to the report by its primary author, namely Dr Parker).

62. The reports from 2017 were secured following a preliminary hearing heard by Adamson J: State of New South Wales v JC [2017] NSWSC 1126 at [60]. They were considered in detail by Harrison J at the final hearing: at [8]-[13]. For present purposes, it is only necessary to refer to the diagnosis reached by each expert, and their assessment (and their opinions about) the defendant’s risk profile.

63. In relation to diagnosis, Dr Ellis said:

he would meet diagnostic criteria for the paraphilia disorder paedophilia. He presents with fantasies, urges and behaviours over his teenage years and early adulthood consistent with paraphilia, namely paedophilia. The fantasies and subsequent behaviours are directed to both boys and girls. The sexual attraction is not exclusive that he is able to engage in sexual relations with both adult men and women. He describes a recent attenuation in these symptoms within the custodial environment, however his history is inconsistent. Paraphilias are chronic relapsing conditions.

Other paraphilia disorders are identified through his self-report in letters which include bestiality (attraction to animals), mysophilia (attraction to filth or rotting) and voraephilia (attraction to eating others). He has reported fantasy and behaviour consistent with masochism (inserting objects such as golf balls in his anus for pain associated with sexual gratification). He has reported acting on the bestiality.

He describes a long-standing history of obsessions and related compulsions consistent with obsessive-compulsive disorder. He does not currently present with these symptoms which may be due to use of high-dose SSRI antidepressants.

…

His assessed intelligence is consistently within the range of mild intellectual disability … It should be noted that the term mild in relation to intellectual disability indicates a clinically significant impairment in functioning and not a mild condition.

64. As to the defendant’s risk profile, Dr Ellis considered that the defendant

would fall into a group of persons with a risk for sexual offending that is statistically high in frequency, and greater than a theoretical average offender. Specific treatment and particularly supervision would likely reduce the risk.

65. Dr Pulman, who prepared a report dated 10 October 2017, principally undertook neuropsychological testing of the defendant but, in addition, gave specific consideration to the defendant’s risk profile. In this respect, Dr Pulman noted that the defendant had been assessed in June 2017 using the STATIC-99R risk assessment, which determined the defendant’s risk “to fall in the high-risk category” – a rating that she agreed with. Dr Pulman considered that the defendant continued “to pose a high risk of committing a further serious sex offence” and that whilst the defendant continued to “remain unresponsive to treatment for his sexual disorders, he will pose a risk of committing a further serious sex offence if released into the community without the required level of supervision”.

66. The basis for that opinion – that the defendant continues to pose a high risk of committing a further serious sex offence – were the presence of numerous factors contributing to that risk:

…there are numerous factors contributing to the risk of [the defendant] committing a further serious sex offence. These include: a diagnosis of paedophilia which has not responded to treatment, personality factors including antisocial personality disorder an intellectual disability and neuropsychological impact of porphyria on personality and cognitive functioning resulting in problematic behaviours, inconsistent and varying levels of reported insight into the risk he poses of reoffending sexually…

67. I turn now to Dr Parker’s report. Dr Parker prepared a Risk Assessment Report dated 7 July 2022. It also served as an ESO completion report. The report was based upon an interview with the defendant on 20 January 2022.

68. Dr Parker undertook an assessment of the defendant’s risk using actuarial tools – STATIC 99R and STABLE 2007. The scores for each were combined to generate an overall risk level for sexual recidivism. Dr Parker noted that, when the scores for the defendant were combined, it yielded “a rating of ‘well above average risk’”. Dr Parker also noted that the defendant’s medical condition (porphyria) precluded him from taking “anti-libidinal medication and his high sexual drive and preoccupation has been evident throughout supervision”.

69. Dr Parker then expressed the following conclusion:

Consequently, these various factors coalesce to explain [the defendant’s] offending – he is sexually attracted to children and his high sex drive/preoccupation makes him think about this more often/strongly than other people with similar attractions. Additionally, his poor social problem-solving skills (likely a consequence of his intellectual disability) and his impulsivity, mean that he has less ability/willingness to refrain from acting upon impulses emanating from his attraction. His poor social problem-solving skills and impulsivity also make it difficult for him to form an appropriate relationship, removing an alternative method of dealing with his sexual frustrations.

Statistical and other assessments on the likelihood of the offender committing a further offence: s 9(3)(d)

70. Section 9(3)(d) refers to the “results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence”.

71. I have, in my assessment of the psychiatric and psychological reports under s 9(3)(c), considered statistical and other assessments of the kind referred to, and these were the ones that the State drew attention to in their written submissions.

72. On 5 July 2022 a ‘Risk Screening Report’ was prepared by Annabel Persson, a registered psychologist, on behalf of Enhance Health Services. The report had as its purpose a range of matters including behaviour intervention planning, as well as allied health and psychological supports.

73. In the course of preparing that report, an assessment of the defendant’s risk of reoffending was undertaken using a number of actuarial tools, including STATIC-99R. In relation to that, it was found that the defendant’s “risk of engagement in inappropriate sexual behaviour…is well above average risk”. When the scores from those assessments were combined, Ms Persson expressed the opinion that they demonstrated an “overall convergent risk estimate” as being “HIGH”.

Corrective services reports: s 9(3)(d1)

74. Section 9(3)(d1) requires the Court to consider any “report from Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community”.

75. The Risk Management Report dated 12 August 2022 (prepared by Kerry-Ann Bertrams, a Community Corrections Officer) is a report prepared for the purposes of this section. Although the report covers matters such as risks of reoffending (it concluded that there was a high risk level for general reoffending, but otherwise it noted the risk assessment that had been performed in June 2017 by Samuel Ardasinski), risk factors etc., its principal function appears directed to the creation of a risk management plan with recommendations about conditions which are recommended to support that plan.

76. The report confirmed that the defendant was “subject to stage 1 electronic monitoring requiring a schedule of movements. His schedule is completed weekly, where activities are reviewed and approved ensuring activities conducted within the community are appropriate”. (I note, in passing, that this kind of monitoring, and recording of movements, is consistent with conditions 5 and 6 imposed by Harrison J). The State drew particular attention to the recommendation in connection with electronic monitoring:

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 edified risk factors. It would also eliminate the possibility of [JC] 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.

Electronic monitoring exclusion zones around potential areas of risk such as child related facilities and locations known to be frequented by children and continue to mitigate the risk to potential child becomes.

Treatment or rehabilitation programs etc: s 9(3)(e)

77. Section 9(3)(e) requires the Court to have regard to any treatment or rehabilitation program “in which the offender has had an opportunity to participate”, as well as the willingness of the offender to participate in any such programs and the level of any such participation.

78. There does not seem to be any issue about the willingness of the defendant to participate in any treatment and/or rehabilitation. In all other respects, the evidence relevant to this consideration is scant. For example, Dr Parker, in his 2022 report, when dealing with ‘treatment’ does not mention the defendant undergoing any form of treatment.

79. Although this was not touched upon during submissions, nor as I have mentioned in the most recent evidence, the difficulty with treatment appears to be that by reason of the defendant’s porphyria (referred to in some of the evidence as “a metabolic disturbance of the blood accompanied by psychological disturbance”), the use of anti-libidinal medication was contraindicated.

Options (if any) available if the offender is kept in custody or is in the community that might reduce the likelihood of the offender re-offending over time: s 9(3)(e1)

80. Section 9(3)(e1) requires the Court to consider “options (if any) available if the offender is kept in custody or is in the community that might reduce the likelihood of the offender re-offending over time”.

81. The State’s submission was, in essence, based on the risk management report recommendations, that there were means available to reduce the risk of the defendant reoffending over time – the imposition of extensive conditions.

82. The State also drew attention to the fact that the defendant receives, via the NDIS, assistance and that also would “likely continue to assist with the management of his risk”.

The likelihood that the offender will comply with the obligations of an ESO (s 9(3)(e2))

83. Section 9(3)(e2) requires the Court to consider “the likelihood that the offender will comply with the obligations of an ESO”.

84. The State did not submit that the defendant would not comply with any conditions as part of an ESO, and pointed out that the defendant had not breached his ESO or been charged with any other offences. It did, however, draw attention to some conduct of the defendant, which I have referred to in [96], below.

The level of the offender’s compliance with any obligation to which they have been subject while on parole or an earlier ESO: s 9(3)(f)

85. Section 9(3)(f) requires the Court to have regard to the level of the offender’s compliance with any obligation to which they have been subject while on parole or an earlier ESO.

86. Following the sentence imposed upon him by Toner SC DCJ, the defendant was not granted parole. He thus served the full term of his sentence.

87. I have dealt with the defendant’s compliance with the earlier ESO ordered by Harrison J (see [83], above).

88. I note that the State did not submit that there was any non-compliance with the terms of the ESO ordered by Davies J.

The level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004: s 9(3)(g)

89. This legislation was not raised as being relevant to the present application.

The offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

90. I have addressed all offending earlier in these reasons. As Harrison J noted, the “defendant’s offending behaviour exhibits his paraphilic tendencies with respect to children of both sexes”: at [52].

The views of the sentencing court at the time the sentence was imposed on the offender: s 9(3)(h1)

91. Payne DCJ, when sentencing the defendant on 19 September 2007, addressed the question of “reoffending” – expressing the view that “one could be hopeful that he will not reoffend but that will depend on his getting the treatment he is required upon his release”. Otherwise, there is nothing in the sentencing remarks of significance, and the State did not submit that there was.

92. Toner SC DCJ expressed the following when sentencing the defendant on 24 April 2015 (CB 134):

The reason I have some reservation about the use of the word ‘rehabilitation’ is that it may be seen as somewhat inappropriate in the context of this man’s case given his undoubted psychiatric conditions which will be discussed elsewhere.

The real question is not whether he is remorseful for these offences or regrets them or understands them but whether even despite whether I accept his evidence before me, he remains dangerous as a consequence of his ongoing mental illness.

93. Toner SC DCJ also referred to a pre-sentence report prepared by Sean Herford dated 6 February 2014 and set out the following passage from that report in the remarks on sentence:

During the course of the ESO the offender has been subject to the highest levels of supervision available in the community including residence in a secure facility with 24 hour line of sight supervision. It is noted that [the defendant] was subject to more comprehensive and intensive supervision than any other offender subject to ESO in NSW.

While [the defendant] generally remained compliant with the ESO, the intensity of his supervision has not decreased as originally planned due to ongoing high levels of sexual pre-occupation and deviant sexual fantasies.

94. It is also important to note that Toner SC DCJ remarked that “a major consideration in this sentencing is that I consider that this offender represents a considerable danger to the community, particularly children, in the future”.

Any other information that is available as to the likelihood that the offender will commit a further serious offence: s 9(3)(i)

95. Section 9(3)(i) requires the Court to have regard to “any other information that is available as to the likelihood that the offender will commit a further serious offence”.

96. The State drew attention to two matters. The first was the defendant’s “mild intellectual disability and associated impairment of function in occupational, social and living skills”, as noted by Dr Ellis. These matters have been considered earlier in connection with the expert evaluation under s 9(3)(c): see [61]ff, above. The second was conduct of the defendant that – broadly expressed – concerns incidents suggestive of ongoing sexual deviance and/or sexual preoccupation. This has included inappropriate behaviour in connection with another resident (see the OIMS note dated 4 April 2022 and the Enhance Health Services report dated 5 July 2022: this included the defendant exposing himself to another resident); concerns that the defendant had, on one occasion, “masturbated in a public toilet”; as well as persisting “thoughts of a sexual nature about children”; of “urges to approach children in the community” – albeit that the defendant denied that those urges were sexual in nature; and impulsivity – said to be evident by the defendant engaging “in rubbing up against inanimate objects whilst engaged in conversations with staff and co-residents”.

The ISO should be made: unacceptable risk

97. I have already found that the matters in ss 5B(a)-(c) of the Act are satisfied: see [32]-[40], above.

98. Having regard to the matters under s 9(3) referred to above, as well as the safety of the community (s 9(2)), I have no doubt that, unless supervised, the matters alleged in the supporting documentation demonstrate that there is an unacceptable risk of the defendant committing another serious sex offence. Accordingly, I am satisfied that the terms of s 7(4) of the Act are met.

99. In arriving at that conclusion (and state of satisfaction), I am particularly mindful of the following matters.

1. First, the starting point is the nature and extent of the sexual offending: the target of that offending conduct was children; the offending conduct occurred during a period spanning approximately nine years – from 1998 to 2007; and the offending conduct included penile penetration. It is axiomatic that conduct of this kind, if it were to recur, would be grave, and unacceptable.

2. Secondly, when sentenced (and as I noted at [94]), Toner SC DCJ remarked that “a major consideration in this sentencing is that I consider that this offender represents a considerable danger to the community, particularly children, in the future”.

3. Thirdly, in my view, recognising the confined nature of the Court’s task when conducting a preliminary hearing, the evidence demonstrates that the defendant’s risk profile has not changed over time, when assessed using actuarial risk assessments. In 2017 it was assessed to be in the high-risk category, with the consequence that the defendant was considered to pose a high risk of committing a further serious sex offence (and, in the 2017 proceedings for an ESO, Harrison J made a finding to that effect: at [21]); and in 2022 Dr Parker expressed a similar opinion – that the defendant’s overall risk level for sexual recidivism was rated “well above average risk” – as did Ms Persson. The consistent results in these assessments over this time period provides no confidence that the risk the defendant poses to the community has been reduced naturally over time; rather, it serves to reinforce that it remains, largely unabated.

4. Fourthly, there is no suggestion that the defendant has been rehabilitated or undergone treatment that has addressed the root cause of his offending. Rather, the evidence is that it has not been treated – at least to the extent of using anti-libidinal medication.

5. Fifthly, although, in a given case, the historical nature of the offending may – possibly – tell against the likelihood of the further commission of a serious offence by an offender (if not supervised or detained), that scenario is quite removed from the situation here. The examples of conduct, to which reference has been made (see [96]ff, above) reinforce this conclusion and provide practical confirmation of the correctness of the defendant’s risk profile.

The conditions

The statutory provisions and principles

100. An ESO or an ISO may direct an offender to comply with such conditions as the Court considers appropriate, including but not limited to those conditions specified in ss 11(1)(a)-(n) of the Act. Thus, as is apparent from the language of the section, the power of the Court to impose conditions as part of an ESO (or ISO) is delimited by the requirement that the conditions be “appropriate”.

101. When an ESO or ISO is made, it must include a condition “requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Service”: s 11(2). This is the State’s proposed condition 13.

102. Failure by a person to comply with the requirements of an ESO or ISO is an offence, punishable by fine, imprisonment, or both: s 12.

103. In State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44], Hoeben CJ at CL identified the following principles to be considered in relation to the imposition of conditions:

“(i)    having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83];

(ii)   in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68];

(iii)   a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36];

(iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53];

(v)   conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38];

(vi)   conditions must not be unjustifiably onerous or punitive, “nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision”: State of New South Wales v Bugmy [2017] NSWSC 855;

(vii)   conditions “must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice”: State of New South Wales v Ley Thomas Baker (No 2) at [36];

(viii)   to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales [(2016) 91 NSWLR 636] at [129]-[131].”

The proposed conditions

104. The State proposed a Schedule of conditions of supervision. They were attached to the Summons that was filed dated 19 October 2022. There were 48 conditions contained in that Schedule. The defendant accepted that, if the Court was disposed to make an ISO, it did not oppose a number of them. At the hearing, however, following the filing of the Amended Summons by the State, the defendant did not oppose any of them – except proposed condition 5 (that dealt with electronic monitoring). As to these conditions that were not contested, I am satisfied that they are appropriate, and mitigate the unacceptable risk and I propose to impose those conditions as part of the ISO.

105. The State pressed the imposition of the condition relating to electronic monitoring – and in the form that it had proposed. The defendant, however, opposed its imposition.

106. Before addressing the contested condition, the following matters should be noted. First, having regard to the fact-sensitive and discretionary nature of what is required by s 11 of the Act, reference to other authority (unrelated to the defendant) – and what conditions have been imposed in those cases – is of limited utility. Secondly, it is unnecessary that any conditions imposed by the Court are required to have a demonstrated link to past offending: Wilde v State of New South Wales [2015] NSWCA 28 at [53] (Beazley P, McColl and Ward JJA) (‘Wilde’). In that case the Court held, in relation to ordering conditions under s 11 of the Act: “…rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.”: see also State of New South Wales v Davis (Preliminary) [2021] NSWSC 53 at [13] (Johnson J); State of New South Wales v Ibrahim (Final) [2021] NSWSC 793 at [358] (Walton J). Thirdly, as was pointed out in Golding at [102] (R A Hulme J), short form reasons on conditions are appropriate in light of the interim (and finite) nature of the order and re-agitation can and inevitably will occur at a final hearing.

107. I turn now to address the contested condition.

Condition 5

108. The condition proposed by the State was:

The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

109. At the hearing, the State read the affidavit of Peter Russell sworn 30 January 2023. Mr Russell is employed by Corrective Services New South Wales as in Applications and Operational Governments Officer. According to Mr Russell, since – at least – 24 January 2023, the defendant has been subject to stage 3 ESO monitoring. This means, according to Mr Russell, that the movements of the defendant are subject to electronic monitoring, without a schedule of movements and that the defendant “is able to undertake any activity with no timeframe limitation”.

110. The defendant opposed any condition relating to electronic monitoring, submitting that it was “appropriate to dispense with electronic monitoring at this stage of the defendant’s supervision” and, further, that the appropriateness of such a course was reinforced by the fact that (amongst other matters), there are conditions requiring the provision of a schedule of movements.

111. The defendant also submitted that, although there was no direct evidence about this, the requirement that the defendant be electronically monitored (and thus be required to wear an ankle bracelet) was impractical. In furtherance of this submission, the defendant pointed out that the evidence demonstrated that the defendant was interested in, and possibly wished to pursue, karate as well as personal (in the sense of physical) training which would or might be impeded by a condition requiring electronic monitoring.

112. In my view, it is appropriate and proportionate to impose the condition that is proposed by the State.

113. It is, I think, important to emphasise that this is a preliminary – not final – hearing. The evidence is necessarily limited and, such as it is, does not support, in effect, the practical removal of the condition that was imposed by Harrison J in 2017. On the contrary, in my view there is no principled (or evidentiary) basis to reach a different conclusion: the unacceptable risk that I have found exists (as Harrison J did in 2017) has not abated. In those circumstances (although I am mindful that electronic monitoring is intrusive, and that the need for it should be reviewed), I consider that the extent to which there should be in effect a practical relaxation of what Harrison J ordered is a matter that is appropriately for resolution at a final hearing.

Orders

114. Accordingly, I make the following orders:

1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (‘the Act’):

1. Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

2. Directing the defendant to attend those examinations.

2. An order:

1. Pursuant to ss 10A and 10C of the Act that the defendant be subject to an interim supervision order for a period of 28 days from 14 February 2023; and

2. Pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions as set out in the Schedule to the Amended Summons filed 31 January 2023.

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Decision last updated: 02 February 2023