State of New South Wales v JS (Final)

[2023] NSWSC 563

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v JS (Final) [2023] NSWSC 563

Hearing dates:

4 May 2023

Decision date:

31 May 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1)      The amended summons is dismissed.

(2)      Access to the 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.

Catchwords:

HIGH RISK OFFENDER – Final hearing – Serious sex offender – Application for extended supervision order – Whether defendant poses unacceptable risk of committing another serious offence unless kept under supervision – Where no serious sexual offending in the 18 years since index offences – Where offender subject to continuing obligations and restrictions under child protection legislation

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), s 5

Child Protection (Offenders Registration) Act 2000 (NSW), s 9(1)(M)

Crimes Act 1900 (NSW), s 578A,

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B, 5D, 5E, 6, 7, 9, 10C, 11

Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Cases Cited:

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

State of New South Wales v Rigby (Final) [2021] NSWSC 472

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
D New (Plaintiff)
G Lewer (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Karim + Nicol Lawyers (Defendant)

File Number(s):

2022/327404

JUDGMENT

1. By an amended summons filed on 26 April 2023, the State of New South Wales (the plaintiff) sought final orders pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) that the defendant, JS, be subject to an extended supervision order (an ESO) for a period of 4 years and, pursuant to s 11 of the Act, that he be directed to comply with certain conditions set out in a schedule to the summons. The defendant’s name has been anonymised pursuant to s 578A of the Crimes Act 1900 (NSW) to prevent the identification of the victim of the index offences.

2. The plaintiff sought a further order forbidding access to the court file by a non-party without leave of a judge of the Court and, if an application for access is made, requiring prior notification to the parties to allow them an opportunity to be heard. That order is not opposed and will be made.

3. On 21 February 2023, Wilson J made preliminary orders, including an interim supervision order (an ISO) to commence the following day, for a period of 28 days. The ISO was renewed on 17 March 2023 and on 11 April 2023 by Yehia J, and by me on 12 May 2023, to expire on 20 May 2023. The application was heard on 4 May 2023. On 17 May 2023, the Court was informed by an email sent by the plaintiff’s solicitor, copied to the defendant’s solicitor, that the defendant had been arrested on 15 May and charged with a criminal offence, which is next before the Local Court on 30 May 2023. The Court has not been informed of the nature of the charges. The ICO is suspended for so long as the defendant remains in custody: s 10C(1A) of the Act.

4. I note at the outset that the defendant opposed the making of an ESO and I have determined not to make such an order.

The defendant’s criminal history

5. The defendant is a 63-year-old Indigenous man who is in receipt of a disability support pension and programs that are provided to him through the NDIS. He is single and the father of three adult children, with whom he does not presently have contact.

6. The defendant had 12 appearances in the Children’s Court, the earliest at the age of 12 years, for a range of violence and property offences, for which on four occasions he received committals to an institution. The pattern of offending continued into his early adult years, with multiple convictions between the ages of 19 and 38, although his only sentence of imprisonment in that period was in 1979 for escaping lawful custody, being one month’s imprisonment.

7. On 23 January 2003, the defendant was arrested in the Australian Capital Territory (ACT) and charged with having committed the offence of incest on 18 November 2002 upon his daughter, who has an intellectual disability, at the time having the equivalent intellectual capacity of a child between the ages of 8 and 9 years. The defendant was then aged 42 and his daughter was aged 17. He was granted bail but failed to appear. He was rearrested in New South Wales on 1 May 2003 and extradited to the ACT.

8. On 16 April 2004, when he was aged 44, the defendant was convicted of the offence of incest in the ACT Supreme Court and was sentenced to 4 years imprisonment commencing on 16 May 2003, to be suspended after 11 months, with subsequent supervision pursuant to a five-year good behaviour bond. He had served the 11 months on remand as of the date of sentence, so that he was immediately released. He was to enrol in a sex offender program in Morisset in New South Wales, but did not attend.

The index offences

9. Eight months after the defendant’s release to supervision, he again sexually assaulted his daughter, this time over a period of 5 days. The assaults were by way of penile vaginal intercourse on three occasions and once by forcing her to fellate him. On one of the occasions of penile vaginal intercourse, he tied the victim by her wrists to a bed. He pleaded guilty to four counts of aggravated sexual assault on the second day after the trial was due to commence, and received an effective sentence of 12 years imprisonment with a non-parole period of 9 years. He became eligible for parole on 31 January 2014 and was released on 27 October 2014.

10. The sentencing judge, Williams DCJ, noted the neglect suffered by the defendant in his formative years:

“He has had a hard and difficult life characterised by an extremely dysfunctional and impoverished upbringing where he was exposed to emotional neglect, domestic violence, family discord and physical abuse.”

11. The sentencing judge found that the offending was serious, nonetheless, because:

“… despite [the defendant’s] background and difficulties the intellectual differential between himself and the victim was substantial. Further, this was his daughter and because of that and her disability he was in a position of both trust and authority.”

12. In his remarks, the sentencing judge referred to a report by Katie Seidler, forensic psychologist, which was tendered on behalf of the defendant. Ms Seidler noted that the defendant minimised the extent of his sexual behaviour with the victim. She assessed him as functioning in the “below average” range of intellectual functioning and described his presentation as “severely psychologically disturbed”. She administered various assessment tools that are designed to determine the level of risk of future offending and concluded that he posed a “moderate risk of re-offence”. A letter from an Alcohol and Other Drugs (A and OD) counsellor indicated the defendant had participated strongly in custody-based courses and counselling. His Honour concluded:

“I cannot say that [the defendant] is unlikely to re-offend and I cannot comment on the prospects of rehabilitation, apart from what is stated in the psychologist’s report, or the A and OD report seems to suggest that he has started steps along that path.”

13. On 15 December 2014, in the ACT Supreme Court, the defendant was sentenced for breaching the good behaviour order that was made on 16 April 2004, to imprisonment for 3 years and 1 month commencing on 13 May 2014, suspended from 12 January 2015 upon him being subject to a good behaviour order for 2 years and 5 months.

Post-index offending

14. The defendant was returned to custody in New South Wales to serve the balance of parole on 9 March 2015.

15. On 8 March 2016, the defendant was again released to parole. In the same month, he was placed on the New South Wales Child Protection Register (CPR) pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW) (the CP(OR) Act).

16. On 9 August 2016, police attended the defendant’s place of residence, which was a room in a Community Offender Support Program Centre (COSP). In an exercise of their powers pursuant to the CP(OR) Act, police searched the defendant’s room and the content of his two mobile phones. Police located a piece of paper in one of the defendant’s socks that recorded six email addresses in his name on various forms of social media and a Facebook profile for him on one of the phones. He had not notified the authorities of the two phones, five email addresses and his Facebook profile, as he was required to do by s 9(1)(M) of the CP(OR) Act. On 22 December 2016, he received a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 18 months.

17. The applicant’s parole was revoked and he was returned to custody on 2 September 2016. On 10 September 2016, he assaulted a fellow inmate by striking him on the back of his head. He was convicted of common assault and fined $220.

18. On 7 April 2018, the defendant assaulted a fellow resident in the block of units where he then resided, by punching him to his face, causing swelling, bruising and minor blood loss. He was convicted of assault occasioning actual bodily harm, for which he received a s 9 good behaviour bond for a period of 2 years.

19. On 23 July 2019, the defendant committed an assault and an offence of “intentionally choke”, both in a domestic violence context. The circumstances were that he was residing with his brother at the time. The victim was his brother’s girlfriend. She and his brother were arguing and she came into the defendant’s room to retrieve her bag before leaving. According to the police facts, the defendant became angry with her, yelling and gesticulating. He placed his hands around her neck and pushed her backwards, causing a small laceration to her chin and causing her “to have slight trouble breathing”. The defendant then took hold of her hair and by pulling it, removed her from the residence. On 9 March 2020, he received a Community Correction Order (CCO) for a period of 18 months, commencing on 9 March 2020 (the date of sentence) and concluding on 8 September 2021, with 60 hours community service.

20. On the same date, for a call-up on the s 9 bond that was ordered on 22 December 2016 and two further offences of failing to comply with reporting obligations contrary to the CP(OR) Act, the defendant received a sentence of 10 months’ imprisonment, commencing on 9 October 2019 and concluding on 8 August 2020, with a non-parole period of 5 months, expiring on 8 March 2020; that is, the day before the call-up.

21. On 9 April 2020, police discovered the defendant had been intermittently residing with a child since 17 March 2020. He had failed to notify authorities, as he was obliged to do. He was charged with failing to comply with reporting obligations contrary to the CP(OR) Act and sentenced to 11 months’ imprisonment, commencing on 26 May 2020 and concluding on 25 April 2021, with a non-parole period of 7 months, expiring on 25 December 2020.

22. On 2 October 2020, a child protection prohibition order (a CPPO) for a period of 5 years was made at Liverpool Local Court, pursuant to s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). The order prohibited the defendant from communication or contact, or attending places of potential contact, with any person under the age of 18 unless it is a child nominated on the child protection register. It forbade:

“Access [to] the internet for any purpose other than for the purpose of gaining employment or accommodation, or using TV streaming services such as (but not limited to) Netflix, Foxtel and Stan or email communication between adults.”

It also required the defendant to provide to police:

“… the security code to any electronic device such as mobile phone, tablet, personal computer – on request – for the purposes of inspecting images stored on said device, as well as browsing history.”

The maximum penalty for a contravention of a CPPO was a fine of $55,000 and/or five years imprisonment.

23. On 26 May 2021, while drinking alcohol with two female friends, the defendant informed one of them, in whose residence they were at the time, that he wanted to have sexual intercourse with her; she refused and asked him to leave. As he left, the second woman followed him. At a metal entrance gate to the property, with his left arm, he “smacked” the victim’s right arm, causing it to impact the metal gate, resulting in a small laceration to her right palm. He also used both hands to push her to her chest. He was sentenced for an assault occasioning actual bodily harm and contravening an apprehended domestic violence order (ADVO), for which he received a CCO for 2 years from 14 October 2021, which will expire on 13 October 2023.

24. On 21 June 2021, the defendant was charged with providing false information as to his residential address and failing to notify authorities of the change in his address pursuant to the CP(OR) Act. For these offences he also received concurrent CCOs for a term of 2 years, commencing 14 October 2021 and expiring on 13 October 2023.

25. On 23 November 2021, police attended the defendant’s residence pursuant to the CP(OR) Act and discovered an unreported mobile phone which revealed internet searches of a sexual nature. He was arrested and received 15 months’ imprisonment, from the date of his arrest, expiring on 22 February 2023, with a non-parole period of 9 months, which expired on 22 August 2022. The defendant was residing in the community from that date, initially on parole, and remained so at the time of the hearing.

26. The defendant’s only prison disciplinary matter over the years that he has been in and out of prison was for “fight or other physical combat” in 2015, for which he received 1 day in his cell. Accordingly, he has an almost unblemished disciplinary record, his only infraction being treated very leniently, which suggests the circumstances were minor.

27. A matter that did not result in a disciplinary or criminal charge is an Offender Integrated Management System (OIMS) file note which recorded that on 26 September 2017, a file described as an Art file was left behind when the defendant moved out of his COSP room which was:

“… filled with different newspaper clippings that included a large number of small children (aged 10 and under) and pre-pubescent males, articles about serious offenders, terrorists and sex offenders, a picture of Rolf Harris.”

28. In supplementary written submissions after the hearing, the plaintiff noted that inquiries have been made as to whether there is any more information available about the nature of the material. It transpired that a Computer Operated Policing System (COPS) entry was made, which described the images in more detail and concluded: “None of the images can be classified as child pornography”. The submissions also noted:

“A member of the ESO team … contacted Detective McManus, the author of the [subsequent] COPS event. Detective McManus could recall the defendant but did not recall any concern in relation to the content found.”

Relevant provisions of the Act

29. Before an ESO may be made, certain preconditions regarding the timing of the application and the defendant’s custodial status, set out in s 5B(a)-(c) of the Act, must be satisfied. Counsel for both parties agreed at the hearing of the application that those threshold criteria are satisfied. I note that the Court must be independently satisfied that the statutory preconditions are met. I am so satisfied.

30. Pursuant to s 6(3) of the Act, an application for an ESO must be supported by documentation that: (a) addresses each of the matters referred to in s 9(3) of the Act; and (b) includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence. Consequent upon orders made by Wilson J, reports were furnished to the Court by Dr Sally McSwiggan, forensic psychologist, dated 13 April 2023, and Dr Yolisha Singh, forensic psychiatrist, dated 19 April 2023.

31. Statutory provisions as to the principles applicable to the Court’s exercise of its discretion in determining whether to make an ESO or dismiss the application are set out in ss 3, 5B(d), 5D and 9(2) of the Act, which provide as follows:

“3   Objects of Act

(1)   The primary object of this Act 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.

(2)   Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.

…

5B   Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:

…

(d)   the Supreme Court is 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.

…

5D   Determination of risk

For the purposes of this Part, the Supreme Court is not required to determine that 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 the person committing such an offence.

…

9   Determination of application for extended supervision order

(1)   The Supreme Court may determine an application for an extended supervision order—

(a)   by making an extended supervision order, or

(b)   by dismissing the application.

(2)   In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

…”

32. I note that, pursuant to ss 5B and 9(1) of the Act, the power to make an ESO is discretionary; the Court may make an order for an ESO if the four prerequisites in s 5B are satisfied.

33. In determining whether to make an ESO, the Court must have regard to certain material and considerations which are set out at s 9(3) of the Act, in addition to any other matter that the Court considers is relevant.

Section 9(3) of the Act

34. Section 9(3) of the Act provides:

“(3)   In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant—

(a)   (Repealed)

(b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c)   the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d)   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,

(d1)   any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e)   any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

(e1)   options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(e2)   the likelihood that the offender will comply with the obligations of an extended supervision order,

(f)   without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g)   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,

(h)   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,

(h1)   the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i)   any other information that is available as to the likelihood that the offender will commit a further serious offence.”

Forensic reports and evidence

35. I have already referred to the matters identified in ss 9(3)(f), 9(3)(h) and 9(3)(h1). The reports that were prepared pursuant to s 7(4) of the Act are to be considered pursuant to s 9(3)(b) but are also relevant to some of the other matters identified in s 9(3). A risk assessment report and a risk management report have been tendered, which are primarily relevant to s 9(3)(d1).

Dr Yolisha Singh, forensic psychiatrist

36. By way of the defendant’s personal background, Dr Singh gave an account to the following effect. The defendant is the eldest of five children. His family environment was one of “domestic violence, parental alcohol use and infidelity”. His father was a cattle/sheep worker and the family moved around a lot. The defendant married at age 19. He said that he has not had contact with his daughter, who was the victim of his sexual offending, for two years. By way of general background, Dr Singh reported:

“[The defendant] attended Primary School via ‘Radio/Correspondence School’ and said that when he did attend school he was ‘in the lowest class’. He said that he was literate and that he had taught himself to read and write and as he lived ‘on the streets’ from age 10/11 years he had limited attendance at school. He struggled at school because he had difficulty learning and was often in trouble for ‘assaulting teachers’.

[The defendant] explained that during his adolescence he frequently engaged in truancy, stealing and fighting … He explained that he was expelled from school for ‘fighting and assaulting a teacher’. [He] advised that he first had contact with the criminal justice system at age 10/11 and that he was detained at ‘Minda Remand Centre’ for a few months at around this age …

[The defendant] has never been able to maintain full-time permanent employment beyond a period of 12 months. At age 16 years he stopped formal education and obtained employment as a factory hand and had a few jobs as a labourer. He explained that he had never been fired from a job, but also that he did not stay in them for very long; he offered no explanation for his difficulty sustaining employment. He said that his last period of employment was about 40 years ago when he worked for about 12 months as a cleaner … He said that he had obtained this work through the Centrelink Work Scheme. I note that [the defendant] was employed as a sweeper, in the textiles business unit and in other roles during his periods of incarceration and by all accounts was considered a good worker.

[The defendant] stated that he wanted to work and study but that he could not due to having ‘a lot of medical issues, me brain... memory... I can remember things then I can’t’. Previous reports detail that [he] reported that he completed various courses through Centrelink, including cleaning, carpentry, and horticultural courses.”

37. The defendant denied to Dr Singh that he had a sexual interest in children, which she queried:

“[The defendant] did say, when asked, that he was not sexually attracted to children. Further, that his offending history does not accord with him having a sexual interest in children. Concerningly, it is reported that on 26 September 2017, an Art file belonging to [the defendant] was left behind when he moved out of the [Integration Support Centre] which ‘was filled with different newspaper clippings that included a large number of small children (aged 10 and under) and pre-pubescent males, articles about serious offenders, terrorists and sex offenders, a picture of Rolf Harris’.”

38. Dr Singh took a history from the defendant as to his sexual relationships and interests, which she questioned as to its completeness and consistency with past recorded accounts by the defendant. She noted:

“I note that [the defendant’s] sexual offending is consistent with deviant sexual interests; specifically, sexual sadism as noted in his adjudicated matters as well as the report from his ex-wife and most recently on 23 November 2021, the search history on his mobile phone suggests a propensity for or, at the very least a continued interest in, sexual violence.”

39. Dr Singh referred to the search topics that were located on the defendant’s mobile phone in November 2021 which included references to teen-aged girls and sexual violence.

40. Dr Singh noted the programs that the defendant had completed whilst in custody. The defendant completed the Getting SMART program, which was an alcohol and other drugs group-based intervention program, in November 2008. He completed the EQUIPS Addiction program in 2015, and “[h]is participation was described as positive, and he was able to demonstrate the concepts learned during the program”. In September 2007, he completed the Sex Offender Preparatory Group (PREP) program, which focused on preparing offenders for engaging in group work rather than constituting sex offence-specific treatment. The defendant participated in the CORE Moderate program between December 2013 and June 2014, and “reportedly engaged well in the program and completed all required tasks though he did sometimes require additional time to do so”. This was a custody-based therapy course run by Corrective Services NSW to address sexual offending, intended for men who had sexually abused adults and/or children, and who had been assessed with low–moderate to moderate risk/needs.

41. Dr Singh noted that the defendant:

“… is currently provided offence-focused psychological work by the Forensic Psychology Service (FPS) … but his engagement has been tenuous at best.”

42. Dr Singh noted that the defendant reported having had multiple head injuries as a child and adolescent and that he had previously been diagnosed as having an acquired brain injury. Primary source material in that regard was unavailable, although:

“It is important to note that there have been no observed seizures over the course of [the defendant’s] lengthy periods of incarceration.”

43. Dr Singh noted the defendant reported that:

“… he first started drinking alcohol at age 6 or 7. … He said that he drank daily and to excess throughout his childhood, adolescence and adulthood. He said that he had attended numerous rehabilitation centres, including William Booth, and centres at Newcastle, Morrissett and in South Australia. He said that, when he was released on parole last year, he had cut down on his alcohol use and currently could tolerate no more than 3 or 4 schooners of beer as his ‘stomach shrunk’ when he was incarcerated. He noted that the current orders prohibited him from drinking alcohol.”

44. The defendant told Dr Singh that he smoked tobacco from about the age of 12 and had smoked regularly since then. He did not use other drugs. Dr Singh said that the defendant “failed to recognise any link between his alcohol use and offending behaviour”. I also note from the material that he was drinking alcohol during the five days that he committed the index offences.

45. As to an assessment of the defendant’s level of risk of committing a further serious offence, Dr Singh cautioned against reliance upon psychological assessment tools:

“Existing risk assessment tools provide either a probabilistic estimate of risk in a specified time period (actuarial instruments such as the STATIC 99R) or allow for a professional judgement to be made based on risk level (low, moderate or high) by taking into account the presence or absence of a pre-determined set of risk factors (structured professional judgement instruments, such as the RSVP). There does not appear to be an advantage to either approach.

Actuarial risk assessments such as the STATIC 99R, are able to allocate individuals with particular risk characteristics to risk groups, and those groups have been identified as possessing greater or lesser numbers of persons within the group as re-offending. The difficulty with this type of instrument is that it does not discriminate by type of offending and includes re-offending with sexual offences that would not meet the criteria of a serious sexual offence as defined in the legislation.

The research demonstrates that risk assessment tools appear to identify low-risk individuals with high levels of accuracy (high negative predictive value) but have low to moderate positive predictive value. Thus, their use as the sole determinants of detention, sentencing and release is not supported by the existing evidence base.”

46. With those provisos, Dr Singh applied the STATIC 99R, which yielded a rating of the defendant being in the “low moderate risk category” or “average risk” of sexual recidivism. Later in her report, she characterised his level of risk as assessed by risk assessment tools as follows:

“With consideration of the above structured risk assessment, it is my opinion that [the defendant] presented with a moderate loading of risk factors and hence falls into the moderate-risk category of people with an elevated future risk of sexual re-offending.”

47. Dr Singh noted:

“[The defendant] has a history of sexual violence, as evidenced by both his adjudicated and non-adjudicated matters. He is not considered to have exhibited a diversity of sexual violence as all reports are that he has perpetrated sexual violence on post-pubescent females. There does not appear to be an escalation in his sexual violence, with his last violent sexual offence occurring in January 2005, over 17 years ago.

[The defendant] has used physical coercion in sexual violence, having threatened his victim and reportedly threatened his wife with a knife and tying them up to engage in forced sex. The search history of his mobile phone in 2021 showed that he had searched for material about teenagers and rough sex. He is also reported to have used psychological coercion in sexual violence in the form of threats to hurt his daughter and kidnap her if she told anyone about the sexual assault.”

48. And later:

“Significantly, [the defendant] engages in extreme minimisation of the sexual violence he engaged in. Any gains obtained during his engagement and completion of the sex offenders’ program have been largely lost. His repeated contact with the victim post offence in contravention of the conditions of his sentence and his current narrative of his offending attest to this.

Furthermore, while he does not verbalise that he supports or condones sexual violence, his most recent violence occurred when his sexual advances were rejected and his repeated sexual violence demonstrated, as well as his victim blaming in his narrative above suggest, that he holds attitudes which support sexual violence. Additionally, his narrative is replete with examples of problems with self-awareness and evidence of poor coping. The former is evidenced by his persistent sense of himself as the victim and the latter by his alcohol dependence.”

49. Dr Singh sought to source the defendant’s views on gender-based violence:

“Witnessing his father’s domestic violence towards his mother as well as his constant denigration of her, including repeated allegations of infidelity, likely contributed to [the defendant’s] negative conceptualisation of women and impacted on his own intimate relationships.”

50. Dr Singh diagnosed the defendant as having an anti-social personality disorder (which is consistently associated with sexual reoffending), a sexual sadism disorder, a major depressive disorder of moderate severity, a post-traumatic stress disorder and alcohol and tobacco use disorders.

51. Dr Singh considered that the diagnosis of sexual sadism disorder was established by the defendant’s apparent sexual arousal from the physical or psychological suffering of another person, evidenced by his “adjudicated and non-adjudicated matters and his recent search history”. In addition, he had acted on those urges with a non-consenting person and they had caused him impairment in functioning, resulting in his recent incarceration.

52. Dr Singh noted that a sexual sadism disorder is a chronic paraphilic disorder which directly contributes to the defendant’s risk of sexual re-offending; it is a form of deviant sexual arousal which is highly correlated with the risk of recidivism.

53. An anti-social personality disorder is also consistently associated with sexual re-offending. Dr Singh stated:

“… disturbance in personality can interfere with integrity and honesty in treatment, cooperation with restrictions, and be a risk factor for developing or precipitating at-risk mental states, such as psychosis, anxiety and depression. Personality disorders often contribute to conflict in relationships, which can precipitate negative affective states associated with offending. The presence of an anti-social personality disorder, therefore, increases [the defendant’s] risk of sexual re-offending.”

54. As to the major depressive disorder, Dr Singh noted that the defendant presented with symptoms of low mood, hopelessness, a decreased motivation, lower energy levels and difficulties in concentration, which may account for his self-reported short term memory lapses, and anhedonia (an inability to feel pleasure in normally pleasant activities). It appears that his depressive symptoms and related impairments are the basis of him being approved for NDIS funding.

55. The defendant’s alcohol use disorder could disinhibit his “underlying sexual arousal and thus increase the risk of sexual re-offending”.

56. Dr Singh concluded that the defendant posed a risk of committing a further serious offence, as defined in the Act. She explained:

“The factors contributing to this risk formulation include a history of serious sexual offending and deviant sexual interest, the presence of poor psychological adjustment, as evidenced by [the defendant’s] denial of responsibility, and attitudes which condone his behaviour, as evidenced by his propensity to engage in victim blaming. [His] poor coping skills and his poor self-awareness further escalate his risk. The presence of mental disorders is also a risk factor.

Other factors that increase [the defendant’s] risk of re-offending include his poor social adjustment, as evidenced by his history of poor interpersonal relationships, both intimate and non-intimate, his current unemployment and difficulty sustaining employment for the majority of his adult life, as these factors increase his level of social isolation, poor self-esteem, and loneliness. [He] also has a history of non-sexual criminality which is associated with increased risk of re-offending. Additionally, he has problems with planning and poor treatment compliance; the most recent evidence of which is his late arrival at appointments. His history of past supervision failures, including offending when on parole and repeated breaches of his CPR and CPPO, support the formulation that he is at risk of re-offending if left unsupervised.”

Report of Dr Sally McSwiggan, forensic psychologist

57. Dr McSwiggan assessed the defendant on 21 and 23 March 2023. She did not take a history of the defendant’s personal background, but rather made passing references to aspects of it.

58. Dr McSwiggan noted that the defendant is presently residing in accommodation provided through NSW Housing. He has been a NDIS recipient for the last two years and has been approved to manage his funds himself. He receives the disability support pension. His younger brother is his only ongoing supportive relationship. He is not presently in a sexual relationship, but would like to be.

59. Dr McSwiggan assessed the defendant’s intellectual functioning as being “on the cusp of borderline/low average Intellectual Ability, falling at the 8th percentile compared to peers”. His general ability was in the “low average” range, which I note corresponds with cognitive assessments conducted by Ms Seidler in 2006. Dr McSwiggan assessed his reading age as an “upper primary school level”.

60. Dr McSwiggan considered that the defendant does not have a cognitive impairment and that his problems with supervision and planning are unrelated to cognitive disability. However, his level of intellectual ability may impact on his capacity to understand conditions of an ESO:

“His capacity to understand instructions or rules would be limited by his comprehension of any unusual or legalese written or spoken words and any ambiguity in language (e.g. significant, important). His spontaneous recall of rules and instructions would be limited by the number (amount to encode) that are spread over different orders (CPR, CPPO, ISO/ESO, CCO), some likely repeated, some likely similar but not exact.

[The defendant] has the capacity to understand and recognise a simple English format that would be consistent with his level of reading. Given the breath of the rules (ESO plus CPR and CPPO) most persons could not recall them spontaneously without considerable study and practice (like learning a complex narrative). Rather most persons, [the defendant] included, would recognise a collated printed version that was coherent to them, with greater ease with rehearsal (reading practice) over time.”

61. Dr McSwiggan noted that in reports dated 16 November 2003 and 21 March 2004, Dr Graham George, forensic psychiatrist, took a history from the defendant of a brain injury. Dr George concluded that the defendant:

“… ‘probably does suffer from an organic mental disorder’, likely related to hazardous use of alcohol in associated with ‘brain trauma due to recurrent concussions or some specific brain injury … related to an assault’. In addition to a ‘mixed personality disorder with sociopathic traits.’”

62. However, neuropsychological testing that was conducted around the same time suggested that any reported memory loss by the defendant was not likely related to an organic condition.

63. Dr McSwiggan determined the defendant’s level of risk of committing another serious offence with the assistance of the Static 2002R. The score of 5 placed him at a level of “above average risk” of committing another sexual offence. She explained:

“[The defendant’s] Static 2002R score was higher than 78% of routine samples of individuals charged or convicted of a sexual offence. On average, individuals with a Static-2002R score of 5 have a sexual recidivism rate that is the 1.9 times the rate of individuals in the middle of the risk distribution. Within routine correctional samples of individuals with a Static-2002R score of 5, the 5-year sexual recidivism rate was between 12% to 16%. This means that out of 100 individuals with the same risk score between 12 to 16 individuals would be charged or convicted of a new sexual offence after 5 years in the community. Conversely, between 84 to 88 individuals would not be charged or convicted of a new sexual offence during that time period.”

64. Dr McSwiggan referred to the Violence Risk Appraisal Guide and Sex Offender Risk Appraisal Guide (VRAG/SORAG). As I understood her report, the defendant returned a level of risk of “Medium” on the former and “High” on the latter. There was little elaboration of what those results meant.

A risk assessment report

65. A risk assessment report was tendered by the plaintiff, dated 8 August 2022, that is, prior to the defendant’s release back into the community. It was prepared by Sarah Wright, a senior psychologist working in the Serious Offenders Assessment Unit of Corrective Services.

66. Ms Wright applied the STATIC-99R and obtained the same score as did Dr Singh, that is, that the defendant fell in the “low-moderate” or “Average” risk category for sexual recidivism. When combined with the STABLE-2007, which assesses dynamic risk factors, his score increased to an “above average” risk of sexual recidivism. An application of the Risk of Sexual Violence Protocol (RSVP) found the defendant fell in the “Moderate/Elevated risk category for repeat sexual violence”.

67. Ms Wright noted:

“The overall totality of evidence suggests that [the defendant] falls in the Above Average risk category for sexual offending relative to other adult male sexual offenders. [The defendant] continues to present with a high density of outstanding treatment needs. [He] has only been convicted of sexual offending against the one victim over two periods in 2002 and 2004-2005 (i.e., his most recent sexual offence occurred over 17 years ago). He has had further contact with the victim on a number of occasions which have not resulted in sexual offence charges. There have, however, been two other allegations of sexual violence; one being an allegation from his ex-wife that [the defendant] was sexually abusive during their marriage, and a more recent allegation in the past 15 months of sexual assault against his brother’s partner; whilst he acknowledged the presence of sexual violence in his marriage, neither of these allegations have led to criminal charges. Given [the defendant’s] previous sexual offending has been of a serious nature, and he lacks insight into his risk factors nor the need to actively manage them in the community, it is possible that future sexual violence could approach the threshold of a ‘serious sexual offence’ as defined in the Crimes (High Risk Offenders) Act 2006.”

68. Ms Wright also noted:

“[The defendant] initially denied any recollection of his sexual offending behaviour. Whilst over time he has come to acknowledge committing the sexual offences, he has made statements minimising the nature of his offending, the impact of the offences on the victim, and the extent of the victim’s intellectual disability. Such minimisations have been described as a ‘mechanism of moral disengagement’ … which reduces the personal costs of offending, and may have an impact on treatment participation and compliance with risk management strategies. Whilst [the defendant] did not overtly express attitudes supportive of sexual offending, attitudes related to sexual entitlement appear to underlie both his adjudicated and non-adjudicated sexual offending (or allegations thereof). During treatment, he reportedly acknowledged attitudes that reflected a ‘pervasive sense of sexual entitlement’ and that he utilised coercive tactics to meet his sexual needs. It was noted that this was consistent with his aggressive behaviour within his intimate relationships. During interview [the defendant] reported that in his marriage he held the belief that he could do whatever he wanted to his wife as long as he provided for her. He acknowledged that he continues to experience anger in the context of sexual rejection, and it is apparent that he continues to hold attitudes related to his entitlement to sex.”

A risk management report

69. A risk management report, dated 9 September 2022, was tendered. It was written on the basis that the defendant had a “medium” risk level, which was derived from an assessment performed in November 2021.

70. As conditions of an ESO, the report recommended electronic monitoring, advanced scheduling of the defendant’s movements and other conditions that are typically recommended. Some that have particular application to the defendant is an abstention from alcohol and regular contact with a psychologist.

The issue of whether the Court should make an ESO

The defendant’s submissions

71. As noted, the defendant opposes the making of an ESO. His counsel submitted that the Court would not be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision, for the following reasons.

72. In the 18 years since he committed the index offences, the defendant has not committed a further “serious offence” as defined by the Act, which suggests that the constraints in place have been sufficient to ensure that outcome. His offending since early 2005, including his non-compliance with obligations under the CP(OR) Act and his CPPO, has been sufficiently minimal to be dealt with in the Local Court.

73. The index offences and prior serious offending was exclusively in relation to the defendant’s daughter; he does not have paedophilic tendencies and is “not a person who’s engaged in repeat or prolific serious sexual offending”.

The plaintiff’s submissions

74. The plaintiff noted that in order for a sexual offence that is committed against an adult to be a “serious” sexual offence, it had to be accompanied by violence. That is not a prerequisite for a sexual offence against a child.

75. In relation to both of these types of sexual offending, the plaintiff submitted that the defendant’s criminal record and the opinions of the forensic experts (Dr Singh and Dr McSwiggan) would satisfy the court to the requisite degree that the defendant poses an unacceptable risk of committing a serious offence.

76. The plaintiff referred to the troubling clippings found in 2017 in a room the defendant had previously occupied and his mobile phone internet search history in 2021.

Consideration

77. I found Dr Singh to be impressively clear and logical in the manner in which she arrived at her diagnoses and opinions, in particular, her conclusion that the defendant poses a risk of committing a further serious sex offence. That conclusion took into account her diagnoses of an anti-social personality disorder and sexual sadism disorder; the defendant’s (historical at least) obsessive passion for his daughter that led to the offences against her; the exhibiting of gender-based violence implicit in the incidents of July 2019 and May 2021 and his former wife’s account of violence within their marriage; the concerning nature of the clippings found in 2017; and the defendant’s internet search history, discovered in 2021.

78. Against those considerations is the absence of a serious sexual offence committed by the defendant in his time in the community (approximately four and a half years) over the last 18 years since the index offending; the relatively minor nature of the offences of violence he has committed since then; his successful completion of multiple rehabilitation programs in prison; the likely positive effect of the support he will receive through the NDIS; and the results of statistical psychological tests that are intended to determine the level of risk of an offender committing a sexual offence, in particular, a violent sexual offence.

79. I found Dr McSwiggan’s report less helpful, in part because I found her opinions in her report to be not so accessible. Ultimately, however, her opinion as to the defendant’s level of risk of committing a serious offence, as defined in the Act, is not dissimilar to that of Dr Singh.

80. I accept Dr Singh’s opinion that there is a risk of the defendant committing a further serious sex offence, as defined in the Act. However, the test to be applied on this application is whether the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing such an offence (emphasis added). In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, Beazley P (Gleeson JA agreeing), in the context of considering the meaning of the term “unacceptable risk” in s 5E(2) of the Act (since repealed), which was in a similar context, said, at [61]:

“… the evaluation to be made under s 5E(2) is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection. As the respondent pointed out, were it otherwise, every risk would be unacceptable.”

81. I am not satisfied to a high degree of probability, as that term is understood in the context of s 5D of the Act, that the defendant poses an unacceptable risk of committing a serious offence, as defined in the Act. There is, however, a likelihood in my view that the defendant will continue to breach his reporting and other obligations arising from child protection legislation and that he will continue to commit relatively minor criminal offences of violence.

82. I have arrived at the finding that the test in s 5B(d) of the Act is not made out without taking into account that the defendant is subject to a 5-year CPPO which still has more than 2 years to run, and that he is on the CPR, although it would have been open to the Court to do so. I note that Rothman J, in State of New South Wales v Rigby (Final) [2021] NSWSC 472, at [42], considered that the Court on an application such as this is entitled to have regard to:

“… other regimes applying independently of the Act … in determining whether an offender or defendant represents an unacceptable risk, as well as when it comes to the point of an exercise of discretion as to whether to make or not to make the order.”

83. Those obligations and constraints upon the defendant, pursuant to child protection legislation, fortify my conclusion as to s 5B(d) of the Act. In any event, pursuant to the discretion to not make an ESO even though that test is satisfied, those child protection measures would have persuaded me that an ESO is unnecessary.

Orders

84. Accordingly, I make the following orders:

1. The amended summons is dismissed.

2. Access to the 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.

**********

Decision last updated: 31 May 2023