State of New South Wales v Jubb (Final)

[2019] NSWSC 709

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Jubb (Final) [2019] NSWSC 709
Hearing dates:	3 June 2019
Date of orders:	14 June 2019
Decision date:	14 June 2019
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Extended supervision order for 3 years with conditions
Catchwords:	HIGH RISK OFFENDER – application for extended supervision order – final hearing – serious sex offences and offences of a sexual nature – statutory preconditions for order are satisfied – whether satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision – consideration of independent expert evidence – defendant sentenced for further breaches of child protection orders after preliminary hearing – three year extended supervision order imposed with conditions
Legislation Cited:	Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 5B(d), 9(1), 9(2), 9(3), 10C(1), 10C(1A), 10C(2), 11
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Gavin Jubb (Defendant)
Representation:	Counsel: Mr P Aitken (Plaintiff) Mr M Johnston SC (Defendant)   Solicitors: Crown Solicitor’s Office Legal Aid NSW
File Number(s):	2019/37390

Judgment

1. HIS HONOUR: The State of New South Wales (the plaintiff) commenced proceedings on 4 February 2019 under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The plaintiff then reformulated the proceedings somewhat by filing an amended summons on 3 June 2019, whereby it sought various orders to be made in relation to Mr Gavin Jubb. It is claimed that there is a high degree of probability that Mr Jubb poses an unacceptable risk of committing a serious sex offence if not kept under supervision.

2. On 11 March 2019, Ierace J made orders following a preliminary hearing, including an interim supervision order. He also made a non-publication order which the parties accepted before me was no longer necessary. However, because of the basis upon which his Honour made that order, it was submitted that care should be taken in relation to what is disclosed in this judgment. For that reason, I will refer to his Honour's judgment simply as "the preliminary judgment".

3. Mr Jubb is an offender who has served a sentence of imprisonment for "serious sex offences" as defined in the Act. Those offences, in addition to further offences of "a sexual nature" as similarly defined, occurred some years ago. They involved children aged 12 or 13. The offences involved grooming a child for unlawful sexual activity, aggravated indecent assault, inciting a person under 16 to commit an act of indecency, attempting to, and committing aggravated acts of indecency, and the basic offence of committing an act of indecency.

4. Mr Jubb was sentenced in the Local Court but the overall sentence was reduced on appeal to the District Court. Payne DCJ imposed an aggregate sentence of imprisonment for 2 years, 10 months with a non-parole period of 1 year, 9 months. The facts of the offences are summarised in the preliminary judgment at [4].

5. Mr Jubb has committed no further serious sex offences or offences of a sexual nature, but has committed a number of offences in breach of the requirements of his registration on 7 February 2013 under the Child Protection (Offenders Registration) Act 2000 (NSW) and a prohibition order made under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) on 5 June 2018. The prohibition order is valid for a period of 5 years and is due to expire on 4 June 2023. Its provisions include that he not actively communicate, or attempt to do so by any means, with any person under the age of 18 years.

6. On 16 May 2018, Mr Jubb was convicted in the Local Court on two charges of failing to comply with his reporting obligations pursuant to his registration under the Child Protection (Offenders Registration) Act between 1 January and 7 March 2018. The facts relating to those offences are summarised in the preliminary judgment at [7]. Mr Jubb received sentences of imprisonment for 8 months, but the sentences were suspended upon him entering a good behaviour bond.

7. On 13 June 2018, Mr Jubb was convicted in the Local Court of an offence of contravening the prohibition order under the Child Protection (Offenders Prohibition Orders) Act, as well as another offence of failing to comply with his reporting obligations under the Child Protection (Offenders Registration) Act. He was also dealt with for breaching the good behaviour bonds entered into only weeks before. He was sentenced to an overall term of imprisonment of 12 months with a non-parole period of 9 months. The non-parole period expired on 11 March 2019 and the total term expired on 11 June 2019.

8. The offences of failing to comply with reporting obligations for which Mr Jubb was initially sentenced on 16 May 2018 were committed between 1 January and 7 March 2018. He was the manager of a chicken farm and lived on the site. He was associating with six children of a couple who also worked on the farm. One child, aged 17, had been living with him. He was required to report such an association with children to police, but had failed to do so. He was also obliged to report his use of social media, but had failed to do so in respect of a Snapchat account he had been using for the previous 3 to 4 months.

9. The offences of contravening the prohibition order and failing to comply with reporting obligations for which Mr Jubb was sentenced on 13 June 2018 were committed on 12 June 2018. These offences involved him having two boys under the age of 18 (in fact 17) working at the chicken farm. He told police that he felt "stuck" and that he had "no choice" due to his employment situation. He did not want people to find out that he was on the Child Protection Register and he had a Child Protection Prohibition Order.

10. No allegation of sexual impropriety has been made in respect of Mr Jubb's involvement with the various children who had been at the chicken farm.

11. Ierace J provided a very thorough review of Mr Jubb's background and the various assessments which had been made of him, as well as the risk he presents of committing further serious sex offences in the preliminary judgment (at [20]-[33]). There is no point in my repeating any of it. His Honour was satisfied that an interim supervision order should be made for a period of 28 days (the maximum period permitted under s 10C(1) of the Act). Such period is suspended during any period an offender is in lawful custody (s 10C(1A)). The order may be renewed from time to time but not so as to provide for supervision for periods totalling more than 3 months (s 10C(2)).

12. There was a dispute about the appropriateness of some of the conditions that should apply to the interim supervision order. His Honour declined to include a condition that Mr Jubb submit to electronic monitoring. He was satisfied that other conditions requiring Mr Jubb to live at an approved address, to submit to a curfew, as well as to abide by conditions that comprehensively covered his movements and associations when not at home were sufficient. "Home" was to be, initially at least, at a Community Offender Support Program (COSP) facility at Malabar.

13. A condition was proposed requiring Mr Jubb to obtain the approval of his Departmental Supervising Officer (DSO) before any person may remain at his approved address or stay overnight. His Honour modified this so that it referred only to "any person under the age of 18". He did so because the condition in the proposed terms would tend to discourage Mr Jubb from forming adult relationships, which was identified as one of his risk factors.

14. Mr Jubb was released on parole on 11 March 2019 whereupon he moved to the COSP facility at Malabar.

15. On 28 March 2019, Mr Jubb was questioned by his DSO about the contacts he had in his phone. They included a 15-year-old boy. He said, "I have not had contact with [the 15-year-old boy] for 12 months".

16. On 2 April 2019, Mr Jubb was arrested and charged with contravening his child protection prohibition order. It was alleged that he did so between 13 August 2018 and 2 February 2019 whilst he was in custody.

17. On 10 April 2019, a magistrate at the Hornsby Local Court sentenced Mr Jubb to imprisonment for 18 months with a non-parole period of 13 months dating from 2 April 2019. An appeal to the District Court against the severity of the sentence is listed for hearing on 2 July 2019.

18. The Police Facts in relation to this offence include that whilst in Junee Correctional Centre, Mr Jubb made over 70 attempts using the Offender Telephone System to contact a particular mobile phone number which he had recorded in his approved phone list. Police reviewed the recordings of calls that were successful and found that Mr Jubb was speaking with the abovementioned 15-year-old boy and sometimes with the boy's mother. His conversations with the boy included Mr Jubb suggesting that they "meet up on the day I get out", and that after his parole period is over he will move to Queensland, and "You can come visit me".

19. Pursuant to an order made by Ierace J, the two experts appointed to examine Mr Jubb and provide reports were Dr Adam Martin, forensic psychiatrist, and Ms Jenny Howell, psychologist. They interviewed Mr Jubb on 26 April and 3 May 2019, and provided reports dated 5 May and 14 May 2019 respectively.

20. Both experts supported a diagnosis of paedophilic disorder. They were of the view that Mr Jubb had an interest in adolescent male children. Dr Martin described it in the following terms: [1]

"It's generally considered to be a chronic vulnerability, so by definition, longer than I think six months but more than likely it's a lifelong time. It's something you wouldn't expect a person to grow out of."

1. Tcpt, 3 June 2019, p 7(25).

21. Ms Howell essentially agreed: [2]

"Yes, it's primary sexual interest so it's usually lifelong."

2. Tcpt, 3 June 2019, p 7(31).

22. In his report, Dr Martin was asked to address the question of whether Mr Jubb poses a risk of committing a further serious offence. His response included:

“[In] my opinion, it is reasonable to say that his risk is significant. I concur with the comments generally made by Ms Tulloh and Cieplucha in relation to future risk of sexual offending.

There are a number of protective factors in his case which include that the sexual offending against the boys occurred in an isolated manner apparently and did not involve extreme violence. He does not have an anti-social personality and there is no suggestion of other sexual deviance such as sexual sadism. He does not have a substance abuse disorder. He does not have a major mental disorder. He apparently has some supports and has been able to maintain friendships and an intimate relationship with an adult male. Within the limitations of a relatively brief and crosssectional assessment, he appeared comfortable with his sexuality and was able to articulate the wrongfulness of sexual behaviour involving children. He was open to engaging in psychotherapy in relation to sex offending. He has a reasonable employment record apparently. He is of reasonable intelligence.

The main concern that I have is that he has not engaged in lengthy psychotherapy in relation to sex offending and has been considered “untreated”. There may be an element of minimisation and denial which are common cognitive distortions among people who offend sexually. There have been a number of breaches of his supervisory orders which raise some concern in relation to his insight, understanding of legal requirements and restrictions, and possibly lack of regard for such requirements. The alleged multiple phone calls with a 15-year old male in contravention to the order is worrying.

It is plausible and likely that the risk of offending will be reduced with further supervision, especially with appropriate psychological therapy and support and help with engaging in age-appropriate relationships, and finding appropriate accommodation and employment.”

23. Ms Howell's response to the same question included:

“Mr Jubb’s risk of committing a further serious offence falls in the Average Risk category based on Static-99R actuarial assessment. Clinical assessment together with Mr Jubb’s dynamic risk factors and incomplete treatment participation suggests his overall risk could be higher than an average risk to re-offend. He participated in sex offender programs in custody and in the community, however, he did not complete the High Intensity Sex Offender Program (HISOP) (previously known as CUBIT) and his participation with the Pastoral Counselling Institute consisted of participation in five one hour assessment for treatment sessions. Incomplete treatment is an acknowledged high risk factor for future offending.

Risk is dynamic and prone to fluctuation in response to personal and environmental factors. Mr Jubb’s risk could abate over time, alternatively, his risk may escalate in the event he is unable to obtain employment and meaningful connections to the community. He has very limited family support and experiences loneliness and isolation which may act as stressors for further offending.”

Whether an extended supervision order should be made

24. It was accepted by senior counsel for Mr Jubb that all of the statutory preconditions for an extended supervision order are satisfied. The critical issue is whether the 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". [3] As to that issue, it was accepted that it would be open on the evidence for the Court to be so satisfied and that the Court may make an extended supervision order.

    3. Crimes (High Risk Offenders) Act, s 5B(d).

25. Notwithstanding these concessions, it remains a matter for me to consider the evidence and determine for myself whether an order should be made. I have had regard to all of the material that has been tendered by the plaintiff; to the issues listed in s 9(3); and particularly to the paramount consideration according to s 9(2) of community safety. I have been greatly assisted by the opinions expressed by the two court-appointed experts in their reports and their concurrent oral evidence.

26. I have borne in mind that regardless of whether an extended supervision order is made, it will remain the case that Mr Jubb will be subject to the constraints imposed upon him under the Child Protection (Offenders Registration) Act and the Child Protection (Offenders Prohibition Orders) Act.

27. I am satisfied that each of the matters in s 5B of the Act have been established and that the discretion to make an extended supervision order should be exercised.

Duration of the order

28. The State seeks an extended supervision order for a period of three years.

29. Dr Martin wrote in his report:

“In terms of an appropriate duration, from a psychiatric perspective, the risks are likely to be enduring, and it would be reasonable for him to have monitoring and supervision for three years as proposed, which would allow potentially for gradual reduction in restrictions and allow time to monitor his response to therapeutic interventions.”

30. Ms Howell wrote:

“It is my view Mr Jubb’s risk of recidivism can be managed effectively in the community under an Extended Supervision Order. The proposed duration of three years is sufficient time for Mr Jubb to address his risk of reoffending through participation in community based sex offender treatment and develop new self-protective and prosocial strategies to manage risk.

…

An ESO of three years would allow Mr Jubb to engage in and complete sex offender specific treatment in the community. It would also allow him time to address issues in relation to his sexuality.”

31. They were each asked about this issue at the hearing. Dr Martin responded: [4]

“I think it's a problematic issue, the length of it, because it's fairly arbitrary. I mean, how can I say it should be one year versus two years or three years or five years. I think the likelihood is he's going to need monitoring for more than three years so I think it's - but it's at the same time, you don't want to kill hope or, you know, therapeutic hope is a powerful tool, and you need to give a person a chance to show that they have responded to therapy, and that they can abide by supervisions, and they have formed adult appropriate relationships, and so I think three years is a reasonable kind of average but it's - I can't be more specific. It's a legal issue really.”

4. Tcpt, 3 June 2019, p 10(38)-(46).

32. Ms Howell said: [5]

“Yes, my view was around three years as well. I was thinking in terms of therapy and working with someone, because I agree that if your primary sexual interest is in children, that's an enduring trait, it will not go away; however, we can work with people to manage that and to remain safe in the community, and I think three years is a reasonable length of time to do that work.”

5. Tcpt, 3 June 2019, p 10(5)-11(5).

33. In cross-examination, Dr Martin was asked about the fact that Mr Jubb is presently subject to a sentence of imprisonment with a non-parole period of 13 months and may receive treatment whilst in custody. His opinion was unchanged. He said, for example, "the risks are going to go on over the next five years" and "he probably will need several years of treatment and monitoring in the community". [6] Ms Howell agreed. [7]

    6. Tcpt, 3 June 2019, p 16(7)-(11).

    7. Tcpt, 3 June 2019, p 16(15).

34. It seems to me that three years is an appropriate compromise and I propose to make an order of that duration.

Conditions of the order

35. The proposed conditions that would apply to a supervision order are extensive (as they usually are). Mr Jubb has raised issues in relation to some of them.

Electronic monitoring

36. Electronic monitoring was opposed for various reasons including that Mr Jubb has lived in the community for almost four years without further serious sexual offending; the condition is not directed at addressing his risk profile of grooming teenage victims; the relevant risks are addressed by other conditions; and electronic monitoring is onerous and intrusive.

37. Ierace J was satisfied that the other conditions of the interim order he imposed, together with Mr Jubb's then conditions of parole, were such that electronic monitoring was not required.

38. Since the assessment made by his Honour there was, of course, the discovery of even more offending by Mr Jubb in the recent past by way of his breach of the statutory obligations imposed upon him. The fact that he breached those obligations on a number of occasions while serving a sentence for similar offending is concerning. It provokes unease about Mr Jubb's inclination to comply with his obligations, as opposed to doing as he pleases despite them.

39. Both of the experts acknowledged arguments for and against electronic monitoring. But when the possibility of the inclusion of an electronic monitoring condition with a "sunset clause" was raised, the condition appeared to gain more support from the experts.

40. Ms Howell was unaware that this was possible. She said: [8]

"I found in the past that that often doesn't happen because once it's in place, it tends to stay in place. … I hadn't heard of it [a sunset clause] before … I tend to work with people who are wearing monitors for five years."

8. Tcpt, 3 June 2019, p 12(19)-(20); (33)-(35).

41. Dr Martin said: [9]

“I agree with what Ms Howell has just said essentially. I think it's - I think therapeutically it makes sense to apply a significant discretion to the individual, and with a general - with the hope that the trajectory would be that over time the restrictions are [lessened], and yes, I would - I think a sunset clause or some kind of cap on the time may be helpful with the discretion of being able to put monitoring back on if required.”

9. Tcpt, 3 June 2019, p 13(7)-(12).

42. In cross-examination, Dr Martin identified a particular advantage of including electronic monitoring as a condition: [10]

“It's obviously restrictive and unpleasant and stigmatising, and it's one of those conditions which is very external as opposed to relying, so the other things such as scheduling or his movements or who he's associating with are reliant on his proof for reporting, and that's probably more difficult to objectively monitor, so in some ways it may, the electronic scheduling may add weight to the defendant showing that he's doing what he's supposed to be doing or moving where he's supposed to be moving, and so actually may aid, after time, may aid the supervising officer to say, look, yes, he is; we've got clear concrete evidence that he's compliant with all conditions rather than being uncertain. But so it's a balancing act. I think it has a place but I would see it being there for a period of time, and hopefully being removed if he's compliant.”

10. Tcpt, 3 June 2019, p 16(33)-(44).

43. There are good arguments for and against the imposition of an electronic monitoring condition. If it were not for the recent detection of the offences for which Mr Jubb is presently serving a sentence, I would be inclined against its imposition. However, that factor now persuades me that some stringency in supervision in this form is desirable to ensure compliance with other conditions of the order, such as adherence to his approved schedule of movements and avoidance of excluded areas where children are more likely to be encountered. I acknowledge that Mr Jubb's past offences have not concerned randomly selected victims, but the chronic nature of his paedophilic disorder –for which he remains at the present time untreated – is a significant concern.

44. I have determined to impose an electronic monitoring condition which will be for a maximum period of 6 months, with a proviso that it may be reimposed in the event of Mr Jubb being charged for any breach of the extended supervision order or any other criminal offence during the balance of its duration.

Curfew

45. The plaintiff proposes a condition requiring Mr Jubb to be at his approved address between 9.00pm and 6.00am unless other arrangements are approved.

46. Mr Jubb opposes this condition as it will unnecessarily impact upon his working and social life, and it does not relate to his risk of reoffending against children. Ms Howell considered that this condition may cause hardship for Mr Jubb when seeking employment, as well as his efforts in more actively and appropriately participating in the community. In terms of employment, Mr Jubb has held positions where he has been required to leave for work as early as 3.00am.

47. The plaintiff proposed an amendment to the condition so that the supervising officer could grant approval for a variation at short notice by way of phone call or text message.

48. I am of the view that a specific curfew condition is unnecessary in Mr Jubb's case. His past offending does not indicate that there is elevated risk during the nominated hours. He will otherwise be subject to conditions requiring him to submit and adhere to a schedule of movements.

49. Proposed condition 10 will be deleted.

Prior approval of visitors to the home

50. Condition 13 is proposed in the following terms:

“The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.”

51. Ierace J modified this condition for the interim supervision order by inserting the words, "under the age of 18", after "any person". He did so for the following reason:[11]

"One of the dynamic factors contributing to the Defendant’s level of risk of recidivism is his track record of not forming adult relationships. The condition proposed by the Plaintiff would tend to discourage the Defendant from asking adults to visit him at home. Protection to the community is not diminished by the amendment sought."

11. Preliminary judgment at [42].

52. Dr Martin and Ms Howell both agreed that this amendment should be made. [12] I agree for the same reasons Ierace J provided. I note that proposed condition 28 is directed to Mr Jubb's association with any person who he knows has the care of, or is the parent or guardian of, children.

    12. Tcpt, 3 June 2019, p 13(32); p 14(41).

Place restrictions

53. Proposed condition 17 lists a number of places Mr Jubb must not go to without the prior approval of his supervising officer. One is "cinemas" and another is "sporting facilities".

54. The inclusion of cinemas in this list should remain. The prospect of Mr Jubb attending a darkened cinema where there may well be children is a concern in relation to his risk of re-offending.

55. The inclusion of "sporting facilities" was questioned because Mr Jubb would like to be able to attend adult-only gymnasiums. Counsel for the plaintiff submitted that the concern about this would be, for example, if such a gymnasium had a pool which was available to children as well as adults. Later in the hearing, it was conceded that something could be included to the effect that an adult-only gymnasium would be permissible if approved by the supervising officer. [13]

    13. Tcpt, 3 June 2019, p 21(9)-(13).

56. That modification should be accepted. Proposed condition 17(g) will be modified to read: "Pools, playing fields and, subject to condition 17A, sporting facilities". Condition 17A will also be included: "The defendant may enrol in and attend an adults-only gymnasium provided he has the prior approval of his DSO".

Orders

1. Pursuant to ss 5B and 9(1)(a) of the Act, the defendant be subject to an extended supervision order for a period of three years from today.

2. Pursuant to s 11 of the Act, to direct the defendant to comply with the conditions set out in the Schedule to the Summons during the duration of the order.

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Endnotes

Decision last updated: 14 June 2019