State of New South Wales v Kalaw (Final)

Case •

[2023] NSWSC 131

•

23 February 2023

Supreme Court


New South Wales

Medium Neutral Citation: State of New South Wales v Kalaw (Final) [2023] NSWSC 131
Hearing dates: 12 December 2022
Date of orders: 16 December 2022
Decision date: 23 February 2023
Jurisdiction:Common Law
Before: Ierace J
Decision:

Reasons published for orders made 16 December 2022:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) order that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of 2 years from the date of this order;

(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the attached Schedule;

(3)  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 (“ESO”) – imposition of ESO not opposed – dispute limited to duration of ESO and conditions imposed – consideration of conditions for monitoring, drug/alcohol testing and search/seizure

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J, 61K, 97

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5, 5B, 5D, 5I, 6, 7, 9, 11

Category:Principal judgment
Parties: State of New South Wales (Plaintiff)
Kerubee Bernabao Kalaw (Defendant)
Representation:

Counsel:
K Curry (Plaintiff)
J Lucy (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s): 2022/221258

Judgment

  1. HIS HONOUR: By an amended summons filed on 16 September 2022, 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, Kerubee Bernabao Kalaw, be subject to an extended supervision order (“an ESO”) for a period of three years and, pursuant to s 11 of the Act, that he be directed to comply with certain conditions that are set out in a schedule to the summons.

  2. On 16 September 2022, Button J made preliminary orders that were sought in the amended summons, which included an interim supervision order (“an ISO”) for a period of 28 days, to commence on that date. Subsequently, the ISO was renewed on 20 October 2022 and on 28 November 2022. The last order would have expired on 26 December 2022. The hearing occurred on 12 December 2022. On 16 December 2022, I made orders that the defendant is subject to an ESO for a period of two years from that date, subject to a schedule of conditions that were attached to the order. These are my reasons for that determination.

The defendant’s background

  1. The defendant was born in the Philippines, the elder of two children and with five half-siblings. His parents, who were wealthy, separated when he was about 10 years old. His mother moved to the USA and he was ostensibly raised by his father in a separate household from his siblings, although he reports that he was primarily cared for by nannies and a relative and had little emotional connection to other members of his family.

  2. In 2006, the defendant claimed to Dr Jeremy O’Dea, a forensic psychiatrist, that between the ages of 10 and 13, he was sexually assaulted on a daily basis by a male relative. In 2018, he reported that after that abuse ceased, he was then regularly sexually abused by a nanny until he was aged about 15.

  3. The defendant completed the equivalent of Year 12 at high school and was then subject to mandatory military conscription. In 1997, when he was 20 years old, he migrated to Australia. He completed a TAFE course in Financial Planning and commenced a Bachelor of Arts (Sociology) through Open Universities Australia. He did not complete that course due to financial difficulties.

  4. Three years after his arrival in Australia the defendant married. There is one child of the marriage, a son, with whom he has regular contact. The defendant engaged in multiple extra-marital sexual liaisons, including with sex workers. His marriage ended as a result of these liaisons and him being charged with the index offences.

The index offences

  1. On 4 October 2004, the defendant was arrested and charged with a series of sexual assault offences that he committed over a six-week period between August and October 2004. On 28 July 2006 the defendant pleaded guilty to the following seven offences, contrary to provisions of the Crimes Act 1900 (NSW):

  1. Count 1: threaten actual bodily harm with intent to have sexual intercourse, contrary to s 61K(b); and

  2. Counts 2 to 6: aggravated sexual intercourse without consent, contrary to s 61J(1); and

  3. Count 7: malicious infliction of actual bodily harm with intent to have sexual intercourse contrary to s 61K(a).

    1. In addition, an eighth offence of armed robbery contrary to s 97(1) of the Crimes Act was taken into account on a Form 1. The facts on which the defendant was sentenced, briefly stated, are as follows.

Count 1

  1. The defendant approached a 19-year-old woman as she completed a call at a public pay phone, pulled her towards him and held her. He held a knife to her stomach, threatened her and placed his hand down her pants three times. Each time, the victim successfully removed his hand. She ultimately escaped and ran away.

Counts 2 and 3

  1. The victim was a girl aged 17 who was walking along a highway when the defendant pulled up in a vehicle and offered her a lift. She accepted the offer. He made unwanted sexual advances towards her, stopped the vehicle and sexually assaulted her. The victim ran away but he pursued her and, in nearby bush, had penile vaginal intercourse twice. He ejaculated into her vagina and forced her to fellate him. He placed the victim back in his vehicle and resumed driving. He eventually pulled over and had penile vaginal and anal intercourse with her, threatening to kill her if she resisted him.

Count 4

  1. The victim was a 42-year-old woman who accepted an offer of a lift by the defendant, who pulled up while she was walking home at 1am. Once she was in the vehicle, he drove to an industrial area and used force to have penile vaginal intercourse with her. He then unsuccessfully attempted penile anal intercourse. He threatened her at knifepoint to not disclose the offences, leaving her at the side of the road.

Count 5

  1. The victim was a 17-year-old girl who was approached by the defendant while she was walking home from work in a rural area. He grabbed her around her head and dragged her into bushes. She fought back and screamed, at which point he produced a knife and pulled her to the ground by her hair. She continued to struggle, and he released her.

Counts 6, 7 and 8

  1. The victim was a 20-year-old woman. The defendant drove past her while she was walking home, stopped and approached her. He dragged her into bushes, produced a knife, engaged in cunnilingus with her, forced her to fellate him and had penile vaginal and penile anal intercourse. He demanded her driver licence and threatened to kill her if she reported him to police.

Sentences imposed for the index offences

  1. The defendant was sentenced by his Honour Ellis DCJ sitting in the District Court at Coffs Harbour on 15 September 2006. He received discrete sentences for each offence. Judge Ellis took the Form 1 offence into account in fixing the sentence for count 6. The defendant received an overall total sentence of imprisonment of 18 years, to commence on 4 October 2004 and expire on 3 October 2022, with a non-parole period of 14 years, to expire on 3 October 2018.

Remarks on sentence by Ellis DCJ

  1. Judge Ellis remarked on the gravity of the offences and the devastating impact they had on the victims. His Honour accepted that the defendant had “expressed genuine contrition and remorse” by his pleas of guilty, an account he had provided to Dr Jeremy O’Dea, forensic psychiatrist, and in his evidence at the sentence hearing. Dr O’Dea’s report was dated 23 August 2006. I will return to it later in this judgment.

  2. His Honour considered that the need for rehabilitation was subsumed by the need for the sentence to “punish and deter others who might be of a like mind”. His Honour noted that the defendant had been found by the forensic psychiatrist as satisfying the criteria for a diagnosis of sexual sadism. His Honour found special circumstances on the basis of the defendant’s need for lengthy supervision, the fact that the sentence was his first time in custody, that he was then being accommodated in protective custody and was likely to remain so, and the fact of cumulated sentences. His Honour fixed non-parole periods for each offence that were less than the statutory ratio of 75 per cent, although the ratio of the overall non-parole period to the total sentence was slightly over the statutory ratio (77.7 per cent).

The defendant’s progress in custody and post-release

  1. The defendant had three disciplinary charges while in custody. In 2005, he was charged with failing to comply with a correctional centre routine, which resulted from him sleeping in and missing muster. In 2013, he was charged with possessing prohibited goods and failing a urine test, which both arose from him being in possession of unprescribed sleeping medication.

  2. In 2011, the defendant was stabbed by his cellmate, who was apparently motivated by the prison culture of attacking sex offenders. In 2012, he was attacked on an oval by inmates and in 2016 he was attacked by five inmates while having a shower. The motivation of those attacks is not apparent from the material tendered on the hearing.

  3. The defendant was not released to parole when he first qualified in October 2018, because he had not participated in a sex offender program and had been deemed unsuitable for community-based treatment. He commenced a High Intensity Sex Offender Program (“HISOP”) in June 2019 and completed it on 24 March 2020. He was released to parole on 25 May 2021, which was two years and seven months after the expiration of the overall non-parole period.

  4. The defendant resided in a Community Offender Support Program Centre (“COSP”) until 22 September 2021 and thereafter in the broader community. In January 2022, he re-established contact with one of the women with whom he was sexually involved in the 1990s; he claims that he had a two-year romantic relationship with her while he was still married. I will refer to her by the pseudonym of “Wendy”. By 31 March 2022, they were co-habiting.

  5. As noted, the defendant ‘s overall sentence (and thus his conditions of parole) expired on 3 October 2022. He continues to be subject to obligations consequent to him being on the Child Protection Register. A Risk Assessment Report dated 17 February 2022 noted:

“[The defendant] has been compliant with his parole supervision requirements, his mental health requirements and the [Child Protection Register]. He engages well during his interviews with [Community Corrections Officers] and contributes to meaningful discussions around behavioural change and his risk factors. He appears able to demonstrate insight into his offending behaviour.”

Mental health issues

  1. In 2011, shortly after the stabbing incident, the defendant experienced auditory hallucinations. He was diagnosed with schizophrenia and admitted to the Mental Health Unit in Long Bay Hospital. He had relapses following the 2012 and 2016 assaults. His treating psychiatrist in custody, Dr Wade, noted in a letter dated 7 July 2020:

“When unwell [the defendant] has experienced disorganisation, delusions, hallucinations and mood instability. He has experienced delusional beliefs (including that he is a CIA agent, can read others’ minds, feels special like a prince) and hallucinations (sees spirits and hears voices). He has previously been admitted to Long Bay Mental Health Unit twice, in 2011 and 2016. He has previously required treatment under a Forensic Community Treatment Order.

He has had an adequate response to his current antipsychotic medication. He has been treated with Paliperidone 150mg monthly injection since 2016.

He is currently presenting as relatively stable in his mental state. His illness causes him significant distress and impacts on his functioning. He continues to experience marked difficulties relating to motivation, planning and organisational skills. These difficulties are significant and unlikely to change over the long term.

In my opinion [the defendant] has a severe and persistent mental illness that seriously impacts on his day to day functioning. This will be a lifelong illness that requires indefinite treatment.”

  1. Following his release in May 2021, the defendant successfully applied for the Disability Support Pension on the basis of his mental illness diagnosis. He is unable to afford a private psychiatrist, and his local community mental health team has advised that they do not consider him sufficiently mentally unwell to warrant their provision of services. In view of the significance of the defendant’s mental health to his risk of reoffending, I determined to make a recommendation that steps be taken to secure the services of a treating psychiatrist.

Relevant provisions of the Act

  1. Section 5B of the Act relevantly provides as follows:

“Part 1A   Supervision and detention of high risk offenders

…

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—

(a)   the person is 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, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(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.”

  1. The defendant did not dispute that the statutory preconditions for an ESO that are required by ss 5B(a)-(c) of the Act are established. He did not oppose the making of an ESO, although its length and conditions were in dispute. Accordingly, he accepted that s 5B(d) was open to being established to the Court’s satisfaction.

  2. I noted that the Court must be independently satisfied that the statutory preconditions are met. I was so satisfied, for the following reasons.

  3. In relation to s 5B(a) of the Act, the term “serious offence” is defined in ss 4 and 5 of the Act, as follows:

“4   Definitions

(1)   In this Act:

…

serious offence means—

(a)   a serious sex offence, or

(b)   a serious violence offence.

serious sex offence—see section 5 (1).

…

5   Definitions of ‘serious sex offence’ and ‘offence of a sexual nature’

(1)   For the purposes of this Act, a serious sex offence means any of the following offences—

(a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where—

(i)   in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and

(ii)   in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises),

(a1) an offence under section 61K or 66EA of the Crimes Act 1900

…

(2)   For the purposes of this Act, an offence of a sexual nature means any of the following offences:

…

(c) an offence under Division 15 or 15A of Part 3 of the Crimes Act 1900 …”

  1. As noted, two of the index offences (counts 1 and 7) were contrary to s 61K of the Crimes Act, thus coming within s 5(1)(a1) of the Act. Five of the index offences (counts 2 to 6) were contrary to s 61J(1) of the Crimes Act. That section is within Pt 3, Div 10 of the Crimes Act, thus satisfying s 5(1)(a)(ii) of the Act.

  2. In relation to s 5B(b) of the Act, the term “supervised offender” is defined in s 5I of the Act, which provides as follows:

“5I   Application for extended supervision order

(1)   An application for an extended supervision order may be made only in respect of a supervised offender.

(2)   A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender’s current custody or supervision)—

(a)   while serving a sentence of imprisonment—

(i)   … or

(b)   under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.

(3)   A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole.”

  1. At the time the summons was filed, the defendant was on parole and thus a “supervised offender” for the purpose of s 5I of the Act, so that s 5B(b) was satisfied. As to s 5B(c) of the Act, the balance of s 5I was also satisfied.

  2. I return to consider s 5B(d) of the Act and note that the meaning of “a high degree of probability that the offender poses an unacceptable risk” is qualified by s 5D of the Act. That section provides as follows:

“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.”

  1. I note that, pursuant to s 5B 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 that section are satisfied.

  2. 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.

  3. Consequent upon other orders made by Button J at the time the ISO was imposed, reports were furnished to the Court by Dr Sathish Dayalan, forensic psychiatrist, dated 4 November 2022 and Dr Chelsey Dewson, forensic psychologist, dated 7 November 2022. Accordingly, there was compliance with the latter requirement set out in s 6(3)(b) of the Act.

  4. The Act stipulates objects and a paramount consideration to be taken into account when determining an application for an ESO. They are 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.

…

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.

(2A)   (Repealed)

(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.

(4)   In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).”

Section 9(3) of the Act: forensic reports and evidence

  1. The two reports that were prepared pursuant to s 7(4) of the Act, in my view, were relevant to all matters identified in s 9(3), except for ss 9(3)(g), (h) and (h1), being matters that I referred to earlier in this judgment.

Report of Dr Chelsey Dewson, forensic psychologist

  1. Dr Dewson examined the defendant on 25 October 2022. She took a personal history, noting that she interpreted the information disclosed by him with a degree of caution. This was because there were several inconsistencies within his accounts and with official documentation which might have been the result of his mental health history (and periods of psychosis) or alternatively because of a tendency, noted in prior reports, to present in an overly positive manner. A further alternative explanation was that the contradictions were the result of an exercise in self-enhancing deception.

  2. Dr Dewson noted some concerns held by the therapists who conducted the HISOP, including the following passages from a HISOP addendum report dated 4 June 2020:

“Throughout the course of treatment, [the defendant] had some difficulty in recognizing these issues (relating to his risk factors) due to a tendency to focus on positive events and feelings ... [The defendant’s] insight into his offending increased through completion of later treatment assignments, but he will likely require ongoing assistance to effectively address these issues in the community.

…

The most salient risk areas are sexual self-regulation (sexual preoccupation, sex as coping, deviant sexual interests), intimacy deficits (loneliness, poor capacity for relationships stability, hostility towards women, lack of concern for others), poor cooperation with supervision, and general self-regulation (poor problem solving, negative emotionality). In order for [the defendant’s] risk of recidivism to be managed successfully upon release, he will need to address the dynamic risk factors outlined above.”

  1. Consequent to these observations, it was recommended that the defendant engage in maintenance therapy in the community by attending Forensic Psychology Services (“FPS”), which he did willingly. Dr Dewson referred to recent case notes that suggest that the defendant has engaged in “positive impression management” and provided inconsistent histories to therapists concerning the nature of his offending and the length of his current relationship.

  2. Dr Dewson referred to concerns by the defendant’s therapists about the defendant’s relationship with Wendy regarding the speed with which it had progressed, potential controlling behaviours, a power imbalance and that the defendant had unrealistic views, such as that “they may miscommunicate but will never argue”. Dr Dewson considered that this attitude potentially reflected insight deficits by the defendant.

  3. Dr Dewson recited a passage from a HISOP report dated 9 March 2020 concerning the defendant’s account of the development of his sexual desires in the 12 months prior to the index offences, which was to the effect that he engaged in multiple extra-marital sexual encounters in which he would be dominant with a range of women, consequent to “feelings of loneliness and inadequacy from his marriage”. These activities were considered to be sadomasochistic in nature, intensifying his interest in sexual sadism. He devalued the women involved and introduced more violent elements such as toy knives and guns. He “also began to experiment with recreational drug use” during that period. In the three months prior to the index offences, his behaviour escalated to include non-consensual aspects to his activities with sex workers. Eventually he wanted “the real thing”.

  4. The defendant informed Dr Dewson that he believed he had been seeking “revenge” for what had occurred in his childhood in the Philippines. He no longer believed he was motivated by sadomasochistic interests and denied any recent deviant sexual arousal, stating that had “changed” after entering prison.

  5. Dr Dewson noted that the defendant gave a similar explanation to his FPS psychologist in July 2022. In that account, he added that the details of one of his offences involving a 17-year-old complainant were incorrect, stating that he had met her at a party rather than on the street, and that he had sexually assaulted her in his hotel room. Dr Dewson advised:

“Given the inconsistent information provided, it remains possible that he has presented a perceivably favourable account of his sexual interests and sexual activity. Regardless, given the nature of his past interests, this likely remains an area requiring ongoing external monitoring and support.”

  1. Dr Dewson took a history from the defendant in relation to his drug and alcohol use. He denied any problematic use of alcohol and said that his only drug use was when he was a teenager in the Philippines; he experimented twice with cannabis and once each with amphetamines and methamphetamines. Dr Dewson noted that history was inconsistent with the HISOP history noted at [41], above. However, the use of drugs did not appear to have been prominent in terms of his offending behaviour and there was no indication of illicit drug use in custody, only of prescription medication in 2013. As well, he had completed a substance abuse course in custody. Dr Dewson concluded there was no need for additional drug and alcohol intervention.

  2. There were also conflicts in the defendant’s account of his military service. He had claimed that he suffered from post-traumatic stress disorder (“PTSD”), on occasions attributing it to his military experience and wartime trauma. However, in his interview with Dr Dewson, he denied having been operationally deployed or being exposed to any associated traumatic events, and instead attributed it to his history of childhood sexual assault.

  3. As to Dr Dewson’s assessment of the defendant’s level of risk of committing a serious offence, she noted that he had previously been assessed utilising the following psychological tests and with the following results. In 2021, he was tested as to general offending with the Level of Service Inventory – Revised, or LSI-R, which returned a “Low-medium” result. In 2020, he was tested as to sexual offending with the Static-99R, with an “Average risk” result, and the Stable-2007, with a “High” result. In 2022, he was tested as to violent offending with the Violence Risk Appraisal Guide – Revised, or VRAG-R, which returned a result of “Above 24%”, which was unexplained.

  4. Dr Dewson also administered certain tests. The Level of Services/Case Management Inventory, or LS/CMI, tests for general recidivism, indicated that he had a “moderate risk”. In order to assess static features of the defendant’s profile, Dr Dewson administered the STATIC-2002R and the Static-99R, both of which scored him as having an “average risk” of being charged or convicted of another sexual offence within five years in the community. Dr Dewson explained that the defendant’s Static-99R score meant that out of 100 offenders, four to seven offenders with the same score as the defendant, allowing for the relevant margin for error, would be charged with a new sexual offence and, conversely, between 93 and 96 would not be so charged, within five years of being in the community. Dr Dewson noted that neither tool measured all relevant risk factors and have limitations that suggest their results should be considered with caution.

  5. Dr Dewson assessed dynamic risk features with the Risk for Sexual Violence Protocol, or RSVP, which reviews factors that have been empirically linked to sexual recidivism. These are the person’s sexual violence history, psychological and social adjustment, mental health and their manageability. Dr Dewson assessed the material in relation to each of these factors, noting negative and positive aspects.

  6. Overall, Dr Dewson assessed the defendant as having a moderate risk of general reoffending and an above average risk of sexual recidivistic behaviour. She noted past diagnoses of PTSD, schizophrenia and a paraphilic disorder, namely, “Sexual Sadism Disorder”. She considered that:

“On the basis of [the reports concerning the defendant], his childhood experiences impacted his developmental course and have had enduring impacts on his social and sexual functioning.”

  1. Dr Dewson made certain recommendations, including that the defendant should continue to engage with interventions specific to sex offenders, such as therapy through FPS to address issues pertaining to hypersexuality and attitudes towards sex, coping and establishing healthy relationships. She also recommended that he engage with psychiatric intervention, including compliance with his medication regime and following treatment advice.

  2. Dr Dewson recommended an ESO for a period of two to three years. She noted the conditions proposed by the plaintiff, and advised:

“These conditions appear appropriate and necessary to manage [the defendant’s] risk in the community. In saying this, I recommended that the restrictive and intrusive nature of the ESO be periodically reassessed so that his intervention is commensurate with his behaviour and compliance with supervision. For example, if [the defendant] has demonstrated positive treatment compliance (i.e., genuine engagement, appropriate and accurate disclosures, willingness to discuss setbacks and high-risk situations, insight into his offending) and the absence of aberrant behaviour over a period of time, it is recommended that the restrictive conditions relating to this be progressively withdrawn. This will likely act as an incentive to engage in his treatment plan and to gradually promote autonomy within the community.

Dr Sathish Dayalan, forensic psychiatrist

  1. Dr Dayalan assessed the defendant on 16 May 2022. At that time, the defendant attended fortnightly sessions with the FPS psychologist to treat his offending behaviour and monthly sessions with a psychologist, who was funded through a Work and Development Order, to treat a post-traumatic stress disorder. Dr Dayalan stated:

“When asked about the diagnosis of PTSD, [the defendant] described having had nightmares related to the stabbing and assault incidents in gaol. He has learnt ‘grounding techniques’ from his current psychologist and found the techniques helpful in reducing the distress associated with the nightmares.”

  1. The defendant admitted to Dr Dayalan he had experimented with crystal methamphetamine, amphetamine and cannabis on a couple of occasions in the twelve months period prior to his arrest, claiming that his then sexual partner (who was not his wife) had encouraged him to use the drugs and he had not enjoyed the effects.

  2. Dr Dayalan noted the defendant’s “well-established” diagnosis of schizophrenia which was characterised by:

“… persecutory and referential delusions, auditory and visual hallucinations and thought disorder. His psychiatric illness is also associated with affective symptoms such as elated mood, grandiose delusions and pressured speech. A differential diagnosis is schizoaffective disorder.”

  1. Dr Dayalan expressed concern that the defendant may have been hiding the extent to which he continued to experience psychotic symptoms:

“It is noted from documents reviewed that he has continued to present with psychotic symptoms whilst being treated with his current antipsychotic medication. He has presented with psychotic symptoms following his release into the community as evident from the progress notes of Forensic Psychology Services. His psychologist, Dr Siham has also identified paranoid ideations. In my opinion, [the defendant] can present as guarded during psychiatric assessments and may not disclose psychotic symptoms even if he continued to experience them. This is indicative of limited insight into his psychiatric condition.”

  1. Dr Dayalan found the defendant had a history that is consistent with a diagnosis of sexual sadism disorder, which has “a direct relationship” with his risk of sexual offending. It is not yet in remission, since that is only established when the individual has not acted on those urges, or expressed distress or impairment in functioning, for a period of at least five years while in an uncontrolled environment. Dr Dayalan noted that there are also problems with identifying the traits of sexual sadism reliably, as individuals tend to under-report sexual sadism urges or fantasies.

  2. Dr Dayalan also noted the variations in the defendant’s account of symptoms and events provided to different professionals:

“He gives a history of nightmares and flashbacks related to his traumatic experiences. He had initially attributed these symptoms to childhood sexual abuse. His account of the sexual abuse has varied. Whilst in prison, he had claimed that these symptoms were related to his experiences in Iraq (considered to be a delusional belief). More recently these symptoms were reported to have been caused by the assaults in custody. The extent of symptoms reported at the time of assessment will not warrant a diagnosis of post-traumatic stress disorder as he did not present with any features of increased levels of arousal. However, it is acknowledged that [the defendant] has had traumatic experiences whilst incarcerated and he experiences a high level of anxiety in relation to the prospects of being incarcerated in the future.”

  1. In his report, Dr Dayalan repeatedly expressed concern about the defendant’s lack of forthrightness as to his schizophrenic symptoms, his “need to create a positive impression”, his lack of candour and the inconsistencies in his current and past accounts to professionals. Dr Dayalan’s ultimate assessment was that the defendant posed a risk of committing a serious offence as defined in the Act. He accepted that the defendant’s unreliability as a historian may be partly due to his extreme anxiety about being returned to a custodial environment and/or being initiated on medications that adversely affect him.

  2. In order to determine the defendant’s level of risk of sexual reoffending, Dr Dayalan deployed the Static-99-Revised and the Stable 2007. As to his risk of violent re-offending, Dr Dayalan used the Historical Clinical and Risk Management – 20 Version 3 (HCR-20 V3). The defendant’s score on the Static-99-Revised placed him in the “average risk level” and the dynamic risk factors identified in the Stable 2007 resulted in an assessment of him having a “high level of stable dynamic risk and needs”. Dr Dayalan utilised the HCR-20 V3 to identify historical and clinical factors and risk management variables in arriving at his overall assessment of the defendant’s level of risk.

  3. Dr Dayalan was of the opinion that the level of risk was variable, depending upon the defendant’s circumstances generally, and more particularly the state of his relationship, his mental health, psychosocial stresses, access to materials depicting sexual sadism and the extent of his compliance with treatment and supervision.

  4. Dr Dayalan recommended on-going psychiatric care:

“Given his guarded presentation and suspected residual symptoms, it is recommended that [the defendant] receive input from a psychiatrist, either privately or through a community mental health team to monitor his mental state and treatment response. It is acknowledged that there could be practical challenges to both options. He will need ongoing treatment with depot antipsychotic medication. Further education regarding his psychiatric condition may assist with improving insight and managing his residual symptoms.”

  1. Dr Dayalan also recommended that if there was evidence of the defendant re-engaging in sexual sadism, there should be “a low threshold” to commencing anti-libidinal medication.

  2. Dr Dayalan was of the view that there was a high likelihood of the defendant becoming non-compliant with treatment unless his engagement was mandated by a legal order, but that an ESO for a period of two to three years would suffice.

  3. Dr Dayalan noted that the defendant had not breached his parole conditions, which included electronic monitoring and weekly scheduling of his anticipated movements, and that he “does not present as an individual who requires intense close supervision or monitoring to ensure that he does not breach the conditions”. Dr Dayalan continued:

“The requirements such as electronic monitoring and schedule of movements can impede his attempts to rehabilitate into the community. He was noticeably anxious when my interview continued for longer than the expected duration. He appeared distracted in the later part of the assessment and was noted to be tremulous when making the phone call to advise that he was running late. He understandably has a high level of anxiety about inadvertently breaching the conditions and being incarcerated again. He may opt to avoid activities that would aid in his rehabilitation if such activities do not have a predictable time frame. Electronic monitoring and schedule of movements will also interfere with his employment options.

Extensive set of restrictions, especially when not warranted, limits opportunities for the individual to develop adequate internal resources to manage their risk of reoffending. I am of the view that in a general sense the conditions listed in the summons are more restrictive than what may be required to manage [the defendant’s] risk of committing a serious offence especially given that he has been in the community for a reasonable length of time.”

Other forensic reports

Dr Jeremy O’Dea, forensic psychiatrist

  1. The material tendered by the plaintiff included the report by Dr Jeremy O’Dea, that was tendered at the sentence hearing before Ellis DCJ in 2006. Unsurprisingly, Dr O’Dea did not diagnose the defendant as suffering from schizophrenia, since his report pre-dated the incidents that led to the defendant becoming psychotic. I note, however, that Dr O’Dea did diagnose the defendant as satisfying the diagnostic criteria for sexual sadism.

A Risk Assessment Report

  1. A Risk Assessment Report dated 17 February 2022 was prepared by psychologist Dr Richard Parker, who referred to the results of earlier assessments of the defendant’s level of risk of committing a serious offence, involving the LSI-R, the Static-99R, the Stable 2007 and the Violence Risk Appraisal Guide-Revised (VRAG-R). The results of the LSI-R, which was administered on 30 June 2021, indicated a “low/medium” level of risk of the defendant committing a sexual offence. The Static-99R, which was administered on 9 March 2020, indicated an “average” level of risk of sexual recidivism. The Stable 2007, which was administered on the same date, returned an assessment of a “high” level of risk of sexual re-offending. Dr Parker noted that by combining the results of the Static-99R and the Stable-2007, an overall risk level of the defendant committing a sexual offence was determined to be “above average”.

  2. Dr Parker scored the defendant on the VRAG-R on 31 January 2022. The defendant’s score was such that 12 per cent of offenders with a similar score reoffended violently within five years, and 24 per cent within 12 years.

  3. Dr Parker identified the defendant’s criminogenic needs as addressing poor cognitive problem-solving skills, deviant sexual interests, his attitudes towards offending, his lack of intimacy and social supports (I note that the development of the defendant’s current relationship may have gone some of the way to addressing the intimacy issue).

  4. Dr Parker considered that a likely risk scenario is as follows:

“… the most likely scenario is a return to a submissive lifestyle where his needs are unmet and he feels incapable of standing up for himself. If he is in a relationship, he would feel dominated and unsatisfied within that relationship. If he is not in a relationship, he would crave someone to dominate. He would likely have a rich fantasy life and would probably access pornographic material which contained themes of domination. Eventually this fantasy would prove unsatisfying and he would consider trying to access a victim – however the time and place of such an attack would largely be a matter of convenience.”

Section 9(3)(d1) of the Act

A Risk Management Report

  1. A Risk Management Report dated 19 May 2022 recommended that the defendant be subject to a weekly schedule of movements, place and travel restrictions, non-association conditions, an evening curfew, electronic monitoring, exclusion zones and multiple other conditions that are standard in such applications. The report was quite positive as to the defendant’s progress since his release from custody in May 2021:

“[The defendant] is subject to electronic monitoring and is required to submit a schedule of weekly movements. Contact with his Community Corrections Officer (CCO) indicated that he has been progressing positively whilst on parole and that he is compliant with all his supervision expectations. He attends his appointments and phone interviews with Community Corrections on time and his response to supervision is satisfactory.

… Since [the defendant’s] release from custody he has been engaging in individual risk management sessions on a fortnightly basis. Contact with [the defendant’s] treating psychologist has indicated that he will commence maintenance groups on 3 March 2022. [The defendant’s] treating psychologist advised that he engages well and is open and forthcoming with information.

… Since his release from custody [the defendant] has been compliant with his mental health medication and receives a fortnightly depot injection.

“… [the defendant’s] response to supervision is considered satisfactory. [The defendant] has been compliant with his parole supervision requirements, his mental health requirements and the [Child Protection Register]. He engages well during his interviews with his CCO and contributes to meaningful discussions around behaviour change and his risk factors. He appears to be able to demonstrate insight into his offending behaviour.”

  1. The report noted that the defendant’s risk is assessed as “high”. The source of that assessment was not stated and it is not apparent, since the only material identified in the report involving a formal risk assessment was the Risk Assessment Report. Nor does the report reconcile the positive progress and current situation of the defendant with the tough conditions that it proposes.

Affidavit of Kelli Grabham

  1. The material tendered by the plaintiff included an affidavit of Kelli Grabham, affirmed 9 December 2022, who is a governance officer with the High Risk Offender team within Corrective Services NSW. The defendant expressed reservations as to Ms Grabham’s expertise for some of her opinions that are expressed in the affidavit. Due to ill health, she was not available for cross-examination. The defendant did not oppose the affidavit being read on the application, subject to submissions that were made as to the appropriate level of weight to be attributed to it. The plaintiff noted that Ms Grabham has not met or communicated with the defendant.

  2. Ms Grabham explained the mechanics of ESO supervision, monitoring and the preparation and purpose of a movements schedule. She noted that the defendant is presently at stage 2 of the monitoring scheme, meaning he had progressed from stage 1 and had two further stages to go before his monitoring would cease. Although his progress has been satisfactory, the provision of a weekly schedule of movements would not cease until he graduated to stage 3. Electronic monitoring would continue to apply throughout stage 3 and thereafter is usually “relaxed over time”.

Consideration of the application

  1. In considering the evidence pertaining to the determination to be made pursuant to s 5B(d) of the Act, I took into account that the defendant served his long sentence of imprisonment with no significant disciplinary charges, he completed programs that enhanced his prospects of remaining outside the criminal justice system and his progress in the community is very encouraging. I also note the level of risk that has been determined by the application of psychological tools of assessment is lower than is often the case in such applications considered by this Court.

  2. On the other hand, the number and seriousness of the index offences, the relevant diagnosis of a sexual sadism disorder that underlies those offences, the fact that it is not yet in remission having regard to the period of time that the defendant has been back in the community (less than five years) and the defendant’s repeated failure to be open and consistent in the course of assessments and treatment, lead me to conclude, to a high degree of probability, that any reoffending of a similar nature would be extremely serious and the level of that risk is unacceptable.

  3. Accordingly, I was satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision by way of an ESO. In so finding, I determined not to exercise the statutory discretion in favour of the defendant, there being no apparent reason on the evidence to do so and no submission having been made that such a determination should be made.

  4. As noted, the defendant did not oppose the making of an ESO. The defendant submits that an ESO for a period of 12 months would suffice to meet the reasonable needs of the level of risk that is accepted. I concluded that the term of the ESO should be a period of two years, having regard to the opinions of the two forensic experts that were appointed by preliminary orders.

Proposed conditions of the ESO

Electronic monitoring and scheduling

  1. As noted, the defendant has been subject to conditions of electronic monitoring and scheduling of his planned weekly movements since he was released to parole on 25 May 2021, which was, at the time of the hearing, a period of over 18 months. The plaintiff proposed that the defendant continue to be subject to both obligations.

  2. As noted, both forensic experts had expressed concern, to differing degrees, with the maintenance of conditions of restraint in the face of the defendant’s compliance with such conditions over a significant period in the community. Dr Dayalan was particularly focussed on electronic monitoring and scheduling in that regard, making the point that, if they are retained unnecessarily, they could work against the defendant’s rehabilitation. Both forensic experts have identified treatment and therapy as the outstanding issues with the defendant, not close monitoring of his physical movements.

  3. I concluded that 18 months had been a sufficiently lengthy period to be subject to such conditions without a breach of conditions generally and drafted a condition that would oblige him to maintain electronic monitoring for a further month. Thereafter, it may be reintroduced if he is charged with an offence of breaching the ESO, failing to comply with scheduling conditions or ceasing to take medication that is prescribed to treat his schizophrenia.

  4. The proposed scheduling condition was re-drafted to require an abbreviated form of scheduling in terms that underscore that it is a condition that is only to be activated if warranted, and to allow post-schedule notification where it was not reasonably possible to avoid non-compliance. The rationale for that modification is that it reduces stress on the part of the defendant if, for example, he misses a public transport connection.

Drug and alcohol testing and treatment

  1. The plaintiff proposed conditions that would require the defendant to submit to drug and alcohol testing and participation in programs that address his use of those substances. There is no evidence that the defendant ever had an alcohol abuse issue or that he has used prohibited drugs since his arrest. I have redrafted the proposed conditions to oblige him to submit to drug testing and to engage in drug rehabilitation treatment if he returns a positive test.

Search and seizure conditions

  1. The defendant submitted that conditions obliging him to submit to the search of any item in his possession or placed under his control, or any electronic or communication device, the seizure of such an item and a prohibition on destroying or interfering with any object that is the subject of such a search or seizure, were an unwarranted intrusion into his privacy.

  2. I am satisfied that there is a need for such conditions, in light of the evidence that the defendant is often reserved with his therapists and Corrective Services staff as to his thoughts, recollections and emotions concerning his mental health, sexual matters and past offending behaviour.

Orders

  1. The following orders were made on 16 December 2022:

  1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) order that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of 2 years from the date of this order;

  2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the attached Schedule;

  3. 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;

  4. Reasons to be published at a date to be advised.

Recommendation

I request the plaintiff convey to the relevant authorities the Court’s concern that the defendant does not presently have available to him the services of a treating psychiatrist to monitor his medication and treatment in respect of his diagnosis of schizophrenia and the Court’s recommendation that one be made available to him as soon as is reasonably possible.

**********

Conditions of Supervision Kerubee Kalaw (120920, pdf)

Decision last updated: 23 February 2023

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

2