State of New South Wales v Kevin Newton (Final)

[2022] NSWSC 634

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Kevin Newton (Final) [2022] NSWSC 634

Hearing dates:

12 May 2022

Date of orders:

20 May 2022

Decision date:

20 May 2022

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Pursuant to ss 5B9(1)(a) and 25B of the Crimes (High Risk Offenders) Act 2006, the defendant be subject to an Extended Supervision Order ("the Extended Supervision Order") commencing 20 May 2022 and expiring 5 years after its commencement; and

(2) Section 11 of the Crimes (High Risk Offenders) Act 2006, the Court directs the defendant, for the period of the Extended Supervision Order, to comply with the conditions set out in the Schedule to this order;

(3)   Access to the court's file for any document shall not be granted to a non-party without leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Catchwords:

HIGH RISK OFFENDERS – Extended Supervision Order – unacceptable risk – intellectual disability – simple English conditions – duration – requirement that direction for therapy can reasonably be afforded by defendant.

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Criminal Code Act 1995 (Commonwealth)

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Kevin John Newton (Defendant)

Representation:

Counsel:
M. Dalla-Pozza (Plaintiff)
K. Stares (Defendant)

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

File Number(s):

2021/355364

Judgment

1. HIS HONOUR: By summons filed 14 December 2021, the State of New South Wales (hereinafter "the State") applies for an Extended Supervision Order (hereinafter “ESO”), binding upon the defendant, Kevin John Newton.

2. The summons seeks interlocutory orders, being the issuing of an Interim Supervision Order (hereinafter "ISO"), the appointment of two qualified psychiatrists and/or registered psychologists to examine the defendant and report to the Court and ancillary orders, including orders under s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter "the Act") binding upon the defendant.

3. An ISO was issued, binding on the defendant, on 7 February 2022, with reasons for judgment issued on 22 February 2022. The ISO was extended twice; once by order dated 7 March 2022, and a second time by order dated 14 April 2022.

4. The Court, as presently constituted, is required to deal with the application for Final Orders. The term "Final Orders" is a misnomer; any order granting an ESO that may be issued by the Court has a maximum duration of 5 years and is capable of being renewed.

5. It should be noted that the original summons for relief also sought, primarily a Continuing Detention Order and the interlocutory or interim relief sought included both a Interim Detention Order and an ISO. As a consequence of the alternative applications, no issue arises, and no issue arose at the interlocutory stage, as to whether the Court had jurisdiction to issue an ISO.

6. Pursuant to the orders issued by the Court on 22 February 2022, the Court appointed one qualified psychiatrist and one registered psychologist to conduct separate examinations of the defendant. The ISO was renewed by the Court on 17 March 2022, commencing 23 March 2022, and was again renewed on 19 April 2022 for a period of 28 days, commencing 20 April 2022, and expired on 16 May 2022. The Court, as presently constituted, granted an extension of the ISO at hearing on 12 May 2022, pending the release of the judgment on the ESO. The ISO will expire on 23 May 2022, being the conclusion of the three-month maximum period for which any defendant may be governed by one or more Interim Supervision Orders. Pursuant to the orders issued, the two court appointed experts examined the defendant and the Court has the report of Dr Christina Matthews, dated 12 April 2022 and of Emeritus Professor Susan Hayes, dated 8 April 2022.

Factual history

7. The defendant is a 36-year-old man who has a history of childhood sexual, emotional and physical abuse. His upbringing was extremely turbulent and included the experience of his mother's mental illness. The defendant also suffered years of homelessness, from the age of 12, turning to prostitution to support himself from the age of 14. Unsurprisingly, given that history, the defendant's criminal history begins at the age of 15 and is accompanied by an extensive juvenile offending history.

8. The reports that are before the Court, which will be dealt with in more detail later in these reasons, disclose that the defendant is of average or low average intelligence; has a relatively minor history of substance abuse; and, a lengthy history of self-harming behaviour, in which he continues to engage on a weekly basis.

9. As a result of his offending, the defendant has spent little time in the community as an adult. On previous occasions, it was suggested that the applicant had a Cluster B Personality Disorder.

Index offences

10. On 5 November 2018, the defendant was convicted of, and sentenced for, an offence of using a carriage service to procure a person under 16 for sexual activity. This offence is a contravention of s 474.26(1) of the Criminal Code Act 1995 (Commonwealth) (hereinafter "the Criminal Code"). The defendant was charged with that offence in August 2017.

11. The defendant was sentenced by his Honour Judge Norton to a term of imprisonment of 3 years and 9 months, commencing 24 May 2018, with a non-parole period of 2 years and 9 months. The sentence expired on 23 February 2022.

12. The circumstances of the offending were that the defendant was contacted by a police officer, who had assumed the identity of a 14-year-old boy. The undercover police officer asked the defendant for advice relating to having sex with older men. The defendant provided his phone number and a false name and represented that he would be interested in exchanging money for sex. The defendant arranged to meet the boy, where he was arrested upon arrival to the meeting place. The defendant admitted to police that he had a sexual interest in boys aged 14 years and over.

Prior offending

13. Prior to the index offences, the applicant had been found guilty, after a plea, to three counts of sexual intercourse with a child 14-16 years of age. Those offences involved two separate victims and occurred in September 2008.

14. The defendant, then being 25 years of age, and the first victim (aged 14 years) engaged in mutual oral sex twice, and the victim performed oral sex on the defendant on the further occasion. The defendant forced the second victim (aged 15) to place his hand on the defendant's erect penis, over his clothes, then held the victim down and performed penile-anal intercourse on the victim. The defendant further forced the victim to masturbate him. The victim protested, but the defendant warned him to be quiet or he would kill him.

15. On 10 November 2009, the defendant was sentenced for these offences to a term of imprisonment of 11 years and 6 months, commencing 9 November 2009 and concluding 8 May 2020. That period of imprisonment included a non-parole period of 7 years and 6 months which concluded on 8 May 2016.

Technical jurisdictional preconditions

16. The provisions of s 5B of the Act prescribe timing and other technical preconditions to the making of an ESO. That which I have included in the term "technical" as preconditions are the requirements that an offender must, at the time of the application, be serving a sentence of imprisonment for a serious offence. The term serving a sentence includes being in custody or under supervision in the community. Further, the person must be a supervised offender, within the meaning of s 5I of the Act, and the application for the ESO must be made in accordance with the provisions of s 5I of the Act.

17. Section 5I of the Act defines a supervised offender as an offender who, when the application for the order is made, is in custody or under supervision, relevantly, for a serious offence or an offence of a sexual nature. The defendant satisfies both of those criteria.

18. Further, an application may not be made until the last 9 months of an offender's current custody or supervision. The date of the summons was 14 December 2021, which was less than 9 months prior to the conclusion of the sentence that was then being served.

19. Over and above the foregoing, the application for an order must be supported by documentation that addresses each of the matters in s 9(3) of the Act. No objection is taken by the defendant to the satisfaction by the State of each of the “technical" criteria. Notwithstanding that consent, which provides the Court with some comfort, the Court must satisfy itself of the procedural requirements.

20. As is clear from the foregoing short outline of facts, the Court, at the time that the ISO first issued on 7 February 2022, was dealing with a defendant who had been sentenced to a term of imprisonment that expired on 23 February 2022, being a sentence for a serious offence, as defined, and which serious offence is an offence of a sexual nature.

21. The last aspect of the requirements of s 5B of the Act is that the Court must be satisfied “to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order". [1]

    1. Crimes (High Risk Offenders) Act 2006 (NSW), s 5B(d).

22. In reaching a level of satisfaction to a high degree of probability that the offender poses an unacceptable risk of such kind, the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not. [2]

    2. Crimes (High Risk Offenders) Act 2006 (NSW), s 5D.

23. As has been stated on a number of occasions, the concept of "unacceptable risk" is not a term defined in the Act. It is assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk will continue or may continue. [3]

    3. Lynn v State of New South Wales [2016] NSWCA 57 at [49]-[61] (Beazley P) and [126] (Basten JA).

24. The Court is required to find to a high degree of probability, the existence of the unacceptable risk to which reference has been made. In describing the onus as being to a high degree of probability, the Legislature has required the Court to determine that the degree of likelihood is beyond that which would render it simply more probable than not, but not to the level of criminal onus, being beyond reasonable doubt. [4]

    4. Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

25. As the Court has stated on a number of occasions, the assessment of unacceptable risk involves a matrix of considerations. It involves, first, an assessment that there is a real likelihood - being something more than a mere possibility and more than insignificant - that a serious offence will be committed. Secondly, it involves an assessment of the damage that would be caused, if the serious offence were committed.

26. As is obvious from the terms of s 5D of the Act, the Court is not required to determine to a high degree of probability that an offence will be committed. Once the Court comes to an assessment that there is a real possibility of the commission of a serious offence, the Court assesses whether that possibility, together with the effect of the commission of such an offence, poses an unacceptable risk to the community.

27. The defendant, it is relevant to note, does not oppose the making of an ESO. There are issues between the State and the defendant as to the terms of the conditions, but, after some productive discussion between the parties, those differences were narrowed to one definition or condition. There is also a difference between the parties as to the duration of any ESO.

Expert reports

28. Because of the level of agreement between the parties, the Court may be significantly briefer than might otherwise have been necessitated. The expert report of Emeritus Professor Hayes sets out the defendant's family and social history. The report notes its abusive and destructive nature.

29. Professor Hayes noted in her report that symptoms of Reactive Attachment Disorder ("RAD") appear to have been present during the defendant's childhood. This, according to the Professor, is consistent with the defendant's self-report of a previous diagnosis.

30. Professor Hayes administered the Violence Risk Appraisal Guide (VRAG-R) to gauge the defendant's risk of recidivism. The defendant returned a score that was equal to or higher than 94% of the construction sample, placing him in the ninth of nine categories. It is an extremely high score.

31. As part of the examination process, Professor Hayes also administered the Assessment of Risk and Manageability of Individuals with Developmental and Intellectual Limitations who Offend-Sexually ("the ARMIDILO-S”). The opinions expressed by Professor Hayes, after taking into account the ARMIDILO-S scores and defendant’s responses, involve the following categories: stable client items; stable environment items; acute client items; and, acute client environment items.

32. The STATIC-99R instrument was also administered and the defendant returned a score, placing him within the well above average range. A combination of the STATIC-99R and ARMIDILO-S tests yields a convergent risk estimate of "moderate". The opinion expressed by Professor Hayes was that this would increase to "high" in a less highly supervised or structured environment.

33. A number of times, Professor Hayes noted the negative reaction the defendant had towards his supervising team and his lack of understanding of their actions as being in support of his stated goals of self-improvement, especially with regard to his non-association orders.

34. Professor Hayes made the following assessments as to the diagnosis of the defendant. First, the professor noted that the defendant met the diagnostic criteria for Borderline Personality Disorder ("BPD") and for RAD. Each of those conditions are, in the opinion of the Professor, chronic.

35. Further, the Professor assessed the defendant’s functional age to be 16 years and 6 months. However, the Professor was of the opinion that the defendant does not meet the diagnostic criteria for an intellectual disability, despite noting significant deficits in his adaptive behaviours which place him at the lower end of the range of mild intellectual impairment. Of particular note, given the disagreement that initially occurred between the parties, Professor Hayes noted the need to provide information to the defendant in plain English with pictures or diagrams and to repeat instructions many times.

36. The Professor was also of the opinion that the defendant posed a risk of committing further serious sex offences. Professor Hayes noted specifically that the defendant's previous poor engagement with rehabilitation and treatment programs meant that such programs have had little effect on his recidivism. Professor Hayes noted that a reduction in the defendant's compliance with supervision or treatment will increase the risk of reoffending.

37. Professor Hayes identified factors that could reduce the defendant's level of risk. Those factors primarily centred on high levels of supervision and treatment programs. The Professor expressed the opinion that the ESO is suitable to provide the necessary structure, supervision and support to help the defendant abstain from re-offending.

38. The report of Dr Christina Matthews, as earlier stated, was compiled on 12 April 2022. Dr Matthews reported that the defendant's attitude towards his supervision was somewhat negative. This related to the defendant's difficulties experienced with his non-contact and non-association orders and his supervising officer. Generally, the defendant considered that an ESO was not necessary.

39. As to the diagnostic criteria, Dr Matthews concluded that the defendant does not meet the criteria for a major mental illness. However, the defendant does meet the criteria for BPD and also the criteria for a Paedophilic Disorder. Dr Matthews could not detect the presence of any other Paraphilic Disorder.

40. The report of Dr Matthews also noted that the score of the defendant, being nine, in the STATIC-99R test places the defendant in the well above average risk category. He was in the 99.9 percentile relative to other adult male sex offenders, which was consistent with typical high-risk offenders.

41. Dr Matthews also utilised the structured professional judgement tool known as Risk of Sexual Violence Protocol ("RSVP") and observed, as a result of the application of that tool, that the defendant minimises his past sexual offending and displays minimal self-awareness. The defendant also demonstrates negative attitudes towards his supervision and has a long-term history of lack of treatment responsiveness and compliance.

42. Dr Matthews expressed the opinion that the defendant presents with a high number of risk factors for future sexual violence and that he is at a higher risk compared to the typical sex offender. Dr Matthews made a number of comments as to the conditions to be attached to the ESO.

43. The Court has also had regard to a Risk Assessment Report, compiled by Richard Parker on 9 November 2021; a Risk Management Report of Community Corrections, authored by Mr Nick Glover and Ms Kelli Graham. The Court has also read and considered the 2016 and 2022 HISOP Treatment reports. These reports were available and considered by the Court in issuing the ISO.

Consideration

44. It is unnecessary to detail the submissions of each of the plaintiff and the defendant. It is sufficient to note that the difference between them is that the defendant resists a 5-year duration of the ESO and submits that a 3-year duration is sufficient.

45. The basis for that submission is the comment in the report of Dr Matthews that she has assumed that 3 years will be sufficient to enable the treatment plan she has proposed to take effect. The plaintiff submits that the evidence demonstrated that the view of Dr Matthews was optimistic and noted that Professor Hayes considered the defendant's intellectual functioning more fully and came to the view that a 5-year duration was appropriate.

46. The other aspect of the condition was the issue of the plain English conditions compared with the “usual" conditions for which the State initially argued. The parties are to be congratulated that they have arrived at conditions, with one exception, that are in "plain English".

47. The level of intellectual disability and functioning of the defendant is, notwithstanding some of the comments earlier made, quite considerable. As Professor Hayes noted, it is necessary, in order for the defendant to understand the conditions under which he is to operate, that those conditions are prescribed in a manner that is at a level of literacy of very early high school, and the requirements of the conditions need to be repeated for the defendant to understand them and abide by them.

48. During the course of oral evidence, Professor Hayes made it clear that the level of intellectual functioning of the defendant is such that the defendant will not understand complex tasks and will only understand a direction that involves a single, simple concept. The best example used by the Professor was that the defendant would not understand a direction to put on his trousers, shoes and socks, but would understand a concept that he should "get dressed", because he would have understood, through learned procedures, that getting dressed involved putting on his trousers, shoes and socks.

49. I accept the evidence of Professor Hayes that the defendant does not give a manifest indication of intellectual disability but has low average cognitive reasoning ability. Further, while his verbal reasoning ability is scored at equivalent to 16 years and 6 months, his receptive language equivalence is 4 years and 4 months and his expressive language equivalent is 4 years and 10 months. This renders it extremely difficult for the defendant to comprehend information that is given to him and to understand instructions, particularly that which is complex. The defendant is able to learn behaviours, but such learned behaviours, particularly given his early childhood and dysfunctional history, will take some significant time.

44. I adhere to the view, expressed during the course of the proceedings with each of the counsel, that the 3 year duration considered by Dr Matthews to be sufficient to enable the treatment plan to take effect (apart from the level of optimism to which the State has pointed) is the minimum period required before the proposed plan would have taken effect. There would then be a period necessary for the purpose of assessing the defendant after the plan had become efficacious. On that basis, the difference between the opinion expressed by Dr Matthews and the opinion expressed by Professor Hayes may be illusory.

45. I also accept the submission that, while it is important for an order of this kind not to be "crushing", it is also important, in that respect, for the defendant to be optimistic that, at the conclusion of the current order, it is unlikely that a further order may be sought.

46. Overall, it is the safety of the community that is the paramount consideration. I accept that it would take 3 years to implement the plan suggested by Dr Matthews, but I also accept that it would take a longer period for the defendant to learn behaviours that would reduce the risk significantly.

47. In the circumstances, I conclude that a 5-year duration is necessary for the purpose of controlling the unacceptable risk that I consider has been disclosed. I make clear that, on the basis of the reports and risk assessments, there is a real risk that the defendant will, in the next 5 years commit a serious offence and a sexual offence. Taking into account the harm that would be done were such a risk to manifest, the Court is satisfied that the defendant poses an unacceptable risk for the next 5 years. The foregoing finding reflects the Court’s satisfaction to a high degree of probability.

48. The only other aspect, given the agreement on the plain English conditions, relates to the operation of the Condition 60. Condition 60 in its agreed form now reads:

"Condition 60: I must go to all general practitioner or mental health therapy appointments that a DSO directs me to."

55. The foregoing condition is agreed. The defendant suggests a “definition". Definition it is not an accurate description of that which is proposed. Rather, that which is proposed is a qualification on the capacity of the DSO to direct.

56. The qualification prohibits a direction in circumstances where the general practitioner or mental health therapy appointments are not fully met by Medicare or by some other Commonwealth or State funding. The terms of the proposed “definition" are as follows:

"Condition 60: The defendant is not required to comply with any such direction if the whole cost of the psychological or psychiatric assessments, therapy, support and treatment is not met by Medicare or by other Commonwealth or State funding."

57. This raises issues of some substance. I accept that the DSO will not, generally, act unreasonably and will take into account that the defendant, who has little or no assets or resources, may not be able to afford therapy sessions or appointments to which he might otherwise be directed. Nevertheless, the State submits that such a qualification would unduly restrict the capacity of the DSO to direct the defendant to appropriate therapy.

58. In particular, the therapy suggested for the defendant is a therapy known as Dialectical Behavioural Therapy ("DBT"). This is a form of psychodynamic psychotherapy that deals with internal conflicts and is particularly designed for people with personality disorders, particularly those with borderline personality disorder. It is not available through all therapists. This may require expenditure which the defendant cannot afford.

59. The State submits that any DSO would reasonably bear in mind, and be informed by, the capacity of the defendant to afford the service to which the defendant is directed. I accept that.

60. Nevertheless, if the defendant could not afford that which the DSO thought he could, and failed to attend the appointment, the defendant would be liable for a criminal prosecution. I note that the “Condition 60 Definition" seems not to apply to a general practitioner, which I have assumed, as I raised with the parties, would be a practitioner or medical centre chosen by the defendant and, presumably, one that bulk bills. Poor defendants are entitled to be considered and it is inappropriate for the Court to impose a condition, breach of which would, in effect, render the defendant liable for a criminal prosecution simply because the defendant cannot afford to comply with the direction.

61. Nevertheless, it seems to me that the term as crafted by the defendant is too strict. The definition in relation to Condition 60 will read in the following terms:

"Condition 60: The DSO may not direct the defendant to attend a general practitioner, other than the general practitioner chosen by him or the medical centre usually utilised by the defendant. Further, the DSO must, in relation to any other direction under this condition, ensure that the defendant can reasonably afford any such service."

62. The Court makes the following orders:

1. Pursuant to ss 5B9(1)(a) and 25B of the Crimes (High Risk Offenders) Act 2006, the defendant be subject to an Extended Supervision Order ("the Extended Supervision Order") commencing 20 May 2022 and expiring 5 years after its commencement; and

2. Section 11 of the Crimes (High Risk Offenders) Act 2006, the Court directs the defendant, for the period of the Extended Supervision Order, to comply with the conditions set out in the Schedule to this order;

3. Access to the court's file for any document shall not be granted to a non-party without leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

220520 - FINAL - Schedule of Conditions - Kevin Newton (387663, pdf)

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Endnotes

Amendments

20 May 2022 - Typographical error

Decision last updated: 25 May 2022