State of New South Wales v KML

[2019] NSWSC 756

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v KML [2019] NSWSC 756
Hearing dates:	19 June 2019
Date of orders:	19 June 2019
Decision date:	19 June 2019
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1) Order, pursuant to s 5B and s 9(1A) of the Crimes (High Risk Offenders) Act 2006, that the Defendant be subject to an Extended Supervision Order for a period of five years from today. (2) Order, pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006, that the Defendant comply, for the period of the Extended Supervision Order, with each of the conditions set out in schedule A to the amended summons dated 19 June 2019.
Catchwords:	HIGH RISK OFFENDER – serious sex offender - extended supervision order – where parties have agreed that an ESO should be made – where the term of the ESO is in dispute – whether the court should impose a 2 year or 5 year ESO – what test the court should apply to fix the term of an ESO – whether there is a statutory obligation to impose the minimum necessary term for an ESO to be in place
Legislation Cited:	Crimes (High Risk Offenders) Act 2006
Cases Cited:	Wilde v State of New South Wales [2015] NSWCA 28
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	State of New South Wales (P) KML (D)
Representation:	Counsel: D. New (P) R. Wilson (D)   Solicitors: Crown Solicitor’s Office (P) Legal Aid NSW (D)
File Number(s):	2019/30906
Publication restriction:	Not Applicable

EX TEMPORE Judgment

1. By an Amended Summons filed on 19 June 2019, the Plaintiff, the State of New South Wales, seeks orders against an individual Defendant to whom the pseudonym, KML, has been given. The orders sought are pursuant to the Crimes (High Risk Offenders) Act 2006 ("HRO Act") that KML be subject to an Extended Supervision Order ("ESO"), for a period of five years. The Plaintiff seeks that that ESO be subject to specified conditions.

Can an ESO be made?

2. The Defendant concedes that the Court has the power under s 5B of the HRO Act to impose an ESO and that each of the prerequisites set out in subsections (a) through to (d) (inclusive) are established.

3. Given that this is a civil proceeding and the Defendant is represented by a legal practitioner, the Court is entitled to rely upon such explicit concession. In any event, such a concession in this case is overwhelmingly supported by the expert opinions of Dr Kerri Eagle in her report dated 22 May 2019 and Ms Jenny Howell in her report dated 20 May 2019, which are unchallenged and which I accept. Accordingly, I am satisfied that the Court has the power to make an ESO.

Should an ESO be made?

4. Section 9 of the HROAct provides for the relevant considerations to which the Court must have regard when considering the exercise of its discretion to make an ESO.

5. The discretionary decision provided for in s 9(1) of the HRO Act is two-fold, that is, either to make an ESO or to dismiss the Plaintiff's Application.

6. In exercising that discretion, the paramount consideration for the Court is the safety of the community: s 9(2); and the Court must consider the matters set out in s 9(3) of the HRO Act.

7. Here, the Defendant concedes that the Court should exercise its discretion to make an ESO and does not submit that the Plaintiff's application should be dismissed. In my view, such a concession is a sufficient basis upon which the Court should act.

8. However, an examination of all of the material provided to the Court overwhelmingly demonstrates that the only rationally available course for the Court is to make an ESO. It would be, in light of that unchallenged material, perverse for the Court to do anything else.

Conditions of the ESO

9. The Court's power to impose the conditions which are a part of an ESO is fixed by s 11 of the HRO Act. By that section, the Court can impose conditions which are appropriate. Appropriate conditions are those which are designed to mitigate the risks which attach to the Defendant. Conditions which only relate to the offences previously committed by the Defendant are not, on that account, or for that reason alone, appropriate: see Wilde v State of New South Wales [2015] NSWCA 28 at [47]-[54].

10. Here, the parties have agreed on the appropriate conditions to attach to the ESO. In those circumstances, the Court's consideration of these as being appropriate can be brief.

11. I am satisfied that the conditions are such as to address and mitigate the risks attached to the Defendant personally. Accordingly, I conclude that the agreed conditions are appropriate within the meaning of s 11 and should be imposed by the Court.

Term of an ESO

12. The power of the Court to fix the length of an ESO is contained in s 10 of the HRO Act. It is in the following form:

“(1A)   An Extended Supervision Order expires at the end of:

(a)   such period (not exceeding five years from the day on which it commences) as is specified in the order, or;

(b)   if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended."

13. The specification of the period within the maximum of five years is at large and unconstrained by any legislative provision except that to which I have just referred. However, the determination by the Court of the appropriate length must be such as to promote and be consistent with the objects of the Act. Those objects are contained in s 3. They are:

“(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 offenders and high risk violent offenders to undertake rehabilitation."

14. In these proceedings, the Plaintiff submits that a period of five years for the ESO is the appropriate period. The Defendant submits that a period of three years is the limit that ought to be imposed. The Defendant notes that it is open to the Plaintiff to seek a further ESO after the expiry of three years, if it remains concerned about the safety and protection of the community: s 10(3) of the HRO Act.

15. It is necessary to turn briefly to the only evidence that addresses this question.

Report of Dr Eagle

16. Dr Eagle, in her report of 22 May 2019, which was not challenged by the Defendant, recorded that it was her opinion that the Defendant did not have a major mental illness such as a psychotic disorder or a serious mood disorder. However, she concluded that the Defendant had a paraphilia disorder, paedophilia non-exclusive type. She concluded that the Defendant had an alcohol use disorder that was continuing at the time of her examination, notwithstanding strict conditions preventing the Defendant using alcohol. Thirdly, she said that the Defendant had demonstrated personality traits consistent with an emotionally unstable personality or Borderline Antisocial and Narcissistic Personality Disorder.

17. Dr Eagle went on to express this conclusion:

"[The Defendant] has a severe deviant sexual disorder that emerged in adolescence and early adulthood on a background of severe childhood abuse, disruption and dysfunction. Since early adulthood [the Defendant] has described a pervasive preoccupation with sexual activity that has permeated his lifestyle and has resulted in a drive to engage in sexual activities with young females, including pre-pubescent and peri-pubescent children. He has described his sexual interest as primarily directed at adolescent females, but his most recent serious offending has involved contact penetrative offences with a child under ten years old. The index offences also include images of penetrative sexual offences against pre-pubertal children".

18. Dr Eagle went on to note that the Defendant has engaged, and engages in, various manipulative and grooming behaviours in order to access young female children. She found that the Defendant's actions demonstrated no regard for the welfare of those young children and that he has intentionally targeted young children whom he viewed as vulnerable. She states:

"[The Defendant] has shown the capacity to effectively deceive and manipulate others. He has also engaged in a pattern of repetitive, unwanted contact behaviours with victims consistent with stalking. He has paid money to entice victims into participating in sexual acts. … He has shown pervasive difficulties navigating appropriate boundaries with others."

19. Dr Eagle was asked to express an opinion about the appropriate duration of an ESO having regard to the level of risk of the Defendant committing a further serious offence. She said this:

“[The Defendant] has had difficulty complying with supervision and conditions in the period since his release. He has previously re-offended during a period under a good behaviour bond. He has shown the capacity for deception and manipulation. I am of the view that [the Defendant] is likely to require a significant period of time, involving close monitoring, as he undertakes psychological interventions, in addition to anti-libidinal treatment, in order to manage his risk. Following a period of sustained engagement in therapeutic interventions, the demonstration of improved control and ability to comply with conditions, gradual lessening of restrictions over time, would be required to ensure [the Defendant] was capable of safely re-integrating into the community without re-offending. Given [the Defendant]'s history of sexual re-offending, and nature of his paraphilia disorder, I am of the view that he would require supervision under an ESO for at least three to five years to manage his risk of re-offending."

Report of Ms Howell

20. Ms Howell, a forensic psychologist, has also expressed her expert opinion, which is not challenged before the Court. She was asked a similar question about the duration of any ESO. She said this:

“It would be my recommendation that the appropriate duration of an ESO be commensurate with the assessed high level of risk posed by the Defendant. Therefore, an ESO of five years would allow the Defendant time to complete treatment with FPS to demonstrate treatment outcomes, to seek appropriate employment and to be in the community which offers him opportunities to engage with others in appropriate, non-intimate relationships and gives the Defendant the opportunity to form appropriate intimate relationships."

Discernment

21. The Defendant submitted that it is the Court's obligation, with respect to the length of time to be imposed by the Court with respect to an ESO, to impose the minimum length of time supported by the evidence. The Defendant submitted that, having regard to the report of Dr Eagle, that minimum length of time was three years.

22. In my view, that is to misunderstand what Dr Eagle has written. Properly understood, in light of all that preceded it, Dr Eagle's expression with respect to the length of time is simply that she was suggesting that an ESO should be in existence for at least three to five years, rather than any shorter period. Her view was that a significant period of time was required to ensure the adequacy and success of the treatment for the Plaintiff. Read in the context of all of the evidence, I am satisfied that the whole of the expert opinion is that a period of five years is the appropriate period for an ESO.

23. Even if, contrary to my understanding of the opinion of Dr Eagle, one was to read it as suggesting that a three year period would be adequate, I do not see any statutory requirement in the legislation to impose only the minimum necessary period for the ESO to be in place. On the contrary, in my view, the Court needs to determine the period having regard to the fulfilment of the primary object of the Act and any other object of the Act. That is to say, the Court is required to choose a period that is such as to ensure the safety and protection of the community, as well as being such as to enable the Defendant to undertake rehabilitation.

24. Having regard to the primary object of the Act, there is only one answer to the question posed, and that is, the appropriate period to be fixed for the ESO is a period of five years.

25. Accordingly, I make the orders sought by the Plaintiff in its Amended Summons, including the conditions that have been agreed between the parties. Those conditions are as set out in schedule A to the Amended Summons filed 19 June 2019.

Orders

26. I make the following orders:

1. I order, pursuant to s 5B and s 9(1A) of the Crimes (High Risk Offenders) Act 2006, that the Defendant be subject to an Extended Supervision Order for a period of five years from today.

2. I order, pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006, that the Defendant comply for the period of the Extended Supervision Order with each of the conditions set out in schedule A to the Amended Summons dated 19 June 2019.

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Decision last updated: 20 June 2019