State of New South Wales v Paton

[2020] NSWSC 1707

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Paton [2020] NSWSC 1707

Hearing dates:

11 November 2020

Date of orders:

11 November 2020

Decision date:

02 December 2020

Jurisdiction:

Common Law

Before:

Garling J

Decision:

See orders at [58]

Catchwords:

HIGH RISK OFFENDERS – Extended supervision orders – Conditions - serious sex offender – where parties have agreed that an ESO should be made – where a condition concerning search and seizure powers is in dispute – whether departmental officers should be required to inform the defendant of the basis of their ‘reasonable suspicion’

Legislation Cited:

Crimes (High Risk Offenders) Act 2006

Cases Cited:

Baldwin v State of New South Wales [2020] NSWCA 112

New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483

State of New South Wales v Ali [2010] NSWSC 1045

State of New South Wales v Bugmy [2017] NSWSC 855

State of New South Wales v Burns [2014] NSWSC 1014

State of New South Wales v Grooms (Final) [2019] NSWSC 353

State of New South Wales v Paton (Preliminary) [2020] NSWSC 1178

State of New South Wales v Steven Single [2019] NSWSC 176

Wilde v the State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

State of New South Wales (P)
Craig Hunter Paton (D)

Representation:

Counsel:
Mr L A Fernandez (P)
Ms E Sullivan (D)

Solicitors:
Crown Solicitors Office (P)
Legal Aid NSW (D)

File Number(s):

2020/204169

Publication restriction:

Suppression orders made 11 November 2020

Judgment

1. The State of New South Wales (“the State”), by its Further Amended Summons dated 28 October 2020, seeks an order that Craig Paton (“the defendant”), be the subject of an Extended Supervision Order (“ESO”) for a period of two years pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (“the Act”).

2. The State further seeks an order that the ESO be subject to 50 specified conditions pursuant to s 11 of the Act. These conditions are set out in an annexure to that Further Amended Summons.

3. The proceedings were heard on 11 November 2020. At the conclusion of submissions, I made the orders which are set out at [58]. I indicated that I would deliver reasons in due course. These are my reasons for making the orders which were made at that time.

Legislative Provisions

4. Section 3 of the Act sets out the Act’s purpose, namely:

‘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 [and]…to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.

5. Section 5B of the Act provides that this Court may make an ESO 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.”

6. A “serious offence” is defined in s 4 of the Act as either a “serious sex offence” or “a serious violence offence”. A “serious sex offence” is defined in s 5(1) of the Act.

7. Section 5I(1) of the Act provides that an application for an ESO may be made only in respect of a “supervised offender”, which includes a person under an existing interim supervision order: s 5I(1)(b).

8. The Court’s power to make an ESO is discretionary: s 9(1). Section 9(2) provides that:

“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.”

9. Section 9(3) of the Act provides a number of further mandatory considerations to which the Court must have regard in determining whether or not to make an ESO. These include considering relevant reports from qualified specialists and Corrective Services NSW, as well as any information regarding the offender’s participation in rehabilitation programs, prior compliance (or lack thereof) with similar obligations, the offender’s criminal history, the views of the sentencing court and any other relevant information concerning the likelihood of the offender committing a further serious offence.

Factual Background

10. The index offences of the defendant in this matter fall within the Act’s definition of “serious sex offence”: s 5(1). The defendant has a lengthy criminal history, with previous offending of a similar serious sexual nature. It is appropriate to describe the factual content which encompasses this application with a brief overview of the defendant’s criminal history.

11. The defendant’s criminal history begins with a series of minor property and drug offences in the period between September 1972 and August 1977.

12. In November 1993, he was convicted of behaving in an offensive manner whilst being upon enclosed lands and carrying a cutting weapon for an incident where he attempted to gain entry to the house of a woman he went to church with, while carrying a knife. A report prepared three years later by a General Practitioner called Dr Peter Romero stated that at the time of this offending, the defendant had obsessive thoughts about committing violent sexual acts against women.

13. In March 1995, the defendant was convicted of common assault for threatening a sex worker with a knife and detaining her for approximately one hour and 45 minutes. According to the defendant at the time, this offence was planned days before it was committed.

14. In October 1995, while undergoing and affected by a manic psychosis, the defendant committed a series of violent and sexual offences against his pastor’s wife. The victim and her three-month-old child went to the defendant’s house to assist with packing his belongings. While she was there, the defendant detained the victim and the child for an 8-10 hour period, where he threatened to kill them both and committed a series of sexual and physical assaults on the victim. These assaults included repeatedly stabbing her using a knife, forcing her to perform oral sex on him, forced digital penetration, attempted penile-vaginal penetration, forcing the victim to ingest tablets, kicking and pushing her and holding a pillow over her face.

15. For these offences, the defendant was sentenced to a total of 12 years imprisonment, with a non-parole period of 7 years and 6 months.

16. The next significant occasion of criminality by the defendant was the index offences were committed by him on 2 March 2008. This was while the defendant was on parole for the previous offences against his pastor’s wife.

17. The defendant offered the victim, the daughter of his friend, a lift home from the shops. The victim was 17 years old at the time and had a learning disability. The defendant took her to his house, tied her wrists and ankles, played a ‘game’ where he had her crawl on the floor for money, forced her to remove her clothes, attempted to engage in sexual activity with her and threatened her before he fell asleep.

18. The next morning, the defendant ordered the victim to get on her knees and told her he was going to kill her. He put a rope around the victim’s neck and commenced tightening it, choking her. The victim managed to get her hands to her throat to relieve the pressure. The defendant forced the victim to take some of his medication, which she vomited up later. The defendant then left the premises, and the victim escaped to a local medical centre.

19. The defendant pleaded guilty to these series of offences. On 27 February 2009, he was sentenced by Judge Coolahan, sitting in the District Court in Newcastle. His Honour, in sentencing the defendant, described the objective seriousness of the offending as follows:

“As can be seen, the offences are extraordinarily serious. The terror experienced by the victim must have been extreme…in my view the kidnapping offence falls to be determined well above the mid point. This is because of the length of time over which the offence was committed, the circumstances under which it was committed, namely that the victim was moved in a motor vehicle from place to place, from house to house; that she was bound; she was threatened with violence and death; she was only seventeen years of age and was vulnerable…The second offence, that is the choking offence, in my view is also a very serious offence. Whilst it may have taken place over a short time, it was the culmination of a long and obviously terrifying ordeal suffered by the victim at the hands of the offender. Having a rope placed around your neck in circumstances that occurred here must have been a completely terrifying experience.”

20. His Honour imposed a term of imprisonment of 10 years and 6 months, with a non-parole period of 7 years and 5 months, for the choking offence, and a term of imprisonment of 5 years and 6 months for the detaining of the victim. There was a degree of concurrency between these sentences. Consequently, the defendant’s sentence expired on 2 September 2020.

21. Each of the defendant’s previous serious offences occurred at a time when the defendant was in a manic phase of his bipolar disorder and at times where he chose to cease his medication. They were each also against women known to him, and some occurred while he was under supervision.

22. The defendant’s time in custody was relatively uneventful, with only a small number of minor misconduct charges against him over his time in prison. These charges were all to do with adhering to proper Correctional Centre routine, were medical in nature, and were not violent.

23. The defendant was released on parole on 20 December 2019.

24. On 1 September 2020, the day before the defendant’s sentence was set to expire, the defendant was made subject to an ISO imposed by N Adams J. This was consented to by the defendant.

25. This ISO has then been extended in time twice by Bellew J. Though there have been issues relating to the defendant’s mental health, including hospitalisation shortly after his release on parole, the defendant appears to have largely complied with the conditions imposed by the ISO over this time.

Can an ESO be made?

26. The Court must first consider whether the statutory preconditions contained in s 5B are satisfied such that an ESO can be made. The defendant does not dispute that the Court has the power under s 5B to impose an ESO, and that each of the prerequisites set out in subsections (a) through to (d) (inclusive) of s 5B are established. This is a concession made in a civil proceeding, with the defendant represented by counsel. Consequently, the Court is entitled rely upon such explicit concession, as constituting a sufficient reason to impose the orders for the protection of the community.

27. Even if the Court were not entitled to rely on such a concession, the evidence clearly establishes that these preconditions have been met. The defendant is currently under an ISO and has previously served a prison sentence for serious sexual offences. The concession in this case is also overwhelming supported by the unchallenged expert opinions of Dr Anthony Samuels, in his report dated 9 October 2020 and his supplementary report dated 20 October 2020, and Dr Marcelo Rodriguez, in his report dated 19 October 2020, both of which I accept.

28. It is also supported by the psychiatric reports from Justice Health, prepared by Dr Gordon Elliot on 22 November 2019 and 15 May 2018 respectively for parole purposes, and Risk Assessment reports and Risk Management reports prepared by Community Corrections. Accordingly, I am satisfied that the Court has the power to make an ESO.

29. I note that this conclusion also accords with that of N Adams J in these proceedings, where her Honour imposed upon the defendant an ISO: State of New South Wales v Paton (Preliminary) [2020] NSWSC 1178.

Should an ESO be made?

30. Though the fulfilment of the statutory preconditions means the Court has the power to make an ESO, the Court must also consider whether such an order should be imposed in the circumstances. Whether the Court should impose an ESO is a matter of discretion and is reliant on being satisfied of the factors mandated by s 9 of the Act.

31. This discretionary decision provided for in s 9(1) of the Act is binary: the Court either makes an ESO or else dismisses the State’s application. The paramount consideration for the Court in considering whether to exercise this discretion is the safety of the community: s 9(2). Beyond this paramount consideration, the Court must also consider the matters set out in s 9(3) of the Act.

32. Here, the defendant does not submit that the State’s application should be dismissed and does not contest the Court exercising its discretion to make an ESO.

33. In my view, the Court can act upon such a concession. This is a civil proceeding, where a party is represented by counsel and the party consents to orders. Thus, in my view, the Court is entitled to take such consent as being an admission of all necessary facts and pre‑conditions underlying the Court's exercise of its powers.

34. Even if such a concession was not able to be relied upon, the unchallenged material before the Court overwhelmingly demonstrates that the only rational course available for the Court is to exercise its discretion to make an ESO. The evidence demonstrates the defendant continues to struggle with his psychological condition and would benefit from continued monitoring to control his risk factors. When weighing up all the mandatory factors in s 9, it is clearly in the best interest of the safety of the community, as well as the defendant himself, to impose an ESO.

Term of the ESO

35. The power of the Court to fix the length of an ESO is contained in s 10 of the Act. That section provides for a maximum period of five years. The appropriate length of an ESO must be determined by reference to the objects of the Act, which are contained in s 3.

36. In these proceedings the State submits that a period of two years for the ESO is the appropriate period. The defendant agrees. I regard that period as appropriate and, accordingly, the ESO will be fixed for that period from today.

Conditions of the ESO

37. The Court's power to impose conditions as part of an ESO is provided for by s 11 of the Act. By that section, the Court can impose conditions which are appropriate. The discretion is a broad one, and should be exercised having regard to the objects, scope and purpose of the Act: Wilde v the State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65 at [47].

38. The purpose of imposing conditions is to mitigate the risks which attach to the defendant, and conditions should therefore be designed to address specific risk factors identified in the evidence: State of New South Wales v Bugmy [2017] NSWSC 855 at [89]. Conditions must always have a proper basis, and a court must engage in a balancing exercise when looking at whether a condition is appropriate: State of New South Wales v Ali [2010] NSWSC 1045 at [88].

39. An important consideration in this balancing exercise is ensuring the condition is appropriate, realistic and workable, keeping in mind the severity of the punishment on the offender if a condition is breached: State of New South Wales v Burns [2014] NSWSC 1014 at [59]. Another key consideration is the ordinary rights of the subject to go about their lawful activities “free from officious and unnecessary restrictions”: New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].

40. The primary dispute between the parties in this matter is the appropriate form of one specific condition proposed by the State (Condition 38), which concerns a proposed search and seizure power.

41. It is appropriate to note that the other 49 conditions proposed by the State are agreed to as suitable by the defendant. It is therefore unnecessary to engage in a long consideration of each condition here. Simply put, each undisputed condition addresses a risk factor present in the unchallenged evidence presented by the State, and when engaging in a balancing exercise of relevant factors each undisputed condition is plainly appropriate.

42. I am satisfied that all of the undisputed conditions address and mitigate the risks attached to the defendant personally, as well as to encourage the defendant to undertake rehabilitation.

43. The disputed condition, Condition 38, is proposed by the State in the following form:

“The defendant must submit to a search by a DSO or on behalf of a DSO, of his person and residence and the search and seizure of any vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under his control.”

44. The State submits that this condition is necessary to meet identified risks of the defendant, in particular the deterioration of his mental health, and that any restrictions on the power (such as requiring consent or needing to inform the defendant why such a search is being conducted) would be extremely difficult. The State submitted this was especially so if the defendant was in a state of declining mental health when interacting with officers, which would potentially cause the defendant to act irrationally.

45. The defendant submits that the condition in the proposed form should be amended to ensure that a reason is provided by the departmental officer when looking to engage the search and seizure power.

46. The defendant proposes the condition be amended to be in the following form:

“If the DSO reasonably suspects that a search of the defendant’s approved address, or any vehicle in which he is travelling or under his effective control, computer, electronic or communication device or any storage facility, garage, locker or commercial facility under his control, is necessary to confirm his continuing compliance with this order, the DSO must inform the defendant of the basis of that suspicion. The defendant must then, if directed by the DSO, consent to that search/all those searches”

47. As is clear from the defendant’s proposed amended form of Condition 38, that the defendant would still be obliged to consent to the search and seizure, once informed of the basis for the DSO’s reasonable suspicion.

48. N Adams J, in considering the conditions to attach to the defendant’s earlier ISO, was asked by the State to impose the same Condition 38 as proposed by the State at [43] above. This proposal was rejected by N Adams J, with her Honour rather imposing the Condition 38 in the same form as proposed by the defendant at [46] above.

49. In assessing the respective arguments of the State and the defendant concerning the appropriate form of Condition 38, the protection afforded to individuals against arbitrary search and seizure by the common law is a significant consideration.

50. As Hamill J noted in State of New South Wales v Steven Single [2019] NSWSC 176 at [51]:

“…in exercising this power and in formulating the appropriate conditions, it is important to bear in mind the common law's zealous protection of the citizenry against arbitrary search and seizure, the absence of any specific power under s 11, the kinds of limitations that exist in other statutory contexts including the Registration Act, and the practical impact of the imposition of such conditions or as Allsop CJ put it, “what is being done to people”.

51. Fullerton J in State of New South Wales v Grooms (Final) [2019] NSWSC 353 also considered the issue in the balancing exercise at [106]:

“I am conscious…that the sweeping powers of search and seizure in the common form conditions sought by the State under the Act are without the variety of checks and balances against the misuse of the search and seizure power expressly provided for in Parts 4, 5 and 6 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).”

52. Further, as observed by Basten JA in Baldwin v State of New South Wales [2020] NSWCA 112 at [65], requiring searches to only be conducted when a ‘reasonable belief’ is formed is a form of protection for those subject to the conditions:

“The purpose of requiring a reasonable belief as to specified matters was intended to be protective of the interests of the applicant, by limiting the circumstances in which a search could properly be directed.”

53. In my view, if such searches are predicated on the forming of a relevant reasonable belief, it is no great imposition on the exercise of the powers of the departmental officers to merely inform the defendant of the content of that already formed belief. A requirement to inform the defendant of the content of the required reasonable belief could only strengthen the practical force of this protection.

54. I am unconvinced that the condition in the form proposed by the State is appropriate in the circumstances. I am compelled to this conclusion by the rather extreme imposition this condition will have on the liberty of the defendant. It seems that a requirement to provide a reason for a search is, all things considered, a very minor safeguard to an otherwise particularly broad power this condition gives to departmental officers.

55. I am satisfied that the broad power conferred upon me by s 11 of the Act allows me to impose a condition on the defendant that would require him to consent to search and seizure by departmental officers. However, in looking to impose such a condition, I am unconvinced by any argument that the mere provision of a reason would somehow inhibit the ability of departmental officers to address the defendant’s risk factors.

56. Consequently, Condition 38 in the form proposed by the defendant should be imposed.

57. Accordingly, I concluded that the 49 undisputed conditions set forth in the Further Amended Summons, together with Condition 38 in the form proposed by the defendant, were appropriate conditions within the meaning of s 11 of the HRO Act and should be imposed by the Court.

Orders

58. On 11 November 2020, I made the following orders:

1. Order pursuant to s5B and s9(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant, Craig Paton, be subject to an Extended Supervision Order (“ESO”) for a period of 2 years commencing 11 November 2020.

2. Order pursuant to s11 of the Crimes (High Risk Offenders) Act 2006, that the defendant comply with the conditions set out in the Schedule to the Further Amended Summons filed in Court on 11.11.2020 for the period of the ESO except for Condition 38.

3. Order that the defendant comply with the following condition, which is to be known as Condition 38 of the ESO and is expressed in these terms:

“38. If a DSO reasonably suspects that a search of the defendant’s person and residence, or any vehicle in which he is travelling or which is under his effective control, or any computer, electronic and communication device or any storage facility, garage, locker, or commercial facility under his control, is necessary to confirm his continuing compliance with this order, the DSO must inform the defendant of a basis for that suspicion. The defendant must then submit to that search or those searches which may be carried out by a DSO or on behalf of a DSO.”

4. Order that access to the file of the Supreme Court of NSW shall not be granted to a non-party without the leave of a Judge of the Court.

5. Order that if any application for access is made by a non-party in respect of any document on the file, 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.

6. I except from Orders 4 and 5, any document which records the orders of the Court and the conditions which accompany the ESO.

**********

Decision last updated: 14 December 2020