State of New South Wales v ST (Preliminary)

[2022] NSWSC 491

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v ST (Preliminary) [2022] NSWSC 491

Hearing dates:

19 November 2021

Date of orders:

1 December 2021

Decision date:

29 April 2022

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

Orders made on 1 December 2021: see [43]

Catchwords:

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order – whether unacceptable risk of committing another serious offence – where defendant charged with new offences prior to hearing of application – consideration of the effect of the fresh charges – consideration of defendant’s right to silence in respect of the fresh charges

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), ss 13, 17

Crimes Act 1900 (NSW), s 66EB

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

Criminal Code (Cth) ss 474.14, 474.26, 474.27A

Terrorism (High Risk Offenders) Act 2017 (NSW), s 27

Cases Cited:

Attorney General for New South Wales v Tillman [2007] NSWCA 119

State of New South Wales v Elmir [2019] NSWSC 263

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
ST (Defendant)

Representation:

Counsel:
Mr M Dalla Pozza (Plaintiff)
Ms R Khalilizadeh (Defendant)

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

File Number(s):

2021/259602

Publication restriction:

Order pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that, until the completion of the criminal proceedings against the defendant, the defendant shall be identified in connection with these proceedings by a pseudonym only, to be “ST”, and that this order shall apply, until further order of the Court:

(a) To all media, including but not limited to print, radio, television, internet and social media;
(b) Throughout the Commonwealth.

Judgment

1. HIS HONOUR: The State of New South Wales (“the plaintiff”) commenced proceedings by summons filed on 10 September 2021 against the defendant, seeking certain interim orders as well as final orders for an extended supervision order (“ESO”) for a period of three years, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). At that time, the defendant was serving a sentence of 4 years and 6 months with a non-parole period of 3 years, 4 months and 2 weeks. That sentence was imposed following the defendant’s plea of guilty to a count of procuring a child under the age of 16 years for unlawful sexual activity, contrary to s 66EB(2) of the Crimes Act 1900 (NSW) (“the index offence”). The non-parole period expired on 15 October 2020 and the defendant was released to parole on 24 December 2020. The sentence expired on 1 December 2021.

2. The hearing before the Court was in relation to the preliminary orders being sought by the plaintiff, which were initially opposed by the defendant in written submissions but at the hearing were unopposed. Those orders were to the effect that the Court appoint a qualified psychiatrist and registered psychiatrist to separately examine the defendant and furnish their reports to the Court, to direct the defendant to attend upon the examinations, to subject the defendant to an interim supervision order (“an ISO”) for a period of 28 days and that the defendant comply with certain conditions attached to the ISO. Ancillary relief was also sought in the form of an order that access to the file shall not be granted to a non-party without the leave of a judge of the Court and following notification of the parties by the Registrar so as to allow them an opportunity to be heard in relation to the application.

3. Interim orders were made in those terms on 1 December 2021. In this judgment, I provide my reasons for making those orders.

The relevant statutory provisions and principles

4. Section 7(4) of the Act provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, it must make orders of the type sought by the plaintiff for the appointment of forensic experts. If the Court is not so satisfied, it must dismiss the application: s 7(5) of the Act.

5. Accordingly, although this is a preliminary hearing, it is necessary to evaluate the sufficiency of the supporting material to justify the making of an ESO, pursuant to the relevant statutory test. Section 5B of the Act stipulates four prerequisites for the making of an ESO. Subsections 5B(a), (b) and (c) concern aspects of the defendant’s status as an inmate or supervised offender in the community. Those subsections are not contested and I am independently satisfied that they have been met.

6. This leaves the key provision of s 5B(d) for consideration, namely, whether the Court:

“… is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.”

7. Section 5D provides that the 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.

8. Section 9(3) of the Act sets out the matters that the Court must have regard to in determining whether to make an ESO. The effect of s 7(4) is that on an application for an ISO, these matters are also relevant.

9. I note that s 9(2) of the Act provides that, in determining whether or not to make an ESO, “the safety of the community must be the paramount consideration of the Supreme Court”, consistently with the stated primary object of the Act, which is “the safety and protection of the community”: s 3(1). A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).

10. In making its determination at a preliminary hearing, the Court does not weigh the supporting documentation or predict the result at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], in relation to comparable provisions in an earlier version of the Act.

The defendant’s criminal record

11. The defendant is aged 37. In 2011, when he was aged 26, he was charged with four counts of using a carriage service to menace, harass or cause offence contrary to s 474.17 of the Criminal Code (Cth). The facts were that, between April and October 2011, he made multiple calls to three young female persons who were known to each other, making sexually explicit suggestions. The defendant was convicted and sentenced in January 2012, receiving a fine of $500.

12. In October 2014, when the defendant was aged 30, he was sentenced in the Brisbane District Court for multiple Commonwealth offences of using a carriage service to menace, harass or cause offence contrary to s 474.17 of the Criminal Code, committed in February and May 2011 when he was aged 26. The offences committed in February 2011 involved the defendant contacting an adult female victim who was unknown to him. The offences committed in May 2011 concerned the defendant contacting different young female persons. The calls were of an explicit sexual nature. In April 2013, when the defendant was aged 28, he was convicted of another such offence, the victim being an adult female. He was sentenced to a good behaviour bond for a period of 3 years.

13. The defendant was also sentenced for offences committed in Queensland in May 2013 (“the Queensland offences”). Those offences were assault with intent to commit rape and assault occasioning actual bodily harm. The defendant had attacked a woman who he had met on the same evening in a pub. He pushed her to the ground, got on top of her, tried to separate her legs and covered her mouth. The victim cried, and the defendant got off her. Shortly afterwards, he pushed her back onto the ground and placed both of his hands over her face, nose and mouth, and pushed her head into the ground. She managed to scream and heard someone call out. The defendant got up and kicked the woman three times to the head and once to the side of her face before running off. A person who had heard the victim scream then approached and rendered assistance. For these offences, the defendant was sentenced to 3 years imprisonment, suspended forthwith, a relevant circumstance being that he had already served 450 days of that period.

14. In January 2015, while the defendant was still aged 30 and subject to parole for the Queensland offences, he committed an act of indecent assault against a woman he met at a function at a hotel in Thirroul the same evening. He forced her to the ground and lay on top of her, only ceasing and fleeing the scene when two passers-by heard the woman screaming and intervened. The defendant was sentenced on 16 October 2015 to a term of imprisonment of 18 months to commence on that date and expire on 15 April 2017. The sentencing magistrate imposed a non-parole period of 12 months, to expire on 15 October 2016.

15. In January and March 2015, before the defendant was arrested for the indecent assault offence, he committed further offences contrary to s 474.17 of the Criminal Code. These offences involved the defendant making phone calls of a sexually explicit nature, one of the victims being a 17 year old woman who he did not know. The defendant was arrested for those offences in April 2015. In June 2015, whilst on bail, he committed further such offences against an adult female, calling her at around 6am or between midnight and 2am. The defendant was sentenced for these offences on 16 October 2015. He received a sentence of 2 years commencing on 16 October 2016, but was to be released on a recognisance.

The index offence

16. The defendant was released to parole and subject to the recognisance on 15 October 2016. In May 2017, when aged 32, he committed an offence of procure child under the age of 16 years for unlawful activity, contrary to s 66EB(2) of the Crimes Act. The circumstances were as follows. At about 5:30am on a Sunday morning, the defendant called the mobile of a 14 year old girl, identifying himself as a “guy from school”, which she initially believed. He told her “you’re beautiful” and hung up when he heard her boyfriend in the background. Two days later he called back. The girl merged the call with one she was having with her boyfriend. The defendant hung up. The following night, he called back and the girl again merged the call with one she was having with her boyfriend, but did not tell the defendant. The defendant told her that he wanted to “take you out on a date” and followed up with an explicit text message proposing that they engage in sexual intercourse. The girl agreed to meet him in a park at 4:30pm on the afternoon of 31 May 2017. The defendant phoned her at 6pm and asked her to walk to a train station. She did not do so, but the defendant was at the train station. That evening, the girl disclosed what had occurred to her mother and the following day they reported it to the police. The defendant was arrested on 2 June 2017. He told police that he was drinking about eight litres of wine per day at the time of the offending and claimed to have no recollection of it.

17. In April 2018, the defendant received a sentence of imprisonment of 4 years and 6 months, commencing on 2 June 2017 and expiring on 1 December 2021. A non-parole period of 3 years, 4 months and 2 weeks was fixed, which expired on 15 October 2020.

A post-index offence development

18. The defendant was released to parole on 24 December 2020, a condition being that he reside at the Nunyara Community Offender Support Program Centre. On 16 November 2021, three days before the hearing of this application, the defendant was arrested and returned to custody, bail refused, on the following charges (“the fresh charges”):

“1. One count of fail to comply with reporting obligations contrary to section 17(1) of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW);

2. One count of use carriage service to procure person under the age of 16 for sexual activity contrary to section 474.26(1) of the Criminal Code (Cth);

3. One count of use carriage service to send indecent material to person under age 16 contrary to section 474.27A(1) of the Criminal Code (Cth); and

4. One count of contravene prohibition order contrary to section 13(1) of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW).”

19. The fresh charges were stood over in the Local Court to a date in January 2022.

The defendant’s relevant personal history and mental state

20. The application was accompanied by two reports that were prepared by forensic psychologists. The first in time, dated 15 July 2015, was prepared by Bradley Jones for the 2015 court proceedings. The second, dated 23 March 2018, was prepared by Jason Borkowski for the sentencing court for the index offence. Both reports provided a profile of the defendant’s background, as related by him at those times. It is unnecessary to relate his family or personal history in detail.

21. The defendant has an older brother, with whom he has previously had a good relationship, and a half-sister, with whom he has had little contact. The defendant had described a difficult relationship with his father and a loving relationship with his mother.

22. The defendant reported in 2013 that by the time he was aged 9 or 10, he had been sexually assaulted. In 2015, he identified the perpetrator as a school principal. In 2018, he said it was a school counsellor. The defendant commenced using cannabis and alcohol when he was aged about 11. The defendant has had a number of relationships, the longest being for a period of two years. That relationship ended when he was placed in custody for the index offence.

23. Both Mr Jones and Mr Borkowski assessed the defendant as meeting the criteria for a persistent depressive disorder, a severe alcohol use disorder and a cannabis use disorder. Additionally, Mr Jones diagnosed the defendant with a post-traumatic stress disorder, which was acknowledged in Mr Borkowski’s report. Mr Borkowski also assessed the defendant as having a personality disorder with avoidant and dependent personality features.

The defendant’s progress with treatment of his criminogenic behaviour

24. The defendant has a history of alcohol and substance abuse. Some, if not all, of the offences were committed while he was affected by alcohol. When arrested in Queensland in August 2013, the defendant reported drinking alcohol daily to the point of unconsciousness. In June 2016, while serving his sentence for the 2015 offences, he returned a urine sample that tested positive to an unprescribed drug, Quetiapine.

25. In his remarks on sentence for the index offence, Hunt DCJ noted:

“In relation to the convictions for past assaults [the defendant] maintained that the charges all occurred when he was intoxicated, and in each instance it involved him being with a female who he believed to be willing to have consensual sexual intercourse with him.”

26. Between March and October 2016, the defendant participated in the Custody-Based Intensive Treatment (“CUBIT”) program. A report prepared in October 2016 noted that he did not complete the program due to his resistance to it and disengagement from treatment.

27. Hunt DCJ found that the defendant had “very poor prospects of rehabilitation”, noting that he had undertaken the CUBIT program but not engaged with it and that he had “some [underlying] psychosexual issues that would need to be addressed”.

28. Following his release from custody in October 2016 on parole, and while subject to a recognisance, the defendant resided with his parents. He attended community-based counselling at Forensic Psychology Services (“FPS”). In March and April 2017, however, he was twice removed from group sessions owing to hostile and disruptive behaviours. The defendant attended an individual session following each removal. In early May 2017, he reported relapsing into alcohol abuse, which was a matter of weeks before he committed the index offence.

29. In January 2019, the defendant commenced an addiction program, called the Explore, Question, Understand, Investigate, Practice, Succeed addiction program (“EQUIPS”). He was removed from the program for being dismissive, argumentative and non-constructive. In March 2019, he refused to provide a sample for testing for the presence of drugs. In July 2020, he resumed the EQUIPS addiction program. In August 2020, the State Parole Authority (“the SPA”) refused his release to parole on the conclusion of his non-parole period, which would occur in October 2020. In October 2020, the defendant completed the EQUIPS program.

30. The defendant was released to parole on 24 December 2020. In February 2021, he was sentenced to a community correction order for a period of 12 months for failing to comply with reporting obligations. He had joined a gym but did not report that he had done so within 7 days, which was required by the conditions of his parole.

31. In April 2021, the defendant was directed to abstain from all alcohol consumption. In the same month, he recommenced individual FPS sessions. In May 2021, he reported to a Community Corrections officer that he was using the Tinder app. A series of case notes by that officer record that the defendant stated that he had scheduled a date with a 25 year old female and that subsequently there had been a “falling out” between them. During an unannounced home visit, he was breath-tested and found to have a blood alcohol content of 0.062 per cent. He was directed to immediately cease consuming alcohol. A subsequent breach report recommended that his parole be revoked. However, the defendant remained in the community until his arrest on 16 November 2021.

32. Case notes generated by Community Corrections officers as recently as 20 September 2021 were tendered at the hearing. The case notes suggest that the defendant is experiencing frustration with the conditions that obliged him to comply with management of his movements in the community, leading to emotional outbursts. A “Breach of parole report” dated 28 September 2021 noted that on the previous day, he had threatened to harm or kill any ESO staff who he felt may cause his mother harm. It was accepted that the threats were made while he was in “an emotionally charged state”, although his response to supervision overall was described as “mixed”. The report recommended a warning rather than revocation, since he had only a short period of parole remaining.

Forensic assessment of the defendant’s risk of committing a serious offence

33. In his report, Mr Borkowski utilised the STATIC-99R actuarial risk assessment instrument to assess static features of the defendant’s profile. The result placed the defendant at a score of “8”, which is in the highest category of risk of sexually reoffending within five years.

34. Sarah Wright, a forensic psychologist, completed a Risk Assessment Report dated 24 May 2021. Ms Wright noted that the defendant committed the index offence whilst under supervision. She also administered the STATIC-99R instrument and noted a score of “9”, which placed the defendant in the high risk category. Ms Wright concluded that the most likely scenario for further contact sex offending would involve an adolescent or adult female victim, likely within a short time of meeting her and in the context of reduced inhibition as a consequence of substance misuse and sexual preoccupation.

35. A Risk Management Report prepared by Corrective Services NSW, dated 16 July 2021, provided an evidentiary basis for the proposed conditions of the ISO. Since the conditions are agreed and appear to be sensible in the circumstances, it is unnecessary to canvass the contents of that report.

Determination

36. Having regard to the matters reviewed above and the matters identified in s 9(3) of the Act, I was satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. That is, those matters would satisfy the Court to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is released back into the community and not kept under supervision.

Conditions of the ISO

37. In the course of the parties filing written submissions, agreement was reached as to some modification of the conditions that were initially proposed by the plaintiff. The conditions that attach to the order for an ISO are in terms agreed by the parties and as attached to the plaintiff’s written submissions in reply which, as noted, are appropriate.

The effect of the fresh charges

38. A difficulty with the application, even though now not opposed, arose from the effect of the fresh charges. An order requiring the appointment of forensic experts and the preparation of reports may not be in the interests of either party or of assistance to the Court if it transpires that the defendant is not granted bail or the resolution of the fresh charges involves him serving a further significant period in custody. In that circumstance, the reports may be out of date by the time of the hearing of the application for an ESO.

39. The terms of s 7(4) of the Act are mandatory as to the making of interim orders, in contrast to the terms of s 9(1) in relation to the making of an ESO, which allows a discretion. Section 7(4) provides that if the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court must make the orders sought. Accordingly, the Court does not appear to have a discretion to decline to make those orders.

40. There is, however, flexibility as to the terms of the orders. Counsel for the plaintiff drew the Court’s attention to a similar situation faced by Campbell J in the hearing of an application for an ISO pursuant to s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW): State of New South Wales v Elmir [2019] NSWSC 263. In that case, the defendant was awaiting a sentence hearing for a terrorism offence. His Honour determined to make an order, the terms of which were amended from those originally sought, and made the following observation, at [29]:

“In my view it is not futile to make the order even though it is likely to be suspended by reason of the defendant’s continuation in custody. Moreover it is important that the necessary preliminary steps are followed before the State sentence expires. Acceding to an order now will ensure as well that the matter is ready to proceed to a final hearing with the benefit of expert opinion from Court appointed experts.” (emphasis in original)

41. There is at least a theoretical possibility that the defendant will receive a grant of bail pursuant to a release order, in which case a need for the ISO would be revived, meaning that the orders have a practical purpose.

42. There is a separate concern. Any forensic report prepared at this stage would naturally canvass the allegations that form the basis of the fresh charges. This would disadvantage the defendant, who at the stage of the hearing of this application had not been required to enter pleas to them. If he responds to questions from the forensic experts concerning those allegations, he may compromise his right to silence.

Orders

43. Following the hearing, the parties conferred and agreed upon an unusual set of proposed orders that are intended to avoid the defendant’s right to silence being compromised and an outcome of outdated forensic reports by effectively suspending the orders until a point in time more proximate to his release. Given the unusual aspect of the determination, I set out the orders that were made on 1 December 2021:

1. Order pursuant to ss 10A and 10C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”), that the defendant be subject to an interim supervision order commencing on 1 December 2021 for a period of 28 days (“the interim supervision order”).

2. Order pursuant to s 11 of the Act, the defendant is for the period of the interim supervision order, to comply with the conditions set out in the Schedule to these orders.

3. Order pursuant to s 7(4) of the Act:

   (a)   That two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) be appointed to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

   (b)   That the defendant attend those examinations.

4. Where the defendant is required to attend the examinations referred to in Order 3, and where criminal proceedings against the defendant are either still on foot or have been finalised prior to the examination for a period of 28 days or less, the practitioners conducting psychological and/or psychiatric examinations of the defendant are directed to not ask the defendant any questions about or arising from those criminal proceedings.

5. The parties to have liberty to relist the matter on two days’ notice, including but not limited to circumstances where:

   (a)   the defendant is granted bail;

   (b)   the defendant is otherwise released from custody; or

   (c)   the defendant is convicted of any further charges but is not sentenced to imprisonment by way of full-time detention or intensive correction in the community (whether or not subject to a home detention order).

6. Access to the Supreme 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 by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

7. Order pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that, until the completion of the criminal proceedings against the defendant, the defendant shall be identified in connection with these proceedings by a pseudonym only, to be “ST”, and that this order shall apply, until further order of the Court:

   (a)   To all media, including but not limited to print, radio, television, internet and social media;

   (b)   Throughout the Commonwealth.

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Decision last updated: 29 April 2022