State of New South Wales v Tannous (Preliminary)

[2019] NSWSC 1862

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Tannous (Preliminary) [2019] NSWSC 1862

Hearing dates:

16 December 2019

Date of orders:

19 December 2019

Decision date:

19 December 2019

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”) I appoint two qualified psychiatrists and/or registered psychologists 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.

 

(2)   I direct the defendant to attend those examinations.

 

(3) Pursuant to s 10A of the Act, the defendant is subject to an interim supervision order commencing on 28 January 2020.

 

(4) Pursuant to s 10C(i) of the Act, the interim supervision order is for a period of 28 days.

 

(5) Pursuant to s 11 of the Act, I direct that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this judgment.

 (6)   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 by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Catchwords:

HIGH RISK OFFENDER – preliminary hearing –
application for interim supervision order – defendant consents to making of interim supervision order – whether certain conditions proposed appropriate –
debate over conditions regarding accommodation, education and employment, search and seizure, and access to pornographic material – orders made – conditions imposed

Legislation Cited:

Crimes Act 1900 (NSW), s 66C
Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5, 5B, 5I, 6, 7, 9, 10A, 10C, 11

Cases Cited:

Attorney General For New South Wales v Tillman [2007] NSWCA 119
State of New South Wales v BG (Final) [2019] NSWSC 200
State of New South Wales v Kamm (Final) [2016] NSWSC 1
State of New South Wales v Steven Single [2019] NSWSC 176
State of New South Wales v Stevenson (Preliminary) [2019] NSWSC 492
State of New South Wales v Sturgeon (No.2) [2019] NSWSC 883
State of NSW v Holschier (No 2) [2018] NSWSC 1921

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Steven James Tannous (Defendant)

Representation:

Counsel:
A Bhasin (Plaintiff)
N Steel (Defendant)

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

File Number(s):

2019/350353

Publication restriction:

Nil

Judgment

1. The State of New South Wales, (“the plaintiff”), commenced proceedings by Summons, filed on 7 November 2019, against the defendant seeking interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). An Amended Summons was filed on 12 December 2019 that refines the conditions proposed as a result of negotiations between the parties.

2. The defendant is presently on parole having been released on 8 March 2018. He had been sentenced on 19 June 2014 to a head sentence of six years and six months (which included a three-year six month non-parole period) for five counts of sexual intercourse with a child aged between 10 and 14 years pursuant to s 66C(1) of the Crimes Act 1900 (NSW). His head sentence will expire on 27 January 2020.

3. The final relief sought is the imposition of an extended supervision order, (“ESO”), for a period of three years during which time it is proposed that the defendant be subject to certain conditions set out in the schedule to the Amended Summons.

4. There was debate about the necessity and appropriateness of some of the proposed conditions which led to further negotiation between counsel. Issue remained regarding conditions 9 (accommodation), 19 (education), 37(a) and 37(b) (searches), and 42 (access to pornographic material).

5. By way of interim relief, the Amended Summons seeks an order that the defendant be subject to an interim supervision order (“ISO”) for 28 days, to be renewed every 28 days for a maximum period of three months.

6. The Amended Summons also seeks orders appointing two psychologists and/or psychiatrists to examine the defendant and furnish reports, that those reports be provided to the Court, and that the defendant be directed to attend those examinations.

7. The usual order limiting access to the Court’s file in respect of any document by a non-party is also sought.

8. The defendant reserves his position in relation to final orders for an ESO but does not resist the making of an ISO, provided that the Court is satisfied that the relevant test is met, that is that the matters alleged in the supporting documentation tendered by the plaintiff would, if proved, justify the making of an ESO on the basis that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision.

9. The comprehensive written submissions of both parties provided clarity as to those matters and the evidence available to support the order.

10. Because the defendant opposed some of the conditions of the ISO proposed by the plaintiff, the preliminary hearing was limited to the legal principles and evidence relevant to the conditions in issue.

Background

11. The defendant is a 40-year-old man with a history of sexual offending. The index offences are the third episode of sexual offending, the second episode involved children and the most serious in terms of the youth of the victim who was only 10 years old.

12. First, in 1999 the defendant committed two counts of indecent assault and one count of threatening injury with intent to commit indecent assault, against an 18-year-old woman. The offences involved the defendant pushing the victim down on a bed, holding her face down, holding a knife close to her face and neck, attempting to handcuff her wrists, rubbing his genital area against her back, turning her over and holding her back on the bed and rubbing his genital area against her genital area. [1]

    1. Remarks on Sentence, Nield DCJ, 1 June 2000.

13. In 2002 the defendant pleaded guilty to committing aggravated indecent assault against a 15-year-old boy which involved him meeting the boy, (whom he did not know) at a skate park, twisting the victim’s arm behind his back, guiding him into a toilet block and pinning him against a wall, taking the victim’s pants down, covering the victim’s mouth and fondling the victim’s genitals. The defendant also exposed his own penis during the assault.

14. Relevant to the question of appropriate conditions and in particular the proposed search condition is that the New South Wales Police facts sheet associated with this 2002 offence stated that police located in the offender’s vehicle a security officer’s silver badge fixed inside a leather wallet, a Stanley knife, tape and rope. In the boot there was a bag containing leather ankle straps and chains, rubber gloves, rope, pegs and condoms.

15. The index offending which occurred in 2012 when the defendant was 33 years old involved a camping trip where the 10 year old victim, who was the nephew of the defendant’s friend, was lured away from the group by the offender on two separate occasions. The offender put the victim’s penis in his mouth three times and put his finger into the victim’s anus on two occasions. Wells DCJ, after a Judge alone trial, found him guilty of all of those offences.

16. According to a report of psychologist Laura Durkin dated 1 May 2014 which Judge Wells took into account on sentence, nothing was indicated in the defendant’s upbringing that explained how it was that he came to commit the offences. He described that his parents were supportive and loving people of good character.

17. The defendant apparently described himself to Ms Durkin as engaging in conduct that was a “bit stupid”. He asserted that he was aggressive, defiant, reckless, impulsive and destructive and “very immature”, and believed that he was cognitively impaired. He mentioned that he began to engage in “delinquent behaviour” involving drug use and some crime, and “struggled” throughout primary and high school.

18. The defendant told Ms Durkin that he has a high libido and has had at least 50 sexual partners since the age of 18, and that he would like to engage in sex several times a day although recognising that generally was not possible. He said that he had learned to control his urges through distraction or occasional masturbation.

19. For the 1999 offending the defendant was sentenced by Judge Nield to a head sentence of three years with a non-parole period of one year taking into account the defendant’s youth, vulnerability, attention deficit hyperactivity disorder and cannabis abuse.

20. For the offending in 2002 to which he pleaded guilty at the first opportunity Judge Delaney, like Judge Nield, found special circumstances and gave a head sentence of four years and four months with a non-parole period of two years and six months.

21. During his incarceration for the 2002 offences, the defendant commenced but then removed himself from the Custody-Based Intensive Treatment program (“CUBIT”), citing that he found the program “too emotional and difficult” and that he “felt lost and confused which led to him being depressed”; he found the homework and group discussion “out of his league and hard to understand,” and could not handle the workload. [2]

    2. Decision not to Participate in Treatment Programme, completed by Steven Tannous, 27 September 2004.

22. The defendant ultimately participated in the CUBIT program between 4 November 2016 and 18 October 2017. In the CUBIT treatment report [3] it was noted that whilst participating the defendant had difficulty complying with program rules and expectations and received seven warnings. It was noted that he had difficulties with self-regulation and engagement in treatment.

    3. CUBIT Treatment Report, Meagan Donaldson and Aimee Press, Senior Psychologists CUBIT, 12 January 2018 at pages 3-4.

23. There is reference to him having been in a long-term relationship with a male partner but in his affidavit sworn 4 December 2019 the defendant stated that this relationship ended in September 2019. [4]

    4. Affidavit of Steven Tannous, sworn 4 December 2019, [64].

24. After release on parole on 8 March 2018 the defendant apparently experienced a high degree of anxiety regarding the need to comply with schedules and thus potentially breaching his parole. Although he had no qualms about being placed on ankle monitoring, he was anxious about it being appropriately charged and at times when the battery went flat this led to heightened anxiety. In his affidavit he outlined that these anxieties led to a conversation with his parole supervisor Nicole, who made a decision to remove the scheduling but keep the monitoring. Understandably his parole has detailed conditions regarding restriction on activities and access to places where children are. He currently lives with his parents except for a short period in August and September 2019 when he was approved to live with his partner.

25. He has been provided with a therapy dog called Blaze whom he trains. He says that he has had difficulty seeking employment because he has to tell employers about his offences. He is on the disability support pension and so does not have a work requirement. [5]

    5. Affidavit of Steven Tannous, sworn 4 December 2019, [84]-[86].

26. The defendant says that he has been seeing a psychologist regularly and recently has sought out his own psychiatrist for assistance, Dr Adam Martin, and this has been helpful. [6]

    6. Affidavit of Steven Tannous, sworn 4 December 2019, [95]-[102].

27. The defendant states that he has stayed off drugs and has not failed a drug test since August 2012, despite having contact with his brother who has an apparent cannabis use problem.

Legislative framework

28. The preliminary statutory requirements for an ESO (and here, an ISO) are in my view satisfied.

29. The Act stipulates in s 6 that the application may not be made until the last nine months of the offender’s current custody or supervision and that it must be accompanied by material relevant to a determination of the appropriateness or otherwise of an ESO as set out in s 9(3) of the Act.

30. That material has been provided and includes amongst other relevant material a detailed Risk Management Report dated 3 December 2019 by Ms Grabham and a supplementary report by the same author dated 24 July 2019, as well as a Risk Assessment Report by Dr Richard Parker dated 26 November 2019 with two updated Supplementary reports by him dated 31 May and 27 September 2019.

31. A preliminary hearing for an ISO is required prior to the final hearing pursuant to s 7(3) of the Act, and the purpose is to determine whether the Court is satisfied that the matters alleged in the supporting documentation would, if proved justify the making of an ESO: s 10A(b) of the Act. If not satisfied I must dismiss the application: s 7(5).

32. If I am so satisfied, I must make orders appointing two psychologists or psychiatrists to conduct separate examinations of the offender and furnish reports.

33. The four prerequisites set out in s 5B of the Act are conceded by the defendant and in my view all satisfied:

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.

34. Sections 5B(a) and (b) of the Act are satisfied as the defendant is a supervised offender because he is an offender who is under supervision while serving a term of imprisonment for an offence of a sexual nature: section 5I(2)(a)(ii). Section 5B(c) is satisfied as the application has been made in accordance with s 5I.

35. In terms of s 5B(d), “serious offence” is defined in s 4 to include a serious sex offence, and defined in s 5(1)(a)(i) to include an offence within Division 10 of Part 3 of the Crimes Act 1900 (NSW) that is punishable by imprisonment for seven years or more. The index offending under s 66C for which the defendant was sentenced in June 2014 is clearly within this Division of the Crimes Act 1900 (NSW).

36. In deciding whether I am satisfied to a high degree of probability that the offender oppose poses an unacceptable risk of committing another serious offence not kept under supervision under the order, I do not have to make a finding that it is more likely than not that an offender will commit a serious offence for there still to be an unacceptable risk, and I may find that a person poses an unacceptable risk even if the likelihood of them committing a further serious offence is low, but there is a high gravity of consequences for the victim: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [43]; State of New South Wales v Stevenson (Preliminary) [2019] NSWSC 492 at [16].

37. Section 9(2) makes it clear that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration. This is consistent also with the primary object of the Act stated in s 3(1) which is the safety and protection of the community.

38. Encouragement of offenders to undertake rehabilitation (s 3(2)) is not a “secondary” object of the Act but is, properly considered, another object of the Act. There should not be any primacy given to rehabilitation of offenders where it interferes with the safety and protection of the community. This is a particularly relevant consideration given this defendant and the nature of his offending – using threats, fear, and physical coercion to sexually offend against children, and the personality and psychological difficulties he apparently continues to exhibit, in particular his sense of entitlement, impulsivity and sexual focus on young boys.

39. As made clear in Attorney General For New South Wales v Tillman [2007] NSWCA 119, (although dealing with the counterpart provision under the previous version of the current legislation):

“[98]    The task assigned by s 16(1)(b) is for the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order (s 16(1)(b)). In determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing that documentation or predicting the ultimate result. The power is enlivened if the supporting documentation would, if proved, justify the making of either category of final order bearing in mind the elevated standard of proof stated in ss 17(2) and (3). That threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Indeed, it is to be considered without taking into account the evidence (if any) called by the offender at the interim hearing: such evidence may go to (relevant) discretionary matters, but would not cast light upon what is alleged in the Attorney General’s supporting documentation.”

40. See also more recently the approach of Hoeben CJ at CL in State of NSW v Holschier (No 2) [2018] NSWSC 1921:

“[25]   The Court’s role at a preliminary hearing is similar to that governing the Court’s power to make interim orders: Attorney General v Hayter [2007] NSWSC 983 at [6]. The test as to whether the supporting documentation “if proved” would justify the ESO is similar to the requirement for a prima facie case to be made out in committal proceedings (NSW v Thomas [2011] NSWSC 118 at [11]. The Court does not weigh the documentation or predict the ultimate result. The test has been held not to be a stringent one, but is rather akin to the “prima facie case” test (State of NSW v Baldwin [2016] NSWSC 1141 at [7]).

[26] The Court must have regard to the matters set out in s 9(3) of the Act in performing its task at the preliminary hearing (Attorney General v Tillman [2007] NSWSC 605. In dealing with interim orders, the Court should give weight to the avoidance of risk (Attorney General v Winters [2007] NSWSC 611 at [7]).”

Section 9(3) Considerations

41. The s 9(3) considerations relevant at this preliminary hearing stage are analysed in the following paragraphs.

Section 9(3)(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

Section 9(3)(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

42. In a report of June 2001 Mr Rendell described the defendant as: [7]

“…a very immature and frustrated young man with a great, yet unsatisfied sense of entitlement. It seems that he experienced early developmental difficulties that left him feeling inadequate relative to his siblings and peers. These issues, together with his diagnosed and untreated ADHD, exacerbated his adjustment/’acting out’ problems throughout adolescence.”

7. Psychological Risk Management/Assessment Report, Graham Rendell, Psychologist, 26 June 2001, page 6.

43. Mr Rendell also identified the defendant as in the high range of risk of sexual recidivism using the Static 99 risk assessment tool. He noted dynamic risk factors such as intimacy deficits, inadequate positive peer social influences, evidence of an inability to generally and sexually self-regulate, lack of investment in offence specific treatment, and a desire to maintain secrecy.

43. In 2003, psychologist W. John Taylor [8] administered a range of tests which showed [9] parameters which indicated overall, a moderate predisposition for sexual recidivism.

    8. Psychological Report, W. John Taylor, 30 October 2003.

    9. Psychological Report, W. John Taylor, 30 October 2003, at pages 6-7.

44. Ms Durkin, psychologist, in May 2014 determined on the application of various risk assessment tools that the defendant had an overall high risk of re-offending.

45. A Pre-Sentence Report by Kate Solomon dated 6 May 2014, applying the various risk assessment tools, determined that the defendant’s risk rating was “high compared to other adult male sex offenders”.

46. The CUBIT Treatment Report dated January 2018 reflects scoring from assessments carried out in October 2017 which placed the defendant in the IV-b category which corresponds to a risk rating of well above average.

47. A detailed risk assessment report dated 31 May 2019 was prepared by Dr Richard Parker in which Dr Parker concluded that the defendant was assessed at being a high risk of committing further sexual offences. He noted that whilst the defendant had completed the CUBIT program, he still employs the same thinking patterns that fuelled his offending which result in a focus on his own desires to the exclusion of other people’s needs. [10]

    10. Risk Assessment Report, Dr Richard Parker, 31 May 2019, at [68].

48. Dr Parker also noted dynamic risk factors such as sexual preoccupation, sexual attitudes and problems with self-regulation. He acknowledged that marijuana use had been a problem in the past but was not a current problem. Dr Parker made reference to what the defendant had told Ms Donaldson in the context of the CUBIT program that his ideal frequency of sex would be “1000 times a day”. Dr Parker said that whilst this is unlikely to lead to offending by itself, in combination with other criminogenic needs, this provides the drive to offend. [11]

    11. Risk Assessment Report, Dr Richard Parker, 31 May 2019, at [52].

49. Dr Parker also identified problematic sexual attitudes held by the defendant and that it was possible that the defendant subscribed to the view of children as sexual beings, or that his emotional state overrode any concerns about his victims or the appropriateness of his conduct. Dr Parker also took the view that there was an “entitlement implicit theory” playing a role in the offending. Overall he considered that the defendant’s inability to delay gratification was closely related to his impulsivity and that this was something that was a substantial problem for the defendant, identified both in the CUBIT program and also noted when he was under community supervision.

Section 9(3)(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

51. The risk management report of 24 July 2019 by Ms Veal and Ms Grabham of Corrective Services NSW notes that the psychological risk assessment undertaken on 5 February 2019 placed the defendant in the high risk category of sexual offending.

52. The report evaluates the defendant’s response to supervision as unsatisfactory and that since his release to parole his response has been “borderline”, primarily due to emotional reactions and behaviour when challenged with decisions with which he does not agree or fully comprehend.

53. In April 2019, due to a deteriorating response to supervision often displaying an aggressive hostile attitude to supervision, a breach of parole report was submitted. That report questioned his ability to adapt to a normal community life due to his deteriorating response to supervision. A concern was expressed that due to the defendant’s difficulty managing his emotions, his risk of reoffending becomes elevated consistently with what was said in the CUBIT treatment report by Ms Donaldson.

54. The defendant’s FPS therapist also indicated about the same time that his behaviour had become increasingly hostile and that his engagement in programs was “superficial”. There was a pursuit of management strategy including weekly face-to-face interviews, random tests, some field visits including scheduled and unscheduled home visits, and referral to additional services.

Section 9(3)(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

55. As already observed, the defendant failed to complete CUBIT in 2004, but reattempted and completed CUBIT in 2017-2018, although not without difficulty. Relevant observations by Ms Donaldson in her report include:

“[18]   Mr Tannous was observed to engage in a pattern of problematic behaviour at times he experienced anxiety, frustration, inadequacy or felt victimised; responding with avoidance, aggression/threats, a sense of entitlement and externalised responsibility. This was also observed by the author when facilitating the group. As he cycled through this pattern, Mr Tannous would then seek to repair therapeutic relationships with therapists and the group, attempt more adaptive coping skills and then report motivation to change his behaviour. However, Mr Tannous did not persevere with practicing new skills when he was not experiencing emotional distress, which resulted in him abandoning new skills and the cycle continuing. Mr Tannous perceived he was purposefully held back in treatment, as he did not complete treatment in his expected timeframe (e.g., July 2017), despite having not completed the required tasks, nor demonstrated changes by this point in time. Overall, he gained insight and intellectual awareness into problematic behaviours and patterns in his life, but did not preserve with making changes.”

56. He indicated a lack of full acceptance of his responsibility for the offending: [12]

“[20]   Whilst Mr Tannous verbalised responsibility for the index sexual offence, he initially reported he could not remember the offending due to drug use, nor understand why he offended against a victim so young. He engaged in similar minimisations of his other sexual offences. According to the Therapist Handover Summary (T. Sweller, 13/07/2017) he reflected on his misunderstanding of behaviour cues, however he considered the first victim's behaviour towards him to be a contributing factor to offending and placed responsibility on her; and referred to his second sexual offence as consensual. As he progressed through treatment, his acceptance of responsibility for his sexual offending increased somewhat. Mr Tannous identified factors that contributed to his decision to commit the sexual offences (e.g., making it all about me(sic) sexual wants, thinking "he wants what I want").

[21]   General acceptance of responsibility is a challenge for Mr Tannous. He is externally motivated and relies on others to regulate his emotions and fix his problems. As a consequence, he struggles to independently identify and intervene in his problematic behaviour, particularly if he is experiencing difficulty managing his emotional response or problem solving. For example, at times Mr Tannous experienced verbal or physical outbursts, he denied engaging in the behaviour despite being observed by staff, he engaged in a victim stance, and attributed his behaviour to other people. When Mr Tannous was calm and made an effort to consider others, he was able to take the view of others, consider how his behaviour may impact on them, and attempt to repair or apologise to others. Further, Mr Tannous could also perspective take retrospectively, including for the victim of his index offence; or when he could relate to a situation. However, his ability to perspective take is enmeshed in his sense of entitlement and attempts to alleviate the discomfort his unmet expectations create. Mr Tannous has an awareness of the problems and emotions he experiences, having reflected on this in treatment, however continues to have difficulty translating his understanding to behaviour. Mr Tannous set goals for his future and despite the opportunity to commence some of these goals in treatment he maintained he will start when he gets out.”

12. CUBIT Treatment Report, Meagan Donaldson and Aimee Press, Senior Psychologists CUBIT, 12 January 2018.

57. The defendant was noted also to maintain sexual thoughts about males aged between 14 and 16: [13]

“[38]    Whilst participating in CUBIT, Mr Tannous was twice provided with a sexual behaviours log to complete, to provide an account of his sexual functioning he experienced in the program; Mr Tannous did not submit either of these tasks. During an individual session held after the completion of treatment, Mr Tannous reported that masturbation was not his primary sexual outlet in custody, preferring to engage in sexual behaviours with others (e.g., "not in the mood to masturbate"); although reported masturbating once every two to three weeks when he is in a one out cell. Mr Tannous reported engaging in sexual behaviours with cellmates or other offenders in various correctional centres, including two sexual partners whilst participating in CUBIT. With some sexual partners, these behaviours were more frequent (e.g., a couple of times a week) and others less frequently or a one-off. He engages in sexual innuendo with others and will need to monitor how this sets the scene for forming sex-based relationships with others. Mr Tannous maintains he is primarily sexually attracted to adult males; however continues to experience sexual thoughts about males typically aged between 14 and 16 years. Sexual thoughts are usually triggered by stimuli on television (e.g., "he's hot") and he is using distraction techniques to manage these thoughts (e.g., changes the channel). Mr Tannous developed a plan to develop healthy sexual thoughts and beliefs which focused on both cognitive and behavioural strategies. If Mr Tannous continues to experience sexual preoccupation and difficulty managing sexual urges, he may benefit from a referral to a Psychiatrist to discuss anti-libidinal options.”

13. CUBIT Treatment Report, Meagan Donaldson and Aimee Press, Senior Psychologists CUBIT, 12 January 2018.

58. There were comments in Ms Donaldson’s report regarding ambivalence towards treatment and expressions of frustration and disengagement during treatment. On seven occasions he expressed an intent to sign himself out, but did not go through with it.

59. It was noted that the defendant still engaged in minimisation of his offending, initially saying that he could not remember the offences due to drug use and that he did not understand why he offended against such a young victim. He argued that the 1999 offences with the adult female victim were consensual, and that “she contributed to them” and that his offence in 2002 was also consensual. It was noted that he progressed through treatment to his acceptance of responsibility “increasing somewhat” but that general acceptance of responsibility remained a challenge.

60. There was concern that he may return to smoking cannabis which “is likely to trigger an increase sexual libido”, although Ms Donaldson did not explain the mechanism of that concern. She mentioned the possibility of the defendant seeking friendships with younger people if he cannot connect with those of his own age, and there is an attendant risk that he would push sexual boundaries with those young persons.

Section 9(3)(e2): The likelihood that the offender will comply with the obligations of an extended supervision order

Section 9(3)(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

Section 9(3)(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

61. Dr Parker noted in his report that since release the defendant has been difficult to manage, reflecting a similar pattern of behaviour to that reflected in the CUBIT case notes, and that if he does not get the response he wants from supervising staff, he will escalate it, bombard them with emails or messages to try and obtain a different answer come from a different staff member, all accompanied by high levels of emotional arousal.

62. It should also be noted that the defendant was on the Child Protection Register when he committed the index offences, and that he committed the 2002 offence whilst he was on parole for the 1999 offences. [14]

Section 9(3)(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

14. Police Facts Sheet, Index Offences, 29 August 2012.

63. This is set out in [11] to [15] of this judgment.

Section 9(3)(h1): The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender

64. The focus of Nield DCJ and Delaney DCJ was on the defendant’s young age, cannabis use and psychological vulnerability at the time of that earlier offending in 1999 and 2002.

65. Relevantly, Nield DCJ noted that the defendant showed no contrition, rejected the jury’s verdicts and blamed the complainant.

66. Delaney DCJ observed that at the time of the offending in 2002, the defendant was on conditional liberty and the victim was 15 years old. His Honour noted the report of W. John Taylor, psychologist, that referred to unstable personality functioning, antisocial and passive aggressive characteristics and high disposition towards substance abuse, but no indication of an emotional disorder.

67. In 2014 Wells DCJ took particular account of the report of Ms Durkin dated 1 May 2014 and the risk assessment Ms Durkin made that the defendant fell into the high risk category for re-offending.

Conclusion

68. In all the circumstances I am satisfied that the material in the supporting documentation, if proved, would justify the making of an ESO. In reaching that conclusion I have borne in mind the need to 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 an ESO (s 5B(d)). I am satisfied that it is appropriate to make an ISO in all the circumstances and I make an order accordingly with conditions as set out in the annexure to this judgment. I also make the related orders sought.

Conditions

69. Section 11 of the Act provides for conditions that may be imposed on a supervision order. Subsection 11(1) provides that an extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, and then goes on to list the type of conditions that may be imposed. Agreement as to the conditions that ought to be imposed have been negotiated and agreed except accommodation (condition 9), education (condition 19), search and seizure (condition 37(a) and 37(b)), and access to pornography (condition 42).

70. The proper approach to the imposition of conditions is set out by the Court of Appeal in Wilde v State of New South Wales [2015] NSWCA 28:

“[47] Section 11 provides that the court may impose such conditions as it considers appropriate. The discretion is broad, but must be exercised having regard to the scope and purpose of the Act and its objects.

[48] The purpose and statutory objects of the Act are referred to above at [25]. The scope of the Act, so far as it is relevant to the making of an extended supervision order, is to be found in those provisions which govern the making and determination of an order, namely, s 9(3) and s 11. The matters specified in those sections are not exhaustive of the matters to which the court is to have to have regard or to which any condition imposed by the court must relate. Rather, as s 9(3) provides, the court must have regard to matters specified in the subsection “in addition to any other matter it considers relevant”. Likewise, the conditions that may be imposed are not restricted to those that fall within the paragraphs of s 11.

[49] The statutory objects listed in s 3 are twofold: the safety and protection of the community and encouraging high risk offenders to undertake rehabilitation. However, it is apparent from the language of s 3 that the listed objects do not exhaustively delineate the scope and purposes of the Act. This is apparent, in particular, from the language of subs (2), which refers to encouraging rehabilitation as being “another object of this Act”. Thus, whilst s 3(2) specifies that an object of the Act is to encourage offenders to undertake rehabilitation, the scope and purpose of the Act is such that it would be permissible for the court, if it considered it appropriate, to impose a condition directed to facilitating rehabilitation, even if that did not require the offender personally to “undertake” rehabilitative steps as is envisioned in the statutory object in s 3(2). It may be appropriate in a particular case to impose conditions that may reduce risk factors relevant to the particular type of offending to which the order made under s 11 relates.

[50] In the present case, the primary judge accepted, at [11], that although the discretion conferred by s 11 was a broad one, it had to be exercised in conformity with the legislative purpose. At [12], his Honour referred, it would appear with approval, to the propositions stated in Green set out above.

[51]    His Honour also quoted the statements of Beech-Jones J in Fisk at [96] and [99], referred to above. At [14], his Honour accepted the appellant’s submission that:

“… the Court must be satisfied as to the appropriateness of any given condition in the context of mitigating the defendant's demonstrated risk of committing future serious sex offences, as opposed to simply being punitive.”

The correct test

[52] The State submitted that this statement is wrong in law and does not reflect the statutory test in s 11. Strictly, this matter should have been raised by a notice of contention. Nonetheless, it was fairly raised in the State’s written submissions and it is necessary to deal with it.

[53] Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.

[54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a ‘demonstrated’ link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30) provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant’s serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant’s association with such groups.”

Condition 9: Accommodation

71. In his written submissions the defendant submitted that the defendant’s family home should be specified as the address where the defendant is required to reside and should not be subject to approval by his DSO. It was argued that this will enable the defendant to have the security and support that this address provides as a place that he can reside under the ISO.

71. This position evolved during argument to the following proposed wording:

“The defendant must live at an address approved by his DSO or at his mother and father’s home unless his DSO reasonably determines that his mother and father’s home is no longer a suitable address.”

73. The rationale behind this position was that it at least provides an opportunity for some stability, given the defendant has been living at this address both before August 2019 and after September 2019, has the readily available support of his parents, and there is evidence this is going well.

74. I was taken to evidence in the Case Notes, particularly those around September and October 2018 when options for housing were being pursued for the defendant by FACS. What those Case Notes show is the difficulties encountered by persons tasked with the role of assisting the defendant to find accommodation. [15] It was difficult to arrange accommodation at short notice, and the expense of rent could well be prohibitive. Even going to a COSP had implications for the defendant because his assistance animal was not yet a registered assistance animal. [16]

    15. Email from Ms Koppen to Elizabeth Seymour, 17 September 2018; File Note of Ms Seymour September 2018.

    16. Case Note Report, 20 September 2018.

75. A Case Note dated 8 October 2019 indicated that the defendant had reported that he was managing the relationship with his brother and was happy to remain in his parents’ home, and that that made things more financially stable. There were also positive observations noted regarding the cleanliness and organisation of the home on a visit.

76. On 14 October 2019 there was a further Case Note that the defendant reported that he found it positive to be at home with his parents and that he was able to avoid his brother in any conflict.

77. The plaintiff maintained that it was critical to the success of the accommodation arrangement that the DSO could review the situation in the event that the defendant’s parents’ address was no longer considered appropriate. The expressed concern was the presence of the defendant’s brother living in the house and the acknowledgement that this brother had issues with illicit drug use.

78. There is evidence in the defendant’s affidavit of his concerns and observations in that regard:

“[63] In around July 2019, I decided I had to move out because I was having issues with my brother Paul. Paul has issues with cannabis use, and I felt it was too risky for me living with him at the time. I finally got approved to live at a place I found in Winston Hills and moved in with Alex on 14 August 2019.

…

[65] Although my brother Paul still has issues with cannabis, I don't think he smokes in the house anymore. I'm respectful to him but try to keep my distance so we keep out of each other's way.

[66] I get along well with mum and dad, and they are always there to support me. I respect that it's mum and dad's house and their rules while I'm there. I don't have plans to move out any time soon, but I would like to work towards living independently.

…

[114] I've been drug tested a number of times while on parole and I've never failed. I manage my cravings by understanding the effect the drug will have on me. I'm not a 'one-cone person’, and I know if I have even a small amount of cannabis I will go back to daily use and the unhealthy thought patterns and behaviours I used to.

[115] I know it's a major risk factor for me and that it's all about 'Thought - Feeling - Behaviour' - I learned that from CUBIT actually, but it's helped me to keep clean ever since. I'm determined never to use again. Even though my brother has issues with cannabis still, I feel like I'm in a better space now to manage that risk. He's mostly out these days, and doesn't smoke in the house.”

79. In my opinion the concerns expressed by the defendant about his brother’s drug use and presence in the family home can be viewed through two different lenses. The defendant’s affidavit evidences that his brother’s drug use is an issue but there is an awareness of the need to keep his distance from his brother and to stay away from drug offending given his own risks in relation to that. The evidence overall supports a conclusion that the defendant has in fact remained drug-free since 2012. What he says about the complexities of the position with his brother indicates a good level of insight and understanding. There is also undoubtedly a protective aspect for the defendant associated with the stability of being at home with his parents.

80. There is persuasive evidence of the multiple difficulties associated with the defendant having to find other housing. The difficulties are not just financial but practical. This is made very clear in the references in the Case Notes to which I was taken by counsel for the defendant. However, the plaintiff does need to retain discretion to require an alternative position it if becomes untenable.

81. I am of the view that the form of condition proposed by the plaintiff in respect of accommodation is appropriate. It allows a level of monitoring and flexibility without losing the support and stability of the defendant being able to live in the family home, at least until any obvious unresolvable problem emerges, particularly as he transitions to supervision under the ISO. I have made a slight adjustment to the wording proposed by the plaintiff by rearranging the words to reflect the current residential position.

Condition 19: Employment and education

82. Given that the defendant is on a disability support pension it is common ground that deleting the requirement for the defendant to work was appropriate. The observations of Fagan J in State of New South Wales v BG (Final) [2019] NSWSC 200 at [58] are apposite:

“[58]   I will not impose Condition 18. A term requiring availability for employment or training may be justifiable in a parole order where, if the parolee will not make himself so available, it may be appropriate that he should serve out the rest of his sentence in full-time custody. The considerations are very different in relation to an ESO, which takes effect when the defendant’s sentence has expired. The effect of a condition in the terms proposed would be to criminalise refusal to work or train, exposing the defendant to a substantial term of imprisonment additional to any that has otherwise been fixed for any criminal offence. It is obviously highly desirable that he should work and/or undergo training. But the protection of the community and the rehabilitation the defendant do not so critically depend upon this as to justify a condition under which it would be a crime for him to refuse work.”

83. The defendant submitted that to require the defendant to comply with condition 19 as presently drafted means potentially his failure to cooperate with every suggestion about education and occupation of his time considered reasonable by his DSO, has the very serious implication of a potential finding of a breach of the ISO (or ESO) and the potential for a further period of imprisonment to be imposed to a maximum of five years under the legislation.

84. JIRS statistics tendered showed a significant number of persons who went before the criminal justice system for a breach of an ESO were imprisoned for a period of six months or more.

85. It was argued that the condition was not appropriate. There was no real connection shown to how it would reduce any offending risk. It evidenced a paternalistic attitude rather than a connection to risk or rehabilitation.

86. Counsel for the plaintiff argued that it is appropriate for the defendant to be required to make himself available for education, training, or participation in a personal development program as directed by the DSO, in order to facilitate his engagement in constructive and pro-social activity, and to mitigate the risk of reoffending arising from his sexual preoccupation, his difficulties with emotional self-regulation and his potential to relapse into illicit substance abuse which was associated with his past offending. It was also submitted, correctly in my view, that there is no evidence that every breach of an ESO condition leads to prosecution; many are treated with warning and never go to court.

87. However I am of the view that condition 19 is not appropriate, and I accept the defendant’s submission in this regard. There is no suggestion in the material tendered by the plaintiff that any of the offending was born of the defendant not having sufficient occupation with his time. It was all opportunistic and occurred at times when it seems that the defendant had a job. I embrace the position taken by Fagan J in State of New South Wales v BG (Final) [2019] NSWSC 200 at [58]. I decline to impose condition 19.

Part J: Search and Seizure

88. I take the view that it is appropriate to circumscribe and/or reasonably limit searches to ensure that there are built in checks and balances against the misuse of search and seizure power in circumstances where no legislative limits, such as are imposed on police officers in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

89. Reliance was placed by the defendant on the approach taken by Hamill J in State of New South Wales v Steven Single [2019] NSWSC 176 at [53]. I agree that approach has much to recommend it. There his Honour said:

“[53] I propose to make an order requiring that Mr Single consent to search and seizure from time to time. However, I intend to fashion conditions so that the power is less open-ended than the conditions formulated and proposed by the State. While I am not constrained by the terms of the search power contained in s 16C of the Registration Act, I have considered the terms of that provision in formulating the conditions that will attach to the ESO.”

90. This led to the addition of condition 38A which I consider to be an appropriate limit on search frequency in this case:

“A search under condition 37(b) – that is, a search for the purpose of monitoring the defendant’s compliance with this order – may only be carried out three times in the first year of this order, twice in the second year, and once in the third year.”

91. Oral argument was confined to whether the search and seizure provisions ought to be triggered by the DSO’s reasonable belief that a search is necessary: 37(a) “for the safety and welfare of residents or staff or persons present at the defendant’s approved address or secondary preapproved overnight address”; and 37(b) “to monitor the defendant’s compliance with this order.”

92. The defendant accepted that proposed condition 37(c) “because the DSO reasonably suspects the defendant has either breached the conditions of this ESO or engaged in conduct associated with an increased risk of the defendant committing a serious offence”, is an appropriate trigger for search and seizure.

93. It was argued that the insertion of condition 38A, which limits the number of searches that can be performed, was not sufficient to protect the defendant from unnecessary interference.

94. In my opinion, given the impulsive and opportunistic nature of a number of the defendant’s previous offences, some of which were committed against young children, and which involved their removal to another location and physical coercion, and given the concerning list of items found in the defendant’s car at the time of his offending in 2002, the condition as proposed by the plaintiff is appropriate, particularly given the tempering of the permissible frequency of condition 37(b) searches by the limits prescribed by condition 38A.

95. Conditions 37(a) and 37(b) remain unaltered.

Condition 42: Access to pornography

96. The defendant argued that this condition should be deleted because there is no evidence that there is any connection between the defendant viewing legal pornographic, violent or classified material and his prior offending behaviour. The principles in State of New South Wales v BG (Final) [2019] NSWSC 200 at [80]-[81] were cited:

“[80]    The plaintiff seeks a condition that the defendant should not possess or have access to pornographic material that would be classified as “Refused Classification”, or that would be in one of the highly restricted categories of classification, or other pornographic material as directed by his DSO. The defendant proposed some narrowing of this constraint but did not accept that a condition regarding access to any sort of pornography was justified. I find nothing in the evidence to indicate that past violent or sexual offending by the defendant has been in any way connected with his viewing of pornography. The expert witnesses referred to uncertainty, in psychological and psychiatric discourse, regarding a connection between the watching of various kinds of pornography and the risk of commission of sexual offences. Whatever the state of uncertainty about this with respect to the population generally, there is no evidence that would warrant imposing such a restriction on this defendant.

[81]    It might well be said that giving the DSO power to forbid him from watching X18+ pornography would not be a very significant intrusion upon his liberty. However that is not the only consideration. In considering all proposed conditions the Court must bear in mind, as mentioned already in this judgment, that imposing them has the effect of proclaiming against the defendant a prohibition to which no other member of the community is subject, the infringement of which would be punishable by up to 5 years imprisonment. A prohibition of that nature is not to be imposed lightly or merely for more abundant caution. It has to be justified on the evidence and shown to be material to the protection of the community.”

97. The plaintiff maintained that the condition permitting the defendant to view pornographic material only with prior approval of his DSO, was appropriate to monitor the defendant’s identified risk factor of sexual preoccupation which provides his drive to reoffend.

98. The plaintiff amended the initially proposed condition to limit it to sexually explicit material and to remove from the preclusion, material classified due only to violent or other content and to material classified R18+.

99. Having considered the submissions and the authorities I am of the view that this condition ought not be imposed. There is no evidence linking the offending risk to the defendant watching pornography, and I do not consider the condition to be protective or helpful in facilitating rehabilitation.

Orders

1. Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006(“the Act”) I appoint two qualified psychiatrists and/or registered psychologists 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.

2. I direct the defendant to attend those examinations.

3. Pursuant to s 10A of the Act, the defendant is subject to an interim supervision order commencing on 28 January 2020.

4. Pursuant to s 10C(i) of the Act, the interim supervision order is for a period of 28 days.

5. Pursuant to s 11 of the Act, I direct that the defendant, for the period ofthe interim supervision order, comply with the conditions set out in theSchedule to this judgment.

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

**********

Schedule of Conditions of Supervision - Tannous - 19.12.2019 (153 KB, pdf)

Endnotes

Amendments

02 March 2020 - 02 March 2020 - deletion of personal details (address) at paragraph 72

02 March 2020 - deletion of personal details (address) in Special Conditions

Decision last updated: 02 March 2020