State of New South Wales v Wiggins (a pseudonym) (Preliminary)

[2023] NSWSC 1553

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Wiggins (a pseudonym) (Preliminary) [2023] NSWSC 1553

Hearing dates:

11 December 2023

Decision date:

15 December 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1)    Two qualified psychiatrists and or registered psychologists (or any combination of two such persons) as agreed by the parties are to conduct separate psychiatric and/or psychological examinations of the defendant and are to furnish reports to the Court on the results of those examinations by a date agreed by the parties.

(2)    The defendant is directed to attend those examinations referred to in Order (1).

(3)    The defendant is to be subject to an interim supervision order commencing on 24 February 2024 for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined.

(4)    The defendant is directed to comply with the conditions annexed to this judgment for the period of the interim supervision order.

(5)    Access to the Court’s file or any document shall not be granted to a non-party without leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

Catchwords:

HIGH RISK OFFENDER – Preliminary hearing – Serious sex offender – Application for interim supervision order – Whether supporting material would if proved justify the making of an extended supervision order

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Crimes (High Risk Offenders) Act 2006 (NSW), ss 4, 5, 5B, 5D, 6, 7, 9, 10A, 10C, 11,

Crimes (Sentencing Procedure) Act 1999 (NSW), s 89

Cases Cited:

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

State of New South Wales v Brooks (Final) (No 2) [2023] NSWSC 1369

State of NSW v Wiggins (a pseudonym) (Final) [2022] NSWSC 67

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Wiggins, a pseudonym (Defendant)

Representation:

Counsel:
Mr K Ng (Plaintiff)
Mr J Wilcox (Defendant)

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

File Number(s):

2023/350206

JUDGMENT

1. HIS HONOUR: By a summons filed on 3 November 2023, the plaintiff seeks interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). Orders are sought for the appointment of two forensic psychiatrists and/or psychologists to examine the defendant and furnish their reports to the Court, and directing the defendant to attend their examination: s 7(4) of the Act. The plaintiff also seeks orders subjecting the defendant to, and obliging him to comply with, an interim supervision order (an ISO) for a period of 28 days from 10 February 2024: ss 10A, 10C(1) and 11 of the Act. That date, the plaintiff submits it is the expiration date of an extended supervision order (an ESO) that was made by Button J on 10 February 2022: State of NSW v Wiggins (a pseudonym) (Final) [2022] NSWSC 67. There is a degree of controversy between the parties as to when the ESO commenced, since his Honour did not expressly nominate a date. I will return to that issue at the end of this judgment.

2. By way of final orders, the plaintiff seeks an ESO for a period of 2 years and an order requiring the defendant’s compliance with it: ss 5B, 9(1)(a) and 11 of the Act. Finally, an order is sought that would prevent access to the Court file by a non-party without prior notification to the parties, so as to allow them an opportunity to be heard.

3. The defendant was assigned the pseudonym “Wiggins” by Button J, to protect the identification of his daughter who is a victim of one of his offences. An order to that effect in these proceedings was also made by Yehia J by consent on 14 November 2023. An amended summons was filed in Court at the hearing of this application, on 11 December 2023, that adopts that pseudonym and has modifications to three of the proposed conditions of the ISO, if one is made.

Relevant statutory provisions

4. Sections 5B(a)-(c), 6 and 10A of the Act set out the relevant timeframe, status of the defendant and documentation which must accompany the application. 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. 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, which is embodied in s 5B(d) of the Act:

“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 –

…

(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.”

5. A “serious offence” is defined in s 4 of the Act as being either “a serious sex offence” or “a serious violence offence”. It is not suggested by the plaintiff that there is a risk of the defendant committing a serious violence offence; his criminal history suggests that any future serious offending would be of a sexual nature. A “serious sex offence” is defined in s 5(1) of the Act to mean certain offences in the Crimes Act 1900 (NSW), the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth).

6. I also note s 5D of the Act, which provides that in determining whether to make an ESO or a continuing detention order, 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.”

7. The defendant accepts that the statutory prerequisites for an application for an ISO and ESO are established, and I am independently satisfied that the application meets those requirements.

8. The defendant submits that the Court would not be satisfied that the test in s 5B(d) of the Act is established, so that pursuant to s 7(5), the application should be dismissed. In that circumstance, the defendant would seek an order for costs.

9. Pursuant to s 10A, if the test provided in s 7(4) of the Act is satisfied, that is, that if it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, and that the defendant’s current supervision will expire before the proceedings are determined, then the court may make an order for an ISO: s 10A(a) of the Act; that is, it is a discretionary power.

The defendant’s background, criminal record and progress under his current ESO

10. The material tendered on the application included a joint statement of agreed facts, which has an overview of the defendant’s personal history, sexual offending and treatment, as follows (footnotes omitted):

“1.   [The defendant] is a 74 year old man …

…

3.   From a young age, the defendant had to care for his siblings. This was a result of his mother’s admission to a psychiatric facility, a workplace injury causing the loss of his father’s leg and a learning disability suffered by his older brother.

4.   The defendant’s father died when he was 14 years old. From this period, the defendant and his siblings were separately placed into foster care. The defendant has reported that his foster father (or his stepfather) was violently and sexually abusive to him.

5.   From the age of 18, the defendant was left to his own devices without any supports. His first criminal convictions occurred from 1966, for petty crimes of vagrancy, stealing and theft. He first entered custody around this time and has reported being sexually abused whilst in custody.

6.   The defendant has had two long-term relationships during his lifetime. He has fathered nine children; four to his first relationship and five to his second relationship.

7.   The defendant’s first long-term relationship was his marriage of 8 years, which ended upon his wife’s death from cancer. The defendant has recently spoken positively about this relationship, having described it as ‘idyllic’. Following his wife’s death, the defendant’s children were removed from his care.

8.   After his wife’s death and following the removal of his children from his care, the defendant heavily consumed alcohol, experienced unemployment and homelessness, and encountered depressive thoughts.

9.   The defendant’s second long-term relationship commenced in Victoria with his de-facto partner. He was approximately 40 years old at the time. The defendant describes this relationship in a negative light, with it ending on her request for a separation and with knowledge that she had been unfaithful to him.

Serious Sex Offence and Other Offending

10. On 8 February 2007, the defendant was convicted of the offence of aggravated indecent assault against a person under the age of 10 years contrary to s. 61M(2) of the Crimes Act 1900. This offence was committed on 18 September 2003 and the victim of this offending was his natural daughter (‘C11’) who was aged 6 years and 5 months at the time. The defendant’s daughter suffered from cognitive impairments and, at the time, was in the care of the Department of Community Services.

11.   For this offending, the defendant was [sentenced] to a term of imprisonment of 4 years, 11 months and 2 weeks, with a non-parole period of 2 years and 3 months. This sentence commenced on 8 February 2007 and expired on 21 October 2011. The non-parole period expired on 7 May 2009.

12.   In May 2005, the defendant was accused of having committed other offences of indecent assault against children in Victoria (during September 2001) but was acquitted after a hearing, with costs ordered against the Chief Commissioner of Police.

13.   Between 8 February 2007 and 21 July 2009, the defendant was detained in custody to serve his sentence for the offence of aggravated indecent assault against C11. He was granted parole on 21 July 2009. During this time in custody, the defendant competed the CORE (CUBIT Outreach) programme for the first time on 12 June 2009.

14.   After his release from custody on 21 July 2009, the defendant became subject to the requirements contained in the Child Protection (Offenders Registration) Act 2000 and the Child Protection (Offenders Prohibition Orders) Act 2004.

15.   On 12 February 2010, the defendant was convicted of the offence of failing to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000. This offending consisted of the defendant contacting two children from a family that he had befriended between July and October 2009. Police were aware that the defendant had shared a bedroom with one child and, on at least two occasions, a bed with the other child. All members of the family, including the children’s parents, were developmentally delayed.

16.   The defendant was sentenced to 9 months’ imprisonment for this offence.

17. Between 13 November 2009 and 23 June 2011, the defendant returned to custody for the sentence referred to at [11] above and for his sentence of the offence of failing to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000. He was granted parole on 23 June 2011. During this time in custody, the defendant completed the CORE Moderate-Low programme for a second time on 2 December 2010.

18.   After his release from custody on 23 June 2011, the defendant was convicted of the following offences under the Child Protection (Offenders Registration) Act 2000 and the Child Protection (Offenders Prohibition Orders) Act 2004:

○   On 1 July 2016, the defendant was sentenced to 3 months’ imprisonment for failing to report the fact that he had babysat children in the company of others on 3 March 2016.

○   On 13 February 2017, the defendant was sentenced to 9 months’ imprisonment for having unauthorised contact (via Facebook Messenger) with a vulnerable person named in a prohibition order.

○   Also on 13 February 2017, the defendant was sentenced to 13 months’ imprisonment, with a non-parole period of 10 months, for failing to disclose the existence of the Facebook Messenger account used to contact the vulnerable person referred to above.

Sexual intercourse with a person with a cognitive impairment

19. On 6 April 2020, the defendant was convicted of the offence of sexual intercourse with a person with a cognitive impairment contrary to s. 66F(3) of the Crimes Act 1900. This conviction followed the defendant’s plea of guilty.

20.   That offending related to the defendant (while aged 66 years) commencing a friendship with the victim (‘V1’) in January 2016. She was aged 24 years at the time and had an intellectual disability. V1 was living in supported accommodation due to her cognitive impairment.

21.   On 24 January 2016, the defendant and V1 had penile/vaginal intercourse in a caravan located in the annexe of a backyard of a friend’s house in Sydney. Before this intercourse, V1 told the defendant that she was not interested and did not want to do anything with him. …

22.   On 6 April 2020, the defendant was sentenced to imprisonment for 3 years, with a non-parole period of 18 months. This sentence commenced on 29 October 2018 and expired on 28 October 2021. The non-parole period expired on 28 April 2020. The defendant was released to parole on this date.

…

Further Offending since the Previous Application

29.   On 10 December 2020, the defendant was arrested for charges in relation to offences against the Child Protection (Offenders Registration) Act 2000 and the Child Protection (Offenders Prohibition Orders) Act 2004.

30.   During his arrest, the defendant stated that he had an email address and access to the internet via his mobile phone which had not been previously reported to Police. … [T]he defendant was charged with offences of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000.

31.   The defendant pleaded guilty to the offence at [30] on 14 December 2021 (a day after the final hearing of the previous application) and was subsequently sentenced to 10 months’ imprisonment with a non-parole period of 5 months. The other charges at [29] were withdrawn.

32.   This sentence commenced on 28 August 2021 and expired on 27 June 2022. The defendant’s non-parole period expired on 27 January 2022.

Progress during Current ESO

33.   Between 30 April 2022 and 31 August 2023, the defendant was issued with 4 formal warnings for breaches of the current ESO.

34.   The defendant has not progressed from Stage 1 monitoring under the current ESO. From March 2023, CSNSW engaged in discussions regarding a proposed progression to Stage 2 monitoring, however this was not a result of the defendant’s compliance with the ESO; rather, this progression was discussed as a means of incentivising further compliance with the ESO via the removal of scheduling conditions.

35.   Since August 2023, the defendant has progressed from fortnightly contact with the Forensic Psychology Service (‘FPS’) of CSNSW to monthly contact as a result of his stabilising risk level and placement within the community. Whilst making this decision, the FPS recorded that the defendant rarely incorporated feedback from group sessions.

36.   From September 2022, CSNSW became aware that the defendant had befriended a woman at a local coffee shop aged in her fifties [“Shirley”]. ^[1] It is reported that [Shirley] has a cognitive impairment. During October 2022, the defendant told the FPS about conversations he had had with [Shirley] …

37.   On 9 April 2022, the defendant was issued with a direction to not associate with any vulnerable person, including any person with any cognitive impairment. On 20 October 2022, following his contact with [Shirley], the defendant was issued with a formal warning for breaching this direction.

Fail to Comply with ESO [Conditions]

38.   On 19 January 2023, the defendant was charged and convicted for two offences of failing to comply with the current ESO. He was sentenced to a community corrections order (‘CCO’) for 2 years for these offences, requiring him to comply ‘with all reporting obligations and supervision requirements outlined in [the current ESO]’ until 19 January 2025.

39.   These offences related to the defendant’s contact with his stepson (‘C2’) whilst at a shopping centre, and failing to comply with a direction issued by his DSO to return home after such contact was noticed. The defendant’s stepson has previously been on a child protection register for sexual offences.”

1. A pseudonym.

11. I note that the tendered material includes three charge sheets dated December 2022, alleging historical acts of indecency against a child under 16 years, allegedly committed by the defendant in Victoria between 2000 and 2003. The current status of those charges is unclear from the material, although it would appear that they remain outstanding. [

An ESO Completion Risk Assessment Report

12. The plaintiff tendered an ESO Completion Risk Assessment Report (RAR), dated 9 March 2023, that was prepared by Tim Wu, who is a psychologist of the Serious Offenders Assessment Unit, Corrective Services NSW (CSNSW). I note Mr Wu did not interview the defendant. Rather, his assessment was based upon an earlier risk assessment report prepared by psychologist Dr Richard Parker dated 3 March 2021, the judgment of Button J dated 10 February 2022, progress notes from FPS, Offender Integrated Management System (OIMS) notes, consultations with the defendant’s Departmental Supervising Officer (DSO) and a Community Sex Offender Programs psychologist, and notes of two formal warnings that were given to the defendant on 7 May 2022 and 3 June 2022. Mr Wu did not undertake a new risk assessment.

13. Mr Wu concluded, on the basis of the material, that the defendant’s areas of risk included cooperation with supervision, general self-regulation deficits, and intimacy deficits but not sexual self-regulation deficits. He regarded the defendant’s poor compliance with his conditions of supervision and directives from authority figures as his most salient risk area. He summarised those shortcomings that are noted in the OIMS records as follows:

“He has received warnings for deviations, which have often been in the context of running out of food, cigarettes or money, and issues with ramps and lifts being out of order (OIMS Case Notes, 19/02/2022; 09/08/2022; 05/10/2022; 14/10/2022; 27/12/2022; 25/01/2023). He has continued to demonstrate deviations from approved schedules, forgets to call the Electronic Monitoring team, and does not check his approved schedule (OIMS Case Notes, 12/01/2023). His desire to maintain contact with his son and younger daughter have also resulted in warnings as well, and he has generally appeared resistant to directions regarding non-association despite such warnings (OIMS Case Notes, 03/06/2022). His interactions with the ESO team have at times been hostile (FPS Progress Notes, 16/06/2022; OIMS Case Notes, 11/08/2022) but he is not generally aggressive. It is recommended that he continues to receive high levels of support with following his conditions, and that his associates in the community continue to be monitored for anti-sociality and vulnerability.”

14. On a somewhat more positive note, Mr Wu observed:

“[The defendant] has made efforts to reintegrate into the community, by sourcing his own rental accommodation and developing social networks. He has progressed to monthly contact with FPS although he remains on Stage 1 of electronic monitoring. [The defendant] has not been charged with any new sexual offences although it is noted that he had some concerning contact with a woman who had a cognitive impairment … . His current overall level of risk is estimated to be the same as that assessed in his initial report being in the Average range, although it is noted that there has been no formal risk assessment scored for the purposes of this report.”

15. Mr Wu recommended that there be a further ESO:

“The ultimate opinion for CHRO completion reports is to assess whether an ESO has rehabilitated an offender (and/or allowed for an adequate support network to be established outside of Justice), or simply contained his risks of committing a further sex offence. The ESO, for [the defendant], appears to have only contained the risk of him possibly accessing another victim and committing a serious sexual offence. He has not shown ability to self-manage high risk situations or apply relevant management strategies. The removal of the ESO is unlikely to influence [the defendant’s] positive reintegration with the community, but it will leave him unsupported to manage associations that could be problematic or risky for him. Given his lack of progression through the stages of electronic monitoring, and a recent breach which indicated a willingness to ignore non-association directions, a further ESO appears warranted and an application is recommended under the HRO Act. A further ESO would allow [the defendant] to continue receiving monitoring of his associations for vulnerable persons, and possibly progress through the stages of electronic monitoring to demonstrate ability to self-manage risk. However, it is noted that his prognosis to develop self-regulation skills is poor, given his history of repeated breaches and failure to learn from past mistakes.”

16. Mr Wu summarised the defendant’s level of risk as follows:

“Based on a perusal of the above risk factors, [the defendant’s] dynamic risk and combined risk level do not appear to be significantly different from his assessed level of risk from the initial report which is in the Average range. His schedule deviations do not seem related to the possible commission of sexual offences (although may result in breaches of his ESO and imprisonment) but his continued associations with vulnerable individuals (women with cognitive impairments) would indicate elevated risk of sexual reoffending. He is more likely to engage in a breach of his ESO and be returned to custody on that basis than he is to engage in a contact sexual offence with children or vulnerable individuals, due to the level of supervision and monitoring he is currently subjected to.”

A fresh risk assessment report

17. A risk assessment report dated 11 August 2023, prepared by Dr Parker, was tendered by the plaintiff. Dr Parker is a senior psychologist with the Serious Offenders Assessment Unit of CSNSW. Dr Parker interviewed the defendant most recently for his report on 8 August 2023.

18. Dr Parker recalled that the defendant had previously been assessed as being of average intelligence but doubted that was so: “my impression during interviews and through reading the s 25 materials is of someone who does not function in the average range”. Dr Parker noted research to the effect that a person can score well on formal intelligence tests, but still behave “foolishly”, known as “dysrationalia”. He stated:

“This is consistent with the various ways [the defendant] has described (or denied) his offending and his poor response to treatment. It is also consistent with [the defendant’s] frequent disregard of conditions of his Order, such as the frequent deviations from his schedule of movements and associating with his daughter (previous victim, who is vulnerable) and his son (who has convictions for sexual offences), despite warnings and despite admitting to a strong dislike of custody.”

19. Dr Parker reviewed FPS case notes that indicated that the defendant had engaged with FPS and was cooperative, but had “a tendency to become tangential in conversations and has difficulty internalising advice from others”.

The administration of risk assessment instruments

20. As to the results of risk assessment instruments that had been administered to the defendant, Dr Parker noted that on 24 April 2023, the defendant had been assessed with the Level of Service Inventory-Revised (the LSI-R), which assesses static and dynamic risk factors that are related to general offending. It yielded a score of 30 out of a possible 54, which placed him in a “medium” range of such reoffending. Dr Parker said:

“According to CSNSW data, 54% of offenders who were assessed as medium, reoffended and were returned to CSNSW within two years. I note this score has increased since my earlier report, reflecting a lack of progression throughout the Order.”

21. In his earlier report, dated 3 March 2022, Dr Parker referred to an assessment of the defendant on the LSI-R in September 2020 that yielded a score of 22 out of a possible 54, which is also classified as being in the “medium” range of general reoffending.

22. Dr Parker noted that the STATIC-99R, which is designed to assist in the prediction of sexual recidivism, was administered to the defendant in 2017. He was assessed as having an “average risk” of sexual recidivism, which Dr Parker explained as follows.

“Compared to other adult male sex offenders, [the defendant’s] score is in the 30th percentile. Taking into account that about 16% of sex offenders shared the same score as [the defendant], the percentile means that roughly 22% of offenders scored lower than [the defendant], and 62% scored higher.”

23. Dr Parker noted that the defendant was assessed in August 2023 with the STABLE-2007, which is an actuarial tool for identifying stable dynamic risk factors for sexual reoffending, which are intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation. His score placed him in the “moderate” risk category, relevant to other male sex offenders. His major risk factors were social influences, deviant sexual interests and cooperation with supervision.

24. Dr Parker combined the STATIC-99R and STABLE-2007 results, which yielded an “average overall risk level”. Finally, Dr Parker personally administered the Violence Risk Appraisal Guide-Revised (VRAG-R), which is an actuarial risk assessment tool specifically developed to assess the risk of violent reoffending for serious offenders, including both sexual and violent offenders. The defendant’s score was equal to, or higher than, the score of at least 74 per cent of the construction sample, which placed him in the seventh of nine “bins”. Dr Parker noted that 45 per cent of violent offenders with a similar score reoffended violently within five years, and 69 per cent within 12 years.

25. Dr Parker opined that the defendant had targeted victims based on their level of compliance, that is, their inability to resist, rather than because they were specifically children or persons with an intellectual disability. Dr Parker thought that the lack of intimacy in the defendant’s life, consequent to his difficulties in forming long-term consensual relationships, drove him towards vulnerable females. Dr Parker continued:

“[The defendant] also appears to have an external locus of control, whereby he sees himself as a victim of circumstances, rather than someone who has agency over their life. Consequently, the punishments delivered by the courts have had little impact upon his behaviour. While he has completed the CORE program twice and continues to participate with FPS, he does not appear to have internalised the key components of these interventions – particularly the need to avoid risky situations – although he can articulate the suggested strategies.”

26. Dr Parker thought this harked back to the issues of the defendant’s dysrationalia:

“The lack of urgency in reporting his contact with children, and his frequent non-compliance with non-association directions, suggests that he is unable to comprehend the seriousness of this behaviour. While it is common for offenders to personally see nothing wrong with their behaviour, they generally understand that other people view this behaviour differently and can comprehend the intensity of that difference. With [the defendant], this does not appear to be the case.”

Risk scenarios

27. Dr Parker considered risk scenarios for the defendant:

“[The defendant] appears to have little drive to restrain himself from committing sexual offences and there is little sign that this is about to change. Consequently, any scenario for future offending will involve a situation where there is a vulnerable female and a lack of capable supervision. In this context, vulnerability may be a result of age, intellectual disability or intoxication.”

Other forensic reports

28. The plaintiff also relies upon two reports that were prepared for the final hearing before Button J, by a forensic psychologist, Dr Chelsey Dewson, dated 23 November 2021, and by a forensic psychiatrist, Dr Jeremy O’Dea, dated 29 November 2021. Ms Dewson assessed the defendant as having a “moderate” risk of committing a further sexual offence, stating:

“… it appears that [the defendant] is at risk of targeting children and/or vulnerable populations, with risk factors relating to impulsivity, poor coping, sexual entitlement, intimacy deficits and poor compliance with supervision. It is my opinion that [the defendant] is most at risk of committing an offence when he has unsupervised access to children and/or forms friendships/relationships with vulnerable populations (such as those with a disability).”

29. Dr O’Dea diagnosed the defendant as having a personality disorder with significant antisocial traits. He said, referring to the defendant’s 2016 offence against a woman with a moderate degree of intellectual disability:

“Whilst it would be difficult to be definitive; [the defendant’s] sex offending behaviours against the adult female may be better understood in the context of a lack of control of sexual urges in the company of a vulnerable female, rather than driven by strong and specific sadistic sexual urges or fantasies, or by a specific arousal to or preference for coercive sexual activity.

Furthermore, even taking into consideration the alleged sex offences of 2001 and 2002, it would be difficult to be definitive as to whether [the defendant] was acting on specific and strong paedophilic sexual urges and fantasies; his conduct in relation to these sex offences may be better understood in the context of [the defendant’s] lack of control of more general sexual urges and drives with vulnerable females, including female children, rather than as evidence of strong and specific paedophilic urges and fantasies.”

Current treatment of the defendant

30. For the purposes of the exercise of the Court’s discretion pursuant to s 10A(a) of the Act, the defendant relied upon a letter dated 7 December 2023 from a psychologist who has been treating him with cognitive behavioural therapy. She has had 11 sessions with the defendant since 29 December 2022. The defendant was referred to her by his General Practitioner. The defendant accepted that, consistent with the authority of Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], evidence called by the defendant at the preliminary hearing may only go to discretionary matters.

The parties’ submissions

Submissions by the plaintiff

31. In submitting that the material establishes an evidentiary basis for the Court to make an ISO, the plaintiff places considerable reliance upon the increase in the defendant’s score on the LSI-R test since it was first administered to him three years ago, his resistance to compliance with the directives of his DSO and his two formal breaches of his ESO.

Submissions by the defendant

32. The defendant submits that the defendant’s poor compliance with the directions of his DSO pursuant to the conditions of the ESO, while regrettable, does not reflect directly upon the level of his risk of committing a serious offence of a sexual nature. Although he was charged and convicted for disobeying a directive to not have contact with his son, he was subsequently approved to have such contact and his son was in Court supporting him on the hearing of this application. The multiple warnings he received for other breaches that were not the subject of charges also did not involve the commission of sexual offences.

33. The defendant notes that he disclosed his casual friendship with Shirley to the DSO and, according to his account of their conversations, he played a protective role towards her. His engagement of a treating psychologist, of his own volition, was evidence of his awareness of his need to continue to address his psychological issues with the benefit of professional help.

34. The defendant submitted that in the event that an ISO was not made, he would be supervised in any event pursuant to the CCO. While the level of supervision would not be as extensive (it could not involve electronic monitoring, for example) it would nevertheless provide a level of supervision that would address any risk of the defendant committing a serious sexual offence.

35. Alternatively, the defendant submits that the court would exercise the discretion that is available pursuant to s 10A(a) of the Act to not make an ISO.

Submissions by the plaintiff in reply

36. The plaintiff submitted that, although the defendant’s disobedience of his DSO’s directives did not involve sexual offending, it was nevertheless consistent with his worsening level of risk of committing a serious sexual offence. In relation to the sufficiency of the CCO, the plaintiff referred to s 89(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act) which expressly excludes electronic monitoring, and s 89(2)(e) of the CSP Act, which only identifies a non-association condition “prohibiting association with particular persons”, which would be inconsistent with a supervisor directing the defendant to not associate with a class of persons, such as children or persons with an intellectual disability.

37. The plaintiff submitted that the terms of the conversations between the defendant and Shirley, on his version, were inappropriately intimate.

Consideration and determination

38. According to the risk assessment instruments that have been administered to the plaintiff, his level of risk of committing a serious offence, measured against the cohort of like offenders, remains at a “medium” or “average” level. However, Mr Wu and Dr Parker arrived at an almost identical assessment of there being an elevated risk of the defendant sexually reoffending against a vulnerable woman if not for the constraints of the current ESO; see the passages from their respective reports extracted at [15] and [26] above.

39. On the basis of the material before the Court, I am satisfied that the matters alleged in the supporting documentation, in particular the defendant’s criminal history of sexual offending, the OIMS notes as to the defendant’s association with Shirley and the opinions of Mr Wu and Dr Parker, would, if proved, justify the making of an ESO. In my view, those concerns warrant an ISO; there is no reasonable basis upon which it would be appropriate to exercise the discretionary power that is available by the terms of s 10A (a) of the Act to not make an ISO.

Relevant conditions of an ISO

40. The only proposed conditions of an ISO that are in dispute are those that require the defendant to prepare a schedule of his proposed movements and to adhere to it. It is a current requirement of the ESO which, the defendant submits, occasions him a considerable degree of stress. He submits that, if an issue arose as to his whereabouts, the authorities would have the benefit of tracing his movements by way of the electronic monitoring of him. The plaintiff submits that electronic monitoring effectively depends upon scheduling conditions in order for it to be of benefit.

41. I am of the view that the proposed scheduling conditions should be included. They provide a greater degree of assurance that the defendant does not liaise with a prospective sexual partner who he may meet and then cultivate.

The date of commencement of the ESO

42. The defendant submits that since the commencement date of the current ESO was not nominated by Button J and the ISO did not expire until 23 February 2022, it cannot be presumed to be the date that the ESO commenced, that is 10 February 2022. Rather, pursuant to s 10(1) of the Act, it must be 24 February 2022. As an example of the application of s 10(1) to a similar situation, see State of New South Wales v Brooks (Final) (No 2) [2023] NSWSC 1369 per Davies J at [16]. An alternative course agreed by the parties is to revoke the ESO from 10 February 2024, and commence the ISO from that date.

43. I consider that the terms of s 10(1) of the Act are clear and it is unnecessary to revoke the current ESO. The ISO will commence from 24 February 2024.

Orders

44. I make the following orders:

1. Two qualified psychiatrists and or registered psychologists (or any combination of two such persons) as agreed by the parties are to conduct separate psychiatric and/or psychological examinations of the defendant and are to furnish reports to the Court on the results of those examinations by a date agreed by the parties.

2. The defendant is directed to attend those examinations referred to in Order (1).

3. The defendant is to be subject to an interim supervision order commencing on 24 February 2024 for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined.

4. The defendant is directed to comply with the conditions annexed to this judgment for the period of the interim supervision order.

5. Access to the Court’s file or any document shall not be granted to a non-party without leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

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Schedule of Conditions - Wiggins (a psuedonym) (127103, pdf)

Endnote

Decision last updated: 15 December 2023