State of NSW v AA - [2020] NSWSC 172

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: State of NSW v AA [2020] NSWSC 172
Hearing dates: 24 February 2020
Decision date: 04 March 2020
Jurisdiction: Common Law
Before: Button J
Decision:
(1) An order pursuant to s.15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):
(a) Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant, as the case may be, and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court;
(b) Directing the defendant to attend those examinations.
(2) An order pursuant to ss. 18A and 18C of the Act that the defendant be subject to an interim detention order for a period of 28 days commencing on 5 March 2020.
(3) An order pursuant to s. 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in paragraph 2 above.

Catchwords:
HIGH RISK OFFENDER – application for interim detention order pending final hearing – application for examination by medical professionals – defendant on parole for aggravated sexual offending – limited rehabilitative progress made in custody – interim detention order and order for medical examinations made

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW)

Category: Principal judgment
Parties: State of NSW (Plaintiff)
AA (Defendant)
Representation:
Counsel:
J Davidson (Plaintiff)
E W L Anderson (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2019/397483

Judgment

Background

Mr AA (the defendant) was born in October 1989, and accordingly is aged 30. An Aboriginal man, he was brought up in the Shoalhaven area of New South Wales. His childhood featured great disadvantage, and one can readily infer that he was psychologically injured from an early age. To give but one example, when he was little more than a toddler, he suffered the undoubtedly immense trauma of seeing his father commit suicide by way of a shotgun blast to the head.
Sadly, he began to intersect with the criminal justice system at an early age as well (the parties were agreed that there is no statutory or other limitation on the following being openly discussed by me in this judgment).
On 25 and 28 July 2003, he committed a number of offences. They were, in short form: an armed robbery, an assault with intent to rob whilst armed, sexual intercourse without consent, and an indecent assault.
The objective features of those offences were as follows. On 25 July 2003, the owner of a convenience store in the south-western Sydney suburb of Canley Vale became suspicious of two males, one of whom purchased an item in the store. When she left the store for the day, she saw the same two males approaching her at a very fast pace. She ran into a shop and screamed for assistance. She left the vicinity and drove to a car park in Cabramatta, where the same two males approached her. One of the males used a 50 cm long stick to force her head down into the console, at which point he took her handbag containing $3,000 cash and mobile phones.
In the evening of 28 July 2003, a different woman was working at the same convenience store in Canley Vale. She was in the process of transporting the day’s taking from the shop to a motor vehicle. She was accosted by a man in his late 20s armed with a 30 cm long knife. She was forced into the car, and the knife held to her throat. The threat was made that, if she did not cooperate, the man would “cut your tongue out”. She was forcibly returned to the shop, and grabbed by a second male person from behind, who was the defendant. He was also armed with a 30 cm long knife. He also made threats of death. Both that victim, and the first female victim associated with the shop, were robbed of the contents of their handbags.
Shortly thereafter, the defendant insisted that the victim lift her skirt and expose her underwear. She was crying. He ordered her to “shut up”. The defendant then digitally penetrated the vagina of the victim, and shone a torch on that part of her body as he did so. He removed his finger, and fondled the outside of her genitalia. At the conclusion of the ordeal, he ordered her to pull her pants up and “keep quiet”. Eventually, the assailants left. The victim was terrified during her ordeal.
The defendant was 13 years old at the time of those offences. He pleaded guilty to them. In remarks on sentence in the Children’s Court of 20 August 2004, Magistrate Flood spoke of the offences constituting tragedies for the two victims. He spoke of their undoubted suffering, especially with regard to the sexual offences. His Honour also remarked that the defendant had been under the pernicious influence of a 33-year-old uncle, who was the other offender on each occasion. That person had not only caused the defendant to be affected by marijuana at the time of the offences, but also exploited him into becoming a perpetrator with him of the planned robbery.
The learned Children’s Court Magistrate spoke of the trauma that the defendant had suffered as a child as approaching that of children who grow up during warfare. It was said that a psychological report showed that the defendant had not been able to “face up to what he had done”, above and beyond the pleas of guilty.
Magistrate Flood was not satisfied that the defendant constituted “a risk as a sexual predator in the future”. Rather, the sexual offences were seen as “opportunistic and abhorrent, spontaneous acts in the course of the robberies”.
In the event, a total control order of 18 months was imposed, with a total non-parole period of 12 months, to date from 18 August 2003.
After the defendant was released pursuant to that non-parole period, he returned to detention briefly as a result of at least one breach of juvenile parole.
On 26 October 2006, the defendant committed two offences of aggravated breaking and entering in company. He received a further short control order of nine months with a non-parole period of six months, to date from 6 December 2006. On 5 December 2006, he committed other offences against property, and received a total control order of 15 months with a non-parole period of three months, each to commence on 6 June 2007. At some stage of the proceedings pertaining to those offences, a DNA profile was obtained from the defendant.
It became clear that, prior to those offences, the defendant on 14 May 2006 had committed offences of the utmost gravity. The most serious of them were sexual offences. Eventually, on 7 December 2007, he pleaded guilty to 2 offences of aggravated sexual intercourse without consent. The circumstance of aggravation in each count was the use of a knife to threaten to inflict actual bodily harm. He also pleaded guilty to an offence described by Judge Sides QC in remarks on sentence as armed carjacking, and detaining a person with intent to obtain an advantage.
The facts were as follows. On the evening of 14 May 2006, the victim, a woman in her early 30s, drove the family motor car into a service station near Cabramatta. When she returned to the car and entered the driver’s seat, the defendant flung open the passenger door and leapt into the car. She screamed and attempted to fend him off. He produced a knife, and pressed it to the back of her neck. He moved himself to the back seat, held it to the front of her throat, and ordered her to drive. Of course, she was distressed and crying.
As they were driving, he fondled her left breast, and moved one hand to the top of her pants and tried to place it inside them. She refused his request to undo her pants. His response was to threaten to cut her throat.
She was directed to a particular road, and ordered not to look at the defendant. He fondled her breast again. He then succeeded in placing his hand inside her pants, fondled the outside of her vagina, and then digitally penetrated her body.
Eventually the car came to a halt in a cul-de-sac, at the direction of the defendant. He ordered the victim to switch the engine off, and fondled her breasts yet again. He demanded that she join him in the back seat. When she refused, he placed the knife against her throat and pressed it hard onto her skin, grabbed the back of her hair, and pulled her head against the headrest.
She was eventually pulled into the back seat. The defendant removed her pants and underpants, and began to fondle her genitals. Three fingers were inserted into her vagina. She was by this stage crying loudly. His hand movements were aggressive as he engaged in digital penetration of the victim.
The culmination of the sexual offences was the defendant pushing her legs apart, inserting his penis into her vagina, and ejaculating after a short period of penetration. The victim was crying loudly, and the applicant placed his hand over her mouth trying to stop the sound.
Eventually he used one of her socks to wipe himself and her genital area. He ordered her to dress. As she did so, he searched her wallet, and robbed her of a pension card and $75 cash.
At the conclusion of the ordeal, he threatened her with death by shooting, ordered her out of the car, and drove off with it. She ran to a nearby home, where she was seen to be shaking and crying uncontrollably. Her ordeal had extended for at least 20 minutes.
After the DNA profile of the defendant was subsequently matched with the profile of the perpetrator obtained from the body of the victim, the defendant was arrested on these matters on 24 January 2007. I interpolate to say that the defendant has never been at liberty since that time, a little over 13 years ago.
In the remarks on sentence, the learned sentencing judge spoke of the defendant, despite his pleas of guilty, having claimed to a Juvenile Justice Officer that the sexual intercourse occurred with the consent of the victim. He further asserted that, in fact, their whole encounter was based on an effort by him to purchase cannabis from her. This was rejected as nonsense.
A psychologist spoke separately of a lack of empathy with the victim, and an inability to display genuine remorse.
By the time he was sentenced by Judge Sides on 27 March 2008, the defendant was 18 years of age. He was a little over 16 ½ years old when he committed the offences. The sentencing judge recounted the tragic upbringing of the defendant; his previous sexual offences; the breaches of parole pertaining to the sentence of Magistrate Flood; and his disrupted living arrangements in the period leading up to his arrest on the matters under consideration.
Judge Sides also spoke of the education of the defendant having been disrupted by attention deficit hyperactivity disorder (ADHD); the fact that he had never been in paid employment; his interactions with a negative peer group; the fact that these offences featured no co-offender, including an accessory who may have encouraged them before their commission; the abuse by the defendant of cannabis, crystal methylamphetamine, MDMA, and alcohol; the absence of any mental illness; and, despite the defendant operating at a very low level cognitively, the absence of formal intellectual disability.
His Honour noted the very adverse influence of the uncle who had been the co-offender in the earlier set of offences. Having said that, it was clear that the uncle had no involvement in the offences placed before Judge Sides. The sentencing judge also noted that the property offences sketched by me above occurred after the commission of the offences under consideration.
The sentencing judge regarded as concerning the fact that the defendant had been found to be “in complete denial” about the offences to which he had pleaded guilty.
The final position of that sentencing judge – very experienced, even then – was one of pessimism.
Having determined that all offences committed by the defendant as a juvenile should be dealt with according to law, his Honour ultimately imposed a total head sentence of imprisonment for 13 years, with a non-parole period of nine years. That sentence structure was very slightly accumulated upon sentences that had been subsequently imposed upon the defendant. The result was that the defendant would first become eligible for parole on 5 March 2016.
Finally, the sentencing judge ordered that the defendant should serve his sentence in a juvenile detention centre until he turned 21 years of age.
An appeal to the Court of Criminal Appeal against sentence was subsequently dismissed.
In fact, the defendant was not released on parole at the conclusion of his non-parole period, almost exactly 4 years ago. Indeed, he remains in custody, and his total head sentence will very shortly expire in its entirety.
In custody, the defendant, it is true, has completed a number of courses, and has achieved a measure of education and, perhaps, rehabilitation. But a number of negative aspects of the past 13 years are noteworthy.
First, he has failed to come to grips with his personal attributes that led him to commit sexual offences of the utmost gravity. Although he engaged in a rehabilitative program in that regard at one stage, he found it impossible to make real progress, in part because he objected to being “lumped in” with paedophiles.
Secondly, his progress – whether it be in dealing with underlying issues of physical or sexual violence or both – has been hampered by his intimidatory, aggressive, and sometimes physically forceful behaviour towards other persons in custody.
Thirdly, he has a completely unresolved dependence upon a prescription opiate, which he has more or less insisted upon abusing in custody, despite its obvious prohibition. That has meant that over the years, he has either failed, or refused to submit to, a very large number of drug tests, and has been duly punished for doing so.

Application

That is a sketch of the context in which the State of New South Wales (the plaintiff) has brought proceedings against the defendant pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).
By way of a summons filed on 18 December 2019, the plaintiff sought, at a preliminary hearing before me on 24 February 2020, the following orders. First, compulsory medical examinations. Secondly, a renewable interim detention order (IDO) of 28 days. (It was foreshadowed that, at any final hearing, the plaintiff would seek a continuing detention order (CDO) of 16 months.) Thirdly, in the alternative to that, a renewable interim supervision order (ISO), accompanied by stringent conditions, of 28 days. Fourthly and finally, an ancillary order restricting (but not prohibiting) access to the court file, which I made with the consent of both parties at the hearing.
The only other aspect of the case for the plaintiff that I propose to mention at this stage is that a risk assessment report was conducted with regard to the defendant recently by an experienced forensic psychologist.
In a nutshell, his opinion was that the defendant has failed to address the deep-seated factors that underpin his offending: his antisocial personality; his antisocial attitudes pertaining to a sense of entitlement and a perception of the world as a dangerous place; and his substance abuse. While the risk assessment report noted that the defendant may not actively seek to offend sexually or violently, he was assessed as posing a high risk of sexual, violent and general reoffending.

The real issue at the preliminary hearing

In very helpful written and oral submissions, counsel for the defendant made it clear that, whilst of course satisfaction of its appropriateness was a matter for me, the imposition of an ISO was not opposed. Nor were any conditions thereof in contention.
He did dispute, however, the further detention of the defendant. He submitted that, on analysis of the evidence, I would not be satisfied that an ISO would be insufficient, with the result that an IDO was not called for.

Submissions resisting an IDO

The following points were made in support of that proposition in written submissions.
The defendant’s offending occurred when he was a child and against a backdrop of dysfunction, and under the influence of his uncle. It was noted that the defendant’s now mature age, coupled with the proposed stable accommodation with his mother, will mitigate further offending.
Further, while it was accepted that the offender failed to complete rehabilitation programs that addressed the deep-seated roots of his offending, counsel for the defendant argued that the defendant would be in a more appropriate position to address these factors through individually tailored treatment outside of a custodial environment, not within it.
It was also submitted that the defendant’s lack of acceptance, insight and remorse with respect to his offending, which was said to be marred by the custodial environment, is not determinative of his likelihood of committing further offending if released in the community.
Ultimately, it was asserted that both the protection of the community and the rehabilitation of the defendant would be better addressed by an ISO, as opposed to an IDO.
In oral submissions, the following points were emphasised.
First, it was said that, although the conduct of the defendant in custody is “by no means to his credit”, it is not notably different from many other persons who are released from custody, either to conditional liberty or without any fetter at all, reasonably regularly.
Secondly, it was emphasised that my task is not to reflect simply whether there is a risk (as defined by the Act) of the defendant committing any offence, or reoffending generically. Rather, it is incumbent upon the plaintiff to demonstrate the necessary risk with regard to a sexual offence of particular seriousness, as defined in s 5(1) of the Act.
Thirdly, counsel for the defendant queried how much could be inferred from events that took place 13 and 17 years ago. Relatedly, it was said that one cannot be satisfied, on the basis of two admittedly serious incidents, that the defendant is “an entrenched recidivist” with regard to sexual offences.
Fourthly, to the extent that the risk assessment report is based upon assertedly markedly anti-social aspects of the personality of the defendant, it was said that those are really inherent to the commission of the offences themselves. In other words, I understood the submission to be that any such adverse finding does not “add much” to the case of the plaintiff.
Fifthly, the point was made that the first set of offences were under the direct influence of the uncle, and the second set perhaps subject to his indirect influence. I was told from the Bar table that that gentleman will never be at liberty again, and accordingly that influence can be completely discounted in the future.
Sixthly, it was said that the sheer passage of years must have led to a degree of insight and maturation, and one cannot regard a man who is now over 30 years of age as equivalent to the boy who was 13 and 16 when he committed these sexual offences.
Seventhly, it was said that, if an ISO were imposed, the accommodation on offer – with the mother of the applicant at her home in a Sydney suburb – was on its face “an entirely stable environment”.
Eighthly, it was accepted that entrenched abuse of an unprescribed drug could be thought of as criminogenic in a very generic sense. But counsel queried whether that could or would have anything to do with the risk of the commission of a sexual offence. It was also said that there had been extended periods of custody during which he had not committed offences against prison discipline to do with prohibited or unprescribed drugs. Finally on this topic, it was said that a very stringent ISO would play a useful role in minimising drug use; if it became anything other than trivial, it would of course be grounds for breach, and re-incarceration.

Ninthly, it was accepted that not much progress had been able to be made with regard to therapeutic rehabilitation in custody. But the point was made that, at the least, repeated efforts had been made in that regard. And it was also said that the level of cognitive functioning of the defendant had no doubt played a negative role in that lack of success. It was also emphasised that psychological treatment in the community, pursuant to a strict ISO, would have a much better chance of achieving rehabilitation, and thereby minimising the risk to the community.
Tenthly, with regard to the general conduct of the defendant in prison, it was said that little would be drawn from occasions such as when he was found to possess gaol-made weapons in the form of “shivs”. It was said that steps such as that, which one may take to protect oneself in the inherently threatening and dangerous setting of a prison, can tell little about how one may behave in the community.
Eleventhly and finally, it was said that I would seriously doubt whether a CDO would ultimately be imposed in this case. Whilst accepting that it is incumbent upon me to decide the interim question now, on the evidence placed before me now, it was said that it would not be irrelevant if I were to find that the ultimate disposition of the matter would not be by way of an extended deprivation of liberty, but rather by merely a limitation upon it.

Determination

Turning to my determination, despite the cogency of all that was written and said by counsel for the defendant, I am satisfied of the following.
First, all mechanistic statutory preconditions for the making of one interim order or the other are certainly satisfied: see ss 5B(a), (b), and (c) of the Act.
Secondly, the further concession of counsel for the defendant is soundly based: there is no question of the defendant simply being released without, at the least, a significant condition placed upon his liberty. The risk of him committing a serious sexual offence would be far too great. I am affirmatively satisfied that one or other of the available interim orders should be made: see ss 18A and s 10A of the Act. That is because I consider that the central contingent evaluative test to be found in s 5B(d) of the Act is well-established.
Thirdly, that means that the mandatory medical examinations should be ordered.
Fourthly, it also means that the real issue for my determination is whether to impose an IDO or an ISO.
Fifthly, I agree that the defendant might feel that he has been in something of a “Catch-22”, whereby he has been unable to advance his rehabilitation, with the result that he has not been released to parole, with the result that he has not been able to prove himself on conditional liberty, with the result that that is now relied upon by the plaintiff against him, in support of further incarceration.
Sixthly, to be weighed against that, however, is the objective fact that, before he had even become an adult, the defendant had committed sexual offences of great gravity. Indeed, the second set of offences was a very gross invasion of the sexual autonomy of the victim, and no doubt had catastrophic traumatic effects upon her. The total sentence imposed by Judge Sides, subsequently endorsed by the Court of Criminal Appeal, speaks for itself in terms of the gravity of his criminal conduct, bearing in mind the age of the defendant when he engaged in it, and his acceptance of legal responsibility for it by way of his pleas of guilty.
Seventhly, without ascribing blame for this state of affairs, the objective fact is that the defendant has been able to make very little progress in therapeutic rehabilitation whilst in custody, whether with regard to physical or sexual violence. There is some evidence of further, recent progress, but it is quite limited.
Relatedly, the particular aversion to persons who commit sexual offences against children in the gaol setting is notorious. But the objection to being treated with them may suggest, I think, an underlying failure on the part of the defendant to accept that he himself has committed sexual offences that members of the community would certainly regard with deep abhorrence.
Eighthly, the defendant is burdened by a problem of dependence upon (at the least) a prescription drug which is completely unresolved. Contrary to the submission of counsel, I believe that that could be criminogenic, not only in a generic but also in a specific sense, in terms of disinhibition when intoxicated, as well as exposure to further negative influences within the drug milieu.
Ninthly, as I said at the hearing, I do not doubt the love and support that the defendant enjoys from his mother, and perhaps other family members. But, other than a short note from that lady, I know very little of the circumstances in which this man would be living after over 13 years in continuous custody.
Tenthly, and crucially, I think that there is a significant possibility that, far from associating sexual contact with a woman with her consent to, and enjoyment of, that contact, the defendant associates such contact with violence, force, and terror. It is true that the offences occurred many years ago. Having said that, for the past 13 years the defendant has been physically incapacitated from interacting sexually with a woman. And I repeat: very little therapeutic progress has been made to address the underlying issues that unquestionably existed when he was an adolescent. In my opinion, there is a real risk that they remain.

Conclusion

In short, I believe that an ISO would be an inadequate response to the unacceptable risk that the defendant regrettably presents of committing a serious sexual offence. For that reason, I propose to impose a renewable IDO of a duration of 28 days.

Orders

I make the following orders:

An order pursuant to s.15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):

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

Directing the defendant to attend those examinations.

An order pursuant to ss. 18A and 18C of the Act that the defendant be subject to an interim detention order for a period of 28 days commencing on 5 March 2020.

An order pursuant to s. 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in paragraph 2 above.

State of NSW v AA- Schedule of Conditions of Supervision (63300, pdf)

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Amendments

21 August 2024 - Publication restriction removed.

Decision last updated: 21 August 2024

Medium Neutral Citation:	State of NSW v AA [2020] NSWSC 172
Hearing dates:	24 February 2020
Decision date:	04 March 2020
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) An order pursuant to s.15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): (a) Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant, as the case may be, and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court; (b) Directing the defendant to attend those examinations. (2) An order pursuant to ss. 18A and 18C of the Act that the defendant be subject to an interim detention order for a period of 28 days commencing on 5 March 2020. (3) An order pursuant to s. 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in paragraph 2 above.
Catchwords:	HIGH RISK OFFENDER – application for interim detention order pending final hearing – application for examination by medical professionals – defendant on parole for aggravated sexual offending – limited rehabilitative progress made in custody – interim detention order and order for medical examinations made
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW)
Category:	Principal judgment
Parties:	State of NSW (Plaintiff) AA (Defendant)
Representation:	Counsel: J Davidson (Plaintiff) E W L Anderson (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2019/397483