State of NSW v Bastian
[2011] NSWSC 641
•29 June 2011
Supreme Court
New South Wales
Medium Neutral Citation: STATE OF NSW v BASTIAN [2011] NSWSC 641 Hearing dates: 23 June 2011 Decision date: 29 June 2011 Jurisdiction: Common Law - Criminal Before: HOEBEN J Decision: Extended Supervision Order for a period of 3 years made pursuant to Crimes (Serious Sex Offenders) Act 2006
Catchwords: CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offence - application for extended supervision order - analysis of statutory criteria for the making of extended supervision order - ongoing risk of committing sex offence if not supervised - safety of community required extended supervision order - meaning of "high degree of probability" - unacceptable risk of committing a serious sex offence if not supervised - extended supervision order made. Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004
Child Protection (Offenders Registration) Act 2000
Crimes Act 1900
Crimes (Serious Sex Offenders) Act 2006Cases Cited: Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 420
Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27]
Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 at [5] and [18]
Director of Public Prosecutions (WA) v GTR [2008] 198 A Crim R 149
Director of Public Prosecutions (WA) v Williams [2007] 176 A Crim R 110
State of NSW v Richardson (No 2) [2011] NSWSC 276Category: Principal judgment Parties: State of New South Wales - Plaintiff
Raymond Neville Bastian - DefendantRepresentation: Ms AC Johnson - Plaintiff
Ms R Mathur - Defendant
Solicitors:
IV Knight, Crown Solicitor - Plaintiff
Legal Aid Commission - Defendant
File Number(s): 2011/00063214
Judgment
HIS HONOUR:
Nature of proceedings
The State of New South Wales (the State) by Amended Summons filed in Court with leave on 23 June 2011 applies for an extended supervision order for a period of 3 years in respect of the defendant pursuant to Part 2 of the Crimes (Serious Sex Offenders) Act 2006 (the Act).
The original Summons was filed on 25 February 2011. On 21 March 2011 there was a preliminary hearing pursuant to s7(3) of the Act, at the conclusion of which Fullerton J made orders appointing two psychiatrists, Dr Anthony Samuels and Dr Andrew Ellis, to conduct examinations of the defendant and to furnish reports to the Court.
Those examinations duly took place and a report by Dr Samuels dated 25 March 2011 and a report by Dr Ellis dated 18 April 2011 have been provided to the Court.
The defendant is currently subject to an interim supervision order that was made by Fullerton J on 21 March 2011 pursuant to s8(1) of the Act. That interim supervision order, which took effect on 10 April 2011, was renewed by Johnson J on 2 May 2011 and by Hidden J on 1 June 2011. The interim supervision order expires on 3 July 2011.
The final hearing in relation to the extended supervision order took place before me on 23 June 2011. The orders sought in the Amended Summons were not opposed by the defendant. At the conclusion of the hearing, I indicated that I was satisfied that it was appropriate to make an extended supervision order. These are my reasons.
The evidence
In support of the application, the State relies upon four affidavits of Sarah Maria Johnson, affirmed 25 February 2011, 9 March 2011, 29 April 2011 and 8 June 2011.
The Attorney-General issued orders under s25 of the Act requiring various governmental agencies to produce documents relating to the defendant. Exhibited to the affidavit of Ms Johnson of 9 March 2011 and marked as exhibit "SMJ-2", is a folder of documents the contents of which were obtained from the agencies on which the s25 orders were served.
The affidavit of Ms Johnson of 8 June 2011 annexes entries which have been made on the data base maintained by Corrective Services NSW known as the "Offender Information Management System" since the last of the entries behind tab 88 of exhibit "SMJ-2".
The State also relies upon:
(i) The reports of Dr Samuels and Dr Ellis.
(ii) An affidavit of Zouhier Abedine, affirmed 9 June 2011. Mr Abedine is a Senior Compliance and Monitoring Officer with the Community Compliance and Monitoring Group (CCMG), the unit within Corrective Services NSW which is responsible for the management and supervision of high risk offenders in the community, and he has primary responsibility for the day to day case management of the defendant.
(iii) An affidavit of Professor John Basson, affirmed 10 June 2011. Professor Basson is the Statewide Clinical Director of Forensic Mental Health, a division of Justice Health. His affidavit addresses information in Dr Ellis' report about the role of the Community Forensic Mental Health Service in relation to serious sex offenders.
On behalf of the defendant, an affidavit affirmed by him on 20 June 2011 was read. That affidavit indicated that he had worn an electronic monitoring device since his release on 10 April 2011. He had been attending a maintenance program at Surry Hills since 25 May 2011 which he said assisted him in identifying risks and in using strategies to prevent risks. He has undertaken not to use alcohol or drugs and tests conducted since his release have been negative. In essence, the affidavit provided evidence of compliance by the defendant with existing conditions and his intention to comply with similar conditions into the future.
The statutory criteria
The primary object of the Act is to provide for the extended supervision and continuing detention of serious sex offenders to ensure the safety and protection of the community (s3(1)). Encouraging serious sex offenders to undertake rehabilitation is a further object of the Act (s3(2)).
An application for an extended supervision order may be made in respect of a "sex offender" who, at the time the application is made, is in custody in a correctional centre or who is under supervision for "a serious sex offence" or "an offence of a sexual nature" (s6(1)(a)).
The term "serious sex offence" is defined in s5(1) of the Act to include:
(a) An offence under Division 10 of Part 3 of the Crimes Act 1900 where:
(i) In the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and
(ii) In the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises).
The definition of "offence of a sexual nature" in s5(2) includes an offence under Division 10 of Part 3. (The distinguishing feature between a "serious sexual offence" and an "offence of a sexual nature" is the length of imprisonment for which an offence under Division 10 is punishable. If the offence is punishable by imprisonment for 7 years or more, the offence is a "serious sexual offence", if it is punishable by imprisonment for less than 7 years, the offence is an "offence of a sexual nature").
A "sex offender" is defined in s4 to mean "a person who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence, other than an offence committed while the person was a child". A "child" is defined in the Act as "a person who is under the age of 16 years". The defendant meets the definition of a "sex offender" as he was sentenced to imprisonment in 2003, following his conviction for serious sex offences, within the meaning of s5(1) of the Act.
Section 9(2) of the Act, which was amended in December 2010, provides that an extended supervision order may be made "if and only if the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision".
Section 9(2A) of the Act provides that the Court "is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence". In State of NSW v Richardson (No 2) [2011] NSWSC 276 at [94] Davies J interpreted this subsection to mean that it is unnecessary to find that it is more likely than not that an offender will commit a further serious sex offence if released without supervision before the conclusion can be reached that he poses an unacceptable risk.
Relevant to the application before me is s9(3) which provides:
"((3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant
(a) the safety of the community,
(b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination,
(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 sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment,
(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 sex offence,
(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,
(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,
(f) 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,
(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,
(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,
(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,
(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature."
The section 9(3) factors in relation to the defendant.
Section 9(3)(h) and 9(3)(h1): The defendant's criminal history and the view of the sentencing court
The defendant is aged 65. Apart from the sexual offences for which he has been convicted on three separate occasions, he has no other convictions recorded in New South Wales.
The chronology of the defendant's sexual offending history is set out in the table below:
DATE
CHARGES
DETAILS OF CONVICTION AND SENTENCE
Nov 1987
One count of homosexual intercourse with male between 10 and 18 years, one count of sexual assault and one count of act of indecency by a person in authority (victim 10 years old).
Pleaded guilty and convicted on 1 November 1988 on the third charge. Sentenced on 8 March 1989 to 3-year recognisance on paying bond of $3000, to accept supervision of the Probation and Parole Service.
Oct 1996
Incite a male under the age of 18 years to commit an act of homosexual intercourse with a male person (victim 11 years old).
On 23 July 1997, convicted and sentenced to a 3-year recognisance on payment of $2,000, and to accept supervision of Probation and Parole.
Nov/Dec 2002
4 counts of aggravated sexual assault victim aged 10-14 years, two counts of incite person under 16 years to commit indecent act.
Form 1 inclusions: two counts of incite person under 16 years to commit act of indecency, one count of sexual intercourse with a person aged under 10 years, 22 counts of sexual intercourse with a person aged 10-14 years.
Convicted and sentenced on 5 December 2003 to 8 years imprisonment, with a non-parole period of six years.
The 1987 offence
The defendant was charged with one count of homosexual intercourse with a male between 10 and 18 years, one count of sexual assault and one count of commit act of indecency, but was sentenced only in respect of a charge of indecent assault by a person in authority.
The offence was alleged to have occurred on 1 November 1987. According to the statement of facts, the defendant took a victim, who was 10 years and 10 months old at the time, to his home to assist him with moving some rocks. The defendant had become friendly with the victim's parents, who lived a few streets away.
The defendant and the victim became dirty moving the rocks, and they both had a shower, first the defendant and then the victim. As the victim was attempting to get dressed, the defendant made him lie down on the floor. The indecent assault consisted of the defendant playing with the victim's penis and putting it in his mouth.
On 9 March 1989 the defendant was placed on a recognisance under s558 of the Crimes Act for a period of 3 years on payment of $3000. A condition of the defendant's recognisance was that he place himself under the supervision and guidance of the Probation and Parole Service and that he obey all reasonable directions of that service. The period of the defendant's recognisance expired on 13 March 1992 without him committing any offences.
The 1996 offence
According to the statement of facts, on 25 October 1996 a number of handwritten notes were handed into the Moss Vale Police Station which contained sexually explicit material and identified a 12 year old boy. The victim was a ward of the State. He was interviewed by the police and said that on one occasion between 1 January 1995 and 28 March 1996 when he was living on the streets of Moss Vale, the defendant had approached him in a park and offered him money in return for sex.
The victim said that on a further occasion between 28 March 1996 and 12 November 1996, by which time the victim was in foster care, the defendant had approached him outside a supermarket and again offered him money in return for sex.
The defendant was charged with two counts of inciting an act of gross indecency, but was ultimately convicted of inciting a male person under the age of 18 years to commit an act of homosexual intercourse. He was convicted and sentenced on 23 July 1997 to a 3 year recognisance on payment of $2000. The conditions of the bond included that he accept the supervision and guidance of the Probation and Parole Service and that he attend for assessment and counselling as directed by the Service. The defendant appears to have been compliant with the directions of the Service and supervision was terminated early with effect from 28 May 1999.
The 2002 offences
The defendant pleaded guilty to an indictment containing six counts relating to the period between 1 November and 31 December 2002.
(i) Incite RW, a person under the age of 16 years, namely 12 years, to an act of indecency with him.
(ii) Incite NF, a person under the age of 16 years, namely 12 years, to an act of indecency with him.
(iii) Two counts of sexual intercourse with RW.
(iv) Two counts of sexual intercourse with NF.
In addition, there were 25 counts included on a Form 1 which the sentencing judge described as follows:
"Not only are there charges listed in that form relating to NF and RW but there are also charges in relation to two other children, one boy TW, and a girl CW. The children are not related to the offender. The form includes 22 further offences of having sexual intercourse with RW and/or NF and two offences of inciting TW to an act of indecency with the offender and one offence of inciting CW to an act of indecency with the offender. TW was only five years old at the time of the offences. CW was also five years old at the time of the offence."
The offences took place in Goulburn. The sentencing judge set out the full facts of the offences:
(i) In about November 2002 RW and NF met the defendant at a Goulburn service station. He invited them back to his residence to look at pornographic magazines. They accompanied him and viewed some magazines in the defendant's lounge-room. He asked them to show him their penises which they did (counts 1 and 2 in the indictment).
(ii) RW then accompanied the defendant into his bedroom. Soon after NF was called into the room by RW where he saw RW lying on the bed with the defendant sucking his penis (count 3 in the indictment).
(iii) NF was enticed by the defendant to lie on the bed and when he did, the defendant started to suck his penis (count 4 in the indictment).
(iv) At the same time RW placed his penis inside the defendant's anus and had sexual intercourse with him (count 5 in the indictment).
(v) Both boys then left the premises but returned by arrangement later that day. Again both boys went into the defendant's bedroom and the defendant sucked RW's penis; at the same time NF put his penis inside the defendant's anus and had sexual intercourse with him (count 6).
(vi) Both boys ejaculated following which NF lay on the bed and the defendant sucked his penis and at the same time RW placed his penis inside the defendant's anus and had sexual intercourse with him (some of the offences on the Form 1).
According to the facts sheet, up to this point the defendant had promised the boys money and mobile phones. The boys returned to the defendant's home the following day, then the following Thursday and Saturday and similar events as recounted above occurred which were included in the Form 1. On the Sunday when the boys attended the defendant's home, there were two other children in attendance, TW and CW. The defendant sent them outside while he performed oral intercourse on both NF and RW. On another day during the relevant period when NF and RW attended the defendant's premises, a co-offender was present. Both men performed sexual acts on NF and RW. The offences came to light when the mother of TW and CW found notes from the defendant containing sexually explicit material.
The sentencing judge found that although the sexual intercourse involved with the children was not the most intrusive kind, the age of the victims was towards the bottom of the age range and accordingly the offences were towards the upper end of seriousness. His Honour said:
"In this case the facts demonstrate predatory conduct on behalf of the offender. He lured the boys into taking part in this conduct. They were at an age when they were very vulnerable and it is likely that the offender's behaviour will have serious repercussions with regard to their development. Moreover, on one occasion he introduced another adult into the sexual behaviour. This is a very serious aggravating factor in the offences."
On the indecency counts, his Honour sentenced the defendant to a fixed term of 12 months imprisonment to commence 11 April 2003. In relation to the two offences of sexual intercourse involving NF, his Honour sentenced the defendant to 4 years imprisonment to commence 11 April 2003 and expire on 10 April 2007. In relation to the two offences of sexual intercourse involving RW and taking into account the matters on the Form 1, his Honour sentenced the defendant to 7 years imprisonment to commence on 11 April 2004 and expire on 10 April 2011 with a non-parole period of 5 years to expire on 10 April 2009. The total sentence was imprisonment for 8 years with a non-parole period of 6 years.
The pattern of the offending behaviour disclosed by the defendant's criminal history.
In his Risk Assessment Report in relation to the defendant, dated 21 January 2011, Mr Patrick Sheehan, a psychologist with Corrective Services NSW gave the following overview of the defendant's offending conduct:
"Mr Bastian is convicted of sexual offences against children aged between 5 and 12 years occurring from 1987 and 2002. The majority of victims were male and known to Mr Bastian, however, the index offences suggest that no prior relationship had been established with the two male 12 year old victims. The offences range from making verbal sexual propositions performing oral sex on the victims and having the victims penetrate Mr Bastian anally. There was no suggestion of violence or threats towards any of the victims. A common theme has been the offer of inducements to obtain the victims' compliance. The offences in 1996 and 2003 were temporally associated with Mr Bastian writing sexually explicit material focusing on the victim."
In his Risk Assessment Report Mr Sheehan described the defendant's history as escalating in intrusiveness over time and involving psychological coercion of his victims.
In his report of 25 March 2011 Dr Samuels said:
"An anamnestic review of Mr Bastian's offending suggests that a pattern of approaching and grooming young males aged between 10 and 16, writing to them in a sexually explicit manner, making inducements; financial and otherwise, and attempting to psychologically coerce them into sexual activity. He has gained access to most of his victims through forming relationships with their parents or care givers and, at times, he has been placed in positions of trust over them.
It does seem that at times alcohol abuse has been a factor in the offending behaviour."
Custodial history
The defendant has a "mixed history" of institutional adjustment. He incurred sanctions for smoking in a non-smoking area, intimidation, possess prohibited goods, disobey direction, possess/create prohibited goods and make mischievous complaint. The defendant had also, in the words of Mr Sheehan, "drawn adverse attention to himself by collecting inappropriate material in his cell and habitually approaching young offenders for sex". The material confiscated from his cell ranged from entirely appropriate "self help" or "men's health" material to other material that was clearly used to stimulate deviant sexual fantasies regarding children.
Section 9(3)(b): The reports received from the persons appointed to conduct psychiatric examinations of the offender.
Report of Dr Anthony Samuels
Dr Samuels conducted an interview with the defendant on 25 March 2011 when he was still in custody. The defendant told him that although he had a few sexual relationships with women until his mid thirties, it was now quite clear that he was homosexual. He said that his last sexual relationship in custody was in 2010. On his release he did not intend to associate with anyone under the age of 10, but he wanted to find someone his own age to associate with. The defendant acknowledged that he used to have an interest in boys aged 10 and upwards, but that things had changed stating "I do not want anyone under the age of twenty one to be a friend, near me or around me".
In responding to the question of whether the defendant posed a risk of committing a further serious sex offence if he were not kept under supervision, Dr Samuels said:
"Taking into account actuarial risk factors, dynamic risk factors, acute dynamic risk factors, structured professional clinical judgment, anamnestic risk review and the clinical psychiatric examination that I conducted today, I do believe that Mr Bastian does pose a risk of committing a further serious sex offence if he is not kept under supervision."
In forming this opinion Dr Samuels:
(i) Referred to the pattern of offending disclosed by the offending history.
(ii) Considered that the defendant minimised some aspects of his offending behaviour and noted that there had been a number of complaints that had never led to charges or convictions.
(iii) Observed that the defendant felt that he was getting some benefit from an SSRI anti-depressant, that he reported no longer getting erections and that he had less fantasies about children in addition to which he said he had a number of strategies in place to prevent him being in situations of risk.
(iv) Noted that the defendant said he now had an established sexual identity and that he planned to seek relationships with older men and that he intended to continue attending the Maintenance Program, comply with the conditions of an extended supervision order and, in particular, would avoid alcohol abuse.
(v) Considered that although the defendant gave a history of having been exposed to traumatic experiences in childhood, the veracity of the information he provided to date was "questionable", noting that the account the defendant had given to him was different from that which he gave to Dr Allnutt when the latter prepared a pre-sentence report.
(vi) Noted that there was some evidence of the defendant having some personal instability and a documented history of self-harming behaviour in the past, as well as a prolonged psychiatric admission.
On the positive side, Dr Samuels referred to the taking of the SSRI medication, which might have some protective benefits, and his completion of the Custody Based Intensive Treatment Program (CUBIT).
In relation to the nature of his risk, Dr Samuels said:
"I would see Mr Bastian's risk as being an ongoing risk and I think it would be reasonable for the Orders to be in place for a five year period. However, I am aware that his physical health is poor, that he is 65 years old and it is quite possible that his physical health could change in the course of the next five years and some of the Orders that are currently in place may no longer be necessary or might become redundant."
Report of Dr Ellis
Dr Ellis conducted a clinical examination of the defendant on 1 April 2011 when he was still in custody. As with Dr Samuels, the defendant stated that he now identified as homosexual and that he had done so since attending CUBIT. He said that for most of his life he had been confused about his sexual orientation but he was now attracted to men past middle age.
Dr Ellis opined that the defendant "would meet the diagnostic criteria for paedophilia, primarily attracted to males, possibly exclusive".
"This is evidenced by offences spanning three decades indicating sexual behaviour with prepubescent boys, his self report of fantasy and urges towards this age group over his life and behaviours while in custody such as collecting pictures of young boys while engaged in a sex offender program. His ability to sustain a sexual relationship with an age-appropriate adult has yet to be tested. Paedophilia is commonly a chronic and relapsing condition."
In relation to psychological stressors, Dr Ellis noted that the defendant was isolated from significant personal supports and was wholly reliant upon the support of professionals or a criminal peer group. Insofar as his functioning was concerned, Dr Ellis noted that it was adequate in his current environment but that he continued to engage in immature interactions with others and would require significant support in the community in order to achieve a similar level of function.
On the issue of the risk of the defendant committing a further serious sex offence, Dr Ellis considered the actuarial and clinical parameters and expressed the view that without any treatment or supervision "Mr Bastian would fall into a group of persons with a risk of offending that is moderately high, and greater than a theoretical average offender".
In reaching this opinion, Dr Ellis said:
"Deviant sexual arousal is consistently identified as the most prominent risk factor for sexual re-offence. Mr Bastian presents with a clear pattern of paraphilic sexual arousal. This arousal is directly related to the types of offences previously committed. This factor is somewhat controlled by prescription of SSRI medication. Of concern is masturbatory activity that continues to fantasy of previous offences and his own childhood sexual abuse, which mirrors his own offending behaviour. Should the prescription of this medication continue, then this particular contributing factor would be less salient. With advancing age, sexual drive may diminish. In this particular case deviant sexual arousal continues, despite age. It is of benefit that he is able to describe his arousal pattern and therefore would be able to alert professionals if it was worsening."
Dr Ellis referred to the defendant's completion of CUBIT albeit "not without difficulty" and accompanied by prior unsuccessful attempts at treatment.
"Persons who complete such programs are in a group that demonstrates lowering rates of recidivism. His most recent attempt at treatment has yielded more positive, but still equivocal reports from his treating clinicians. Studies show that persons who reinforce gains made in custodial programs with ongoing work in the community, may display lower rates of recidivism. It is not clear whether this is an effect of treatment itself or that persons who complete treatment tend to have more control over their behaviour, than those who do not. He has continued to collect banned material post his institutional treatment completion."
In relation to the proposed conditions, Dr Ellis noted that the defendant did not identify any difficulties in complying with the conditions "and in fact welcomed them". Dr Ellis considered that it would benefit the defendant to have a period of time to acquire stable accommodation, to practise skills learned in group programs and to have assistance in obtaining employment or suitable social networks. He also supported the condition of abstinence from alcohol.
In relation to the duration of any order, Dr Ellis suggested that a period of three years would enable the defendant's baseline function in the community to be established, along with a refinement of the appraisal of his risk. Dr Ellis divided the three years into three twelve month periods:
"It is most likely that a period of 12 months will be required to secure stable accommodation and regular meaningful activity in the community, given the restrictions on persons subject to extended supervision orders. During this period of time, it is unlikely that a person will have the focus to benefit from intense therapeutic activity. A further 12 months of regular treatment in a psychological program, coupled with medications and review of this medication would be necessary to consolidate gains in custodial programs or to establish that these programs are ineffective. A further period of 12 months would be required to monitor the consolidation. At this point a more informed appraisal of future risk in progress could be made ...
Although paedophilia is a chronic condition, which will likely last beyond a period of 3 years, given the age of Mr Bastian, with the attendant general reduction in risk associated, his previous apparent treatment progress, possible deterioration in physical health over the period, the period of time required to observe behaviour is less than a younger person with a similar condition, who had not previously completed custodial treatment."
Section 9(3)(d): The results of any statistical or other assessment as to the likelihood of the defendant committing a further serious sex offence.
In his Risk Assessment Report, Mr Sheehan assessed the defendant's risk of sexual re-offending using the Static-99R Test. Mr Sheehan scored the defendant at 4 which placed him in the moderate-high risk category relative to other male sexual offenders.
As Mr Sheehan observed in his Risk Assessment Report, because it measures static risks, the Static-99R instrument is not sensitive to changes in an offender's circumstances that may increase or decrease his actual risk of re-offending. There were aspects of the defendant's offending history and rehabilitative progress which were of concern to Mr Sheehan in this regard.
Section 9(3)(c): the results of any other assessment prepared by a ... registered psychologist ... as to the likelihood of the defendant committing a further serious sex offence.
Mr Sheehan conducted an interview with the defendant for the purpose of preparing his Risk Assessment Report. In the executive summary, Mr Sheehan said:
"Mr Bastian is a 65 year old male with a known history of sexual offending against six children aged between 5 and 12 years. He has been convicted of sexual offences on three separate occasions over 14 years. Whilst most of his victims are male, his index offending does include a female victim. He incurred his first conviction for sexual offending when he was aged 41 years and committed his most recent offence when he was aged 54. Mr Bastian has completed an intensive Sex Offender Treatment Program in 2010. He is assessed as a high risk of sexually re-offending relative to other male sex offenders. He has a deviant sexual interest in pre-pubescent male children between the ages of 5 and 13 years and remains highly sexually motivated."
In terms of his risk, Mr Sheehan observed that the defendant had acknowledged an enduring and intense sexual interest in children and that he was likely to experience further sexual attraction should he come into contact with them. Applying the Risk of Sexual Violence Protocol, the defendant exhibited risk factors in all five domains, namely, sexual violence, psychological adjustment, mental disorder, social adjustment and manageability. In respect of the latter, Mr Sheehan observed that the defendant had exhibited problems with planning, problems benefiting from treatment and problems responding to supervision while in CUBIT.
Mr Sheehan considered that substance abuse, victim access, hostility, emotional collapse, the collapse of social supports and rejection of supervision were acute dynamic risk factors in the defendant's case. Although the defendant's history did not suggest he would sexually act out on every occasion that the above features coincided, Mr Sheehan considered that the risk was chronic "in that over time as he was exposed to these risk factors without intervention or interruption there would be less impediments to a sexual offence should the defendant find himself in such situations." Mr Sheehan concluded that notwithstanding his treatment he remained a man with a paraphilic interest towards children who had remained unusually sexually motivated into later life and had continued to exhibit behaviour directly and indirectly associated with elevated risk during and after participation in an intensive sex offender treatment program."
Section 9(3)(e): Any treatment or rehabilitation programs in which the defendant has had an opportunity to participate.
The defendant recommenced the CUBIT program on 9 March 2009. In her report Ms Donaldson, psychologist, described his overall participation as "mixed":
"Mr Bastian generally appeared to have difficulty intellectually understanding treatment concepts and demonstrated poor insight into his own thought processes and emotion. For example, he had difficulty identifying his own thoughts and how he could challenge or change unhelpful thinking; and difficulty identifying a range of emotions he was experiencing. He was able to identify a number of factors that were unhelpful in his life (e.g. poor coping, sexual interest in children); however, Mr Bastian appeared hesitant to change these. Whilst he verbalised his eagerness to complete the CUBIT program and implement change in his life, this was not routinely reflected in his behaviour."
In terms of his behaviour in the CUBIT community Ms Donaldson described it as varying throughout his participation:
"He spent most of his time in his cell isolated from others; however appeared to have a small group of community members that he regularly interacted with. Despite this, Mr Bastian received a number of warnings of institutional misconducts and was placed on a Behaviour Management Contract for engaging in unhelpful or inappropriate behaviours. An ongoing problem for Mr Bastian was his tendency to create sexually explicit and pornographic writing and drawings, collect newspaper articles (related to sexual offenders or other high profile offenders), advertisements featuring children and medical or educational information of a sexual nature."
Ms Donaldson recommended that his reintegration into the community be both supportive and structured; she considered that he would benefit from a period of supervision under Probation and Parole and recommended that during that period, he attend a Community Based Maintenance Program at Forensic Psychology Services.
Section 9(3)(f): The level of the defendant's compliance with any obligations to which he has been subject while on release on parole.
Although the defendant was eligible for parole on 10 April 2009, his parole was refused. Probation and Parole did not recommend parole on the basis that the defendant had not successfully completed CUBIT. When it was considered again in 2010, the defendant had still not completed CUBIT and even when participating in the program he exhibited some "highly concerning behaviours", referring to the institutional charges relating to the possession of pornographic literature, pictures of children and other sexually explicit material.
Section 9(3)(g): Level of the defendant's compliance with any obligations under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004.
The defendant has only been subject to this legislation since the commission of the index offences. Since his release from custody there is no indication that the defendant has been anything other than compliant with the obligations in the Offenders Registration Act .
Section 9(3)(a): The safety of the community
The safety of the community is the primary object of the Act. The defendant's criminal history indicates a pattern of offending against males between the ages of 10 and 12 with his index offences, including offences committed against a younger male child and a younger female child. Although he did not use physical coercion on his victims, the defendant did engage in psychological coercion offering his victims money and, in the case of the index offences, mobile phones in exchange for sex. The index offences appear to indicate an escalation in terms of the seriousness of his offending behaviour.
Mr Sheehan's Risk Assessment Report indicates that although the defendant does not fall in the high risk category of sexual offending in terms of his static risk factors, he remains in the high risk category of sexual offending. He meets the diagnostic criteria for paedophilia and has personality traits which expose him to risk, such as his low self esteem and his need to seek approval from others, his sense of entitlement and his hyper-vigilance to rejection. Dr Ellis concurs in this diagnosis. Both he and Dr Samuels consider that the defendant presents a risk of committing further sex offences if he were to be released without supervision.
Notwithstanding his period of imprisonment and participation in an intensive sex offender treatment program, the defendant continues to display attitudes and behaviour that are of concern in terms of the risk of his re-offending. His participation in CUBIT on the second occasion was an improvement on the first occasion but he continued to externalise responsibility for his offending behaviour and his therapists found it difficult to assess whether his motivation to change the range of unhelpful behaviours he identified as contributing to the risk of re-offending, was genuine. The defendant has continued to exhibit problematic behaviours, both during his time in CUBIT and afterwards. Psychologists and others who have assessed him consider that for his age, the defendant displays a high libido.
Consideration
Duration of the order
Dr Ellis considers that an order of three years would enable the defendant's baseline function to be established and to refine the appraisal of risk. In expressing that opinion Dr Ellis relies on the defendant's age and attendant reduction in risk associated with that. Dr Samuels considers an order for five years to be appropriate but notes that it is possible that the defendant's physical health status will change in that period in which event some of the conditions might no longer be necessary.
As both the psychiatrists acknowledge, the defendant's risk is chronic. Notwithstanding his age, his libido is high and he continues to fantasise about young boys. In light of the evidence of the court appointed psychiatrists as to his physical health, the State now seeks an order for extended supervision of 3 years.
I am satisfied that an order of 3 years would facilitate monitoring and review of the defendant's risk as suggested by Dr Ellis. There is then a further 6 months period for review and consolidation or, if necessary, a further application under the Act.
Should an order be made?
On the basis of the above material, the fundamental question for the Court is whether it is "satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision".
The meaning of "high degree of probability" is reasonably well settled. It has been interpreted as imposing "an elevated standard of proof which is lower than the criminal standard but higher than the civil standard" ( Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 420 at [34]; Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 at [5] and [18], Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27].)
The meaning of "unacceptable risk of committing a further serious sex offence" is less settled. In introducing the Crimes (Serious Sex Offenders) Amendment Bill 2010, pursuant to which the amendments to the test in sections 9 and 17 were made, the Attorney-General for NSW referred to a review of the Act which had been conducted by the Sentencing Council. In the course of that review many stakeholders acknowledged difficulties with the word "likely" in the previous formulation of the test and called for clarification. Referring to the fact that the "unacceptable risk" test had been adopted in Victoria and in Queensland, the Attorney stated that it was appropriate to adopt a similar test.
The term "unacceptable risk" has not been defined in the Act, nor has it been defined in the equivalent legislation of the other jurisdictions.
In State of New South Wales v Richardson Davies J (at [28]) referred to two decisions of the Western Australian Court of Appeal on that State's equivalent legislation. In Director of Public Prosecutions (WA) v Williams [2007] 176 A Crim R 110, Wheeler JA said:
"63 In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention."
The other decision to which his Honour referred was Director of Public Prosecutions (WA) v GTR [2008] 198 A Crim R 149 where Steytler P and Buss JA said:
"27 The word "unacceptable" necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, to the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context ( Unacceptable risk - A return to basics (2006) 20 AJFL 249 at 252), the advantage of the phrase "unacceptable risk" is that "it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case".
By reference to those two cases, Davies J said this about applying the test:
"90 Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. That is also because s 17(3) provides for the further assessment that if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk a supervision order will not be adequate to meet the risk. "
While his Honour was considering the provisions of s17(3), his analysis is equally appropriate to s9(2) of the Act. His Honour's approach involves an appropriate application of the reasoning of the Western Australian Court of Appeal and I gratefully adopt it.
When one carries out the balancing exercise, the evidence is all one way that an extended supervision order is required. That being so, I have no difficulty being satisfied "to a high degree of probability" that such an order should be made.
Orders
(1) As of the date of making this order I revoke the Interim orders previously made by Fullerton, Johnson and Hidden JJ.
(2) I make an order pursuant to s9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of 3 years and 6 months and pursuant to s11 of the Act, I direct that the defendant comply with the following conditions:
Reporting and monitoring
1. During the period of the extended supervision order the defendant must accept the supervision and guidance of the Probation and Parole Service and the CCMG for as long as necessary as determined by the Departmental Supervising Officer.
2. During the period of the extended supervision order the defendant must accept the supervision and guidance of the Child Protection Watch Team for as long as necessary as determined by that Team.
3. The defendant must comply with any reasonable direction given by the Departmental Supervising Officer or any other departmental officer who may from time to time be involved in supervision of the defendant.
4. For at least the first 6 months from the date of this order, the defendant must wear electronic monitoring equipment if and as directed by the Departmental Supervising Officer and must comply with all instructions given by officers of the Department in relation to the operation of such equipment. The defendant must not tamper with or remove such equipment. At the end of 6 months the Departmental Supervising Officer must review this condition and must, following such review, not unreasonably refuse to discontinue the use of the electronic monitoring equipment.
5. Unless and until he is directed otherwise by the Departmental Supervising Officer, the defendant must inform the Departmental Supervising Officer of his proposed daily movements 48 hours in advance by providing a schedule in writing (or as otherwise directed by the Departmental supervising officer) and must obtain prior approval from the Departmental supervising officer for any proposed change.
6. Condition 5 does not apply if the defendant requires urgent medical attention and he is either unable to inform the Departmental Supervising Officer of his proposed movements in advance or is unable to obtain prior approval from the Departmental Supervising Officer for any proposed change in advance.
Accommodation
7. For the duration of the extended supervision order the defendant must reside at such accommodation as is approved in advance by the Departmental Supervising Officer.
8. The defendant must accept home visits at the approved accommodation, including visits without prior notice, by the Departmental Supervising Officer or any other departmental officer.
9. For 12 months from the date of this order, the defendant must be at his address between the hours of 9 pm and 6 am the following morning, unless his presence at another place during those hours has been approved in advance by the Departmental Supervising Officer.
10. Condition 9 does not apply if the defendant is residing at a Community Offender Support-Program Centre ("COSP"). The accommodation conditions applicable to the COSP, including the hours when the defendant must be at the COSP, will apply in that situation unless his presence at another place during those hours has been approved in advance by the Departmental Supervising Officer.
11. The defendant must not leave New South Wales without the prior written permission of the Commissioner or his delegate.
Restrictions on employment and other activities
Employment
12. The defendant may only enter into employment approved by the Departmental Supervising Officer and must not enter into or undertake employment unless it has been so arranged or approved.
13. The defendant must agree that, if the Department Supervising Officer considers it appropriate to do so, the Departmental Supervising Officer may provide to any prospective or actual employer of the defendant information relating to the defendant's criminal history and may notify such prospective or actual employer that the defendant is subject to a supervision order and of the terms of the order.
Alcohol
14. The defendant must not possess or consume any alcohol (including any alcohol-based products such as methylated spirits).
15. The defendant must submit to alcohol testing as directed by the Departmental Supervising Officer.
16. The defendant must attend community based alcohol programs as directed by the Departmental Supervising Officer.
17. The defendant must not attend licensed premises, including but not limited to hotels, bars, licensed clubs and racecourses without the prior approval of the Departmental Supervising Officer.
Association with children
18. The defendant must not approach or have any unsupervised contact with children aged 16 years or under.
19. Without limiting the immediately preceding condition, the defendant must not associate with a particular person or persons if he is reasonably directed by the Departmental Supervising Officer to that effect.
20. The defendant must not attend any child care centres, any preschools, any primary schools or high schools attended by children 16 years or under, any amusement parlours, any children's playground or area in a park where children 16 years or under are present or any caravan parks or houses where children 16 years or under ordinarily reside unless accompanied by a person approved by the Departmental Supervising Officer.
21. The defendant must not approach or have any contact with any children 16 years of age or under at any sporting facility, sporting venue or public swimming pool.
Further matters
22. Should the defendant propose to enter into a relationship with another person, be that relationship at an intimate level or at the level of friendship, whom he knows, or comes to know, is the parent or guardian (or otherwise a person with care or control, such as a teacher) of a child 16 years of age or under, he must notify the Departmental Supervising Officer as soon as reasonably practicable. The Departmental Supervising Officer may disclose the defendant's offence history to such other person if the Officer is satisfied that to do so is necessary or desirable in the interests of the safety of any children of or related to that person, or otherwise within their care or control.
Personal details and appearance
23. The defendant must not change his name from Raymond Neville Bastian, use or be known by any other name without prior approval of the Departmental Supervising Officer.
24. The defendant must not, without the approval of the Departmental Supervising Officer, change his facial appearance, including facial hair or the colour of his hair and must not alter the length of his hair to the extent that he cannot be reasonably recognised.
25. If the defendant's proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental Supervising Officer.
Medical intervention
26. The defendant must engage a general practitioner as soon as reasonably practicable and must notify the Departmental Supervising Officer of the identity and address of the general practitioner.
27. The defendant must disclose to his Departmental Supervising Officer the identity of any other medical or mental health practitioner, including psychologists, whom he consults.
28. The defendant must accept psychological and psychiatric assessment and treatment as may be arranged by the Department, or by a Local Health District (LHD) or by the Community Forensic Mental Health Service (CFMHS), Justice Health or otherwise, including counselling and psychological therapy.
29. The defendant must undergo a comprehensive assessment (and further assessments from time to time) including medical examination, pathological investigations, psychometric testing and radiological imaging to be conducted and/or arranged by the CFMHS or Justice Health, LHD or any medical practitioner to determine what is required for treatment, including in respect of the defendant's potential for alcohol and/or drug abuse and potential for sex offending.
30. Without limiting the preceding paragraph, if it is prescribed the defendant must accept medical treatment or any other therapy as may be provided by CFMHS, Justice Health, and LHD or any medical practitioner, and must not unreasonably refuse his consent to the administering of such prescribed drug or therapy.
Disclosure of information
31. The defendant must waive his right to the confidentiality of all information disclosed by him during treatment to his doctors, including any psychiatrist or other specialist and any psychologist.
32. The defendant must consent to his general practitioner, any other medical practitioner, his treating psychologists or psychiatrists, any treating LHD, CFMHS and Justice Health sharing information about him, including reports on his progress and information he has disclosed during treatment with each other and with the Departmental Supervising Officer and other departmental officers involved in his supervision.
33. The defendant agrees to all sharing of information between the Departmental Supervising Officer, the Department, CFMHS or Justice Health, any treating LHD, the defendant's general practitioner and any treating psychologist or psychiatrist.
34. The defendant must attend six monthly meetings if required by the Departmental Supervising Officer so that the defendant's management plan may be reviewed and adjusted if considered appropriate.
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Decision last updated: 30 June 2011
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