State of NSW v Hudson

[2019] NSWSC 1761

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of NSW v Hudson [2019] NSWSC 1761

Hearing dates:

26 November 2019

Decision date:

13 December 2019

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1) The interim supervision order imposed upon the defendant, Ian James Hudson, on 7 March 2019 is revoked.

 

(2) Pursuant to s. 5B and s. 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of three years from the date of the order; and

 (3) Pursuant to s. 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A to this judgment.

Catchwords:

HIGH RISK OFFENDER – Child sex offender – Application for an extended supervision order (ESO) – No controversy about imposition of an ESO – ESO imposed – discussion of disputed conditions

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Category:

Principal judgment

Parties:

State of NSW
Ian James Hudson

Representation:

Counsel:
S McGee (Plaintiff)
Dr A Hughes (Defendant)

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

File Number(s):

2019/30902

Publication restriction:

Nil

Judgment

Introduction

1. Mr Ian James Hudson (the defendant) was born in Tamworth in June 1979, and accordingly is 40 years of age. He endured a very distressing and damaging childhood during which he was – literally, not figuratively – treated like a dog. Although suffering from no organic brain injury, nor from mental illness, he has some measure of intellectual impairment of unknown origin. His occupations have been limited and, I infer, unengaging. The most negative and anti-social aspect of his troubled life is that for many years he has demonstrated not only a sexual attraction to pre-pubescent and pubescent girls, but also a readiness to act upon it.

Criminal record

2. To expand on that proposition by way of his criminal record, when he was 14 years of age the defendant was placed on a bond by the Children’s Court sitting at Tamworth for indecent assault of a young girl.

3. At the age of 16, he was sentenced by the same Court sitting at Bidura for offences of abduction, two counts of aggravated sexual assault, and an aggravated act of indecency. He received in total a control order of detention for 18 months (seemingly without a non-probation period), and was ordered to attend a program for sexual offenders.

4. Those two sets of offences featured physical violence above and beyond the violence inherent in any sexual contact with a person who is either not consenting or incapable of giving consent because of his or her age.

5. The defendant continued to interact with the criminal justice system sporadically over the next many years. His offending included acts of dishonesty, lesser forms of non-sexual violence, and driving offences. It is noteworthy that, as long ago as early in the year 2000, he was diverted from the criminal justice system on the basis of a mental incapacity, which I infer to have been intellectual disability.

6. It was in the early part of 2008 that he committed further serious sexual offences against a child in this State. To state things very briefly, the defendant, then aged in his late 20s, inveigled himself into the life of a girl under the age of 16 years whom he had met at a restaurant in Dubbo. She was, of course, incapable of giving consent to sexual contact with any person. Eventually, the victim became pregnant, and a termination was performed.

7. Many years later (for reasons that I shall explain in a moment), in September 2016 his Honour Judge Lerve sentenced the defendant for one count of having sexual intercourse with a person aged between 14 and 16 years; an identical count was taken into account pursuant to a Form 1. His Honour imposed a head sentence of imprisonment of 3 years 6 months that commenced on 9 September 2015 and concluded on 8 March 2019, with a non-parole period of 2 years and 3 months that concluded on 8 December 2017.

8. The interposing event was as follows. In late 2008 or early 2009, the defendant was in Victoria. On an occasion when he was working with a travelling carnival as a “dodgem cars” operator, he met a young girl who was under the age of 16 years. Yet again, he inveigled himself into her life, and prohibited sexual contact took place between the two of them to which she was incapable of giving consent. The offending was discovered reasonably promptly: on 31 July 2009 in the County Court of Victoria at Melbourne, the defendant was sentenced for a number of offences, including more than one count of sexual penetration of a child under 16 years of age. He received a significant total head sentence of 6 years 4 months with a non-parole period of 4 years 4 months. It was after release pursuant to that sentence that the defendant became amenable to the sentence thereafter imposed by Judge Lerve; one might infer that the sentence imposed by his Honour reflected considerations of totality.

9. To complete this thumbnail sketch of the negative interactions of the defendant with the criminal justice system, his obligations as a convicted child sex offender in Victoria were breached by him in New South Wales. The result was that in 2016 in the District Court at Newcastle he was placed on a suspended sentence for doing so. Not only that, his parole in Victoria has since been revoked, with the result that he is currently in custody in that State, and he will be serving balance of parole (BOP) until 23 December 2019, on which date all of his custodial sentences will expire.

The application

10. It is in those circumstances that the State of New South Wales (the plaintiff) has sought, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), an extended supervision order (ESO) of three years’ duration, intended to commence upon the expiry of the BOP of the defendant in less than two weeks.

11. Counsel for the defendant made it clear to me not only that that order is not opposed forensically, but also that the defendant is subjectively ready, willing and able to receive further rehabilitative help, by way of some further restrictions on his conditional liberty. Both counsel accepted, of course, that the question of whether to impose the order sought remains a matter for my affirmative satisfaction of the central test to be found in s 5B of the Act.

Central question

12. In my opinion, it is appropriate in the foregoing circumstances for my analysis of the question to be concise.

13. In short: there is no dispute and no doubt that all of the mechanistic preconditions for the making of an order have been established.

14. Nor is there any doubt that this intellectually limited man has shown over many decades a proclivity that has caused enormous harm. It is true he has undertaken a substantial amount of rehabilitation in custody, and that in some settings he has been said to have made sound progress (s 9(3)(e) of the Act).

15. However, I also have regard to the following considerations, pursuant to s 9(3) of the Act:

1. the psychiatric reports of Dr Adam Martin and Dr Richard Furst received by the Court, which spoke of the high risk of sexual reoffending posed by the defendant (entirely as one would expect, in light of his entrenched behaviour), and the appropriateness of the supervision of the defendant in the community pursuant to an ESO (ss 9(3)(b));

2. the risk assessment report of Ms Holly Cieplucha, which also spoke of the defendant being at high risk of sexual reoffending relative to other male sexual offenders (s 9(3)(c)-(d));

3. the risk management report of Ms Erin Kirkwood, which detailed various strategies to manage and monitor the risk factors of the defendant pursuant to an ESO, including weekly interviews, electronic monitoring, and surveillance (s 9(3)(d1));

4. the likelihood that the offender will comply with the strict obligations of an ESO, and the inefficacy of the lesser alternative option of child protection orders in reducing the likelihood of his reoffending, bearing in mind the previous breaches of the defendant not only of his child protection obligations but also of his parole conditions (ss 9(3)(e1), (e2), (f) and (g));

5. the entrenched pattern of sexual offending from a very early age, its chronicity, and its gravity (s 9(3)(h));

6. the views of Judge Lerve in sentencing the defendant for the index offence, namely that his Honour considered the offending to be a “particularly serious example of this type of offence”, although the subjective case of the defendant was found to be “very strong” (s 9(3)(h1));

7. the intellectual and psychological limitations under which the defendant labours (s 9(3)(i));

8. the length of time that the defendant has spent in custody over the past several years, seemingly interrupted only by a short period on bail between one lengthy sentence and the next (s 9(3)(i));

9. my satisfaction that an ESO could do a great deal of good in this case (s 9(3)(i)); and

10. the fact that complete deprivation of liberty by way of a continuing detention order (CDO) is not sought by the plaintiff (s 9(3)(i)).

16. All of the above considerations combine to lead me to be affirmatively 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”.

17. I am also of the opinion that there is no reason why I should exercise any discretion not to impose an ESO: s 9(1) of the Act; again, counsel for the defendant did not seek to be heard in that regard.

18. Finally, in the circumstances of this case, I am satisfied that the proposed duration of conditional liberty of three years is appropriate.

19. In short, I shall impose the ESO sought by the plaintiff and to which the defendant advisedly consents, and as an ancillary measure revoke the interim supervision order (ISO) that was contingently imposed on 7 March 2019 but that has not, in fact, come into effect.

Conditions of ESO

20. The only matter that was in dispute between the parties was with regard to two conditions.

21. I have reviewed all other conditions proposed by the plaintiff, and am satisfied that they are appropriate, in accordance with the test to be found in s 11 of the Act.

22. The first dispute was about whether the defendant should be required to submit to testing for alcohol as directed by his Departmental Supervising Officer (DSO).

23. Whilst I accept that alcohol is generally a disinhibiting and sometimes criminogenic drug, and that the juvenile offending of the defendant began when he was abusing it and other substances, it was accepted by counsel for the plaintiff that there is no evidence tendered before me to suggest that the defendant has ever committed an offence whilst intoxicated by alcohol, or after having been drinking that substance.

24. Furthermore, I think the point is soundly made by counsel for the defendant that if things start to “go off the rails”, his DSO will become aware of that by way of many of the other conditions.

25. In short, I am not satisfied that mandatory testing for alcohol is appropriate. Therefore, that part of proposed clause 25 will be deleted.

26. The other dispute was about the rigour with which the defendant must inform his DSO of his proposed movements in the community.

27. The alternative contention of counsel for the defendant was for a less onerous regime. One of the reasons for that was the concern that an intellectually limited man may be simply incapable of creating a detailed schedule of movements. It was also said that an overly prescriptive regime could lead to regressive exasperation, and in turn disengagement from the benefits of conditional liberty.

28. There is some force in those concerns. But I think that I am entitled to rely upon the common sense of a DSO not to impose overly burdensome requirements upon an intellectually limited person.

29. As well as that, it is to be recalled that, when at liberty prior to his most recent lengthy sentences, the defendant showed himself – whilst “out and about” in the community – well able to intrude into the lives of two young girls, with the result that he committed very serious sexual offences against them.

30. I do not believe that proposed conditions 6, 7 and 8 are inappropriate in those circumstances.

31. The final aspect of the conditions to which I make reference is that it is proposed that after release the defendant will live in the Hunter region of New South Wales with his romantic partner. That will involve some exposure to her children. But I was explicitly assured by counsel for the plaintiff that the submission on behalf of her client is that the proposed conditions will adequately protect all children, even despite the life history of the defendant. That assurance forms a significant part of my satisfaction that all other undisputed conditions are appropriate.

Orders

32. For the foregoing reasons, I make the following orders:

1. The interim supervision order imposed upon the defendant, Ian James Hudson, on 7 March 2019 is revoked.

2. Pursuant to s. 5B and s. 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of three years from the date of the order; and

3. Pursuant to s. 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A to this judgment.

State of NSW v Hudson - Schedule A (323 KB, pdf)

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Amendments

13 December 2019 - Deleted the word version of Schedule A and replaced with pdf version of Schedule A.

20 December 2019 - Date on cover sheet changed from 13 February 2019 to 13 December 2019.

Decision last updated: 20 December 2019