State of NSW v Jones (Final)

[2022] NSWSC 427

Supreme Court

New South Wales

Medium Neutral Citation:	State of NSW v Jones (Final) [2022] NSWSC 427
Hearing dates:	21 July 2021, 2 February 2022, 18 March 2022
Decision date:	14 April 2022
Jurisdiction:	Common Law
Before:	Button J
Decision:	Extended supervision order for five years imposed
Catchwords:	HIGH RISK OFFENDER – application for continuing detention order or extended supervision order – history of sexual offences against boys – repeated offences of producing child abuse material committed while in custody – significant inheritance permitted access to anti-libidinal medication in custody – good progress – reduction in testosterone levels and sexual behaviours – extended supervision order imposed – no dispute as to strict conditions—discontinuation of medication for any reason constitutes breach of extended supervision order
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW)
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Michael Jones (Defendant)
Representation:	Counsel: P Aitken (Plaintiff) D Bhutani (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid New South Wales (Defendant)
File Number(s):	2021/81223
Publication restriction:	Nil

Judgment 

Background

1. Mr Michael Jones (the defendant) was born in January 1965, and is accordingly now 57 years of age. He was born in Northern Ireland and spent much of his childhood relocating between that country and Australia due to his father’s work. He struggled to retain friendships due to this instability, and this social exclusion and isolation has extended throughout much of his life. He began his working life with the Royal Australian Airforce, however this was inevitably cut short by his subsequent offending and incarceration.

2. Most significantly, I am certainly satisfied that, as a boy growing up in Northern Ireland, he was sexually assaulted. Tragically for society as a whole, his subsequent victims, and himself, his own victimisation distorted his sexuality, with the result that he is powerfully attracted to children. Even worse, over many years he has shown himself prepared to act upon it, even in circumstances in which he must have realised that his actions would lead to very adverse consequences for himself.

3. The result of his entrenched paedophilia is that he has interacted with the criminal justice system and, more recently, the system of civil detention pursuant to the Crimes (High Risk Offenders)Act2006 (NSW) (the Act), as follows.

4. Dealing with criminal matters in general order of their commission, rather than their disposal, between 1988 and 1990, he committed non-penetrative sexual offences against at least one child in Queensland. In 2001, he was placed on a suspended sentence of 12 months for three years in that jurisdiction.

5. Between 1 June 1987 and 22 December 1988, he committed various sexual offences against a number of boys aged between 13 years and 16 years in New South Wales. The offending occurred while the defendant was a Scout Leader, with the victims being members of his Boy Scout group. During camping trips, the defendant groomed the victims by having sexual discussions with them, before engaging in acts including sexual touching and oral sex. In December 1992, he was sentenced to a total head sentence of imprisonment for 7 years, with a total non-parole period of 4 years. The sentence commenced on 29 November 1991 (the first date upon which he was ever incarcerated in New South Wales, and to my knowledge ever), with the non-parole period to expire on 28 November 1995, and the head sentence to expire on 28 November 1998. An appeal to the Court of Criminal Appeal was ineffectual.

6. The defendant was released at the end of his non-parole period, having served four continuous years in custody.

7. The defendant returned to custody on 6 June 1997, having breached parole. Notably, the breach was constituted by the defendant being in contact with a 14-year-old boy. He was released on 29 November 1998, on the expiry of the head sentence.

8. In the years 1999 and 2000, the defendant again committed sexual offences against two children. The facts in a nutshell were that the defendant had met the two young boys when staying in temporary accommodation. He had befriended them before persistently committing sexual abuse against the two, and documenting it through photography and detailed diaries.

9. For two counts of persistent sexual abuse of a child, and one count of publishing child pornography (constituted by images of the offending that the defendant created for his own gratification), in September 2004 Shadbolt DCJ QC imposed a total head sentence of imprisonment for 14 years, with a total non-parole period of 9 years, each to commence on 7 April 2004, and the latter to expire on 6 April 2013.

10. That very experienced sentencing judge remarked “[t]hese offences are so serious and the course of conduct so damaging to the young children that they are deserving of severe prison sentences” and “[t]he prisoner can only be regarded as a persistent paedophile and a threat to society.”

11. In April the following year, Hock DCJ imposed a total sentence of imprisonment for 2 years with a non-parole period of 1 year 3 months, to commence on 7 January 2013. Notably, these were for offences that had no direct or indirect sexual flavour. The practical effect of the sentences was to extend the non-parole period of the defendant by one year.

12. In fact, the defendant was not released on the expiry of his latest expiring non-parole period on 6 April 2014. That did not occur until three years later, on 11 April 2017, with the result that the defendant spent 13 years in continuous custody. One can readily infer that there were concerns about the prospect of him reoffending.

13. He had commenced anti-libidinal medication (“ALM”) in January 2017, while still in custody. He was released to a Community Offender Support Program (“COSP”), which is a form of highly regulated living in the community for recently released offenders. Unfortunately, the defendant claimed to have experienced suicidal ideation as a side-effect of the ALM, and it was discontinued. By 18 July 2017, he had breached parole again, was back in custody, and has remained there ever since.

14. The defendant “owed” a little short of 9 months in balance of parole, which was to expire on 6 April 2018. In the meantime, he became subject to a continuing detention order (“CDO”) of Adams J, which commenced on 16 April 2018 and expired on 15 April 2019; again, I infer that it was preceded by a brief interim detention order (“IDO”), with the result that there was no gap in his incarceration.

15. During the currency of that order, on 9 June 2018, a cell search revealed that the defendant had created a document that was obviously paedophilic in focus. In other words, whilst held in prison pursuant to a CDO founded on a finding that he presented an unacceptable risk of committing sexual offences against children, the defendant himself created documents for his own sexual gratification with regard to the same kind of victims.

16. For offences of possessing and producing child abuse material, the defendant received on 8 February 2019 a total sentence of 2 years with a non-parole period of 18 months, each to commence on 9 June 2018, with the former to expire on 8 June 2020, and the latter to expire on 8 December 2019. Kennedy M reflected on the aggravating factor that the material was created while the defendant was in custody for other, broadly similar, serious offences.

17. In April 2020, Ierace J imposed a further CDO of one year, to commence on 29 April 2020, and to expire on 28 April 2021.

18. Later again, on 10 December 2020, the defendant received a head sentence of one year with a non-parole period of nine months, each to commence on 29 April 2020. Again, whilst in custody, the defendant had produced child abuse material for his own gratification. Atkinson M highlighted a need for both specific and general deterrence, remarking “there is a strong need to send a message to him [the defendant]…and people need to understand that fictional works of this nature are not to be produced, and they can expect to be dealt with before the Courts.”

19. On 16 April 2021, Hamill J imposed an interim supervision (“ISO”) upon the defendant. That form of conditional liberty, however, never became effectual, and was overtaken by events, as follows.

20. In October 2021, Gartelmann DCJ SC imposed a head sentence of 1 year 10 months, to commence on 28 January 2021 and expire on 27 November 2022, with a non-parole period of 12 months, which expired on 27 January 2022. The offence was producing child abuse material. Yet again, whilst incarcerated, the defendant had produced various handwritten materials that focused on the sexual abuse of children for his own gratification. The defendant had been refused bail on those charges before imposition of sentence, with the result that he was never released to conditional liberty on the ISO.

21. To complete this thumbnail sketch of the curial history of the defendant, since the matter first came before me quite some months ago, I have imposed more than one IDO whilst the resolution of the final application remained pending for months. I shall explain why I adopted that most unusual course shortly.

22. The upshot of what I have summarised above is as follows. The defendant has been committing sexual offences against children for well over 30 years. He was first incarcerated for such offending in late 1991. Since that time, by my calculation, he has spent a total of less than seven years in the community. And even whilst in prison he has insisted repeatedly on creating child abuse material, undoubtedly for his own sexual gratification.

23. Sadly from the perspective of everyone, it is undeniable that the defendant has shown himself to be a committed paedophile. And as one would expect, apart from an unexpected change in course that developed recently, countless psychological and psychiatric reports about the defendant, his prospects for rehabilitation, and any risk that he may present to the community, have become more and more unremittingly negative.

24. To expand on that, with a focus on the more recent: Dr Katie Seidler, forensic psychologist, assessed the defendant for the purpose of mandatory examinations in May 2021. Dr Seidler was of the professional opinion that the defendant showed very limited insight into his hebephiliac interests. At that point in time, using her experience and statistical analysis, she assessed the defendant as presenting a high risk of future sexual offending.

25. Other psychological and psychiatric assessments conducted since his initial incarceration in 1991 generally considered the defendant to be at a moderate to high risk of reoffending in similar circumstances.

26. Dr Samuel Ardasinski prepared two risk assessment reports for Corrective Services NSW in late 2020 and early 2021. They foreshadowed potential risk management strategies if the defendant were to be placed on an ESO including referral to the community-based Sex Offender program, supervision of his social connections, and potential electronic monitoring.

27. While incarcerated, the defendant has participated in therapeutic treatment programs including CUBIT, and has had the benefit of years of specialist psychological therapy. Regrettably, this has been noted by psychologists and psychiatrists as having little effect on his offending.

Application and unexpected development

28. It was in that context that the State of New South Wales (the plaintiff) sought in an amended summons an ultimate order in the form of a CDO for two years. In the alternative, an ESO with a duration of five years was sought.

29. At an early stage, counsel for the defendant accepted that, unless some radical intervention could be proposed, a CDO would be difficult to resist. And a return to ALM appeared impractical, because it was agreed that it would need to be commenced in custody if it were to be part of an ESO; apart from anything else, to check its physiological and psychological efficacy. Because it would need to be paid for privately, however, it was thought that that would be impossible, on the assumption that, in light of his extended incarceration, the defendant is impecunious.

30. Surprisingly, that turned out not to be the case. Reasonably recently, he inherited a significant sum of money. Furthermore, a sister of his - who remains supportive and committed to his rehabilitation - took charge of it on his behalf. She applied it to the provision of privately funded ALM whilst the defendant was incarcerated over the past many months.

31. As one would expect, the program was interrupted by the normal logistical and bureaucratic difficulties that accompany an unusual course of treatment being adopted in custody. And, of course, the whole process was disrupted by the pandemic.

32. That is why these proceedings were repeatedly stood over by me, with the consent of both parties: it simply seemed unjust for me to insist that they proceed whilst the question of whether ALM might provide a practical alternative to further detention was unresolved. Certainly, the protection of the community was ensured during that extended period by a number of short IDOs that I imposed, again with the consent of both parties.

33. The other aspect that has developed over the past many months is that Dr Jeremy O’Dea - a well-known and distinguished forensic psychiatrist with a special expertise in the treatment of paedophilia - has not only monitored the provision of the ALM, but has also set out a detailed plan for his own management of the defendant in the community, if he were placed on an ESO as opposed to a CDO. Dr O’Dea had initially produced a report in June 2021 in accordance with mandatory examinations, and noted that the defendant remained a significant risk of engaging in future sexual offending against male children, if nothing were to change.

34. Notably, however, the more recent reports of Dr O’Dea approach the risk assessment process with the benefit of the treatment program of ALM in mind. They suggest the following.

35. Despite the problem that developed in 2017 with regard to a previous course of ALM, the defendant has responded well to the medication in custody. There have been no reported physical or psychological side-effects. Most importantly, his testosterone level has reduced extremely dramatically, in the order of 95%. The opinion of Dr O’Dea is that the physiological ability of the defendant to become sexually aroused by any stimulus is very markedly reduced. More generally, Dr O’Dea’s professional opinion is that this also extends to a reduction in the defendant’s sexual fantasies and sexual behaviours.

Submissions

36. At the final hearing, the parties were agreed on the following.

37. All of the mechanistic statutory preconditions for the making of one order or the other have been fulfilled, in light of the criminal record and custodial position of the defendant.

38. The issue is a very straightforward one, and does not require a lengthy judgment from me.

39. There can be no doubt that, if released entirely unconditionally to the community, the defendant would pose “an unacceptable risk of committing another serious offence”, to quote the well-known test to be found in s 5B(d) of the Act.

40. The real question, in accordance with s 17 of the Act, is whether a lengthy and rigorous ESO would be sufficient? Or, is physical incapacitation by way of detention in prison the only appropriate way to ensure the safety of the community, notably the paramount consideration to be found in s 17(2) of the Act?

41. Counsel for the defendant emphasised the following.

42. First, he accepted the paramountcy of the factor to which I referred a moment ago. But he submitted that it is most unlikely that, pursuant to the Act, the defendant will be continuously detained for the rest of his life. In other words, the overwhelming probability is that he will indeed be released to the community at some stage or other. That means that I should think about the protection of the community holistically, with the next many years in mind, not just focusing on the present.

43. Secondly, he submitted that an unusual concatenation of favourable factors has developed: the unexpected financial windfall, which led to the ability to test ALM in custody; its physiological efficacy; its absence of side-effects; and, finally, the fortuitous availability of an eminent forensic psychiatrist who specialises in this particular pathology. His submission was that giving effect to that combination is not only very much in the interests of the defendant, but also of the community. The opportunity that it presents, he submitted, should not be lightly foregone by me.

44. Thirdly, he accepted that all of the conditions of an ESO proposed by the plaintiff should be imposed by me. In other words, by the end of the final hearing, there was no quibble about the appropriateness of this or that condition. It was also said that, undoubtedly, the conditional liberty to which the defendant would be released on an ESO is stringent indeed. In that regard, it was noted that, when first released, the defendant would be living in the highly structured environment of a COSP, and that that accommodation could remain in force for an extended period, at the discretion of the Departmental Supervising Officer (DSO) of the defendant.

45. Fourthly, as part of that stringency, it was accepted that the ALM is an absolutely essential part of any plan for the safe release of the defendant. It was explicitly accepted that, if for any reason, the defendant could not or would not or should not take the ALM, then he would be in breach of the ESO, and subject to reincarceration as a result.

46. In other words, it was made absolutely clear by counsel for the defendant that there could not be the slightest question of the defendant being at conditional liberty, unless he was continuously medicated in accordance with the opinion of Dr O’Dea about the necessary prophylactic effect.

47. Fifthly and finally, counsel conceded that ALM had failed in the past. But he submitted that this is an opportunity for a mature man who has spent countless years of his adult life in jail to embark upon the path of rehabilitation, whilst at the same time protecting the community by way of an extremely rigorous ESO, the centrepiece of which is physiological, as opposed to physical, incapacitation.

48. Counsel for the plaintiff, as I have said, was content for the matter to be adjourned repeatedly to see whether ALM could be seen to work, so long as the community was protected in the meantime by the defendant being either bail refused, a sentenced prisoner, or subject to incarceration by the IDOs imposed by me.

49. By the end of the final hearing, counsel explained that both options – a CDO for two years, or an extremely rigorous ESO for five years, the centrepiece of which is compulsory ALM – were placed before me by the plaintiff. Ultimately, it was said, it was a matter for me to determine whether application of s 17 of the Act could mean that the lesser restriction of liberty could be appropriate.

Determination

50. After a period of reflection, I have come to the view that, in the most unusual circumstances of this case, an extremely rigorous ESO of five years would be appropriate, and a CDO is not required, despite the paramountcy of the protection of the community.

51. I am amply satisfied that the defendant is not likely to comply with the conditions of an ESO unless he is subject to compulsory ALM. My conclusion is founded on various factors, including the defendant’s pervasive offending while in custody. The defendant is certainly a recidivist paedophile with a lengthy criminal history of child sexual abuse and production of child abuse material.

52. However, I have shied away from detention, and made the decision to impose a strict ESO, for the following reasons.

50. First, as his repeated offending by way of the creation of child abuse material in custody demonstrates, the sexual pathology of the defendant is so entrenched that incarceration is futile, except as a measure of blunt incapacitation.

51. Secondly, I accept the force of what counsel for the defendant has said about the undoubted paramountcy of protection of the community. By that I mean, I think that in a practical sense it is inevitable that Mr Jones will be released one day. I believe that his release now, with all that is in place, provides the best chance of protecting the community, now and into the future.

52. Thirdly, I accept that the defendant is denied the ability to become physiologically sexually aroused, as a result of the ALM. But it is trite to say that sexual arousal is only one part of the complex psychological and sociological reasons for sexual offending against children and adults. Even so, in the circumstances of this case, I accept the guarded optimism of Dr O’Dea to the effect that, denied that physiological ability, it is significantly less likely that the defendant will commit a sexual offence against a child. In particular, that expert has written “[the reduction in testosterone is] likely to have resulted by now in a significant reduction in Mr Joners’ [sic] overall sex drive, sexual fantasies and sexual behaviours.”

53. Fourthly, to repeat: the ALM is a mandatory part of the ESO that I shall impose. If for any reason – even a reason that is absolutely no fault of the defendant – he cannot continue to take it, then he will be in breach of the ESO and liable to immediate reincarceration. I appreciate that that structure is extremely stringent and in a sense, harsh. But I regard it is absolutely essential for the protection of the community.

54. Fifthly, so far the progress on the ALM in custody has been very satisfactory: a marked reduction in testosterone; an inferred and, to the extent possible, observed reduction in interest in sexual matters; no physical or psychological side-effects; and a seemingly ongoing readiness on the part of the defendant to take the medication indefinitely. That is in contrast to the previous failure in 2017.

55. Sixthly, it is not just a matter of the ALM being imposed upon the defendant. It is also the fact that he will have the benefit of being monitored by one of the foremost specialists in this field in New South Wales.

56. Seventhly, it is important to understand that the defendant will not be going from the secure and structured environment of a jail on the one hand to, (for example) simply living in isolation in a studio apartment or boarding house on the other. On the contrary, he will be living in a COSP, another structured environment, and he may well be there for many months.

57. Eighthly, the panoply of conditions that the plaintiff proposes, to which the defendant agrees, and that I myself regard as completely appropriate, is, taken as a whole, very strict indeed. And as a matter of common sense, in light of the life history of this man, I can surely be confident that a DSO will always err on the side of caution in their application.

58. Finally, as counsel for the plaintiff submitted, the ultimate determination is for me alone. Even so, the final position of the plaintiff – which is, after all, the moving party that originally sought two further years of incarceration – plays a substantial role in my decision.

Orders

1. The interim detention order made by me on 18 March 2022 for a period of 28 days from 21 March 2022 until 17 April 2022, and the related warrant for the committal of the defendant to a correction centre, are revoked.

2. The defendant is subject to an extended supervision order for a period of five years from 14 April 2022.

3. For the period of the extended supervision order, the defendant must comply with the conditions annexed to this judgment.

   State of NSW v Jones - amended conditions (217692, pdf)

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Decision last updated: 14 April 2022