State of NSW v Kay

[2017] NSWSC 254

Supreme Court

New South Wales

Medium Neutral Citation:	State of NSW v Kay [2017] NSWSC 254
Hearing dates:	27 February 2017
Date of orders:	17 March 2017
Decision date:	17 March 2017
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1) Order pursuant to s 5C of the Crimes (High Risk Offenders) Act 2006 that Graham James Kay be subject to a high risk sex offender extended supervision order for a period of 3 years from today. (2) Direct pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 for the period of the high risk sex offender extended supervision order that Graham James Kay comply with the conditions set out in the SCHEDULE to these orders.
Catchwords:	CRIMINAL LAW – serious sex offender – whether defendant a high risk sex offender – whether high risk sex offender extended supervision order should be made
Legislation Cited:	Child Protection (Offender Registration) Act 2004 Crimes (High Risk Offenders) Act 2006
Cases Cited:	Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales [2016] NSWCA 57 State of New South Wales v Anderson [2015] NSWSC 1515 State of New South Wales v Donovan [2015] NSWCA 280 State of New South Wales v Kay [2016] NSWSC 1820
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Graham James Kay (Defendant)
Representation:	Counsel: L Fernandez (Plaintiff) A Cook (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid Commission of NSW (Defendant)
File Number(s):	2016/356365
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The State of New South Wales seeks orders pursuant to s 5C and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 for a high risk sex offender extended supervision order for a period of three years in respect of Graham Kay. Schmidt J made an interim supervision order against Mr Kay on 15 December 2016: see The State of New South Wales v Kay [2016] NSWSC 1820. By reason of her Honour’s detailed and helpful recitation of the facts, including relevant particulars of Mr Kay’s offending, and her Honour’s exposition of the applicable law, it is unnecessary for me to repeat that information here.

2. Mr Kay opposes the making of an extended supervision order. He does not concede that he is a high risk sex offender. He maintains that the evidence does not establish to the required standard that he poses an unacceptable risk of committing a serious sexual offence. However, if I were minded to make an extended supervision order, Mr Kay contends that, having regard to the relevant risks and the objects of the Act, any extended supervision order should not exceed 12 months. Furthermore, Mr Kay contends that the conditions sought by the State go beyond what could reasonably be required to reduce the relevant risk and fulfil the objects of the Act.

Court appointed experts

3. Dr Andrew Ellis and Dr Anthony Samuels, forensic psychiatrists, were appointed pursuant to s 7(4) of the Act, and their reports, dated respectively 3 February 2017 and 6 January 2017 must be considered by me pursuant to s 9(3)(b) of the Act.

Dr Ellis

4. Dr Ellis recorded that Mr Kay told him the following things concerning his offences:

“For the eight offences related to his current custody period he reports that he had begun a relationship/affair with a much younger woman. He had met her through the Rural Fire Service. He believed that this woman was being sexually pursued by other Rural Fire Service workers. He began to have his doubts about her fidelity to him. He says he saw her put her hand on another man’s thigh. He says he did not confront her about this behaviour but ‘stewed’ on it. He still believes that she was unfaithful to him. He says the distress he experienced due to this relationship motivated his offending.

He says that for the first of the offences he saw a woman that looked attractive, he followed her and groped her. He says he then drove away and threw up. He says he became sexually aroused by the situation and he was masturbating to the fantasy of approaching women and groping them. He says he was thinking of this fantasy while engaging in intercourse with his sexual partner at the time. He says that for the subsequent offences where he used a knife he happened to find his elder son’s knife in the boot of his car. He says that this was a way for him to get compliance from his victims, rather than to cause them fear or have any relationship to his masturbatory fantasy. He said the use of a gag or balaclava for some offences was to avoid being identified and gain compliance rather than being related to sexual arousal.”

5. Dr Ellis arrived at the following diagnosis:

“The diagnoses of primary concern are paraphilic disorders. There is sufficient evidence for a diagnosis of voyeuristic disorder and frotteuristic disorder. This was observed in his twenties with separate offences characterized by grabbing an unsuspecting victim, associated with sexual arousal and later with separate offences for peep and pry. He achieved sexual excitement by watching an unsuspecting person in a state of undress. The report of urinating for the second offence is more likely a common justification used by persons who engage in voyeurism. The further set of eight offences indicates aspects of groping a victim in addition to other sexual assault. He reported masturbatory fantasy of grabbing an unsuspecting victim over the period, and using this fantasy while engaging in ordinary intercourse with his partner. There is some evidence for exhibitionist arousal, however he reported this only in the context of suggestion by his partner. When considered alongside the other paraphilias, the possibility that he has been aroused by exposing himself in sexual activity is increased. This particular combination of paraphilias has been studied in the context of an increased association with rape. Paraphilias are chronic relapsing conditions, resistant to treatment.”

…

The other possible paraphilia of particular concern is sexual sadism disorder. The eight offences of 1995-6 indicate significant planning and preparation. The use of a weapon, a gag and threats might indicate sexual arousal to pain, humiliation or fear. Given his difficulty in providing a coherent account of those events there is significant clinical suspicion that the sadistic arousal was present for the offending behaviour.”

6. Dr Ellis dealt at length with the question of whether or not Mr Kay posed a risk of committing a further serious sex offence. Some of what he reported includes the following:

“In considering actuarial, structured professional and clinical parameters in the absence of any treatment or supervision, Mr Kay would fall into a group of persons with a risk for serious offending that is statistically moderate-high in frequency, some of which would be a type with serious consequence, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk.”

7. Dr Ellis identified deviant sexual arousal as a primary risk factor for sexual re-offending and noted that Mr Kay’s history indicated a pattern of this arousal:

“Deviant sexual arousal is consistently identified as the most prominent risk factor for sexual offence. Mr Kay’s offence history indicates this pattern of arousal. The pattern has been present since early adulthood. His multiple offences are likely reflective of this sexual arousal. Physical coercion with weapons and psychological threats were employed in order to subdue victims. He has shown a stereotyped pattern of offending that escalated over time. Anti-libidinal medication is the best treatment to address deviant arousal. Behavioural techniques may reduce deviant arousal.”

8. Dr Ellis also noted that while the rates of repeat sexual offending are very low in people over 60 years of age, those who do re-offend tend to have a diagnosis of paraphilia:

“The general rates of repeat sexual offending are very low in persons over 60 years. The STATIC99R score reflects a reduction given his age. Those who do offend in later life tend to have a diagnosis of paraphilia. Given the limited time in the community offence free thus far, it is difficult to consider any further reduction in risk in his case at present. He remains physically active and healthy.

…

A consideration of the type of possible sexual offence should be considered in an estimation of risk. In the case of Mr Kay, given the particular pattern of sexual arousal, the likely type of victim would be a female adult or teenager in a situation where they were alone or in a position of vulnerability. Weapon use may form part of the sexual arousal. The associated intimidation, shame and loss of a sense of bodily integrity would be of the type where serious physical and psychological injury is foreseeable. He also displays a risk of committing less serious, however still concerning sexual offences such as indecent assaults or peep and pry type behaviour. These behaviours, if repeated would be strong markers that his risk profile had significantly increased.”

9. The type of possible sexual offence described by Dr Ellis would come within the definition of a “serious sex offence” in s 5 of the Act.

10. So far as treatment is concerned, Dr Ellis recommended anti-libidinal medication for Mr Kay’s deviant arousal. He also suggested behavioural techniques as a method of reducing it.

11. Dr Ellis reiterated that “paraphilias are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts”. He also noted that Mr Kay’s psychiatric disorders are likely to persist beyond any period of supervision, but may be better internally controlled at that point.

12. Dr Ellis expressed the following opinion about the need to make an extended supervision order and the preferable length of such an order in this case:

“From a psychiatric perspective if an ESO is applied a period of three years is considered reasonable in order to improve function in the community, and refine the appraisal of risk. Paraphilias are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts. Relapse to acting on fantasies and urges can take place over years. His older age may have reduced his sexual drive and interest, plus general aggression, however at the moment only his self-report is evidence of this. Three years would be a reasonable amount of time to assess his response to a change in psychological therapy, monitor the effect of medication (if used), improve social integration and allow for consolidation of routine.

At this point a more informed appraisal of future risk and progress could be made. His psychiatric disorders are chronic and likely to persist beyond any period of supervision, but may be better internally controlled at that point.”

Dr Samuels

13. Mr Kay gave Dr Samuels an account of his offences. Dr Samuels noted:

“Mr Kay continues to minimise these to some degree and one offence he flatly denies; saying that he was just urinating in an industrial estate. The others he suggests that he was just attracted to women wearing miniskirts and wanted to ask them out on a date but when he got near them he lost control and acted impulsively.”

14. Dr Samuels went on to observe:

“It seems that Mr Kay still has a number of unresolved issues in regard to his own sexual abuse and the impact of that abuse on himself and his sister. Whilst he is distressed and able to express grief for what happened to his sister and his failure to protect her, there still seems to be some disconnection between the fact that he perpetrated similar, possibly more significantly violent, offences on other women. He continues to explain that he was so overwhelmed by his fear of losing his relationship with his partner who was twenty-two years younger than him that this overshadowed everything and led him to act in this way. Whilst there may well be some truth in this assertion, in my view he is at some level still having difficulty in fully accepting responsibility for what he did as well as the consequences for his victims.”

15. Dr Samuels’ diagnosis of Mr Kay was in these relevant terms:

“Mr Kay’s essential offending behaviour is a little harder to characterise in DSM-V terms. I do think he has a Paraphilic Disorder. The definition of Paraphilic Disorder in DSM-V is:

‘a paraphilia that is currently causing distress or impairment to the individual or a paraphilia whose satisfaction has entailed personal harm, or risk of harm, to others’

and

‘a paraphilia is a necessary but not sufficient condition for having a paraphilic disorder, and a paraphilia by itself does not necessarily justify or require clinical intervention.’

The Paraphilic Disorder most closely resembling Mr Kay’s offending behaviour would be Sexual Sadism Disorder. He has, over a period of at least six months, had recurrent and intense sexual arousal from the physical psychological suffering of another person as manifested by fantasies, urges or behaviours and he has acted on these sexual urges with a non-consenting person. I can, however, find no clear evidence that inflicting pain or suffering was his primary motive but of course a sudden attack by an armed stranger would lead to those consequences. It seems the motivation is more complex and involved what was happening to him in the context of a relationship with a younger woman and also served, in some way, to restore a sense of control in the context of feeling very much out of control and at risk of losing the relationship that he so strongly wanted.

The fact that Mr Kay did assault two young women in a less severe way many years before the index offences may however indicate that sudden attacks on unsuspecting women and touching them without consent was part of a pre-existing arousal pattern. Given that his offending pattern is somewhat unusual, a better diagnostic label may be Unspecified Paraphilic Disorder.

The other reason why I do believe this is a paraphilic disorder is that his sexual offending has caused clinically significant distress or impairment in social, occupational, and other important areas of functioning and, in fact, because of these behaviours he has lost his career and his relationships. Mr Kay’s self-report suggests that he gave up a job that he enjoyed because he felt it was impacting too much on his family life yet the drive to offend in this way was even stronger.”

16. Dr Samuels dealt with Mr Kay’s risk of committing a serious sexual offence. Using a combination of the LSI-R, STATIC 99-R and STABLE 2000, as well as various clinical risk assessments, Dr Samuels assessed Mr Kay as falling into the Moderate-High risk category of sexual re-offending. His static risk factors were identified as follows:

“[A]n extensive prior history of sexual offending with quite a characteristic modus operandi involving sudden assaults on unsuspecting victims involving touching and penetrating offences and in the lead up to his incarceration involving threat and weapons. There were four offences of a more minor nature between 1970 and 1987 then no offending behaviour until 1994 when he breached a Domestic Violence Order and it was in the two years following that that the more serious sexual offences occurred.”

17. Dr Samuels opined that Mr Kay’s dynamic risk factors appeared to be most significant and were thought by him to

“…include sexual fantasisation about non-consenting sex as well as fear of losing a relationship, a belief that his partner is being unfaithful, that someone close to him is favouring someone else over him (e.g. the therapist from FPS), or his not feeling needed or acknowledged, all seem to be circumstances in which deviant sexual fantasies and deviant sexual behaviours could arise.”

18. With respect to actuarial risk assessment instruments, Dr Samuels noted:

“[Mr Kay’s] STATIC 99-R, STABLE 2000 and RSVP all place him in the Moderate-High range of risk of reoffending.”

19. Dr Samuels continued:

“Combining static, psychiatric, dynamic, protective and actuarial factors, it is my clinical judgment that Mr Kay remains at moderate to high risk of committing further serious sexual offence.”

20. In relation to risk factors for potential future sexual offending, Dr Samuels said:

“In my view he does have an underlying Paraphilic Disorder characterised by a pattern of arousal in relation to non-consenting sexual relationships. He is most likely to act on these fantasies if there has been a period in his life where he has been thinking about and focusing on such fantasies and where he is depressed, where his social networks are failing, or where he has limited access to professional support. The use of alcohol has been a factor in the past and if he were to start drinking this certainly could be a destabilising element. Mr Kay did acknowledge being quite lonely over the Easter period and certainly I would see him as being vulnerable to depression and loneliness as time goes by. He has a very strong need to please. He wants people to praise him and give him positive feedback. It seems clear he has some issues in regard to accepting and understanding boundaries. If Mr Kay were rejected by or felt rejected or wronged by a person in authority over him or he felt that someone he cared for and was interested in was rejecting him, this would be a setting in which he might feel the need to regain some sense of empowerment and control by engaging in deviant sexual behaviour.”

21. Dr Samuels noted the importance of continued therapy, support, and monitoring in Mr Kay’s management in the community, should an extended supervision order be made. In relation to medical intervention and treatment he said:

“I think it is very important that Mr Kay remains closely involved with FPS … It is important that his therapists maintain very clear boundaries with him. He should be discouraged in group settings from taking a leadership role or co-facilitating role although he may be able to assist other members with some of his experiences. He should, in my view, begin to address the issues of childhood sexual abuse. It may not be appropriate to do this with his forensic psychology therapist and he may need to seek a therapist outside of this setting and he seems willing to pursue this option.”

22. Dr Samuels’ views about the need to make an extended supervision order at all and the length of any such order if made were as follows:

“Mr Kay has a history of institutional compliance. He has been very committed to therapy both in the custodial setting and post-release. It is very important for him to create a good impression. I think it is likely that if he were closely monitored and provided with appropriate supports that his risk could be well managed in the community under the provisions of an ESO.

…

Mr Kay is a well preserved 65 year old man who appears in good physical health. I do not believe that he has, at this point, attained a depth of insight into his offending behaviour and he has of course been in a highly controlled environment for the past nineteen years and under extreme scrutiny for the last year and a half. I would see his risk of reoffending if he is having ongoing professional help and support and close monitoring as being substantially reduced. At this point I would regard Mr Kay as continuing to be at risk for a further period, at least until he has addressed his own issues of sexual abuse, the impact of this abuse on his sister, his sense of guilt about what has happened, until he has had a further period of monitoring and therapy under the auspices of FPS, and until he has found a sustainable long term employment option and has begun to reconstruct his family relationships and has expanded his own social networks. It will take some time for these elements to fall into place and I would regard his current risk level as unlikely to change substantially in the course of the next three years. At that point it would be appropriate to review his progress.”

23. Dr Samuels stated further:

“In my view if Mr Kay is under the provisions of an ESO his risk of reoffending will be greatly reduced. I think that there is still likely to be some instability in his life in the course of the next three years as he begins to reintegrate into society, re-establish his old relationships and forms new relationships, and deals with some of the underlying psychological issues. I think an order for at least three years would be reasonable.”

Samuel Ardasinski

24. On 6 June 2016, Mr Ardasinski, a psychologist, prepared a Risk Assessment Report concerning Mr Kay in express anticipation of the present application. Although on one view it has been overtaken by more recent opinions from Dr Ellis and Dr Samuels, it remains important and instructive in the present inquiry. The following extracts from Mr Ardasinski’s report should be noted:

“He has maintained a stable and prosodical lifestyle in the community since his release, and has not presented with any signs of returns to problematic behaviours.

It does appear that Mr Kay has developed more effective internal risk management strategies than he has ever held previously, such that a new offence could be avoided even within such a constellation of acute risk markers.

…

A review of the material suggests that Mr Kay has been described variously as compliant, motivated and well-behaved both in custody and since being released to supervised Parole.

…

Mr Kay’s community supervisors have expressed no concerns in their case management of him over the past 16 months – he has been a model parolee, by all accounts.

… working two jobs – one of which requires him to commute to his place of work late at night. He has therefore encountered parallel situations … he has not reoffended nor have there been any indications from his community supervisors that he may be at significant risk of doing so …

Should Mr Kay’s ‘aberrant’ sexual interest have abated in the intervening 18 years, with the excellent work he has done to engage in treatment, it may be that he poses a minimal risk of future offending. He may have gained all that he could from treatment and the process of community supervision to be a risk to the community no more.

…

It may be that Mr Kay could independently remain offence free. He has built insight into the reasons behind his choices to offend in the 1990s and previously, and he has worked intensively to intervene into his own risk. He has effectively managed any risks in the community for almost a year- and-a-half since being released to Parole. The evidence before me suggests that Mr Kay would continue to exist in the community without resorting to sexual violence. However, there may still be the potential that he reverts to the faulty thinking which preceded his serious sexual offences. … I consider this scenario unlikely, but possible. Whether this would be considered ‘unacceptable’ in the context of the Crimes (High Risk Offenders) Act 2006 is a matter to be determined by the Court.”

Section 17(4) criteria

25. In exercising the relevant discretion, however, I am required to have regard to certain mandatory criteria set forth in s 17(4) and s 9(3) of the Act. It was contended on behalf of Mr Kay that consideration of these factors revealed the following matters.

26. Mr Kay has been at large in the community for various periods since April 2014 when he commenced Community-Based Maintenance and full time in the community since 20 February 2015. He has travelled regularly to his place of employment at night by public transport in what has been described as potentially risky situations. There is no current indication from Mr Kay’s conduct that he has relapsed or committed any further offences of any kind. His progress in the community has been positive and he has complied with all directions and forms of supervision to which he was subjected.

27. Mr Kay has been assessed as a moderate to high risk of re-offending, although not necessarily offending that would attract the operation of the Act. Mr Kay’s level of participation in the preparation of the various assessments and reports has also been positive.

28. Mr Kay has been subject to parole supervision and has managed in the community since 21 April 2014. All reports about him in this respect have been favourable.

29. So far as treatment and rehabilitation programs are concerned, Mr Kay completed the CUBIT program with positive comments. All other reports of participation are similarly positive.

30. Mr Kay has complied with all requirements of his parole. His acceptance of supervision and his compliance have been to a high standard. Mr Kay would also appear to have complied with the continuing requirements of the Child Protection (Offender Registration) Act 2004 in a diligent and satisfactory way since being released into the community on parole.

31. Mr Kay has a short criminal history. It is not in issue that he has committed offences that attract the operation of the Act.

Consideration

32. The Crown contended that, based on the reports of the experts, I could be satisfied that Mr Kay poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.

33. It was submitted on Mr Kay’s behalf that, taking all of these matters into account, including the medical and like expert material, that I could not be satisfied to the high standard required that Mr Kay would commit a further serious sexual offence. Alternatively, if I were not satisfied of that, any risk posed by Mr Kay could be managed by appropriate but less restrictive or extensive conditions than those proposed by the State and over a shorter period. In particular, Mr Kay submitted that whilst the reports from Dr Ellis and Dr Samuels go some way towards providing evidence of increased potential for re-offending, the evidence is not such that I could be satisfied to the standard of a high degree of probability that the risk is unacceptable.

34. The decision to make or refuse an application for detention or supervision is discretionary. The application can be refused even if the necessary conditions are otherwise satisfied. The decision is an evaluative judgment undertaken by the Court according to the particular circumstances of each case, having regard to the primary objects of the Act: State of New South Wales v Donovan [2015] NSWCA 280 at [77]. In State of New South Wales v Anderson [2015] NSWSC 1515 at [30], Hamill J observed that:

“…the legislation provides the Court with a ‘true discretion’ (note the use of the word ‘may’) and that discretion must be exercised judicially and in the light of all of the information before the Court. It must be exercised in the light of the primary objective of the Act (to protect the community) and its secondary objective (to promote an offender’s rehabilitation).”

35. McCallum J observed in State of New South Wales v Donovan [2015] NSWSC 1254 at [2]-[3] as follows:

“[2] After serving any sentence of imprisonment lawfully imposed, an offender has the right to personal liberty. That is ‘the most fundamental and important of all common law rights’. It is one which ‘cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes’: Williams v The Queen [1986] HCA 88; 161 CLR 278 at 292 per Mason and Brennan JJ.

[3] Some offenders reoffend (some, predictably so). In Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 at [12], Gleeson CJ observed that the way in which the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release is ‘an almost intractable problem’. At common law, the response is governed by the principle of proportionality, which prohibits preventive detention. The principle holds that, while it is permissible for a sentencing judge, in fixing an appropriate sentence, to have regard to the protection of society, a sentence cannot be increased beyond what is proportionate to the crime in order merely to extend the period of protection for that purpose alone: Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 472. The case of Mr Veen provides an exquisite illustration of the problem.”

36. Section 5B of the Act provides:

“5B High risk sex offender

(1)    An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender.

(2)    An offender is a high risk sex offender if the offender is a sex offender and 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.

(3)    The Supreme 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.”

37. The term “a high degree of probability” is not defined in the Act. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 its meaning in the context of earlier legislation was said to be:

“[21] … something ‘beyond more probably than not’; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion ‘likely’ as explained in TSL.”

38. The term “unacceptable risk” is also not defined. Consideration of the risk which Mr Kay poses involves an evaluative judgment, which must be undertaken in light of all of the evidence. This was discussed in Lynn v State of New South Wales [2016] NSWCA 57 at [50]-[51] and [55]:

“[50] As the respondent pointed out in its submissions, by reference to dictionary definitions, the word ‘unacceptable’ requires context in which, or parameters against which, the ‘unacceptable’ risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is ‘so far from a required standard, norm expectation, etc as not to be allowed’. The Oxford Dictionary defines the word by reference to its antonym ‘acceptable’. Something is ‘acceptable’ if it is ‘tolerable or allowable, not a cause for concern; within prescribed parameters’.

[51] What the court, therefore, must find to be unacceptable is the ‘risk’ that the offender poses ‘of committing a serious violence offence if … not kept under supervision’. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.

[55] This Act provides, as stated in its Long Title, for the extended supervision or continued detention of high risk offenders. The purpose of the legislation, as the primary object of the legislation states, is to ‘ensure the safety and protection of the community’. The evaluation of whether an offender is a ‘high risk violent offender’ has to be undertaken in that context. The further context in which that evaluation is undertaken is provided by s 5E(2) itself, namely, whether the offender poses an ‘unacceptable risk’ of committing a serious violence offence, when regard is had to the safety and protection of the community, unless the person is kept under supervision, either by way of making an extended supervision order or an extended detention order. As this Court pointed out in State of New South Wales v Donovan [2015] NSWCA 280 at [24], a finding that a person poses an ‘unacceptable risk’ within the meaning of s 5E(2):

‘… is the gateway to the power to make an order under s 5F or s 5G … and applies to an assessment of likelihood (‘unacceptable risk’) in the absence of any supervision’.”

39. Professional assessment of Mr Kay by Dr Ellis and Dr Samuels places him at a moderate to high risk of committing a further serious sexual offence. There is no available evidence to the contrary upon which to challenge to those opinions or which puts them in doubt.

40. In cross-examination Dr Samuels was asked about whether paraphilic disorders were treatable:

“Q. Now, is a paraphilic disorder resistant to treatment?

A. It depends on the type of paraphilic disorder. The prognosis for the various disorders differs but they do tend to be recurrent conditions that don’t go away and once people have developed a pattern of deviant sexual arousal it is often there. That is not to say it can’t be managed but the risk in Mr Kay’s case in my view is that if elements of his life were to become unstable that risk could reappear…”.

41. Dr Samuels was also asked about the prospects over the next three years:

“Q. Doctor, is it the case that in your opinion the current level of risk is unlikely to change substantially in the course of the next three years?

A. I think so and the reason I say that is, first of all, he appears to be a very fit and healthy man so there is no reason why there should be organic changes to his physical health and capacity to offend and the second issue is I still think that he has quite a lot of psychological work to do really both in terms of sexual offending behaviour but also in terms of his own personality functioning style so I think that whilst those vulnerabilities exist I think there is an ongoing risk but I think that some more years of therapy might be very beneficial and I think that his risk would then be re-evaluated.”

42. Dr Samuels agreed with the proposition that there is a relationship between a period of no offending, the length of that period and the risk of re-offending. Implicit in that proposition is that a successful period of supervision with no offending by Mr Kay would positively inform a reduced need for further supervision thereafter and/or that the nature of the conditions that might still need to be imposed would have changed. As Dr Samuels conceded:

“A… things seem to be going well so far, I am not convinced at this point that his level of risk is substantially ameliorated and I still see his level of risk at the level that others have recorded it as being and as I have indicated but there is a possibility that if he continues doing these things that that level of risk might be downgraded in the fullness of time and three years is a notional level.”

43. Dr Ellis reaffirmed his opinion in cross-examination as follows:

“Q. What is your opinion on the defendant’s ability to himself manage his risks at this time, that is, on his own as opposed to with supervision?

A. I think that is limited at the moment, and I think while he describes that he would go and seek professional assistance from a psychologist, that given the recent behaviours with his psychologist therapist, that indicates that there is a difficulty in him using professional supports himself. I think also that, when I put to him about other strategies, such as medical strategies to help manage paraphilic behaviour, his view was that that was not a problem for him, and that he would be able to manage anything himself. So I think that, at this point, it is more likely that he would benefit from external supervision for those, for managing those patterns of sexual arousal.”

44. Having regard to all of this material I am satisfied to a high degree of probability that Mr Kay poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. For the avoidance of doubt, I consider that a moderate to high risk of committing a further serious sex offence if not kept under supervision is an unacceptable risk.

45. Mr Kay has proceeded to argue, however, that if his particular paraphilic disorder is resistant, or not amenable, to treatment, there is little or no utility in keeping him under further supervision and treatment. That submission loses sight of the need to protect the community from the identified risks. The submission is more useful in the context of deciding for how long, and subject to what conditions, Mr Kay should continue to be supervised. There is an obvious and logical connection between these two issues.

Length of supervision

46. Both psychiatrists have argued for a three year period of supervision. Each doctor has conceded, however, that there is no particular magic in supervision for a period of three years as opposed, for example, to one of 30 months or 40 months. The Act provides for a maximum period of five years. The State urged that I order a three year period in this case.

47. In my experience, the constant return to the court for review of these orders is often counterproductive both to the protective and rehabilitative objects that are sought by the Act to be achieved. I have no way of knowing about Mr Kay’s personal motivations at the present stage of his life but I would be prepared to assume that he would at least like an opportunity to get on with it with as little interference as possible. That desire must in the present case yield to the need to supervise his clinically identified risk of committing a further violent sexual offence. I am aware that those charged with administering supervision of people like Mr Kay are very experienced in monitoring compliance with conditions in a fair and sensible way. I bring that understanding to bear in the exercise of my discretion in this case.

48. Doing the best I can, a three year period of supervision in this case seems appropriate.

Conditions

49. The State seeks a continuation of the orders that were made on an interim basis by Schmidt J. Having listened to the extensive cross-examination of Dr Ellis and Dr Samuels, I consider that some minor variation of those conditions is appropriate.

50. I consider that the conditions set forth in the accompanying Schedule should be imposed.

Orders

51. In these circumstances I make the following orders:

1. Order pursuant to s 5C of the Crimes (High Risk Offenders) Act 2006 that Graham James Kay be subject to a high risk sex offender extended supervision order for a period of 3 years from today.

2. Direct pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 for the period of the high risk sex offender extended supervision order that Graham James Kay comply with the conditions set out in the SCHEDULE to these orders.

SCHEDULE

GRAHAM JAMES KAY

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1.    The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.

2.    The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.

3.    The defendant must follow all reasonable directions by his DSO or any other person supervising him.

4.    The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order.

Electronic Monitoring

5.    The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him until 17 March 2018.

Schedule of Movements

6.    Deleted

7.    Deleted

8.    Deleted

9.    The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Part B: Accommodation

10.    The defendant must live at an address approved by his DSO.

11.    If directed, the defendant must be at his approved address between 9:00 pm and 6:00 am.

12.    The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

13.    If directed, the defendant must not spend the night anywhere other than his approved address without the approval of his DSO.

14.    If directed, the defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions

15.    The defendant must not leave New South Wales without the approval of CSNSW.

16.    The defendant must surrender any passports held by the defendant to the Commissioner.

17.    The defendant must not go to a place if his DSO tells him he cannot go there.

18.    Deleted

Part D: Employment, finance and education

19.    If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO.

20.    The defendant must not start any job, volunteer work or educational course without the approval of his DSO.

21.    The defendant must not start any business, including forming any corporation, partnership, unincorporated association or registering any business names, without prior approval of the DSO.

Part E: Non-association

Associations with Others (not children)

22.    The defendant must not associate with people that his DSO tells him not to.

23.    If the defendant starts an intimate relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.

24.    The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service.

Part F: Weapons

25.    The defendant must not carry on his person, at any time he has left his residence, a knife or other cutting instrument.

Part G: Access to the internet and other electronic communication

26.    The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers, as well as details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.

27.    The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant’s email addresses, in monitoring compliance with this order.

28.    The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.

29.    The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.

30.    The defendant must provide a list of communication devices and data storage devices in the defendant’s possession and advise the DSO of any change to the inventory.

Part H: Search and seizure

31.    If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary:

a.    for the safety and welfare of residents or staff or persons present at the defendant’s approved address;

b.    to monitor the defendant’s compliance with this order; or

c.    because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;

then the DSO may direct, and the defendant must submit to:

d.    search and inspection of any part of, or any thing in, the defendant’s approved address;

e.    search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant;

f.    search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or

g.    search and examination of his person.

32.    For the purposes of the above condition:

a.    a search of the defendant means a garment search or a pat-down search.

b.    to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO.

NOTE:

“Garment search” means a search of any article of clothing worn by the defendant or in the defendant’s possession, where the article of clothing is touched or removed from the person’s body.

“Pat-down search” means a search of a person where the person’s clothed body is touched.

33.    During a search carried out pursuant to condition 35 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant’s possession or not, which the DSO reasonably suspects will compromise:

a.    the safety of residents or of staff at the defendant’s approved address;

b.    the welfare or safety of any member of the public or any other person; or

c.    the defendant’s compliance with this order;

or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.

34.    The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.

35.    The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 31 to 34 above.

Part I: Access to pornographic, violent and classified material

36. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as X18+, R18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO.

Part J: Personal details and appearance

37.    The defendant must not change his name from Graham James Kay or use any other name without the approval of his DSO.

38.    The defendant must not use any alias, log-in name, or a name other than Graham James Kay or use any email address other than those known to the DSO under condition 33 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

39.    The defendant must not change his appearance without the approval of his DSO.

40.    The defendant must let CSNSW photograph him.

41.    If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part K: Medical intervention and treatment

42.    The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.

43.    The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.

44.    The defendant, with informed consent, must take all medications that are prescribed to him by his healthcare practitioners.

45.    If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.

46.    The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.

47.    The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

**********

Decision last updated: 17 March 2017