State of NSW v Neal

[2019] NSWSC 201

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of NSW v Neal [2019] NSWSC 201
Hearing dates:	21 February 2019
Decision date:	05 March 2019
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an ESO for a period of three years from the date of the order; (2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), directing the defendant, for the period of the ESO, comply with the conditions set out in the schedule to this judgment; (3) An order permitting any reports prepared for the purposes of s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) to be provided to Corrective Services NSW, any agency involved in the defendant’s supervision, and the defendant’s treating clinician(s) or health care practitioner(s); and (4) An order restricting access to the Court’s file in this proceeding such that access would be permitted to a non-party only with the leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.
Catchwords:	HIGH RISK OFFENDER – child sex offender – application for Extended Supervision Order pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – no controversy as to making of order – dispute limited to conditions imposed – extended supervision order imposed – discussion of appropriateness of various orders
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW)
Category:	Principal judgment
Parties:	State of NSW (Plaintiff) Grant David Neal (Defendant)
Representation:	Counsel: J Edwards (Plaintiff) Z Khan (Defendant)   Solicitors: Crown Solicitors (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2018/278899
Publication restriction:	Nil

Judgment

Introduction

1. This is an application by the State of New South Wales (the plaintiff) for the imposition of an Extended Supervision Order (ESO) of three years’ duration upon Mr Grant David Neal (the defendant), pursuant to the Crimes (High Risk Offenders) Act2006 (NSW) (the Act).

2. At the final hearing conducted before me recently, the position of the defendant (who was represented by solicitor and counsel), conveyed through written and oral submissions, was that he conceded that all mechanistic statutory preconditions for the making of the ESO had been established; that the central test for the imposition of such an order had been established; that the duration of the order is appropriate; that there is no discretionary reason why it should not be imposed; and that the vast majority of the proposed conditions were also appropriate.

3. In the event, the bulk of the hearing was occupied by competing submissions about no more than a handful of conditions that were the subject of opposition.

4. For those reasons, I believe that I can and should be briefer in this judgment than I would be if the imposition of the ESO sought were the subject of bitter controversy.

Background

5. The defendant was born in November 1969, and is accordingly 49 years of age. He suffers from an intellectual disability, the aetiology of which is unclear. Regrettably, he has been interacting with the criminal justice system for many years. Even more regrettably, he suffers from an admitted sexual attraction to pre-prepubescent children, and has been prepared to act upon it repeatedly.

6. To expand upon the latter proposition, in 2000 he indecently assaulted an 8 year-old girl by touching her with his hand in the vicinity of her vagina. The victim was the daughter of a woman with whom the defendant was in a romantic relationship. The offence was opportunistic, in that the offence occurred during a camping trip in a tent that was shared between the defendant, the victim, and the victim’s mother and brother. The defendant indecently assaulted the victim when her mother and brother left the tent briefly. The defendant has described what had occurred as a misunderstanding, in that he had merely been trying to “climb over” the victim.

7. After a plea of guilty, he was initially sentenced in the Local Court to 12 months' imprisonment, with a non-parole period of 4 months. The District Court reduced the sentence to a 2 year good behaviour bond. Neither the remarks on sentence at first instance, nor the District Court appeal judgment, were placed before me.

8. In 2005, the defendant was in a romantic relationship with another woman. She also had a daughter, aged 13 months. On the day in question, the three of them were in a house, and the mother took a nap. She woke, and walked into a bedroom to find the defendant masturbating with his erect penis 10 to 20 cm away from the face of the baby. Again, the offence featured the defendant taking advantage of a relatively brief opportunity to commit a sexual offence against a very young child.

9. Although the defendant pleaded guilty to one charge of committing an act of indecency with a victim under the age of 10 years, he has described the event as “an accident”. He was sentenced in the Local Court to a 4 year good behaviour bond. Again, the remarks on sentence are not available.

10. In 2009, the defendant was in a romantic relationship with a third woman. She also had a daughter, aged 9 years, to whom the defendant played the role of step-father. On the occasion of a social event during which the defendant was briefly left alone with that child, he inserted his penis into her vagina. For the third time, the offence was a matter of taking advantage of an opportunity that was only fleetingly available.

11. The defendant pleaded guilty to one count of sexual intercourse with a person under the age of 10 years and under the defendant’s authority. In his remarks on sentence, Judge Lakatos SC also noted that child pornography had been downloaded to a computer to which the defendant had access. His Honour also referred to the defendant’s criminal history of child sexual assault offences, the sexual abuse committed against him by his own step-father, and the various psychological reports assessing him as intellectually disabled.

12. Separately, an important aspect of this offence is that the defendant has claimed that he had been in some sense deliberately sexually “tempted” by the 9-year-old victim, a concerning indicator of his cognitive distortion with regard to children as sexual actors.

13. On appeal founded upon “Muldrock error”, the Court of Criminal Appeal reduced the sentence somewhat, and imposed a head sentence of imprisonment for nine years, with a non-parole period of six years, the former to expire on 7 December 2018, and the latter to expire on 7 December 2015. The Court referred to the extent and severity of the sexual assaults inflicted upon the defendant by his own step-father; the role of the intellectual disability of the defendant in his offending; and his anxiety and depression, for which he was then medicated. On the other hand, that Court also spoke of his concerning “tendency to respond to the perceived sexuality of children”, and the extensive harm done to the victim as a result of the offending.

14. The defendant was released to parole on the expiry of his non-parole period in December 2015. He resided with his mother in the town of Macksville on the Mid North-Coast of New South Wales.

15. That form of conditional liberty was not, at that stage, a success, as the following demonstrates. In May 2016, the defendant pleaded guilty to having failed to fulfil his obligations with regard to the Child Protection Register. He was imprisoned for a short time as a result, but his parole was not revoked. He was released to parole again, and returned to the home of his mother.

16. In January 2017, the defendant was charged with loitering near a public place whilst being a convicted child sex offender, contrary to the Summary Offences Act 1988 (NSW). There were also allegations arising from his interaction with police on arrest. In a nutshell, the defendant was said to have been loitering near a public toilet that was near a children’s playground in Coffs Harbour. His assertion – supported to a degree by police evidence – was that that toilet and park were places where men meet for intimacy with each other, and that had been his aim.

17. The defendant returned to custody, bail refused, and with his parole in due course revoked. Ultimately, he pleaded guilty to the offence, and was sentenced to imprisonment for six months.

18. For a time, further release to parole was refused, on the basis that the home in Macksville was unsuitable. That was on the basis that the mother of the defendant did not fully appreciate the gravity of what he had repeatedly done.

19. In due course, the defendant was released to parole again on 28 August 2018. That was on the condition that he would be living at supported accommodation for intellectually disabled persons in the Central West town of Orange. Since that time, his conditional liberty has been much stricter than it had previously been.

20. The final piece of background is that the head sentence imposed by the Court of Criminal Appeal expired in its entirety on 7 December 2018. Since that time, the defendant has been subject to an Intensive Supervision Order (ISO) imposed at a preliminary hearing in this Court, and renewed more than once.

Application

21. That is the context in which the plaintiff has, as I have said, submitted that I should impose an ESO of three years.

22. The submission of the plaintiff was that the defendant has shown a pattern of repeated sexual offending against young female children; he has done so opportunistically; his intellectual disability stands in the way of insight; his conditional liberty over the past several years must be classified as a failure, at least up until the time when it became extremely constrained; and that experts are unanimous with regard to the high risk of serious sexual re-offending that the defendant represents.

23. In all of the circumstances, it was submitted that all of the preconditions for making an ESO have been established, including the central statutory test; that all of the evidence relied upon for the making of the order also shows that no discretion should be exercised not to make it; that the length proposed is appropriate; and finally, that the rigour of the conditions, conceded by the plaintiff, is also appropriate.

24. As I have said, none of that was the subject of dispute on behalf of the defendant, except the last proposition.

Pre-conditions to making an order established?

25. Turning to the first question, namely whether the mechanistic statutory preconditions are established, I am satisfied that they are: the defendant has served a sentence of imprisonment for a serious sex offence; he is a supervised offender, in that he is currently subject to an ISO; and the application for an ESO has been made in accordance with the Act. In my opinion, the concession on behalf of the defendant with regard to all of them is soundly based.

Central question?

26. Turning to the central question to be found in s 5B(d) of the Act – namely, whether I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision pursuant to an ESO – I am indeed satisfied of that conceded proposition. That is for the following reasons, discussed in general conformity with section 9(3) of the Act.

27. The reports prepared pursuant to orders made at the preliminary hearing were the subject of cooperation by the defendant. But they speak with one voice about the risk presented by the defendant: s 9(3)(b). And that is so whether the opinion is based upon actuarial analysis of static risk factors, or more based on history and interview.

28. To expand on that a little, the report of Mr Sheehan, forensic psychologist, speaks of a high risk of the defendant re-offending compared to the cohort of men who have previously sexually offended; the completion by him of an intensive sex offenders treatment program in custody in 2015; the subsequent failure on parole nevertheless; a concern about the conditions of any ESO being detailed to the point of incomprehension on the part of the defendant; the need for ongoing psychotherapy; and the challenging chronicity of the issues confronting the defendant.

29. In similar vein, Dr Martin, forensic psychiatrist, provides a diagnosis of paedophiliac disorder based not only on the three convictions, but also upon admitted access to child abuse material; the long lasting nature of such a condition; the current absence of other major mental illness; the assessment of a “relatively high risk of re-offending”; the role of the intellectual disabled defendant having himself been a victim of child sexual assault in predisposing him to a distortion in his sexuality and his world view; the desirability of the reduction in direct supervision of the defendant in due course (a topic to which I shall return later); and the ability of the defendant to understand the proposed conditions of the ESO, if they are explained simply to him.

30. To like effect is the risk assessment report prepared before the preliminary hearing: it spoke of static, unchanging criminogenic factors; the seemingly sincere desire of the defendant to avoid re-offending, coupled with uncertainty about whether he is capable of fulfilling that intention; the potential advantages of an ESO; and the apparent futility of a Continuing Detention Order.

31. As I have said, the experts are agreed about the presence of risk. And in any event, leaving aside the expert opinion evidence and analysing this matter as a layperson, even the thumbnail sketch of background that I have provided above amply demonstrates in my opinion the risk that arises here. In a nutshell, it is that what has occurred three times in the past, with increasing gravity, will occur yet again, if the defendant is at liberty, unsupervised, in the community.

32. A report was placed before me setting out the ways in which the defendant could be managed in the community: s 9(3)(e1) of the Act. No doubt they are imperfect, and cannot guarantee community safety. But they are certainly not impractical, or futile, and certainly do not stand in the way of an order being made; quite the contrary.

33. It is quite true that the defendant has, commendably, sought help in custody: s 9(3)(e) of the Act. That provides a measure of protection, and a sense of progress in the defendant moving towards a life that is without deprivation of liberty or conditional liberty. But it is certainly not, in my opinion, material upon which I would refuse to make the order; as I have said, counsel for the defendant did not make any such submission.

34. There are options whereby the defendant can be closely supervised in the community. And the recent experience of his troubling failure on parole – itself a form of conditional liberty, of course, but much less rigorous than what is proposed now, not least with regard to his form of accommodation, supports the making of an ESO: s 9(3)(f) of the Act

35. As for the likelihood of the defendant complying with the obligations of an ESO, since his most recent release, things have proceeded quite well, albeit in a much more structured setting. I possessed a guarded optimism that, if subject to a rigorous ESO, the defendant can succeed; that its conditions can gradually be loosened; and that there is a reasonable possibility that the defendant will eventually be able to live in the community at unconditional liberty.

36. To be weighed against that measure of optimism is the objective fact that, in the recent past, the defendant has failed both with regard to his Child Protection Register obligations, and indeed with regard to parole: s 9(3)(f) and (g) of the Act. And speaking more generally, and without any need to descend into detail, his criminal history as a whole shows more than one breach of conditional liberty.

37. The generic criminal history of the defendant, whilst not advantageous to him, pales in comparison to the commission of sexual offences against female children of increasing gravity, combined with the disrupted and concerning history of the conditional liberty of the defendant until recently: s 9(3)(h) of the Act.

38. Finally, I have extracted above the salient parts of what has been said by the District Court and the Court of Criminal Appeal about the most important offending of the defendant. As one would expect, the most recent assessment of the Court of Criminal Appeal sounds an inevitable note of caution, and accompanied the imposition of a stern sentence: s 9(3)(h1) of the Act.

39. In short, I am soundly satisfied that an ESO of three years’ duration should be imposed in this case. And all of the matters that I have set out in support of that proposition themselves argue against the exercise of any discretion not to impose such an order.

40. My answer to the central, conceded question is in the affirmative: the preconditions for the imposition of an ESO are established; there is no reason not to impose it; and it should indeed extend over three years.

Conditions of ESO?

41. I turn now to the real point of dispute at the hearing before me with regard to the appropriateness (to use the statutory concept in s 11 of the Act) of the conditions proposed by the plaintiff.

42. By the end of the hearing, after a useful exercise of refinement of disputes between the parties, the vast bulk of proposed conditions were not the subject of dispute. I have separately considered all of the undisputed conditions, and regard them as appropriate.

43. I shall briefly identify and resolve all of the remaining disputes.

44. With regard to proposed condition one, it was accepted that the defendant should be subject to supervision by officers of the plaintiff. But it was submitted by the defendant that that supervision should not include “line of sight” monitoring, which I understand to be imposed upon the defendant at the moment whenever he is away from the group home.

45. I understood the point to be that the defendant finds that form of monitoring oppressive, belittling, and an invasion of autonomy. It was also said to be unnecessary, bearing in mind that the defendant has never committed an offence against a child who was a complete stranger to him. The final point was, I understood, that this sort of restriction hardly works in favour of rehabilitation.

46. There is truth in all of that, in my opinion. But the fact is that the defendant is highly opportunistic, and has shown himself ready in the past to take advantage of brief windows in which he could seriously offend against children. The modus operandi of having access to the children of intimate partners is very largely now ruled out; there may be a temptation to take advantage of a different opportunity. Separately, one can generally expect, I think, such stringent measures to be imposed carefully, and indeed the process of illumination at the hearing – whereby it appears that the need for that level of supervision has not been the subject of recent deep reconsideration – should play a role in that. And speaking generally, ruling out specific forms of supervision inevitably brings an inflexibility to an ESO that could be inappropriate, even dangerous.

47. For all of those reasons, I do not propose to circumscribe proposed order one.

48. Proposed order four, which imposes electronic monitoring, was not opposed in its entirety. What was sought was a restriction whereby, if the defendant is not found guilty of any offence, including breaching the ESO, for a period of 18 continuous months while subject to the ESO, the electronic monitoring would be mandated by me to come to an end.

49. It was said that that would provide the defendant with something to work towards. And it was also said that, after such a period had passed without criminal infraction, I could be confident that electronic monitoring would not be appropriate.

41. I respectfully disagree with the last proposition. It is not difficult to think of ways in which the defendant could be deteriorating or failing on the ESO, without criminal convictions having been entered against him.

42. As for the former proposition, no doubt it is useful for a person in the position of the defendant to have something to work towards. But the possibility of de facto diminution of the severity of his conditional liberty, pursuant to the discretion reposed in those supervising him, is sufficient in that regard.

43. I do not propose to amend proposed order four.

44. Proposed order 25 [now 24] was the subject of substantial agreement before me. As the transcript will show, the dispute became refined to being whether the defendant should be obliged to inform his supervisor if he is developing a friendship with another person, it having been conceded by counsel for the defendant that he should be obliged to be open about intimate relationships and sexual relationships. The point was made that friendship is an amorphous, ill-defined concept, and the defendant should not be subject to criminal sanction with regard to something so nebulous.

45. Assessing that proposition, there comes a point with regard to conditions for the purpose of an ESO at which one must simply rely upon the sensible exercise of discretion by supervisors, along with an approach of abundant caution by a defendant. And the simple fact here is that, in the past, the defendant has used his access to children through his relationships with their adult parents to offend gravely against them. And one can have access through an unwitting adult friend just as easily as one can have it through an adult intimate or romantic partner.

46. For these reasons, I do not propose to amend proposed condition 25.

47. Proposed condition 26 [now 25], which calls upon the defendant to obtain permission from his supervisor before joining or affiliating with a club or organisation, including online, was also opposed as inappropriate. It was said that it is simply unnecessary, because the defendant’s internet usage is already monitored by a number of other conditions and he has not used the internet to obtain access to children. Yet again, I respectfully disagree: the particular methods that the defendant has and has not used to obtain access to children in the past is not the end of the matter; a person who is committed to sexual contact with children can no doubt think of alternative methods (and I say that not forgetting the intellectual disability of the defendant). Apart from anything else, it is well known that social and sporting clubs are attractive to children and their parents. And without delving into detail, there is a hint in the evidence that, in the not too distant past, the defendant has been ready to misrepresent himself on the Internet. Finally, it is not to be forgotten that there is indeed evidence of him having used the internet to access child abuse material.

48. In short, on the evidence before me, I consider it appropriate that the supervisor of the defendant be kept informed of all steps he is taking, whether online or not, to have contact with other people through clubs or organisations.

49. In summary then, I consider that all of the disputed conditions are appropriate, and should be imposed by me.

50. The final matter to discuss in this context is that I agree that there is a concern about the comprehension of the defendant of the multitude of proposed conditions. But I think it is simply impractical to try to recast them in basic terms; I rely on his supervisor to continue to take the time to explain them carefully to him, and to do her best to ensure his understanding.

Reasons for other orders, also agreed between the parties

60. Finally, I record that, with the consent of both parties, I shall impose proposed order four in the summons of the plaintiff, which will advance the rehabilitation of the defendant by permitting greater coordination between different organisations with which he is in contact.

61. I shall also impose order five – again, with the explicit consent of the plaintiff and the defendant – which, although neither absolute nor determinative about the question, is designed to afford him a measure of privacy, in the interests of furthering his rehabilitation, both for his own benefit and for the benefit of the community.

Orders

62. I make the following orders:
    (1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an ESO for a period of three years from the date of the order;
    (2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), directing the defendant, for the period of the ESO, comply with the conditions set out in the schedule to this judgment;
    (3) An order permitting any reports prepared for the purposes of s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) to be provided to Corrective Services NSW, any agency involved in the defendant’s supervision, and the defendant’s treating clinician(s) or health care practitioner(s); and
    (4) An order restricting access to the Court’s file in this proceeding such that access would be permitted to a non-party only with the leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

State of NSW v Neal - Schedule of Conditions of Supervision (119 KB, pdf)

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Amendments

06 March 2019 - On the cover page order 3 and 4 were added

paragraph 9 line 1: the word "old" was deleted, paragraph 10 line 1: the word "old" was deleted, paragraph 29 line 3: the word "being" was deleted and replaced with the word "been", paragraph 53 line 1: [now 24] was inserted, paragraph 56 line 1: [now 25] was inserted and line 4 after the word "past" the words "is not" was inserted, and paragraph 62 orders 3 and 4 were added.

Decision last updated: 06 March 2019