State of NSW v Norstead

[2019] NSWSC 1095

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of NSW v Norstead [2019] NSWSC 1095

Hearing dates:

15 August 2019

Decision date:

27 August 2019

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1) An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):
(a) Appointing two qualified psychiatrists or a psychiatrist and a psychologist to conduct separate psychiatric or psychological examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be subsequently fixed by the Court; and
(b) Directing the Defendant to attend those examinations.

 

(2) An order pursuant to s 10A of the Act that the Defendant be subject to an interim supervision order from the date of the order for a period of 28 days; and

(3) An order pursuant to s 11 of the Act directing the Defendant to comply with the conditions set out in the Schedule to this judgment of the duration of the interim order referred to in order 2 above.

Catchwords:

HIGH RISK OFFENDER – sex offender – application for appointment of two psychiatrists/psychologists pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (the Act) – application for interim supervision order (ISO) pursuant to s 10A of the Act – where defendant bail refused on fresh charges – where application for ISO arguably wholly contingent – no controversy about application for psychiatric/psychological examinations – no controversy about application for ISO – consideration of contingent nature of proposed ISO – ISO imposed – discussion of disputed ISO conditions

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW), ss 7(4), 10A, 10C(1A), 11 and 13
Children (Criminal Proceedings) Act 1987 (NSW), ss 15A and 15B

Category:

Principal judgment

Parties:

State of NSW (Plaintiff)
Jason Norstead (a pseudonym) (Defendant)

Representation:

Counsel:
C McGorey (Plaintiff)
S Goodwin and S Healy (Defendant)

  Solicitors:
Crown Solictor’s Office (Plaintiff)
VeritganLaw (Defendant)

File Number(s):

2019/234873

Publication restriction:

Pseudonym adopted for the defendant

Judgment

Preliminary matters

1. It is convenient to begin by referring to a number of preliminary matters.

2. First, the defendant in these proceedings is referred to by a pseudonym in this judgment because it reveals criminal offences for which he was sentenced in the Children’s Court. Although s 15B of the Children (Criminal Proceedings) Act 1987 (NSW) permits me to refer to his name in this judgment, I believe that it would be anomalous for the judgment to be published openly on the Caselaw website (which I consider appropriate), and yet for a member of the community to commit a criminal offence pursuant to s 15A of the same Act, if he or she were to refer publicly to its contents.

3. Secondly, the applicant was represented at the preliminary hearing before me pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (hereafter “the Act”) by counsel and solicitor very experienced in criminal and quasi-criminal law. As well as that, on the day of the hearing there was an opportunity for extended consultation between the defendant and his legal team.

4. It was made clear at every stage that the orders sought in the summons of the State of New South Wales (the plaintiff), mandating psychiatric and psychological evaluation, and imposing an Interim Supervision Order (ISO) of 28 days, were not opposed. The controversy before me was limited to a dispute about conditions, which was itself circumscribed. In those circumstances, I propose to be more concise than if there had been a full-blown dispute between the parties about the diminution of the liberty of the defendant.

5. Thirdly, for reasons that I shall explain in more detail below, the application of the plaintiff for an ISO is contingent. By that I mean, it is quite possible that it will not come into force for months or years, and indeed that it will never come into force, as a result of one or both parties submitting that it should be pre-emptively revoked (pursuant to s 13 of the Act). That is another reason why I shall be concise; I do not believe that I am required to be prolix in my reasons for orders that may never be effectual.

Background

6. The background of the matter is that the defendant was born in October 1978, and is accordingly 40 years of age. He was born into a large family that was not financially advantaged, and that was blighted by the abuse of alcohol and domestic violence. He was not a good student, and left school in about year 8 to engage in an apprenticeship. He found it hard to settle to that as well, and has engaged in unskilled work since that time.

7. Regrettably, he was introduced to prohibited drugs at the age of 14 years, and in particular to amphetamines a year later. Prohibited drugs have been a long-standing, adverse and criminogenic aspect of his life. The interaction between the defendant and the criminal justice system caused by prohibited drugs commenced in early 1996, when he was placed on a bond by the Children’s Court for cultivating a prohibited drug.

8. Some months later, in May 1996, when he was aged 17 years, he committed an indecent assault upon a woman in her 30s at a train station. The offence occurred at about 5:30 in the morning when the railway station was deserted. The defendant approached the victim and grabbed her around the neck and mouth. He pinned her against the wall of an overhead railway bridge. The defendant dragged the victim about 10 meters to a small park, and pushed her face first into the ground behind a large bush. The victim felt the hand of the defendant on her vagina on the outside of her clothing. The cries of the victim were heard by a young couple, who called the police. Two officers arrived, and saw the defendant with the victim. He decamped, was apprehended, and placed under arrest. The victim was severely shaken and suffered minor bleeding to her lip.

9. On interview, the defendant claimed that the incident was a case of mistaken identity, in that he believed the victim was a male who had made a “smart” remark to him a short time earlier. He denied assaulting the victim, indecently or otherwise. In a subsequent context, he has claimed that he was grossly intoxicated by alcohol at the time.

10. The applicant was sentenced in the Children’s Court for an offence of indecent assault. Although the remarks on sentence are not available, the findings of the learned Children’s Court Magistrate must have been adverse, because a control order of 18 months with a non-parole period of 6 months was imposed.

11. Thereafter, the defendant interacted with the criminal justice system for a number of years by way of driving offences and offences against property. Some of the driving offences suggest a problem with alcohol, albeit many years ago. He has also committed some other offences of violence, although not of the utmost seriousness.

12. In January 2002, the defendant, then aged 23 years, entered a suburban home to which he had a previous connection by way of lawn mowing work. The mother of a 12-year-old girl had gone shopping, but the daughter was at home that morning. The defendant rushed at the victim from behind, and grabbed hold of her whilst placing his hand over her mouth. He pushed her to the floor, and attempted to close the curtains. The defendant then restrained the victim by way of taping her hands behind her back, and by taping her eyes and mouth shut. He demanded cash, and stated that he would not “rape her” if she told him where cash was to be found. He then pulled her pyjama shorts down and said words to the effect of, “Let me have a bit of a feel”. He then removed her underpants, at which time she began to struggle to free herself. He moved his hand along her stomach down towards her genitals.

13. The defendant ultimately decamped with a DVD player, and the victim freed herself and telephoned her mother. The 12-year-old victim suffered red marks to both wrists where she had been restrained and a bruise, and no doubt psychological injury.

14. The defendant was not identified as the perpetrator until many years later, by way of DNA and fingerprint evidence. He pleaded guilty to three counts pertaining to the above incident.

15. The first was entering a dwelling with intent to commit the serious indictable offence of larceny in circumstances of aggravation; namely, the deprivation of the liberty of the victim.

16. The second was detention for advantage (that is, the obtaining of property) in circumstances of aggravation; namely, the occasioning of actual bodily harm to the victim.

17. The third was indecent assault in circumstances of aggravation; namely, the victim being under the age of 16 years.

18. I shall not recount the applicable maximum penalties; it suffices to say that all three of the offences were plainly of very considerable gravity.

19. The approach of the defendant to that incident can be summarised as an acceptance of legal and moral responsibility, tempered by a claim (which I accept) that he was grossly intoxicated by amphetamines at the time of their commission, combined with an assertion that the motivation for all of the offending was far more pecuniary than sexual (about which I am circumspect).

20. In July 2012, after pleas of guilty, Judge Armitage imposed upon the defendant a total head sentence of 8 years with a total non-parole period of 5 years. That sentence commenced on 7 August 2011, although the defendant had come into continuous custody in late December 2011, I infer to reflect a separate period of custody referable to the offences.

21. In fact, the defendant was incarcerated beyond the expiry of his non-parole period for a continuous period of 5 ½ years, from late December 2011 until mid-May 2017. During that time, he engaged in the well-known custodial treatment program for sex offenders, CUBIT, and achieved some progress within it.

22. Regrettably, his time in the community in the two years since May 2017 has not been a success: he has breached parole at least once; he has been convicted of failing to comply with his obligations regarding the Child Protection Register; and he has been convicted of a further offence against property. All of those events have led to his return to prison. He has also been open enough to admit that, during his time at liberty after that lengthy period of incarceration, he has returned to abuse of amphetamines in the form of “ice”.

23. The sentence to which the defendant has been subject for many years will completely expire on 28 August 2019.

24. Quite recently, however, the defendant was charged with further serious offences. They are taking and driving a motor vehicle without its owner’s consent; damaging property by fire; aggravated breaking and entering with the commission of a serious indictable offence (namely the deprivation of the liberty of another person); and taking or detaining another person with intent to obtain advantage, and inflicting actual bodily harm. In a nutshell, it is alleged that the motivation for at least some of those alleged offences was the enforcement of a substantial drug debt.

Contingency

25. The defendant is currently bail refused with regard to those charges. It is against the contingency that he might apply for and be granted bail that the plaintiff has sought the preliminary orders to which I have referred.

26. But the simple fact is that it is quite possible that the defendant will not be released on bail until those charges are resolved. Furthermore, if they are resolved adversely to him, I think it very likely that he will be the subject of a further significant term of imprisonment. Pursuant to s 10C(1A) of the Act, any ISO that I impose will not commence to “run” until the defendant is at liberty. And yet it is possible that the defendant will not, in fact, be at liberty for some years.

27. It is for those reasons that I have referred to the ISO under consideration as “contingent”, in that it may be many months or years before it would become effectual. In those circumstances, and after I expressed a concern about a diminution of liberty that may become effective months or years in the future, counsel for the plaintiff assured me that, pursuant to s 13 of the Act, either party could apply to have any ISO revoked, if it became clearly inappropriate through sheer effluxion of time, or change of circumstances, or both.

Submissions

28. The submissions of counsel for the plaintiff may be summarised as follows.

29. The defendant has suffered from a problem with prohibited drugs for many years. That problem is undoubtedly criminogenic. It remains unresolved, as demonstrated by his recent failures on conditional liberty. The defendant over the years has committed offences of general physical violence, albeit not of the greatest seriousness. But he has also on two separate occasions committed serious sexual offences against females, the latter group of which was of great gravity.

30. A recently prepared risk assessment report speaks of the defendant falling within the “High risk category of sexual offending relative to other adult male sexual offenders”, and as being at “High risk of violent and general recidivism”.

31. The test for the making of an ISO is well known to be not particularly stringent, and to be directed towards winnowing out patently unmeritorious applications. In all the circumstances, it was said, I would be comfortably satisfied that mandatory examinations should take place, and that an ISO of no more than a month should be imposed, on the contingency that the defendant may be released in the reasonably foreseeable future.

32. As I have recounted, counsel for the defendant did not oppose that course. She accepted that all mechanistic preconditions in the Act for the making of an order had been established, and she explicitly conceded that the central test for the imposition of an ISO in s 10A of the Act had been established.

Determination

33. Turning to my determination, I accept the joint position of the parties.

34. It is true that the defendant has been proven to have offended sexually no more than twice, and that the last set of such offences was committed many years ago. It is also true that neither his other convictions nor the new allegations fall within the definition of offences captured by the Act.

35. To be weighed against those matters is the gravity of the offences committed in 2002; the assertion that amphetamines underpinned them, made by the defendant himself; the assertion (also made by the defendant) that an intoxicating substance in the form of alcohol underpinned the offence of 1996; the undoubted fact that his criminogenic dependence on prohibited drugs has not remitted; and the fact that his recent time on conditional liberty has been a multi-faceted failure.

36. I am comfortably satisfied that a judge of this Court could in the future see fit to impose the extended supervision order (ESO) of 3 years that the plaintiff foreshadows seeking in due course.

37. Finally, in my opinion there is no discretionary reason why this contingent ISO should not be made.

38. It follows that I shall mandate psychological or psychiatric examinations, and impose an ISO. As for the former, the parties suggested that I defer them by order until the custodial position of the defendant is clearer. But it is impossible for me to predict now how things may develop; the list judge will be in a far better position to determine the question of their timing as necessary.

Conditions of ISO

39. As for the conditions of the ISO, by the end of the hearing the vast majority of them were not in dispute. I have considered all of the undisputed proposed conditions, and regard them as appropriate. I turn to discuss and resolve the disputed conditions; again, because they may never become effectual, I shall be concise.

40. Proposed condition 20(a) was opposed. It is that “the defendant must not possess or use alcohol without the prior approval of his DSO.” The point was made by counsel for the defendant that alcohol has not played an important role in the offending of the defendant, at least for many years.

41. That is true, although the defendant himself asserts that it underpinned the offence of 1996, and his criminal record shows that, at least in the past, it has been a problem. Furthermore, alcohol is a notoriously disinhibiting drug. It is also noteworthy that the proposed condition does not prohibit alcohol entirely, but merely provides a restriction upon it. Finally, I cannot accept that this man who has committed sexual offences of great gravity and sadly failed comprehensively whilst at liberty after having been incarcerated for many years as a result, should be able to ingest an enormous amount of alcohol, if he so chooses, without any fetter whatsoever.

42. I think that proposed condition 20(a) is appropriate, and I will make it.

43. Proposed condition 25(a) is “[the defendant must not knowingly] associate with any people who are consuming or under the influence of alcohol without the prior approval of the DSO.” Counsel for the plaintiff pressed it on the basis that the defendant has had a problem with substance abuse generally, and no doubt has peers whose lifestyles are not conducive to his rehabilitation.

44. Although one sees the sense of those propositions, I respectfully think that this condition is too broad. It could lead to the prohibition of (for example) the defendant having a quiet dinner with another person who chooses to become tipsy as a result of drinking three glasses of wine.

45. In all the circumstances that I have recounted, I think that such a state of affairs goes beyond what is appropriate and constructive. I shall not make proposed condition 25(a).

46. Proposed condition 27 is as follows: “If the defendant starts an intimate or a sexual relationship he has to notify his DSO within 24 hours of the fact of the relationship and truthfully answer any questions that the DSO asks regarding that relationship (including the name of the person as known to the defendant)”.

47. Counsel for the defendant suggested that the inclusion of “an intimate… relationship” was simply too broad and amorphous. She submitted that that could be said to arise from a kiss on the cheek, or the defendant holding hands with another person. And she emphasised that proven breach of a condition can, of course, lead to a return to incarceration.

48. I respectfully disagree with the thesis. Holding hands with another person, or kissing them on the cheek, can hardly be characterised as inherently constituting an intimate relationship. Separately, it is to be recalled that the defendant has committed extremely serious sexual offences, and a significant intrusion upon his privacy with regard to future romantic and sexual liaisons is, in my opinion, necessary. Finally, I believe that one is entitled to expect that necessarily imprecise conditions will, on the one hand, be enforced sensibly by a DSO and, on the other hand, be approached cautiously and with a margin for error by a person who is subject to them.

49. For those reasons, condition 27 will be imposed.

Orders

50. I make the following orders:

1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

1. Appointing two qualified psychiatrists or a psychiatrist and a psychologist to conduct separate psychiatric or psychological examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be subsequently fixed by the Court; and

2. Directing the Defendant to attend those examinations.

2. An order pursuant to s 10A of the Act that the Defendant be subject to an interim supervision order from the date of the order for a period of 28 days; and

3. An order pursuant to s 11 of the Act directing the Defendant to comply with the conditions set out in the Schedule to this judgment of the duration of the interim order referred to in order 2 above.

State of NSW v Norstead - ISO Conditions Caselaw (41.0 KB, docx)

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Amendments

06 May 2020 - Coversheet: File number corrected.

Decision last updated: 06 May 2020