State of NSW v Tiggelen

[2018] NSWSC 1399

Supreme Court

New South Wales

Medium Neutral Citation:

State of NSW v Tiggelen [2018] NSWSC 1399

Hearing dates:

7 September 2018

Date of orders:

14 September 2018

Decision date:

14 September 2018

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

(1) Order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act") that:

 

(a)   Dr Richard Furst be appointed to conduct a psychiatric examinations of the defendant and to furnish a report on the results of that examination to the Supreme Court of New South Wales by 30 November 2018;

 

(b)   Dr Katie Seidler be appointed to conduct a psychological examination of the defendant and to furnish a report on the results of that examination to the Supreme Court of New South Wales by 30 November 2018;

 

(c)   The defendant attend the appointment with Dr Richard Furst; and

 

(d)   The defendant attend the appointment with Dr Katie Seidler.

 

(2) Order pursuant to section 10A of the Act, that the defendant be subject to an interim supervision order commencing from midnight on 30 November 2018 (“the interim supervision order”).

 

(3) Order pursuant to section 10C(1) of the Act, that the interim supervision order be for a period of 28 days from the date of the order unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined.

 

(4) Order pursuant to section 11 of the Act, that the defendant comply with the conditions set out in the Schedule annexed to the Amended Summons in these proceedings filed on 7 September 2018 for the period of the interim supervision order referred to in order 3 above.

 

(5)   Direct that the matter be listed on 14 December 2018 to hear the plaintiff’s application for a renewal of the interim supervision order for a further period of 28 days.

 

(6)   Direct that the matter be listed for hearing on 31 January 2019 at 10:00am with an estimate of one day.

 

(7)   Direct that the plaintiff file and serve any evidence for the final hearing and written submissions by 21 December 2018.

 

(8)   Direct that the defendant file and serve any evidence for the final hearing and written submissions by 14 January 2019.

 

(9)   Direct that the plaintiff file and serve any updating evidence and submissions in reply by 23 January 2019.

 

(10)   Direct that each party inform the other of which witnesses, if any, are required for cross examination for the final hearing by no later than 5pm on 24 January 2019.

 (11)   Direct that the plaintiff provide to the chambers of the judge allocated to preside at the final hearing a working copy of each document to be relied upon by the parties by no later than 28 January 2019.

Catchwords:

CRIMINAL LAW – high risk offender – serious sex offender – preliminary hearing – whether high risk sex offender interim supervision order should be made – where extensive criminal history – where defendant does not oppose the making of an interim supervision order – where defendant objects to electronic monitoring as a condition of the order – where agreement as to psychiatrist and psychologist to be appointed

Legislation Cited:

Child Protection (Offender’s Registration) Act 2000 (NSW), ss 3A, 9A, 17
Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5, 5A, 5B, 5D, 5I, 6, 7, 9, 10A
Crimes Act 1900 (NSW), ss 61J, 61M(1), 86(3)

Cases Cited:

Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174
State of New South Wales v Fisk [2013] NSWSC 364
State of New South Wales v French (Final) [2017] NSWSC 1475
State of New South Wales v Kamm [2016] NSWSC 1
State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Gerardus Tiggelen (Defendant)

Representation:

Counsel:
D New (Plaintiff)
S Hall (Defendant)

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

File Number(s):

2018/243910

Publication restriction:

Nil

Judgment

1. HIS HONOUR: By an amended summons filed on 7 September 2018, the State of New South Wales seeks a series of orders pursuant to the Crimes (High Risk Offenders) Act 2006 (“CHRO Act”). The State seeks an extended supervision order for a period of three years against Gerardus Tiggelen pursuant to s 5H of the Act. The proposed conditions of the extended supervision order are set forth in the Schedule to the amended summons. Mr Tiggelen does not oppose the making of an interim supervision order pending assessment of him by psychological or psychiatric experts. He does not, however, concede that the making of an interim supervision order is determinative of the outcome at a final hearing.

Statutory provisions

2. All of the statutory conditions for the plaintiff to make an application for an extended supervision order in s 5I and s 6 of the CHRO Act and the pre-trial procedures set out in s 7(1)–(2) have been complied with.

3. If the Court is satisfied following the preliminary hearing that "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order", it must make orders appointing two psychiatrists or psychologists or a combination of them to conduct examinations and to furnish reports to the Court on the results, and to direct the offender to attend such examinations: CHRO Act, s 7(4). If not so satisfied, the Court must dismiss the application: CHRO Act, s 7(5)

4. As I have indicated, the plaintiff applies for an interim supervision order pursuant to s 10A of the CHRO Act. The Court may make an interim supervision order if it appears that the offender's current custody or supervision will expire before the proceedings are determined and "that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order": CHRO Act, s 10A.

5. Section 5B provides for the making of an extended supervision order:

"5B Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order."

6. There is no issue concerning, and I am otherwise satisfied of, the requirements in s 5B(a), (b) and (c). The central issue is whether the matters alleged in the supporting documentation would, if proved, satisfy the Court to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision under an extended supervision order.

7. Section 5D provides that a Court asked to make an extended supervision order:

"is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence".

8. In addition to the objects of the Act set out in s 3, it is important to note that s 9(2) provides that:

"In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court."

Criminal history

9. Between 1970 and 1976, as a juvenile, the defendant committed larceny offences, theft of a motor car, unlicensed driving and forgery offences in Victoria, NSW and South Australia. On 6 March 1975, when he was 19 years of age, the defendant received his first term of imprisonment of 12 months for the theft of a motor vehicle in Victoria. Between 1981 and 1988, he was convicted of driving with high range prescribed concentration of alcohol offences, other associated driving offences including driving under the influence of drugs, and possessing prohibited substances, being amphetamine and cannabis, in Victoria and NSW. On 25 May 1981, the defendant served 6 months imprisonment for the high range PCA offence.

10. On 27 August 1990, the defendant was convicted of the rape, indecent assault and intentional injury to his former partner (the 1990 serious sex offence). He was sentenced to 4 years and 6 months imprisonment. This is a "serious sex offence" pursuant to s 5(1)(a) read with s 5(1)(c) and (c1). If the Victorian offences were committed in NSW at the time the application was made, they would amount to offences under s 61J of the Crimes Act 1900, namely aggravated sexual assault, the circumstances of aggravation being the intentional infliction of actual bodily harm to the victim.

11. In August 1993, the defendant was released to parole. On 7 November 1993, he was arrested, taken into custody and charged with two counts of aggravated indecent assault and one count of aggravated sexual assault on a 10 year old girl (the 1993 serious sex offence). This is a serious sex offence under s 5(1)(a)(i).

12. On 8 December 1993, the defendant was released on bail. His whereabouts remained thereafter unknown for some time.

13. On 21 October 1994, the defendant failed to appear before Penrith District Court for the 1993 serious sex offence and a bench warrant was issued for his arrest. Between 1994 and 1996, he was charged with driving offences, possession of prohibited drug, goods in custody offences, larceny, fraud and robbery, all of which had warrants for his arrest attached to them. On 26 January 1996, the warrants were executed and the defendant was taken into custody.

14. On 28 February 1996, the defendant was indicted for the 1993 serious sex offence. On 17 May 1996, he pleaded guilty to aggravated sexual assault, then an offence under s 61M(1) of the Crimes Act, which the Crown accepted in full satisfaction of the indictment.

15. On 9 August 1996, Hosking DCJ sentenced the defendant for the 1993 serious sex offence and the offending between 1994 and 1996 to a total term of 8 years imprisonment. For the 1993 serious sex offence, the defendant was sentenced to 4 years imprisonment with a non-parole period of 1 year commencing on 13 December 1999, after the fixed term of 4 years imprisonment for the robbery and fraud offences had expired.

16. On 22 October 2002, the defendant was released to parole. His sentence was due to expire on 12 December 2003.

17. In January 2003, the defendant allegedly committed an aggravated indecent assault on a 9 year old girl which is an offence under s 61M(1) of the CrimesAct (the 2003 serious sex charge). This is a "serious sex offence" under s 5(1)(a)(i) of the Act. However, he was not charged until August 2003 when the matter was reported.

18. On 12 May 2003, the defendant was charged with possession of an unregistered firearm for which he was fined. His parole was revoked. On 21 May 2003, he was taken into custody.

19. On 20 August 2003, the defendant was charged with the 2003 serious sex charge. His trial commenced before a judge alone on 23 August 2004. A Crown witness who gave evidence failed to re-appear for cross-examination. The trial was terminated. On 6 October 2004, the defendant was released as the DPP confirmed it would not proceed with the charge.

20. In February and May 2006, the defendant was charged and convicted of driving offences, receiving stolen property and fraud. Warrants were issued for his arrest. On 2 August 2006, the warrants were executed and he was returned to custody. On 11 September 2006, he was sentenced on these charges to 10 months imprisonment commencing on 2 August 2006. On 10 May 2007 he was released to parole.

21. On 15 May 2007, the defendant's parole was revoked. He remained at large. However, on 22 December 2007, he was arrested, charged and taken into custody for driving and property offences and on the warrant issued by the State Parole Board (as it then was). He was sentenced to 12 months imprisonment for the driving and property offences.

22. On 23 June 2008, the defendant was released to parole.

23. On 12 July 2008, the defendant was arrested, charged and taken into custody for the offences of take/detain in company with intent to obtain advantage occasioning actual bodily harm, an offence under s 86(3) of the Crimes Act, assault occasioning actual bodily harm, take and drive conveyance without consent of owner and drive while disqualified (the 2008 violence offence).

24. Arguably the facts of the s 86(3) offence could have amounted to a "serious violence offence" under s 5A(2A)(c) in that the victim was wounded and struck with a tomahawk. It could be inferred by the manner in which the victim was struck and the weapon used that the defendant intended to cause grievous bodily harm.

25. From 12 July 2008 to 8 January 2009, the defendant served the balance of his sentence for the driving and property offences and thereafter he was remanded in custody on the 2008 violence offence.

26. On 17 July 2009, the defendant was sentenced to 6 years imprisonment commencing on 12 January 2009. On 11 January 2015, his sentence expired and he was released.

27. In January 2015, the defendant was charged with further drive while disqualified offences and warrants were issued.

28. On 17 April 2015, the defendant was charged with being a person required to be registered under the Child Protection (Offenders Registration) Act 2000 (“CPOR Act”) and with failing to comply with reporting obligations contrary to s 17(1) of that Act and driving while disqualified. The former offence is an "offence of a sexual nature" under s 5(2)(f) of the CHRO Act.

29. On 10 November 2015, the defendant was arrested, charged and taken into custody for the 2015 CPOR Act offence and drive while disqualified charges. He was sentenced to 3 months imprisonment for the former offence which commenced on 10 November 2015 and 15 months imprisonment for the latter which commenced on 10 February 2016.

30. On 9 December 2016, the defendant was released to parole.

31. On 31 May 2017, the defendant was arrested and charged with drive vehicle with illicit drug present in blood. On 28 July 2017, he was arrested and charged with the index offence, possess prohibited drug, drive while disqualified offences, goods in custody offences and other associated driving offences.

32. He was released to parole on 30 July 2018.

Comment

33. This summary demonstrates that, critically, after serving significant periods of imprisonment in 1990, 1993 and 1996, and less than two months of release to parole, the defendant was charged with serious sex offences. Within a month of his release to parole on 23 June 2008, he committed the 2008 violence offence.

34. The defendant’s criminal history shows that his release from prison puts the safety of the community at risk. This is a paramount consideration when determining the application: CHRO Act, ss 3(1), 9(2).

The 1990 serious sex offence

35. In January 1990, the defendant was charged with four counts of rape, two counts of indecent assault and one count of intentional injury to V2, his former partner. He pleaded not guilty and his trial was heard in the Victorian County Court. The jury returned a guilty verdict to all charges. He was sentenced to 4 years and 6 months imprisonment with a non-parole period of 3 years. The sentence was confirmed on appeal.

36. The sentencing judge found in his remarks on sentence that he defendant had lived with V2 since 1978 with periods of separation. They had two children together, aged 10 and 6 years old at the time. In July 1989, following a period of separation, the defendant returned to live with her. In early December 1989, V2 asked the defendant to move out and he did.

37. About midday on 31 December 1989, the defendant went to V2's home and waited in his car for her to return. He drank alcohol as he waited. V2 returned home at 1:00 am. The defendant then knocked on the door. When V2 opened it, the defendant punched her mouth with a closed fist. She fell to the ground with a split her lower lip. The defendant tore off V2's underpants, carried her to the bedroom and licked her vagina. He put his penis in her mouth, raping her. On three separate occasions the defendant moved V2 into different positions and each time inserted his penis in her vagina. Later the defendant made V2 stand near the end of the bed and he fondled her vagina.

38. V2's evidence at trial was that she did not resist the defendant because she was afraid of him.

39. The defendant drank more alcohol and fell asleep. V2 telephoned her sister and told her what had happened. V2 went to her sister's home and they called the police.

40. The defendant was interviewed by police and did not deny that sexual intercourse occurred. However, he maintained that it was consensual. He denied punching V2.

41. In his interview with Mr Ardasinski, when being assessed for the present application, the defendant maintained that the sexual intercourse was consensual and that he was intoxicated.

42. Judge Murdoch found the defendant's consumption of alcohol was a factor in the offence. His Honour further found the offences were serious, noting the purpose of sentencing the defendant was deterrence in the particular and general sense.

The 1993 serious sex offence

43. In August 1993, the defendant was released to parole for the 1990 serious sex offence. On 7 November 1993, he was arrested and charged for the 1993 serious sex offence.

44. On 28 February 1996, the DPP presented an indictment naming the defendant and charging him with one count of sexual intercourse without consent, an offence at that time under s 61J of the Crimes Act or in the alternative one count of aggravated sexual assault, an offence at that time under s 61M(1). On 17 May 1996, the defendant pleaded guilty to the alternative charge and the DPP accepted that plea in full satisfaction of the indictment.

45. On 9 August 1996, Judge Hosking convicted and sentenced the defendant to 4 years imprisonment with a non-parole period of 1 year commencing on 13 December 1999 after the 4 years fixed term for the robbery and fraud charges expired.

46. The facts of the 1993 serious sex offence are that on 6 November 1993 the defendant went to his former partner’s home. She was living with another partner at the time, who had a 10 year old daughter, the victim in this offence (V3). Also at the home were the defendant's children with V2, being a 10 year old girl and a 13 year old boy.

47. In the early hours of the morning, the defendant woke V3 who was asleep in the top bunk. His biological daughter was in the bottom bunk. The defendant put his hand inside V3's vagina. While this was occurring, the defendant spoke to his own daughter.

48. The defendant unzipped his pants and climbed into the top bunk. As he moved closer to V3 she could feel his penis against her. The defendant told V3 not to scream or something would happen. V3 screamed and the defendant left the house. V2 found a knife, usually kept in the kitchen, on the floor beside the bunk. The police were called and the incident was reported.

49. The defendant denied ever being in the house but the victim and his daughter each told the police they saw him in their bedroom that evening. The defendant could not explain why the knife was found there. He admitted knowing how to enter the home through the back door and where the girls’ bedroom was.

50. In his interview with Mr Ardasinski, the defendant did not deny that he may have committed the 1993 serious sex offence but maintained that he could not remember it because he was so intoxicated.

The 2003 serious sex charge

51. On 22 October 2002, the defendant was released to parole for the 1996 serious sex offence. On 20 August 2003, he was charged with aggravated indecent assault of a 9 year old girl (V5), an offence under s 61M(1) of the Crimes Act. The offence was alleged to have occurred in January 2003.

51. The alleged facts are that the defendant was friends with V5’s parents. In January 2003, he was in a relationship with a woman, M22, who had a barbecue at her home. Prior arrangements were made for the defendant to bring V5 as her parents could not be there. On the way to the barbecue, the defendant stopped at his home with V5. While she was inside his unit, V5 picked up a magazine that had been left out that contained pornographic material. The defendant told her to put the magazine away.

52. V5 asked the defendant questions about the magazine. He told her to lie on the bed. He then touched her vagina through her clothing before she pushed his hand away. About a month later, V5 disclosed the allegation to M22, who had since separated from the defendant.

53. When questioned by police on 20 August 2003, the defendant denied the incident. He also did not discuss the 2003 offence in his interview with Mr Ardasinski.

54. V5’s record of interview corroborated the police facts. Her version was in turn corroborated by three other witnesses.

55. The defendant elected for a judge alone trial which commenced on 23 August 2004 before Judge Bell. V5 gave evidence in that trial. M22 gave her evidence-in-chief on 24 August 2004 and was to be cross-examined on 25 August 2004. On 25 August 2004, the Crown confirmed it could not find M22. In the circumstances, Judge Bell terminated the trial on 25 August 2004 and relisted the matter so that another trial date could be set. In October 2004, the DPP determined not to proceed with the charges.

2008 violence offence

57. On 23 June 2008, the defendant was released to parole. On 12 July 2008, he was arrested and charged for the 2008 violence offence.

58. On 2 December 2008, the defendant pleaded guilty to the charge in Nowra Local Court and was committed to Sydney District Court for sentence.

59. On 17 July 2009, the defendant was sentenced by His Honour Judge McLoughlin in Downing Centre District Court to 6 years imprisonment with a non-parole period of 4 years and 6 months. The facts of the offence are that the victim, V6, knew the defendant, and the co-accused, M40 (male) and M41 (female). On 11 July 2008, V6 went to M41’s house to visit her. V6 had received text messages from M41 to see her. The defendant had also called V6 asking for the use of tow rope. V6 arrived at M41’s house. The defendant, M40 and M41 were there.

60. Shortly after arriving at M41’s house, while V6 had a cup of coffee and a cigarette, the defendant struck V6 to the back of the head. At that time, M41 went to her bedroom. V6 fell to the floor and was kneed and punched by M40 whilst the defendant struck V6 with a tomahawk and then a walking stick. V6 was also verbally threatened by the two men. At one point during the assault, V6’s mobile phone rang. He managed to pick it up and run into a bedroom and shut the door. V6 saw that it was his mother who called and he yelled into the phone that he was at M41’s house and to send the police.

61. The door was kicked off its hinges and V6 was pulled from the room. The defendant took V6’s phone and threatened him. V6 bled from his injuries. M40 went downstairs to the bathroom to vomit. The defendant continued to threaten V6 who was asking for medical help. V6 was allowed to go to the toilet to wash his face. He returned to the lounge room where the defendant then tied his hands.

62. The three accused took V6 to a shed about 30 to 40 metres from the house where the assault occurred but still on M41’s property. The defendant had the tomahawk and threatened to put it in V6’s skull if he “tried anything”. The defendant tied the rope to a bed and gave the rope to M41 who tied V6’s hands and feet to a chair. V6 was told he would be shot if he tried to escape.

63. M41 boarded up a window in the shed and the three accused bolted and locked the door from the outside. The defendant left the property around 8:30pm in V6’s car. M40 and M41 checked on V6 a number of times after the defendant had left. M40 laid V6 on the bed and he slept.

64. V6 was detained for the next seven hours before he managed to escape. He freed his hands from the rope, forced open a window and climbed out. V6 walked about two to three kilometres before hearing his ute (which the defendant had taken) and hiding in the bushes. He called 000.

65. V6 sustained bruises, scratches and a wound to the front of his head. He could provide no motive for the attack.

66. The defendant declined to be interviewed by police.

2015 CPOR Act offence

67. As a consequence of the 1993 serious sex offence, the defendant was and remains required to be registered on the Child Protection Register pursuant to s 3A of the CPOR Act.

68. On 11 January 2015, the defendant’s sentence expired and he was released from prison. He had until 17 January 2015 to contact police and register his details: CPOR Act, s 9A. The defendant had been notified of his obligations on several occasions. On 17 April 2015, he had still not reported his details to police and was consequently charged with an offence under s 17 of the CPOR Act.

69. On 19 November 2015, the defendant was sentenced in Blacktown Local Court to 3 months imprisonment. This sentence was confirmed on appeal.

The index offence

70. On 9 December 2016, the defendant was released to parole. Between 7 April 2017 and 28 July 2017 he committed three offences under s 17 of the CPOR Act. The defendant was not contactable for a period in April 2017 and had not notified police of his location.

71. When he was arrested by police, he provided them with a new mobile phone number that apparently he had had for a few months. He failed to notify police of this new mobile number when first in possession of it. The defendant had also been using a vehicle and did not notify police of the details.

72. On 28 July 2017, the defendant’s vehicle was stopped by police in Unanderra. He provided a false name. His identity was verified and he was arrested for the index offence, possession of a prohibited drug and other offences, including driving while disqualified. On 31 July 2017, the defendant pleaded guilty at Wollongong Local Court and was sentenced to 16 months imprisonment with a non-parole period of 12 months commencing that day.

Supporting documentation – s 9(3) factors

73. The evidence relating to the s 9(3) factors can assist the Court to evaluate the nature of the defendant's risk of reoffending and the degree of probability that he poses for the unacceptable risk test: see State of New South Wales v Fisk [2013] NSWSC 364 at [22] and State of New South Wales v Kamm [2016] NSWSC 1 at [42].

74. In my opinion, the following evidence strongly supports the existence of a prima facie case for an extended supervision order.

The defendant's criminal history and views of the sentencing Court: s 9(3)(h) and (h1)

75. McLoughlin DCJ described the 2008 violence offence as falling within the mid-range of objective seriousness noting the incident was:

"very serious and involve[d] the deprivation of a person's liberty and inflicting of repeated gratuitous violence for no apparent reason"

76. His Honour considered the defendant was the principal offender. He noted that the defendant gave sworn evidence that at 52 years of age "he ha[d] seen the error of his ways and wishe[d] to cease his drug habits and be a reasonable person in the community". However, his Honour had little confidence that this would occur having considered the defendant's criminal history without concluding that he had good prospects of rehabilitation.

The Risk Assessment Report and any statistical assessment of risk: s 9(3)(c) and (d)

77. Mr Ardasinski categorised the defendant in the moderate to high risk category having assessed his static and dynamic risk factors. Static factors are relatively fixed aspects of an individual's history, such as age and the extent of criminal history. Dynamic risk factors are factors consistently related to recidivism but amenable to treatment.

78. Key opinions expressed by Mr Ardasinski relevant to an evaluation of the defendant's risk include the following:

"[The defendant] appears to be a diverse offender, and the totality of the information suggests that sexual and violent offending form only a small (but significant) portion of his offence history. It is therefore difficult to predict with certainty likely future scenarios involving sexual or other violence. [The defendant], in interview, acknowledged that association with antisocial peers and a return to drug use are the two key risk issues which he needs to avoid to remain offence-free": at [16]

"The likelihood is that [the defendant] has failed to learn how to exist prosocially in the community without eventually resorting to crime or breaching community standards or laws in some ways, since he has spent the vast majority of his life in prison": at [16]

"… it was noted that in relation to [the defendant's] choices to breach parole and the CPR in 2017 that a fatalistic mentality (corresponding to his terminal illness and poor prognosis) ultimately resulted in a reckless attitude to flout the law and his parole conditions. It could be said that [the defendant's] health condition – until it renders him more incapacitated as the illness progresses – may increase his risk of placing himself into risky situations, since he may be less fearful of apprehension and reprisal in such a mental state": at [54(e)]

"[The defendant's] most likely scenario for further sexual offending would involve his being left alone with a pre-pubescent female child, the daughter of an acquaintance, and opportunistically indecently assaulting the child with digital manipulation, and possible penetration, of the victim's genitalia. There may also be attempts to have the victim touch [the defendant's] penis, or other grooming behaviours such as exposure to pornography. [The defendant] would likely ingratiate himself into the family, perhaps not for the purpose of grooming the potential child victim, but just for companionship. If he felt sexually aroused within the presence of the child, and were he to have returned to drinking or drug use, there would be increased risks of a new serious sex offence being committed against a known child victim or vulnerable female acquaintance": at [60].

79. Mr Ardasinski noted that the defendant meets the diagnostic criteria for Antisocial Personality Disorder but further commented that there appears to be a marked de-escalation in seriousness compared with his earlier criminality. This may be indicative of "burnout" (which refers to the phenomenon where Antisocial Personality Disorder begins to remit after the age of 40).

80. The Risk Assessment Report does not set out the facts of the 2008 violence offence for which the defendant received 6 years imprisonment. However, this offence arguably suggests the defendant may not have "burnt out" given this was committed when he was 52 years old.

81. Mr Ardasinski opined that the defendant may meet the diagnostic criteria for paedophilia because of the 1993 serious sex offence and the 2003 serious sex charge. The charge is relevant to an assessment of the defendant's risk of sexual recidivism from a clinical perspective. At [25], Mr Ardasinski said:

"While he denied any deviant sexual interest in interview, the possibility of a long-standing endogenous predisposition to having sexualised thoughts about young, female children cannot be discounted and may warrant further exploration within a therapeutic context."

82. Mr Ardasinski also commented on the defendant's history of illicit drug use, noting that he appears to have abstained from drugs in more recent years. However it is noted that on 31 May 2017 and 28 July 2017, the defendant was charged and convicted for driving under the influence of drugs and possession of a prohibited drug.

83. Mr Ardasinski observed the defendant's poor history with community supervision and noted it is a risk factor. He also observed that the defendant had not attracted institutional misconduct charges. For a person who presents with a risk of serious sex offending against children, the absence of institutional misconduct charges arguably assumes less significance for obvious reasons.

84. Importantly, Mr Ardasinski considered the defendant's sexual deviance to be untreated, which is a risk factor in itself, and noted that the denial of his sexual offence history has been or would be problematic within any treatment setting.

85. The risk assessment report identifies the following additional dynamic risk factors (utilising the Risk of Sexual Violence Protocol professional judgment tool):

1. Entrenched antisocial attitudes noting that the defendant has “frequently returned to the safety of the criminal element, abusing drugs and committing crimes …"

2. Substance abuse problems: although the defendant has more recently presented with negative results there still remains a risk he would return to abusing illicit substances which escalates his risk of offending.

3. Intimacy deficits: this appears to be relevant to his serious sex offending which has been linked to loneliness and lack of intimacy.

4. Childhood abuse and attachment deficits: the defendant has reported having been the victim of sexual abuse. Mr Ardasinski opines that this may cause him to resort to sexualising children and to committing a serious sex offence as a coping mechanism.

86. Mr Ardasinski set out the results of the following additional actuarial tools used to assess the defendant's risk:

1. The Level of Service Inventory-Revised (LSI-R) consisting of static and dynamic risk factors related to general and violent re-offending. Mr Ardasinski did not personally administer the LSI-R as it was performed while the defendant was in custody on 24 February 2017. The defendant was categorised in the medium-high range category for general and violent offending.

2. The STATIC 99R and STATIC 2002R which predict recidivism based on static (historical) risk factors. A score is given to historical risk factors (10 factors for the STATIC 99R and 14 factors for the STATIC 2002R) to categorise a person's risk. The defendant scored 5 on the Static 99-R and 6 on the STATIC 2002R. This categorised the defendant in the "above average" risk category. The rate of recidivism for individuals with the same score as the defendant is estimated to be about twice as high as that of the “typical” sex offender.

3. The STABLE-2007 measures dynamic risk factors related to sexual reoffending and consists of 13 items related to psychological, interpersonal and sexual functioning, which are added together to create a total score. The defendant scored 12, suggesting a high density of criminogenic needs relative to other male sexual offenders.

4. The STABLE-2007 can be combined with the STATIC-99R or STATIC-2002R to generate a “composite assessment of risk/needs”. The defendant was assessed by Mr. Ardasinski as in the “above average” risk category.

5. The Violence Risk Appraisal Guide-Revised measures risk of future violence by considering 12 static risk factors. The defendant scored 22 placing him in the high risk category for violent recidivism. Fifty eight percent of violent offenders in this category reoffended violently within five years.

87. These tools do not distinguish between a violence offence and a "serious violence offence" under the Act or a sex offence from a "serious sex offence".

88. The risk assessment report identified that the defendant lacked insight into his offending and the reasons for it. Mr Ardasinski stated:

“… [the defendant] appeared to superficially accept responsibility for his offending, without taking ownership for his potential to commit new sex offences …"

Any other reports prepared as to the likelihood of the defendant committing a further serious offence: s 9(3)(c)

89. Ann Watts (intern psychiatrist) and Dr John Baron (psychiatrist) assessed the defendant's risk of recidivism and provided a report to the Parole Board dated 15 June 2001 for consideration of the defendant's risks before determining whether to release him to parole on the 1993 serious sex offence.

90. Although the report is somewhat old, there are identified risk factors which appear present today. The report notes that the defendant's offences have been alcohol or drug related. The defendant minimised the 1993 serious sex offence suggesting the victim was a story-teller. However, as the interview progressed, the authors of the report noted the defendant appeared to accept that the facts pointed to his being there and that given he was "so drunk he may have committed the offence even if he didn't remember it". The defendant uses inebriation and "memory loss" to evade responsibility which the authors of the report considered "the most worrying indicator of risk".

91. The defendant expressed to the authors of the report a "strong resolve" to establish a more positive and stable lifestyle.

92. It should be noted that the defendant, on his release to parole, despite this expression of commitment to rehabilitation, went on to be charged with the 2003 serious sex charge, committed a series of other theft and driving related offences, committed the 2008 violence offence and breached his obligations under the CPOR Act.

Any treatment or rehabilitation programs the defendant participated in and his level of participation: s 9(3)(e)

93. The defendant has not participated in any custody based treatment programs targeting sex offending or violent offending.

94. After his interview with Mr Ardasinski, the defendant agreed to participate in CUBIT (Custody Based Intensive Treatment Program) targeting the dynamic risk factors of sex offending. However, that consent was given in April 2018 and the defendant was released to parole in July 2018. He was unable to commence the program.

95. The defendant has been offered placements in rehabilitative programs throughout his time in custody but has consistently refused. The defendant is untreated.

Any report prepared by CSNSW as to the extent to which the defendant can be reasonably and practically managed in the community and options if any that might reduce the likelihood of the defendant re-offending over time: s 9(3)(d1) and (e1)

96. The risk management report proposes a plan that addresses the defendant's criminogenic needs and his institutionalisation. The plan seeks to reduce the defendant's risk by requiring him to engage in weekly interviews, unannounced home visits, electronic monitoring and weekly reporting of schedules, referrals to psychologists for treatment and drug and alcohol counselling and testing.

97. Ms Kirkwood notes that the limitations of the management strategy are the reliance on the defendant's compliance with the conditions:

“The defendant cannot be trusted to abide by his conditions which may justify the need for electronic monitoring in the short term to ensure the defendant is where he says he is.”

98. There is nothing in the risk management report to suggest there would be impediments from the CSNSW perspective to supervising the defendant. The limitations are largely reliant on the level of the defendant's compliance.

The likelihood of compliance with obligations under the ESO, the level of the defendant's compliance with conditions of parole and the level of the defendant's compliance with obligations under the CPOR Act: s 9(3)(e2), (f) and (g)

99. The defendant's compliance with parole and his obligations under the CPOR Act is poor. He has breached conditions imposed on him on every release to parole and shows deliberate disregard for the purpose of that Act. This is perhaps a further illustration of a denial of his sexual attraction to children. His breaches of parole include:

1. committing further offences;

2. failing to report to Community Corrections or attend his required interviews;

3. having his whereabouts unknown;

4. not arriving at post release accommodation the first day of his release to parole and thereafter his location being unknown;

5. residing at an address not agreed upon by Community Corrections; and

1. leaving New South Wales.    

100. This deliberate disregard for conditions of parole and obligations under the CPOR Act warrant the need for a greater intensity of supervision that an extended supervision order can provide.

Unacceptable risk

101. The nature of the defendant's risks includes a risk of committing a serious sex offence. In particular, pre-pubescent girls are vulnerable to his behaviour. This is apparent from the 1990 and 1993 serious sex offences and the 2003 serious sex charge.

102. Section 9(3)(i) of the Act provides that the Court can consider any other relevant factor when determining whether an extended supervision order should be granted. The Court can consider any alleged criminal conduct even if that conduct has not resulted in a conviction for any offence in the evaluative task under s 5B(d): Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 at [27], [124] per Adamson J; State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 at [14] per R A Hulme J.

103. The charges may also be relevant to "the safety of the community" (s 9(2) of the CHRO Act): State of New South Wales v French (Final) [2017] NSWSC 1475 at [46] per Walton J, applied in State of New South Wales v Sleeman.

104. It is permissible to consider the 2003 serious sex charge in this context because unlike a not guilty verdict, the DPP elected not to proceed on the charge because of what appeared to be witness availability issues. Moreover, the nature of the 2003 serious sex charge parallels the 1993 serious sex offence, suggesting a pattern of behaviour to be seen in the similar ages of the female victims and the fact that the defendant commenced each assault by touching each victim on her vagina.

105. The nature of the defendant's risk also includes a risk of serious violence offending. This can be discerned from the 2008 violence offence (which, though not a "serious violence offence" under the Act as charged, arguably had factual elements that could have met that definition). The defendant's criminal record also shows a history of drug and alcohol issues, driving while disqualified and driving under the influence of drugs or alcohol. This too poses a risk of serious violence.

106. In my view, these risks are unacceptable. The high degree of probability that the defendant poses an unacceptable risk of committing a further serious offence is evidenced by his chronic drug and alcohol use which have been connected to his serious offending.

107. For the 2008 serious violence offence, the defendant claimed he had used amphetamines. During the 1990 and 1993 serious sex offence, he claimed he was highly intoxicated. The defendant has also returned negative results when tested for the presence of illicit drugs. A two year possible abstinence must be considered in the context of an extensive history of using illicit substances.

108. The recent convictions in May and July 2017 for driving under the influence of drugs and possession of prohibited drug are matters of concern. The defendant's institutionalisation may also place him at risk of returning to illicit substances and/or alcohol when he cannot cope. This increases his risks of reoffending without supervision.

109. The defendant's denial of sexual attraction to young girls and untreated dynamic risk factors means that he lacks insight into the factors that underpin his sexual offending behaviour. There is a high degree of probability that, if faced with a situation where he has contact and access to a young girl who he knows, he lacks the tools or motivation to regulate his behaviour and stop himself from serious sex offending.

110. There are also no protective factors identified in the defendant's life upon his release. He has no family support and no employment. His fatalistic attitude may also heighten his risks.

111. The severity of the unacceptable risk and the unpredictability of that offending are relevant to the evaluative task under s 5B(d).

112. The risk of reoffending by the commission of a serious sex offence, even if determined to be low, must be balanced against the fact that the defendant committed these offences soon after release to parole, that the offences were committed later in his adult life (after the age of 30) and that the consequences of the risk are drastic to any victim.

113. I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.

Conditions

114. With one exception, the parties are agreed that the conditions contained in the Schedule to the amended summons are appropriate to be applied pending determination of this application on a final basis. That exception is the requirement for electronic monitoring.

115. The plaintiff maintains that electronic monitoring is important in the present case having regard to the fact that the defendant has, or is said to have, a history of going missing from time to time. While the plaintiff accepts that the defendant has been wholly compliant with all conditions since his release, the plaintiff is concerned that this has only extended over a relatively short period and that no confidence in the defendant’s maintenance of compliance can be assumed. Moreover, the plaintiff notes that the imposition of this condition is, in the first instance, only pending the hearing when consideration to the making of orders on a final or extended basis will be considered.

116. The defendant submitted that his latest post-release history supported the fact that electronic monitoring was unnecessary. It is also uncomfortable and intrusive and ought only to be considered if the risks associated with its importance could be directly related to its effectiveness. In this respect the defendant submitted in effect that there was, and could be demonstrated, no direct causal relationship between the prospect that he would fail to comply with conditions on the one hand and his geographical location at any particular time on the other hand. To the extent that he had any history of being difficult to locate, these incidents were very old and he should correspondingly be given credit for his recent compliant behaviour.

117. There is some force in the defendant’s submissions. However, the defendant is so far yet to be offence free whilst at large in the community for more than two years since 1990. There remains some concern about his ability successfully to reintegrate into the community. It seems to me that, having regard to the likelihood that a final determination of the State’s application will be made soon, it is preferable to require that the defendant comply with an electronic monitoring condition until that application is determined. It is also a matter to which the attention of Dr Furst and Dr Seidler might usefully be directed when they asses the defendant in the coming weeks.

Orders

118. I make the following orders:

1. I make orders in accordance with paragraphs 1 to 11 inclusive of the short minutes of order, which for identification I will initial, date with today’s date and place with the papers

2. I note in accordance with paragraph 5 of the short minutes of order that the matter will be listed on 14 December 2018 in order to hear the plaintiff’s application for a renewal of the interim supervision order for a further period of 28 days.

**********

Decision last updated: 14 September 2018