The State of New South Wales v Carney

[2009] NSWSC 1273

CITATION:	The State of New South Wales v Carney [2009] NSWSC 1273
HEARING DATE(S):	18 November 2009
JUDGMENT DATE :	18 November 2009
JUDGMENT OF:	Price J
EX TEMPORE JUDGMENT DATE:	18 November 2009
DECISION:	1. An order pursuant to section 7(4) of the Crimes (Serious Sex Offenders) Act 2006 (the Act): (a) appointing Dr Anthony Samuels and Dr Samson Roberts to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 4pm on 18 December 2009, and (b) directing the defendant to attend those examinations. 2. An order pursuant to section 8(1) of the Act that the defendant be subject to an interim supervision order from 22 November 2009 for a period of 28 days and pursuant to section 11 of the Act direct that for the period of the interim supervision order the defendant comply with the conditions set out in the schedule to these orders. 3. List the matter for further mention and for the purpose of any application by the plaintiff to renew the interim supervision order at 9.30am on Thursday 10 December 2009. 4. Grant liberty to apply on one day's notice. 5. Direct that access to the court file in respect of any document shall not be granted without the leave of a judge of this court. If any application is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to be heard.
CATCHWORDS:	Serious sex offender - application for interim supervision order - conditions including electronic monitoring
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006 s 7(4), s 8(1), s 8(1)(a), s 8(1)(b), s 9(1)(a), s 9(2), s 9(3), s 9(3)(b), s 11, s 11(e), Crimes Act 1900 s 66A
CATEGORY:	Consequential orders
CASES CITED:	Attorney General for New South Wales v Tillman [2007] NSWCA 119. Cornwall v Attorney General of New South Wales [2007] NSWCA 374 State of New South Wales v Manners [2008] NSWSC 1242 State of New South Wales v Tillman [2008] NSWSC 1293
PARTIES:	The State of New South Wales (plaintiff) Paul William Carney (defendant)
FILE NUMBER(S):	SC 14880/09
COUNSEL:	Mr D Kell (plaintiff) Mr D Thiering (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

18 November 2009

14880/09 The State of New South Wales v

Paul William Carney

JUDGMENT

1 HIS HONOUR: This is a preliminary hearing into an application by the State of New South Wales, the plaintiff, for an extended supervision order against Paul William Carney, the defendant, pursuant to section 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 (the Act). The plaintiff will seek at the final hearing an extended supervision order for 5 years.

2 The plaintiff applies today for the following orders pursuant to section 7(4) of the Act:

“(a) appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the court, and

(b) directing the defendant to attend those examinations.”

and for an order pursuant to section 8(1) of the Act that the defendant be subject to an interim supervision order from 22 November 2009 for a period of 28 days and pursuant to section 11 of the Act direct that for the period of the interim supervision order the defendant comply with the conditions set out in the schedule to the summons. Other than the requirements as to disclosure of information at clauses 36 to 39 and of review at clauses 40 and 41, the schedule specifies 35 conditions of supervision.

3 Mr Thiering, counsel for the defendant, has informed the court that his client does not object to examination by court appointed specialists and will submit to orders that he attend for that purpose. Furthermore, the defendant does not object to the making of the interim supervision order for a period of 28 days. The defendant, however, does oppose condition 5 of the schedule which is the requirement for electronic monitoring. I hasten to note the defendant reserves his position so far as the conditions of any final supervision order are concerned until such time as the reports of the court appointed specialists have been received.

4 Notwithstanding the defendant's lack of opposition to an interim order, the court may not make an order for interim supervision of the defendant unless the matters in sections 8(1)(a) and (b) of the Act are satisfied. Section 8(1) of the Act relevantly is as follows:

“If, in proceedings on an application for an extended supervision order, it appears to the Supreme Court:
(a) that the offender's current custody or supervision will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order,
the Supreme Court may make an order for the interim supervision of the offender.”

5 The court is required by section 8(1) of the Act to look at what is alleged in the documentation to see whether it would, if proved, justify the making of an interim supervision order. The use of the word "may" in section 8 confers a discretion enabling the court in a proper case to decline to make an order for interim supervision, even if appears that the supporting documentation justifies the making of the interim order which is sought, see Attorney General for New South Wales v Tillman [2007] NSWCA 119.

6 What is required for the making of an extended supervision order is set out in sections 9(2) and (3) of the Act respectively. In determining whether the power to grant an interim supervision order is enlivened, the court is not involved in weighing the supporting documentation or predicting the ultimate result: see Tillman at [98]. The test for the making of an interim supervision order is similar to the requirement for a prima facie case to be made out in committal proceedings.

7 The present application is supported by documentation that addresses each of the matters referred to in section 9(3) of the Act with the exception of section 9(3)(b) which provides for the reports of the court appointed psychiatrists.

8 The material discloses that on 4 August 2006 the defendant was sentenced by Charteris DCJ for one count of sexual intercourse with a child under 10 years contrary to section 66A of the Crimes Act 1900 to imprisonment for 4 years commencing 23 November 2005 and expiring on 22 November 2009, with a non-parole period of 2 years 6 months commencing 23 November 2005 and expiring on 22 May 2008. The defendant is currently on parole having been released to parole on 3 September 2009. The defendant's sentence expires on 22 November 2009.

9 An offence contrary to section 66A of the Crimes Act is a serious sex offence as defined in section 5(1) of the Act. The defendant is a sex offender having been sentenced to imprisonment following his conviction of a serious sex offence.

10 It is unnecessary for present purposes to detail the facts of the offence save to say that the offence involved a single act of digital penetration, the victim being an 8 year-old girl. The offence occurred between 1 November 1999 and 30 November 1999.

11 The sentencing judge observed that at the time of the offence the defendant was on parole for a conviction of rape in Victoria, having been released to parole in May 1998 with the sentence due to expire on 22 June 2000.

12 The judge found that there were two factors of aggravation that were present; namely, the defendant's ... and the commission of the offence whilst on parole for a sexual offence of a similar nature but involving an adult woman.

13 It is apposite to note that the judge spent time in his sentencing remarks considering the defendant's involvement with alcohol and cannabis. The judge accepted that the defendant was living a lifestyle of chronic alcohol abuse at the time of the offence and was not thinking in a straight fashion. Whilst that did not excuse the defendant's behaviour, the judge found that it tended to explain it.

14 The conviction for rape in Victoria involved the digital penetration of a 43-year-old woman on 20 February 1997. The defendant was sentenced on 27 June 1997 in the Mildura County Court to imprisonment for 3 years with a non-parole period of 9 months. As I have observed, the offence contrary to section 66A of the Crimes Act was committed whilst the defendant was subject to conditional liberty for this offence.

15 Whilst in custody in Victoria it appears that the defendant undertook a sex offender treatment program. It seems that this program had little impact on him. Of particular significance is the defendant's participation between 21 January 2009 and 10 July 2009 in the Custody Based Intensive Treatment Program, CUBIT, for high-risk sex offenders. It is to his credit that he completed the program.

16 Kate Harle, a psychologist, in a report dated 30 July 2009, however, expresses some reservations about the defendant. Ms Harle states at page15:

“Overall, Mr Carney's participation and progress in treatment varied. At times he was able to identify relevant treatment issues for himself and consider positive coping strategies that may assist him to manage his risk and live a healthy offence-free life. At other times he appeared resistant and defensive towards treatment, and appeared to experience some difficulty intervening in problematic thinking and behavioural patterns, especially when he was experiencing difficult emotions. This was particularly true in Mr Carney's final 2 weeks of treatment. At this stage, whilst Mr Carney appears to have gained an intellectual understanding of the factors that may have contributed to his offending and general problems throughout his life, it is unclear if he has actively implemented these plans successfully. It is also unclear if he intends to continue addressing these issues in the future.”

17 In an affidavit of 14 November 2009 Graham Rendell, a senior psychologist with Corrective Services New South Wales, refers at [28-29] to some problematic aspects of the defendant's participation in CUBIT. I do not propose to detail all of the matters raised by the psychologist, but for present purposes note the following. According to Mr Rendell the defendant:

(i) refused to process particularly treatment issues, arguing that they were not relevant, were insignificant or had already been resolved to his satisfaction.
(ii) demonstrated some difficulty taking responsibility for his offending behaviour.
(iii) demonstrated only a rudimentary understanding of the effects of sexual abuse on victims in general.
(iv) displayed negative attitudes and hostile views towards women.
(v) …

18 The defendant, it seems, had refused to participate in the preparation of the risk assessment report by Mr Rendell. Whilst acknowledging that the defendant could not be compelled to participate in the risk assessment, the psychologist opines that:

“…the [defendant's] decision not to participate in the risk assessment is consistent with aspects of his risk profile that indicate a disdain and uncaring attitude as to the assessments that professionals make about him and recommendations for his treatment and supervision needs.”

19 Mr Rendell assessed the defendant's potential for sexual recidivism by considering his actuarial risk, dynamic risk factors and acute dynamic risk factors. The defendant's modified score of 5 on the Static-99R placed him on a “moderate-high” risk category. His dynamic risk factors, according to Mr Rendell, include intimacy deficits, general self-regulation and co-operation with supervision. An acute risk factor which is identified as being of immediate and significant concern is any consumption of alcohol and illicit drugs by the defendant.

20 The psychologist noted at [48] a case note made by a Community Compliance Group officer involved in the defendant's supervision while on release to parole that:

“…the offender stated that should he return to drinking alcohol that he would probably re-offend, whether that be another sex offence or an assault.”

21 Mr Rendell expresses the opinion that the defendant has a high need for supervision at the expiration of his sentence on 22 November 2009.

22 Another matter is Toni McLackland's file note of 7 November 2009 at 243 that the defendant indicated:

“…that he accepts that DCS recognise him as a child sex offender but does he not consider himself one and that he thought the laws were rubbish.”

23 The defendant is 42-years-old. His prior criminal history reveals a lengthy history of non-sexual offences, including assault, assault occasioning actual bodily harm and malicious injury. On 10 February 2003 the defendant failed to appear at the Dubbo District Court to stand trial for the section 66A offence. A bench warrant was issued for his arrest. The defendant reports that he was “on the run” for 3 years. He was arrested in Tasmania on 23 November 2005 pursuant to the bench warrant and has been in custody until his release upon parole.

24 ...

25 At this stage of the proceedings there is no evidence which has been adduced on behalf of the defendant. There is little in the present documentation which suggests that he will have the social support in the community to overcome the risk of serious sexual offending without the benefit of an extended supervision order. All of this material supports the application made by the plaintiff.

26 On the other hand, the defendant has complied with the conditions of parole since his release on 3 September 2009. Whilst his compliance with parole conditions is encouraging, such a limited period of time does not outweigh the defendant's prior serious sexual offending, the prior breach of parole and the opinions of the psychologists.

27 I am satisfied upon the evidence that there is a high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision.

28 Section 11 of the Act provides for the conditions that may be imposed in an interim supervision order. Those conditions include a direction requiring the offender to wear electronic monitoring equipment: s 11(e) of the Act. The court must consider that any of the conditions which an offender is directed to comply with is appropriate. The affidavits of Ms McLackland and Eva Banozic are relevant to this topic, as was the oral testimony of Ms McLackland this morning.

29 The defendant does not object to the conditions sought by the plaintiff under the interim supervision order set out in the schedule other than condition 5 which relates to the wearing of electronic monitoring equipment. Mr Thiering submits the fact that the defendant has been in the community under parole supervision only, that is, without the additional burden of the more intensive supervisory regime commonly imposed under the Act, is significant. Mr Thiering points out that the defendant has been in the community for 75 days without incident, including living in private accommodation approved by the Community Compliance Group, and attending maintenance and other community based counselling programs.

30 I should say in respect of that submission it seems that the accommodation was not approved by the Community Compliance Group but it was otherwise approved by a government authority. Ms McLackland has expressed some concerns about the present accommodation.

31 Mr Thiering put to me that in the unusual circumstances of this case the protection of the community is adequately served by the provision by fax of a written schedule of movements together with spot checks by the Community Compliance Group either in person or via mobile telephone of the defendant's location. Mr Thiering argued that the wearing of monitoring equipment is a disincentive to the defendant's reintegration into the community and his prospects of rehabilitation. He made reference, in particular, to the defendant's desire to play rugby league football. He asks that at least for the 28 days of the interim order the defendant not be subject to such a condition.

32 The defendant's compliance with his parole conditions to date is undoubtedly a significant consideration. A condition for electronic monitoring was not made a condition of the parole order. The parole order was made on 27 August 2009. It seems from the evidence of Ms McLackland that the Community Compliance Group was not notified of the parole order until 1 September 2009.

33 The parole board did not have before it the evidence of Mr Rendell which, in my opinion, is of significance. Mr Rendell states at par 51 of his affidavit that in respect of the defendant's high need for supervision at the expiration of his sentence:

“…the very limited period of time in which he has been on release on parole since September 2009 is, in my view, a wholly inadequate period of supervision in terms of having any degree of confidence as to Mr Carney's ongoing ability to manage his high risk of sexual recidivism in the community. Mr Carney requires ongoing supervision and support for a significant period of time if he is to be successful in reintegrating into the community and not sexually re-offending. Supervisory conditions and monitoring would, in my view, increase the prospects of Mr Carney not sexually re-offending since, amongst other things, it may allow for monitoring of acute risk factors and provide the means for intervention, and assistance for Mr Carney, before he relapses into an offending cycle.”

34 The reservations expressed during the oral testimony of Ms McLackland concerning the present residence relate in particular to a nearby primary school and park. It seems that the area in which the defendant presently resides is a small hamlet. The only access into the hamlet is past the primary school.

35 There has been an agreement between the Community Compliance Group and the defendant that the defendant not travel past the school during the times of what was referred to as the “RTA school zone times”. There has been one field check carried out by the Community Compliance Group on the defendant and it seems that there has not been a compliance breach.

36 Ms McLackland referred to two aspects of electronic monitoring. The first was that, in Ms McLackland's opinion, it will assist the applicant's reintegration into the community by requiring him to put together a schedule of those areas in which he will travel. The second aspect is that electronic monitoring permits and requires the notification of movements in advance enabling the persons responsible for monitoring the defendant to check that he is going to the locations that he should be going to and that he is not going to locations that may be undesirable and raise risk concerns. Ms McLackland referred to inappropriate locations as including licensed premises, school zone areas and red light districts.

37 Mr Thiering in his submissions cited State of New South Wales v Manners [2008] NSWSC 1242 where no interim supervision order was made pending a final hearing. A circumstance in that case was that the defendant was up to the final hearing subject to parole conditions that included electronic monitoring. Mr Thiering argued that in the present case the defendant was in a better position as his parole conditions, although stringent, did not include electronic monitoring. It is trite to say that each case depends upon its own circumstances.

38 The Court of Appeal (Mason P, Giles and Hodgson JJA) in Cornwall v Attorney General of New South Wales [2007] NSWCA 374 said at [36]:

“One issue as to the terms of the order was whether there should be a requirement that the appellant wear an electronic monitoring device. In our opinion, it is appropriate to give weight to the consideration of the safety of the community in determining what conditions to impose, and to take a cautious approach. Should the Probation and Parole Service at any time consider that the device is not necessary or counter-productive, then the order should give the flexibility of dispensation with the requirement. Accordingly, it should be a condition of the order that the appellant wear such a device, if and as directed by a Probation and Parole Officer.” (Italics added)

39 The plaintiff submitted that electronic monitoring can have an important deterrent effect. The plaintiff cited what was said by the Court of Appeal (Mason P, Santow and Tobias JJA) in Tillman at [121].

“An electronic monitoring device will certainly assist in tracking the respondent's movements as well as deter him from risking committing the offence of breach of conditions of a supervision order.”

40 The plaintiff also cited what was said by Johnson J in the State of New South Wales v Tillman [2008] NSWSC 1293 at [79]:

“The existence of the proposed Condition 15 will operate as an incentive to the defendant to comply with the conditions of the extended supervision order which, in turn, will encourage rehabilitation.”

41 The high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision requires that the conditions of an interim supervision order be stringent. The primary object of the Act is to ensure the safety and protection of the community. Whilst the defendant's compliance with his parole conditions to date is a significant factor, other factors include the defendant's history of serious sexual offending, his breach of the Victorian parole by the commission of a serious sex offence, the reservations expressed by the psychologists Kate Harle and Graham Rendell, and his dynamic and acute risk factors.

42 I agree with Mr Rendell that the limited period of time the defendant has been on parole is inadequate to assess with confidence the defendant’s ability to manage the risk of serious sexual re-offending.

43 I conclude upon the present evidence the defendant must be closely monitored and electronic monitoring is required. Whether such a condition is made at the final hearing will depend upon the evidence then before the court. It is sufficient for present purposes that I consider each of the conditions set out in the schedule to the summons to be appropriate.

44 For the foregoing reasons, I make the following orders:

1. An order pursuant to section 7(4) of the Crimes (Serious Sex Offenders) Act 2006 (the Act):

(a) appointing Dr Anthony Samuels and Dr Samson Roberts to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 4pm on 18 December 2009, and
(b) directing the defendant to attend those examinations.

2. An order pursuant to section 8(1) of the Act that the defendant be subject to an interim supervision order from 22 November 2009 for a period of 28 days and pursuant to section 11 of the Act direct that for the period of the interim supervision order the defendant comply with the conditions set out in the schedule to these orders.

3. List the matter for further mention and for the purpose of any application by the plaintiff to renew the interim supervision order at 9.30am on Thursday 10 December 2009.

4. Grant liberty to apply on one day's notice.

5. Direct that access to the court file in respect of any document shall not be granted without the leave of a judge of this court. If any application is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to be heard.

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