State of New South Wales v Harrison

1. [1]

   The State of NSW seeks final orders against the defendant under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The defendant has been in the community under an interim supervision order (ISO) with conditions since midnight 4 March 2022. The last extension of those orders that is available under the Act expires on 7 June 2022.

2. [2]

   The State seeks an order in its Further Amended Summons, filed in Court on 6 June 2022, that the defendant be made subject to an extended supervision order (ESO) for a period of 4 years.

3. [3]

   The defendant conceded that the evidence justifies an ESO being made, but argued that it should be limited to 3 years as one of the Court appointed experts, Dr Smith, said that would be an “appropriate” length. There was also limited argument about the need for the proposed conditions to include conditions mandating a schedule of movements.

4. [4]

   For the reasons that follow, I have decided that an ESO of 4 years in length should be made on the conditions set out in the Schedule to this judgment, which includes the State’s proposed conditions requiring the defendant to submit and comply with a schedule of movements.

The preliminary hearing and interim orders

1. [5]

   The initial Summons filed on 14 December 2021 sought a 5 year ESO. This was modified in the Amended Summons to seek a 4 year ESO.

2. [6]

   Mr Harrison’s sentence for Count 5 of the index offending expired on 15 March 2022.

3. [7]

   On 4 March 2022 Rothman J made an ISO 28 days in length from 15 March 2022, and ordered examinations of Mr Harrison by two Court appointed experts.

4. [8]

   The ISO was extended on 6 April 2022 by Bellew J for a further 28 days from midnight on 12 April 2022 and again on 3 May 2022 by Bellew J for 28 days from midnight on 10 May 2022, expiring midnight 7 June 2022.

Evidence at the final hearing

1. [9]

   The plaintiff relied upon three affidavits of Mr Yang, solicitor, affirmed 15 December 2021, 28 April 2022 and 26 May 2022 and a volume of exhibited material contained in Exhibit DY-1. An affidavit of Kelli Grabham affirmed 3 June 2022 was also read. This affidavit deposed to the circumstances involved in the breach of the ISO in April 2022 (which was also conduct in contravention of the requirements of Mr Harrison’s Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) orders) between January and April 2022. Mr Harrison has been charged for breach of the non-association orders. Those charges are listed for sentence on 9 June 2022 at Dubbo Local Court.

2. [10]

   The defendant relied upon an affidavit of Tracy Reynolds solicitor affirmed 23 May 2022 which appended selected case management notes said to evidence a positive attitude to risk avoidance on the part of Mr Harrison. I have reservations about any such conclusion being open based on that material when the defendant’s conduct evidences a patent disregard for conditions and non-association requirements and a tendency to duplicity, opportunistic grooming and offending, minimisation of his offending, victim blaming and a total lack of insight as to the reprehensibility of his crimes and the harm they have caused to vulnerable children.

3. [11]

   Pursuant to the requirements of the Act, the Court appointed expert assessments took place first by Dr Marcelo Rodriguez, Psychologist, on 1 April 2022 and then Dr Calum Smith, Psychiatrist, on 13 April 2022. These reports are not evidence of one party or the other, but objective expert evidence provided for the assistance of the Court. No cross-examination of the experts or any witnesses was required.

The legislative scheme and principles

1. [12]

   The primary object of the Act is stated in s 3(1):

2. [13]

   A secondary object of the Act is to encourage rehabilitation of offenders. Obviously the safety of young children, the targets of the defendant’s offending, is an essential focus of the orders the Court makes and the conditions imposed.

3. [14]

   At a final hearing for an ESO, the Court must first determine whether it is satisfied to a high degree of probability that Mr Harrison poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d).

4. [15]

   The making of a ESO requires a state of satisfaction “to a high degree of probability”. This indicates a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA).

5. [16]

   The expression “unacceptable risk” is to be understood according to its everyday meaning in the context of ss 5B(d) and 5C(d), and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [58] per Beazley P.

6. [17]

   The right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an “unacceptable risk” (at [44] per Beazley P in Lynn), however consideration of an offender’s circumstances, including the offender’s interest in liberty and privacy, may influence the ultimate exercise of discretion as to whether or not to make an order: Lynn at [131] per Basten JA and at [149] per Gleeson JA.

7. [18]

   In State of New South Wales v Simcock (Final) [2016] NSWSC 1805, Wilson J observed at [71] that “unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”; see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15].

8. [19]

   This is a significant matter of concern in this case given the defendant has exhibited sexual offending behaviour towards young children over a very long period, and because of the well-known often life-long harm that sexual abuse causes to children.

Mandatory considerations – s 9(3) of the Act

1. [20]

   The Court is required to have regard to certain mandatory considerations set out in s 9(3) of the Act which include, relevantly to Mr Harrison, the reports of Dr Smith and Dr Rodriguez and asessments prepared by other qualified psychiatrists, psychologists and any registered medical practitioners addressing the likelihood of Mr Harrison committing a further serious offence; the results of any statistical or other assessments on that issue; any report by Corrective Services NSW as to the extent to which Mr Harrison can reasonably and practicably be managed in the community; any treatment or rehabilitation programs participated in or offered; options available to Mr Harrison in the community that might reduce the likelihood of him reoffending; the likelihood that he will comply with the obligations of an ESO; the level of his compliance with any obligations he has been subject to whilst on parole or earlier ESO; his compliance with his obligations under child protection legislation; his criminal history and pattern of offending behaviour; the views of the sentencing court at the time any sentence of imprisonment was imposed, and any other information available as to the likelihood that the offender will commit a further serious offence.

Criminal history, pattern of offending and views of the sentencing court at the time of sentencing

1. [21]

   I adopt the background and summary of the offending history (which included the index offending) set out in State of New South Wales v Harrison (Preliminary) [2022] NSWSC 335 at [10]-[15]:

Court appointed experts

1. [22]

   The Court obtains substantial assistance from recently conducted, thorough and independent assessments by appropriately qualified psychiatrists and psychologists. The need for these assessments and the centrality of their role is enshrined in the Act as they must be obtained if a final order is to be considered. Given the Court has to assess the current risk presented by a defendant, outdated and differently directed expert assessments may need to be given less weight than these recent assessments.

2. [23]

   Aspects of the history taken from the defendant by Dr Rodriguez in 2022 are very concerning and exhibit ongoing lack of insight, victim blaming and minimisation. In respect of the 1985 to 1986 offending, the defendant asserted that his [REDACTED], aged 8 or 9 years at the time, “ignored his pleas for her to stay away.” He described the offending as involving “playing with her sexually by rubbing me penis around her body” and persisting “for a few times over a couple of years, probably once a month”. He asserted that his [REDACTED] used to “laugh and giggle” such that it was his impression at the time that she enjoyed the experience. He said he “remained confused” about the offending, stating he “could not reason with it” and “it was just one of those things that happen”, but that he regretted the offences and was “disgusted” with himself. When asked about his understanding of the effect his abuse had on his child, he deflected stating that he had not seen her since 1998, (when her mother died) and he did not wish to have any contact with her.

3. [24]

   In respect of the index offending, he reported the victim as getting undressed in front of him on a number of occasions and “initiating” sexual activity. He reported starting to have sexual intercourse with his child when she was aged around 7 years, alleging that he believed that she was experienced sexually and had “done it for a number of years” with others. He later said the victim was aged around 10 years when the sexual activity commenced.

4. [25]

   He denied committing the 2020 offending against the young male despite having been convicted of that offending.

5. [26]

   Dr Rodriguez stated that the defendant showed a limited vocabulary consistent with the effects of traumatic head injury, that he provided a “limited narrative” and struggled to express complex issues. His cognitive function in terms of processing speed, memory and attention were somewhat poor. There were no psychotic features or depressive or anxiety symptoms.

6. [27]

   In Dr Rodriguez’s opinion, the defendant suffers from a Minor Neurocognitive Disorder because he manifests symptoms of executive dysfunction due to damage to discrete areas of the brain in the prefrontal cortex. This condition is lifelong, and not reversible and is likely to result in persistent poor decision-making, mood dysregulation and disinhibition. He is also unlikely to achieve insight into his offending.

7. [28]

   Dr Rodriguez also considered the defendant meets the criteria for Paedophilic Disorder because his sexual offences suggest he has engaged in sexual arousal to children, incest and extrafamilial, with both sexes. There have also been elements of grooming behaviour present in his offending which is a clinical identifier of an entrenched paedophilic interest. Dr Rodriguez noted that paedophilic disorders are resistant to change and are a relapsing, lifelong condition. Dr Rodriguez also noted that individuals with paedophilic disorders have been found to be at a higher risk for sexual reoffending than those individuals without the disorder.

8. [29]

   Dr Rodriguez also noted that in his view the defendant has an Alcohol Use Disorder but in remission.

9. [30]

   Dr Rodriguez concluded that the defendant “is highly likely to sexually re-offend against vulnerable individuals” and poses a risk for committing a further serious sexual offence.

10. [31]

    Dr Rodriguez conducted a static risk assessment of the defendant’s risk of future sexual offending using the STATIC-99R Risk Assessment tool. The STATIC-99R is a ten-item actuarial assessment instrument and is the most widely-used sex offender risk assessment instrument in the world. On Dr Rodriguez’s assessment, the defendant received a score of three, placing him within Risk Level III, or the Average risk category.

11. [32]

    Dr Rodriguez also conducted a risk assessment of the defendant using the Risk of Sexual Violence Protocol, (RSVP), (a structured professional judgment tool, utilising a clinician’s experience and informed by objective, evidence-based analysis) and identified a number of risk factors including:

12. [33]

    Overall, based on the RSVP, Dr Rodriguez assessed the defendant as falling within a group of offenders at a moderate risk for sexual offending against minors, both female and male but he does not consider that any actuarial or dynamic risk assessment can accurately estimate the defendant’s level of sexual offending risk, concluding that “his risk will remain unacceptably high should he have access to a minor.”

13. [34]

    In terms of the duration of the ESO, Dr Rodriguez considers it would need to be for a period of 5 years, noting that the defendant’s clinical conditions are not likely to change and that the only avenue for managing the defendant in the community is comprehensive supervision and monitoring to prevent access to potential victims. In particular, given the defendant’s diagnoses, Dr Rodriguez is of the view that the defendant should never be in the company of a child without supervision.

14. [35]

    In respect of the offending against his [REDACTED] and the other child he abused over a long period, the defendant, again in 2022, provided to Dr Smith an account minimising his conduct and blaming his victim, noting that he “shouldn’t have been doing it... playing around with her and she was enjoying it” and “she used to grab hold of me by the penis and play with it” and that “the only reason I got in trouble for it was that DOCS moved in on the mother and father, that they weren’t keeping the house clean”. He also reported that the victim “never said that she didn’t want it anymore”. When challenged in relation to the incident in the shower (Count 5 - where there was active resistance), he said that “her brother came in and started mouthing off at her, she told him to go away.” (This is contrary to the agreed facts tendered on Sentence which stated that the child screamed when he inserted his penis into her, and her brother rescued her and punched the defendant).

15. [36]

    The defendant denied the 2020 offending with the male child and contended that “the accusation was made and I was just charged with it because of the other sex offences.”

16. [37]

    Dr Smith observed no symptoms consistent with a depressive syndrome and no abnormalities of thought flow. He noted the defendant’s repeated use of “stock phrases”, concreteness in thinking as well as answers that were often off-topic, but Dr Smith concluded that there are no significant issues with the defendant’s formal memory.

17. [38]

    Dr Smith concluded that the defendant had significant issues with insight and judgment, as evidenced by displaying defence mechanisms such as denial and rationalisation in relation to his behaviour and offending.

18. [39]

    Dr Smith diagnosed Complex Post Traumatic Stress Disorder, referencing his physical and sexual abuse in his formative years.

19. [40]

    Dr Smith also considered that the defendant meets the criteria for Paraphilia, specifically Paedophilic Disorder, given his offending against, and admission to attraction to, female children. Dr Smith noted that this attraction appears to motivate his offending behaviour.

20. [41]

    Dr Smith noted that it is possible that the defendant has cognitive conditions secondary to his head injury, although defers to formal diagnosis of this. He also noted that it is possible the defendant’s head injury contributed to the offending behaviour by reducing inhibition.

21. [42]

    Dr Smith assessed the defendant’s risk of future sexual violence using the RSVP version 2.

22. [43]

    Overall, Dr Smith assessed that the defendant’s risk of future sexual violence “in specific circumstances, given the occurrence of it before, should be considered high.” A list of over thirty factors considered relevant by Dr Smith include:

23. [44]

    Dr Smith also noted the defendant’s head injury, concluding that although the impact of it is unclear, and while the defendant does not qualify for a specific personality disorder, he does exhibit “an emotional style that was characterised by detachment, lack of anxiety, lack of empathy and lack of remorse”.

24. [45]

    Dr Smith summarised the “salient points” of his assessment of the defendant as follows:

25. [46]

    Dr Smith considered the defendant’s risk scenarios would involve situations where he has access to children, particularly female children, even if he is only unsupervised for a short time period. The defendant may seek out means by which he has access to children, such as babysitting.

26. [47]

    Dr Smith is of the view that management under an ESO is appropriate because it would assist in reducing the likelihood of the defendant committing another serious offence. There needs to be intense restriction to the defendant’s access to children. Regular monitoring should be able to identify the presence of risk factors associated with the defendant’s offending, such as non-compliance with a direction, which allows him to access children.

Reports and assessments of other psychologists and/or psychiatrists or medical practitioners as to the likelihood of the defendant committing a further serious offence; reports of psychologists or others applying statistical or other risk assessments regarding persons with histories and characteristics similar to the offender

1. [48]

   Psychologists, Ms Cieplucha and Mr Ardasinski prepared a risk assessment report in October 2021. They concluded there were present issues with deviant sexual interests and that the defendant expressed little motivation to increase his engagement in pro-social leisure activities. They concluded he requires strict monitoring to prevent opportunity for victim access.

Corrective Services Risk Management Report(s) re management in the community

1. [49]

   The risk management report of Shantelle Hodgkinson dated 8 December 2021 noted at that stage, the defendant’s compliance with parole and the CPPO appeared to be “adequate”, but noted limited insight into his offending behaviour. The report explained that a schedule of movements was important because it allows the DSO to proactively assess and manage risk in relation to proposed activities, and the DSO can encourage the defendant to plan pro-social activities, and modify those plans to mitigate any high risk situation the defendant creates.

Treatment and rehabilitation programs offered in custody and the defendant’s participation in those

1. [50]

   The defendant attended MISOP in custody (the “Medium Intensity Sex Offender Program”), but it appears to have little effect on his thinking or attitudes given his 2020 offending and his continued minimisation of his offending against children, articulated to both Dr Rodriguez and Dr Smith in April 2022.

What is the likelihood that the defendant will comply with the ESO obligations?

1. [51]

   This remains to be seen given that he has already breached the ISO. A full suite of conditions to proactively check and monitor his movements is necessary, given his attitude to his offending and his dishonesty and lack of compliance so far.

What has been his compliance so far with prior ESO or parole? His compliance with his obligations under child protection legislation?

1. [52]

   The defendant failed to comply with conditions of his ISO very soon after it was imposed. He has also failed to comply with his obligations under the child protection legislation.

2. [53]

   Within 15 months of release on parole he sexually assaulted an 11 year old boy he accessed in his home via the boy’s grandmother. He was convicted of that offending but still denies it occurred.

Pattern of offending and views of Sentencing Court and any other relevant information

1. [54]

   There have been convictions (and imprisonment) for possession of stolen property in 1973 and some firearms and ammunition possession offences in 1986. There were also convictions for larceny and receive stolen property in 2001 and drive mid-range PCA in 2004.

2. [55]

   The sexual offending against children in 1986, 1999 to 2008 and 2020 evidence ongoing paedophile interest and activity. For the persistent offending against the child in his care between 1999 and 2008, the remarks on sentence of Nicholson J include a finding that the defendant has no insight and his claims of contrition and remorse were untested.

Does the defendant pose an unacceptable risk of committing another serious violence offence if there is no ESO?

1. [56]

   The evidence tendered satisfies me to a high degree of probability that the defendant does pose an unacceptable risk of committing a serious sexual offence if not kept under supervision under the order, and so the statutory test is satisfied.

2. [57]

   The gravity and consequences of the risk that may eventuate are significant. The defendant’s risk scenarios are described as sexual contact that may include hands on offences involving simulated or actual penetrative sexual acts on young children around the age of 10 [1] . That risk arises where he has access to children, even if unsupervised for only a short period of time, (such as the offending in 2020 where the boy’s grandmother briefly left the room). The potential long term adverse effects associated with child sexual abuse is well-known and accepted by the Courts [2] . That risk, even if assessed as “moderate”, is unacceptable in this man’s case.

Should an ESO be made?

1. [58]

   Pursuant to s. 9(1) of the Act, the Court may determine an application for an ESO by making an ESO or dismissing the application. The Court therefore retains a residual discretion not to make an ESO, even in circumstances where the statutory preconditions are made out. In determining whether or not to make an order, the safety of the community must be the Court’s paramount consideration: s. 9(2).

2. [59]

   In determining whether or not to make an order, the Court must also have regard to the matters set out in s. 9(3) of the Act, together with any other matter it considers relevant.

3. [60]

   The question as to whether to impose an ESO can be a complex one, involving as it does, a weighing and balancing of risk and unknowns, against incursions into the liberty of a person who has already served his or her sentence(s) for prior offending.

4. [61]

   This was aptly described by Gleeson JA said in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57at [148]-[149]:

5. [62]

   I have concluded that an ESO should be made. I entirely accept the plaintiff’s persuasive written submissions on this question:

6. [63]

   The determination as to whether the defendant poses an unacceptable risk has to be understood in the context of the Act’s purpose in ensuring the safety and protection of the community. The defendant’s mode of offending, by building relationships with adults who have access to young children, and grooming those children (however briefly) before offending against them, is likely to make it difficult to detect and ensure the safety of young children in the community in the absence of an order. Given the experts’ opinions that his risk is, in effect, any time he has unsupervised access to children, this risk is a very significant one. I am well satisfied that an ESO ought to be made, with conditions that address that risk.

Appropriate conditions and length of ESO

1. [64]

   The defendant has already demonstrated a willingness to keep accessing children and offending against them. His breach of parole by offending in 2020 and his failure to comply with his ISO in 2022 and the exhibited tendency to lie and minimise his conduct, show poor prospects that he will honestly comply with conditions. He needs checking and pro-active management.

2. [65]

   For that reason his ESO must include a schedule of movements so that effective planning, checking and monitoring can be deployed before further harm is done to children by the defendant further sexual offending.

3. [66]

   A number of observations should be made:

4. [67]

   In my view a 4 year period is required to ensure the safety of the community, bearing in mind the protective nature of the jurisdiction which the Court is exercising. There is a very real prospect that the defendant’s risk of committing a further serious sex offence will remain unacceptably high, even after 4 years on an ESO, however, the 4 year period is not so oppressive as to adversely impact on the defendant’s prospects of rehabilitation, having regard to the degree of flexibility in many of the conditions imposed, to allow for a reduction in the intensity of supervision, if, and when, the defendant demonstrates ongoing compliance and a commitment to rehabilitation.

5. [68]

   I am satisfied that to order a 4 year period of extended supervision serves both the safety of the community and promoting rehabilitation of the offender in providing for a sufficiently long period to demonstrate his capacity to remain free from sexual offending, but with the assistance of close supervision and monitoring.

6. [69]

   Section 11 of the Act provides for the Court to impose conditions that it considers appropriate, and sets out a series of the types of conditions that could be considered to be appropriate.

7. [70]

   The following observations of Basten JA in Lynn at [129] to [130] are salient to the Court’s consideration at this stage of the determination:

8. [71]

   In this case, substantial agreement was reached about the form of the conditions, but challenge was made to the appropriateness of the three conditions requiring the defendant to prepare and abide by a schedule of movements.

9. [72]

   Counsel for the defendant submitted that the suite of other (agreed) conditions provides all the supervision necessary to contain the relevant risk, and a schedule of movements is irrelevant to risk, because all the offending was associated with grooming over a period and occurred domestically, not opportunistically while out in the community.

10. [73]

    That is not a persuasive submission in this man’s case. Any access at all to children is a risk. The experts make that very clear. He has already demonstrated willingness to act in defiance of conditions imposed. He needs to be closely supervised and monitored.

11. [74]

    It would not be consistent with the purposes of the Act to impose a package of conditions that holds a risk of inadequate supervision because there is no in-built basis for a DSO to predict and manage Mr Harrison’s behaviour, should he begin to stray into potential risky behaviours or associations due to the lack of planning and scheduling of pro-social activities.

12. [75]

    I consider that conditions requiring the preparation of, and compliance with, a schedule of movements to be appropriate, indeed necessary at this stage. If and when the defendant demonstrates compliance, the DSO can consider an appropriate stepping down of those requirements.

Orders

1. [76]

   I make the following orders:

   1. (1)

      1(b) Pursuant to s 11 of the Act, the defendant, for the period of the extended supervision order, is to comply with the Conditions set out in the Schedule to this Judgment.