State of New South Wales v Presta (Final)

1. [1]

   HIS HONOUR: By summons filed on 2 August 2021, the State of New South Wales (“the plaintiff”) sought final orders pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that the defendant, Bruno Presta, be subject to an extended supervision order (“an ESO”) for a period of two years and, pursuant to s 11 of the Act, that he be directed to comply with certain conditions that are set out in a schedule to the summons.

2. [2]

   On 20 August 2021, Cavanagh J made the preliminary orders that were sought in the summons, which included an interim supervision order (“an ISO”) for a period of 28 days, to commence on that date. There were three further ISOs, comprised of two for a period of 28 days and one for a period of eight days, with the last ISO expiring on 19 November 2021.

3. [3]

   The hearing of the present application occurred on 11 November 2021 and, in view of the statutory unavailability of an ISO beyond three months, I gave my determination on 19 November 2021. That determination comprised an ESO for a period of 12 months from the date of the order, an order that the defendant comply with an attached schedule of conditions and an order restricting access to the court file without leave of a judge of the Court. These are my reasons for those orders.

The defendant’s background

1. [4]

   The defendant is aged 52. His twin brother was killed in a car accident when they were aged 16. The defendant was injured in the same accident, suffering a fractured pelvis, ribs and jaw. He has one surviving sibling, an older sister. His father is deceased and he is presently residing in the community with his mother.

The defendant’s criminal offending

1. [5]

   The only entries in the defendant’s criminal record prior to the index offences are matters dealt with in the Children’s Court, for a count of “enter with intent” when he was aged 12, for which he received a recognisance for a period of 12 months, and two counts of stealing when he was aged 14, for which he received a recognisance for a period of 18 months for each offence.

2. [6]

   On 4 November 1998, the defendant was sentenced by O’Reilly DCJ for five counts of kidnapping contrary to s 90A of the Crimes Act 1900 (NSW) and 21 counts of aggravated sexual assault, contrary to s 61J of the Crimes Act, with a further ten offences taken into account on Form 1 certificates, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the index offences”). The defendant received wholly concurrent sentences, the longest (and thus effectively the overall sentence) being 19 years imprisonment dating from 14 November 1997 and expiring on 13 November 2016 with a non-parole period of 14 years and 3 months, expiring on 13 February 2012.

3. [7]

   The defendant sought leave from the Court of Criminal Appeal to appeal the severity of the sentence. Leave was granted and the appeal was dismissed: R v Presta [2000] NSWCCA 40. The Court recited the facts on which the defendant had been sentenced by O’Reilly DCJ, which were to the following effect.

4. [8]

   Between 28 March 1997 and 2 November 1997, when the defendant was aged 27 and 28, he abducted five males at gunpoint, each from a public place either late at night or early in the morning. He blindfolded and secured them, on occasion with handcuffs, and took them to his residence where he tied them to a bed and violently sexually and non-sexually assaulted them in a fashion that could reasonably be described as sadistic in motivation and torturous in effect. Each male was returned to a public area within, it would seem, a day or so. Two were aged 15. Each was drugged, eventually causing them to lose consciousness and not regain it until after the defendant had left them in a public area. One was a 17 year old who lost consciousness through the ordeal and awoke in a parkland. Another was an 18 year old. One was a 22 year old male who the defendant tackled while he was on an early morning run and then abducted in the same fashion, at gunpoint. The extent of the assaults was established by videos that the defendant had taken of each episode that were seized during a search of his residence, following his arrest.

5. [9]

   In his remarks on sentence, O’Reilly DCJ noted that in view of the seriousness of the offending, the defendant’s plea of guilty “does not carry much weight”. His Honour found that “there was not much in the way of remorse so far as the victims were concerned”. His Honour did not identify any special circumstances warranting an adjustment of the non-parole period to the total sentence pursuant to s 5(2) of the Sentencing Act 1989 (NSW).

Post-release history and reasoning for this application

1. [10]

   Although the non-parole period expired on 13 February 2012, the defendant was not considered suitable to be conditionally released to parole until May 2016, being six months before the expiration of his total sentence. His parole was subsequently revoked, apparently due to an absence of suitable accommodation.

2. [11]

   On 22 August 2016, Wilson J ordered that the defendant be subject to an ESO for a period of five years, commencing on that date and thus expiring on 21 August 2021: State of New South Wales v Presta (No 2) [2016] NSWSC 1154 (“the 2016 hearing”).

3. [12]

   On 9 July 2021, the defendant was arrested and charged with two counts of failing to comply with conditions of his ESO. On 20 June 2021, he had failed to notify his Departmental Supervising Officer (“DSO”) of the identity and address of three health care practitioners and he had used prescription medication that was not prescribed. The defendant entered a plea of guilty to the first charge and was granted bail on the second charge, which is set down for hearing in July 2022. He has continued to reside in the community since that time. The plaintiff has stated in submissions that the first admitted breach and the alleged second breach were sufficiently serious, in view of a nexus between the defendant’s substance abuse and the commission of the index offences, to prompt the plaintiff to commence the current proceedings for a two-year ESO.

Relevant provisions of the Act

1. [13]

   The Act relevantly provides as follows:

2. [14]

   The defendant did not dispute that the statutory preconditions are established, leaving s 5B(d) in contention. I note that the Court must be independently satisfied that the statutory preconditions are met. I am so satisfied, for the following reasons.

3. [15]

   In relation to s 5B(a), the term “serious offence” is defined in the Act as follows:

4. [16]

   Section 5B(a) is satisfied by the five offences of aggravated sexual assault, contrary to s 61J of the Crimes Act, which had a maximum penalty of 20 years imprisonment.

5. [17]

   In relation to s 5B(b) of the Act, the term “supervised offender” is defined in s 5I:

6. [18]

   Section 5B(b) is thus satisfied. As to s 5B(c), the balance of s 5I is also satisfied.

7. [19]

   I return to consider s 5B(d) and note that the meaning of “a high degree of probability that the offender poses an unacceptable risk” is qualified by s 5D of the Act:

8. [20]

   I note that, pursuant to s 5B, the power to make an ESO is discretionary; the Court may make an order for an ESO if the four prerequisites are satisfied.

9. [21]

   Pursuant to s 6(3) of the Act, an application for an ESO must be supported by documentation that (a) addresses each of the matters referred to in s 9(3) of the Act; and (b) includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence. Consequent upon other orders made by Cavanagh J, the defendant has been examined by Dr Andrew Ellis, forensic psychiatrist, and Dr Katie Seidler, a clinical and forensic psychologist, both of whom gave evidence on the current application. Accordingly, I note that the latter requirement was complied with.

10. [22]

    The Act stipulates objects and a paramount consideration to be taken into account when determining an application:

11. [23]

    The plaintiff has tendered statements made by two of the victims of the index offences. Pursuant to s 21A(4) of the Act, I have taken each statement into account in consideration of the application.

Sections 9(3)(b), (c) and (d1) of the Act: forensic reports and evidence

1. [24]

   Reports have been prepared pursuant to s 7(4) of the Act which are relevant to all matters identified in s 9(3) except for ss 9(3)(h) and (h1).

2. [25]

   Dr Ellis assessed the defendant on 1 October 2021. Dr Ellis took a history from the defendant that suggested that he was enduring a high level of anxiety at that time. In his report dated 18 October 2021, Dr Ellis stated:

3. [26]

   The defendant said that he had resumed smoking tobacco eight months before, not having done so since the age of 28, and was smoking one or two cigarettes daily.

4. [27]

   As noted, the defendant has previously reported that he was raped when he was aged 14, but he was not prepared to discuss that matter or the index offences with Dr Ellis:

5. [28]

   The interview was terminated at the defendant’s request at that point. Dr Ellis explained in his evidence that this was about halfway through the two hours that Dr Ellis had set aside for the assessment.

6. [29]

   The defendant informed Dr Ellis that, following the motor vehicle accident when he was aged 16 in which his twin brother died, he had amnesia for two weeks, indicating to Dr Ellis a serious head injury. The defendant reported doing well in academic subjects at school, having friends and not having disciplinary issues at school. Nevertheless, the defendant reported that he stopped attending school after the car accident. Shortly afterwards, following an overdose of painkiller medication, he was briefly admitted to Bankstown psychiatric unit.

7. [30]

   The defendant reported that he moved out of home at age 23. His longest job was held for 10 years, as a loss prevention officer for a supermarket.

8. [31]

   Dr Ellis observed:

9. [32]

   The defendant has taken 20mg of the antidepressant fluoxetine for approximately 36 years. He receives monthly injections of buprenorphine, which is an opioid replacement medication. Dr Ellis observed that the defendant sees “corrective services” and private psychologists every four weeks and attends an online group for substance abuse three times each week.

10. [33]

    The defendant suffers from asthma. In 2019, he had a heart attack, resulting in the insertion of a stent.

11. [34]

    Dr Ellis diagnosed the defendant as having a sexual sadism disorder, based on the index offences. Although they occurred over 20 years before and the defendant had not engaged in other acts of sexual sadism, Dr Ellis expressed concern that the disorder was quiescent:

12. [35]

    In addition, Dr Ellis diagnosed the defendant as having a substance use disorder and a personality disorder.

13. [36]

    As to the level of risk of the defendant committing a serious offence, Dr Ellis stated that deviant sexual arousal and personality disorder are factors consistently identified with sexual reoffending:

14. [37]

    Although the defendant’s anxiety and substance abuse were not, in themselves, factors tending towards sexual reoffending, they were nonetheless potentially contributing factors to recidivism for the defendant:

15. [38]

    Dr Ellis concluded as follows:

16. [39]

    Dr Ellis considered that a continuation of the ESO was appropriate. Ideally, monitoring of the defendant would be reduced over time:

17. [40]

    Dr Ellis thought a further period of two years of supervision was reasonable:

18. [41]

    Dr Seidler assessed the defendant on 5 October 2021, that is, four days after Dr Ellis’ examination of him, and produced a report dated 13 October 2021. Dr Seidler noted that the defendant’s background had already been covered extensively and stated that she would focus “on matters that are more relevant to understanding [the defendant’s] current functioning and future risk”, commencing with a detailed review of the documentation provided to her. First, she referred to two ESO reports by Community Corrections Officers in the Metropolitan Extended Supervision Team. One was by Ms Newby, dated 18 August 2019. Dr Seidler noted that Ms Newby reported on the defendant’s progress at that time as follows:

19. [42]

    A similar ESO report was provided by Mr Glover, dated 20 October 2020. He observed that the defendant’s progress continued to be positive, that he was stable on an opioid substitution treatment program and that his:

20. [43]

    Dr Seidler devoted a significant part of her review of documentation to a close assessment of a series of reports by a senior psychologist with NSW Corrective Services, Samuel Ardasinski. While it is not always helpful to reproduce lengthy passages from tendered reports, the following passages concern what became the central issue of fact in the hearing of the application. That issue was, namely, whether despite the defendant’s seeming progress and compliant, essentially law-abiding behaviour during his first ESO, which as noted lasted five years, he was not forthcoming about his continuing interest in and vulnerability to risk factors for further violent sexual offending.

21. [44]

    Dr Seidler noted that the assessment of the defendant’s level of risk, based on static factors alone, was high. She excerpted a passage from a report by Mr Ardasinski, dated 22 February 2016, who contextualised that finding with the defendant’s “minor prior criminal history”:

22. [45]

    Mr Ardasinski noted, in the same report, that there was an Offender Integrated Management System (“OIMS”) report which referred to a concerning aspect of the records in respect of the defendant:

23. [46]

    Mr Ardasinski identified the following risk factors:

24. [47]

    Dr Seidler noted that in an ESO Completion Report dated 3 February 2021, Mr Ardasinski recommended that:

25. [48]

    Dr Seidler extracted a passage from the same report, which was Mr Ardasinski’s last report before the defendant was charged with the two breaches of his ESO conditions:

26. [49]

    Dr Seidler also extracted passages from Mr Ardasinski’s most recent report, dated 21 July 2021, being 12 days after the defendant was arrested and charged:

27. [50]

    Dr Seidler noted that, in the following passage, Mr Ardasinski offered a revised opinion:

28. [51]

    Dr Seidler noted:

29. [52]

    Dr Seidler quoted an opinion from the ESO Completion Report by Mr Glover, dated 17 March 2021, which was more reserved than that expressed in Mr Ardasinski’s ESO Completion Report. Mr Glover referred to the defendant’s “superficial” engagement with his DSOs at times and his “ability to regulate his emotional responses when he feels challenges in an interpersonal interaction”, such as by “resorting to tears” to avoid issues during interviews that he did not want to discuss. Nevertheless, Mr Glover concluded at that stage that a further ESO was not warranted.

30. [53]

    Dr Seidler also referred to the Risk Management Report for the application prepared by Joshua Begg, Community Corrections Officer, Metropolitan Extended Supervision Team, dated 30 July 2021. In 2019, the defendant was given a formal direction for breaching a condition of his ESO after admitting to the abuse of Endone. Mr Begg stated:

31. [54]

    Dr Seidler referred to the defendant’s recent charges:

32. [55]

    Dr Seidler noted a report dated 16 August 2021 by another forensic psychologist to the effect that the defendant at that time was regularly attending a psychiatric service for ongoing management of a bipolar disorder, a generalised anxiety disorder and a major depressive disorder. He was described as engaging well with the service and making good progress.

33. [56]

    The defendant reported that he had also been consulting with Forensic Psychology Services (“FPS”) for approximately eight years and continued to have a session every six weeks, although at the time of the interview his engagement with FPS was intended to assist him in transitioning from his ESO upon its expiration, which would mean that the counselling through FPS would cease.

34. [57]

    A letter from a treatment worker at Odyssey House, also dated August 2021, stated that the defendant was engaged in its outpatient maintenance program three days a week.

35. [58]

    Dr Seidler referred to the defendant’s living situation. The defendant has resided with his mother since 2018 and is her primary carer. His sister lives next door and is supportive of him, as is his extended family.

36. [59]

    The defendant told Dr Seidler that he had suffered from anxiety since his twin brother was killed and found it difficult to control this anxiety without abusing medications, although he claimed some success with recent therapies.

37. [60]

    Dr Seidler noted that the defendant acknowledged that he relapsed recently with abuse of Valium, stating that he had not used it previously. It had been prescribed to him to manage his anxiety. Initially, he took it as prescribed, but over time he took it not as prescribed during a period of heightened anxiety due to a medical incident with his mother.

38. [61]

    As to remorse, Dr Seidler stated:

39. [62]

    Dr Seidler offered this overview of the defendant’s current status, in terms of his anxiety and how it was relevant to the risk of him reoffending:

40. [63]

    Dr Seidler administered the STATIC-99R to the defendant, which yielded a score of “four”. This score placed the defendant in the “Above Average” risk category, in terms of the risk of him committing a sexual offence within five years of release. Dr Seidler also applied the STATIC 2002R which she considered appropriate “in cases such as this” as a means of providing the Court with a “detailed understanding of the risk an offender poses to the community”. The defendant again scored “four” which, with this instrument, placed him in the “Average Risk range at Level III”. Dr Seidler explained that this meant that out of 100 offenders, 56 would have a lower score, 15 would have the same score and 29 would have a higher score.

41. [64]

    Dr Seidler applied two instruments to assess the defendant’s dynamic factors. One was the Risk of Sexual Violence Protocol, or RSVP, and the other was the STABLE-2007, which assesses stable dynamic risk factors. Both instruments suggested that the defendant was at a moderate risk of sexual reoffending. Dr Seidler also administered the Structured Assessment of Protective Factors for Violence Risk – Sexual Offence Version (“SAPROF-SO”).

42. [65]

    Dr Seidler noted that the defendant had continually denied a deviant sexual motivation to his offending and considered that it is unclear to what extent that denial may be related to risk “even though it has long been assumed by assessing professionals that there is a connection to future risk”. Dr Seidler explained that the SAPROF-SO is designed to consider protective factors over a six month period, as it is assumed that these factors can change along with changes in a person’s life circumstances. She found that the defendant was “rated as having a range of strong protective factors that will likely act to inoculate against risk”.

43. [66]

    Dr Seidler summarised the defendant’s level of risk as follows:

44. [67]

    Dr Seidler did not consider that the defendant required a further ESO. She considered that the other community-based services and support mechanisms that are available to him were sufficient, with one proviso:

45. [68]

    The defendant was examined by Dr Allnutt and Dr O’Dea, forensic psychiatrists, for the purposes of the 2016 hearing. They diagnosed the defendant as having a paraphilic disorder, a sexual sadism disorder and a sexually sadistic paraphilic disorder.

46. [69]

    It was apparent from the forensic experts’ reports that they differed as to whether a further ESO was required, which reflected their different opinions as to the defendant’s current level of risk.

47. [70]

    Dr Ellis, Dr Seidler, Dr Allnutt, Dr O’Dea and Mr Ardasinski had diagnosed the defendant as having a sexual sadism disorder, at least at the time of the index offences. Dr Ellis and Dr Seidler agreed that the primary motivator for the defendant having committed the index offences was sexual sadism. However, while Dr Seidler suspected that the defendant’s sexual sadism had resolved, Dr Ellis was less certain.

48. [71]

    Dr Seidler explained that, if the defendant’s sexual sadism persisted, it would have emerged during his incarceration:

49. [72]

    Dr Ellis was asked for his opinion about the essence of this passage of evidence by Dr Seidler. He said, referring to a sexual sadism disorder:

50. [73]

    Dr Seidler considered that the defendant’s anxiety was “far more informative” in respect of his recent admitted offending, involving breaches of his ESO. Dr Seidler considered that the admitted offence and circumstances of the authorities’ intervention did not significantly elevate the level of risk posed by the defendant:

51. [74]

    Dr Ellis, on the other hand, considered that the defendant’s admitted offence was concerning: “there’s something there that is driving his seeking out of sedating substances, and so I would consider it a risk factor of concern”. Dr Ellis noted that the drugs the defendant preferred were benzodiazepines, which are sedatives, and addictive. Dr Ellis elaborated:

52. [75]

    Dr Seidler thought that a link between the admitted offence and the defendant’s level of risk of further sexual offending was “tenuous”.

Consideration

1. [76]

   In my consideration of the application, I was cognisant of the terms of ss 5B(d) and 5D of the Act and had regard to the matters identified in s 9(3) and the two victims’ statements.

2. [77]

   The defendant did not commit any criminal offences of significance before the index offences and has not sexually offended in the time since then, which is a period of over 23 years. At the time of the recent charges, he was within months of completing a five-year ESO.

3. [78]

   However, some aspects of the index offences warrant concern that if the defendant was to reoffend in a similar fashion, the consequences would be catastrophic for the victim or victims. The offences involved planning and repeated offending over a period of seven months. Two of the victims were aged 15 at the time and another two were aged 17 and 18. The terror that they were subjected to, aside from the physical pain and psychological damage, was extreme.

4. [79]

   Dr Ellis and Dr Seidler differed in their opinions as to whether the Court could be satisfied that the defendant’s previously diagnosed sexual sadism disorder had resolved or at least that the defendant’s impulses of that nature were managed to a point that the level of risk was minimal. Dr Ellis’ evidence was that an element of uncertainty has been introduced by the defendant’s secretive pursuit of prescription medication. I accept that this is a troubling development. The defendant’s mental state is, at best in my view, barely managed. He suffers from anxiety which has its roots in profoundly traumatic events in the developmental phase of his life. Although he has a range of strong social and mental health supports, he was unable to resist the temptation of substance abuse as a therapeutic response which, if undetected for a significant period of time, carries a risk that his fragile state of mental equilibrium will unravel and lead to the commission of another serious offence, as defined in the Act.

5. [80]

   Accordingly, I was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision. That being so, I moved to consider the appropriate length of the ESO and concluded that a period of 12 months was appropriate. I was not persuaded that the longer period sought by the plaintiff was necessary. The immediate issue that the defendant is obliged to address is substance abuse. An ESO for that period should be sufficient.

Orders

1. [81]

   On 19 November 2021, I made orders as follows: