State of New South Wales v Wiggins (a pseudonym) (Preliminary)

1. [1]

   HIS HONOUR: By a summons filed on 3 November 2023, the plaintiff seeks interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). Orders are sought for the appointment of two forensic psychiatrists and/or psychologists to examine the defendant and furnish their reports to the Court, and directing the defendant to attend their examination: s 7(4) of the Act. The plaintiff also seeks orders subjecting the defendant to, and obliging him to comply with, an interim supervision order (an ISO) for a period of 28 days from 10 February 2024: ss 10A, 10C(1) and 11 of the Act. That date, the plaintiff submits it is the expiration date of an extended supervision order (an ESO) that was made by Button J on 10 February 2022: State of NSW v Wiggins (a pseudonym) (Final) [2022] NSWSC 67. There is a degree of controversy between the parties as to when the ESO commenced, since his Honour did not expressly nominate a date. I will return to that issue at the end of this judgment.

2. [2]

   By way of final orders, the plaintiff seeks an ESO for a period of 2 years and an order requiring the defendant’s compliance with it: ss 5B, 9(1)(a) and 11 of the Act. Finally, an order is sought that would prevent access to the Court file by a non-party without prior notification to the parties, so as to allow them an opportunity to be heard.

3. [3]

   The defendant was assigned the pseudonym “Wiggins” by Button J, to protect the identification of his daughter who is a victim of one of his offences. An order to that effect in these proceedings was also made by Yehia J by consent on 14 November 2023. An amended summons was filed in Court at the hearing of this application, on 11 December 2023, that adopts that pseudonym and has modifications to three of the proposed conditions of the ISO, if one is made.

Relevant statutory provisions

1. [4]

   Sections 5B(a)-(c), 6 and 10A of the Act set out the relevant timeframe, status of the defendant and documentation which must accompany the application. Section 7(4) of the Act provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, it must make orders of the type sought by the plaintiff for the appointment of forensic experts. If the Court is not so satisfied, it must dismiss the application: s 7(5) of the Act. Accordingly, although this is a preliminary hearing, it is necessary to evaluate the sufficiency of the supporting material to justify the making of an ESO, pursuant to the relevant statutory test, which is embodied in s 5B(d) of the Act:

2. [5]

   A “serious offence” is defined in s 4 of the Act as being either “a serious sex offence” or “a serious violence offence”. It is not suggested by the plaintiff that there is a risk of the defendant committing a serious violence offence; his criminal history suggests that any future serious offending would be of a sexual nature. A “serious sex offence” is defined in s 5(1) of the Act to mean certain offences in the Crimes Act 1900 (NSW), the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth).

3. [6]

   I also note s 5D of the Act, which provides that in determining whether to make an ESO or a continuing detention order, the Court:

4. [7]

   The defendant accepts that the statutory prerequisites for an application for an ISO and ESO are established, and I am independently satisfied that the application meets those requirements.

5. [8]

   The defendant submits that the Court would not be satisfied that the test in s 5B(d) of the Act is established, so that pursuant to s 7(5), the application should be dismissed. In that circumstance, the defendant would seek an order for costs.

6. [9]

   Pursuant to s 10A, if the test provided in s 7(4) of the Act is satisfied, that is, that if it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, and that the defendant’s current supervision will expire before the proceedings are determined, then the court may make an order for an ISO: s 10A(a) of the Act; that is, it is a discretionary power.

The defendant’s background, criminal record and progress under his current ESO

1. [10]

   The material tendered on the application included a joint statement of agreed facts, which has an overview of the defendant’s personal history, sexual offending and treatment, as follows (footnotes omitted):

2. [11]

   I note that the tendered material includes three charge sheets dated December 2022, alleging historical acts of indecency against a child under 16 years, allegedly committed by the defendant in Victoria between 2000 and 2003. The current status of those charges is unclear from the material, although it would appear that they remain outstanding. [

An ESO Completion Risk Assessment Report

1. [12]

   The plaintiff tendered an ESO Completion Risk Assessment Report (RAR), dated 9 March 2023, that was prepared by Tim Wu, who is a psychologist of the Serious Offenders Assessment Unit, Corrective Services NSW (CSNSW). I note Mr Wu did not interview the defendant. Rather, his assessment was based upon an earlier risk assessment report prepared by psychologist Dr Richard Parker dated 3 March 2021, the judgment of Button J dated 10 February 2022, progress notes from FPS, Offender Integrated Management System (OIMS) notes, consultations with the defendant’s Departmental Supervising Officer (DSO) and a Community Sex Offender Programs psychologist, and notes of two formal warnings that were given to the defendant on 7 May 2022 and 3 June 2022. Mr Wu did not undertake a new risk assessment.

2. [13]

   Mr Wu concluded, on the basis of the material, that the defendant’s areas of risk included cooperation with supervision, general self-regulation deficits, and intimacy deficits but not sexual self-regulation deficits. He regarded the defendant’s poor compliance with his conditions of supervision and directives from authority figures as his most salient risk area. He summarised those shortcomings that are noted in the OIMS records as follows:

3. [14]

   On a somewhat more positive note, Mr Wu observed:

4. [15]

   Mr Wu recommended that there be a further ESO:

5. [16]

   Mr Wu summarised the defendant’s level of risk as follows:

A fresh risk assessment report

1. [17]

   A risk assessment report dated 11 August 2023, prepared by Dr Parker, was tendered by the plaintiff. Dr Parker is a senior psychologist with the Serious Offenders Assessment Unit of CSNSW. Dr Parker interviewed the defendant most recently for his report on 8 August 2023.

2. [18]

   Dr Parker recalled that the defendant had previously been assessed as being of average intelligence but doubted that was so: “my impression during interviews and through reading the s 25 materials is of someone who does not function in the average range”. Dr Parker noted research to the effect that a person can score well on formal intelligence tests, but still behave “foolishly”, known as “dysrationalia”. He stated:

3. [19]

   Dr Parker reviewed FPS case notes that indicated that the defendant had engaged with FPS and was cooperative, but had “a tendency to become tangential in conversations and has difficulty internalising advice from others”.

4. [20]

   As to the results of risk assessment instruments that had been administered to the defendant, Dr Parker noted that on 24 April 2023, the defendant had been assessed with the Level of Service Inventory-Revised (the LSI-R), which assesses static and dynamic risk factors that are related to general offending. It yielded a score of 30 out of a possible 54, which placed him in a “medium” range of such reoffending. Dr Parker said:

5. [21]

   In his earlier report, dated 3 March 2022, Dr Parker referred to an assessment of the defendant on the LSI-R in September 2020 that yielded a score of 22 out of a possible 54, which is also classified as being in the “medium” range of general reoffending.

6. [22]

   Dr Parker noted that the STATIC-99R, which is designed to assist in the prediction of sexual recidivism, was administered to the defendant in 2017. He was assessed as having an “average risk” of sexual recidivism, which Dr Parker explained as follows.

7. [23]

   Dr Parker noted that the defendant was assessed in August 2023 with the STABLE-2007, which is an actuarial tool for identifying stable dynamic risk factors for sexual reoffending, which are intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation. His score placed him in the “moderate” risk category, relevant to other male sex offenders. His major risk factors were social influences, deviant sexual interests and cooperation with supervision.

8. [24]

   Dr Parker combined the STATIC-99R and STABLE-2007 results, which yielded an “average overall risk level”. Finally, Dr Parker personally administered the Violence Risk Appraisal Guide-Revised (VRAG-R), which is an actuarial risk assessment tool specifically developed to assess the risk of violent reoffending for serious offenders, including both sexual and violent offenders. The defendant’s score was equal to, or higher than, the score of at least 74 per cent of the construction sample, which placed him in the seventh of nine “bins”. Dr Parker noted that 45 per cent of violent offenders with a similar score reoffended violently within five years, and 69 per cent within 12 years.

9. [25]

   Dr Parker opined that the defendant had targeted victims based on their level of compliance, that is, their inability to resist, rather than because they were specifically children or persons with an intellectual disability. Dr Parker thought that the lack of intimacy in the defendant’s life, consequent to his difficulties in forming long-term consensual relationships, drove him towards vulnerable females. Dr Parker continued:

10. [26]

    Dr Parker thought this harked back to the issues of the defendant’s dysrationalia:

11. [27]

    Dr Parker considered risk scenarios for the defendant:

Other forensic reports

1. [28]

   The plaintiff also relies upon two reports that were prepared for the final hearing before Button J, by a forensic psychologist, Dr Chelsey Dewson, dated 23 November 2021, and by a forensic psychiatrist, Dr Jeremy O’Dea, dated 29 November 2021. Ms Dewson assessed the defendant as having a “moderate” risk of committing a further sexual offence, stating:

2. [29]

   Dr O’Dea diagnosed the defendant as having a personality disorder with significant antisocial traits. He said, referring to the defendant’s 2016 offence against a woman with a moderate degree of intellectual disability:

Current treatment of the defendant

1. [30]

   For the purposes of the exercise of the Court’s discretion pursuant to s 10A(a) of the Act, the defendant relied upon a letter dated 7 December 2023 from a psychologist who has been treating him with cognitive behavioural therapy. She has had 11 sessions with the defendant since 29 December 2022. The defendant was referred to her by his General Practitioner. The defendant accepted that, consistent with the authority of Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], evidence called by the defendant at the preliminary hearing may only go to discretionary matters.

The parties’ submissions

1. [31]

   In submitting that the material establishes an evidentiary basis for the Court to make an ISO, the plaintiff places considerable reliance upon the increase in the defendant’s score on the LSI-R test since it was first administered to him three years ago, his resistance to compliance with the directives of his DSO and his two formal breaches of his ESO.

2. [32]

   The defendant submits that the defendant’s poor compliance with the directions of his DSO pursuant to the conditions of the ESO, while regrettable, does not reflect directly upon the level of his risk of committing a serious offence of a sexual nature. Although he was charged and convicted for disobeying a directive to not have contact with his son, he was subsequently approved to have such contact and his son was in Court supporting him on the hearing of this application. The multiple warnings he received for other breaches that were not the subject of charges also did not involve the commission of sexual offences.

3. [33]

   The defendant notes that he disclosed his casual friendship with Shirley to the DSO and, according to his account of their conversations, he played a protective role towards her. His engagement of a treating psychologist, of his own volition, was evidence of his awareness of his need to continue to address his psychological issues with the benefit of professional help.

4. [34]

   The defendant submitted that in the event that an ISO was not made, he would be supervised in any event pursuant to the CCO. While the level of supervision would not be as extensive (it could not involve electronic monitoring, for example) it would nevertheless provide a level of supervision that would address any risk of the defendant committing a serious sexual offence.

5. [35]

   Alternatively, the defendant submits that the court would exercise the discretion that is available pursuant to s 10A(a) of the Act to not make an ISO.

6. [36]

   The plaintiff submitted that, although the defendant’s disobedience of his DSO’s directives did not involve sexual offending, it was nevertheless consistent with his worsening level of risk of committing a serious sexual offence. In relation to the sufficiency of the CCO, the plaintiff referred to s 89(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act) which expressly excludes electronic monitoring, and s 89(2)(e) of the CSP Act, which only identifies a non-association condition “prohibiting association with particular persons”, which would be inconsistent with a supervisor directing the defendant to not associate with a class of persons, such as children or persons with an intellectual disability.

7. [37]

   The plaintiff submitted that the terms of the conversations between the defendant and Shirley, on his version, were inappropriately intimate.

Consideration and determination

1. [38]

   According to the risk assessment instruments that have been administered to the plaintiff, his level of risk of committing a serious offence, measured against the cohort of like offenders, remains at a “medium” or “average” level. However, Mr Wu and Dr Parker arrived at an almost identical assessment of there being an elevated risk of the defendant sexually reoffending against a vulnerable woman if not for the constraints of the current ESO; see the passages from their respective reports extracted at [15] and [26] above.

2. [39]

   On the basis of the material before the Court, I am satisfied that the matters alleged in the supporting documentation, in particular the defendant’s criminal history of sexual offending, the OIMS notes as to the defendant’s association with Shirley and the opinions of Mr Wu and Dr Parker, would, if proved, justify the making of an ESO. In my view, those concerns warrant an ISO; there is no reasonable basis upon which it would be appropriate to exercise the discretionary power that is available by the terms of s 10A (a) of the Act to not make an ISO.

Relevant conditions of an ISO

1. [40]

   The only proposed conditions of an ISO that are in dispute are those that require the defendant to prepare a schedule of his proposed movements and to adhere to it. It is a current requirement of the ESO which, the defendant submits, occasions him a considerable degree of stress. He submits that, if an issue arose as to his whereabouts, the authorities would have the benefit of tracing his movements by way of the electronic monitoring of him. The plaintiff submits that electronic monitoring effectively depends upon scheduling conditions in order for it to be of benefit.

2. [41]

   I am of the view that the proposed scheduling conditions should be included. They provide a greater degree of assurance that the defendant does not liaise with a prospective sexual partner who he may meet and then cultivate.

The date of commencement of the ESO

1. [42]

   The defendant submits that since the commencement date of the current ESO was not nominated by Button J and the ISO did not expire until 23 February 2022, it cannot be presumed to be the date that the ESO commenced, that is 10 February 2022. Rather, pursuant to s 10(1) of the Act, it must be 24 February 2022. As an example of the application of s 10(1) to a similar situation, see State of New South Wales v Brooks (Final) (No 2) [2023] NSWSC 1369 per Davies J at [16]. An alternative course agreed by the parties is to revoke the ESO from 10 February 2024, and commence the ISO from that date.

2. [43]

   I consider that the terms of s 10(1) of the Act are clear and it is unnecessary to revoke the current ESO. The ISO will commence from 24 February 2024.

Orders

1. [44]

   I make the following orders: