State of New South Wales v Graham James Kay

1. [1]

   HER HONOUR: By way of a Notice of Motion filed on 14 May 2018, the State of New South Wales (“the State” or the plaintiff) seeks to vary an Extended Supervision Order (“ESO”) that was made by Harrison J in this Court on 17 March 2017. The application is made pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006.

2. [2]

   The application was heard on 6 July 2018, with judgment and orders reserved until today.

The Application

1. [3]

   By its Notice of Motion, the State seeks the following orders:

2. [4]

   The defendant does not oppose the following variations sought by the State: conditions 4, 13, 14, 18, 19, 24, 40, 41 and 42. He does oppose these variations: conditions 5, 6-8, 22, 25, 26, 34 and 35.

The Factual and Statutory Background to the Application

1. [5]

   On 26 July 2000, the defendant pleaded guilty before, and was convicted by, Justice RS Hulme of four counts of aggravated sexual intercourse in contravention of s 61J of the Crimes Act 1900 (NSW), committed on 23 December 1995, 28 March 1996, 17 September 1996, and 22 October 1996.

2. [6]

   The offences were perpetrated against three adult females and one female child (the March 1996 offence).

3. [7]

   For the offence committed on 17 September 1996, his Honour took into account on a Form 1 document two further aggravated sexual assaults (committed on 14 May 1996 and 30 May 1996 and perpetrated on adult females) and two offences of threaten to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse (committed on 30 May 1996 and 24 December 1996 and perpetrated against an adult female and a sixteen year old girl, respectively).

4. [8]

   The defendant was sentenced to a total term of imprisonment of twenty years, commencing on 18 February 1997 and expiring on 17 February 2017, with the non-parole period expiring on 17 February 2012.

5. [9]

   On 24 July 2002, the Court of Criminal Appeal dismissed the defendant’s appeal against that sentence: R v Kay [2002] NSWCCA 286; (2002) 132 A Crim R 72.

6. [10]

   On 20 February 2015, the defendant was released to parole.

7. [11]

   On 28 November 2016, the plaintiff filed an application for an ESO with respect to the defendant. At that time, the defendant was on parole serving the balance of the sentence imposed by RS Hulme J.

8. [12]

   On 17 March 2017, Harrison J ordered that the defendant be subject to an ESO for a period of three years, subject to certain conditions, including electronic monitoring for a period of 12 months.

Circumstances of three breaches of the ESO

1. [13]

   In this judgment, I refer to and rely upon the earlier decisions of the Court with respect to this matter, that of Schmidt J in State of New South Wales v Kay [2016] NSWSC 1820 and Harrison J in State of NSW v Kay [2017] NSWSC 274.

2. [14]

   The background to the current application can be found in these earlier judgments. I do not propose to repeat here what was there said, and in particular, I do not propose to detail the facts of the offending behaviour that has led to the defendant’s incarceration and his status as a high risk offender. Those facts, which are disturbing, can be found in full in R v Kay [2000] NSWSC 716.

3. [15]

   This application comes about as a consequence of two incidents during the currency of the ESO imposed by order of Harrison J, and it is on those two incidents that I intend to focus.

4. [16]

   The incidents occurred after 17 March 2018, the date on which the electronic monitoring, which had formerly been in force, was ended, pursuant to Harrison J’s orders.

5. [17]

   The first incident occurred a few weeks after that date, and relates to a relationship the defendant had established with a prostitute.

6. [18]

   On 7 April 2018, a NSW Community Corrections (“NSWCC”) Departmental Supervising Officer (“DSO”) attended the defendant’s home to conduct an unannounced curfew check. The statement of facts produced by police after the defendant was later charged with breaching his ESO, records the events as follows (with the names of officers, and the defendant’s address removed):

7. [19]

   On 21 April 2018, the defendant was charged with breaching the conditions of the ESO (and the facts sheet extracted above prepared), on the basis that he had commenced an intimate relationship without informing his supervising officer, had a person at his home for an overnight stay without permission, and had lied to his supervisor.

8. [20]

   The offence is one under s 12 of the Act. There was one charge to reflect each of the three breaches.

9. [21]

   In the period between the discovery of the breaches on 7 April 2018, and the preferral of the charges on 21 April 2018, the second incident occurred.

10. [22]

    This incident took place on 17 April 2018. On that day, the defendant attended a suburban supermarket to purchase groceries. At a self-service checkout, he spoke to the 16 year old attendant, whom he recognised as a resident of a block of units at which the defendant had previously lived.

11. [23]

    The surveillance footage of the incident was before the Court as part of the defendant’s case, as are still images from the footage, tendered by the State.

12. [24]

    The incident was caught on closed circuit television footage apparently from a camera situated in front of the self-service checkout area of the supermarket. The 16 year old girl was clearly the staff member responsible for assisting customers with the checkout process. The defendant appeared to experience some problem with the register he was using, and apparently called to the young attendant. She moved towards him at a quick pace and, immediately she approached the defendant, he reached out to her and placed his hand on her hip. He then leaned towards her and kissed her on the cheek, a kiss later described as “slobbery” by the girl.

13. [25]

    The girl who, from her body language, appeared to neither want nor enjoy the attention, can be seen wiping vigorously at her cheek as she moved to the cash register to correct the problem with it. In the statement that she later made, she said she was both disgusted and, knowing from press reports of the defendant’s criminal past, very frightened by the contact.

14. [26]

    After the attendant complained to her mother, police were called. The defendant was charged on 18 April 2018 with common assault contrary to s 61 of the Crimes Act 1900 (NSW), and stalking/intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Later, a charge of commit act of indecency was laid. The latter charge would appear to be legally flawed in accordance with the principles in Saraswati v R [1991] HCA 21 (1991); 172 CLR 1, although that is a matter for police.

15. [27]

    The defendant has entered a plea of not guilty to the charges and the matter is listed for hearing later this year.

16. [28]

    The three charges of breaching the ESO were formally laid after this incident, and the defendant was remanded in custody. Having later entered pleas of guilty to the three breaches of the ESO, he remains there, serving a term of 4 months imprisonment, which will expire on 20 August 2018.

17. [29]

    Prior to his incarceration, the defendant had obtained his own private accommodation at a weekly rent of $440. He had also secured employment as a fork lift driver and was doing well, having advanced at his place of work.

18. [30]

    The availability on release of both accommodation and employment is not certain.

19. [31]

    There is other evidence referring to some concerns expressed about the defendant’s situation prior to his imprisonment. He had, for example, disengaged to some extent in group counselling sessions, and his conduct regarding the use of the services of a prostitute was regarded as troubling by those who supervised him.

20. [32]

    On 15 April 2018, the matter was raised with the defendant by Community Corrections staff. The relevant file note records that,

21. [33]

    Although the defendant was facing the prospect of being imprisoned because of the breaches to the ESO referable to his association with the prostitute, he seemed to the officer to be more concerned with the disruption to his contact with her that discovery of the connection had caused. The officer recorded, in continuation of the file note extracted at [32], that the defendant,

Risk Assessment and Other Evidence

1. [34]

   Part of the evidence before the Court is a risk assessment report from Dr Richard Parker of 23 April 2018. There is a follow up report of 2 May 2018.

2. [35]

   Dr Parker’s first report was prepared on the basis that it was urgently required in relation to a possible review of the conditions of the ESO to which the defendant is subject, due to the possibility that the defendant would commit a serious sexual offence. In such circumstances, Dr Parker did not attempt to interview the defendant. He had access to recent case notes from the Offender Integration Management System (or “OIMS”), to a CUBIT treatment report from 2011, to earlier risk assessment reports relating to the defendant, and to the police fact sheets setting out the details of the two incidents that had attracted criminal charges.

3. [36]

   Dr Parker noted that the incidents the subject of criminal charges had led to a number of acute risk factors being elevated, particularly on a short term basis.

4. [37]

   Dr Parker set out the background to the commission of the offences alleged against the defendant, being the removal of electronic monitoring, followed by a degree of media attention, which had caused stress to the defendant. It was observed that the defendant had been relatively stable and compliant with his conditions up until electronic monitoring ceased.

5. [38]

   Against that background, Dr Parker carried out a risk assessment relevant to the defendant, noting the qualification that it is not scientifically possible to accurately predict whether an individual offender will or will not reoffend. The tools used are those of actuarial assessment that principally rely upon historical factors to assist in evaluating long-term risk; assessment of dynamic risk factors; and convergent risk assessment by combining both static and dynamic factors to provide information about likelihood, imminence, frequency and severity of risk.

6. [39]

   A number of actuarial risk assessment instruments were utilised. The Level of Service Inventory-Revised (“LSI-R”) assesses both static and dynamic risk factors related to general reoffending. It is regarded as a good predictor of general reoffending, but also a modest predictor of violence. Its capacity to predict sexual reoffending is mixed. In an assessment completed in September 2017, the defendant was assessed as falling within the "moderate" category for risk.

7. [40]

   The Static 99 Revised (“Static-99R”) test is an instrument designed to assist in the prediction of sexual recidivism for individuals charged with or convicted of a sexual offence. It is considered to have moderate predictive accuracy. On assessment with this tool, the defendant was found to have an above average level of risk, a level of risk that can also be expressed as "moderate high". The recidivism rate of individuals convicted/charged with sexual offences with the same score as the defendant would be expected to be 2.7 times that of the "typical" sexual offender.

8. [41]

   A third actuarial assessment tool is the STABLE-2007 which assists in the identification of “stable dynamic risk factors” for sexual reoffending, such as intimacy deficits, distorted attitudes, and sexual self-regulation. The score using this measure placed the defendant in the moderate risk category.

9. [42]

   Combining the Static 99R and the Stable-2007 instruments can render an “overall risk level” which, for the defendant, yields a "moderate high" overall risk level.

10. [43]

    Noting the concerns as to the possibility that the defendant posed a heightened risk of the immediate commission of a serious sexual offence, Dr Parker referred to a CUBIT treatment report from 29 July 2011 that stated:

11. [44]

    Dr Parker observed that the lead up to the criminal allegations was the removal of electronic monitoring, allowing the defendant a much greater degree of freedom of movement without the knowledge of the Department, and leading in turn to pressure from media exposure about the potential risk of this new freedom.

12. [45]

    A further actuarial tool was used to consider acute risk, the ACUTE-2007 Risk Assessment Instrument. Factors of risk identified by Dr Parker are:

13. [46]

    Dr Parker opined that in the community, when subject to significant stressors, the risk attaching to the defendant could be heightened, raising the risk of the possibility of the commission of a serious sexual offence.

14. [47]

    In his second report of 2 May 2018, Dr Parker considered a number of specific questions directed to, amongst other features, the relevance of the pending Local Court prosecution to risk; the relevance if any of the removal of electronic monitoring to risk and the efficacy of its reinstatement to managing risk; and whether a more intense supervisory regime was required.

15. [48]

    Dr Parker’s assessment was again based upon the documentary record, the defendant having been approached for interview but declining.

16. [49]

    Referring to the defendant’s response to supervision prior to the commencement of criminal charges against him, Dr Parker noted that, until electronic monitoring ceased, he had been compliant with conditions of supervision. The defendant gained employment four months after his release from custody and secured independent accommodation shortly after that.

17. [50]

    There were, however, concerns early in supervision, including as to the defendant misunderstanding the nature of his relationships with others. When the requirement to submit schedules for electronic monitoring was removed, and the defendant’s contact with Forensic Psychology Services (“FPS”) was reduced - initially from weekly to fortnightly, and later from individual plus group, to group only - there were indications that the defendant was not coping with a reduced level of support. There were suggestions that once he was released from the responsibility of regularly submitting schedules to Community Corrections the defendant

18. [51]

    The “coercive letter” raised the possibility for those supervising the defendant that he was jealous of the recipient, because he perceived his relationship with his therapist as something more than professional.

19. [52]

    The defendant’s interaction with a prostitute raised a concern of a similar nature, that he misinterpreted that commercial interaction as a romantic relationship. In a case note from April 2018, the defendant said that he may come to love the prostitute if he spent more time with her. This raised the prospect that, if and when a relationship of that nature was rejected by the prostitute, the defendant could feel negative and out of control, a situation similar to that which prevailed when the index offences occurred.

20. [53]

    Dr Parker considered that the allegations that the defendant has breached the ESO and assaulted a 16 year old female may raise concerns about the imminence of a serious sexual assault. However, he concluded that the Local Court charges did not lead to an elevation of risk, for reasons including the fact that, on actuarial assessment, the charges laid are not categorised as sexual offending. Additionally, the circumstances of the two sets of incidents did not provide any parallel to the defendant’s earlier sexual offending.

21. [54]

    Dr Parker observed that the conduct that resulted in the defendant being charged with breaching the ESO concerned concealment of his involvement with a prostitute, rather than the nature of the interactions. He speculated that the defendant’s motives for this concealment may have been more concerned with embarrassment than potential sexual offending. He thought this could be addressed therapeutically with FPS and supervisors.

22. [55]

    The conduct leading to the assault type charges Dr Parker thought probably occurred because the defendant misinterpreted the nature of his “relationship” with the store attendant, whom he knew very slightly from earlier common residency in a block of units.

23. [56]

    With respect to the efficacy of electronic monitoring, Dr Parker noted the potential adverse impact of such monitoring, in that it appeared to have deterred the defendant from engaging socially in the community. He continued,

24. [57]

    Dr Parker thought that the issue of greater concern was the defendant’s lack of openness and honesty with supervising staff and FPS.

25. [58]

    Overall, he thought that the issues he identified could be adequately addressed within the existing conditions of the ESO, although he did suggest that a condition which required the defendant to engage in social activities with a broader group of people would be beneficial to his successful reintegration into the community.

26. [59]

    In summary, Dr Parker concluded that the events surrounding the criminal charges have,

27. [60]

    A Risk Management Assessment report was before the Court. The author had regard to the risks identified as associated with the defendant and considered how those risks might best be managed in the community. The proposal includes regular interviews with the defendant, to encourage prosocial activity and challenge criminalised thinking; field visits both scheduled and unannounced; contact with third parties; the use of monitoring (including electronic if so ordered by the Court), schedules and curfews to enable supervisors to assess the defendant’s compliance with approved activities; non-association and place restrictions; and referral to appropriate therapy and rehabilitative services. Whilst each of these measures have limitations, used in combination they provide a reasonable management strategy.

28. [61]

    Other evidence before the Court from Janelle Farroway is to the effect that conditions of an ESO are implemented sensitively and, to the degree possible, flexibly by supervising staff. If electronic monitoring were imposed upon the defendant, the necessity for its maintenance would be regularly reviewed, and monitoring could be reduced as assessed risk was regarded as reduced.

The Submissions of the Parties

1. [62]

   The State argues that there is a clear need to heighten the supervision of the defendant in view of his recent conduct, and the greater risk that he poses as a consequence.

2. [63]

   The defendant points to his complete compliance with the ESO prior to April 2018, and his positive progress in finding and maintaining private rental accommodation and full time employment. It is noted that, even on the State’s case, some of the conditions sought are not indicated, including electronic monitoring which, at best, is suggested for only one to three months by Dr Parker.

Determination

1. [64]

   It should be noted that, since this Court imposed the ESO on the defendant, with the 12 month limitation then placed upon the utilisation of electronic monitoring, there have been changes to the relevant legislation. Among the changes to the Act is an amendment to make clear that the primary object of it is to ensure the safety and protection of the community (s 3(1)). This is the paramount consideration (s 9(2)). The rehabilitation of offenders remains a secondary objective (s 3(2)).

2. [65]

   Section 13(1) provides for the variation of an existing order:

3. [66]

   The wording of the section is such that the Court’s discretion is unfettered, subject to the objects and provisions of the Act. Regard must be had to s 11, which provides:

4. [67]

   In Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65 the Court of Appeal said of s 11,

5. [68]

   A balancing exercise is required, ensuring that the community is protected to the greatest extent possible, without unduly or unfairly restricting the liberty of the defendant. The question is whether the additional conditions to the order sought by the State are the least intrusive conditions available to ensure that the risk posed to the community by the defendant is adequately managed, such that the community is properly protected. Whilst the defendant’s liberty and rehabilitation remain relevant considerations, that is secondary to ensuring the protection of the community.

6. [69]

   Having considered all of the evidence, I have concluded that the additional conditions sought by the State are necessary to adequately supervise the defendant, and in that way protect the community. It is important to bear in mind that a risk may be an unacceptable one, requiring close supervision for its adequate management, even if the likelihood of the risk manifesting, and a further serious sex offence being committed, is determined to be low.

7. [70]

   The defendant is a serious sex offender who poses a risk to the community, and his recent history demonstrates that closer supervision of him is required if the risk he poses is to be sufficiently mitigated.

8. [71]

   I do not regard it as a coincidence that, at a time when he was closely supervised and subject to electronic monitoring, the defendant complied with the order imposed upon him but, once released from such close supervision, he did not. At that time he commenced an undisclosed sexual relationship, and made an inappropriate and arguably indecent approach to a 16 year old girl in a public place.

9. [72]

   It may be, as Dr Parker suggests, that embarrassment at the presence on his person of the tag was a factor in limiting the defendant’s activities, with the effect that compliance followed but, regardless of the motivation, there is a clear correlation between close supervision and compliance, and reduced supervision and non-compliance.

10. [73]

    Whilst actuarial testing may assess the charged offences as not increasing the defendant’s overall risk, that seems to be at least in part because the offences charged against the defendant are not categorised as sexual. That strict categorisation does not take into account what I would regard as a distinctly sexual flavour to both incidents which have led to the defendant being charged.

11. [74]

    Although the nature of the breaches of the ESO to which the defendant pleaded guilty of themselves do not suggest sexual offending, the defendant’s conduct is disturbing in the context of his criminal history. It is, in my view, not insignificant that he lied to his supervisor and breached other conditions to facilitate sexual encounters.

12. [75]

    His conduct towards the prostitute, and his conduct towards the young shop attendant, is of further concern having regard to the acknowledged risk associated with the defendant being sexually disappointed, or disappointed in the context of a relationship. In the past, to regain a measure of control after disappointment, the defendant committed gravely serious sexual offences. It is imperative that every possible step is taken to prevent a risk of such offending reoccurring.

13. [76]

    One can readily foresee that the defendant may have been left feeling betrayed and rejected when the point was inevitably reached, had he been at liberty to continue, when he came to understand that the prostitute with whom he was associating regarded his company and sexual attentions as paid employment and no more. The obvious distaste with which the young shop attendant received the defendant’s physical greeting may equally have led to the sort of psychological state that has been regarded by experts as posing a particular risk scenario for the defendant.

14. [77]

    In those circumstances, I regard it as essential to arm those supervising the defendant with a full range of supervisory tools, to minimise the risk to the community. The conditions sought are in my view necessary and appropriate to meet the objectives of the Act.

15. [78]

    The defendant takes particular issue with the amendments reflected by the proposed conditions 5, 6-8, 22, 25, 26, 34 and 35. It is of some utility to consider the necessity of each.

16. [79]

    The proposed condition 5 would reimpose a requirement that the defendant wear electronic monitoring as directed by his supervisor. Conditions 6,7, and 8 relate to a requirement for the defendant to submit and comply with a schedule of movements.

17. [80]

    The defendant points out that electronic monitoring, or schedules of movement, would not have prevented him from attending a supermarket, or being at his home, the locations of the recent concerning conduct, and that electronic monitoring in particular may be said to hamper his reintegration into the community, something adverse to his rehabilitation.

18. [81]

    All of that may be accepted. However, requirements for electronic monitoring and associated schedules of movement and activity provide those supervising the defendant with a much greater opportunity to achieve adequate oversight of his activities and whereabouts, and of his associations with others. Further, there is evidence from Ms Farroway that electronic monitoring, when combined with schedules of activities, both foster and supervise compliance overall with the ESO.

19. [82]

    If electronic monitoring is imposed in such a way as to give some discretion to those supervising the defendant, it would be permissible for monitoring to be short term, as envisaged by Dr Parker, allowing for its removal when a reduction in risk allowed for such a course. That may be of particular assistance in circumstances where the defendant will be released from prison later this month, needing to re-establish his life in the community. A higher degree of support and supervision at what is likely to be a stressful time provides the best measure for the community’s protection, and the defendant’s successful reintegration.

20. [83]

    This condition would prevent the defendant from having contact with any person he knew or reasonably believed was under 18 years of age without the prior approval of his supervisor. The defendant points to the potential unworkability of the condition, which could prevent him from taking a seat on a bus next to someone who might be 17, for example, and expose him unjustly to the risk of inadvertent breaches of the order.

21. [84]

    To some extent, that prospect should be capable of answer by placing reliance on the common sense of those supervising the defendant. Any supervisory scheme can only function as intended by the legislature if those implementing it do so in a sensible manner, bearing in mind the objects of the Act. The legislation is not intended to prevent supervised offenders from participating in an ordinary way in community life; it is intended to mitigate risk.

22. [85]

    Properly worded, and sensibly implemented, a condition to this effect should not expose the defendant to fanciful allegations that he has breached an order. It should prevent him from interacting with persons too young and inexperienced to reject his attentions, except in circumstances where a supervising officer approves the interaction. A condition of this nature, if obeyed, would have prevented the defendant from touching and kissing the young shop attendant as he is alleged to have done on 17 April 2018.

23. [86]

    These conditions would require the defendant to disclose any friendship with a woman or other intimate relationship to his supervisor, and permit the supervisor to tell the person of the defendant’s background where that was regarded as necessary.

24. [87]

    Accepting that these conditions could expose the defendant to disclosures of his background to friends and intimate partners which he may regard as humiliating, they are necessary in my view to protect any woman who may become closely associated with the defendant, in ignorance of his criminal past. Particularly having regard to the defendant’s secretive conduct surrounding his recent interaction with a prostitute, and the risks that could be associated with a relationship of this nature, the conditions are necessary to protect others.

25. [88]

    These conditions require disclosure by the defendant of mobile telephones in his possession and all associated SIM cards etc, permitting the supervising officer to monitor the defendant’s use of these means of communication.

26. [89]

    Such conditions are intrusive, but the need for them is demonstrated by reference to the earlier breaches of the ESO. These conditions will assist the defendant’s supervisor to monitor his compliance with other conditions, and particularly conditions 22, 25, and 26. The defendant’s previous deception of his supervisor, and deliberate concealment of his relationship with the prostitute, has made these conditions necessary.

Conclusion

1. [90]

   I have determined that the conditions sought by the State are necessary to achieve the primary object of the Act, the safety and protection of the community.