State of New South Wales v White (a pseudonym)

1. [1]

   By an amended summons filed in court this morning, but provided to my Associate informally two days ago, the State of New South Wales seeks orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The proceedings were commenced by summons filed on 19 September 2024 and McNaughton J made a pseudonym order relating to the defendant’s name on 26 September 2024. Without meaning to depersonalise him or losing sight of the infringement on his personal freedoms inherent in the orders sought by the State, and noting that Mr White is not his name, I will call him the defendant.

2. [2]

   The matter was listed last Thursday 5 December 2024 for a preliminary hearing pursuant to s 7(3) of the Act. The State sought an order under s 7(4) appointing two experts (psychologists or psychiatrists) to examine the defendant and provide reports for the final hearing as well as an order directing the defendant to attend those examinations. The defendant, who is represented by Mr Ng of counsel, did not contest the making of those orders. The State also sought an order under s 10A subjecting the defendant to an interim supervision order (“ISO”) with around 50 conditions, for a period of 28 days commencing 20 January 2025. The defendant did not dispute that it is open to the Court to conclude that an ISO should be made but argued that several of the conditions are unnecessary or inappropriate.

3. [3]

   The summons was supported by four affidavits, three affirmed by Johanna Fisher on 19 September 2024, 8 November 2024 and 29 November 2024, and the fourth affirmed by Jessie Slattery-McDonald on 29 November 2024. These included annexures and exhibits which were, along with agreed facts and written submissions, compiled in a mischievously styled “Judges Working Folder”. [1] The defendant relied on some affidavits affirmed by his solicitor and an affidavit of his tutor who was appointed pursuant to a guardianship order.

4. [4]

   Putting to one side the written submissions, the material in the Judge’s working folder(s) constitutes the “supporting documentation” for the purpose of ss 7(4), 7(5) and 10A(b) of the Act. Without being exhaustive it includes court papers, sentencing judgments, psychiatric, psychological, medical and risk assessment reports, case notes and the like, as well as material relating to the defendant’s interaction with those administering his National Disability Insurance Scheme (“NDIS”). The defendant’s material includes reference to the guardianship order and a behaviour intervention support plan in place until September 2025.

Background and criminal history

1. [5]

   The defendant was born in early October 1999 and is now 25 years old. He has an intellectual disability and a record of committing sexual offences and relatively minor crimes of violence. To put it kindly, he has a patchy history of compliance with apprehended violence orders (“AVOs”), bail conditions and other forms of supervision and conditional liberty.

2. [6]

   He is currently serving a sentence of imprisonment for an offence of intentionally sexually touching a child under the age of 10 contrary to s 66DA of the Crimes Act 1900 (NSW) (“the index offence”) and was released to parole on 20 June 2024. The statutory parole order will expire on 20 January 2025. His current parole conditions include electronic monitoring and a requirement that he provides schedules of his movements and activities to his parole officer. If the ISO sought by the State is made, it will take effect at the conclusion of the parole period of the sentence.

3. [7]

   On 2 April 2024 the Guardianship Tribunal made an order for the guardianship of the defendant for a period of 18 months. Ms Barbara Ramjan has been appointed as his tutor and there is an extensive behaviour plan in place which is due for review on 30 April 2025 and will expire on 30 September 2025.

4. [8]

   The defendant is the oldest of four sons whose parents separated when he was 10 years old. It appears that all six members of the family have intellectual disabilities. He and his brothers remained in the care of his mother after their parents broke up and lived in the Leeton area about 90 minutes’ drive west of Wagga Wagga. Concerns were raised about his mother’s ability to care for the children and the Department of Families and Community Services became involved with the family. When the defendant was about 13, he lived with his grandmother for approximately 18 months before moving to Wagga Wagga to live with his father. He lived with his father until he entered the juvenile justice system – that is, when he was taken into custody for committing offences as a child. He was then aged 16. Jumping forward, the defendant was in custody in 2024 when his father died.

5. [9]

   In 2016 a neuropsychological assessment of the defendant’s intellectual functioning concluded that he “functions on the cusp between mild and borderline intellectual disability for adaptive behaviour, at a level lower than 98% of his age peers”. [2]

6. [10]

   When he was 13, it was reported that the defendant sexually abused one of his younger brothers. He was not charged but apprehended domestic violence orders (“ADVO”) were made for the protection of his younger brothers. The defendant was also alleged to have “humped” another one of his brothers and an interim AVO was made. However, the application for final orders was withdrawn.

7. [11]

   At around the age of 14 or 15, the defendant disclosed that he was sexually assaulted by a fellow student at school. He says this incident had a significant impact on his emotional state.

8. [12]

   In 2015, the defendant was charged with sexually assaulting one of his brothers and, while he was on bail for those offences, he was accused of sexually assaulting a child under 10 years of age. The alleged victim was a five-year-old female neighbour. Both of those matters were dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) which has since been repealed and replaced by new, albeit similar, legislation.

9. [13]

   In 2021 the defendant was convicted of two counts of sexually touching a person without consent. The victim of those offences was another resident of a supported independent living accommodation who the defendant visited. The defendant was convicted and sentenced to an aggregate term of imprisonment of 10 months commencing on 18 June 2021 and concluding on 17 April 2022. There was a non-parole period of 5 months.

10. [14]

    On 2 November 2022 he committed the index offence and was dealt with for that matter, along with an offence of breaching a prohibition order, at the Bathurst Local Court on 25 May 2023. An aggregate sentence was imposed. This is the sentence that will expire on 20 January 2025.

11. [15]

    The defendant’s criminal history contains several other offences commencing when he was a child and continuing until his present incarceration and, if an unresolved allegation is established, beyond it. These include offences of damaging property, breaching AVOs, stalking and intimidation, common assault, and breaching prohibition orders. His most recent offence, which it seems is yet to be disposed of, is an allegation of assault occasioning actual bodily harm in relation to which he was charged on 9 October 2024.

12. [16]

    A lot of his offending relates to threatening and abusive behaviour directed towards NDIS support workers and this includes what I will describe as sexually charged or sexually inappropriate behaviour. The record suggests a number of the offences were committed while the defendant was on bail. He has been arrested six times and subjected to detention applications under the Bail Act 2013 (NSW).

The index offence

1. [17]

   On 2 November 2022 the defendant sexually touched a nine-year-old girl in a hospital waiting room. The conduct occurred over a period of 12 minutes. The defendant touched the victim a number of times, tapping her on her leg with his hand and rubbing the top of her thigh. The victim told her mother what had happened after they left the hospital and her mother, in turn, reported the incident to the defendant’s NDIS provider.

2. [18]

   The defendant was arrested and interviewed by police and admitted that he touched the victim and had sexualised thoughts about her. He said he imagined “having sex with her, touching her vagina, bum, fingering her vagina”. He realised he had “better not” and knew it was the wrong thing to do.

3. [19]

   This conduct constituted a breach of final prohibition orders made by the Local Court at Bathurst on 24 May 2022 under the Child Protection (Offenders Registration) Act 2002 (NSW) (“Registration Act”). An offence under that Act was dealt with on a Form 1 when sentencing for the offence of sexual touching. [3]

4. [20]

   The crime of sexually touching a child under 10 is a “serious sex offence” as defined in s 5(1)(a)(i) of the Act.

5. [21]

   On 19 November 2022, the defendant approached and communicated with two children, the 10 and 14-year-old daughters of the owners of a property adjoining his residence. His carer, knowing some of the defendant’s history, suggested that this was “not a good idea.” The defendant then interacted with the mother of the girls and, despite his carer discouraging him again, continued to interact with the younger of the two children. This was a further and unrelated offence under the Registration Act and it was dealt with at the same time as the sexual touching offence.

6. [22]

   A sentencing assessment report (“SAR”) prepared for the sentencing hearing provided some disturbing details as to the defendant’s insight and motivations. He told the author of that report that making children feel “traumatised, scared and confused” excites him and that knowing he has power over children makes him feel good. He agreed that he targeted children as they were vulnerable and less likely to report an offence. The defendant was assessed as a “High” risk of reoffending. [4]

7. [23]

   The defendant was sentenced on 25 May 2023 at the Bathurst Local Court to an aggregate sentence of 2 years and 2 months imprisonment, commencing from the date of his arrest (21 November 2022). There was a non-parole period expiring on 20 June 2024 and the balance of the sentence will expire on 20 January 2025.

Risk assessment and management reports

1. [24]

   There are many psychological and similar reports in the four volumes of material tendered on the preliminary hearing. In terms of risk, they speak with one voice. The combination of the defendant’s cognitive difficulties, his sexual interest in children and his dysfunctional family history gives rise to a high risk of him committing serious offences involving sexual acts against children.

2. [25]

   A risk assessment report dated 3 April 2024 by Holly Cieplucha was exhibited to Ms Fisher’s affidavit. Ms Cieplucha is a senior psychologist with the High Risk Offender Team at Corrective Services NSW. Her report is extensive and discusses the defendant’s history of sexually inappropriate behaviour, attitudes towards children, poor impulse control, intellectual disability, and his pattern of past offending and non-compliance. She provides useful insights and opinions as to the defendant’s risk profile.

3. [26]

   Ms Cieplucha is of the opinion is that the defendant’s cognitive impairment contributed to his pattern of offending because it limits his understanding of social norms and appropriate behaviour as well as impacting on his ability to control his impulses. She speaks of a number of difficulties in his childhood which may have shaped his attitudes to police and authority figures. For example, he saw his father assaulted and was affected by the lack of response on the part of police and he was bullied at school. He exhibits poor emotional regulation but, most significantly, he is (in Ms Cieplucha’s view) “motivated by an underlying attraction to pre-pubescent children” albeit that he is sexually aroused by a range of people of different ages and genders. Ms Cieplucha notes his offending has been “opportunistic” and impulsive.

4. [27]

   Ultimately, Ms Cieplucha found the defendant to fall into the “Well Above Average risk range for sexual offending relative to other adult male sexual offenders” and that he has a “high density of criminogenic needs” (Emphasis in original.)

5. [28]

   A risk management report by Jessie Slattery-McDonald, a Community Corrections Officer with the Extended Supervision Order Team, explains the kinds of intervention that may address the defendant’s risk factors. She assessed the defendant’s risk of “general offending” to be “Medium-High” and his risk of sexual offending to be “High”. She sets out the kinds of conditions that may be imposed as part of an extended supervision order (“ESO”) and I have considered her opinions in relation to those subjects.

Conclusion: Orders under sections 7 and 10A should be made

1. [29]

   The statutory pre-requisites for the making of an order are satisfied in this case. I am satisfied the defendant is a supervised offender and that the State has complied with the timing and disclosure requirements: see ss 5I, 6 and 7. I am also satisfied “that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order”: s 10A(b).

2. [30]

   In reaching that conclusion, I have taken into account that the Judge presiding over the final hearing will need to consider whether they are “satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision”: s 5B(d). I am familiar with the way that prospective or predictive test has been applied in other cases and it is not necessary to repeat or summarise the relevant legal principles here. I have taken into account, as the Judge hearing the matter to conclusion will take into account, that the primary object of the Act is to ensure “the safety and protection of the community”: s 3(1). I have also considered the other object of the legislation, namely the desirability that sex offenders undertake steps that foster their rehabilitation.

3. [31]

   The defendant concedes that it is open to the Court to reach that conclusion and does not contest the making of the order and the appointment of experts. However, there remained disputes as to the conditions to which the defendant should be subjected.

4. [32]

   As Mr Ng put it in writing, the defendant “does not advance any submission against the Court making [the interim] order claimed by the Plaintiff at prayer 2(a)-(b) of the summons”. However, “bearing in mind the Defendant’s circumstances and risk formulation”, he does dispute the appropriateness of some of the conditions sought by the Plaintiff and therefore opposes the relief sought in prayer 2(c).

Conditions in dispute

1. [33]

   The parties have made some attempt to resolve their differences in relation to the disputes concerning the conditions to be placed on the ISO. It is unnecessary to go into detail as to how those disputes were resolved other than to say that some of the proposed conditions were removed altogether and others were amended by deleting or changing certain words to accommodate concerns raised by the defendant. I agree with the resolution reached between the parties in relation to what were conditions 4, 9, 11, 19(j), 23, 25(a) and (b), 27, 29(a) and (c), 38, 48 and 52 of the conditions set out in the original summons.

2. [34]

   I have considered the remaining disputes which concern conditions 5, 6-8, 10, 12-15, 21, 30-37, 42, 44, 45-47 and 49-51.

3. [35]

   The references in the last two paragraphs to the numbers of specific conditions are references to the numbers in the original summons. Those numbers will be different in the final orders.

4. [36]

   I have considered the arguments made by counsel both in written submissions and orally during the preliminary hearing. I have taken into account the risk management plans to which I made reference in the context of the risk assessment.

5. [37]

   I have considered the opinions expressed by Jessie Slattery-McDonald in her affidavit affirmed on 29 November 2024. Ms Slattery-McDonald is well qualified to provide opinions and has worked in various roles with high-risk offenders and those charged with the responsibility of managing such offenders and those who are subject to the kinds of conditions under consideration in this case. I have considered closely, and generally accept, her opinions. However, as was discussed in argument, Ms Slattery-McDonald will not be “on the ground” administering this particular ISO and there may be significant challenges, requiring understanding and even compassion on the part of those who are.

6. [38]

   I have also studied the plan in place under the guardianship orders.

7. [39]

   Speaking generally, and without meaning to understate the complexity of the arguments, the main issues between the parties arise from the defendant’s intellectual disability or cognitive impairment and the existence of the detailed and extensive behavioural intervention support plan provided by Ms Ramjan, the defendant’s legal guardian. The defendant’s intellectual disability raises questions about the need for some of the conditions in light of that plan and the capacity of the defendant to comply with the conditions. The conditions should mitigate the risk of him offending, foster his rehabilitation and ought not to be punitive.

8. [40]

   While the protection of the community is the primary object and chief consideration when formulating the conditions of an ISO or an ESO, there is nothing to be gained by setting an offender such as this young, cognitively challenged defendant up to fail. This Court sees cases where relatively minor breaches of such orders result in quite significant terms of imprisonment: see, for example, State of New South Wales v Carr [2014] NSWSC 1348 at [26] and [30] and State of New South Wales v Carr [2020] NSWSC 643 at [4] and [18]. The Court also sees cases – thankfully rarely – where the conditions of an ESO are administered harshly and with an unreasonable strictness and where the offender has ongoing disputes with the DSO and their delegates: Manna v State of New South Wales [2021] NSWSC 1220 at [15]-[16]. This can occur without any real fault on either side.

9. [41]

   An issue that arises in many cases is that an intellectually impaired defendant may be overwhelmed by the number of conditions and the complexity of the language in which they are couched.

10. [42]

    With those matters in mind, while keeping at the forefront of my mind the protection of the community and the safety of children with whom the defendant may interact, I considered the areas of dispute between the parties and formed some provisional views as to conditions that may steer a middle course between the position taken by the parties.

11. [43]

    Having received the evidence, I provided the parties with some draft conditions (MFI 1) which reflected my provisional or preliminary views at the time. I then allowed the parties around 45 minutes to take instructions and then heard final submissions on the areas of dispute. The process resulted in some further agreement and some subtle and uncontested changes in the language I proposed. However, their remained debate about some of the conditions. Having heard argument and been reminded (helpfully) by counsel of certain legislative enactments and parts of the evidence, I reserved judgment for a week.

12. [44]

    I turn to record my decisions in relation to each area of dispute concerning the conditions of the ISO. The numbering in the draft conditions I proposed in MFI 1 did not align with the schedule to the amended summons because some conditions had been removed and others reformulated or added. This created some confusion when the parties returned after the short adjournment to make their final arguments. In what follows, any reference to the numbering in MFI 1 has been removed. References in the body of the judgment are references to the numbering in the amended summons. The numbering in the orders will be sequential and therefore, after condition 6, bear no relationship to the numbering in the amended summons.

13. [45]

    I was unable to accept the defendant’s challenge to this condition which seems to have a significant protective purpose. I have little doubt, contrary to his submission, that the defendant will be able to understand the condition proposed by the State which allows the DSO, police and corrective services to share information relating to the defendant’s risk, supervision and rehabilitation.

14. [46]

    I will include the condition proposed by the State.

15. [47]

    The defendant submitted that these conditions are unnecessary because the defendant is under constant supervision of NDIS workers. While so much is true, the community has been protected during the parole period by similar conditions. I would include condition 6 (requiring electronic monitoring) but replace conditions 7 and 8 with two simple conditions, which were subject to some slight tweaking by counsel for the plaintiff:

16. [48]

    The defendant argued that these conditions do not mitigate risk and that there is no connection between the defendant’s past offending and where he lives. He also noted that the defendant’s accommodation is essentially arranged by the Public Guardian. While that is true to point, the Registration Act offences were committed by contact with the young children of a neighbour. Initially I accepted this submission and proposed the following conditions in MFI 1, to replace conditions 10-15:

17. [49]

    Those conditions took the decision as to where the defendant would live away from the DSO and left it with the defendant in consultation with the Public Guardian, but with a requirement to notify the DSO where he was living.

18. [50]

    However, having heard from counsel for the State, and considered the evidence more closely, I am satisfied that it was necessary and appropriate for the DSO to play a greater role. This gives effect to the primary purpose of the legislation. While Mr Ng made powerful submissions to the contrary, the evidence establishes that there is a significant protective factor in allowing the DSO some control over the defendant’s accommodation arrangements.

19. [51]

    In oral arguments counsel for the State drew my attention to a concrete example of this by reference to the risk mitigation plans prepared by Corrective Services NSW at tabs 58 and 59 of the Judge’s working folder(s). A property in Tamworth was initially proposed as suitable accommodation for the defendant upon his release to parole. However, when a risk assessment was conducted by the DSO, which not only considered the defendant’s best interests but also the mitigation of risk necessary for the protection of the community, it was determined that the property was not suitable. The address was in close proximity to schools and other child-related facilities, the area had limited psychology services, the defendant had no family or other ties to the community, and there was no guarantee the property would remain a single occupancy in the longer term. An alternative address was canvassed in a second risk management plan and determined to be a more appropriate accommodation option for both the defendant and the community.

20. [52]

    There was some compromise in the position ultimately taken by the State. In relation to condition 10 the State proposed the following replacement conditions as a middle ground between the original summons and my initial proposal:

21. [53]

    The State did not press condition 11, a curfew condition (which never seemed appropriate in view of the risk factors) and a prohibition on the defendant having people stay over (condition 15) was not pressed in the face of the draft conditions I suggested in MFI 1.

22. [54]

    The State did however press conditions 12, 13 and 14 with the addition of the note from the amended summons, which were as follows:

23. [55]

    The defendant maintained that conditions 10-15 should be replaced by the two conditions I drafted in MFI 1 (see [47] above) but accepted the plaintiff’s suggested timeframe of 7 business days (see [51] above) rather than one week.

24. [56]

    I accept the State’s two proposed conditions in replacement of condition 10 (see [52] above). I remain unconvinced that the defendant should be required to “promptly notify a DSO of any visitor” to his approved address and condition 14 will be removed. The prohibition on the defendant staying elsewhere (condition 13) will be replaced with a notification requirement. I accept the State’s submission that condition 12 should remain.

25. [57]

    The conditions concerning accommodation will be as follows:

26. [58]

    The defendant submits he is already participating in programmes as part of a comprehensive tailored plan developed under the NDIS and the guardianship order. While so much is true, the amended condition proposed by the State is not an onerous one and those administering the ISO may be better placed to organise programmes calculated to protect the community for future offending.

27. [59]

    The distinction between the functions and purposes of those administering the NDIS programme and those administering the ISO are clear and were discussed by Wright J in Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439 at [131]:

28. [60]

    Subject to the addition proposed by the defendant and agreed to by the plaintiff – that the DSO act in consultation with the Public Guardian or their delegate – I will impose condition (21) proposed in the amended summons but it will include a caveat that the steps required of the defendant be reasonable. The condition will be in the following terms:

29. [61]

    On their face, the conditions relating to the internet proposed by the State seemed unduly onerous. The defendant submitted the conditions do not address the risk and that the defendant is constantly supervised under the guardianship arrangements and by NDIS. However, it is a notorious fact that a great deal of predatory behaviour towards children is facilitated by way of social media, chat rooms and the internet more generally. Further, there have been some occasions where the defendant has used social media in breach of his obligations under the Registration Act.

30. [62]

    I initially proposed the following conditions in MFI 1, to replace conditions 30-37:

31. [63]

    However, as submitted by counsel for the State, the first of those proposed conditions – that the defendant comply with the conditions of any order under the Registration Act – is not legally workable. The conditions under the Registration Act cease to have effect once the ISO is made per s 15(1)(d) of the Registration Act. Despite Mr Ng’s valiant attempt to defend my proposal, I was constrained to accept the position taken by the State.

32. [64]

    In relation to the second of those proposed conditions, the State submitted that this should be amended to the following:

33. [65]

    I accept the State’s position but, in deference to the defendant’s legitimate concerns, will include a requirement that the DSO consult with the Public Guardian or their delegate.

34. [66]

    No issue was taken by either party in relation to the third of my proposed conditions and the State did not press the remainder of the more invasive conditions about the use of the internet which I had removed from MFI 1.

35. [67]

    The following conditions will be included as part of the ISO:

36. [68]

    I indicated my agreement with the defendant that, on the evidence currently before the Court, these conditions are not appropriate or necessary, or protective of the community. The State did not thereafter press these conditions.

37. [69]

    The conditions proposed by the State, as amended, are appropriate and serve a protective purpose.

38. [70]

    However, I agree with the defendant that the appropriate people to make determinations about the defendant’s medical care and medications are those administering the NDIS under the guardianship orders. I proposed to include the conditions but add a proviso in the form of a chapeau to conditions 49 and 50 proposed by the State in the amended summons. Those conditions will be preceded by these words:

39. [71]

    Having considered that proviso, the State did not oppose its inclusion in the conditions.

Orders and Directions

1. [72]

   I make the following orders:

2. [73]

   Preliminary hearing order: Expert reports

   1. (1)

      An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”):

3. [74]

   Interim relief

   1. (1)

      An order:

4. [75]

   Ancillary relief

   1. (1)

      An order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

   2. (2)

      The proceedings are listed in the High-Risk Offenders Callover List on 19 December 2024 at 9:30am

5. [76]

   “Associate” includes but is not limited to, being in company with, or communicating with by any means (including by post, facsimile, telephone, email or any other form of electronic communication).

6. [77]

   “CSNSW” means Corrective Services NSW.

7. [78]

   “Commissioner” means Commissioner for Corrective Services.

8. [79]

   “Defendant” means GEORGE WHITE, the defendant in these proceedings and the subject of the order.

9. [80]

   “DSO” means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.

10. [81]

    “Electronic Identity” means each of the following:

11. [82]

    “Material” includes:

12. [83]

    “NSWPF” means NSW Police Force.

13. [84]

    “Search” includes:

14. [85]

    Part A: Reporting and Monitoring Obligations

15. [86]

    Monitoring and Reporting

16. [87]

    1. You must accept the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

17. [88]

    2. Where a direction maybe given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

18. [89]

    3. You must truthfully answer questions from a DSO, or any other person supervising you, about: