State of New South Wales v McCarthy

1. [1]

   On 16 December 2009 Hall J ordered that the Defendant be made subject to an Extended Supervision Order under the Crimes (Serious Sex Offenders) Act 2006 (NSW) for a period of five years: State of NSW v McCarthy [2009] NSWSC 1407.

2. [2]

   Since the imposition of the ESO the Defendant has spent several periods in custody during which time both the conditions and the terms of the ESO have been suspended pursuant to s 10(1A) and (2) of the Act which is now known as the Crimes (High Risk Offenders) Act 2006 (NSW). The Defendant was released from the last custodial period on 25 January 2017. The ESO is currently due to expire on 18 February 2020. The Plaintiff seeks a variation to the conditions of the ESO in the terms annexed to the Notice of Motion filed 13 January 2016.

3. [3]

   This judgment should be read in conjunction with the judgment of Hall J but for ease of reference the terms of the ESO put in place by Hall J are Annexure “A” to this judgment.

4. [4]

   The variations sought by the Plaintiff are as follows:

Convictions prior to the ESO

1. [5]

   The offences for which the Defendant was convicted prior to the making of the ESO by Hall J are conveniently summarised by Fagan J in State of New South Wales v McCarthy [2015] NSWSC 1780 at [9]:

Conduct since imposition of the ESO

1. [6]

   On 16 December 2009 the Defendant became subject to the ESO with the conditions stipulated by Hall J.

2. [7]

   On 15 January 2010 the Defendant was charged with a breach of his ESO in that he had contact with two children aged four and 11 years whilst they were in the care of their mother. Since the mother had not been previously approved by the supervising officer, that was a breach of condition 14.

3. [8]

   On 12 January 2010 the Defendant was found in possession of a length of rope. He demonstrated that he knew how to make a noose and joked about grabbing someone with it. He then said that it was for making a clothesline.

4. [9]

   In 16 January 2010 a search of the Defendant’s room located two SIM cards and two knives. The Defendant said that he needed the knives for work. A decision was made permitting him to take one of the knives for work but not the other. The Defendant also said “these can be used as a weapon [referring to his hands, a chair and a table] and if I want, I can get a gun.”

5. [10]

   On 14 February 2010 the Defendant was charged with a further breach of his ESO between 12 and 14 February 2010 in that he had formed a sexual relationship with a woman whom he had met at a railway station.

6. [11]

   On 16 February 2010 the Defendant was charged with failing to comply with his reporting requirements related to the Child Protection Register in respect of details of mobile telephones. The Defendant had acquired two additional mobile phones without reporting the details as required.

7. [12]

   On 9 August 2010 the Defendant was sentenced as follows:

8. [13]

   On 14 December 2010 he was committed for trial to the District Court in respect of two historical sex charges that were committed on 9 October 1990 where he was identified from DNA as part of a cold case project. He was convicted of threatening to inflict actual bodily harm by means of a knife with intent to have sexual intercourse and having sexual intercourse without consent knowing the victim was not consenting. An offence of robbery committed at the same time was taken into account on a Form 1. He was sentenced on 25 July 2011 to a period of imprisonment for five years commencing 25 November 2010 and expiring 24 November 2015 with a non-parole period of three years expiring 24 November 2013.

9. [14]

   By reason of the sentences for the breaches of the ESO and the sentence for the historical sex offences the Defendant was continuously in custody from 15 February 2010 until 15 April 2015 when he was released to parole. The ESO then recommenced.

10. [15]

    On 9 August 2015 the Defendant made a series of phone calls to an adult woman who had visited Providential Homes where the Defendant had been undertaking volunteer work. The last of the calls was answered. The Defendant then made a number of threats including that the victim would be kidnapped. During the call the Defendant gave several personal details of the victim and said that he had been following her for four weeks.

11. [16]

    On 24 August 2015 the Defendant contacted the ESO monitoring team. He told them that he had done something bad and needed to hand himself in. In a second call to them he told them that he had used someone else’s phone and rung a random number and made threats to kidnap the unknown male who answered the call. He said he was having a difficult time in the community due to being a schizophrenic and had not been taking his medication. It is not known if this phone call was, in fact, made.

12. [17]

    On 27 August 2015 the Defendant was arrested. He was charged with an offence of stalk or intimidate intending to cause fear contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and using a carriage service to menace, harass, or offend contrary to s 474.17(1) of the Criminal Code (Cth). The Criminal Code charge was later withdrawn.

13. [18]

    On 26 November 2015 he was also charged with two counts of breach of the ESO. One charge related to the commission of the stalk/intimidate offence and the other was for failing to notify his DSO of an intimate partner. The intimate partner was an employee of Providential Homes who had been supervising the Defendant’s volunteer work there.

14. [19]

    On 11 February 2016 he was sentenced on the stalk/intimidate count for 16 months imprisonment commencing 26 August 2015 and expiring 25 December 2016 with a non-parole period of 12 months concluding on 25 August 2016. The sentence for the failure to comply with the ESO by committing the stalk/intimidate offence was made wholly concurrent while the sentence for the other failure to comply commenced on 26 September 2015 for 16 months with a non-parole period of 12 months concluding on 25 September 2016. The effective overall sentence was one of 17 months concluding 25 January 2017 with a non-parole period of 13 months concluding on 25 September 2016.

15. [20]

    On 12 September 2016 the Defendant’s parole was revoked because of problems with accommodation for the Defendant with the result that he remained in custody until released on 25 January 2017.

Legal principles

1. [21]

   In Wilde v State of New South Wales [2015] NSWCA 28 the Court of Appeal dealt with the issue of the appropriateness of conditions in an ESO. The Court there said:

2. [22]

   The Court also said in relation to the purpose and objects of the Act:

Consideration

1. [23]

   The Plaintiff does not consider either of these conditions appropriate. They are no longer routinely included in conditions in ESOs although that seems to have been the practice at the time Hall J made his determination. I agree that neither condition is necessary or appropriate. As noted, their omission is not opposed.

2. [24]

   The amendments to this section merely make reference to offences involving the Defendant which were not known or had not been committed at the time of Hall J’s judgment. The amendments are appropriate. As noted, the amendment is not opposed.

3. [25]

   On 27 November 1990 the Defendant committed a series of violent sexual assaults on a 17 year old girl for which he was subsequently convicted and sentenced. In August and September 2003 he committed seven counts of sexual intercourse with a girl aged between 10 and 16 years. These offences are referred to in the judgment of Fagan J in State of New South Wales v McCarthy [2015] NSWSC 1780 at [9].

4. [26]

   On 22 October 1990 the Defendant was convicted of one count of wilful and obscene exposure and one count of offensive language arising from events in February 1990 when he was observed to be driving his motor vehicle around the Canterbury area and he approached four female students from Canterbury Girls High School and asked them for sexual favours. He exposed his penis and masturbated during the proposition that he made.

5. [27]

   The present conditions only restrict his contact with children under the age of 16. By reason of the first two convictions referred to in 25 above the Defendant is subject to obligations under the Child Protection (Offenders Registration) Act 2000 (NSW). In that Act “child” is defined as a person under the age of 18 years. However, the Defendant’s obligations under that Act are suspended for the period that is subject to an ESO.

6. [28]

   Given the fact that the Defendant’s offending has involved both adult women as well as women under the age of 18 years there is a specific demonstrated link to past offending which needs to be dealt with by appropriate conditions in that regard. But in any event, the ongoing nature of the Defendant’s offending over the last 30 years makes the amendment to these conditions an appropriate one to mitigate the risk of future offending. I note again that it is not opposed by the Defendant.

7. [29]

   Condition 42 is concerned with mobile telephones and access to the internet. Existing conditions 18 and 27A deal with those matters to some extent. However, the proposed condition supplements those conditions and helps to make them more effectively enforceable.

8. [30]

   The existing conditions were necessary because the November 1990 sexual offences, the 2003 offences of using a carriage service and the offence of 9 August 2015 all involved the use of telephones in a way that provided a basis for the diagnoses made by Dr Samuels, agreed by Dr Greenberg, of paraphiliac disorder. I note again that the Defendant does not oppose that condition.

9. [31]

   Condition 48 is directed towards knives and similar instruments. The offending in 1987 involved the use of a knife. The historical offending for which the Defendant was sentenced on 25 July 2011 involved the Defendant using a knife to threaten the victim, to cut her clothes and to hold the knife to her throat. The offending on 27 November 1990 also involved the use of a knife to threaten and to cut the victim’s clothing. When a search of the Defendant’s room was carried out on 16 January 2010 two knives were found.

10. [32]

    In my opinion, the use the Defendant has made of knives when offending makes it entirely appropriate that a condition should be imposed that he must not carry a knife or other cutting instrument on his person outside his residence unless permission has been granted. I note that this condition is not opposed by the Defendant.

11. [33]

    The relevance of the search and seizure conditions related to three things being mobile telephones, drugs and weapons. In that regard the Plaintiff drew attention to the fact that when the Defendant was searched on 16 January 2010 two SIM cards were found. Further, in the case note reports of the Department of Corrective Services for 27 June 2015 reference is made to the fact that the Defendant was observed to have purchased a SIM card a day or so earlier. At first he repeatedly denied that he had made such a purchase but when he was told he had been seen he then said that he purchased it for another resident at the premises where he was living.

12. [34]

    I have also referred above at [11] to the acquisition by the Defendant of additional mobile phones without disclosing, for some time, that he had them. The Plaintiff submitted that those incidents demonstrate that condition 27A was of limited usefulness in the absence of a search provision. A search provision would not only assist in that regard in minimising the risk of future offending but it would also enable the Plaintiff’s DSO to monitor the making and maintenance of clandestine relationships prohibited by the conditions. The Plaintiff submitted that previous searches of the Defendant were only possible because of the conditions attached to the Defendant’s residence at the Community Offender Support Program (COSP). The Defendant was no longer living at the COSP and the DSO would be unable to conduct a search if the officer reasonably believed such a search was necessary.

13. [35]

    The Plaintiff drew attention to the information in Professor Greenberg’s report of 19 October 2015 that the Defendant admitted to having used heroin intravenously whilst in prison recently on at least a dozen occasions. Condition 20(c) prohibits the Defendant from possessing or consuming illicit drugs. The Plaintiff submitted that the search provisions were necessary from the point of view of weapons by reason of the knives that were found on the Defendant in the January 2010 search.

14. [36]

    The Defendant submitted that condition 27A is sufficiently wide to address the risk of further offending and could be amended to cover other mobile type devices such as tablets which did not exist when the conditions were put in place in 2009. The Defendant drew attention to the fact that he disclosed the use of the phone of another person in August 2015 and in any event that the opportunistic use of another person’s phone would not be prevented by the search provisions.

15. [37]

    The Defendant submitted that such a wide ranging search and seizure power as is contained in condition 43 which is outside the scope of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) is not necessary for the purposes of the Act. The Defendant submitted that that Act gave quite sufficient power to a police officer who suspected on reasonable grounds that an offence had been or was about to be committed and that a search was warranted in those circumstances for something in the form of a weapon. The Defendant drew attention to the difference between what a police officer was required to believe or suspect under the Law Enforcement (Powers and Responsibilities) Act and the wording in clause 43. In relation to the matter of drugs the Defendant submitted that condition 20 already permitted drug and alcohol testing if it was suspected that the Defendant had consumed alcohol or illicit drugs.

16. [38]

    The Defendant submitted that there was no definition of “serious offence” as referred to in condition 43(c) and in that regard the reference was too vague and was not connected to the risk which was sought to be mitigated. The Defendant submitted that condition 43 gave an unacceptably wide power with limited safeguards and that it was a significant curtailment of his right to liberty in circumstances where his liberty is already significantly curtailed. The Defendant submitted that the offending which involved knives happened many years ago and was not a feature of what occurred in 2015.

17. [39]

    In my opinion, the inclusion of the search and seizure provisions in conditions 43 – 47 are appropriate because they address the risk of future offending of the type which was the basis of the order and of the subsequent offending in the manner discussed hereafter.

18. [40]

    The use of telephones to satisfy the Defendant’s diagnosed disorders appears clearly from some of the offences for which the Defendant has been convicted. Whilst some of those offences involving the telephone have not involved the commission of serious sexual offences as defined in the Act the unresolved nature of the Defendant’s conditions means, as the psychiatrists have said, that he is at moderately high risk of committing further serious sexual offences. It is not disputed that condition 27A was and is an appropriate condition to impose on the Defendant. It is not disputed that condition 42 is an appropriate condition to impose upon the Defendant. Those conditions are appropriate because they attempt to address the risk of further offending of the type which was the basis of the order. Conditions 43-47 assist in the enforceability of those accepted conditions.

19. [41]

    Mr Samuel Ardasinski, a senior psychologist in the Serious Offenders Assessment Unit, prepared two reports in 2016 on 29 July and 22 December assessing the Defendant’s current risk. These reports addressed the proposed amended conditions of the ESO.

20. [42]

    In his executive summary in respect of his report of 29 July 2016 Mr Ardasinski comments that the Defendant has found the conditions placed on his liberty overly restricted and suggested that they were more onerous than living in prison. He noted in the report the Defendant’s sense of grievance about the restrictions in his ESO, and Mr Ardasinski commented that it is possible he committed the 2015 offence (stalk/intimidate) in an effort to assert his power and dominance over somebody because he felt helpless due to his ESO. When discussing the proposed condition 48 he said that it was likely to have the effect of making the Defendant feel further victimised and aggrieved at the restrictions on his liberty which was counterproductive to having an effective supervisory relationship built with the ESO team. He made further reference to that matter elsewhere in the report.

21. [43]

    However, in relation to the proposed conditions concerning search and seizure Mr Ardasinski said this:

22. [44]

    He further concluded (at paragraph 53) that a review of the Defendant’s ESO conditions was warranted and that the only one that Mr Ardasinski could see might have some moderating effect on the Defendant’s behaviours would be the condition permitting search and seizure because it may have the possible impact of alerting his supervising officer to additional mobile phones or correspondence which might alert them to the existence of undeclared relationships in the future.

23. [45]

    The Defendant’s reliance on the right of a police officer to search under the Law Enforcement Act does not come to grips with the risks that are sought to be mitigated in relation to possession of multiple mobile phones, SIM cards or other similar devices. It is precisely because a police officer would, in the ordinary course, have no right to search for a mobile phone that the search power sought here is needed. Further, it may be accepted that a police officer could search for weapons or drugs if he or she satisfied the provisions of that Act but it is entirely impractical that the DSO should have to involve the police at least in the first instance. The ESO scheme is based on the relationship between the DSO and the supervised person.

24. [46]

    In relation to the Defendant’s submission about the opportunistic use of someone else’s phone, it may be accepted that such an occurrence is possible and has in fact occurred in the present matter. However, the fact that the proposed condition will not prevent every transgression is no reason to reject it if it is likely to assist in detecting many or most transgressions.

25. [47]

    There is one further matter to be taken into account in deciding whether the search and seizure conditions are appropriate. When the Defendant was last at liberty he resided at a COSP. It was a condition of his residence there that on reasonable suspicion he was able to be searched. His residential arrangements are now different and no condition attaches to his present residence that permits searches to be carried out.

26. [48]

    Although this would not have been a factor to be taken into consideration if there had been no matters of significance found in the searches carried out in 2015, such was not the case. As was noted earlier in a search carried out on 16 January 2010 he was found with two SIM cards and two knives. There was the further occasion referred to at [33] above where he was observed to have purchased a SIM card but denied it when confronted. Further, his use of a phone on 9 August 2015 that led to the charging of the offence of stalk or intimidate again pointed to the gap in enforcement of other conditions where he was no longer living at the COSP.

27. [49]

    I am satisfied that the search and seizure conditions are warranted and appropriate to address, and attempt to minimise, the risk of further offending. I do not consider that the terms of condition 43 are too wide. When the matter was argued the Plaintiff’s proposed condition 43c referred to a “serious offence” without any definition of what that meant (see [4] above). The Defendant drew attention to the fact that a link between “serious offence” and the definition in the Act was no longer apparent because condition 4, which made the link, was being omitted. Further, the definition of “serious offence” in s 4 of the Act might be thought to include “serious violence offence” which was not relevant in the present matter.

28. [50]

    Accordingly, the Plaintiff has both amended condition 43c so that it makes reference to a “serious sex offence” and has included a definition related to the definition in s 5(1) of the Act. The Plaintiff did not, however, make a similar amendment in condition 45. The conditions which will be imposed by this judgment will make such an amendment.

29. [51]

    The conditions of the ESO should be varied as set out in Annexure B to this judgment.