State of New South Wales v Brookes (Preliminary)

1. [1]

   HIS HONOUR: By a summons filed on 14 October 2016 the State of New South Wales ("the plaintiff") seeks various orders under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). This is a preliminary hearing and the orders sought at this stage are to the effect that the defendant, Mr Alexandria George Brookes, be examined by two psychiatrists for the purpose of them furnishing reports to the Court and that Mr Brookes be made the subject of an interim supervision order. Ultimately, the plaintiff will be seeking a high risk sex offender extended supervision order for a period of 5 years.

2. [2]

   Mr Brookes is represented by Mr Johnston SC. In written submissions, Mr Johnston has indicated that his client does not oppose the making of the orders sought at this preliminary stage. He accepts that all of the preconditions in the Act are satisfied. However, Mr Brookes reserves his position to challenge at the final hearing the making of an extended supervision order, its length, and the proposed conditions.

3. [3]

   Notwithstanding this concession it is necessary for me to be satisfied that the making of the orders is authorised by the provisions of the Act and is appropriate in the circumstances. However, the fact of the concession means that I may state my reasons more succinctly than would otherwise be the case.

Procedural history

1. [4]

   Mr Brookes has been the subject of previous applications under the Act:

Criminal offending and related history

1. [5]

   Mr Brookes was born in 1964. His New South Wales and Queensland criminal histories include the following:

2. [6]

   There appear to have been a considerable number of occasions in which Mr Brookes has engaged in sexual offending against children for which he has not been charged: State of NSW v Brookes [2010] NSWSC 728 at [20]-[23].

3. [7]

   The child abduction offence for which Mr Brookes was sentenced on 16 February 1987 occurred when he was almost 22 years of age. He abducted a 2 year old girl at a railway station and took her towards the toilets. There was an issue about whether his motive was sexual.

4. [8]

   Whilst serving the sentence for that offence he and another inmate, Dennis Ferguson, planned to abduct three children of an acquaintance of Ferguson; boys aged 7 and 8 and a girl aged 6. Ten days after he was released from gaol on 16 July 1987, he and Ferguson took the three children from Sydney to a Brisbane motel where they were subjected to serious sexual assaults over a two day period. He and Ferguson also engaged in sexual behaviour with each other in the presence of the children. This led to the convictions in the Brisbane Supreme Court and the 11 year sentence from which Mr Brookes was released at its expiration on 5 January 1999.

5. [9]

   After committing some relatively minor offences in Queensland, Mr Brookes returned to New South Wales. In January 2001 he indecently assaulted a 9 year old boy after meeting him at a church service and taking him to a toilet block. This followed an unsuccessful attempt to take a 4 year old boy to the toilet with him. This brought about the sentence of 3 years 6 months imposed by the District Court at Penrith. Although he was allowed a 2 year parole period within that sentence he was not released until 20 July 2004 when the full term had expired.

6. [10]

   Mr Brookes was required to report to a police station pursuant to his obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) following his release from gaol. He absconded but was arrested soon after. He must have been granted bail because he breached an obligation to inform police of a change of address. These offences brought the 8 month sentence imposed in the Local Court at Parramatta on 12 January 2005. To circumvent the 1 month non-parole period, the Parole Board revoked his parole and he served the full term of the sentence and was released on 19 August 2005.

7. [11]

   Mr Brookes was thrice charged with breaching the extended supervision order made by Grove J on 15 May 2008. Kirby J subsequently calculated that in the 23 months following Mr Brookes' release on that order he spent 20 months in custody serving sentences. The first breach occurred within a matter of weeks. The breach that founded the charge dealt with in the Local Court at Bankstown on 10 February 2009 was not the only breach. Pictures were found in his room of babies and children aged between 6 and 10 years. He threatened a housemate with a knife. A knife was found in his room. He was reported to be repeatedly staring at children when being escorted in public despite being warned not to. Contrary to his notified schedule of movements he went for a walk one day, ignored an alarm on his electronic monitoring device that he was approaching an exclusion zone, and entered a property which contained a child care centre. He had been warned not to have any contact, direct or indirect, with a particular woman but he contacted her through a third party.

8. [12]

   Mr Brookes was released on parole on 10 February 2009. He was still subject to the ESO made by Grove J. In less than a month he was found to be hoarding medication in his room and was again charged with breaching the order. This brought the 6 month sentence imposed in the Local Court at Campbelltown.

9. [13]

   Further, repeated instances of contacting the woman he was prohibited from contacting brought the 9 month sentence imposed in the Local Court at Waverley on 8 December 2009. That sentence expired on 30 April 2010. It was around that time that the plaintiff brought the further proceedings that culminated in the making of the continuing detention order by Kirby J on 9 July 2010.

10. [14]

    When that continuing detention order was nearing its end the plaintiff applied for an extended supervision order. Hidden J noted from the reports that were before him that Mr Brookes had made some progress but it was considered appropriate that he remain supervised in the community for an extended period. Dr Stephen Allnutt and Dr Samson Roberts, both experienced psychiatrists in this field, were both of the view that Mr Brookes remained a high risk of sexual offending. Dr Roberts remarked that Mr Brookes' psychiatric diagnosis of Schizoaffective Disorder rendered him predisposed to disinhibited behaviour and impaired judgment in the event that the condition is not adequately controlled. He had paedophilic tendencies that rendered him prone to sexual attraction to children which was being moderated through the treatment provided to him.

11. [15]

    Mr Brookes did not challenge the making of the ESO which Hidden J made on 12 December 2011.

Risk assessment

1. [16]

   A risk assessment report by Dr Richard Parker, senior psychologist, Serious Offenders Assessment Unit of Corrective Services NSW dated 8 March 2016 is before the Court. It is lengthy but helpful. For present purposes it is only appropriate to quote a portion of the executive summary Dr Parker provided:

Compliance with the current extended supervision order

1. [17]

   An "Extended Supervision Order Completion Report" prepared by Ms Allison Roberts, Community Corrections Unit Leader, Metropolitan Extended Supervision Team, dated 3 May 2016 describes Mr Brookes' performance under the current ESO. It is useful to set out some extracts from that report.

2. [18]

   Under the heading "Current Circumstances", Ms Roberts wrote:

3. [19]

   Under the heading "Overview of Response to Extended Supervision Order" she wrote:

4. [20]

   One of the conditions of the current order is that Mr Brookes not associate with other sex offenders. In relation to this, Ms Roberts wrote:

5. [21]

   Ms Roberts concluded her report as follows:

Assistance from a community support mental health service

1. [22]

   The manager of the community support service who has been overseeing the services provided to Mr Brookes since October 2013 provided an affidavit in which he indicates that Mr Brookes has been seen twice daily for six days per week with appointments lasting up to three hours at a time. He has been assisted with developing independent living skills including meals, cleaning, shopping, medication management, attending social activities and being supported to all appointments.

2. [23]

   The manager deposed that his organisation is prepared to remain engaged with Mr Brookes – provided the ESO is extended by the Court. For reasons which are provided and would not be appropriate to set out here, the continued involvement of this organisation with Mr Brookes, which has been quite clearly beneficial to him, would be in serious jeopardy if a further ESO was not made.

Risk management plan

1. [24]

   A risk management plan by Ms Roberts dated 14 September 2016 is before the Court. Ms Roberts has carefully considered the management of Mr Brookes within the community and her report provides support for the conditions that are proposed by the plaintiff if a supervision order is made.

Submission for the plaintiff

1. [25]

   Detailed and helpful written submissions were provided by counsel for the plaintiff. They included that the following factors supported the making of an ESO:

Conclusion

1. [26]

   From my perusal of all of the material, I am satisfied that the matters relied upon by the plaintiff in the supporting documentation would, if proved, justify the making of an ESO.

2. [27]

   As a consequence I must make the orders described in s 7(4) of the Act which I will do.

3. [28]

   I am also satisfied that it is appropriate to make an interim supervision order pursuant to s 10A of the Act.

Orders

1. [29]

   I make the following orders: