State of New South Wales v Banks (Preliminary)

1. [1]

   By Summons filed on 11 August 2021, the plaintiff seeks orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) against Richard Anthony Banks.

2. [2]

   The defendant is currently subject to a 3 year extended supervision order (“ESO”) imposed by Rothman J on 24 March 2016: State of New South Wales v Banks [2016] NSWSC 926. That order has been suspended on various occasions as a result of Mr Banks breaching various conditions of the ESO and being consequently sentenced to periods of imprisonment. That ESO will expire on 3 October 2021.

3. [3]

   The matter is at the preliminary hearing stage and the State seeks either a “variation” of the defendant’s current ESO by extending it by 2 years (purportedly pursuant to s 13 of the Act) and modifying and adding conditions, or alternatively, orders for the appointment of a psychiatrist and a psychologist and an interim supervision order with a view to a further ESO for a period of 2 years.

4. [4]

   The key issue in contest is whether the material tendered on the application, if proved, satisfies me to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d) of the Act.

5. [5]

   Counsel for the defendant Mr Coady argued that the statutory threshold for the making of a longer or additional ESO is not met and the application should be dismissed, before the Court even has to consider the question of whether such an order should be made: (the s 5B discretion).

6. [6]

   Having reviewed the evidence tendered and considered the submissions of the parties I have concluded that Mr Coady’s argument is correct. For the reasons that follow, I dismiss the application.

The evidence

1. [7]

   The plaintiff tendered the following affidavits:

Background facts

1. [8]

   The relevant background and sexual history is covered in the documents exhibited to the affidavits and is well summarised in the written submissions of counsel for the plaintiff, Mr Harris:

The index offending

1. [9]

   This offending was summarised in the written submissions of Mr Harris:

The relevant legislative provisions and principles

1. [10]

   The statutory preconditions and relevant principles are accurately and helpfully summarised in the written submissions of Mr Harris:

The s 13 issue – An appropriate basis for a new ESO?

1. [11]

   Mr Harris argued that the outcome sought by the plaintiff could be achieved by an order for variation pursuant to s 13 of the Act as sought in Order 1 of the Summons.

2. [12]

   Section 13 of the Act states:

3. [13]

   Authorities of this Court that considered the application of s 13 of the Act in different contexts to those prevailing here were set out in Mr Harris’s written submissions:

4. [14]

   Obviously this Court needs to conclude that dealing with the application by way of variation under s 13, thus extending the ESO for 2 further years, is an appropriate exercise of its discretion. Mr Coady submitted that it was not.

5. [15]

   Although an interpretation that s 13 permits such an approach seems to be open, and Mr Coady acknowledged that the State could be considered to have shown a “material change in circumstances” by virtue of the breaches of the ESO, I am not satisfied that it is an appropriate way to exercise the relatively draconian pre-emptory powers available under the Act. Whilst subs (1A) of s 13 appears to contemplate the possibility of a variation that extends an ESO period (to a maximum of 5 years), it does not in my view, expressly provide that this is a stand-alone alternative mechanism. Further, subs (1B), (2) and (3) appear to be directed to limiting, proscribing or ending an ESO’s term, rather than extending it.

6. [16]

   The underpinning objects of the Act are safety of the community and rehabilitation of offenders. It would not be an appropriate furthering of those objects to simply extend for another 2 years an ESO based mainly on evidence contemporaneous to the defendant’s risk in 2016. This is particularly so given there is good evidence of progress with the defendant’s engagement in and benefit from rehabilitation efforts and counselling, particularly in the last 12 months.

7. [17]

   What must be evaluated is current risk of the relevant kind, not risk that the defendant might breach an ESO, or the risk he presented in 2016. What really has to be considered on this application is whether there is a proper basis for a fresh order and term of supervision to be imposed.

8. [18]

   Mr Harris was unable to point to any decision of this Court where s 13 of the Act was applied as a basis to extend an ESO for a further substantive period. I suspect there are very good reasons why that is so. I am not satisfied that it is consistent with the objects of the Act to utilise s 13 in that way, and certainly not in this case.

9. [19]

   The application will thus be considered and determined in the conventional way under s 5B of the Act, by assessing the evidence tendered, including having regard to the mandatory considerations set out in s 9(3) of the Act, to determine whether, under s 10A of the Act, an interim supervision order should be made.

Mandatory considerations

1. [20]

   Section 9(3) of the Act provides, relevantly to the evidence tendered on this application:

Plaintiff’s submissions

1. [21]

   In addressing the mandatory considerations, the oral and written submissions relied on by the plaintiff, although thorough, raked over and emphasised historical assessments. Although not irrelevant, these old assessments have limited relevance to current risk:

2. [22]

   Emphasis was placed on Dr Parker’s conclusion of psychopathy and that this may be seen as more concerning than a diagnosis of antisocial personality disorder. He also identified drug use as an “ongoing issue”.

3. [23]

   In terms of s 9(3)(d) statistical risk assessments, as set out by Mr Harris in the written submissions:

4. [24]

   Deception was noted in Mr Glover’s report of August 2021 regarding the defendant hiding his relationship with Ms Nagy. There was also drug use: s 9(3)(d1).

5. [25]

   As to the s 9(3)(e) considerations, the defendant attended the Custody-Based Intensive Treatment program for sex offenders (CUBIT). Although he took extra time to complete it, and although he could “illustrate an excellent intellectual understanding of treatment content”, he had difficulty applying it to himself.

6. [26]

   In respect of s 9(3)(e2) and (f), the defendant was noted as difficult to supervise and has been “quite manipulative” and on occasion deceitful, although the October 2020 ESO report noted that his compliance had improved over time. He has been convicted of breaches of his ESO six times involving a total of 15 breaches. The breaches included drug taking.

7. [27]

   In respect of s 9(3)(h) there was other offending in the past both as a juvenile and as an adult between 2004 and 2007 including offensive conduct, destroy and damage property and threaten person with intent to influence witness. The last offence occurred whilst the defendant was in custody.

8. [28]

   In summary, Mr Harris contended that I should conclude that the defendant poses an unacceptable risk of committing a further serious offence if not kept under supervision for the following reasons:

   1. (1)

      Mr Banks has now breached his ESO on 15 occasions, demonstrating a poor long-term capacity for compliance with supervision, or leading a law-abiding life.

   2. (2)

      The most recent breaches have interrupted what was otherwise a positive trend in his behaviour. They demonstrate a need for continued supervision at this time, to address the risk of Mr Banks committing a further serious offence.

   3. (3)

      The breaches of his ESO include three convictions related to drug use. Drug use is directly related to the risk of further serious offending, due to its disinhibiting effect. Mr Banks was detected using methamphetamine as recently as November 2020, purportedly to cope with stress. Having been recently released to the community, Mr Banks would be at heightened risk of further drug use, as demonstrated by his admission that he used buprenorphine (albeit this was not detected). As Dr Parker observes, Mr Banks’ drug use is “by no means overcome”.

   4. (4)

      While Mr Banks has not yet been convicted of a further serious offence, that is in circumstances where he has been subject to intensive supervision, including electronic monitoring and scheduling, during all periods he has spent in the community since 2016.

   5. (5)

      The most recent breaches reveal that Mr Banks has an ongoing capacity for deceit. He did not reveal the existence of a relationship with Ms Nagy to his supervisor or psychologist for a period of about three months.

   6. (6)

      Mr Banks continues to make contact with women in the community, and recently formed a brief relationship with a woman, although that relationship appears to have ended.

   7. (7)

      The unproven allegation of assault against Ms Nagy in the context of an intimate relationship demonstrates a risk that Mr Banks’ conduct could escalate to a serious offence against an intimate partner, in circumstances where he is not supervised, and in particular if he uses drugs.

Defendant’s submissions

1. [29]

   Focussing on the key issue, the reasons why the Court should find the requirements of s 5B(d) were not met, were articulated relevantly, succinctly and persuasively in Mr Coady’s written (and oral) submissions:

   1. (1)

      Despite having a significant criminal record including matters of violence, the defendant has only committed offences that fall within the definition of a “serious offence” on one occasion, in 2006, when he was 23 years old. The offences committed in 2007, when he was 24, whilst extremely serious, were not “serious offences” as defined in s 4 of the Act. He is now 38 years old. He has not offended again in such a serious and sexual manner, whether in custody (noting the 2006 offences were committed against a male victim) or in the community on supervision. This weighs heavily against the test in s 5B(d) being met and accordingly the Court should refuse the State’s primary relief.

   2. (2)

      Whilst it is accepted that the defendant has breached the terms of his ESO involving further periods of custody, the nature of the breaches do not display a trajectory toward more serious offending. Conversely, they are consistent with entrenched personality traits which will not completely resolve with the extension of supervision. There is accordingly a real question as to whether an extended period of supervision will provide the community with protection as opposed to simply exposing the defendant to the possibility of further periods of custody for breaches of the ESO. Such breaches that the defendant has committed ultimately say nothing about the defendant’s risk of serious reoffence.

   3. (3)

      The expert material on which the State originally relied is now dated and in major respects undermined by more recently obtained material. In summary these contradictions include an earlier diagnosis by one court appointment expert of a ‘sexual sadism disorder’ with the principal treatment to be with anti-libidinal medication. This diagnosis has been called into question by a recent report by Dr Parker who has provided individual psychological intervention with the defendant from February 2017 to October 2017; from May 2018 to July 2018; and from January 2020 to present. The defendant has not been treated with anti-libidinal medication and despite this has not offended in a sexual sense. Further factors that call the earlier expert reports into question are that despite breaching the terms of his ESO, the defendant has not committed a serious sexual or violence offence despite commencing and continuing a number of intimate relationships while on supervision. Finally on this point, unproven allegations of domestic violence committed during the period of the ESO should have little to no weight placed on them.

   4. (4)

      Prior to recent breaches of the ESO, which were nonviolent and say nothing about his future risk of committing a “serious offence”, multiple experts suggested there was little further to be gained for a future period of supervision.

   5. (5)

      The defendant has maintained voluntary therapeutic relationships without being compelled to do so (with Dr Parker, and psychologist Carollyne Youssef) for most of his period of supervision. This speaks to a growing maturity and insight by the defendant, which is not reflected in the 2016 expert reports; this calls into question the assessment of risk contained in s 5B(d) of the Act and ultimately undermines the State’s principal relief sought being the appropriate exercise of the Court’s discretion under s 13(1) of the Act.

Consideration and Decision

1. [30]

   Of significant relevance to my assessment of risk are the reports of Dr Richard Parker of 7 July 2021, Mr Glover and Ms Grabham of 9 August 2021 and Ms Yousseff, psychologist, of 6 April 2021.

2. [31]

   As frankly conceded by Mr Harris in his oral submissions, the “high watermark” of Dr Parker’s evidence, (and, in effect, the plaintiff’s application generally), is at par 89 of Dr Parker’s July 2021 report:

3. [32]

   Dr Parker’s Executive Summary in his July 2021 report provides a helpful overview, bearing in mind he has treated the defendant for various periods since 2016, as well as reviewed the history and documentation about him:

4. [33]

   Mr Glover’s report from August 2021 was focused on risk management and so compliance with the current ESO, which obviously has been mixed:

5. [34]

   Ms Youssef, the defendant’s current treating psychologist, observed in her report of April 2021:

6. [35]

   In my view, despite the complex history and the concerning nature of the index offending in 2006 and the other sexual offending in 2007, much rehabilitative progress has been made. The current risk presented by the defendant on my assessment of the mandatory considerations and the expert and other material, simply does not reach the necessary threshold to justify an ESO being made, even on an interim basis: s 10A.

7. [36]

   The matters alleged in the supporting documentation would not, if proved, justify the making of an ESO. Consequently, the Summons must be dismissed.

Orders

1. [37]

   I make the following orders:

   1. (1)

      The Summons is dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs.