State of New South Wales v Bird

1. [1]

   By a Summons filed on 6 September 2016, the State of New South Wales (“the State”) sought orders pursuant to the Crimes (High Risk Offenders) Act 2006 (“the HRO Act”) that the defendant, Mr Bird, be subject to a continuing detention order for a period of 6 months from his proposed date of release, and thereafter subject to an extended supervision order (“ESO”) for a period of 5 years.

2. [2]

   At the commencement of the hearing on 30 November 2016, counsel for the State informed the Court that the State no longer sought a continuing detention order, and only sought an ESO subject to specified conditions, for 5 years.

3. [3]

   Mr Bird is due to be released on 10 December 2016, after serving a sentence of imprisonment imposed on 5 September 2012 by Black DCJ in the District Court at Lismore.

4. [4]

   Mr Bird opposed the making of a continuing detention order, but does not oppose the making of an ESO. His counsel opposed the length of time and the imposition of a number of conditions.

5. [5]

   On 21 September 2016, Beech-Jones J granted the relief sought in paragraph 1 of the Summons, namely an interim order pursuant to s 15(4) of the HRO Act appointing two qualified psychiatrists to examine the defendant. His Honour ordered that the matter be listed for final hearing on 30 November 2016.

6. [6]

   For the reasons which follow, I am of the opinion that an ESO ought to be made for a period of 5 years commencing on 10 December 2016, subject to the conditions set out in the Schedule to this judgment.

Index Offence

1. [7]

   On 15 June 2012, the defendant pleaded guilty to an offence of attempted aggravated sexual assault in contravention of ss 61J and 61P of the Crimes Act 1900. The circumstance of aggravation was that the defendant inflicted actual bodily harm on the victim at the time of the commission of the offence. The offence occurred on 11 December 2010 in Urbenville in northern NSW.

2. [8]

   The total sentence imposed by Black DCJ was 6 years, commencing on 11 December 2010 and concluding on 10 December 2016. A non-parole period of 3 years and 9 months was imposed which expired on 10 September 2014. The defendant has not been granted parole since that time.

3. [9]

   It is necessary to say something about the facts of the offence. It appears that the defendant, in the early hours of the morning on 11 December 2010, entered a house in Urbenville through a back window. The house was occupied by the victim, a 58 year old woman who lived alone. Once inside, the defendant entered the victim’s bedroom. She was sleeping naked in her bed. The defendant removed his clothes and started touching the victim. The victim awoke, struck the defendant with her arms and shouted “Get out!”. The defendant then climbed on top of the victim and held her down. The victim screamed and rolled to her right, striking her head against the bedside table.

4. [10]

   The defendant attempted to have sexual intercourse with the victim, saying “I’ll kill you” and “You shouldn’t be lying there naked”. The defendant was unsuccessful due to the victim’s struggles. The defendant eventually relaxed his hold on the victim, at which point the victim managed to get to her feet. She screamed to her neighbour for help. The defendant then ran out the back door.

5. [11]

   The victim called police. She was taken to Lismore Base Hospital and examined. She sustained bruising and a small fissure to her vagina. The defendant was later arrested at about 7am on 11 May 2010 at a residence in Urbenville. He participated in an ERISP in which he made admissions to entering the victim’s residence and “sexually harass[ing]” her.

6. [12]

   The defendant was charged on 15 June 2012 and he pleaded guilty on that day. The sentencing judge allowed him a 25% discount on sentence because of that early plea. The sentencing judge also found special circumstances on account of the defendant’s intellectual disability and the difficulties to which that disability would give rise in a custodial setting.

7. [13]

   The Crown submitted, and Mr Bird’s counsel conceded, that this index offence was a “serious sex offence” within the meaning of s 5(1) of the HRO Act.

Relevant Legislation

1. [14]

   It is necessary to set out the relevant provisions of the HRO Act, which constrain the decision-making of the Court in these proceedings.

2. [15]

   The objects of the HRO Act are set out in s 3:

3. [16]

   It is the State’s contention in these proceedings that Mr Bird is a high-risk sex offender.

4. [17]

   Section 5B makes provision for a person to be found to be a high-risk sex offender. Relevantly, it provides:

5. [18]

   The concept of a serious sex offence is also central to the disposition of these proceedings. A serious sex offence is defined in s 5 of the HRO Act in the following terms:

6. [19]

   It is unnecessary to set out the detail of the underlying provisions because the State contends, and counsel for Mr Bird accepts, that he is a supervised sex offender in accordance with s 5I of the HRO Act, which means that the Crown is entitled to make an application for an ESO.

7. [20]

   In considering the State’s application for an extended supervision order, s 9 of the HRO Act identifies the matters to which this Court must have regard. It is in the following terms:

8. [21]

   The HRO Act provides that these proceedings are civil proceedings and are to be conducted generally in accordance with the law (including rules of evidence) relating to civil proceedings.

Concessions

1. [22]

   In her written submissions for the final hearing, counsel for the defendant informed the Court that the defendant made the following concession for the purposes of this hearing, and to be taken into account in this judgment. The concessions were that:

2. [23]

   Counsel for the defendant submitted that the concessions to which reference has just been made are such that, in substance and effect, the Court would be satisfied to the requisite standard on the available material of the relevant criteria for the making of an ESO, but not necessarily on the terms or conditions for that ESO or for the duration which the State sought.

3. [24]

   It is appropriate in this judgment to record some relevant factors, and make reference to some parts of the evidence. However, the Court is entitled to place significant weight upon concessions properly made by a defendant in these proceedings where the defendant is represented by counsel. Here, there is no question but that these concessions have been carefully considered and represent the product of such consideration.

4. [25]

   I also note that the defendant did not place any evidence before the Court. Whilst there is no obligation on the defendant so to do, and he is not be penalised in any way by not doing so, the absence of any evidentiary dispute means that findings of fact can be more easily made.

Evidence

1. [26]

   The State relies upon the following evidence:

   1. (1)

      An expert report prepared by forensic psychiatrist Dr Jeremy O’Dea, filed on 26 October 2016;

   2. (2)

      An expert report prepared by forensic psychiatrist Dr Gerald Chew, filed on 24 October 2016;

   3. (3)

      An affidavit of Ms Danielle Matsuo affirmed on 15 November 2016; and

   4. (4)

      An affidavit of Mr Greg Garrett sworn on 15 November 2015.

2. [27]

   The following facts are drawn from the evidence.

3. [28]

   The offence for which the defendant is presently serving a sentence has been earlier described at [7]-[14].

4. [29]

   On 2 May 2004, when the defendant was 16 years of age, the defendant was charged with 15 offences, including four charges arising from two incidents of sexual offending. These charges were dealt with by the Mental Health Court in Queensland.

5. [30]

   The first incident of sexual offending occurred on 27 March 2003, when the defendant was just over 15 years of age. It was alleged that the defendant entered a hospital in south east Queensland claiming to be the nephew of a female patient, who was in a vegetative state. Hospital staff allowed the defendant to visit the patient. About 20 minutes later, hospital staff observed the defendant on top of the patient with his pants pulled down. He appeared to be having sexual intercourse with the patient. He was pulled off the patient by a security officer and held at the hospital until police arrived. He later told police in an interview “I didn’t mean to…”.

6. [31]

   In relation to this incident, the defendant told Dr O’Dea:

7. [32]

   The second incident of sexual offending occurred on 1 May 2003, a few months after the first sexual offence. It was alleged that the defendant approached a woman while she was outside her house. The defendant asked her for a cigarette lighter, to which she replied that she did not have one. The defendant loitered outside the victim’s house for 10 to 15 minutes before forcing his way inside through the front door. Inside, the defendant grabbed the victim and forced his hand down the front of the victim’s pants, touching her vagina. The victim managed to break free and call police. Police arrived at the house and arrested the defendant.

8. [33]

   In relation to this incident, the defendant told Dr O’Dea:

9. [34]

   On 20 September 2004, the charges were heard by Wilson J in the Mental Health Court in Queensland. Wilson J found that the defendant did not suffer from a mental illness but that he suffered from mental retardation and a substance use disorder. Her Honour found that the defendant was permanently unfit to stand trial and that he was at a high risk of reoffending.

10. [35]

    On 1 December 2004, Wilson J made a forensic order in which she ordered the defendant to reside at a mental health service facility and made other orders relating to his treatment in the community.

11. [36]

    It is important to note that, as a result of her Honour’s finding that the defendant was permanently unfit to stand trial, and the procedures governing the Mental Health Court in Queensland, no convictions were recorded against the defendant. The sexual offences on 27 March 2003 and 1 May 2003 have therefore not been the subject of a contested trial or a formal plea by the defendant.

12. [37]

    In State of New South Wales v Conway [2011] NSWSC 488, Simpson J (as her Honour then was) made the following observations about the scope of an offender’s criminal history that could be taken into account on an application for an extended supervision order under the Crimes (Serious Sex Offenders) Act 2006:

13. [38]

    I respectfully agree with those observations. They apply with equal force to the provisions of the HRO Act, which contains the same statutory language.

14. [39]

    It appears from the tendered material that the defendant initially disputed the charges in relation to the incidents on 27 March 2003 and 1 May 2003. However, as the extracts from Dr O’Dea’s interview with the defendant demonstrate, the defendant has now admitted to the offences. In those circumstances, it is in my opinion appropriate to take these earlier offences into account in determining whether to make the orders sought by the State.

15. [40]

    On 21 September 2016, Beech-Jones J ordered pursuant to s 15(4) of the HRO Act, that two psychiatrists be appointed to conduct separate examinations of the defendant and provide reports to the Court: see State of NSW v Bird [2016] NSWSC 1420. It is appropriate to review and take into account those reports.

16. [41]

    Dr Jeremy O’Dea, a forensic psychiatrist, completed his report on 26 October 2016.

17. [42]

    The defendant told Dr O’Dea that he was from Logan in Queensland, and was a member of the Waka Waka and Bungalong indigenous peoples. He gave a history of a difficult upbringing during which time he lived in a number of different houses, occasionally as a ward of the State, and with his aunties. He has had limited formal education. He is unable to read or write, and related an extensive history of petrol sniffing, alcohol and cannabis abuse and dependence from an early age.

18. [43]

    The defendant’s first encounter with the juvenile justice system appears to be in July 1991 at the Toowoomba Children’s Court when he was 11 years and 5 months old. No conviction was recorded and the defendant was reprimanded with respect to possession of property reasonably suspected of being stolen.

19. [44]

    Dr O’Dea then recorded an extensive discussion with the defendant about his criminal offending including his past sexual offending.

20. [45]

    Dr O’Dea recorded the results of a psychological assessment from June 2003, which indicated that the defendant was functioning within the intellectually deficient range of intelligence, and the results of a further psychological report in 2011, that the defendant’s “… performance was consistent with his measured IQ which was in the extremely low range (69 and below) and commensurate with a percentile rank of 1 …”.

21. [46]

    He recorded a history of childhood diabetes.

22. [47]

    Dr O’Dea concluded in the following terms:

23. [48]

    Dr O’Dea opined that it would be of assistance to Mr Bird to engage in ongoing structured and supervised alcohol and other drug counselling and rehabilitation in the community in the long term, and that he be provided with judicious use of available and appropriate medication to assist him controlling his cravings for alcohol. Dr O’Dea also noted that Mr Bird should be referred to a suitably qualified and experienced forensic psychiatrist for further assessment of his overall sexuality and his sex offending behaviours.

24. [49]

    Dr O’Dea was of the opinion that by reason of the defendant’s level of intellectual functioning:

25. [50]

    Dr O’Dea accepted that the defendant’s diagnosis of diabetes may make the prescription of such medication complex.

26. [51]

    Dr O’Dea went on to consider general risk issues. He referred to the various risk assessment tools, and noted their limitations. He also noted the uncertainty surrounding the making of clinical judgments of future risk. He expressed the following view:

27. [52]

    Dr O’Dea was of the view that further detention in custody was unlikely to significantly reduce the risk that the defendant presented on release into the community. He went on to recommend that there should be an extended supervision order of the defendant in the community for five years with regular monitoring and reviews. He said:

28. [53]

    Dr Gerald Chew completed his report on 4 October 2016. It was filed on 24 October 2016.

29. [54]

    Dr Chew obtained a history which was essentially the same as that obtained by Dr O’Dea. He performed a mental state examination in which he concluded that there was no formal thought disorder, there were no delusions and no hallucinations. He thought the defendant’s affect was reactive and congruent with mood. He thought the defendant’s presentation was consistent with previous testing indicating intellectual disability.

30. [55]

    He concluded that the defendant suffered from a mild intellectual disability and displayed difficulties in many domains including reading and writing. He concluded that the defendant suffered from an alcohol use disorder which was in remission in a controlled environment. He concluded that the defendant did not suffer from any major mood or psychotic disorder.

31. [56]

    In attempting to describe the defendant’s risk of committing a further serious sex offence, Dr Chew said this:

32. [57]

    Dr Chew undertook a STATIC-99 test and found that the defendant was in the moderate-high risk category of recidivism. Dr Chew noted that the recidivism estimates provided by the STATIC-99 test were group estimates based upon reconvictions. As such, he did not think that those estimates directly corresponded with the recidivism risk of an individual offender which may be higher or lower than the probabilities derived from the STATIC-99 test.

33. [58]

    Dr Chew has asked for his opinion as to whether the risk which Mr Bird posed could be managed in the community. Of this he said:

34. [59]

    Dr Chew did not recommend the prescription of hormonal anti-libidinal medication, particularly because it was relatively contra-indicated in individuals suffering from diabetes.

35. [60]

    Dr Chew was asked to provide his views on the appropriate duration for an ESO. His attention was drawn to the fact that under the HRO Act, an ESO cannot exceed 5 years, although further extension supervision orders can be made. His opinion was this:

36. [61]

    The State also relied upon other evidence, including the opinion of a psychologist, Danielle Anna Matsuo, who is a registered psychologist. Ms Matsuo has never met the defendant. She provided information in her affidavit based upon her review of a series of risk management reports and the proposed conditions of supervision for the defendant.

37. [62]

    Ms Matsuo noted that since November 2015, Mr Bird had been participating in a prison-based residential therapy program known as “Self-Regulation Program for Sexual Offenders”. It is a program designed for men who have sexually abused adults and/or children and have an intellectual disability or other cognitive impairment and have limited adaptive skills in the jail environment.

38. [63]

    Ms Matsuo noted that the defendant had attended 111 sessions in this program in a 10 month period up to 30 September 2016. Ms Matsuo noted that, at the time she deposed to her affidavit, the defendant had not completed the treatment and, accordingly, a treatment report was not available. However, she was provided with an update by the psychologist conducting the program. It was to the following effect:

39. [64]

    It was anticipated that this program would be completed before the end of November 2016.

40. [65]

    The State also relied upon an earlier expert report by Dr Scott Harden, a psychiatrist, which was dated 1 July 2003. The report was obtained with respect to charges the defendant was facing in Queensland.

41. [66]

    Dr Harden undertook a mental state examination. He expressed this conclusion:

42. [67]

    He concluded this diagnosis:

43. [68]

    Dr Harden concluded that the defendant suffered from a mental infirmity which he described as “mental retardation”. He also concluded that the defendant was unfit for trial at that time.

44. [69]

    As well, the plaintiff pointed to a report from a Ms Dyer, a child safety officer in the Department of Child Safety of the Queensland government. That report appears to have been provided to the Court to assist in the determination of the appropriate sentence to be imposed on the defendant.

45. [70]

    There were a series of other reports relied upon by the plaintiff. The first in point of time, relevant to this hearing, is a risk assessment report of Ms Amee Press of 27 May 2016. Ms Press prepared her report for the Commissioner for Corrective Services in light of the application which was to be made under the HRO Act.

46. [71]

    Ms Press administered the STATIC-99R test. She expressed this conclusion:

47. [72]

    Ms Press noted in particular that the reoffending considered relevant for the purposes of STATIC-99R was not of a kind necessarily required to meet the criteria of serious sexual offence as defined in the HRO Act. Ms Press, by reference to other assessments, including STABLE-2007 and RSVP, concluded that Mr Bird “… currently presents a high risk of committing further sexual violence”.

48. [73]

    She considered that a number of dynamic factors were relevant, or potentially relevant, in considering Mr Bird’s risk of sexual re-offending. They were:

49. [74]

    Ms Press expressed these conclusions with respect to overall risk:

50. [75]

    In her conclusions and recommendations, Ms Press said this:

51. [76]

    On 11 July 2016, Mr Therese Sartor, a senior community corrections officer, completed a risk management report. That report demonstrated that it was possible, by the imposition of an extended supervision order, for appropriate supervision and strategies to be put in place to reduce the risk of the defendant reoffending.

Discernment

1. [77]

   I have had regard to each of the matters required by the terms of s 9 of the HRO Act which is set out above at [20]. Many of them have been referred to earlier in this judgment. I note that I am also required to have regard to the objects of the HRO Act identified in [15] above. Of particular relevance in the circumstances of the case are the safety of the community (s 9(3)(a) of the HRO Act), and the progress and achievement of the defendant in undertaking various treatment or rehabilitation programs whilst in custody (s 9(3)(e) of the HRO Act).

2. [78]

   I am satisfied that the State has established all of the necessary preconditions for this Court to make an ESO.

3. [79]

   In light of the opinions of both Doctors O’Dea and Chew, that the defendant requires ongoing treatment, supervision and assistance, I am satisfied that it is appropriate for this Court to make an ESO, subject to appropriate conditions.

4. [80]

   The first question which arises is the period of time for which the ESO ought be made. The State sought that the order be made for 5 years. The defendant opposed the making of an order for that length of time, submitting that it was not necessary, and that a shorter time would be appropriate. No specific time period was identified by the defendant as appropriate.

5. [81]

   The reports of the defendant’s progress in various rehabilitation and treatment programs whilst he has been in custody indicate that essentially due to his lack of reading and writing skills, and his intellectual disability, he often takes longer to complete tasks than others, particularly those who do not suffer from any intellectual disability. This requires the defendant to apply himself consistently over time in order to achieve the identified goals. Past experience demonstrates that on some occasions the defendant has not been able, at his first attempt, to achieve satisfactory goals. Nevertheless, as the reports show, with support and persistence, the defendant has been able, whilst in custody, to make reasonable progress.

6. [82]

   The Court does not have before it, a proposed program for the defendant. It is therefore not able to derive from any such proposed program the length which it is anticipated any rehabilitation or other treatment programs will take.

7. [83]

   The only evidence before the Court as to the period necessary for an extended supervision order is that contained in the report of Dr Chew, who describes the period as a “prolonged period”: see [59] above, and that of Dr O’Dea, which is set out at [51] above, namely that a period of at least 5 years is appropriate.

8. [84]

   In considering this question, in my view, the Court must attend and give effect to the objects of the Act. The primary object of the HRO Act is to “… ensure the safety and protection of the community”. Another objective is to encourage rehabilitation.

9. [85]

   Having regard to the defendant’s intellectual disability, and his past history of progress through courses, and the opinions of both Dr Chew and Dr O’Dea, it seems to me that the appropriate way of giving effect to the objects of the Act and, in particular, the protection of the community, is to impose an ESO for the maximum period of 5 years.

10. [86]

    It needs to be recognised that, even though an ESO is imposed for 5 years, the conditions which are presently formulated, can be changed for the benefit of the defendant, by the departmental supervising officer where it appears that the defendant has made real progress towards rehabilitation, provided that such amelioration is consistent with the protection of the community.

11. [87]

    Accordingly, an ESO will be imposed for a period of 5 years to commence from the last day of the defendant’s term of imprisonment, which is 10 December 2016.

12. [88]

    It is necessary also for the Court to be satisfied that the conditions sought by the State are appropriate in the circumstances: s 11 of the HRO Act.

13. [89]

    I note that s 12 of the HRO Act provides that a person who fails to comply with the requirements of an extended supervision order, which would include the conditions imposed, would be guilty of a criminal offence for which they may be fined or sentenced to a term of imprisonment for up to 5 years.

14. [90]

    In Attorney-General for NSW v Tillman [2007] NSW CA 119, the Court observed at [5] that the objects of the HRO Act reveal “… that the legislation is protective rather than punitive in its intent”. It is necessary to bear in mind, when considering the appropriateness of conditions, that conditions are not meant to punish a defendant, but are designed to promote the objects of the Act by ensuring the safety and protection of the community, and facilitating rehabilitation of serious sex offenders.

15. [91]

    Although conditions are intended to be punitive, they may nevertheless impose constraints on behaviour. They can extend to mandatory participation in rehabilitation programs.

16. [92]

    I adopt with respect the test described by Beech-Jones J in State of NSW v Fisk [2013] NSWSC 364 at [99], where his Honour said:

17. [93]

    Beech-Jones J added to this, in State of NSW v Burns [2014] NSWSC 1014 at [59] that :

18. [94]

    Conditions are not designed to relate to criminal offending generally, but are designed to address conduct which relates to the risk of future serious sex offences.

19. [95]

    In Wilde v State of NSW [2015] NSWCA 28, at [53], the Court said:

20. [96]

    I will bear these principles in mind when considering the appropriateness of the conditions.

21. [97]

    It is also fair to bear in mind that in the final form presented to the Court, there was little dispute, if any, by the defendant with respect to the conditions. The State, by the time of the final hearing, had taken into account concerns expressed by counsel for the defendant, and had adjusted a number of the conditions to take account of those concerns.

22. [98]

    Accordingly, the Court was only called upon to deal with two conditions in any substantial way.

23. [99]

    The first condition was numbered [25], which was in the following terms:

24. [100]

    The defendant submits that such a condition is inappropriate, because there is nothing in the defendant’s past offending which suggests that the use of devices to access the internet has in any way contributed to his offending.

25. [101]

    As well, the defendant submits that having regard to the conditions with respect to search and seizure, the defendant is also liable to have his mobile telephones, computers or other devices of a like kind searched in the circumstances set out in those conditions.

26. [102]

    The State submits that the imposition of this condition is appropriate to enable the supervising officer to oversee the defendant’s rehabilitation. In particular, the State submits that, particularly having regard to the need for the defendant to be assisted into an orderly reintegration into the community, and in particular assisted to be encouraged to make sensible judgments and to be prepared for independent living in the community, the condition is an appropriate one to allow proper supervision and if a problem with the use of the internet emerges, for it to be addressed as part of the defendant’s ongoing rehabilitation.

27. [103]

    In my view, the condition proposed by the State is both reasonable and appropriate.

28. [104]

    The defendant is a person who, at least according to the history, does not seem to have had much, if any, engagement with the internet. It may be that he will have little in the future. However, access to the internet provides the defendant with an opportunity to explore areas of interest. He can do so in private. In so doing, he will be confronted with temptations of a kind which may tend to increase his risk of reoffending, and which may tend to adversely affect his independent decision-making.

29. [105]

    In those circumstances, particularly as this is not an invasive condition, in my view it is appropriate to ensure the protection of the community and to facilitate the rehabilitation of the defendant, that this condition be imposed.

30. [106]

    The remaining condition which led to a concern being expressed by the defendant, was one that the defendant must let Corrective Services take photographs of him. The State submitted that this was an appropriate condition so that Corrective Services and/or the police had a reasonably current photograph of the defendant if any need to apprehend him for breach of conditions arose.

31. [107]

    As well, it seems to me, that if a departmental supervising officer was to change, it would be useful for the new officer to have a photograph of the plaintiff.

32. [108]

    The defendant submitted that an open-ended condition of the kind suggested did not address the type of photograph to be taken, how often photographs could be taken and how intrusive that condition may be.

33. [109]

    Taking into account those concerns, I am satisfied that an appropriate condition would be as follows:

Conclusion

1. [110]

   I am satisfied that it is appropriate to impose an extended supervision order. I am satisfied that the conditions set out in the Schedule to this judgment are the appropriate conditions to reflect the objects of the Act.

Orders

1. [111]

   I make the following orders:

   1. (1)

      Order that pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to a High Risk Sex Offender Extended Supervision Order for a period of 5 years commencing on 10 December 2016.

   2. (2)

      Order that pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006, for the period of 5 years from 10 December 2016, being the period of the extended supervision order referred to in Order 1, the defendant comply with the conditions set out in the Schedule to this judgment.