State of New South Wales v JS (Final)

1. [1]

   By an amended summons filed on 26 April 2023, the State of New South Wales (the plaintiff) sought final orders pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) that the defendant, JS, be subject to an extended supervision order (an ESO) for a period of 4 years and, pursuant to s 11 of the Act, that he be directed to comply with certain conditions set out in a schedule to the summons. The defendant’s name has been anonymised pursuant to s 578A of the Crimes Act 1900 (NSW) to prevent the identification of the victim of the index offences.

2. [2]

   The plaintiff sought a further order forbidding access to the court file by a non-party without leave of a judge of the Court and, if an application for access is made, requiring prior notification to the parties to allow them an opportunity to be heard. That order is not opposed and will be made.

3. [3]

   On 21 February 2023, Wilson J made preliminary orders, including an interim supervision order (an ISO) to commence the following day, for a period of 28 days. The ISO was renewed on 17 March 2023 and on 11 April 2023 by Yehia J, and by me on 12 May 2023, to expire on 20 May 2023. The application was heard on 4 May 2023. On 17 May 2023, the Court was informed by an email sent by the plaintiff’s solicitor, copied to the defendant’s solicitor, that the defendant had been arrested on 15 May and charged with a criminal offence, which is next before the Local Court on 30 May 2023. The Court has not been informed of the nature of the charges. The ICO is suspended for so long as the defendant remains in custody: s 10C(1A) of the Act.

4. [4]

   I note at the outset that the defendant opposed the making of an ESO and I have determined not to make such an order.

The defendant’s criminal history

1. [5]

   The defendant is a 63-year-old Indigenous man who is in receipt of a disability support pension and programs that are provided to him through the NDIS. He is single and the father of three adult children, with whom he does not presently have contact.

2. [6]

   The defendant had 12 appearances in the Children’s Court, the earliest at the age of 12 years, for a range of violence and property offences, for which on four occasions he received committals to an institution. The pattern of offending continued into his early adult years, with multiple convictions between the ages of 19 and 38, although his only sentence of imprisonment in that period was in 1979 for escaping lawful custody, being one month’s imprisonment.

3. [7]

   On 23 January 2003, the defendant was arrested in the Australian Capital Territory (ACT) and charged with having committed the offence of incest on 18 November 2002 upon his daughter, who has an intellectual disability, at the time having the equivalent intellectual capacity of a child between the ages of 8 and 9 years. The defendant was then aged 42 and his daughter was aged 17. He was granted bail but failed to appear. He was rearrested in New South Wales on 1 May 2003 and extradited to the ACT.

4. [8]

   On 16 April 2004, when he was aged 44, the defendant was convicted of the offence of incest in the ACT Supreme Court and was sentenced to 4 years imprisonment commencing on 16 May 2003, to be suspended after 11 months, with subsequent supervision pursuant to a five-year good behaviour bond. He had served the 11 months on remand as of the date of sentence, so that he was immediately released. He was to enrol in a sex offender program in Morisset in New South Wales, but did not attend.

5. [9]

   Eight months after the defendant’s release to supervision, he again sexually assaulted his daughter, this time over a period of 5 days. The assaults were by way of penile vaginal intercourse on three occasions and once by forcing her to fellate him. On one of the occasions of penile vaginal intercourse, he tied the victim by her wrists to a bed. He pleaded guilty to four counts of aggravated sexual assault on the second day after the trial was due to commence, and received an effective sentence of 12 years imprisonment with a non-parole period of 9 years. He became eligible for parole on 31 January 2014 and was released on 27 October 2014.

6. [10]

   The sentencing judge, Williams DCJ, noted the neglect suffered by the defendant in his formative years:

7. [11]

   The sentencing judge found that the offending was serious, nonetheless, because:

8. [12]

   In his remarks, the sentencing judge referred to a report by Katie Seidler, forensic psychologist, which was tendered on behalf of the defendant. Ms Seidler noted that the defendant minimised the extent of his sexual behaviour with the victim. She assessed him as functioning in the “below average” range of intellectual functioning and described his presentation as “severely psychologically disturbed”. She administered various assessment tools that are designed to determine the level of risk of future offending and concluded that he posed a “moderate risk of re-offence”. A letter from an Alcohol and Other Drugs (A and OD) counsellor indicated the defendant had participated strongly in custody-based courses and counselling. His Honour concluded:

9. [13]

   On 15 December 2014, in the ACT Supreme Court, the defendant was sentenced for breaching the good behaviour order that was made on 16 April 2004, to imprisonment for 3 years and 1 month commencing on 13 May 2014, suspended from 12 January 2015 upon him being subject to a good behaviour order for 2 years and 5 months.

10. [14]

    The defendant was returned to custody in New South Wales to serve the balance of parole on 9 March 2015.

11. [15]

    On 8 March 2016, the defendant was again released to parole. In the same month, he was placed on the New South Wales Child Protection Register (CPR) pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW) (the CP(OR) Act).

12. [16]

    On 9 August 2016, police attended the defendant’s place of residence, which was a room in a Community Offender Support Program Centre (COSP). In an exercise of their powers pursuant to the CP(OR) Act, police searched the defendant’s room and the content of his two mobile phones. Police located a piece of paper in one of the defendant’s socks that recorded six email addresses in his name on various forms of social media and a Facebook profile for him on one of the phones. He had not notified the authorities of the two phones, five email addresses and his Facebook profile, as he was required to do by s 9(1)(M) of the CP(OR) Act. On 22 December 2016, he received a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 18 months.

13. [17]

    The applicant’s parole was revoked and he was returned to custody on 2 September 2016. On 10 September 2016, he assaulted a fellow inmate by striking him on the back of his head. He was convicted of common assault and fined $220.

14. [18]

    On 7 April 2018, the defendant assaulted a fellow resident in the block of units where he then resided, by punching him to his face, causing swelling, bruising and minor blood loss. He was convicted of assault occasioning actual bodily harm, for which he received a s 9 good behaviour bond for a period of 2 years.

15. [19]

    On 23 July 2019, the defendant committed an assault and an offence of “intentionally choke”, both in a domestic violence context. The circumstances were that he was residing with his brother at the time. The victim was his brother’s girlfriend. She and his brother were arguing and she came into the defendant’s room to retrieve her bag before leaving. According to the police facts, the defendant became angry with her, yelling and gesticulating. He placed his hands around her neck and pushed her backwards, causing a small laceration to her chin and causing her “to have slight trouble breathing”. The defendant then took hold of her hair and by pulling it, removed her from the residence. On 9 March 2020, he received a Community Correction Order (CCO) for a period of 18 months, commencing on 9 March 2020 (the date of sentence) and concluding on 8 September 2021, with 60 hours community service.

16. [20]

    On the same date, for a call-up on the s 9 bond that was ordered on 22 December 2016 and two further offences of failing to comply with reporting obligations contrary to the CP(OR) Act, the defendant received a sentence of 10 months’ imprisonment, commencing on 9 October 2019 and concluding on 8 August 2020, with a non-parole period of 5 months, expiring on 8 March 2020; that is, the day before the call-up.

17. [21]

    On 9 April 2020, police discovered the defendant had been intermittently residing with a child since 17 March 2020. He had failed to notify authorities, as he was obliged to do. He was charged with failing to comply with reporting obligations contrary to the CP(OR) Act and sentenced to 11 months’ imprisonment, commencing on 26 May 2020 and concluding on 25 April 2021, with a non-parole period of 7 months, expiring on 25 December 2020.

18. [22]

    On 2 October 2020, a child protection prohibition order (a CPPO) for a period of 5 years was made at Liverpool Local Court, pursuant to s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). The order prohibited the defendant from communication or contact, or attending places of potential contact, with any person under the age of 18 unless it is a child nominated on the child protection register. It forbade:

19. [23]

    On 26 May 2021, while drinking alcohol with two female friends, the defendant informed one of them, in whose residence they were at the time, that he wanted to have sexual intercourse with her; she refused and asked him to leave. As he left, the second woman followed him. At a metal entrance gate to the property, with his left arm, he “smacked” the victim’s right arm, causing it to impact the metal gate, resulting in a small laceration to her right palm. He also used both hands to push her to her chest. He was sentenced for an assault occasioning actual bodily harm and contravening an apprehended domestic violence order (ADVO), for which he received a CCO for 2 years from 14 October 2021, which will expire on 13 October 2023.

20. [24]

    On 21 June 2021, the defendant was charged with providing false information as to his residential address and failing to notify authorities of the change in his address pursuant to the CP(OR) Act. For these offences he also received concurrent CCOs for a term of 2 years, commencing 14 October 2021 and expiring on 13 October 2023.

21. [25]

    On 23 November 2021, police attended the defendant’s residence pursuant to the CP(OR) Act and discovered an unreported mobile phone which revealed internet searches of a sexual nature. He was arrested and received 15 months’ imprisonment, from the date of his arrest, expiring on 22 February 2023, with a non-parole period of 9 months, which expired on 22 August 2022. The defendant was residing in the community from that date, initially on parole, and remained so at the time of the hearing.

22. [26]

    The defendant’s only prison disciplinary matter over the years that he has been in and out of prison was for “fight or other physical combat” in 2015, for which he received 1 day in his cell. Accordingly, he has an almost unblemished disciplinary record, his only infraction being treated very leniently, which suggests the circumstances were minor.

23. [27]

    A matter that did not result in a disciplinary or criminal charge is an Offender Integrated Management System (OIMS) file note which recorded that on 26 September 2017, a file described as an Art file was left behind when the defendant moved out of his COSP room which was:

24. [28]

    In supplementary written submissions after the hearing, the plaintiff noted that inquiries have been made as to whether there is any more information available about the nature of the material. It transpired that a Computer Operated Policing System (COPS) entry was made, which described the images in more detail and concluded: “None of the images can be classified as child pornography”. The submissions also noted:

Relevant provisions of the Act

1. [29]

   Before an ESO may be made, certain preconditions regarding the timing of the application and the defendant’s custodial status, set out in s 5B(a)-(c) of the Act, must be satisfied. Counsel for both parties agreed at the hearing of the application that those threshold criteria are satisfied. I note that the Court must be independently satisfied that the statutory preconditions are met. I am so satisfied.

2. [30]

   Pursuant to s 6(3) of the Act, an application for an ESO must be supported by documentation that: (a) addresses each of the matters referred to in s 9(3) of the Act; and (b) includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence. Consequent upon orders made by Wilson J, reports were furnished to the Court by Dr Sally McSwiggan, forensic psychologist, dated 13 April 2023, and Dr Yolisha Singh, forensic psychiatrist, dated 19 April 2023.

3. [31]

   Statutory provisions as to the principles applicable to the Court’s exercise of its discretion in determining whether to make an ESO or dismiss the application are set out in ss 3, 5B(d), 5D and 9(2) of the Act, which provide as follows:

4. [32]

   I note that, pursuant to ss 5B and 9(1) of the Act, the power to make an ESO is discretionary; the Court may make an order for an ESO if the four prerequisites in s 5B are satisfied.

5. [33]

   In determining whether to make an ESO, the Court must have regard to certain material and considerations which are set out at s 9(3) of the Act, in addition to any other matter that the Court considers is relevant.

Section 9(3) of the Act

1. [34]

   Section 9(3) of the Act provides:

Forensic reports and evidence

1. [35]

   I have already referred to the matters identified in ss 9(3)(f), 9(3)(h) and 9(3)(h1). The reports that were prepared pursuant to s 7(4) of the Act are to be considered pursuant to s 9(3)(b) but are also relevant to some of the other matters identified in s 9(3). A risk assessment report and a risk management report have been tendered, which are primarily relevant to s 9(3)(d1).

2. [36]

   By way of the defendant’s personal background, Dr Singh gave an account to the following effect. The defendant is the eldest of five children. His family environment was one of “domestic violence, parental alcohol use and infidelity”. His father was a cattle/sheep worker and the family moved around a lot. The defendant married at age 19. He said that he has not had contact with his daughter, who was the victim of his sexual offending, for two years. By way of general background, Dr Singh reported:

3. [37]

   The defendant denied to Dr Singh that he had a sexual interest in children, which she queried:

4. [38]

   Dr Singh took a history from the defendant as to his sexual relationships and interests, which she questioned as to its completeness and consistency with past recorded accounts by the defendant. She noted:

5. [39]

   Dr Singh referred to the search topics that were located on the defendant’s mobile phone in November 2021 which included references to teen-aged girls and sexual violence.

6. [40]

   Dr Singh noted the programs that the defendant had completed whilst in custody. The defendant completed the Getting SMART program, which was an alcohol and other drugs group-based intervention program, in November 2008. He completed the EQUIPS Addiction program in 2015, and “[h]is participation was described as positive, and he was able to demonstrate the concepts learned during the program”. In September 2007, he completed the Sex Offender Preparatory Group (PREP) program, which focused on preparing offenders for engaging in group work rather than constituting sex offence-specific treatment. The defendant participated in the CORE Moderate program between December 2013 and June 2014, and “reportedly engaged well in the program and completed all required tasks though he did sometimes require additional time to do so”. This was a custody-based therapy course run by Corrective Services NSW to address sexual offending, intended for men who had sexually abused adults and/or children, and who had been assessed with low–moderate to moderate risk/needs.

7. [41]

   Dr Singh noted that the defendant:

8. [42]

   Dr Singh noted that the defendant reported having had multiple head injuries as a child and adolescent and that he had previously been diagnosed as having an acquired brain injury. Primary source material in that regard was unavailable, although:

9. [43]

   Dr Singh noted the defendant reported that:

10. [44]

    The defendant told Dr Singh that he smoked tobacco from about the age of 12 and had smoked regularly since then. He did not use other drugs. Dr Singh said that the defendant “failed to recognise any link between his alcohol use and offending behaviour”. I also note from the material that he was drinking alcohol during the five days that he committed the index offences.

11. [45]

    As to an assessment of the defendant’s level of risk of committing a further serious offence, Dr Singh cautioned against reliance upon psychological assessment tools:

12. [46]

    With those provisos, Dr Singh applied the STATIC 99R, which yielded a rating of the defendant being in the “low moderate risk category” or “average risk” of sexual recidivism. Later in her report, she characterised his level of risk as assessed by risk assessment tools as follows:

13. [47]

    Dr Singh noted:

14. [48]

    And later:

15. [49]

    Dr Singh sought to source the defendant’s views on gender-based violence:

16. [50]

    Dr Singh diagnosed the defendant as having an anti-social personality disorder (which is consistently associated with sexual reoffending), a sexual sadism disorder, a major depressive disorder of moderate severity, a post-traumatic stress disorder and alcohol and tobacco use disorders.

17. [51]

    Dr Singh considered that the diagnosis of sexual sadism disorder was established by the defendant’s apparent sexual arousal from the physical or psychological suffering of another person, evidenced by his “adjudicated and non-adjudicated matters and his recent search history”. In addition, he had acted on those urges with a non-consenting person and they had caused him impairment in functioning, resulting in his recent incarceration.

18. [52]

    Dr Singh noted that a sexual sadism disorder is a chronic paraphilic disorder which directly contributes to the defendant’s risk of sexual re-offending; it is a form of deviant sexual arousal which is highly correlated with the risk of recidivism.

19. [53]

    An anti-social personality disorder is also consistently associated with sexual re-offending. Dr Singh stated:

20. [54]

    As to the major depressive disorder, Dr Singh noted that the defendant presented with symptoms of low mood, hopelessness, a decreased motivation, lower energy levels and difficulties in concentration, which may account for his self-reported short term memory lapses, and anhedonia (an inability to feel pleasure in normally pleasant activities). It appears that his depressive symptoms and related impairments are the basis of him being approved for NDIS funding.

21. [55]

    The defendant’s alcohol use disorder could disinhibit his “underlying sexual arousal and thus increase the risk of sexual re-offending”.

22. [56]

    Dr Singh concluded that the defendant posed a risk of committing a further serious offence, as defined in the Act. She explained:

23. [57]

    Dr McSwiggan assessed the defendant on 21 and 23 March 2023. She did not take a history of the defendant’s personal background, but rather made passing references to aspects of it.

24. [58]

    Dr McSwiggan noted that the defendant is presently residing in accommodation provided through NSW Housing. He has been a NDIS recipient for the last two years and has been approved to manage his funds himself. He receives the disability support pension. His younger brother is his only ongoing supportive relationship. He is not presently in a sexual relationship, but would like to be.

25. [59]

    Dr McSwiggan assessed the defendant’s intellectual functioning as being “on the cusp of borderline/low average Intellectual Ability, falling at the 8th percentile compared to peers”. His general ability was in the “low average” range, which I note corresponds with cognitive assessments conducted by Ms Seidler in 2006. Dr McSwiggan assessed his reading age as an “upper primary school level”.

26. [60]

    Dr McSwiggan considered that the defendant does not have a cognitive impairment and that his problems with supervision and planning are unrelated to cognitive disability. However, his level of intellectual ability may impact on his capacity to understand conditions of an ESO:

27. [61]

    Dr McSwiggan noted that in reports dated 16 November 2003 and 21 March 2004, Dr Graham George, forensic psychiatrist, took a history from the defendant of a brain injury. Dr George concluded that the defendant:

28. [62]

    However, neuropsychological testing that was conducted around the same time suggested that any reported memory loss by the defendant was not likely related to an organic condition.

29. [63]

    Dr McSwiggan determined the defendant’s level of risk of committing another serious offence with the assistance of the Static 2002R. The score of 5 placed him at a level of “above average risk” of committing another sexual offence. She explained:

30. [64]

    Dr McSwiggan referred to the Violence Risk Appraisal Guide and Sex Offender Risk Appraisal Guide (VRAG/SORAG). As I understood her report, the defendant returned a level of risk of “Medium” on the former and “High” on the latter. There was little elaboration of what those results meant.

31. [65]

    A risk assessment report was tendered by the plaintiff, dated 8 August 2022, that is, prior to the defendant’s release back into the community. It was prepared by Sarah Wright, a senior psychologist working in the Serious Offenders Assessment Unit of Corrective Services.

32. [66]

    Ms Wright applied the STATIC-99R and obtained the same score as did Dr Singh, that is, that the defendant fell in the “low-moderate” or “Average” risk category for sexual recidivism. When combined with the STABLE-2007, which assesses dynamic risk factors, his score increased to an “above average” risk of sexual recidivism. An application of the Risk of Sexual Violence Protocol (RSVP) found the defendant fell in the “Moderate/Elevated risk category for repeat sexual violence”.

33. [67]

    Ms Wright noted:

34. [68]

    Ms Wright also noted:

35. [69]

    A risk management report, dated 9 September 2022, was tendered. It was written on the basis that the defendant had a “medium” risk level, which was derived from an assessment performed in November 2021.

36. [70]

    As conditions of an ESO, the report recommended electronic monitoring, advanced scheduling of the defendant’s movements and other conditions that are typically recommended. Some that have particular application to the defendant is an abstention from alcohol and regular contact with a psychologist.

The issue of whether the Court should make an ESO

1. [71]

   As noted, the defendant opposes the making of an ESO. His counsel submitted that the Court would not be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision, for the following reasons.

2. [72]

   In the 18 years since he committed the index offences, the defendant has not committed a further “serious offence” as defined by the Act, which suggests that the constraints in place have been sufficient to ensure that outcome. His offending since early 2005, including his non-compliance with obligations under the CP(OR) Act and his CPPO, has been sufficiently minimal to be dealt with in the Local Court.

3. [73]

   The index offences and prior serious offending was exclusively in relation to the defendant’s daughter; he does not have paedophilic tendencies and is “not a person who’s engaged in repeat or prolific serious sexual offending”.

4. [74]

   The plaintiff noted that in order for a sexual offence that is committed against an adult to be a “serious” sexual offence, it had to be accompanied by violence. That is not a prerequisite for a sexual offence against a child.

5. [75]

   In relation to both of these types of sexual offending, the plaintiff submitted that the defendant’s criminal record and the opinions of the forensic experts (Dr Singh and Dr McSwiggan) would satisfy the court to the requisite degree that the defendant poses an unacceptable risk of committing a serious offence.

6. [76]

   The plaintiff referred to the troubling clippings found in 2017 in a room the defendant had previously occupied and his mobile phone internet search history in 2021.

7. [77]

   I found Dr Singh to be impressively clear and logical in the manner in which she arrived at her diagnoses and opinions, in particular, her conclusion that the defendant poses a risk of committing a further serious sex offence. That conclusion took into account her diagnoses of an anti-social personality disorder and sexual sadism disorder; the defendant’s (historical at least) obsessive passion for his daughter that led to the offences against her; the exhibiting of gender-based violence implicit in the incidents of July 2019 and May 2021 and his former wife’s account of violence within their marriage; the concerning nature of the clippings found in 2017; and the defendant’s internet search history, discovered in 2021.

8. [78]

   Against those considerations is the absence of a serious sexual offence committed by the defendant in his time in the community (approximately four and a half years) over the last 18 years since the index offending; the relatively minor nature of the offences of violence he has committed since then; his successful completion of multiple rehabilitation programs in prison; the likely positive effect of the support he will receive through the NDIS; and the results of statistical psychological tests that are intended to determine the level of risk of an offender committing a sexual offence, in particular, a violent sexual offence.

9. [79]

   I found Dr McSwiggan’s report less helpful, in part because I found her opinions in her report to be not so accessible. Ultimately, however, her opinion as to the defendant’s level of risk of committing a serious offence, as defined in the Act, is not dissimilar to that of Dr Singh.

10. [80]

    I accept Dr Singh’s opinion that there is a risk of the defendant committing a further serious sex offence, as defined in the Act. However, the test to be applied on this application is whether the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing such an offence (emphasis added). In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, Beazley P (Gleeson JA agreeing), in the context of considering the meaning of the term “unacceptable risk” in s 5E(2) of the Act (since repealed), which was in a similar context, said, at [61]:

11. [81]

    I am not satisfied to a high degree of probability, as that term is understood in the context of s 5D of the Act, that the defendant poses an unacceptable risk of committing a serious offence, as defined in the Act. There is, however, a likelihood in my view that the defendant will continue to breach his reporting and other obligations arising from child protection legislation and that he will continue to commit relatively minor criminal offences of violence.

12. [82]

    I have arrived at the finding that the test in s 5B(d) of the Act is not made out without taking into account that the defendant is subject to a 5-year CPPO which still has more than 2 years to run, and that he is on the CPR, although it would have been open to the Court to do so. I note that Rothman J, in State of New South Wales v Rigby (Final) [2021] NSWSC 472, at [42], considered that the Court on an application such as this is entitled to have regard to:

13. [83]

    Those obligations and constraints upon the defendant, pursuant to child protection legislation, fortify my conclusion as to s 5B(d) of the Act. In any event, pursuant to the discretion to not make an ESO even though that test is satisfied, those child protection measures would have persuaded me that an ESO is unnecessary.

Orders

1. [84]

   Accordingly, I make the following orders: