State of New South Wales v Rogers

1. [1]

   The State of New South Wales seeks an extended supervision order for a period of three years under ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW). The defendant’s current sentence expires on 11 October 2018. Accordingly, the State seeks an interim supervision order from that date, and an order appointing two qualified psychiatrists to conduct separate examinations of the defendant and to furnish reports to the Court on the results of those examinations.

Legislation

1. [2]

   Section 5B of the Act provides:

2. [3]

   Section 5I(2) defines a supervised offender in the following way:

3. [4]

   Section 4 defines serious offence as, relevantly, meaning:

4. [5]

   Section 5(1) sets out a number of categories of offences that constitute a serious sex offence. Those categories relevantly include:

5. [6]

   The offence for which the defendant was convicted was a count of sexual intercourse without consent in circumstances of aggravation contrary to s 61J(1) of the Crimes Act 1900 (NSW). The circumstances of aggravation were that at the time of the commission of the offence the defendant threatened to inflict actual bodily harm on the victim by means of an offensive weapon being a knife. The offence is within Division 10 of Part 3 of the Crimes Act.

6. [7]

   Section 5D of the CHRO Act provides:

7. [8]

   Although the Act has been re-ordered to some extent since some of the earlier decisions that construed its provisions, what was said in Anderson v State of New South Wales [2016] NSWCA 86 still represents the correct approach. The Court there said:

8. [9]

   Section 9(2) now provides:

9. [10]

   The State of NSW seeks an ISO under s 10A of the Act. That section provides:

10. [11]

    The task of the Court at the preliminary hearing on an application for an interim order is not to predict the ultimate result. Rather the test is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; Attorney-General for the State of New South Wales v Hayter [2007] NSWCA 983 and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].

Background

1. [12]

   The defendant was born on 23 October 1965 and is now aged 52 years. His criminal record commenced in 1980 when he was 14 years of age. Most of the offending involved property, motor vehicle and personal violence offences although, as far as I can ascertain from his criminal history, the personal violence offences were not offences involving serious violence.

2. [13]

   The defendant has been convicted on two occasions of committing serious sex offences. On 19 July 1999 he broke into a home unit in on near Clayton, a suburb of Melbourne. The victim was alone in the unit. She heard a loud noise at about 3:20am which was the defendant breaking into her unit through the laundry door. The defendant grabbed the phone which she had picked up and told her to lie on her stomach, saying that he just wanted to rob the place. Having searched for money he returned to the bedroom, pulled the bedclothes and her pyjamas off her. He then digitally penetrated her vagina and subsequently penetrated her vagina with his penis until he ejaculated.

3. [14]

   He pleaded guilty to those offence as well as offences of burglary, theft, aggravated burglary and robbery, and the possession of heroin. For the digital rape he was sentenced to five and a half years’ imprisonment and for the penile rape he was sentenced to six years and nine months’ imprisonment. The total effective sentence for all of the offending was nine years and seven months’ imprisonment with a minimum term of seven years and seven months.

The index offence and subsequent offending

1. [15]

   The index offence was also committed in conjunction with a break, enter and steal offence on 12 December 1995. As mentioned it was a count of aggravated sexual intercourse without consent. A further offence of aggravated sexual assault was taken into account on a Form 1. The defendant’s involvement in these offences was not known until a cold case notification from DNA was found in April 2009. At the expiration of the defendant’s non-parole period in Victoria he was arrested and extradited to NSW. He pleaded guilty to the NSW offences and was sentenced by Judge Frearson SC in the District Court on 1 October 2010.

2. [16]

   As in the offending in Victoria, the defendant broke into a home unit occupied by a woman. The woman emerged from her shower and was grabbed from behind by the defendant who held a knife to her throat and told her he would use it if he had to. The defendant forced the victim onto a bed. While still holding the knife to her throat he first digitally penetrated her vagina and then subsequently had penile vaginal intercourse for a period of ten minutes culminating in his ejaculating inside her. He held the knife against her for the whole period of the sexual assaults. The knife in fact caused a 1.5cm scratch to her neck.

3. [17]

   The defendant was sentenced for the aggravated sexual intercourse without consent to a non-parole period of four and a half years with an additional term of four years. It is that sentence which will expire on 11 October 2018.

4. [18]

   The defendant was released to parole on 11 October 2017.

5. [19]

   On 20 December 2017 he was arrested and charged with custody of a knife in a public place. He was granted bail and apparently complied with his reporting arrangements and complied with conditions relating to the protection of the victim. He was found not guilty of that offence.

6. [20]

   On 28 March 2018 the defendant was charged with stalk or intimidate with intent to cause fear of physical or mental harm contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). On 29 March 2018 the State Parole Authority revoked the defendant’s parole.

7. [21]

   On 25 July 2018 that charge was dismissed at Newtown Local Court. However, an apprehended domestic violence order was made against the defendant by consent and without admissions.

8. [22]

   On 28 July 2018 the defendant was again released to parole.

Risk assessments

1. [23]

   The defendant was interviewed for the purpose of a risk assessment by Dr Richard Parker, a senior psychologist at the Serious Offenders Assessment Unit.

2. [24]

   Dr Parker found that the defendant’s antisocial behaviour appeared to have developed in difficult family circumstances but had been sustained throughout a variety of environments. The family background was that his father had an affair with the father’s wife’s sister who lived nearby, as a result of which the defendant was born to the wife’s sister. The defendant’s mother died of some sort of drug overdose when he was aged about six years. He was brought up by an aunt and uncle who the defendant described as “religious freaks”. He was physically abused by them during his childhood.

3. [25]

   Dr Parker said that although the defendant’s types of offending had varied, the common theme was the defendant doing what he wanted without concern for other members of society. Dr Parker said the defendant’s sexual offences would appear to be an extension of his general antisocial behaviour rather than any particular predilection for sexual offending. His abuse of prescription medication appeared to have played a role, probably as a disinhibiter. His antisocial cognition appeared to be the driving force behind all of his offending. His early offending led to multiple contacts with the justice system and, consequently, bred a specific form of hatred for authority figures.

4. [26]

   Dr Parker said that despite completing an intensive treatment program, the defendant did not appear to have realised that society’s treatment of him was a reaction to his disregard for its laws. Dr Parker noted that the defendant’s behaviour in custody was poor and that poor behaviour continued since his release on parole. Dr Parker said that the defendant struggled to acknowledge his sexual offending as being the result of any particular choice. Rather, the defendant attributed the offending to his substance abuse.

5. [27]

   Dr Parker noted that since being incarcerated in NSW the defendant had not been detected using drugs. He was subject to urinalysis on eight occasions. He told Dr Parker that apart from a couple of puffs of marijuana during his current incarceration he denied using any drugs since early in his incarceration in Victoria.

6. [28]

   The defendant claimed to have been diagnosed with paranoid schizophrenia at some time when in custody prior to 1990. However, more recent assessments did not support such a diagnosis. Both Dr Parker and a Victorian psychologist who assessed him scored him in the upper end of the high range of psychopathy. Dr Parker noted, however, that there is debate in the literature about how useful a diagnosis of psychopathy is in assessments of risk and treatment recommendations.

7. [29]

   While in custody in Victoria Dr Parker noted that the defendant commenced a sex offender program but was removed after only three sessions for verbally assaulting a staff member. When he was transferred to NSW custody he completed the CUBIT program, but only after being suspended on multiple occasions.

8. [30]

   Dr Parker reported that the defendant’s response to community supervision in the periods since he was first released in October 2017 has been poor.

9. [31]

   Dr Parker assessed his risk of re-offending using the Level of Service Inventory – Revised, the Static 99-R, the Stable 2007 and the Violence Risk Appraisal Guide. On all of these instruments the defendant scored in the high or very high categories.

10. [32]

    Dr Parker noted that five implicit theories among rapists have been identified. These are:

11. [33]

    Of these theories, Dr Parker thought that the first was the most likely explanation for the defendant’s behaviour, but that theory (2) was of significance, and that (3) and (5) may play a part in the defendant’s offending.

12. [34]

    Dr Parker said that the one positive note appeared to be the defendant’s abstention from substance abuse. He said that if the defendant was able to continue to abstain from substance abuse, his chance of avoiding a return to the type of antisocial lifestyle where the sexual offences occurred is improved.

13. [35]

    Dr Parker was subsequently provided with the defendant’s NSW criminal history, documents concerned with the charge of stalk or intimidate, the defendant’s breach of parole report and Corrective Services case notes concerning the defendant from 27 January 2018 until 21 July 2018. Dr Parker swore an affidavit on 2 August 2018 saying that, having read that material and reviewed his Risk Assessment Report, he adhered to his assessment of the defendant’s overall risk of future violent, sexual and general offending, his risk of committing a further serious offence (either sexual or violent), and the likely scenario for future serious offending.

14. [36]

    The risk management report prepared by the Community Corrections Officer and endorsed by the High Risk Offender Applications and Operational Governance Officer on 16 March 2018 noted that the defendant was released to supervised parole in October 2017 to reside at the Nunyara Community Offender Support Program in Malabar. He was subject to electronic monitoring. On 6 November 2017 he was placed on a management plan by COSP Management for ongoing non-compliance and unacceptable behaviour. Thereafter he was issued with a 14 day eviction notice due to his non-compliance with his management plan. He then obtained independent accommodation in a boarding house in the Newtown area.

Determination

1. [37]

   I am satisfied that the threshold requirements in s 5B(a), (b) and (c) are met.

2. [38]

   On the basis of the material I have seen, particularly the report and subsequent affidavit of Dr Parker, I am satisfied that if that evidence was accepted at a final hearing, an ESO ought to be made.

3. [39]

   I note that the defendant does not oppose the making of the order that he consult with two Court appointed psychiatrists or psychologists. I note that the defendant submitted that in the circumstances that it is necessary to make an ESO, he does not oppose such an order being made although he did not concede that the making of an ISO was determinative of the final hearing. Nor did the defendant dispute the conditions that are sought to be imposed for the ISO.

4. [40]

   In his affidavit of 2 August 2018, Dr Parker said that he considered the proposed conditions were necessary to address the risk that the defendant will commit serious offences as defined in the Act. He made specific comments on a number of conditions concerned with electronic monitoring, schedule of movements, curfew, abstinence from alcohol, possession of weapons, access to pornography, use of sex workers and medical intervention.

5. [41]

   Interestingly, in his affidavit, Dr Parker gave as one reason for supporting a schedule of movements, that it would assist the defendant to establish meaningful routines and provide incentive for him to engage in prosocial activities. In his Risk Assessment Report Dr Parker said:

6. [42]

   Nevertheless, the defendant is currently subject to electronic monitoring as part of his parole arrangements. I am satisfied that the conditions sought as part of the ISO should be made including electronic monitoring.

7. [43]

   This is a difficult case because of the defendant’s entrenched anti-authority views. In that way, the more restrictive his life and movements are made, the more likely he is to fail. Indeed, when interviewed, there was a reluctance by him to be released. He indicated that he would rather remain in custody.

8. [44]

   I consider that those managing the defendant will need to monitor him very carefully during the term of the ISO so that, by the time of the final hearing, those persons would be better informed to advise the Court about the extent of the permanent restrictions that should be applied during the ESO. In that regard, as I suggested at the hearing, there is some benefit in delaying the final hearing of this case until as late as is practicably possible. The hearing date for the final hearing is the latest date that can reflect my concerns in that regard.

9. [45]

   Accordingly, I make the following orders: