State of New South Wales v Neal

1. [1]

   The State of New South Wales seeks an extended supervision order (ESO) for a period of three years under ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act). The defendant’s current sentence expires on 7 December 2018. Accordingly, the State seeks an interim supervision order (ISO) 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 with a person under the age of ten years and under authority contrary to s 66A(2) of the Crimes Act 1900 (NSW), as that section was in force on 4 December 2009, the date of that offence. That offence was 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) of the CHRO Act 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 1 November 1969 and is now aged 48 years. The first sexual offence for which the defendant was convicted was an indecent assault of a child under the age of ten years. The offence involved the defendant rubbing and moving his fingers around the vagina of an eight year old girl who was the daughter of his then partner. The offence was committed in opportunistic circumstances when the victim’s mother left her alone with the defendant for a short period of time to attend to the toileting needs of her other child. The defendant was initially sentenced to imprisonment for 12 months with a non-parole period of four months. The District Court subsequently confirmed the conviction but reduced the sentence to a two year section 9 bond.

2. [13]

   On 12 December 2006 the defendant was convicted of committing an act of indecency with a victim under the age of ten years on 29 October 2005. The offence involved the defendant masturbating in front of a 13 month old girl who was the daughter of his then partner. The offence was also committed in opportunistic circumstances when the victim’s mother, who had moved into the defendant’s residence, was asleep in an adjacent room. On 12 December 2006 the defendant was given a four year s 9 bond which involved as a condition accepting referral to professional intervention regarding sexual assaults.

3. [14]

   The index offence was committed on 4 December 2009 during the currency of that bond. The bond was called up and the defendant was sentenced to imprisonment for one month, although that period of imprisonment was made wholly concurrent with the sentence imposed for the index offence.

4. [15]

   As mentioned above, the index offence was sexual intercourse with a person under the age of ten years and under authority. It involved the defendant inserting his penis into the vagina of his nine year old step daughter. That offence was again committed in highly opportunistic circumstances when he had been left with the care of the victim by her mother, who had been hospitalised due to complications with a subsequent pregnancy. The defendant was sentenced to imprisonment for ten years and eight months with a non-parole period of eight years. On appeal, the sentence was reduced to nine years with a non-parole period of six years. It is that sentence which expires on 7 December 2018.

5. [16]

   The defendant was released on parole on 7 December 2015.

6. [17]

   On 10 May 2016, following a plea of guilty, the defendant was convicted of failing to comply with Child Protection Register reporting obligations contrary to s 17 of the Child Protection (Offenders Registration) Act 2000 (NSW). He was sentenced to a term of imprisonment of four months to expire on 8 June 2016. Despite that conviction and sentence his parole in relation to the index offence was not revoked.

7. [18]

   On 20 January 2017 the defendant was charged with loitering near a public place while being a convicted child sex offender, assaulting a police officer in the execution of his duty, and resisting a police officer in the execution of his duty. The loitering charge resulted from the defendant being observed loitering near a toilet block adjacent to a children’s playground.

8. [19]

   On 26 July 2017, following a plea of guilty, the defendant was convicted for those offences and sentenced to a term of imprisonment of six months. On 11 August 2017 his parole for the index offence was revoked.

9. [20]

   The defendant was again released on parole on 28 August 2018.

Risk assessments

1. [21]

   The defendant was interviewed for the purpose of a risk assessment by Dr Richard Parker, a senior psychologist at the Serious Offenders Assessment Unit, on 17 April 2018.

2. [22]

   Dr Parker said that the defendant had been diagnosed as suffering from an intellectual disability. He also had a history of anxiety and depression for which he has been taking Zoloft for some period of time.

3. [23]

   He was sexually abused by his stepfather throughout his childhood, or for a period of three years from the age of fourteen, depending which of the different accounts given to various psychologists is accepted. He attended a special school from his earliest years at school, and reported being bullied which resulted in fights.

4. [24]

   Although the defendant had abused marijuana when he was in his mid-twenties, and had occasionally used ecstasy and amphetamines, his most problematic substance was alcohol. He began drinking at 16 with heavy use on weekends and after work.

5. [25]

   Whilst he was in custody he participated in the Self-Regulation Program: Sexual Offenders (SRP:SO) between December 2013 and June 2015. This is a prison-based residential therapy program for men who have sexually abused adults and/or children, who have an intellectual disability or other cognitive impairment, have limited adaptive skills in the gaol environment and who need both intensive treatment and a controlled, safe environment.

6. [26]

   Dr Parker noted some matters in the treatment report from the program which suggested that the defendant experienced difficultly independently recalling treatment concepts, even those that had been repeated numerous times. The author of the report said that that was likely related to weaknesses in his cognitive functioning rather than motivation. The report also said that when he was calm the defendant reported feeling in control of his thoughts, choices and actions. However, when physiologically aroused (specifically when feeling angry) the defendant reported less responsibility for his behaviour due to perceiving an anger response as warranted or inevitable. Dr Parker commented that the defendant may have problems independently resisting the urge to offend, particularly when he was in a heightened emotional state.

7. [27]

   Dr Parker assessed the defendant’s risk of re-offending using a number of protocols. On the Level of Service Inventory – Revised, the defendant scored 27 out of a possible 54, which placed him in the moderate category for risk of re-offending. On the STATIC-99R his score placed him in Category IV-b which was the highest level for the risk of re-offending. Dr Parker said the recidivism rate of individuals convicted with sexual offences with the same score as the defendant would be expected to be 3.8 times that of the “typical” sexual offender.

8. [28]

   On the STABLE 200, used to identify stable dynamic risk factors, the defendant scored 13 out of a possible 26, which was classified as high. When combining the STATIC-99R with the STABLE 2007 to generate an overall risk level, the scores yielded a very high risk level.

9. [29]

   Dr Parker considered that the criminogenic needs relevant for the treatment and supervision of the defendant were attitudes, self-regulation, intimacy deficits and sexual preference. Dr Parker thought that the defendant’s intellectual disability likely impeded his ability to understand that his desires could be quite separate from another person’s. He thought that there was some evidence that the implicit theory of dangerous world (a person believes the world is a hostile place and, as a consequence, they have to behave in ways that would not otherwise be acceptable) might be active for the defendant, since he blames his ex-partners for some of the offending.

10. [30]

    Dr Parker thought that it appeared likely that when an opportunity coincided with a desire to act, the defendant struggled to restrain himself, particularly when under the influence of mind-altering substances. Dr Parker said that the defendant appeared to have an intellectual understanding that children could be harmed by sexual activity, but appeared to have difficulty understanding that his sexual contact with children had harmed them.

11. [31]

    Dr Parker concluded that, as a result of the defendant’s intellectual disability and thinking patterns which had developed over his lifetime, the defendant would struggle to integrate fully into society. His poor problem-solving skills and his difficulties with intimacy placed him at risk of making further poor choices. The most likely scenario for a future serious offence would be something similar to the previous offences. Perhaps through a sexual relationship or some other type of friendship, the defendant would gain access to a child.

12. [32]

    Separately to that process, the defendant was likely to continue to struggle with understanding and complying with conditions imposed under the Child Protection Register or any other form of legal restrictions. Whether he seeks to offend or not, Dr Parker considered it highly likely that the defendant would breach the orders, either as a way of finding a different method to access victims, or simply due to a lack of understanding of the orders. He considered that the defendant was at a high risk of committing further sexual offences.

13. [33]

    There is a detailed risk management report from the Senior Community Corrections Officer and the High Risk Offender Applications and Operational Governance Officer from the Metropolitan Extended Supervision Order Team. That report had particular regard to the risks identified by Dr Parker which needed management or monitoring, being attitudes, self-regulation, intimacy deficits and sexual preference. The strategies proposed in the report were similar to what one sees generally with high risk sexual offenders, but paid particular attention to the defendant’s intellectual disability and the nature of his past offending. One particular problem area at that time unresolved was accommodation.

Determination

1. [34]

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

2. [35]

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

3. [36]

   I note that the defendant does not oppose the making of the order for the appointment of the psychiatrists and/or psychologists and does not oppose an order that he be subject to an interim supervision order.

4. [37]

   The defendant does not resist a finding for the purpose of the preliminary hearing only that the Court would be satisfied to the requisite standard that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the ISO.

5. [38]

   In relation to the proposed conditions, counsel for the defendant submitted that the Court should have regard to the total number of conditions appropriate to be imposed on a mildly intellectually impaired defendant. She submitted that the State seeks that the defendant comply with 47 conditions notwithstanding his intellectual functioning lies at the 1st percentile of the population and within the lower extreme range of functioning. She submitted that the sheer number of individual conditions was inappropriate in those circumstances. She submitted further that the wording of some of the conditions should be modified to wording appropriate to the defendant's intellectual capacity and functioning. Attention was drawn to a number of words which a person with the defendant’s intellectual capacity is likely to have difficulty understanding. Where a breach of any condition exposes the defendant to a maximum penalty of imprisonment for five years, it was submitted that some redrafting was necessary in the circumstances.

6. [39]

   Counsel for the defendant also submitted that the Court could only be satisfied that a condition is appropriate if the Court could have confidence that the defendant could comply with the conditions because he understands the conditions and is cognizant of the consequence of any breach of a condition. Counsel submitted that the defendant is currently on 19 conditions attached to his parole which are expressed in plainer English than the proposed conditions for the ISO. Further, the defendant is also required to comply with conditions of the Child Protection Prohibition Order, which conditions are different again.

7. [40]

   Counsel drew attention to the decision of Rothman J in State of New South Wales v Thurston [2017] NSWSC 1760. That was a decision involving the imposition of an interim supervision order. Justice Rothman considered at [42] that he was satisfied “given the behaviour that has occurred since June 2017” that the conditions imposed on the ISO should be the conditions the defendant had imposed whilst on parole.

8. [41]

   At the conclusion of the hearing, and partly in response to a suggestion and offer by counsel for the defendant, I directed that she forward to the Crown Solicitor or counsel for the State suggestions of conditions which needed to be modified so that they were more readily understandable by the defendant. I directed that, thereafter, the Crown Solicitor respond to the suggested conditions.

9. [42]

   I was subsequently provided with a document containing two conditions, but where the second condition was a list of things that the defendant must do or not do when told by his DSO. The matters listed in that condition were an attempt to put into plain English many of the conditions proposed by the plaintiff in the summons filed.

10. [43]

    The plaintiff submitted that the conditions proposed in plainer English differed markedly from the conditions sought by the State in the schedule to the summons. The plaintiff detailed the particular conditions which were not covered by the defendant’s proposed conditions. The plaintiff submitted that the lack of specificity and detail in the defendant’s proposed conditions were highly problematic particularly if a dispute were to arise about compliance. The plaintiff submitted that the purpose of an ISO or ESO is to specify the rights and obligations of the parties for the duration of the order. That means also the rights and obligations of the DSO.

11. [44]

    I have concluded, particularly given that the orders I make impose an ISO only, that the conditions proposed by the plaintiff should attach to the ISO, but without any implication that they are the appropriate orders to be imposed if an ESO is made. There are a few reasons for that conclusion.

12. [45]

    First, and principally, although there is evidence of the low intellectual functioning of the defendant, neither counsel nor the Court has any proper understanding of the defendant’s ability to comprehend the plaintiff’s proposed conditions. That particular issue is a matter for which assistance ought to be sought from the experts who are to be engaged to provide reports pursuant to orders that I will make.

13. [46]

    Secondly, whilst the legal advisors to the defendant are to be commended for drafting conditions in relatively plain English, the conditions suffer from a number of the defects raised by the plaintiff in its submissions. A number of the conditions in the plaintiff’s proposed conditions are not covered by the defendant’s conditions. Further, there is force in the plaintiff’s submission that the purpose of an ISO or ESO is to specify the rights and obligations of the parties for the duration of the order. The conditions are intended to define the rights and obligations not only of the defendant but the rights of the DSO as well. The defendant’s conditions do not do that very well. There is an unsatisfactory width in the chapeau to condition 2, with the result that a DSO may well not be precisely aware of the limits of his or her rights and powers to require things to be done or prevent other things from being done.

14. [47]

    In my opinion, and bearing in mind that the present judgment is concerned only with an ISO which will last no longer than three months, the better course is for the ISO to be made subject to the conditions put forward by the plaintiff. When the reports of the experts are available, with any assistance they can give in terms of the extent of the defendant’s understanding and capacity for comprehension in relation to the conditions, the precise wording of the conditions can be re-visited at the time of the making of the ESO. I consider, in any event, that more attention and negotiation needs to be given to the defendant’s proposed conditions to ensure that they sufficiently establish the parameters of the behaviour which is allowed and forbidden and to the powers of the DSO, bearing in mind that a breach of the conditions is a criminal offence which can result in incarceration.

15. [48]

    Accordingly, I make the following orders: