State of New South Wales v Cornwall (Final)

1. [1]

   HIS HONOUR: By summons filed on 26 May 2022, the State of New South Wales (“the plaintiff”) purported to commence proceedings against the defendant, seeking certain interim orders as well as final orders for an extended supervision order (“ESO”) for a period of 2 years, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). At that time, the defendant was residing in the community subject to a Commonwealth Recognizance Order (“CRO”) that had been imposed as part of a sentence for offences including using a carriage service to access child abuse material, contrary to s 474.22 of the Criminal Code (Cth) (Commonwealth Code).

2. [2]

   On 7 December 2022, the application for interim and certain preliminary orders was heard by me. On 13 January 2023, I made orders, including an interim supervision order (an ISO) for a period of 28 days commencing on 14 January 2023 and for two forensic reports to be furnished to the Court: State of New South Wales v Cornwall (Preliminary) [2023] NSWSC 2.

3. [3]

   The final hearing was listed before N Adams J on 6 March 2023. However, both parties came to the view that the summons had been filed prematurely which her Honour accepted, for reasons explained in her Honour’s judgment: State of NSW v Cornwall (Preliminary) [2023] NSWSC 278 at [8]-[10]. Her Honour granted leave to the plaintiff to file a fresh summons in Court and proceeded to hear the matter by way of a preliminary (rather than final) hearing. The plaintiff formally tendered the same supporting documentation that had been tendered before me on 7 December 2022. Her Honour reached a conclusion that was consistent with the determinations that I had come to and made orders formally revoking my orders dated 13 January 2023, which had been renewed by Yehia J to take effect from 19 February 2023. Her Honour imposed an ISO, to commence on 6 March 2023 for a period of 28 days, and set a timetable for the parties to file submissions.

4. [4]

   The defendant’s position on the application for an ESO has the effect of confining the issues in dispute. It may be succinctly stated. As in the purported preliminary hearing before me and the preliminary hearing before N Adams J, the defendant accepts that the statutory preconditions under s 5B(a)-(c) of the Act are established and that the plaintiff’s evidence would demonstrate that the test under s 5B(d) is established, that is, that the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under further supervision under an ESO.

5. [5]

   The defendant submitted an ESO for a duration of 18 months is appropriate. In submissions in reply, the plaintiff accepted an ESO for 18 months would be appropriate in light of the expert assessment report of Dr Carollyne Youssef. The parties also reached agreement as to a schedule of conditions to the ESO.

6. [6]

   It remains a matter for the Court to determine whether the test pursuant to s 5B(d) of the Act is established and, if so, whether the discretion that is made available by ss 5B and 9(1) of the Act should be exercised in favour of the defendant.

7. [7]

   Much of the material that has been tendered by the plaintiff on the final application was also tendered at the preliminary hearing. I extract those parts of my purported preliminary judgment that provide some of the necessary background information concerning the defendant, commencing with his history of criminal offending.

The relevant statutory provisions and principles

1. [8]

   Section 5B of the Act relevantly provides as follows:

2. [9]

   As noted, the defendant does not contest that the preconditions of an application for an ESO, which are set out at s 5B(a)–(c) are made out. I am independently satisfied that those preconditions are satisfied.

3. [10]

   The term “serious offence”, which appears in s 5B(d), is defined in ss 4 and 5 of the Act, as follows:

4. [11]

   The reference in s 5B(d) of the Act to “a high degree of probability that the offender poses an unacceptable risk” is qualified by s 5D of the Act, which provides as follows:

5. [12]

   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 prerequisites in that section are satisfied.

6. [13]

   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.

7. [14]

   Consequent upon other orders made by N Adams J at the time the current ISO was imposed, reports were furnished to the Court by Dr Carollyne Youssef, forensic psychiatrist, dated 20 February 2023 and 10 April 2023; and by Dr Jeremy O’Dea, forensic psychiatrist, dated 22 February 2023 and 17 April 2023. Accordingly, there was compliance with the latter requirement set out in s 6(3)(b) of the Act.

8. [15]

   The Act stipulates objects and a paramount consideration to be taken into account when determining an application for an ESO. They are as follows:

Section 9(3) of the Act: forensic reports and evidence

1. [16]

   The reports that were prepared pursuant to s 7(4) of the Act, in my view, were relevant to all matters identified in s 9(3), except for ss 9(3)(g), (h) and (h1), being matters that I have extracted above from my judgment handed down on 13 January 2023.

2. [17]

   The defendant attended Dr Youssef’s rooms for her first assessment of him but left after 20 minutes, stating that he “declined to consent”. An hour later, he returned, stating that his solicitor told him that he was “court ordered” to attend. Two hours later, “mid-interview”, he walked out after becoming emotional while discussing the death of his mother. Dr Youssef’s first report was completed on that basis.

3. [18]

   Dr Youssef related the defendant’s account of his childhood and adolescence. He is the fifth-born of 13 children. When he was 7 years old, a pattern of sexual abuse began at the hands of an 18 year-old male. It occurred on a regular basis and only ended when the perpetrator moved from the area. After the abuse ceased, the defendant started engaging in problematic sexual behaviour, including “flashing”. When the defendant was between the ages of 10 and 16, his mother was physically and emotionally abusive towards him as a result of this behaviour. It stopped when he was 16, but only because “he was better at concealing his exhibitionism”.

4. [19]

   His mother’s wrath had the effect of his siblings distancing themselves from him, thus isolating him. His father was a drinker and was verbally abusive. The defendant felt he was often forgotten or overlooked by his family. His father would tell him that he “didn’t belong to the family”.

5. [20]

   The defendant had two significant relationships before entering custody. The first was with a woman he met when they were both 18 years old. They married when he was aged about 21 and had two children, who are presently aged 50 and 52. The relationship ended when he met his second partner. He was with her for about 3 years, cohabiting for two of those years. They had one child, who is presently aged 40. He said that relationship broke down due to the negative influence of her mother. He remained single for the next decade until he was imprisoned.

6. [21]

   The defendant said he was emotionally disconnected in both relationships and had not developed a relationship with his children because he left their lives when they were quite young. His two older children and their mother reside interstate. He does not have contact with any other members of his family or other people generally, although he maintained contact with his youngest sister until three years ago: “we stopped contact not by her choice, but by my choice”.

7. [22]

   The defendant reported that his “flashing” behaviour continued into adulthood with increasing regularity. Dr Youssef noted that file information reflected a lengthy history of exhibitionism, commencing from the age of 13 years, including reports of him having exposed himself on at least 200 occasions. The defendant did not provide any further information regarding his sexual development and sexual self-regulation in the first interview, as he left prematurely. Dr Youssef noted from file material a history of exhibitionism, voyeuristic behaviour and fetishist interest (stealing women’s underwear) which was considered reflective of a diagnosis of paraphilia or a disorder of abnormal sexual interest in a report by a psychologist dated 14 July 2019. As well, she noted that Dr Allnutt had been “unable to rule out an underlying mild sexual sadism”.

8. [23]

   The defendant reported that from year five, he often truanted. He failed most subjects in primary school and in year seven, excelling only in metalwork. He was asked to repeat year seven and decided, with the school’s concurrence, that he would be “exempted from school”.

9. [24]

   He then engaged in full-time work. He continued to work until his initial incarceration, in various jobs including a machinist, repairing hydraulic jacks and metal spiralling. His longest period of employment was six years, which was in a foundry. He said he was never fired and described having a good work ethic, noting he was always able to secure work. At the time of the interview, he was not working and expressed no interest in being employed, either voluntarily or for payment.

10. [25]

    As to his medical history, the defendant reported being knocked unconscious “at least half a dozen times”, both in prison and in the community. An acquired brain injury screening questionnaire was administered to him in 2010, following his reported history of head injuries and an anoxia injury due to his attempted hanging. No specific concerns were identified.

11. [26]

    As to his mental health history, the defendant said he had been previously diagnosed with depression and frequently has flashbacks to his childhood sexual abuse, his mother’s tormenting behaviour and his general isolation throughout his life. In the three years immediately prior to his index offending, he had withdrawn almost completely from social interaction and remained in his room. Dr Youssef noted that file information reflected that he has been diagnosed with antisocial, avoidant and schizoid traits. He has also previously been diagnosed with a Major Depressive Disorder and a cluster B Personality Disorder.

12. [27]

    The defendant said he first had suicidal thoughts when he was 12 to 13 years of age. He said he has lost count of the number of times he has seriously attempted to kill himself. Dr Youssef noted file references to past attempts at suicide, the earliest in 1973 when he was aged 18, by attempting to drown himself in a river; he was rescued by bystanders. Dr Youssef referred to the mental health interventions that I canvassed in my earlier judgment.

13. [28]

    The defendant reported that he commenced drinking alcohol when he was 14 years old and said that he continued drinking until he was arrested. He denied any other illicit substance use or a history of gambling.

14. [29]

    Dr Youssef obtained information from the defendant about his current living situation, noting that he is presently on the aged pension. Until his recent breach of conditions, which has caused him to remain at home except when shopping for groceries, his typical day involved watching television, cleaning and tidying his apartment or playing chess on his phone. His only contact with others now is with his Departmental Supervising Officer (DSO) and his fortnightly appointment with his psychologist.

15. [30]

    Dr Youssef asked him about his future plans:

16. [31]

    The defendant told Dr Youssef that he wants another ESO, because the thought of being on his own without support scares him.

17. [32]

    Dr Youssef referred at length to the documentation of the defendant’s offences and breaches of conditions, summarising the parts that she considered to be relevant to her assessment. Since the defendant left the interview before she could obtain his accounts of those offences and breaches, she took into account his past explanations from the files, in which he had “denied certain aspects of his offences, minimising the degree of harm perpetrated and the nature and degree of the sexual offending behaviour”.

18. [33]

    Dr Youssef noted the defendant’s compliant behaviour throughout his imprisonment:

19. [34]

    Dr Youssef reviewed the defendant’s participation in rehabilitative programs that were intended to address his criminogenic issues. Generally, his progress was quite positive:

20. [35]

    Dr Youssef reviewed the defendant’s progress in the community, which was also encouraging:

21. [36]

    Dr Youssef administered psychological test tools to assist her in assessing the defendant’s level of risk of reoffending. As to his risk of sexual re-offending, she administered an empirical actuarial risk assessment tool of static risk factors (the STATIC-99R), which Dr Youssef considered to have “moderate predictive accuracy”. The defendant’s score placed him in the “above average” category of sexual recidivism within five years. Dr Youssef also administered the STABLE-2007, which assists in the assessment of stable dynamic risk factors. His rating was “high”, which when considered with the STATIC-99R result, produced a composite assessment of being in the “above average” category of risk of committing a sexual offence.

22. [37]

    Dr Youssef administered the Risk of Sexual Violence Protocol (RSVP-V2) and the Structured Assessment of Protective Factors for Violence Risk - Sexual Offence Version (SAPROF-SO). She summarised his level of risk and scenarios that may lead to reoffending as follows:

23. [38]

    Dr Youssef diagnosed the defendant as meeting the diagnostic criteria for a Complex PTSD (CPTSD). She said:

24. [39]

    I propose to make a recommendation that the authorities consider Dr Youssef’s recommendation.

25. [40]

    Dr Youssef found that the defendant met the diagnostic criteria for a Persistent Depressive Disorder (early onset, with persistent major depressive episode, severe; PDD), which, she said:

26. [41]

    Dr Youssef found that the defendant met the criteria for an Avoidant Personality Disorder (APD) and an Exhibitionistic Disorder. She noted:

27. [42]

    Dr Youssef also assessed the defendant as meeting the criteria for an Alcohol Use Disorder (in sustained remission).

28. [43]

    Dr Youssef concluded that, in her opinion, the defendant poses a risk of committing a further serious offence as defined in the Act, and that it can be managed in the community. She advised that it would be best managed within a supportive and multidisciplinary staged approach, aiming towards the reduction of restrictions and monitoring over a period of at least 18 months.

29. [44]

    The defendant was assessed again on 31 March 2023, but again declined to answer questions concerning his sexual development, psychosexual history, his offences and breaches, saying there was “enough information” on file and he became upset when he had to think about the past. He said that, following the earlier interview, police had taken him to a hospital mental health unit, where he stayed for a few days.

30. [45]

    Dr Youssef stated that her opinions, as expressed in her earlier report, remained unchanged.

31. [46]

    The defendant refused to attend Dr O’Dea’s rooms to be assessed by way of preparation for his report. As noted earlier, Dr O’Dea had personally assessed the defendant in 2007 for reports that were tendered to this Court on the State’s first application, for a CDO. However, the defendant did allow Dr O’Dea to assess him subsequently for about 90 minutes, which contributed to Dr O’Dea’s second report.

32. [47]

    In a necessarily brief report, Dr O’Dea reviewed the file material in relation to the defendant’s breaches of his ESO in December 2007 and September 2009, his earlier and more recent sex offences and his progress since his release from custody on 14 March 2022.

33. [48]

    Dr O’Dea stated that since he had not had the opportunity to review the defendant in person since 2007, he was not in a position to provide a definitive opinion regarding his psychiatric diagnostic progress since that time, his current psychiatric status, risk profile or risk management needs. He referred to past diagnoses which were in the file material provided to him, including a Paraphilia Disorder (exhibitionism and voyeurism) since his teenage years, a Major Depressive Disorder and past diagnoses of Alcohol Use Disorder. Dr O’Dea stated that although there have been no further reported specific or significant problems with alcohol abuse or illicit substance use in recent years, the defendant should remain totally abstinent from alcohol and illicit substance use in the community in the long-term, in order to manage his risk of relapse of his depressive disorder and of further sex offending. Dr O’Dea also considered that the defendant may meet the criteria for a Personality Disorder with antisocial and avoidant traits.

34. [49]

    On the basis of the defendant’s past offending, Dr O’Dea opined that:

35. [50]

    Dr O’Dea noted the various risk assessment tools that have been previously administered to the defendant and their results which supported his conclusion as to the defendant’s level of risk which, he thought, could be suitably managed by an ESO. Having regard to the defendant’s level of risk and its likely duration, he was of the view that an ESO of “at least five years duration” was appropriate.

36. [51]

    The second report was also brief. Dr O’Dea said that during his interview of the defendant on 6 April 2023, the defendant displayed limited insight into his sex offending behaviours and little remorse or contrition. The defendant declined to talk about his past or his family or his history of sex offending. Dr O’Dea obtained some information from the defendant about his current situation in the community and the services he was receiving.

37. [52]

    Dr O’Dea diagnosed the defendant as having a Major Depressive Disorder with a differential diagnosis of a Persistent Depressive Disorder (or chronic relapsing depression) in the context of a vulnerable personality with antisocial and avoidant traits, and limited coping skills under stress. Either of those diagnoses would require active, assertive and ongoing psychiatric treatment, including in the community in the long term. Dr O’Dea considered that the defendant’s depressive disorder appeared to be under adequate control.

38. [53]

    Dr O’Dea expressed the view that a relapse of the depressive disorder may elevate the risk of the defendant engaging in further sex offending behaviours, including committing a further serious sex offence as defined in the Act. However, ongoing supervision and community psychiatric treatment would likely mitigate that risk.

39. [54]

    A risk assessment report by Dr Richard Parker, who is a senior psychologist in the Serious Offenders Unit of Corrective Services, was tendered. The report is dated 14 March 2022.

40. [55]

    Dr Parker comprehensively reviewed the material generated by the defendant’s offences and his incarceration by Corrective Services, including past psychiatric and psychological assessments generally, and assessments of his risk of reoffending, specifically. Dr Parker attempted to interview the defendant on 4 March 2023, but he declined to participate.

41. [56]

    Dr Parker concluded as follows:

42. [57]

    A risk management report, dated 5 April 2022, was prepared by Jason Saad, a Community Corrections Officer with the Metropolitan Extended Supervision Team, and endorsed by Kelli Grabham, whose position is described as a High Risk Offender Applications and Operational Guidance Officer. The purpose of the report is to inform the Court of the extent to which the defendant can reasonably and practicably be managed in the community by Corrective Services. It drew on the assessment by Dr Parker in the risk assessment report to formulate a proposal of conditions that would apply to the defendant pursuant to an ESO, including electronic monitoring. As to supervision, Ms Grabham proposed:

43. [58]

    An affidavit by the defendant dated 21 November 2022 was read at the hearing. The defendant described the stress that he endured consequent to his scheduling obligations and the electronic monitoring of his movements, prior to August 2022. Since that time, he has not been subject to scheduling, although he continued to be monitored, which was difficult.

Finding as to s 5B(d) of the Act

1. [59]

   In the terms of s 5B(d) of the Act, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. I decline to exercise the discretion made available by ss 5B and 9(1) to not make an ESO.

2. [60]

   As to the length of the ESO, I agree with Dr Youssef’s reasons for concluding that the minimum appropriate period of an ESO is 18 months. There remains therapeutic work to be done with the defendant, to minimise his level of risk to an acceptable level. In determining the necessary length of the ESO, a consideration of significant weight is the defendant’s continuing openness to receiving professional help. The minimal length also recognises that there is a pathway to the State relaxing its level of control over the defendant which involves the defendant himself taking more responsibility for fashioning a law-abiding life back in the broader community without the support that he presently receives from the ESO team.

3. [61]

   My determination of the appropriate length of the ESO is quite at odds with the opinion of Dr O’Shea. My reasons for favouring Dr Youssef’s opinion in that regard are essentially my attraction to the reasoning of Dr Youssef as she meticulously assessed the material as to the level of risk of serious reoffending posed by the defendant together with the factors tending towards a conclusion that he was on track to continue the progress he has made to date, within the prison system and in the broader community.

The Conditions of the ESO

1. [62]

   To the credit of the defendant and the legal representatives of the parties, these have been agreed. Accordingly, I make the following orders.

Orders

1. [63]

   I make the following orders:

   1. (1)

      Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) order that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of 18 months from the date of this order;

   2. (2)

      Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the attached Schedule; and

   3. (3)

      Access to the Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified.

Recommendation

1. [64]

   I request the plaintiff convey to the relevant authorities the report of Dr Carollyne Youssef dated 20 February 2023 and draw to their attention the recommendations at p 38 concerning the provision of certain therapies by a community-based specialist psychologist, which are also set out at [38] of this judgment.