State of NSW v Kay

1. [1]

   HIS HONOUR: The State of New South Wales seeks orders pursuant to s 5C and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 for a high risk sex offender extended supervision order for a period of three years in respect of Graham Kay. Schmidt J made an interim supervision order against Mr Kay on 15 December 2016: see The State of New South Wales v Kay [2016] NSWSC 1820. By reason of her Honour’s detailed and helpful recitation of the facts, including relevant particulars of Mr Kay’s offending, and her Honour’s exposition of the applicable law, it is unnecessary for me to repeat that information here.

2. [2]

   Mr Kay opposes the making of an extended supervision order. He does not concede that he is a high risk sex offender. He maintains that the evidence does not establish to the required standard that he poses an unacceptable risk of committing a serious sexual offence. However, if I were minded to make an extended supervision order, Mr Kay contends that, having regard to the relevant risks and the objects of the Act, any extended supervision order should not exceed 12 months. Furthermore, Mr Kay contends that the conditions sought by the State go beyond what could reasonably be required to reduce the relevant risk and fulfil the objects of the Act.

Court appointed experts

1. [3]

   Dr Andrew Ellis and Dr Anthony Samuels, forensic psychiatrists, were appointed pursuant to s 7(4) of the Act, and their reports, dated respectively 3 February 2017 and 6 January 2017 must be considered by me pursuant to s 9(3)(b) of the Act.

2. [4]

   Dr Ellis recorded that Mr Kay told him the following things concerning his offences:

3. [5]

   Dr Ellis arrived at the following diagnosis:

4. [6]

   Dr Ellis dealt at length with the question of whether or not Mr Kay posed a risk of committing a further serious sex offence. Some of what he reported includes the following:

5. [7]

   Dr Ellis identified deviant sexual arousal as a primary risk factor for sexual re-offending and noted that Mr Kay’s history indicated a pattern of this arousal:

6. [8]

   Dr Ellis also noted that while the rates of repeat sexual offending are very low in people over 60 years of age, those who do re-offend tend to have a diagnosis of paraphilia:

7. [9]

   The type of possible sexual offence described by Dr Ellis would come within the definition of a “serious sex offence” in s 5 of the Act.

8. [10]

   So far as treatment is concerned, Dr Ellis recommended anti-libidinal medication for Mr Kay’s deviant arousal. He also suggested behavioural techniques as a method of reducing it.

9. [11]

   Dr Ellis reiterated that “paraphilias are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts”. He also noted that Mr Kay’s psychiatric disorders are likely to persist beyond any period of supervision, but may be better internally controlled at that point.

10. [12]

    Dr Ellis expressed the following opinion about the need to make an extended supervision order and the preferable length of such an order in this case:

11. [13]

    Mr Kay gave Dr Samuels an account of his offences. Dr Samuels noted:

12. [14]

    Dr Samuels went on to observe:

13. [15]

    Dr Samuels’ diagnosis of Mr Kay was in these relevant terms:

14. [16]

    Dr Samuels dealt with Mr Kay’s risk of committing a serious sexual offence. Using a combination of the LSI-R, STATIC 99-R and STABLE 2000, as well as various clinical risk assessments, Dr Samuels assessed Mr Kay as falling into the Moderate-High risk category of sexual re-offending. His static risk factors were identified as follows:

15. [17]

    Dr Samuels opined that Mr Kay’s dynamic risk factors appeared to be most significant and were thought by him to

16. [18]

    With respect to actuarial risk assessment instruments, Dr Samuels noted:

17. [19]

    Dr Samuels continued:

18. [20]

    In relation to risk factors for potential future sexual offending, Dr Samuels said:

19. [21]

    Dr Samuels noted the importance of continued therapy, support, and monitoring in Mr Kay’s management in the community, should an extended supervision order be made. In relation to medical intervention and treatment he said:

20. [22]

    Dr Samuels’ views about the need to make an extended supervision order at all and the length of any such order if made were as follows:

21. [23]

    Dr Samuels stated further:

Samuel Ardasinski

1. [24]

   On 6 June 2016, Mr Ardasinski, a psychologist, prepared a Risk Assessment Report concerning Mr Kay in express anticipation of the present application. Although on one view it has been overtaken by more recent opinions from Dr Ellis and Dr Samuels, it remains important and instructive in the present inquiry. The following extracts from Mr Ardasinski’s report should be noted:

Section 17(4) criteria

1. [25]

   In exercising the relevant discretion, however, I am required to have regard to certain mandatory criteria set forth in s 17(4) and s 9(3) of the Act. It was contended on behalf of Mr Kay that consideration of these factors revealed the following matters.

2. [26]

   Mr Kay has been at large in the community for various periods since April 2014 when he commenced Community-Based Maintenance and full time in the community since 20 February 2015. He has travelled regularly to his place of employment at night by public transport in what has been described as potentially risky situations. There is no current indication from Mr Kay’s conduct that he has relapsed or committed any further offences of any kind. His progress in the community has been positive and he has complied with all directions and forms of supervision to which he was subjected.

3. [27]

   Mr Kay has been assessed as a moderate to high risk of re-offending, although not necessarily offending that would attract the operation of the Act. Mr Kay’s level of participation in the preparation of the various assessments and reports has also been positive.

4. [28]

   Mr Kay has been subject to parole supervision and has managed in the community since 21 April 2014. All reports about him in this respect have been favourable.

5. [29]

   So far as treatment and rehabilitation programs are concerned, Mr Kay completed the CUBIT program with positive comments. All other reports of participation are similarly positive.

6. [30]

   Mr Kay has complied with all requirements of his parole. His acceptance of supervision and his compliance have been to a high standard. Mr Kay would also appear to have complied with the continuing requirements of the Child Protection (Offender Registration) Act 2004 in a diligent and satisfactory way since being released into the community on parole.

7. [31]

   Mr Kay has a short criminal history. It is not in issue that he has committed offences that attract the operation of the Act.

Consideration

1. [32]

   The Crown contended that, based on the reports of the experts, I could be satisfied that Mr Kay poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.

2. [33]

   It was submitted on Mr Kay’s behalf that, taking all of these matters into account, including the medical and like expert material, that I could not be satisfied to the high standard required that Mr Kay would commit a further serious sexual offence. Alternatively, if I were not satisfied of that, any risk posed by Mr Kay could be managed by appropriate but less restrictive or extensive conditions than those proposed by the State and over a shorter period. In particular, Mr Kay submitted that whilst the reports from Dr Ellis and Dr Samuels go some way towards providing evidence of increased potential for re-offending, the evidence is not such that I could be satisfied to the standard of a high degree of probability that the risk is unacceptable.

3. [34]

   The decision to make or refuse an application for detention or supervision is discretionary. The application can be refused even if the necessary conditions are otherwise satisfied. The decision is an evaluative judgment undertaken by the Court according to the particular circumstances of each case, having regard to the primary objects of the Act: State of New South Wales v Donovan [2015] NSWCA 280 at [77]. In State of New South Wales v Anderson [2015] NSWSC 1515 at [30], Hamill J observed that:

4. [35]

   McCallum J observed in State of New South Wales v Donovan [2015] NSWSC 1254 at [2]-[3] as follows:

5. [36]

   Section 5B of the Act provides:

6. [37]

   The term “a high degree of probability” is not defined in the Act. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 its meaning in the context of earlier legislation was said to be:

7. [38]

   The term “unacceptable risk” is also not defined. Consideration of the risk which Mr Kay poses involves an evaluative judgment, which must be undertaken in light of all of the evidence. This was discussed in Lynn v State of New South Wales [2016] NSWCA 57 at [50]-[51] and [55]:

8. [39]

   Professional assessment of Mr Kay by Dr Ellis and Dr Samuels places him at a moderate to high risk of committing a further serious sexual offence. There is no available evidence to the contrary upon which to challenge to those opinions or which puts them in doubt.

9. [40]

   In cross-examination Dr Samuels was asked about whether paraphilic disorders were treatable:

10. [41]

    Dr Samuels was also asked about the prospects over the next three years:

11. [42]

    Dr Samuels agreed with the proposition that there is a relationship between a period of no offending, the length of that period and the risk of re-offending. Implicit in that proposition is that a successful period of supervision with no offending by Mr Kay would positively inform a reduced need for further supervision thereafter and/or that the nature of the conditions that might still need to be imposed would have changed. As Dr Samuels conceded:

12. [43]

    Dr Ellis reaffirmed his opinion in cross-examination as follows:

13. [44]

    Having regard to all of this material I am satisfied to a high degree of probability that Mr Kay poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. For the avoidance of doubt, I consider that a moderate to high risk of committing a further serious sex offence if not kept under supervision is an unacceptable risk.

14. [45]

    Mr Kay has proceeded to argue, however, that if his particular paraphilic disorder is resistant, or not amenable, to treatment, there is little or no utility in keeping him under further supervision and treatment. That submission loses sight of the need to protect the community from the identified risks. The submission is more useful in the context of deciding for how long, and subject to what conditions, Mr Kay should continue to be supervised. There is an obvious and logical connection between these two issues.

15. [46]

    Both psychiatrists have argued for a three year period of supervision. Each doctor has conceded, however, that there is no particular magic in supervision for a period of three years as opposed, for example, to one of 30 months or 40 months. The Act provides for a maximum period of five years. The State urged that I order a three year period in this case.

16. [47]

    In my experience, the constant return to the court for review of these orders is often counterproductive both to the protective and rehabilitative objects that are sought by the Act to be achieved. I have no way of knowing about Mr Kay’s personal motivations at the present stage of his life but I would be prepared to assume that he would at least like an opportunity to get on with it with as little interference as possible. That desire must in the present case yield to the need to supervise his clinically identified risk of committing a further violent sexual offence. I am aware that those charged with administering supervision of people like Mr Kay are very experienced in monitoring compliance with conditions in a fair and sensible way. I bring that understanding to bear in the exercise of my discretion in this case.

17. [48]

    Doing the best I can, a three year period of supervision in this case seems appropriate.

18. [49]

    The State seeks a continuation of the orders that were made on an interim basis by Schmidt J. Having listened to the extensive cross-examination of Dr Ellis and Dr Samuels, I consider that some minor variation of those conditions is appropriate.

19. [50]

    I consider that the conditions set forth in the accompanying Schedule should be imposed.

Orders

1. [51]

   In these circumstances I make the following orders:

   1. (1)

      Order pursuant to s 5C of the Crimes (High Risk Offenders) Act 2006 that Graham James Kay be subject to a high risk sex offender extended supervision order for a period of 3 years from today.

   2. (2)

      Direct pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 for the period of the high risk sex offender extended supervision order that Graham James Kay comply with the conditions set out in the SCHEDULE to these orders.