State of New South Wales v Daniel Anthony McQuilton

1. [1]

   HER HONOUR: On 6 March 2009 the defendant, Daniel Anthony McQuilton, was sentenced to a term of 5 years and 3 months imprisonment, having been convicted of an offence of aggravated sexual assault, contrary to s 61J of the Crimes Act 1900 (NSW). Four days before the expiration of that sentence, on 31 October 2013, an interim supervision order was imposed upon the defendant by this Court, upon the application of the plaintiff, the State of New South Wales. A final extended supervision order (“ESO”) was made by R A Hulme J on 24 January 2014, for a period of 2 years and 6 months: State of New South Wales v McQuilton [2014] NSWSC 11 (“the 2014 decision”). That order will expire on 16 November 2018, its term having been extended by operation of s 10(2) of the Act, as a consequence of the defendant’s occasional imprisonment following breaches of the order.

2. [2]

   By summons filed on 17 October 2018, the State seeks the imposition upon the defendant of an ESO for a period of 18 months, pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). In the interim, prior to the final hearing of the State’s application, the Court has been asked to make orders to permit the defendant to be examined by two appropriately qualified professionals who would furnish reports of those examinations to the Court (s 7(4) of the Act), and to subject the defendant to an interim supervision order (“ISO”), pursuant to s 10A.

3. [3]

   The defendant opposes any order being made or, if it is, he opposes any increase in the stringency of conditions imposed upon him, arguing that there should be no alteration of conditions currently in place until the Court has the benefit of up to date expert evidence. There is no dispute that the application meets the threshold requirements: the defendant is a “supervised offender” within the meaning of the Act, and the State’s application complies with s 6 of the Act.

4. [4]

   Orders and reasons were reserved until today.

The Evidence

1. [5]

   The plaintiff read and relied upon affidavits of Johanna Fisher (of 17 October 2018 and 31 October 2018) and Janelle Farroway (of 17 October 2018 and 31 October 2018), each of which annexed considerable documentary material. Ms Farroway was, additionally, called to give evidence before the Court on 7 November 2018.

2. [6]

   Some of the documentary evidence had been before the Court when the State’s first application for an ESO was heard. In the 2014 decision, R A Hulme J set out the circumstances surrounding the sexual offence of which the defendant was convicted, together with details of earlier psychiatric and risk assessments of him. It is not proposed to repeat that material here. To that extent, this judgment should be read in conjunction with the 2014 decision.

3. [7]

   Since the defendant was before the Court for the earlier proceedings under the Act, he has attracted a number of criminal convictions, adding to that entered in 2009 for aggravated sexual assault. With the exception of some offences from 2014, the most serious of which are for assault with intent to take a motor vehicle and causing a police pursuit, all of the entries since the expiration on 4 November 2013 of the sentence for the index offence have been offences of failing to comply with an extended supervision order, contrary to s 12 of the Act.

4. [8]

   The defendant has entries against him for offences of that nature committed on 30 December 2013, 16 April 2014 (3 counts), 10 October 2015 (6 counts), September 2016 (2 counts), 16 November 2016, and May to August 2018. Each of the convictions have resulted in a term of imprisonment being imposed upon the defendant, with the most recent offence seeing the defendant sentenced to 7 months imprisonment, with 2 months of that term fixed as the non-parole period. The non-parole period expired on 8 October 2018, and the total term will expire on 8 March 2019. The ratio of sentence suggests that a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) 1999 (NSW) was made by the sentencing magistrate.

5. [9]

   The first of the breaches, that of 30 December 2013, occurred at a time when the decision handed down by R A Hulme J on 24 January 2014 was reserved, and an interim order was in force. The defendant removed the electronic monitoring device which he had been required to wear, and left it buried under a tree in Hyde Park in Sydney. The following day at about 5.45am the defendant was found in the enclosed grounds of a private boys’ school in the eastern suburbs of Sydney in a state of intoxication. Also found in the school grounds was a pair of men’s underpants, a set of keys, a pair of scissors, and a bottle of whiskey that was almost empty. Upon being searched at Maroubra Police Station, the defendant was found not to be wearing underpants. The defendant told police that he had used the scissors to cut the electronic device from his ankle. The defendant was sentenced to a short term of imprisonment for the breach of the interim order.

6. [10]

   On 16 April 2014 the defendant again removed the electronic monitoring device that he was required to wear from his person and discarded it. He also failed to notify his ESO supervisor of a change to his schedule, and breached a curfew direction that had been imposed upon him as part of the ESO. He was contacted by both ESO supervising staff and police but refused to return to his accommodation or advise the authorities of his whereabouts. The offences relating to the theft of a car and police pursuit occurred in this context, with the defendant absconding to Victoria, and crashing the stolen car. Further short terms of imprisonment followed, by way of sentence for these breaches.

7. [11]

   On 10 October 2015 the defendant was again in breach of the ESO, by failing to comply with a curfew to which he was subject; failing to comply with his schedule by attending a location he was not approved to be at (a TAFE College); and by tampering with the electronic monitoring device he was required to wear, causing damage to it. Further, he lied to his supervisor; gambled after having received a written warning directing him not to do so; and accessed and kept pornographic material on his mobile telephone contrary to a written direction. Concurrent sentences of 9 months imprisonment, with a NPP of 6 months, were imposed.

8. [12]

   On 29 September 2016 the defendant was again in breach of the ESO, by failing to advise his supervisor that he had wi-fi access to the internet, and by downloading and keeping pornography on his computer. Concurrent sentences of one month were imposed upon conviction for those offences.

9. [13]

   On 16 November 2016 the defendant breached the ESO by deviating from his approved schedule. This occurred against a background of a warning having been given to him for a deviation a week or so before, when the defendant told his supervisors he would do what he wanted. The penalty for this offence was a 3 month term of imprisonment.

10. [14]

    The most recent breach occurred over a number of months between 16 May 2018 and 3 August 2018, and involved the defendant repeatedly accessing and viewing pornographic material. On 7 August 2018 the defendant told an officer with Forensic Psychology Services that he had been looking at pornography over a nine to ten month period, as frequently as 5 times each week, and for 1 to 2 hours on each occasion. Examination of the defendant’s telephone by police confirmed that he had accessed pornography via the internet. This was in contravention of the ESO. As noted at [6], a further term of imprisonment was imposed. The defendant is currently subject to parole with respect to that sentence.

11. [15]

    The defendant initially commenced the CUBIT program (a residential therapy program for men who have sexually abused adults or children) on 9 February 2011, but was suspended on 29 October for “aggressive and intimidating behaviour. Almost immediately upon return from that suspension, he was again discharged, for threatening behaviour. He then completed the remainder of the program through custody-based maintenance, prior to his release on parole in July 2012.

12. [16]

    Following the revocation of his parole in January 2013, the defendant returned to the CUBIT program on 3 July 2013, where he remained until his sentence expired. His CUBIT Treatment Report, dated 25 November 2013, noted that,

13. [17]

    Since his release from custody, the defendant has engaged with Forensic Psychology Services for counselling.

14. [18]

    The 2013 reports of Dr Andrew Ellis and Dr Samson Roberts were before this Court when the first ESO application was heard. The evidence of each is summarised in the 2014 decision. As observed by senior counsel for the defendant, there is now some age about that evidence, but it remains relevant to wider issues concerning the defendant’s psychiatric history and past risk, if not directly to questions of present risk assessment.

15. [19]

    Dr Paisley is a consultant psychiatrist who has seen the defendant in the community. In a letter of 2 June 2018 directed to the defendant’s general practitioner that reported on his condition, the doctor noted that the defendant had been working for about 12 months and in a relationship for 15 months, with a new baby. He had, however, ceased taking his medication in about March 2018, because of his perception that it made him lethargic. Since then, what had formerly been mild paranoid symptoms had worsened, and he had become disorganised, lacked motivation, and suffered from what was likely to be thought disorder. Dr Paisley did not think the defendant presented as at risk of harming himself or others.

16. [20]

    She concluded in June 2018 that the defendant suffered from chronic schizophrenia, and considered that a continuing medication regime was important, together with regular consultations with a psychologist.

17. [21]

    In August 2018 Dr Paisley wrote to Justice Health, noting that she had held four consultations with the defendant from 31 May 2018 to 2 August 2018. She observed that information the defendant had previously given her, particularly as to when he ceased taking medication and the nature and extent of persecutory delusions, was inaccurate. The defendant had sanitised this information when giving the doctor a history. Despite that and his lack of insight, the doctor thought the defendant was “keen to engage”, and required continuing treatment with antipsychotic medication.

18. [22]

    The most recent psychiatric or psychological evidence is from Dr Richard Parker, psychologist, who provided an Updated Risk Management Report concerning the defendant on 16 October 2018. Dr Parker’s report is found at tab 4 of the annexure Exhibit JF-1 to the affidavit of Johanna Fisher of 17 October 2018.

19. [23]

    Dr Parker is employed as a Senior Psychologist within the Serious Offenders Assessment Unit of Corrective Services NSW. The opinions given and recommendations made in his report are supported by Dr Cherice Cieplucha, Chief Psychologist with the Risk Management Programs Unit of Corrective Services NSW.

20. [24]

    In making his recommendations, Dr Parker relied on an interview conducted with the defendant on 22 December 2017, and a review of relevant documentation supplied to him. He obtained a psychosocial and relationship history from the defendant, and from his review of the documentary material.

21. [25]

    The defendant is the elder of two children born to parents who separated when the defendant was aged 13 years. Thereafter, the defendant was raised by his mother. He stated that he had never experienced abuse or neglect, but noted that his father’s reckless gambling had necessitated the sale of their family home and, as a consequence, he had lost respect for his father and become anti-social and depressed.

22. [26]

    The defendant engaged in fights while at school and was suspended on several occasions. His Year 10 studies were characterised by regular truancy, and he ceased to attend school at the end of Year 11. Thereafter, he struggled to maintain stable employment, starting and later withdrawing from an apprenticeship. Dr Parker noted a similar pattern of casual, intermittent employment since his release from custody on an ESO.

23. [27]

    The defendant was incarcerated at 21 years of age. He is now aged 30 years. He has thus had limited opportunity to establish stable, intimate relationships and reportedly struggled with girlfriends. After he ended the longest relationship he had, and subsequently tried and failed to repair it, he became angry and socially isolated – factors which Dr Parker considered to be instrumental in the commission of the index offence.

24. [28]

    Since his release from custody, the defendant has had two relationships, the first of which lasted for about 15 months; the second of which commenced in February 2017 and is ongoing. The defendant has one six month old child born of this relationship.

25. [29]

    Dr Parker canvassed the defendant’s response to custodial and community based supervision. Over the course of his initial period in custody from 5 August 2008 to 20 July 2012, the defendant received seven institutional misconduct charges. His behaviour was otherwise considered positive, though with some indications of a poor work ethic. Since 2012, the defendant has had no recorded misconduct charges in custody.

26. [30]

    Within two months of his release to parole, on 20 July 2012, the defendant began to demonstrate poor commitment to job placements and training courses established through Corrective Services. He also started to show resistance to attending appointments with recommended health practitioners and was formally directed to see a departmental senior psychologist.

27. [31]

    By January 2013, the defendant had stopped taking his psychotropic medication and had disclosed thoughts of hurting young females. Consequently, his parole was revoked and he was returned to custody on 12 January 2013.

28. [32]

    On 5 November 2013, the defendant was released on an Interim Supervision Order, followed by the ESO made by R A Hulme J. Within a few weeks, however, the defendant was under serious financial pressure because of reckless gambling – a habit that would become a recurrent feature of his supervision, and one that is regarded as problematic.

29. [33]

    In total, the defendant has breached his supervision orders on five occasions, involving a total of 14 offences, the details of which were canvassed by Dr Parker in his report.

30. [34]

    The defendant enjoyed a period of relative stability between February 2017 and early 2018, during which he resided in private rental accommodation with his partner, benefited from the supervision and support of his mother, maintained relatively constant employment, and engaged with treatment activities to address his sexual offending and gambling habit.

31. [35]

    By March 2018, however, the defendant had begun to exhibit signs of psychological and financial stress following the birth of his son. Concern was also noted that he may have begun to exhibit features of schizophrenia.

32. [36]

    On 9 August 2018, the defendant disclosed that he had been viewing pornography and he was arrested and charged with breaching his ESO, this being the most recent offence. At interview, he confirmed that he had in fact been viewing pornography prior to the birth of his son, admitting that while this was initially non-problematic, it had gradually become a means of escapism from his various stresses.

33. [37]

    The defendant denied any use of illicit substances. He did note, however, that prior to his index offence, he had consumed “half a bottle of butterscotch schnapps” (approximately five standard drinks), leading Dr Parker to suggest this “may have contributed to the index offence, probably through the disinhibiting effects of alcohol”. This said, no evidence of problematic alcohol consumption has been detected whilst the defendant has been on parole or under community supervision.

34. [38]

    The defendant’s father had a serious gambling problem, which led to the breakup of his marriage, and the defendant too developed a habit of problematic gambling prior to the commission of the index offence. This problem has at times caused significant financial stress, and one breach offence. His last instance of recorded gambling was on 12 May 2017.

35. [39]

    The conditions of the defendant’s ESO prohibit him from viewing pornography and the defendant has acknowledged that this is a risk factor for him. Notwithstanding, the defendant admitted to viewing pornography on 17 June 2015 and was issued a warning. There have been two breach offences relevant to the defendant’s use of pornography.

36. [40]

    Dr Parker summarised the historical material relating to the defendant’s psychiatric condition, although he noted that, despite multiple assessments, there has been no clear diagnosis of it. He has been diagnosed with Avoidant Personality Disorder (2013), and has been considered by various doctors as “clearly” (Dr Roberts, 30/11/13), “highly likely” (Dr Ellis, 30/11/13) or “likely” (Dr Paisley, 2/6/2018) to have schizophrenia.

37. [41]

    The defendant’s past symptoms have included paranoia, depression, low self-esteem, suicidal ideation, anxiety, self-harming behaviours, and sexually sadistic tendencies.

38. [42]

    In early 2018, the defendant was prescribed antipsychotic and antidepressant medication and appeared stable, until he experienced a range of stressors during the course of this year. Dr Parker noted that it was difficult to assess the defendant’s compliance with medication, but likely that he ceased taking it soon after his release from custody on 15 February 2018.

39. [43]

    As to sexual deviance, Dr Parker reviewed earlier conclusions, noting that, in 2013, Dr Ellis considered that the defendant met the Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria for Sexual Sadism Disorder.

40. [44]

    Dr Parker takes a different view, opining that an examination of the defendant’s past and current offences reveals that, at most, he meets the criteria for the following two items on that scale:

41. [45]

    Consequently, Dr Parker considered that the defendant “does not meet this criteria for sexual sadism”. He thought that,

42. [46]

    The defendant was assessed on 23 December 2011 using the Static Risk Factors Actuarial Assessment - Sex Offending (STATIC-99R) as having an “above average” (formerly classified as “moderate-high”) risk of sexual recidivism, relative to other male sexual offenders.

43. [47]

    Using the STATIC-99R and STATIC-2002R predictive tools, the defendant was assessed as having a risk of sexual recidivism compared with other offenders in his risk category of between 18% and 24.8% over five years, and between 26.7% and 38% over ten years.

44. [48]

    The defendant’s score, compared with other adult male sex offenders, was in the 88th percentile, meaning that roughly 85% of offenders scored lower than the defendant, and 8% scored higher.

45. [49]

    The recidivism rate of individuals convicted or charged with sexual offences with the same score as the defendant would be expected to be 2.7 times higher than the “typical” sexual offender.

46. [50]

    The defendant was assessed by Dr Parker on 4 September 2018 using the Dynamic Risk Factors Actuarial Assessment – Sexual Offending (STABLE-2007) as being in the medium risk category for sexual reoffending relative to other male sexual offenders, reflecting his identified criminogenic needs.

47. [51]

    Combining the above assessments to generate an “overall risk assessment”, the defendant was determined to have a profile of “above average risk”.

48. [52]

    Dr Parker also assessed the defendant using the Violence Risk Appraisal Guide – Revised (VRAG-R) assessment tool, specifically developed to assess the risk of violence for serious offenders, on 14 August 2018. The defendant’s score was equal to, or higher than, the score of at least 91% of the construction sample, and placed him in the ninth of nine “bins”. It was noted that 76% of violent offenders with a similar score reoffended violently within five years; 87% reoffended within twelve years.

49. [53]

    Dr Parker considered the following criminogenic needs to be dynamic risk factors for the defendant and, consequently, targets for change: attitudes; self-regulation; and intimacy deficits. With regards to attitudes, Dr Parker referred to the defendant’s reported sense of entitlement and lack of empathy for his victim, including his belief that people were like “creatures who had to be dealt with carefully, otherwise they would manipulate you”, and his experience of “systematised persecutory delusions”.

50. [54]

    Dr Parker noted that in 2013, the defendant was reported as having expressed the belief that women, rather than being people with personalities, were physical and sexual creatures “in a primitive sort of sense”. However, Dr Parker noted that at interview, there was no evidence to suggest this implicit belief was still active.

51. [55]

    In relation to criminogenic attitudes relevant to the defendant, Dr Parker also made mention of the belief that “women are unknowable or dangerous”, and opined that given the defendant’s difficulties in relationships, this theory “may be operative, at least to some degree”.

52. [56]

    Dr Parker also made reference to the concept of self-regulation, and considered that the defendant appeared to be “more willing to delay gratification at times when he is relatively stable”. He noted that while the defendant “has breached his ESO on numerous occasions, there is no suggestion he has come close to actually committing a sexual offence”, therefore suggesting that “his personal restraints against such an offence are higher than acts that breach his ESO”.

53. [57]

    Dr Parker noted an occasion in 2015 in one of the defendants “low points”, when the defendant left several voice messages for his psychologist in which he talked about rape or murder fantasies, and stated that he “had two options…to give in to his fantasies [or] to kill himself”. Dr Parker considered that,

54. [58]

    Dr Parker considered that evidence of the defendant’s delay in disclosing his pornography use with Correctives staff suggested a presence of “shame”. He also considered that the defendant’s mental health, while not itself a “robust predictor of sexual offending”, may play an indirect role through “creating distance and instability in his relationships, employment and social activities”.

55. [59]

    Dr Parker concluded that if the defendant were to commit a further serious offence, it would likely be predicated by a collapse of current “protective factors” in his life, such as the breakdown of his relationship, losing access to his child, a withdrawal from employment, the deterioration of his mental health or non-compliance with medication.

56. [60]

    Also before the court at tab 6 of Exhibit JF-1 was a Risk Management Report dated 4 October 2018, prepared by Ms Aubrey Lucas, a Community Corrections Officer, and endorsed by Ms Janelle Farroway. The report is directed to meet the requirements of s9(3)(d1) and 17(4)(d2) of the Act.

57. [61]

    In preparing the report, Ms Lucas conducted an interview with the defendant, had telephone contact with his partner and mother, telephone contact with a Justice Health Mental Health Nurse at Parklea Correctional Centre, and with a Forensic Psychology Service (“FPS”) psychologist, Suzanna Dumasia. She also considered Dr Parker’s report, and had regard to other documentary material supplied to her.

58. [62]

    In the report, Ms Lucas canvassed the defendant’s prior contact with and management by Community Corrections, from February 2009. In the initial period following his release on supervised parole on 20 July 2012, the defendant reportedly responded positively to supervision. After a few months, however, concerns regarding his engagement were noted and, in January 2013, he ceased his mental health medication, resulting in the revocation of his parole and his return to custody.

59. [63]

    The defendant served the balance of his parole in custody and was released on 5 November 2013 on an ISO, and was subject to electronic monitoring. She referred to the defendant’s history of breaching the order, as noted above.

60. [64]

    Ms Lucas made reference to the period of relative stability enjoyed by the defendant between early 2017 and March 2018, which she attributed to the support of his mother, the acquisition of stable rental accommodation, his entry into a relationship, and his maintenance of casual employment. She also noted that the defendant engaged with ongoing sex offending treatment (via FPS) and gambling counselling during this period.

61. [65]

    In August 2018, the defendant admitted having viewed pornography, proceedings for the most recent breach offence followed.

62. [66]

    Ms Lucas reported that the defendant’s mother is supportive of her son, maintained regular telephone contact with him when he was in custody, and continues to provide financial support to him and his family.

63. [67]

    Likewise, the defendant’s partner remains supportive and stated that she had visited the defendant in custody and that they have discussed future plans as a family. She advised that her particular concern for the defendant post-release was that he receive support in relation to his mental health – a plan with which he reportedly agreed.

64. [68]

    During the interview on 6 September 2018, (when he was still in custody) the defendant expressed to Ms Lucas a wish to return to his partner and infant child and reside at their premises in the Enfield area.

65. [69]

    He stated that he was considering reengagement with Gamblers Anonymous upon his release, as he had previously found this service beneficial. He also indicated that he had engaged with sex-offending treatment through the FPS prior to his most recent period of incarceration, and that he envisaged continuing with such counselling once in the community.

66. [70]

    At interview, the defendant also confirmed that he was taking medication for schizophrenia and depression.

67. [71]

    Ms Lucas detailed the strategies put in place as part of the defendant’s Risk Management Plan upon release. These included weekly face-to-face contact with the defendant; interviews focussed on exploring his attitude to women, self-regulation, intimate and non-intimate relationships, alcohol use and gambling; and weekly attendance and participation with Forensic Psychology Services and Gambling Anonymous services.

68. [72]

    Ms Lucas noted that unannounced and scheduled field visits would be conducted at the defendant’s home, work place, or other locations at least once per month, with a view to monitoring the defendant’s stress levels, mental health, and relationship dynamics. Searches of the defendant’s mobile and other devices would be undertaken if concerns were present about access to pornography.

69. [73]

    Weekly contact would also be maintained with third parties involved in the defendant’s activities in the community including his FPS therapist, mental health practitioners and gambling counsellors, to confirm his attendance at meetings and monitor his progress.

70. [74]

    Regular contact, both face to face and via telephone, would also be made with family, friends and the defendant’s partner, to discuss his ongoing relationship status, his attitudes, mental health and any current stressors.

71. [75]

    Ms Lucas suggested that the defendant be placed on electronic monitoring for a period post-release and possibly abide by a curfew, to assist in re-establishing stability in the community and allow supervisors to monitor his compliance with schedules.

72. [76]

    The defendant would be referred to FPS to continue with community based sex offending maintenance intervention to further address his risk areas such as attitudes, self-regulation and intimacy deficits. Upon release, he would also be referred to his General Practitioner to oversee ongoing psychiatric treatment for schizophrenia and depression.

73. [77]

    His drug and alcohol consumption would be monitored through random and targeted testing, and the defendant would be required to disclose any new relationships or associations to Community Corrections.

74. [78]

    Ms Farroway is employed with the Department of Corrective Services as the High Risk Offender Applications and Operational Governance Officer. She works within the ESO team in Corrective Services over‑sighting applications of the present nature for the department.

75. [79]

    In her first affidavit, Ms Farroway provided information as to the operation of interim and extended supervision orders. The defendant has been supervised in the past through ESO staff located at Blacktown, and that is likely to continue if the Court imposes a further order upon him. There will be continuity of supervising officer, although a range of staff would be involved in the defendant’s supervision.

76. [80]

    That supervision would take the form of devising and implementing a case plan, with weekly visits by staff to the defendant at his home or other places, together with other unannounced visits to him at any work place or during other activities in the community. Risk assessment would be on-going and steps would be taken by staff to manage the risk posed by the defendant, and to provide support and assistance to him to maintain himself long-term in a law-abiding way in the community. All persons subject to supervision orders under the Act are supervised at a level known as “Tier 3/High”, which designates a close level of supervision. It generally involves closer supervision than does supervision under a parole order.

77. [81]

    If no interim or extended supervision order was made in relation to the defendant, his level of supervision pursuant to the parole order, which is in force until early March 2019, would likely be reduced from that presently applicable pursuant to the existing ESO, or which would be applicable if an interim or further ESO was made. For example, visits from supervising staff to the defendant would probably be fortnightly, rather than weekly; and it is likely that electronic monitoring would cease. Powers available to staff supervising parole orders are much reduced from those available where an order under the Act is in place, and Ms Farroway considers that the likelihood of staff being able to detect problematic issues would also be reduced.

78. [82]

    In her second affidavit Ms Farroway considered the proposed conditions of an interim order and ultimately any ESO, concluding that the conditions were necessary to address the level of risk posed by the defendant. Electronic monitoring is regarded as necessary to effectively manage the defendant’s movements, with a view to preventing his attendance at locations associated with elevated risk. Ms Farroway regards electronic monitoring as particularly useful in managing the defendant, having regard to his history of breaching the current order.

79. [83]

    The other conditions proposed by the State are all regarded as necessary by Ms Farroway, having regard to the defendant’s history and the level of risk associated with him. These include conditions relating to accommodation; curfews; overnight visits; place and travel restrictions; restrictions on drug and alcohol use; restrictions on access to the internet, gambling, pornography and the like; and search and seizure.

80. [84]

    In her oral evidence Ms Farroway confirmed that electronic monitoring was regarded by the defendant’s current supervisors as an essential management tool. She said (at T8:25)

81. [85]

    Ms Farroway said that the defendant had been employed for a time in the community before his most recent incarceration, but that he had lost that employment during what appeared to be a period of destabilisation for him. She said, (at T7:03),

Determination

1. [86]

   For the Court to make the orders sought at this interim stage of the proceedings, the State must satisfy the Court that the matters alleged in the documentation supporting the application would, if proved, justify the making of an ESO: s 7(4) of the Act.

2. [87]

   The Court may make an interim order where, as here, it appears that the defendant's supervision will expire prior to the determination of the proceedings.

3. [88]

   Section 9(3) of the Act sets out those features to which the Court must have regard when determining an application of this nature.

4. [89]

   The legal principles that apply to an application of this nature were recently summarised by Johnson J in New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 at [20]-[25]:

5. [90]

   Having regard to those principles, and on all of the evidence taken at its highest, it seems clear that the defendant does pose a continuing risk to the community.

6. [91]

   Many of the features that were present at around the time of the commission of the index offence remain present. In sentencing the defendant in 2009, his Honour Judge Blackmore referred to the fact that the defendant had been regularly drinking alcohol, that he was not compliant with the medication regime prescribed by his treating psychiatrist, and that he had felt considerable hostility to women. His victim was a woman entirely unknown to him. Other evidence establishes that, at that time, the defendant had been regularly accessing and viewing pornography. Those features are referred to in more recent material.

7. [92]

   Since his release to parole the defendant appears to have experienced significant problems in making the transition to an acceptable lifestyle that is without significant risk to the community, apart from a brief period, between May 2017 to February or March 2018, of some stability. He has regularly breached orders imposed upon him, whether a parole order, an interim supervision order, or the existing ESO. The number of breaches that have occurred in a relatively short period of time are a cause for concern.

8. [93]

   Although much of the evidence presently available that relates to the risk posed by the defendant at this time is somewhat dated, there is a clear basis upon which to conclude that risk continues, at a level which cannot go unaddressed. The defendant continues to be drawn to the extensive use of pornography and, whilst he eventually disclosed his use of pornography contrary to the order to which he was subject, that disclosure, positive as it is, should not obscure the fact that he concealed his use of pornography from supervisors for many months. It would seem that he continues to harbour sadistic sexual fantasies concerning women.

9. [94]

   The defendant argues that Dr Parker has not opined that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision, but that is not dispositive of the application. That is a question for the Court to determine on the whole of the evidence, and not confined to that of one witness. Further, it must be borne in mind that the primary object of the Act is the protection of the community.

10. [95]

    The defendant is currently under some stress, associated with the birth of his child and difficulties between the defendant and the child's mother. He has not been consistently compliant with required medication, and he has had difficulty in coping with stressors. His circumstances have led to what Ms Farroway described as a destabilisation in his situation, leading to the loss of his former employment.

11. [96]

    This presentation echoes to some extent that which appears to have prevailed in the period leading up to the commission of the index offence. Of those features referred to by Dr Parker as predicating a collapse of protective factors, many - withdrawal from employment, and the deterioration of his mental health or non-compliance with medication – are now present. In those circumstances, there must be a risk to the community, and particularly to women. If that risk were to manifest, the consequences would be terrible.

12. [97]

    Accordingly, I have concluded that the State has established that the defendant poses an unacceptable risk of committing a serious offence unless supervised, on the basis that the matters alleged in the documentation which supports the application can be established. In those circumstances an interim supervision order should be made, together with associated orders for psychiatric or psychological examination and report.

13. [98]

    Attached to the Summons is a schedule of conditions which the State seeks to have imposed upon the defendant. The defendant argues that there is no basis for conditions other than those to which he is now subject, and in the same terms as those conditions, to be imposed. He disputes that proposed conditions 13, 17, 18, 28, or 30 are indicated on the evidence, or that there is a legitimate need for electronic monitoring, the use of schedules, or a curfew.

14. [99]

    The obligation on the Court is to impose only those conditions that are necessary to address the risk of future offending of the type which was the basis of the order, balancing that with the need to impose the least intrusive conditions required to meet the objects of the Act.

15. [100]

    In the absence of more recent and specific evidence to support the requirement for proposed conditions 13 and 18, as to the residence of others at the defendant’s home, and the requirement to participate in job training and related courses, respectively, I do not propose to impose these conditions. As a new father of a young baby I accept that the defendant’s circumstances have changed, and that he and his partner may require both support from family in the home, and more time at home and away from work obligations, at least in the short term. Proposed conditions 13 and 18 could impede both and add to the stress that the defendant is subject to.

16. [101]

    Proposed condition 30, whilst similar to existing condition 29, reverses the requirements precedent to the defendant joining internet based social networking services. Rather than, as presently, being restricted in this activity only if so directed, the onus imposed by proposed condition 30 is on the defendant to obtain permission to join such services. Having regard to the defendant’s use of the internet to facilitate some of the breaches of which he has been convicted, this more stringent requirement is beneficial in the protection of the community.

17. [102]

    Proposed conditions 17 and 28 relate to the defendant’s attendance at premises selling sexually explicit material, or use of sex workers. In light of the nature of the defendant’s sexual assault conviction, his recent use of pornography, and his expressions of hostility to women, these conditions also provide useful protection for the community.

18. [103]

    Electronic monitoring, schedules, and curfews are all indicated on the evidence of Ms Farroway, who deposed that these tools are necessary to those supervising the defendant to monitor his compliance with any order, in light of his recent destabilisation. I accept that evidence, and conclude that conditions allowing use of these tools are necessary, at the discretion of the defendant’s supervisors. It is true that conditions of this type will not detect the defendant’s possible use of pornography, but they will allow better monitoring of compliance overall, in circumstances where the defendant’s situation has become more unstable recently.

19. [104]

    That a power exists for supervisors to impose requirements of this nature on the defendant does not mandate their use. It does, however, provide a means for effective monitoring where circumstances justify it. Equally, should the defendant’s circumstances improve, it will be possible to reduce or delete such requirements.

20. [105]

    Accordingly, the following orders are made:

    1. (1)

       Pursuant to s.7(4) Crimes (High Risk Offenders) Act 2006 (“the HRO Act”) two qualified psychiatrists, or psychologists, or a combination of both, as agreed between the parties, are appointed to conduct separate psychiatric or psychological examinations of the defendant, and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court.

    2. (2)

       The defendant is directed to attend those examinations.

    3. (3)

       Pursuant to ss.10A and 10C(1) of the HRO Act the defendant is subject to an Interim Supervision Order for a period of 28 days commencing on 16 November 2018.

    4. (4)

       Pursuant to s.11 of the HRO Act the defendant is directed to comply with the conditions of the Interim Supervision Order which are set out in the schedule attached to these orders.

    5. (5)

       Liberty is granted to the parties to approach the Common Law list clerk to obtain hearing dates for any application for an extension of the interim order, for the final hearing of the matter, and to fix a timetable for the filing and serving of evidence and submissions.

    6. (6)

       Access to the Court’s file in these proceedings is restricted, such that access will be permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

    7. (7)

       Liberty to the parties is granted to apply to the High Risk Offenders List Judge for any orders arising from the orders made today.