State of New South Wales v Currie (Preliminary)

1. [1]

   The State of New South Wales seeks an order that the defendant be subject an extended supervision order (ESO) for a period of five years. In the interim, the State seeks orders pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (CHROA) appointing two qualified psychiatrists and/or registered psychologists to examine the defendant and furnish reports to the Court, and an order that the defendant be subject to an interim supervision order (ISO) from 12 March 2021.

2. [2]

   The defendant was sentenced on 25 September 2005 for two counts of aggravated sexual assault and threaten actual bodily harm, and one count of assault with an act of indecency. The defendant was sentenced to an overall sentence of 13 years and four months commencing 13 November 2007 and expiring 12 March 2021, with a non-parole period of 10 years expiring 12 November 2017.

3. [3]

   On 26 November 2019 the defendant was granted parole, and he was released on 11 December 2019.

Legislation

1. [4]

   Section 5B of the CHROA provides:

2. [5]

   Section 5I(2) and (3) define a supervised offender to include someone who is on parole for a serious offence. Section 4 defines serious offence as, relevantly, meaning:

3. [6]

   Section 5(1) defines serious sex offence as an offence, inter alia, of one under Div 10 of Pt 3 of the Crimes Act 1900 (NSW) where the offence is punishable by imprisonment for seven years or more and, where the victim is an adult, the offence is committed in circumstances of aggravation.

4. [7]

   The offences in respect of which the defendant was convicted included two counts of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act 1900 (NSW) (as it was in 2005). These were serious sex offences. The application was made whilst the defendant was released to parole. Accordingly, the pre-requisites in s 5B(1)(b) and (c) are made out.

5. [8]

   Section 7(4) and (5) of the CHROA provide what is to occur at a preliminary hearing. In addition, the Court is given power to make an ISO under s 10A of the Act. In both cases, the test for making orders under ss 7(4) and 10A is the same, namely:

6. [9]

   If that is so, the Court must make the orders in s 7(4) appointing the psychiatrists and/or psychologists, and may make an ISO under s 10A. I am satisfied pursuant to s 10A(a) that the defendant’s supervision on parole will expire before the present proceedings are determined.

7. [10]

   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; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]; see also State of NSW v Clarke [2019] NSWSC 411 at [7]-[11].

8. [11]

   In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Beazley P said, when discussing the meaning of the phrase “unacceptable risk”:

9. [12]

   In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J said at [71]:

The defendant’s criminal history

1. [13]

   The defendant was born in August 1963 and is now aged 57. His criminal record is extensive, and dates back to 1976 when he was a child. His offending continued into adulthood, with offences occurring in most years that he was residing in the community.

2. [14]

   His record consists primarily of property and violence offences. However, in 1995 he was sentenced for eight counts of aggravated sexual intercourse without consent committed in 1994. On each count he received a sentence of seven years with a four year non-parole period.

3. [15]

   He was released to parole on 12 May 1999. Whilst on parole for those offences, on 13 January 2000 he was charged with an offence of aggravated sexual assault which was alleged to have occurred between 20 and 22 December 1999. He was convicted of this offence, but the Court of Criminal Appeal quashed the conviction and ordered a re-trial as a result of a mis-direction of the trial judge: R v Currie [2002] NSWCCA 126. Of some significance is the fact that in dismissing a ground of appeal on the basis of an unreasonable verdict, Dowd J said at [90]:

4. [16]

   At the re-trial the defendant was ultimately acquitted. However, the Court can have regard to the alleged criminal conduct despite the acquittal when considering the matter of unacceptable risk: State of New South Wales v Tiggelen [2018] NSWSC 1399 at [102]; State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 at [14].

5. [17]

   After being sentenced for the index offences on 29 August 2008, the defendant was sentenced on 16 October 2008 for two unrelated offences of aggravated break and enter. The sentence imposed for those offences was entirely subsumed in the sentences for the index offences.

The index offences

1. [18]

   The victim of these offences was a 24 year old woman from Estonia who was travelling around Australia on a working holiday. On 23 September 2005 she travelled to Byron Bay to celebrate her birthday. She met the defendant who offered her a lift to Sydney for $60.00. The victim accepted and they left that evening. After driving for approximately 40 minutes, they stopped and shared a joint of marijuana.

2. [19]

   The defendant then drove to a remote property under the pretence that he was taking a shortcut. The defendant told the victim he wanted "to make love" to her, to which the victim responded she was not interested. The defendant said, “We can do this the easy way or we can do it the hard way”. A struggle ensued as the victim attempted to get out of the vehicle. The defendant had a knife in his right hand and he put it to the victim’s neck. The knife was about eight to ten centimetres long, similar to a fishing knife. The victim said, “Please no, why are you doing this?” and the defendant said, “You know how to play the game”. The victim said, “Please don’t hurt me”. She also said, “I’ll do whatever, just put away the knife”.

3. [20]

   The defendant then exposed his penis and said, “I want you to give me a blow job”. He forced the victim's head onto his groin and forced his penis into her mouth. The victim said that she did not want to do this. This was the first count of aggravated sexual intercourse.

4. [21]

   The defendant then told the victim to get out of the vehicle. He took her to the makeshift table, lifted her up and placed her on the table. He pulled up her t-shirt and sucked her breasts. That was the indecent assault count.

5. [22]

   The defendant then pulled the victim’s pants and underwear down and placed his penis into her vagina. He continued to have sexual intercourse with her until he ejaculated. This was the second count of aggravated sexual intercourse.

6. [23]

   Both the victim and the defendant then got back into the vehicle and the defendant drove for some time until the victim had the opportunity to get out of the car at Macksville. The victim then bought a train ticket to Sydney, and on arrival in Sydney she reported the matter to the police.

7. [24]

   When Judge Black DCJ sentenced the defendant, he had a report from a psychiatrist, Dr Westmore. Dr Westmore was asked to provide an opinion about whether the defendant’s behaviour as found by the jury could have been affected by his psychiatric condition at the time. Dr Westmore diagnosed him as suffering from a psychotic illness which he thought was a Schizoaffective Disorder, but a differential diagnosis was Bipolar Affective Disorder with psychotic symptoms. He also diagnosed him as suffering from Conduct Disorder arising in adolescence, Alcohol Abuse, Cannabis Abuse and Antisocial Personality Disorder.

8. [25]

   In giving his opinion, Dr Westmore said:

9. [26]

   The defendant was examined by Dr Gordon Elliott at the request of the State Parole Authority in August 2018. Dr Elliott’s diagnosis and conclusions were these:

10. [27]

    Before he was released to parole, the defendant participated in the High Intensity Sex Offender Program (HISOP) between 18 April 2018 and 8 May 2019. The program is a custody-based residential therapy program for men who have sexually abused adults and/or children. It is a program which balances risk management with a strengths-based approach to treatment for individuals with moderate to high risk/needs.

11. [28]

    A report was prepared on 10 July 2019 in relation to the defendant’s involvement in the program. The report said that his participation in the program was longer than the standard treatment duration due to his responsivity issues (i.e. his ability to remain awake, as well as his motivation to engage with and participate in groups), and in the earlier stages of treatment, his tendency to submit task work late.

12. [29]

    The report said this concerning his participation in the program:

13. [30]

    In the course of the program, the defendant was assessed using the STATIC-99R and the STABLE-2007 Protocols. His total score on the STATIC-99R was 6 which equates to a well above average risk, or Level IVb. His score on the STABLE-2007 was 15 which suggested a high density of criminogenic needs relative to other male sexual offenders. Combining the two protocols, he was in the well above average risk level.

14. [31]

    A Risk Assessment Report (RAR) was prepared on 17 July 2020 by Mandy Lau, a senior psychologist at the Serious Offenders Assessment Unit. The RAR was prepared in anticipation of an application under the CHROA.

15. [32]

    In her report, Ms Lau noted that since the defendant’s release from custody in December 2019, his response to supervision has been described as satisfactory, with the exception of frequent and repeated deviations from scheduled activities. She said that a review of his parole notifications revealed that the majority of those deviations were brief, and the reasons that he provided for his decision to deviate did not raise significant concerns about his risk.

16. [33]

    Ms Lau noted what had been said in the HISOP report, both as to his approach to the program and to behavioural issues whilst in the program.

17. [34]

    Ms Lau noted the assessments that had previously been made using STATIC-99R and the STABLE-2007. She said that his categorisation as well above average risk level, or Level IVb, meant that he would require a high level of intervention and/or supervision according to the principles of Risk/Needs/Responsivity.

18. [35]

    Ms Lau noted that the defendant remained in denial of his index offences for a significant period of time, claiming that the sexual activities with the victim were consensual. She said that his attitude towards his offending appeared to have changed at some point during his sentence. She said:

19. [36]

    Ms Lau also said:

20. [37]

    A Risk Management Report was prepared by Shantelle Hodgkinson on 2 September 2020 and endorsed by Kelli Grabham, the High Risk Offender Applications and Operational Governance Officer. The report noted the HISOP report, the RAR of Mandy Lau, and the defendant’s response to Community Corrections Supervision. It also referred to an assessment undertaken on the Level of Service Inventory – Revised, which found the defendant fell into the Medium risk level for general offending.

21. [38]

    The report noted that the defendant struggled with general self-regulation, and that impulsivity and poor problem solving appear to be significant risk factors for him. The report said that there appeared to be a significant amount of entrenched trauma that had impacted his views, and experiences on racism and the way in which he interacted with authority figures. His risk factors were identified as general self-regulation, intimacy deficits, sexual self-regulation, cooperation with supervision and his attitudes.

22. [39]

    The report recommended a weekly schedule of movements, electronic monitoring, a curfew, conditions in relation to employment and education, and the need to notify the DSO of any person he intended to associate with or form a relationship with. The conditions would require abstinence from alcohol and drugs, a right to search his electronic devices, his residence and his person and a requirement to attend psychiatric and psychological appointments. The report said that he might also need to attend assessments and subsequent community-based interventions recommended by professionals as directed by Community Corrections. The report recommended that he be subject to an ESO.

23. [40]

    Taking into account the psychiatric reports of Dr Westmore and Dr Elliott, the HISOP report, the RAR of Mandy Lau, and the RMR, I am satisfied that, if what is contained in those reports is proved at the final hearing, they would justify the making of an ESO, bearing in mind the high test which s 5B(d) requires.

24. [41]

    I note that the defendant did not dispute that it was appropriate that an ISO be made. The issue between the parties concerned a number of the conditions which the plaintiff seeks to have imposed as part of the ISO.

Conditions

1. [42]

   In State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813, Hoeben CJ at CL said this concerning conditions:

2. [43]

   The State proposes that these conditions should read as follows:

3. [44]

   In lieu of those conditions the defendant seeks that there be two conditions as follows:

4. [45]

   Mr Howell of counsel for the defendant argued for the greater flexibility that his proposed conditions would give, and submitted that with the defendant having complied with the stricter conditions proposed by the State whilst on parole, his proposed conditions would represent a modest step down. Ms Curry for the State submitted that there was nothing to show that the parole conditions, which reflected the State’s proposed conditions, had not been working effectively, and that they assisted the defendant in planning given his poor planning and organisational skills. She directed attention to what Kelli Grabham said in her affidavit, and how the schedule of movements interacted with the electronic monitoring.

5. [46]

   The evidence tends to show that, apart from a number of minor deviations from his scheduled activities mentioned earlier, there has been general compliance by the defendant with the conditions concerning a schedule of movements. I consider that there is merit in the defendant’s proposal for a minor loosening of the restrictions, particularly because the period he spends on an ISO will provide a good indication of what conditions will need to be imposed if an ESO is ordered. Conditions 5 and 6 proposed by the defendant should be ordered.

6. [47]

   The State proposes that condition 13 relating to the defendant’s accommodation should read:

7. [48]

   The defendant proposes that there be added at the end of 13(b) these words:

8. [49]

   I do not think the words sought to be added by the defendant are appropriate. The assumption contained within them is that, if those words are not added, the DSO would be able to act arbitrarily and without reasonable cause. I do not consider there is any basis for that assumption.

9. [50]

   The condition as finally proposed by the State reads in this way:

10. [51]

    The defendant sought to add the words that had been proposed to be added to condition 13. For the reason that I gave there, I do not consider those additional words are appropriate.

11. [52]

    The State proposes the following condition:

12. [53]

    The defendant at first sought to add after the word “following” these words:

13. [54]

    The defendant then proposed in the alternative that the condition have attached to it the following words:

14. [55]

    The need for this condition is particularly important because of the defendant’s history of using a knife to force sexual intercourse or sexual assault on women. I accept, however, that he may need to use a knife at somewhere like the Men’s Shed or when he is fishing with his support worker under the National Disability Insurance Service Plan.

15. [56]

    However, I do not see the need to add to the wording of condition 31 because it is wide enough to enable the DSO to give pre-approval for the use of a knife for specific purposes such as at the Men’s Shed, or when fishing, or for any other legitimate purpose. In short, either of the proposed additions to condition 31 adds nothing to what can already be approved to enable the defendant to engage in those and similar activities.

16. [57]

    The State proposes conditions 47 and 48 regarding the defendant’s appearance as follows:

17. [58]

    The defendant proposes that condition 47 should be omitted, partly because of the difficulty of what the word “significantly” means, and partly because any problem from a change of appearance is dealt with in condition 48. The fear the defendant has is that a different haircut or a change to his facial hair might constitute a breach of the condition.

18. [59]

    Ms Curry submitted that the condition relates to the effective of surveillance and monitoring. She disagreed that a haircut or a change to the beard would amount to a significant change. She pointed out that similar arguments had been raised in Wilkinson and rejected by Hoeben CJ at CL.

19. [60]

    I consider that the condition is useful for monitoring and detection of offending and/ or escalation of risky behaviours, and it is neither onerous nor intrusive. The defendant, if he wishes to change his appearance significantly, can always seek the approval of a DSO: Wilkinson at [91]-[92]. If, as the plaintiff says, the issue is simply one of surveillance and monitoring, it is unlikely that permission would be refused if the DSO knows about it in advance. I reject the defendant’s application in this regard.

20. [61]

    The State proposes these conditions:

21. [62]

    The defendant proposes adding to condition 51 the following words:

22. [63]

    In lieu of the State’s conditions 55-57, the defendant proposes the following:

23. [64]

    The defendant submitted that the amendments were effectively to give him some privacy for physical ailments unrelated to his psychiatric and related conditions.

24. [65]

    There seem to me to be some difficulties about what the defendant proposes. It assumes that there is a clear demarcation between physical and other ailments, and the DSO needs to know in any event (as the plaintiff contends) what physical problems the defendant has in terms of his compliance generally. It must be accepted that a person who is placed on an ISO or an ESO is having their liberty and privacy restricted, although the conditions endeavour to do so only to the extent necessary to ensure adequate supervision. Condition 51 is a common condition and, it seems to me, a necessary condition.

25. [66]

    What is proposed by the defendant in condition 55 would seem to me to place an impossible burden on a health care practitioner, even if it was the defendant’s regular health care practitioner. Such persons are not qualified to consider whether some treatment is appropriate for the defendant’s rehabilitation and risk mitigation in relation to the defendant committing a serious offence. Although the defendant subsequently proposed omitting reference to the defendant’s rehabilitation and risk mitigation, it is scarcely for a health care practitioner to judge whether something might be related to the defendant committing a serious offence. The difficulty would be highlighted if the defendant was to see a health care practitioner for the first time, and there was an obligation for that practitioner to provide information about the consultation to the DSO or some other legitimate person. Such a practitioner, without any detailed history of the defendant, would be in no position to make a judgment concerning the defendant’s rehabilitation or risk mitigation.

26. [67]

    Ultimately the plaintiff agreed to reword condition 56 so that it reads:

27. [68]

    With that amendment, and the second sentence of condition 57 having been added to meet the defendant’s suggestions, I consider that there should be no further alteration to conditions 51, 55, 56 and 57.

Conclusion

1. [69]

   I make the following orders: