State of New South Wales v MAK

HIS HONOUR: By its amended summons dated 14 July 2021, the State of New South Wales seeks orders against MAK pursuant to the Crimes (High Risk) Offenders Act 2006. MAK was sentenced by Sully J on 22 April 2004, for a series of nine counts of aggravated sexual assault in company, to imprisonment for 16 years commencing on 1 August 2002 and expiring on 31 July 2018 with a total non-parole period of 12 years expiring on 31 July 2014. MAK was later sentenced by Hidden J on 5 April 2006, for one count of aggravated sexual assault, taking into account a charge of indecent assault on a Form 1, to imprisonment for 9 years with a non-parole period of 4 years commencing on 1 August 2012. The effect of these sentences was that MAK was imprisoned for a total period of 19 years commencing on 1 August 2002 and expiring on 31 July 2021 with a non-parole period expiring on 31 July 2016. MAK is currently living in the community, having been released to parole on 8 July 2020.

The State seeks interim and interlocutory relief from me as follows:

On 27 November 2020, the State provided a brief, comprised of approximately 1,180 pages of material gathered from a series of State agencies, to Dr Richard Parker, a Senior Specialist Psychologist within the Serious Offenders Assessment Unit of Corrective Services NSW. Dr Parker was asked by the Corrective Services Commissioner to consider that material and to provide a Risk Assessment Report in relation to MAK in anticipation of this application and the expiration of his sentence.

Dr Parker provided a Risk Assessment Report as requested dated 25 January 2021. His qualifications and experience are described in that report as follows:

Dr Parker’s Risk Assessment Report forms part of the supporting documentation tendered by the State on this application. It contains the following material:

On 14 December 2020, at the request of MAK’s treating psychiatrist, the Justice Health and Forensic Mental Health Network prepared a Problem Behaviour Management Report with the expressed aims of identifying factors associated with his index offending in order to assist with his safe treatment and care. The report was subject to the following limitation:

That report contained the following opinions concerning risk:

On 11 March 2021, following MAK’s release to parole some eight months earlier, Shantelle Hodgkinson, a Community Corrections Officer, prepared a Risk Management Report concerning MAK. Ms Hodgkinson noted that an assessment of MAK’s risk of general reoffending undertaken on 20 July 2020 found him to fall into the medium risk level for general reoffending. A psychological risk assessment undertaken on 1 June 2016 estimated that MAK fell into the well above average risk category of sexual reoffending. Ms Hodgkinson noted that at the date of her report, MAK was supervised in the community by way of parole order. His response to supervision was noted to have been satisfactory and he appeared to be appropriately engaging with his then current supervising officer and adhering to the conditions of his parole order among others.

MAK was more recently reviewed by his psychiatrist Nahid Siddiqui on 23 June 2021. Her “Final Report” included the following observations:

Section 7(4) of the Act provides as follows:

In order to justify the making of an extended supervision order, the following test in s 5B of the Act must be satisfied:

In the present case, there is no dispute that the three factors described in s 5B(a), (b) and (c) have been satisfied. Only s 5B(d) remains in issue.

The cases in this area of jurisprudence are replete with statements of what represents an unacceptable risk. It is unnecessary slavishly to reproduce those statements here.

It is apparent that MAK poses a risk of committing another serious offence if not kept under supervision. The material before me suggests that the risk is that MAK may commit an offence in the context of an established or developing relationship. The burden of opinion suggests that there is limited, if any, risk at all that MAK will commit a serious sexual offence of the type that was concerned with the index offences. Specifically, that offending involved the assistance and urging of his brothers, present with him at the time and also offending in a similar way, when he was in his early twenties. There is general acceptance of the fact that similar violent offending is not likely. That, of course, is not the end of the matter.

In support of his opposition to the interim orders sought by the State, MAK made the following submissions.

All of MAK’s offences were committed in a single year when he was either 21 or 22. He is now 41.

The State’s concern that there is an unacceptable risk that MAK will commit a further serious sexual offence relies primarily upon the nature and circumstances of his index offending in 2002, a risk assessment drawn from 2017 data that he presents a “well above average” risk of sexual reoffending of a different type and an opinion that it is “too early to tell” if he has adapted to lawful community life.

MAK submitted that this application raised three key areas of concern for consideration. First, the calculation of the risk of MAK committing a further serious sexual offence. In the present case, the State contends that MAK is at risk of committing further sexual offences of unexplained seriousness within the context of a relationship. MAK’s risk of offending, both sexual offending and more generally, has been exhaustively assessed using several of the standard tests designed for making predictions concerning such risks. His general risk of offending has been assessed as moderate by Dr Parker. His risk of sexual recidivism has been assessed as “moderate-low”, scoring 2 on a scale of -3 to 12, by Amanda Pilley in her CUBIT Treatment Report dated 18 May 2017. MAK’s risk of violent offending has been assessed at “below average” by Dr Parker.

Secondly, MAK also drew attention to what have been referred to by medical experts as “criminogenic needs”. In this respect, MAK was classified as having “high” criminogenic needs in 2017. A composite assessment provided by Ms Tilley in her report concluded that MAK was in the “moderate high” category for supervision and intervention compared to other sexual offenders. MAK’s Sexual Offenders Supervision Assessment level was “medium”, and deemed unlikely to change as at September 2020.

Finally, MAK was assaulted while in custody in 2007. This attack was severe and is well documented. MAK developed mental health issues as a result and now suffers from schizophrenia secondary to an acquired brain injury. MAK has been medicated for his schizophrenia since 2012. He is currently subject to a Community Treatment Order which expires in approximately six months. There is evidence to suggest that an application to extend or renew that order is proposed. At present, the evidence suggests strongly that the Community Treatment Order is effectively assisting to manage MAK’s schizophrenia. There is no unambiguous evidence that MAK’s psychiatric condition heightens the risk of reoffending. Dr Parker is of the view that it is likely to reduce that risk.

There is no issue that MAK has complied with the conditions of his parole since his release on 8 July 2020. He has in addition been compliant with conditions attaching to his Community Treatment Order, a Child Protection Prohibition Order and the requirements of the Child Protection Register. All of those orders will continue in force, in varying degrees, past the expiration of MAK’s sentence on 31 July 2021. MAK also currently has the support of the National Disability Insurance Scheme which has arranged for supported accommodation with 24-hour care.

In State of New South Wales v Pacey [2015] NSWSC 1983, I described the task of assessing an unacceptable risk in the following way:

Dr Parker is eminently qualified to express an opinion about MAK. He did not interview MAK, but was provided with a wealth of material by reference to which to form his views. That material came from sources such as the Children’s Guardian, the Serious Offender’s Review Council, the State Parole Authority, Corrective Services NSW, the NSW Police Force, Victims Services and the Justice Health and Forensic Mental Health Network. Dr Parker was also provided with material from this Court which, without other information about it, I assume to have been the sentencing remarks of Sully J and Hidden J as well as the judgments of the Court of Criminal Appeal in each case. The fact that Dr Parker did not speak to MAK seems to me to be of minor significance.

Dr Parker’s opinion is that MAK presents “a rather confusing picture” from a risk assessment perspective. Static risk assessment instruments place him in the average or below-average risk categories. It is significant that this assessment derives primarily from his limited criminal history and stable upbringing. On the other hand, MAK’s dynamic risk assessment indicates a high density of criminogenic needs relevant to sexual recidivism. Although MAK has spent little time in the community, which adds to this risk analysis, MAK’s progress since his release to parole appears to have been relevantly without incident.

Dr Parker also emphasises that it seems unlikely that the collocation of factors that spawned the index offending will be repeated. Those offences were committed in circumstances where MAK had been effectively left to his own devices in Australia, with no parental supervision, living with his brothers who were then all young men or teenagers. Dr Parker opined that the most likely scenario for any future offending would be in the context of domestic violence. MAK’s attitudes and belief systems, combined with his lack of relationship experience, leave him poorly equipped to navigate the dynamics of a relationship in the Australian culture. However, MAK has no history of intra-relationship violence and to some extent Dr Parker’s caution is the result of understandable predictive hesitancy.

MAK has completed the CUBIT program. The material suggests that he was resistant to this in some respects in years past. However, that program, or its present equivalent, are regularly emphasised as preconditions to parole in cases involving violent sexual offenders. It is not something that in my view can fairly be levelled at MAK as a negative or disentitling factor. MAK has completed the course and is entitled to receive the benefit of having done so. Indeed, Dr Parker specifically notes that MAK has developed a satisfactory understanding of what is, and what is not, legal in sexual interactions.

MAK sustained a severe brain injury as the result of an assault in custody. He developed schizophrenia as a result for which he is medicated. This condition remains responsive to medication, provided that MAK maintains compliance with his pharmaceutical regime. Dr Parker notes that MAK’s behaviour in custody was generally compliant, suggesting a willingness to conform to rules and regulations. It is accepted that this remains to be tested over a longer period in the community.

Dr Parker also observes that MAK has only offended during one short period of his life, now approximately 19 years ago. Dr Parker re-emphasised his opinion that it seemed unlikely that MAK would participate in similar offending in the future, although the possibility of a different type of sexual offence unfolding, probably in the context of a relationship, could not be ruled out.

Static risk assessment instruments rank MAK as being average or lower risk whereas dynamic risk assessment indicates the presence of a number of risk factors. Dr Parker does not express a concluded view about how that combination is likely to play out in a community setting.

The Problem Behaviour Management Report of 14 December 2020 suggests that MAK has a moderate-high loading of historical risk factors that are associated with the risk of aggression in the longer term. For obvious reasons, MAK’s historical profile will never change. As I understand Dr Parker’s view, the historical significance of MAK’s index offending is not great.

The Problem Behaviour Management Report suggests that MAK presents with a moderate loading of factors related to his prospective risk management. Specifically with respect to his risk factors for sexual violence, MAK falls into a group with a rate of sexual recidivism estimated at 7.2% over a five year period and 13% over a ten year period. That is, according to the authors of the report, a below average risk.

Ms Hodgkinson’s report of 11 March 2021 suggests that MAK has a medium risk for general offending. Her reference to a psychological risk assessment undertaken on 1 June 2016 is somewhat curious. Even though that assessment estimated MAK fell into the well above average risk category of sexual offending at that time, no contemporary opinion endorses that prediction. It is in my opinion not without significance that the report is now more than five years old, MAK has since completed the CUBIT program and has been released to parole for 12 months without incident.

Finally, Dr Siddiqui has provided an assessment summary as recently as 23 June 2021. As far as I am aware, Dr Siddiqui has had a close therapeutic role with MAK for some time. It is not insignificant in my view that her opinion is that MAK presents with a low risk of relapse or non-compliance or harm either to himself or others.

Taking the matters alleged in the supporting documentation upon which the State relies at their highest, or what amounts to the same thing, proceeding at this stage of inquiry upon the basis that those matters can be proved, they would not in my opinion justify the making of an extended supervision order.

The ultimate requirement is satisfaction that MAK poses an unacceptable risk of committing another serious offence if not kept under supervision. The supporting documentation upon which the State relies raises arguably what might variously be characterised as a suspicion or a fear or a possibility that MAK poses an unacceptable risk of committing another serious offence if not kept under supervision. In particular, the matters alleged in the supporting documentation upon which the State relies provide some basis for a suspicion or a fear or a possibility that MAK poses what seems to be a low risk of committing a sex offence in the context of a relationship. The product of those integers – that is to say, a low risk (i.e. suspicion, fear or possibility) that MAK may commit a sex offence in the context of a relationship - means that the risk may, at least nominally, be characterised as unacceptable.

However, the underpinning justification for the making of an extended supervision order harks back to the requirement in s 5B(d) that this Court be satisfied “to a high degree of probability” that MAK relevantly poses such an unacceptable risk. While not critical for present purposes, it is reasonably apparent that this test was intended by the legislature as a brake upon orders amounting to a significant interference with an offender’s personal liberty, although importantly the safety and protection of the community are in this context taken to be paramount. I have not disregarded that critical consideration. I am of course not required to determine that the relevant risk is more likely than not in order to determine that there is an unacceptable risk of MAK committing a serious offence: s 5D.

In this case, as I have indicated, the material on which the State relies suggests at one level that MAK poses an unacceptable risk of committing another serious offence if not kept under supervision. However, even at the preliminary stage of an application such as this, the requisite justification for the making of an extended supervision order to which s 7(4) of the Act refers remains satisfaction to a high degree of probability. The existence of a fear or suspicion or possibility that this may occur is not enough. The matters alleged in the supporting documentation would not, if proved, satisfy me to a high degree of probability that MAK poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order.

Accordingly, I dismiss the State’s application for an extended supervision order pursuant to s 9(1)(b) of the Act.