State of New South Wales v Rush (Final)

1. [1]

   By summons filed 27 September 2018 the plaintiff seeks an order under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) for extended supervision of the defendant for three years. The defendant does not resist a finding that a court would be satisfied to the requisite standard that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. However, the defendant submits that the duration should be limited to two years. Some modification and minor adjustments to some of the conditions proposed by the plaintiff were agreed in discussion between counsel and are reflected in the conditions attached.

2. [2]

   The specific issues for the Court to determine, other than the necessary s 5B and s 9 determinations were two. First, whether the ESO should be for two or three years and second, whether the proposed condition regarding electronic monitoring should be subject to a “sunset clause” where the condition is limited to a six month period unless the defendant breaches the conditions of the ESO, and if any condition of the ESO is breached, electronic monitoring will apply for the balance of the term of the ESO or as directed by the Departmental Supervising Officer (DSO).

3. [3]

   It was common ground that the court is still required to make the necessary determinations pursuant to ss 5B and 9 of the Act, despite there being no objection to an ESO of two years.

The preliminary hearing

1. [4]

   At the preliminary hearing which took place before me on 10 December 2018, the defendant did not resist the interim relief sought in the summons, provided that the Court was independently satisfied that the orders should be made. No submission was made on behalf of the defendant that the court should not be so satisfied.

2. [5]

   At the time of the preliminary hearing, the defendant was 20 months into a 2 year parole period. Up to that time he had not breached conditions of parole.

3. [6]

   Based on the history, conclusions and reasoning set out in paragraphs [12]–[29] of my judgment, State of New South Wales v Rush (Preliminary) [2018] NSWSC 1949, I made orders that the defendant be examined by a psychiatrist Dr Adam Martin, and a psychologist, and that the defendant be subject to an interim supervision order (ISO) commencing on 24 March 2019 for a period of 28 days.

4. [7]

   My analysis of the statutory tests and the defendant’s background and offending is relevant for this judgment and I repeat them here for context:

5. [8]

   Orders extending the ISO were made by me on 8 April 2019: State of New South Wales v Rush (No 2) [2019] NSWSC 417. At that time the report from Dr Martin was available. In addition to the material I relied upon at the preliminary hearing, Dr Martin’s report informed my decision as set out in paragraph [7] of my judgment:

6. [9]

   The parties prepared consent orders to effect the renewal. The defendant’s counsel did not oppose renewal. The defendant himself is noted by Dr Martin to have said that he was “happy” with the proposed extended supervision planned and that he “did not care how long it was for” and that he was “not fighting it”.

7. [10]

   Whilst on one analysis this attitude of the defendant to supervision orders could be interpreted as suggesting a degree of insight into the offending in the past, this is a subject to which I will return because the apparent lack of insight into his offending and its effect on his victims and the repeated minimisation of his sexual offending remains of significant concern and informs the risk that the defendant may well engage in this behaviour again if the urge so takes him.

8. [11]

   Due to a breach of parole on 16 December 2018, the defendant was returned to custody on 21 December 2018 where he remained until his release on 25 March 2019. The breach was the subject of a guilty plea in February 2019, and he was sentenced to three months imprisonment for that breach. There have been no further incidents of breach since his release on 25 March 2019.

The final hearing

1. [12]

   The final hearing took place on 10 May 2019. The material from the preliminary hearing was tendered which comprised a lengthy affidavit of Kate Horman, sworn 27 September 2018 together with two volumes of exhibited material covering the defendant’s offending, sentencing remarks of the judges who dealt with the previous offending, and parole reports. The material also included risk assessments by Mr Ardasinski, psychologist, and Ms Carden, the DSO from the Department of Corrective Services.

2. [13]

   The following additional material was read and or relied upon:

The reports of the court appointed experts

1. [14]

   Neither of the experts were required for cross-examination. Dr Collins was called to give some further explanatory evidence addressing why she provided a range of two to three years as the appropriate duration of the ESO.

2. [15]

   Dr Martin expressed the following opinions in his report of 5 February 2019:

3. [16]

   In her report of 22 April 2019, Dr Collins expressed the following opinions:

Oral evidence of Dr Collins

1. [17]

   Dr Collins gave evidence that she considered it would be usual for persons such as the defendant to have interface with Forensic Psychology Services (FPS) for 18 months to 2 years for treatment purposes. After that, there needs to be an additional supervisory period to determine the defendant’s response, his community adjustment and to ensure that relapse strategies and other strategies provided to him are working in the community.

2. [18]

   Dr Collins said that whilst the defendant has demonstrated that he will adhere to some of the treatment and guidance, it can be “a little hit and miss”. On occasion there is a suggestion that he complies because it suits him to do so and because of that, there needs to be additional processes to ensure that he is adhering to what is required of him.

3. [19]

   On the issue of whether there is an ongoing sexual interest in children, Dr Collins said it was difficult to answer this question because he denied it but his description of the offences and the way in which they were situationally driven indicates, in her view, a very clear interest in children. This underpins the need to monitor him through FPS treatment and to monitor him in the community to see whether there is any indication that his self-report that he is not sexually interested in children is inconsistent with the facts. Because of these needs and concerns, a period of three years is more appropriate and two years is not sufficient.

4. [20]

   In terms of length of monitoring by electronic means, Dr Collins gave the view that a six month limit would be premature because the defendant needs a significant period to examine whether he can maintain compliance with ESO restrictions.

5. [21]

   I was impressed by Dr Collins and found her analysis, rationale and explanations as to what she meant in her report when she provided the upper limit of three years, persuasive.

Oral evidence of Ms Carden

1. [22]

   Ms Carden explained that at the time of the defendant’s breach of parole conditions, he was on stage three of monitoring, that is he was no longer required to provide schedules of movement but was still wearing electronic monitoring. The scheduling requirement had been removed in August 2018 and the breach of parole was being present in Burwood Park, a place he was not permitted to go.

2. [23]

   Ms Carden explained that because of the breach of parole, on release on 25 March 2019 and pursuant to the conditions of the ISO, it was determined that he should revert to stage one being both electronic monitoring and the requirement that detailed schedules of movements be provided to his DSO for approval three days ahead.

3. [24]

   Ms Carden explained that usually people such as the defendant remain on stage one for 12 months before the type of modifications available under stage two are made, such as curfew extensions and slightly less restrictive scheduling.

4. [25]

   In respect of the proposal made on behalf of the defendant that he be restricted to electronic monitoring for six months with automatic removal at the end of a six month period from the date of the Court’s orders, Ms Carden indicated that it would be necessary for there to be an in-built option for the DSO to immediately resume electronic monitoring if the defendant were to breach any condition or to become destabilised in a way that would lead to an increased risk of reoffending for example if he indicated to his consulting psychologist, his GP or to anyone, a sexual interest in children, or commenced using alcohol or drugs.

5. [26]

   As explained in paragraphs [27]–[38] of her affidavit, it is important that alerts from electronic monitoring can be managed and any deviations from required or scheduled activities can be monitored and assessed on a case by case basis:

Breach of parole

1. [27]

   According to the police facts used in the proceedings for contravene Child Protection Prohibition Order, on 16 December 2018 Mr Rush entered and remained in Burwood Park between 5.55pm and 6.01pm. He claimed he did not go into the park but was “just watching the birds and ducks”. However, a map outlining his movements shows that he clearly entered and moved throughout the park which contains children’s play equipment. This park had been made the subject of a formal exclusion zone on 28 October 2018 after the offender was detected riding his scooter around the perimeter late in the evening on 27 October 2018.

2. [28]

   The breach of parole report by Ms Carden about these events indicated a concern that the context of this was removal of scheduling requirements in August 2018, job loss and a generalised lack of willingness to take on feedback and lack of insight by Mr Rush into his risks and potentially risky situations.

Whether an ESO should be made

1. [29]

   Section 5B of the Act provides the power to make the order:

2. [30]

   Section 9 of the Act provides a list of mandatory considerations:

3. [31]

   In addition to the matters set out in paragraph [7] of this judgment extracted from my judgment on the preliminary hearing, the following further material and analysis is relevant.

(i) Section 9(3)(b) – the reports of court appointed experts

1. [32]

   These have been discussed in paragraphs [15]–[21] of this judgment. They clearly support a rational and considered basis for the conclusion that Mr Rush poses an unacceptable risk of committing a further serious sexual offence, if not kept under supervision. The significant risk he poses is in particular to children. They explain well the need for the interrelated package of conditions to the ESO to monitor and manage that risk.

(iii) Section 9(3)(d) – the results of any statistical or other assessments as to the likelihood of persons with histories and characteristics similar to those of the defendant committing a serious offence

1. [33]

   On assessment by Mr Brabant in June 2018, Mr Rush’s score on the STABLE-2007 suggested high density of criminogenic needs relative to other male sexual offenders. Areas of clinically significant concern were his lack of concern for other, impulsivity, poor problem solving skills and deviant sexual preference.

2. [34]

   Mr Rush’s score on the STATIC-99R was five and this places him in the moderate to high risk category relative to other male sexual offenders.

3. [35]

   On the STATIC-2002R testing Mr Rush’s score reflects a risk rate of recidivism potential at about three and a half times higher than that of a “typical” sex offender, according to Mr Ardasinski.

(iv) Section 9(3)(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community

1. [36]

   Ms Carden reports in her affidavit and in her oral evidence that Mr Rush engages regularly and at times intensively, asking questions about what he can and cannot do given his ESO and other conditions. She expressed optimism that he can be managed in the community on conditions but that the discretion to reactivate electronic monitoring with any relevant breach of conditions or any destabilisation in Mr Rush’s life was essential to that management. It is important to observe that records tendered indicate Mr Rush’s straying into Burwood Park in December 2018 was picked up very quickly and action taken to let him know that he had to move out of the park immediately.

(v) Section 9(3)(e) – any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and his willingness to participate in any such programs

1. [37]

   Whilst Mr Rush was reported as being initially resistant to CUBIT, he did undertake and engage in and complete CUBIT before release. Mr Ardasinski observed that Mr Rush has to date, availed himself of all requisite programs.

(vi) Section 9(3)(e2) – the likelihood the defendant complying with his obligations under an ESO as may be reflected in his level of compliance with the orders

1. [38]

   His compliance – excluding the December 2018 breach – was generally good according to Ms Carden and I consider based on the evidence before me that it is likely that he will comply, with support and assistance as planned.

(vii) Section 9(3)(h) and (h1) – the defendant’s criminal history, any pattern of offending behaviour disclosed by that history

1. [39]

   Self-evidently the defendant’s criminal history attracted concerns, not only by the judges sentencing him but by the State in applying for orders under this Act, in particular because of the random, sudden and opportunistic nature of his offending, his lack of insight into the effect of this offending upon his victims and his minimisation of the offences.

2. [40]

   Taking all the mandatory considerations into account and the expert reports of Dr Martin, Dr Collins and Mr Ardasinski, I am persuaded that an ESO should be made. I am satisfied to a high degree of probability that there is an unacceptable risk of the defendant committing a further serious sex offence if not supervised. I accept the plaintiff’s analysis set out in its written submissions at paragraph [48] that persuasive factors include:

3. [41]

   I also accept the plaintiff’s submission at paragraph [49]:

The term of the order – two or three years?

1. [42]

   Dr Martin supports a five year ESO. Dr Collins, by her oral evidence, supports an ESO of three years.

2. [43]

   Ms Cook on behalf of the defendant referred to State of New South Wales v Garry Allan Conway [2011] NSWSC 925 at [28] where the Court took the view that in that case a:

3. [44]

   Ms Cook also referred to State of New South Wales v Brookes (Final) [2017] NSWSC 215 at [85] per N Adams J, where emphasis was placed on the safety and protection of the community because:

4. [45]

   Safety and protection of vulnerable children is a critical consideration in respect of Mr Rush’s supervision. His offences were committed suddenly, randomly and with coercion and force, upon mostly young children who were going about simple activities such as shopping or going to a public toilet in a shopping centre.

5. [46]

   Mr Rush’s minimisation of his offending continues to be a concern. I accept that Mr Rush needs concerted psychological treatment and careful observation and supervision to minimise the risk that he presents to children, and that a reasonable period is three years to review and calibrate monitoring and other conditions to his potentially fluctuating responses and needs in the community.

Conditions

1. [47]

   Section 11 of the Act requires the Court to only make conditions that the Court considers appropriate.

2. [48]

   In State of New South Wales v Grooms (Final) [2019] NSWSC 353 Fullerton J discussed the power of the Court to impose conditions:

3. [49]

   Obviously in Mr Rush’s case the conditions need to be directed to moderating or minimising the risk that Mr Rush will suddenly and randomly sexually attack a child in a relatively public place. A comprehensive package of interrelated conditions have been agreed between the parties. Only one condition was is issue.

4. [50]

   The area for debate narrowed even further during the hearing on 10 May 2019. Initially counsel for the defendant Ms Cook argued for a six month “sunset clause” on the requirement to wear electronic monitoring, however this position was modified to a “sunset clause” of six months, with a proviso that if there is any breach of the conditions, the DSO could immediately reinstate the electronic monitoring and the requirement for electronic monitoring would revert to the DSO’s discretion for the balance of the ESO period.

5. [51]

   Mr Aitken for the plaintiff argued that there were difficulties with the proposal that only a breach of an ESO condition would trigger resumption of electronic monitoring in a situation where risk factors identified by Ms Carden and Dr Collins and Dr Martin such as indicating an interest in children, engaging in drug and alcohol use, decreased social supports or deterioration in coping skills would all increase his risk of offending but these matters would not trigger a right for the DSO to immediately reinstate electronic monitoring.

6. [52]

   Ms Cook submitted that if that occurred, an application to the Court to review conditions could then be made.

7. [53]

   Mr Aitken countered, correctly in my view, that orders which contemplate identified issues to be dealt with by a future court application would not be consistent with a proper exercise of the Court’s discretion regarding conditions for the ESO, and would not be consistent with s 56 of the Civil Procedure Act 2005 (NSW).

8. [54]

   I am of the view that the introduction of a “sunset clause” as proposed, even for one year, introduces an arbitrariness which is not suitable to the supervision needs of Mr Rush. I was impressed by the intelligent and holistic approach to the supervision by Ms Carden and I accept that there is a need for multi-faceted monitoring, psychological as well as physical, including, as explained by Dr Collins, concerted interface with FPS. Within four months of being taken off scheduling requirements Mr Rush was found somewhere that he was not supposed to be. Whilst he did not offend, his transgression was able to be quickly seen because he was being electronically monitored. This illustrates clearly the importance of electronic monitoring of Mr Rush who seems to have acted impulsively, wanting to “watch the ducks” without thinking through what he was doing.

9. [55]

   Because his stability and risk may well fluctuate, there is an unnecessary arbitrariness in identifying six months or for that matter, 12 months as a time for designated removal of electronic monitoring.

10. [56]

    I decline to modify condition 4 as argued for by Mr Rush. Condition 4 as proposed by the Crown is appropriate in the circumstances. The discretion to maintain and calibrate monitoring to respond to either reduction or increase in the risk that Mr Rush will, for example, randomly sexually attack children or sexually act out in their presence is an essential part of the package of conditions. Electronic monitoring has and will continue to perform a significant role in moderating or minimising this risk.

    1. (1)

       Pursuant to the provisions of s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subject to an extended supervision order for a period of 3 years from the date of this order;

    2. (2)

       Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant shall comply, for the period of the extended supervision order issued in these orders, with the conditions set out in the schedule to this order.