State of New South Wales v JC

By summons filed on 7 August 2017 the State of New South Wales (the plaintiff) seeks orders against JC (the defendant). The preliminary hearing occurred on Wednesday 23 August 2017. The defendant’s sentence expires on Monday 28 August 2017.

All reference to provisions in these reasons will be, unless otherwise indicated, references to the Crimes (High Risk Offenders) Act 2006 (NSW).

At the preliminary hearing on 23 August 2017 the plaintiff sought orders which included the following: an order pursuant to s 15(4) appointing experts to examine the defendant and furnish a report to the Court; and an interim detention order (IDO) pursuant to s 18A for a period of 28 days from 28 August 2017. At the final hearing the plaintiff proposes to seek a continuing detention order (CDO) for a period of one year followed by an extended supervision order (ESO), to take effect upon the expiry of the CDO.

The defendant, for whom Ms Cook appeared, did not oppose the order pursuant to s 15(4) but opposed the making of an IDO. She contended that the risk which the defendant posed to the community could be adequately managed by the ESO made by Davies J on 8 September 2011 for a period of three years, which, having been suspended on 29 August 2013 would come back into operation on the defendant’s release from custody on 28 August 2017 and run for a further period of approximately one year.

For the purposes of the preliminary hearing, Ms Cook accepted the following:

No explanation was provided on behalf of the plaintiff as to why the summons was not filed earlier. It may be that the plaintiff believed that long-term suitable accommodation would be found for the defendant before his release. I regard an application for an IDO as one which usually requires even greater consideration than an application for an ISO because its effect, in practical terms, is to extend the period of incarceration of a defendant beyond the expiry of the sentence. The provision of suitable accommodation for the defendant on his release is the principal issue in the proceedings. At the conclusion of the preliminary hearing, I informed Mr McGorey, who appeared for the plaintiff, that the plaintiff should operate on the basis that the IDO would be refused, in order not to lose further time in identifying suitable accommodation for the defendant. These reasons have been prepared as soon as practicable, having regard to the significant time constraints referred to above.

Section 13B provides that an application for a CDO may only be made in respect of a detained sex offender or a supervised sex offender. As the application was made when the summons was filed on 7 August 2017, the defendant is a detained sex offender since he was in custody serving a sentence for serious sex offences and offences of a sexual nature: s 13B(2)(a). Section 14 imposes requirements for the documentation to support the making of a CDO. I am satisfied that the material tendered by the plaintiff at the preliminary hearing complies with the requirements of s 14. Section 15 relevantly provides:

Section 17 relevantly provides:

Section 18A relevantly provides:

If the threshold test in s 13B is met, the list of matters to be considered is contained in s 17(4). Before addressing these matters, I propose to set out a narrative derived from the evidence adduced by the plaintiff. Although I use the term “evidence”, I note that the evidence tendered by the plaintiff has not been tested. The defendant has not given evidence himself, or adduced any other evidence. For the purposes of deciding whether to make an IDO, the requirement is that it must “appear” to the Court that the defendant’s current custody (in the present case, his sentence) will expire before the proceedings are determined (which is common ground) and “that the matters alleged in the supporting documentation would, if proved, justify the making of” an ESO or a CDO: s 18A.

Accordingly, the following narrative ought be read with the qualification that it sets out the matters alleged in the supporting documentation. The facts in the narrative ought not be regarded as findings of fact, except on the limited basis required for the purposes of deciding, in accordance with s 18A, whether to make an IDO and whether to appoint experts pursuant to s 15(4) which incorporates a similar threshold.

The defendant was born in 1986. His father, who was married to the defendant’s mother, committed sex offences. They had three children, two daughters and a son, the defendant. The defendant was born when his sisters were about eight and ten. The two daughters and (possibly also the defendant) were sexually assaulted by their father. The elder daughter became pregnant as a result of intercourse with her father and had a son who was brought up by the child’s grandmother as if he were hers. When the defendant was 20, he committed an offence against s 66A of the Crimes Act 1900 (NSW) (sexual intercourse with a child under 10) against his niece, the daughter of his second sister, who was then five years old, by digitally penetrating her vagina. An offence against s 66A of the Crimes Act is a “serious sex offence” within the meaning of s 5 of the Crimes (High Risk Offenders) Act.

The defendant entered a plea to this offence and was sentenced by Payne DCJ, who noted his intellectual deficits. Her Honour found:

Her Honour imposed a sentence of 4 years, which commenced on 19 June 2007, with a non-parole period of 2 years and 3 months. The non-parole period expired on 18 September 2009 and the sentence expired on 18 June 2011.

The defendant was released to parole on 27 April 2011. There is some doubt as to where he lived immediately after his release. However, the evidence indicates that he resided, at least after a short period, at the Mercy Centre at Woolgoolga which is a fully supervised residential facility funded by the Criminal Justice Program (CJP). The plaintiff sought an ISO in respect of the defendant, which was granted by Simpson J and took effect on 18 June 2011, being the date on which his sentence expired. Davies J granted an ESO in respect of the defendant for a period of 3 years, commencing on 8 September 2011.

While the defendant was subject to the ESO he was required to engage in therapy. He told his therapist, Calinda Payne, about further sexual assaults which he had committed when he was a child, prior to the 2007 offence for which he was convicted. These offences were the subject of a letter which the defendant wrote to Ms Payne. The defendant also provided his journal to Ms Payne on 31 July 2013. The admissions contained in these documents were provided to the police, as a result of which the defendant was charged. Some of the admissions related to offences committed when the defendant was between 10 and 13 years of age and others when he was between the ages of 17 and 18. The victims included the child who had been born as a result of the defendant’s father’s sexual intercourse with the defendant’s sister. Because the defendant was over 21 when he was charged, the matters were dealt with by the District Court, rather than the Children’s Court, as they would have been had they been prosecuted contemporaneously.

The defendant was arrested, charged and taken into custody on 29 August 2013. This had the effect, by reason of s 10(2), of suspending the ESO, some two years after its commencement, when it had about one year to run. He had resided for most, if not all, of that period at the Mercy Centre. There is no suggestion that he re-offended during that period although his deviant sexual preoccupations continued.

The defendant noted the following in his journal which, as referred to above, was provided to Ms Payne:

Ms Payne’s response was recorded in the Offenders Integrated Management System (known as OIMS notes) by a staff member of Community Corrections as follows:

In August 2013 the CJP advised Correctional Services that it proposed to withdraw provision of accommodation to the defendant because of what he had written (set out above).

At that time the plaintiff considered applying for a CDO because of the lack of suitable accommodation for the defendant. To that end, a risk assessment report was requested from Mr Sheehan, who, on 6 August 2013, reported:

As the defendant was arrested on 29 August 2013 and has remained in custody since that time, the plaintiff did not apply for a CDO in August 2013.

The defendant pleaded guilty to eighteen separate sex offences against children who were aged between 1 and 9 years, some of whom were related to the defendant. Many, but not all, of the offences were “serious sex offences” within the meaning of s 5. It appears that no point was taken on the defendant’s behalf that he was entitled to the rebuttable presumption of doli incapax, since he pleaded guilty, although the relevance of doli incapax was noted by the sentencing judge.

The defendant was sentenced on 24 April 2015 by Toner DCJ in the District Court at Taree to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years, commencing on 29 August 2013 and expiring on 28 August 2017. The defendant was sentenced on the basis of agreed facts which included that he had a mild intellectual disability. The use of the word “mild” is apt to mislead in this context: see Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [50]-[54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). It was common ground that the defendant has a significant mental disability and that he also suffers from a hereditary blood condition known as porphyria, which manifests itself in episodes of disinhibition.

The report of Dr Kate Seidler, psychologist, dated 15 February 2014 was tendered at the sentence hearing before Toner DCJ. She said:

Toner DCJ said in the remarks on sentence:

His Honour referred to a pre-sentence report prepared by Sean Herford dated 6 February 2014 and set out the following passage from that report in the remarks on sentence:

The defendant has not been granted parole and has remained in custody throughout his sentence.

The defendant has been eligible for parole for almost two years. He has not been released because efforts to obtain suitable accommodation for him, which commenced in August 2014 (12 months before the expiry of the non-parole period for the sentence imposed by Toner DCJ) have not been successful. The evidence about attempts to find accommodation for him was largely given by Karen Langdon. Ms Langdon was appointed Unit Leader of the ESO team and supervised the Community Corrections Officer (CCO) who was the defendant’s Departmental Supervising Officer (DSO) between November 2016 and May 2017. She is currently the defendant’s DSO. Ms Langdon swore two affidavits in which she deposed to some of the attempts to find suitable post-release accommodation. She was cross-examined by Ms Cook. She accepted that her own attempts to find accommodation for the defendant had begun in about January 2017.

Ms Langdon frankly admitted that at least one of the facilities considered was not suitable and that she was in error in proposing it. This was a reference to a facility in Villawood, which was not secure and was located in a built-up area. Ms Langdon gave evidence about various facilities which had been identified by CJP as being suitable but which had been rejected by the ESO Team as unsuitable. She referred to issues which the operators of the facilities had raised, which led to offers of placement for the defendant being withdrawn or facilities which had initially been regarded as suitable, being reassessed as unsuitable. It is not necessary to narrate the various attempts made. It is sufficient to note that Ms Langdon was not able to say either that all facilities have been deemed unsuitable or what accommodation would be made available if an IDO was not made.

Ms Langdon said in her affidavit of 11 August 2017 that, as at 6 August 2017, “no suitable post release accommodation for the defendant had been sourced”. She recorded in a case note report dated 9 August 2017 that she had spoken to a clinical nurse consultant at Justice Health at Long Bay, who asked her about the defendant’s post-release arrangements as the defendant “believes he is definitely being released on 28.8.17”. Ms Langdon recorded the following at the conclusion of the case note:

The case note referred to above is contained within the OIMS notes used by Corrective Services. Having regard to the importance of OIMS notes, not only to the work of Corrective Services but also to the Court in proceedings such as the present, I infer that Ms Langdon would have been aware of the import of her representation, both to the person to whom it was made, to the defendant himself whose expectations were required to be appropriately managed, and to this Court.

Ms Langdon accepted that she had made the recorded representation to the Justice Health nurse. I detected some discomfiture in her evidence when I asked her about this case note, which may be attributable to the fact that she appreciated that the basis of the plaintiff’s application was the lack of suitable accommodation. However, I am satisfied, having heard Ms Langdon’s evidence that she would not have made the representation to the Justice Health nurse had she not genuinely believed at the time that suitable accommodation would be found for the defendant, at least on a short-term basis, if the IDO (or CDO) were not granted.

I accept, on the basis of Ms Langdon’s evidence, that the particular risks that the defendant poses, to adults, children and animals, have presented a particularly difficult task for those in the CJP and the ESO Team who have sought to find suitable accommodation for him. I accept that, notwithstanding that attempts have been made for the last three years (since the year before the expiry of his non-parole period), no suitable long-term accommodation has been found. However, as Ms Langdon was at pains to point out, at various times in her evidence, the ESO team is not the principal body responsible for identifying suitable accommodation for persons who are the subject of ESOs. Her evidence was that this role is principally performed by CJP and others. Moreover, according to Ms Langdon, CJP is the body which enters into service agreements with the providers of accommodation. CJP also runs its own facilities. She confirmed that Community Corrections “relies” on CJP to identify suitable accommodation for persons who are the subject of ESOs. She disavowed any particular knowledge of what CJP was presently investigating and admitted the limits of her knowledge in the following exchange in her cross-examination:

Mr McGorey accepted that CJP would have a “better idea” of what was available and what steps could be taken in the short-term to secure suitable short-term accommodation for the defendant until something long-term could be arranged. He urged me not to conclude that there was no possibility of suitable accommodation being arranged by CJP. He agreed that the question of what would be done with the defendant if an IDO was not granted was within the knowledge of the CJP officers. I understood him to accept that Ms Langdon was not the best person to answer that question and, indeed, that as she was not part of CJP, she would not be in a position to know what other options were under consideration. No evidence was adduced by the plaintiff from CJP. The only explanation given, which I do not regard as satisfactory, was that this was a preliminary hearing and these matters could be the subject of evidence at the final hearing.

In the absence of any evidence from an officer from CJP that no suitable accommodation, whether emergency, short-term or otherwise can be found for the defendant if an IDO is not made, I am not prepared to draw that inference in circumstances where the plaintiff was in a position to adduce up-to-date evidence from CJP and has not done so.

What appears to be required is secure accommodation, ideally with line-of-sight supervision. The Mercy Centre, where the defendant resided for about two years from the grant of parole in April 2011 until his arrest in August 2013, appears to have fulfilled those requirements and been adequate to manage the defendant’s risk of re-offending. If the defendant were to reside in accommodation of that variety, or similar, and be subject to the conditions which would apply following his release as a result of the reinstatement of the ESO made by Davies J, the considerable risk he would otherwise pose of committing a serious sex offence could, in my view, be adequately managed.

I appreciate that, given that the defendant is to be released on Monday 28 August 2017, there is little time left for short-term accommodation to be arranged. However, this is a consequence of the plaintiff not filing the summons until 7 August 2017. The plaintiff has known of the defendant’s ultimate release date for almost four years. It was not entitled to assume that this Court would grant an IDO, particularly where the evidence as to the availability of suitable short- and long-term accommodation was unsatisfactory and did not include evidence from the CJP, which has primary responsibility for identifying and arranging such accommodation for persons such as the defendant who, upon release, will be subject to an ESO.

Mr McGorey referred me to State of New South Wales v Bugmy (No 2) [2016] NSWSC 1432 (Bugmy) where Button J granted a CDO of 12 months in circumstances where Correctional Services had exhausted all avenues to locate suitable secure accommodation for the defendant. An appeal against his Honour’s decision was dismissed: Bugmy v State of New South Wales [2017] NSWCA 25. Payne JA (Basten and Gleeson JJA agreeing), said, at [26]:

Payne JA also said of the purpose of the period of the CDO:

I do not regard the present case as analogous to the situation in Bugmy. In Bugmy there was a prospect that treatment could be undertaken which could alter the defendant’s prospects of being accepted as suitable for accommodation within the community. In the present case, the defendant, for reasons which include his mental disability, cannot undertake any further treatment in custody which will ameliorate the risk he poses. Ms Langdon accepted that there were no other courses available that could be undertaken by the defendant in custody. She did not regard herself as being qualified to say whether there was any therapeutic benefit to his remaining in custody. She accepted that the Token Economy Behavioural Management Program was the treatment which was recommended for him and agreed that such treatment would not be available to him in custody.

Moreover, in Bugmy, all avenues for locating suitable accommodation had been exhausted. In the present case, not only is the evidence insufficient to establish that to be the case, but Mr McGorey urged on me not to conclude that accommodation could not be obtained. While in Bugmy, the making of a CDO was necessary to facilitate the eventual transfer of the defendant to community accommodation, this is not the case with JC. In my view, the only real effect on the defendant’s prospects of being placed in accommodation in the community of making an IDO would be to cause the defendant to lose whatever priority for accommodation which his imminent release might otherwise give him.

I am persuaded, for the purposes of the preliminary hearing, that the defendant is a high risk sex offender: s 5B(2). He represents an unacceptable risk of committing a serious sex offence (as defined by s 5) if he is not kept under supervision having regard to his past offending, diagnoses, ongoing sexual preoccupation with children and the expert opinions referred to in these reasons. Whether adequate supervision can be provided (s 5D(1)) depends on the availability of suitable accommodation in the community at which he can be secured and provided with line-of-sight supervision by an escort, when outside the facility and in the community.

In determining whether or not to make a CDO I must have regard to the matters in s 17(4), to the extent relevant and presently applicable. I must also have regard to these matters in deciding whether to make an IDO by reason of s 18A (set out above). Many of these matters have already been referred to above but, for completeness, I will address each applicable matter in turn. I do not propose to refer to all the reports in evidence but only to the most recent and relevant, reports.

The defendant suffers from paraphilia. His acts of offending in the past have been, at times, impulsive, and at other times, have involved a degree of grooming. He is disinhibited by his mental impairment and porphyria. The combined effect of these conditions is that he poses a high risk of re-offending, particularly with children of either sex, unless constrained and supervised. The protection of the public requires that he be accommodated in a secure facility where he is supervised and subject to an ESO.

Dr Ardasinski prepared a risk assessment report dated 26 June 2017. In substance, his views about whether the risk posed to the community by the defendant could be adequately managed in the community, depended on the availability of a “viable” accommodation model, which included a secure facility, active night shift and line-of-sight supervision on occasions when the defendant was allowed to leave the facility. He opined that the level of supervision required by the defendant would need to remain intensive while he was living in the community “for many years to come” because of the intransigence and nature of the risk he posed. The need for external constraints arises, in Dr Ardasinski’s view, from the defendant’s inability to develop any effective internal controls on his impulses.

The defendant was examined by Dr Samson Roberts on 17 June 2011 and Dr Andrew Ellis on 1 July 2011, who were experts appointed by the Court for the purposes of the plaintiff’s application for an ESO which was heard by Davies J. Each tested him by reference to STATIC 99. According to Dr Roberts, he scored 4, which placed him in the moderate to high risk category for reoffending. Dr Ellis came to a similar conclusion.

Ms Langdon prepared a report dated 18 July 2017 for the purposes of s 17(4)(d1). She assessed and rejected as unsuitable the defendant’s proposal that he live with his mother. I accept, on the preliminary basis referred to above, that such placement would not be sufficient to manage the risk posed by the defendant. As the basis of the plaintiff’s application for an IDO and CDO is that suitable accommodation has not yet been found, I can address this report relatively briefly. Ms Langdon sets out in the report the various conditions and strategies that could be employed under an ISO or ESO to manage the risk posed by the defendant as long as suitable accommodation could be found by CJP or another instrumentality.

It does not appear that there is likely to be any therapeutic benefit in the defendant’s remaining in custody. The defendant has shown a willingness to undertake the Token Economy Behavioural Management Program, which, as referred to above, is not available in custody.

This factor has already been addressed above. The defendant broadly complied with controls on parole and while subject to an ISO and ESO. However, it must be noted that these controls were strictly enforced in a secure environment (Mercy Centre) and there was, in effect, no relaxation of these controls during the two years in which they applied before the defendant’s arrest.

Having regard to the defendant’s mental disability and his limited liberty since 2007 this matter is not particularly germane.

These have been referred to above. The defendant’s offending behaviour exhibits his paraphilic tendencies with respect to children of both sexes and a large range of ages. He is at times impulsive and at other times there is planning involved. He was apparently guileless when he admitted to his therapist that he had committed numerous offences prior to 2007. The offences for which he has been imprisoned for the last four years came to light because he not only confessed to them but provided written admissions in the form of a letter and in his journal which he provided to his therapist. But for this, these criminal acts might have continued to be undetected and uncharged.

The views of Payne and Toner DCJJ have been set out above. I note their Honour’s remarks about the impact of his mental disability on the offending conduct, the danger he presented, and continues to present, to the community and the impediments to rehabilitation.

The other matters which are relevant have been addressed in the narrative of facts set out above. As a result of these matters I consider there to be a high likelihood that the defendant, if he is not strictly supervised, will use available opportunities to re-offend. Having regard to his sexual preferences for young children, any such offences are likely to be serious sex offences.

For the reasons given above, I am not satisfied that, if an IDO is not made, suitable accommodation cannot be found for the defendant which meets the recommended requirements (secure, active overnight monitoring and line-of sight supervision under escort when outside the facility). Indeed, I accept the assurance given by Ms Langdon to the Justice Health nurse that suitable accommodation will be provided to the defendant upon his release. Accordingly, I consider, on the basis of the material tendered before me, that the high risk of re-offending which the defendant continues to pose to the community can be adequately managed under the ESO granted by Davies J, which will become operative on 28 August 2017 when the defendant’s sentence expires. Mr McGorey raised an issue with one of the conditions on that ESO, condition 6A, which concerns the prospects of overnight stays with the defendant’s mother. The terms of that condition are such that the defendant’s DSO has no obligation to permit such stays, which are within the DSO’s discretion. In these circumstances, it is not necessary to address that matter at this stage.

As the material before me would, if proved, justify the making of an ESO (although presently none is required, in light of the time left to run on the ESO made by Davies J), I propose to make the orders sought in prayer 1 of the summons for the appointment of experts to conduct examinations of the defendant and report to the Court. At the conclusion of the preliminary hearing the parties had not yet agreed on the identity of the experts who could be the subject of orders for examination of the defendant and provision of reports to the Court or the time that would be required to provide such reports. I have therefore included dates in the orders set out below which I hope will be adequate for that purpose. However, I will grant liberty to apply to vary the timeframe specified in the orders in case the experts agreed upon cannot meet the timetable.

I am also satisfied that it is appropriate to make orders in terms of prayer 10 of the summons (which restricts access to the Court file). Prayer 9 deals with the OIMS notes (which were brought up to date in the course of the hearing and marked Exhibit B) and can be the subject of further direction in due course.

Ms Cook submitted that it was appropriate that the defendant be referred to by a pseudonym in order to protect those of his victims who are members of his family and who might, if he were named, be identified or tend to be identified. I note that no such application has been made in the past when the previous ESO was applied for. However, it was suggested that the parties could confer to work out the best way of protecting the identity of the victims, who were children at the time. In the circumstances I am persuaded that it is appropriate, at this stage, to apply a pseudonym to the defendant’s name in these reasons. If any order is sought, it can be the subject of further application following discussion between the parties.

I note the protections afforded to the victims by s 15A(1)(c) of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act.

For the reasons given above I make the following orders and notation: