State of New South Wales v Bowdidge

1. [1]

   HIS HONOUR: By notice of motion filed in Court on 24 October 2018, the State of New South Wales seeks an order pursuant to s 18CB(1) of the Crimes (High Risk Offenders) Act 2006 that the defendant be detained under an emergency detention order for a period of 120 hours expiring at a date and time to be fixed by the Court. For the reasons that follow, I am not prepared to make such an order and I propose to dismiss the application.

Background

1. [2]

   Mr Bowdidge is currently subject to an extended supervision order which was made by Hamill J on 4 June 2015: see New South Wales v Brian Alan Bowdidge [2015] NSWSC 717. The order was made for a term of three years. Mr Bowdidge was taken into custody during the term of his extended supervision order for failing to comply with certain conditions imposed upon him. He served the non-parole period of his sentence of 13 months and was released from custody on 17 September 2018. Mr Bowdidge remains subject to parole until 17 February 2019. His extended supervision order expires on 6 October 2019.

2. [3]

   Upon his release on 17 September 2018, Mr Bowdidge was placed at the Integration Support Centre at Campbelltown. That is a centre operated by Corrective Services NSW and provides accommodation and reintegration support for high risk offenders released from custody with no suitable available alternative. On 14 October 2018, Mr Bowdidge was removed from the centre due to inappropriate behaviour, such as looking at other residents through cracks in the bathroom door while they were using the facilities. His removal from the centre is said to have been due to concerns for the safety of other residents there. There are no other Integration Support Centres in New South Wales. Community Corrections has been unable to locate any other similar suitable accommodation for Mr Bowdidge. That includes the Community Offenders Support Program facility at Malabar.

3. [4]

   On 14 October 2018, Mr Bowdidge was placed into motel accommodation at Minchinbury. He has been there since then.

4. [5]

   On 18 October 2018, during a home visit by Mr Bowdidge’s Departmental Supervising Officer, he disclosed that he had heightened sexual thoughts “all the time”. He indicated that he had thought about having sex with the woman who cleaned his room.

5. [6]

   Mr Bowdidge is ineligible for public housing. Temporary accommodation, provided through Family and Community Services, such as motels, hotels and boarding houses, is said to be unsuitable as it would place Mr Bowdidge into situations where his risk of reoffending is thought to be increased. I am informed that the Community Justice Program of the Department of Family and Community Services is currently making enquiries for suitable accommodation for Mr Bowdidge.

6. [7]

   On 19 October 2018, the State Parole Authority considered an application to revoke Mr Bowdidge’s parole. The Authority did not do so but instead requested further information and adjourned consideration of the application to 2 November 2018.

7. [8]

   In an affidavit sworn on 21 October 2018 by Annette Caffery, the manager of the Metropolitan Extended Supervision Team, which is within Community Corrections, she offered the following opinion:

Consideration

1. [9]

   Mr Bowdidge was first subjected to an extended supervision order for a period of four years by Buddin J on 18 March 2011: see State of New South Wales v Bowdidge [2011] NSWSC 188. His Honour described Mr Bowdidge’s criminal history up to that time at [21]–[31] of his reasons for judgment. Mr Bowdidge’s last conviction for a serious sexual offence was on 20 January 2002 with respect to an incident that occurred in April 2001. It is not in contest that Mr Bowdidge has not committed a serious sexual offence, or indeed an offence of any kind, since then. His subsequent periods of incarceration have resulted from breaches of conditions attached to the extended supervision orders imposed by either Buddin J or Hamill J.

2. [10]

   On 15 October 2014, Corrective Services NSW produced a Risk Assessment Update Report with respect to Mr Bowdidge following his contravention of a non-association restriction imposed by Buddin J. That report contained an Executive Summary in the following terms:

3. [11]

   Sections 18CB and 18CC of the Act provide as follows:

4. [12]

   For the purposes of the present application, the State contends that the relevant altered circumstances consist in the fact that no suitable accommodation can be found for Mr Bowdidge with the associated result that the usual or anticipated supervisory constraints cannot be applied to him. The State submits in conjunction with that concern that the extended supervision order to which Mr Bowdidge is currently subject will not prevent him from posing an unacceptable and imminent risk of committing a serious offence. The evidence upon which the State relies sets out the reasons why there are said to be no means other than detention of ensuring that Mr Bowdidge does not pose an imminent risk of committing a serious offence.

5. [13]

   In context, the present application is brought upon the basis that the State requires 120 hours to prepare and file an application for a continuing detention order. In other words, the State contends that Mr Bowdidge should be reincarcerated for such a period in anticipation of an application with as yet uncertain prospects of success. The touchstone of such an application must in the first instance be the nature and extent of what the State contends is Mr Bowdidge’s imminent risk of committing a serious offence.

6. [14]

   It is never possible to assess the relevant risk with absolute certainty. Such an assessment must always and necessarily be a balancing exercise. The State brings to that exercise the fact that Mr Bowdidge has behaved and spoken in ways recently that suggest his inappropriate sexual interests are increasing. In my opinion, the identified behaviours are conspicuously innocuous, and do not in my view convincingly support the likelihood that Mr Bowdidge poses the risk in question. Moreover, Mr Bowdidge is entitled to be given considerable credit in that assessment for the fact that he has not committed a serious sexual offence for a period of 17.5 years, during only a small proportion of which he was incarcerated. I have in those circumstances some considerable difficulty with the proposition that he poses a risk of the type required. That is particularly so when one considers that the authors of the Executive Summary in 2015 considered that the lack of evidence of any new sexual offences suggested that Mr Bowdidge had then been managing his risk factors effectively. There has been no substantial alteration of that position since then.

7. [15]

   The State Parole Authority did not see fit to revoke Mr Bowdidge’s parole. The State accepts that that is a significant discretionary factor weighing against the making of an emergency detention order. That decision is consistent with a view that reincarceration was neither necessary nor warranted. It is a persuasive, although not conclusive, matter to be taken into account.

8. [16]

   Even accepting that the risk is as the State maintains, I am not satisfied that Mr Bowdidge’s current accommodation and supervision regime is inadequate to manage the alleged risk. I am informed that Mr Bowdidge is effectively locked in his motel room, apart from periods when he is able to be outside his room for a cigarette or similar limited recreation. He nevertheless remains supervised on such occasions. He is electronically monitored. The State complains that the maintenance of such a regime is difficult to manage and costly, in terms of manpower, to enforce. However, having regard to the short period that this situation will prevail before a continuing detention order application is made, I am not prepared to consider that returning Mr Bowdidge to what is likely to be a maximum security gaol is a suitable alternative. Mr Bowdidge has spent a very small proportion of his adult life in custody. He is entitled in these circumstances to be given the benefit of that substantial crime free history in assessing both the risk that he will imminently commit a further serious sexual offence unless returned to prison as well as in assessing the question of whether the State has established the matters referred to in s 18CC(1)(b) and (c).

9. [17]

   It is well established that the protection of the community is a matter of primary significance in applications such as the present. However, I am not satisfied that the identified altered circumstances lead to a conclusion that Mr Bowdidge poses an unacceptable and imminent risk of committing a serious offence unless an emergency detention order is made.