State of New South Wales v WXN1 (Final)

1. [1]

   In May 2023, Yehia J made a pseudonym order as the result of which the defendant must be referred to as WXN1. In July 2023, Adams J made an interim order for his supervision under the Crimes (High Risk Offenders) Act 2006 (NSW) and ordered that he be examined by two experts: State of New South Wales v WXN1 (Preliminary) [2023] NSWSC 883. Further supervision orders were later made by Yehia J by consent, which remain in force. This judgment deals with the State’s application for final orders to which WXN1 also consents, the only issue lying between the parties concerning the terms of one of the proposed conditions having been resolved before the hearing.

2. [2]

   In evidence before Adams J were two affidavits sworn by Mr McAlary, the solicitor with carriage of the matter at the Crown Solicitor’s Office and various exhibited documents, including a February 2023 Risk Assessment Report prepared by Ms Wright and a March 2023 Risk Management Report prepared by Louise Robinson, as well as an affidavit of WXN1’s solicitor Ms Reynolds.

3. [3]

   This evidence was also relied on at the final hearing when further evidence was also tendered. That including a 14 September affidavit of Ms Fisher, another solicitor in the employ of the Crown Solicitor, to which was annexed further documents and the reports of the experts, Dr McSwiggan and Dr Furst.

What was not in issue

1. [4]

   There was no issue that in WXN1’s circumstances the statutory preconditions to the exercise of the Court’s discretion to make the final three-year supervision order sought are satisfied. They include:

   1. (1)

      WXN1’s relevant offending commenced with his conviction of a number of child sexual assaults, the first of which occurred in 2006 when he was aged 15 years, which he disclosed to police in 2009. These offences involved serious sexual assaults on his five younger cousins over a period which concluded when he was 17 and a half years old. They involved acts such as touching a 12 year old on the breast and bottom while she cried and physically resisted; digitally penetrating a 9 year old’s vagina and anus; penile-anal intercourse with an 8 year old male, as well as fellatio on the same victim; forceful penetration of another 7 year old male’s anus, causing pain and bleeding, as well as fellatio on this victim; and penile/anal sexual intercourse, cunnilingus, digital penetration and attempted penile/vaginal intercourse with a 3 year old, the latter two acts rupturing the girl’s hymen and tearing her posterior fourchette, requiring surgical intervention, as well as further counts of penile/anal sexual intercourse and vaginal touching.

   2. (2)

      In 2010, WXN1was sentenced to a term of imprisonment of 9 years and 9 months, with a non-parole period of 5 years and 3 months for these offences, this sentence concluding on 13 November 2018. It was in November 2015 that he was released on parole.

   3. (3)

      WXN1 having been sentenced in 2017 for further child pornography offending committed in 2016, for which he was sentenced to 2 years and 3 months imprisonment, which concluded on 9 May 2019.

   4. (4)

      In May 2018 the Local Court placing WXN1 on a five-year child protection prohibition order under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW).

   5. (5)

      In April 2019 WXN1 being arrested and charged with using a carriage service to access child pornography and two counts of contravening his Child Protection Prohibition Orders between 31 July 2018 and 2 April 2019. It was then alleged that he had loitered around a primary school for 90 minutes and used a mobile phone to access pornography depicting girls aged 13-18 years. The child pornography charge was later withdrawn, but in March 2020 he was sentenced to an aggregate term of 18 months imprisonment with a non-parole period of 13 months for the two counts of contravening his CPPO orders.

   6. (6)

      An application for an extended supervision order being made in October 2019, which was dealt with in State of New South Wales v NW [2019] NSWSC 415; State of NSW v NW (Preliminary) [2019] NSWSC 999, when an interim supervision order was made and in State of New South Wales v NW (No 3) (Preliminary) [2019] NSWSC 1510.

   7. (7)

      Given that WXN1 had been returned to custody for his CPPO offences, the final hearing of the 2018 extended supervision order application was delayed until 30 July 2020 when Garling J made final supervision orders on 30 July 2020, which did not expire until July 2023: State of NSW v WXN1 [2020] NSWSC 993.

   8. (8)

      In May 2020, the District Court calling up WXN1’s s 20(1)(b) recognizance and extending it to 7 February 2021.

2. [5]

   In May 2023 the State brought these proceedings, seeking a further extended supervision order. Adams J made an interim supervision order for a period of 28 days commencing on 31 July 2023 and expiring on 27 August 2023. Yehia J later made further interim orders extending WXN1’s supervision.

3. [6]

   Adams J arrived at her conclusions, having been persuaded that the State had met the onus which fell upon it, given:

4. [7]

   At the final hearing there was also no issue that the orders sought would be made:

   1. (1)

      WXN1 being a supervised offender as defined in s 5I of the Act when the State’s 2023 application was made under s 6, he then being subject to the extended supervision order Garling J had made for his earlier offending, which had been of a sexual nature, as defined in s 5.

   2. (2)

      The State’s application satisfying the requirements of s 6, given the documents it was supported by and the conditions which were then sought. The requirements of s 7 were also satisfied, that resulting in the orders which Adams J had made.

   3. (3)

      This reflected that WXN1's offending fell within the definition of a serious sexual offence, as defined in s 5 of the Act, he having been convicted of a number of child sexual assaults which carried a maximum penalty of 7 years imprisonment.

   4. (4)

      WXN1 was also an offender serving or who had served a sentence of imprisonment for his serious offences either in custody or under supervision in the community, when the application was made, as s 5B required.

   5. (5)

      On the evidence the Court could be satisfied to the required high degree of probability that WXN1 continues to pose an unacceptable risk of committing another serious offence if not kept under supervision under the proposed final order, as s 5B also requires, that being established by the evidence.

   6. (6)

      The application had to be determined by the Court on all the evidence, bearing in mind that the safety of the community must be the paramount consideration: s 9(3).

The statutory requirements are satisfied

1. [8]

   While there was no issue between the parties about the satisfaction of the statutory requirements and that the three-year supervision order must be made, WXN1 accepting that the experts spoke with one voice about the continuing serious risk which he poses despite having been under ongoing supervision for years, the Court must itself be satisfied about this on the evidence, before the discretion to make the orders sought can be exercised.

2. [9]

   Having considered the evidence, I am satisfied that the onus which falls on the State has been met, with the result that the orders sought must be made, that being what the safety of the community undoubtedly requires in WXN1’s’s case. It well establishes the serious nature of the various sexual assaults of which he was convicted after his admissions about what he had done to his young victims. It is unnecessary to explain that offending further.

3. [10]

   The evidence also well established that the defendant continues to pose an unacceptable risk of committing another serious offence if not kept under the proposed supervision. That conclusion is inescapable given the evidence Adams J had to consider, which I will not explain further, when considered together with the evidence led at the final hearing and the matters specified in s 9 of the Act, which must be considered in light of WXN1’s own acceptance that he poses the required unacceptable risk.

4. [11]

   The matters specified in s 9(3) to be taken into account by the Court on an application such as this are:

5. [12]

   What the State had to establish in respect of the required high degree of probability of further serious offending is as explained in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. Namely, something 'beyond more probably than not'. The existence of the risk, that is the likelihood of WXN1 committing a further serious offence, must be proved to a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt. The risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion "likely", as explained in TSL v Secretary to the Department of Justice (2006) 14 VR 109; [2006] VSC 199.

6. [13]

   I am satisfied that this onus has been met.

7. [14]

   The Court is not required to determine that the risk of an offender committing a serious offence is more likely than not, in order to determine that there is an unacceptable risk of the person committing such an offence: s 5D.

8. [15]

   The term "unacceptable risk" must be understood in light of the explanation in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. This involves an evaluative task undertaken in the context of this statutory scheme, the primary object of which is to "ensure the safety and protection of the community": [55]. That assessment must be undertaken "in the context of making the community secure from harm as opposed to guaranteeing its safety and protection": at [61].

9. [16]

   Consideration must thus be given to matters such as WXN1’s past conduct, the seriousness of his possible future conduct and the period over which the risk he poses may come to fruition. The assessment must be based on an absence of protective measures and a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders: at [126].

10. [17]

    The impact of the order on WXN1’s liberty is not relevant to the determination of whether the threshold in s 5B is satisfied. But it is relevant to the exercise of the discretion given by s 9, to determine the application: Lynn at [56]-[-57]. Given the evidence I am satisfied that the discretion must be exercised by making the orders which the parties agreed.

What the further evidence established

1. [18]

   The further evidence reinforced what was established by the evidence led before Adams J about the unacceptable risk of further serious offending which WXN1 continues to pose. The existence of that risk cannot be doubted, given:

   1. (1)

      Dr McSwiggan’s September 2023 neuropsychological report, she having examined WXN1 in August 2023, when he gave an account of his personal, offending and psychiatric history, as well as his present circumstances. He still continues to take medication which for years have been prescribed for his mood, as well as the antilibidinal medication which he then said he was prepared to continue taking. Dr McSwiggan:

   2. (2)

      Dr Furst has assessed WXN1 in 2014, 2020 and 2023. In his report he explained the information he had to consider about WXN1’s relevant history and:

2. [19]

   There was no issue that the opinions of the experts who have considered the risks which WXN1 poses must be accepted.

3. [20]

   In the result, having considered all that the evidence established and the parties’ agreement about the conditions which should be imposed to manage the risk of further serious offending which WXN1 undoubtedly continues to pose, I am satisfied that a consideration of the requirements of s 9 and the paramount consideration, the safety of the community, must result in the exercise of the Court’s discretion to make the orders which the parties agreed.

Orders

1. [21]

   For the reasons given I thus order:

   1. (1)

      Pursuant to ss. 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (“the Act”), the Defendant is subject to an extended supervision order (“the extended supervision order”) for a period of three (3) years from the date of the order.

   2. (2)

      Pursuant to s. 11 of the Act, the Defendant is directed, for the period of the extended supervision order, to comply with the conditions set out in Schedule to this Order.