State of New South Wales v Brookes (Preliminary)

1. [1]

   HIS HONOUR: By summons filed on 15 December 2021, the plaintiff seeks interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). Orders are sought for the appointment of two forensic psychiatrists and/or psychologists to examine Alexandria Brookes (“the defendant”) and furnish their reports to the Court and directing the defendant to attend their examination: s 7(4) of the Act. The plaintiff also seeks orders subjecting the defendant to, and obliging him to comply with, an interim supervision order (“an ISO”) for a period of 28 days from 10 March 2022: ss 10A, 10C(1) and 11 of the Act. On that date, an extended supervision order (“an ESO”) to which he is presently subject will expire.

2. [2]

   By way of final orders, the plaintiff seeks an ESO for a period of three years from the date of that order, and an order requiring the defendant’s compliance with it: ss 5B, 9(1)(a) and 11 of the Act. Finally, an order is sought that would prevent access to the court file by a non-party without prior notification to the parties, so as to allow them an opportunity to be heard.

3. [3]

   The defendant does not submit that the application does not comply with the statutory prerequisites for an application for an ESO which are set out in s 6 of the Act, as to the relevant timeframe and the documentation which must accompany the application. I am satisfied that the application meets those requirements. In addition, the defendant does not dispute the proposed conditions of an ISO, if one is imposed. The sole issue in dispute between the parties as to the final orders that are sought by the plaintiff is whether s 5B(d) of the Act is satisfied. Section 5B provides, relevantly:

4. [4]

   That test is qualified by s 5D of the Act, which provides:

5. [5]

   The key question that arises in the context of this preliminary application for an ISO is set out in s 10A(b) of the Act:

The defendant’s history of criminal offences

1. [6]

   The defendant is a 57 year old male who has committed serious sex offences against young children in New South Wales and in Queensland. His criminal offending commenced with entries in the Children’s Court for arson, stealing and carrying a cutting weapon. The defendant’s first serious offence as an adult was committed in 1987, when he was aged 22. He abducted a two year old girl at a train station and was apprehended when leading her to the male toilets. He was convicted of the offence of abduction of a child, for which he received a sentence of 2 years imprisonment with a non-parole period of 12 months.

2. [7]

   In 1987, whilst on parole for that offence, he and a co-offender abducted three pre-pubescent siblings, drove them to Queensland and subjected them to repeated sexual assaults over two days. He was convicted of several offences in the Supreme Court of Queensland. These offences were fraudulently taking a child under the age of 14 years with intent to deprive; indecent dealing with a girl under 14 years; carnal knowledge of a girl under 12 years of age; two counts of indecent dealing with a boy under 14 years; three charges of carnal knowledge against the order of nature; permitting carnal knowledge against the order of nature; and gross indecency. He received a total effective sentence of imprisonment for 11 years.

3. [8]

   The defendant was released in 1999. In 2001, while attending a church in Sydney with a woman and her nine year old son, he took the child to a toilet and indecently assaulted him. The defendant was convicted of indecent assault of a child under the age of 10 years and was sentenced to a term of imprisonment of 3 years and 6 months, with a non-parole period of 18 months.

4. [9]

   The defendant was released in 2004, having served his entire sentence. In 2005, he was convicted of two counts of failing to comply with reporting obligations contrary to the Child Protection (Offenders Registration Act) 2000 (NSW). For each of these offences the defendant received a sentence of imprisonment of 8 months with a non-parole period of 1 month, to be served concurrently. For a further such offence in 2007, he received a 12 month sentence of imprisonment.

5. [10]

   In 2008, the defendant was the subject of an ESO for a period of five years. In 2009, he was convicted on three separate occasions of failing to comply with the ESO and received partially concurrent sentences of imprisonment of 12 months, 6 months and 9 months respectively. On 9 July 2010, a continuing detention order was imposed for a period of 14 months and 2 weeks, to expire on 22 September 2011. A further five-year ESO commenced on 12 December 2011. A third ESO, for a period of five years, commenced on 10 March 2017 and will expire on 9 March 2022.

6. [11]

   The defendant has self-reported sexual offences for which he has not been charged. He has claimed to have sexually assaulted a pre-pubescent niece from a time when he was also pre-pubescent until his mid-teens. The defendant also claims to have sexually assaulted some 20 to 50 other victims.

The defendant’s cognitive functioning and mental health

1. [12]

   The defendant was assessed by an occupational therapist in February 2021, who noted that he had a history of traumatic brain injury. The therapist noted that a CT scan, taken in 2019:

2. [13]

   Dr Andrew Ellis, a forensic psychiatrist, assessed the defendant in 2017. Dr Ellis diagnosed the defendant as having a paraphilia disorder, namely paedophilia, which is directed at both male and female children. Dr Ellis continued:

The defendant’s capacity to live independently

1. [14]

   In a report dated 8 March 2016, Dr Richard Parker, a forensic psychologist, provided an overview of the defendant’s progress in the community to that date:

2. [15]

   The defendant’s progress since 2018 was reviewed in an ESO Completion Report, prepared in July 2021, which provided:

3. [16]

   In late 2018 and 2019, the defendant had multiple admissions to hospital. Reasons for his admission that were listed in hospital records included urinary incontinence, urinary retention, functional decline, falls, lethargy, inability to manage his catheter, poor self-care and chronic weight loss. He was assessed by an aged care assessment team in November 2019. That assessment concluded that the defendant required: “supported 24-hour care in a structured environment that can assist him with his [activities of daily living] and health needs” and that he should be approved for “High level residential respite and permanent residential care”. The defendant was relocated to an aged care facility in Orange later that month (“the aged care facility”) and remains there. It is a secure facility, intended for patients who pose a risk to the community.

4. [17]

   The defendant receives assistance from the aged care facility staff with all aspects of daily living, including washing and dressing. An occupational therapy assessment has deemed the defendant to be “Fully Dependent”, in terms of daily living skills including money, medication, travel and transport, shopping, meal preparation, laundry and housework. He was deemed to need support between 20 to 23 hours per day, seven days per week. The assessment did not consider other options, including the following, as suitable or viable:

5. [18]

   The defendant has qualified for assistance through the National Disability Insurance Scheme (“the NDIS”). An NDIS plan for him commenced in March 2021. In general terms, the plan provides for a high level of care. From the advent of the Covid-19 pandemic until early February 2022, the defendant’s opportunities to leave the aged care facility have been curtailed. When he does leave, the defendant remains under line of sight observation by NDIS or aged care facility staff members, although they are not obliged to report any concerning behaviour to the defendant’s ESO Departmental Supervising Officer (“DSO”).

6. [19]

   In her report dated 25 October 2021, Catherine Sapula, a forensic psychologist, noted the following:

Treatment

1. [20]

   The defendant attempted sex offender treatment programs whilst in custody in Queensland but did not complete any of those programs. In 2002, while in custody in New South Wales, he attempted the Custody-Based Intensive Treatment program, then known as the CUBIT program, but was discharged from it for unsatisfactory performance. In 2010, he re-entered the program, completing it in 2011.

2. [21]

   Following the defendant’s release from custody in 2011, he commenced sessions at Forensic Psychology Services at Surry Hills (“FPS”) and continued to engage with them until July 2019. Ms Sapula noted:

3. [22]

   I note that the defendant is regularly administered anti-psychotic and anti-libidinal medication. According to a Risk Management Report dated 2 November 2021 by Keli Wood, a Community Corrections Officer, there are no sex offender treatment programs available in Orange, where the defendant presently resides. It is outside the catchment area for FPS and the local Corrective Services (“CSNSW”) psychologist is only able to offer case management advice to Community Corrections, although the defendant did have one session with a CSNSW psychologist in February 2021. The defendant has had no contact with a psychiatrist since moving into the aged care facility.

The defendant’s current level of risk

1. [23]

   A Risk Assessment Report dated 25 October 2021, prepared by Ms Sapula, noted:

2. [24]

   The Level of Service Inventory – Revised (“LSI-R”) assessment tool was most recently administered to the defendant in February 2021. The LSI-R assesses both static and dynamic risk factors and needs, in terms of criminogenic factors related to general offending. The defendant’s risk factors and needs were assessed as falling within the medium risk category for general and violent offending.

3. [25]

   As to assessments of the defendant’s risk of sexual reoffending, his static risk factors were assessed in 2016 by Dr Parker utilising the STATIC-99R assessment tool. The score was reviewed and re-scored by Ms Sapula in October 2021 and found to place the defendant in the highest risk category. The defendant’s dynamic factors for sexual reoffending were assessed using the STABLE-2007, most recently in July 2021 by Holly Cieplucha, a psychologist. The results were reviewed by Ms Sapula and confirmed to indicate a “Moderate density of criminogenic needs” relative to other male sexual offenders. When combined with the results of the STABLE-2007, the defendant’s composite risk and needs were assessed as being in the “Well Above Average risk” category of sexual offending.

The defendant’s submissions

1. [26]

   The defendant submitted that the test set out at s 10A of the Act was not satisfied in view of four factors. Firstly, the defendant’s mobility and general well-being was so compromised by his ailments that he lacked the physical capacity to pose a threat to children, even if he desired to do so. Secondly, the defendant has not committed an offence against a child for 20 years, or offended against an ESO since 2009, which the defence submitted demonstrates significant rehabilitation. Thirdly, the only concerning behaviour that the defendant has exhibited during the course of his current (third) ESO was his staring at children, and that has not occurred since June 2018, some three and a half years ago. Fourthly, although the defendant had expressed aspirational intentions to return to the broader community and, ideally, start a family, he does not intend to change his conditions of care in the immediate future.

The plaintiff’s submissions in response

1. [27]

   The plaintiff submitted that the absence of criminal offending and concerning behaviour since mid-2018 was equally capable of explanation by the medication that the defendant is obliged to take and his effective confinement to the aged care facility as a result of restrictions imposed by Covid-19 and the line of sight supervision that applies whenever he leaves those premises. The plaintiff submitted that there is a difference between a manifest risk and an underlying risk. In the absence of an opportunity for the defendant’s level of risk to be tested, the plaintiff submitted that there is no evidence that it has been mitigated.

2. [28]

   The plaintiff submitted that the defendant’s expressed desire to cease taking anti-libidinal medication, if acted upon, would significantly elevate his risk above its current level. There is a need for forensic assessments so that the Court may arrive at an informed opinion as to the level of risk currently posed by the defendant.

Consideration

1. [29]

   A relevant consideration for the Court considering the final orders sought, and therefore a matter which is relevant to the s 10A test, is the gravity of the offending behaviour that the defendant is at risk of committing as well as the likelihood of that occurring: see, for example, State of New South Wales v Lynn [2015] NSWSC 665 at [68]; State of New South Wales v Hayter (Final) [2020] NSWSC 1581 at [123]. Having regard to the nature and circumstances of the defendant’s past convictions for child sexual assault, the risk posed is offending of a particularly dangerous nature.

2. [30]

   The defendant’s circumstances are unusual because, in spite of him being on his third five-year ESO and not having exhibited concerning behaviour since mid-2018, he has had little opportunity to demonstrate whether he continues to pose a risk in the broader community, and if he does pose such a risk, its extent. Ms Sapula’s report, in its concluding paragraphs, appropriately acknowledges the difficulty that follows from this circumstance in predicting how the defendant would fare if released from the constraint of an ESO. I also note that the defendant’s present place of residence, in Orange, has meant that he cannot be subjected to continuing treatment for his paedophilia, whereas if he was in his preferred location, in Sydney, the services of FPS would again be available.

3. [31]

   In these circumstances, where it is not possible to gauge the defendant’s current level of risk by having regard to his performance in the community, additional weight should be placed on the results of psychological assessments, which I note suggest that the level of risk of the defendant committing a sexual offence is high.

4. [32]

   I conclude that the material that has been tendered by the plaintiff on the application for interim orders would, if proved, justify the making of an ESO. I decline to exercise the discretion that arises from the terms of s 10A in the defendant’s favour and will make the interim orders as sought.

Orders

1. [33]

   I make the following orders:

   1. (1)

      Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):