State of New South Wales v Bruce Leslie Brown

1. [1]

   HIS HONOUR: By Summons filed 20 September 2024, the State of New South Wales (hereinafter “the State”) has applied for orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter “the Act”). The Summons seeks imposition of an Extended Supervision Order (hereinafter “ESO”) and, while awaiting such an order, an Interim Supervision Order (hereinafter “ISO”) and ancillary orders.

2. [2]

   The defendant, Bruce Leslie Brown, is said to be an unacceptable risk under the Act as a result of the commission of a serious sex offence. The State relies upon an affidavit of Johanna Fisher, affirmed 19 September 2024, and an application bundle, which is an exhibit thereto.

3. [3]

   The serious sex offence committed by the defendant, which enlivens the jurisdiction of the Court, was the offence of inflicting actual bodily harm with intent to have sexual intercourse, contrary to s 61K of the Crimes Act 1900 (NSW), which is defined as a serious sex offence within the meaning of s 5(1)(a) of the Act. The defendant is currently under supervision under an ESO imposed by the Court on 26 February 2021, which expires on 20 January 2025.

4. [4]

   The parties have agreed on the facts and issues before the Court, for which the defendant, in particular, should be commended. To the extent that there is agreement, particularly in relation to the relevant offences and the summary of them supplied by the State, such agreement relates only to the preliminary hearing for the making of an ISO. Further, for the purpose only of the preliminary hearing, the defendant concedes that the defendant is a serious sexual and violent offender as defined by the Act; the defendant is a supervised offender under the Act; and that the defendant is in his final nine months of custody or supervision for the purposes of the Act.

5. [5]

   Even for the purpose of the preliminary hearing, the defendant contests or does not consent to the making of the order. The defendant does not consent to the proposition that the material before the Court would, if proved, satisfy the Court to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious offence unless supervised under an ISO. The defendant also contests the terms of the conditions for which the State applied in its Summons.

Criminal History

1. [6]

   The Risk Assessment Report sets out the defendant’s background and has concluded that the defendant functions with a mid-range intellectual disability and has previously been diagnosed with Alcohol Use Disorder. Further, a forensic psychiatrist, Dr Furst, has expressed the view that the defendant met the criteria in DSM 5 for Frotteuristic Disorder.

2. [7]

   The defendant’s criminal history includes a significant number of sexual offences in which the victims have been both women and children. The following is a summary of offences included in that criminal history.

3. [8]

   On 13 July 2004, the defendant was convicted of assault with an act of indecency, the conduct for which occurred on 12 September 2003. The offence was against a pregnant woman and occurred in Albury, NSW. The defendant entered a caravan and grabbed a woman by her breasts. The defendant was holding a butter knife at the time. The defendant was sentenced to an 18-month good behaviour bond.

4. [9]

   On 1 April 2014, the defendant was convicted of two counts of indecent assault, the conduct for which occurred on 28 July 2004. An aggregate sentence was imposed upon the defendant. The sentence was one month imprisonment, which was wholly suspended for two years. The defendant was then made subject to the Sex Offender Registration Act 2004 (Victoria) for 15 years, the offence having occurred in Wodonga.

5. [10]

   On 15 June 2005, the defendant was convicted of indecent dealing with a child under 16, the conduct for which occurred on 8 April 2005 at Armadale in Western Australia. The defendant had indecently dealt with a 13-year-old girl by grabbing and squeezing her breast, for which the defendant was sentenced to an ISO for two years.

6. [11]

   During 2006, the defendant engaged in conduct which led to convictions for possession and/or copying child pornography, two counts of sexual penetration of a child and a breach of the ISO to which reference has already been made. The child who was the victim of the two counts here mentioned, was six years of age. The District Court in Western Australia sentenced the defendant for these offences to two years imprisonment commencing 10 October 2006.

7. [12]

   On 16 May 2014, the defendant engaged in conduct that led to a conviction on 16 October 2014 of the offence of indecent treatment of a child under 16 in Queensland. The circumstances of this offending were that the defendant approached the victim in a supermarket, wrapped his arms around her, squeezed her breasts, and, while making grunting noises, rubbed himself against her back. The defendant was sentenced to 10 months imprisonment plus a three-year probation period.

8. [13]

   The offending upon which the State relies for the purposes of the jurisdiction of the Court (hereinafter the “index offence”) occurred on 14 November 2015. On 9 May 2016, the defendant was convicted and sentenced for one count of inflicting actual bodily harm with intent to have sexual intercourse with the victim contrary to s 61K of the Crimes Act. There was also recorded on a Form 1 the offence of failing to comply with the reporting obligations under the Child Protection (Offenders Registration) Act.

9. [14]

   The circumstance of the index offence was that the defendant met a 53-year-old woman on the Internet and moved to Bega to pursue a relationship with her. This action was impulsive. The victim was not interested in a relationship, and the defendant made advances to her by attempting to kiss her and asking her for sex on several occasions.

10. [15]

    On 14 November 2015, in the early hours of the morning, the defendant left his hotel and saw the victim. He attempted to kiss her, to which she said: “This has got to stop, I’m going home.” As she started walking home, the defendant knocked her over and pinned her to the ground with the intent of having sexual intercourse with her. She screamed: “Get off me”, to which the defendant replied, “I know you want it, I know you want it.”

11. [16]

    The victim then screamed for help, and the defendant punched her in the eye and yelled for her to “shut up”. The defendant partially removed the victim’s singlet and broke the shoulder strap of her bra to expose her right breast. The defendant then began to suck the victim’s nipple, and the victim attempted to push him off and screamed for help.

12. [17]

    The defendant was also able to pull the shorts of the victim down and touched her vagina with the intention of engaging in digital penetration. Two witnesses intervened and stopped the offending. For this conduct, the District Court sentenced the defendant to an aggregate sentence of five years imprisonment, including a non-parole period of three years and nine months. The sentence expired on 16 January 2021, and the defendant was released to parole on 16 October 2020.

13. [18]

    Since that time, the defendant has breached his current ESO and committed an offence of tampering with his electronic monitoring equipment. There are six counts of failure to comply with the extended supervision order. The offending involved communication with women he did not know through social media platforms, using an encrypting service and using an unauthorised social media service. On 22 February 2022, the defendant was sentenced to an aggregate sentence of four months imprisonment commencing 16 December 2021.

14. [19]

    Other offences that ought to be mentioned are offences of destroy or damage property, being the destruction of his ankle bracelet on his electronic monitoring device; failure to comply with reporting obligations under the Child Protection (Offenders Registration) Act; two counts of failure to comply with the ESO and a further count of destroy or damage property; and, a further two counts of failure to comply with his ESO.

Technical Jurisdictional Requirements

1. [20]

   As already stated, the defendant concedes for the purpose only of the interim proceedings, the technical requirements necessary for an ISO to be made. Notwithstanding the agreement of the defendant, it is necessary for the Court to be satisfied of its own jurisdiction and of the technical requirements necessary for an order to be made and, more relevantly, for the Court to embark upon the determination and assessment of the risk issues necessary for the making of any such order.

2. [21]

   Pursuant to the terms of s 5B, the Court is required to be satisfied that the defendant is an “offender”. The material before the Court proves conclusively that the defendant is over the age of 18; has previously been sentenced to serve a sentence of full-time imprisonment for a serious sex offence, being the index offence; and, is a supervised offender as he is currently supervised by an ESO.

3. [22]

   Further again, the application for an ESO has been made within the time required prior to the conclusion of the defendant’s supervision. The technical jurisdictional requirements have been satisfied. It is necessary to deal with the question of whether the defendant poses an unacceptable risk.

Unacceptable Risk

1. [23]

   The Court has already outlined some of the relevant history of offending by the defendant. The State has submitted a Risk Assessment Report, compiled by a forensic psychiatrist, Ms Sarah Wright, of 13 March 2024. [1] The State has also submitted a Risk Management Report of 16 April 2024 authored by Sarah Hape, a Community Corrections Officer. [2]

2. [24]

   It is unnecessary to recite all the background information and studies performed by Ms Wright, to which she refers in the Risk Assessment Report. It is sufficient, for present purposes, to summarise the findings. On the basis of the history and testing performed, together with the criminal history of the defendant, Ms Wright concludes that the defendant’s sexual offending is mostly impulsive and opportunistic. There are exceptions, which include the grooming of the six-year-old victim and the planning involved in the index offence.

3. [25]

   The defendant is diagnosed with a Mild Intellectual Disability, Paraphilic Disorder (Frotteuristic Disorder), and Alcohol Use Disorder. The defendant was assessed as falling in the Well Above Average risk category for sexual reoffending and has a high density of treatment needs. The most salient risk factors relating to the defendant include Deviant Sexual Interests, Sexual Preoccupation, Impulsivity, Poor Problem-Solving, Problems with Stress or Coping, Problems with Intimate and Non-Intimate Relationships, Loneliness, Significant Social Influences, Intellectual Disability, Problems with Self‑Awareness, Problems with Supervision, and Problems Resulting from Child Abuse.

4. [26]

   Against the foregoing assessment and because of his history, the defendant has already completed an adapted high-intensity sex offender treatment program, a short program addressing substance use issues, and has been engaged in individual risk management intervention with corrective services psychologists.

5. [27]

   Notwithstanding the possible ameliorating effects of the causes and treatments, the defendant was assessed, as previously stated, as Well Above Average in the risk category for sexual offending relative to other adult male sexual offenders. However, the instruments used cannot predict or distinguish risk of serious sexual offending from other forms of sexual offending. There has been observable diversity in the defendant’s behaviour and a noticeable escalation in the severity of his offending, which culminated in the index offence. The defendant continues to demonstrate limited insight into his identified risk issues. The Risk Assessment Report expresses the view that the defendant has a high density of outstanding criminal eugenic needs, including ongoing sexual preoccupation, which underlines repeated breaches throughout the current ESO.

6. [28]

   Given the foregoing assessment and the nature and extent of the defendant’s criminal offending, the Court, as presently constituted, is satisfied that, on the assumption that the material alleged will be proved at final hearing, the defendant poses an unacceptable risk of the commission of a serious sexual offence. The Court is satisfied of that conclusion to a high degree of probability. An ISO will issue commencing 21 January 2025.

7. [29]

   It is necessary to deal with the conditions to be imposed as part of the ISO and, in particular, those conditions that are the subject of contest between the State and the defendant. The State has proposed a number of conditions annexed to the Summons, and the following conditions are not opposed by the defendant: Conditions 1, 2, 3, 5, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 22, 23, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 43, 44, 45, 46, 47, 48, 51, 52, and 53.

8. [30]

   As may be obvious to anyone who compares the terms of the annexure to the Summons with the ESO that is currently in force, the conditions proposed are slightly different to those that are currently in force. The foregoing sentence is included in order to avoid confusion that might otherwise exist.

9. [31]

   I turn to the conditions that are in contest. Condition 4, as originally proposed, was in contest, but a compromise provision has been agreed. Condition 4 will now read: “You must agree to any information relating to your risk of committing a serious sex offence, including information concerning your supervision or rehabilitation, being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW.”

10. [32]

    The terms of Condition 6, as proposed in the Summons, were opposed. The current ESO, under current Condition 5, has a similar provision with greater particulars as to the timing and nature of the schedule of movements. The planning and regularity of activities are important aspects of compliance with managing the risk posed by the defendant. The provision of such a schedule ameliorates the risk of impulsivity, which is a significant risk factor for the defendant. Condition 6 will be inserted and will be in the following terms: “Unless exempted from the requirement by the DSO, you must, when directed, provide a weekly plan (called a schedule of movements), and this is to be provided three days before the schedule is due to start.”

11. [33]

    Condition 7, for the same reason, will be in the following terms: “If you need to change anything in the schedule of movements, once it has been approved by a DSO, you must seek approval from a DSO about the change at least 24 hours in advance, unless a DSO approves a shorter period. In the case of an emergency, where 24-hours’ notice is unavailable, such as the obtaining of emergency medical treatment or the like, you must notify the DSO as early as possible and before the alteration is implemented, and inform the DSO of the nature of the emergency and, in such circumstances, the DSO may disapprove such alteration.”

12. [34]

    Proposed Condition 13 is opposed by the defendant on the basis that the defendant may want to spend the night with someone he has met spontaneously. It seems to the Court that this is the precise risk for which the condition is designed, and which addresses the unacceptable risk found to exist by the Court. Condition 13 will be in the following terms: “You must not permit any person to stay overnight at your approved address (other than persons who ordinarily reside there) without the prior approval of a DSO.”

13. [35]

    The State proposes Condition 21, which deals with the provision of information to a DSO relating to all the defendant’s financial affairs, including income and expenditure, when directed. The condition is pressed and opposed. It is pressed on the basis that the condition will allow the DSO to monitor matters relevant to risk, including the defendant’s level of sexual preoccupation, his compliance with the ESO and any behaviour or expenditure that may be of concern. The Condition as proposed is broad and non-specific. It is appropriate for the DSO to be able to monitor those that are risk sensitive but not without restriction. In the circumstances, the Court decides that Condition 21 will be inserted, but it will be in the following terms: “You must provide any information reasonably required by a DSO on the basis that the DSO reasonably suspects that the material relates to your risk of committing a serious sex offence, being information relating to your financial affairs, including income and expenditure, when directed by a DSO.”

14. [36]

    The defendant opposes the insertion of a proposed Condition 24 on the basis that it will restrict the defendant from attending restaurants. The terms of the Condition as proposed expressly exempt restaurants. Condition 24 will be inserted in the following terms: “Without the prior approval of a DSO, you must not enter any licensed premises, including hotels, bars, racecourses or licensed clubs, but excluding cafes and restaurants.”

15. [37]

    The contest in relation to Condition 25, which requires participation in alcohol rehabilitation programs, relates to the fact that the current ESO has not involved any such attendance. Nevertheless, the current ESO requires attendance when directed. Given the absence of any direction during the three years that the current ESO has been in place and the circumstance that the State may apply to vary the Conditions imposed at any time, proposed Condition 25 does not seem to deal with an ability to address a current issue. Condition 25 will not be prescribed.

16. [38]

    The defendant also opposes the prescribing of proposed Condition 42, which deals with access to particular pornographic, violent and classified material. As is clear from the foregoing reasons, sexual preoccupation is a significant risk factor for the defendant. A restriction of this kind is appropriate. It is not clear from the proposed wording what the meaning of the term “particular site” is. It could mean a physical site or a media site or both. Condition 42 will now be imposed in the following terms: “Without the express prior approval of the DSO, you shall not gain access to a physical site of any particular kind that has been disapproved by the DSO and must not gain access to a social media, Internet or computer site that has not been approved prior to the gaining of such access and you must not purchase, possess, gain access to, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2, and Restricted Category 1, or any other material as directed by a DSO.”

17. [39]

    The State proposes Condition 50 and accepts that the condition would apply only in circumstances where the defendant agrees to take the medication with which it deals. The acceptance of that proposal relates to the fact that the medical profession will not prescribe anti-libidinal medication unless the patient consents.

18. [40]

    Given that Condition 51 is not opposed and requires the defendant to notify the DSO immediately if he ceases to take medication and proposed Condition 50 cannot be enforced without the consent of the defendant, Condition 50 becomes unnecessary. However, Condition 51 will be altered so as to delete the words “as referred to in the above condition” and, in lieu thereof, the following words will be added, namely, “relevant to sexual desire or capacity”.

19. [41]

    The terms of proposed Condition 54 are too broad and unrestricted. The condition will be qualified to require agreement to disclosure only in circumstances where the DSO is reasonably of the view that the disclosure is necessary to avoid the risk to a healthcare professional or in circumstances that affect the risk of the commission of a serious sexual offence.

20. [42]

    It seems wholly unnecessary for a general practitioner dealing with a frank injury, for example, to be informed of the criminal history of the defendant. Condition 54 will be in the following terms: “You must agree to the disclosure of your criminal history to any healthcare professional who is treating you in circumstances where the DSO believes, on a reasonable basis, that the healthcare professional needs to be informed of that history in order to properly treat you or, again on a reasonable basis, in circumstances where the DSO believes the healthcare professional may be at risk.”

21. [43]

    Lastly, it is necessary to deal with the formal orders. For obvious reasons, given that the Summons will now progress to an application for a final ESO, it is appropriate to appoint a qualified psychiatrist or psychologist to report in accordance with the ancillary provisions. It is also appropriate, in the circumstances, to mark the document as confidential and make appropriate orders therefor.

22. [44]

    The Court makes the following orders:

    1. (1)

       Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”), the Court appoints two qualified psychiatrists or psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Court on the results of those examinations by 31 March 2025; and directs the defendant to attend such examinations as directed.

    2. (2)

       Pursuant to the terms of s 10A and 10C(1) of the Act, the Court orders that the defendant be subject to an Interim Supervision Order from 15 January 2025 for a period of 28 days thereafter;

    3. (3)

       Pursuant to the terms of s 11 of the Act, the Court directs that, for the period of the Interim Supervision Order ordered above, the defendant comply with the conditions set out in the Schedule of Conditions of Supervision annexed to the judgment.

    4. (4)

       The Court orders that access to the file in these proceedings or any document therein shall not be granted to a non-party without the leave of a judge of the Court and, if any such application for access is made by a non-party in respect of any document or of the file, the parties hereto are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the granting of any such access.