State of New South Wales v Colebrook

1. [1]

   On 1 December 2016 Adamson J made an order under ss 5C and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that the defendant be subject to a high risk sex offender extended supervision order for a period of five years from the date of the order, and that he comply with the conditions set out in the Schedule: State of NSW v Colebrook [2016] NSWSC 1702.

2. [2]

   Ordinarily, that order would have expired on 30 November 2021. However, since the order was made, the defendant has served periods of time in custody both for failing to comply with his ESO and by reason of committing other offences. Under s 10(2) of the Act the ESO is effectively suspended while the offender is in lawful custody during the pendency of the ESO. The result is that the order made by Adamson J will not expire at the earliest until 28 February 2026.

3. [3]

   By a notice of motion filed 27 June 2023 the State of New South Wales seeks an order pursuant to s 13(1) of the Act that the ESO made by Adamson J on 1 December 2016 be revoked. The defendant supports the application.

Legal principles

1. [4]

   Section 13 of the Act relevantly provides:

2. [5]

   The principles that guide a decision in respect of applications under s 13 of the CHRO Act were well summarised by Lonergan J in State of New South Wales v Banks (Preliminary) [2021] NSWSC 1246 at [13]:

3. [6]

   In State of New South Wales v King [2022] NSWSC 918 I discussed the onus of proof in relation to an application by an offender. I said:

4. [7]

   The present application is brought by the State rather than the offender. However, there is no difference in principle to suggest that the approach I took on an application by an offender should not apply in an application by the State. That is because at the time the application is made under s 13, the offender has been shown to a high degree of probability that he poses an unacceptable risk.

Index offences

1. [8]

   There were three sets of index offences. They were described by Adamson J in her Honour’s judgment as follows:

2. [9]

   The defendant was sentenced on three separate occasions for these offences. He was ultimately released on parole on 15 September 2015.

3. [10]

   Prior to this offending the defendant had a criminal record extending back to the time that he was a minor. Although there were a large number of offences, there were no sexual offences. There were sufficient driving offences involving alcohol to suggest an alcohol problem, but in terms of violence, there were a few convictions for assault, some of which led to short prison sentences.

4. [11]

   After 12 months on parole from the sex offences, an interim supervision order was made, culminating in the making of the ESO on 1 December 2016.

Offending since the making of the ESO

1. [12]

   The defendant has been convicted on seven occasions of breaching his ESO by reason of returning a positive test for drugs, usually cannabis, methylamphetamine, amphetamine or a combination of those drugs. He has been sentenced to various periods of imprisonment for these breaches. He has also been convicted of some driving offences, for one of which he was also imprisoned. Those periods of imprisonment have resulted in his ESO effectively being extended by reason of s 10(2) of the Act.

2. [13]

   The last such offence has resulted in the defendant being incarcerated until 31 October 2024 when his non-parole period expires. The defendant has lodged a severity appeal, and that appeal was heard on the same day that the present application was heard.

3. [14]

   I was subsequently informed by the parties that the defendant’s severity appeal was upheld. In lieu of the prison sentence, the defendant has been sentenced to a Community Correction Order for a period of 18 months commencing 10 July 2023. The Order provides for supervision by Community Corrections, and includes the following orders:

Recent assessments

1. [15]

   An ESO Completion Risk Assessment Report was prepared by Mr Samuel Ardasinski on 6 December 2022 to assist in deciding to consider whether any fresh application should be made under the Act, because at that time the defendant was entering the final year of his ESO. Mr Ardasinski concluded, as part of the Executive Summary to his report:

2. [16]

   Mr Ardasinski considered what had been said in the Risk Assessment Report prepared in 2016 for the purpose of the ESO application, and he said that few, if any, of the warning signs and risk factors identified there had been apparent over the course of the defendant’s ESO. He said:

3. [17]

   Mr Ardasinski considered that cohabitation with partners had largely been protective for the defendant and, although some of the relationships had ended badl, there had been no allegations of domestic or sexual violence. Further, whereas his overall risk in 2016 was summarised as moderate-high, that risk had reduced to moderate at the time of Mr Ardasinski’s assessment in 2022.

4. [18]

   Mr Ardasinski said that the evidence suggested the only risk factor present in the defendant’s current situation was substance abuse and that had only been occasional. He noted that the defendant had sourced and maintained work and had prosocial relationships.

5. [19]

   Mr Ardasinki recommended easing his restrictions during the remainder of his ESO, particularly in relation to abstinence from alcohol. Mr Ardasinski was of the opinion that the ESO appeared to have rehabilitated the defendant rather than simply contained his risks of committing a further serious offence.

6. [20]

   An ESO Completion Report from Terry O’Brien, a Community Corrections officer, reached similar conclusions to those of Mr Ardasinski. Mr O’Brien noted that Corrective Services’ records indicated the use of alcohol and drugs were not contributing factors to the defendant’s sexual offending. He also recommended that consideration be given to easing the restriction on alcohol in the ESO.

7. [21]

   Mr O’Brien said:

8. [22]

   Mr O’Brien also noted that the defendant had not been the subject of any sexual offending allegation or conviction since August 1996.

Consideration

1. [23]

   The following matters emerge from the evidence in the recent reports. First, there is a great deal of resentment on the defendant’s part for the fact that he remains on an ESO. Secondly, he does not perceive any problem with his occasional use of alcohol and illicit drugs. That perception is borne out to some extent, because his use of alcohol and drugs on occasions has not led to any other criminal behaviour apart from driving offences. It has certainly not led to any indications of sexual offending.

2. [24]

   Thirdly, the fact that the ESO has been breached on seven occasions for using drugs has, by reason of the incarceration on each occasion, interfered with his ability to establish stability within the community. The position seems to me analogous to what was said by Hamill J in State of New South Wales v Carr [2020] NSWSC 643:

3. [25]

   Fourthly, whilst it may be accepted that the defendant has spent the majority of his adult life in prison, he has spent various periods of time in the community from 2015 until less than one month ago. These periods amount to almost five years in total, both before and since the ESO, although it may be accepted that he has always been under some form of supervision, whether parole or the ESO. Nevertheless, there has been no indication that, despite his use of drugs and alcohol, he has committed any offences which might endanger the community, let alone offences involving sexual offending. It is significant in that regard that Mr Ardasinski considered that a large number of risk factors which were identified in 2016 are no longer present.

4. [26]

   In her report of 6 October 2016 Dr Eagle had said:

5. [27]

   The contrast between those quite legitimate concerns in 2016 and what has eventuated since that time is quite marked. The casual or occasional use of alcohol and illicit drugs, and the experience of relationships which have not worked out, have not resulted in any behaviour of concern in respect of the Act.

6. [28]

   Finally, it is significant that the present application is brought by the State and is supported by the defendant. Although the discretion under s 13 is ultimately one for the Court, the attitude of the State might be taken as a concession that the defendant no longer poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: see by analogy what was said by Garling J in State of New South Wales v Paton [2020] NSWSC 1707 at [26]. The jurisdiction of the Court under the Act is not a consent jurisdiction either for the making of orders or for their revocation: State of New South Wales v Fisk [2013] NSWSC 364 at [7]. However, the approach of parties represented by counsel is not without significance in assisting the Court to reach an appropriate decision: State of New South Wales v Manners [2008] NSWSC 1242 at [4]; State of New South Wales v Paton (Preliminary) [2020] NSWSC 1178 at [5].

7. [29]

   Section 13(1B) provides that the Court may revoke an ESO if satisfied that circumstances have changed sufficiently to render the order unnecessary. I am satisfied, on the balance of probabilities, that circumstances have changed sufficiently. That is apparent from the length of time since the index offences, and the significant changes in the behaviour and attitude of the defendant.

8. [30]

   In considering whether the order should be revoked, it is significant that the defendant has now been placed on a Community Correction Order for 18 months where he will be supervised. I note the areas where the Community Corrections Officer may give reasonable directions. In assessing whether an ESO should be made, a consideration is the risk if the person “is not kept under supervision under the order” (s 5B(d)). The supervision now to be provided by Community Corrections is a further matter I take into account in considering whether I can, at the present, be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence.

9. [31]

   Having regard to the changed circumstances, and the recent assessment reports, the Court could not be so satisfied and, accordingly, the ESO should be revoked. It is to be hoped that Community Corrections will have regard to the recommendations of Mr Ardisinski, seemingly supported by Mr O’Brien, with regard to the restrictions on the defendant’s consumption of alcohol.

10. [32]

    I make the following order: