State of New South Wales v Levy (Preliminary)

1. [1]

   By a summons filed in July 2020 the State sought orders under the Crimes (High Risk Offenders) Act 2006 (NSW) that Mr Christopher James Levy be subject to an extended supervision order for a period of three years. This judgment deals with the interim order sought, subject to specified conditions, as well as the appointment of two psychiatrists to conduct psychiatric examinations of Mr Levy and to provide reports to the Court.

2. [2]

   There was no issue between the parties that an interim order should be made and that two psychiatrists should be appointed. At this stage of the proceedings, only some of the conditions of supervision proposed in the schedule to the summons were in issue. After the hearing some further conditions were agreed, the Court being advised on 29 October that the conditions in issue were conditions 5 - 7, 15(c), 15(d), 15(e), 15(g), 15(i), 15(j), 16, 17, 20, 27, 28, 30 - 40, 41, 43, 45 and 53.

3. [3]

   The application was supported by affidavits sworn by the State’s solicitor Mr Vidler in July 2020; by another solicitor Ms Kallinosis in October 2020; and by a High Risk Offender Applications and Operational Governance Officer employed by Corrective Services NSW in the Extended Supervision Team, Ms Grabham, in October 2020. Annexed to these affidavits were various relevant documents, including Yehia DCJ’s sentencing remarks, custodial records, risk assessment and other reports concerning Mr Levy and notes Mr Levy had himself made during treatment he had received in custody. This evidence was unchallenged.

4. [4]

   Before judgment was given, however, Mr Levy was arrested and charged with seven offences of incite to commit offence, sexual intercourse with child under age of 10 years; fail to comply with reporting obligations and use carriage service to transmit/publish/promote child abuse. He was refused bail and is next due to appear before the Local Court in Armidale on 11 January 2021.

5. [5]

   By motion of 29 October, supported by another affidavit sworn by Ms Kallinosis, the State was given leave to re-open its application and by consent, to file fresh evidence.

6. [6]

   On 30 October the parties’ position was that they did not seek to advance any further submissions in relation to the disputed conditions. I have, however, taken into account the unfortunate developments outlined in Ms Kallinosis’ affidavit, which have confirmed the conclusions I had otherwise reached about the disputed conditions.

7. [7]

   For reasons which follow, I am satisfied that the interim order sought should be made on the conditions agreed and those which I discuss below and that the two psychiatrists should be appointed.

The interim orders must be made

1. [8]

   Mr Levy was released on parole in August 2020, having served sentences in custody that Yehia DCJ imposed in June 2017 for State and Commonwealth offences involving children. The balance of his sentence expires on 4 November 2020: R v Levy (District Court (NSW) 14 June 2014, unrep).

2. [9]

   There is no issue that his offences made Mr Levy an “offender”, as defined in s 4A of the High Risk Offenders Act, his State offences under ss 61M(2), 61(2) and s 66EB(2) of the Crimes Act 1900 (NSW) each being a “serious sexual offence” for the purpose of s 5(1) of the High Risk Offenders Act. Mr Levy is now a “supervised offender” under s 5I of that Act and on the evidence a “high risk offender” who, to a high degree of probability, “poses an unacceptable risk of committing another serious offence if not kept under supervision under the order”: s 5B.

3. [10]

   The State’s application was brought within the time specified in s 6 of the High Risk Offenders Act. The undisputed evidence, which I will discuss in the context of what lies in issue between the parties, establishes that Mr Levy’s current supervision will expire before the proceedings are determined and that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order: s 10A High Risk Offenders Act.

4. [11]

   There was also no issue that the disputed conditions are of a kind which can be imposed under s 11 of the High Risk Offenders Act. Whether some of them were appropriate was in issue.

The disputed conditions

1. [12]

   The disputed conditions must be considered in light of the nature of Mr Levy’s offending, what the evidence establishes about the risks which he poses and the conditions which were not in dispute. A copy of the schedule which the parties provided after the hearing, which identified the finally proposed conditions and Mr Levy’s position in relation to them, is thus attached.

2. [13]

   Consistently with the objects of the Act, specified in s 3, such conditions may either impose constraints or positive obligations. They must strike a balance between relevant considerations, in order to provide an outcome which is fit and proper: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at [37]-[39]. Section 3 provides:

3. [14]

   The defence case rested on the limits of the actuarial instruments used in undertaking the risk assessments in evidence. It was noted that the assessments undertaken in 2017 concluded that Mr Levy fell within the medium risk category for general and violent offending and the low/moderate range for sexual reoffending, although they had not taken into account his non-contact offences. Those undertaken in 2019 had assessed him in one case as posing an above average risk and in another as posing a perceptibly higher risk than a typical offender, with his score estimated to be almost two times higher than that of the “typical” sex offender.

4. [15]

   As to his identified criminogenic needs, it was noted that Mr Levy’s most concerning risk factor had been identified to be his sexual preoccupation. This presented in various ways: his reported sexual attraction to pre and post pubescent girls; viewing abusive materials with increasingly younger victims; and his opportunistic progression from attempting to groom early teens using text or social media, to a contact offence with a prepubescent child.

5. [16]

   It was submitted to be relevant that Mr Levy had made gains in the treatment he had pursued and had responded well to suggestions and challenges made by his therapist. Nonetheless, he had been assessed as still falling within the above average category for sexual offending and needing ongoing monitoring and supervision, to manage his risks.

6. [17]

   The defence case was also that insufficient account had been taken by the State of the support available to Mr Levy in the community from his parents and their sincere undertaking to monitor his compliance with the conditions imposed upon him. It was relevant that they now have a proper understanding of the extent and nature of his offending.

7. [18]

   Thus the disputed conditions were argued to be unnecessary, too onerous, or not sufficiently connected with the risks which he poses, to be imposed upon him.

8. [19]

   Mr Levy is now a 31 year old Aboriginal man who pleaded guilty to offences which he committed while aged 24 to 26. He had no history of prior offending, but the agreed facts on which he was sentenced disclosed the attraction to preteen girls under the age of 13 years on which he had acted. Some of his offending involved using the internet, including Facebook and chatrooms, to groom and attempt to obtain sexual favours from girls of that age, as well as to upload and discuss child pornography. As well as his non- contact offences, he also committed contact offences, involving stepdaughters of a flatmate. At this stage it is unnecessary to further outline the details of his various offending.

9. [20]

   The offences to which Mr Levy entered his pleas of guilty were:

10. [21]

    On sentence a number of other charges were taken into account on a Form 1.

11. [22]

    For Mr Levy’s State offences an aggregate sentence of 5 years and 3 months with a non-parole period of 3 years was imposed. His total sentence for the Commonwealth offences was 3 years and 3 months. Mr Levy was refused release to parole in June 2019 because of a perceived need to complete a High Intensity Sex Offenders Program (“HISOP”), which he completed in mid-2020. The report about his participation in that program is in evidence. He was also enrolled in an Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS) drug addiction program, which he failed to complete.

12. [23]

    Mr Levy also has a relevant reported history of alcohol and considerable drug abuse from age 13. He reported abstinence from cannabis from 5 days before going into custody, but admitted ongoing drug use in custody 3-4 times a week since September 2019, which resulted in a period of suspension from the HISOP program. Ongoing poor behaviour in May also led to formal warnings and another suspension.

13. [24]

    Since August 2020 there have been no reported breaches of Mr Levy’s conditions of parole in relation to drug abuse.

14. [25]

    There was no issue that the evidence established that Mr Levy poses a considerable risk of further serious sexual offending against children, given the attraction which he has already acted on.

15. [26]

    Mr Levy’s HISOP report indicated that his participation in the program had been mixed. He had identified sexual attraction to female children and addiction to sex and pornography as significant risk factors. However, he had failed to identify other risky behaviour and was resistant to and defensive and dismissive of feedback. He also preferred to rely on external supervision and restrictions to manage his behaviour, as he often felt unable to regulate his own behaviour.

16. [27]

    Mr Levy reported increasing social isolation in 2010 after a relationship breakdown when he spent days smoking cannabis, playing Xbox and watching pornography. This led to feelings of anger and depression and while he was able to maintain employment, he began accessing child abuse material, about which he had always been curious. He saw no negative consequences from this and his sexual interest in children increased over time to the point that, by 2014, 80% of what he viewed on-line involved child abuse.

17. [28]

    Mr Levy found his high sex drive increasingly difficult to manage and his increasingly unhelpful attitudes towards women exacerbated his fantasies of having a child partner. His drug abuse escalated and the violence of material which he viewed online increased. In 2014 when he began actively seeking sexual contact with children, Mr Levy described himself to be obsessed and out of control. His contact offences fuelled his desire to pursue such offending and he engaged in reckless behaviour, seeking to procure such sex by messaging the mothers of children and others, which ultimately led to his arrest.

18. [29]

    The factors Mr Levy identified during treatment which had led to his offending were his deviant sexual interests in female children; sexual pre-occupation and hypersexual arousal; sexual dysregulation and disinhibition; use of pornography; poor problem solving; poor coping with drug use and not managing his mental health.

19. [30]

    As he progressed through the program Mr Levy found it easier to manage his sexual thoughts about children, but he was resistant to working on cognitive issues which related to his risk factors. This was reflective of an ongoing pattern of avoiding and minimising his problems and not accepting help and support. He remained sexually preoccupied. He did not see hypersexual arousal as a risk factor and had disrespect for rules and authority associated with his online offending and drug use, which was thus a significant risk factor for him.

20. [31]

    The report identified that Mr Levy’s sexual behaviour would thus have to be monitored, given that he considered daily use of pornography to manage his hypersexual arousal to be desirable on release to the community. This made it unlikely that his proposed self-management strategies would be effective. A lot of time and money spent online was considered to represent an increased period of risk.

21. [32]

    Mr Levy’s ongoing sexual interest in children was considered to require ongoing supervision, as was his engagement with his support network, including his family members, given past drug use and the nature of his relationships with some family members. It was also considered to be highly likely that engaging in social media would significantly increase his risk by providing him with access to potential victims, including extended family members; the means to procure child abuse material and the opportunity to engage in grooming behaviours. This would occur either by Mr Levy targeting children directly or making contact with women with the goal of gaining access to their children.

22. [33]

    Initial high supervision of Mr Levy was thus recommended, especially monitored use of the internet, with the goal being reduction of supervision as he built internal management strategies; managing substance abuse; engaging in employment and developing positive social connections outside his immediate family. It was suggested that there should be no unsupervised access to those under 18; the appropriateness of anyone supervising his access to children should be assessed by Community Corrections; and he should not access social media accounts such as Facebook or Twitter or apps such as KIK and WhatsApp.

23. [34]

    There was no issue between the parties as to the applicable principles.

24. [35]

    In determining what conditions to impose in order to diminish the risk Mr Levy poses to an acceptable level, “it is self-evident that this will involve a ‘balancing’ exercise, in the sense that the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective”: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [129].

25. [36]

    While electronic monitoring was agreed, provision of a schedule of movements was opposed. The conditions sought were:

26. [37]

    Mr Levy opposed those conditions, submitting that electronic monitoring would provide adequate supervision and that the disputed conditions would prevent him spending time with his family if, for instance, it was spontaneously decided to go somewhere as a family unit. Given that his support network comprised almost entirely of family members, access to them was argued to be critical.

27. [38]

    The conditions would also inhibit Mr Levy’s capacity to reintegrate into the community and have a negative impact on his social isolation and opportunity to pursue work. Given his successful compliance with his current conditions of parole, it was argued that these conditions were thus too onerous.

28. [39]

    I am satisfied that the conditions proposed should be imposed.

29. [40]

    Ms Grabham described the operation of the monitoring system which operates by reference both to electronic monitoring and a schedule of movements.

30. [41]

    Mr Levy presently has to provide a schedule of movements as a condition of his parole and it is proposed that this would continue, scheduled movements being intended to avoid Mr Levy having regular contact with children.

31. [42]

    Ms Grabham explained that advance notice of Mr Levy’s proposed movements permits supervising staff to undertake random surveillance and compliance check as to his whereabouts. It also enables staff to decide whether to contact Mr Levy by telephone, or to despatch a team member, or even a police officer, if that is identified to be needed.

32. [43]

    Ms Grabham considered that the proposed conditions were appropriate in Mr Levy’s case, given the nature of his past behaviour, which included accosting school aged girls in public places. They also permitted third party checks to be undertaken as to circumstances which could heighten the risk of Mr Levy re-offending.

33. [44]

    I am satisfied that the evidence well established that the disputed conditions do provide the least intrusive conditions which provide an appropriate balance between the intrusion into his life which will result from these conditions, the risk which Mr Levy continues to pose and the likelihood that they will help manage those risks.

34. [45]

    The monitoring team operates 24 hours a day, 7 days per week. This enables Mr Levy to contact a team member by phone even after normal staffing hours of 8 am to 10 pm. The proposed conditions will thus not preclude Mr Levy seeking approval for any spontaneous departure from his schedule, if an opportunity for work or a family outing arises unexpectedly, for example. There is no reason to suppose that such approval will be unreasonably refused.

35. [46]

    Paragraphs (c), (d), (e), (g), (i) and (j) of proposed condition 15 were opposed and the insertion of the words “unless in the direct supervision of Shane Levy or Sharon Levy” sought. Condition 15 provides:

36. [47]

    Mr Levy’s case was that condition 15 was redundant and/or disproportionate given that other conditions, especially electronic monitoring, would adequately mitigate his risks of re-offending. Further, that what was proposed would preclude him in engaging in pro-social activities and meaningfully reintegrating into the community.

37. [48]

    It was also submitted that because his offending profile was predominantly seeking access to victims online, or opportunistic contact with children unsupervised, electronic monitoring and the proposed supervision of his parents adequately managed his risks.

38. [49]

    The State opposed the amendment.

39. [50]

    I am satisfied that the proposed condition should not be amended. It also helps provide an appropriate balance of the intrusion into Mr Levy’s life, given his impulsivity and the risks which he continues to pose to children. The restrictions which the condition imposes are likely to help manage those risks.

40. [51]

    What was proposed would permit him to attend places where he could have contact with children, without prior assessment or approval, which I am satisfied would not be appropriate, given the risks which he poses.

41. [52]

    The evidence also did not establish that Mr Levy’s parents were prepared to undertake the supervision that the amendment proposed would require, let alone that this would be an appropriate way in which to manage the risks which he poses. There are other conditions which enable Mr Levy to obtain prior approval to attend such places as part of his schedule of movements.

42. [53]

    Those other conditions are a balanced basis for him to access such venues, given the risks which he poses.

43. [54]

    These conditions should be dealt with together. They provide:

44. [55]

    Mr Levy’s case was that these conditions might prove to be an impediment to his capacity to manage the criminogenic factors identified in the reports, including his sexual preoccupation and impulsivity and would inappropriately restrict his access to healthy outlets to deal with his sexual preoccupations.

45. [56]

    I am satisfied that this cannot be accepted.

46. [57]

    On the HISOP report, Mr Levy’s prior use of pornography was an aspect of how he came to offend as he did. Not all pornography involves adults, or those who appear to be adults. Nor are all sex workers necessarily adults.

47. [58]

    On Ms Grabham’s evidence, any approval would involve a consideration of Mr Levy’s circumstances, including whether the approval sought would help him manage his risks and whether there was any escalation in his risk factors at the relevant time.

48. [59]

    Given the nature of his offending, the circumstances in which his offences came to be committed and the risk which Mr Levy continues to pose, I am also satisfied that these conditions provide an appropriate balance and should also be imposed.

49. [60]

    Clause 17 provides:

50. [61]

    Mr Levy’s case was that his stable employment before he went into custody demonstrated his capacity to be a productive member of the community and that, since release, he had transitioned successfully back into family life. It was argued that there were case management goals which could give rise to a breach of this condition, which was unnecessary; given the obligation imposed upon him by condition 1 to obey all reasonable directions he was given.

51. [62]

    Given the ongoing risk which Mr Levy poses and the reported activities involved in his offending, I am also satisfied that these conditions form a part of the appropriate balance which the conditions imposed must achieve and should be imposed.

52. [63]

    Ms Grabham described how officers worked to help offenders plan for meaningful use of their time and to engage in employment, without requiring them to do so. This includes appropriate checking to assess whether proposed employment would present opportunities to gain access to children or to anti-social associates, such as those listed on the Child Protection Register.

53. [64]

    In order to give reasonable directions, an officer must have relevant information about what Mr Levy proposes to pursue by way of work and education and information used to develop a case management plan will assist in ensuring that what he pursues does not involve inappropriate contact with children.

54. [65]

    Clause 20 provides:

55. [66]

    Mr Levy relied on State of NSW v Vincent [2017] NSWSC 858 where, on making final orders, Harrison J concluded that this condition was burdensome and disproportionate and thus should not be imposed.

56. [67]

    In Mr Levy’s case his record of considerable drug abuse was involved in his prior offending, with the result that the conditions proposed in respect of drug use have been agreed, that being one of the risk factors identified in the reports.

57. [68]

    In those circumstances and given that the orders to be made are interim, rather than final orders, I am satisfied that this condition also forms part of the necessary balance which must be struck and should thus be imposed. Detection that Mr Levy is using his available funds to buy drugs will potentially be important to the management of the risk which he poses.

58. [69]

    Clause 28 provides:

59. [70]

    Mr Levy sought the deletion of the words “but not limited to” because his criminal history provided no justification for disclosure to a person not of his identified victim profile, that is, a female child under 18 years of age.

60. [71]

    That submission may not be accepted, given the evidence that his course of offending included pursuit of victims by contact made with their mothers and other adults who could put him in contact with children, in order to facilitate him engaging in sexual activity with them.

61. [72]

    I am well satisfied that this condition also forms a proper part of the balance which must be struck.

62. [73]

    Conditions 30-40 provide:

63. [74]

    Mr Levy’s case was that the conditions were unnecessarily lengthy and their objective could be achieved by fewer conditions relating to phone and computer use. The wording which would achieve this outcome was, however, submitted to be:

64. [75]

    Given the nature and extent of Mr Levy’s offending, his admitted use of child abuse material for years beforehand and the risks he continues to pose, I am also satisfied that the conditions proposed should be imposed as part of the balance which must be struck.

65. [76]

    I do not accept that the conditions proposed for Mr Levy are an improvement on the drafting of the proposed conditions.

66. [77]

    To the contrary, they remove sensible obligations and restrictions, such as that precluding use of an alias or name other than his own, or email addresses which he does not disclose and requiring him to consent to his providers sharing information about his accounts, without which such information is unlikely to be provided.

67. [78]

    Condition 41 provides:

68. [79]

    This clause was objected to as permitting search and seizure of property belonging to Mr Levy’s parents. That, however, is not what the clause provides for. The condition pressed was:

69. [80]

    Reliance was placed on authorities where the view has been taken that such conditions should be modified to bring it into closer alignment with the statutory powers of search and seizure in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW): State of New South Wales v Tannous [2020] NSWSC 292 at [62] – [63]; State of New South Wales v Grooms (Final) [2019] NSWSC 353 at [106]-[108] State of New South Wales v Baldwin [2019] NSWSC 1882 at [76] and State of New South Wales v Steven Single [2019] NSWSC 176 at [51].

70. [81]

    I am satisfied that in order to achieve an appropriate balance, the proposed condition should also be modified to some extent, so that search and seizure must depend on reasonable belief that it is necessary, but that if Mr Levy does not submit, he will be in breach of the condition. It should thus provide:

71. [82]

    Condition 45 provides:

72. [83]

    Mr Levy’s case was that the use of the word “significant” in condition 45 was subjective and gave rise to the possibility of inadvertent breach. It was relevant that he did not hold a passport, did not pose a flight risk and had virtually no associations outside Glenn Innes.

73. [84]

    Nevertheless, I am also satisfied that this condition should also be imposed as part of the balance which must be struck.

74. [85]

    It has been agreed that a photographic record of his current appearance and his appearance after any significant changes should be kept. Mr Levy can seek approval to make a significant change to appearance. There is no reason to think that would be refused, but this would trigger the keeping of a record of his altered appearance. Seeking prior approval is thus a sensible part of managing the ongoing risk which he poses, particularly given the use which he has made of the internet in his past offending.

75. [86]

    Condition 53 provides:

76. [87]

    Mr Levy objected to the condition applying to treating medical doctors other than psychiatrists, given that this could undermine the free flow of information, doctor/patient confidentiality and was not sufficiently relevant to his risk of reoffending. Further, under the Mental Health Act 2007 (NSW) a medical doctor could authorise his involuntary admission to a mental health facility, without intervention of a DSO. He accepted the condition applying to treating psychologists, psychiatrists, therapists or counsellors.

77. [88]

    What was proposed was:

78. [89]

    I am also satisfied that the proposed condition must be imposed as part of the balance which must be achieved in managing the ongoing risk which Mr Levy poses.

79. [90]

    On the evidence there is clearly a possibility that Mr Levy may be referred by a GP for treatment for his mental health and that it is possible that steps may need to be taken to ensure that those who treat him are made aware of his prior history, including of sexual offending and concerns which may be emerging about his health and the risks which he poses.

80. [91]

    As the State submitted, a consideration which may also arise is that he may seek treatment from practitioners who might inadvertently give him access to children, in waiting rooms, for example, potentially also necessitating information needing to be provided by the DSO.

Orders

1. [92]

   The parties should confer and before 4pm on 2 November file short minutes of the orders which must be made to reflect their agreement and the conclusions which I have reached on the disputed conditions.