State of New South Wales v Presta (Preliminary)

1. [1]

   By summons filed on 2 August 2021 the plaintiff, the State of New South Wales (“the State”) brings proceedings against the defendant, Bruno Presta, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. [2]

   The State seeks preliminary orders, interim orders and final relief in the nature of an extended supervision order (“ESO”). This is the judgment in respect of the preliminary hearing.

3. [3]

   The defendant is already subject to an ESO which expires on 21 August 2021, being only three days from the date of the hearing of the application for the preliminary orders. It follows that if I do not make the orders sought by the State prior to 21 August 2021, the defendant will not be subject to any supervision in the community.

4. [4]

   The issues I am determining at this time are:

   1. (1)

      whether I should appoint a psychiatrist and/or psychologist to conduct examinations and provide reports;

   2. (2)

      whether the defendant should be subject to an interim supervision order (“ISO”) for a period of 28 days; and

   3. (3)

      the conditions of that ISO.

5. [5]

   Lester Fernandez appeared for the State and Matthew Johnson SC appeared with Slade Howell for the defendant. The focus of the dispute at this preliminary stage is whether the applicant poses an unacceptable risk having regard to the significance of that term within the Act.

6. [6]

   The defendant does not seek to challenge any of the State’s proposed conditions if an ISO is to be imposed. Similarly, the defendant does not contest that an order for medical examinations should be made, again, provided that I am satisfied that he poses an unacceptable risk.

The Legislative Scheme

1. [7]

   The primary object of the Act is protective rather than punitive. It provides for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community: s 3(1) of the Act.

2. [8]

   The Court may make an order for the interim supervision of an offender, pursuant to s 10A of the Act, if in proceedings for an ESO, it appears to the Court that:

3. [9]

   The defendant is currently subject to an ESO. It will expire before the proceedings are determined.

4. [10]

   Section 7 of the Act deals with pre-trial procedures. The wording in s 7(4) of the Act is identical to the wording in s 10A(b) of the Act.

5. [11]

   For the purposes of the orders sought, it is thus necessary to be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. If so satisfied, the Court must make the orders set out in ss 7(4)(a) and (b) of the Act.

6. [12]

   However, if the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court must dismiss the application: s 7(5) of the Act.

7. [13]

   It is not necessary that the Court be satisfied at the preliminary stage that the matters alleged in the supporting documentation will be proved. The Court is only required to be satisfied that, if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely, a high degree of probability: ss 5B and 5C of the Act; State of New South Wales v Wilmot (Preliminary) [1] (“Wilmot”); State of New South Wales v Sturgeon [2] (“Sturgeon”).

8. [14]

   It follows, that on the preliminary hearing, the Court is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. Nor is it necessary for the Court to predict the ultimate result or to assess the likelihood of the ultimate result: see Sturgeon at [6]; Wilmot at [7].

9. [15]

   An ESO may be made if the matters set out in ss 5B(a)–(c) of the Act are established and if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d) of the Act.

10. [16]

    The meaning of “an unacceptable risk” in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No 2) [3] at [23]–[24] as follows:

Threshold questions

1. [17]

   The defendant accepts that the threshold requirements are satisfied. He is currently a supervised offender within the meaning of s 5I the Act.

Background facts / Defendant’s criminal history

1. [18]

   The defendant is currently 51 years of age.

2. [19]

   On 4 November 1998 he was sentenced on five counts of kidnapping contrary to s 90A of the Crimes Act 1900 (NSW) and 21 counts of aggravated sexual assault contrary to s 61J of the Crimes Act. He was sentenced to a period of imprisonment of 19 years with a non-parole period of 14 years and 3 months. He was not granted parole. He remained in custody until the expiration of his sentence on 13 November 2016.

3. [20]

   Prior to the completion of his sentence the State made an application for an ESO.

4. [21]

   On 22 August 2016 Wilson J made orders imposing an ESO for a period of five years: State of New South Wales v Presta (No 2). [4]

5. [22]

   That ESO expires on 21 August 2021. The defendant is already in the community. If no further orders are made under the Act he will remain in the community (subject to proceedings being pursued in respect of an alleged breach of the ESO). He would remain subject to the obligations of the Child Protection Register (two of his victims were aged 15) until August 2031.

6. [23]

   It is thus now 24 years since the index offences. Prior to the commission of the index offences the defendant had no criminal history. However, the index offences were of a particularly brutal, extreme and sadistic nature. He kidnapped five young men (two of whom were only 15) at gunpoint.

7. [24]

   Whilst his treatment of every victim was not identical, it was similar in nature. It is not necessary that I provide an extensive recitation of the extremely violent conduct perpetrated by the defendant in respect of each victim. Suffice to say that he either tied up the victims and placed tape over their eyes or sedated them with drugs. He held them against their will and performed various extremely violent and sadistic acts upon them apparently for the purposes of some form of sexual gratification. Those acts included forced anal intercourse, forcing objects into the anus of the victims, forced fellatio, treating a victim like a dog, including placing a belt around his neck, tightening it and making him bark. Other acts of violence included using his belt on the victims, slapping them and putting out a cigarette on them. He filmed many of his acts.

8. [25]

   It is difficult to overstate the depravity of the offending.

9. [26]

   Having said that, the defendant was sentenced on 4 November 1998 and served the full sentence. Further, Wilson J accepted that in 2016 the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision and imposed an ESO for a period of five years.

10. [27]

    Since August 2018 he has been living with and caring for his mother. At least until 2021 he had complied with the conditions of the existing ESO. He has been in receipt of a disability support pension. He has continued to receive psychological counselling.

11. [28]

    Indeed, on 17 March 2021 his Community Corrections Officer recommended that on the expiration of the current ESO, no further orders be sought.

12. [29]

    He does not work other than providing care to his mother. At least until recently, it was generally accepted that he had appropriately managed his risk issues. He had developed a good relationship with his supervising officer. He had not reported any sexual self-regulation issues with his therapist. Strictly speaking, he could not be considered a sexual recidivist because the index offences were all committed around the same time and he has been under supervision since. The defendant has expressed interest in pursuing education and training in tourism or alternatively, aged care services.

13. [30]

    Apart from the alleged recent breaches of the ESO (which are disputed) the defendant has been living a quiet life caring for his mother with no incidences or examples of the sort of behaviour that led to his imprisonment.

The current position

1. [31]

   Having regard to the reports to the Attorney-General dated 17 December 2017 and 23 September 2018, as well as the ESO completion reports dated 3 February 2021 and 17 March 2021, there might not have been much of a dispute that the defendant no longer poses an unacceptable risk. The very purpose of these sort of reports, including the ESO completion reports, is to allow an assessment of the progress of a person under an ESO to determine whether the risks which were found to exist at the time of imposition of the ESO are still present at the expiration of the ESO. The reports were generally favourable in terms of the defendant’s progress and risk factors.

2. [32]

   As the focus of the argument between the parties was very much on why the defendant’s risk factors have changed within the last six months (leading to the suggestion that he remains an unacceptable risk according to the State) it is only necessary in this judgment to focus on that issue.

The State’s position

1. [33]

   On 9 July 2021 the defendant was arrested and charged with two offences under s 12 of the Act being:

   1. (1)

      failure to comply with the ESO in that he failed to notify his DSO of the identity and the address of healthcare practitioners; and

   2. (2)

      he failed to comply with the ESO in that he used prescription medication other than as prescribed.

2. [34]

   The defendant has entered a plea of not guilty to both charges. He disputes the charges. The State says that the alleged breaches of the existing ESO are significant because they illustrate a possible return to substance misuse (drug use) which was at least one of the significant factors which led to the commission of the index offences.

3. [35]

   Although the original sentencing judge was unable to determine the motivation for the defendant’s crimes other than sexual sadism with which he was diagnosed prior to sentencing, medical evidence provided on sentence referred to the defendant attributing his criminal conduct at least in part to excessive use of analgesics and benzodiazepines. The defendant also attributed his conduct to the experience he claimed to have had as a teenager, that is, being sexually assaulted in Kings Cross.

4. [36]

   The State thus points to the defendant’s misuse of prescription drugs as leading to an elevation in the risks associated with him being in the community without supervision.

5. [37]

   The State further points to the opinion of Dr Jeremy O’Dea, as contained in his report of 19 July 2016, obtained for the purpose of the existing ESO. In his report, Dr O’Dea referred to the defendant’s history of being the victim of sexual assault at the age of 14, experiencing significant traumatic injuries in a motor vehicle accident in which his twin brother was killed at the age of 16 and the subsequent history of substance use disorder including benzodiazepine and opiate use disorder.

6. [38]

   The defendant described his state at the time of the offending as associated with taking 20 sleeping tablets a night and 20 painkillers a day.

7. [39]

   In 2016 Dr O’Dea suggested it was reasonable to assume that there was a significant risk of the defendant engaging in further sexual offending behaviours in the community, particularly if the sexual sadism disorder was to remain untreated and he again abused prescription medication, alcohol or illicit substances. Dr O’Dea recommended he engage in structured and supervised community drug and alcohol counselling so as to ensure that he remained abstinent from alcohol and illicit substance use and prescription medication abuse.

8. [40]

   Further, the State pointed to the report of Dr Stephen Allnutt dated 20 July 2016 also obtained for the existing ESO. Dr Allnutt records in his report that the defendant accepted his theory (that is, Dr Allnutt’s theory) that prescription drugs had uncovered an underlying propensity for sexual arousal to violence and humiliation. Dr Allnutt records that the defendant recognised that he needed to avoid drugs.

9. [41]

   The State refers to the PBS patient summary which provides evidence of all of the occasions on which the defendant has obtained benzodiazepine. It is only necessary to say that during the period January to June 2021 the defendant obtained 50 tablets of diazepam on five occasions including obtaining 100 tablets in the course of two weeks in April 2021.

10. [42]

    The State then relies on the risk management report prepared by Joshua Begg dated 30 July 2021. As Mr Begg says, referring to the report of Mr Ardasinski dated 21 July 2021, there is a link between the defendant’s prescription medication abuse and an increased risk of sexual offending. Mr Begg refers to the defendant’s long-standing deceit about his substance abuse.

11. [43]

    Finally, the State relies on the most recent risk assessment report of Mr Ardasinski dated 21 July 2021. Despite the ESO completion reports which suggest that the imposition of a further ESO is not necessary, Mr Ardasinski seemingly changes his opinion based on receipt of the additional information as to substance abuse.

12. [44]

    Although he said on 3 February 2021 that the defendant’s risk had reduced somewhat, he now suggests that not only were his assessments of the defendant’s management of his substance abuse incorrect but the nature of the defendant’s long-term deceit in concealing his return to regular and high-level benzodiazepine use also calls into question his compliance with supervision more generally and whether he has been concealing more than that.

13. [45]

    He says that, in considering the future risk of serious sexual offending, there are some warning signs, as noted in the original CUBIT treatment report, one of which includes abuse of prescription medication. Others include being given too much autonomy too quickly without enough support and expressions of thoughts of self-harm.

14. [46]

    Further, Mr Ardasinski refers back to his report of 22 February 2016, in which he suggested that the potential for sexual violence is chronic since the psychiatric literature suggested sexual sadism often has a lifelong course, even if the disorder itself may be moderated by age. Mr Ardasinski goes on to consider worst-case scenarios. He opines that it is possible that the defendant has harboured an ongoing deviant sexual interest through his time on the ESO but it is ego-dystonic, that is, he hates that he has sexually sadistic fantasies and it is potentially for this reason that his return to prescription drugs occurred recently.

The defendant’s position

1. [47]

   The defendant’s position is that:

   1. (1)

      until such time that the defendant was charged with breaches of the ESO there was really no evidence which would have justified the State’s application or any finding that the defendant poses an unacceptable risk;

   2. (2)

      the defendant disputes the breaches of the ESO. Specifically, he disputes that there was any attempt by him to deceive his DSO as to his use of prescription medication or that he has not been forthcoming to those persons from whom he has sought treatment about his use of prescription medication; and

   3. (3)

      even despite his apparent change of opinion, which the defendant says is based on incorrect information, Mr Ardasinski does not elevate his risk assessment above moderate. That is, even in light of the events which have allegedly occurred in 2021, the defendant only poses a moderate risk of committing a further serious sexual or violent offence.

2. [48]

   The defendant submits that in these circumstances, I would not be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. I would not be so satisfied because I would not accept that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. [5]

Determination

1. [49]

   The purpose of the legislation is protective not punitive. Despite the severity and depravity of the defendant’s crimes, he has served his full sentence and completed a five year ESO without any events, incidences or matters arising which would give rise to any real concerns until the most recent discovery of him seeking benzodiazepine from various doctors.

2. [50]

   Having said that, I am not weighing up the defendant’s right to his freedom or unrestricted place in the community as against the interests of the community in ensuring that the community is kept safe from persons who pose an unacceptable risk of committing a further serious offence.

3. [51]

   I am applying the legislation in accordance with its terms, having regard to its purpose. Firstly, if I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, I must make the orders set out in ss 7(4)(a) and 7(4)(b) of the Act. That is, I must appoint the medical experts and direct that the defendant attend those examinations.

4. [52]

   On the other hand, if following the preliminary hearing I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, I must dismiss the application.

5. [53]

   Further, even if I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, I have a discretion as to whether an ISO should be made.

6. [54]

   One of the difficulties in this matter at this preliminary stage is that there is a real dispute between the parties as to the events which may have caused this application to be pursued and which may have led persons such as Mr Ardasinski to alter his opinion (if he has altered his opinion). Indeed, the defendant points to what appears to be a degree of speculation in Mr Ardasinski’s risk assessment report and highlights the extent to which the change of opinion might be based on incorrect assumptions.

7. [55]

   In particular, the defendant points to the notes of the forensic psychologist, Theresa Britton, which record the defendant having volunteered his issues with substance abuse. On 25 January 2021, Ms Britton records discussing substance abuse, particularly improper excessive use of diazepam, noting that the defendant is a particularly high risk for diazepam misuse, given his history of abuse of prescription drugs. She notes that the defendant went to great lengths to justify his actions and how this had been managed through the GP, although he admitted that his use of the prescription was not as directly prescribed.

8. [56]

   Further, Ms Britton refers to the defendant himself mentioning his assessment by Mr Ardasinski and Mr Ardasinski’s reference to the use of “benzo”. Reference was made to the defendant having his first psychological consultation in respect of this misuse.

9. [57]

   The State refers to the OIMS case notes, particularly on 3 December 2020, in which the defendant asserted that he had been taking medication in accordance with the prescriptions and denied taking any Valium. The State also referred to the OIMS notes of 7 July 2021 as follows:

10. [58]

    In his conclusion in his risk assessment report of 21 July 2021 Mr Ardasinski states:

11. [59]

    Further, by way of contrast as to what will happen to the defendant if a further ESO is not imposed, the State relies on Mr Ardasinski’s commentary that the defendant will return to the community with no supervision. His mother has poor health and the defendant has his own concerns about how he will cope without the support of the Department which has been managing his life since he was 28. He would not be eligible for further formal support from the Department if he is not subject to any form of community-based supervision.

12. [60]

    Plainly, the defendant himself is expressing concern as to how he will cope in the community after 24 years of being provided for and kept under supervision by the State. This gives rise to one of the risk factors identified by Mr Ardasinski as elevating the risk, being the possibility of the defendant having thoughts of self-harm.

13. [61]

    One of the difficulties at this point in the proceedings is that central to the defendant’s position on risk is a contention that he has not been deceitful in terms of his use of prescription medication and that he had not been engaging in substance abuse. There may be some evidence to support those matters but I must determine this matter at the preliminary stage on the basis of whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.

14. [62]

    It is correct that Mr Ardasinski suggests only that the risk of sexual re-offending is moderate, but his opinion is not the only evidence on the issue. I may have regard to the opinions of Dr O’Dea and Dr Allnutt. I may have regard to the very nature of the disorders of which the defendant was diagnosed, not just back when he was committing the offences, but for the purposes of the ESO application in 2016.

15. [63]

    Having regard to my analysis of all of the evidence, I consider that the risks associated with the defendant remaining in the community unsupervised are elevated by the excessive use of prescription medication, specifically benzodiazepines. This is the very medication that he has been seeking, at least since January 2021.

16. [64]

    There is evidence of a link between the original offending and benzodiazepine misuse and there is evidence of an increased risk of re-offending arising out of benzodiazepine abuse. Whilst it may be that Mr Ardasinski continues to describe the risk as moderate, placing a label on the risk or identifying it within a category is not determinative of whether a person poses an unacceptable risk of committing a further serious offence.

17. [65]

    No doubt there will be further exploration of the assumptions made by Mr Ardasinski and some challenge to the matters alleged by the State at the hearing of the application for an ESO, but I must proceed on the basis of the facts alleged.

18. [66]

    The matters alleged include opinions offered by experts based on factual assumptions. I must determine the outcome of this preliminary application on the basis that the defendant has been deceitful and withheld information about his prescription medication use, as that is a matter alleged in the supporting documentation. Whether that matter will be proved will be determined at a later time.

19. [67]

    It is thus only necessary to find at this time that, if the matters alleged in the supporting documentation are proved, then those matters would justify the making of a further ESO. I accept that they would because the increased and excessive use of such medication, coupled with the defendant being deceitful about his misuse (allegedly), elevates the risk to a level that he would pose an unacceptable risk of committing a further serious offence if not under supervision.

20. [68]

    In the circumstances, I must make the orders that the defendant be medically examined and that the experts provide reports.

21. [69]

    I have a discretion whether to make an ISO but having regard to the currency of the matters alleged which give rise to this application and, indeed, the defendant’s own expressed concerns about what might happen to him, I consider that I should make the order for an ISO.

22. [70]

    The conditions proposed for the ISO are not in dispute. They are annexed to this judgment.

23. [71]

    In the circumstances, I make the following orders:

    1. (1)

       An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

    2. (2)

       An order pursuant to sections 10A and 10C of the Act, that the defendant be subject to an interim supervision order for a period of 28 days.

    3. (3)

       An order pursuant to section 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the schedule to this judgment.

    4. (4)

       An order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.