State of New South Wales v Delaporte (Final)

1. [1]

   By way of an amended summons which I granted leave to file on 13 July 2022, the plaintiff, the State of New South Wales (the State) brings proceedings against the defendant, Jason Aaron Delaporte, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. [2]

   There was a preliminary hearing before Garling J on 4 April 2022. As set out in his Honour’s judgment of 27 April 2022, [1] orders were made requiring the defendant to attend examinations by qualified psychiatrists and psychologists and that the defendant be subject to an Interim Supervision Order (ISO) for a period of 28 days.

3. [3]

   Those orders were extended such that the ISO expires on 29 July 2022.

4. [4]

   On the final hearing before me, the defendant did not dispute that he should be subject to an Extended Supervision Order (ESO) for a period of three years but, opposed a limited number of the conditions sought by the State.

5. [5]

   Prior to the final hearing and in accordance with the orders of Garling J, the defendant was examined by Dr Chelsey Dewson, a Forensic Psychologist, who prepared a report dated 15 June 2022 and Dr Antony Henderson, a Consultant Forensic Psychiatrist, who prepared a report dated 16 June 2022.

6. [6]

   In addition to the reports obtained in accordance with the orders of Garling J, the State relied on a number of affidavits which essentially provided a mechanism for attaching documents, including the affidavits of Ellen Southwood dated 15 December 2021, James Palmer dated 11 February 2022 and 28 March 2022 and Jessica van Lieven dated 21 June 2022.

7. [7]

   The defendant did not seek to rely on any evidence.

8. [8]

   On the hearing of the matter, Ms New of counsel appeared for the State and Ms Marsden of counsel appeared for the defendant. I received helpful written and oral submissions from both parties.

9. [9]

   The focus of the hearing was on the conditions which the State sought. Although the defendant did not oppose the imposition of an ESO, it is necessary that I form an independent satisfaction that an ESO should be imposed.

Legislative scheme

1. [10]

   As set out in s 3 of the Act, the primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders, so as to ensure the safety and the protection of the community. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. In making any orders under the Act, I would have regard to the objects of the Act.

2. [11]

   Section 5B of the Act specifies the circumstances in which the Court may make an ESO:

3. [12]

   Being satisfied to a high degree of probability means something beyond more probable than not. The existence of the risk, that is, the likelihood of the defendant committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof although not to the criminal standard of beyond reasonable doubt. [2]

4. [13]

   The meaning of “unacceptable risk” was considered in Lynn v State of New South Wales: [3]

5. [14]

   Importantly, the impact that an ESO may have on the defendant’s liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision but, the Court may take that factor into account in determining whether to exercise its discretion pursuant to s 9 of the Act. [4]

6. [15]

   Section 9(2) of the Act requires that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court.

7. [16]

   Further, in determining whether or not to make an ESO, I must have regard to the factors as set out in s 9(3) of the Act.

Threshold requirements

1. [17]

   The defendant accepts that the threshold requirements set out in ss 5B(a), (b) and (c) of the Act are satisfied.

2. [18]

   The defendant is a person who has served a sentence for a serious offence (s 5B(a)) and is a supervised offender within the meaning of s 5I of the Act. Further, an application has been made in accordance with s 5I.

3. [19]

   For the reasons set out in this judgment, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision and s 5B(d) is thus also satisfied.

4. [20]

   Having regard to the focus of the issues between the parties, it is not necessary that I recite all of the evidence presented on the final hearing. I have considered all of the evidence and have regard to the factors set out in s 9(3) of the Act.

The defendant’s personal circumstances

1. [21]

   The defendant is currently 52 years of age. On 4 May 2000 he was sentenced to a term of imprisonment of 16 years for a number of serious sex offences committed in 1998.

2. [22]

   In August 2014, after he was released on parole on 2 July 2014, the defendant committed further offences, including offences of break, enter and steal. He was sentenced to a further term of imprisonment of 5 years and 6 months.

3. [23]

   On 13 October 2014, Button J made a continuing detention order of 4 months followed by an ESO of 2 years, which was to commence on 20 February 2015.

4. [24]

   As required by s 10(2) of the Act, the ESO was suspended until such time he was again released into the community. He was released on 3 May 2018 and thus his ESO commenced on that date.

5. [25]

   However, he was subsequently charged with a breach of the ESO (drug-related) and was returned to custody. He was released on 29 October 2019 but was later rearrested on 21 January 2021 and charged with failing to comply with the conditions (being accessing pornography and social networking sites without approval). He was sentenced to a further 18 months imprisonment and was released on 16 January 2022.

6. [26]

   The 2014 ESO expired on 26 April 2022 and he has been subject to an ISO since that time.

7. [27]

   The defendant has spent most of his adult life in custody. Prior to his offending as an adult, he had a troubled and difficult childhood. He was hyperactive at school and was expelled from school. By 15 years of age, he was homeless. He undertook child prostitution for a period of three years. By 16 years of age, he was a resident at Cobham Youth Justice Centre. He says that he was sexually abused while he was there.

8. [28]

   He says he only had two significant relationships, one whilst he was in custody. He appears not to have any friends and, indeed, has been diagnosed with antisocial personality disorder.

9. [29]

   He has been complying with the conditions of the ISO, even though as Ms Marsden points out, it is arguable that his DSO has been adopting a somewhat restrictive approach to the conditions.

10. [30]

    Having spent most of his adult life in custody, he has struggled to adapt to life outside of prison, even under supervision in the sense that he has, very quickly on being released, engaged in further offending or failed to comply with the conditions of supervision imposed upon him.

The defendant’s criminal history

1. [31]

   In the period August to October 1998 the defendant committed a number of serious sex offences, sometimes involving robbery.

2. [32]

   On 17 August 1998, he broke into the home of a 17 year old girl, held a knife to her throat and forced her to engage in sexual intercourse.

3. [33]

   On 25 August 1998, he attempted to force a female victim into his car. When unsuccessful he pushed her against the wall and forced her to masturbate him, threatening the victim that he had a knife.

4. [34]

   On 6 September 1998, he attempted to assault a victim as she was walking through Surry Hills whilst claiming to have a knife. On 22 September 1998, he approached two women from a hiding place armed with a broom handle and demanded money.

5. [35]

   On 24 September 1998, he entered a jewellery store in possession of a blood-filled syringe and demanded money.

6. [36]

   On 18 October 1998, he returned to the same jewellery store, stole money and forced a female worker to undertake fellatio on him on two occasions.

7. [37]

   On 5 October 1998, he broke into the first floor of a home. He confronted a female victim, tied her wrists, stuffed a sock in her mouth and tied a shirt around her head. He forced the victim to masturbate him and forced her to have sexual intercourse with him.

8. [38]

   As observed by the sentencing judge, the nature of the offending fell within the higher category of offences of the type. It was sexual offending accompanied by very serious acts of violence.

9. [39]

   Approximately two months after being released on 2 July 2014, the defendant was again arrested in relation to offences of break, enter and steal which included forcing entry into the victim’s home.

10. [40]

    Prior to the serious sex offending in 1998, the defendant had a lengthy criminal history commencing when he was 13 years of age in 1983.

11. [41]

    Much of the earlier offending involves stealing and driving type offences.

12. [42]

    The offender has also been found guilty of failing to comply with the terms of his ESO, both in October 2018 and January 2021.

Risk assessment reports

1. [43]

   I am in receipt of risk assessment reports from Sarah Wright, a Senior Psychologist within the Serious Offenders Assessment Unit, whose opinions and recommendations are supported by Cherice Cieplucha, a Chief Psychologist from Risk Management Programs.

2. [44]

   The defendant’s risk of sexual reoffending is estimated to be in the well-above average risk category relative to other men who have offended sexually.

3. [45]

   The following factors have been identified as indicative of an increased acute risk of sexual reoffending:

   1. (1)

      A return to substance abuse such as amphetamines or methamphetamines;

   2. (2)

      Medication non-compliance and decline in mental health stability;

   3. (3)

      Loss of positive social influences;

   4. (4)

      Increased sexual preoccupation such as increased focus on sexual thoughts and behaviours, using sex as a coping strategy, increase in deviant sexual fantasies and excessive use of pornography;

   5. (5)

      Increased hostility such as over-expressions of anger and hostility;

   6. (6)

      Rejection of supervision; and

   7. (7)

      Victim access (when combined with some of the other acute risk factors).

4. [46]

   I have regard to these factors in assessing whether an ESO should be imposed and the type of conditions that should be imposed.

Expert evidence obtained recently

1. [47]

   Dr Dewson is a Forensic Psychologist. She assessed the defendant by AVL on 7 June 2022. She found the defendant difficult to interview. He was superficially compliant and responded to questions in vague terms. She had previously met the defendant whilst offering treatment as part of the Custody-Based Intensive Treatment (CUBIT) programme, both in 2011 and 2015.

2. [48]

   The defendant first participated in that CUBIT programme in 2010. However, his treatment was suspended due to continued reports of physical and verbal aggression towards staff and other offenders. He resumed treatment in 2011 but presented as resistant and exhibited difficulties managing his behaviour. He was given an opportunity to participate further in CUBIT in 2015 but initially declined the offer. He resumed CUBIT again for the final time in March of 2015 but was discharged on security grounds after he threatened a custodial officer and a fellow participant in the programme.

3. [49]

   He has engaged with other treatment programmes whilst in custody but denies obtaining any benefit from these programmes. He informed Dr Dewson that he has recently developed a friendship with a female in the community (albeit that has ended) but he generally has no friends and does not feel that he needs peer support. He is not looking for a new romantic relationship.

4. [50]

   He has recently moved into a private residence in Western Sydney where he shares accommodation. He believes that an ESO is unnecessary for managing his risks and that his risk factors would be best mitigated by people leaving him alone.

5. [51]

   Dr Dewson considered that the defendant presents as having a very high risk of general reoffending and a high risk of sexual recidivism. The primary factors relating to his risk of recidivism included hypersexuality, unhealthy attitudes towards sex, intimacy deficits, poor social connections, antisocial attitudes, substance abuse, impulsivity, poor coping and living an unrestructured lifestyle.

6. [52]

   Dr Dewson believes that the defendant will have difficulty managing his risks in the absence of an ESO. He could quickly return to drug use and become dysregulated, impulsive and unstable.

7. [53]

   Dr Antony Henderson is a Consultant Forensic Psychiatrist. He examined the defendant in person on 31 May 2022. He noted that he was informed that the defendant had previously been diagnosed with attention deficit hyperactivity disorder (ADHD) at around the age of 9. He was further diagnosed with a personality disorder and ADHD whilst a resident of the Cobham Juvenile Justice Home. The defendant informed the doctor that he had previously experienced a traumatic head injury but denied experiencing a personality or cognitive change thereafter.

8. [54]

   Dr Henderson diagnosed:

9. [55]

   Dr Henderson undertook the STATIC-99R risk assessment tool. Having regard to all of the information available to him, he assessed the defendant as having above average risk relevant to the typical sex-offender population or moderate to high risk of engaging in further sex offending. He considered the defendant’s criminogenic factors could be adequately addressed in the community under an ESO but that he could not be adequately managed without an ESO. He generally agreed with the conditions relating to his psychiatric diagnoses which had been imposed for the purpose of the ISO.

Conclusion as to ESO

1. [56]

   The defendant has spent most of his adult life in custody. In 1998, he committed various serious sex offences, and almost immediately on being released on parole in 2014, he reoffended by way of a break and enter offence. He was returned to prison. Since being released from prison, he has shown himself unable to comply with the conditions of the ESO first imposed in 2014. There has been some improvement this year in the sense that he has not breached the conditions of the ISO. However, he has only been in the community for a short period. Hopefully, that improvement will continue.

2. [57]

   Both the experts who examined him for the purposes of these proceedings are quite clearly of the view that he requires supervision in the community and that his risk could not be adequately managed unless he is under supervision.

3. [58]

   On a review of all of the evidence, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under the supervision of an ESO.

The conditions

1. [59]

   The central dispute between the parties relates to the conditions which should be imposed. For the purposes of the final hearing, the State provided a new set of conditions, in some respects reflecting the conditions imposed as part of the ISO, as well as reflecting the agreement between the parties.

2. [60]

   Most of the conditions are not in dispute. I was provided with a helpful summary of the conditions in dispute and the alternative proposed conditions. There are only five conditions in dispute.

3. [61]

   The Court is permitted to impose such conditions as it considers appropriate (s 11 of the Act). That necessarily involves the striking of a balance between relevant considerations so as to provide an outcome which is fit and proper (State of New South Wales v Ali). [5] The conditions must not be unnecessarily onerous. They must address identified risk factors but the risk factors must be considered in a realistic way (State of New South Wales v Ley Thomas Baker (No 2)). [6] The conditions must be related to the mitigation of the unacceptable risk (State of New South Wales v Grooms). [7]

4. [62]

   Importantly, any condition must have the capacity to reduce or mitigate the risk which is unacceptable, rather than merely being a condition which may be generally appropriate in respect of a serious violent or serious sex offender. Identifying the possibility that a particular condition might reduce or eliminate the risk without regard to the particular offender’s specific risk factors would not suffice. It is important to keep these principles in mind in assessing the conditions which the State imposes.

5. [63]

   The defendant agrees that he should provide a schedule of movements to his DSO and that he must not deviate from the approved schedule of movements except in certain circumstances. The State submits that Condition 7 should include an exception in the following terms “except in case of any circumstances which can reasonably be regarded as being an emergency. In such circumstances, the defendant is to notify the DSO of that deviation without delay.”

6. [64]

   The defendant submits that the exception should be in terms that “except in case of any circumstances which the defendant reasonably regards as being an emergency. In such circumstances the defendant is to notify the DSO of that deviation without delay”.

7. [65]

   The defendant’s wording is part subjective and part objective in that it depends on what the defendant regards as an emergency but it must be reasonable. On the other hand, the State puts forward an objective test being “which can reasonably be regarded”. It is not clear who might be the determiner or assessor of what is reasonable in all the circumstances. Presumably the assessment would be undertaken by the DSO after the event, that is, after the deviation.

8. [66]

   The same issue was before Garling J on the preliminary hearing. I am not bound to follow his Honour’s approach but I share his Honour’s views. Compliance with the condition is not determined entirely by the views of the defendant. The belief that there was an emergency needs to be reasonable. I prefer the defendant’s wording.

9. [67]

   The State seeks a condition restricting entry to licensed premises and clubs except for the purpose of participating in lawn bowls and whilst in the company of his mother. Any other attendance could only be with the prior approval of the DSO. The defendant submits there should be no such condition.

10. [68]

    The defendant’s offending has not been related to the consumption of alcohol. Dr Henderson does not support the imposition of such a condition and Dr Dewson is not fulsome in identifying the need of the condition.

11. [69]

    Further, the State’s condition would even restrict him from entering premises for the purposes of lawn bowls unless in the company of his mother. The defendant is currently 52 years of age. The idea that he could only play lawn bowls with his mother standing by is unnecessarily restrictive. It must be borne in mind that the defendant is required to provide a schedule of movements that would necessarily include any intention to enter licensed premises, whether to participate in lawn bowls or for other social reasons.

12. [70]

    I am not satisfied that Condition 23 proposed by the State is necessary or that it addresses the relevant risk factors. Condition 23 is deleted.

13. [71]

    This condition relates to the requirement that the defendant participate in drug and alcohol programmes, including one-on-one counselling sessions in relation to substance misuse as reasonably directed by a DSO. The defendant submits that the condition should be limited to the requirement to participate in one-on-one counselling sessions in relation to substance misuse. The State puts forward a broader condition which would include other programmes for drug and alcohol rehabilitation.

14. [72]

    The defendant is resistant to group-based therapy. It may be part of his antisocial disorder. Dr Dewson supports one-on-one sessions and suggests that group sessions may not be beneficial to him as it would increase his exposure to antisocial influences and individuals who are currently engaged in drug use. Dr Henderson also recommended one-on-one sessions.

15. [73]

    Again, the defendant’s approach is consistent with the expert evidence which has been recently obtained. I adopt the defendant’s wording.

16. [74]

    These conditions relate to the defendant’s possible use of pornography, that is, restricted material. Whilst I raised a concern that the defendant would not be able to understand the various classifications and categories when viewing such pornography, I was assured by the State that the descriptions of the categories are in fact classifications which would apply to any form of what is commonly known as pornography.

17. [75]

    I am satisfied that such a condition is appropriate. The State does not propose a blanket ban on assessing such pornography. It is just that the defendant must notify his DSO within 24 hours if he has purchased or been in possession of or accessed such material. The defendant opposes the DSO having any entitlement to giving any directions to him about accessing or possessing such material.

18. [76]

    I favour the State’s approach. I understand that DSOs are provided with guidelines in respect of this type of material. There must be a wide range of material available to the defendant on the internet. In circumstances in which he has spent most of his adult life in custody, it may be that he would benefit from some direction from the DSO in relation to access, viewing, possession or purchase of the material. Again, I observe that any directions must be reasonable directions.

19. [77]

    This condition relates to the defendant stopping or declining to take medication which is prescribed to him. The State seeks to impose a time limit of 24 hours on the defendant in terms of notifying his DSO that he is no longer taking the medication. The defendant suggests that there should be no precise limit but the term should be “without delay”.

20. [78]

    I agree with the defendant’s proposal in respect of the condition. Whilst “without delay” may be a broad term, it must necessarily involve some effort on the part of the defendant to provide the information to the DSO as soon as possible. There could be many things that might happen in the 24 hours after the defendant has ceased medication and I am concerned that the placing of a mandatory time limit on the defendant may be unnecessarily restrictive and, again, may create the risk of inadvertent breach of the condition. I am satisfied that the defendant’s proposed condition provides adequate protection and sufficient requirement in respect of a notification to the DSO.

21. [79]

    In all the circumstances, the conditions which I impose will be as set out in the schedule to this judgment. Each of conditions 7, 23, 24, 44 and 53 have been included in accordance with the comments that I have just made.

22. [80]

    In the circumstances, I make the following orders:

    1. (1)

       Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders Act 2006 (NSW) (the Act), the defendant is subject to an extended supervision order for a period of three years from 29 July 2022.

    2. (2)

       Pursuant to s 11 of the Act, I direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this judgment.

    3. (3)

       Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without 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.