State of New South Wales v Joensen (Final)

1. [1]

   A summons filed on 28 May 2019 seeks final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that the defendant be subject to an Extended Supervision Order (“ESO”) for a period of 5 years and that he comply with conditions of the ESO prescribed by the Court.

2. [2]

   An Interim Supervision Order (“ISO”) was granted by Ierace J in State of New South Wales v Joensen (Preliminary) [2019] NSWSC 1106 on 28 August 2019 (to commence on 29 August 2019) and the defendant is currently subject to the conditions appended to that judgment.

3. [3]

   It was accepted by the defendant through written submissions for the final hearing that the statutory indicia are fulfilled for the making of a final order for the period sought, noting “this is an inevitability, based on his history of offending”, but some issue was taken regarding a number of the proposed conditions.

4. [4]

   Ongoing discussion between the parties further narrowed the issues to only the question of the necessity for the weekly schedule of movements. That remaining issue was resolved after oral evidence from Dr Martin and Dr Furst on 18 November 2019 with the addition of a further note to proposed condition 8.

5. [5]

   Despite the now complete resolution of controversy between the parties, the Court still needs to address the statutory tests and survey the evidence. This can now be done in shorter compass than would otherwise be necessary.

6. [6]

   This judgment will first set out the relevant background extracted from the preliminary judgment, second, set out the statutory requirements for the final ESO and the evidence tendered that fulfils those requirements, and finally comment on the appropriateness of the agreed conditions within that context.

Background

1. [7]

   The background to this application was set out by Ierace J in State of New South Wales v Joensen (Preliminary) [2019] NSWSC 1106 at paragraphs [6]–[14]:

Legislative scheme and legal principles

1. [8]

   The objects of the Act are set out in s 3:

2. [9]

   The objects must be borne firmly in mind when making any orders under the Act.

3. [10]

   The procedural requirements set out in ss 5B(a)-(c) and 5I of the Act have been met. There is no issue in that regard. The issues for determination are limited to whether the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision (s 5B(d)), and if so, what are the appropriate conditions to impose pursuant to s 11 of the Act.

4. [11]

   The principles for the necessary evaluative task are well known and set out in succinct form in paragraphs [12]-[18] of the plaintiff’s written submissions:

Section 9(3) considerations

1. [12]

   I must have regard to the factors set out in s 9(3) of the Act.

2. [13]

   Both of the Court appointed experts are of the view that the defendant remains at high risk of re-offending. During oral evidence on 18 November 2019, Dr Furst articulated a significant concern about the level of risk of re-offending associated with the defendant, volunteering “He worries me…overall”. [8]

3. [14]

   Dr Furst assessed the defendant on 23 September 2019, having previously coincidentally assessed him in November 2016 for a pre-sentence report. He noted the lengthy history of sexual deviance/paraphilia (BDSM), the interest in pornography, especially involving bondage or rape fantasies from age 16 and that the defendant found it more arousing than mainstream pornography. Dr Furst also noted the defendant described to him a tendency to turn to BDSM when he felt bad emotionally.

4. [15]

   Dr Furst noted the defendant told him that his sexual offending was “a power trip”, and he is vulnerable to offending when he feels powerless and the “world is against him”.

5. [16]

   His paraphilia is the most relevant clinical disorder. There is also an underlying personality disorder and a tendency to decompensate under stress and self-harm.

6. [17]

   Dr Furst concluded that the defendant poses a “much higher” risk of committing a further serious offence of a sexual nature than the typical male sex offender and that that risk is unlikely to change in the foreseeable future hence the need for long term assertive monitoring and management.

7. [18]

   Dr Furst concluded that the risks are best managed through ongoing assertive community measures, including consistent supervision, scheduling and monitoring, participation in psychological counselling and treatment in accordance with the proposed ESO.

8. [19]

   In his oral evidence Dr Furst noted the usefulness of planning a schedule of activities as something that would reduce anxiety and social isolation as “the therapy itself is actually planning to go out and do things rather than staying at home”. [9] Dr Furst also said it would be “artificial” for the Court to impose a time frame for relaxation of schedule of movements because it may coincide with an unsuitable time to do so, for example, [10] three years from now he may be depressed and so at risk, [11] and “…it’s impossible to say how he will go”. [12]

9. [20]

   Dr Furst also noted that the defendant was on the Child Protection Register when he re-offended. [13]

10. [21]

    Dr Martin interviewed the defendant on 11 September 2019. In that interview the defendant denied any attraction to children but acknowledged that children have been his victims as they were “easier to groom” and there was more opportunity to offend using bondage against children as they were easier to dominate. He described interest in bondage, discipline and sadomasochism “because of control issues” and admitted to sexual fantasies of that type.

11. [22]

    The defendant told Dr Martin that he viewed “rape porn” and that he has previously spent up to three hours per day watching this, two or three times per week. He attributed viewing this type of pornography to emotional problems. He denied paraphilic fantasies, but acknowledged that he was potentially at risk of further re-offending given his past history stating: “it’s a part of me”.

12. [23]

    Dr Martin concluded that the primary psychiatric diagnosis is sexual sadism disorder and that he qualifies for other paraphilic disorders including paedophilic disorder and behaviours consistent with voyeuristic disorder. Dr Martin described these disorders as “chronic and enduring and are highly likely to be relevant and associated with future risk to others in the foreseeable future”.

13. [24]

    Dr Martin concluded:

14. [25]

    In terms of future risk Dr Martin concluded:

15. [26]

    In his oral evidence Dr Martin agreed with Dr Furst that scheduling of movements (as well as electronic monitoring) was important:

16. [27]

    A number of the assessments referred to under this consideration are many years old, however I have referred to them as they illustrate the long term nature of the impulses and the chronicity of the focus and behaviour of the defendant.

17. [28]

    The defendant reported being aware of impulses to carry out acts similar to his 1987 offending (set out at [7] above) since he was 15 years old.

18. [29]

    Paedophilic interests were noted but it was not possible to say how ingrained those were at that stage.

19. [30]

    Mr Hodge concluded that the defendant was “deeply disturbed and potentially dangerous” and that his sexual behaviour was “entrenched, compulsive and fetishistic”, noting little control over his thoughts, fantasies and images relating to sexual activity in the context of bondage and mastery. Mr Hodge had no confidence that the defendant would not re-offend.

20. [31]

    Mr Wallis concluded that the defendant had developed a sexual fixation on pre-pubescent and pubescent females and had paedophilic bondage fantasies.

21. [32]

    Reference was made to a bullied and isolated childhood during which there were revenge and control fantasies. Mr Taylor took the view that the offending behaviours were attempts to gain revenge on women and more generally on society.

22. [33]

    Dr Allnutt concluded that the defendant’s domination fantasising had become progressively more complex and entrenched. He developed strong feelings of anger and resentment towards women which manifested in rape fantasies and the fantasies became more detailed as he reached his later teen years, principally revolving around humiliation and power.

23. [34]

    Dr Allnutt assessed the defendant as presenting a significant concern for future sexual recidivism, because of his underlying paraphilic disorder.

24. [35]

    Ms Dewson referred to the way in which the defendant has developed long term sadistic and concerning fetishes against a background of sound difficulties. The effect of her opinion is helpfully set out in [83] of the plaintiff’s written submissions noting that the defendant:

25. [36]

    Dr Furst considered the defendant’s level of psychosocial adjustment to be relatively poor, and he has chronic impairment in this respect by virtue of his chronic depression, anxiety and personality disorder, notwithstanding previous therapy interventions including CUBIT. Dr Furst noted the defendant met the criteria for paraphilia, pervasive depressive disorder (chronic dysthymia), panic disorder with agoraphobia/social phobia and borderline personality disorder. In terms of the likelihood of recidivism, Dr Furst stated that the defendant’s offences are likely driven by his sexual deviance, specifically paraphilia/sadomasochism. He belongs to a group of adult male sex offenders generally considered to be at a moderate to high risk of re-offending.

26. [37]

    Ms Tulloh concluded based on the risk assessment tools that the defendant was in the high-risk category of sexual re-offending.

27. [38]

    I adopt and agree with the evidence extracted by Ierace J in respect of this issue at [37] to [39] of his judgment. [16]

28. [39]

    I agree with and adopt the analysis of Ierace J in respect of these considerations at [40] to [41] of his judgment. [17]

29. [40]

    The criminal history has been set out in [7] of this judgment. Obviously there is a disturbing pattern to the defendant’s criminal history.

Conclusion as to the statutory basis for imposing an ESO

1. [41]

   I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision. I accept in full the plaintiff’s written submissions [18] as to why I should reach this view:

2. [42]

   The evidence is replete with repeated references to significant concerns as to the entrenched and chronic nature of the impulses and fetishes that the defendant wants to and has on previous occasions acted out. His propensity to choose children or people he can dominate as his victims serves to underscore this unacceptable risk.

Conditions

1. [43]

   The principles and considerations to be taken into account when determining what conditions are appropriate were usefully collected in State of New South Wales v Sturgeon (No.2) [2019] NSWSC 883 by Garling J:

Consideration

1. [44]

   Ultimately the parties negotiated and agreed upon the form of conditions of the ESO. I am satisfied these conditions are appropriate and indeed necessary for mitigation of the risks that the defendant poses.

   1. (1)

      Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) Adrian Scott Joensen be subject to a high risk offender extended supervision order for 5 years from today.

   2. (2)

      Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) for the period of the high risk offender supervision order that Adrian Scott Joensen comply with the conditions set out in the Schedule to this judgment.