State of New South Wales v Manners

1. [1]

   The plaintiff seeks an extended supervision order against the defendant, pursuant to s 9 of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). A summons claiming this relief was filed on 18 August 2015. The plaintiff now moves on an amended summons filed 20 August 2015.

2. [2]

   The defendant is a "sex offender" within the meaning of the Act. The definition in s 4 is:

Defendant within the definition of “sex offender”

1. [3]

   For the purposes of this definition, first, the defendant was born 28 May 1975 and is now 40 years old. Secondly, his criminal history, up to December 2008, is set out in some detail in the judgment of the Court published at the time of an earlier extended supervision order being made against him: State of New South Wales v Manners [2008] NSWSC 1376 at [5] – [9] and [18] – [26]. That history includes his conviction and imprisonment for "serious sex offences" as defined in s 5 of the Act.

2. [4]

   For the immediate purpose of identifying the basis upon which the defendant fulfils the statutory definition of a sex offender, it is sufficient to refer to his conviction on 18 December 2003 in the District Court at Bathurst on a charge of persistent sexual abuse of a child contrary to s 66EA(1) Crimes Act 1900 (NSW). His offence against that section was committed between January and October 2002. Section 66EA(1) is within Pt 3 Div 10 of the Crimes Act 1900 and the offence is (and was at the time of his offending against the section) punishable by up to 25 years imprisonment. It is, therefore, a "serious sex offence" as defined in s 5(1)(a). The defendant was, on 18 December 2003, sentenced to six years imprisonment for this offence with a non-parole period of four years nine months, commencing on 8 February 2003.

The defendant was a “supervised sex offender” when the application was filed

1. [5]

   An extended supervision order may only be made against a “supervised sex offender”: see s 5l(1) of the Act. In the case of the defendant, this prerequisite is satisfied by the circumstance that, at the date when the plaintiff filed its summons herein, 18 August 2015, he was in custody for an offence of a sexual nature. The relevant extract of subs(2) of s 5l is as follows:

2. [6]

   Pursuant to s 5(2)(c), an offence under Div 15A of Pt 3 of the Crimes Act 1900 is "an offence of a sexual nature".

3. [7]

   For the purposes of s 5l(2)(a)(ii), the circumstances in which the defendant came to be in custody for such an offence, as at 18 August 2015, were as follows. On 19 December 2008, a five-year extended supervision order was made against him pursuant to the judgment cited at [3]. That order commenced on 7 February 2009. He was not convicted of any offence committed during the currency of the order and it was, therefore, not extended by the operation of s 10. That earlier extended supervision order expired on 6 February 2014.

4. [8]

   On 19 April 2014, the defendant was arrested on a charge of possessing child abuse material contrary to s 91H(2), Crimes Act 1900. The particulars were that he was in possession of a laptop computer upon which he had downloaded from the internet child abuse material. He admitted to police that he had downloaded the material for sexual gratification and that he had done the same with respect to further material using a desk top personal computer located at his home.

5. [9]

   When the desktop computer was examined, there were found on it 13 images which contravened s 91H(2), including two images classified as Child Exploitation Tracking System ("CETS") Level 4 ("penetrative sexual activity involving children or both children and adults") and three images classified as CETS Level 3 (non-penetrative sexual activity between children and adults).

6. [10]

   The defendant was still in custody on this charge, bail refused, when he was sentenced on 29 January 2015. A term of 18 months imprisonment was imposed. This commenced on the date of his arrest, 19 April 2014, and was to expire on 18 October 2015. A non-parole period of 13 months was fixed to expire 18 May 2015.

7. [11]

   The defendant was released to parole on 18 May 2015 but his parole was revoked on 5 June 2015 following an unannounced search by Community Corrections officers of his iPad. This uncovered a pornographic image of a child. He was taken back into custody and he then served out the balance of his head sentence of 18 months (which had been imposed on 29 May 2015 for the s 91H(2) offence of April 2014) to 18 October 2015.

8. [12]

   That was the basis of his custody status when the plaintiff commenced the present proceedings on 18 August 2015. Section 91H(2) is within Div 15A of Pt 3 of the Crimes Act 1900. Hence these circumstances bring him within the statutory definition of a "supervised sex offender" in s 5I.

9. [13]

   After revocation of his parole on 12 June 2015, the defendant was charged with one offence of contravening s 91H(2) and one of using a carriage service to access child pornography contrary to s 474.19 Criminal Code Act 1995 (Cth) based upon the pornographic images which had been found on 5 June 2015 – as referred to at [11].

10. [14]

    On 15 June 2015 he pleaded guilty to these charges. He is awaiting sentence in the District Court. He has been refused bail and his custody since 18 October 2015 has been solely on account of that remand.

Core provisions governing the making of an extended supervision order

1. [15]

   The core provisions governing whether an extended supervision order may be made are ss 5B and 9 of the Act as follows:

Material considered by Drs Samuels and Martin under s 7(4)

1. [16]

   To assist the Court in determining whether a defendant "poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision" (s 5B(2)), s 7(4) provides that orders may be made for the furnishing of psychiatric reports. Pursuant to such orders made in this case, a report of Dr Anthony Samuels dated 2 November 2015 and one of Dr Martin dated 11 November 2015 have been prepared and tendered by the plaintiff. These doctors examined the defendant on 23 October 2015 and 30 October 2015 respectively. Each of them reviewed a large volume of documentary records relating to Mr Manners in the following broad categories:

   1. (1)

      Criminal and custody records from Queensland and from New South Wales.

   2. (2)

      Remarks on sentence of Judges in Queensland and New South Wales who have sentenced the defendant for offences of a sexual nature and a decision of the New South Wales Court of Criminal Appeal on appeal from one of the sentences imposed.

   3. (3)

      Records of the defendant's conduct in custody.

   4. (4)

      Reports upon the defendant's participation in sex offender treatment programs whilst in custody.

   5. (5)

      Reports of a psychologist and of two psychiatrists prepared in 2008 in support of the application for the first extended supervision order, which has been previously referred to.

   6. (6)

      Periodic reports from the Department of Corrective Services to the Attorney General of New South Wales during the period of the first extended supervision order describing the steps being taken to maintain supervision of the defendant and the nature of his responses.

   7. (7)

      Extensive case notes of Community Corrections officers, psychologists working within the Department of Corrective Services, supervisors of the defendant under the previous extended supervision order and others recording countless meetings and interactions with the defendant.

Brief criminal history

1. [17]

   Before summarising the conclusions of Drs Samuels and Martin in their recent reports regarding the desirability of ongoing supervision of the defendant and the risk of his re-offending as at November 2015, I will state briefly the history of his offending to date omitting details of terms of imprisonment or of other penalties imposed, dates of sentencing and so on.

2. [18]

   The very brief outline of this history is as follows:

Apparent risk of further offending as at 2003 and 2008

1. [19]

   By the time the defendant was sentenced on 18 December 2003 for the last-mentioned offence, the persistent abuse of his ten-year old dance class student, the defendant had been diagnosed as a paedophile according to recognised diagnostic criteria of psychiatry. His pattern of repetitious offences of the same kind – pursuing friendships and associations with adults in order to get close to their daughters, then physically abusing the children – would be enough, by itself, to suggest significant risk of repetition after his release from prison in February 2009.

2. [20]

   At that time, the risk suggested by the pattern of offences was further substantiated by reports of Dr Lewin, dated 28 November 2008, and of Dr O'Dea, dated 8 December 08. These reports recorded numerous statements by the defendant made to the doctors during their examinations, frankly acknowledging his preoccupying pursuit of sexual gratification from children.

3. [21]

   For example, he told Dr Lewin:

4. [22]

   In a similar vein, the defendant told Dr O'Dea in November 2008, amongst other things:

5. [23]

   Both Dr Lewin and Dr O'Dea found that the defendant satisfied the diagnostic criteria for paedophilia. Both considered him a risk of re-offending and referred to the high levels of recidivism which they considered to be characteristic of paedophilia. They considered that supervision such as may be undertaken by the Department of Corrective Services – with home visits, monitoring of activities and restricting his access to children and sustained psychological and psychiatric intervention – would reduce the risk. Both doctors said that the use of anti-libidinal medication was likely to be the most effective measure to help him reduce and manage the risk of re-offending.

Defendant’s compliance with first extended supervision order – February 2009 to February 2014

1. [24]

   Upon this and other evidence, the Court made the first five year extended supervision order as referred to at [3] and [7]. From its commencement, the defendant’s movements were electronically monitored until sometime in 2011 when the electronic equipment was removed because “Departmental records indicated no adverse reports in relation to Mr Manner’s compliance with electronic monitoring; therefore the electronic equipment was removed. Mr Manners continues to submit weekly schedules for his movements and activities, with no obvious deviations or unaccounted movements detected”.

2. [25]

   He continued throughout the five year term of the order to submit to its requirements. Periodic reports of the Community Corrections officer responsible for the defendant were made to the Attorney General. They recorded generally satisfactory compliance.

3. [26]

   The defendant was employed in a sign-making business from September 2008 throughout the period of the first extended supervision order. This employment continued after expiry of the order for three months until he was arrested on 19 April 2014 for possession of the child abuse material as described at [8].

Anti-libidinal medication

1. [27]

   The defendant took anti-libidinal medication for six months whilst in custody in late 2006. After that he was taking only antidepressants until about mid-2013, when he ceased that medication as well. The antidepressants were reported by the defendant to have had some effect of suppressing his sexual arousal. He stopped taking that medication against doctors’ advice. From early 2015, he resumed the antidepressants and, at some time before November 2015, he commenced taking anti-libidinal medication.

Unacceptable risk as at November 2015 under s 5B(2)

1. [28]

   Dr Samuels' conclusions about the risk of re-offending from the perspective of 2 November 2015 are captured in the following extracts from his report, which is exhibit C:

2. [29]

   Passages from Dr Martin's report of 11 November 2015 which show that he arrived at the same view as Dr Samuels' about the risk of re-offending posed by the defendant are as follows:

3. [30]

   The defendant does not oppose the making of an extended supervision order, but submits that it need not be for five years. However, at 40 years of age, on the totality of the material tendered and, in particular, those medical specialist reports to which I have referred, I am comfortably satisfied that he poses an unacceptable risk of re-offending and that the risk is highly likely to remain for at least a further five years. I am satisfied of this to a high degree of probability, as is a necessary prerequisite (under s 5B(2)) to making the order.

4. [31]

   I am aware of the variance in views amongst Judges of this division as to whether the word "unacceptable" in section 5B(2) permits consideration only of the relative degree of risk to the community or whether it requires also that account be taken of the degree of interference with the liberty of the defendant which an extended supervision order necessarily entails.

5. [32]

   The range of views has been considered in Attorney General of New South Wales v McGuire [2015] NSWSC 152 at [41] – [44] and State of New South Wales v Mackey (No 2) [2015] NSWSC 1153 at [22] – [27].

6. [33]

   It is not necessary that I make any further contribution to that jurisprudence for the purpose of deciding this case because (a) the defendant has accepted that an order may be made and this indicates that he acknowledges the existence of an unacceptable risk, which I am entitled to treat as an acknowledgment made after weighing his own interests and (b) this is such a clear case of a very high degree of risk demonstrated by the constant repetition of offending that has occurred when the defendant has not been under close supervision that I would find the community interest in protection would strongly outweigh any consideration of the imposition upon the defendant’s liberty which the order necessarily entails.

Section 9 considerations

1. [34]

   In concluding that an unacceptable risk is present and in determining to exercise the discretion in s 5B(1), I have had regard to the factors listed in s 9(3) and, in particular, the following:

Length of extended supervision order

1. [35]

   Whilst not resisting the making of an extended supervision order, the defendant has challenged the proposed length. In my opinion, the maximum permissible length of five years is appropriate to this case. I give full weight to the opinions of Drs Samuels and Martin in relation to this which I quote, first from Dr Samuels:

2. [36]

   On the same subject Dr Martin has said this:

3. [37]

   The defendant, through his counsel Mr Skinner, submitted that an extended supervision order of five years ought to be regarded as equivalent to a crushing sentence, the word "crushing" being one that is commonly used in relation to an overly severe custodial term which deprives the prisoner who is being sentenced of hope and thus impedes rehabilitation. I do not accept that the duration of a protective order of this nature should be approached in a manner analogous in any way to the fixing of sentence.

4. [38]

   Mr Skinner submitted that the defendant should be considered entitled to some shortening of the order which is now to be made to reflect the defendant’s successful completion of his first extended supervision order without breach and the fact that the offences he committed following expiry of that order, the possession of child abuse material, are relatively less serious than his earlier crimes.

5. [39]

   Without meaning to diminish the seriousness of those s 91H(2) and like offences, I accept that they are relatively less serious from the point of view of the Court when considering the making of an extended supervision order than crimes that he has been shown to have committed in the past.

6. [40]

   However, I do not regard that approach to determining the length of the order as valid. It tends to distract from the clear central purpose of the legislation, which is to provide protection to the community where a high risk of offending is strongly shown.

7. [41]

   This submission, like the earlier one concerning a “crushing” term of supervision, is affected by considerations which would be important in a sentencing decision but are not of significant weight in the exercise of this protective jurisdiction.

8. [42]

   Further, if the levels of risk with respect to the defendant should significantly change during the five-year term under the order which I propose to make, it would be open to the defendant to seek either early termination or liberalising of the conditions of the extended supervision order, pursuant to s 13 of the Act.

9. [43]

   The defendant's counsel urged that the difference in financial strength and resources of the plaintiff and the defendant should cause the Court to order a shorter term of supervision, perhaps approximating three years, and place the burden upon the State to apply again for a further such order if ongoing supervision should, at the end of the order that I am to make, seem necessary.

10. [44]

    Counsel suggested this would be preferable to making a five year order and putting the defendant in the position of having to mount an application under s 13 if the risk with respect to him should appear to have diminished within the five year period.

11. [45]

    I do not accept the proposition that this decision should be influenced by a consideration of relevant financial capacity to mount a further proceeding. The material before me provides an immensely strong case for extended supervision for at least five years and I should order the maximum duration.

The condition regarding electronic monitoring is flexible

1. [46]

   The plaintiff has sought a condition of the order that the defendant wear electronic monitoring equipment, if directed to do so by the Departmental Supervising Officer or any other person supervising him. The defendant opposes this because electronic monitoring was not found by the Department to be necessary for the whole period of the earlier extended supervision order and the defendant's compliance with his obligations to notify his movements and to adhere to those notifications was satisfactory under the previous order. He submits that a requirement to wear an electronic device would be unnecessary and that he should, therefore, not be required to suffer this intrusion.

2. [47]

   However the terms of the condition sought by the plaintiff have been moderated to recognise that, under the previous order, it was not found necessary for him to be under electronic supervision for the full duration. The term now proposed is as follows: “5. The defendant must wear electronic monitoring equipment if directed to do so [by the Departmental Supervising Officer] or any other person supervising him.”

3. [48]

   This is a very flexible proposal and will enable the supervising officers to dispense with the device if the defendant is compliant. The availability of the power in the officers to reimpose the electronic monitoring if compliance should slip following its waiver for some period would likely be beneficial in encouraging reliable reporting of movements by the defendant.

4. [49]

   I consider that this condition is justified and appropriate. In so finding I have had regard to specific statements by Dr Samuels and Dr Martin concerning the need for close or tight supervision to avoid the risk of the defendant placing himself in situations which heighten the risk of him re-offending.

5. [50]

   At p 27 of Dr Samuels' report he said the following:

6. [51]

   I refer also to the following passage at p 26, which I quoted earlier (at [28]) but will repeat:

7. [52]

   In Dr Martin's report at p 14 he made the observation quoted above (at [29]) and now repeated in this context:

Condition regarding provision of financial information

1. [53]

   The plaintiff has also sought a condition that the defendant “must provide any information relating to his financial affairs including income and expenditure if directed by his DSO."

2. [54]

   It was said by counsel for the plaintiff that financial stress could be a factor which would lead in to the defendant re‑offending and that it would be useful for the Department of Corrective Services to have early warning of this possibility through obtaining financial information. It was also said that financial records might reveal transactions from which the supervising officers might detect contact by the defendant with persons whose association with the defendant would be likely to lead him into encounters or situations involving children and increased risk of offending.

3. [55]

   Mr Emmett, counsel for the State, additionally suggested that the opportunity to examine financial records might show transactions which in themselves had some element of abuse with respect to children or precursor activity. I do not consider that the evidence establishes any of these propositions as to possible utility of the condition regarding provision of financial information. That requirement seems to me to be insufficiently connected to the purposes of the extended supervision order to warrant its inclusion.

Other conditions

1. [56]

   All of the other terms proposed by the State appear to me to be appropriate, including a condition regarding acceptance of employment, and a condition regarding association with children, both of which the State has sensibly redrafted in order to meet the reasonable requests of Mr Skinner to ameliorate the stringency of them as first proposed. Those clauses were numbered 20 and 24 as debated in argument and referred to in the transcript of proceedings. They have been renumbered as conditions 19 and 22 in the final form of the orders I am now asked to make.

Orders

1. [57]

   For the above reasons, the orders of the Court are as follows:

   1. (1)

      Pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is to be the subject of an extended supervision order for a period of five years from 18 December 2015, and pursuant to s 11 of the Act, the defendant is directed for the period of the extended supervision order to comply with the conditions numbered 1 to 46 on the schedule which accompanies these orders.

   2. (2)

      The interim supervision order made by Justice R A Hulme on 28 September 2015 pursuant to s10A of the Act is to cease to have effect from the commencement of Order 1 on 18 December 2015.

   3. (3)

      The reports of Dr Anthony Samuels dated 2 September 2015 and of Dr Adam Martin dated 11 November 2015 prepared pursuant to orders of the Court made under s 7(4) of the Act may be provided by the plaintiff to Corrective Services New South Wales, to any agency involved in the defendant's supervision and to the defendant's treating clinicians or health care practitioners.