State of New South Wales v Wilkinson (Preliminary)

HIS HONOUR:

This judgment is directed to the preliminary orders sought pursuant to s 7(4) of the Act and the making of an Interim Supervision Order (ISO) for a period of 28 days from 3 January 2021.

The defendant was born in September 1962 and is currently aged 58. He is currently serving a sentence of 10 years and 6 months imprisonment for wounding with intent to cause grievous bodily harm. His sentence will expire on 3 January 2021.

The circumstances of the index offence were that on 26 June 2010, the defendant violently attacked a female stranger on a walking track in the Blue Mountains. After following the victim along the Florabella Pass, the defendant punched the victim, forcefully, twice to her face. She fell to the ground, whereupon the defendant covered her mouth and grabbed her by the throat. The defendant said “Stop screaming, stop screaming, if you struggle I’ll kill you”. The victim attempted to grab a knife carried by the defendant but her grip slipped to the blade and she received a large gash to the palm of her hand.

The defendant managed to wrestle the knife from the victim before grabbing her pony tail and swinging her around to face the ground. He threatened to kill her before jerking the knife into her jaw causing a large wound at her jaw line which immediately bled profusely.

The victim continued to struggle and regained her footing. The defendant backed off a short distance and the victim screamed at him loudly. The defendant turned, grabbed some of his belongings and ran back down the track.

The defendant has an extensive criminal history. The offences which involved violence and weapons can be summarised as follows.

In 1980, the defendant was convicted of three charges – abduct a 15 year old girl, escape from custody and possession of a knife with intent to murder. He was sentenced to a total of 2 years imprisonment.

In 1981, the defendant was convicted of common assault of a neighbour. The sentence was deferred on the defendant’s own recognisance for 4 years with supervision.

In 1983, the defendant was convicted of robbery and assault with attempt to rob. He was sentenced to 3 years and 6 months imprisonment with a 12 months non-parole period.

In 1984, the defendant was convicted of maliciously inflicting grievous bodily harm with intent to have sexual intercourse. He was sentenced to imprisonment for 8 years with no non-parole period fixed.

In 1989, the defendant was convicted of detaining a person with intent to hold them for advantage. He was sentenced to 2 years imprisonment with a non-parole period of 18 months.

In 1993, the defendant was convicted of kidnapping and aggravated sexual assault. He was sentenced to imprisonment for 12 years and with a 9 year non-parole period.

In 1997, the defendant was charged with sexual intercourse and attempted sexual intercourse with a 13 year old. The offences allegedly occurred in 1992. He was acquitted by a jury.

In 2007, the defendant was convicted of possess/use a prohibited weapon without a permit. He was fined $100 plus court costs.

In 2008, the defendant was convicted of destroy/damage property, stalk/intimidate intending to cause fear of physical or mental harm and common assault. He was sentenced to imprisonment for 9 months, with a non-parole period with conditions of 6 months.

In 2009, the defendant was convicted of use carriage service to threaten serious harm. He was sentenced to 12 months imprisonment with a non-parole period of 6 months.

On 26 June 2010, the defendant committed the index offence and was sentenced to imprisonment for 10 years and 6 months, commencing 4 July 2010.

While in custody on his current sentence, the defendant has had two institutional charges, both involving failed drug tests.

The defendant was released on parole on 6 February 2020.

On 31 March 2020, the defendant failed a drug test. He tested positive for amphetamine and methamphetamine.

The Act is designed to address the “almost intractable problem” of how “the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release” (State of New South Wales v Donovan [2015] NSWSC 1254 at [3]).

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 protection of the community” (s 3(1)). Another object of the Act is “to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation” (s 3(2)). It follows that ESOs are protective, not punitive (Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]). This protective purpose is “fundamental” (Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21]).

Section 5B of the Act provides that the Court can make an ESO only if:

The first three requirements are satisfied. The defendant is currently serving a sentence of imprisonment (which is defined in s 5I(3) to include being released on parole). He is therefore also a supervised offender within the meaning of s 5I. The application is made in accordance with s 5I.

The fourth threshold requirement is that the Court be satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious offence if he or she is not kept under supervision.

The expression “high degree of probability” indicates something beyond “more probable than not”. The existence of the risk needs to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard (Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]).

While the Court must be satisfied to a high degree of probability that there is an unacceptable risk, that does not require the Court to conclude that the defendant is more likely than not to commit a serious offence (s 5D of the Act).

As to the meaning of the phrase “an unacceptable risk”, the case law establishes the following:

The “unacceptable risk” inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate (State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]). This was summarised recently by Rothman J in State of New South Wales v Loto [2018] NSWSC 1522 at [14]-[17]:

The Court’s role at a preliminary hearing is similar to those governing the Court’s power to make interim orders (Attorney General for the State of NSW v Hayter [2007] NSWSC 983 at [6]). The test as to whether the supporting documentation “if proved” would justify the ESO is “similar to the requirement for a prima facie case to be made out in committal proceedings” (State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]). The Court does not weigh the documentation or predict the ultimate result.

The Court must have regard to the matters set out in s 9(3) of the Act in performing its task at the preliminary hearing (see Attorney General for New South Wales v Tillman). In dealing with interim orders, the Court should give weight to the avoidance of risk (Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7]).

The Court’s task has been made simpler by the following concessions which were made for the preliminary hearing only by the defendant:

The defendant submitted that the primary area of dispute at the preliminary hearing is what are the appropriate conditions to attach to the ISO?

The unacceptable risk needs to be established to a high degree of probability and it must be an unacceptable risk of committing another serious offence.

The evidence includes a Risk Assessment Report (RAR) prepared by Senior Psychologist, Mr Ardasinski, on 11 May 2020. The RAR includes the following:

In summary, the defendant has made considerable recent progress, which is to his credit, and there are grounds for optimism. Nevertheless, the State contends that, having regard to the full history and all the mandatory considerations described below, the matters alleged in the State's supporting documentation would, if proved, justify making an ESO, including the threshold requirement that the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious offence if not kept under supervision.

The evidence, including reports from two court-appointed experts, would be considered further at a final hearing.

At the preliminary hearing and when considering whether in its discretion to grant an ISO, the Court must have regard to the matters set out in s 9(2)-(4). The evidence of the plaintiff in support of the application addresses those matters.

Dealing with those criteria in the context of this case:

Having been persuaded that there is an unacceptable risk of the defendant committing another serious offence if he is not kept under supervision or in custody, it is necessary to decide whether the Court’s discretion should be exercised in favour of making an ISO.

The mandatory considerations are set out above. Some of them operate in the defendant’s favour and some in favour of making an ESO. An additional important consideration at this discretionary stage is a consideration of the extent of the intrusion on the defendant’s liberty, privacy and related freedoms. It is clear from what is said above that the evidence before the Court, if accepted at a final hearing, would warrant the Court exercising its discretion in favour of making an ESO. It follows, therefore, that the Court should make the preliminary orders contemplated by s 7(4) of the Act.

Section 11 of the Act allows the Court to impose such conditions under a supervision order as the Court considers appropriate. This power is constrained by the scope of the Act: Winters v Attorney General of NSW [2008] NSWCA 33 at [19]. Assistance can be drawn from the purpose and statutory objects of the Act. The primary object of the Act, as provided for in s 3(1) is to provide for the extended supervision of such offenders “so as to ensure the safety and protection of the community”. Subsection (2) provides that another object of the Act “is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation”.

Important principles to be considered in relation to the imposition of conditions are:

The defendant has now been on parole continuously for 10 months. During that time, he has achieved the following:

It was common ground between the parties that the defendant’s parole conditions were currently as follows:

The defendant agreed to comply with Conditions 1-4 put forward by the plaintiff.

The defendant opposed the “Schedule of Movements” put forward by the plaintiff and put forward three conditions of his own. The conditions put forward by the plaintiff were:

The defendant put forward the following alternative conditions:

In the course of submissions, concerning the Schedule of Movements, it was put on behalf of the plaintiff that it would be premature to make a final decision as to conditions directed to a Schedule of Movements before the expert reports pursuant to s 7(4) of the Act had been obtained in relation to that subject. I can see considerable merit in that submission. In the meantime, I propose to impose the alternative conditions as to a Schedule of Movements put forward by the defendant, pending expert opinion on that issue. I have imposed the conditions put forward by the defendant with the exception of Condition 6 because they will be less disruptive to his current lifestyle.

The defendant agreed with Conditions, 8, 9, 11, 12 and 13 but opposed Condition 10 of the Conditions relating to Accommodation. The condition proposed by the plaintiff was:

The plaintiff submitted that compliance with Condition 10 was not designed to criminalise non-compliance by the defendant, but to ensure stability of accommodation to better re-integrate the defendant with the community. The defendant opposed Condition 10 on the basis that it would have the effect of imposing criminal liability on him should he fail to comply with any house rules in his approved accommodation. By way of illustration, the defendant noted that he could be facing a criminal charge carrying 5 years’ imprisonment for using an electric blanket in his room. The defendant submitted that attaching criminal liability to such behaviour as observing accommodation rules was an over-reach and the condition should not be imposed.

I accept the submission by the defendant and Condition 10 will not be imposed as part of the ISO.

The defendant agreed to comply with Condition 14 but opposed Condition 15. These conditions related to Place and Travel Restrictions.

The condition proposed by the plaintiff was:

The plaintiff pressed the imposition of that condition in that the condition addressed not only places where risk might be a relevant factor, but places where a previous victim might live or work (with the attendant risk that might flow from any such contact). The plaintiff submitted that the condition was broadly framed to allow discretion on the part of the DSO in circumstances where the index offending was opportunistic.

The defendant submitted that Condition 15 was drawn too broadly and gave to a DSO an unconstrained and unqualified power. The defendant proposed an alternative to Condition 15 as follows:

In my opinion, Condition 15 as put forward by the defendant should be imposed for the reasons given by the defendant.

The defendant agreed with Conditions 16, 17 and 18 under the heading “Employment, Finance and Education” but opposed Condition 19 put forward by the plaintiff.

Condition 19, as put forward by the plaintiff was:

The plaintiff submitted that Condition 19 was intended to address a scenario where the defendant might lapse into undisclosed substance use. The withdrawal of large sums of unexplained cash would be monitored by such a condition.

The defendant submitted that Condition 19 was part of a general suite of conditions sought by the plaintiff which had little to do with his particular risk profile and was not appropriate.

Given the defendant’s history of offending, there is force in the plaintiff’s submission and Condition 19 as drawn by the plaintiff will be included in the ISO.

The defendant objected to Condition 25, which was directed to “Non-Association - Association with Children”. Condition 25 was as follows:

The defendant submitted that Condition 25 could result in an inadvertent breach. The defendant gave the example of the house rules at his current accommodation facility which allow for children to come and stay with their fathers. The defendant submitted that any contact with a visiting child, regardless of how fleeting, would result in a breach of the condition and he would be liable to a criminal penalty.

The plaintiff submitted that the Court would be entitled to assume Condition 25 would be enforced appropriately and would not include “fleeting contact”. The plaintiff also noted that the wording of the condition referred to “association”. The word “associate” is defined in the preamble to the schedule of conditions and that definition makes it clear that it means something significantly more than “fleeting contact”.

I accept the submission of the plaintiff. Condition 25 will be included in the ISO.

The defendant objected to Condition 27(a). The condition is as follows:

The defendant submitted that Condition 27(a) was not appropriate for his current circumstances. This was because the residents at the boarding house are allowed to drink on certain evenings and the defendant has specifically gone out of his way to avoid interaction with them while they are drinking. The defendant submitted on the condition as it currently stands, any contact with a resident who had been drinking would result in a breach of Condition 27(a).

The defendant submitted that a more appropriate wording of the condition would be:

The plaintiff did not accept the condition proposed by the defendant. This was because although it met the particular problem arising from the defendant’s accommodation, it would allow association with people who were not simply in the same accommodation having a drink but people coming and visiting and consuming alcohol in the defendant’s room. The plaintiff submitted that the DSO was well aware of the particular situation prevailing at the defendant’s accommodation and would use common sense when applying Condition 27(a).

I agree with the submission of the plaintiff and that being aware of the situation, the DSO would act in a fair way towards the defendant. I propose to include Condition 27(a) in the ISO.

The defendant opposed the imposition of Conditions 29 and 30. Those conditions were:

The defendant submitted that Conditions 29 and 30 should be replaced with a single condition as follows:

The defendant submitted that the rationale behind the alternative condition was to allow him a reasonable opportunity to provide such delicate information to the other person. It was directed very much to privacy concerns in that it enabled the defendant to choose the place and manner of communicating such sensitive information.

The plaintiff submitted that the purpose of Conditions 29 and 30 was to deal with potentially risky situations and to prevent the object of the defendant’s affections becoming a victim. This was important given the nature of the defendant’s previous offending.

I have concluded that the condition proposed by the defendant should be preferred and that is the condition which will be inserted in the ISO.

The defendant objected to Condition 35 and suggested an alternative condition. The only difference between the two conditions was that in the defendant’s condition, the words “as soon as practicable” have been added to the condition proposed by the defendant for notifying a DSO about a change in his online arrangements.

I have concluded that the change suggested by the defendant to Condition 35 is not unreasonable and should be included in the ISO.

The defendant objected to Condition 40 and proposed a different condition. Condition 40 as put forward by the plaintiff was:

The condition proposed by the defendant was:

The plaintiff submitted that Condition 40 deals with encrypted messaging such as on “WhatsApp”. There a person can without detection communicate with another person and can then erase their communication history and do so in a way which is both easy to set up and communicate and easy to conceal. The plaintiff characterised that capability as “particularly concerning”.

The plaintiff submitted that Condition 40 did not prohibit the defendant from using an open service, open social media such as Facebook and using public settings. It did not prevent the defendant from using email, text messages or the telephone. The plaintiff submitted that it is not an unnecessarily restrictive condition. I agree and the condition put forward by the plaintiff will be included on the ISO.

The defendant opposed the imposition of Condition 45. This was because the form proposed by the plaintiff would allow an unconstrained power of search, far greater than is usually held by any law enforcement agency. The defendant proposed an alternate condition which he submitted still allowed for the DSO to perform a search if that officer held a reasonable opinion that a search was necessary, for reasons specified in the condition.

The condition submitted by the plaintiff was:

The condition proposed by the defendant was:

In the course of submissions, the plaintiff put as an alternative the “Search and Seizure” condition which was approved by the Court of Appeal in Baldwin v State of New South Wales [2020] NSWCA 112 at [10]. That condition was:

I have concluded that that the clause in Baldwin v State of New South Wales is appropriate and I did not understand either the defendant or the plaintiff to make submissions to the contrary.

The defendant objected to Condition 49 relating to “Personal Details and Appearance”. Condition 49 was:

The defendant submitted that it was difficult to see the justification for that condition and that in any event, much of what was required by Condition 49 was included in Condition 50, which provided as follows:

The plaintiff submitted that these were standard conditions in ESO schedules. Their purpose was to permit surveillance. The plaintiff submitted that those conditions might also operate to address detection of offending and/or escalation in risky behaviours. The plaintiff submitted that these conditions were appropriate to address risk and were not unnecessarily restrictive, given that DSO prior approval must be obtained.

I have concluded that Condition 49 serves a useful purpose, is not particularly intrusive and should be included in the ISO.

The defendant opposed Condition 52 and suggested an alternative wording. Condition 52, as put forward by the plaintiff was:

The alternative wording suggested by the defendant was:

I have concluded that the insertion of the additional words is appropriate and that Condition 52 in this form should be included in the ISO.

The defendant objected to Condition 53 and suggested an alternative wording. Condition 53, as put forward by the plaintiff was:

The alternative wording put forward by the defendant was:

The defendant submitted that his physical health is irrelevant to previous offending and to the risk of future offending. He submitted that his problems had to do with mental health and substance abuse and that the condition should be restricted to those matters.

I agree with the submission by the defendant.

The defendant opposed the inclusion of Condition 54 put forward by the plaintiff. That condition was:

The defendant submitted that because his mental health was the real issue, the matters set out in Condition 54 were already covered by Condition 52.

The plaintiff disagreed with that proposition and submitted that Condition 54 had a rehabilitation purpose and appropriately added to the requirements in Condition 52.

I agree that Condition 54 does have a rehabilitation purpose and should be included in the ISO.

The defendant objected to Condition 57 and suggested an alternative wording which would merge Conditions 57 and 58.

The wording of Conditions 57 and 58 put forward by the plaintiff was:

The alternate condition proposed by the defendant was:

The defendant had a further objection to the wording of Condition 58. The defendant submitted that the NSWPF and CSNSW were very large organisations and that there was no logical basis for why information concerning the defendant should be shared with persons who knew nothing about him. The defendant submitted that the provision as currently worded was too wide and should only refer to police in the ESO team but not beyond.

In the course of submissions relating to these conditions, it was accepted by counsel for the defendant that there was a potential for the defendant to have disclosed to a medical professional that his sexual urges had increased and/or that he had developed an obsessive preoccupation with a particular female. This may be a disclosure made to a doctor, whom the defendant was seeing for a physical ailment, not for mental and psychological issues. The communication of that information to other medical practitioners would be important for the defendant receiving appropriate treatment and would be particularly relevant to his risk of re-offending.

I have concluded that despite their intrusive nature, the suite of conditions put forward by the plaintiff are better able to pick up the sort of problem just referred to, i.e., the development of a criminogenic risk factor being communicated to one of the plaintiff’s treating doctors.

Accordingly, the conditions put forward by the plaintiff will be inserted in the ISO.

However, in relation to Condition 58, I agree with the defendant’s complaint that as currently formulated, the condition is too broad and should only refer to those members of the police force who are in an ESO team.

It follows from the above that the following orders should be made: