State of New South Wales v CD (Preliminary)

1. [1]

   By Amended Summons filed in Court on 27 October 2021 the plaintiff seeks interim and final relief under the Crimes (High-Risk Offenders) Act 2006 (NSW) (the “Act”).

2. [2]

   The interim orders sought comprise an order under s 7(4) of the Act for assessments by two qualified psychiatrists and or psychologists as well as orders under s 10A of the Act that the defendant be subject to an interim supervision order (ISO) from midnight on 5 November 2021, for a period of 28 days (s 10C(1) of the Act), and that pursuant to s 11 of the Act, the defendant comply with a suite of 58 conditions set out in the Schedule to the Amended Summons.

3. [3]

   For the purposes of the preliminary hearing only, the defendant does not oppose the appointment of two experts and does not oppose an ISO for a period of 28 days commencing on 5 November 2021.

4. [4]

   The defendant does oppose some of the conditions in the Schedule to the Amended Summons. He argued through his counsel, Ms Cook, that a more appropriate approach would be to have the conditions attached to any ISO reflect his present parole conditions.

5. [5]

   For the reasons that follow, which have of necessity been abbreviated given the time pressures affecting the delivery of this judgment, I have concluded that an ISO should be made, but the conditions of that ISO should correlate to the 17 parole conditions to which the defendant is currently subject and has been subject since his release to parole on 14 October 2021.

6. [6]

   The reasons for this approach are in summary, first, the current parole conditions directly and adequately address any risk to the community presented by the defendant. Secondly, and significantly, they have a simplicity and clarity which the constellation of conditions proposed by the plaintiff do not. Thirdly, they are not overly paternalistic or inflexibly prescriptive. Fourthly, they are able to be understood and followed and they seem to have been functioning adequately over the last two weeks. Fifthly and importantly, they do not tend to unnecessarily criminalise uncontroversial and irrelevant elements of potential behaviour by the defendant. Sixthly, they tend to facilitate the necessary pursuit of the objects of the Act, the primary object of course being protection of the community, but the secondary object of rehabilitation of the offender which in turn has a role in increasing and improving the potential safety of the community.

7. [7]

   Without in any way diminishing the seriousness of the index offending I observe that the offending took place when the defendant was a poorly educated, immature 18 years old and with a young woman who was his girlfriend at the time.

8. [8]

   The defendant is now 23 years old. He has had a childhood marred by significant educational disruption, instability in caregivers, trauma, domestic violence, neglect, abuse and mental health problems namely bipolar disorder and chronic PTSD.

9. [9]

   Given his diagnosed mental illness and the complexity of his presentation and background, the Court will be assisted by current and comprehensive assessments by an independent psychiatrist and psychologist as to current risk, before considering the necessity or otherwise of imposition of some or all of the more invasive and pre-emptory package of conditions proposed by the plaintiff.

The evidence

1. [10]

   The plaintiff read two affidavits of David Yang affirmed 1 September 2021 and 21 October 2021 respectively.

2. [11]

   Exhibited to the 1 September 2021 affidavit of Mr Yang was the customary huge volume of material, here, 448 pages in length.

3. [12]

   The material included documents relevant to the considerations set out in s 9(3) of the Act that I must take into account when deciding whether the test has been met to make an ISO.

4. [13]

   It included the defendant’s Criminal History and Bail Report, his Inmate Profile document, and a Convictions Sentences and Appeals Report. There was a relatively recent Risk Assessment Report dated 31 March 2021 authored by a psychologist Sarah Wright which contained the opinion that the defendant presented as a well above average risk of future sexual offending and that potential offending would most likely occur in relation to a vulnerable teenage female. [1]

5. [14]

   A Risk Management Report authored by Chantelle Hodgkinson and Kelly Grabham dated 5 May 2021 set out views on management.

6. [15]

   I note both the Risk Assessment and Risk Management reports pre-dated by some months completion by the defendant of the HISOP course (High Intensity Sex Offender Program) on 29 September 2021.

7. [16]

   There are documents regarding the index offending which comprised various counts of sexual intercourse with a child above the age of 14 years and under the age of 16 years between 19 April and 13 May 2017, including the remarks on sentence of Girdham J and the Statement of Agreed Facts to which I will return.

8. [17]

   There was other sexual offending involving a young person in July 2016. The Agreed Facts on Sentence, Police Facts Sheet, Pre-sentence Report and transcript of remarks on sentence will be relevantly summarised at pars 32 to 35 of this judgment.

9. [18]

   Counsel for the plaintiff Ms Heath emphasised that whilst not the index offending, this offending is relevant in that it indicates another incident of sexual offending in relation to a child aged 14.

10. [19]

    There is material regarding one relatively recent incident of assault occasioning actual bodily harm in January 2018 which involved an altercation between the defendant and another inmate whilst in custody.

11. [20]

    There is a great deal of material regarding offending by the defendant whilst he was a juvenile. The circumstances of that offending largely involved fights or altercations with other boys or persons living with him in institutions under the care of the Minister, or damage to property at such institutions.

12. [21]

    Also exhibited to the affidavit of Mr Yang, and of perhaps more relevance although mostly rather outdated, is a selection of psychological and psychiatric reports. These reports confirm the defendant’s diagnosis of bipolar disorder. A number of the reports refer to the difficulty the defendant’s mother has had with managing the defendant’s mental illness and his volatile temper and impulsivity commenting on his severe fluctuating levels of distress and his engagement in high risk behaviour including promiscuity, assaults, substance use and self-harm with suicidal intent when his mood was down.

13. [22]

    In a report authored by Dr Kenneth Nunn, Senior Consultant Child and Adolescent Psychiatrist dated July 2011, Dr Nunn confirmed the diagnosis of bipolar disorder and the need to manage this condition by medications namely valproate and ziprasidone, to try and help educate the defendant in ways to manage his anger responses, and to work with the family and reintegrate him back to school. Dr Nunn’s opinion was that the aggressive outbursts were associated with the trauma of the defendant’s own sexual abuse and that of his sister for which he has been accused as the perpetrator.

14. [23]

    In a report dated 4 May 2012, Dr Nunn described the then current diagnosis as Bipolar Disorder Type I, as well as Chronic Complex Post-Traumatic Stress Disorder secondary to exposure to neglect, abuse and intense interpersonal conflict, and Conduct Disorder.

15. [24]

    There is a report of Claire Baker, Consultant Forensic Psychologist, dated 6 April 2018 that appears to have been obtained for tender on sentence regarding an assault charge in April 2018. Ms Baker described the defendant as a man with “a very complex history including long-standing diagnoses of PTSD, bipolar disorder and a possible diagnosis of borderline personality disorder” and that he has a long criminal and incarceration history dating back to his early teens, having spent much of his adolescent years in and out of remand with the vast majority of his offending being related to his tendency towards impulsivity and aggression. She noted that the defendant:

16. [25]

    A 2020 pre-release report by Ben Neville, Assistant Manager Wagga Wagga Community Corrections, sets out various matters including that the defendant’s circumstances at the time of the index offence included daily use of heroin, use of methamphetamines some weeks and cannabis regularly and that he was struggling with mental health. Mr Neville observed that the index offence was the defendant’s second conviction of a sexual nature and that both respective convictions related to under-aged victims who were reportedly partners of the defendant at the time and that the defendant related that there was some level of confusion around the age of the victim and that he was not certain whether she was over the age of 16, however the Agreed Facts of the offence seemed to contradict that statement, reporting that the victim had told him her actual age and he replied he was “okay with that” and that his ex-girlfriend was a year younger.

17. [26]

    There were supplementary pre-release reports dated 9 October 2020 and 15 October 2020 which indicated that the defendant had then agreed to accept inclusion into HISOP, the custodial program directed to sexual offenders to address offending behaviour.

18. [27]

    A selection of HISOP progress notes dating from 30 November 2020 to 29 September 2021 were also tendered which showed, to my reading, reasonable engagement with the program and some gains in insight and understanding, although the defendant maintained his position that he was not as bad as other sex offenders because the young persons concerned were his girlfriend(s) at the time.

The index offending (and relevant earlier sexual offending)

1. [28]

   The index offending occurred in April 2017 when the defendant was 18 years old and the victim was 15 years old. He was on parole at the time having been convicted of an offence of robbery with an offensive weapon. He was also subject to bail conditions in relation to the earlier sexual offending that had occurred in 2016 when he was aged 18 and the complainant was 14 years of age.

2. [29]

   The description of the index offending has been extracted from the plaintiff’s written submissions: [2]

3. [30]

   Girdham J observed that each offence fell “below the middle of the range” for offences of that type and that the age difference between the defendant and the victim was less than often seen in cases of this kind. Her Honour made a finding that he showed a callous disregard for his victim and had taken little responsibility for his acts and that he showed little understanding of the legacy of regret and damage that he has left behind.

4. [31]

   Girdham J observed that there were reasonable prospects of rehabilitation given his motivation to reform himself, his young age and the process of maturity that he needed to undergo, and the ongoing support he has from his brother and mother but that he needed to take full responsibility for his acts and makes good his stated motivations. He was sentenced to a period of imprisonment of 3 years and 6 months with a non-parole period of 2 years and 4 months.

5. [32]

   The earlier sexual offending occurred in 2016 when the defendant was 18 and the victim was 14 years old. It was the subject of agreed facts, summarised as follows: [3]

6. [33]

   The defendant was interviewed in relation to this offending. He initially denied having a sexual relationship with the AF. When he was presented with the video recordings, he accepted his sexual involvement with her but stated she had told him she was 16 years of age. When he was interviewed by Community Corrections he said that he recorded the offences “because AF requested the incident to be recorded”. This seems to be at odds with her attitude in the recording.

7. [34]

   Whilst he was on bail, the defendant and ME exchanged sexually explicit images. He was charged with two further offences (H64841615): Use carriage service to send indecent material to a person under 16 and Possess child abuse material.

8. [35]

   The defendant entered pleas of guilty to all charges and was sentenced by his Honour Magistrate Keady on 23 May 2017, who accepted that “this is not a case of a much older man exploiting the vulnerabilities of a very young woman or girl”, and that the age difference is less than many cases. His Honour was critical of the fact that the second set of offending occurred at a time when the defendant was on bail and subject to explicit bail conditions protective of the victim, and regarded his access to ME as “manipulative” and done with a consciousness that he “was doing something wrong and prohibited.”

9. [36]

   His Honour concluded:

10. [37]

    Taking into account that he had already spent 7 months in custody, his Honour ultimately imposed a sentence of imprisonment of 12 months but suspended the execution of that sentence with conditions.

The relevant legislative provisions and principles

1. [38]

   The principles and statutory framework are set out relevantly in the plaintiff’s written submissions: [4]

2. [39]

   Section 11 of the Act provides for a discretion to direct the defendant to comply with such conditions as the Supreme Court considers appropriate, including but not limited to directions requiring the offender to do or not to do certain things set out in s 11(1) of the Act.

3. [40]

   It is sometimes suggested that the list of matters set out in s 11(1) of the Act are mandatory. I do not agree with that interpretation, although it certainly sets out the type of conditions that could to be considered, and, if appropriate, imposed.

The issues between the parties

1. [41]

   The area for dispute was confined to the nature and form of the conditions that should comprise the ISO.

2. [42]

   The plaintiff via its counsel Ms Heath in effect submitted that the only proper containment of risk, pursuit of the objects of the Act, and provision for safety of the community was the package of conditions appended to the Amended Summons.

3. [43]

   The defendant, via his counsel Ms Cook, submitted that the acknowledged risk could be managed by the carrying over into the HRO regime of the 17 conditions of parole currently in place.

4. [44]

   The current parole conditions are set out in the Schedule to this judgment.

Decision

1. [45]

   The statutory preconditions set out in ss 4, 5, 5A and 5I of the Act have been met.

2. [46]

   I am satisfied that the concessions made by the defendant in that regard were properly made.

3. [47]

   I am also satisfied to a high degree of probability, having considered the mandatory matters under s 9(3) of the Act, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. That conclusion is reached based on the relatively low threshold that applies at this preliminary stage to the effect that the matters in the supporting documentation would, if proved, justify the making of an ESO.

4. [48]

   For the reasons set out in par 6 of this judgment, I am persuaded that the current conditions of parole comprise appropriate conditions of the ISO to manage the risk presented by the defendant.

5. [49]

   Psychiatric and psychological examinations should be arranged as contemplated in order 1 of the Amended Summons.

Order

1. [50]

   The plaintiff is to file and serve a Short Minute of Order within 24 hours reflecting the reasons for judgment.

   1. (1)

      You must be of good behaviour.

   2. (2)

      You must not commit any offences.

   3. (3)

      You must report to a DSO at the times and places directed by the officer.

   4. (4)

      You must comply with all reasonable directions from a DSO about:

   5. (5)

      You must comply with any other reasonable directions from a DSO.

   6. (6)

      You must permit a DSO to visit you at the place where you live at any time, and permit the officer to enter the premises when they visit you.

   7. (7)

      You must notify a DSO if you change your address, contact details or employment. You must do this before the change occurs if practicable, or within 7 days of the change occurring.

   8. (8)

      You must not leave New South Wales without permission from the Commissioner of Corrective Services NSW.

   9. (9)

      You must not leave Australia without permission from the Commissioner of Corrective Services NSW.

   10. (10)

       You must submit a schedule of proposed activities to a DSO for approval if directed to do so by the officer.

   11. (11)

       You must submit to electronic monitoring.

   12. (12)

       You must comply with all reasonable directions from a DSO or Electronic Monitoring Officer about electronic monitoring.

   13. (13)

       You must not remove, tamper with, damage or disable your electronic monitoring equipment.

   14. (14)

       You must not use a prohibited drug or substance, except those that have been prescribed to you.

   15. (15)

       You must, if so directed by a DSO, participate in the following intervention, CSNSW Psychology.

   16. (16)

       You must comply with all directions of the mental health team, including treatment and medication (and if applicable, the conditions of a Community Treatment Order).

   17. (17)

       You must not contact, communicate with, watch, stalk, harass or intimidate the victim/s.

   18. (18)

       You must not be in the company of a person under the age of 16 years unless accompanied by a responsible adult, as determined by a DSO. You also must not engage in written or electronic communication (including through social media) with any person under the age of 16, other than with those approved by your Officer.

   19. (19)

       You must comply with all conditions and requirements of the Child Protection Register.