State of New South Wales v DJM (final)

1. [1]

   FAGAN J: This is the final hearing of a summons filed by the plaintiff on 24 October 2022 seeking an extended supervision order of two years duration in respect of the defendant, pursuant to ss 5B and 9 of the Crimes (High Risk Offenders) Act 2006 (NSW). The defendant is presently subject to an interim supervision order made by Wright J on 3 February 2023. That order was renewed by order of Yehia J made on 1 March 2023 and is due to expire on 5 April 2023.

2. [2]

   The first of the statutory criteria upon which the defendant may be liable to the making of an extended supervision order is that he is an "offender who [has served] a sentence of imprisonment for a serious offence": s 5B(a). In 2008 and 2009 the defendant committed three counts of sexual assault of a child under 16 years of age contrary to s 61J(2) of the Crimes Act 1900 (NSW) and three offences relating to child abuse material contrary to ss 91G and 91H. He was arrested on charges for those offences in October 2009. He pleaded guilty in the Local Court and was sentenced on 20 February 2012. His total effective sentence, after reduction in the Court of Criminal Appeal, was to a term of 13 years and 4 months imprisonment, which commenced on 8 October 2009 and expired on 7 February 2023, with a non-parole period of 10 years that expired on 7 October 2019. The defendant was released to parole under supervision on 13 September 2021.

3. [3]

   The second criterion for the making of an extended supervision order is that the defendant is "a supervised offender" within the meaning of s 5I: s 5B(b). The defendant satisfies that requirement in that, when the plaintiff's summons was filed, he was serving the balance of his sentence for a serious offence on parole under supervision.

4. [4]

   Thirdly, the plaintiff's application is required to have been made in accordance with s 5I: 5B(c). That requirement is met in this case by the circumstance that when the plaintiff's summons was filed the applicant was still serving the parole period of his sentence for the offences of 2008 and 2009 and he was within the last 9 months of that term.

5. [5]

   The fourth and final criterion is the substantive question of whether the Court "is satisfied to a high degree of probability that [the defendant] poses an unacceptable risk of committing another offence if not kept under supervision" under an extended supervision order: 5B(d). That is to be determined having regard to the safety of the community as the paramount consideration, under s 9(2), and taking into account the matters listed in paras (a) to (i) of s 9(3).

6. [6]

   The defendant in this case does not oppose the making of the order and he makes no submission about the duration of it, if made. The defendant takes issue with only one of the conditions that are sought by the plaintiff pursuant to s 11. Notwithstanding the defendant's lack of opposition to the making of an order it is incumbent on the Court to satisfy itself that the pre-condition in s 5B(d) is met and to give reasons for so finding.

The Index Offending

1. [7]

   The defendant was born on 24 May 1970. In 2008 and 2009 at age 38 to 39 years he resided at Rosebery. At that time five children were periodically in his sole care. The oldest of the children was a girl aged 12 to 13 years during 2008 to 2009. She is the complainant in relation to the three counts of aggravated sexual assault that are the index offences forming the basis of the present application.

2. [8]

   The complainant and the next three children in order of age, all of whom were at times in the defendant's care, were his step-children. He had been married to their mother between December 2001 and about June 2003. The couple were divorced and living apart in 2008 and 2009. The fifth and youngest child who was at times in the defendant's care was a son born to the defendant and his estranged wife. That boy was aged about seven years at the time of the index offending.

3. [9]

   The three counts of aggravated sexual assault involved full penile-vaginal penetration and digital penetration. The sentencing judge recorded in her remarks on sentence that answers given by the defendant in a recorded police interview showed his sexual intercourse with this child on three spread over about 10 months, from December 2008 to early October 2009, was seen by the defendant "as part of normal activity".

4. [10]

   The offences concerning child abuse material included that the defendant directed the complainant to pose naked with her legs open and took multiple photographs that he disseminated to an adult male associate. Another offence concerned him setting up a webcam and filming himself having intercourse with the complainant. This activity was live-streamed to another adult male recipient.

Earlier criminal record

1. [11]

   In October 2001, at age 31, the defendant committed two offences of sexual intercourse with a 14-year-old girl. The first offence involved digital penetration of the young girl's vagina and the second involved oral intercourse with her. The defendant was at that time engaged to the aunt of the victim and the aunt is the woman whom the defendant subsequently married, the mother of the complainant in relation to the 2008 to 2009 index offences. There is no evidence that the victim of the 2001 offences was forced.

2. [12]

   The defendant was sentenced to concurrent terms of 2 years for each of the 2001 matters, each of them with a non-parole period of 1 year. It was after his release to parole in June 2003 that his wife, the mother of the complainant in the index offences, separated from him and they divorced. Also at that time The defendant was recorded on the register maintained under the Child Protection (Offenders Registration) Act 2000 (NSW).

Risk assessment report by Corrective Services

1. [13]

   A senior psychologist of the Serious Offenders Assessment Unit within Corrective Services prepared a risk assessment report in relation to the defendant dated 27 July 2022. By the application of an actuarial tool for assessing static risk factors the senior psychologist found the defendant to be an "above average" risk of repeat offending of the same type. The actuarial measure of dynamic risk factors indicated "a high density of criminogenic needs relative to other male sexual offenders". In combination the static and dynamic factors indicated to the senior psychologist an "above average risk level" of re-offending. Underlying these assessments the senior psychologist found that from a young age the defendant had struggled to maintain a stable intimate relationship with any age appropriate partners. Social isolation, loneliness and increased time with children had contributed to his past offending. He was found to have poor insight into his crimes.

2. [14]

   At interview with the senior psychologist the defendant blamed his victims for having initiated sexual contact and claimed his webcam filming of the sexual intercourse with the complainant of 2008 to 2009 was an accident. From a judicial perspective such a lack of insight is a negative indicator for prospects of rehabilitation. From the senior psychologist's perspective it limits the benefit that the defendant might otherwise have gained from such sex offender programs as he has undertaken and/or may in the future undertake. The senior psychologist stated that both past episodes of sexual offending, separated by about seven or eight years, were against pubescent females and followed from the formation of a family connection and a period of familiarity.

3. [15]

   The senior psychologist has expressed the opinion that if an extended supervision order were to be made the conditions might usefully be directed to limiting the risk of such a scenario being repeated and/or providing a means for Community Corrections to identify such a situation, if it were developing, and to intervene to limit the risk of it progressing to the commission of further offences.

Reports of Court appointed experts

1. [16]

   Pursuant to Wright J's orders of 3 February 2023 Dr Marcelo Rodriguez, psychologist, and Dr Calum Smith, forensic psychiatrist, were appointed under s 7(4) of the Act. They have furnished reports, both dated 6 March 2023. On the basis of an extensive interview and a wide ranging review of the defendant's history, including reports on him by personnel of Corrective Services, Dr Rodriguez concluded he meets the criteria for diagnosis of paedophilic disorder according to the Diagnostic and Statistical Manual of Mental Disorders 5th ed (“DSM-5”). Dr Rodriguez found this diagnosis fell within the non-exclusive heterosexual type. He said this:

2. [17]

   Further, Dr Rodriguez referred to the defendant's history of a depressive disorder, probably since the early 2000s. He is of the opinion this is likely to meet DSM-5 criteria for persistent depressive disorder. He said the defendant's depression "seems to wax and wane" and that he "continues to manifest depressive symptoms as highlighted by his reported symptoms during this interview". The doctor said following with respect to the chronicity and likely duration of the defendant's paedophilic disorder:

3. [18]

   Dr Rodriguez provided the following conclusion as to whether the defendant's risk of reoffending could be managed in the community under an extended supervision order:

4. [19]

   Dr Smith similarly conducted an interview with the defendant and made a comprehensive examination of written records in relation to him. At p 39 of his report he made the following diagnoses:

5. [20]

   Dr Smith concluded there is reason to be wary of the defendant's progress and ongoing risk, given issues around his lack of insight and lack of reflective capacity. \ Dr Smith did not consider the defendant could be managed simply by maintaining him on the Child Protection Register. He pointed out the defendant was on that register in 2008 and 2009 when the index offences were committed. He expressed the following view:

6. [21]

   Dr Smith’s concern regarding lack of progress in therapy rests in large part upon the defendant's reports to him, at interview, of his attitude to those sessions. The defendant has undergone the High Intensity Offender Therapeutic Program (“HISOP”), formerly known as Custody Based Intensive Treatment (“CUBIT”), but was reported as experiencing significant difficulty in listening to and considering the feedback in treatment. According to the report of his response to that program, he tended to respond defensively and perceived that he was being personally targeted by therapists in the group. He behaved inappropriately and in a sexualised manner towards other participants in the program.

Conclusion on s 5B(d)

1. [22]

   The evidence to which I have referred to this point is sufficient to satisfy me to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, of similar type, if not kept under supervision pursuant to an order such as that sought by the plaintiff. A great deal more evidence has been placed before me that I have not referred to specifically. It is sufficient to say that in the remaining evidence there are no counter‑indications to the conclusion that I have reached under s 5B(d). I am satisfied two years is a suitable duration and that the conditions sought by the plaintiff are appropriate.

Condition 11

1. [23]

   Condition 11 requires that the defendant must not permit any person to stay overnight at his address other than any person ordinarily resident there, unless he has the prior approval of his Departmental Supervising Officer (“DSO”). The defendant submits this should be modified to require only that notice be given to the DSO but that prior approval not be necessary before any invitee might stay overnight with him.

2. [24]

   This is the only point of contention about the conditions sought by the plaintiff. It is relevant that the defendant is now 52-years-old and resides in a one bedroom apartment provided by the Department of Housing of the New South Wales Government. It is not likely that there would be many occasions when he would wish to have someone stay overnight with him or that frequent occurrence of overnight stays would be important to his ongoing socialisation and rehabilitation. For the few occasions when an overnight stay may occur it does not appear to me to be a significant curtailment of his liberties that he should first obtain his DSO's approval. On the other side of the issue, the requirement of prior approval may well prove to be a useful check upon close associations being formed by the defendant and may assist those who are responsible for supervising him under the order to ensure that any factors tending to heighten his risk of re-offending are not introduced. I will, accordingly, make the extended supervision order with condition 11 in the terms that are sought by the plaintiff.

Orders

1. [25]

   Orders will be entered as follows:

   1. (1)

      Order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to an extended supervision order for a period of 2 years commencing 6 April 2023.

   2. (2)

      Order pursuant to s 11 of the Act directing that the defendant for the period of the extended supervision order comply with the conditions set out in schedule A to the amended summons.