State of New South Wales v Williams

1. [1]

   The State of New South Wales seeks an Extended Supervision Order for a period of five years under s 5C of the Crimes (High Risk Offenders) Act 2006 (NSW). The Defendant’s current sentence expires on 28 May 2017. Accordingly, the State seeks an Interim Supervision Order from that date, and for the appointment of two qualified psychiatrists and/or registered psychologists to conduct separate psychiatric or psychological examinations of the Defendant and to furnish reports to the Court on the results of those examinations.

Legislation

1. [2]

   Section 5B of the Act provides:

2. [3]

   Section 4 defines sex offender as meaning:

3. [4]

   The definition of serious sex offence is found in s 5 which relevantly for the present matter provides:

4. [5]

   Section 9(3) sets out matters to which regard must be had when determining whether or not to make an Extended Supervision Order. Other matters may be considered.

Legal principles

1. [6]

   In Lynn v State of New South Wales [2016] NSWCA 57 Beazley P (with whom Gleeson JA agreed) said:

2. [7]

   In Anderson v State of New South Wales [2016] NSWCA 86 the Court of Appeal made clear that the process under s 5B on the one hand and ss 5C and 5D on the other hand is a two stage process. The Court said:

3. [8]

   Although the Court in that case was dealing specifically with a Continuing Detention Order the differences between the questions in the two stage process set out by the Court of Appeal are relevant where an Extended Supervision Order is sought. The Court went on to say:

4. [9]

   The task of the Court at the preliminary stage for an interim order is not to predict the ultimate result. Rather the test is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; Attorney General for New South Wales v Haytar [2007] NSWCA 993; and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].

Background

1. [10]

   The Defendant is a 43 year old indigenous man who committed sex offences against his young daughter a number of times during the period May 1997 to September 1999. He was charged with three counts of sexual intercourse with a child then under the age of ten years, namely five years, contrary to s 66A of the Crimes Act 1900 (NSW). At the time of the offending the maximum penalty was 20 years imprisonment. He was found guilty after a trial by jury.

2. [11]

   On 11 June 2010 he was sentenced as follows:

3. [12]

   The Defendant was released from custody to parole on 8 April 2015 on conditions which included complying with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW). On 16 March 2016 police discovered that the Defendant was in an undisclosed relationship with a woman who had three young daughters. He was arrested and charged with failure to comply with the reporting obligations. On 9 August 2016 he was sentenced to imprisonment for a period of nine months with a non-parole period of six months in respect of the failure to comply with the reporting obligations. That sentence wholly expired on 15 December 2016.

4. [13]

   The defendant was also charged with aggravated indecent assault of a child under the age of ten years and sexual assault relating to the children's mother. The defendant is currently held bail refused on those charges. His parole was revoked by the State Parole Authority on 1 April 2016. Those matters are due to go to trial commencing 24 July 2017.

5. [14]

   There may be some doubt whether the offences for which the Defendant was convicted fall within s 5(1)(a)(i) because at the time of the offending Pt 3 of the Crimes Act did not have Division headings although s 66A was in the same position in the Act and in relevantly similar terms (it referred to “another person” in lieu of “a child”). I do not have a concluded view about that matter and, on the present application, the matter was not argued. However, I am satisfied that the offence falls within s 5(1)(c1) of the Act because if the offence was committed at the present time it would be an offence within Div 10 of Pt 3. I note the decision of Rothman J to that effect in State of New South Wales v Watson [2011] NSWSC 1692 at [31] and I note that a similar approach has been followed by James J in State of NSW v Roach [2010] NSWSC 184 at [43] and by Beech-Jones J in State of New South Wales v Fisk [2013] NSWSC 364 at [38].

Defendant’s criminal history

1. [15]

   The Defendant’s offending began in Western Australia when he was about 14 years of age. That offending, and his offending up to and including 1994 involved offences of stealing, break and enter, unauthorised use of a motor vehicle, common assault, possess cannabis, breach bail, breach probation, escape lawful custody, steal a motor vehicle and attempt to pervert the course of justice.

2. [16]

   His sexual offending commenced in 1995. On 9 July 1995 he was convicted of indecently assaulting a woman whose house he had been visiting. He was convicted at a trial of this matter in 2002 and sentenced to 18 months imprisonment to be served cumulatively on sentences imposed on 29 June 2001 referred to below.

3. [17]

   In January 2001 he committed an armed robbery of a pharmacy and a burglary of a 72 year old disabled woman's home where he dragged her from her bed as a result of which she fractured her hip and received bruises. There may have been a sexual element to this assault because the Defendant, who was naked from the waist up, ripped the victim’s pyjama top off her, exposing her breasts. He was sentenced for those offences on 29 June 2001. In all, he received an imprisonment period of ten and a half years. He was released from custody on 29 May 2009 and was immediately extradited to New South Wales to face trial for the index offences.

4. [18]

   In January 1997 the Defendant was charged with the sexual assault of his then de facto partner, Ms C, but the matter was not proceeded with. In the same month he was also charged with the aggravated sexual assault of another woman, Ms Tyson, but the Director of Public Prosecutions did not proceed with that matter.

5. [19]

   In State of New South Wales v Conway [2011] NSWSC 976 I held at [27]-[39] that uncharged acts would not fall for consideration under the criminal history provision in s 9(3)(h) of the Act but may be relevant under s 9(3)(a) and (i). That approach has been followed in State of New South Wales v Veeran [2015] NSWSC 75 at [16] and State of NSW v Weribone [2016] NSWSC 1474 at [13].

Risk assessments

1. [20]

   The Defendant was interviewed for the purpose of the present application by a senior psychologist from the Serious Offenders Assessment Unit, Samuel Ardasinski, on 14 October 2016. Mr Ardasinski noted that the Defendant had been assessed on at least four separate occasions throughout his current sentence using the STATIC-99R instrument. His scores on those previous administrations varied as did the risk categories into which he fell, ranging from Moderate-Low to Moderate-High risk relative to other male sexual offenders. Mr Ardasinski said the reason for the scoring anomalies related to the information available to the various risk assessors at the time of scoring. Mr Ardasinski re-scored that actuarial assessment tool taking into account the most recent charges and convictions, and he assessed him as being in the high category for offending.

2. [21]

   Mr Ardasinski also assessed the Defendant on the Risk of Sexual Violence Protocol (RSVP) and concluded that he presented a high risk of committing further sexual violence generally with few impediments to re-offending without further intervention and community supervision.

3. [22]

   Mr Ardasinski said that if the Defendant was released into the community without supervision the risk of repeat offending could be significant especially within the context of new relationships. He said:

4. [23]

   Mr Ardasinski also said that further risks were identified in relation to the Defendant having sexual entitlement issues and attitudes supportive of sexual assault, insight issues, possible problems resulting from his own history of child abuse, being somewhat impulsive, having poor problem solving skills or the capacity to plan and follow through with plans, not having a stable work history or a solid vacation, and failing to be open in treatment. He said sexual offending appeared opportunistic and impulsive by and large, but it could be said that the Defendant’s offending against children could take on more elements of planning and premeditation. He said that although the Defendant could independently remain offence free following the expiry of his current sentence Mr Ardasinski considered that the Defendant would likely require further assistance to manage his every day risk issues and avoid a repeat offence.

5. [24]

   Mr Ardasinski summarised the type of supervision that he thought the Defendant needed as follows:

6. [25]

   A risk management report was also prepared by Chris Rolleston, a Community Corrections Officer on the Extended Supervision Order team. That report identified particular risks to be managed and monitored, and made suggestions about the sort of conditions that should be imposed to deal with those risks.

7. [26]

   I note also the contents of a report from Renata Cimino, a Forensic Psychologist, likely prepared for the purposes of sentencing the Defendant for the index offences dated 18 April 2010. Although the report is now seven years old many of the conclusions are similar to those contained in Mr Ardasinski’s report although Ms Cimino assessed his risk of sexual re-offending as moderate. Somewhat presciently in the light of the presently charged offences Ms Cimino said at paragraph 39:

Is the Defendant an unacceptable risk?

1. [27]

   For the purpose of the making of an Interim Supervision Order the Defendant conceded that he was a high risk sex offender, that an Interim Supervision Order was appropriate and that it was open to the Court to find matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order and the appointing of two experts to conduct assessments on the Defendant. In the circumstances of this case, these were appropriate concessions.

2. [28]

   Despite these concessions by the Defendant it is, nevertheless, necessary for the Court to be satisfied to the requisite level of proof that the Defendant is an unacceptable risk.

3. [29]

   Although the Defendant does not have a lengthy record of sexual offending that is only one matter for consideration. The index offences were described by the Sentencing Judge as extremely serious. Not only was the victim five years old, she was under the Defendant’s authority and actual violence was used. In addition, the earlier sexual offence in Western Australia for which he received an 18 month prison sentence, the two other incidents in respect of which charges were not proceeded with as well as the presently charged offences can be taken into account.

4. [30]

   Quite apart from the offending, the Defendant has been assessed at a high risk of re-offending by an experienced senior forensic psychologist. Except for the assessment of the level of future risk, his assessments concerning the Defendant were largely consistent with those of the psychologist Ms Cimino who assessed him in 2010. That is despite the Defendant completing the CUBIT course in prison and attending 24 sessions of the community-based Forensic Psychology Services program to deal with his sexual offending. It is also of significance that the Defendant’s past compliance with various obligations including parole and reporting have been described as “abysmal” and “poor”.

5. [31]

   I am satisfied to a high degree of probability that the evidence which I have summarised, if proved, demonstrates that the Defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.

Conditions

1. [32]

   The State annexed to the Summons the conditions of supervision it sought in relation to the Defendant. The Defendant’s submissions sought a number of variations and one deletion. Subsequently the State prepared revised conditions which accepted most but not all of the suggestions put forward on behalf of the Defendant. Thereafter, further negotiations ensued with the result that all of the conditions are agreed for the purpose of any interim order that is made. The parties are to be commended for this approach.

2. [33]

   I have had regard to the matters is s 9(3) of the Act. I have also had regard to the approach to the Defendant’s supervision by Mr Ardasinski in his report (see [24] above). I have had particular regard to the matters detailed in Mr Rolleston’s report. I consider that the proposed conditions, at least on an interim basis, are appropriate to ensure adequate supervision of the Defendant.

3. [34]

   The Interim Extension Order I shall make is to contain the conditions set out in Annexure “A” to this judgment.

The need for an interim order

1. [35]

   It is necessary to say something about the present position of the Defendant. As noted earlier, after the Defendant was arrested on 16 March 2016 for failing to comply with the Child Protection Register reporting conditions, he was arrested on 30 March 2016 and charged with two counts of aggravated indecent assault with a child under ten years and sexual intercourse without consent with the child's mother. There are also five charges of common assault. The Defendant is bail refused on those charges and it seems likely he will remain in custody when his current sentence expires until the conclusion of the trial which commences on 24 July 2017.

2. [36]

   Section 10C of the Act provides:

3. [37]

   From whatever date the Interim Supervision Order is stipulated to commence it will be suspended immediately thereafter whilstever the Defendant remains in custody. It could be argued that there is little utility in making an Interim Supervision Order. However, an application must be made within the last six months of the Defendant’s current custody by virtue of s 6(2) of the Act. If the Defendant is acquitted on the offences due to go to trial in July 2017 he would no longer be detained and would be released into the community without any supervision in the absence of an Extended Supervision Order being in place.

4. [38]

   Of course, if the Defendant is convicted after trial of any of the sex offences the strong likelihood is that he will remain in custody and will be sentenced to a period of further custody given the nature of the offences and his record.

5. [39]

   In all the circumstances, it is appropriate to make an interim order but to ensure that the final hearing is fixed for a time sufficiently after the trial so that the outcome of the trial and any sentence can properly be considered when deciding what should happen in these proceedings.

6. [40]

   In the light of the pending trial of the Defendant both parties have asked for a non-publication order with respect to these proceedings. I consider that such an order is necessary to prevent prejudice to the administration of justice.

Conclusion

1. [41]

   Accordingly, I make the following orders:

   1. (1)

      Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

   2. (2)

      Pursuant to section 10A of the Act, the defendant be subject to an interim supervision order (“ISO”) commencing on 28 May 2017 for a period of 28 days.

   3. (3)

      Pursuant to section 11 of the Act an order directing the defendant, for the duration of the ISO, to comply with the conditions set out in Annexure A to these orders.

   4. (4)

      The plaintiff is to file and serve any evidence and written submissions upon which it relies for the final hearing by 14 August 2017.

   5. (5)

      The defendant is to file and serve any evidence and written submissions upon which he relies for the final hearing by 21 August 2017.

   6. (6)

      The matter is listed for final hearing at 10:00 am on 23 August 2017 with an estimate of 1 day plus.

   7. (7)

      Liberty to apply on 24 hours’ notice.

   8. (8)

      Pursuant to s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) the proceedings be subject to a non-publication order until further order of the Court on the ground that the order is necessary to prevent prejudice to the proper administration of justice.

   9. (9)

      Access to the Court’s file in respect of any document shall not be granted without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to be given an opportunity to be heard.