State of New South Wales v Hunt (Preliminary)

1. [1]

   The defendant, Robert John Hunt, is currently the subject of a three year Extended Supervision Order made in August 2020. With periods when the Order was suspended because the defendant was serving sentences of imprisonment, the Extended Supervision Order is due to expire on 28 February 2025.

2. [2]

   By summons filed on 21 November 2024, the State of New South Wales, the plaintiff, seeks further orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in respect of the defendant.

3. [3]

   The final relief sought is an Extended Supervision Order for a further two years. In this preliminary hearing an Interim Supervision Order is sought, pursuant to s 10A of the Act, for 28 days. Orders are also sought pursuant to s 7(4) of the Act appointing qualified psychiatric or psychological experts to examine the defendant and provide reports to the Court.

4. [4]

   The defendant, through his counsel, accepts that the statutory preconditions in s 5B and 5I, for the plaintiff to make the application, are satisfied, in that the defendant is an offender who has served a sentence of imprisonment for a “serious sex offence” and he is a “supervised offender” by virtue of being currently subject to an Extended Supervision Order.

5. [5]

   For the preliminary hearing, the defendant, through his counsel, does not wish to make any submissions on whether the Court can be satisfied to a “high degree of probability” that the defendant poses an “unacceptable risk” of committing a “further serious offence”, which includes a serious sex offence, if not kept under supervision under an order, that being the test in s 5B of the Act.

6. [6]

   There is a dispute between the parties about some of the conditions sought to be included in the Interim Supervision Order.

The statutory scheme in brief

1. [7]

   In this preliminary hearing, s 10A of the Act provides that the Court may make an Interim Supervision Order if it appears that the offender’s (defendant’s) current custody will expire before the proceedings are determined and the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order. Section 5B(d) of the Act provides that the Court may make an Extended Supervision Order if satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. A “serious offence” is defined to include a “serious sex offence”, which is further defined to include a sexual offence against a child which is punishable by imprisonment of seven years or more (s 5(1)(a)(i)).

2. [8]

   If, following the preliminary hearing, the Court is so satisfied, it may make orders pursuant to s 7(4) of the Act appointing qualified psychiatrists and/or registered psychologists to examine the offender and provide reports to the Court about those examinations, and directing the offender to attend those examinations.

3. [9]

   In deciding whether the Court is satisfied that an order should be made, the Court must have regard to the objects of the Act. The primary object of the Act is to provide for the extended supervision of high risk offenders to ensure the safety and protection of the community: s 3(1). Another object of the Act is to encourage high risk sex offenders to undertake rehabilitation: s 3(2). The safety of the community must be the paramount consideration of the Court in determining whether to make an Extended Supervision Order: s 9(2).

4. [10]

   Section 11 provides for “appropriate” conditions of orders.

Supporting documentation

1. [11]

   I have had regard to the two volumes of supporting documentation provided by the parties. They included a case statement and a joint statement of agreed facts. The plaintiff relied on two affidavits of Lucy Nichols, solicitor, which annexed Risk Assessment Reports, a Risk Management Report, reports of psychiatrists and psychologists, Parole Reports and material relating to the defendant’s relevant prior criminal history. The defendant relied on an affidavit of his solicitor, Joseph Harding, and annexures. There were also written submissions from counsel for each party and an annotated schedule of proposed conditions. I am grateful to counsel for each party and those instructing them for the preparation and presentation of the material.

The defendant’s background

1. [12]

   The defendant is 64 years old.

2. [13]

   He has reported to experts a difficult upbringing. He reported being neglected and physically abused in his family. At the age of seven he discovered his parents were his grandparents and his sister was his real mother. Shortly thereafter he was placed into the care of the State. During his adolescence, while in juvenile detention, he was sexually abused by three people who had him in their authority. Experts who have examined him have said that these adverse formative experiences have affected the defendant’s personality and behaviours.

3. [14]

   He has poor literacy, assessed by an expert as equivalent to that of a six year old child. It appears he has been employed during the earlier part of his life, and he referred in some interviews to, at various times, having and driving a vehicle.

4. [15]

   He suffers from serious physical health conditions, including serious heart conditions.

5. [16]

   He has been diagnosed by several experts with Paedophilic Disorder, Antisocial Personality Disorder and a substance use disorder, in remission, based on previous admitted amphetamine use at the times of his previous sexual offences.

The defendant’s prior history of sexual offending

1. [17]

   The defendant has a history of sexual offences against children.

2. [18]

   His first such offences, in 1984 - 1986, were sexual intercourse without consent and attempted sexual intercourse without consent, against his niece aged seven or eight at the time. The offences involved digital penetration of the child’s vagina in her home, and an attempt at such on another occasion. The defendant was sentenced for this offending in 2000.

3. [19]

   The next offence was sexual intercourse committed against his son’s 12 year old girlfriend in 1997. This offence involved penile vaginal intercourse with the child after giving her some of the drug “speed”, which made her feel dizzy and disoriented.

4. [20]

   The third occasion of offending involved two aggravated indecent assaults of the defendant’s 14 year old niece, the second after putting a cloth with a possible solvent over her face, causing her to pass out.

5. [21]

   In 2012, the defendant was sentenced for four counts of aggravated indecent assault of a child under 16 and two counts of sexual intercourse with a child between 10 and 14 years. He was sentenced to a total effective sentence of 9 years imprisonment with a non-parole period of 6 years and 3 months. He was released to parole on 24 December 2019.

6. [22]

   The offences, against two sisters aged eleven and seven, occurred in 2011, when the victim’s mother was helping an acquaintance of the defendant move into premises at Rosebery.

7. [23]

   On 25 April 2011, the defendant rubbed the 11 year old victim’s thigh up to her vagina with his hand on the outside of her clothes for a few seconds. Then he put her hand on his penis outside his clothes for a few seconds.

8. [24]

   The next day the defendant touched the 11 year old victim’s vagina on the outside of her underwear, then unzipped her pants and touched her vagina inside her underwear for 5 to 10 minutes, stopping when the victim’s brother walked into the room. On that same day, the defendant pulled down the pants of the seven year old victim and rubbed his hand on her vagina inside her underwear, telling her it was a secret, to not tell anyone.

9. [25]

   The next day the defendant took the 11 year old victim to a room, unzipped her pants and pulled her underwear down, told her to spread her legs out, then touched her vagina and pubic hair. That offence was on a Form 1. The defendant followed that act by kissing and licking the 11 year old victim’s vagina. He then put his penis inside her vagina for one or two minutes, then ejaculated between her thighs. After this offence, the victim told her mother what had happened.

10. [26]

    While the subject of the current Extended Supervision Order, the defendant breached the Order in November 2022 and February 2024. His November 2022 breaches involved him meeting with two women who had young children, for periods of 18 months and 2 years, and not disclosing such contact to his supervising officers. He also used dating applications without disclosure. His February 2024 breaches involved him being in undisclosed contact with two men who were known to him, one from custody, and who were on the Child Protection Register because of sexual offences against children.

Expert reports

1. [27]

   Reports by psychiatrist, Dr Richard Furst, and psychologist Dr Katie Seidler, dated June 2020, were prepared for the previous Extended Supervision Order application. Both interviewed Mr Hunt and reviewed previous reports.

2. [28]

   Dr Furst diagnosed Mr Hunt with substance use disorder and Paedophilic Disorder. Dr Furst expressed the opinion that it was more likely than not that Mr Hunt’s history of being sexually abused in his childhood predisposed him to developing deviant sexual arousal and a paedophilic disorder. He considered it more likely than not that his abuse contributed to his previous sexual offending and an ongoing elevated risk of Mr Hunt reoffending in a similar way.

3. [29]

   Mr Hunt told Dr Seidler that each time he sexually offended he was heavily abusing drugs, under the influence of which he acted on his sexual thinking. Dr Seidler assessed Mr Hunt as at above average risk of sexual reoffending.

4. [30]

   The defendant has completed the High Intensity Sex Offender Program (HISOP), in 2018 - 2019, after which he completed the Sex Offender Program Community Based Maintenance Group with Forensic Psychology Services.

5. [31]

   After the defendant’s completion of the HISOP, psychologist Ms Sweller wrote a report in which she said that as he progressed through treatment Mr Hunt acknowledged sexual attraction towards children, and reported having experienced sexual thoughts about children since his mid-20s and acted on those thoughts at times when he was significantly abusing drugs and was experiencing high levels of stress about problems in his life that he did not know how to solve.

6. [32]

   The defendant has also completed the Getting SMART and EQUIPS addiction programs, in 2013 and 2017, respectively, in relation to preventing relapse into drug abuse. He also partially completed the Real Understanding of Self-Help (RUSH) Program in 2023.

7. [33]

   During the current Extended Supervision Order he has engaged with his local men’s shed and identified the people attending there as positive supports for him.

8. [34]

   Jonathan Mystakidis, psychologist, prepared a Risk Assessment Report dated 10 February 2024. He interviewed the defendant.

9. [35]

   He assessed him as falling in the above average risk range for further sexual reoffending. He said his elevated risk factors for sexual reoffending include significant social influences, general social rejection and isolation, poor problem solving skills, negative emotionality, meaning frustration, hostility and a sense of victimisation towards the Extended Supervision Order team, deviant sexual interests and his attitudes towards supervision.

10. [36]

    Mr Mystakidis said the defendant’s background provides a context for his risk assessment.

11. [37]

    The defendant told Mr Mystakidis that personal stressors and substance use were contributing factors in his offences.

12. [38]

    From a review of other recent reports, Mr Mystakidis noted that Mr Hunt was described as consistently downplaying the severity of his offences, he exhibited evasive tendencies when discussing his activities and relationships, and had a pronounced sense of injustice and victimhood and a tendency to externalise blame for his breaches. Mr Mystakidis said Mr Hunt’s responses to his 2022 breaches appeared superficial and his attitude indicates a “potential lack of transparency and responsibility in adhering to the conditions of his supervision”. He said the defendant appeared not to show insight into the risks associated with potential victim access.

13. [39]

    Mr Mystakidis said Mr Hunt has a history of poor compliance with supervision. Before his 2022 breaches, he was said to have engaged well in the supervision process, although there were some issues about his compliance, including on a day in September 2022 when he was uncontactable for 24 hours without explanation. Mr Mystakidis said in the context of his breaches, Mr Hunt appears capable of deceptive and evasive behaviour.

14. [40]

    Mr Mystakidis said that Mr Hunt’s developing relationships with parents of young children while on an Extended Supervision Order significantly increased the risk of victim access and thereby elevated the risk of reoffending.

15. [41]

    Mr Mystakidis said Mr Hunt had demonstrated superficial compliance with the supervision process of his Extended Supervision Order. He said his actions before his 2022 breaches “suggest a readiness to exploit loopholes and circumvent restrictions when he perceives a low risk of detection or consequences.” He was “actively violating the terms of his Order for an extended period”, unknown to his supervision team, before his 2022 breaches were discovered. He engaged in deceptive behaviour by providing false information about his whereabouts and the nature of his relationships. He downloaded dating applications without seeking permission, indicating a disregard for the conditions of his supervision. Mr Mystakidis said “this behaviour is particularly alarming as it not only reflects a lack of genuine commitment to the supervision process, but also suggests a willingness to engage in activities that could potentially lead to reoffending. Mr Hunt’s ability to outwardly appear compliant while covertly undermining the objective of his supervision underscores the necessity for a more stringent and multifaceted approach to monitoring his activities, to adequately mitigate the heightened risk of sexual reoffending.”

16. [42]

    Mr Mystakidis said Mr Hunt’s pattern of sexual offending shows a consistent association with life crises, wherein periods of social isolation, emotional rejection, accommodation instability and financial distress have historically triggered an increase in substance use as a coping mechanism and substance use in turn has lowered his inhibitions, allowing him to act on his deviant sexual attractions. Mr Mystakidis said as Mr Hunt has aged, his circumstances have changed, including having treatment and apparently ceasing illicit substance use. However, he said, current risk factors remain present, including social rejection and isolation, victim access, negative emotionality, superficiality, evasiveness and non-compliance with supervision. He said, “his negative emotional responses may impede his judgement, and his outward compliance with supervision raises concerns about his true commitment to the rehabilitation process.” He said the “confluence of these factors” means “the risk of Mr Hunt reoffending remains elevated.”

17. [43]

    Mr Mystakidis said therefore “it is imperative to maintain vigilant risk assessment and management for Mr Hunt” to mitigate the risk of him reoffending. He said the defendant’s most likely scenario for further sexual offending would involve him being left unsupervised with a known female child, after being placed in a position of trust through his acquaintance with the child’s parents. He said it is foreseeable that any future sexual violence which occurred could be a “serious sexual offence” as defined in the Act.

18. [44]

    Mr Mystakidis said the following risk management strategies may be necessary: scrutinising his social contacts; while drug use does not appear a current risk factor, it has historical relevance, so the defendant may require unannounced home visits and testing to monitor his continued abstinence; his association with women in the community requires close, frequent and random monitoring to help reduce the risk of the defendant building connections to women with children; his mobile phone usage may be monitored to ensure he is not accessing unapproved applications or in contact with people who have young children.

19. [45]

    Mr Mystakidis said Mr Hunt would be eligible to be considered for a Child Protection Prohibition Order (CPPO), but the powers of such are in his opinion inadequate to manage the defendant’s risk of a repeat sexual offence.

20. [46]

    Mr Mystakidis prepared a supplementary Risk Assessment Report, dated 13 November 2024, after the defendant’s 2024 breaches of his Extended Supervision Order. In that report, Mr Mystakidis said the defendant’s risk remains in the above average range and his risk factors relevant to his risk of sexual reoffending remain the same. He noted that although the defendant participated in group discussions in programs, he minimised his behaviour and deflected responsibility for breaching his Extended Supervision Order.

21. [47]

    There was a Risk Management Report prepared by Sarah Hape, Community Corrections Officer, dated 15 March 2023. Ms Hape considered the defendant’s risk assessment of sexual reoffending in the above average range and his identified risk factors, including a lack of family or pro social supports, the level of dishonesty and subterfuge illustrated by his breaches, his minimising and justifying of his breaches and regression of his insight into his offending. She said those matters indicate a need for a weekly schedule of movements, and electronic monitoring, to assist in identifying frequently visited locations and patterns of behaviour and thereby undisclosed contact with high risk people and children.

Consideration

1. [48]

   Mr Hunt is assessed as at above average risk of sexual reoffending, and that assessed risk has not reduced over years of supervision since 2020.

2. [49]

   Considering that, the nature of his recent breaches of conditions of his Order, the history of his sexual offending against children, his diagnosis of Paedophilic Disorder and the other material in the supporting documentation, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sexual offence against a child or children if he is not kept under supervision. The seriousness and consequences of such offences are now well understood by the community. I am therefore satisfied that the matters alleged in the supporting documentation, would, if proved, justify the making of an Extended Supervision Order. I am therefore required to make, and will make, an Order appointing qualified psychiatrists and/or psychologists to conduct examinations of the defendant and furnish reports to the Court and direct the defendant to attend those examinations. I will also make an Interim Supervision Order.

Conditions of the Interim Supervision Order

1. [50]

   By the time of the preliminary hearing, most of the conditions which the plaintiff had sought to be included in the Interim Supervision Order were the subject of agreement between the parties, but there was a dispute between them about some of the proposed conditions.

2. [51]

   Section 11(1) of the Act provides that an Interim Supervision Order may direct an offender to comply with such conditions as the Court considers appropriate. In Lynn v State of New South Wales [2016] NSWCA 57 Basten JA said that: “The Court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective” in “diminishing the risk to an acceptable level”: [129].

3. [52]

   In State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 (at [44]) Hoeben CJ at CL stated important principles to be considered in relation to the imposition of conditions (citations omitted):

4. [53]

   The following are the conditions which remained in dispute in the preliminary hearing and were the subject of submissions.

Proposed condition 4 – electronic monitoring

1. [54]

   Proposed condition 4 would require the defendant to wear electronic monitoring equipment as directed by a DSO.

2. [55]

   The plaintiff submitted that electronic monitoring was imposed as a condition of the 2020 Order but was relaxed when it appeared that the defendant was complying with the Order and was not in place when the defendant was meeting with the mothers of young children, so those breaches were not detected for some time. The plaintiff relied on the opinion of Mr Mystakidis that the defendant was prepared to covertly circumvent conditions of his Order when he perceived a low risk of detection or consequences, while appearing to comply. The plaintiff submitted that the conduct in breach was likely to have been detected if the defendant had been electronically monitored.

3. [56]

   The defendant submitted that electronic monitoring would not necessarily have detected the breaches of his being in contact with mothers of children, but in any event, the breaches were detected without electronic monitoring. Counsel submitted that the breaches did not involve inappropriate contact with the children of the women that the defendant was meeting, nor has the defendant’s previous offending involved random children in public places. He submitted that electronic monitoring would not alleviate any risk perceived to arise from the defendant’s breaches or his risk profile. He submitted that electronic monitoring is overly invasive and an overreach for the defendant’s risk profile.

4. [57]

   I accept that electronic monitoring is invasive. The risk of the defendant cultivating relationships with mothers of children is that it gives him access to children. Mr Mystakidis expressed the opinion that the defendant does not understand the risks of access to potential victims. Ms Hape expressed the opinion that the defendant needs electronic monitoring to identify undisclosed contact with high risk people and children. I accept the defendant has a need for social contact. However, electronic monitoring may well have highlighted undisclosed departures from scheduled meetings and enabled the detection of the conduct in breach before the substantial periods of contact had elapsed.

5. [58]

   I am satisfied that it is appropriate to impose condition 4 as a condition of the Order. Having done so, it is therefore unnecessary to include the proposed curfew condition, condition 9.

Proposed condition 10 – home visits

1. [59]

   Proposed condition 10 states “the defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the approved address.”

2. [60]

   The plaintiff submitted that home visits enable the Order to be administered without the defendant having to attend an office for meetings with supervising officers; they would enable supervising officers to detect concerning behaviour such as resumption of drug use; unannounced visits would prevent the defendant from tailoring offending behaviour or behaviour in breach of the Order around planned visits; and that there has been no evidence of an unreasonable exercise of the power to conduct visits by the supervising officer.

3. [61]

   Counsel for the defendant submitted that the power to enter the defendant’s home at any time is not necessary. Counsel submitted that drug use is no longer an issue in the defendant’s life and his substance use disorder is in remission, and that his prior offending did not occur in his home. He accepted that there was no evidence of abuse of the power, but maintained it is not necessary.

4. [62]

   I accept that the indications are that the defendant is not currently using unlawful drugs, but the experts refer to a risk of him relapsing to drug use when under personal stress. Drug use disinhibited him and contributed to his offending in the past and at least one offence involved drugging the victim to facilitate the offending. Mr Mystakidis said the defendant may require unannounced home visits to ensure continued abstinence from drugs. I accept that the evidence does not disclose that the defendant has committed offences in his home in the past, nor does it seem that he had social contact with inappropriate people in his home. That does not preclude such happening in the future. By his breaches, the defendant demonstrated a willingness and capacity to conceal conduct in breach of conditions of his Order. Having only planned visits from supervising officers would permit the defendant to tailor his behaviour around such known visits were he minded to so behave again. Therefore, I am satisfied it is appropriate that condition 10 be included in the Order in its proposed terms.

Proposed conditions 34 – 38 – search and seizure

1. [63]

   Proposed conditions 34 to 38 would permit a search of the defendant’s home, vehicle, person, places under his control and devices and to seize relevant items found during a search, if a supervising officer forms a reasonable suspicion that a search or seizure is necessary for the safety and welfare of specified persons, to monitor the defendant’s compliance with the Order, or because the supervising officer reasonably suspects the defendant of behaviour or conduct associated with an increased risk of him committing a serious offence.

2. [64]

   The plaintiff submitted that the ability to conduct searches and seize inappropriate materials will assist in monitoring compliance with other conditions and in identifying potentially concerning behaviours, including if the defendant were to resume drug use, and would permit examination of the defendant’s electronic devices in circumstances where there has been some failure to disclose his online activities and contacts with parents of children, relevant to his risk.

3. [65]

   Counsel for the defendant submitted that the proposed search and seizure conditions are an overreach, and paternalistic, being more convenient to the authorities rather than being necessary to address the risks posed by the defendant in his current circumstances. Counsel submitted that previous behaviour involving use of devices can be sufficiently dealt with by proposed conditions 28 to 33 which permit inspection of the defendant’s devices.

4. [66]

   The plaintiff replied that the power to search or seize is predicated on a reasonable suspicion that the search is necessary for one of the specified purposes. Counsel referred to a note in the supporting documentation of a home visit by an officer who observed tattoo designs which the defendant said were “for a girl”.

5. [67]

   Given the circumstances of the defendant’s past offending and his breaches of conditions, it may become necessary for officers to search for drugs or other disabling substances, seize and examine devices for undisclosed activities or contact with inappropriate persons more broadly then permitted by the device related conditions, or search for objects that might be used as incentives for children to submit to sexual activity or to not disclose sexual activity. Given the requirement for the exercise of the powers of a reasonable suspicion that the search or seizure is necessary for identified purposes I am satisfied that it is appropriate to include in the Order conditions 34 to 38 in their proposed form.

Orders

1. [68]

   I make the following orders:

   1. (1)

      Pursuant to s 10A of the Act, the defendant is subject to an Interim Supervision Order from 28 February 2025.

   2. (2)

      Pursuant to s 10C(1) of the Act, the Interim Supervision Order is to be for a period of 28 days.

   3. (3)

      Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment.

   4. (4)

      Pursuant to s 7(4) of the Act: