State of New South Wales v Kay (Final)

By summons filed on 5 April 2024, the plaintiff, the State of New South Wales, seeks that the defendant, Graham James Kay, be the subject of an extended supervision order (“ESO”) for a period of three years, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

The defendant has served a lengthy sentence of imprisonment following which he has been the subject of two ESOs previously imposed by this Court. In 2017, Harrison J (as his Honour then was) ordered that the defendant be subject to an ESO which commenced on 17 March 2017, for a duration of three years: State of NSW v Kay [2017] NSWSC 254 (“first ESO”). In 2020, Beech-Jones J (as his Honour then was) ordered that the defendant be subject to a second ESO, which commenced on 9 October 2020, for a duration of two years: State of New South Wales v GJO (Final) [2020] NSWSC 1412 (“second ESO”).

Prior to the expiry of the second ESO the plaintiff made the present application for what would be a third ESO. An interim supervision order (“ISO”) for a period of 28 days was made by Campbell J on 6 June 2024: State of New South Wales v GJO (Preliminary) [2024] NSWSC 688. His Honour also ordered that two experts be appointed to assess the defendant and provide reports. Dr Marcelo Rodriguez and Dr Michael Davis were appointed for this purpose and have furnished reports.

The ISO was extended by Yehia and McNaughton JJ on 2 July 2024 and 22 July 2024 respectively so as to remain in force until a final hearing could be held. The ISO was again extended when the matter came before me for final hearing on 23 August 2024.

The defendant, on the present application, does not contest the making of an ESO, nor that it be for a period of three years. In adopting this stance, he accepts that the statutory preconditions for the making of an ESO are established, including that it is open to the Court to be independently satisfied that he poses an unacceptable risk of committing a serious offence if not kept under supervision. The area of dispute in this matter relates to the conditions to be imposed as part of any ESO, and in particular the terms of any condition in relation to electronic monitoring.

Irrespective of the defendant’s stance it is necessary that I be satisfied that an order should be made. It is, in any event, necessary to review the history of the matter and the contents of relevant reports for the purposes of determining the appropriateness of the conditions sought by the plaintiff. Nonetheless, the narrow area of dispute simplifies the task of this Court. The defendant and his representatives are to be commended for their practical and realistic approach to the application.

At the hearing of the matter, a substantial volume of material was tendered by the plaintiff. This material included various reports, material relating to the various offences committed by the defendant over his lifetime, related court decisions, including with respect to extended supervision orders, the defendant’s criminal and custodial history, and case notes.

In addition to providing their reports, Drs Rodriguez and Davis were subject to cross-examination at the hearing, with questions directed to the form of an appropriate condition relating to electronic monitoring.

Two victim impact statements were read pursuant to s 21A of the Act. Those statements informed the Court as to the victims’ views as to the order and the proposed conditions in accordance with s 21A(2). Those views have salience in the context of understanding the potential harm that may be caused should the defendant commit a similar offence, and consequently, inform the unacceptable risk calculus as it applies to the defendant as discussed below.

On 26 July 2000, the defendant, having entered pleas of guilty, was convicted and sentenced by RS Hulme J in respect of four counts of aggravated sexual intercourse without consent in contravention of s 61J of the Crimes Act 1900 (NSW): R v Kay [2000] NSWSC 716. Those offences were committed over a 12-month period between 23 December 1995 and 24 December 1996. In addition, his Honour took into account two further offences of aggravated sexual assault and two offences of threaten to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse on a Form 1 document. The defendant was sentenced to a total term of imprisonment of 20 years with a non-parole period of 15 years. The sentence commenced on 18 February 1997.

The convictions relate to several separate incidents of offending committed against women and girls at night in the suburbs of the lower north shore of Sydney. While there are notable differences in facts of the various offences, they generally involved the defendant approaching lone women or girls in public places at night, threatening them, demanding money and sexually assaulting them. On a number of occasions, the defendant held a knife to the victim’s throat, forced a gag into the victim’s mouth, and in some instances, tied the victim’s hands. The defendant used force to drag his victims to a nearby secluded location in order to sexually assault them.

The defendant was released to parole on 20 February 2015. This was just over 3 years after he was first eligible for parole on 18 February 2012. As set out above, prior to the expiry of the applicant’s parole period, application was made for an ESO. That application was granted, and an order was made for three years, commencing on 17 March 2017.

On 21 May 2018, whilst subject to the first ESO, the defendant was convicted of failing to comply with the order. The defendant failed to inform his departmental supervising officer (“DSO”) of an intimate relationship he had commenced and further failed to obtain permission for a sex worker to spend time at his home. The defendant was sentenced to 4 months imprisonment for this offence.

On 17 April 2018, the defendant assaulted a 16 year old girl who was working at a supermarket. The victim was familiar with the defendant because they had previously lived in the same apartment complex. The defendant approached the victim, placed his hand on her hip and kissed her on the cheek. The victim later reported the incident to police. The defendant was sentenced to a conditional release order with conviction, for a period of 15 months pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

As noted above a second ESO was applied for and obtained, this time for a period of two years. That order commenced on 9 October 2020.

On 7 January 2022, the defendant was arrested and charged with sexual touching without consent and stalk/intimidate with intent to cause fear of physical harm. Those charges arose from the following conduct. On 2 January 2022, the defendant followed a 20 year old woman around parts of the Sydney central business district. When the victim arrived at her apartment complex, the defendant followed her inside and entered the elevator with her. When the victim reached her floor, the defendant exited the lift and approached the victim. He then placed his hand under the victim’s dress and held his hand on the victim’s vaginal area for several seconds. The victim screamed and pushed the defendant out of the way, before the defendant re-entered the lift and fled the scene.

The defendant was initially sentenced to imprisonment for 2 years. Following a Crown appeal, he was resentenced to imprisonment for 2 years and 6 months, with a non-parole period of 1 year and 8 months. The ESO was suspended while he was subject to the term of imprisonment: s 10(2) of the Act.

Prior to the index offending, the defendant was convicted of a number of offences which maintain some relevance. Between 1971 and 1995, the defendant was convicted of the following matters: 25 January 1971, assault female; 1 October 1975, indecent assault; 5 October 1983, peep and pry; 19 May 1987, peep and pry; 7 February 1995, breach domestic violence order. Save for the last of these offences, for each of them, the defendant either received a fine or a bond. For the last of the offences, he was sentenced to 100 hours of community service.

Section 5B of the Act relevantly provides as follows:

There is no issue that the preconditions s 5B(a)–(c) are made out. It is thus necessary to consider whether I am “satisfied to a high degree of probability that the [defendant] poses an unacceptable risk of committing another serious offence if not kept under supervision under the order”.

The term “serious offence”, which appears in s 5B(d), is defined in ss 4 and 5 of the Act, as follows:

The reference in s 5B(d) of the Act to “a high degree of probability that the offender poses an unacceptable risk” is clarified by s 5D of the Act, which provides as follows:

I note that, pursuant to ss 5B and 9(1) of the Act, the power to make an ESO is discretionary: the Court may make an order for an ESO if the prerequisites in that section are satisfied.

Pursuant to s 6(3) of the Act, an application for an ESO must be supported by documentation that (a) addresses each of the matters referred to in s 9(3) of the Act; and (b) includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence. A risk assessment report prepared by Mr Samuel Ardasinski, Senior Psychologist Serious Offender Assessment Unit, satisfied this latter requirement.

The Act stipulates its objects and the paramount consideration to be taken into account when determining an application for an ESO. They are as follows:

A number of reports were tendered on the application. The most relevant of these are discussed below. These reports, as the most recent reports in relation to the defendant, also discuss, as relevant, earlier reports in relation to the defendant.

A risk assessment report dated 18 October 2023 was prepared by Mr Ardasinski. Mr Ardasinski interviewed the defendant via audiovisual link (“AVL”) on 31 August 2022 and 20 November 2022. A final interview was conducted in person on 13 October 2023. Mr Ardasinski applied the STATIC-99R and STATIC-200R risk assessment tools to measure the defendant’s historical risk factors. He applied the STABLE-2007 tool to measure the defendant’s dynamic risk factors. Upon combining the defendant’s scores, Mr Ardasinski concluded that the defendant poses a high risk of sexual reoffending. It is to be noted that such a risk, which is repeated at other points of these reasons, cannot, given the definitions discussed above, be equated with the risk of the commission of a “serious offence”. Mr Ardasinski identified several key dynamic risk factors as underpinning the defendant’s risk of a sexual offence, as follows. Firstly, the defendant experiences deficits in emotional regulation and requires “a more robust and infallible strategy to manage his moods” noting the links between the defendant’s low mood and sexual offending. Secondly, he has often maintained a poor work life balance, which has caused him to experience frustration, anger, and a need to regain control over his life by exerting power over others. Further, Mr Ardasinski referred to the defendant’s intimacy deficits and loneliness. He opined that the defendant’s index offending was linked to his difficulties with intimate relationships. Mr Ardasinski referred to possible paraphilia, though was “not convinced” that the defendant satisfied the diagnostic criteria for paraphilia and stated that the evidence pointing to such a diagnosis was “mixed”. Mr Ardasinski opined that to reduce the defendant’s risk of sexual reoffending, it would be important to bolster his resilience and strengthen his informal social supports to encourage the maintenance of positive habits.

A risk management report (“RMR”) was prepared by Ms Louise Robinson, Senior Community Corrections Officer following interviews with the defendant, contact with Forensic Psychology Services, as well as a review of the risk assessment reports, and Corrective Services NSW records relating to the defendant. It summarised prior risk management of the defendant by Community Corrections. The RMR proposed a risk management plan for the defendant.

The plan included recommendations as to appropriate conditions of an ESO. It was suggested that the defendant should be subject to the imposition of a schedule of movements and a curfew, along with electronic monitoring, to assist Community Corrections to identify and promptly address any concerning patterns of movements which may indicate an escalation of risk. Further, the RMR recommended the defendant be subject to place and travel and accommodation restrictions, non-association conditions, and conditions relating to electronic communications and internet access. It was further suggested that the defendant be required to disclose the details of any person with whom he wishes to reside, or any female person with whom he forms a friendship, in order for Community Corrections to monitor the progression of the relationship. It was recommended that the defendant’s offending history be disclosed to any person that he forms a close association with. The RMR also proposed a search and seizure condition to enable Community Corrections to effectively monitor the defendant’s compliance with the conditions of any order, his communication with others, and the information he had accessed on the internet.

The report of Dr Rodriguez, forensic psychologist, dated 22 July 2024, was tendered. Dr Rodriguez conducted a three-hour interview with the defendant on 4 July 2024. In his report, he opined that the defendant met the diagnostic criteria for Sexual Sadism Disorder, a chronic and relapsing condition which affects the defendant’s risk of repeat sexual offending. Dr Rodriguez also diagnosed the defendant with Depression and Dependent Personality Disorder. He considered that the defendant was vulnerable to perceptions of abandonment within intimate relationships, in which circumstances his risk of committing a sexual offence significantly increases.

Dr Rodriguez applied risk assessment and professional judgment tools including the STATIC-99R and RSVP. He opined that the defendant presented with several dynamic risk factors indicative of a risk of sexual reoffending, including (amongst other factors) his history of sexual violence, use of physical and psychological coercion of victims, minimisation of offending, problems with self-awareness and a history of severe mood dysregulation. Overall, he concluded that the defendant fell into the moderate-high risk category of sexual offending.

Dr Davis, a forensic psychologist whose report dated 25 July 2024 was tendered, assessed the defendant for six hours and fifteen minutes via AVL on 16 July 2024. In his report, Dr Davis diagnosed the defendant with Persistent Depressive Disorder and Frotteuristic Disorder (a paraphilia). Dr Davis considered that the defendant’s sexual offending was driven by his “largely inadequate personality, sexually deviant interest in frotteurism (toucherism), and attempt to reassure himself of his masculinity and coerce intimacy from his victims”. He administered risk assessment and professional judgment tools including: the Paulhus Deception Scales, Personality Assessment Inventory, PCL-R, RM2000/S and RSVP-V2. As a result of the outcome of the latter tool, Dr Davis opined that the defendant poses a high risk for “offences of a sexual nature”, specifically sexual touching offences against females who are unknown to him, in situations where he experiences perceived interpersonal rejection from those close to him. Dr Davis opined that the defendant poses a moderate risk of a serious sexual offence, and considered the most likely scenario for such an offence would be in the context of the defendant’s rejection by someone important.

I have had regard to each of the considerations set out in s 9(3) of the Act. I have had particular regard to the reports of the court appointed experts. Those reports in turn take into account the various other considerations set out in s 9(3).

It is unnecessary to resolve the difference in expert opinion as to the correct diagnosis applicable to the defendant. Ultimately, what is important, is the risk he poses. I do not regard the prospect of the defendant committing a serious offence under the Act as particularly likely. The prospect of him committing an offence such as that committed by him in January 2022, which would not fall within the definition under the Act, is significantly greater. (In saying this, I do not mean to trivialise the January 2022 offence). Despite the relatively low risk that the defendant will commit a serious offence, the consequences should he do so are likely to be dire. Based on my assessment of the prospect the defendant would commit a serious offence, and the likely consequences should he do so, I am satisfied to a high degree of probability that the defendant’s risk is unacceptable if not kept under supervision under an order.

On the basis of the above, I am satisfied that the necessary preconditions for the making of an order are satisfied. There is no discretionary reason why an order should not be made. Given the defendant’s history, and most significantly in this regard, the further commission of a sexual offence while subject to the most recent ESO, I accept that a period of three years is appropriate.

Given my satisfaction that an order should be made it is necessary to consider the appropriate conditions.

Section 11(1) of the Act provides that an ESO “may direct an offender to comply with such conditions as the Supreme Court considers appropriate”. An inclusive list of conditions which may be imposed is set out at s 11(1)(a) to (n).

Section 11(2) provides a mandatory condition that the offender must not leave New South Wales except with the approval of the Commissioner of Corrective Services.

The power to impose conditions is constrained by the scope of the Act: Winters v Attorney General of New South Wales (2008) 182 A Crim R 107; [2008] NSWCA 33 at [19].

Having noted the above matters, Hoeben CJ at CL in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 said (at [44]; citations omitted):

The matters referred to by Hoeben CJ at CL are to be seen in the context of s 3 of the Act. Section 3, after stating the primary objective of the Act in s 3(1) to be to provide for extended supervision of certain persons “to ensure the safety and protection of the community”, provides in s 3(2) that another object of the Act is to encourage persons such as the defendant to undertake rehabilitation. That object is not exclusive of the primary object in s 3(1). As has been said many times, the protection of the community is enhanced by the successful rehabilitation of offenders. I accept that for a person such as the defendant, the introduction of more stringent conditions than necessary may be discouraging and resultingly, may impede his rehabilitation.

The defendant did not oppose many of the 36 conditions sought by the plaintiff. In relation to some, a modification as to their wording was sought, and agreement was reached between the parties. There was, ultimately, no dispute as to the appropriate conditions with the exception of one condition sought by the plaintiff. I regard the conditions ultimately sought by the plaintiff and not opposed by the defendant, as appropriate. Conditions 1 to 36 as set out in the plaintiff’s reply position, with the exception of condition 5, will be imposed. Those conditions are set out in the schedule to this judgment.

The one condition in dispute is with respect to proposed condition 5, electronic monitoring. The plaintiff seeks a condition in the following terms:

The defendant did not oppose electronic monitoring altogether, but rather sought a limitation to the period. The condition initially submitted by the defendant to be appropriate was as follows:

The position taken by the defendant prior to the hearing is readily understandable. His proposed condition is designed to provide a high level of supervision, including electronic monitoring, but combined it with an incentive for the defendant to avoid any breach of the order. That incentive is achieved by providing a clear predetermined benefit for compliance with the order for an 18 month period. The position was premised on the assumption that after 18 months without breach, the defendant’s risk will have reduced such that electronic monitoring will no longer be appropriate.

It is necessary to examine whether the premise on which the defendant’s argument was built is sound having regard to the opinions of Drs Rodriguez and Davis as to the circumstances in which the defendant presents a greater risk of the commission of a serious offence.

As discussed above, Dr Rodriguez was of the opinion that the defendant suffers from a sexual sadism disorder. He described this as a relapsing condition which was “chronic in nature” and which could “remain dormant in controlled environments”.

Dr Rodriguez notes that at the time of the index offences the defendant reported being psychologically unwell. This state came about as a result of the stress and uncertainty felt by the defendant with respect to his relationship with his then partner. The defendant’s report to Dr Rodriguez as to his psychological state at the time of the January 2022 offence was not dissimilar. The defendant was, at that time, on the verge of being progressed on his order such that he would no longer be subject to electronic monitoring. The defendant had become friendly with a woman whom he had met at a Buddhist meditation group. He received a letter from the woman indicating she no longer wanted to continue the friendship, which the defendant said “crushed” him. He said he was depressed and, in this state, committed the sexual touching offence.

The effect of Dr Rodriguez’s opinion was that having reoffended two years ago at the age of 70, the defendant is a statistical outlier. This makes it difficult to apply ordinary assumptions as to the reduction of risk with advancing age and the passage of time. In these circumstances, the risk of reoffending remains in the event that the defendant develops an intimate relationship which would make him vulnerable to feelings of rejection and abandonment.

Dr Davis, in his report, provided a similar history of the circumstances surrounding the index offending, and in particular the defendant’s feelings of vulnerability in his relationship with his then partner. Dr Davis was of the opinion that the defendant poses a high risk of committing an offence similar to the 2022 offence in the event he suffers feelings of rejection in the context of a close personal relationship. Dr Davis acknowledged, properly, that such an offence, while an offence of a sexual nature, was not a “serious sex offence” under the Act. He acknowledged that the risk of the commission of a serious offence was more difficult to assess.

Dr Davis observed that the 2022 offence was “at least statistically speaking, arguably unlikely to occur”. The effect of Dr Davis’ evidence was that the defendant’s age at the time of the 2022 offence, and the length of time over which he had not offended, made that offence difficult to predict. This, in turn, makes the prediction of future offending difficult. Further, the 2022 offence was markedly similar in nature to an offence committed by the defendant in 1974. This suggests a long-standing vulnerability to the repeat of past sexual offending in response to difficult personal circumstances. It is difficult in these circumstances to discount the risk that the defendant’s response will, on some future occasion, be more severe, and potentially of a nature similar to the index offending.

Electronic monitoring is intrusive. It is a significant imposition on the liberty of a person who must be recognised as having served the punishment found to be appropriate for their wrongdoing. In the present case, however, it has utility in managing the defendant’s risk. Dr Davis in this regard provided what I regard as sensible and helpful evidence. He indicated that he is not ordinarily in favour of electronic monitoring for persons at risk of committing sexual offences against adults as opposed to those at risk of committing offences against children. He explained that in the latter case, electronic monitoring can detect attendance at locations where children are likely to be present, such as schools or playgrounds. There is no great utility in detecting the defendant’s presence at locations where adults (as potential targets of the defendant) may congregate. Dr Davis, however, noted that the defendant’s offences tend to be preceded by stalking behaviour. The ability to track the defendant’s movements would, in this context, potentially alert the defendant’s DSO to the possibility that the defendant had followed a woman which would allow the DSO to question the defendant in this regard. Further, while electronic monitoring was not successful in deterring the defendant from offending in 2022, I would not discount the prospect that it will, in the future, have some deterrent effect.

As I have said, it is entirely understandable that the defendant would seek to at least limit his obligation to comply with electronic monitoring. Further, there is force in the defendant’s position that his successful rehabilitation is an appropriate and desirable way of achieving community protection. Both Drs Rodriguez and Davis saw merit in the defendant’s proposal to provide an incentive to the defendant in the form of an earlier cessation of electronic monitoring in response to positive progress. Ultimately, the difficulty, as was revealed in the evidence of both Drs Rodriguez and Davis, is defining a measure by which it could be said the defendant had progressed to a point where his risk was reduced such that the electronic monitoring could be discontinued. The defendant’s proposed condition relied on the absence of any breach of the order. Both Drs Rodriguez and Davis agreed that the absence of breach was not necessarily a good measure of progress. For example, the defendant may have completed 18 months without breach, while harbouring fantasies of rape. Conversely, the defendant may breach the order in a manner which does not give rise to any concern as to an increased risk of offending, such as giving false information to a DSO or not submitting to a search in order to cover up a minor shoplifting offence committed in the context of having run out of money. (I do not mean to suggest the defendant has any propensity towards dishonesty but merely put this forward as an example). In short, there is no necessary correlation between the defendant breaching the order and an increase in his risk, or between an absence of breach and a reduced risk. That is, his risk may increase without any breach, while a breach may not be indicative of an increased risk.

Acknowledging the evidence given by the experts, the defendant modified his position. Given that a breach of the order does not necessarily provide a logical basis for extending the duration of any electronic monitoring condition, the defendant submitted the condition should simply limit the period to 18 months. The difficulty with this position is that the defendant’s risk cannot be assumed to be one that will necessarily diminish with time. As canvassed in the evidence of Drs Rodriguez and Davis, while the risk will diminish with stability, it will increase in times when the defendant experiences uncertainty in the context of interpersonal relationships. When this may occur is not possible to predict.

Given the above, limiting the duration of electronic monitoring to 18 months is not an appropriate means of managing the defendant’s risk. That is not to say that the defendant should necessarily be subject to electronic monitoring for the full term of the order. As the 2002 offence shows, electronic monitoring is not a panacea. There remains force in the opinions of Drs Rodriguez and Davis that providing the defendant with incentives has the potential to promote his rehabilitation. As discussed above, this in turn promotes community protection. While it is not possible for the Court, from this distance, to frame a condition that will provide such an incentive while adequately managing risk, it is anticipated that this will be able to be achieved through the implementation of the condition. That is, it is expected that the DSO will administer the condition in a fair and flexible manner. The administration of the condition in a way that will positively impact the defendant’s mood will, on the evidence, diminish his risk of offending. I regard the proposed condition that “[t]he defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment” as appropriate.

Finally, it is appropriate to make an order in the usual form with respect to access to the Court file. The reasons for making such an order were explained by Hamill J in State of New South Wales v Bowdidge (No 2) (Application by Nationwide News Pty Ltd) [2020] NSWSC 159 at [27].

I make the following orders: