State of New South Wales v G (Final)

1. [1]

   By a summons filed on 6 July 2022, the State of New South Wales (the plaintiff) sought final orders pursuant to ss 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) that the defendant, G, [1] be subject to a continuing detention order (CDO) for a period of 2 years. As well, the plaintiff sought an extended supervision order (an ESO) for a period of 5 years, pursuant to ss 5B and 9(1)(a) of the Act, to commence at the expiry of the CDO. As is usual when an ESO is sought, a schedule to the summons set out the proposed conditions of the ESO.

2. [2]

   In the alternative to a CDO, the plaintiff sought that the defendant nevertheless be made subject to an ESO for a period of 5 years and be directed to comply with the proposed conditions.

3. [3]

   On 25 November 2022, Schmidt AJ made preliminary orders that were sought in the summons, which included an interim detention order (an IDO) pursuant to s 18A of the Act for a period of 28 days, to commence on 18 December 2022: State of New South Wales v G (Preliminary) [2022] NSWSC 1617 (the preliminary hearing). Subsequently, the IDO was extended by Bellew J, Yehia J and by me, and will expire on 18 March 2023.

4. [4]

   At the hearing of this matter, on 24 February 2023 (the final hearing), the plaintiff elected to not proceed on the application for a CDO, so that the remaining issue was whether, pursuant to the Act, an ESO was required and, if so, for what period of time and pursuant to what conditions.

The defendant’s background

1. [5]

   The defendant is aged 38. His background, as gleaned from forensic and court reports, is to the following effect. He has two siblings and a half-sibling. When he was aged six or seven, his father died unexpectedly from a cardiac arrest.

2. [6]

   The defendant had a strained relationship with his mother and only occasional contact with his siblings. He reported being physically and sexually abused by two of his mother’s subsequent partners. He was in the care of the New South Wales Department of Family and Community Services between the ages of 10 and 15 years. His recollection is that he was placed with eight different foster carers and was assaulted by some of them. Between the ages of 15 and 18, he resided with his aunt and her partner. He identified his maternal uncle and his wife as his primary supports during his formative years.

3. [7]

   The defendant recollects problematic behaviour throughout his childhood and at school, including inattention and aggression. He has not held any form of employment in the community. He had one longer-term relationship, a woman with whom he has a son who is aged 19. He has acknowledged that this relationship was characterised by domestic violence and ended when he was imprisoned.

4. [8]

   The defendant first used cannabis when aged about 12. He admits his drug use escalated to when he was around 16 years of age, when he commenced intravenous use of amphetamines, ice and heroin. He reported using benzodiazepines when 17 or 18 years of age. He has been taking methadone for three or four years.

5. [9]

   When aged about 16, the defendant was diagnosed as having a bipolar Affective Disorder.

The defendant’s criminal history

1. [10]

   The defendant’s first entry in his criminal history was a charge of destroying or damaging property when he was 11 years old. The matter was dismissed with a caution pursuant to s 33(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW). In all, there are five entries in the Children’s Court, for charges of assault, break and enter and destroying or damaging property, and breaching a recognisance.

2. [11]

   From the age of 18, the defendant incurred criminal convictions in Queensland. In 2003, he appeared in the Proserpine Magistrate’s Court for relatively minor offences, including wilful damage of property and stealing. The last of those, on 15 December 2003, when he was aged 18, was for multiple offences including his first convictions of a sexual nature, which were for wilful exposure and indecent behaviour (masturbation). The following year, he appeared before the same Court on charges that included fraud, stealing, and break and enter. In June 2004, he was convicted of performing an indecent act in a public place (masturbation), for which he received probation for a period of two years, conditional upon him undergoing “medical, psychiatric and psychological treatment”.

3. [12]

   The defendant’s first drug conviction was on 28 June 2004, for (amongst multiple other charges) possession of a dangerous drug. For all matters, he received two years’ probation and 240 hours of community service.

4. [13]

   The defendant’s first serious sexual offence was in Mackay District Court on 27 September 2005. He pleaded guilty to the offences of rape and assault with intent to rape committed on 26 October 2004, when he was aged 19 and on probation for the April 2004 offence, together with two counts of stealing that were committed on the same date. The defendant approached a female backpacker at Airlie Beach who was walking at night to her place of accommodation. He grabbed her and placed a hand over her mouth. She punched him, causing him to let go of her, and made good her escape. Later that same night, at about 2:30am, he approached another female backpacker, put her in a headlock, threw her down an embankment, threatened to kill her, tore off part of her clothing and had penile-vaginal sexual intercourse with her. He then stood up, verbally abused her and walked off. When spoken to by police, he denied the offences until a DNA match was established.

5. [14]

   The defendant received concurrent sentences of imprisonment for 7 years for the offence of rape and 3 years for the offence of assault and attempt rape.

6. [15]

   On 29 June 2012, the defendant received a 5 year supervision order pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSO Act).

7. [16]

   On 9 January 2013, whilst subject to the supervision order, the defendant committed an offence of performing an indecent act with intent to assault or offend (masturbation). On 11 April 2013, he received a sentence of imprisonment for 12 months.

8. [17]

   In September 2014, the defendant again breached his supervision order, by removing his electronic monitoring anklet and absconding to New South Wales. Two warrants were issued for the defendant’s arrest.

9. [18]

   On 19 November 2014, the defendant was arrested in New South Wales. He was uncooperative in that endeavour, being charged with two counts of assaulting a police officer in the execution of their duty, a count of resisting an officer in the execution of their duty and one count of attempting to escape police custody. On 22 September 2014, he received concurrent sentences of imprisonment for 4 months for each offence.

10. [19]

    The defendant was also charged with a series of sexual assaults against children, committed in New South Wales between 1 June 1999 and 3 January 2003. On 19 May 2017, following pleas of guilty, the defendant was sentenced in the District Court by Ellis DCJ (the sentencing judge) for serious sex offences committed between 2000 and 2004 (when he was aged between 15 and 17 years) against three children he was living with at the time, being:

    1. (1)

       aggravated sexual assault of a child under 16 years old (namely 9 years old) contrary to s 61J(1) of the Crimes Act 1900 (NSW);

    2. (2)

       aggravated sexual assault of a child under 16 years old (namely 9 or 10 years old) contrary to s 61J(1) of the Crimes Act;

    3. (3)

       sexual intercourse with a child under 10 years of age (namely 6 or 7 years old) contrary to s 66A of the Crimes Act; and

    4. (4)

       aggravated indecent assault of a child under 10 years of age (namely 5 or 6 years old) contrary to s 61M(2) of the Crimes Act.

11. [20]

    The defendant received an aggregate sentence of 8 years imprisonment, commencing on 19 December 2014 and concluding 18 December 2022. A non-parole period of 5 years was fixed, expiring on 18 December 2019.

12. [21]

    In the course of his remarks, Ellis DCJ stated:

13. [22]

    On 15 October 2018, the defendant committed an offence of reckless wounding, contrary to s 35(4) of the Crimes Act, which involved the use of a “gaol-made shiv” against another inmate. On 11 June 2019, the applicant committed an offence of committing a sexual act with or towards another without consent, contrary to s 61KE(a) of the Crimes Act. That offence arose following the defendant’s participation in a police interview. When returned to the dock in the custody area, the defendant masturbated whilst looking at two female police officers. For these offences, the defendant was sentenced to imprisonment for 3 years, with a non-parole period of 1 year 10 months, dating from 19 June 2019.

14. [23]

    The defendant has been the subject of numerous misconduct reports in custody, including for acts of indecency. Case notes reflect that he engaged in exhibitionistic behaviour, including masturbation in public areas in front of female staff.

Relevant provisions of the Act

1. [24]

   It was common ground between the parties that the threshold requirements of the Act for the making of an ESO, namely ss 5B(a)-(c), are satisfied. I note that the Court must be independently satisfied that the statutory preconditions are met. I am so satisfied.

2. [25]

   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. Consequent upon other orders made by Schmidt AJ, reports were furnished to the Court by Dr Carollyne Youssef, forensic psychologist, dated 22 January 2023, and Dr John Vincent Basson, forensic psychiatrist, dated 20 January 2023 and 23 January 2023.

3. [26]

   Statutory provisions as to the principles applicable to the Court’s exercise of its discretion in determining whether to make an ESO or dismiss the application are set out in ss 5B(d), 5D and 9(2) of the Act, which provide as follows:

4. [27]

   I note that, pursuant to s 5B of the Act, the power to make an ESO is discretionary; the Court may make an order for an ESO if the four prerequisites in that section are satisfied.

5. [28]

   In determining whether to make an ESO, the Court must have regard to certain material and considerations which are set out at s 9(3) of the Act, in addition to any other matter that the Court considers is relevant.

Section 9(3) of the Act

1. [29]

   Section 9(3) of the Act obliges the Court to have regard to certain material in determining whether or not to make an ESO. Some of that material has already been considered in this judgment. The reports of Dr Youssef and Dr Basson are now considered, as well as a Risk Assessment Report and Risk Management Report.

Forensic reports and evidence

1. [30]

   Dr Youssef examined the defendant on 4 January 2023. Dr Youssef noted earlier diagnoses of the defendant. Dr Sundin, psychiatrist, in a report from May 2011, stated that the defendant, then aged 27, met the criteria for an “anti-social personality disorder with strong psychopathic traits”. Cognitive assessments conducted in 2021 and 2022 suggested that the defendant had borderline intellectual functioning.

2. [31]

   Dr Youssef referred to the defendant’s response concerning the defendant’s earlier sexual offences and the index offences:

3. [32]

   Dr Youssef concluded:

4. [33]

   Dr Youssef noted that the defendant had commenced the High Intensity Sex Offender Program (HISOP) whilst incarcerated in Queensland, although there were “outstanding treatment needs”, according to his treatment report.

5. [34]

   By way of assistance in the gauging of the defendant’s risk of sexual recidivism, Dr Youssef administered psychological tests that are designed for that task. An actuarial risk assessment was undertaken with the STATIC-99R, which assesses historical or static risk factors. His score placed him in the “well above average” range of sexual re-offending. She assessed his dynamic risk factors by applying two tests. The STABLE-2007 test resulted in a determination that he had a “high” risk of sexual re-offending. The Risk of Sexual Violence Protocol – Version 2 (RSVP-V2) provided a more comprehensive evaluation of his current level of risk, which took into account 23 static and dynamic factors. Dr Youssef took into account protective factors by applying the Structured Assessment of Protective Factors for Violence Risk – Sexual Offence Version (SAPROF-SO: Pilot version). She concluded, as to the defendant’s level of risk:

6. [35]

   As to the defendant’s mental state, Dr Youssef concluded that the defendant met the diagnostic criteria for Antisocial Personality Disorder (ASPD) according to the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition – Text Revision (DSM-V-TR). He also met the diagnostic criteria for Exhibitionistic Disorder (sexually aroused by exposing genitals to physically mature individuals), Simulant Use Disorder (Severe, Methamphetamine, in a controlled environment), Opioid Use Disorder (Severe, on maintenance therapy, in a controlled environment) and a Cannabis Use Disorder (in a controlled environment).

7. [36]

   Dr Youssef concluded:

8. [37]

   Dr Youssef gave evidence at the final hearing. She explained that her opinion that the defendant initially be subject to a further period of continuing detention presumed that treatment that involved individual counselling could be provided to him, rather than group counselling. Since writing her report, she had become aware that Corrective Services would not make that available to the defendant. Accordingly, Dr Youssef was now of the opinion that a further period in custody would not serve any rehabilitative purpose. Dr Youssef stated that conditional release subject to an ESO for a period of 5 years was the appropriate alternative, assuming that he would not be immediately extradited to Queensland and subject to further detention and supervision there. She was asked

9. [38]

   Dr Basson examined the defendant on 9 January 2023. In two brief reports, Dr Basson expressed a view that there was little to be gained by a CDO: He concluded:

10. [39]

    Dr Basson also gave evidence at the final hearing, in which he agreed with the proposition that if the defendant was extradited to Queensland in the immediate future, any remaining need for an ESO in the event he then returned to New South Wales would need to be assessed if and when that occurred.

CSNSW Reports

1. [40]

   Rochelle Pateman is a senior psychologist with the Personality and Behavioural Disorder Services section of Corrective Services NSW. She prepared a report as to the defendant’s level of risk, which is dated 9 December 2021. She noted that the defendant had spent the majority of his adult life in custody. He participated in sex offender treatment in Queensland, but has refused to participate in similar programs in prison in New South Wales.

2. [41]

   Ms Pateman noted that the defendant’s level of risk had previously been assessed using different psychological tools. In February 2019, he was assessed using the Level of Service Inventory – Revised (LSI-R) and found to pose a “medium-high” level of risk as to general and violent recidivism. In September 2019 and April 2020, the defendant was assessed for static factors for sexual re-offending with the STATIC-99R. The score of 9, which was obtained on both occasions, placed him in the “high risk category”. The same score would now be described as in the “well above average” category of risk. In September 2019, the defendant was also assessed for dynamic risk factors by an application of the STABLE-2007, which yielded a conclusion that he had a “high density of criminogenic needs”.

3. [42]

   Ms Pateman reviewed the defendant’s most recent STATIC-99R assessment and found it remained valid. Ms Pateman’s own assessment, which involved a composite score from the STABLE-2007 and the STATIC-99R, placed the defendant as having a “well above average risk level”.

4. [43]

   Ms Pateman concluded, in relation to the option of an ESO:

5. [44]

   Kelli Grabham, of Community Corrections, authored a risk management report in respect of the defendant, dated 21 January 2022. In her report, Ms Grabham explained the manner in which supervision of the defendant in the community by Corrective Services NSW would operate.

The defendant’s extradition to Queensland

1. [45]

   At the time of the preliminary hearing, curiously, the Queensland authorities had not made an application for the defendant’s extradition to Queensland to face charges arising from his removal of his monitoring device and absconding while the subject of a supervision order, in 2014. The first offence (removing the device) has a mandatory minimum sentence of 1 year and a maximum sentence of 5 years, and the second offence (absconding) has a maximum penalty of imprisonment for a period of 2 years (s 43AA of the DPSO Act).

2. [46]

   At the preliminary hearing, the defendant opposed all orders sought on the basis that he was likely to be extradited to Queensland on his release, where he inevitably would be further detained in custody. Accordingly, since there was no realistic prospect of him being released into the community in New South Wales, the Court could not conclude that he posed an “unacceptable risk”. Alternatively, the defendant submitted, if the basis of an IDO or ISO was otherwise made out, an exercise of judicial discretion was appropriate in those circumstances.

3. [47]

   Her Honour summarised the plaintiff’s position thus, at [36]:

4. [48]

   Her Honour, having found that an IDO was otherwise warranted, concluded:

5. [49]

   Her Honour concluded, for similar reasons, that the discretion should be exercised in favour of making the interim orders sought by the plaintiff: State of New South Wales v G (Preliminary) at [49]–[51]. As to what might occur at the final hearing, her Honour made these observations:

6. [50]

   In an affidavit read at the final hearing, Detective Inspector John Bamford stated that he received a copy of an arrest warrant for the defendant from an officer of the Queensland Corrective Services Intelligence Unit, for the offence of having contravened his conditions of supervision that were ordered in 2013. Detective Inspector Bamford stated that he considered the warrant to be validly executed, and therefore, if the defendant is released from custody, whether or not pursuant to an ESO, he will be immediately apprehended by police at the place of detention, charged in relation to the outstanding interstate warrant and taken to the Local Court where his extradition to Queensland will be sought. If the Court makes such an order, he would be collected from custody by Queensland police officers and conveyed to Queensland.

7. [51]

   In further written submissions in reply, the plaintiff noted that it would not oppose the extradition of the defendant.

8. [52]

   The plaintiff’s submissions at the final hearing, on the relevance of the defendant’s extradition, differed somewhat from its position at the preliminary hearing, as summarised by Schmidt AJ and extracted at [47] above. Now that the extradition of the defendant to Queensland is to occur, the plaintiff submits that, nevertheless, an ESO should be made.

9. [53]

   An amended proposed condition of an ESO would oblige the defendant to return to New South Wales at the expiration of any sentence of imprisonment imposed upon him in Queensland, or period of supervision he is obligated to serve in the community in Queensland, in order to reside in the community in New South Wales subject to the ESO.

10. [54]

    In support of this proposal, the plaintiff relied upon conditions to an ISO in similar terms that were made by N Adams J in State of New South Wales v Hudson (Preliminary) [2019] NSWSC 194 and by Walton J in a restricted judgment: State of New South Wales v PS (Preliminary) [2022] NSWSC 1740.

11. [55]

    The defendant submitted that the Court could not be satisfied that there was an unacceptable risk of the defendant committing a serious offence, pursuant to the terms of s 5B(d) of the Act, in the circumstance that the defendant was to be extradited to Queensland and detained in custody for at least 12 months. The defendant noted that, pursuant to s 22 of the DPSO Act, at the expiration of any sentence for which he is convicted in Queensland, an application may be made to the Supreme Court of Queensland for an order similar to a CDO or ESO in this State.

12. [56]

    In these circumstances, the defendant submitted that the Court could not be satisfied that the defendant poses an unacceptable risk of committing another serious offence if an ESO or CDO is not made or alternatively, that the discretion be exercised to refuse to make a CDO or ESO for the same reasons.

Consideration

1. [57]

   I am satisfied that, barring an extraordinary development, upon his release from custody, whether or not an ESO is made, the defendant will be extradited to Queensland and again, barring extraordinary developments, he will be incarcerated. It is to be expected that, at the expiration of his sentence, it is also likely that he would be subject to conditions of parole in that State and perhaps a further supervision order pursuant to s 22 of the DPSO Act.

2. [58]

   I note the evidence of Dr Youssef and Dr Basson that they are unable to anticipate the defendant’s level of risk of sexual recidivism and the appropriateness or otherwise of an ESO when he is released from custody in Queensland.

3. [59]

   In State of New South Wales v Hudson (Preliminary), at the time of the preliminary hearing, the defendant had 8 months of balance of parole to serve in Victoria. The proposed condition was not opposed by the defendant, presumably because he intended to return to New South Wales upon his release in any event. The same situation applied at the final hearing, State of New South Wales v Hudson (Final) [2019] NSWSC 1761, which was heard on 26 November 2019, when only 4 weeks remained of the defendant’s balance of parole.

4. [60]

   In relation to State of New South Wales v PS (Preliminary), the relevant circumstances were that, at that time, the defendant was in custody interstate following his extradition to face certain charges; initially a committal hearing and then, if committed to trial, the trial of those charges. At the time of his extradition, the defendant was on parole in New South Wales. Walton J noted that the basis of the plaintiff’s application was that in the event that the interstate charges were discontinued or withdrawn, the existence of an ESO would ensure that the defendant would be supervised in the community.

5. [61]

   The circumstances of both cases are materially different from this case, in which the period of incarceration and any subsequent period of conditional liberty is unknown, other than that the incarceration will exceed 12 months.

Conclusion

1. [62]

   Accordingly, I conclude that I am not satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence upon his release from custody in New South Wales if he is not subject to an ESO. The summons is dismissed.

2. [63]

   At the final hearing, the defendant foreshadowed his intention to seek an order for costs in the event that the application was unsuccessful. I indicated that, in that event, I would set a timetable for submissions on that aspect.

Orders

1. [64]

   I make the following orders:

   1. (1)

      The summons is dismissed;

   2. (2)

      The parties are to file and serve written submissions regarding costs. The defendant is to file submissions by Monday 27 March 2023 and the plaintiff is to file submissions by Monday 10 April 2023.