State of New South Wales v Woods

1. [1]

   By summons filed on 18 October 2021, the State of New South Wales (or plaintiff) makes an application for an Extended Supervision Order (ESO) pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. [2]

   Following a preliminary hearing on 2 February 2022, Justice Ierace made orders on 9 February 2022 including an order for the appointment of experts and an Interim Supervision Order (ISO) commencing on 10 February 2022 for a period of 28 days. On 8 March 2022, Bellew J made a further ISO, extending the period of supervision by 28 days commencing on 10 March 2022. On 29 March 2022, Bellew J made another order extending the period of supervision by 28 days commencing on 7 April 2022.

3. [3]

   The final hearing was conducted yesterday, that is Tuesday, 3 May 2022. On its face the ISO would expire on 6 May 2022. The parties agree that it may be possible to extend the ISO for a further several days (until 11 May 2022). Due to other commitments over the next week, it is necessary to resolve the controversy and deliver judgment today or, at the latest, on Friday 6 May 2022. As a result of these time imperatives, it is necessary to be exceedingly brief in providing the reasons for the orders that I propose to make. That task is made considerably easier by the efficient and cooperative conduct of counsel and their instructing solicitors on both sides. I express my appreciation, and that of the Court, for the conduct of the case by all of the lawyers involved.

4. [4]

   The parties prepared a bundle of evidentiary and other material described as the Judge’s Working Folder, which was marked as Ex A. That included “Volume 1” comprising two lever arch folders of affidavits, reports, submissions, case notes and other relevant documents. There was a third lever arch folder, described as “Volume 2”, which was an exhibit to an affidavit by the State’s solicitor, Ms Murty, affirmed 14 October 2021. That exhibit included further evidentiary material of significance, including, for example, the defendant’s criminal history, the remarks on sentence of a number of sentencing Judges, the facts behind some of the relevant matters on the defendant's criminal record, and bundles of material from files maintained by Corrective Services NSW (Corrective Services). Over objection by the State, a few additional Corrective Services case note reports were admitted as Ex 1. Those notes were tendered to demonstrate that the ISO had been, or might be, administered in an inflexible way. The State’s objection was that the relevant notes related to a period when the defendant was subject to a parole order, rather than an ISO, and that the State did not have the opportunity to call relevant officers to explain their conduct. However, no adjournment was sought, and I took the view the evidence was admissible and relevant because the same officer of Corrective Services was administering the defendant’s parole, the ISO and (prospectively) any ESO that would be made on the State’s present application. In admitting the evidence, and in making any findings based upon it, it must be acknowledged that the officers in question did not have the opportunity to answer any criticisms made by, or implicit in, the defendant’s submissions.

5. [5]

   Before turning to the matters in relation to which the parties do not agree, it is first necessary to state briefly that I accept the effective concession made on behalf of the defendant that I would exercise the Court’s discretion to make an ESO.

6. [6]

   The material in Volume 2 includes the defendant's criminal record, which commences in 1986 and includes a number of sexual offences, including offences against children. The first sexual offence was committed in December 2001 and resulted initially in a suspended sentence of two years. Presumably following a breach of the suspended sentence bond, the defendant was sentenced to a fixed term of imprisonment for six months commencing on 3 September 2003.

7. [7]

   In 2005 and 2019, the defendant was charged but found not guilty of offences of sexual intercourse without consent. These allegations, while not proved, are relevant to the present application but the Court should be extremely cautious in taking those matters into account. The existence of these charges is not irrelevant, particularly in circumstances where the protection of the community is the paramount consideration guiding the Court in determining what orders to make. However, I have exercised great care in not giving too much, if any, weight to those offences which the prosecution was unable to establish to the criminal standard.

8. [8]

   In 2011, the defendant was convicted of sexual intercourse without consent and sentenced to a term of imprisonment of five years and one month, with a non-parole period of three years. At the same time there were other offences involving acts of indecency or indecent assault.

9. [9]

   On 9 August 2019, the defendant was again sent to gaol, this time for an offence of sexual intercourse with a person aged between 14 and 16 years. He was sentenced to three years and three months imprisonment with a non-parole period of two years and five months. That sentence was imposed by Judge Flannery SC. Her Honour’s remarks on sentence are included in Ex A.

10. [10]

    Finally, on 1 May 2020, Acting Judge Marien SC sentenced the defendant to imprisonment for a period of 2 years and 4 months, with a non-parole period of 1 year and 9 months, for two counts of aggravated indecent assault on a person under the age of 16 years. The non-parole period expired on 10 July 2021 and the total sentence expired on 10 February 2022.

11. [11]

    The defendant was on parole in relation to the last-mentioned offences at the time the current proceedings were instituted. Accordingly, he was a “supervised offender” pursuant to the provisions in ss 5B and 5I of the Act. The other formal requirements under s 5I have also been satisfied. There is no dispute, and I am satisfied, that the formal requirements for the making of an order are established.

12. [12]

    Further, 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 an ESO. This finding is based on Mr Woods’ criminal history, the facts of the cases detailed in that criminal history, Mr Woods’ patchy record of compliance while on conditional liberty and the contents of various reports providing opinions as to his risk of re-offending based on statistical tools and the authors’ experience and expertise. For example, a Risk Assessment Report dated 13 August 2021, described the defendant as being a “well above average risk” of committing further offences. It also described his “high density of criminogenic needs” relative to other male sexual offenders. A forensic psychologist, Dr Amanda White, provided a report setting out a number of matters relevant to an assessment of whether the defendant would commit further sexual offences if not closely supervised. Dr White provided the following opinions which are consistent with the assessment in the risk assessment report that the defendant poses a “well above average risk” of committing sexual offences:

13. [13]

    It is unnecessary to go into further detail, however the forensic psychiatrist Dr Kerri Eagle provided a generally similar opinion to the experts already noted. She said the risk of further sexual offending was “well above average” based on both his clinical presentation and the administration of actuarial and structured professional judgment tools.

14. [14]

    Having considered all of the material tendered by both parties, I am comfortably satisfied that the State has established that an ESO should be made based on the requirements of the Act. There is no reason that the discretion to make an ESO should not be exercised.

15. [15]

    As I have said, or implied, the defendant and his legal advisers took a realistic approach to these matters and essentially conceded that the Court would be satisfied that an order should be made. However, the parties did not agree on the length or duration of the ESO, or the precise content of the conditions proposed by the State.

The conditions of the ESO

1. [16]

   On the final hearing, counsel for the State filed an amended summons in which the conditions of the ISO had been amended to reflect the discussions and negotiations that have taken place between the parties between the time Ierace J made the ISO and the final hearing. There were approximately 55 proposed conditions in the schedule to the amended summons. The defendant agreed with the vast majority of them. Some had been amended or deleted as a result of the discussions between the parties. I have considered those conditions upon which the parties agree and accept the joint position of the parties that those conditions are necessary and appropriate to address the risk factors identified in the material and the triggers that may lead the defendant to re-offend.

2. [17]

   I come to consider those conditions upon which the parties do not agree.

3. [18]

   The first three conditions in dispute, being 5, 6 and 7, concern a proposed “schedule of movements”. The State's position is that the following conditions should be imposed:

4. [19]

   Relatedly, the State proposes a curfew condition regarding the defendant’s accommodation as follows:

5. [20]

   The defendant points to occasions in the past in which similar conditions have been administered in what is contended to be an inflexible and unduly onerous way. In order to avoid such inflexibility in the future, the defendant proposes that conditions 5 to 7 be amended by conditions in the following terms:

6. [21]

   The State opposes the conditions proposed by the defendant, and in particular complains that the last phrase of condition 7, that is “or as soon as is reasonably practicable afterwards”, fails to provide the protection to the community required by the paramount objectives and purposes of the legislation. It also argues that the terms of conditions 5 - 7 as proposed by the defendant are too loose and non-specific to allow their enforcement.

7. [22]

   The State submits that if conditions 5, 6 and 7 are imposed, it is unnecessary to impose the curfew condition stipulated in condition 9. The State also pointed to a number of occasions when the defendant applied for and was granted last-minute variations of his schedule of movements and submitted that the conditions had not been administered in an inflexible manner.

8. [23]

   The defendant submitted that the conditions proposed by the State are too inflexible and have been administered, or could be administered, in an unduly harsh manner leading to the defendant’s exposure to substantial custodial penalties for breaching the ESO. Reliance was placed on my observations in a case called Manna v State of New South Wales [2021] NSWSC 1220.

9. [24]

   Having considered the competing arguments, and reviewing the departmental records, I am unable to conclude that, to this point, the conditions concerning the schedule of movements have been administered in an oppressive or inflexible way. However, I do accept that there have been occasions where that appears to have been the case. In saying that, I intend no criticism of the departmental personnel involved. But there is at least one example (fairly conceded by counsel for the State), and I believe some others when the defendant was on parole, where the position contended for by counsel for the defendant is established. However, the situation is very different from the circumstances that prevailed in Mr Manna’s case: see, for example, Manna v State of New South Wales at [16].

10. [25]

    I accept the State’s submission that it is not appropriate, and against the public interest, to allow condition 7 as proposed by the defendant to be imposed without amendment. However, on balance, I am satisfied that the conditions proposed by the defendant are sufficient to fulfil the purpose of such conditions. It is to be noted that there are many other conditions controlling his movements and activities and that he accepts that electronic monitoring should be ordered as part of the ESO. It is also to be noted that the State can bring an application to vary the ESO if the condition as proposed causes difficulties or is unworkable.

11. [26]

    Subject to the deletion of the words “or as soon as reasonably practicable afterwards” from condition 7, conditions 5, 6 and 7 as proposed by the defendant will be imposed. In my assessment, they are sufficient to fulfil the purposes of the Act and to manage the defendant’s risk factors while also providing flexibility to allow him some limited freedom.

12. [27]

    In view of the requirement for a schedule of movements, albeit one that is less rigid than that contended for by the State, I am of the view that the curfew in condition 9 is neither necessary nor desirable. Accordingly, I do not propose to make condition 9 part of the ESO.

13. [28]

    The next disputed condition is condition 12, which is in the following terms:

14. [29]

    The evidence demonstrates that the defendant lives with his relatively elderly mother on a somewhat isolated rural property. In my assessment, condition 12 is neither necessary nor desirable to protect the public or address the defendant’s risk factors. The concerns raised by the State are not sufficiently cogent to justify the making of an order which would, for example, require the defendant to notify the DSO immediately should his mother's friends and family decide to drop in on them unexpectedly. A balance must be struck between the protection of the community, the desirability that the defendant be encouraged to live an independent life and to rehabilitate within the community, and the rights and privacy of others, including his elderly mother: see State of New South Wales v Bugmy [2017] NSWSC 855 at [89], [96] (Fullerton J).

15. [30]

    I do not propose to impose condition 12 as proposed by the State.

16. [31]

    The next condition in dispute is condition 18, which is in the following terms:

17. [32]

    I accept the defendant’s submission that this condition is neither necessary nor desirable to protect the safety of the community. True it is, as submitted by counsel for the State, that access to the financial details of the defendant may, in certain limited circumstances, provide evidence or provoke inquiries as to the defendant's expenditure and whether he is using his very modest income to acquire illegal substances or to “groom” potential victims. However, I can see no significant benefit in requiring the defendant to disclose information concerning his financial affairs to the DSO. Again, there is much to be said in allowing the defendant some freedoms in his life administration in order to promote his rehabilitation. That is a secondary objective of the legislation and should always be borne in mind when formulating the appropriate and necessary conditions to an ESO: see State of New South Wales v Bugmy at [89], [96] (Fullerton J).

18. [33]

    I will not propose to impose condition 18 as proposed by the State.

19. [34]

    The proposed condition 26(a) prohibits the defendant from associating “with any people who he knows are consuming or under the influence of alcohol without prior approval of a DSO.”

20. [35]

    The other conditions that will be imposed include a number of conditions which allow the defendant to drink alcohol, provided his DSO approves of the consumption. The conditions also allow for testing to enforce both the condition relating to alcohol use and other conditions prohibiting the use of illegal drugs. While condition 26(a) proposed by the State is not, on its terms, directly inconsistent with the other conditions proposed in the amended summons, I am satisfied that the other conditions provide sufficient protection against the risk factor identified in a number of the reports; that is, that the defendant's inhibitions are compromised by his use of alcohol. On the other hand, it is easy to envisage situations where the proposed condition could lead the defendant into breaches of the ESO, either unwittingly or with no malevolent design on his part.

21. [36]

    Condition 26(a) is neither necessary nor desirable to address the relevant risk factors and I do not propose to make it a condition of the ESO.

22. [37]

    I note in passing that Ierace J declined to impose conditions 12, 18 or 26(a). His Honour’s function in determining the terms and content of the ISO is different to that confronting the Court formulating a final order. However, where relevant, I also adopt his Honour’s reasons for concluding that those conditions ought not to form part of the ISO.

23. [38]

    Conditions 37 and 41 are also in contention between the parties. They are part of a raft of conditions restricting and limiting the defendant's access to the Internet and use of various forms of electronic communication.

24. [39]

    Condition 37, which is opposed by the defendant, is in the following terms:

25. [40]

    Condition 41 is also opposed, and is in the following terms:

26. [41]

    I am satisfied that the conditions along the lines of those proposed by the State are both in accordance with the paramount interest in protecting the public and are workable. I do not perceive that there is a realistic likelihood that they will operate oppressively. I can see no reason why the defendant would need to use encrypted or coded messaging applications. In saying that, I have considered the defendant's submissions on the issue and the concerns raised that he may unwittingly do so.

27. [42]

    In deference to those submissions, I would propose to include the word “knowingly” in the proposed condition 37. This would mean that the defendant would not be in breach should he use a messaging, or other, application or service which is encrypted but not to his knowledge. Accordingly, I will include a condition along the lines of the proposed condition 37 (albeit now numbered as condition 32), however, in the following slightly amended terms:

28. [43]

    The complaint made by the defendant in relation to condition 41 is that it may be oppressive for him to be required to obtain the consent of the DSO before deleting anything from his mobile device. Issues were raised as to the limited data available on plans he can afford. It was suggested his inability to delete past searches and so forth may cause his device to slow down or become unworkable.

29. [44]

    However, the evidence generally satisfies me that the defendant will have access to a DSO on a weekly basis and can be supervised in the deletion of any history or the other kinds of information on his mobile device, falling within the terms of the proposed condition 41. I am unable to accept that the defendant’s complaints in relation to condition 41 are matters of any real concern or that it involves any substantial infringement upon his rights.

30. [45]

    I accept that it will not always be possible for him to contact his DSO on short notice, but I am firmly of the view that community protection requires that he not be permitted to delete items such as his internet browsing history, search history or communications made on his mobile device in the short term. The purpose of this raft of conditions is to address a clear risk factor in his case, namely the use of electronic communications to foster relationships with young persons (or their carers) and access content that might trigger him to commit the kinds of offences which have led to his incarceration in the past.

31. [46]

    Accordingly, I will impose a condition in the terms of condition 41 as proposed by the State.

Duration of the ESO

1. [47]

   The State sought an ESO of three years duration. The defendant submitted that it was only necessary to make an order for a period of two years.

2. [48]

   I am unable to accept the defendant’s submission. The defendant’s history of offending goes back decades. The criminal history and various reports do not suggest that Mr Woods’ chronic psychological issues are in remission or are likely to be resolved within the period of two years. While I do take the view that the Court should exercise parsimony in determining the length of such orders, given their potential to infringe on the liberty of people who have served the full term of the sentence imposed on them, there is nothing in the material to suggest that reducing the duration of the order would be in the interests of community safety, or even in the interests of the defendant himself. Further, if the order is administered properly and if the defendant performs well, the strictures of the supervision order will be ameliorated over time.

3. [49]

   I have considered the submission that the length of the sentences imposed for the most recent offences may provide some guidance in determining the length of the ESO. The argument was that because the sentence for the index offence was relatively short, the ESO should also be short. The length of the ESO proposed by the State is longer than the total sentence imposed by the sentencing Judge. I consider this to be an ingenious and somewhat ambitious submission although I do not reject it out of hand. Even so, while I accept it may be a relevant consideration, it could not by any means be determinative of this Court’s approach to the length of a supervision order under the Act. The length of any sentence, and any period of supervised parole, is dictated by the sentencing principle of proportionality. That is, the sentence must not exceed that which is appropriate to the seriousness of the particular offence. Both Flannery SC DCJ and Marien SC ADCJ applied that principle and structured the sentences to allow for a period of supervised parole as each considered by each sentencing Judge to be appropriate. The sentencing Judges were not permitted to extend the period of supervision beyond that which was appropriate as punishment for the particular offences based on any perceived need to protect the community. The judicial function being exercised in sentencing is quite different to that exercised in making decisions under the Act. Neither Judge made any comment in their remarks that would inform the decision concerning the length of the ESO.

4. [50]

   I accept the State's submission that the ESO should be one of three years duration.

5. [51]

   Before formally making the orders, I should state that the foregoing reasons do no justice whatsoever to the comprehensive submissions made in writing and orally by counsel for both sides. Nor have I attempted to make reference to the evidence upon which counsel relied in mounting their helpful submissions. However, I have taken into account the matters that each counsel has raised and the evidence to which they referred, particularly the evidence contained in the Corrective Services case notes, the expert reports, including those of Dr Eagles and Dr White, and the risk factors therein identified. I have also closely considered the contents of the Risk Assessment and Risk Management Reports which precipitated the current proceedings. However, because of the time constraints under which the Court is operating, and the silly workload of the Common Law Division, it is impossible to refer to those matters in any detail in this judgment.

6. [52]

   For those reasons, brief and truncated as they are, I make the following orders:

   1. (1)

      Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is to be subject to an extended supervision order (ESO) for a period of three years from today, 4 May 2022.

   2. (2)

      Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006, the defendant is directed, for the period of the ESO, to comply with the conditions set out in the schedule to these orders.