State of NSW v Leddin (Preliminary)

By a summons filed on 18 March 2022, the plaintiff seeks various orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). For present purposes, the relevant orders sought are those in paragraphs 1 and 2 of the summons which are in the following terms:

The plaintiff relied upon the following affidavits in support of the orders sought, which were opposed by the defendant:

The orders sought were opposed by the defendant.

Counsel for the defendant accepted that the relevant statutory pre-conditions were satisfied. Specifically, it was accepted that:

The circumstances of the index offending are set out in an agreed statement of facts and may be summarised as follows. [1]

At about 9:00pm on 12 April 2006, the defendant went out with his brother Daniel, and a friend, Josh Meiselbach (Meiselbach), to celebrate his birthday which had fallen on the previous day. They went to a hotel in Wagga Wagga for short time before moving to another hotel where the defendant drank numerous middies of beer and several shots of rum. The defendant then left his brother and Meiselbach and went to another hotel for short time before going for a walk around the Wagga Wagga CBD.

At about 2:15am on 13 April 2006 the complainant left the Victoria Hotel located in Baylis Street, Wagga Wagga, having met friends there a couple of hours earlier. She went to a taxi rank, where there was a long queue. As she lived a relatively short distance away, the complainant decided to walk home.

The complainant walked south along Baylis Street, towards the Wagga Wagga Railway Station overpass known as “Mothers Bridge”. She stopped and leant on a handrail in order to put on some socks. Whilst doing so, she was approached by the defendant who startled her. She said to the defendant:

The defendant continued walking along the bridge but slowed down, looking back at the complainant who was still putting her socks on. The complainant then commenced to walk along the bridge, with the defendant walking several steps ahead of her. At that point the defendant turned and said to the complainant:

The defendant and the complainant continued to walk across the bridge, with the defendant in front. When they reached the other side, the complainant walked past the defendant and continued in front of him as she walked up Railway Street. She then realised that the defendant was walking directly behind her at what she estimated was a distance of “about half a step”, and quickened her pace. The defendant continued to follow her across Macleay Street and into Erin Street.

As the complainant stepped onto the roadway in Erin Street, the defendant punched her, firstly to her right eye and then to the bridge of her nose, causing a laceration that began to bleed heavily as her eye closed over. As the complainant was bent over on the roadway, the defendant said something to her. The complainant responded by saying:

The defendant responded by punching the complainant to the right cheek. The complainant began to scream, and lost her shoe on the roadway. The defendant then said to her:

The complainant stopped screaming. The defendant then took hold of her, picked up her shoes and handbag, and forced her towards Edmondson Street and into the grounds of Kildare Catholic College. Whilst doing so, the defendant said to the complainant:

The defendant then forced the complainant onto a grassed area inside the fence line of the College, and said:

The complainant took off her socks, and the defendant said:

Fearing for her life, as well as the infliction of further injury, the complainant removed her leggings from under her skirt. At that point, the defendant pushed the complainant to the chest, causing her to fall backwards, before ripping her underpants from her legs. The defendant then knelt down in front of the complainant, undid his pants and said:

The complainant did not reply.

The defendant then lent down and forced the complainant's legs apart before beginning to lick the outside of her vagina, then penetrating her vagina with his tongue. The defendant licked the complainant's genital area extensively for several minutes. [2]

The defendant then moved his body up onto the complainant and forced his erect penis into her vagina, causing her pain. [3] He then said:

The complainant did not respond.

The defendant then grabbed the complainant by the hair and pulled her closer, saying:

The complainant responded:

At that point, the defendant kissed the complainant on the mouth before moving back down between her legs. He licked her vagina for a short moment before again inserting his penis, which was semi-erect, inside her vagina and moved his penis in and out of her vagina [4] before withdrawing it. He then began licking the complainant’s vagina again, before inserting his penis into her vagina on numerous occasions. [5] At one point, the defendant withdrew his penis and began to masturbate himself to an erect state, before re-inserting his penis into the complainant's vagina. [6]

The defendant then asked the complainant her name, and told her that he could check her wallet for confirmation. At this point, he became agitated at being unable to maintain an erection and said:

The defendant then said to the complainant:

As he said that, he forced the complainant's legs back over her head and licked her anus for some time. He then inserted his erect penis into the complainant’s anus before his erection subsided. [7] At this point, the complainant's phone rang, and the defendant said:

The complainant replied:

The defendant said:

The defendant then put the complainant's legs back down and inserted two fingers into her vagina, causing a sharp pain and extreme discomfort. [8] When doing so, the defendant said:

The complainant did not reply.

The defendant then made another attempt to have intercourse with the complainant by inserting the tip of his penis into her vagina. [9] However, he was unable to have intercourse due to the fact that his penis was in a flaccid state.

At this point, the complainant could hear friends a short distance away on Edmondson Street, towards the school grounds. The defendant said to the complainant:

At that point the defendant again tried to put his penis into the complainant's vagina. [10]

As the complainant's friends came closer, the defendant told the complainant to “shut up”. He brought the complainant to her feet and she began to put her leggings and underpants back on. The defendant snatched them from her, stating:

A short struggle took place, following which the complainant managed to break free and run towards her friends who were also walking along Edmondson Street. The defendant chased her in an attempt to detain her but once she ran into the street light, he retreated and ran off through the school grounds, taking the complainant's underpants, leggings and one of her shoes with him.

With the assistance of her friends, the complainant attended Wagga Wagga Base Hospital and the police were notified. DNA profiles were obtained from an anal swab taken from the complainant, and from the back inside portion of her skirt.

On 9 June 2006 police executed a search warrant on the defendant's residence, at which time he was arrested and cautioned. He denied the offences, and denied knowing the complainant:

The defendant's DNA was later matched to DNA which was recovered from the complainant's skirt. The defendant also matched a detailed description given by the complainant in terms of (inter alia) height and build. Clothing located at his residence was similar to that described by the complainant. The defendant declined the opportunity to participate in a line up. However, a photographic identification was conducted with the complainant on 13 June 2006, at which time she identified the defendant as her assailant.

The defendant pleaded guilty before the Wagga Wagga District Court to a series of offences and asked the sentencing judge to take into account further matters contained in a Form 1.

When recounting the facts of the offending, the sentencing judge described them as “startling and disturbing”, [11] before saying: [12]

The sentencing judge continued: [13]

The sentencing judge later returned to the issue of the defendant's criminal history and said the following: [14]

The sentencing judge, in addressing the defendant's objective criminality, said the following: [15]

For the purposes of determining whether I can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision, I must take into account a number of mandatory considerations set out in s 9(3) of the Act, in addition to any other matters that I consider to be relevant.

I have set out the facts of the index offending above, along with the observations of the sentencing judge. The seriousness of such offending was expressly accepted by counsel for the defendant in the hearing before me. The defendant also has a number of other matters on his criminal history which were assessed by the sentencing judge to which I have had regard.

A report of Samuel Ardasinski, Forensic Psychologist, dated 19 November 2021 forms part of the evidence before the Court. In his executive summary, Mr Ardasinski stated the following: [16]

In addressing what was described as the defendant's institutional adjustment, Mr Ardasinski reported: [17]

Mr Ardasinski reported that since being in custody, the defendant had completed the Core EQUIPS foundation program on 1 May 2020. [18] He also completed the EQUIPS-Addiction program twice, once in 2018 and once in 2020. [19]

Mr Ardasinski further reported that the defendant had expressed interest in participating in treatment. He had completed necessary referral documentation as far back as 2010, and was found suitable for admission into the High-Intensity Group Program (now called “HISOP”, previously just called “CUBIT”) in 2011. The defendant's group therapist had observed [20] that his engagement with the course had been satisfactory, that he was an active group member who generally provided meaningful feedback to others, that he completed task work in a timely manner, and that he had been the inmate delegate for a number of months and had demonstrated concern for other community members. It was further noted: [21]

Mr Ardasinski concluded: [22]

In terms of risk factors, Mr Ardasinski identified [23] substance abuse, problems with planning, a lack of realistic goal-setting, impulsivity and poor behavioural controls, proneness to boredom, poor employment history, poor work ethic, difficulty sustaining stable intimate relationships, trust issues, fear of rejection, poor communication of emotions, dismissive attachment style, attitudes condoning domestic violence, co-operation with supervision, personality traits and sexual self-regulation. At the same time, Mr Ardasinski accepted that the defendant:

Mr Ardasinski went on to say: [24]

In terms of the overall risk presented by the defendant, Mr Ardasinski expressed the following view: [25]

Mr Ardasinski went on to say: [26]

Mr Ardasinski noted that the defendant had shown a willingness to participate in rehabilitation programs at an early stage and, as previously noted, had completed EQUIPS Addiction programs on two occasions, namely in December 2018 and July 2020. He had the opportunity to participate in HISOP in 2019. Although he commenced that program, he was suspended for a period due to syringes being found in his cell but approximately 12 months later he recommenced the program and his engagement was regarded as satisfactory.

The index offending was committed by the defendant in breach of parole. That was not the first occasion on which the defendant had breached parole by further offending. There is also evidence to support the opinion of Mr Ardasinski that the defendant's previous engagements with community corrections, and his response to supervision, has been poor. However, Mr Ardasinski acknowledged that to use those instances as a predictor of future behaviour would be speculative.

Accepting Mr Ardasinski’s view that the defendant’s behaviour in custody might be a more reliable predictor of future behaviour, it is relevant that the defendant accumulated a total of 29 institutional misconduct charges over the 15½ year period in which he remained in custody, 19 of which were brought within the last 5 years. Generally speaking, those charges related to drug use (or suspected drug use) and violence to varying degrees. The last of those charges was on 4 October 2021 for an offence of creating or possessing prohibited goods. That was the defendant's first institutional misconduct offence for a period of 12 months. That history must also be assessed bearing in mind the evidence that the defendant commenced a regime of Buvidal depot injections in June 2020 which had an obviously positive effect on his behaviour.

Consistent with that general picture, case notes compiled within the last 12 months point to a marked improvement in the defendant's behaviour, attitude and general well-being. Whilst I do not propose to recount the contents of the entirety of those notes, the following are significant.

On 15 March 2022, a Senior Psychologist at CSNSW confirmed that the defendant appeared “to be readjusting back into the community well and have expressed no concerns”. The defendant's progress resulted in psychological appointments being arranged at fortnightly as opposed to the previously monthly intervals. At the time, the following was noted:

At a review on the following day, the following was noted:

In a review on 5 April 2022 the following was noted:

A note of 6 April included the following:

At an interview on 19 April 2022, the following was noted:

Finally, a note of 2 May 2022 recorded the following:

A report of 1 October 2021 which was prepared for the purposes of considering the defendant's release on parole noted (inter alia) that he:

The report went on to state: [27]

The overall assessment and recommendations were expressed in the following terms: [28]

In a progress report to the State Parole Authority in March 2022, the following was reported: [29]

The sole issue for determination is whether the evidence is capable of satisfying me, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious offence if he is not kept under supervision. The principles which apply to that determination include the following:

Counsel for the plaintiff emphasised that the index offending was, on any view, a serious episode of sexual offending characterised by significant violence, both actual and threatened. Counsel also pointed to the fact that such offending had occurred against a history of prior offending of a sexual and violent nature, which had, on occasions, occurred in circumstances where the defendant had been under some form of supervision. Counsel also relied upon the fact that the consequences for the victim of the defendant’s offending were catastrophic.

Counsel placed considerable emphasis on the risk assessment of Mr Ardasinski and his opinion as to the defendant's risk of re-offending. Counsel further submitted that beyond that assessment, the evidence supported a conclusion that the defendant presented an ongoing risk which stemmed partly from the fact that he had spent little of his adult life in the community.

Counsel also pointed to the defendant's history of conduct both in and out of custody which, it was submitted, suggested that he had a preparedness to engage in conflict and violence. Counsel submitted that there was evidence that the defendant engaged in impulsive behaviour, had poor behavioural controls and a difficulty in managing his strong emotions.

It was submitted that in all of these circumstances, there was a real and unacceptable risk of the defendant committing a further serious offence if he was not kept under supervision. Counsel submitted that having regard to the paramount consideration of community safety, and the need to ensure the defendant’s reintegration, both for the safety of the community and for his own rehabilitation, the Court could be satisfied that the evidence justified the making of an extended supervision order.

Counsel for the defendant acknowledged the objective seriousness of the index offending, describing it as “horrific”. [37] However, counsel submitted that on the whole of the evidence it was open to conclude that since that time, the defendant had:

Counsel submitted that it was evident that although the defendant previously had issues in terms of his behaviour in custody, those issues had been largely overcome by the time he was recommended for release on parole. Counsel emphasised that at that time, the defendant did not face any further institutional misconduct charges and that the “revision” of his behaviour in custody was demonstrated, in particular, by the fact that he had been nominated as the inmate delegate for his wing. Counsel submitted that the entirety of the evidence supported the conclusion that the defendant was properly regarded a “model parolee”, and that there was nothing in the evidence that indicated that he was an unacceptable risk.

To the extent that the plaintiff relied on the defendant's criminal history, counsel pointed out that some 16 years had passed since the index offending, and that the more recent conduct and attitudes displayed by the defendant demonstrated that he no longer had a general tendency towards disobedience of the law. It was submitted that although the defendant’s criminal history was obviously relevant it was incapable, at least by itself, of supporting a conclusion that he posed an unacceptable risk of committing a serious offence if not kept under supervision.

Counsel submitted that the report of Mr Ardasinski was generally of low probative value, and pointed out that it had been prepared prior to (and thus without reference to) the evidence of the most recent conduct of the defendant. Counsel submitted that even taken at its highest, the report did not provide a realistic assessment of any risk posed by the defendant at the current time and was certainly not sufficient to ground a finding that he posed an unacceptable risk. Counsel further submitted that the report left open the clear possibility that the defendant was able to return to the community without posing a significant risk of repeat sexual violence. It was submitted that viewed in its entirety, the evidence supporting that conclusion had in fact occurred at this point.

Counsel also took issue with the terms in which Mr Ardasinski had expressed his ultimate conclusions. In particular, counsel cited the fact that Mr Ardasinski had expressed the view that the risk assessment results “indicate” that the defendant “poses a relatively high risk of repeat sexual violence”. [38] Counsel submitted that the strength of any such “indication” was not clear, nor was the basis for the conclusion itself, such that to use those conclusions that there was an unacceptable risk would be a “quantum leap”. Ultimately, counsel submitted that even when the report of Mr Ardasinski was taken at its highest, it was of little probative value because it entirely failed to take into account the excellent conduct displayed by the defendant since his release.

There is unequivocal evidence that in the past 12 months or thereabouts, the defendant has responded well to assistance and treatment, and that his rehabilitation is both ongoing and positive. There is not a single negative observation in any of the notes to which I have referred. [39]

Further, as recently as March of this year, [40] it was reported that the defendant had engaged well with ongoing supervision and had taken a series of steps to address his criminogenic factors, and that independent sources had confirmed the defendant’s positive engagement, and his determination to make positive change. Importantly, this progress was achieved with the ongoing and pro-social support from his family and his partner. All of these matters led to the conclusion that the defendant’s readjustment to the community had been “without issue.” [41] Such matters are, in my view, somewhat inconsistent with the proposition that the defendant poses the requisite unacceptable risk.

I accept that Mr Ardasinski identified a number of risk factors which, prima facie, might tend to support the opposite view. However, there are a number of factors which, in my view, affect the weight to be placed upon Mr Ardasinski’s ultimate conclusion.

To begin with, Mr Ardasinski’s assessment was undertaken some time ago. The various case notes and related material to which I have referred post-date his report.

Further, even accepting that Mr Ardasinski identified certain risk factors, he also identified a series of other factors, [42] all of which are unequivocally favourable to the defendant, and which tend completely against the proposition that I could be satisfied to the requisite standard that the relevant unacceptable risk is made out. There is, in my view, something of a displacement between accepting the existence of such favourable factors, and concluding that the defendant falls into the moderate to high risk category for repeat sexual offending. In those circumstances, I have come to the view that limited weight should be placed on Mr Ardasinski’s opinions.

There is no doubt that the index offending was, as counsel for the defendant described it, horrific. Whilst the nature of that offending is obviously relevant, it is not determinative of the issue which is before me. Taking into account all of the relevant factors, particularly the defendant’s recent progress in the community, and for the reasons set out above, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if he is not kept under supervision.

The plaintiff took no issue that in the event that such a conclusion was reached and the proceedings were dismissed, it would be appropriate to make an order for costs in the defendant’s favour.

For these reasons I make the following orders: