State of New South Wales v Hudson (No 2) (Preliminary)

1. [1]

   By a summons filed 13 October 2022 the State of New South Wales seeks an extended supervision order for a period of two years in respect of the defendant, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW). The summons also seeks pursuant to ss 7(4) and 10A of the Act interim orders including for the appointment of two qualified psychiatrists or psychologists to conduct examinations of the defendant, and that the defendant be subject to an interim supervision order pending the final hearing.

2. [2]

   The defendant is at present subject to an extended supervision order imposed by Button J on 13 December 2019: State of NSW v Hudson [2019] NSWSC 1761. However, that ESO has been suspended from 11 November 2022 by reason of the defendant being arrested and entering custody as a result of being charged with two counts of failing to comply with the existing ESO. When the defendant was before Gosford Local Court on 11 November 2022 he was refused bail and remanded in custody. On 24 November 2022 he pleaded guilty to the two charges, and the matter was adjourned for sentence on 2 February 2023. The defendant did not apply for bail on that occasion and it was refused.

3. [3]

   The defendant does not oppose the making of an ISO, nor an order that he be examined by two psychiatrists or psychologists. Further, he does not take issue with the imposition of the proposed conditions for the purpose of the present ISO. Those conditions are similar to but not identical with those that are attached to the existing ESO. Account has been taken, in that regard, of the Risk Management Report (RMR) prepared by Wendy Dryden on 12 September 2022.

4. [4]

   Notwithstanding those concessions, it is necessary for the Court to be satisfied in accordance with the requirement of s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. The Court, if so satisfied, then has a discretion whether to impose an ISO.

5. [5]

   Although the Court has previously determined that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO, this is a fresh application and it is necessary for the Court to consider the matter afresh. No question of issue estoppel and the capacity to relitigate matters arises except in relation to the matters in s 5B(a) and (b) of the Act: State of New South Wales v Hackett (Final) [2022] NSWSC 885 at [7]. Nevertheless, the present focus is on the defendant at the present time, and his present risk of committing a serious offence.

6. [6]

   The application for the earlier ISO was determined by N Adams J: State of New South Wales v Hudson (Preliminary) [2019] NSWSC 194. Her Honour in a very thorough judgment summarised the defendant’s criminal history, which I gratefully adopt, as follows:

7. [7]

   A risk assessment report (RAR) was prepared by Holly Cieplucha, then a Senior Psychologist in the Serious Offenders Assessment Unit, for the purposes of the ESO application in 2019. Ms Cieplucha assessed the defendant’s risk of sexual reoffending as within the high range, with his highest treatment needs being in the areas of General Social Rejection/Loneliness and Impulsivity. She considered that “sex as coping” was an ongoing risk factor.

8. [8]

   In that regard, Ms Cieplucha said:

9. [9]

   The significance of this passage is that Samuel Ardasinski thought that those predictions remained valid in September 2022 when he prepared his RAR for the present application.

10. [10]

    The two psychiatrists who examined the defendant for the earlier ESO, Drs Furst and Martin, were also of the opinion that the defendant was at a high risk of sexual offending, relative to the ordinary sexual offender.

11. [11]

    In reports made to the Attorney-General pursuant to s 13(2) of the Act, the authors of the reports on 2 December 2020 and 18 October 2021 recommended that the continuation of the ESO was then necessary and appropriate. However, a report from Mandy Lau, a psychologist in the Serious Offenders Assessment Unit, of 15 February 2022 said this:

12. [12]

    On 5 April 2022 Wendy Dryden, who had in one of the s 13(2) reports mentioned earlier, considered that the ESO should be continued, reached a different view in a further report of 5 April 2022. She said:

13. [13]

    Somewhat surprisingly, on 12 September 2022, Ms Dryden prepared a risk management report (RMR) in which she supported an application for a further ESO. Although her April 2022 report said that the defendant had not been subject to any breach action during the course of his order, the RMR identified four occasions when warnings were issued to the defendant in relation to breaches of various conditions of his order. Whilst those breaches were issued subsequent to Ms Dryden’s earlier report, the allegations that led to two of them had been made prior to her earlier report. Nevertheless, what appears to be the change in approach by Ms Dryden seems to have some solid basis in the detail of the breaches of the conditions set out in the RMR.

14. [14]

    The breaches were described in this way in the RMR:

15. [15]

    Mr Ardasinski, who is a Senior Psychologist with the Serious Offenders Assessment Unit, prepared his RAR on 5 September 2022, subsequent to the earlier 2022 breaches but prior to the events which led to the defendant being returned to custody in November 2022.

16. [16]

    Mr Ardasinski’s report is, in many respects, not unfavourable towards the defendant, although Mr Ardasinski mentions some problems between the defendant and staff who supervise him. The matter of some significance, however, is that despite the advances the defendant had made during the current ESO, Mr Ardasinski still assessed the defendant’s risk of sexual reoffending as within the highest range, even though he only had a moderate level of criminogenic needs.

17. [17]

    The other significant matter in Mr Ardasinski’s report concerns the relationship between the defendant and his partner, and the absence of other social supports for the defendant. This was a matter to which Ms Cieplucha had made reference in her RAR of 2018.

18. [18]

    The defendant and his partner, Rebecca Norris, have been involved in a defacto relationship for about eight years. They have a four year old daughter, and Ms Norris has three children from a prior relationship. Those children are now aged about 15, 14 and 10.

19. [19]

    Previously, Ms Norris had been assessed as a suitable “responsible adult” to supervise the defendant’s contact with the children in public but not at home. However, in 2016 the defendant and Ms Norris falsified Ms Norris’s youngest daughter’s birth certificate to indicate that the defendant was her biological father when this was not the case. The matter appears not to have come to light until much later because the defendant was charged only in 2020 with wilfully making a false, substituted declaration. On 30 October 2020 the defendant was convicted of the offence and sentenced to a two-year community correction order.

20. [20]

    As a result of Ms Norris’s involvement in this offence, she was no longer considered a “responsible adult” to supervise the defendant’s contact with her children. This determination was never revisited, although Mr Ardasinski said that there were indications throughout the defendant’s supervision that the ultimate goal of his reintegration into the family unit was a case management priority.

21. [21]

    It seems that the defendant was permitted to maintain the relationship with Ms Norris, but he was not permitted to live with her and the children. That position continued to obtain, notwithstanding the conviction in relation to the false declaration. However, concerns appear to have been raised, particularly by reason of the first two breaches recorded at [14] above.

22. [22]

    Mr Ardasinski noted that the defendant’s relationship with Ms Norris had been considered protective in the past, although it is not now considered protective because of the 2020 conviction and other matters, presumably some of the breaches of conditions concerning contact with Ms Noirris’s 14 year old daughter, referred to in Ms Dryden’s RMR of 12 September 2022.

23. [23]

    Mr Ardasinski’s concern is that the defendant does not have friends and, if his relationship with Rebecca breaks down, that is likely to increase one of his dynamic risks which is social adjustment. This was also Ms Cieplucha’s concern in 2018. That points to the defendant’s social isolation as being an ongoing risk factor. This was picked up in Mr Ardisinski’s RAR where he indicated that two of the defendant’s criminogenic needs relate to general social rejection and impulsivity. Mr Ardasinski said about these matters:

24. [24]

    Mr Ardasinski also said:

The recent offending

1. [25]

   There appears to have been an escalation in the seriousness of the issues relating to the defendant and his partner, or more particularly his partner’s children, that led to his being returned to custody in November 2022.

2. [26]

   There were, first, the breaches set out at [14] above. Secondly, when searches of the defendant’s phone and electronic devices were carried out in June and September 2022, there were issues concerning gaps in the messages stored on the phone, and multiple passwords. At the search on 1 September 2022 there was an indication that the defendant may have had contact with Ms Norris’s children. This ultimately led to a decision at a case conference meeting on 21 September 2022 where it was, “Decided that the risk of potential harm to Rebecca’s children is too high and Ian is to be issued with a non-association direction with Rebecca and all of her children”.

3. [27]

   The charges are that the defendant failed on two occasions to comply with a direction from his DSO given on 23 September 2022 not to associate with Rebecca Norris by any means including by telephone or electronic means. One of the Court Attendance Notices alleges that “between 31 October 2022 and 1 November 2022 the accused was in the presence of Rebecca HUDSON (sic) at his home address in the (sic) Entrance”. The other alleges that he breached the direction against associating with Ms Norris between 1 October 2022 and 1 November 2022.

4. [28]

   There were no Police Facts in evidence concerning the charges alleged, but Mr Averre of Counsel for the defendant said that he understood the breach to have involved the defendant assisting Rebecca to move premises. Even if of low objective seriousness, a non-parole period of no less than three months could reasonably be expected for a breach of an ESO. However, how long the defendant will remain in custody is uncertain. This is relevant for two matters; first, the terms of s 10A(a) of the Act; secondly, if an ISO is made, when it should commence.

Determination

1. [29]

   Section 10A of the Act provides:

2. [30]

   Unlike most cases involving applications for an ISO, it is unclear in the present case when the defendant’s custody will expire. It is not clear beyond doubt, although likely, that further custody will be imposed when the defendant is sentenced on 2 February 2023. The final hearing of this present application is fixed for 6 April 2023. The result may be that the defendant’s current supervision will expire before the proceedings are determined, even taking into account the suspension of the present ESO from 11 November 2022.

3. [31]

   Although s 10A(a) uses the word “will”, I do not consider in the context of the objects of the Act, particularly the object in s 3(1), that the Court is required to be certain that the supervision will expire. The use of the word “appears” points to the Court’s satisfaction as being that of an impression, based on the evidence that is available at the time: cf Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171 at [44].

4. [32]

   In the circumstances, the provisions of s 10A(a) are satisfied.

5. [33]

   I am satisfied that at the time of the present application the defendant was a supervised offender within the meaning of ss 5B(b) and 5I, and that the provisions of s 6 have been complied with: see in that regard State of New South Wales v Kaiser [2022] NSWCA 86 where the Court of Appeal held at [109] that the reference in s 5B(c) to s 5I was an error, and that s 6 was meant. Section 5B(a) was determined by Button J to be satisfied in his Honour’s judgment earlier referred to.

6. [34]

   The task of the Court at the preliminary hearing on an application for an interim order is not to predict the ultimate result. Rather the test is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]; see also State of NSW v Clarke [2019] NSWSC 411 at [7] to [11].

7. [35]

   Even prior to the breaches for which the defendant is now in custody, Mr Ardasinski assessed the defendant’s risk as being in the highest category. That was consistent with the assessments made of the defendant in 2028 and 2019 by both Ms Cieplucha and Drs Furst and Martin. Of some significance is the fact that Mr Ardasinski considered that the particular risks identified by Ms Cieplucha in 2018 were still present, and for the same reasons.

8. [36]

   Further, in circumstances where the defendant’s relationship with Ms Norris was supportive, the fact that the defendant is no longer permitted contact with her is likely to increase the defendant’s social isolation when out of custody, with a likely increase in the risk of offending. It must be said that the direction preventing the defendant to have contact with Ms Norris has been brought about by the defendant’s own actions in making contact with her children, or one of them, and by failing to preserve electronic evidence of his contacts and messaging. Those actions are also directly relevant to the risk the ESO was designed to limit, and the present risk of the defendant committing a further serious offence.

9. [37]

   In those circumstances, I am satisfied that the matters alleged in the supporting documentation would, if proved at the final hearing, justify the making of an ESO.

10. [38]

    The question then arises when the ISO should commence. In the absence of an ISO the current ESO will revive when the defendant is released from custody. Further, if the ISO commences on the date the order is made, it will be immediately suspended but revive on the defendant’s release. However, when that will be is a moveable feast. It is entirely inappropriate that the defendant be subject to two orders containing different conditions.

11. [39]

    In State of New South Wales v Doherty (Final) [2022] NSWSC 1144 Ierace J was dealing with an application for an ESO where an earlier ESO had been made but suspended at the time the order was to be made because the offender was in custody. The orders indicate that Ierace J revoked the existing ESO from the commencement of the further ESO. Nothing is said in the reasons about that revocation, nor the basis for the order revoking it.

12. [40]

    Section 13 of the Act relevantly provides:

13. [41]

    It can be seen that an application must be made to revoke by either the State or the offender. There does not seem to be any facility for the Court to do so of its own motion. In the present matter, the State applies to revoke the prior ESO. The ground in s 13(1B) is made out, in that the making of an ISO subsequent to an earlier ESO which is still in place, albeit suspended here, is a sufficient change in circumstances.

14. [42]

    Accordingly, the orders I make are as follows: