State of New South Wales v Webster

By summons filed on 27 June 2016 the State of New South Wales (the plaintiff) seeks orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of Michael Webster (the defendant), including, by way of final relief, an extended supervision order (ESO) for a period of five years. All references to legislation in these reasons are to the Act, except where otherwise stated. At the preliminary hearing in these proceedings on 18 July 2016 the plaintiff sought the following orders:

The defendant did not oppose the orders sought at the preliminary hearing. At the conclusion of the preliminary hearing on 18 July 2016 I made orders substantially in accordance with prayers 1 and 2 in the summons (the precise terms of which are set out at the conclusion of these reasons). My reasons for making these orders are as follows.

Section 3 of the Act provides:

The legislative purpose of the Act is protective, not punitive. As appears from the terms of s 3, the protective purpose is fundamental.

Section 5(1) of the Act relevantly defines “serious sex offence”. The definition includes an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW) which is punishable by a sentence of seven years or more, such as an offence under s 61L (assault with act of indecency): s 5(1)(a); and an offence under s 61K of the Crimes Act (threaten to inflict actual bodily harm with intent to have sexual intercourse): s 5(1)(a1).

Section 5B provides:

Section 5C confers power on this Court to make an ESO in respect of a high risk sex offender. Implicit in s 5C is that the supervision imposed by an ESO is sufficient to counter what would otherwise be an “unacceptable risk”. Supervision can only be regarded as “adequate” if it is effective to reduce the risk such that the offender no longer poses an unacceptable risk.

Section 5H entitles the plaintiff to apply to this Court for an ESO. Section 5I(1) provides that an application for a high risk sex offender ESO may be made only in respect of a supervised sex offender. A person who is serving a sentence of imprisonment for a serious sex offence, or an offence of a sexual nature, or for another offence which is being served with a sentence for a serious sex offence or an offence of a sexual nature, is, relevantly, a supervised sex offender: s 5I(2)(a).

Section 6 provides that an application for an ESO may not be made until the last six months of the offender’s current custody and must be supported by documentation including a report by a relevant expert (qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence.

Section 7 provides for pre-trial procedures. Of present relevance, s 7(4) provides:

Section 9(3) provides that the following are to be taken into account in determining whether to make an ESO:

Section 10 provides that an ESO can be made for a total of five years. Section 10A provides for an Interim Supervision Order (ISO) to be made in certain circumstances. The decision whether to make an ISO is to be made by reference to the same considerations as apply to an ESO. Section 10A provides:

Section 11 provides for the conditions that may be imposed on an ESO (or ISO). A breach of ESO (or ISO) conditions is an offence under s 12 of the Act.

These proceedings are to be conducted as civil proceedings: s 21.

The plaintiff relied on the affidavit of Azam Yusuf Bulbulia affirmed on 27 June 2016 and exhibit AYB-1 to that affidavit.

The application for an ISO requires me to determine whether it appears that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender ESO. Accordingly the following narrative reflects those matters which are to be found in the supporting documentation in the evidence adduced by the plaintiff in support of its application (which was neither challenged nor tested at the preliminary hearing) and do not amount to findings of fact beyond the standard required by s 10A(b).

The offender was born in 1955. He was convicted of larceny in 1974 and other offences of a similar nature in 1975, 1977 and 1982.

On 15 December 1979 the defendant approached a female who was waiting at the bus stop. According to the victim’s statement, he threatened her with a knife and forced her to accompany him for the purposes of requiring her to masturbate him. She broke away from him and reported the matter to police who charged the defendant with abduction and assault and ill-treat. He was committed for trial on indictment in the Parramatta District Court. On 16 September 1980 he was sentenced for common assault. A term of two years hard labour was imposed with a non-parole period of 9 months and 15 days commencing on 16 September 1980 and concluding on 30 June 1981.

In the morning of 28 September 1982 the defendant threatened a woman in a public street with a knife and abducted her in his car. As he was driving to another place to sexually assault her, she jumped out of the moving car as it slowed to turn a corner and reported the matter to police. On 30 August 1983 the defendant pleaded guilty to abduction with intent to carnally know and common assault. On 7 December 1983 he was sentenced by Gee DCJ to a total term of 10 years from 15 August 1983 with a non-parole period of 4 years and eight months.

On 15 May 1989 the defendant assaulted a prison officer at the Goulburn Training Centre, where he was in custody. He was charged with assault occasioning actual bodily harm. He was convicted and sentenced to six months hard labour, such sentence to date from the expiry of his then current sentence.

On 26 November 1995, at about 10pm, the defendant telephoned the victim in response to an advertisement in the paper for “massage services”. He made a booking and went to her home at about 11pm. He threatened her with a knife and sexually assaulted her. She reported the matter to police who arrested the defendant shortly afterwards. He was charged with threaten to inflict actual bodily harm with intent to have sexual intercourse. He was granted bail. While he was on bail he committed a further three offences of a similar nature. On 6 January 1996 at 3am he arranged for a woman who was to perform “massage services” to come to his house. He threatened her with a knife and sexually assaulted her. The victim reported the matter to police who arrested the defendant on 6 January 1996 and charged him with three offences: threaten to inflict actual bodily harm with intent to have sexual intercourse; aggravated sexual intercourse; and assault occasioning actual bodily harm.

The defendant was assessed by Dr Susan Hayes on 26 June 1996, following which Dr Hayes prepared a pre-sentence report dated 28 June 1996. She took a history of his disrupted childhood. His parents separated when he was six months old. He was brought up by his grandmother. He took up boxing and got into many fights in the playground. He had no friends. He wanted to do the Higher School Certificate but instead began an apprenticeship with BHP as a fitter and turner. This did not work out. The defendant’s father brought him to Sydney. He abused alcohol and drugs, including heroin. He was unable to explain to Dr Hayes why he had committed the offences for which he was to be sentenced. Dr Hayes concluded:

The defendant remained in custody until he was sentenced for the four offences referred to above by Karpin DCJ on 10 December 1996. The total sentence commenced on 6 January 1996 and expired on 24 December 2006. In the remarks on sentence, his Honour described the facts of the offences as “disturbing”. Of the victim of the first offence, his Honour said:

Of the victim of the second offence, his Honour said:

His Honour concluded:

His Honour also made reference to the need for counselling which had been recommended by Dr Hayes, whose report was tendered at the sentence hearing.

While the defendant was in custody he attended a 16-session group-based program known as Sex Offender Psycho-Educational (SOPE) Program which he undertook from 27 July 1998 until 8 December 1998. After finishing this program he undertook and completed the Custody Based Intensive Therapeutic (CUBIT) Program. The CUBIT Program is offered to moderate to high risk sex offenders and is designed to help offenders change the thinking, attitudes and feelings that led to their offending behaviour. He completed the CUBIT Program in February 2000.

After completing the CUBIT Program, the defendant engaged in a “Transitional Program” from March 2000 until December 2000 which involved weekly maintenance meetings.

The defendant was assessed by Dr Anne Young, a psychologist, on 29 May 2000, with a view to determining whether he was suitable for conditional release. Dr Young noted that the defendant had completed the CUBIT Program in February 2000 and that his participation had been consistently high. She considered him to have “developed a realistic relapse prevention plan with appropriate intervention strategies”.

The minimum term expired on 24 December 2000 after which the defendant was released to parole. Between January 2001 and February 2003 the defendant participated in approximately 42 group sessions run from Forensic Psychology Services (FPS). These sessions were interrupted by a period in custody following the offending behaviour referred to below.

On 4 October 2002, while he was still on parole for the sentence imposed by Karpin DCJ, the defendant breached his parole by committing a further offence. He threatened a woman whose de facto husband (who was then in custody) was a friend of his. According to her witness statement, the defendant told her that if she did not have sex with him, he would tell her family that he had had an affair with her while her de facto was in gaol. He grabbed her around the throat with two hands and shook her before letting go. The next day she phoned her de facto (who was still in gaol) who advised her to report the matter to police. The defendant pleaded guilty to the offence of common assault. He was returned to custody for a short period. On 23 January 2003 a community service order was made in the Burwood Local Court for 200 hours of community service.

On 20 May 2004 the defendant approached a woman on a train bound for Penrith and engaged her in conversation. He asked her where she lived to which she responded “Granville”. When she disembarked at Clyde, the defendant got off the train and followed her. He threatened her with a knife, dragged her to a nearby laneway, and demanded money and jewellery. The defendant instructed her to take his penis out and stroke it. She complied as he was threatening her with a knife. She tried to grab the knife, as a result of which she cut her hand. He continually said to her, “Don’t fuck with me, I can’t get girls any other way”. He told her to put his penis in her mouth. The victim tried to calm him down and continued to try to get the knife. A dog began to bark, as a result of which a light came on. The victim heard a male voice. The defendant paused, at which time the victim was able to run away and get help. Police found the defendant at Clyde Station and arrested him. He pleaded guilty to robbery armed with offensive weapon and assault with an act of indecency in the Local Court and pleaded not guilty to threaten to inflict actual bodily harm with intent to have sexual intercourse. The defendant changed his plea to the last offence to guilty in the District Court.

On 12 July 2004 an application was made by the assigned officer of the Burwood District Office for the community service order to be revoked on the grounds of the charges referred to above, as a result of which he was taken into custody.

A pre-sentence report dated 26 July 2005 was prepared in respect of the defendant by Dr Peter Ashkar who addressed risk factors and the potential for rehabilitation in the following terms:

Dr Ashkar addressed the need for supervision to manage the risk the defendant poses and said:

On 29 July 2005 Armitage DCJ sentenced the defendant for a total term of 11 years with a non-parole period of 9 years for the three offences referred to above to which he had pleaded guilty. The term commenced on 29 July 2005 and is due to expire on 28 July 2016, with a non-parole period of nine years which expired on 28 July 2014 (the individual sentences are set out in the table below). Judge Armitage set out the following extract from the victim impact statement in the remarks on sentence:

His Honour continued:

In the further remarks on sentence given on 12 August 2005 (to correct an error in the original sentence imposed), Armitage DCJ said:

The defendant sought leave to appeal against the sentence. The Court of Criminal Appeal granted leave and allowed the appeal, but only so as to set aside the parole order (which was made without power). The appeal against sentence was otherwise dismissed: Webster v R [2006] NSWCCA 346. Justice Sully (Beazley JA, Hislop J agreeing) said:

In 2008, at the Wellington Correctional Centre, the defendant completed the 12-session “Getting SMART” program which was designed to assist offenders with alcohol and substance abuse. In 2009 he completed the Controlling Anger and Learning to Manage it (CALM) Program

On 28 January 2014 the defendant was offered a place in the CUBIT Program (it being six months before his earliest release date). He declined the place on the basis that he had already done the CUBIT Program and considered that he still had the skills and awareness from having completed it.

The defendant became eligible for parole on 29 July 2014. As a result, the defendant was referred to Sarah Willie of Corrective Services New South Wales for the purpose of preparing a report as to his suitability for release.

Ms Willie, in her report dated 21 May 2014, referred to the clinical notes of a Senior Psychologist of the Department of Community Corrections, which recorded that the defendant had been assessed as being a high risk for sexual offences and that he had declined to engage in further sex offender treatment programs (noting that he had completed CUBIT in February 2000). Ms Willie advised the State Parole Authority that the defendant’s release was not recommended “as a result of the serious nature of the index offence [threaten grievous bodily harm with intent to have sexual intercourse]; his assessed high level of risk of committing like offences; his refusal to again complete the CUBIT program and the fact that he has no suitable accommodation”. Bruce Pearce, the Acting Unit Leader of Wellington Community Corrections, supported Ms Willie’s recommendations. He noted the concern that “the offender does not appear to have any insight as to the effect of his offending behaviours on the victim in this matter”.

On 4 July 2014 the State Parole Authority refused the defendant’s application for parole because he had not participated in treatment programs. He did not seek parole again. As a result the defendant remains in custody. He is due to be released on 28 July 2016. If neither an ISO nor an ESO is made, he will be released to the community without any conditions as to his supervision or otherwise.

On 2 November 2015, Samuel Ardasinski and Danielle Matsuo carried out a psychological risk assessment in respect of the defendant which placed him in the high risk category of sexual offending. In the risk assessment report dated 11 November 2015 Mr Ardasinski and Ms Matsuo identified the factors which tended to increase the risk of re-offending in the following passage:

Ms Ardasinski and Ms Matsuo described the risk posed by the defendant in following terms:

They said further:

A report dated 8 January 2016 was prepared by Vicki McCarthy, Senior Community Corrections Officer, for the purposes of s 9(3)(d1). Ms McCarthy noted the assessment by Mr Ardasinski and Ms Matsuo referred to above. She identified a number of risk factors, including the history of sexual violence and difficulties of social adjustment. She developed a risk management plan, including: the imposition of curfew; unannounced field visits; electronic monitoring combined with the submission of a weekly schedule; a referral to FPS; random drug and alcohol testing; and a prohibition on access to prostitutes or escorts.

The defendant is a “high risk sex offender” if I am satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision: s 5B(2).

I am satisfied on the basis of the risk assessment undertaken by Mr Ardasinksi and Ms Matsuo, when read in light of the defendant’s substantial and longstanding criminal history, that the defendant is a high risk sex offender. He is a supervised sex offender in that he is serving a sentence of imprisonment for a serious sex offence: s 5I(2)(a). The statutory requirements for the present application are met as the summons was filed within the last six months of the defendant’s current period of custody.

The matters referred to in s 9 are to be taken into account in determining whether to make an ESO (and, where relevant, as here, an ISO). I propose to address each relevant matter in turn, although I will address the safety of the community (s 9(3)(a)) last as this factor largely derives from the others.

The reports of Dr Hayes, Dr Young and Dr Ashkar referred to above are to be considered under s 9(3)(c). They indicated that the defendant has been willing to participate in such assessments. Dr Hayes’ observations about the defendant’s lack of insight would appear to remain relevant. Dr Young’s optimism about the salutary effect of the CUBIT Program would appear to be, in hindsight, misplaced. Dr Ashkar’s report provides some basis for considering that the risk posed by the defendant can be adequately managed in the community with supervision.

The risk assessment report of Mr Ardasinski and Ms Matsuo assessed the risk posed by the defendant to be high by reference to static and dynamic risk factors.

The reports of Ms Willie dated 21 May 2014 and Ms McCarthy dated 8 January 2016 address the ways in which the offender could reasonably and practicably be managed in the community. Ms Willie was pessimistic about the prospect that the defendant could be appropriately managed in the community if parole were granted. However, Ms McCarthy addressed the mechanisms that could be put in place through conditions imposed on an ISO or ESO which, in her view, could reasonably and practically manage the otherwise unacceptable risk posed by the defendant.

The narrative set out above indicates that the defendant has undertaken several programs, including the SOPE Program in 1998 and the CUBIT Program which he completed in 2000. By and large the defendant has, until recently, engaged in such programs to an apparently significant extent. His participation has been regarded as substantial. Notwithstanding his participation in such programs, his offending behaviour has continued. This tends to suggest that more is required to manage the risk he poses than the mere completion of programs. His recent refusal to undertake the CUBIT Program on the ground that he has already done it and does not need it tends to indicate a lack of insight, having regard to the defendant’s substantial further offending since he completed the CUBIT Program in February 2000.

While the defendant was on parole for the offences committed in 1995 and 1996, he committed the common assault offence for which he was ordered to perform 200 hours of community service. Before he had completed the requisite number of hours, and while he was still on parole for the offences committed in 1995 and 1996, he committed the offences for which he was sentenced by Armitage DCJ and which led to the current period of imprisonment. The defendant’s recidivism tends to indicate that the offender has not been compliant with conditions of his parole and that such constraints as have applied to him when on parole have been insufficient to control the risk he poses.

The defendant has a lengthy criminal history. The offences involving violence and of a sexual nature which are most relevant to the present application are summarised below.

The circumstances of his offending conduct are summarised in the narrative above. As a result of his offending, the defendant has spent approximately 19 out of the last 20 years in gaol.

The defendant’s offending reveals the following pattern. He selects, apparently spontaneously and at random, a young adult female who is vulnerable, either because she is walking along a public street, or catching public transport in an area where there are few people, or because she is a sex worker. He threatens the woman with a knife in order to have sexual intercourse with her, or to have her perform sexual acts on him. Aside from possession of a knife, his degree of planning is slight. He apparently shows no regard for the safety of the woman and considers himself to be entitled to use her sexually irrespective of her fear, refusal and her attempts to run away. The nature and duration of the defendant’s offending tends to show that he has little or no capacity to form intimate relationships or to engage in consensual sexual activity. His offending history suggests that he acts on impulse to satisfy a sexual desire without regard to the consequences for his victim, or himself. He appears to have little or no capacity to manage his own risk, regulate his conduct, or control his sexual impulses.

The sentencing remarks of Karpin DCJ indicate the extent to which the defendant poses a danger to the community and her Honour’s concern about the need for the defendant to be supervised on release into the community as a way of ensuring that he does not re-offend.

The sentencing remarks of Armitage DCJ and Sully J (with whom Beazley JA and Hislop J agreed) which are set out above indicate a concern about the danger posed by the defendant to the victim and the extent to which the public needs to be protected from him.

The defendant’s criminal history is set out above. As indicated, he was convicted of common assault arising from his conduct on 15 December 1979 and 4 October 2002. The nature of the charges for which the plea was accepted does not incorporate the sexual element of his conduct (derived from the witness statements) as set out in the narrative above. I have taken these additional matters into account under s 9(3)(i), but not to any significant extent as they were not reflected in agreed facts.

The matters referred to above tend to establish that the defendant, if released without supervision, or without adequate conditions as to supervision, would pose an unacceptable risk to the safety of adult females. Those women who are alone in a public street or on public transport, particularly in situations where other members of the public are not present, and those who provide sexual services for a living are in jeopardy from the defendant, who has a demonstrated incapacity to control the satisfaction of his sexual desires by attacks or violent threats.

I was satisfied, following the preliminary hearing on 18 July 2016, that the matters alleged in the supporting documentation (being the affidavit of Mr Bulbulia affirmed 24 June 2016 and its exhibit) would, if proved, justify the making of an ESO. Accordingly, I was obliged by s 7(4) to make orders appointing two relevantly qualified experts to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations, and directing the offender to attend those examinations. I was also, on the same basis (that the matters alleged in the supporting documentation (being the affidavit of Mr Bulbulia affirmed 24 June 2016 and its exhibit) would, if proved, justify the making of an ESO), entitled to make an order for an ISO under s 10A as it appeared to me that the defendant’s current custody will expire before these proceedings (for an ESO) are determined. I was persuaded that it was appropriate to make an order for an ISO for the maximum period of 28 days.

I note the parties’ agreement that, if an ISO is granted, the conditions of any such ISO are to be those attached to the schedule to the summons. I note that the defendant has reserved his right to object to an ESO to take issue with any or all of the proposed conditions at the final hearing. I am satisfied that the conditions set out in the schedule to the summons are appropriate conditions for the ISO which I ordered.

At the conclusion of the preliminary hearing on 18 July 2016, I made the following orders, the reasons for which are set out above: