State of New South Wales v Williams (Final)

1. [1]

   HIS HONOUR: The State of New South Wales (“the State”) commenced proceedings by a summons, filed 7 July 2021, seeking an Extended Supervision Order (“ESO”) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) for the supervision of the defendant for a period of five years from the date of the Order (“the application”).

2. [2]

   On 8 September 2021, Garling J made preliminary orders that included an Interim Supervision Order (“ISO”), pursuant to s 10A of the Act, for a period of 28 days from 14 September 2021, which is the date that the total sentence for the index offence expired: State of New South Wales v Williams [2021] NSWSC 1140. The ISO was renewed on 11 October 2021, 4 November 2021 and by me on 3 December 2021. It will expire on 13 December 2021. Pursuant to an order made by Garling J that two forensic experts be appointed to examine the defendant and furnish reports to the Court, reports have been received from a forensic psychologist (Patrick Sheehan), and a forensic psychiatrist (Dr Jeremy O’Dea).

3. [3]

   The application for final orders pursuant to ss 5B and 9 of the Act was heard on 3 and 9 December 2021. The Act stipulates certain requirements of the application as to its timing and the defendant’s custodial status, of which the Court must be satisfied, before an ESO may be made: ss 5B(a) – (c). Counsel for the parties are agreed that those are satisfied. I have examined the relevant documentation and am independently satisfied of that conclusion.

4. [4]

   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. 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 ss 5B(d), 5D and 9(2) of the Act, which provide as follows:

5. [5]

   The defendant did not submit against the plaintiff’s proposition that the test set out at s 5B(d) (the “unacceptable risk” test) is satisfied and that the appropriate period for an ESO is five years. Having considered the material and matters set out at s 9(3), in accordance with the relevant principles, I conclude that the unacceptable risk test is satisfied and that it is appropriate for the Court to exercise its discretion in favour of making an ESO for a period of five years. My reasoning is based on the following material and considerations.

The defendant’s personal history

1. [6]

   The defendant, a First Nations man of the Noongar people in Western Australia, is aged 48. His early history was summarised by Mr Sheehan, who had assessed him previously, in his report as follows:

2. [7]

   When aged about 17, the defendant commenced a relationship that ultimately produced five children. In around the mid 1990s the defendant and his family travelled to New South Wales. In 1999, the relationship ceased and the defendant returned to Western Australia. Not long afterwards, he was charged with serious criminal offences and has spent most of the period since then in custody.

3. [8]

   The defendant was released to parole from his most recent prison sentence on 29 June 2021. He told Mr Sheehan that he has remained single since 2016 (see “criminal history” below, concerning that relationship), but that he has engaged in written correspondence with a woman since he was conditionally released. He was initially accommodated in a Community Offender Support Program Centre (“COSP”) and then found accommodation in the inner city of Sydney, within walking distance from his employment. He stated that his time is occupied with work and exercise, but little else. He finds his scheduling requirements to be onerous but reported favourable relations with his Departmental Supervising Officer (“DSO”), with whom he meets on a fortnightly basis.

The defendant’s substance abuse history

1. [9]

   Following the death of his grandfather when the defendant was aged 12, he began truanting school, associating with antisocial peers, drinking alcohol, using cannabis and engaging in criminal activity. He left school at 15. A psychologist in a report in 2010 stated that the defendant told her that he began using methylamphetamine when he left school and that, by the time he entered prison in 2001, he had been using heroin on a daily basis for two years. However, according to a report by a forensic psychiatrist in 2017, the defendant denied having ever used methylamphetamine. He has claimed that his need for money to feed his drug use was the motive for much of his criminal offending.

The defendant’s criminal history

1. [10]

   The defendant first appeared in the Children’s Court in Perth when he was aged 14, charged with stealing. In all, he appeared in the Children’s Court on 20 occasions, charged with over 50 predominantly property offences, such as breaking and entering.

2. [11]

   His first court appearance for an offence of serious violence was for an assault occasioning bodily harm, committed in 1995 when he was aged 21, to which he pleaded guilty. The victim was his partner, who by then had given birth to two of their children. The circumstances were that she had left the relationship four days before. He went to a house where she was drinking with friends. She tried to hide from him, but he found her. He punched her to the face and dragged her by her hair to a different part of the house. By the time of his sentence 18 months later, they had resumed their relationship. He received a Community Service Order and 18 months’ probation.

3. [12]

   By 1996, the defendant and his partner had moved to Sydney. In June 1996, he appeared in Waverly Local Court charged with two assaults of his partner and malicious damage to property. He was discharged pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (since repealed). In 1997, the defendant was charged with aggravated sexual intercourse without consent of his partner. He was committed for trial but in 1997 the Office of the Director of Public Prosecutions determined not to proceed with the matter.

4. [13]

   A sequence of offences involving more serious violence were dealt with in the Supreme Court in Perth in 2001 being armed robbery, aggravated burglary and assault occasioning actual bodily harm. He pleaded guilty to all three offences. The circumstances of the armed robbery offence were that on 12 January 2001, when the defendant was aged 27, he held up a chemist with a knife, getting away with $2,000 in cash. The burglary offence and assault offences arose from a single incident a week later. The circumstances, advanced at the sentence hearing apparently without dispute, were that shortly after midnight, he broke into a home where a woman, aged 72, resided alone. She had a disability that confined her mobility to the use of a wheelchair. She awoke in bed to the defendant standing over her, naked from the waist up, shining a torch in her face and demanding money. She directed him to the kitchen and then rang her son for assistance and armed herself with a knife. The events thereafter were described by the Crown on sentence:

5. [14]

   The defendant received a total sentence for the three offences of 10 years and 6 months imprisonment. The sentencing judge approved the defendant for parole. Pursuant to s 93(1)(b) of the Sentencing Act 1995 (WA), for a sentence of more than four years, parole commenced when the offender has served two years less than the term.

6. [15]

   The defendant’s first conviction for a sexual offence was in the District Court at Perth in 2002 following a trial for aggravated and unlawful indecent assault, for which he received a sentence of 18 months’ imprisonment, wholly cumulative on his sentence for the earlier three offences. The facts on which he was sentenced were that he and a woman who he was visiting were alone in her residence. He dragged her by her hair along the floor into her bedroom, threw her down on a bed, exposed her breasts and pulled down her pants. She pulled her pants up and the defendant was then distracted by her four week old baby crying. She contacted a friend who attended and, on her arrival, the defendant left the premises.

7. [16]

   In May 2009, having served eight years in prison in Western Australia, the defendant was extradited to New South Wales to face trial on three counts of sexual intercourse with a person under the age of 10 years, contrary to s 66A of the Crimes Act 1900 (NSW). He was convicted at trial the following year.

8. [17]

   The offences had been committed between 1997 and 1999, when the defendant was aged between 23 and 25. The single victim was one of his daughters, who was aged 5 at the time of the first offence. The other two offences occurred a few days apart, 18 months later. The nature of the first two offences was penile/vaginal intercourse and the third was oral intercourse. The sentencing judge noted that the third offence was aggravated by “actual violence”:

9. [18]

   The defendant received partly concurrent sentences, being a total sentence of 8 years, backdated to commence on 29 May 2009 and concluding on 28 May 2017, with an effective total non-parole period of 5 years. In April 2015, he was released to parole. He was placed on the Child Protection Register and on 10 April 2015, he acknowledged in writing his awareness of his reporting obligations pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW).

10. [19]

    In March 2016, police became aware that he was visiting an address that he had not reported, where a woman and her three children resided, being twin girls aged 4 years and a girl aged 6 years. He had been in a relationship with the woman since about December 2015. He was arrested on 16 March 2016 at the address and charged with failing to comply with reporting obligations. On 28 July 2016, he received a sentence of 9 months imprisonment with a non-parole period of 6 months.

11. [20]

    Following interviews by police of the children, the defendant was charged with further child sexual offences. He eventually entered pleas of guilty in the District Court at Newcastle to two counts of aggravated indecent assault in respect of two of the children, contrary to s 61M(2) of the Crimes Act, and asked that a further five offences of common assault be taken into account on a Form 1 in respect of the sentence for one of the children. The circumstances of the sexual assault charges were that he had touched the vagina of one of the twins on the outside of her swimming costume while they were at a beach and he had touched the vagina of the other twin when the children had been left in his care while their mother went to the shops. Three of the assault charges involved the defendant pulling each of the children by their hair when their behaviour irritated him. Another involved him hitting a child with his thong and the remaining count involved the defendant hitting the children’s mother during the course of an argument.

12. [21]

    The sentencing judge assessed the defendant’s prospects of rehabilitation as being guarded, having regard to his previous convictions for sexual offending and a diagnosis of him by a forensic psychiatrist of a paedophilic disorder. The defendant gave evidence. The sentencing judge was satisfied that expressions of remorse by him were genuine and that he had insight into the causes of his offending behaviour.

13. [22]

    At the time of these offences, the defendant was aged 42. On 25 October 2018, he was sentenced to a total term of 4 years and 9 months imprisonment with a non-parole period of 3 years and 2 months, to commence on 15 December 2016. He became eligible for parole on 14 February 2020.

The defendant’s mental health and mental condition

1. [23]

   Psychometric testing carried out in 2010 established that the defendant had a co-morbid mood disorder marked by depression and anxiety. His intellectual ability was reported as falling between the borderline to low average range, although there does not appear to be subsequent opinions to that effect. He has reported incurring a head injury when he was aged 16, which left him unconscious “for hours”. He has reported suffering a further loss of consciousness whilst in prison in about 2006.

2. [24]

   In 2017, the defendant was assessed by Dr Andrew Ellis, a forensic psychiatrist who has particular expertise in the area of assessing and treating sexual offenders. Dr Ellis diagnosed the defendant as meeting the criteria for a paedophilic disorder, an antisocial personality disorder and a substance use disorder. He found no evidence of intellectual or cognitive problems.

3. [25]

   In 2018, in preparation for sentence proceedings for the index offences, Dr Christopher Bench, forensic psychiatrist, was retained by the defence to prepare a report. Dr Bench diagnosed the defendant as having a paedophilic disorder and a post-traumatic stress disorder in his childhood and potentially in his adolescence, that had been in remission “for many years”. He also diagnosed the defendant as having an antisocial personality disorder, following on the prerequisite diagnosis of a conduct disorder, primarily on the basis of his criminal offending generally.

4. [26]

   In November 2021, Mr Sheehan diagnosed the defendant as having a polysubstance use disorder (moderate, in sustained remission) and an antisocial personality disorder, with features that are “reminiscent” of a borderline personality disorder. He also qualified for a paedophilic disorder.

5. [27]

   There is a degree of uncertainty in the forensic reports as to whether the defendant has, or has had, a psychiatric diagnosis. In a report dated 12 July 1996 that was prepared for court, Dr Michael Paton, a psychiatrist with the Aboriginal Mental Health Unit of the Central Sydney Area Health Service (an agency funded by NSW Health), recorded a history from the defendant of hearing voices for two years and other psychotic symptoms. He diagnosed the defendant as having:

6. [28]

   Dr Ellis, in his 2017 report, thought Dr Paton’s diagnosis unlikely. The defendant told Mr Sheehan and other forensic specialists that he had fabricated the symptoms when assessed by Dr Paton to “save face” regarding his behaviour at the time. Dr O’Dea, in his report dated 10 November 2021, stated:

The level of risk of sexual reoffending posed by the defendant

1. [29]

   An assessment conducted in May 2015, utilising the assessment tool known as the Level of Service Inventory – Revised (“LSI-R”) assessed the defendant as falling in the medium-high risk for general reoffending. A psychological risk assessment conducted in October 2016 determined that he fell in the high risk category of sexual offending.

2. [30]

   A risk assessment report that was prepared in October 2016 by Samuel Ardasinski, a senior psychologist of the Serious Offenders Assessment Unit of Corrective Services NSW, noted the defendant’s participation in programs that were intended to address his offending behaviour. The earliest such program was a sex offender treatment program, known as SERCO, whilst he was in custody in Western Australia in 2008. His level of engagement was described at the time as manifesting a lack of motivation to change his behaviour. In 2014, he completed the Custody-Based Intensive Treatment program known at the time as CUBIT. The treatment report concluded that he completed the program well, although noting that he continued to rationalise and justify his prior offending. Following his release from custody in May 2015, the defendant participated in a community-based maintenance program conducted by a private agency known as Forensic Psychology Services until February 2016. His progress was described in positive terms, although, in the latter stages of the program he was re-offending.

3. [31]

   Mr Ardasinski utilised the STATIC-99R assessment test of static factors to assess the defendant’s risk of reoffending with a sexual offence. It placed the defendant in the highest risk category of the test, which was termed the high-risk category of reoffending. The Risk of Sexual Violence Protocol (“RSVP”), which is a structured professional judgement tool for assessing sexual violence risk, confirmed the STATIC-99R assessment.

4. [32]

   In his 2017 report, Dr Ellis also administered the STATIC-99R assessment test, which on that occasion placed the defendant in the “above average” risk category. Dr Ellis noted an absence of protective factors such as stable employment, accommodation and prosocial peers. He considered that there were a number of scenarios that might give rise to further sexual offending involving women and children.

5. [33]

   In a supplementary risk assessment report dated 12 February 2021, Mr Ardasinski noted that there had been various scores obtained by forensic experts administering the STATIC-99R which had not placed the defendant in the highest risk category, but in his view, given the 2016 offences, now clearly warranted that level. In any event, he administered a further empirical actuarial measure of static risk factors known as the STATIC-2002R, as well as an assessment tool of stable dynamic factors, known as the STABLE-2007. The STATIC-2002R confirmed that the defendant fell in the highest risk category for that tool. The defendant rated on the STABLE-2007 as having “a High density of criminogenic needs relative to other male sexual offenders” (emphasis in original). The areas of significant clinical concern were his capacity for relationship stability, deviant sexual interests, impulsivity and co-operation with supervision. A combination of the results of the STATIC-2002R and the STABLE-2007 suggested that he would require a high level of intervention and/or supervision.

6. [34]

   Mr Ardasinski noted that in July 2020 the defendant had accepted an offer to participate in a High Intensity Sex Offender Program (“HISOP”). However, he was suspended from the program after three months for a period of two weeks for physical and verbal aggression and suspended again for another aggressive incident in January 2021. At the time of the report, he was due to complete the program in April 2021. I was informed by counsel that he has done so.

7. [35]

   Mr Sheehan, in his report dated 5 November 2021, stated that he had prepared reports in respect of the defendant on multiple past occasions. He assessed the defendant on the STATIC-99R as being in the “Well Above Average” risk category (emphasis in original). Mr Sheehan also utilised a dynamic risk factor check list known as the Risk of Sexual Violence Protocol (“RSVP”). His conclusion as to the defendant’s level of risk of committing a sexual offence was as follows:

8. [36]

   Mr Sheehan made the following recommendation:

9. [37]

   Dr O’Dea, in his report dated 10 November 2021, diagnosed the defendant as having a substance use disorder, which was causally related to his violent and sexual offending. He also diagnosed the defendant as having a personality disorder with significant antisocial and psychopathic traits and a paedophilic disorder. He assessed the defendant’s level of risk of committing a serious offence in the following terms:

Conclusion

1. [38]

   Accordingly, as noted, I conclude that the unacceptable risk test is satisfied and that an order for an ESO is appropriate. In accordance with the view of the forensic experts that the defendant’s diagnoses are entrenched and therefore the risk is long-term, I am of the view that the period of the ESO should be for five years. I now turn to the question of what conditions should attach to the ESO.

Conditions to the ESO

1. [39]

   The majority of the conditions that were scheduled to the summons are agreed between the parties. Some that were initially the subject of disagreement have been modified to the satisfaction of both parties and were incorporated into an amended summons that was filed in Court on 3 December 2021, the scheduled conditions being the only amendments. Some of those conditions have been further amended in the course of the hearing. I will resolve those that remain the subject of dispute.

2. [40]

   The defendant opposed certain proposed conditions (conditions 24, 26 and 31A) as being unnecessarily restrictive. Ms Kelli Grabham, an officer of the ESO team and an on-call manager involved in the defendant’s oversight, gave evidence to the effect that the current strategy of the ESO team was to require the defendant to not consume alcohol at all, until he is settled in the ESO regime, and then to introduce community-based treatment and therapy. Once this is under way, he will be permitted to consume alcohol, subject to monitoring.

3. [41]

   In my view, given the role of alcohol in his past offending, the proposed conditions are appropriate.

4. [42]

   Proposed conditions 5, 6 and 7 concern a weekly schedule of the defendant’s proposed movements, to be approved in advance by a DSO (condition 5). Any change to the schedule must be approved by a DSO 24 hours in advance, unless a DSO approves a shorter period (condition 6). The defendant is only permitted to deviate from the schedule in an emergency (condition 7).

5. [43]

   As to conditions 6 and 7, the defendant proposed a “cut-out” that would allow him to remain at his place of employment or at a pre-approved place or activity, longer than the period approved in the schedule. As a further amendment to condition 7, the defendant proposed that the obligation be suspended if he does not breach a condition or commit a criminal offence for a period of 6 months, in which case the obligation would be reactivated. The defendant noted that if his employer asked him to work back, he had to first obtain telephone approval, which was awkward, and over time could jeopardise his employment. It was submitted that a general approval to delay his departure from approved places and activities was in keeping with him earning a greater degree of freedom, which is to be understood against a conceded concern that he had become institutionalised by such a prolonged period in custody.

6. [44]

   The plaintiff opposed the defendant’s proposal, noting the circumstances of the 2015/16 offences and submitted that electronic monitoring would be pointless if the defendant’s location could not be compared to where he was supposed to be at any given time, thus necessitating a continuation of the schedule obligation at least so long as there was electronic monitoring, and with prior approval of any variation to it.

7. [45]

   I note that since the defendant’s release to parole on 29 June 2021, he has been subject to conditions which include the provision by him of schedules and electronic monitoring, so that a six-month “sunset clause” would involve him being compliant overall for an eleven-month period. Other conditions prohibiting the visiting of certain venues, such as places serving alcohol, would still apply.

8. [46]

   Mr Sheehan addressed the issue of monitoring and reporting conditions in his report, stating:

9. [47]

   I accept Mr Sheehan’s opinion in principle, but have two concerns as to the length of the condition. I am mindful of the circumstances of the 2015/16 offences. The defendant had been on parole for a period of 11 months before this relationship and further child sexual offending was discovered. Secondly, in view of the central role that was played by the applicant’s abuse of alcohol and prohibited drugs in his criminal offending, the schedule should be in place for a set period after the defendant is granted permission to consume alcohol. At this stage, it is not known when that will occur, since it is likely to follow on from community-based treatment and therapy that has not commenced. Ms Grabham gave evidence that it may be considered at the next bi-monthly conference, which presumably will occur two months after the ESO commences.

10. [48]

    To address both concerns, I will provide a sunset clause of nine months, but allow the authorities an option to reintroduce the schedule to operate from the date from which the applicant is approved to consume alcohol for a further period of nine months. If that approval arises within the initial nine-month period, the schedule may be required from that time for a period of nine months. If the defendant breaches another condition or commits a criminal offence at any time during the ESO, the schedule may be reintroduced for a period of nine months.

11. [49]

    The employment issue could be accommodated by a variable scheduling, so that the defendant could stay at his place of employment beyond the end of his shift without requiring express approval, subject to his compliance with conditions 27, 55 and 57, which concern his obligation to attend therapy. The issue of staying on at approved venues could be problematic, for example, a park visit may only be appropriate during school hours. Similarly, staying on at any venue that would involve using public transport at a time that it is heavily used by schoolchildren could be an issue. I will not allow a cut-out beyond his place of employment.

12. [50]

    Proposed condition 18 includes a provision that the defendant not attend a place that provides sexual services without the prior approval of a DSO. The defendant proposed that the following be added:

13. [51]

    The defendant noted that the process of seeking prior approval for such visits has been protracted. As of 3 December 2021, he had been waiting on such advice following a request made by him on 13 October 2021 to visit two identified brothels, the delay in part being due to the DSO consulting the Forensic Psychology Services (“FPS”) for advice on the matter.

14. [52]

    I note the following observations by Mr Sheehan in his report on this issue:

15. [53]

    By 9 December 2021, the defendant had been approved to attend the brothels. In evidence, Ms Grabham stated that advice as to the specified brothels had also been sought from police. She thought it unlikely that future approval would take as long.

16. [54]

    I am of the view that the condition should be in the terms proposed by the plaintiff. I take judicial notice of the availability of prohibited drugs, on occasion, from brothels and the nexus between the defendant’s criminal offending and drug use. It is appropriate for the proposed licensed brothels to be vetted by police in advance and for the advice of the FPS to be sought in the context of the defendant’s progress.

17. [55]

    The plaintiff proposed a condition that prevents the defendant from using an application that provides encrypted messaging (condition 41), in view of his history of secretly forming a relationship. The defendant opposed the condition on the basis that his employer uses such an application to communicate with staff. The plaintiff has proposed a modified condition that will permit the defendant to use any application utilised by his employer, subject to confirmation that the application is indeed used by his employer and for that purpose, and that certain information enabling access is provided by the defendant. I approve the condition in that modified form.

18. [56]

    These few conditions were all that remain in dispute following negotiations between the parties. I commend both parties for their reasoned and sensible approach in resolving so many of the disputed aspects of the ESO conditions.

Orders

1. [57]

   I make orders as follows: