State of New South Wales v JS (Final)

1. [1]

   The defendant is currently subject to an interim supervision order (ISO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) with conditions directed to containing his risk of sexual offending against children. The ISO expires at midnight on 21 September 2020. The State seeks a 3 year extended supervision order (ESO) by way of final relief.

2. [2]

   The reasons for placing the defendant on the ISO are set out comprehensively and with clarity in the decision of Wilson J in State of NSW v JS (Preliminary) [2020] NSWSC 823.

3. [3]

   Since that judgment, the defendant has been assessed by the court- appointed experts, Dr Ellis, psychiatrist, and Ms Dewson, psychologist. Their opinions have added further significant weight to the evidence already available as to the risks the defendant poses and the reasons why the package of conditions proposed by the State are appropriate (and indeed necessary) to address the risk he poses to the community, and in particular to young children and their families.

4. [4]

   The test to be met is that I must 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: s 5B of the Act. In my view the evidence clearly establishes that test is met, and I find for the reasons set out in this judgment, that it has been met.

Extent of the dispute

1. [5]

   The defendant concedes that he meets the statutory criteria for an ESO and does not oppose the making of an ESO pursuant to s 9(1) of the Act on discretionary grounds.

2. [6]

   However, he opposes the making of an order of 3 years, contending that the appropriate length is no more than 15 months.

3. [7]

   He also submitted through his counsel that the conditions should be less stringent than those sought by the State. In particular he submitted that he should not be subject to electronic monitoring and should not have to provide or be supervised via a schedule of movements.

4. [8]

   A number of other proposed conditions were disputed. Some were the subject of agreement after argument; many remained in issue and require adjudication.

5. [9]

   Given the ambit of dispute, I will focus my reasons on those parts of the evidence that address the question of the length of the ESO and the appropriateness of the conditions proposed.

Evidence

1. [10]

   The State relied upon five affidavits of Ms Najjarin, solicitor, sworn 12 May, 9 June, 10 June, 23 July and 31 August 2020 which annexe and/or exhibit salient background materials and assessments.

2. [11]

   The State also relied upon an affidavit of Rochelle Pateman affirmed 14 August 2020, which provided an updated risk assessment report. Reliance was also placed on an affidavit of Kelli Grabham affirmed 31 August 2020. Ms Grabham gave evidence and was cross-examined. Ms Grabham is the HRO Applications and Operational Governance Officer in the ESO team at Corrective Services NSW.

3. [12]

   The defendant tendered two affidavits affirmed by him on 5 June and 28 August 2020. The affidavits to my mind seek to paint the defendant as a victim of other people’s unreasonableness. They show immaturity and deflection of responsibility for his actions and conduct. He somewhat arrogantly saw fit to criticise both court-appointed experts for the way they conducted their assessments and then sought to “rewrite” his account in a self-absorbed and immature fashion. He gave short oral evidence which was also frankly unimpressive and took a similar tone to his affidavit, for example, he “did not like” what the experts had said about his not revealing his offending to friends with children, although this was in fact a correct observation by those experts. He also relied upon an affidavit of his mother, dated 28 August 2020 and an affidavit of his solicitor, Ms Manio, affirmed 28 August 2020. His mother refers to some improvement in family relationships which is a positive feature to some extent.

4. [13]

   The reports of the Court-appointed experts; Dr Andrew Ellis, forensic psychiatrist dated 5 August 2020 and Ms Chelsey Dewson, psychologist, dated 4 August 2020 were tendered for the assistance of the Court. On 2 September 2020, the experts gave evidence concurrently.

Background Facts

1. [14]

   I have extracted the following background facts from the judgment of Wilson J:

Risk Assessment Reports

1. [15]

   The relevant contents of the risk assessment report of Rochelle Pateman in December 2019 is set out in the judgment of Wilson J at [53]-[93]. The report as summarised by Wilson J contained significant historical matters.

2. [16]

   In her affidavit of 14 August 2020, Ms Pateman made no changes or additions to those recommended risk management strategies. A number of the risk management strategies that she identifies underpin the conditions that the State has proposed.

3. [17]

   Ms Pateman confirmed that JS had not been breached by Community Corrections, that he moved from the Nunyara COSP to private accommodation in Glebe in April, and that his DSO noted that he was difficult to motivate to engage in appropriate physical activity and to search for appropriate accommodation on the Central Coast as per his plan to relocate there. Ms Pateman adhered to her opinion that the defendant still presented as “well above average” overall risk level.

4. [18]

   A number of matters Ms Pateman identified as risk factors provide a basis for the need for careful deployment of risk management strategies. The defendant’s sexual attraction to children, his intimacy deficits, his vulnerability to isolation and loneliness, his sexual preoccupation particularly when under stress, and poor problem solving and lack of any long term plans regarding accommodation and employment are all matters clearly identified as potential risk factors requiring both monitoring and strategies to alleviate them.

Evidence of Dr Ellis psychiatrist and Ms Dewson psychologist

1. [19]

   The evidence of Dr Ellis and Ms Dewson was very helpful, not only to further explain their views relevant to the question of the length of the ESO, but also in understanding from a practical point of view, how and why certain conditions are a necessary part of addressing both the static and dynamic risks that the defendant presents.

2. [20]

   As Dr Ellis succinctly noted “the main assessment of risk, the main risk factors are his diagnosis of a paraphilia disorder and historic behaviours”. [1]

3. [21]

   In his report, Dr Ellis described the defendant’s paraphilic disorder as paedophilia which is a “chronic relapsing condition”. [2]

4. [22]

   Dr Ellis further explained in his oral evidence why he diagnosed the defendant as having paraphilia disorder:

5. [23]

   Dr Ellis expressed a concern that the defendant continued to show limited insight into his offending. In his interview in July 2020, the defendant’s insight into his motivations for the past offences “showed limited descriptive ability and his insight into his previous treatment at my interview showed a limited understanding of strategies for managing sexual behaviour”, and “the reports of his progress in the sex offender treatment program indicated the clinicians there thought that there was further work yet to do”. [4] Dr Ellis was concerned that the defendant was not able to articulate how he would use the things that he had learnt during the program and apply them to his particular situation. [5]

6. [24]

   Dr Ellis noted that another issue indicating limited insight was that when the defendant was asked about the offences, he was able to recount only a limited recollection of them and was unable to explain in detail, how he came to be in the situations where he offended. [6]

7. [25]

   Dr Ellis was concerned that the defendant’s lack of insight was evidenced by him using terms such as that he “felt up” the victims, describing it by the use of a colloquial term that diminished the activity. [7]

8. [26]

   Both Dr Ellis and Ms Dewson agreed that the defendant forming a romantic relationship with a person with children was a significant situation of risk for him. [8]

9. [27]

   Both Dr Ellis and Ms Dewson provided helpful analyses as to the role and purpose of electronic monitoring. Dr Ellis explained:

10. [28]

    Dr Ellis explained why scheduling was important, not only to pick up whether the defendant was not attending a scheduled appointment, which would be of concern, but to encourage him to engage with pro-social groups or pro-social family members outside of the professional supports that form part of his risk management plan. It works with other interventions:

11. [29]

    Ms Dewson agreed, adding:

12. [30]

    The defendant’s dynamic risk factors are relevant to a number of considerations, including whether there should be a condition that pre- authorises the defendant spending time with his sister supervised by family members. Both Dr Ellis and Ms Dewson had reservations about that because the level of risk of the defendant can fluctuate over time. Dr Ellis said:

13. [31]

    Ms Dewson agreed adding:

14. [32]

    In respect of the need to have a condition that is directed to management of potential drug use and its oversight, Dr Ellis explained that he considered such a condition necessary even though there has been no history of drug abuse:

15. [33]

    Ms Dewson added to this that having reflected on the defendant’s HISOP Treatment Report, one of the warning signs noted by that report that may occur was use of illicit drugs. Ms Dewson noted that one of his treatment providers had concerns that this could be a potential problem in the future and so Ms Dewson agreed that it would probably be helpful in terms of managing the defendant’s risk to have him monitored in that regard.

16. [34]

    Dr Ellis maintained a concern that the defendant’s safety in the community was still unproven because the strategies learned in HISOP had yet to be tested, given COVID-19 restrictions meant less usual activities and less potential access to unsupervised children:

17. [35]

    Dr Ellis identified that the problem was that whilst the defendant was able to “list” rather than “detail” the strategies he had been given, he was not able to articulate the practicalities of how he had gone about implementing strategies to deal with his fantasies and whether he in fact had done so was uncertain. Dr Ellis also noted the defendant’s initial reticence to participate in the available treatment program.

18. [36]

    Dr Ellis also had concerns that the defendant had difficulty with his self- identity and that historically that had certainly been a problem:

Why the ESO should be in place for three years

1. [37]

   Both Dr Ellis and Ms Dewson agreed three years was an appropriate length for the ESO. Dr Ellis explained that his estimate of three years is:

2. [38]

   This is a particularly important observation where the defendant was able to offend against two young children of his partner, despite being on the Child Protection Register. It is in my view quite clear that he deliberately breached his requirements and deliberately neglected to tell his partner the details of his previous offending in circumstances where he must have known that if he had told her, he would not have been allowed to reside with those children and access them in the way he did to sexually abuse them.

3. [39]

   Given that safety and protection of the community is the primary object of the Act (s 3) and the defendant’s target victims are young children, it is essential that the term of the order is sufficient to recognise, evaluate, foster and monitor the risk the defendant presents. His feelings of unfairness about the requirements of the conditions and the length of the supervision I have determined is required are very much subordinate considerations.

4. [40]

   The defendant argued that [99] of Ms Dewson’s report suggested an ESO for a term of 12 to 18 months was sufficient. On the contrary, Ms Dewson explained in her evidence that her comment in her report at [99] should not be read as suggesting an ESO of three years was not appropriate. She was simply pointing out that the defendant had the potential to meet the recommendations outlined in her report and if and when he does so, restrictions could be decreased. Ms Dewson explained:

Principles governing imposition of conditions

1. [41]

   Section 11 of the Act provides for the conditions that may be imposed on a supervision order. It is not an exhaustive list, but includes requirements to wear electronic monitoring equipment, to reside at a particular address, not to engage in particular types of conduct, and relevantly here, to comply with any obligations imposed under Part 3 of the Child Protection (Offenders Registration) Act 2000 (NSW).

2. [42]

   Section 12 of the Act provides that a person who fails to comply with the conditions of an ESO is guilty of an offence. The maximum penalty prescribed for such an offence is 500 penalty units or imprisonment for 5 years, or both.

3. [43]

   Given the available penalty for breach of a condition of an ESO, counsel for the defendant submitted that certain potential behaviours by the defendant should not be “criminalised” by the imposition of inappropriate conditions.

4. [44]

   If those behaviours were irrelevant to risk, I agree. But when they are relevant to risk, and are part of a package that is appropriate to address the psychological difficulties and identify and modify behaviours the defendant has exhibited and continues to exhibit, and provides opportunity to identify when signs of risk that he may engage in offending against children are beginning to emerge, then the primary object of the Act is given necessary effect by the imposition of those conditions.

5. [45]

   The State proposes that the defendant’s movements be electronically monitored. It is well-known that there are stages of electronic monitoring and scheduling and that those stages are graded and a step-down process is engaged in as the risk presented by the person in question lessens. Ms Grabham gave evidence about that process.

6. [46]

   The defendant complains that he has already been monitored on parole and on the ISO for 9 months. He disputes that he should be monitored any further or to have to provide any schedules. This submission indicates a lack of understanding as to the role of monitoring. It suggests that the monitoring is a “punishment” that should be limited in time. On the contrary it is protective of the community and, to an extent, the defendant himself, to help promote his rehabilitation.

7. [47]

   The conditions proposed by the State are:

8. [48]

   The defendant contends that if these conditions are imposed, there should be an inbuilt short term review requirement, because there is, as a general rule, insufficient attention paid to reduction of the stringency of the monitoring requirements and left in the hands of his DSO, it will only be intermittently considered. An alternative wording for condition 4 was proposed:

9. [49]

   The defendant contends that if he must provide a schedule of movements the requirement should be worded as follows:

10. [50]

    Alternatively, if the State’s conditions 4-6 are preferred, the defendant submits that 7 should be re-worded:

11. [51]

    In my view, the conditions proposed by the defendant are not appropriate. The defendant’s proposed condition 4 takes oversight and discretion away from the DSO who has the task of assessing the defendant’s progress in the community. Given the defendant’s documented multifaceted psychological and social difficulties, imposing an arbitrary time limit or an “absence of offence” based time limit is inappropriate. Both Ms Dewson and Dr Ellis agreed that the defendant’s stability, and thus his risk, is likely to fluctuate.

12. [52]

    The defendant’s proposed condition 4 is complex and confusing in form and is simply inadequate to properly address potentially fluctuating risk. As explained by Dr Ellis, the monitoring and scheduling is not solely directed to prevent active breaches of the requirements of the ESO, but also to encourage rehabilitation attendance and compliance. In a situation where the defendant has a proven record of dishonesty and subterfuge which enabled him to set up a domestic situation where he accessed and offended against young children, there is a clear need to observe and monitor whether the defendant is in fact doing what he says he is doing and to monitor his psychological state.

13. [53]

    I consider electronic monitoring and the requirement that the defendant provide a schedule of movements ahead of time is appropriate and indeed necessary to manage his risk. The primary aim of the ESO conditions is not to focus on breach and to ensure any breach is punished, but to set up a package of conditions that keep the community safe from the risk that the defendant presents to children. The purpose of the monitoring and schedule of movements conditions proposed by the State are well explained, in particular by Dr Ellis in his evidence set out at [27]-[28]. In my view those conditions are appropriate and should be imposed.

14. [54]

    The condition proposed by the State is:

15. [55]

    The defendant opposes the condition, but if imposed, says that the wording of the condition should be:

16. [56]

    The insertion of the word “reasonably” injects uncertainty and ambiguity into the condition. It provides license to the defendant to choose to disobey a requirement and then argue with his DSO as to what was “reasonable” in circumstances where the defendant has a proven demonstrated willingness to breach his obligations under the Child Protection Register and to lie about this, saying he “forgot”. A condition that is apt to be manipulated or argued about introduces an unnecessary level of risk and should not be permitted. The State’s proposed condition should be imposed.

17. [57]

    The conditions proposed by the State are:

18. [58]

    The defendant contends that the conditions should be:

19. [59]

    The defendant argues that there should be removal of any reference to drugs because drugs are not a relevant risk factor for the defendant and the criminal law can deal with general criminality separately from consequences associated with a criminal breach of the ESO.

20. [60]

    It was also submitted that the compliance requirement should be limited to prescription drugs related to psychological or psychiatric treatment.

21. [61]

    The defendant’s arguments have no merit. Both experts agreed that monitoring potential use of illicit drugs in addition to alcohol use was useful in managing risk. As Dr Ellis stated:

22. [62]

    The condition proposed by the State is:

23. [63]

    The defendant contends that the condition should be:

24. [64]

    The defendant contends that any reference to drugs should be removed because drugs are not a relevant risk factor for the defendant.

25. [65]

    For the reasons articulated by Dr Ellis set out in [61], with which Ms Dewson agreed, any programme reasonably required by the DSO should include drugs as well as alcohol rehabilitation to ensure relevant focus and risk management.

26. [66]

    The condition proposed by the State is:

27. [67]

    The defendant opposes the condition in that form, arguing that the insertion of the word “reasonably” may be unfair to the defendant.

28. [68]

    The State submits that the defendant should be required to turn his mind to the places he visits and his obligations under the ESO rather than being able to argue that he “did not suspect”. Given the defendant’s demonstrated dishonesty and tendency to manipulation, the State’s form of condition is appropriate and should be imposed.

29. [69]

    The condition proposed by the State is:

30. [70]

    The defendant contends that the condition should be:

31. [71]

    Dr Ellis and Ms Dewson provided compelling reasons why the DSO should maintain a level of control over this arrangement. Those reasons are set out at [29]-[30] above. The State’s version of the condition should be imposed.

32. [72]

    The condition proposed by the State is:

33. [73]

    The defendant contends that the condition should be:

34. [74]

    The inclusion of the word “reasonably” leads to uncertainty and sets up an arena for evasion or non-cooperation and an ambiguity for the defendant to exploit. This will undermine the necessary parameters of supervision, and thus undermine, potentially, safety of the community – here specifically, young children. The State’s wording of the condition should be imposed.

35. [75]

    The condition proposed by the State is:

36. [76]

    The defendant contends that the condition should be:

37. [77]

    The defendant argues that the condition should be limited to clubs/organisations with a risk factor for potential offending relationships.

38. [78]

    The defendant’s proposal has the potential to remove from the hands of the DSO control and supervision in an important circumstance of potential risk, and to vest control in the hands of the defendant. Given the defendant’s previous dishonesty and manipulation, such a situation should not be allowed. The State’s version of condition 28 will be imposed.

39. [79]

    The State’s form of conditions make reference to the need to include all health care practitioners in the proposed conditions.

40. [80]

    The defendant contends that the conditions should be limited to only mental health care practitioners (and his general practitioner) and that condition 45, which requires the defendant to attend all relevant treatment appointments, should be limited to appointments his DSO “reasonably” tells him to attend. For the reasons already stated in [56] and [74] of this judgment, the word “reasonably” is not appropriate and will not be countenanced.

41. [81]

    The conditions in issue proposed by the State are as follows:

42. [82]

    In my view the form of conditions proposed by the State are appropriate. The reasons are frankly, obvious. The defendant should comply with arrangements for his health to avoid stress-related decompensation which is referred to as a risk by Ms Pateman, Dr Ellis and Ms Dewson. The same considerations apply to conditions 46 and 47. Condition 48 is necessary to ensure the DSO can obtain information which would otherwise be protected by patient/healthcare provider privilege. It is obvious why this information should be shared, and that is so that those treating the defendant can remain alert to signs of decompensation or risk-related behaviour.

43. [83]

    Regarding condition 50, it may become relevant for the DSO to disclose the defendant’s criminal history to a healthcare professional treating the defendant and the DSO should maintain that right and discretion for community safety.

44. [84]

    At the resumed hearing on 14 September 2020 Ms McGee sought a notation to condition 8 which provides:

45. [85]

    Ms McGee argued that the condition should have the following notation added to it:

46. [86]

    In support of this position Ms McGee submitted that the notation was required “consistent with the form of condition sought by the State and ordered in the matter of State of New South Wales v Cheney [2020] NSWSC 1231” (“Cheney”).

47. [87]

    The Crown opposed the notation as inappropriate.

48. [88]

    The judgment of Garling J in Cheney does not explain or refer to the notation which seems to have been included without contest. In those circumstances there is nothing to guide me as to why the addition of the note was thought to be appropriate in that case.

49. [89]

    Care should be taken to refrain from seeking to import conditions from one matter to another in applications of this legislation. The risks to be managed vary significantly from case to case. The fact that the State made a proposal for a particular notation to a condition in the circumstances of one matter, has no relevance or bearing whatsoever on the question of whether a similar notation should be included in another matter dealing with different risks and different issues.

50. [90]

    The proposed notation is circular and would remove the utility of condition 8 and its role in protecting the community if the defendant chose to lie as to where he is going and what he is doing because he planned to breach his conditions or engage in criminal conduct, or had already done so.

51. [91]

    I am not prepared to make the notation sought. It seems to me the proposed notation suffers a number of problems in the context of this particular defendant. The first and most notable one is that the defendant has demonstrated manipulative, dishonest behaviour that allowed him to access and sexually abuse children. As observed at a number of places in my judgment, anything that allows the defendant to argue about his obligations and responsibilities pursuant to a condition is a circumstance at risk of being exploited by the defendant.

ORDERS

1. [92]

   I make the following orders:

   1. (1)

      Order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that JS be subject to an extended supervision order for a period of three years.

   2. (2)

      Order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) that JS, for the period of the ESO, comply with the conditions set out in Annexure A to this judgment.