State of New South Wales v KW (preliminary)

1. [1]

   Before the Court is an application by the plaintiff for an interim supervision order against the defendant, pursuant to s 10A of the Crimes (High Risk Offenders) Act, 2006, and for orders for the appointment of specialist expert witnesses pursuant to s 7 (4) of that Act.

2. [2]

   The summons was filed on 9 March, 2023. The defendant is presently serving a sentence of imprisonment that was imposed on 14 December 2018. It is an aggregate term of 4 years and 6 months with a non-parole period of 2 years and 6 months. The sentence commenced on 29 October 2018. The non-parole period was completed on 28 April 2021. The defendant has not been granted parole and the head sentence will expire on 28 April 2023.

3. [3]

   The summons was filed within the period provided for in the Act. The sentence that the applicant is presently serving and the offence for which it was imposed, are such as to satisfy the requirements of s 5B (a), (b) and (c) of the Act. The only remaining question in order to determine whether the interim supervision order and the orders for examination by experts should be made under ss 7 and 10A is the question of whether, upon the final hearing of the summons, if the matters appearing in the materials now provided to the Court should be accepted and should prove the facts to which they refer, would the Court 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. That proposition has been clearly established by the material tendered and it is not in dispute by the defendant, who is represented by counsel.

4. [4]

   The defendant is a man now aged 36 years. He has been assessed to have a mild intellectual disability. His cognitive capacity is within the lowest 2 percent of the population, calibrated relevant to his age. In addition to his cognitive limitations the defendant has been diagnosed with polysubstance abuse disorder and at times he has been diagnosed with anxiety, depression and a borderline personality disorder.

5. [5]

   The evidence before the Court shows, prima facie, that the defendant had an extremely turbulent and adverse upbringing, in a family in which there was significant parental abuse of himself, both physical and sexual. It was a family in which there was also extensive consumption of alcohol by the defendant’s father and use of illicit substances, principally cannabis, by his mother. Against that background, the defendant matured into a person with very little capacity for self-regulation or control of his urges and volatile moods.

6. [6]

   Between 2004 and 2016 the defendant was subject to apprehended domestic violence orders taken out, first, by his mother, father and younger sister and, later, by an adult female partner with whom he was in a relationship for some years from March 2010. Also during that period, 2004 to 2016, the defendant was convicted of a number of offences that stemmed from his inability to regulate his own behaviour, such as using uninsured vehicles, using a carriage services to menace and intimidate. A number of breaches of bail were recorded against him during the course of his prosecution for these offences.

7. [7]

   In February 2013, at the age of 26, the defendant committed an indecent assault upon his stepdaughter, an 11 year old girl who was the daughter of his then partner. That offence was not prosecuted until 2017. He was charged with that offence on 1 May 2017 and was sentenced in the following year to a term of imprisonment of 18 months with a non-parole period of 9 months.

8. [8]

   The index offences for which he is currently in custody and to which the present application is referable were committed in April 2018 whilst the defendant was on bail for the indecent assault against his stepdaughter. The index offences involved the defendant establishing a relationship over the Internet with a girl who was 14 years old and nearly 15. He met with this girl on two separate occasions and on each occasion had full penetrative sexual intercourse with her and committed other sexual acts such as digital penetration. The evidence showed, and the defendant did not dispute, that he was aware that she was under the age of 16. He expressed to people who assessed him in relation to that offending that he did it knowing that it was wrong and out of anger at having been prosecuted, commencing in May 2017, for the indecent assault that had occurred some four years earlier against his 11-year-old stepdaughter.

9. [9]

   I have already referred to the aggregate term of imprisonment that was imposed for the index offences. I have taken into account risk assessment reports and risk management reports that have been prepared by psychology professionals of Corrective Services. I am satisfied that if this material is made good on final hearing, the Court would readily conclude that the defendant would pose an unacceptable risk of repeated offending if not subject to supervision in the community. I am satisfied that on this material, if accepted, that conclusion would be reached to a degree of comfortable satisfaction. Accordingly, it is appropriate to make orders in terms of paragraphs 1 and 2 of the summons and those orders will be entered.

10. [10]

    The interim supervision order, that will take effect pursuant to those orders, is to be subject to conditions. The State has proposed 62 conditions, many of which are opposed by the defendant. The Court has received detailed written submissions explaining the basis of opposition and has been provided with a helpful table that identifies the points of difference between the State and the defendant.

Proposed condition 4 – abusive conduct

1. [11]

   The first contested condition in the proposed Schedule of Conditions is number 4 which, as proposed by the State, would read as follows:

2. [12]

   The defendant's counsel opposes this condition on the basis that it is an established phenomenon of the defendant's manner and behaviour that he is disposed to adopt intimidating and abusive attitudes in contact with persons in authority and, indeed, with other inmates in the prison setting. It is in interactions of those kinds that Corrective Services personnel who have prepared reports on the defendant have had an opportunity to observe this phenomenon. It is consistent with the psychologists' assessments of him over a long period, particularly with respect to his disregulation of behaviour and reactivity.

3. [13]

   Insofar as he may make any threats towards Corrective Services staff members that would cause them to fear for their safety, his doing so would constitute a common assault and would be amendable to prosecution as such under the general criminal law. There is no occasion to create a condition with respect to that sort of conduct. The breach of such condition would expose the defendant to a maximum term of imprisonment of five years under s11 of the Crimes (High Risk Offenders) Act 2006.

4. [14]

   Insofar as he may adopt an intimidating or abusive manner in circumstances that might impede his supervision, the effect of imposing such a condition would be to create an offence, namely a contravention of s11, with a penalty of five years, in circumstances that would not constitute an offence for any other citizen. It is recognised that Community Corrections dealing with people on supervision orders have a very difficult, but valuable, task to perform and that, as far as possible, everything that is done by the Court on an application such as this, should take account of the need to ensure that they can carry out their duties without threats, intimidation or abuse from the people they are required to work with. However, regrettably, such interactions are a hazard of the occupation, having regard to the segment of the population that such officers must, by the nature of their duties, deal with.

5. [15]

   Recognising the entitlement of the officers to carry out their duties without abuse and the need to support them in their work, nevertheless it is apparent that to impose a condition that would expose the defendant to imprisonment for up to five years if he should adopt an abusive manner that may be perceived as impeding his supervision, would be extreme and out of proportion to the risk. So long as s11 remains in its present form with, no gradation of penalties or exposure to prosecution, the Court is obliged to exercise great caution in imposing conditions that would criminalise conduct that would not be criminal on the part of any other member of the community. For these reasons I do not consider that clause 4 is appropriate and no such condition will be imposed

Proposed conditions 6, 7 and 8 - scheduling

1. [16]

   The next conditions that are opposed are conditions 6, 7 and 8, which would require the defendant to provide a weekly schedule of movements to his Departmental Supervising Officer, (DSO). The schedule would have to be provided three days before it is due to start and could not be departed from without prior approval of the DSO. The defendant would be in breach of the conditions in this group if he should deviate from an approved schedule of movements, except in an emergency. The effect of imposing such conditions would, in my assessment, having regard to the defendant’s documented history and the professional opinions concerning him, set him up to fail and aggravate his relations with Community Corrections staff.

2. [17]

   At the final hearing, the plaintiff will seek an extended supervision order for five years. That would require that on 260 separate occasions the defendant would have to form a plan of what he was going to do in the following week, submit it to his DSO, conform to it and not depart from it on any way or on any occasion without prior approval. With all due respect to those who formulated these conditions, it is my view, on the material that I have been provided, that the defendant would not be capable of complying with this. He would be in breach at a very early date. Again, it is a condition that would criminalise, by force of s11, conduct that would not be criminal for any other person in the community.

3. [18]

   It is suggested by the State that the imposition of such conditions would help the defendant to structure his life and would have lasting benefits. If the Corrective Services officers should find him capable of adhering to weekly plans, they may find it appropriate to withdraw the requirement of scheduling in their discretion. On the material tendered, I do not consider that the defendant would improve the structure of his life in a lasting way by following a regime such as this. I see it as likely to remain in place for the duration of any order that may be made. I do not consider it appropriate even for the duration of the interim order, which will only last for 28 days. Conditions to the effect of draft paragraphs 6, 7 and 8 will not be imposed.

Condition 9 – approval of residential address

1. [19]

   By condition 9 it is proposed that the defendant would be required to live at an address approved by his DSO and would be required to notify his intention to change address or living arrangements. Regrettably, at the present time th Schedule of conditions 18.4.23 (24248, docx) Schedule of conditions 18.4.23 (24248, docx) ere is no specific address that can be nominated, either by the plaintiff or by the defendant. Arrangements are being made on an urgent basis to find him emergency accommodation, but no address can be stated at the date of this hearing.

2. [20]

   I would not be prepared to impose a condition in the open ended form of the nature sought by the plaintiff, because it may result in the DSO nominating an address to which the defendant would have some valid objection and in relation to which he might be in breach and exposed to prosecution under s 11 if he should decline to live where the DSO prescribed, in circumstances where he would not have an opportunity to be heard as to why that address may be objectionable from his point of view.

3. [21]

   It appears that the situation can be covered for the purposes of this interim order by imposing a condition in these terms:

4. [22]

   The defendant's relevant criminal history is not specific to his occupation of particular premises. The risk of him re-offending while living in any particular place would mostly lie in the influence of other persons who may be present, or the vulnerability of other persons who may be present, in the proposed residence. For the short period of 28 days for which this interim order is to operate, the condition that I have proposed appears sufficiently protective without exposing the defendant unnecessarily to risk of breach and prosecution. It will be open to the plaintiff to seek amendment of that condition, to nominate a specific address or to exclude a specific address that may be regarded as unsuitable. Such an amendment to the conditions could be made by approach to the Court on notice at any time, including upon application being made for renewal of the interim order after 28 days.

Condition 10 – night curfew

1. [23]

   In Condition 10, the plaintiff seeks that the defendant be required to be at his residence between 9pm and 6am unless other arrangements are approved by a DSO. The defendant opposes this curfew. It is said on his behalf that the index offending in 2018 was not specific to night-time activity. The defendant's meeting with the 14-year-old complainant in that offending was arranged by Internet and the fact that they did indeed meet in the evening really had no causal connection with the gravamen of the crime.

2. [24]

   Other conditions are proposed by the plaintiff at clauses 37 to 47 which would prohibit the defendant from using the Internet in a way that might enable him to introduce himself to, or establish a relationship with, an underage female. Those conditions would appear to address the risk of re-offending in the manner that occurred in 2018. The 2013 offence against the defendant's stepdaughter was perpetrated in the accommodation that he and his then partner and children were occupying. A curfew condition would have nothing to do with reducing the risk of that type of criminal behaviour.

3. [25]

   In my view the curfew is not necessary to address any risk that can be identified from past conduct and is not sufficiently likely to be useful to warrant imposing the condition and restricting the defendant's liberty in this respect. Clause 10 will not be imposed.

Clause 14 – visitors to the defendant’s residence

1. [26]

   Clause 14 as sought by the plaintiff would require the defendant promptly to notify a DSO of any visitor entering and remaining at his address, and not to permit any person to stay overnight without prior approval of a DSO. This condition in the form sought is unworkable. It is not sufficiently clear who would be regarded as a visitor "entering and remaining". Would the defendant be required to notify his DSO if a tradesman attended, or a real estate agent making a check on the condition of the property? Would the defendant be required to notify the DSO of some person attending the premises to visit another resident who might be sharing the accommodation? Would remaining extend to being present on a social visit for an hour or two? If the condition were to require these things to be notified, it would not appear to address any material risk related to the defendant and it would likely put him at risk of being in breach for no useful purpose.

2. [27]

   The attempt to place this restriction on the defendant has required an inordinate amount of the hearing time to try to identify exactly what risk the plaintiff is seeking to ameliorate, and exactly what practical and workable limits would be necessary and sufficient to achieve that object. I will make a condition in place of that sought by the plaintiff to the following effect:

Condition 17 – restriction on places that may be visited

1. [28]

   In condition 17 the plaintiff seeks this restriction: "The defendant must not frequent or visit any place or district specified by a DSO". I will not impose a condition of that nature. It confers far too wide a discretion on a DSO. It may lead to directions being issued not to attend particular places where such directions might appear to the Court, if it had an opportunity to consider them, capricious. The DSO might form an unwarranted view that the defendant's risk of reoffending would be heightened if he attended a particular place. He or she might direct the defendant not to go there and thereby expose him to prosecution and substantial penalty if he should disobey. The condition is far too wide, and it will not be imposed.

Conditions 20-22 – employment, interventions

1. [29]

   The State seeks the following further conditions under the heading “Part D Employment, Finance and Education”:

2. [30]

   These are all opposed by the defendant. The defendant has never had employment. If he could obtain employment that would be a highly positive development for his own improvement of lifestyle, to provide structure to his living, as well as to mitigate the risk of further offending that may arise through idleness. But nothing in his background suggests that if he should get a job, or move jobs, the contact that he might make with people in the course of working would increase the risk of him reoffending in the manner to which the interim supervision order is addressed.

3. [31]

   Certainly if the defendant were to be employed he may have contact with other people, as he would in riding on public transport, attending a sporting fixture, or going to a shopping mall. Constraints, micromanagement and supervision with respect to employment have nothing to do with mitigating the risk of the defendant reoffending based upon his history and the psychological reports that are in evidence I will not make conditions 21 or 22.

4. [32]

   As to condition 20, it would be highly constructive for the defendant in his own interests to consult with a DSO to work out some plan that might aid him towards employment, with perhaps some endeavour to gain further education, or to train for some activity or to participate in some form of personal development program. If these can be suggested to the defendant, that would be very constructive on the part of the DSO, and if the defendant would take up any such suggestion, it would be very much in his own interests. But to make it a condition that he should do any of these things on pain of prosecution if he should not take reasonable steps, but should fall back into idleness, is unjustified. It would not be related to limiting the risk of further offending.

5. [33]

   It must be recognised that should the DSO provide a case management plan, and encourage the defendant towards employment, education or training, with the best will in the world the defendant may fall short on reasonable participation. The possibility that this may result in prosecution for breach of a condition such as that that which I am asked to make is not acceptable. I will not make condition 20.

Conditions 24-29 – drugs and alcohol

1. [34]

   In part E of the conditions proposed by the State, comprising conditions 24 to 29, the State seeks to preclude the defendant from using or possessing prohibited drugs. He would also be prohibited from using alcohol unless he has the prior approval of a DSO. He would be required to submit to drug and alcohol testing and not to attend licensed premises. The defendant would be required to participate in programs and courses for drug and alcohol rehabilitation. It is also provided in clause 29 that he not purchase alcohol.

2. [35]

   In support of these provisions the plaintiff points to some fleeting references in a risk assessment report, and in a psychological assessment that was undertaken for sentencing purposes in 2018, to the connection of substance misuse with his risk reoffending. It is said in those reports that substance misuse is a dynamic risk factor that may increase the possibility of the defendant committing further offences. I regard those references as speculative. They raise a purely hypothetical possibility. In the whole of the material that I have reviewed, there is not the slightest indication that the consumption of alcohol or drugs had anything to do with any of the sexual offences of which the defendant has been convicted. I see no basis for inferring that, now, the use of alcohol or drugs may lead to him committing like offences, or other offences in the same general category.

3. [36]

   There is no warrant for any of these conditions. Notably, they would criminalize on the part of the defendant behaviour which is legal for every other citizen, namely the purchase and consumption of alcohol and attendance at licensed premises. It is a very big step to propose that the Court should create a condition of that nature, enforcing prohibition of alcohol on pain of five years imprisonment, in the absence of any demonstrated connection between alcohol consumption and the commission of offences of the type for which the interim supervision order is intended to be protective.

4. [37]

   With respect to the possession and use of prohibited drugs, without these conditions the defendant will be subject to the general criminal law under the Drug Misuse and Trafficking Act 1985 (NSW). Like all citizens, he is prohibited from using the drugs that are identified in the schedule to that Act and he is at risk of the same level of penalties as apply to all members of the community. In the absence of any causative connection with his past sexual offending, there is no justification for heightening his exposure for misuse of drugs so as to render him amenable to a five year penalty for breach of supervision conditions.

Condition 30 – contact with children

1. [38]

   The next condition sought by the plaintiff , condition 30, is to restrict him from association with children. I will make the condition in the term sought by the plaintiff, but with this addition:

Condition 32 – association with consumers of intoxicants

1. [39]

   The State seeks a further condition, number 32, that the defendant not associate with people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO, or that he associate with people who he knows are consuming or under the influence of illegal drugs, or that he associate with any person held in custody without prior approval of a DSO. These constraints are unnecessary to mitigate the risk of the defendant reoffending according to the history that appears from the materials tendered to the Court.

2. [40]

   There may be occasions when the defendant would be present with associates, or persons with whom he has a casual encounter, who are drinking alcohol. The concept that this should be prohibited, and that if it should occur he should be liable for prosecution for breach under s 11 is a considerable overreach. Again he may at times be present with people who are consuming, or who have consumed or are under the influence of, illegal drugs. There is no indication that association with other people who are in any condition of intoxication, or who are offending against the drug laws, has any connection with the defendant’s risk of committing sexual offences.

3. [41]

   The clause in the terms drafted would create a hazard for the defendant. The milieu in which he is likely to have social connections and make acquaintances and form associations is such that he may well from time to time encounter people who are intoxicated with illegal drugs, or who consume them near him, or with his knowledge. If that should occur it is not going to increase the risk of him committing another sexual offence, and it should not lead to him being criminalised by such circumstances where other citizens would not be. The proposed condition 32 will not be included in the order.

Conditions 48 and 49 - search

1. [42]

   In Part J entitled "Search and Seizure" there have been included by the State two fairly standard conditions, 48 and 49, requiring that the defendant must submit to search of any item or place in his possession or under his control and not attempt to destroy or interfere with any object that is the subject of a search or a seizure. The defendant's prior offending has not been associated with his possession of any items connected with the commission of offences or his possession of any physical evidence that might prove the offences. There has been nothing in that part of the defendant's history that has brought him before the Court today that would indicate that a power to search him without warrant would be a useful adjunct to alerting Community Corrections officers to the possibility of his further offending.

2. [43]

   The inclusion of conditions such as this would be a very significant incursion into personal liberty. The defendant remains subject to the issue of warrants for search and seizure under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) as with any other citizen. It is not necessary that these two conditions should be incorporated to reduce the risk of offending and it is not apparent that incorporation of them would enhance the supervisory work of the Community Corrections officers in any material respect.

Conditions 52-54 – change of appearance

1. [44]

   The plaintiff seeks by conditions 52, 53 and 54 to require that the defendant not significantly change his appearance without prior approval of the DSO, that he allow the DSO to photograph him to create a record of his appearance and that he not change details of any current form of identification unless he provides the DSO with such details. None of these conditions appears to be necessary to the purpose for which the interim order is to be made. A prohibition on him changing his appearance "significantly" involves an inherent degree of vagueness and would be unsatisfactory unless the condition were modified. But in any event on the history that I have been provided the defendant is not a person of such sophistication or of such inclination as to be likely to change his appearance with a view to facilitating the commission of crimes or to escaping apprehension.

2. [45]

   The plaintiff's proposal that the DSO should have a photograph of him taken within a week of commencement of the conditions is unnecessary. There are photographic records of the defendant's appearance in the materials before me. In any event his DSO will be familiar with his appearance, for whatever purpose that may be important.

3. [46]

   Condition 54 regarding changes of current form of identification is uncertain in its scope as presently drafted. It does not warrant the time that would be taken to re-draft it to make it a more certain provision, in a situation where it has no apparent connection with the risk with which the Court is concerned.