State of New South Wales v Howard

1. [1]

   HIS HONOUR: By summons filed on 5 October 2021, the State of New South Wales seeks final orders against Kevin Howard pursuant to the Crimes (High Risk) Offenders Act 2006 ss 5B, 9(1)(a) and 11. Mr Howard is currently subject to an interim supervision order imposed by Button J on 3 February 2022: see State of NSW v Howard (Preliminary) [2022] NSWSC 41. Familiarity with that decision is assumed.

2. [2]

   The State now seeks the imposition of an extended supervision order for a period of five years subject to certain conditions. Although I am required independently to exercise a discretion concerning the question of whether to impose any such order and on what terms, Mr Howard has uncontroversially accepted for present purposes, and I otherwise find, that:

   1. (1)

      He has served a period of imprisonment for a serious sexual offence: s 5B(a);

   2. (2)

      He is a supervised offender: s 5B(b); and

   3. (3)

      The present application has been made in accordance with the requirements set out in s 5I: s 5B(c).

3. [3]

   I am also required to be satisfied to a high degree of probability that Mr Howard poses an unacceptable risk of committing another serious sexual offence: s 5B(d). Mr Howard is not able to consent to any decision by me on that issue but specifically noted in writing that he did not wish to make any submissions about it. Accordingly, it is only the following matters that remain for determination by me:

   1. (1)

      Can I be satisfied that Mr Howard poses an unacceptable risk of committing another serious sexual offence if not kept under supervision under a continuing supervision order? [Issue (1)]

   2. (2)

      If yes to (1),

Issue (1)

1. [4]

   In accordance with the orders made by Button J, a psychologist, Mr Patrick Sheehan and a psychiatrist, Dr Danny Sullivan, each examined Mr Howard and furnished reports to the Court.

2. [5]

   Mr Sheehan’s report is dated 18 March 2022. His Conclusions and Recommendations are as follows:

3. [6]

   Dr Sullivan’s report is dated 29 March 2022. The following findings and opinions should be noted:

Criminal history – Index Offences

1. [7]

   The expert views of Mr Sheehan and Dr Sullivan need to be seen in the light of Mr Howard’s relevant criminal history.

2. [8]

   On 20 September 2007, Mr Howard was convicted and sentenced by Armitage QC ADCJ, for the following offences after pleas of guilty:

3. [9]

   The maximum penalties for each offence at the time of the sentence were as follows:

4. [10]

   The sexual assault offences occurred on 10 separate occasions between 20 June 2006 and 23 September 2006 when Mr Howard was living in a caravan at Teralba Caravan Park. The victim was a five-year-old girl who lived at the caravan park with her parents. Her mother became friendly with Mr Howard and she would play with Mr Howard’s 15-year-old son when he stayed with his father. Over a period of a few months the girl began to visit Mr Howard’s caravan without her mother. On occasions when she visited Mr Howard’s caravan without her mother, he sexually assaulted the child and took photographs of those assaults. The sexual assaults included touching the outside of the child’s vagina with his hand or erect penis, having her touch his penis, cunnilingus (on four occasions) and fellatio (on two occasions).

5. [11]

   Each occasion of sexual abuse that was photographed by Mr Howard was the subject of an offence of possess child pornography (that was eventually rolled up into one offence) and the offence of use child for pornographic purposes.

6. [12]

   In addition to the images of the sexual abuse of the girl, there were other images on Mr Howard’s phone of him engaged in sexual acts with another child or children, including a baby. One of the images was of Mr Howard’s penis in the hand of a toddler. The other was of a penis between the buttocks of a baby. It appears that each of these images was originally the subject of a separate charge which were all later rolled up into one charge prior to sentence.

7. [13]

   Police also located sexual images of an older child aged 16 years at the time the photos were taken with the cognitive capacity of a 14-year-old child.

8. [14]

   Mr Howard admitted the activity in a recorded interview with police on 1 November 2006. He sought to blame the young girl for instigating the sexual offending. He said that the offending started because she had “flashed me, right in front of me and I…touched her and from then on she wanted me to do it more… and I did”, “she just lifted her top and her bottom right in front of me and I…touched her fanny with my finger”, “she wanted to play, we played. Just that I was fucking weak”. This young girl would come into Mr Howard’s caravan and they would do drawing and “after a while she’d say ‘do you want to play?’, meaning this sort of sexual play and I’d say Yes”. When the girl “wanted to do this…it was the easy way for me to be”. He stated that she asked to touch and kiss his penis and asked him to lick her vagina. He took the photos so that later he could “sit back and get me rocks off without actually having sex with a child”. He said that he “never forced her to do anything”.

Mr Howard’s custodial and extended supervision history

1. [15]

   Mr Howard has generally been compliant with custodial rules and routines and settled well in custody. He has spent about 17 years in custody and during that time has committed three relatively minor, and presently irrelevant, infractions.

2. [16]

   Mr Howard was due to be released on parole for the Index offences on 7 October 2014. Parole was not recommended by the Long Bay Parole Unit because Mr Howard had not completed the CUBIT Sex Offender Program. Parole was refused by the State Parole Authority for that reason.

3. [17]

   Following completion of CUBIT on 14 May 2015, a request for reconsideration of release on parole was lodged. Parole was reconsidered on 3 September 2015 but refused.

4. [18]

   As already noted, on 24 August 2015, Button J ordered the appointment of two specialists to examine Mr Howard and prepare reports. His Honour concluded that Mr Howard had “an entrenched proclivity to commit very grave sexual offences against women and girls … (over) a period of almost 30 years” and “has repeatedly committed those grave crimes whilst subject to more than one form of conditional liberty”, with only very limited insight into his offending.

5. [19]

   Mr Howard was released from custody after serving his full term on 7 October 2015.

6. [20]

   An extended supervision order of five years duration was made on 1 December 2015 by Hall J, who found that no period less than five years supervision was justified and that Mr Howard’s risk of committing a further serious sex offence was long term.

7. [21]

   An interim supervision order was made by Button J on 3 February 2022 following a preliminary hearing on 31 January 2022. The order was renewed by his Honour on 28 February 2022 and commenced from midnight on 3 March 2022. It was last renewed by his Honour on 25 March 2022 for a period of 28 days from midnight on 31 March 2022. The interim supervision order will expire on 28 April 2022 and may not be renewed after that date.

Conclusion

1. [22]

   Having regard to the material upon which the State relies, I am satisfied to a high degree of probability that Mr Howard poses an unacceptable risk of committing another serious sexual offence unless kept under supervision of an extended supervision order. Mr Sheehan and Dr Sullivan have expressed effectively unqualified views that are not the subject of challenge. Their opinions also draw upon a wealth of historical material, including several of the significant matters to which s 9(3) of the Act draws attention. Their views are consistent with the results of other suitably qualified medical specialists who have expressed views upon the likelihood of Mr Howard committing a further serious offence. I have otherwise expressly taken account of the matters that s 9(3) mandates that I must have regard to in determining whether to make the extended supervision order sought by the State.

Issue 2(a)

1. [23]

   The State has sought an order for a period of five years. Mr Howard has submitted that the order should be for a period not exceeding three years. In my opinion, Mr Howard should be the subject of an extended supervision order for a period of three years. My reasons for coming to that conclusion are as follows.

2. [24]

   Mr Howard has a long history of serious offending against both female adults and children. His first criminal conviction for a sexual offence was in 1978, an indecent assault against an adult woman. His most recent sexual offending was committed in 2006, against a five-year-old girl, over a period of about three months. The offending against the child involved sexual intercourse, indecent assault and the production of child pornography. Mr Howard was 55 years old at the time.

3. [25]

   Mr Howard has previously been the subject of an extended supervision order of five years duration imposed by Hall J on 1 December 2015. That followed upon Mr Howard’s release from prison for the index offending, having served the full term of his sentence of imprisonment. Clearly enough, that order came into effect when he was approximately seven years younger than he is today and in circumstances where the likelihood that Mr Howard would comply with the obligations of an extended supervision order was still unknown. Since then, Mr Howard has completed his period of supervision, which was marked by three breaches of conditions of the order. Two of the breaches related to Mr Howard’s possession of either pornographic video tapes or child focussed video tapes, such as those designed to instruct parents in the care of very young babies and the “Dance Mom” series, featuring pre-pubescent girls. Mr Howard admitted possessing this material for the purposes of sexual arousal. The third related to his possession and consumption of alcohol. He served sentences of imprisonment for these breaches.

4. [26]

   As Dr Sullivan has observed, Mr Howard’s offending covers the greater part of his adult life. For this reason, Dr Sullivan considers that he requires support and supervision to reduce the likelihood of a reoccurrence of similar offending. Dr Sullivan considers that a five-year supervision order is therefore called for in the circumstances to reflect the potency of risk factors, his lengthy history of offending and his response to treatment. Dr Sullivan accepts that Mr Howard’s risk “may reduce with ageing” but cautions that “unless there are significant shifts in attitude and cognitive distortions, his risk of committing a serious sexual offence will persist” if not otherwise overtaken by incapacity.

5. [27]

   In the present context, the following paragraphs from Dr Sullivan’s report should be noted:

6. [28]

   Both Dr Sullivan and Mr Sheehan consider that the risks posed by Mr Howard cannot be managed in the community without the imposition of an extended supervision order. In slightly different ways, each practitioner recognises the inverse relationship between the severity of any restrictions imposed and the period during which they might apply, on the one hand, and the prospect that Mr Howard will ever progress to remaining in the community unsupervised, on the other hand. However, having regard to the extensive material upon which the State relies in this application, the prospect that Mr Howard will ever be able successfully to remain in a community setting without some supervision appears remote.

7. [29]

   Notwithstanding that somewhat pessimistic conclusion, compliance with conditions that may be imposed is an essential and critical consideration in the assessment of the appropriate length of an extended supervision order. It is to be hoped that a three-year extended supervision order will encourage the prospect of compliance by offering Mr Howard some small recognition of confidence in his prospects of rehabilitation.

Issue 2(b)

1. [30]

   By the time these proceedings were heard by me, there was significant agreement between the parties, particularly in the light of the medical opinions of Mr Sheehan and Dr Sullivan, which by then were available, about what I might consider to be appropriate conditions to impose if an extended supervision order were indicated. The following areas of disagreement about those conditions remain to be considered.

2. [31]

   The State suggests that the following conditions, currently in force in relation to the interim supervision order imposed by Button J, should continue unamended:

3. [32]

   Mr Howard submits that these conditions should be replaced with the following conditions:

4. [33]

   Mr Howard proposes what he contends is a variation from an approval-based model to a notification-based model. If adopted, this would permit Mr Howard to go wherever he chose, without restriction, unless specifically directed otherwise by his DSO. A direction not to attend a particular location would also have to be informed by a likelihood, not a mere possibility, of the kind of risk referred to in proposed condition 6A.

5. [34]

   Mr Howard emphasises that he has so far been subject to conditions attaching to a supervision order for some six years without any breaches of the existing conditions concerning his movements. He submits that the variation proposed by him fairly represents a balance between minimising risk and his personal liberty. Moreover, drawing upon Mr Sheehan’s analysis, Mr Howard contends that a relatively minor reduction in the stringency of the movement schedule would provide him with a compliance incentive while simultaneously reducing the risk that he may disengage entirely or become chronically discouraged.

6. [35]

   Having regard to the level and nature of risks identified by the experts, it seems to me that the variations proposed to these conditions are appropriate. On one view, proposed condition 6A in all probability does no more than expressly describe the type of considerations that a DSO acting reasonably would in any event bring to account when considering whether to approve Mr Howard’s proposed movements.

7. [36]

   Mr Sheehan’s report at [85] deals with the wisdom or otherwise of restricting or limiting Mr Howard’s access to material of this type. He said this:

8. [37]

   Mr Howard has proposed that the following conditions should be adopted to meet the identified risks related to pornographic material:

9. [38]

   The apparent point of difference between these conditions and those that I consider should be imposed is not significant in practical terms. Neither approach entirely, nor even substantially, restricts Mr Howard’s access to a large range of material for his own personal use. Proposed condition 38 is agreed between the parties. Condition 39, listed below, appears in my opinion more closely to conform to the concerns expressed by Mr Sheehan.

Conclusion

1. [39]

   It follows in my opinion that Mr Howard should be made subject to an extended supervision order for a period of three years commencing on 28 April 2022, subject to the conditions of supervision set forth in the Schedule to these reasons.