State of New South Wales v Sittczenko (Final)

1. [1]

   These proceedings were commenced by summons filed on 26 March 2021. By amended summons filed on 5 May 2021 the plaintiff seeks in respect of the defendant an Extended Supervision Order (“ESO”) under the Crimes (High Risk Offenders) Act 2006 (NSW). Rothman J made an order for interim supervision on 10 May 2021: State of New South Wales v Sittczenko (Preliminary) [2021] NSWSC 547. The interim order has been renewed twice and will expire on 31 August 2021. Rothman J also ordered under s 7(4) of the Act that expert reports be furnished to the Court. Such reports, dated 9 July 2021, were duly provided by forensic psychiatrist Dr Kerri Eagle and forensic psychologist Mr Patrick Sheehan. Those reports and the oral evidence of both experts at the final hearing on 26 August 2021 have been of great assistance to the Court.

2. [2]

   The order sought by the plaintiff is an ESO of 3 years duration to commence from 1 September 2021 upon the expiry of the last renewal of the interim supervision order. The plaintiff has proposed a schedule of 60 conditions that it submits should be attached to the order pursuant to s 11 of the Act. The defendant opposes the making of an ESO and, if such an order is made, he opposes many of the conditions sought by the plaintiff.

The index offence and the defendant’s status – s 5B(a), (b) and (c)

1. [3]

   The statutory threshold requirement for making an ESO prescribed by s 5B(a) is clearly established on the evidence. The relevant serious offences for which the defendant has served a sentence of imprisonment were three instances of aggravated sexual assault without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW) committed on 13 March 2004 and two further such offences committed on 20 May 2006. The circumstance of aggravation in respect of the three offences that comprise the earlier episode were that the defendant broke into the home of the victim, a 52-year-old widow, where he raped her repeatedly. The offences comprising the second episode were aggravated by the age of the victim, a 15-year-old girl whom the defendant attacked and raped as she was walking near her home late at night. Both groups of offences were accompanied by savage punching of the respective victims to silence and subdue them. On each occasion other serious offences were committed such as aggravated breaking and entering (s 112(2)) and aggravated detaining for advantage (s 86(2)) in the 2004 episode and aggravated robbery (s 95(1)) in the second episode. All of the above statutory references are to provisions of the Crimes Act as in force at the dates of offending.

2. [4]

   The defendant was at large for two years after committing the 2004 offences. He was arrested on 9 June 2006 following his attack on the 15-year-old girl. After his arrest a DNA sample was matched to forensic evidence from the scene of the 2004 crimes. The defendant pleaded guilty to all charges and was sentenced in the District Court at Sydney by Judge Cogswell SC on 21 September 2007. The judge described the offences as “a pair of shocking sexual assaults and associated offences”. After allowing appropriate discounts for the pleas of guilty his Honour fixed a series of sentences that were partially concurrent and partially cumulative, resulting in an overall effective sentence of 15 years imprisonment commencing 9 June 2006 and expiring 8 June 2021, with a non-parole period of 11 years expiring 8 June 2017.

3. [5]

   Within the meaning of s 5B(b), the defendant was a supervised offender at the date when the plaintiff filed its summons to commence these proceedings. He was at that time subject to a parole order. Accordingly, sub-pars (b) and (c) of s 5B of the Crimes (High Risk Offenders) Act are satisfied.

Prerequisite in s 5B(d) and the considerations in s 9(2) and (3)

1. [6]

   The question whether the Court may make an extended supervision order therefore turns upon whether sub-par (d) of s 5B is also fulfilled. It is in the following terms:

2. [7]

   Section 9(2) requires that the safety of the community must be the Court’s paramount consideration in determining whether an ESO should be made. Section 9(3) specifies a list of matters to which the Court must have regard in making that assessment. The s 9(3) matters are inherently relevant to the antecedent question of unacceptable risk that arises under s 5B(d). My conclusions on each of the relevant considerations are set out in the following headings.

Particulars of the index offence – s 9(3)(h) and (h1)

1. [8]

   One of the s 9(3) matters, par (h), is the defendant’s criminal history and any pattern of offending behaviour. By the date of the 2004 offences he had already been convicted of several break and enters and he had two convictions for possession of drugs. I have described the serious sex offences of 13 March 2004 and 2 May 2006 that attract the operation of the Act. He was aged 20 years and 23 years, respectively, at those dates. The offences were committed on impulse against vulnerable strangers. Paragraph (h1) of s 9(3) requires the Court also to consider the views of the sentencing judge. I have read carefully the remarks on sentence of Judge Cogswell SC The brief description I have already given is enough to show how acutely the defendant’s past criminal record raises concern about whether he may continue to pose a risk to the community and whether the risk of his commission of further serious offences reaches the level of being unacceptable.

2. [9]

   On 4 July 2018 the defendant was first released to parole, at the age of 35, having served 12 years of the sentence imposed for the index offences. His history of offending and of custody since he was first paroled has been as follows:

   1. (1)

      4 July 2018 to 30 October 2018 (approximately 4 months) – the defendant resided with his mother.

   2. (2)

      30 October 2018 to 22 January 2019 (approximately 3 months) – the defendant was in custody, bail refused, on a charge that on 30 October 2018 he committed an assault occasioning actual bodily harm upon his mother’s former partner.

   3. (3)

      22 January 2019 to 19 March 2020 (1 year and 2 months) – the defendant was on bail in relation to the assault charge until 29 April 2019; on that date the assault of 30 October 2018 was dealt with at Penrith Local Court there after the defendant’s parole continued.

   4. (4)

      19 March 2020 to 1 May 2020 (six weeks) – the defendant was returned to full-time in custody for this period after his parole was revoked on 19 March 2020 for failure to abide by reporting conditions.

   5. (5)

      1 May 2020 to 22 August 2020 (approximately three months) – the defendant was at liberty on parole until he committed offences of possession of implements to enter/drive a conveyance, being near premises with intent to commit an indictable offence and custody of a knife in a public place. Parole was again revoked.

   6. (6)

      22 August 2020 to 22 August 2021 (one year) – the defendant served the balance of his original sentence up to 8 June 2021, concurrently with a sentence of 12 months for the offences of 22 August 2020.

Reports and oral evidence of Dr Eagle and Mr Sheehan – s 9(3)(d)

1. [10]

   Dr Eagle and Mr Sheehan separately interviewed the defendant in lengthy sessions, mostly by audio and visual link. They both considered extensive documentary material including the defendant’s criminal history; details of the index offences; pre-sentence reports from May 2002 and June 2003; pre-sentence, psychological and psychiatric assessments dating from 2002; prison disciplinary records; Corrective Services assessments of risk of re-offending and prospects for management in the community.

2. [11]

   The histories taken by each of Dr Eagle and Mr Sheehan disclose that the defendant’s parents separated when he was three years old and that he was raised by his mother. She had another male partner from when the defendant was about five until he was 17. The partner used illicit drugs, abused alcohol and beat the defendant’s mother, which the defendant witnessed. Although the defendant did not refer to this in his interviews, the Department of Community Services intervened to have him placed in foster care at various times during his childhood in response to reports of neglect and physical and emotional abuse.

3. [12]

   By the age of about 14 or 15, in year 9, the defendant was truanting from high school and fighting. This resulted in suspension. He did not return to school to complete year 9. The defendant was sexually assaulted at about this time, when he was 15. After leaving school he had unskilled work in short periods of employment, moving from employer to employer, up to June 2006 when his imprisonment for the index offences commenced.

4. [13]

   The defendant began using cannabis at 14 years and intravenous amphetamines from 16. Professional assessment reports from the early 2000s confirm, as the defendant himself acknowledged, that he was misusing drugs in his late teens and early 20s and continued to do so up until his incarceration for the index offences. In prison he gained access to illegal drugs. His misuse of drugs, including methyl amphetamine, continued during his parole. He is currently receiving daily methadone.

5. [14]

   The defendant acknowledged to the expert witnesses his impulsivity, including with respect to drug use. In interview with Dr Eagle he “tended to minimise previous breaches/lapses” and, although he acknowledged that alcohol appeared to have been a significant contributing factor in his offending, Dr Eagle found that he showed little understanding of the levels of consumption that would be unsafe for him in this respect. She concluded that “he is at significant risk of relapsing into substance abuse”.

6. [15]

   The defendant informed Mr Sheehan that he has no close friends and that his associations are limited to superficial contact with other drug users. Mr Sheehan identified in him a lack of confidence, a degree of insecurity and a tendency towards isolation. He has had no lasting relationship with any member of the opposite sex, the longest such involvement having been eight months during his late teens or early 20s.

7. [16]

   Dr Eagle made the following diagnosis:

8. [17]

   Upon application of the Static 99R actuarial risk assessment, to evaluate “unchangeable risk factors associated with sexual reoffending on the basis of research studies”, Dr Eagle found the defendant to have a score that placed him at an above average risk of reoffending when compared to all offenders. The doctor also scored the defendant’s dynamic risk factors on the Stable 2007 structured professional judgment tool to assess the defendant “using empirically based risk factors to assist with the formulation of risk scenarios and to identify treatment or supervision targets in the development of a risk management plan”. Taking the combined result from the Static 99R and Stable 2007 assessments, Dr Eagle placed the defendant in the category of “well above average risk of reoffending”. In that category, subjects are reported to reoffend at the rate 3 to 4 times the rate of the average sexual offender.

9. [18]

   Independently, Mr Sheehan made the following diagnosis:

10. [19]

    Like Dr Eagle, Mr Sheehan applied actuarial tools to measure “static or historical risk factors” as well as “dynamic risk factors […] that have been reliably related to sexual recidivism but can change over time, and therefore are amenable to change, including treatment or other intervention”. The assessment of the defendant using these tools lead Mr Sheehan the following conclusion:

11. [20]

    The two expert witnesses came to very similar conclusions about the type of future offending that represents the greatest risk with respect to the defendant. On that subject Dr Eagle reported as follows:

12. [21]

    Mr Sheehan defined the highest risk with respect to the defendant’s future conduct in these terms:

13. [22]

    The opinions of both witnesses strongly support a conclusion that the defendant poses a significant risk of committing another serious offence if not kept under supervision pursuant to an ESO. Those opinions authority reasoned and I have no hesitation in accepting them. The evidence of Dr Eagle and Mr Sheehan is to be given considerable weight in determining whether the Court should be “satisfied to a high degree of probability” that the level of risk is “unacceptable”.

Attempts to rehabilitate the defendant in prison and on parole – s 9(3)(e)

1. [23]

   The Court is required to have regard to the results of any assessments of the defendant that have been prepared by professionals other than the experts appointed under s 7(4). Relevant assessments are those that have considered “the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment”: s9(3)(c)

2. [24]

   I have considered carefully the Risk Assessment Report dated 3 December 2020 prepared by a Senior Forensic Psychologist of Corrective Services, Ms S Wright. Her report is endorsed by Corrective Services Chief Psychologist Ms C Cieplucha. Ms Wright followed a similar methodology to that employed by Dr Eagle and Mr Sheehan, including four hours of interviews, a review of records relating to the index offences and a review of custodial records. Ms Wright took into account the defendant’s satisfactory completion of a sex offender program during the late stages of his prison term but she is of the view that “he has outstanding treatment needs which require further intervention and management”. Ms Wright used actuarial tools to assess the likelihood of the defendant committing further crimes of sexual violence and the results she derived from those tools are similar to the results obtained by the two court-appointed experts.

3. [25]

   Like Dr Eagle and Mr Sheehan, Ms Wright concluded that the most likely scenario in which the defendant may engage in further violent sexual offending would involve circumstances similar to those of the index offences, being “opportunistic and impulsive” and carried out “against an unknown female adult”. Ms Wright identified as a factor in the risk of reoffending that the defendant has negligible community contacts and that his family connection is limited to his mother, whose influence is neither stable nor entirely beneficial.

Level of compliance with parole conditions – s 9(3)(f)

1. [26]

   The considerations identified in pars (d1) and (f) of s 9(3) are closely related. As a result of his 12 years in prison from age 23 to age 35, the defendant has had very little adult experience of living independently in the community and he has very few social connections that might assist with his reintegration, rehabilitation and avoidance of offending. The evidence shows that prior to incarceration the defendant had very weak and unfavourable social ties, for the most part limited to fellow drug users. He does not have a social network with which to re-engage nor, as mentioned above, does he have strong family connections through which to reintegrate into society.

2. [27]

   The defendant’s inability to adhere to conditions of parole and his reoffending whilst on parole demonstrate that his lack of social connections leaves him vulnerable to relapses with respect to alcohol and substance abuse. Substance abuse has in the past been directly associated with his resumption of criminal activity, including property crimes and trespasses of the same kind as the break and enter that was the context for his first serious sexual offending in March 2004. Given the defendant’s background and his long period of imprisonment it is not surprising that his parole went badly. That experience is one indicator of the level of risk that the defendant will reoffend in a violent sexual way. The defendant’s inability to comply with conditions of parole from the time of his first released in July 2018 also demonstrates that it is in the mutual interest of the community and the defendant that he should have ongoing engagement with Community Corrections, as a source of support with respect to regularising his life.

Prospects of compliance with an ESO – s 9(3)(e2)

1. [28]

   I consider there are sufficient prospects that the defendant can be effectively supervised under an ESO to warrant making such an order. A few of the conditions proposed by the plaintiff have been disputed. My determinations regarding inclusion of some conditions and exclusion of others appear below. I consider that the conditions I have settled upon will facilitate adequate supervision and support whilst enabling the defendant to rehabilitate and progress towards self-regulation.

Unacceptable risk – justification for a 3-year ESO – ss 5B(d), 9(1), 10(1A)

1. [29]

   I find the conclusions of Dr Eagle, Mr Sheehan and Ms Wright concerning the risk of re-offending posed by the defendant entirely consistent with what I would infer from the nature and gravity of the index offences, the defendant’s undisputed history of drug and alcohol misuse and his history of non-compliance and repeat offending during parole. I have taken into account the potential utility of an ESO with appropriate conditions to ameliorate the risk.

2. [30]

   The defendant is presently subject to a Community Correction Order (“CCO”). That appears to have been imposed for the offence of assault occasioning actual bodily harm (the assault on his mother’s former partner on 30 October 2018 during his first period of release on parole) and for failing to comply with reporting conditions of bail in early July 2020. The Community Corrections Order is in force from 21 April 2001 until 20 April 2002. The defendant is also subject to the reporting requirements of the Child Protection (Offenders Registration) Act 2000 (NSW). He will remain on the Register under that Act for 15 years. I do not accept that the constraints under the CCO and/or the reporting requirements of his registration reduce the risk of reoffending to an acceptable level, so that an ESO is not required. The CCO provides for a degree of engagement of the defendant with Community Corrections for the next eight months. The reporting requirements under the Child Protection Register are no doubt useful for monitoring the defendant. These measures, alone, are insufficient to ameliorate the risk posed by the defendant. Notably, they do not provide for longer term constructive intervention of Community Corrections that will be afforded under the conditions of an ESO.

3. [31]

   For the purposes of s 5B(d), I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision pursuant to an ESO. Having regard to the considerations prescribed in s 9(2) and (3) I have determined that an order should be made of three years duration. Of the conditions sought by the plaintiff, those that are contested by the defendant are considered under the following heading and sub-headings.

Conditions of the ESO – s 11

1. [32]

   The plaintiff seeks a condition following terms (emphasis added):

2. [33]

   The defendant objects that this condition may require him to incriminate himself and that that could be avoided by substituting the words “not lie in response to”, in place of the words that I have highlighted in bold. It was established in Baldwin v State of New South Wales [2020] NSWCA 112 that the Act clearly and unambiguously permits the imposition of conditions that abrogate any privilege against self-incrimination: at [55] (Basten JA), [70] (Macfarlan JA) and [75] (Emmett AJA). In that case the Court considered conditions in an ESO that required the offender to consent to a search of his residence, his vehicle, any storage facility and/or his person. The following paragraphs are extracted from the judgment of Basten JA:

3. [34]

   Paragraphs [51] and [52] in the above extract have important application to the present case, where the “nature and scope of the risk of committing another serious offence (if not kept under supervision) posed by the particular offender” is quite specific: see [20], [21] and [25] above. Any condition that requires the defendant to answer questions put to him by his DSO has the potential to override his privilege against self-incrimination. In order to confine such a requirement to a field operation that is “appropriate” to achieve the objectives of the Act I consider it necessary to reword the proposed condition as follows:

4. [35]

   The plaintiff sought a condition for electronic monitoring of the defendant, in the following terms:

5. [36]

   This condition is intended to give the DSO a wide discretion, under which electronic monitoring in combination with detailed weekly schedules of movements would be required in the first instance, with the intention of relaxing the strictness of the scheduling and dispensing with electronic monitoring over time as the defendant demonstrates a capacity to introduce regularity and order into his life and to fulfil intentions with respect to his activities. It is accepted by the Court-appointed expert witnesses that schedules of movements and electronic monitoring are useful rehabilitation tools. Those witnesses consider that such conditions reduce the opportunity for impulsive behaviour, support the development of an offender’s skills in planning and organising his life and, particularly with respect to electronic monitoring, may have an effect of deterring further offending.

6. [37]

   Mr Sheehan’s opinion is qualified by the following:

7. [38]

   In his oral evidence Mr Sheehan said that conferring total discretion upon the DSO with respect to the continuance of electronic monitoring and/or reintroduction of it after a lapse of compliance can have the effect of demoralising the offender. The exercise of the discretion may be seen by the offender as arbitrary such that no specific level or duration of compliance will ensure removal of the electronic device. Dr Eagle did not express a strong view in favour of continuous discretionary availability of scheduling and electronic monitoring throughout the period of the ESO.

8. [39]

   The defendant’s proposed solution is to limit the period within which electronic monitoring may be required to the first two years of the ESO. I have considered whether some further refinement might be introduced, such as the provision for dispensing with electronic monitoring upon the achievement of defined goals and for reintroducing it, for a specified period, in the event of a certain events of non-compliance. There are significant difficulties in the way of formulating a workable condition along those lines.

9. [40]

   Having regard to the primary objective of the Act as prescribed in s 3(1), namely, “to ensure the safety and protection of the community”, I do not consider it appropriate to remove altogether the possibility of electronic monitoring for the last year of the order. No doubt Community Corrections will be keen to step down the requirements of scheduling the defendant’s movements and of electronic monitoring as rapidly as his progress towards reintegration and rehabilitation permits, even before the final year. To accommodate the competing considerations I have concluded that this condition should be modified to provide that electronic monitoring should cease for the last year of operation of the ESO, provided that the defendant has not been charged with any offence (including an offence of breaching the conditions, under s 12 of the Act) during the preceding 12 months, with further provision for reinstatement of the DSO’s discretion to require electronic monitoring if any charge should be laid during the final 12 months.

10. [41]

    The modified provision is as follows:

11. [42]

    The plaintiff’s proposed conditions 5, 6 and 7 would require the defendant to submit to his DSO each week a schedule of his proposed movements and not to deviate from the schedule, once approved, except in case of emergency or pursuant to a change approved on 24 hours’ notice. The defendant’s counter-proposal is that, for the first two years of the order only, he should provide by Friday of each week “an honest summary of his anticipated movements”, limited to nomination of places he intends to travel to, the purpose of travelling there, the dates and the means of travel and the names of persons he proposes to meet. The defendant opposes the requirement that he be prohibited from departing from his stated intentions without prior approval on 24 hours’ notice and suggests that, instead, he merely be required to notify the DSA of a change of plans before implementing them. The defendant’s counsel describes the less prescriptive conditions that he has proposed as “dry scheduling”, a term that I do not find self-explanatory or intuitively meaningful.

12. [43]

    I consider that the discretion to require that the defendant submit and adhere to schedules should remain available to the DSO for the full term of the order but that it should be in a significantly less restrictive and more flexible form than that proposed by the plaintiff. This view is informed by consideration of the type of offence with respect to which the defendant poses a risk. His past serious sexual offending has not been associated with particular types of locations, such as may be the case for offenders against children, for whom it may be important to ensure that their intended movements do not bring them close to schools, children’s sporting events, amusement or recreation facilities, or the like.

13. [44]

    The requirement that this defendant provide and adhere to schedules of movements would appear to serve the more general objective of directing him towards an ordered lifestyle, with reduced occasion for impulsive substance abuse and/or consequent unlawful behaviour. Requiring him to adhere to schedules appears likely to reduce opportunities for offending and to create a deterrent, arising from the knowledge that his DSO is aware of his activities. For those purposes, in this case, the following conditions regarding schedules of movements appear to be sufficient:

14. [45]

    The plaintiff’s proposed condition 28 would prohibit the defendant from associating with anyone under 18, except as a result of incidental contact or with the written permission of a DSO. The defendant opposes such a condition and I see no need for it. There is no suggestion in any professional opinion concerning the defendant that he poses a specific threat of sexual offending against children. Although the victim of his index offences in May 2006 was a 15-year-old girl, Mr Sheehan has opined in the passage quoted at [18] above that this does not indicate a paraphilia disorder. Mr Sheehan stated: “I do not regard him as a specific risk to the sexual safety of children in his association”. Further, generally, his past sexual offending has not sprung from association or from social contact or grooming. It is not apparent that precluding contact, except of an incidental nature or pursuant to written permission, with young people under 18 years of age would serve any useful preventive purpose.

15. [46]

    By condition 33 the plaintiff seeks to impose a requirement that the defendant obtain written permission from a DSO prior to joining or affiliating with any club or organisation. There is nothing in the evidence to satisfy me that the requirement of prior permission is necessary or, indeed, would serve any purpose. I will include a condition in the following terms:

16. [47]

    The plaintiff seeks conditions 35-45 by which the defendant would be very tightly monitored with respect to his use of mobile phone, email and internet communications. The proposed conditions would require his DSO’s approval for the use of any electronic device and for any access to the internet. They would prohibit him from using any name other than his real name as an electronic identity or login name or the like. Under these conditions the defendant would be required to provide the DSO with list of all electronic devices used by him and notify changes from time to time. He would be forbidden from gaining access to the internet by any device that had not been seen and approved by the by the DSO. The defendant would also have to supply details of his phone numbers, email addresses, account numbers with carriers and service providers, passwords, PIN codes and so on. He would be forbidden from using any encrypted messaging service and required to obtain his DSO’s permission before joining any social networking service or using any such application. The proposed conditions would require the defendant to permit his DSO to have remote access to his internet, email and social media accounts. The proposed conditions would forbid to defendant from deleting or altering any emails, text messages, call histories Internet search histories and the like.

17. [48]

    I see no justification for any of these highly restrictive and complex conditions. Mr Sheehan made this observation:

18. [49]

    By proposed condition 48 the defendant would be prohibited from obtaining or viewing material that would be “Refused Classification” and he would be required to notify his DSO if he should obtain or view material that would be classified as X18+, Restricted Category 2 or Restricted Category 1. Although these conditions are opposed by the defendant and although access to extreme pornographic material has not been associated with his offending in the past, it is considered by Mr Sheehan that it would be constructive to his case management and treatment to require that the defendant be transparent with his DSO concerning access to pornographic material of the categories referred to. I accept that opinion. I take into account that this condition does not involve a significant intrusion or constraint upon the defendant. For such benefit as it may have with respect to counselling and treatment during the operation of the ESO, this is a reasonable and warranted condition

19. [50]

    By proposed condition 60 the defendant would be required to agree to the disclosure of his criminal history to any healthcare professionals who may be treating him. The defendant seeks a qualification to this condition, that it should only be applicable “if relevant to his risk of reoffending or of rehabilitation”. To introduce that qualification would render the condition uncertain in its operation. The condition as proposed by the plaintiff should be imposed without qualification. One aspect of the defendant’s ongoing medical treatment is the prescription of methadone. It is highly desirable that there should be transparency towards all medical professionals who may be involved in the defendant’s treatment or counselling for drug misuse. They should be aware of the history of serious sexual offending with which his past substance abuse has been associated. That past history informs the seriousness of the defendant’s drug and alcohol problems, from the point of view of protection of the community.

Orders

1. [51]

   The orders of the Court are as follows (with the numbering of the conditions in Schedule A preserved, as originally proposed by the plaintiff and as referred to in these reasons, although they will be renumbered when the order is entered):

   1. (1)

      Order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to an extended supervision order for a period of 3 years commencing 1 September 2021.

   2. (2)

      Order pursuant to ss 11 of the said Act that for the period of the extended supervision order the defendant comply with the conditions set out in the schedule to these orders.