State of New South Wales v BG (Preliminary)

1. [1]

   JOHNSON J: By Summons filed on 5 September 2018, the Plaintiff, State of New South Wales, seeks certain orders under the Crimes (High Risk Offenders) Act 2006 (“HRO Act”) with respect to the Defendant, BG.

2. [2]

   The Defendant is referred to by a pseudonym as some of the offences to be referred to in this judgment were committed against his then eight-year old daughter. The daughter, as a victim of these offences, has a legal entitlement not to be identified: s.578A Crimes Act 1900; s.15A Children (Criminal Proceedings) Act 1987. To identify the Defendant by name would tend to identify the victim. Accordingly, I have made today a non-publication order under the Court Suppression and Non-Publication Order Act 2010 prohibiting publication of the name of the Defendant and directing that he be referred to by the pseudonym "BG" for the purpose of this judgment and any further proceedings relating to this matter, including the naming of the parties in any Court list.

Preliminary Hearing

1. [3]

   The application made by the Plaintiff today is for interim relief being Orders 1, 2 and 5 as contained in the Summons. For the purpose of determining the application for interim relief, the Court has undertaken a preliminary hearing in accordance with the HRO Act.

2. [4]

   Mr Hammond of counsel appears for the Plaintiff and Ms Cook of counsel appears for the Defendant. A number of affidavits were read without objection on behalf of the Plaintiff at the preliminary hearing. These are the affidavits of Stephanie Eva Johns affirmed 4 September 2018, 26 October 2018 and 30 October 2018. In addition, two folders of documents which accompanied the affidavit of 4 September 2018 were admitted and marked Exhibit SEJ-1.

3. [5]

   Counsel for the Plaintiff and the Defendant have furnished helpful written submissions. I should mention at this point that Ms Cook did not resist the interim relief sought in the Summons if the Court is independently satisfied to the requisite standard that such orders should be made. No submission was made for the Defendant that the Court should not be so satisfied. The Defendant does not oppose the making of the orders sought in paragraphs 1, 2 and 5 of the Summons. Submissions were made concerning a number of conditions which the Plaintiff sought as conditions of the Interim Supervision Order (“ISO”) sought in the Summons. I will return to those matters later in this judgment.

4. [6]

   The approach adopted by counsel for the Defendant is both constructive and helpful in the circumstances of this case. It remains a matter for the Court to form its own view as to whether orders ought be made in accordance with the provisions of the HRO Act. However, the considered position of counsel assists the Court in reaching that conclusion. In these circumstances, although the Court should explain its reasons for the orders which will be made, detailed reasons with respect to each statutory factor are not required.

Relevant Provisions of the HRO Act

1. [7]

   Section 7(3)-(5) HRO Act provide for a preliminary hearing:

2. [8]

   For the purpose of undertaking the task under s.7(3)-(5), it is necessary for the Court to consider the matters contained in s.9 HRO Act:

3. [9]

   It is also necessary for the Court to consider the requirements contained in s.5B HRO Act:

4. [10]

   Also relevant to the orders arising at the preliminary hearing are threshold requirements contained in s.5I HRO Act:

Threshold Issues

1. [11]

   Statutory threshold requirements were conceded by counsel for the Defendant, and I am satisfied that there was a proper basis for these concessions.

2. [12]

   There are a number of threshold requirements under ss.4A(a), 4A(b), 5I(2)(a)(i) and (ii) and s.6(1) HRO Act. They relate to formal matters concerning the timing of the application, the custodial status of the Defendant at the time of the application, the age of the Defendant (he is above the age of 18 years and is now 48 years old), the fact that the Defendant has served a sentence of imprisonment following conviction for a serious offence in the form of a “serious sex offence”, being an offence contrary to s.66A Crimes Act 1900, and the fact that the Defendant is a “supervised offender” within the meaning of the HRO Act.

Some Relevant Legal Principles

1. [13]

   The legal principles to be applied at a preliminary hearing under the HRO Act were summarised by me in State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 at [20]-[25]:

2. [14]

   I have considered the evidence adduced at the preliminary hearing by reference to the statutory factors contained in s.9(3) HRO Act. Given the concessions made properly by the Defendant, I will refer to these matters with relative brevity.

3. [15]

   The Defendant has a criminal history extending back to 1989 for a range of offences, including drug offences and offences of dishonesty and violence.

4. [16]

   Of particular significance for present purposes are a number of offences of a sexual nature. The Defendant was convicted after trial in the District Court of New South Wales at Tamworth on two counts of indecent assault (involving a victim under the age of 10 years) and one count under s.66A Crimes Act 1900 of having sexual intercourse with a person under the age of 10 years. The victim of these offences, which were committed in 2003, was the Defendant’s natural daughter, then aged eight years.

5. [17]

   On 14 April 2011, the Defendant was sentenced by Payne DCJ for those offences to an aggregate term of imprisonment of nine years, to expire on 28 January 2019, with a non-parole period of six years, to expire on 28 January 2016.

6. [18]

   For the purpose of this decision, it is not necessary to recite in any detail the facts of these offences. It is sufficient to note the observations of the sentencing Judge that the offences involved a “significant breach of trust” and the offending was “opportunistic”. It should also be observed that at the time of these offences, the Defendant was on parole for a wounding offence for which he had been sentenced in Queensland.

7. [19]

   Whilst on bail for the 2003 offences involving his daughter and whilst subject to a suspended sentence in Queensland, the Defendant resided with an adult female temporarily and, during the course of consensual sexual intercourse, he was asked by her to stop and he refused to do so. He was charged with having sexual intercourse without consent. Following a plea of guilty, he was sentenced in the District Court of New South Wales at East Maitland on 18 August 2011 by North DCJ to imprisonment for two years and 10 months, to expire on 28 November 2017, with a non-parole period of two years. This sentence was partially accumulated on the sentence imposed by Payne DCJ on 14 April 2011.

8. [20]

   In December 2015, whilst the Defendant was in custody, he wrote a threatening letter to the mother of the victim of the 2003 offences. On 27 July 2017, he was convicted at Parramatta Local Court of one count of stalk or intimidate with intent to cause fear and was sentenced to imprisonment for two years, to expire on 14 March 2019, with a non-parole period of one year, to expire on 14 March 2018.

9. [21]

   The Defendant has been sentenced for other offences. He was sentenced in 2008 to a term of imprisonment for four-and-a-half years, suspended after 18 months, for an offence of attempted rape committed in Queensland in 2007.

10. [22]

    I will refer a little later to the Defendant’s parole history. It is the case, however, that the State Parole Authority determined on 21 June 2018 that the Defendant should be released to parole on 28 June 2018. That is what occurred. On 5 September 2018, the Defendant’s parole was revoked and he returned to custody. The revocation of parole was based upon a number of matters, including allegations that he had not been of good behaviour.

11. [23]

    On 22 August 2018, the Defendant was charged with a number of offences said to have been committed whilst on parole. The offences included failure to comply with child protection reporting obligations and using a carriage service to threaten or harass. The use carriage service offence is said to relate to the Defendant making a threat towards the 18-year old son of an alleged sex offender who was due to give evidence against his father. Those recent charges are still outstanding and are next before the Waverley Local Court on 14 November 2018.

12. [24]

    The Defendant’s criminal history indicates that a number of offences have been committed whilst he was subject to conditional liberty on probation or parole.

13. [25]

    Confining attention to this year, following the Defendant’s release on parole on 28 June 2018 he was accommodated at a COSP facility. Thereafter, he was given a written warning for deviating from his movement schedule on 30 August 2018.

14. [26]

    A number of concerns were raised with respect to compliance with his parole regime. The view was expressed by the Defendant’s supervising officer that he appeared “disinterested and unwilling to engage in offence specific conversation”. I should note that the Defendant has maintained his innocence of the sexual assault offences against his daughter.

15. [27]

    His compliance with supervising obligations has been at best chequered, culminating in allegations that he committed further offences which resulted in his parole being revoked.

16. [28]

    Whilst in custody, the Defendant has participated in a number of programs, including the Managing Emotions program undertaken in 2012, the Controlling Anger and Learning to Manage It (CALM) program completed in 2012, and the Getting SMART program completed once again in 2012.

17. [29]

    As I have mentioned, the Defendant has consistently denied his guilt of the sexual assault offences involving his daughter. He nevertheless consented to referral to the CUBIT program in late 2013. Because of his approach to the offences, it was necessary for him to be considered for the Denier’s Program within CUBIT. There has been difficulty in finding a place for him in CUBIT and in fact he has not undertaken that program.

18. [30]

    In December 2017, the State Parole Authority refused to grant parole because of the Defendant’s failure to complete CUBIT. He remained on the waiting list for CUBIT and was being considered for that program in 2018. However, he was not able to undertake it through no fault of his own. The view of the relevant psychologist was that only the CUBIT program was of sufficient intensity to effectively address the Defendant’s needs and risks and a program to meet those needs is not available in the community.

19. [31]

    The time came when the State Parole Authority formed the view that it was better for the Defendant to be released to parole before the expiration of the sentence even though he had not completed the CUBIT program, and he was so released on 28 June 2018. Accordingly, participation by the Defendant in the CUBIT program remains outstanding. He has not been able to undertake an important treatment and rehabilitation program available within the custodial system.

20. [32]

    A risk assessment report dated 4 June 2018 has been prepared by Rachel Terry, Acting Senior Psychologist with Corrective Services NSW. That report was prepared in accordance with s.6(3)(b) HRO Act.

21. [33]

    Ms Terry expressed the opinion that the Defendant poses a high risk of future sexual offending, and assessed the Defendant as posing a high risk of future violent offending, including within domestic settings.

22. [34]

    Ms Terry’s report notes, amongst other things, that, institutionally, the Defendant has a tendency to become aggressive or intimidate support staff when he perceives his needs are not being met or if his requests are denied.

23. [35]

    For the purposes of preparing the risk assessment report, Ms Terry used a combination of static and dynamic risk factors. She noted a previous LSI-R assessment, the most recent of which was conducted in December 2017, which placed the Defendant in the medium-high category for general and violent offending.

24. [36]

    Static assessment of the Defendant was undertaken using the Static-99R tool, which is designed to assist in the prediction of sexual recidivism for individuals charged with or convicted of sexual offences. Ms Terry’s assessment placed the Defendant in the IV-b category, which is “well above average risk”, the range formerly referred to as “high”.

25. [37]

    In assessing the Defendant’s dynamic factors, or criminogenic needs, Ms Terry used the STABLE-2007 tool. Having undertaken dynamic risk assessment, the Defendant was shown to have a high density of criminogenic needs relative to other male sex offenders.

26. [38]

    Combining the Static-99R and STABLE-2007 results, Ms Terry placed the Defendant in the category of offenders requiring a “high level of intervention and/or supervision”.

27. [39]

    In relation to violent offending, Ms Terry used the VRS actuarial risk assessment tool specifically designed to assess the risk of forensic clients, especially those who are being considered for release from institutions after treatment. The score on this instrument placed the Defendant in the high-risk category.

28. [40]

    Looking at the totality of the evidence, Ms Terry concluded that the Defendant fell in the high-risk category for sexual offending and violent offending.

29. [41]

    Ms Terry highlighted the “extremely limited support network” of the Defendant in the community and his reluctance to engage with psychology services. She expressed the view that the Defendant presented with “extremely limited insight into his patterns of offending, consistently denying responsibility and deflecting blame for his actions onto others”, and that he had “minimal awareness of how he ends up in similar situations over time”.

30. [42]

    Ms Terry concluded that, without oversight from Corrective Services NSW, the Defendant would continue to present a heightened risk of returning to sexual offending, particularly if he resumes alcohol or drug use and/or a domestic intimate relationship.

31. [43]

    Reference should be made under this heading to the Defendant’s history before the State Parole Authority. Various pre-release reports were undertaken prior to December 2016. On 8 December 2016, the State Parole Authority refused the Defendant parole because of the need to complete a sex offender program and the need for structured post-release plans and/or accommodation. The Defendant sought a review of this decision, which was unsuccessful.

32. [44]

    As I have mentioned, on 27 July 2017 the Defendant was convicted and sentenced for the offence of intimidation, which extended his overall sentence until 14 March 2019.

33. [45]

    As 2017 neared its end, further consideration was given to the Defendant’s position. It was noted that his estranged 13-year old son had visited once and that the Defendant was trying to re-establish a relationship with that son but, nevertheless, the Defendant had no family support and no post-release accommodation available to him and he remained on the waiting list for CUBIT.

34. [46]

    On 18 January 2018, the State Parole Authority again refused parole. The Defendant applied for a review of that decision and further reports were created in March, April and June 2018, which disclosed no significant change.

35. [47]

    As I have already noted, with no prospect of the Defendant commencing (let alone completing) the CUBIT program, it was recommended that the Defendant be released on parole on 28 June 2018 and that is what occurred.

36. [48]

    The decision of the State Parole Authority to release the Defendant to parole on 28 June 2018 was subject to strict conditions, including electronic monitoring.

37. [49]

    As mentioned earlier, because of the alleged offences committed whilst on parole, it was recommended that the Defendant’s parole be revoked. On 5 September 2018, the State Parole Authority revoked the Defendant’s parole, with it being treated as having been revoked on 4 July 2018.

38. [50]

    On 5 October 2018, the State Parole Authority determined to next consider the Defendant’s case on 30 November 2018 after he had appeared before Waverley Local Court on 14 November 2018 on the outstanding charges brought against him.

39. [51]

    A risk management report pursuant to s.9(3)(di) HRO Act was prepared by Erin Kirkwood, Senior Community Corrections Officer in the Extended Supervision Order (“ESO”) team.

40. [52]

    Ms Kirkwood’s risk management report dated 3 July 2018 outlined strategies anticipated to be employed in relation to the Defendant and identified the limitations of those strategies. Many of those strategies were addressed, to an extent, in the conditions imposed on the Defendant’s parole by the State Parole Authority. However, the Defendant was unable to comply strictly with these conditions, with his parole being revoked.

41. [53]

    The risk management report proposes conditions for an ESO with a measure of depth and flexibility to allow for appropriate supervision and serve to uphold the paramount objective of the HRO Act, which is to ensure the safety and protection of the community, with a secondary objective of encouraging high-risk offenders to undertake rehabilitation.

42. [54]

    I have had regard to the various statutory factors outlined so far in this judgment and the evidence which relates to them. The issue for the Court at this stage is a threshold one involving the application of a prima facie test by reference to the evidence.

43. [55]

    I am well satisfied that an ISO should be made in this case, together with associated orders for psychiatric or psychological examination. I accept the submission made for the Plaintiff that the most substantial risk factor concerning the Defendant appears to be his lack of insight into his offending behaviour and his failure to appreciate factors which might increase his risk of committing offences.

44. [56]

    The evidence discloses that the risk of committing serious offences applies as much to offences of violence as to sexual offences. It is the case that most of the Defendant’s offences have been committed in a domestic setting where he was under the influence of drugs or alcohol.

45. [57]

    The assessment by Ms Terry places the Defendant in the high-risk category for both violent and sexual offending. The Defendant’s history involves the commission of offences whilst subject to conditional liberty by way of probation or parole, and his recent period of liberty proved to be short lived, with clear problems on his part in complying with the regime put in place.

46. [58]

    I am satisfied to the prima facie level that on the evidence put before the Court, there is a real risk of the Defendant committing a serious sex offence. There is a prima facie case that the high level of risk ought be ameliorated by a lengthy period of supervision with stringent conditions, and this supports the conclusion that an ISO should be made at this preliminary hearing.

47. [59]

    Annexed to the Summons were a number of proposed conditions which were amended by the Plaintiff at the commencement of the hearing as a result of submissions made for the Defendant.

48. [60]

    It was acknowledged by counsel for the Defendant that argument concerning the conditions attached to the ISO may be somewhat academic because there is a prospect that the Defendant will remain in custody until, and potentially beyond, a final hearing. However, that is not a certainty and it is appropriate that the Court should fix conditions to be attached to the ISO.

49. [61]

    Submissions were made concerning a limited number of conditions.

50. [62]

    It was submitted for the Defendant that (original) Condition 4 was not necessary. The Plaintiff did not press Condition 4, which was deleted.

51. [63]

    Submissions were made with respect to (original) Condition 14. The terms of Condition 14 as sought by the Plaintiff ran the risk that the Defendant may be subject to a condition which could operate despite the fact that he himself did not have actual control to permit or exclude persons from entering the premises where he resided.

52. [64]

    An amendment to Condition 14 was formulated at the hearing which, in the end, counsel for the Plaintiff and the Defendant accepted was appropriate. I am satisfied that a condition in this form is appropriate. What is now Condition 13 will state:

53. [65]

    Submissions were made with respect to (original) Condition 26 which related to association with children. The condition as sought initially by the Plaintiff said:

54. [66]

    The submission was fairly made on behalf of the Defendant that this condition did not provide any clarity or guidance as to potential incidental contact which the Defendant may have with a person under the age of 18 years in a public place who was, for example, serving in a shop.

55. [67]

    A further area raised was that the condition did not appear to provide guidance in circumstances where, for example, the Defendant may get on a bus or a train on which there may be present other passengers who are under the age of 18 years.

56. [68]

    Counsel made submissions with respect to this topic. Counsel for the Defendant submitted that an appropriate formula might involve the terms of Condition 29 as utilised by Button J in State of New South Wales v Cook [2018] NSWSC 1386, which confined attention to the association with children by the Defendant in private.

57. [69]

    It seemed to me that such a formula still did not address the scenario of potential contact between the Defendant and a person under the age of 18 years in a public place. After submissions, a formula was settled upon which counsel accepted. What is now Condition 25 will provide:

58. [70]

    In fixing this condition, I make clear that it is understood by the Court (and should be understood by the DSO (Departmental Supervising Officer) and the Defendant) that this condition is not intended to apply to a situation where the Defendant gets on a train or a bus and there is present on the train or bus a person under the age of 18 years if the Defendant does not approach or have contact with such a person. In other words, the mere presence of the Defendant on a bus or a train with persons under the age of 18 is not a breach of this condition. On the other hand, if the Defendant approaches a person under the age of 18 years or has contact with them or speaks to them, it would be a breach of this condition. It is not practical to build that explanation into the condition but it should serve to assist the practical enforcement of the condition.

59. [71]

    Other amendments to original Conditions 28 and 29 (now Conditions 27 and 28) were proposed by counsel for the Defendant and accepted by counsel for the Plaintiff, and the form of those conditions as made will reflect that agreement.

60. [72]

    The Plaintiff sought an (original) Condition 30, which sought to incorporate as a condition of the ISO a condition identical to the terms of an order of the Local Court under the Child Protection (Offender Registration) Act 2000. After submissions, counsel for the Plaintiff did not press that condition, and it is not included in the conditions of the ISO which I will make.

61. [73]

    I am satisfied that all of the conditions which are otherwise contained in the schedule attached to the Summons, subject to the variations which I have mentioned, are appropriate and they will form part of the ISO in this case.

62. [74]

    I am satisfied that an ISO should be made in this case, together with an order for examination of the Defendant by two psychiatrists or psychologists and associated orders. The identity of the psychiatrists or psychologists is still to be determined so I will not include named practitioners in the order of the Court made today. That is a matter which can be taken up pursuant to the liberty to apply by application to the High Risk Offenders List Judge, Bellew J.

63. [75]

    I am satisfied that the conditions set out in this judgment should be included as part of the ISO.

64. [76]

    I will nominate today as the commencement date for the ISO. It will be apparent from what I have said in this judgment that the Defendant will remain in custody for a period of weeks, if not months, from today. Section 10C(1) HRO Act provides that an ISO commences on the date fixed in the order. However, the commencement of the ISO is suspended for a period during which the Defendant is in lawful custody. Accordingly, the order which I will make today will be suspended and will not commence to operate until such time as the Defendant is released from lawful custody, assuming that date arrives before the final hearing in this matter. If the Defendant is released from custody before the final hearing, then the ISO and the conditions which attach to it will operate for a period of 28 days from the date of release, subject to any extension granted thereafter by the Court.

65. [77]

    I make the following orders: