State of New South Wales v Matthews AKA Hackett (preliminary)

1. [1]

   HIS HONOUR: The State of New South Wales filed its summons for orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the High Risk Offenders Act”) on 22 May 2019. The summons is before the Court today for a preliminary hearing. The State seeks an order under s 7(4) of the Act for the appointment of psychiatric experts to examine and report upon the defendant. It also seeks an interim supervision order on conditions.

Defendant’s present status

1. [2]

   At the date of commencement of the proceedings the defendant was on parole under a sentence of 12 months imprisonment commencing 22 July 2018 for an offence against s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) (“The Offenders Registration Act”). That is an offence of failing to notify his change of address as required by s 11 of that Act. The defendant was subject to the reporting requirements of the Offenders Registration Act because since 2014 he has been a registerable person and his name has been recorded on the register maintained under the Act.

2. [3]

   The defendant’s current sentence will expire on 21 July 2019. He has been on parole in relation to the above mentioned sentence since 21 November 2018. By force of the definition in s 5(2)(f) of the High Risk Offenders Act, the offence of failure to report for which the defendant is currently serving his sentence is “an offence of a sexual nature.” Accordingly, the defendant comes within the definition of a “supervised offender” within s 5I of the High Risk Offenders Act.

The serious sexual offending of August 2004

1. [4]

   On 23 November 2005 the defendant was sentenced in the District Court for offences of detaining a person in company to gain advantage, namely, sexual gratification, contrary to s 86(3) of the Crimes Act 1900 (NSW) and aggravated sexual assault in company contrary to s 61J(1). He pleaded guilty and was sentenced to an effective overall term of eight years with a non-parole period of six years. Those offences were committed on 29 August 2004 and involved quite appalling depravity and cruelty. The defendant was 31 years old at the time.

2. [5]

   In company with another man the defendant abducted an 18 year old boy, forced him into the boot of a car, drove to a secluded location, threatened the victim with a knife and attempted to force him to perform oral intercourse. The sentencing judge accepted that the defendant had played the lesser part in these offences relative to the actions of his co-accused. Having served six years and nine months of the sentence imposed for that offence, the defendant was released to parole on 7 June 2011. The defendant accepts for the purposes of the present application that this offence falls within the definition of a “serious sex offence” in s 5 of the High Risk Offenders Act.

Statutory prerequisites for interlocutory orders

1. [6]

   It is not disputed on his behalf that all of the statutory prerequisites for making an interim supervision order are satisfied, including that the matters alleged in the supporting documentation would, if proved at the final hearing, justify the making of an extended supervision order. It is not disputed that the State has demonstrated the statutory prerequisites for an order that he be examined psychiatrically that reports be furnished to the Court. These concessions are properly made on the evidence before the Court. What remains is only a contest between the parties as to the conditions that should attach to the interim supervision order to be granted.

Defendant’s background and the risk of further offending

1. [7]

   The defendant’s history of other offending and his background generally are matters relevant to consideration of what the conditions of an interim supervision order should be. After serving his sentence for the very serious offences of September 2004, referred to above, on 25 June 2014 the defendant committed offences of inciting a person under 16 years to commit an act of indecency, (s 61N(1)) of the Crimes Act, grooming a child for unlawful sexual activity, (s 66B), stalking and intimidating and behaving in an offensive manner.

2. [8]

   These charges arose out of the defendant having entered a shower bay in an amenities block at a caravan park with another man and engaged in sexual activity in full view of anyone who should enter the block. A 15 year old boy witnessed this. The boy then entered a toilet cubicle and the defendant proceeded to exhibit pornographic images on his phone to the boy by extending his arm under the door of the cubicle. The defendant tried to entice the boy to go into the shower with him. For these offences he was imprisoned for an effective total term of 12 months from 25 June 2014 with a non-parole period of 9 months ending on 23 March 2015.

3. [9]

   Since the defendant was first placed on the Child Protection Register in 2014 he has committed offences of failing to report on 23 June 2015, 2 March 2016 and 12 to 22 July 2018. The last mentioned breach is that which has resulted in his most recent period of imprisonment, particulars of which are given earlier in these reasons.

4. [10]

   A recent risk assessment report prepared by two psychologists in the Serious Offenders Assessment Unit of Corrective Services gives a summary of the defendant’s background. He was born in 1973 and is now 45 years old. As mentioned, he was 31 when he committed the serious sexual offences of 2004. In 2007, he was assessed for cognitive functioning in the mild range of intellectual disability. However, the authors of the risk assessment report do not consider that the level of his cognitive functioning has a bearing on his potential for further offending and, in any event, regard the assessment as unreliable because they think it is likely to be clouded by psychiatric disorders from which he suffers.

5. [11]

   The defendant has self-reported that he commenced using illicit drugs and alcohol in his teens and that this has continued at fluctuating levels throughout adulthood. He admits that in recent years he has made extensive use of methylamphetamine. The defendant says that he prostituted himself to homosexual men for several years from the age of 13 and that in 2004, at the time of the most serious offences on his record, he was working as a male escort.

6. [12]

   Over the years from 2005 to the present the defendant’s mental health has been assessed on many occasions and a variety of professional opinions have been expressed. The view has repeatedly been formed and reported that he suffers psychotic symptoms variously labelled as drug induced and/or schizophrenic. When at liberty the defendant has used illicit drugs and has followed a lifestyle described in the reports of various authorities as “chaotic”. The defendant’s psychosis is said to be limited to or at least closely associated with periods of methylamphetamine use. He has exhibited impulsivity with respect to sexual acts.

7. [13]

   The lack of structure and of prosocial activities in the defendant’s life has given rise to extended periods of idleness, which, combined with impulsive conduct and drug use, have led to repeat offending. I have no hesitation in accepting that conditions of an interim supervision order should be set on the basis that the defendant is at a high risk of sexual reoffending. The circumstances most likely to increase this risk and possibly to see it realised would be the use of illicit drugs and/or failure to comply with prescribed mental health treatments.

8. [14]

   During the defendant’s parole over the past six months he has been charged with two drug possession offences. He has pleaded guilty to both. Applications to have these dealt with under s 32 of the Mental Health Act 2007 (NSW) have been rejected in the Local Court. The first offence was in January 2019 when Corrective Services’ officers, who were supervising his parole, found oxycodene in his residence. In early March 2019 police arrested the defendant at Taylor Square in possession of 0.7g of methylamphetamine, evidently a quantity intended for personal use. The defendant is on bail in relation to these charges and his penalty will be determined in the Local Court in early July.

Recent breaches of parole

1. [15]

   On 20 March 2019 a breach of parole report was prepared and submitted to the State Parole Authority. It cites the two recent drug offences to which I have referred. The Authority has deferred consideration of whether parole will be revoked until the Local Court disposes of these charges finally. A report has also been made with respect to the defendant’s breach of parole on 21 May 2019 when he failed to attend a consultation with Forensic Psychology Services. The defendant had been notified that he was required to attend for this consultation the preceding day. There is at least prima facie evidence that his failure to attend was due to being unwell and that he sent an email to explain and excuse himself on that account, but misdirected the email to the wrong address. I do not consider that this breach in all of the surrounding circumstances indicative of wilful non‑compliance or that it should be given any significant weight in deciding what conditions should attach to an interim supervision order. The defendant’s persistence in the possession of drugs and, I infer, his use of illicit drugs is of much greater concern.

Resolution of issues concerning conditions

1. [16]

   The first area of dispute in relation to the conditions proposed by the State is the proposed requirement that the defendant should submit schedules of movements and adhere to such schedules, and wear an electronic monitoring device as directed by his Departmental Supervising Officer (“DSO”). Schedules and electronic monitoring are sought in order to ensure compliance with directions from the DSO about places where the defendant should and should not go and also to monitor compliance with existing constraints upon his movements. One such constraint arises from orders made in the Local Court at Campbelltown on 4 February 2019 pursuant to the Offenders Registration Act.

2. [17]

   Campbelltown Local Court ordered that the defendant should not loiter or remain near premises frequented by children or where children are known to be, including public transport, parks, playgrounds, sporting facilities and so on. It was ordered that he not loiter or remain near public toilet facilities. Further conditions were that he should not be in the vicinity of any public swimming pool or of any public library facilities. A condition was fixed that he should not attend or be in the vicinity of bushland where there is public access.

3. [18]

   On 7 May 2019 he was directed that in addition to the conditions of his parole order he should not frequent or attend 389 Bourke Street, Surry Hills, or have any contact with any occupants at this address. It appears that this address had been brought to the attention of his Community Corrections officer as a place where drugs are likely to be sold.

4. [19]

   The defendant has never previously been subject to electronic monitoring under any form of court order. I do not consider that this would have any protective effect in relation to offences of the kind that he is alleged to have committed in the past. Electronic monitoring and scheduling would not have served any purpose to deter or prevent, for example, the offences of 2004, the events of which commenced on a public road. Such monitoring and scheduling would have been of no utility in relation to the offending of 2014, which commenced in a caravan park.

5. [20]

   The Court’s concern with respect to imposing scheduling and monitoring is that whilst, it would not appear likely to contribute to any material reduction in risk of reoffending, based on the past conduct of the defendant, would give rise to restrictions on movement which would readily be infringed, exposing the defendant to prosecution under the High Risk Offenders Act and risk of further imprisonment. In effect, the constraints imposed by scheduling and monitoring would criminalise actions and movements which may of themselves be entirely innocent. The Court is reluctant to create this situation unless it is shown that scheduling and monitoring, which may lead to prosecution from departures from a schedule, is likely materially to contribute to reducing opportunities or situations which otherwise might lead to the defendant committing further offences.

6. [21]

   The prospect of the defendant breaching scheduled constraints upon his movements, being prosecuted for breach and returned to prison, would be destructive of attempts to achieve reintegration and rehabilitation. If this prospect is raised without discernible, concrete likelihood of improved protection of the community, then it is not warranted. In this case I do not consider that cll 4 to 7, as proposed by the State, prescribing scheduling and monitoring are warranted.

7. [22]

   The next area of dispute about conditions concerns curfew and inspection of the defendant’s residential premises. He will be required under the conditions that I will fix to live at an address approved by his DSO. The State submits that he should be under a curfew to remain there between 11.30pm in the evening and 6.00am in the morning and that he should allow his DSO or any other person to visit him at that address and enter the premises. The primary purpose of these conditions is submitted by the State to afford his supervising officer scope to verify that he is residing where he is required to reside.

8. [23]

   I accept that it is important that he should adhere to the condition about living at an address that is approved and I accept that the DSO should have the opportunity to verify that he is living there. A curfew between 11.30pm and 6.00am in the morning would not be justified on any ground independent of giving the DSO the opportunity to verify his residence. There is nothing in the defendant’s criminal history to indicate that being out at night, or casually sleeping over at another address or location, is of itself associated with his commission of offences.

9. [24]

   In lieu of these requirements proposed by the State, I will impose a condition in the following terms, which I consider meets the proper requirements of the State and of Corrective Services:

10. [25]

    The State did not resist this condition except to the extent of it requiring eight hours' notice. I fix eight hours on the basis that I do not think it warranted that the DSO should have the power to attend and inspect the premises without the defendant being present. It may be excessively hopeful to expect that the defendant might find employment, but if he should, he may well need eight hours to get from wherever he is working back to his residence to facilitate inspection. The State's principal objection to the requirement of notice is that it is thought the defendant might use it as a time within which to create a false impression within his property of residing there and that he might by that means cover up the fact that he was actually living at another location. I consider that that submission attributes to the defendant a degree of deviousness and inventiveness with respect to misrepresenting the location of his address which has not been exhibited by him to date and which I find no reason to assume.

11. [26]

    On a related topic, the State seeks conditions that the defendant should not spend the night anywhere other than the approved address without prior approval from his DSO and that he should promptly notify his DSO of any visitors entering and remaining. I do not consider that these conditions are warranted. They are excessively restrictive and could well give rise to inadvertent infringements which would expose the defendant to prosecution for breach in circumstances where no useful purpose protective of the community would be served.

12. [27]

    Provided that the defendant is resident at the relevant place, should spend a night or nights somewhere else whilst still maintaining that residence it is not apparent how that would likely contribute to increased risk of offending, taking into account the nature of his serious offending in the past. Similarly, it is not apparent why notification to the DSO of visitors or the obtaining of approval for visitors would assist in achieving the protective purpose of these conditions.

13. [28]

    With respect to place and travel restrictions, the State's proposed cl 17(c) would prohibit the defendant from attending cinemas. The defendant proposes that there be an exception for him attending sessions of movies classified MA and above. This is put forward on the basis that it would be reasonable to expect that children of a young age who might be vulnerable to misconduct by the defendant would not be present at such movie sessions. I consider the defendant's proposed exemption is reasonable. The State has countered that cinemas are in public places, often in shopping complexes and the like where young children may be about. But cinemas are only one of countless facilities in the city environment where children may be encountered. The restriction imposed upon any attendance at cinemas without an exception such as the defendant has proposed would, in my view, be unreasonably restrictive.

14. [29]

    Clause 18 as proposed by the State would prohibit the defendant from attending any place used solely or mainly for the sale or display of sexually explicit material or for providing sexual services or sexually explicit entertainment. This would, on the State's proposal, be subject to DSO approval. In propounding this condition the State has submitted that the defendant has in the past expressed his desire to attend what are referred to as gay sex clubs and there to engage in sexual activity with other men, in conjunction with the use of drugs either on the premises or elsewhere.

15. [30]

    I consider the clause as drawn is unnecessarily wide. I see no reason to prohibit him attending places used for the sale or display of sexually explicit material. But with respect to premises used for the provision of sexual services or sexually explicit entertainment, I do not think it unreasonable that the defendant should be subject to constraint, that he should only attend such premises as approved by the DSO and on occasions, or at least categories of occasions, approved by the DSO. It is reasonable on the part of the State to take the position that his expressed desire to frequent such locations appears to increase the likelihood of him consuming methylamphetamine in the context of an intent to engage in sexual activity. This is precisely the combination that heightens to a maximum the risk of the defendant committing offences against innocent persons without their consent. Provided cl 18 is reduced to a narrower prohibition along the lines that I have suggested, I would consider it appropriate.

16. [31]

    The State seeks a condition that the defendant must provide information relating to his financial affairs, including income and expenditure, as directed by his DSO. I do not see that this is necessary or even useful. The defendant's financial circumstances are likely to be fairly minimal, in view of his lack of any employment history and his fairly recent release from prison. The argument is advanced that significant expenditure or receipt of funds might be an indication to the DSO of illegal activity. That seems to me to be highly unlikely in circumstances where anything the defendant might do concerning money would likely be transacted in cash. This appears to be significantly invasive conditions carrying the risk of a breach which would expose the defendant to prosecution without serving any useful protective purpose so far as the community is concerned.

17. [32]

    The defendant agrees that he should be subject to a condition that he not possess or use illegal drugs. He agrees also that he should be required to submit to testing for drugs as directed by his DSO. However, he contends that this should take place only at the DSO's office. The State submits this is inadequate as it eliminates the possibility of random testing. I propose to impose a condition as sought by the State but adding to it this provision: "For this purpose the DSO may attend at the defendant's residence without notice and require a saliva sample to be provided."

18. [33]

    A requirement that the defendant supply a random saliva sample is not particularly intrusive. It is not likely to lead to any embarrassment or humiliation. It is quite rational that the State should require the ability to undertake random testing in view of the defendant's demonstrated tendency to revert to drug use and the extensive medical reporting that indicates his doing so is highly detrimental to the management of his mental health and strongly associated with the risk of criminal behaviour.

19. [34]

    The State seeks a further condition that the defendant should not purchase, possess or have access to material that is classified as, or would be classified as, refused classification or X18, without prior approval. I do not consider that this condition is warranted. There is no indication in the background material, so far as I can ascertain, that suggests that he has a proclivity to view pornographic material in a way that exacerbates the risk of him committing sexual offences. It is true that he apparently used pornographic images in an attempt to excite the 15 year old boy in the toilet at the caravan park when the offences of 2014 were committed. But a total prohibition on him viewing such material seems remote from the circumstances of that offence and unduly broad.

20. [35]

    The other conditions proposed by the State, having been the subject of discussion between counsel for the parties and a measure of adjustment and agreement, are not opposed by the defendant. An interim supervision order will be made on terms which take into account these reasons when the order is settled There will be appended to the order a set of conditions reflecting the rulings that I have made.