State of New South Wales v Colquhoun

Mr Richard Kenneth Colquhoun (the defendant in these proceedings) was born in January 1964, and is therefore now 54 years of age. Since January 1991, when he turned 27, he has spent a very significant portion of his life in gaol. The reason for that is his entrenched sexual attraction to boys under the age of 16 years, and his repeated readiness to act upon that attraction. I proceed to provide some detail in support of those propositions.

In 1989, when he was in his mid-20s, the defendant was working as a gymnastics teacher at a community centre in Sydney. He committed a number of penetrative sexual assaults upon a boy who attended that centre. He was able to do so by obtaining the agreement of the mother of the victim to the defendant providing private tuition to him at the centre when it was closed. The defendant has always denied that he committed any offences against this victim. I shall call these the “community centre offences”.

Whilst on bail for those offences, in January 1991, when he turned 27, the defendant kidnapped two young boys from a park in Manly. They were strangers to him. He detained them in his work van, bound them up, and committed sexual offences against them, including penetration.

The defendant pleaded guilty to a number of offences, and maintains his admission today that he was indeed guilty of them. His explanation is that, at the time, he was affected by cannabis and alcohol, and was very angry about having been accused, on his version falsely, of the offending against the child at the community centre. Having said that, he has conceded that he was sexually aroused when he committed what I shall call the “Manly offences”.

After the defendant was found guilty at the conclusion of a trial by jury in this Court with regard to the “community centre offences”, Slattery AJ imposed sentences upon him for both sets of matters. In remarks on sentence of 11 June 1991, his Honour drew attention to the offences and their respective maximum penalties; the facts and circumstances surrounding the offending (including the seemingly planned and calculated nature of the Manly offences, and his position of authority and trust with regard to the community centre offences); the defendant’s subjective circumstances (including his substance use, psychiatric history, sexual history, and criminal antecedents); the reservation his Honour held with regard to any remorse shown by the defendant, and its incongruence with the defendant’s behaviour during the trial; his guilty pleas in relation to the Manly offences; his prospects of rehabilitation; the principle of totality; and a finding of special circumstances.

At the conclusion of those remarks, a total head sentence of imprisonment for 14 years with a total non-parole period of nine years was imposed.

The defendant spent almost exactly 9 years in custody, from January 1991 until January 2000, when he was released to parole.

In March 2004, whilst living with his parents and on parole, the defendant, by then aged 40, was found to be in possession of child pornography. Children of both genders were depicted, but it is noteworthy that included amongst the images were pubescent boys.

The explanation of the defendant for the presence of those images on a computer to which he had access was and is that either a “virus” had infected that computer, leading to the images being unintentionally present, or that his mother, whilst intoxicated, accidentally downloaded the images from a website.

In assessing the rational possibility of those explanations being correct, one is entitled to take into account the whole context, which includes not only the fact that it was the mother of the defendant who alerted the authorities about the presence of the images, but also the prior offending of the defendant. I readily reject his explanations for the presence of the child pornography on the computer to which he had access.

In October 2004, the defendant was sentenced to a head sentence of eight months with a non-parole period of six months for that offending. An appeal to the District Court was dismissed. In the meantime, the parole of the defendant was revoked; the result of those developments was that he was in custody from May 2004 until April 2006, a period of not quite two years.

Interrupting the chronological analysis for a moment, in April 2004, the defendant had been charged with failing to comply with his reporting conditions pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW) (the Child Protection Act). In a nutshell, he had changed his residential address without informing authorities, assertedly because he had been the subject of intimidation as a result of his offending against children having become known in the community. In September 2004, he was placed on a 12 month bond for that offence.

In September 2009, after a trial by jury, the defendant was sentenced by Judge Lakatos SC for three offences committed in the first three months of 2007 (it will be recalled that the defendant had been released from gaol again in April 2006). The offences were acts of aggravated indecent assault and of indecency against an 11 year old boy. Judge Lakatos imposed a total head sentence of six years four months with a non-parole period of five years.

An appeal against conviction to the Court of Criminal Appeal led to all of those convictions being quashed. The defendant was subsequently retried, and acquitted of all counts. In those circumstances, counsel for the plaintiff in these proceedings was content for me to take the approach that, although those “acquittal counts” are not irrelevant in proceedings such as these, they should be accorded much less weight by me than any “conviction counts”. She also accepted that there is no requirement for me to refer to any aspect of the remarks on sentence of Judge Lakatos.

In December 2009, the defendant came before Judge Flannery SC for sentence. That was after a separate trial by jury had culminated in verdicts of guilty, but the trial judge had subsequently died. The jury had returned guilty verdicts on three counts of aggravated indecent assault, committed by the defendant in April and May 2007 against a boy aged 13 and a half years. Judge Flannery imposed a sentence that had the effect of extending the total non-parole period imposed by Judge Lakatos by a period of 15 months.

Those convictions were quashed by the Court of Criminal Appeal as well. Again, in those circumstances, counsel for the plaintiff accepted that there is no need for me to analyse the remarks on sentence of Judge Flannery.

A retrial was conducted, judge alone, before Judge Norrish QC. In the event, Judge Norrish found the defendant guilty of two of the three counts. Judge Norrish, in his remarks on sentence of June 2014, emphasised the offences and their respective maximum penalties; the objective seriousness of the offending; the grooming by the defendant of the young boy; the sentencing principles applicable to re-sentencing; the criminal history of the defendant; the finding that the defendant was at a risk of re-offending in the future; his sexual interest in and emotional identification with young boys; his denial of responsibility and lack of remorse; and his prospects of rehabilitation, with regard to which treatment was assessed as being “impossible”. His Honour also spoke of the fact that the sentence imposed by Judge Lakatos for the “acquittal counts” no longer had any role to play, and that Judge Norrish had acquitted the defendant of one of the offences for which Judge Flannery had sentenced him.

In the event, Judge Norrish imposed sentences that had expired in their entirety by the date of their imposition.

The net result of all of those proceedings was that the defendant was continuously incarcerated from July 2007 until September 2013, a period of over six years (the defendant was on bail from the latter date until the resolution of the proceedings in June 2014).

In May 2015, the police charged the defendant with failing to comply with his obligations under the Child Protection Act. That arose from the fact that the police inspected the home of the defendant, and discovered that he had a Facebook account and Facebook messenger account on his mobile phone. Those accounts were unknown to the authorities until that inspection. Upon investigation of the Facebook account, it was found that the defendant had communicated with another “gamer”, whose online photographic profile suggested, according to the police, that he was between the ages of 10 and 12 years. A communication sent by the defendant to that person was:

The defendant was sentenced for that offence in May 2016 in the Local Court. He received a head sentence of imprisonment for two years with a non-parole period of eighteen months, which commenced in May 2016. The remarks on sentence of Magistrate Bartley were not placed before me. An appeal to the District Court against severity was dismissed.

Pursuant to that sentence, the defendant was released to parole on 10 November 2017, upon the expiry of his non-parole period. His head sentence expired last month, on 10 May 2018.

To complete the conspectus, on 16 April 2018, RA Hulme J imposed an interim supervision order (an ISO) upon the defendant, and made other orders preliminary to the proceedings that came before me. I understand that the ISO has since been extended, and will currently expire on 4 July 2018.

To summarise the above: the defendant has convictions for sexual offences against four prepubescent or pubescent boys: the victim of the community centre offences; the two victims of the Manly offences; and the victim of the offences that culminated in the sentences imposed by Judge Norrish.

He has been convicted of possessing child pornography (as it was then called), and twice convicted of breaching his obligations under the Child Protection Act.

He was recently released from custody after secretly being in online contact with a person whom (one can infer) the defendant believed to be a prepubescent or pubescent boy.

Finally, since early 1991, the defendant has been incarcerated for continuous periods of approximately nine years, two years, six years, and 18 months; a total of well over 18 years.

It is in that context that, by way of an amended summons filed in Court at the hearing before me on 20 June 2018, the plaintiff seeks an extended supervision order (ESO) of three years against the defendant.

To state the position of counsel for the plaintiff succinctly, it is that the defendant is, regrettably, a person who is sexually attracted to children; who is very largely in denial about that proposition; and who is very largely untreated. He is someone who has breached statutory obligations designed to protect children from himself more than once in the past. All of the expert evidence accords with the inevitable view that one would come to as a layperson: there is a high risk of the defendant committing further serious sexual offences against young boys if his liberty is not significantly curtailed by a strict ESO.

Counsel for the defendant did not submit that any of the formal preconditions for the making of an ESO had not been satisfied. She did submit that the basal test for the making of an ESO, to be found in s 5B(d) of the Act, had not been. By the end of the hearing, her position had been refined in that regard to two points of emphasis.

The first was that there is no evidence that the defendant has committed a sexual offence against a child for more than a decade; that is, since the first part of 2007.

The second was that the “Facebook offence” that led to the most recent incarceration of the defendant for a continuous period of 18 months should not have too much read into it; after all, the person with whom the defendant had online contact may, in truth, not of been a boy at all; and in any event, it is hardly troubling for there to be a communication from one gamer to another that is in its terms quite anodyne.

If I were against her on the question of whether to make an ESO, I did not understand counsel to dispute its proposed length in itself, but rather to submit that the question of the length of the curtailment of the liberty of the defendant was bound up with the degree of that curtailment by way of the conditions of any ESO.

Finally, if I were to be satisfied that an ESO should be made, and that it should be of three years’ duration, counsel for the defendant placed a number of the proposed conditions in dispute.

In that regard, Mr Sheehan, forensic psychologist, was called and cross-examined before me. In a nutshell, his evidence was that some of the conditions are unlikely to play an effective role in reducing the risk of re-offending, not only because of their lack of relevance to how the defendant has offended in the past, but also because there comes a point at which a set of conditions becomes so restrictive and burdensome that the resultant feeling of resentment and oppression on the part of a supervised offender can itself be criminogenic.

Counsel for the defendant also read two affidavits, one of the defendant and one of his mother (with whom he lives, and with whom he proposes to live into the future), which may be summarised as being that the supervision to which the defendant is currently subject is rigorous, disruptive, and upsetting for both of them.

The threshold test that I am required to apply is to be found in s 5B and s 5D of the Act, which are relevantly as follows:

Further, the list of mandatory considerations to which the Court must have regard when determining such an application found in s 9(3) informs the determination of the evaluative judgment in s 5B(d). The section in its entirety is as follows:

As discussed previously, the formal preconditions for making an ESO found in s 5B(a)-(c) were not disputed in the hearing of the application: the defendant is a 54 year old man; he has been sentenced for a serious offence as defined; and, at the time of the application, he was serving a term of imprisonment for a serious offence of a sexual nature.

Turning to resolve the first dispute: in my opinion, the evidence soundly establishes, first, that the defendant is sexually attracted to children; in particular, boys around puberty. The aetiology of that paedophilia is unknown, though in the evidence placed before me there is a suggestion that a period spent in Boys Town (after a disadvantaged and disrupted childhood) may have had the effect that his first sexual experiences were with young boys when he himself was a young boy.

Secondly, as my review of the convictions and incarceration of the defendant shows, he has been repeatedly ready to act upon that attraction; and to do so by way of both “grooming” boys and inveighing himself into the lives of those close to them; and, on the other hand, by way of random attacks (s 9(3)(h) of the Act).

Thirdly, there is a lack of insight on the part of the defendant that, combined with his repeated refusal to take responsibility for what he has done, may not ungenerously be described as recalcitrance (s 9(3)(h) of the Act).

Fourthly, there is nothing to suggest that the defendant has received any therapy that has truly intervened in his criminal ways of thinking and feeling. It is noteworthy that he has consistently evaded intensive therapy whilst in custody. It is true that the defendant did complete a program, Sex Offender Psycho-Educational Group, during 1996. However, that program does not treat sexual aggression, the defendant was recorded as “not a committed participant”, and, as Mr Sheehan notes, this program is educational only. Most importantly, completion of that program over two decades ago pre-dates much of the offending of the defendant (s 9(3)(e) of the Act).

Fifthly, I do not accept that the paedophilic attraction experienced by the defendant has faded or disappeared with the passage of time.

Sixthly, a number of recommendations discussed by Mr Ardasinski, psychologist, as risk management strategies were considered by him as options that might reduce the likelihood of the defendant re-offending. These include restrictions on the defendant’s internet use and online gaming, being subject to random home visits, electric monitoring, and providing a schedule of daily activities.

Dr Eagle, a forensic psychiatrist, also opined that biological interventions, in the form of anti-libidinal medication, would reduce the defendant’s risk of re-offending following the diagnosis of a paedophilic disorder. However, Dr Eagle noted, this would be ideally prescribed with the consent of the defendant and in association with other psychological therapies that target the offending behaviour.

All of that, in my opinion, argues for the proposition that an ESO might reduce the likelihood of re-offending (9(3)(e1) of the Act).

Furthermore, a psychological report of Corrective Services NSW, prepared as long ago as on 6 September 2005, states that the ability to manage the defendant reasonably and practicably in the community “will remain problematic”. Corrective Services NSW also prepared a risk management report on 9 November 2017 that outlined the focus of the ESO, and how the ESO will manage the defendant in the community. This aims to manage his criminogenic risk factors, in order to reduce his risk of re-offending.

In short, there are indications that the defendant may be able to be reasonably and practicably be managed in the community (s 9(3)(d1) of the Act).

Seventhly, quite apart from breaches of parole encapsulated by re-offending, on two separate occasions the defendant has shown that he cannot be trusted to abide by the conditions of conditional liberty (s 9(3)(e2)-(f) of the Act.) And, as discussed previously, he has displayed a lack of compliance with obligations pursuant to the Child Protection Act (s 9(3)(g) of the Act).

Eighthly, as for the latter, and contrary to the submission of his counsel, I do not regard the more recent contact between the defendant and a person who presented himself as a 12 year old boy, by way of an online account that the defendant had kept hidden from the authorities, and by way of a gibberish message that a child might find attractive or amusing, as being of little moment. Quite the contrary: it is a matter of grave concern.

Ninthly, one may accept that it is many years since there has been any evidence of commission of a sexual offence against a child. But it is to be recalled that, for a significant proportion of those years, the defendant was in no position to offend in that way, because he was incarcerated, and had no access to children. During others of those years, he was subject to conditional liberty, and that may have played some prophylactic role.

Furthermore, I repeat that the recent offence committed by way of contact with the person presenting himself as a child, whilst not overtly sexual, is deeply troubling in relation to the likelihood that the offender will commit a further serious offence (s 9(3)(i) of the Act).

Tenthly and finally, the opinions of various experts found in a number of reports and statistical assessments must be considered when determining whether the defendant meets the test for the imposition of an ESO (s 9(3)(b)(c) and (d) of the Act).

In a nutshell, the unanimous opinion of Dr Eagle, forensic psychiatrist, Mr Sheehan, forensic psychologist, and Mr Samuel Ardasinski, a senior psychologist within the Department of Corrective Services, is that the defendant poses a risk of sexual re-offending that is either above the average risk or is a high risk. The experts all diagnosed the defendant with paraphilia or paedophilia, and various personality traits that are linked with his risk of re-offending.

Those opinions are consistent with the view to which, as a layperson sitting as the tribunal of fact, I am compelled by the evidence: there is a significant risk that the defendant, untreated and unrepentant, will offend again, just as he has been doing since almost three decades ago.

In all the circumstances, I am well satisfied that the test found in s 5B and s 5D, informed by s 9(3), of the Act has been established, especially with regard to the paramount consideration of the safety of the community (s 9(2) of the Act). I consider that I could, and certainly should, impose an ESO.

Furthermore, and giving due weight to the flexibility to be found in the Act whereby an ESO may be revisited or extended during its currency, I am satisfied that a duration of three years is appropriate.

Turning to the question of the conditions of the ESO, one may accept that there is no point in imposing a condition that does not play a preventative role with regard to offending. Having said that, the relevant authoritative judgment of Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 does not call for a mechanistic or direct preventative role; the approach called for is more nuanced than that.

One may also accept that there comes a point where conditions are so rigorous and so numerous that they can be in combination counter-productive, in that a person subject to them may feel crushed by their weight, and react against them by resentfully rejecting any benefits of supervision and possibly committing further crimes.

To be weighed against that is the need for the protection of the community by way of a rigorous regime of implicit compulsion, founded on the threat of breach action for non-compliance leading to further incarceration, in the compelling circumstances of this case.

With that general approach in mind, I turn to discuss briefly each of the disputed conditions, and to resolve each dispute.

Proposed condition 11 is:

I do not accept that such a condition is unnecessary, or unreasonable, or unduly onerous, or fruitless. Quite apart from anything else, it is to be recalled that the defendant committed sexual offences of the utmost gravity against young boys who were strangers to him, and whom he plucked from a public park in broad daylight. Proposed condition 11 will be imposed.

Proposed condition 20 is:

I respectfully do not accept that the defendant should have an unfettered right to expose himself to sexually explicit material, sexual services, or sexually explicit entertainment. It is not difficult to think of circumstances in which such material could, directly or indirectly, lead to sexual arousal on the part of the defendant with regard to children. By the conclusion of the hearing, I understood counsel for the defendant not to be forcefully opposing this condition. It will be imposed.

Proposed condition 21 is as follows:

The point was soundly made by Mr Sheehan that a person cannot be forced to work, or forced to develop his or her personality. So much may be accepted; but the condition calls upon the defendant merely to “make himself available” for such activities. And I believe that one can expect a DSO to manage this condition – and, indeed, all of the proposed conditions – with sensible discretion and common sense. Condition 21 will be made by me.

Proposed condition 24 is as follows:

Counsel for the defendant submitted that this proposed condition should be replaced by:

It was accepted by counsel that being affected by alcohol is generally disinhibiting, and that it has always been the position of the defendant that he was indeed affected by alcohol and cannabis when he committed the Manly offences.

As I understood it, the point of concern on behalf of the defendant is that a DSO is not readily available after 10 pm if one wishes to have an alcoholic drink. I accept that; but there can surely be a regime whereby, over an extended period, the DSO and the defendant can work out a logistical regime that permits appropriate use, if any, of alcohol by the defendant. And in any event, the condition proposed by counsel for the defendant has its own logistical problems.

I propose to make condition 24 in the form proposed by the plaintiff.

Proposed condition 26 is as follows:

The point was made, as I have said, that one cannot “enforce” sincere and fruitful engagement in a rehabilitation program with regard to drugs or alcohol. One may query whether that that proposition is absolutely correct in all circumstances; having said that, I see the force in the evidence of Mr Sheehan, to the effect that conditions, the breach of which can lead to further incarceration, must be shown to be efficacious, directly or indirectly, before they are imposed. On reflection, I decline to impose condition 26.

The final disputed condition is proposed condition 32, which is as follows:

Yet again, it is not difficult to envisage circumstances whereby an adult sex worker might be content to be paid to do or say things, or to permit things to be said or done to him or her, that have the direct or indirect effect of exacerbating a sexual attraction to children. Yet again, by the end of the hearing I did not understand counsel for the defendant to be strongly resisting that proposition. Condition 32 will be made by me.

To summarise my resolution of the extended dispute before me about proposed conditions: all of those sought by the plaintiff in its final version of the annexure to the amended summons, with the exception of condition 26, will be made by me. It should be noted that the annexure to this judgment setting out the imposed conditions features a degree of renumbering and reformatting of the draft provided by counsel for the plaintiff.

For the foregoing reasons, I make the following orders: