State of New South Wales v Nichol (Preliminary)

By a summons filed on 5 July 2019, the plaintiff, the State of New South Wales, applies for final relief by way of an order that the defendant, Zakary Nichol, be subject to an extended supervision order (ESO) for a period of two years from the date of the order, under ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (HRO Act), and that for the period of the ESO the defendant is to comply with the conditions, which may be imposed under s 11 of the HRO Act, set out in the schedule to the summons.

In the interim, the State has also sought an order under s 7(4) of the HRO Act for the appointment of two qualified psychiatrists and/or registered psychologists to conduct separate examinations of the defendant, and to furnish reports to the Court on the results of those examinations as well as an order directing the defendant to attend those examinations.

To allow the examinations to be carried out and the application for an ESO to be properly prepared, the State has applied for an order that the defendant be subject to an interim supervision order (ISO) under s 10A of the HRO Act to date from when his current sentence expires on 24 September 2019 for a period of 28 days, unless the order is renewed on the State’s application or the proceedings are finally determined, and that, for the period of the ISO, the defendant is to comply with the conditions set out in the schedule to the summons.

Finally, the State seeks the following:

As required by s 7(3) of the HRO Act, a preliminary hearing was conducted before me on 5 September 2019. At that hearing, the State sought the interim orders for examinations under s 7(4) and the ISO under s 10A of the HRO Act. The order in par 4 of the prayers for relief was also sought at this time.

It can be noted at this point that there was no opposition to the making of an order in the terms of prayer 4 and, as it is appropriate at this stage, I propose to make that order.

The objects of the HRO Act are set out in s 3 as follows:

Section 5B of the HRO Act provides that the Court may make an ESO in certain circumstances. Where an application for such an order is made, s 7(3) provides:

Following the preliminary hearing required under s 7(3) in proceedings for an ESO, orders for examination of a defendant by psychiatrists and/or psychologists and the provision of reports to the Court can be made under s 7(4). In addition, an ISO can be made under s 10A at the same time as the examination orders, if the requirements in s 10A(a) and (b) are met.

Section 7(4) provides:

It can be noted that, if the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the making of the order for examinations and reports is mandatory. There is no discretion to refuse to make the orders. The situation concerning making an ISO is different. Under s 10A, if the Court is satisfied of various matters, including that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court has a discretion whether or not to make an ISO.

Section 10A is in the following relevant terms:

In the present case, it was not in dispute, and I accept, that, given the likely time examinations and the provision of reports would take, the defendant’s current custody, which comes to an end on 24 September 2019, would expire before the proceedings are finally determined, if it were determined that examination orders should be made. Thus, if examination orders were made, the requirement in s 10A(a) would be satisfied in this case

Consequently, the principal question that must be determined, under both ss 7(4) and 10A(b), on this preliminary hearing, is whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO under s 5B of the HRO Act. Section 5B establishes four preconditions for making of an ESO. Relevantly for the purposes of the present proceedings, s 5B provides:

It was not in dispute for the purposes of the preliminary hearing that the statutory criteria in s 5B(a), (b) and (c) are satisfied in the present case. Accordingly, it is only necessary to consider the prerequisite in par (d) of s 5B.

Thus, at the preliminary hearing in this matter, the focus was whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. This will be so if, on the basis of those matters, the Court would be justified in being satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an order.

The standard of proof required by the words “high degree of probability”, is a higher standard than “more probably than not” but not as high as “beyond reasonable doubt”: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. The right of an offender to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [44] and [55]-[58].

The expression “unacceptable risk” in s 5B(d) of the HRO Act is not defined in the Act. It is to be given its everyday meaning in its context and having regard to the objects of the Act: Lynn at [58]. The test of whether an offender poses a relevant unacceptable risk is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82]. The nature of the risk posed has to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures: Lynn at [126].

The evaluation of whether the risk is “unacceptable”:

Deciding whether the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk does not involve determining the probability of the existence of the risk or the likelihood of its manifestation, but rather the probability that the offender poses such an unacceptable risk: NSW v Ceissman [2018] NSWSC 508 at [32] (Rothman J); Cornwall v Attorney General of NSW [2007] NSWCA 374 at [21].

In determining whether to make an ESO, the Court must:

As explained above, whether examination orders are to be made under s 7(4) and an ISO ordered under s 10A(b) turns on whether the making of an ESO would be justified assuming the matters alleged in the supporting documentation were proved.

The words “would … justify the making of an [ESO]”, in s 7(4) and 10A(b) are to be construed as imposing a lower standard than that which applies to the making of the ESO itself: State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [17], State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008 at [44]. Those words require the Court to be satisfied that the making of an ESO would be justified, in the sense of being reasonably open, in the light of the matters alleged in the supporting documentation, assuming them to be proved: State of New South Wales v Sturgeon [2019] NSWSC 559 at [6], State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [59].

This approach is consistent with the principle that in considering whether to make interim orders, such as the ISO in the present case, it is appropriate to give weight to risk-avoidance: Attorney General for New South Wales v Winters [2007] NSWSC 611 at [7] (Bell J).

In addition, at a preliminary hearing, the function of the Court is not to weigh up the documentation provided in support of the making of interim orders, or to consider what evidence the defendant might call at the final hearing, or to seek to predict the outcome of the proceedings for final orders: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], and State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 (McGee) at [10].

Rather, the Court is to engage in an evaluative exercise, taking into account all of the supporting documentation and, proceeding on the assumption that the facts alleged in the supporting documentation are proved, to determine whether those facts would justify the making of an ESO: McGee at [10].

The supporting documentation on which the State relied was:

The defendant relied on:

As noted above, when determining whether an ESO would be justified for the purposes of ss 7(4) and 10B, the Court is required to proceed on the basis that “the matters alleged in the supporting documentation” are proved. This refers, in my view, to the documentation provided by the State in support of its application for an ISO and examination orders. It does not include evidence or documentation provided on behalf of the defendant. From this it does not follow, however, that the defendant’s evidence is not relevant on other issues such as whether, in the exercise of the Court’s discretion, an ISO should or should not be made and what conditions should be imposed as part of any ISO: State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [69]. To that extent, the defendant’s evidence is relevant.

The findings set out below concerning the defendant and whether the Court must or may make orders under ss 7(4) and 10B, respectively, are based on the matters alleged in the State’s documentation supporting its application, on the assumption that they have been proved. In determining whether to make an ISO, I have also taken into account the defendant’s material.

The defendant was born in 1996 and is the only child from his parent’s relationship, although he has an older half-sister who is his mother’s daughter. His parents separated when he was two years old. While he lived with his mother, he maintained contact with his father. His mother formed another relationship but this ended when he was 12 years old.

The defendant has reported that his childhood was unhappy and he had a poor relationship with his stepfather whom he described as emotionally abusive and “rude, mean and nasty”. Although he described his mother as cold and unemotional, he reported that he had a good relationship with his father.

At about the age of 12, the defendant was diagnosed with IgA nephropathy which is a genetic condition affecting his kidneys. The defendant’s understanding was that he had a 50% statistical chance of his kidneys failing within 10 years after initial diagnosis and an 85% chance after 25 years. He identified that the prognosis was poor and the condition was generally fatal. He is required to attend medical tests every six months to assess his kidney functioning and although he was diagnosed approximately 10 years ago, to date his kidneys are still functioning satisfactorily.

The defendant’s schooling was positive until year 9 when he began truanting.

When he was 15 or 16 years of age the defendant was charged with four offences of animal cruelty which involved his killing four of his neighbour’s dogs. These charges were dismissed under the mental health provisions of the Crimes Act 1900 (ACT) on the basis of a diagnosis of Asperger’s syndrome. The defendant reported that his motivation for the offences was so that he could be more like a “psychopath” in that he believed he was too emotional at that time and he wanted to be like people whom he believed experienced little emotion. The defendant spent a number of months in a juvenile detention centre whilst on remand pending the charges being dealt with. This incarceration interrupted his schooling.

As a result of the dismissal of the charges under the mental health provisions, the defendant came under the mental health jurisdiction of the Australian Capital Territory Civil and Administrative Tribunal or ACAT.

It also appears that about the age of 16 the defendant was charged with a minor theft but this charge was also dismissed under the applicable mental health provisions.

He attempted to complete his Higher School Certificate. However, the antipsychotic medication which was prescribed for him interfered with his concentration and his capacity to retain information and he ceased schooling at the age of 17.

It appears that the defendant commenced university studies in engineering in 2013 but dropped out because of the effects of his medication. In 2014, he recommenced these studies in Sydney. For nine months in 2014 and 2015, the defendant worked in a McDonald’s restaurant.

On 25 February 2016, the defendant was arrested and charged with two offences:

The defendant pleaded guilty at the earliest opportunity and was sentenced by Williams SC DCJ in the District Court on 27 January 2017. His Honour’s remarks on sentence included the following information:

The learned sentencing judge said that in neither case did the defendant transmit obscene images, offer money or persist in pursuing opportunities to meet the victim in person and that, unusually, the defendant was not arrested at a meeting place arranged with the child but was arrested some eight months after the last contact with the victim. His Honour also said:

The defendant was sentenced as follows:

While in custody, the defendant received one reprimand and caution for failing a prescribed drug test while in custody. He reported, however, that this was because he had been provided with Panadeine by the Justice Health Clinic but that had not been recorded and, when tested, codeine was noted to be present.

While in custody, the defendant also participated in the CUBIT program between 7 August 2017 and 27 June 2018. This program is a custody-based residential therapy program for men who have sexually abused adults and/or children. A report dated 6 August 2018 concerning his participation and successful completion of the program was prepared by Ms Nicole Weaver, psychologist.

As to his general participation in the program, Ms Weaver noted that the defendant expressed internal motivation for wanting to complete treatment and he reported wanting to be able to deal with problematic areas in his life, primarily identifying domains related to offending, interpersonal relationships and how he viewed himself. He completed all tasks that were required of him. In general, his completion of task work appeared to be thoughtful and comprehensive. He also provided written tasks for review that were not requested. The defendant was provided with feedback that initially his participation was perceived as disingenuous by therapists. This was due to factors such as the defendant regularly asking for feedback from the therapists with the perceived motivation being validation seeking. However, over the course of treatment his motivation and commitment to treatment appeared to be consistent. In general, he appeared to get along with other group and community members. Overall, the defendant participated well in treatment. He appeared to understand the content discussed and reportedly applied associated skills with effectiveness. He completed task work as required and often discussed content in a thoughtful manner.

The defendant’s risk of reoffending was assessed using the STABLE-2007 tool designed to identify stable dynamic risk factors and the STATIC-99R actuarial risk assessment instrument. When these two were combined, his composite risk/needs level, having regard to static and dynamic risk factors, was in the “well above average risk level”. This was further explained as follows:

The report also identified the most salient of risk areas as being intimacy deficits, significant social influences and sexual self-regulation. In order for his risk of reoffending to be managed successfully upon release, it was said that he would need to continue to address his dynamic risk by utilising and building on the knowledge and strategies gained throughout the treatment. Any changes noted in his dynamic risk factors should alert him, his support network and any professionals to the potential need for intervention.

The report concluded with a series of recommendations for the defendant as follows:

The defendant was released to parole on 22 August 2018 and is currently living in the community, subject to extensive parole conditions. The Corrective Services New South Wales case note reports, or OIMS notes, indicate that the defendant by late 2018 was engaging well with his psychologist and appeared to be using the maintenance group in a positive way. By January 2019, he had obtained an Australian business number, or ABN, for use in the future in relation to a robotic support and production business. It was noted that it was not currently being used at that time. It was also recorded that the defendant had created an online presence for that business and “like most of his online commerce, social media and similar; he has reported all of the required details in accordance with his [obligations]”. At the beginning of 2019, the defendant also re-enrolled at university.

In February 2019, the defendant was required to provide various items of information including “a list of all websites used and their purpose, including all usernames for each website, email addresses and any other identifiers”. He complied with this requirement. A review of the websites he provided indicated that there was one which included content of a sexual nature and this was forwarded for review but it was stated in the case note report that “no significant concerns noted re this”. In addition, the list provided included a number of social media website, chat room websites and messaging applications. As a result of these latter matters, on 20 March 2019, a parole notification was issued and on 28 March 2019 the defendant was given a manager’s warning and directed to cease use of all social media websites, chat rooms and messaging applications in order to comply with the written direction he signed in August 2018.

On 28 March 2019 when the defendant received the warning, the case note report indicates that “initially he was confused by this as he believed he was allowed to access social media to assist with his universities studies”. On that occasion he also indicated that he understood the reasoning behind the warning and the direction provided in August 2018 and expressed his concern that he felt he may have put his liberty at risk.

During the period from early 2019, it appears that the defendant has had two age-appropriate relationships with females which have been disclosed to Community Corrections staff. He has deferred his university studies for the second semester of 2019.

As this is a preliminary application, no reports have yet been provided under s 7(4) of the HRO Act.

A risk assessment report dated 25 March 2019 concerning the defendant was prepared by Dr Richard Parker, senior psychologist. Dr Parker noted the defendant’s presentation at interview as follows:

Dr Parker noted that while a diagnosis of Asperger’s syndrome had been on an earlier occasion “categorically ruled out” the defendant appeared to display at least one of the traits associated with it. He also observed that this condition is often quite subtle in adults and difficult to diagnose, particularly when there is limited information from childhood, as was the case for the report.

As to the defendant’s personality, Dr Parker assessed his level of psychopathy as “very low” and, hence, psychopathy did not present as a credible explanation of the defendant’s offending.

Dr Parker assessed the defendant’s overall risk level by combining the STABLE-2007 assessment with the STATIC-99R assessment to yield a “well above average risk” level. As to criminogenic needs, Dr Parker was of the view that:

It was noted, however, that the stable-2007 score may be inflated due to the presence of some Asperger’s symptomatology. Taking this into account, Dr Parker estimated that the defendant most likely belonged in the “above average risk” category.

Dr Parker opined:

The risks scenarios identified by Dr Parker in respect of the defendant were as follows:

It can be noted that Dr Parker was unable to make a definitive diagnosis as to Asperger’s syndrome and he could only offer the suspicion that if the defendant reoffended it would be qualitatively different. The difference in quality, and whether it would be more or less serious than his previous offending, was not explained.

In addition to Dr Parker’s and Ms Weaver’s risk assessments which have been referred to above, Ms Chelsey Dewson, forensic psychologist, carried out a risk assessment concerning the defendant and provided a report dated 24 January 2017 for the purposes of sentencing.

Ms Dewson applied the Risk Matrix 2000/S (RM 2000/S) scale-revised which has been adapted for use with Internet sexual offenders. To assess his dynamic risk, Ms Dewson employed the Risk for Sexual Violence Protocol (RSVP). Using those tools, she was of the view that:

On 17 April 2019, Mr Marc Corcoran, Community Corrections Officer, provided a risk management report concerning the defendant. The report was prepared for the purposes of s 9(3)(d1) of the HRO Act.

In relation to the defendant’s response to supervision while on parole, Mr Corcoran observed that his response was considered satisfactory. In particular, it was noted that:

Mr Corcoran reported that an assessment undertaken using the Level Of Service Inventory-Revised (LSI-R) on 28 August 2018 found the defendant to fall in the medium risk level for general reoffending. As to the risk of sexual reoffending Mr Corcoran estimated that he most likely belonged in the above average risk category.

Mr Corcoran identified the risks to be managed or monitored under each element and explained why the nature of the management or monitoring was required in the defendant’s specific circumstances. Those risks were sexual attitudes, self-regulation and intimacy deficits. I have taken all of this material into account but it is sufficient to note the following matters here, generally under the headings used by Mr Corcoran.

These would be weekly face-to-face interviews with the defendant at his approved residence or another location. The interviews would focus on the implementation of a comprehensive case plan which will include opportunities for intervention, prosocial activities and strategies that are relevant to the identified risks. The case plan would be reviewed and updated with the defendant every two months or sooner if required. The limitation on the effectiveness of this element was the defendant’s difficulties in social interactions.

Field visits would include scheduled and unannounced home visits, field visits or surveillance by Community Corrections at minimum once per month. The purpose was to detect and mitigate risky behaviours. Field surveillance and observations may be conducted to monitor interactions and behaviours in the community and potential risks associated with approved activities. The limitations of this strategy were that the defendant could not be monitored 24 hours per day and he may engage in untoward behaviour when not being monitored.

Third-party contacts with the defendant’s father, psychologist and therapist would be made on a weekly basis to monitor the defendant’s progress, level of engagement and for emerging signs of risky behaviours. Contact would be maintained with ESOIT and Corrections Intelligence Group to detect emerging signs of risky behaviour.

Electronic monitoring, if ordered by the Court, was referred to. The implementation of schedules was thought to be useful in assisting the defendant to plan structured prosocial leisure time and intervention. This may assist him to maintain a sustainable lifestyle beyond supervision. The limitation on this element was that it could prevent neither high-risk situations nor offending behaviours, whilst he was engaging in an approved activity or in his home.

it was noted the defendant currently attends Forensic Psychology Services for sex offender program maintenance sessions and has self-referred to a private psychologist which he described as being beneficial in providing oversight of his self-management plans and for “self-improvement”.

Regular contact would be maintained with the defendant’s treating therapist assigned by FPS and other mental health treatment providers to confirm his attendance and to discuss his progress and/or concerns.

The defendant would be monitored for signs of substance abuse during interviews. If the conditions on the order permitted and if the defendant presented with signs of substance abuse, he may be tested for such use.

The defendant’s previous relevant history and Internet use were noted. If ordered by the Court, the defendant would be required to provide details of his Internet access and related information and would require approval to register for social media applications and forums. In addition, if so directed by the Court, searches to monitor such use would be undertaken. It was noted that the limitations on this strategy were that it could not prevent high-risk situations or offending behaviours whilst the defendant was engaging in approved activities on the Internet or in his home and he may meet persons under the age of 18 years while at University. In addition, if he used Internet-based encrypted messaging services he may be able to hide the nature of his Internet activities without being able to be monitored accurately.

The defendant would be required to advise his Community Corrections Officer of employment, education and volunteer work that he commences as such activities would be subject to risk assessment. He would also be directed and encouraged not to have contact with persons who have been convicted of a sexual offence or who express a preoccupation with deviant or fetish interests.

The defendant’s participation in the CUBIT program between 7 August 2017 and 27 June 2018 and Ms Weaver’s report dated 6 August 2018 concerning his participation in, and completion of, the program has been referred to in detail above. I have taken those matters in the recommendations in that report into account.

These options have been covered in Mr Corcoran’s report and Ms Weaver’s report referred to above.

In this regard, the State contended that:

I have recounted the nature of the relevant breach, which occurred in March 2019, above. While it indicates there is some potential risk, I do not accept that it is as high as the State contends. Mr Corcoran’s report included the view of the defendant’s Community Corrections Officer that the defendant had been generally compliant with supervision and the officer did not have any significant concerns about the defendant’s risk to the community at that time. I note, however, that the officer’s view as to risk was based on the defendant being subject to supervision.

It has not been suggested that this factor had any particular relevance in the present case.

The defendant’s criminal history and the nature of his offending have been dealt with above.

The views of Williams SC DCJ in the District Court on 27 January 2017 have also been recorded above.

I have also taken into account the matters raised in tactical intelligence report, especially those referred to in paragraphs 89 and 90 of the State’s written submissions. They are particularly disturbing, but it is not necessary to repeat them here.

The State submitted that, in the light of the consideration of the s 9(3) factors and the other circumstances of this case, the Court would be satisfied that the making of an ESO was justified in the present case, on the assumption that the matters alleged in the supporting documentation were proved.

The defendant submitted that the material did not permit such a finding, even accepting that the past offending was of a serious nature and that the index offences involved two children. His written submissions drew attention in particular to the following:

While I accept that the defendant’s circumstances include those to which he has drawn attention, I am nonetheless of the view that, on the assumption that the matters alleged in the supporting documentation are proved, it would be open to the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not under supervision. I reach this conclusion in light of the material in the State’s supporting documentation as a whole but particularly relying on the nature of the defendant’s past offending, the lack of certainty concerning the defendant’s diagnosis with Asperger’s syndrome, Dr Parker’s ability only to offer the suspicion that if the defendant reoffended it would be qualitatively different, without identifying the nature of the difference, and the seriousness of the matters disclosed in the tactical intelligence report, especially those referred to in paragraphs 89 and 90 of the State’s written submissions, as well as the reports of Ms Weaver and Ms Dewson.

This material also indicates to me that the Court would not be in a position to make a properly informed decision concerning whether an ESO should be granted without the benefit of up to date reports from psychiatrists or psychologists that deal with all the relevant matters.

On these bases, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. Accordingly, under s 7(4) of the HRO Act I am required to make orders for the examination of the defendant. In addition, the discretionary power under s 10A of the HRO Act to make an ISO is enlivened.

In considering whether an ISO should be made I have taken into account the evidence adduced by the defendant as well as the material relied upon by the State, including Mr Corcoran’s report. I have also taken into account both objectives of the Act, namely, ensuring the safety and protection of the community and encouraging offenders to undertake rehabilitation.

It appears to me that the nature and extent of the risk posed by the defendant, as far as it can be presently ascertained without the benefit of up-to-date reports from psychiatrists or psychologists, together with the benefit likely to be derived by the defendant from a further short period of supervision, given the support he is likely to receive from his family and his present partner, mean that the imposition of an ISO for 28 days is appropriate and beneficial in the circumstances of this case. In reaching this conclusion, I should not be taken to be expressing any view as to whether an ESO will or will not be appropriate when that matter comes to be considered in the light of all the circumstances and including, in particular, up-to-date reports concerning the defendant from the psychiatrists or psychologists appointed under s 7(4).

As to the conditions that are should be imposed on any ISO, the State provided a revised schedule of proposed conditions which became MFI 1. The defendant did not make specific submissions opposing many of the proposed conditions, if it was decided that an ISO should be imposed. The defendant’s submissions concerning proposed conditions 34 and 35 were, in effect, accepted by the State in MFI 1. It is not necessary to address those conditions any further.

The only conditions which remained in contention were proposed conditions 8 and 9. They were in the following terms:

Similar conditions are not included in the defendant’s parole conditions and it has not been suggested that the defendant’s conduct since his release on parole indicated that such conditions were required. It appears to me that the defendant has made commendable progress both in custody with the CUBIT program and since his release to parole. Proposed conditions 8 and 9 are, in my view, at this time unnecessary to ensure the safety and protection of the community. Further, imposing these conditions would not be necessary or appropriate to assist the rehabilitation of the defendant.

In these circumstances, I propose to impose the conditions set out in MFI 1 except for conditions 8 and 9.

For all of these reasons, the orders of the Court are: