State of New South Wales v Armstrong (Final)

1. [1]

   HIS HONOUR: By a summons filed 3 July 2024, the State of New South Wales (the plaintiff) commenced proceedings against Matthew Armstrong (the defendant), seeking certain preliminary orders and, by way of final orders, an Extended Supervision Order (ESO) for a period of two years from the date of the order, subject to proposed conditions, pursuant to ss 5B, 9(1)(a) and 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). An ancillary order was also sought, limiting access to the Court file.

2. [2]

   At the time the summons was filed, the defendant was residing in the community, subject to an ESO made by R A Hulme J on 14 October 2015: State of New South Wales v Armstrong [2015] NSWSC 1510. Eleven days later, on 14 July 2024, the defendant was arrested and charged with breaches of the ESO. He was refused bail and on 29 August 2024 he was sentenced to a term of imprisonment for 10 months that will expire on 13 May 2025, with a non-parole period of three months, that expired on 13 October 2024.

3. [3]

   The application for preliminary orders came before me for hearing on 18 September 2024. Orders were made on 19 September 2024: State of New South Wales v Armstrong [2024] NSWSC 1182 (the preliminary judgment). I made orders that two forensic experts assess the defendant pursuant to s 7(4) of the Act and that the defendant attend their examinations.

4. [4]

   The plaintiff did not press a prayer in the summons for an Interim Supervision Order (ISO) for a period of 28 days from 25 September 2024, subject to the proposed conditions, pursuant to ss 10A and 10C(1) of the Act, the reason being that, although the defendant was to be released from prison to statutory parole on 13 October 2024, he would automatically be subject to an existing ESO that would not expire until 1 January 2025. His obligations under the parole order would be suspended during the currency of the ESO: s 160A of the Crimes (Administration of Sentences) Act 1999 (NSW). From 1 January 2025, he would be subject to conditions of parole until the expiry of the head sentence, which is to occur on 13 May 2025. That being so, the plaintiff accepted that it could not satisfy the Court of a necessary prerequisite to the making of an ISO that is required by s 10A(a) of the Act, namely, that it “appears to the Court” that the defendant’s “current custody or supervision will expire” before the determination of the plaintiff’s claim for final relief. The plaintiff requests that the prayer be dismissed, which will be done.

5. [5]

   The hearing of the plaintiff’s application for an ESO occurred on 11 December 2024. The Court was informed that the anticipated sequence of events had occurred, so that at the time of the hearing the defendant was residing in the community, subject to his then-current ESO.

The statutory prerequisites for the making of an ESO

1. [6]

   The plaintiff submits, and the defendant does not dispute, that the statutory prerequisites as to the status of the defendant for the making of an ESO are satisfied. I am independently satisfied that is so. At the time of the application, he was an offender who served a sentence of imprisonment for a serious offence as defined in ss 4(1) and 5(1)(a)(i) of the Act, being a serious sex offence against a child, punishable by imprisonment for 7 years or more [1] within the meaning of s 5I of the Act, namely, at the time of the application he was serving a custodial sentence for a breach of a supervision order (ss 5B(a), (b) and (c), 5I and 12 of the Act) and the application was made in accordance with s 5I of the Act.

2. [7]

   The remaining issue for determination as to whether an ESO should be made is s 5B(d), which is in the following terms:

3. [8]

   The defendant submits that the Court would not be so satisfied, and therefore that the prayer for an ESO should be refused.

4. [9]

   The reference in s 5B(d) of the Act to “a high degree of probability that the offender poses an unacceptable risk” is qualified by s 5D of the Act.

5. [10]

   I note that, pursuant to ss 5B and 9(1) of the Act, the power to make an ESO is discretionary; the Court may make an order for an ESO if the prerequisites in that section are satisfied.

6. [11]

   Sections 3 and 9 of the Act stipulate its objects and the paramount consideration to be taken into account when determining an application for an ESO, respectively. They are as follows:

7. [12]

   Pursuant to s 6(3) of the Act, an application for an ESO must be supported by documentation that addresses each of the matters referred to in s 9(3) of the Act (s 6(3)(a) of the Act), and includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence (s 6(3)(b) of the Act).

The defendant’s background, his history of criminal offending, his progress under the ESO imposed in 2015 and his mental health status

1. [13]

   In the preliminary judgment, I canvassed the material tendered into evidence by the plaintiff as to the defendant’s background, his criminal history, his performance when he was subject to the earlier ESO, and forensic material that was relied on by the plaintiff at that time. The same material is relied on by the plaintiff in this (final) hearing and is relevant to some of the matters identified in s 9(3) above. In the interests of avoiding unnecessary duplication, I repeat my observations and findings concerning that material from the preliminary judgment, to which I adhere.

2. [14]

   For this (final) hearing, the plaintiff additionally relies on two forensic reports that have been produced pursuant to the preliminary orders. The reports are by Dr Anna Farrar, a forensic psychiatrist, and Dr Amanda White, a forensic psychologist. Both reports are dated 14 November 2024. Both authors obtained and related an account of the defendant’s background and his criminal, custodial and treatment history, which is unnecessary to further canvass for the purposes of this judgment.

3. [15]

   Dr Farrar diagnosed the defendant as follows:

4. [16]

   Dr Farrar declined to diagnose the defendant with schizophrenia:

5. [17]

   Dr Farrar assessed the defendant’s risk of sexual re-offending by utilising an assessment tool known as the Risk for Sexual Violence Protocol (the RSVP). She noted four past risk assessments, including two by Ms Cieplucha; the one noted earlier on 3 October 2023 in which she found that the defendant was in the “high risk” range, and another in a supplementary risk assessment report dated 27 March 2024, in which she maintained that opinion.

6. [18]

   Dr Farrar was of the opinion that the defendant’s risk of sexual re-offending is “moderate to high”. Her reasoning in forming this opinion by reference to the domains that are considered in the RSVP attracts considerable weight, in my view. It is also noteworthy that the degree of risk was not reduced by the high degree of supervision over the defendant by his ESO conditions at the date of the assessment, on 24 October 2024:

7. [19]

   Dr Farrar made recommendations for the defendant’s on-going treatment. He should be referred to a Community Health Service to review, monitor and prescribe his medication for his Borderline Personality Disorder, which was previously diagnosed as schizophrenia. His risk (including his risk of harm to himself and others) that is associated with his Borderline Personality Disorder should be monitored and he should be referred to Dialectical Behavioural Therapy (DBT), which she described as the primary psychological treatment for a Borderline Personality Disorder. Dr Farrar also recommended that the defendant continue to receive psychological treatment for his Paedophilic Disorder, and that “re-referral to the Treatment Rehabilitation Clinic is considered if [the defendant] consents to trial of anti-libidinal medication”.

8. [20]

   Dr Farrar was of the opinion that the defendant be subject to an ESO, which would “allow for ongoing treatment, support and restrictions, which could not be achieved by any other means”. She did not express a view as to its length.

9. [21]

   Pursuant to a recommendation made by me in the preliminary judgment, Dr White undertook a fresh assessment of the defendant’s level and characteristics of intellectual functioning. Dr White noted that the defendant’s level of intellectual functioning had been tested in 2013, utilising the Wechsler Adult Intelligence Scale – Fourth Edition (WAIS-IV), with a result that he was in the Borderline range. A further assessment in 2014 yielded a result of the defendant functioning in the “Low Average” range. Dr White noted:

10. [22]

    Dr White administered certain sub-tests of the WAIS-IV. She qualified the results, stating:

11. [23]

    The possible results, and relative population percentiles, were described thus:

12. [24]

    Some of the sub-test results obtained by Dr White, in short form, were as follows. As to intellectual functioning, the defendant’s verbal skills were Low Average. His visual skills performances, including reasoning and problem-solving, were in the Borderline range. As to attention and concentration and information processing, his performance on an immediate basic attention task was Borderline and his working memory was Extremely Low Average. As to new learning and memory, his performances were variable, between Extremely Low to Low Average. The defendant’s executive functioning performances varied between Low Average and Extremely Low Average.

13. [25]

    Dr White concluded:

14. [26]

    As to the defendant’s level of risk, Dr White administered the RSVP Version 2 (RSVP-V2) and concluded:

15. [27]

    Dr White also administered the Static 99-R, which assesses risk based on static factors. It placed the defendant in the “Well Above Average” risk of sexual reoffending. Overall, she concluded he posed a “high” risk of sexually offending and that “there is a risk that the sex offence may be considered a serious offence as defined in the Act”. She considered that “options other than an ESO would likely be insufficient to meet his current needs”. Alternative options that Dr White considered and dismissed as insufficient without an ESO were a Community Treatment Order, a Child Protection Prohibition Order (a CPPO) and NDIS services. She was of the opinion that the proposed length of time for an ESO of two years was “reasonable”.

Other fresh material relied on by the prosecution

1. [28]

   The post-preliminary hearing material tendered into evidence by the plaintiff includes an affidavit by Jessie Slattery-McDonald, who is an employee of Corrective Services NSW, dated 6 December 2024, that was read at the hearing. Ms Slattery-McDonald is a High Risk Offender (HRO) applications and Operational Governance Officer and has responsibility for governance matters arising from the supervision of persons subject to an ESO. In her former capacity as a Departmental Supervising Officer (DSO), she had supervised the defendant between December 2022 and March 2023.

Material tendered by the defendant

1. [29]

   The defendant relied on a letter from his NDIS Specialist Support Coordinator, Stuart Fraser, dated 12 September 2024. In his letter, Mr Fraser referred to the defendant’s poor decision-making, and how his NDIS support assists him to make better decisions:

2. [30]

   The defendant also relied on a letter from an NDIS social worker, Graham Barker, dated 2 December 2024. Mr Barker stated that he has provided “social work services” to the defendant “since 2022” as part of the defendant’s NDIS services. He related the difficulties that the defendant has encountered in attempting to join community groups or to access educational agencies since he is required to disclose his offending behaviour and notes his desire to engage in paid sexual services. Mr Barker concluded:

3. [31]

   The NDIS material is to the effect that its plan of services to the defendant is reviewed annually. It will next be reviewed on 26 June 2025. For the purposes of this application, it is realistic to proceed on the basis that the defendant’s current NDIS services will be continued on an ongoing basis.

4. [32]

   The defendant tendered case notes, which included a note by the defendant’s DSO of a conversation on 15 October 2024 with Mr Barker, who reported that he had been “working with [the defendant] for a number of years and dependant on approval by his manager, Stuart, he will continue to work with him going forward”. The note also stated:

Submissions by the defendant as to whether the Court should make an ESO

1. [33]

   The defendant submitted that, in terms of the test in s 5B(4) of the Act, the Court would not be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not made subject to an ESO, for the following reasons.

2. [34]

   The defendant has a demonstrated track record of not committing a further serious offence in 15 years, that is, since the index offences. The only offences he has committed whilst on an ESO are breaches of the conditions by “prohibited use of electronic devices and attendant communications”. The defendant’s NDIS support package, which is to the value of $100,000, is likely to continue beyond the next review date. It has the effect of encouraging him in pro-social activities and directing him away from behaviours that have the potential to lead to further ESO breaches, consequent to his strong working relationship with Mr Barker.

3. [35]

   The defendant is also subject to reporting obligations pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW) (the CPOR Act), and, until 13 May 2025, his parole conditions, which include compliance with reasonable directions about accommodation, participation in treatment, employment, training, volunteer, leisure or other activity restrictions, non-association, place restrictions, drug and alcohol restrictions and testing and consent to third party information-sharing.

Consideration and determination of whether the Court is required to make an ESO

1. [36]

   Although the defendant has not committed a serious sexual offence as defined in the Act since the Charleville offences in 2010, that record must be weighed in the context of opportunity to commit further such offences over that time and the nature of his supervision breaches, which suggest a continuing fascination with sexual offending against children. For much of those 15 years, he has been either in custody or residing in the community subject to stringent conditions of conduct. The defendant’s offending in the community is not a matter of technical breaches of probation, parole or ESO conditions; he failed to comply with reporting obligations pursuant to the CPOR Act in 2014, which is a matter of specific relevance to the determination of this issue: s9(3)(g) of the Act. His usage of the unauthorised phone to access the internet, which was discovered following that breach and which is referenced above at [13[12]], was serious. His ESO breaches in 2019 canvassed at [13[17]], in 2022 at [11[18]], in 2023 at [13[19]], and, most recently, at [13[19]], concerning his behaviour in 2024, lead to the conclusion that returning the defendant to custody following these breaches had no deterrent effect on him. I also take into account the recent opinions of Drs Farrar and White as to the defendant’s high level of risk of committing a further serious sexual offence.

2. [37]

   I am satisfied to a high degree of probability that, had his online and face to face communications and attempted communications not been detected, there was an unacceptable risk of him going on to commit a serious sexual offence.

3. [38]

   Although the defendant’s NDIS support has a pro-social impact on his behaviour, NDIS staff lack the authority to check the content of a client’s electronic devices. In any event, ensuring a client’s observance of the criminal law is an unreasonable expectation to place on them, and one for which they are not qualified, by training or experience. It is not an acceptable alternative means of ensuring that the defendant does not commit a serious sexual offence.

4. [39]

   Accordingly, I am satisfied of the need for an ESO. In my view, there is no basis for exercising the discretion to not make an ESO. I am satisfied that it is required for the period sought, of two years, in view of the ingrained nature of the defendant’s aberrant behaviour that gives rise to the degree of his unacceptable risk.

Conditions of the ESO

1. [40]

   In the event that the Court determines to make an ESO, the defendant disputes the necessity of some of the proposed conditions, which are the same conditions that were initially proposed for the ISO. The plaintiff has accepted many of the defendant’s proposed changes, including a change that should address the concern raised by Mr Barker as to the defendant’s access to sex workers. Those that remain for determination are as follows.

2. [41]

   The defendant submits that a proposed clause permitting the DSO to require a schedule of movements should be qualified as to (1) when it must be required and (2) how changes to it that the defendant wishes to make are communicated to the authorities. The defendant submits that his past breaches have concerned his use of electronic devices, and therefore his physical whereabouts are not a matter of concern.

3. [42]

   I am not satisfied that is so. Had the defendant’s attempted communications with teens not been discovered, one might reasonably expect that such communications with local individuals would have been followed up with attempted physical contacts consistent with the nature of those activities. The plaintiff sought to meet the defendant’s submission by proposed changes, which I find are reasonable and sufficiently flexible for the defendant, subject to certain changes. The clauses concerning a schedule of movements, with the changes I have made to the plaintiff’s proposal italicised, will be as follows.

4. [43]

   The defendant seeks to amend a proposed condition that restricts places that he may attend, essentially by providing that he can attend some of those otherwise prohibited places if his NDIS worker is present. For reasons similar to those I have explained earlier, I do not accept that an NDIS worker should automatically be relied on to ensure compliance with ESO conditions. The plaintiff does not oppose the changes, provided that the amended condition provides that the accompanying person is “a person approved by a DSO”, rather than “your NDIS support worker(s)”. I note that amendment would provide the DSO with sufficient flexibility to allow that person to be a NDIS worker, if the DSO considered it appropriate for the particular visit. Another proposed change, which is conceded by the plaintiff, is in accordance with a concession made at the preliminary hearing, concerning condition 17(j).

5. [44]

   A similar qualification is sought by the defendant in relation to condition 20, which concerns in part his attendance at “any job, volunteer work or educational course”. The change is opposed by the plaintiff, on the basis that the presence of an NDIS worker would not sufficiently ameliorate the risk involved. I accept the plaintiff’s submission, so that the condition will remain in its present proposed form.

6. [45]

   The defendant opposed condition 24, which prohibits him from associating with persons in custody without the prior approval of a DSO. I have some sympathy for the defendant’s position, since so much of his opportunity for socialising over the last 15 years has been restricted to persons in custody, with some of whom he has doubtless formed friendships. However, as the plaintiff submits, the condition is not a blanket prohibition; each proposed association may be considered by the DSO on its merits. The proposed condition will remain unchanged.

7. [46]

   The plaintiff accepts that condition 27, which prohibits the defendant from joining a club or organisation without prior approval by a DSO, can be modified to enable the defendant to simply notify the DSO of having already joined the club or organisation. This should address one of the concerns raised by Mr Barker. Following post-hearing further negotiations, the parties have agreed to a re-wording of the condition that permits the defendant to join a club or organisation, provided he notifies the DSO within 48 hours.

8. [47]

   Although the order sought in the summons for an ESO are that it commence “on the date of the order”, the parties both accept that the commencement date is determined by the terms of s 10(1) of the Act, which provides: “An extended supervision order commences when it is made, or when the offender’s current custody or supervision expires, whichever is the later.” That date is anticipated to be 13 May 2025, which is the date of expiration of the defendant’s current sentence.

Orders

1. [48]

   I make the following orders: