State of New South Wales v Baldwin

1. [1]

   HIS HONOUR: By an amended summons filed on 11 October 2016, the plaintiff, the State of New South Wales, seeks three forms of relief against the defendant, Wayne Norman Baldwin, under the Crimes (High Risk Offenders) Act 2006 (NSW) (the “Act”).

2. [2]

   The first two forms of relief are interlocutory and have already been granted. The third form of relief is an order pursuant to s 5C and s 9(1)(a) of the Act, that Mr Baldwin be subject to a high risk sex offender supervision order for two years and ten months dating from today and that pursuant to s 11 of the Act, he be subject to the conditions set out in the schedule to the amended summons.

3. [3]

   In the end result Mr Baldwin did not oppose the granting of relief. I apprehend that his legal representatives may have made representations to the State concerning the period of the Extended Supervision Order (“ESO”) and the conditions which led to the filing of an amended summons, although it is not necessary to explore that.

4. [4]

   In any event, it is necessary for the Court to be itself satisfied of the matters necessary to support the making of the ESO. For the reasons that follow, I will make the order sought.

The Act

1. [5]

   Section 5H of the Act enables the State to make an application for an ESO against an offender. Section 5(1) provides that such an application may only be made in respect of a "supervised sex offender" being a person who is, inter alia, under supervision while serving a sentence of imprisonment for a "serious sex offence".

2. [6]

   I will outline Mr Baldwin's criminal history shortly but it includes the commission by him of two counts of indecent assault upon a child under the age of 16 years contrary to s 61N(1) of the Crimes Act 1900 (NSW). Each of those offences satisfies the definition of "serious sex offence" in s 5(1)(a) of the Act.

3. [7]

   The total effective sentence that Mr Baldwin received for those and other offences was six years and three months with a non-parole period of four years and three months. Mr Baldwin was released on parole on 15 February 2015. The balance of his sentence expired in August 2016.

4. [8]

   The result is that when the originating summons was filed in July 2012, Mr Baldwin was "under supervision" and deemed to be serving a sentence of imprisonment by reason of the fact that the balance of his term was yet to expire (s 5I(3)).

5. [9]

   It follows that the requirements of s 5I have been satisfied.

6. [10]

   Section 6(1) requires the application to specify that the application is for a high risk sex offender ESO or a high risk violent offender ESO. The originating summons stated that it was the former.

7. [11]

   Section 6(2) required the summons to be filed within six months prior to the expiry of an offender's current custody or supervision. It follows from what I have stated that that requirement was also complied with.

8. [12]

   Section 6(3) required the application be accompanied by material that addressed the requirements in s 9(3) and include a report from a suitable qualified expert assessing Mr Baldwin's prospects of committing a further serious sex offence. There is no doubt that this was also complied with. I will return to address that material shortly.

9. [13]

   Section 5C(1) confers on the Court power to make an ESO if the offender is a "high risk sex offender". Section 5B(2) provides that:

10. [14]

    Section 5B(3) expands on this by providing that the Court:

11. [15]

    The phrase "unacceptable risk" in s 5B(2) is to be given its everyday meaning within its context and having regard to the objects of the Act (see Lynn v State of New South Wales [2016] NSWCA 57 at [58] (“Lynn”)). Those objects include ensuring the safety and protection of the community and the encouragement of high risk sex offenders and high risk violent offenders to undertake rehabilitation (s 3).

12. [16]

    Further, s 9(3) of the Act provides:

13. [17]

    The considerations enumerated in s 9(3) have been held to be relevant in the exercise of the statutory power to make an ESO and not to the anterior determination of whether an offender poses an unacceptable risk (see Lynn at [48] per Beazley P and at [147] per Gleeson JA).

14. [18]

    Section 11 of the Act confers on a Court a power to impose conditions that it considers appropriate. In Lynn it was held that in addressing whether to exercise the discretion to make an ESO, consideration should be given to the appropriate conditions which might be imposed before considering whether such an order is otherwise appropriate (see Lynn at [149] per Gleeson JA). Further in Lynn at [124], Basten JA stated:

Material From Preliminary Hearing

1. [19]

   On 5 August 2016, Wilson J granted the first two forms of interlocutory relief which were set out in the original summons and which were replicated in the amended summons to which I referred earlier. On 16 August 2016 her Honour published reasons for so ordering: State of New South Wales v Baldwin [2016] NSWSC 1141 (“Baldwin No 1”).

2. [20]

   Mr Baldwin is now 70 years of age. He has a long history of committing sexual offences against boys. In Baldwin No 1 at [11] to [15], Wilson J summarised the history of this aspect of his offending from 1994 to 2008 as follows:

3. [21]

   Three further matters should be noted about this. First the last of the offences recounted in the above extract occurred in 2008. Thus there can be seen a disturbingly frequent pattern of sexual offending against boys by Mr Baldwin between 1994 and 2008.

4. [22]

   Second, it is necessary to describe the offences that were committed in 2010 that I referred to earlier in further detail.

5. [23]

   Mr Baldwin was dealt with for those offences by Judge Ellis of the District Court on 16 December 2011. In his sentencing judgment, Judge Ellis described those offences as follows:

6. [24]

   The two counts of indecent assault that I referred to earlier are the offences described as counts 1 and 4 in this extract from the judgment of Judge Ellis. The reference to count 2 is to a charge of inciting a person under 16 years of age to commit an act of indecency contrary to s 61N(1) of the Crimes Act. As indicated by this passage this was dealt with in accordance with Division 3 Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

7. [25]

   In his sentencing judgment, Judge Ellis described count 4 as involving "serious criminality" although it was not "in the worst case category". His Honour found the offence was aggravated because the victim suffered from Asperger's syndrome and because of the degree of "grooming" involved in the offence.

8. [26]

   Third, Mr Baldwin's criminal record also includes convictions for offences other than those that have already been described, including false pretences and embezzlement.

9. [27]

   There was also placed before Wilson J a risk assessment report prepared by a senior psychologist within the Department of Corrections, Mr Richard Parker, and co-signed by another senior Corrections Officer. This report falls within the description of those reports referred to in s 9(3)(d1). Wilson J accurately summarised the effect of that report as follows:

10. [28]

    Also placed before Wilson J was a "Risk Management Report" dated 26 December 2015. The report identifies the risk factors affecting Mr Baldwin in terms of his re-offending as "intimacy deficits", "alcohol abuse", "offence supportive cognition" and "sexual attraction to teenage boys". The report identifies a range of steps that can be, and to that time were being, taken to mitigate the risk posed by Mr Baldwin, including weekly interviews, unannounced home visits, electronic monitoring if necessary, the imposition of a curfew if necessary, the monitoring of his alcohol use, as well as establishing exclusion zones if necessary, as well as monitoring his associations with other persons. The report noted that Mr Baldwin was currently under supervision under the conditions of his parole and that he resided in private accommodation. The report noted that till that time there had been "no significant issues" arising from his release on parole.

11. [29]

    Also placed before Wilson J was a report dated 2 December 2014 concerning Mr Baldwin's participation in the CUBIT program while in custody. That acronym stands for “Custody Based Intensive Therapeutic” program. It is described in the report as a [Tab 20, 5052.1]:

12. [30]

    Mr Baldwin participated in the CUBIT program between 10 February 2014 and 13 November 2014. The report contains an assessment of his risk of re offending as "high" using the so-called "Static-99" method. The outcome of this test was to place him in the ninety-fourth percentile of offenders with a risk of re offending. The report also contains a detailed assessment of the dynamic factors affecting his prospects of re offending. It concluded as follows (Tab 20, at [57]):

13. [31]

    Otherwise the report contains, as I have stated, a number of measures designed to address Mr Baldwin's risk of recidivism.

Reports Under Section 7(4) of the Act

1. [32]

   In accordance with orders made by Wilson J on 5 August 2016, Mr Baldwin attended an appointment with Dr Anthony Samuels, psychiatrist, on 11 August 2016. Dr Samuels prepared a detailed report dated 29 August 2016 which was placed before the Court on this application (s 9(3)(b)).

2. [33]

   Dr Samuels concluded there was no evidence that Mr Baldwin suffered from a major affliction or anxiety disorder but considered that he had a paraphilia disorder with a sexual attraction directed towards teenage boys.

3. [34]

   Dr Samuels concluded that Mr Baldwin would remain, “at high risk of committing a further sexual offence on the basis of his longstanding attraction to young teenage boys which is unlikely to have abated and despite the fact that he claims he no longer thinks about sex or has any capacity to attain an erection."

4. [35]

   I note that in one part of the report that follows this Dr Samuels addresses Mr Baldwin's level of risk, including by reference to offences with which he was charged but not ultimately convicted. Given the balance of the material, Dr Samuels considered it not necessary to determine whether that approach is a permissible one under the Act.

5. [36]

   Dr Samuels did, however, concur with the score that placed Mr Baldwin in the high range of risk of re‑offending on the Static-99 model. Dr Samuels concluded that an ESO would be an "optimal method to manage" the risk of re offending posed by Mr Baldwin. In particular, he concluded:

6. [37]

   Dr Samuels was provided with Mr Baldwin's current risk management plan. Dr Samuels expressed the view that that plan was "entirely appropriate" although he added it might be optimised if psychiatric reviews were "slightly more frequent".

7. [38]

   Finally, I note that Dr Samuels was asked about the proposed term of an ESO. He opined that he thought that, "an ESO for three years would be appropriate given Mr Baldwin's age and associated health problems”.

8. [39]

   In a supplementary report dated 23 September 2016, Dr Samuels described the revised conditions in the schedule to the Amended Summons to which I have referred as “appropriate”.

9. [40]

   As was also required by Wilson J's orders of 5 August 2016, Mr Baldwin attended an appointment with Dr Jonathan Adams, psychiatrist, on 13 September 2016. Dr Adams produced a report dated 29 September 2016 which was also placed before the Court.

10. [41]

    Dr Adams concluded that Mr Baldwin suffers post-traumatic stress disorder "PTSD" from his time in the Navy. Further, based on his history of sexual offending, Dr Adams concluded that Mr Baldwin displayed "hebephilia". He contrasted that condition with paedophilia which he explained involves a sexual interest in prepubescent children. In relation to Mr Baldwin's risk of re offending, Dr Adams concluded:

11. [42]

    Earlier in his report Dr Adams explained that he had used the "risk of sexual violence protocol" (RSVP) to assess Mr Baldwin's sexual violence risk.

Further Material

1. [43]

   At the hearing, the State read an affidavit from Mr Richard Parker, to whom I referred earlier. Mr Parker attached to his affidavit the Risk Assessment Report and explained the approval of the approach to risk assessment that he adopted. He explained his preference for the Static-99R method as opposed to the method known as "Level of Service Inventory-Revised Method". It is unnecessary to address that further.

2. [44]

   Mr Parker also stated:

3. [45]

   As I understand it, the effect of this evidence is that experience has demonstrated that the utility of the Static-99R method as a predictive model requires that charged acts be taken into account as well as convictions, although the weighting attached to the former compared to the latter is not clear.

4. [46]

   I do not propose to enter into a debate as to the legitimacy of this approach. Nothing turns upon it for the purposes of determining this application.

5. [47]

   The State also read an affidavit from Barry Williams, the Community Corrections Officer, who is Mr Baldwin's Departmental Supervising Officer (“DSO”). Mr Williams stated that Mr Baldwin has been generally compliant with the conditions of his interim supervision order and, I infer, the conditions of his parole. It seems that the only issue that has arisen concerns Mr Baldwin’s friendship with a 22-year-old male which was not disclosed to Corrections staff. Directions have now been given to Mr Baldwin limiting the time and place of his contact with that person.

6. [48]

   Otherwise, Mr Williams addressed in detail the proposed conditions of the extended supervision order in light of his experience in supervising Mr Baldwin. He notes that Mr Baldwin was subject to electronic monitoring.

7. [49]

   The State also tendered a large number of records concerning Mr Baldwin's contact with Departmental staff during the period for which he has been supervised. That material bears out the conclusions of Mr Williams.

High Risk Sex Offender

1. [50]

   I have already outlined the definition of a high risk sex offender. Over at least a 16 year period, Mr Baldwin repeatedly committed a series of serious sexual offences which one way or another involved young males. His criminal record points overwhelmingly to him posing an unacceptable risk if he is left unsupervised. This is confirmed by the analysis of the various professionals and their assessments as well as the application of the various predictive tools concerning this risk of offending which I have described.

2. [51]

   The extracts from the report of Dr Adams that I have set out above clearly demonstrate the risk he poses if not supervised.

3. [52]

   It can be said that there are three matters that potentially tend against the conclusion that he poses a risk, namely his age, his self-reported low libido and his generally compliant behaviour while under supervision. The first matter is far from determinative and the second may fluctuate. The third matter only demonstrates the importance of proper supervision in mitigating the risk of Mr Baldwin committing further offences. Otherwise, needless to say, if Mr Baldwin does re-offend, the consequences for any potential victim could be "drastic" (see State of New South Wales v Kamm [2016] NSWSC 1 at [41]).

4. [53]

   I am satisfied to a high degree of probability that Mr Baldwin poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. It follows that he is a high risk sex offender.

Should an Order Be Made?

1. [54]

   At this point it is necessary to consider whether an ESO should be made, especially having regard to the criteria in subs 9(3) of the Act.

2. [55]

   It follows from Lynn that I must identify the appropriate conditions that might be opposed. As noted, those conditions are set out in the schedule attached to the amended summons. They were addressed in the affidavit of Mr Williams.

3. [56]

   Part A of those conditions contains nine provisions dealing with reporting and monitoring obligations. They include a clause requiring Mr Baldwin to follow all reasonable directions given to him by the staff supervising him, as well as, if necessary, to wear electronic monitoring equipment.

4. [57]

   Part B contains three provisions addressing his accommodation, including the requirement that he must live at the address approved by his DSO.

5. [58]

   Part C contains five conditions restricting his freedom to travel, including a provision that excludes him from places commonly frequented by young males.

6. [59]

   Part D contains provisions dealing with employment, finance and education.

7. [60]

   Part E deals with drugs and alcohol, a matter of some significance given his history of offending.

8. [61]

   Part J of the proposed conditions includes powers of search and seizure.

9. [62]

   Part L deals with his personal details and appearance and requires him to obtain approval to change his name.

10. [63]

    Part M deals with medical intervention and treatment.

11. [64]

    Of particular significance is Part F which contains six provisions providing a very strict degree of control over the persons he may communicate and associate with. In particular, proposed condition 27 precludes him from associating with people that he is directed by his ESO not to.

12. [65]

    Part I restricts his access to the internet and other forms of electronic communication and Part K contains a prohibition on access to pornographic material. In view of his history of convictions, the necessity for those conditions is apparent.

13. [66]

    Generally, the conditions are comprehensive. Having regard to the type of offending that Mr Baldwin has previously engaged in and the cautious progress that he has achieved whilst supervised on parole, I consider that the imposition of these conditions on Mr Baldwin is likely to materially result in a substantial reduction of his risk of re-offending.

14. [67]

    The first of the criteria referred to in s 9(3)(a) is the safety of the community. This has been addressed by the above findings. Section 9(3)(b) directs attention to reports prepared by the persons appointed under s 7(4). I have discussed those reports in some detail.

15. [68]

    Section 9(3)(c) requires the Court to consider the results of other assessments prepared by psychiatrists. I have considered those, specifically the report of Mr Parker.

16. [69]

    Section 9(3)(d) requires the Court to consider the results of any statistical or other assessment as to the likelihood of Mr Baldwin's re-offending. I have addressed the outcomes of the Static-99R model as well as made mention of the results of his assessment under the RSVP protocol.

17. [70]

    Section 9(3)(d1) requires this Court to consider any report prepared by Corrective Services addressing the extent to which he can reasonably and practically be managed in the community. I have already described the terms of the risk management report which has been updated by Mr Williams' affidavit.

18. [71]

    Section 9(3)(e) directs attention to any treatment or rehabilitation programs which Mr Baldwin had the opportunity to participate in and the outcome. I have described the evidence concerning his participation in the CUBIT program.

19. [72]

    Section 9(3)(f) directs attention to the level of the offender's compliance with any obligations to which he has been subject while released on parole or while subject to an earlier extended supervision order. I have described his level of compliance with his parole conditions as well as the interim supervision order made by Wilson J.

20. [73]

    Section 9(3)(g) refers to the level of an offender's compliance with offences under the Child Protection (Offender's Registration) Act 2000 (NSW) or the Child Protection Offenders Prohibition Act 2004 (NSW). There is nothing in the material to suggest that Mr Baldwin has not complied with those requirements since his release on parole.

21. [74]

    Section 9(3)(h) directs attention to a consideration of Mr Baldwin's criminal history and pattern of offending. I have already addressed that matter.

22. [75]

    Section 9(3)(h1) requires that the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender be considered. I have outlined the relevant parts of Judge Ellis' sentencing judgment.

23. [76]

    Section 9(3)(i) requires the Court to consider any other information that is available as to the likelihood the offender will in future commit offences of a sexual nature. I have described such material as is relevant to that assessment.

24. [77]

    Otherwise I note that I have considered the effect of the conditions sought to be imposed on Mr Baldwin's freedom of movement. I accept that there is a significant imposition on his personal freedoms imposed by the proposed conditions, specifically the requirement that the DSO can direct him not to associate with any other person.

25. [78]

    Nevertheless, bearing in mind the history of his criminality and the other material, I consider it appropriate to make an ESO and impose the conditions sought.

26. [79]

    Finally, I note that the term of the proposed order is, as I have said, two years and ten months. This appears to reflect the evidence of Dr Samuels to the effect that a proposed term of three years was appropriate given Mr Baldwin's age. I accept that assessment.

27. [80]

    Accordingly I make order 3 in the amended summons.