State of New South Wales v Brooks (Final)

1. [1]

   By a summons filed 26 April 2023, the State of New South Wales seeks an order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the CHRO Act”), that the defendant be subject to an extended supervision order for a period of two years from the date of the order.

2. [2]

   On 26 July 2023 Ierace J made an interim supervision order: State of New South Wales v Brooks (Preliminary) [2023] NSWSC 877. That ISO has been extended up to and including 20 October 2023.

3. [3]

   In addition to the material before Ierace J the Court now has two expert reports, one from Dr Sally McSwiggan, a clinical neuropsychologist, dated 11 September 2023, and one from Dr Callum Smith, a forensic psychiatrist, dated 11 September 2023.

4. [4]

   The defendant opposed the making of the ISO and now opposes the making of an ESO on the basis that the Court could not be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a further serious offence unless he is supervised. The defendant submits further that, if the Court is minded to impose an ESO, it should be for no longer than a 12 month period. The defendant also disputes that some of the conditions sought by the plaintiff should be included in the order, if an ESO is made.

5. [5]

   The judgment of Ierace J is a very thorough judgment in its summary of the evidentiary position up to the time of the making of the ISO. It would be otiose to set out all of that material again in this judgment. Accordingly, I provide the following summary of the offending and the significant psychological assessment of the defendant that was made prior to the hearing of the application for the ISO.

The offending

1. [6]

   The index offending occurred on 29 December 2013, but before considering that offending, it needs to be placed in context by reason of previous offending by the defendant. The index offending was the fourth sexual offence committed by the defendant, with the earlier sexual offences being committed between 2009 and 2011.

2. [7]

   On 26 November 2009 the defendant assaulted a woman at Central Station at around 9:30pm. According to the police facts the defendant followed the victim as she walked through the station, before reaching under her dress as she walked through the ticket gates. She felt him attempting to touch her near her vagina through her underwear. The defendant then ran off and was arrested shortly afterwards. He was heavily intoxicated and unfit to be interviewed.

3. [8]

   The defendant was charged with committing an assault with an act of indecency contrary to s 61L of the Crimes Act 1900 (NSW). He was sentenced at the Downing Centre Local Court on 17 December 2009 to a good behaviour bond with a period of 12 months’ supervision. At the time of the offending he was 19 years old.

4. [9]

   On 21 July 2011, when the defendant was aged 20, he assaulted a woman aged 26 in the carpark of Macarthur Railway Station at around 7:00pm as she walked towards her car. The defendant approached the victim from behind, grabbed her, and bent her forwards before putting his hand under her skirt and grabbing at her vagina over her stockings. The woman screamed at him to get off her, and he ran away. He was arrested about four weeks later. He initially denied the offence, but after a discussion with his mother and stepfather, and apparently his local priest, he admitted the offence to police.

5. [10]

   The defendant was charged with committing an assault with an act of indecency contrary to s 61L of the Crimes Act. He was sentenced at Campbelltown Local Court on 26 October 2011 to a good behaviour bond with an order that he be supervised for two years.

6. [11]

   On 19 November 2011 the defendant assaulted another woman as she left Caringbah Railway Station at around 12.30am. He grabbed her from behind, placed one hand over her mouth and the other on her clothing, and grabbed at her vagina through her clothes before forcing her to the ground. The defendant lay on top of the victim and placed his head between her legs, firmly pushing his mouth into her vagina and sucking at the area as she screamed. He then stopped and ran away.

7. [12]

   The defendant was not charged with this offending until after being charged with the index offence, when a DNA sample taken from him was matched with a white stain identified in the crotch area of the victim’s pants following her assault.

8. [13]

   The defendant was again charged with assault with an act of indecency contrary to s 61L of the Crimes Act. At the time of this offence, he was subject to the two year bond on which he was placed for the Macarthur offence. He pleaded guilty and was sentenced by Huggett DCJ in the District Court to imprisonment for three years and four months with a non-parole period of two years. That sentence was imposed at the same time as the defendant was sentenced for the index offending on 5 June 2015.

9. [14]

   Subsequent to the third sexual offence, and prior to the index offending, the defendant was sentenced for two driving offences. The first was an offence of take and drive a conveyance without the consent of the owner. The second was drive with middle range PCA. He was sentenced on 11 September 2013 at Camden Local Court to two suspended periods of imprisonment with s 12 bonds of six months for the former offence and five months for the latter offence. At the time of the driving offences, the defendant was subject to the two year s 9 bond in respect of the offence at Macarthur.

10. [15]

    On 29 December 2013 the defendant attacked a woman aged 23 who was walking home in Surry Hills at around midnight. He grabbed the victim from behind, placed his hand over her mouth and pulled her into some bushes in Prince Alfred Park where he forced her to the ground and straddled her. The victim said, “Get the fuck off me”, and started screaming. The defendant told her to “Shut the fuck up” repeatedly, and placed his hand over her mouth and nose, causing her to struggle for breath. At the same time, he was trying to undo his belt buckle. He attempted to undo it at least three times whilst holding his hand over her mouth and nose. He grabbed at her shorts and the top of her shirt.

11. [16]

    The victim continued to scream out for help and for him to get off her which caused the defendant to put his hands around her throat and squeeze her neck.

12. [17]

    Two men and a woman who were walking nearby heard her scream. As they approached, the defendant got off the victim and ran towards Central railway station. The two men followed him until they saw police stop him. The defendant was intoxicated.

13. [18]

    The defendant was charged and ultimately convicted after a trial by jury with inflicting actual bodily harm with intent to have sexual intercourse contrary to s 61K(a) of the Crimes Act. This offending took place during the currency of the two s 12 bonds (for the motor vehicle offences), and he was called up for sentence on those bonds.

14. [19]

    He came to be sentenced by Huggett DCJ on 5 June 2015 in relation to his breaches of the bonds for the motor vehicle offences, the breach of the bond for the Macarthur offence, for the Caringbah offence, and for the Surry Hills offence.

15. [20]

    The sentences imposed were these:

16. [21]

    The overall effective sentence was imprisonment for 9 years and 7 months commencing 29 December 2013 and expiring 28 July 2023 with a non-parole period of 6 years and 1 month expiring 28 January 2020.

17. [22]

    The defendant was ultimately released to parole on 25 August 2021.

Submissions

1. [23]

   The defendant submitted that the evidence could not satisfy the Court to a high degree of probability that he poses an unacceptable risk of committing another serious offence unless he is supervised under an ESO. The defendant submitted that the following matters are significant in that regard:

2. [24]

   The State relied on the report of Andrew Fordyce dated 16 November 2021. Mr Fordyce was a psychologist who worked with the Department of Communities and Justice sex offender programs. His report assessed the defendant's participation in the High Intensity Sexual Offender Treatment Program (HISOP), and the defendant’s level of risk of sexual offending based on the STATIC-99R and STABLE-2017 assessment tests. The State also relied on the Risk Assessment Report (“RAR”) of Dr Richard Parker of 2 December 2022 including his assessment of the overall risk levels for reoffending by the defendant, and the assessments made by Dr McSwiggan and Dr Smith, both of whom considered that the defendant’s risk could not properly be managed without an ESO.

Consideration

1. [25]

   The defendant has been assessed using risk assessment instruments on a number of occasions. He was assessed in June 2016 using the STATIC 99-R Protocol. His score was classified as Level IVb which equates to well above average risk. Dr Parker said in his RAR that he had reviewed that assessment and he agreed with the scoring.

2. [26]

   In October 2021 he was assessed using the STABLE-2007 by Mr Fordyce. The defendant scored 20 out of a possible 26 and that is classified as high. Dr Parker reviewed the scoring and said he believed his scoring of the defedndant would not be substantially different. When the STABLE-2007 and STATIC 99-R were combined, the defendant yielded a Level IVb which equates to well above average overall risk level.

3. [27]

   In December 2022, Dr Parker assessed the defendant using the Violence Risk Appraisal Guide-Revised, and the defendant’s score was higher than the score of at least 85% of the construction sample. This placed him in the eighth of nine “bins”. 58% of violent offenders with a similar score reoffended violently within five years, and 78% within 12 years.

4. [28]

   The only assessment placing the defendant in a low/medium category was his assessment using the Level of Service Inventory-Revised on 20 September 2022.

5. [29]

   In his RAR, Dr Parker identified that three of the five implicit theories among rapists, identified by Polaschek and Ward in 2002, were relevant or probably relevant to the defendant. These theories were entitlement (the idea that the person’s needs and desires trump any concern over other people’s wellbeing); that the world is a dangerous place, filled with people who will behave malevolently towards the offender (Dr Parker found some evidence for this in his dealings with other employees at the business where he worked); and the theory that women are unknowable and/or dangerous (Dr Parker noted the defendant’s failure to establish ongoing relationships with women and his apparent lack of interest in doing so).

6. [30]

   A number of the reports from experts who have examined the defendant reveal some disturbing aspects to his personality relevant to an assessment of risk.

7. [31]

   Mr Fordyce prepared his report on 16 November 2021 to assess the effect of the HISOP on the defendant. Mr Fordyce made these observations (inter alia):

8. [32]

   Similar attitudes from the defendant appear from the reports prepared by the court appointed experts, Dr McSwiggan and Dr Smith.

9. [33]

   Dr McSwiggan said:

10. [34]

    When discussing her diagnosis of the defendant, Dr McSwiggan said his lack of empathy and distant relationships were consistent with his egocentric personality and avoidance of disclosure. She said his rule-breaking was consistent with general criminality and maladaptive personality traits. Dr McSwiggan thought he would meet the DSM 5 criteria for Paraphilia consistent with a sexual sadism disorder. She said he would likely remain resistant to psychological treatment but would attend if ordered.

11. [35]

    Dr McSwiggan noted that the defendant had not reoffended for the two years he had been monitored on parole. She said, however:

12. [36]

    A reading of the report from Dr Smith makes for somewhat concerning reading because of what it indicates about the attitudes of the defendant and his lack of insight. Some examples of what are recorded in a very lengthy report from assessments of the defendant made by Dr Smith on two different dates are these:

13. [37]

    When Dr Smith was attempting to explore what sexual relationships the defendant had had, the defendant said that it was “mainly sex workers”. Dr Smith went on to say:

14. [38]

    Other comments of Dr Smith were these:

15. [39]

    When the defendant was speaking about what somebody had said about his mother, although he would not say what it was, Dr Smith commented:

16. [40]

    In her report, Dr McSwiggan noted that the defendant’s risks were evaluated using the Sexual Violence Risk – 20 (Version 2), and those risk factors were these: his psychopathic personality disorder, substance use problems, repeat sexual offending, escalation in sexual offending, negative attitude to intervention, and negative attitude towards supervision. Dr McSwiggan said that those matters are considered not to be assistive in the management or reduction of the risk of the defendant committing a serious sex offence and/or they are potentially counterproductive to his rehabilitation.

17. [41]

    Dr McSwiggan said that the level of intervention required to manage his current risk factors associated with preventing a further incident of sexual violence would be moderate. She said that any change to his current living or employment status should trigger a case review.

18. [42]

    Dr McSwiggan also said:

19. [43]

    Dr Smith said of the defendant:

20. [44]

    Dr Smith said that there were some positive signs. The defendant’s relationship with his family was stable and he had stable accommodation. He has been entirely abstinent from alcohol and drugs and, despite his protestations about the restrictions, he appears to have largely been compliant with them. There was no evidence of finding inappropriate sexual content on his computer or other devices. He supervised female staff, seemingly without incident. There was some progress to his psychological work. Dr Smith thought that Mr Brooks did have some understanding that the nature of his actions were wrong.

21. [45]

    Dr Smith said that, given the defendant’s issues around compliance, reflective capacity, and the seeming “external deterrent” aspect being important to him, Dr Smith did not think Mr Brooks could be managed under a legal framework short of an ESO.

22. [46]

    It may be accepted that the defendant has made some progress since being released on parole on 25 August 2021. There is no evidence of any drug use and there are no concerns about any consumption of alcohol by the defendant. It appears to be the case also that the defendant has not accessed pornography. His time in custody, however, between 2014 and 2021 was somewhat chequered. He received a number of punishments in prison for institutional behaviour and breaches of discipline, including eight occasions between 2014 and 2018 for failing a prescribed drug test.

23. [47]

    As noted earlier, the defendant submitted that his offending was of some antiquity, that he had not committed any criminal offence in the last ten years, and that since living within the community he had not engaged in behaviour suggesting that he was at risk of committing further offences. The difficulty about those submissions is that it has been a relatively short period of time that the defendant has been out of custody, and in that time he has been under parole supervision. The fact that his last offending occurred in December 2013 is a consideration of little weight when the defendant was in custody until August 2021. His time in custody was not spent free of offending, particularly relating to drugs, as has been noted above.

24. [48]

    Other reasons put forward on behalf of the defendant concerned changes in his diagnoses over time, and the difficulty of the doctors being able to fix on a diagnosis.

25. [49]

    Having discussed the difficulties in this regard, Dr Smith said this:

26. [50]

    Having particular regard to the aspects of the defendant’s character and attitude, disclosed in the report of Mr Fordyce and again in the reports of Dr McSwiggan and Dr Smith, when taken together with the assessments made of the defendant’s risk on the various protocols, the particular risk factors identified by the two experts, and his lack of insight, I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under an order made pursuant to s 5B of the CHRO Act.

Duration of the order

1. [51]

   The State seeks an order for two years. The defendant submitted that a further one year of supervision was adequate, relying partly on what Dr Smith had said. Both of the experts were asked to express an opinion about the length of any order that should be made. Dr McSwiggan said that the length of the order was one for the Court to determine. Dr Smith said this:

2. [52]

   In my opinion, the period of the order should be for 18 months. I consider that 12 months is not enough in the light of the conclusions of the experts, particularly in relation to the defendant’s poor engagement with therapy and his lack of insight into that, his interpersonal issues, and difficulty with mentalising and thinking things through. There needs to be some time for those matters to be appropriately dealt with, if they can be, given the high risk that he has been assessed on a number of protocols for future offending.

Conditions

1. [53]

   Negotiations between the parties have reduced the differences concerning conditions to be imposed. I will now deal with the conditions where agreement has not been able to be reached. The numbering of the conditions follows the numbering in the further amended summons. The conditions will be later renumbered in the orders which will be made.

2. [54]

   The plaintiff proposed a condition as follows:

3. [55]

   The defendant opposed this condition. He pointed to the fact that it was not a condition of the ISO although the plaintiff had sought it. The reason it was not imposed by Ierace J was:

4. [56]

   To accommodate the stability demonstrated by the plaintiff in his living and working arrangements since being released from custody, but to allow for a change in those arrangements, the plaintiff has proposed a further restriction to the condition as follows:

5. [57]

   I do not consider, in the circumstances, that a schedule of movements is necessary whilst the defendant is living and working under his present arrangements. I consider, however, that the option must be given to the DSO if those arrangements change and the DSO has reasonable concerns about the defendant’s risks of further offending. Condition 6 with the added sentence should be included.

6. [58]

   Conditions 7 and 8 limit the circumstances where a departure from an approved schedule of movements amounts to a breach. In the circumstances where condition 6 contains the added sentence, these conditions are appropriate.

7. [59]

   The plaintiff proposes the following two conditions:

8. [60]

   Condition 17 originally included the word “employment” before “education” but that is no longer pressed. The defendant opposes these conditions, submitting that the plaintiff has not provided any evidence to suggest a nexus between the defendant’s offending and his employment, education or financial affairs. Further, the evidence is that the defendant has been gainfully employed since his release to parole some two years ago.

9. [61]

   The plaintiff seeks the conditions in case the defendant reported a vulnerability to relapse or if drug or excessive alcohol use was detected during testing. The conditions would also enable the DSO to direct the defendant into personal development and training programs should he disengage with his current employment in the future.

10. [62]

    There is something of an ambiguity in condition 17, in that it is not clear whether the words “education” and “training” are linked to the personal development programs. The fact that the word “employment” was previously in the conditions suggest they are not linked. In my opinion, the DSO should have the ability to take reasonable steps to direct participation in personal development programs targeted to the defendant’s risk factors, but nothing in the defendant’s history suggests any need for the DSO to have involvement in his general education or training.

11. [63]

    On the other hand, it is not unreasonable for the defendant to have to notify the DSO before starting or leaving jobs or volunteer work. The experts identified that the defendant’s present work arrangements are a positive and protective factor, but that a change in them could increase the risk the defendant presents.

12. [64]

    Condition 17 should be included but omitting the words “education, training or”, and condition 18 should be included but omitting the words “or educational course”.

13. [65]

    The plaintiff proposes a condition as follows:

14. [66]

    The defendant opposes this condition, relying on what Dr McSwiggan said in her report. The plaintiff submits that if conditions 10 and 29 are retained it will not press this condition. Condition 10 is agreed. Condition 29 is set out below. For the reasons given below, I do not consider condition 29 should be imposed.

15. [67]

    Dr McSwiggan did not consider that condition 28 would assist the defendant. She said:

16. [68]

    I do not consider that this condition should be imposed.

17. [69]

    The plaintiff proposes the following condition:

18. [70]

    It also proposes conditions 30-37 which deal generally with restricting the defendant’s use of electronic devices, and requirements that he provide all information about them to the DSO including passwords and access codes.

19. [71]

    The defendant has opposed all of these conditions for two principal reasons. First, he says that any risks relating to his past behaviour have not involved the use of the internet. Secondly, he says that there is potentially commercially sensitive material held by the defendant on his devices relating to his employment, and his employer is opposed to third parties having access to that material.

20. [72]

    The plaintiff is prepared not to press all of the conditions 30-37 provided that condition 29 remains (and also condition 10 which is not opposed). The plaintiff submits that the conditions concerned are standard conditions but that, provided the DSO can give reasonable directions relating to internet access and use of devices, it will not insist on the other conditions. The plaintiff says that condition 29 is directed to accessing pornography and also to the defendant’s interactions with women, in the sense that arrangements are made these days to meet up with people who have come into contact with one another on the internet.

21. [73]

    In my opinion, condition 29 is not related to any risk associated with the defendant. The issue of pornography is adequately dealt with in condition 41. None of the defendant’s offending has involved the use of the internet or arranged meetings with women. Condition 29 should be disallowed.

22. [74]

    The plaintiff proposed the following conditions:

23. [75]

    The defendant opposed condition 38 and proposed an alternative to 39 as follows:

24. [76]

    The plaintiff submitted that if conditions 10 and 29 were retained it would agree to the deletion of condition 38 and to the defendant’s alternative to condition 39. I have already determined that condition 29 is not necessary. I consider that the plaintiff’s proposed search conditions are too widely drawn when consideration is given to the sort of risk the defendant presents. I consider that condition 38 should not be included, and that the defendant’s alternative to condition 39 should be included.

25. [77]

    The plaintiff seeks the inclusion of condition 50 as follows:

26. [78]

    The defendant proposes an alternative to that condition as follows:

27. [79]

    It may be observed that the only difference between the two conditions is the inclusion in treatment providers of “relationship counsellors”.

28. [80]

    The defendant submits that there is no evidence concerning any nexus between the defendant’s offending behaviour and intimate or non-intimate relationships. Prima facie, that is so. But the experts identified, in substance, that the defendant has difficulties with women (Dr Parker identified that the theory that women were unknowable or dangerous was relevant to the defendant), and Dr Smith saw the lack of any relationships with women (in a heterosexual man) as problematic. Further, the defendant had used pornography that involved “rough stuff”. His offending also involved an increasing level of violence.

29. [81]

    It is not fanciful to infer that if the defendant resorted to a relationship counsellor it would be because of his difficulties relating to women by reason of these matters. A relationship counsellor could scarcely provide appropriate advice or counselling in the absence of knowing his criminal history of sexual offending. The condition contains the proviso that the defendant is given the first opportunity to disclose the information.

30. [82]

    In my opinion, the condition, as sought by the plaintiff, is relevantly connected to the risk which I have found, and should be included.

Conclusion

1. [83]

   I make the following orders: