State of New South Wales v Chaplin (No 2)

1. [1]

   HIS HONOUR: The State of New South Wales is a plaintiff in an application by Summons dated 16 July 2018, in which it seeks an Extended Supervision Order (hereinafter “ESO”), binding on the defendant, David Chaplin. On 4 October 2018, the Court, as presently constituted, issued an Interim Supervision Order (hereinafter “ISO”) and, on 24 December 2018, the Court made orders binding the defendant to an ESO for a period of 3 years and 9 months and imposed conditions, pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter “the Act”). Those conditions were set out in Schedule A to the ESO.

2. [2]

   At the time, the Court reserved reasons. These are the reasons for the making of an ESO.

Background

1. [3]

   As earlier stated, on 4 October 2018, the Court issued orders for an ISO. Those orders were made effective on and from 4 October 2018, the date upon which the term of supervision on parole of the defendant was to expire. Since that time, the Court has issued reasons for the making of the ISO, being State of New South Wales v Chaplin [2019] NSWSC 471 (hereinafter “the ISO Judgment”).

2. [4]

   The ISO Judgment discusses the summary of facts that are relevant to the defendant, including his age; his criminal history; and a short summary of the prior convictions: see the ISO Judgment at [3]-[5].

3. [5]

   Further, the ISO Judgment discusses the principles that are applicable to the assessment of whether an offender, who is a defendant in a summons or application for an ESO, is to be classified as posing an “unacceptable risk”. Of necessity, an ISO is incapable of being issued, binding on a defendant, unless the facts alleged in the application for an ISO would, if proved, warrant the making of an ESO. As a consequence, the principles applicable to the issuing of an ESO were discussed, also, in the ISO Judgment: see the ISO Judgment at [7]-[17].

4. [6]

   Further, as a result of the matters that were adduced in the proceedings for the ISO, the Court assessed the risk on the basis of the criteria prescribed by the Act, with particular reference to the then known situation of the defendant: see the ISO Judgment at [18]-[38]. On the basis of that analysis, the Court gave reasons that it had come to the view that an ISO was appropriate. The reasons for judgment in this matter, now issued by the Court, ought to be read in conjunction with the ISO Judgment.

Additional material

1. [7]

   At the time of making the ISO, the Court made orders for the examination of the defendant in accordance with the provisions of the Act, ancillary to the making of an ISO. Those reports are before the Court.

2. [8]

   Further, additional evidence has been adduced; being the further Affidavits of Tram Nguyen, affirmed 23 November 2018 and the Affidavit of Adam Simon, affirmed 22 November 2018. The previous Affidavits upon which the State of New South Wales relied in the proceedings for an ISO were also relied upon in the proceedings for the ESO and they were: the Affidavit of Tram Nguyen, affirmed 16 July 2018; the Second Affidavit of Tram Nguyen, affirmed 20 August 2018; the Affidavit of Richard Parker, sworn 12 September 2018; and the Affidavit of Janelle Farroway, affirmed 13 September 2018.

3. [9]

   The latter two Affidavits were read in Court at the preliminary hearing. Further written submissions were provided by both the State of New South Wales and the defendant, which submissions should be read in conjunction with the written submissions upon which the parties relied for the hearing of the ISO.

4. [10]

   In the submissions of the defendant for the final hearing, the defendant concedes, as a fact, the history of offences to which reference was made in the ISO Judgment and that such history allows the drawing of the conclusion that the defendant has been convicted of a “serious sex offence” and further offences of a “sexual nature”. The defendant also concedes, or does not contest, the making of an ESO and has put submissions on the duration of any such order and whether electronic monitoring is an appropriate condition during the duration of any such ESO.

5. [11]

   Further, the defendant submits that the Court should be extremely cautious about ordering anti-libidinal medication as part of a treating program and supervision.

6. [12]

   Notwithstanding the appropriate and commendable approach of the defendant, and his legal representatives, there was some discussion as to the appropriateness of the conditions and, in particular, submissions by the State of New South Wales that the conditions imposed by the Court on the issuing of an ISO, relating to limitations on the capacity to enter the defendant’s home, during a home visit, ought not continue in such a restricted form.

The further material and its effect

1. [13]

   The Court turns firstly to the additional expert reports filed as a result of the examination pursuant to the Orders issued on 4 October 2018. The first such report is a report of 8 November 2018 by Dr Andrew Ellis, Forensic Psychiatrist. It is unnecessary to recite much of the report and its history.

2. [14]

   Nevertheless, Dr Ellis sets out the psychosexual history of the defendant from pages 6 through 8 of the report. This aspect deals not only with any offending but also the use of pornography, including pornography with the theme of bondage and coerciveness. It also deals with the defendant’s relationships and his ability, or inability, to form appropriate relationships. Lastly, in summary only, it is necessary to point out that the psychosexual history also deals with the issue of fantasy, which again, related to bondage and violent sexual fantasies.

3. [15]

   In particular, the history records that the defendant reported that between 2010 and 2016 he went to see sex workers and masseuses on a couple of occasions and experienced a certain level of dysfunction, adding to or causing feelings of inadequacy.

4. [16]

   Ejaculation during orgasm occurs only when the defendant is watching bondage pornography.

5. [17]

   The report records the defendant’s account of his offending behaviour and the previous offences which, according to the defendant, as recounted to Dr Ellis, “were related to on-going rape fantasies and fantasies of schoolgirls”. The account of offending behaviour given by the defendant to Dr Ellis seems to continue to disclose a lack of insight into some, at least, of the offending.

6. [18]

   Further, the defendant expressed the view that the making of an ESO was “over-the-top”, because it would make him feel like a sex offender. It is not absolutely clear from the report how the defendant would otherwise see himself, but the comment seems, once more, to reflect a lack of insight into the offending behaviour.

7. [19]

   Dr Ellis expresses the diagnosis that the defendant meets the criteria for paraphilic disorder, according to the DSM-5, “with targets of sexual sadism, hebephilia, exhibitionism, voyeurism, toucheurism, transvestic fetishism and fetishism”. The foregoing diagnosis is based upon self-report of fantasies and behaviours.

8. [20]

   The defendant also meets the criteria for a substance use disorder under the DSM-5, the main substance of concern being cannabis, and expresses feelings consistent with the social anxiety disorder.

9. [21]

   Dr Ellis then discusses the well-known difficulties with the measurement of an individual’s likelihood that the individual will re-offend with a sexual offence and the difficulties associated with the report such as STATIC-99R, and the like. The difficulty with STATIC diagnostic testing is that it will not vary as a result of treatment or remission. Such testing must be combined with clinical considerations that go to risk of re-offending, including deviant sexual arousal or paraphilia and substance use disorder, in a treatment setting.

10. [22]

    According to Dr Ellis, these factors can be applied, in a combined way, “to a structured professional judgement into the instrument to determine areas of propensity for future sexual aggression such as the RSVP”. The reference to RSVP is a reference to the study on the Risk for Sexual Violence Protocol. Dr Ellis points out that deviant sexual arousal is consistently identified as the most prominent risk factor for sexual re-offence and refers to studies by Hanson and Morton-Bourgon in 2005.

11. [23]

    The report of Dr Ellis then states:

12. [24]

    Dr Ellis also refers to antisocial personality orientation as another factor consistently identified with sexual re-offence. Dr Ellis notes that, while the defendant has not been diagnosed with antisocial personality disorders, he has displayed poor relationship function across his lifespan, likely related to his social anxiety.

13. [25]

    Dr Ellis also refers to the need or desirability of anti-libidinal medication and the need to have a decision by an informed competent patient, within which category the defendant fits for relevant purposes. Compliance with anti-libidinal medication can be monitored by measuring serum testosterone.

14. [26]

    The report also discusses electronic monitoring and its effect and the studies that have been performed, although notes that the use of electronic monitoring has outstripped the studies. Generally, the use of electronic monitoring has an effect on supervision infractions and increases participation in the rehabilitation process, which, in turn, reduces recidivism risk.

15. [27]

    Dr Ellis comes to the view that the plan proposed in terms of his community treatment is appropriate, because his risk stems from a number of areas. In Dr Ellis’s view, the conditions are considered “necessary” and “desirable from a clinical point of view in managing the presenting risk”.

16. [28]

    In conclusion, Dr Ellis says:

17. [29]

    The Court also had before it an expert report of Dr Kerri Eagle, Forensic Psychiatrist, dated 26 October 2018. Dr Eagle’s report has some differences to the report of Dr Ellis, but is generally consistent with his findings and diagnosis.

18. [30]

    Dr Eagle discusses whether the defendant has acquired a disorder of sexual dysfunction and recommends that physical or substance induced problems or causes ought to be excluded in that regard. Dr Eagle also diagnoses the defendant with an unspecified paraphilic disorder that

19. [31]

    Dr Eagle also diagnoses a substance use disorder, involving both alcohol and cannabis. Her view is that the substance use disorder is in remission in a supervised environment.

20. [32]

    Dr Eagle also discusses the risk of sexual re-offending and also notes the inherent limitations in any process of risk assessment, although the best evidence supports “a structured professional judgment approach”. Dr Eagle then discusses the STATIC-99R Report and the high-risk results associated with that calculation. Dr Eagle also discusses the STABLE-2007 Report and the high-risk category to which that points.

21. [33]

    Given the high-risk category in both the STATIC-99R and the STABLE-2007 Reports, the defendant is in a category of offenders “considered to be at a very high risk of re-offending, when compared to other offenders”. Dr Eagle points to statistics that show that a five-year sexual recidivism rate of offenders in that category is 41.2%.

22. [34]

    Dr Eagle then applies her professional judgment to the defendant’s situation and describes him as “a socially isolated and socially inept man who has had substantial difficulties developing and sustaining relationships with others”. She considers that the defendant has attempted to act out his fantasies on at least two occasions, as a result of the struggle with sexual dysfunction.

23. [35]

    In answer to the question as to whether the defendant poses a risk of committing further serious sexual offences and, if so, what is the level of the risk and the factors that contribute to it, Dr Eagle says:

24. [36]

    Dr Ellis concludes that the defendant falls into the very high risk category when compared to other sexual offenders. Dr Eagle then discusses the appropriateness of the conditions and their clinical basis. Specific reference is given to the condition relating to sex workers and its effect on the defendant; the restrictions on relationships being confined to intimate relationships; and the need to balance between containing the risk to the community and facilitating the engagement of the offender in interventions that will potentially mitigate the risk.

25. [37]

    Overall, Dr Eagle expresses the view that the conditions appear to achieve a reasonable balance between those two aspects and would allow the defendant to engage in necessary therapeutic interventions. Further, Dr Eagle also discusses the effectiveness of electronic monitoring, particularly with regard to studies that have been performed in North America.

26. [38]

    Lastly, without in any way seeking to skip some extremely useful comments of Dr Eagle as to the treatment of the defendant, Dr Eagle expresses the following view:

27. [39]

    I am satisfied, on the basis of the expert evidence, that the factor, originally alleged at the hearing for an ISO, that the defendant poses the very high risk of re-offending in a manner that would constitute sexual offending and probably serious sexual offending, has been proved. Further, given the comments of the experts, I consider that that very high risk of re-offending is an unacceptable risk pursuant to the terms of the Act and the principles discussed in the ISO Judgment.

28. [40]

    As a consequence of the foregoing, I have formed the conclusion that, for the purposes of the final hearing, the defendant poses an unacceptable risk and, in the circumstances, the Court ought to exercise its discretion and make an ESO.

29. [41]

    In doing so, the Court takes into account the safety of the community, pursuant to s 9(2) of the Act and refers, specifically, to the views, recited above, of the experts, following examination and the view expressed by experts prior to the orders for the making of an ISO.

30. [42]

    I have applied the matrix to which I referred in the ISO Judgment as to the unacceptability of the risk and consider that the probability that the risk will manifest and the likely harm that will be done by the manifestation of the risk combine to render the defendant an unacceptable risk which, when measured against the factors to be determined in the making of an ESO, makes it appropriate for the ESO to issue.

Conditions

1. [43]

   It is necessary to deal to some extent with the conditions to be imposed under s 11 of the Act. Again, the ISO Judgment and the discussion therein on conditions should be read together with these reasons for judgment.

2. [44]

   I have altered, consistent with the submissions of the State of New South Wales, the condition that otherwise applied in Condition 12 of the Conditions of Supervision under the ISO. Previously, the Court limited the condition that was proposed by the State of New South Wales.

3. [45]

   In relation to Condition 12, the alteration the Court made, at the time that the ISO issued, was to restrict the requirement on the defendant, if visited by his DSO or other person supervising him, to appear at the front door of the premises. The State of New South Wales submits that, in the circumstances of the defendant, the condition should read as originally suggested, namely, that the DSO or other authorised person may enter the premises. This, the State of New South Wales submits, facilitates the rehabilitation process and the building of a relationship between the DSO or authorised supervising person and the defendant.

4. [46]

   I am satisfied, on the basis of the expert reports, to which I have referred, and, in particular, the diagnosis of substance use disorder, referrable to illicit drugs and alcohol, that it would assist the rehabilitation process, if such a relationship were to exist. Further, I am satisfied that at least some part of the ameliorative effects of the ESO would be lost if the DSO or authorised supervising person could not visit, in an informal way, the residence of the defendant, in circumstances where there are reasonable grounds associated with the rehabilitation of the defendant or his compliance with the conditions to be imposed. Of course, the DSO or authorised person can otherwise enter when invited so to do or under the search conditions.

5. [47]

   As a consequence, the Court imposed an altered Condition 12 in the conditions imposed, pursuant to s 11 of the Act, in relation to the ESO.

6. [48]

   I continue the limitation on Condition 21, namely, that the defendant must consider any suggested employment to be not unsuitable. Further, I continue the altered basis for Condition 24, namely, that the blood alcohol content of the defendant must not reach or exceed a blood alcohol content of 0.05.

7. [49]

   Similarly, I continue the exception, in relation to the association with children, that allows the defendant to approach a person who is serving in a shop or other retail place of business, notwithstanding the view that the person may be under the age of 18, for the purpose of purchasing an item from the business in which the person is employed.

8. [50]

   In relation to the commencement of a relationship, I have limited the requirement, to inform his DSO of the commencement of the relationship, to circumstances where the relationship is to be a “close and personal” one and that is reflected in the terms of Condition 31, as altered for the purposes of the ESO. This accords with the underlying approach of Dr Eagle in her report.

9. [51]

   Otherwise, the conditions imposed on the defendant in the making of the ESO are the same as those imposed when the ISO was issued and the discussion on each of those items in the ISO Judgment is apposite to a consideration of the rationale for the making of the order and the conditions that were imposed thereby.

Conclusion

1. [52]

   Lastly, the Court needs to deal with the duration of the ESO. I take into account that the State of New South Wales may apply for further orders of this kind to take effect at the expiry of this ESO.

2. [53]

   As indicated in the extract from Dr Eagle, the defendant needs about 12 months of intensive therapeutic psychiatric treatment. Thereafter, she opines, the defendant needs 2 to 3 years of supervised integration into the community. This makes for a minimum period of 3 years, after which the State of New South Wales would need to assess what, if any, further orders would be required and then make an appropriate application to the Court.

3. [54]

   In my experience, it takes about 6 months to assess the defendant thoroughly and a further 3 months to apply to the Court and have the matter dealt with. In those circumstances, I fixed the duration of the ESO at 3 years and 9 months.

4. [55]

   For the reasons indicated above, the Court on 24 December 2018, imposed an ESO on the defendant and imposed the altered conditions, associated with the ESO, from those that were imposed at the time that an ISO was imposed upon him.