State of New South Wales v Hippett (No 2)

1. [1]

   Mr Hippett was in custody serving a sentence for an offence of aggravated break and enter and commit a serious indictable offence in breach of s 112 of the Crimes Act 1900 (NSW), which he had committed in March 2013 at Walgett in New South Wales, when 2016 Garling J made an interim continuing detention order against him under the Crimes (High Risk Offenders) Act 2006 (NSW) (see State of New South Wales v Hippett [2016] NSWSC 1180).

2. [2]

   His Honour was satisfied on the evidence then led that “the Court at a final hearing would be justified in finding, to a high degree of probability, that Mr Hippett poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision or in detention” (at [85]).

3. [3]

   The State now pursues final orders for Mr Hippett’s extended supervision once released from custody. While Mr Hippett does not consent to the making of the orders sought, he did concede at the hearing that the evidence on which the State relied was capable of satisfying the onus which fell upon it under the High Risk Offenders Act, to establish the circumstances in which the Court is empowered to make such orders. The parties were also almost entirely agreed as to the conditions which should be imposed on Mr Hippett, in the event that the Court was satisfied that orders for his extended supervision should be made.

4. [4]

   Mr Hippett’s non-parole period expired on 20 March 2015, but he was refused release on parole. The term of his sentence expired on 20 September 2016. He is now a 21 year old Aboriginal man, with a history of serious sexual offending which explains the concessions that he made at the final hearing.

5. [5]

   For the reasons which follow, I am well satisfied on the evidence then led that the orders which the State finally pressed by way of the further amended summons it filed at the hearing, must be made. That conclusion is inevitable, the evidence unarguably establishing as it does, to a high degree of probability that Mr Hippett poses an unacceptable risk of committing other serious sex offences, if he is not kept under the supervision proposed (see s 5B(2)).

The statutory scheme

1. [6]

   It is s 5C of the High Risk Offenders which empowers the Court to make the orders sought. In exercising that power the objects of that Act specified in s 3 must be borne in mind. That section provides:

2. [7]

   It is also not in issue that the evidence established that Mr Hippett is a “high risk sex offender”, as defined in s 5B(2), which provides:

3. [8]

   The meaning of the phrase “a high degree of probability” was considered in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [20] - [21]. It involves “something beyond more probably than not”, so that the existence of the risk, that is the likelihood of Mr Hippett committing a further serious sex offence, has to be proved to a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt. I am well satisfied that the evidence which I will discuss meets that requirement.

4. [9]

   The meaning of the phrase “an unacceptable risk” was considered in Lynn v State of New South Wales [2016] NSWCA 57. There it was observed at [51] that a determination of whether someone poses such a risk involves an evaluative task. That task must be undertaken in light of the provision made in s 5E(3), which provides that the Court “is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence.” I am also well satisfied that the evidence establishes that Mr Hippett poses such an unacceptable risk.

5. [10]

   A “serious sex offence” is defined in s 5(1) and an “offence of a sexual nature” in s 5(2). A “sex offender” is defined in s 4 to mean a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence. It is also common ground that Mr Hippett’s record of offending brings him within these definitions.

6. [11]

   An application for a high risk sex offender extended supervision order may be made only in respect of a “supervised sex offender”, defined in s 5I to mean “a sex offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender’s current custody or supervision):

7. [12]

   There is also no issue that Mr Hippett falls within this definition. When the proceedings were commenced he was still in custody serving his sentence. When the application for an extended supervision order was made at the final hearing, he was in custody pursuant to the interim detention order earlier made by Garling J.

8. [13]

   The requirements for pursuit of an extended supervision order are those specified in s 6. There is also no issue that those requirements have been met in Mr Hippett’s case, by the evidence on which the State’s case rests, which addresses the requirements of s 9(3). I have had those requirements in mind, when considering that evidence. It included reports of psychiatrists and psychologists who have examined Mr Hippett, both recently and in the past. In the latest reports, experts have expressed opinions as to the likelihood of him committing further serious sex offences, as well as his criminal record and earlier sentencing remarks made by other judges. Section 9(3) provides:

9. [14]

   Under s 10(1A) an extended supervision order may not be made for a period exceeding 5 years from the day on which it commences. The term of the order finally pressed by the State was 3.5 years. The conditions which may be imposed under an extended supervision order include, but are not limited to, those specified in s 11. There is also no issue that the conditions sought by the State are conditions which the Court could impose on Mr Hippett, in its discretion, given the evidence.

10. [15]

    Section 13 empowers the Court to vary or revoke an order it imposes, and s 12 makes it an offence for a person the subject of an extended supervision order to fail to comply with is requirements.

The evidence

1. [16]

   Before Garling J, it was also not in issue that the offence for which Mr Hippett was then in custody serving his sentence was an offence of a “sexual nature” as defined in s 5(2) of the High Risk Offenders Act. Mr Hippett also then accepted that the evidence established the threshold matters which permitted the Court to make the interim detention order then sought by the State. In issue before Garling J was whether the evidence established that Mr Hippett “posed an unacceptable risk of committing a serious sex offence” (at [75]). On the final application this was no longer in issue.

2. [17]

   Garling J concluded that an interim detention order had to be made on the evidence then led as to Mr Hippett’s prior offending, given the views of experts who had earlier examined him; an April 2016 risk management report; and the evidence of the manager of the Extended Supervision Order team for Corrective Services NSW Ms McCarroll. Garling J conveniently described the evidence as to Mr Hippett’s prior offending, which I adopt, as follows ([37] – [47]):

3. [18]

   Garling J considered that a Court hearing a final application would be entitled to take all of these matters into account (at [48]). There was no suggestion that his Honour was in error. I take a similar view.

4. [19]

   On final hearing the State also relied on the September 2016 reports of the psychiatrist Dr Martin and the psychologist Mr Sheehan. Dr Martin was not required for cross examination, but Mr Sheehan was. Both had interviewed Mr Hippett, who was then participating in custody in a group program aimed at treatment of his sex offending. Records as to that participation were also in evidence. He had also received drug and alcohol counselling in custody.

5. [20]

   Mr Hippett gave Dr Martin a history of considerable deprivation: an absent father; a neglectful mother who suffered alcohol and cannabis problems; being taken into the care of his aunties from age 8; disrupted education, with behavioural problems, truancy and expulsion from schools at Walgett and Mt Druitt, during a period when he described himself as a “wannabe gangster”; as well as arrest at age 13 or 14 for sexual assault in a group of which he was the youngest and about which he claimed innocence, despite conviction.

6. [21]

   Mr Hippett told Dr Martin that he was willing to engage with the then proposed conditions of extended supervision, although he explained difficulties with writing down details of his movements, because of problems with writing. Dr Martin considered that Mr Hippett displayed partial, but fairly limited, insight into his behaviour and tended to minimise and externalise responsibility for his previous offending.

7. [22]

   Dr Martin also received a history of Mr Hippett’s problematic and chronic use of cannabis and alcohol; intoxication on a daily basis associated with anti-social behaviour going back to childhood; and repeated sexual offending.

8. [23]

   Dr Martin concluded that Mr Hippett was at high risk of future sexual offending, with his exact risk dependent on factors such as his prior record of sexual offending against sleeping women; his significant minimisation and denial of responsibility for that offending, including earlier this year speaking in derogatory terms about women in Walgett; his significant problems with alcohol and cannabis, as well as paraphilia; as well as past violent conduct, albeit not while in custody. Dr Martin identified that Mr Hippett had problems with social adjustment, employment and non-sexual criminality, as well as displaying problems with planning, failure to complete the sex offending program in custody, as well as earlier breaches of bail.

9. [24]

   Dr Martin considered, however, that rigorous proposed conditions then proposed by the State, particularly in relation to drug and alcohol use, accommodation and reporting would significantly reduce Mr Hippett’s risk of re-offending, given his pattern of earlier offending at night against sleeping females at Walgett.

10. [25]

    Dr Martin also considered that Mr Hippett’s problems would likely be longstanding and for the foreseeable future, given his history. In his view he would require supervision for at least 5 years.

11. [26]

    Dr Martin did not, however, consider that completion of the sex offenders program in custody would materially reduce Mr Hippett’s risk of reoffending in the community. Effective controls of ensuring his abstinence from substance use, appropriate accommodation and monitoring of curfews were in his view likely to be the most effective management strategies for Mr Hippett. He also did not consider anti libidinal medication to be required in his case.

12. [27]

    Mr Sheehan considered that without the conditions imposed on Mr Sheehan by the proposed order that it was:

13. [28]

    Mr Sheehan considered that simplicity of conditions would be important in engaging Mr Hippett’s compliance with the proposed supervision order, as well as the structuring of conditions to those directly relevant to his risk of reoffending. He also considered that Mr Hippett would benefit from clear and transparent understanding of what he needed to achieve, so that further orders would not be sought, with a supervision order of 4 to 5 years being realistic, in his view, to stabilise him into community life. He also considered a considerable benefit of an order for a period of less than 5 years, to obtain his commitment to compliance.

14. [29]

    These conclusions rested on what was described to have emerged from Mr Sheehan’s interview with Mr Hippett, who he said presented as an unreliable historian, with a tendency to fixate on perceived injustices and to attribute those around him with a malevolent agenda.

15. [30]

    Mr Hippett’s account of his childhood differed to that given to Mr Martin in various respects, but he also described himself as having then been uncontrollable and having grown up in a social environment where violence, unemployment and alcoholism were common. He also recounted having experienced bullying at primary school at Walgett, which ceased when he fractured his tormentor’s jaw.

16. [31]

    Mr Hippett also gave Mr Sheehan an account of disrupted schooling; expulsion in year 10 after a similar history to that given to Dr Martin; as well as problems with literacy and numeracy. Mr Hippett said that he had not cooperated with attempts to enrol him at TAFE, or to coordinate employment assistance with Mission Australia. He had a resulting negligible history of paid employment and had never obtained a driver’s license. He did express a desire to live and work in Dubbo and to live a stable life there, taking up an offer of employment available there with a cousin, which Mr Sheehan described, however, not to have been a solid plan.

17. [32]

    Mr Hippett also gave a history of having had 182 sexual partners since becoming sexually active at 13 and sexual activity consistent with a very high sex drive. Dr Sheehan raised the possibility of wild exaggeration. Mr Hippett also gave inconsistent accounts of his custodial record, on the one hand spending much of his life from age 13 in custody and on the other, having spent no more than 3 years in juvenile detention.

18. [33]

    Mr Hippett does not have a record of violence in custody, but has had poor engagement with parole services, as well as avoidance of treatment programs to address his offending behaviours. Mr Sheehan noted that he had also denied all prior sex offending other than his most recent offence, which he said may or may not have occurred, due to alcohol-related amnesia.

19. [34]

    Mr Sheehan also found that Mr Hippett had poor insight, a hostile attitude to supervision and a highly problematic and spurious view that he “would be OK”, if he stuck to beer and avoided spirits. Mr Sheehan considered this belief would expose Mr Hippett to high risk scenarios in future.

20. [35]

    Mr Hippett told Mr Sheehan that he had been seeing a sex offenders’ programs counsellor while subject to juvenile justice supervision, as part of bail conditions imposed in August 2012, but ceased attending in February 2013, a matter of weeks before his most recent sexual offence. He forcefully declined offers of referral to treatment in custody in December 2014 and April 2015, only consenting in February 2016, when told about this application. He also spoke harshly of the program in which he was later enrolled, hating his therapist and considering the program to be “all bullshit”. Mr Sheehan noted however, that he had attended every session once he began the program and was recorded as becoming a vocal and attentive participant. Still, Mr Hippett denied having any treatment needs. He also threatened to terminate participation if subjected to a continuing detention order.

21. [36]

    Mr Hippett also told Mr Sheehan that he would only accept a 3.5 year supervision order and would only commit to residence at Campbelltown Integration Support Centre, where he would be generally compliant with conditions imposed on him and that while he accepted that he could not live at Walgett, that if he needed to return for a funeral he would do so, even if that was not approved.

22. [37]

    Mr Hippett's poor literacy, substandard verbal communication skills and general living skills were found to be consistent with a mild intellectual disability. Mr Sheehan also considered it likely that he had an antisocial personality disorder, but not a paraphilic disorder.

23. [38]

    Mr Sheehan also noted a history of serious substance abuse directly related to Mr Hippett’s sexual offending, which continued from age 13. Mr Hippett recounted becoming sexually aroused when intoxicated and in the company of females, although he claimed to have developed a high tolerance to alcohol. At times he described having used cannabis and alcohol every day, although he only described one episode of alcoholic blackout. Mr Sheehan concluded that he met the criteria for Alcohol Use Disorder (moderate in extended remission in controlled environment).

24. [39]

    Mr Sheehan also discussed the limitations of risk assessment, but noted that on the actuarial Static 99R risk assessment, Mr Hippett scored in the high risk category of sexual re-offending compared to other male sexual offenders. Mr Sheehan discussed Mr Hippett’s problems with psychological adjustment, social adjustment, manageability and contextual and environmental aspects of the risks which he poses, including without the support which he would receive from conditions imposed in a supervision order. He observed:

25. [40]

    Mr Sheehan considered the proposed conditions to be adequate to manage the risks which Mr Hippett posed, with the caveat that how he might respond to such strict supervision remained unknown. He considered that such conditions were most effective when strictly limited to the features of the specific risk profile which an offender poses. He said:

26. [41]

    The conditions which Mr Sheehan had reservations about were identified in his report and explored with him in cross-examination. These views no doubt led to the earlier discussions between the parties, which achieved a measure of agreement, both as to the term of the order and the other conditions to be imposed on Mr Hippett.

27. [42]

    Also in evidence was an affidavit of Mr Devoy, the Unit leader of the Department’s extended supervision order team, who outlined the accommodation options available to Mr Hippett, if released from custody, as well as the proposals for electronic monitoring, which Ms Kaye, the supervising officer who would be assigned to Mr Hippett and the author of a risk management report in evidence, had explained to him. The support available to Mr Hippett from the New Horizon Tribal Dreaming Program, which provides culturally appropriate support for indigenous offenders such as Mr Hippett in a range of identified areas, was also explained by Mr Devoy. He was also cross-examined as to how some of the proposed conditions would operate in practice.

28. [43]

    Affidavits of Ms McCarroll, the manager of the extended supervision order team were also tendered, but she was not required for cross-examination. She explained in her affidavit the formulation of a case management plan for Mr Hippett; how it would be implemented and monitored; how his compliance with the proposed conditions of supervision would be monitored; and how they would develop, in consultation with others such as forensic psychology services. It is unnecessary to outline what was there said in detail, there being no issue between the parties as to the matters Ms McCarroll there explained.

29. [44]

    Other documents in evidence include another Risk Management report, which found in November 2014 that Mr Hippett fell into the high risk level for general re-offending and for sexual offending.

30. [45]

    Annexed to the affidavit OF Ms Pendlebury, a solicitor in the employ of the Crown Solicitor’s Office, were other relevant documents, including as to Mr Hippett‘s criminal history, Mr Ardasinski's March 2016 Risk assessment report; Ms Kaye’s March 2016 risk management report; Lerve J’s sentencing remarks in April 2013; as well as records in relation to Mr Hippett’s earlier offending, including Woods J’s sentencing remarks for his offence of sexual intercourse without consent in circumstances of aggravation to which Mr Hippett had entered a plea of guilty; as well as other offending in 2011; 2010 allegations in relation to other alleged offending which did not lead to conviction; parole records, pre-release reports and Mr Hippett’s bail history. It is unnecessary to further outline that extensive material.

The parties’ cases

1. [46]

   The State’s case was that the evidence as to Mr Hippett’s pattern of prior sexual offending, namely engaging in sexual conduct towards females after breaking into their homes at night, or otherwise entering the home unauthorised, supported the forming of the statutory opinions and the making of the final supervision order on the conditions sought.

2. [47]

   Mr Hippett did not dispute that it was open to the Court to be satisfied to a high degree of probability, on that evidence, that he was a high risk offender who posed an unacceptable risk of committing a serious sex offence as defined, if not kept under supervision.

3. [48]

   On the evidence I have discussed, the concession was properly made.

4. [49]

   When the hearing commenced, all conditions were agreed, other than conditions 6 and 28. Condition 6 provided:

5. [50]

   Agreement on the terms of this condition was reached during the course of the hearing by the addition of the words “the plan may be provided verbally”. That reflected the evidence as to Mr Hippett's difficulties with literacy and numeracy and the assistance available to him from his supervising officer and the New Horizon Tribal Dreaming Program.

6. [51]

   Condition 28 provided:

7. [52]

   Mr Hippett submitted that such a highly invasive condition should not be imposed upon him, despite the evidence of Mr Sheehan and Mr Devoy and that any dispute between he and his DSO over disclosure of his record would be the subject of condition 3, which provides that “[t]he defendant must follow all reasonable directions by his DSO or any other person supervising him”. That was not accepted by the State.

8. [53]

   Both Mr Sheehan and Mr Devoy, who led the team who would be responsible for his supervision, had been called for cross examination.

9. [54]

   Mr Sheehan considered that Mr Hippett’s risks would largely be managed by the conditions which dealt with curfew and drug and alcohol abstention, accepting however, that it was important for his DSO to know who he was associating with and the relationships he might form, given the nature of his record. He also considered that disclosure of Mr Hippett’s record was best left to be dealt with as a treatment matter. He had offended against females on the periphery of his past social life, although there were allegations of such offending against an adolescent niece, which Mr Sheehan agreed had to be considered, but he thought given less weight than the offences of which Mr Hippett had been convicted. Still, Mr Sheehan considered that disclosure of his record of sexual offending to others should come from Mr Hippett, not a DSO.

10. [55]

    Mr Devoy had not read Mr Sheehan’s report and given his role, could not express an opinion as to the appropriateness of a condition of the kind for which the State pressed. His role was to implement the conditions which the Court imposed.

11. [56]

    In final submissions the State accepted that the drafting of the condition was deficient. It was intended to be written in simple English, so that Mr Hippett could understand it. It accepted that it did not make clear what a DSO who considered it necessary to tell someone who had entered a relationship with Mr Hippett about his record, was entitled to do. The condition it finally pressed was:

12. [57]

    While not accepting that there should be such a condition imposed upon him, Mr Hippett finally submitted that if it was to be imposed, it should provide:

13. [58]

    The State accepted that wording.

A supervision order must be made

1. [59]

   As I have explained, it was finally accepted by Mr Hippett that the evidence was such that the Court could conclude that the statutory requirements I have discussed were satisfied and that an extended supervision order should be made. The concession was properly made.

2. [60]

   I am satisfied that Mr Hippett does pose an unacceptable risk of committing a serious sex offence if he is not kept under supervision and that accordingly, an extended supervision order on the conditions which the State finally pressed must be made

3. [61]

   Given the nature of Mr Hippett’s criminal record, when considered in light of the evidence as to what he has told those who have recently examined him and the views those experts have formed, both as to the risk which he poses and the need for his supervision under conditions of the kind for which the State finally contended, consistently with those who have earlier examined him, as to the high risk of further offending which he poses, I am well satisfied that no other conclusion is open.

The length of Mr Hippett’s supervision

1. [62]

   The State initially sought a supervision order of 5 years. Mr Hippett later contended for an order of 3.5 years, so as to enhance his prospects of compliance with the order, by giving him a goal to work towards, for reasons discussed in Mr Sheehan’s report. That approach was finally accepted by the State.

2. [63]

   It is common ground that if an order is made for less than the maximum statutory term, it will be open to the State to approach the Court to extend the term of the order, if it emerges that Mr Hippett requires continuing supervision beyond the term of the initial order.

3. [64]

   It is in the light of that aspect of the statutory regime that I have concluded that the order should be made for the agreed term. What Mr Hippett told Mr Sheehan as to his likely compliance with the conditions of any order imposed upon him, when considered together with views he has relatively recently expressed about females at Walgett, suggests that there is a real risk that he will breach the terms of the Court’s order. The evidence also suggests that unless he alters his attitude significantly, he will either be returned to custody following breach of the order, or he will require supervision for a period beyond 3.5 years. Both presently appear to be real possibilities.

4. [65]

   Whether they materialise lies entirely in Mr Hippett’s own hands. The period of the order, one he himself has advocated for, gives him a real incentive to comply with its terms, so that neither of these adverse possibilities eventuate.

5. [66]

   On balance I have been convinced by the views expressed by Mr Sheehan and the State’s acceptance of them, that an order for supervision of 3.5 years should be made, in order to give Mr Hippett both an opportunity and real encouragement to comply with the terms of the order he himself finally advocated for.

The conditions of Mr Hippett’s supervision

1. [67]

   As I have indicated, apart from condition 28, the conditions were finally agreed and, I am satisfied on the evidence, are appropriate to impose on Mr Hippett. As to condition 28, I am also well satisfied that the condition as finally pressed by the State must be imposed upon him.

2. [68]

   Mr Sheehan considered that informing any female with whom Mr Hippett might in future form a relationship about his criminal record was something which should occur, but that its timing ought to be managed as a clinical matter between Mr Hippett and his treating psychologist, his offending risk being managed by other conditions imposed upon him.

3. [69]

   Despite Mr Sheehan’s view, I consider that on Mr Hippett’s record of sexual offending the disputed condition must be imposed upon him. That offending has been committed against females known to him, at night, when he breaks into their homes while they are asleep, even, it has been alleged against an adolescent niece. When that history is considered in light of the evidence of views he has recently expressed about his compliance with conditions of his proposed supervision, that circumstances might well arise which would have to be managed by his supervising officer, in respect of a female with whom he has entered into a relationship being told about his record, even over his objections, must be accepted.

4. [70]

   On his history, Mr Hippett may well misjudge steps which are necessary for him to take, if he is to avoid relapse into serious sexual offending. In the event that after his release he unreasonably opposes his record being revealed to a female with whom he enters a relationship, for example one who is residing with other females, the need may realistically arise for a DSO to make the disclosure which condition 28 contemplates. Mr Hippett will avoid that, of course, if he makes the disclosure himself.

5. [71]

   I have been considerably influenced in reaching this conclusion by the objects specified in s 3 of the Act, which include ensuring the safety and protection of the community. I am satisfied that this condition is necessary, if that statutory objective is borne in mind, as it must be, when the Court exercises its statutory discretions.

6. [72]

   For those reasons, I make the following order in the terms sought in the final amended summons, as amended at the hearing: