State of New South Wales v Jones (Preliminary)

1. [1]

   This matter is a preliminary hearing pursuant to s 7(3) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the CHRO Act"). The proceedings were commenced by summons filed by the State of New South Wales on 23 March 2021. The State seeks final relief pursuant to s 17(1)(b) of the CHRO Act, that the defendant be subject to a Continuing Detention Order (“CDO”) for a period of two years. In the alternative, the State seeks an Extended Supervision Order (“ESO”) for a period of five years pursuant to s 17(1)(a) of the CHRO Act. The defendant is currently subject to a CDO pursuant to a decision made by Ierace J on 29 April 2020 and upheld by the Court of Appeal in September 2020: State of New South Wales v Jones (Final) [2020] NSWSC 461; Jones v State of New South Wales [2020] NSWCA 202. The CDO will expire on 28 April 2021. I note, in passing, that the defendant is also subject to a sentence of 12 months’ imprisonment which will expire on the same date.

2. [2]

   At this stage the State seeks interim and interlocutory relief as follows:

3. [3]

   The State also sought the following order at prayer 8 of the Summons:

4. [4]

   The defendant does not contest, at least at the interim stage, that the statutory prerequisites for the making of such orders are established. However, it is for the Court to be satisfied, based on the evidence, that those prerequisites are established and that the orders sought by the State should be made. The defendant submits that he should be subject to the alternative form of relief and orders sought by the State, that is, that he should be subject to an interim supervision order rather than an interim detention order. There are also some relatively minor controversies surrounding the precise terms of the conditions of any supervision order.

5. [5]

   I am satisfied that the legislative prerequisites required for the making of either an interim detention order or an interim supervision order have been established in accordance with ss 5B(d) and 15(4) of the CHRO Act. In particular, I am satisfied that the defendant's current custody will expire before the proceedings are finally disposed of: see, ss 10A(a) and 18A(a) of the CHRO Act.

6. [6]

   I am further satisfied that the matters alleged in the supporting documentation tendered before me on the preliminary hearing would, if proved, justify the making of an ESO or CDO: see ss 10A(b) and 18A(b) of the CHRO Act. To reach the conclusion as required by ss 10A(b) and/or 18A(b) it is necessary to make a prediction as to the possible outcome of the final hearing. The judge presiding over the final hearing will be required to make decisions pursuant to ss 5B and 5C of the CHRO Act and, critically, will be required to determine whether they are “satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence” if not kept under supervision or in detention under the order. In reaching that conclusion, the Court will be required to take into account the fact that the primary purpose of the CHRO Act is to protect the community from further serious offending. The Court, in reaching its conclusion, will be required to consider the matters set out in s 17 of the Act.

7. [7]

   The Court will also be required to consider a secondary aspect or objective of the Act, namely the facilitation of the rehabilitation of the defendant. However, that objective will be subsidiary or secondary to the primary objective of the CHRO Act and the making of such orders. In making an assessment of the risk, and whether it is an unacceptable risk, the Court will not be engaged in the exercise of an assessment of probability per se. Rather the Court will need to consider the potential ramifications of the risk manifesting itself, which in this instance, as will presently be demonstrated, could be catastrophic. In reaching its conclusion, the Court will not be permitted "to consider the ability to take action for a breach of the order” in deciding whether there is an unacceptable risk of the offender committing further serious offences: s 17(5) of the CHRO Act.

8. [8]

   If the Court reaches that level of satisfaction, the Court will retain a discretion to decide whether any order should be made and whether the order should entail the continued incarceration of the defendant or whether he should be subject to a supervision order.

9. [9]

   Based on the material tendered at the preliminary hearing, I am satisfied that an order of one form or the other would be justified. The reasons for that conclusion will be obvious to anybody who familiarises themselves with the material in Exhibit A.

10. [10]

    The defendant is a paedophile. He has committed extremely serious offences against children over a number of years. In her helpful written submissions, counsel for the State, Ms New, summarised the defendant's criminal history in the following way:

11. [11]

    This criminal history is set out in more troubling detail in the judgment of Justice Adams when her Honour made a CDO in 2018, [1] and in the judgment of Justice Ierace when his Honour made a similar detention order in 2020. [2] There is no need to repeat the detail recounted by their Honours, although it is important to record that the defendant’s earlier offending was of an extremely serious nature, involving the sexual abuse of a number of children and that there is a significant degree of consistency in the nature and seriousness of the defendant’s crimes. They demonstrate a disturbing lack of empathy and an inability to control his paedophilic sexual urges.

12. [12]

    While there have been some positive signs in the defendant's engagement with counsellors and others, there is nothing in the evidence that suggests that his paraphilia and paedophilic tendencies are likely to diminish in the foreseeable future, if at all. Further, there is little evidence that the defendant has any genuine insight into his condition or empathy for the victims of his crimes.

13. [13]

    Having said that, it is clear that there are some encouraging signs in relation to his "rehabilitation". I use that word cautiously because his sexual deviance is unlikely to resolve and his rehabilitation turns on his ability to control and supress the sexual desires driven by his chronic paedophilia.

14. [14]

    Putting aside the defendant’s “contact” offences against children, he has also demonstrated a persistent interest and fantasy in having sex with children over the last few years. This has manifested itself in repeated and serious breaches of both conditional liberty and the criminal law. This offending and these transgressions have continued even when the defendant has been subject to orders under the CHRO Act. Again, to borrow from the helpful submissions of Ms New, she summarises the defendant’s "further offending since the imposition of the first continuing detention order" as follows:

15. [15]

    Again, the sordid and disturbing detail of these incidents is set out elsewhere in the material.

16. [16]

    That material will amply justify the making of an order at the final hearing and hence I am in a position where an order under the CHRO Act must be made on an interim basis. As I have said, the dispute between the parties at this stage is whether an interim order should involve the defendant’s continued detention or a form of heavily supervised release.

17. [17]

    The defendant relies on the contents of a risk assessment report in which the author, a forensic psychologist, Mr Ardasinski, expresses the following opinion:

18. [18]

    Mr Ardasinski also said:

19. [19]

    Counsel for the defendant also relied on the opinions provided by the defendant’s treating psychiatrist, Dr Parker. That includes the contents of a report dated 22 July 2019 in which the psychiatrist made the following observation:

20. [20]

    One problem with the defendant's reliance on this opinion is that it would seem, as submitted by the State, that Dr Parker was not provided with all of the relevant information at the time of providing his opinion. The material suggests that the defendant was not completely honest with Dr Parker. Even whilst engaging with him on what appears in retrospect to have been a superficial basis, the defendant continued to engage in writings which demonstrated a profoundly dysfunctional and perverted sexuality.

21. [21]

    Some of that (additional) material was brought to Dr Parker's attention before he gave evidence in the proceedings before Justice Ierace in April 2020. Dr Parker’s evidence is set out at [52] of Justice Ierace’s judgment:

22. [22]

    In spite of those opinions, Ierace J concluded that the kinds of conditions upon which the defendant would be supervised (which, in essence, amounted to home detention except when Mr Jones was accompanied by his DSO) were not practicable. The only realistic alternative was to impose a further CDO.

23. [23]

    Counsel for the defendant also relied on the fact that there had been no "contact” offences for a period approaching 20 years. That submission emphasises that no actual children have been interfered with by the defendant since October 2001, when he was charged with two counts of persistent child abuse.

24. [24]

    However, as Ms New submitted, serious sexual offences for the purpose of the legislation includes offences which are not contact offences but which involve things such as grooming via a carriage service: see s 5(1)(b5) of the CHRO and s 474.24A of the Criminal Code (Cth). While Mr Jones was not previously charged with an offence under that section of the Code, he was charged in 2017 for contacting children via social media (Facebook) in breach of his Child Protection Reporting obligations.

25. [25]

    Since serving lengthy gaol sentences for the earlier "contact" offences, the defendant has been subject to two CDOs. Because he committed offences during that period, the defendant has also been subject to prison sentences, some of which have overlapped with the CDOs. Ierace J placed the defendant on a supervision order during the period from around February to April 2020 and the defendant's compliance was largely satisfactory although the conditions were unworkable in the longer term.

26. [26]

    As counsel for the State acknowledged implicitly, the matter is one which is, or might be seen to be, finely balanced. To adopt and adapt some of things Adams J said in 2018, and McCallum JA reiterated in 2020, there is a point where an offender's right to liberty may prevail and the defendant will have to be released at some point: State of New South Wales v Jones [2018] NSWSC 459 at [204]-[205] (Adams J); Jones v State of New South Wales [2020] NSWCA 202 at [39] (McCallum JA).

27. [27]

    There is also the fact that at least some of the expert opinion suggests that the defendant needs to be exposed to live situations in order to foster his rehabilitation. Counsel for the defendant notes that at least one form of protection of the community is to ensure the rehabilitation of an offender.

28. [28]

    However, as Ms New submitted, exposing the defendant to "live" situations could have potentially devastating effects.

29. [29]

    Further, I accept Ms New’s submission that the Court of Appeal has indicated that the circumstances of some cases may mean that the "unchallenged evidence in a particular case [may] point strongly in the direction of risk-avoidance at the interim stage”: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [46]. Even so, their Honours went on to say:

30. [30]

    Earlier in Tillman the Court said at [45]:

31. [31]

    It is also correct, as Ms New submitted, that my task at this stage is not to attempt to predict whether the judge hearing the final motion will make a detention order or a supervision order. I must exercise the discretion for myself based on all of the material before me. In doing so, I must recognise the primary purpose of the CHRO Act being the protection of the community, and I must give effect to the decision of the Court of Appeal in Tillman.

32. [32]

    Having considered all of the material, I have determined that it is appropriate to impose an interim supervision order in the strict terms proposed in the alternative orders sought by the State. There are various reasons for that conclusion, some of which should be transparent from what I have said above. The protection of the community may well be fostered by the continued rehabilitation of the offender. Further, the strictures of the conditions proposed by the State will mitigate to a substantial degree the grave, and realistic, concerns, expressed by Ms New. Mr Jones must have learned from his experience over the last two years that any failure to comply with the onerous conditions of the interim supervision order is likely to result in the making of yet a further detention order.

Conditions

1. [33]

   I have considered the dispute between the parties as to the conditions that should attach to the interim supervision order. These were helpfully set out in a table at the back of the defendant’s submissions and related to conditions 8, 10, 12, 27, 28, 29, 30, 45, 46, 53 and 64. I have come to the following conclusions:

Orders

1. [34]

   For those reasons, I make the following orders:

   1. (1)

      An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

   2. (2)

      An order pursuant to ss 10A and 10C of the Act that the defendant be subject to an interim supervision order for a period of 28 days from midnight, 28 April 2021, being the date upon which the defendant is to be released under the current detention order.

   3. (3)

      An order pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in Schedule A to this judgment.

   4. (4)

      An order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

   5. (5)

      Releasing the submissions of the parties, as redacted by agreement, in accordance with the media’s request.