Jones v State of New South Wales

BASTEN JA: On 29 April 2020 Ierace J imposed a continuing detention order on the appellant, Michael David Jones, for a period of one year to date from 29 April 2020. [1] The order was made pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The right of appeal arises under s 22 of the Act. (The appeal was filed one day outside the 28 day period provided by s 22(3), but no point was taken by the State and the Court should extend the period to 29 days from the date of the judgment and grant leave to file the notice of appeal which may be deemed to have been filed on time.)

A continuing detention order may be made if four conditions specified in s 5C of the Act are satisfied; s 5C provides:

There was no dispute that the appellant satisfied each of conditions (a), (b) and (c) of s 5C. The case before the primary judge turned entirely upon whether he should be satisfied “to a high degree of probability” that the appellant posed “an unacceptable risk” of committing “another serious offence”. If so satisfied, the power to make the order was engaged; as the judge correctly held, both the period for which the order would operate, and the making of the order, involved the exercise of discretion.

Because s 5C(d) refers to a risk of committing “another serious offence” it is convenient to note the distinction drawn in the Act between a “serious offence” and an “offence of a sexual nature” (each is a defined term) and their respective functions. An application for a continuing detention order may be made (relevantly for present purposes) in respect of a “detained offender” who is in custody serving a sentence of imprisonment for “a serious offence” or “an offence of a sexual nature”: s 13B(1)(a) and (2)(a)(i) and (ii). However, the term “offender” is defined to mean a person who “has at any time been sentenced to imprisonment … for a serious offence”: s 4A(b). Accordingly, although the order was sought by the State at a time when the appellant was serving a sentence of imprisonment for two offences of a sexual nature which were not serious offences, the Court’s jurisdiction was engaged because he was a person who had previously been sentenced to imprisonment for serious offences.

A “serious offence” includes a “serious sex offence”: s 4(1). That term is defined in s 5(1) by reference to numerous provisions of the Crimes Act 1900 (NSW) and, since 2017, a number of offences created under federal law. Although in the course of the hearing in the Court below serious sex offences were treated as involving physical contact with a child, that was not an element of all the offences in the definition. As the Crown Advocate noted, the offences listed in s 5(1)(b5) included offences under the Criminal Code (Cth) involving use of a carriage service to “procure” or “groom” minors. [2] To use a carriage service to access, transmit or publish child abuse material is an “offence of a sexual nature”; [3] to engage in such conduct on three or more occasions is a “serious sex offence”. [4] The distinction reflects the penalties; a single episode of accessing, transmitting or publishing child abuse material carries a maximum penalty of 15 years; the repetition of the activity carries a maximum penalty of 30 years. While the particular scope of the defined terms is not critical to the outcome of this appeal, the scope of the definition of “serious sex offence” was not fully reflected in the evidence and discussion in the Court below. References to a serious sex offence as one involving contact with a child may have been based on an understanding which arose before the amendments in 2017 to include the Commonwealth offences.

The judge heard evidence from a psychologist and a psychiatrist appointed by the court, and from the appellant’s treating psychologist. [5] He accepted the evidence “of all three forensic experts to the effect that the defendant poses a high risk of sexually reoffending against children.” [6] That finding is not challenged. However, the judge continued:

That finding, as to the satisfaction of s 5C(d), was challenged on three grounds, which, as counsel for the appellant conceded, overlapped. Their formulation in the notice of appeal did not reveal the substantive basis on which each relied. However, the primary basis of the appeal depended on the following propositions. First, the “unacceptable risk” had to relate to the commission of “another serious offence”, which, as defined in s 5(1) of the Act, relevantly required that the appellant engage in physical contact with boys. As the Crown Advocate pointed out, that paraphrasing of the definition, while adopted during the hearing below, omitted some of the offending covered by the definition.

Secondly, the appellant contended, his past conduct relied upon a period of grooming, usually directed to a boy’s parents, to allow the appellant access to the chosen victim. The expert evidence demonstrated that such conduct could be identified if the appellant were subject to an extended supervision order which allowed highly controlled freedom in the community. That would allow attempted actual contact with any boy to be forestalled; the “build up” towards a further serious offence would be revealed and the authorities would be able to intervene to prevent any further offence occurring. It was said that the judge was wrong to reject this reasoning, given that it was the approach supported by the appellant’s treating psychologist, Dr Parker, and by the court appointed psychologist Dr Rodriguez. While the judge accepted their evidence, he failed, according to the appellant, to adopt the rational conclusion, namely that the appropriate order was an extended supervision order, not a continuing detention order.

Thirdly, the appellant submitted that this reasoning was supported by a further aspect of Dr Parker’s opinion, namely that whilst he believed that treatment could successfully remove (or at least substantially curtail) the risk of continuing offences of paedophilia, such a result was not possible whilst the appellant remained in detention. Assuming that release would be necessary at some stage, the appropriate course was to provide an opportunity for treatment by imposing an extended supervision order and allowing him to be treated in the community. To reject that approach would condemn the appellant to indefinite incarceration because the opportunity to reduce the risk would be foregone.

In a carefully structured judgment, the primary judge set out concisely but sufficiently the procedural and factual background to the application before him. That included the personal history of the appellant and his criminal history up to and following the offence which engaged the jurisdiction of the Court to make an order under the Act. [7] He then identified the relevant legal principles, setting out s 5C and referring to certain authorities, but noting changes in the legislation which had occurred over recent years. In identifying the approach required in considering an application for a continuing detention order (CDO), he stated:

Noting that s 17(4) set out 14 facts, reports and other matters which he was required to take into account, the judge dealt with the relevant matters seriatim. He set out the substance of the reports obtained from the two psychologists and the psychiatrist. The judge noted that the court-appointed psychologist, Dr Rodriguez, had opined that “the defendant’s rigidity and denial of his offences were characteristic of a personality disorder.” [8] Dr Rodriguez had referred to the appellant’s participation in the Custody-Based Intensive Treatment program (CUBIT), noting it “was deemed to have been superficial and the defendant had sexually reoffended afterwards.” [9] Dr Rodriguez had administered two risk assessment tests on the basis of which he concluded that the appellant fell into “a group of offenders who are at a high risk for sexual re-offending.” [10] The judge also quoted Dr Rodriguez’ conclusion:

The judge then turned to the report prepared by the court-appointed psychiatrist, Dr Yolisha Singh, who had diagnosed the defendant as having “a paedophilic disorder and a post-traumatic stress disorder” and possibly to be suffering from autism spectrum disorder. She noted he had “some personal vulnerabilities and presents with traits of a narcissistic personality disorder.” [11] The judge further noted that Dr Singh had declined to express a view as to whether the defendant could be managed in the community under an extended supervision order, but noted that: [12]

The judge then turned to consider the report by his treating psychologist, Dr Parker, who had seen the appellant on some 39 occasions prior to July 2019. Adopting a summary of Dr Parker’s evidence given on an earlier occasion, the judge noted: [14]

The judge set out the cross-examination of Dr Parker in which he adhered to the view that an extended supervision order was appropriate, although the risk was basically unchanged until he had completed his treatment. [15]

The judge then considered a report by Ms Kelli Grabham, an officer with Corrective Services NSW, “as to the extent to which the offender can reasonably and practicably be managed in the community”, in accordance with s 17(4)(d1) of the Act. The report set out the logistical and resource demands occasioned by the conditions of the interim supervision order which had been imposed on 7 February 2020. As a result of the earlier order, the appellant had been supervised in the community for a period of some two months. During that period he had been subject to a condition in the following terms:

Referring to the terms of this condition, the judge summarised Ms Grabham’s evidence in the following passage:

In the course of working through the requirements of s 17(4), the judge then considered together three matters, the first of which was whether the Court was satisfied “that the offender is likely to comply with the obligations of an extended supervision order”: s 17(4)(e2). In that context, he dealt with evidence of past compliance with obligations while on parole or subject to earlier supervision orders (par (f)).

His conclusions in this regard were expressed as follows:

Two challenges made in the course of the appeal addressed the findings in this paragraph of the judgment. First, it was relevant to a submission that the judge had failed to distinguish between the appellant’s history of “serious offences” (the subject of the test of unacceptable risk) and the commission of other sexual offences. For reasons noted below, that submission must be rejected. Although it is true that the failures to comply with earlier conditions may have constituted other sexual offences, it did not follow that the judge was not conscious of the important distinction. As the Crown advocate noted, the “serious offences” were not limited to offences “involving contact with the child”, but Dr Parker had drawn that connection in his oral evidence. [16] It is clear that when the primary judge referred to “offences involving contact with children”, in discussing Dr Parker’s evidence, he was referring to the category of “serious offences” of which offences involving physical contact with children were undoubtedly a part. It is also apparent from the structure of the paragraph that the final reference to “such offences” was a reference to offences involving contact with children.

The second matter about which the appellant complained was an alleged disconnection between the second and third sentences (the latter involving an inference), a disconnection which was later repeated, at [69], expressing the relevant conclusion. It is a matter to which it will be necessary to return, but it may be noted at this stage that such statements cannot be read in isolation: there is no reason to suppose that the inference derived only from what had been set out as to non-compliance with obligations of conditional liberty in the preceding paragraphs, but included other factors upon which the judge was entitled to rely, including those set out in the following paragraph involving the appellant’s extensive criminal history of paedophilic offences, “such as creating and possessing child abuse material and committing the most serious of sex acts on young children, including children who[m] he knew to be vulnerable.” [17]

After summarising the primary submissions of each party, the judge addressed the issues to be determined. [18] Having stated his satisfaction to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept in custody, [19] the judge turned to the exercise of the power thus engaged, accepting, correctly, that it was discretionary. [20] The key passages in reasoning to the conclusion that a continuing detention order was required were as follows:

An underlying premise of the appellant’s case was that a continuing detention order, being a denial of the right to liberty should not be imposed unless it was clear that extended supervision in the community would leave an unacceptable risk of further serious offences being committed. Reference was made to the statement by Mason and Brennan JJ in Williams v The Queen [21] that the right to liberty is a fundamental common law right which “cannot be impaired or taken away without lawful authority and then only to the extent and for the time the law prescribes.”

That proposition may be accepted, however the Act makes express provision in that regard. No doubt elements of ambiguity must be read so as to limit the interference with liberty and the exercise of the discretionary power should have regard to the importance of maintaining rights of liberty to the extent possible consistent with the purpose and express provisions of the Act. However, this was not a case in which it was suggested that the judge had misconstrued the legislation; rather it was a question as to whether relevant findings were available on the evidence, and whether appropriate weight had been given, in the exercise of discretionary judgment, to the consequences of making a continuing detention order.

With respect to the fact-finding as to the level of risk, the appellant disputed the inference drawn at [55], and repeated in the passage at [69] that Dr Rodriguez and Dr Parker supported the view that the appellant should not be permitted to reside in the community unless he was subjected to a condition prohibiting unaccompanied movement from his place of residence (amongst other constraints). In the sense that Dr Parker maintained his view that an extended supervision order would be appropriate, despite knowledge of the failures to comply with mandatory conditions in the past, he may be understood as not affirmatively supporting the need for all movement to be accompanied. However, Dr Parker’s evidence in effect proposed a dilemma, without solving it. He accepted that the risk of further misconduct could not be reduced to an acceptable level absent completion of a treatment program; on the other hand, that program could only be completed when the appellant was at large in the community. However, the existence of the dilemma did not remove the otherwise impeccable conclusion that the offender posed an unacceptable risk to the community if not detained. Rather, the dilemma depended upon two further considerations. One was an assumption that the appellant had demonstrated sufficient insight and willingness to change, so that the Court could be satisfied as to the reasonable possibility of success if a further period of extended supervision were to be provided; alternatively, if that were not so, nevertheless there was no basis to infer that the appellant’s position would be improved by a further period in custody.

The judge clearly did not accept that the appellant had provided any basis for confidence that further treatment would have a reasonable prospect of success. Indeed, neither the past conduct of the appellant, nor the opinions of the forensic experts, provided any basis to think otherwise. On the other hand, the judge was also not satisfied that this was a case where the appellant was condemned to indefinite continuing detention.

The former conclusion is revealed by the following passages in the judgment:

The second step, as to the possibility of further improvement whilst in custody, is demonstrated by the final paragraph in the judge’s conclusions:

Far from demonstrating error, these passages persuasively support the making of a continuing detention order.

Finally, but not dispositively given the considerations set out above, ground 4 in the notice of appeal asserted that the primary judge had erred in “giving determinative weight to” the opinion expressed by Ms Grabham, whilst failing to take into account “expert evidence as to the necessary conditions … and as to the continued availability of accommodation at the Integrated Support Centre.”

The judge’s summary of Ms Grabham’s evidence at [54] has been set out above at [16]. Section 17(4)(d1) required the Court to have regard to a report prepared by Corrective Services NSW “as to the extent to which the offender can reasonably and practicably be managed in the community.” Ms Grabham’s report fell within that requirement and therefore had to be addressed.

At the hearing before the primary judge, Ms Grabham’s evidence was unchallenged. (There was some short cross-examination of Ms Grabham on the appeal, but it did not advance the present ground.) To the extent that condition 9 (set out at [15] above) was a necessary condition of an extended supervision order, Ms Grabham’s unchallenged evidence was that the resources of the Department were limited and would not permit the previous accommodation and monitoring of the appellant to continue beyond a three month period. That proposition was not challenged; rather, the thrust of the appellant’s submissions appeared to be that the level of supervision imposed by a combination of condition 9 and the directions of the Department Supervising Officer were not required by the opinions of the psychologists and the psychiatrist. In that sense it was wrong to give Ms Grabham’s opinion “determinative weight”.

The issue thus identified did not turn, however, on Ms Grabham’s evidence, but on an assessment of the intensity of supervision which would be required were the appellant to be allowed to live in the community. The judge was clearly satisfied that the level of supervision provided under the interim supervision order was appropriate and necessary to limit the risks of reoffending. As explained above, there was ample material to support such a conclusion. No error has been demonstrated in the approach the judge took to this matter.

For these reasons, the appeal must be dismissed. There can be no order as to costs, by virtue of the prohibition in s 23 of the Act.

PAYNE JA: I agree with Basten JA.

McCALLUM JA: I agree with Basten JA for the reasons his Honour has stated and the following additional reasons.

As Basten JA has noted, the appellant’s case assumed the premise that a continuing detention order, being a denial of the right to personal liberty, should not be imposed unless it is clear that extended supervision in the community would leave an unacceptable risk of a further serious offence being committed.

That was an appropriate working premise in the determination of applications under the Crimes (High Risk Offenders) Act 2006 (NSW) as it stood prior to the amendments that came into force in December 2017. Under s 5G of the old legislation, the power to make a continuing detention order was not enlivened unless the Court was satisfied “that adequate supervision will not be provided by an extended supervision order”. In an application determined under the legislation in that form, [22] I described those provisions as providing “a form of hierarchy (consistent with the recognition that a continuing detention order entails significant erosion of the right to personal liberty) requiring the Court first to consider whether the risk posed by a high risk offender can be addressed by an extended supervision order.” I was not satisfied in that case that adequate supervision would not be provided by an extended supervision order and, under the legislation as it then stood, it followed that the power to make a continuing detention order was not enlivened. That decision was upheld on appeal. [23]

Following those decisions, the legislature amended the Act. The amendments removed the requirement that, before a continuing detention order could be made, the court had to be satisfied that adequate supervision would not be provided by an extended supervision order. The authority to make a continuing detention order is now enlivened by the satisfaction of a single condition requiring the court to make an assessment of risk of committing a serious offence if an offender is not kept in custody beyond the term of his or her sentence: s 5C. The possibility of mitigating the risk by placing the offender under supervision does not enter into that assessment. [24] Further, in the exercise of the discretionary power that follows (deciding what order to make), it is now mandatory for the court to have regard to “any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community”: s 17(4)(d1). Those provisions necessarily qualify the premise assumed in the appellant’s argument that a continuing detention order should not be imposed unless it is clear that extended supervision in the community would leave an unacceptable risk of further serious offences being committed.

That is not to say that evidence as to a shortage of resources to manage an offender in the community will tie the court’s hand. As Basten JA has noted, it remains the case that the discretionary power should be exercised having regard to the importance of the right to personal liberty to the extent possible consistent with the purpose and express provisions of the Act. Even in cases (such as the present) involving intractable tension between risk and the object of rehabilitation, there will be a point beyond which the statute can intrude no further upon that right.