State of New South Wales v Strudwick

Mr Michael Clint Strudwick (the defendant) was born in June 1973 in Dubbo, and is accordingly 45 years of age. A Wiradjuri man, he grew up in straitened circumstances, found school difficult, and his conduct became a problem. The most significant negative aspects of his life that have developed over the years are the chronic abuse of prohibited drugs and alcohol, including excessive abuse of cannabis whilst a teenager; a long-standing diagnosis of schizophrenia; and a repeated tendency to commit sexual offences. The net result of all of that is that he has spent many years of his life incarcerated, and is sufficiently institutionalised to have, at one stage, described himself as happier in gaol than in the community.

As for the first of those three factors, drugs and alcohol, according to a recent psychiatric report, he began to drink alcohol at the age of 11, and drank heavily in his 20s and 30s. His position is that he currently drinks only a few beers every month or so. He first smoked cannabis at the age of 13, and at one stage, was using it daily. His position as at May 2018, when he spoke to the psychiatrist, was that he had not smoked it for approximately four months. The defendant also spoke of regularly using methylamphetamine in the form of ice in his 30s, including intravenously. As at April 2018, he claimed that he had used it about two months before.

As for the second of those factors, schizophrenia, he has experienced auditory hallucinations for many years, although long acting anti-psychotic medication has been of assistance; indeed, he recently spoke of having heard voices since he was eight years old. The hallucinations are sufficiently developed and persistent for two separate personalities, with two separate names, to have been identified by the applicant. It is noteworthy that one of those personalities has been described by the defendant as “a thief”, and the other as a “dead set sexual predator”.

As for the third of those factors, the criminal record of the defendant began over 30 years ago in the Children’s Court. It features a number of driving and property offences, to which I ascribe minimal weight. As for the convictions upon which emphasis was placed by the State of New South Wales (the plaintiff), they commence with an entry for indecent assault and wilful and obscene exposure (exposure) in January 1988.

In a nutshell, the defendant, then aged 14 years, exposed his erect penis to a woman in a telephone booth. She returned to her car, whereupon he approached the driver’s door, spoke to her offensively, and grabbed her by the breast. In the Children’s Court, the defendant was placed on two, twelve month good behaviour bonds.

Whilst on bail for those offences, he exposed himself to a mother of two young children in a park. He was convicted of exposure, and placed on a concurrent 12 month good behaviour bond.

In September 2003, the defendant committed an aggravated indecent assault against a 13 year old girl who was the daughter of a woman with whom he had been in a longstanding de facto relationship. In a nutshell, whilst the two of them were travelling in a motor car, the defendant placed his arm around her shoulder and touched her breast. He also tried to place his hand between her legs, but she moved it away.

Later, in 2005, he committed an act of indecency towards the same girl, who by that stage was 15 years of age. The defendant and the mother of the victim were in the kitchen of their home, and were drunk. The victim was sitting at the dining table. The defendant removed his penis from his trousers and showed it to the victim. She ran from the home and immediately complained to a neighbour.

In subsequent proceedings on sentence, the defendant accepted that the two matters described above were not isolated incidents. He also admitted that the result of the course of conduct was that the victim was made to feel “scared and unsafe”.

In April 2006, the defendant committed an act of indecency against a further young girl in her early teens. Again, the defendant was intoxicated. He exposed his penis to the victim, who was the daughter of a friend of his partner.

In September 2006, in the Local Court at Cobar, the defendant was sentenced for the offences I have discussed to a 3 year good behaviour bond; a suspended sentence of imprisonment for 12 months; and a head sentence of imprisonment for 1 year with a non-parole period of approximately 4 months.

In June 2007, the defendant pleaded guilty to two charges of sexual intercourse with two separate victims, each of whom was a young girl who was aged 10 years at the time of the offences. Those offences had occurred on 8 June 2007.

In a nutshell, the two victims were known to the defendant through extended family. The defendant visited the home of one of the victims, and the two children left and went to his caravan. On his return to that location, he provided the two 10 year olds with alcohol, cigarettes, and cannabis. He also provided a water pipe commonly known as a bong to the two of them. Each of the 10 year old girls became very intoxicated, and one of them passed out. Thereafter, the defendant engaged in penile/vaginal sexual intercourse with the two of them. One of them, as I said, was unconscious during that ordeal.

The next day, one of the victims was bleeding vaginally, and a complaint was promptly made. A medical examination showed that one of the children had injuries to the wall of her vagina.

In August 2008, in the District Court at Dubbo, Judge Puckeridge sentenced the defendant to a head sentence of 8 years and 3 months with a non-parole period of 5 years, each to commence on 8 June 2008. His Honour emphasised the serious nature of the charges; the vulnerable position of the victims; the supply of alcohol and marijuana to them; the prior criminal history of the defendant with regard to sexual offending; the high likelihood that the defendant would re-offend; his schizophrenia; his drug and alcohol abuse; the finding that the offences fell below the mid-range of objective seriousness; and the defendant’s early plea of guilty.

The defendant was released to parole on 7 June 2013. Throughout the latter part of that year and 2014, he attended weekly psychological counselling, and he was able to survive in the community for a time.

As at 25 and 26 February 2016, the defendant was still on parole. On those days, he exposed himself to a woman who was walking past his apartment in Surry Hills. On the second day, she reported his conduct to the police. The defendant was charged on 1 March 2016.

In the meantime, on 29 February 2016, the defendant exposed himself to a woman, and masturbated in front of her. He later informed a psychologist that he had been abusing a prescription opioid at the time.

On 12 May 2016, in the Local Court at Central, the defendant was sentenced for those offences to a number of fixed terms of 4 months, each to be served concurrently.

In late January 2017, the defendant exposed his penis and masturbated in front of a number of passengers on a suburban train on the City Circle in Sydney. He later told a psychologist that he had ceased taking his prescribed medication a few weeks beforehand.

On 3 May 2017, he was sentenced in the Local Court at Central to a total term of imprisonment for 15 months, with a non-parole period of 8 months, each of which commenced on 27 January 2017.

The defendant was released to parole on 26 September 2017. Less than two months later, he admitted to his parole officer that he had used cannabis. Later, on 15 February 2018, he was drug tested and returned a positive result for methamphetamine. He failed another drug test, by way of similar result, on 26 April 2018.

The parole period with regard to the head sentence of 15 months came to an end on 26 April 2018. From that date on, the defendant was subject to an interim supervision order (ISO).

The very next day, a home visit was conducted in order to fit an electronic monitoring bracelet to the defendant. The tranquilizer Valium (which is well known to be subject to abuse) was located in the premises of the defendant. Because he did not have a prescription for that drug, the defendant had immediately breached his ISO.

Twelve hours later, he was found to be in possession of pornographic material. That constituted a further breach of his ISO. The result of those breaches was that the defendant received a sentence of imprisonment totalling 5 months that commenced on 27 April 2018, and expired on 26 October 2018.

Since his release on that date, the defendant has been subject to an ISO. Rather than returning to the modest room in a private hotel in which he had been living previously, the defendant is now residing at Community Offender Support Program Centre (“COSP”).

Finally, a risk assessment was conducted quite recently with regard to the defendant. Additionally, two psychiatrists examined him pursuant to interim orders made at the same time as the imposition of the original ISO.

Each of those experts drew attention to the chronic and substantial criminogenic factors that exist in this case. Each of them expressed significant pessimism about the defendant being able to avoid offending in a significant way in the future, unless his liberty is conditioned.

It is in that context that the plaintiff has sought an extended supervision order (ESO) for a duration of two years, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

In a nutshell, its contention is that all of the mechanistic statutory pre-conditions for the making of an order of that kind have been established; the crucial test to be found in s 5B has been fulfilled; and there is no reason to exercise the discretion found in s 9 of the Act not to make such an order. The plaintiff also submitted that all of the conditions for which it contended by the end of the hearing before me should be made.

The position of the defendant – who was represented by counsel well experienced in proceedings such as these – may be summarised as follows. First, the mechanistic pre-conditions are indeed established. Secondly, the central evaluative question can be answered in the affirmative. Thirdly, there is no discretionary reason why the order should not be made. Fourthly, the proposed length of two years is appropriate. In short, the defendant whilst represented by solicitor and counsel informedly consented to the order, though of course it was emphasised that the question of whether it should be made or not remains reposed in me.

Fifthly and finally, by the end of the hearing, a circumscribed dispute about the appropriateness of a handful of proposed conditions remained to be resolved.

Turning first to the question of whether an ESO is able to be made, I accept the joint position of the parties that the mechanistic statutory preconditions have been fulfilled. I say that because the defendant has been sentenced to imprisonment for a serious sex offence (as defined in s 5 of the Act) as required by s 5B of the Act, and, at the time these proceedings were commenced, he was a supervised offender, as required by s 5I of the Act.

Turning secondly to the question of whether the central test has been established, I turn now to consider very briefly all of the factors found in s 9(3) of the Act, in the order in which they appear there.

First, in consideration of the expert reports of Dr Adams, Dr Singh, the Risk Assessment Report of Mr Ardasinski, and the results of any statistical assessments of risk of re-offending required by s 9(3)(b)-(d), the reports reveal the unanimous finding that the defendant poses a high risk of sexual re-offending. His risk factors include the defendant’s schizophrenia, substance use disorder, sexual deviance, and anti-social personality disorder; with the decline in those aspects of the defendant’s mental health resulting in increased risk of re-offending.

Dr Singh noted that the defendant “showed little understanding of his motivations to offend and a very limited understanding of basic avoidance strategies to desist from offending in the future”.

Dr Adams opined that the defendant’s “reluctance to discuss issues in depth does speak to his level of insight and his willingness to engage in a meaningful manner with follow-up treatment…he would manifest a serious risk of serious offending upon his release from custody if he does not engage positively with the comprehensive management plan in place”.

Mr Ardasinski, in relation to the defendant’s risk of re-offending, opined that “Without oversight from CSNSW, [the defendant] will continue to present a heightened risk of returning to sexual offending if his mental health destabilises, he starts using drugs and he gains access to a potential child victim”.

The statistical assessment tools utilised by the experts all suggest that the defendant is categorised to be at high risk of sexual re-offending (having said that, I accept that those tools are rather blunt ones).

The second consideration is the extent to which the defendant can be reasonably and practically managed in the community (s 9(3)(d1), and the likelihood of compliance with obligations under an ESO (s 9(3)(e2)-(f)). The Risk Management Report sets out a number of proposed measures to manage the defendant’s alcohol and drug use. Dr Singh opines that “The comprehensive and detailed plan proposed…essentially address the relevant risks.”

The Risk Assessment Report states that the defendant’s compliance with supervision has been “poor”. (That is, in my opinion, amply established by the breach of parole and the breach of the ISO by the defendant). However, Dr Singh records that the defendant is more motivated to stay out of gaol and commit to greater supervision, and understands the chronic nature of his illness alongside the need to be committed to his medication.

Third, in relation to any treatment or rehabilitation programs, and the offender’s willingness and level of participation with regard to them (s 9(3)(e)), the defendant has completed numerous programs whilst in custody. They include “Alcohol and Other Drugs” program, the “SMART” recovery program, and the “CUBIT” program. That is to his advantage, but in all the circumstances that I have summarised, it hardly argues against imposing an ESO.

Fourth, the options that might reduce the likelihood of the defendant re-offending over time (s 9(3)(e1)) include the ability of his Departmental Supervising Officer (DSO) to ensure the defendant continues to receive treatment from various doctors or mental health centres to manage his mental health needs or drug and alcohol abuse.

Fifth and finally, the defendant has been, pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW), subject to Child Protection Orders for the 2007 serious sex offences (s 9(3)(g)). On 4 March 2016, the defendant was charged with two offences of failing to comply with certain reporting obligations under that Act. However, those charges were later withdrawn. In the circumstances, I give those allegations of breaches no weight.

Returning then to the fundamental question, although the expert opinions with which I have been favoured are useful, they are, with respect, not central to my determination. That is because I consider that the answer is plain to a layperson such as me, in the following circumstances. The defendant is impoverished; drug dependent; labouring under a chronic and significant mental illness (which features malign command hallucinations); prone to not taking his medication; has demonstrated a sexual attraction to children upon which he will act; lacking in insight; and very socially isolated. Not only that, he breached his recently imposed ISO twice within 24 hours of its imposition.

In my opinion, the contention of the plaintiff and the concession of the defendant is correct: the test in s 9 of the Act is amply satisfied. Furthermore, there is no reason why, as a matter of discretion, an ESO should not be imposed in this case.

As for the disputes about conditions, they can be stated simply, and resolved simply.

First, I have considered all of the undisputed conditions proposed by the plaintiff, and regard all of them as appropriate.

Secondly, the defendant submitted that there should be a “sunset clause” incorporated within the proposed conditions about electronic monitoring and the provision of a schedule of movements. The contention was that I should mandate that electronic monitoring come to an end after a certain time, if there were no fresh charges brought against the defendant. But I respectfully think that that is simplistic a criterion, and one can readily posit deteriorations that do not lead to fresh charges. I also think that it that be inappropriate for me to set rigid rules about something which should be able to be administered flexibly. I do not propose to include such a clause.

Thirdly, it was said for the defendant that there is no utility in a separate condition permitting access to the home of the defendant by those who are supervising him, because there will be a separate condition permitting search of those premises if the defendant shows any sign of deterioration. But my response to that is that the two immediate failures on the ISO – whether or not they were heralded by adverse signs – show that there should be, at least at the start of the ESO, an ability on the part of the authorities to inspect the residence of the defendant, whether or not he has shown observable signs of deterioration.

Fourthly, the defendant disputed that he should be required to take prescribed medication if it pertains only to a physical illness, rather than something to do with his psychiatric or psychological condition. To give an example that was discussed during argument, it was said that, if he were prescribed antibiotics for an infected mosquito bite, and he did not wish to take them for whatever reason, it could hardly be appropriate for him to be forced to do so by my conditions, bearing in mind that a breach of those conditions could see him imprisoned again, just has he was imprisoned for breaching the ISO.

Counsel for the plaintiff submitted that an alternative wording proposed by the defendant may inadvertently bind or limit the ability of the DSO to manage the defendant’s risk. She also submitted that the ESO team would not misuse the condition proposed by the plaintiff, and would undertake this role sensitively and practically.

Turning to my determination of this discrete dispute, it would surely be preferable for this mentally ill man to accept the advice of his doctors (and indeed the supervising authorities) about prescribed medication for physical ailments. Having said that, with regard to this particular point, I accept the submission of his counsel, as a matter of the basic autonomy of a citizen: I do not believe that I am empowered to mandate that he take medication prescribed for him for physical ailments.

As for his non-physical conditions, the parties were agreed that a mandatory condition is appropriate. I am also of that view, and I have expanded the proposed condition in an effort to ensure that it captures every illness or condition from which the defendant may suffer that is not to be understood as solely physical in nature.

In accordance with the above analysis, I propose to impose an ESO that extends for two years, and to impose the vast majority of the conditions for which the plaintiff contends.

I make the following orders: