State of New South Wales v Bowdidge [2015] NSWSC 135 (2 March 2015)

Last Updated: 9 March 2015

Supreme Court New South Wales

Case Name:	State of New South Wales v Bowdidge
Medium Neutral Citation:	[2015] NSWSC 135
Hearing Date(s):	25 February 2015
Date of Orders:	2 March 2015
Decision Date:	2 March 2015
Jurisdiction:	Common Law
Before:	Hall J
Decision:	Requirements for the making of an Interim Supervision Order under s 10A of the Crimes (High Risk Sex Offenders) Act 2006 and ancillary orders established by the evidence in the application by the State
Catchwords:	SERIOUS SEX OFFENDER – Application for interim supervision order under s 10A Crimes (High Risk Sex Offenders) Act 2006 – Application for preparation of psychiatric and psychological reports pursuant to s 7(4) of the Act – No dispute that matters in supporting documentation would, if proved, justify the making of an extended supervision order – whether interim supervision order should be made – Interim supervision order made – Orders made for appointment of two qualified psychiatrists to examine the defendant and furnish reports
Legislation Cited:	Child Protection (Offenders Prohibition Orders) Act 2004 Crimes (High Risk Sex Offenders) Act 2006
Cases Cited:	State of New South Wales v Bowdidge [2011] NSWSC 188 State of New South Wales v Brookes [2008] NSWSC 150 State of New South Wales v Lynn [2013] NSWSC 1147
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Brian Alan Bowdidge (Defendant)
Representation:	Counsel: D Kell (Plaintiff) P Johnson (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid (Defendant)
File Number(s):	2015/26479

JUDGMENT

1. The State of New South Wales by Amended Summons dated 23 February 2015, seeks orders against the defendant pursuant to the Crimes (High Risk Offenders) Act 2006 (“the Act”).
2. A preliminary hearing of the State’s application was heard on 25 February 2015 pursuant to s 7(3) of the Act. The orders sought on that date were those in paragraphs 1-3 of the Amended Summons. These included an interim supervision order (“ISO”) under s 10A of the Act and an order appointing two qualified psychiatrists to examine the defendant and furnish reports to the Court by a specified date.
3. On the preliminary hearing Dr David T Kell of counsel appeared on behalf of the State. Mr Paul Johnson of counsel appeared on behalf of the defendant, Mr Bowdidge.
4. In support of the application, the State relied upon the following affidavits:
   • (1) First affidavit of Emma Bayley affirmed 28 January 2015;
   • (2) Second affidavit of Emma Bayley affirmed 16 February 2015;
   • (3) Affidavit of Dr Richard Furst sworn 16 February 2015;
   • (4) Affidavit of Allison Roberts sworn 16 February 2015; and
   • (5) Affidavit of Paul Yeomans affirmed 13 February 2015.
5. Three folders of documents were exhibited to the first affidavit of Ms Bayley (Exhibit EB-3).
6. Counsel for the parties relied upon written submissions, being, the State’s submissions dated 20 February 2015 and the defendant’s submissions dated 24 February 2015. These were supplemented with oral submissions on behalf of both parties.
7. Mr Johnson in his written submissions stated that it was not disputed for the purposes of the preliminary hearing that the matters alleged in the documentation relied upon by the State would, if proved, justify the making of a high risk sex offender extended supervision order (“ESO”). Accordingly, he observed, whilst it is a matter for the Court, the defendant did not formally oppose the plaintiff’s application that he be made subject to an ISO pursuant to s 10A of the Act: Defendant’s Written Submissions at [7].
8. In these circumstances it falls to this Court to review the evidence on the application in order to determine whether such an interim order can and should be made along with the other orders sought at the preliminary hearing.

Statutory Provisions

9. Section 5I of the Act prescribes threshold criteria which the State submits have been satisfied in this case. The defendant is a “supervised sex offender” within s 5I(1) and (2). At the time of filing of the summons he was a person under supervision under an existing ESO: s 5I(2)(b).
10. The application has been brought within the last six months of the defendant’s current custody or supervision: s 6(2). The current ESO expires on 17 March 2015 (summons filed on 28 January 2015).
11. Mr Johnson in his written submissions, with respect, properly accepted that the plaintiff’s application satisfies the threshold criteria: at [4].
12. The test as to whether the supporting documentation would “if proved” justify the making of an ESO is higher than the civil standard: See State of New South Wales v Lynn [2013] NSWSC 1147 as to the court’s task in determining an application such as the present: per Button J at [18].
13. It is noted that it is not for this Court on an application such as the present to determine whether the final orders will or ought be made: State of New South Wales v Brookes [2008] NSWSC 150 at [12]- [14] per Fullerton J. I accordingly proceed upon the basis discussed in the authorities referred to in the preceding paragraph for the purpose of the application for an ISO.
14. Section 9(3) of the Act provides a non-exhaustive list of matters to which the Court must have regard in determining whether or not to make an ESO.
15. Section 5B(2) addresses the issue of “unacceptable risk of committing a serious sex offence”. I will return to the issue of “unacceptable risk” below.
16. Ultimately, the Court retains a discretion not to make an ESO. However, the State has submitted that there do not appear to be any strong discretionary considerations against the making of an ESO in the event that the defendant is found to be a high risk sex offender: Written Submissions at [48].

Previous Orders

17. The defendant is presently 54 years of age. He has been the subject of an ESO since 29 December 2010. This was initially sought on an interim basis from 29 December 2010 (when the period of parole expired), until a final order was made by this Court on 18 March 2011, for a period of four years. At the time of the previous application, the defendant was being supervised on parole for offences of contravention of prohibition orders, contrary to s 13 of the Child Protection (Offenders Prohibition Orders) Act 2004.

The Matters Alleged in the Supporting Documentation

18. The State submitted that the supporting documentation to its application would, if proved, justify the making of an ESO at a final hearing. This, it was observed, is demonstrated by a consideration of the s 9(3) factors applicable to the defendant.
19. For the purposes of s 5B the Court must have regard to the relevant factors listed in s 9(3)(a)-(i).

The Section 9 Factors

The Defendant’s Offending History

20. The defendant has a history of sexual offences committed against young girls between the ages of five and nine.
21. In the State’s written submissions the defendant’s criminal history is summarised in the following table:
22. The history of the defendant’s sexual offences in 1974, 1980, 1991 and 2001 was discussed in the judgment of this Court (Buddin J): State of New South Wales v Bowdidge [2011] NSWSC 188, at [23]-[31]. His Honour made the following observations:

“28. The victim of these offences, which occurred in 2001, was a girl of seven or eight years of age. According to the Remarks on Sentence of Goldring DCJ, which were delivered on 30 January 2002, the defendant had been in a relationship with the victim’s mother at the time that he committed the offences. Although the victim lived with her paternal grandparents, she used to visit her mother on weekends. His Honour observed that it could not be said that the defendant was in the position of a full-time parent to the victim, but by reason of his relationship with the victim’s mother the victim was nonetheless entitled to trust him.

29. His Honour described the facts of the offences in the following terms:

‘These particular offences took place on the same day when the victim’s mother was out of the house for a short time and the brother of the victim was watching television. The prisoner removed his clothes and the clothes of the victim and placed his fingers and his penis in her vagina. There is no other evidence before me of the nature of the sexual intercourse, but it is quite clear that this was a serious act, it falls squarely within the definition of “sexual intercourse” and there is no doubt that it constituted the offences to which the accused is proved guilty.’

30. After referring to his previous convictions for sexual assaults upon young girls, his Honour observed that:

‘there must be a risk that if he does not receive help and support and treatment if he is released and if he has a chance to use alcohol again the chances of him re-offending in similar ways by committing offences on young children is very high.’

31. In view of the defendant’s record, and the “very serious” nature of the offences, his Honour considered that a substantial sentence of imprisonment was warranted, in order to send a message to the community “that people who sexually abuse young children who are entitled to trust them will be punished severely”. However, his Honour also acknowledged that the defendant was a man of limited intellectual capacity, that he had pleaded guilty at the earliest opportunity, that it was his first time in prison and that the conditions of strict protection would make his time in prison more burdensome than would otherwise be the case. His Honour imposed a sentence of four and a half years imprisonment with a non-parole period of three years on a count alleging penile penetration and a fixed term of two and a half years imprisonment on a count alleging digital penetration.”

23. The defendant was convicted of two offences in 2009 involving contravention of the Child Protection (Offenders Prohibition Orders) Act 2004.”

Compliance with Supervision Orders

24. The State’s written submissions at [62] summarised matters that resulted in the defendant being returned to the Community Offenders Support Program (COSP) on 19 August 2011, 5 April 2012 and 11 January 2015. The difficulties that have been encountered with the defendant’s supervision are addressed in Ms Sutton’s risk assessment report at 6.1-6.13.
25. A number of matters of concern relating to the defendant have been noted. These were referred to at [65] of the State’s written submissions which I do not here reproduce. However, they include matters concerning a sexual preoccupation and fantasies that raise issues related to the assessment of risk as addressed by Dr Furst in his report of 11 January 2015.
26. A report dated 7 December 2014 prepared by Terry O’Brien and Allison Roberts of Community Services has been prepared pursuant to s 9(3)(d1) of the Act. The report outlined a continued management plan should the defendant be made the subject of a further ESO. I have had regard to the details of the proposed plan and recommendations relating thereto.

Clinical and Risk Management Assessments

27. The affidavit material relied upon by the State includes clinical and risk management assessments and other reports. In combination these represent what might be regarded as providing an inter-disciplinary assessment of the plaintiff’s medical condition, intellectual functioning, psychiatric aspects including psychiatric diagnoses and factors that bear upon the issues of future risk of re-offending by the defendant and risk management. In general terms, the opinion and reports of the various authors of the material set out analyses and conclusions that are largely consistent with one another. For the purposes of the present application I consider it is sufficient to refer to the following matters.
28. In terms of psychiatric assessment, the report of Dr Richard Furst, Consultant Forensic Psychiatrist dated 11 January 2015 contains a review of the defendant’s medical history, psycho-sexual/offence history, past psychiatrist assessments together with risk assessments with opinions expressed on questions posed for Dr Furst’s specific consideration.
29. The report of Dr Furst provides a comprehensive and current assessment of the defendant that is directly relevant in determining the issue as to whether an order for the interim supervision of the defendant ought be made pursuant to s 10A of the Act. That said, it is to be observed that the report of Dr Furst has been received on the basis that it has not as yet been tested by cross-examination and in circumstances in which the whole of the evidence that will be available at a final hearing has not as yet been available. One of the orders sought in the summons, as earlier noted, is for the appointment of two qualified psychiatrists to examine and report upon the defendant for the purposes of the proceedings.
30. It is accordingly on this basis that I proceed to have regard to the matters addressed by Dr Furst in his report that bear, in particular, upon the issues of risk and any need for interim supervision.
31. Dr Furst examined/assessed the defendant on 21 December 2014 over a period of approximately 70 minutes. His report contains a detailed analysis over some 23 pages.
32. In reviewing relevant documentation, he observed that the defendant has previously been assessed as a high risk of re-offending relative to other male sex offenders according to the Static-99 instrument and other dynamic measures. He noted that poor self-regulation skills had been recorded. The defendant had been assessed as intellectually disabled (mild range), making him eligible for support by the Community Justice Program (CJP).
33. I consider the following matters discussed by Dr Furst to be material in the assessment of the present application and, in particular, with respect to the issues of risk of re-offending and the need, if any, for interim supervision:
    • (1) The results of actuarial assessment on the Static-99 instrument (score of 6) Dr Furst observed, together with what is referred to as “his dynamic profile on the RSVP” placed the defendant within a group of male sex offenders considered to be at high risk of future re-offending.
    • (2) The greatest single factor contributing to this risk, Dr Furst observed, is his paraphilia.
    • (3) Whilst the defendant’s paedophilic disorder was considered to be relatively stable and unlikely to change over time, the level of the defendant’s fantasies and probably his sexual offending risk appears to have been reduced through treatment with anti-libidinal medication Androcur.
    • (4) The cessation of Androcur in March 2014 has resulted in the defendant’s testosterone levels, previously supressed, rising to the normal/supranormal range again. Dr Furst’s prediction was that the lack of testosterone suppression would be associated with a reemergence of deviant sexual thoughts and fantasies of a paedophilic nature, increasing his risk of re-offending in a sexual manner.
    • (5) The defendant’s current and previously reported sexual fantasies, constituting a paraphilia, is the single biggest risk factor that will need to be managed in terms of the defendant’s future risk of re-offending.
    • (6) Whilst the defendant has engaged in fortnightly sessions with Forensic Psychology Services and is subject to extensive monitoring, measures which probably reduce his risk of re-offending, nonetheless given the prescription of Androcur and associated suppression of his serium testosterone levels was the most important clinical intervention to manage his paediophilic urges, the cessation of such medication has probably resulted in a substantial increase in his future risk of re-offending in a sexual manner.
    • (7) In Dr Furst’s opinion, ongoing monitoring, supervision and treatment in accordance with a single regime (an ESO), “... would probably also be effective in managing his risk of committing a further serious sex offence”: at (p 18).
34. The evidence adduced on the present application, in my assessment, establishes the presence of risk factors associated with the defendant that directly bear upon the issue of “the safety of the community” in terms of s 9(3)(a) of the Act and that supervision of the defendant is required.
35. In so concluding, I have taken into account the defendant’s offending history, the nature of the offences as well as the pattern of offending as disclosed by his criminal history as noted by Buddin J in State of New South Wales v Bowdidge [2011] NSWSC 118 at [39].
36. Additionally, there has been a past history of instances of non-compliance with obligations while under supervision, the most recent of which was contravention of a prohibition order in 2009 while on a good behaviour bond for an earlier contravention of a prohibition order.
37. As earlier noted, the defendant returned to live in external residential accommodation with support on 23 September 2013. He was returned to the COSP on 11 January 2015 following reports that he had displayed inappropriate behaviour towards female residents in his housing complex.
38. On the basis of the evidence in support of the application, I am satisfied that the requirements for the making of an ISO under s 10A of the Act have been met. In particular, I am satisfied that the matters alleged in the supporting documentation for the application would, if proved, justify the making of a high risk sex offender extended supervision order.
39. The State at the hearing produced a draft form of orders with a schedule of proposed conditions.
40. I have concluded that the orders as sought should be made and that the conditions set out in the schedule are appropriate for the purposes of an ISO.
41. Accordingly, I make the following orders:
    • (1) Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):
      • (a) The Court appoints Dr Bruce Westmore and Dr Katie Seidler to conduct separate psychiatric and psychological examinations, respectively, of the defendant and to furnish report to the Supreme Court on the results of those examinations by 14 May 2015; and
      • (b) The defendant is directed to attend those examinations.
    • (2) Pursuant to section 10A of the Act the defendant is subject to an interim supervision order from 17 March 2015 for a period of 28 days.
    • (3) Pursuant to section 11 of the Act, the defendant is to comply with the conditions set out in the Schedule to this Order for the period referred to in paragraph (2) above.
    • (4) List the matter for further mention, and for the purpose of the State’s application to extend the interim supervision order, before the Common Law duty judge on 8 April 2015.
    • (5) Direct that access to the Court file in respect of any document shall not be granted without the leave of a Judge of the court. 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 be given the opportunity to be heard.
    • (6) Grant liberty to apply on one day’s notice.

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