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Supreme Court of New South Wales |
Last Updated: 22 March 2023
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Supreme Court New South Wales
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Case Name:
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State of New South Wales v HT (Preliminary)
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Medium Neutral Citation:
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Hearing Date(s):
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21 February 2023
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Date of Orders:
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9 March 2023
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Decision Date:
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21 March 2023
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Jurisdiction:
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Common Law
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Before:
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Walton J
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Decision:
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1) Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006:
(a) appointing two qualified psychiatrists, psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) directing the defendant to attend those examinations. (2) Pursuant to ss 10A and 10C of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to an interim supervision order for a period of 28 days, operating from the expiration of the defendant’s parole on 12 March 2023. (3) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in Schedule A to this Short Minutes of Order, noting that the Court rejected the contention by the defendant that the conditions would be the present conditions of parole. |
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Catchwords:
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HIGH RISK OFFENDER – Crimes (High Risk Offenders) Act 2006 (NSW)
– preliminary hearing – s 5B(d) – criminal history and pattern
of offending – single serious sex offence – psychiatric reports
– auditory
hallucinations – disputed conditions
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Legislation Cited:
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Cases Cited:
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Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
New South Wales v Darrego [2011] NSWSC 360 New South Wales v Naaman (No 2) (2018) 365 ALR 179; [2018] NSWCA 328 State of New South Wales v Boney (Final Hearing) [2020] NSWSC 1375 State of New South Wales v Fisk [2013] NSWSC 364 State of New South Wales v Heness (Preliminary) [2019] NSWSC 1710 State of New South Wales v Hyde (Preliminary) [2022] NSWSC 540 State of New South Wales v Kamm (Final) [2016] NSWSC 1 State of New South Wales v Lee [2017] NSWSC 1766 State of New South Wales v Sturgeon [2019] NSWSC 559 State of New South Wales v Wilde [2014] NSWSC 305 State of NSW v CD (Preliminary) [2021] NSWSC 1396 State of NSW v Kaiser [2022] NSWCA 86 State of NSW v McGorm (Final) [2019] NSWSC 484 State of NSW v PS (Preliminary) [2022] NSWSC 1740 State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813 Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 |
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Category:
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Principal judgment
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Parties:
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State of New South Wales (Plaintiff)
HT (Defendant) |
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Representation:
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Counsel:
P Aitken (Plaintiff) G Marsden (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) 12 Wentworth Selborne Chambers (Defendant) |
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File Number(s):
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2022/375883
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REASONS FOR DECISION
The Positions of the Parties
Statutory preconditions: s 5B(a)-(c)
S 5B(d): Relevant Principles
...the criteria in s 9(3) appear to be relevant to an assessment of whether a person falls within the definition of “high-risk sex offender” and especially to whether they pose an unacceptable risk “unless kept under supervision.
[59] In Thomas (Preliminary) R A Hulme J made the following observation, at [20]: “Whilst bearing in mind the second of those two objects, I would regard the test in s 9(2) as being satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made.”... [60] In Darrego [2011] NSWSC 360 McCallum J commented, at [8], that: “...a formulation in these terms puts a gloss on the precise words of the test stated in the section, which does not require, in terms, that protection of the community be ‘ensured’ (although that is an object of the Act).”
[61] For my part, I do not understand that R A Hulme J, in using the words of the objects clause, intended to mean that “unacceptable risk” is to be determined in the sense of guaranteeing the safety and protection of the community. Rather, as the respondent has submitted the word “ensure” itself has shades of meaning and, in the context of the Act, the evaluation to be made under s 5E(2) is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection. As the respondent pointed out, were it otherwise, every risk would be unacceptable.
The determination of what is an unacceptable risk may require consideration of various factors (such as the perceived likelihood of recidivism and the type and nature of offences that may be committed absent supervision), and may entail a balancing of factors in cases where they might point towards differing outcomes (such as a low risk of recidivism versus likely drastic consequences to the victim if an offence occurs). Clearly, any analysis of the concept of unacceptable risk involves recognition that there will be a range of factors affecting risk and some cases that are more obvious examples of unacceptability than others.
[189] As to Sancar, the following comparisons were made:
“(1) the defendant had one conviction of a serious violence offence, namely, murder;
(2) the defendant also had disciplinary breaches linked to the use of illicit drugs and disciplinary offences. That position also applies in this case;
(3) reference was made to the observation at [83] by Garling J that the defendant in Sancar represented risk because of the length of his incarceration, institutionalisation, lack of strong peer support in the community outside family but, having regard to the relevant test of unacceptable risk, there was not a risk of serious violence offending.”
[190] Turning to the defendant's written submissions regarding the application of s 5B(d), the defendant made the following submissions:
“(1) To order an extended supervision order, the Court must be satisfied on the evidence before it to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. Given the defendant's background, the only relevant serious offences about which there is any risk is the risk of further serious violence offences.
(2) The defendant submitted that the Court could not be satisfied to a high degree of probability that the defendant poses such an unacceptable risk.
(3) As an initial observation, the defendant accepted that there are aspects of the evidence against him which must disclose some risk of re-offending in a general sense. The defendant also accepted that, as a general proposition, supervision may be desirable to mitigate risk. However, a Court must not obfuscate the actual test to be applied in order for an order to be imposed. As his Honour Harrison J stated in Pacey (at [53]):
[53] It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release.
(4) In determining the ‘unacceptable risk’ test pursuant to s 5B(d), the Court is required to consider: ‘First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest’: Rothman J in State of NSW v Ceissman [2018] NSWSC 508 at [26].
...
ConsiderationUnacceptable Risk: Section 5B(d)
[191] The decision to make or refuse an application for an extended supervision order is discretionary and requires an evaluative judgment to be undertaken by this Court according to the individual circumstances of the case and having regard to the objects of the Act: Lynn at [51].
[192] Section 5B of the Act provides the Court may make an extended supervision order if: the person is an “offender” who is serving or who has served a sentence of imprisonment for a serious offence (see s 4A of the Act); the person is a “supervised offender” (see s 5I of the Act); the application for the order is made in accordance with s 5I of the Act; and this Court is satisfied to “a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order”.
...
[197] The unacceptable risk requirement in s 5B(d) essentially replicates the repealed definitions of “high risk violent offender” as existed prior to the 6 December 2017 amendment: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The authorities applicable before the amendments continue to be relevant (Garling J in State of New South Wales v Thurston [2018] NSWSC 421 at [116]- [117]; and, more generally, State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 at [56]- [60].
[198] As to those principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [20]- [39] (see also, State of New South Wales v French (Final) [2017] NSWSC 1475 (at [43]-[53])). By way of emphasis or elaboration, some further observations may be made.
[199] First, there may be instances when a person is held to pose an unacceptable risk, even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely “drastic” consequences to a victim if particular offending occurs (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 (Kamm) at [41] and [43] (per Harrison J)).
[200] Secondly, I accept the passage of the judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]- [128], adopting the observations of Harrison J in Pacey and Wilson J in Simcock, as follows:
“[127] In considering the question of whether the defendant poses an ‘unacceptable risk’ of committing a ‘serious sex offence’ if he is not kept under supervision, I give the words ‘unacceptable risk’ their ordinary meaning. I also have regard to the observations of Harrison J concerning the question of ‘unacceptable risk’ in State of New South Wales v Pacey at [43] as follows:
‘It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.
“[128] Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, ‘Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate.’”
[201] Reference may also be made to the discussion of the test under s 5B(d) in State of NSW v Ceissman [2018] NSWSC 508 at [26] as follows:
“[26] It is further necessary for the Court to deal with the construction of the term, ‘unacceptable risk’, within the context of the HRO Act. Ordinarily, a risk is the possibility, chance or likelihood of ‘harm, hazard or loss’. In many areas of the law, risk assessments are undertaken that identify and evaluate an injury that may be sustained as a result of a possible (and usually foreseeable) occurrence. In assessing a risk and whether it is unacceptable, there is a matrix of considerations that are required to be taken into account. First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest.”
[202] Thirdly, the requisite finding under s 5B(d) may be made, in an appropriate case involving a single serious offence. In Kamm, Harrison J observed (at [44]):
“[44] ... while it is necessary to bear in mind the limitations of attempting to draw comparisons with the factual circumstances of other cases, in State of New South Wales v McQuilton [2014] NSWSC 11, R A Hulme J imposed an ESO in respect of a sexual offender who had experienced pervasive rape fantasies, but had only been convicted of a single serious sex offence.”
[203] Finally, the defendant accepted that there were aspects of the evidence against him, which must disclose some risk of re-offending in a general sense. The defendant also accepted that - as a general proposition - supervision may be desirable to militate risk. However, it was contended, such a consideration must not “obfuscate the actual test to be applied in order for an order to be imposed”. Reliance, in this respect, was placed upon the judgment of Harrison J in Pacey (at [53]):
“[53] It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release.”
[204] The evaluation of unacceptable risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate. Thus, unacceptable risk involves a consideration of the type and nature of offences that may be committed absent supervision and balancing those factors. That assessment must be absent the existence of “protective measures”.
Preliminary Hearing Principles
[56] There was no dispute as to the statement of principles appearing in the written submissions for the State. In that light, it is sufficient to state the following principles for the purposes of this preliminary hearing and the applications for interlocutory and interim relief.
(1) The Court is not required to predict the outcome of the final hearing, rather the Court determines whether it would be reasonably open to make an extended supervision order at final hearing assuming proof of the matters. This involves a consideration to which I will turn shortly of the satisfaction of the conditions in s 5B of the Act and whether the Court might exercise a discretion under s 9(1) of the Act.
(2) If the Court is satisfied of the making of the extended supervision order in the circumstances the Court is mandated to make an order under s 7(4).
(3) Assuming that s 7(4) orders are made whether an interim order ought to be made is to be considered under s 10A of the Act. That provision is enlivened if it appears the defendant's supervision will expire before the final determination of the extended supervision order.
(4) In determining those matters the Court is required to consider the objects of the Act insofar as they concern the safety and protection of the community.
(5) Finally, it is appropriate to give weight at this stage of the proceedings to risk avoidance.
[5] A preliminary hearing does not require the Court to be satisfied that the matters in the supporting documentation will be proved. The Court is only required to be satisfied that if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely “a high degree of probability”: s 5B and s 5C of the HRO Act.[6] The Court, in undertaking this exercise, is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is no part of the Court's function to predict the ultimate result, or assess the likelihood of the ultimate result. If on the matters alleged in the supporting documentation it is open to the Court at a final hearing to make a CDO or and ESO, then a conclusion that the Court would be justified in making the order, is inevitable. The issue is to be resolved without considering what evidence might be called by the defendant at a final hearing, and without taking into account any evidence which may be called by a defendant at an interim hearing, because such evidence would not cast light upon what is alleged in the supporting documentation: Attorney-General of NSW v Tillman [2007] NSWCA 119 at [98].
[28] In the hearing, I determined that the evidence relating to the 1997 charges was admissible in that it was capable, even if in a very limited way, of bearing upon the likelihood of the defendant committing a serious sex offence in the future and, in that way, capable of informing the question whether the acceptable risk precondition is satisfied. I also determined that this was not a forum where the discretion in s 135 of the Evidence Act had any meaningful application. Here the Court is engaged in an evaluative exercise (both as the tribunal of fact and the tribunal of law) as to whether a statutory test has been met so as to engage the jurisdiction of the Court to make orders for the extended supervision of the defendant if satisfied of that fact at a prima facie level. Viewed in that way, there is no practical sense in which the risk of the unfair prejudice with which s 135 is concerned has any meaningful operation in deciding that question in a preliminary hearing.[29] I was, however, unprepared to accede to Mr McGorey's submission that the evaluative exercise engaged on this application eschews considerations of the weight of the supporting documentation. While it is true that in a preliminary hearing the Court is not to “weigh” the documentation for the purposes of predicting the ultimate outcome of the proceedings, in my view the evaluative exercise in which the Court is engaged in the preliminary hearing necessarily involves an assessment of the “weight” of particular aspects of the evidence, equally as it does the “weight” of the supporting documentation as a whole, when determining whether the State has evidence capable of discharging the burden of establishing that “the unacceptable risk precondition” is met such that interim orders might be made subject to the exercise of discretion.
CONSIDERATION OF FACTORS UNDER S 9(3)
Section 9(3)(h) Criminal history and pattern of offending behaviour disclosed by that history
Early Offending
The Index s 112(2) Offence
The Serious Sex Offence
The Defendant’s Submissions Concerning Criminal History and Pattern Of Offending
(i) Dr Elliott’s psychiatric report finds that the defendant was undergoing auditory command hallucinations when he committed the serious sex offence. Auditory hallucinations are an ongoing “chronic” symptom for the defendant, who stated that they were present on 12 December 2022 during a consultation with psychologist Ms Melanie Rowe. On 19 January 2022, Ms Kirrin Farrant noted that the defendant’s support worker Tayla stated that the defendant had been experiencing “increased voices” and “increased paranoia, as he frequently believes he can hear someone trying to get into the house.” It is possible that the severity of the defendant’s auditory hallucinations may fluctuate, as he reported to Ms Melanie Rowe on 4 January 2023 that “his voices continue to be improved after the cultural ceremony at the beach.” However, there is an ongoing risk that the defendant may undergo auditory hallucinations, including the command hallucinations he previously experienced, which caused him to commit, or contribute to his commission of, another serious sex offence.(ii) On 19 January 2023, the defendant reportedly admitted to Ms Kirrin Farrant that he has used cannabis on four occasions since leaving custody. He has once tested positive for drug use after smoking cannabis with his brother after his father’s funeral. Because much of the defendant’s past offending has been in the context of drug use, the defendant’s recent relapses into drug use, illustrate the defendant is at risk of both future drug use and offending. Given the defendant’s pre-existing diagnosis of schizophrenia, there is a significant risk that future drug use by the defendant, including potentially cannabis use, may be associated with an increased risk of psychosis. This was raised by the State in cross-examination of the defendant’s NDIS-funded behavioural psychologist Mr Justin Clark, who affirmed that this was his understanding.
(iii) At the time that Mr Clark wrote his report praising the defendant’s progress in the community, he was not aware that the defendant had used cannabis on four occasions rather than the one occasion he admitted to Mr Clark. Mr Clark stated that he would not “rate” cannabis use “as a high risk factor” in comparison to methylamphetamine, which the defendant has not recently tested positive for. In this preliminary hearing it is not my role to assess precisely how much of a risk factor cannabis, or to assess the risk of cannabis use in comparison to other drugs the defendant has used in the past. In my view, the defendant’s four occasions of cannabis use contribute to the satisfaction of the threshold of substantial risk for several reasons, including the availability of medical evidence such as Dr Elliott’s psychiatric reports linking the defendant’s drug-taking generally with the risk of further serious offending. The RAR similarly found that the defendant’s “substance abuse and mental health appears to perpetuate his risk of sexual offending.” The following excerpt from the RAR expands upon the defendant’s risk of serious sexual offending associated with his substance abuse:
Substance abuse has been a risk factor identified to be directly related to [HT]’s risk of serious sexual, violent and general offending.[HT] has admitted to intravenous drug use during his current incarceration despite prescribed monthly buvidal injections. [HT's] substance use has a direct effect on his mental health stability and experiences of psychosis. It is also likely that his general offending (e.g., break and enter) is to meet the need of funding illicit substances. As noted in [HT's] criminal history, he has engaged in or attempted to engage in sexual offending during the commission of break and enters. [HT's] access to potential victims would be considered a high-risk situation for impulsive sexual offending.
(My emphasis in italics.)
(iv) Indeed, counsel for the defendant conceded generally that “the use of illicit substances poses a risk factor for the defendant.” I correspondingly evaluate the defendant’s use of cannabis as a relevant risk factor. Given the role that auditory command hallucinations have played in the defendant’s commission of a serious sex offence, there is a possible link between the risk of drug-induced psychosis and future commission of a serious offence.(v) On 4 January 2023 the defendant communicated to Ms Melanie Rowe “that when his order ends, he would like to stop all NDIS supports and live independently of all services except for Centrelink and the bank.” Under the NDIS the defendant lives in supported accommodation, receives behavioural psychological therapy and is currently receiving 24/7 supervision by two support workers. As the State submitted, this support appears to have been essential in assisting the defendant to manage his mental illnesses, temptations to use drugs, and to support the defendant to live in the community without reoffending, including serious reoffending. If the defendant were to follow through with his expressed intention to cease all support services, which he would be at liberty to do once his parole ends if no other orders (such as an ESO or community treatment order) are implemented, this would increase his risk of reoffending, including committing another serious sexual offence.
(vi) It was also submitted by the State that the defendant had made various inconsistent statements concerning his intention to relocate to Nambucca (recorded on 30 January 2023 by Ms Kirrin Farrant) and to Glen Innes (a location where the defendant had committed a robbery – a statement recorded on 02 February 2023 by Ms Farrant), both of which would entail departing from his present NDIS supports including supported accommodation.
(vii) In cross-examination the defendant’s NDIS-funded behavioural psychologist Mr Justin Clark stated that he would “expect” “somebody like” the defendant to “make statements off the cuff ... plans coming and going change all the time”. Mr Clark attributed the defendant’s inconsistent statements about his plans as being “More likely the personality than the primary mental health condition.” Regardless of whether this behaviour is characteristic for the defendant and a feature of his psychological disposition, it remains an indicia of risk that the defendant coulda commit a further serious sexual offence if he acts upon his expressed intentions to remove himself from his present supports. For the purposes of this preliminary hearing, the State has provided sufficient documentary basis for an indicia of risk which I am entitled to and should, in my view, take into account, without resolving conclusively at this preliminary stage complex questions of fact such as the precise cause of the defendant’s inconsistent statements and the likelihood that he will act upon them.
[...] he takes solace in the fact that the extent of his offending against the 16 y/o male, was nowhere near as serious as what his mind wanted him to do in that moment. He said he was by no means excusing or lessening his behaviour, just trying to indicate it could have been much worse.
Section 9(3)(c) - Assessments by Qualified Psychiatrist and Psychologist
Report of Dr Gordon Elliott, psychiatrist (for the State Parole Authority), dated 14 January 2022.Dr Elliott had prepared previous reports on the defendant on 29 March 2021 and on 10 February 2020. That 2020 report was prepared for proceedings in the Coffs Harbour District Court for the serious sex offence. Dr Elliott noted the concerns of a Ms Daniels who had herself noted that the defendant was suffering from psychotic symptoms on 12 October 2021. However, on review, Dr Elliott noted that the defendant presented as relatively stable. The defendant told Dr Elliott that he could not participate in sex offender programmes as he had to listen to the confessions of “a high profile paedophile”.
Dr Elliott considered that the explanation for the supposed psychotic symptoms was a more mundane one but noted that the defendant claimed to be experiencing ongoing auditory hallucinations. The defendant claimed to have six daughters from multiple past relationships; Dr Elliott was uncertain whether this number of daughters was a deluded belief as he had only previously been told of one adolescent daughter (the defendant has two confirmed daughters and has queried recently whether he may have more). The defendant claimed that the auditory hallucinations no longer told him to engage in sexual behaviour, as he had reported to Dr Elliott previously. The defendant denied that he was at risk of sexual recidivism.
Dr Elliott concluded that the defendant’s diagnosis remained one of chronic schizophrenia. He noted that the defendant appears to have accommodated what now seemed to be chronic auditory hallucinations. He noted that the defendant is significantly institutionalised. He noted that the defendant expressed an awareness that he would require support if he was to avoid a return to custody.
Dr Elliott, 29 March 2021. The plaintiff notes that in the further report dated 29 March 2021, Dr Elliott first reviewed the defendant on 30 July 2020, at which the defendant said his delusions about being made to perform sexual acts for elders in the Top End were no longer occurring and his auditory hallucinations had ceased altogether. However, at a further review on 25 February 2021 the defendant had deteriorated and reported auditory hallucinations, including voices telling him what to do and to do stuff that he didn't want to do. The defendant said he was bisexual. He said that he was disgusted by his previous sexual offences towards minors. Dr Elliot concluded at page seven of the report that there “appears to be a strong link to [the defendant’s] relapses of psychosis and his offending behaviour, including and in particular his sexual offending”.
Dr Elliott, 10 February 2020. In this report, Dr Elliott reviewed the defendant's progress. The defendant told him that when he was released from custody he had relapsed and started using buprenorphine and methamphetamines. Dr Elliott noted that the defendant's account of his substance use was varying and at times contradictory. The defendant told Dr Elliott that he had first heard voices aged 10.
It was in this review that Dr Elliott was told by the defendant that he was hearing voices from indigenous persons manipulating him, telling him that he was important and that he was required to continue having sex. The defendant claimed that these voices had been speaking to him when he committed the serious sex offence with the 15-year-old boy. Dr Elliott noted that the defendant's account of symptoms, whilst initially appearing to draw a deliberately close nexus between his mental illness and his offending, subsequently proved extraordinarily elaborate and hence convincing for genuine psychotic symptoms associated with and motivating his offending behaviour.
Dr Elliott observed that he was mindful that the defendant was more than aware of the potential for his illness to offer him mitigation with regards to sentencing but did not consider that he was feigning symptoms during the assessment. He considered that the defendant remained a high risk of both sexual recidivism and general offending and that his prognosis was extremely guarded.
(Emphasis in italics has been added by the plaintiff.)
[HT] then told me he was experiencing voices. It was initially difficult to discern whether he was referring to long past experiences of auditory hallucinations or more recent occasions. Eventually it became clear he was referring both to his recent time in the community, including around the time of the offence, and currently in custody. He spoke initially of his voices as like “an emotional storm.” He then referred more specifically to hearing two female and one male Indigenous voices from people he believed were calling from the Top End of Australia. He said the voices were manipulating him, telling him that he was important and that he was required to continue having sex. His comments included statements such as, “these voices are from the top end. They said I am important to them sexually. They don’t tell me that, but it’s the only reason. I feel I’m being used to help elderly Aboriginal people. They always tell me to masturbate.” He also spoke of the voices telling him that he is a rock spider or dog, common custodial terms for paedophiles and informants respectively. He complained however that, despite his extensive custodial experience, he has no knowledge of what these terms really mean and yet is somehow at risk because inmates around him can hear his voices referring to him in these terms.[HT] went on to make direct remarks about his offences. He told me his symptoms caused him to, “behave foolishly with this young fella (the victim). There was no sexual contact. I asked him. I didn’t force myself on anyone. There was no act, it was just stupid behaviour due to these voices.” He again stated that he felt he was being manipulated by tribal people. He also spoke confusedly about these voices occurring since he was 10, and that between the age of nine to 13 years of age he was forced to perform sexual acts with other boys on camera. He spoke also of his brother giving him pornography when he was eight years of age, masturbating to the images and then hearing voices about sex ever since. He claimed he has struggled with the conflict between wanting to change his life, find God and stop offending, and the voices challenging these goals and telling him he is ‘too important’ sexually to alter his behaviour. He also made muddled contradictions about the effects of his antipsychotics, telling me despite the medication reducing his libido, seemingly a desired effect, he was instead suicidal. His account of symptoms, whilst initially appearing to draw a deliberately close nexus between his mental illness and his offending, subsequently proved extraordinarily elaborate and hence convincing for genuine psychotic symptoms associated with and motivating his offending behaviour.
[HT] has a number of historical risk factors for future offending. This includes his traumatic early developmental history, his underlying personality disorder, his major mental illness, his substance use problems, his extensive offending history from an early age and his repeated failures to comply with supervision.
He spoke of voices making him paranoid, or “Telling me what to do and what to say, telling me to do stuff I don’t want to do, or something that has to be done for the worlds sake. I’m sick of it. I don’t want to be told what to do.” He gave further convincing examples of his auditory hallucinations, telling me that his voices, “Tell me that I have to lie to everyone, and it’s for their own good and not my own.”Most recently he has suffered a relapse of psychotic symptoms as a result of custodial illicit substance use.
There also appears to be a strong link to [HT's] relapses of psychosis and his offending behaviour, including and in particular his sexual offending.
He [the defendant] replied, “yeah I remember that, but they didn’t talk about that anymore. I don’t follow any of that shit. I’m not part of that anymore. I don’t care what black magic they use on me up there in the Top End, I’d rather listen to white man’s law than black man’s law. (He said this latter part with a smile). I’m not influenced anyway by these voices anymore.”
Section 9(3)(d) – Statistical Assessments As To Likelihood Of Persons With Histories And Characteristics Similar To The Offender Committing A Further Serious Offence
2022 RAR. A Risk Assessment Report (“RAR”) has been prepared by Rochelle Pateman, senior psychologist, dated 9 September 2022. Ms Pateman was unable to interview the defendant, who sent a message saying that “I want nothing to do with psychology”. Consequently, an evaluation of the defendant’s attitude to an ESO or his current level of sexual preoccupation, for example, was not able to be properly completed. However, Ms Pateman did have the benefit of other in-person clinical assessments of the defendant conducted over the last seven or so years.In summary, Ms Pateman described the defendant as presenting with complex needs including significant mental illness, personality vulnerabilities, institutionalisation and chronic substance abuse. She also identified that the defendant presented with some treatment resistance regarding residual experiences of auditory hallucinations and his stability was further affected by intermittent substance abuse whilst in custody.
Ms Pateman noted that protective factors included that the defendant had made contact with family members and had been approved for NDIS funding and had commenced engagement with support services. She noted however that family members appear to lack appropriate insight into the defendant’s risk related issues. She noted that the defendant’s early childhood experiences appeared marred by significant neglect, abuse and poor role modelling, culminating in him engaging in substance abuse from a young age and, shortly after, commencing contact with the criminal justice system.
The defendant’s sexual offending history was described as non-linear, which included the targeting of victims from a range of age groups and gender and within their homes and in public places. She described the defendant’s offending behaviour as appearing opportunistic, with minimal planning, and it had exclusively occurred against strangers. Ms Pateman noted that the defendant's offending had also included interpersonal violence. She noted that the defendant’s acceptance of responsibility for his offending and general behaviour fluctuated during his treatment in the SRP:SO sex offending programme in 2014 to 2015. This was characterised by minimising, justifying and shifting the focus of his sexual offending. He was also noted to engage in sexually abusive behaviour towards staff and other offenders, which he denied when challenged. He later acknowledged himself as potentially a high risk of reoffending, labelling himself “captain risky”.
Ms Pateman noted that the defendant’s institutional incident details records were fraught with instances of being assessed as at risk of self-harm and suicidality, actual self-harm, paranoid or bizarre behaviour, appearing to respond to hallucinations, threats to harm or kill others, abuse, threats and intimidation towards correctional staff, property destruction, fighting with other inmates, contraband possession and spitting at staff.
Ms Pateman relied particularly on the assessments conducted by Dr Elliott. She described the defendant’s mental illness as a relatively treatment-resistant psychotic illness, complicated by ongoing substance abuse, antisocial personality traits and institutionalisation. She noted that he had also struggled throughout the years with medication compliance. He was currently prescribed a depot injection of Abilify. She noted that it was possible that the defendant over-reported the occurrence of auditory hallucinations in an attempt to receive secondary gains or minimise his responsibility. She noted Dr Elliott's view that there appeared to be a strong link between relapses of psychosis and offending behaviour, particularly sexual offending.
Ms Pateman stated that, “taking into consideration the defendant’s personality vulnerabilities, inconsistent and at times atypical self-report and conflicting information on file, it is hypothesised that the defendant may at times malinger regarding his psychiatric experiences. This appears to occur in the context of secondary gain or to reduce his responsibility for his sexual offending”.
Ms Pateman referred to the various treatment reports, which are summarised later in these submissions. She noted that during his current incarceration the defendant had not engaged in any offence-specific programmes and had declined participation in HISOP.
Risk assessment. A risk assessment of the defendant is set out from paragraphs [53]-[69] in the RAR. Ms Pateman noted that the last general risk assessment, using the LSI- R assessment, was conducted in February 2017 and the defendant’s risk/ needs were assessed as falling within the high risk category for general and violent offending. The defendant’s risk of sexual reoffending had been assessed previously using an actuarial risk assessment, the STATIC-99R. The most recent assessment was conducted in November 2020. Ms Pittman noted that new terminology is used to describe what was formerly referred to as the ‘high risk’ category and which is now referred to as ‘well above average’ risk, or level IVb. The rate of sexual recidivism for sexual offenders within the routine normative samples who had the same scores as the defendant fell between 37.8 and 50.1% over five years. 99.7% of sex offenders in the routine sample would score below the defendant’s score. The rate of recidivism for individuals with a score of nine (the defendant’s score) was estimated to be over eight times higher than that of the typical sex offender.
The STABLE- 2007 tool was also used to identify stable dynamic risk factors involved in sex offending for the defendant. The scoring of the defendant on the last administered STABLE- 2007 assessment was 16, which suggests a high density of criminogenic needs relative to other male sexual offenders. The areas of clinically significant concern for the defendant were his capacity for relationship stability, impulsivity, poor problem-solving skills, deviant sexual interests, and co-operation with supervision. Other areas of concern noted were significant social influences, general social rejection, lack of concern for others, negative emotionality, sex drive/preoccupation and sex as coping.
Ms Pateman reviewed the most recent STATIC 99R and considered it remained valid. She noted that the STABLE 2007 can be combined with the STATIC 99R to generate a composite assessment of risk/needs. The defendant’s composite risk/needs level, when combining static and dynamic risk factors, was in the ‘well above average’ risk level.
She noted that the defendant's criminogenic needs included substance abuse, a risk factor directly related to his risk of serious sexual violence in general offending; problems cooperating with supervision and engaging in behaviour that adversely impacts on his medication compliance such as illicit substance abuse; limited opportunities to develop interpersonal intimacy skills as a result of spending most of his adult life in custody; engaging in a pattern of impulsive and poorly thought out decisions in both custody and the community relating to his offending; substance abuse, medication noncompliance and lack of stable accommodation.
Ms Pateman noted that the defendant had also recognised that he has poor problem-solving skills. She said that his experiences of negative emotionality and social rejection appear to be exacerbated when in poor mental health, with frequent themes of suspiciousness, paranoia and perceived injustices. She noted that he had a long history of sex offending and sexually inappropriate behaviour in custody and in the community and had also historically reported using masturbation to self-soothe when mentally unwell. He had reported to the PBDS that he used to masturbate 10 times a day, which suggests that it is likely that the defendant had previously experienced sexual preoccupation.
Ms Pateman said that it is difficult to assess the defendant’s current levels of risk related to sexual preoccupation, due to his refusal to engage in the current risk assessment. She noted that in 2020 he was alleged to have been making unwanted sexual advances towards young Aboriginal men in custody, which was indicative of recent sexual preoccupation. The defendant had however reported experiencing a low libido related to his psychiatric medication regime. She noted that a protective factor included his receipt of support under the NDIS.
Ms Pateman considered that the defendant will require ongoing supports and extrinsic motivations to maintain stability in the community and to reduce his overall risk of reoffending. His risk scenario was wide- ranging. The most likely risk scenario for further sexual offending would be an opportunistic and impulsive encounter with a stranger of varying age or sex. She considered that he was most likely to engage in non-contact or exhibitionist sex-offending when in public places, whereas in private locations, such as in the commission of a break and enter or coaxing a potential victim to a secluded location, the defendant would be at an increased risk of engaging in contact sexual offences. She considered that it was possible that future sexual violence could approach the threshold of a serious sexual offence as defined in the Act.
So far as ongoing supervision was concerned, Ms Pateman considered that there were a number of risk management strategies that may or may not apply under an ESO. This included engagement with a psychologist, supporting the defendant to further develop culturally appropriate community supports, scrutiny of social contacts, unannounced home visits and drug and alcohol testing, ensuring compliance with the medication regime, possibly having an updated assessment of his intellectual functioning, and consideration of electronic monitoring equipment. The plaintiff notes that Ms Pateman was not suggesting that these things must be put in place but rather setting out matters that may or may not be imposed under an ESO.
Section 9(3)(d1) - Reports by Corrective Services NSW
[HT] has an unenviable history of poly substance abuse/ addiction issues which present a direct correlation to his offending behaviour. At the time of the offences he stated he was regularly smoking cannabis, drinking alcohol and injecting methyl amphetamine.He admitted to un-prescribed buprenorphine use in custody however says he has not used since commencing the Buvidal replacement pharmacotherapy program several months ago. While he reported stability on this program he noted it seemed to wear off after a couple of weeks and had some unwanted side effects...
He reported in the period leading up to the [serious sex] offence, he was experiencing irrational thoughts and auditory hallucinations despite being treated via monthly injections. He claims to have been using illegal drugs due to unwanted side effects of his treatment.
An RMR has been prepared by Mick Glover, Community Corrections Officer, dated 18 October 2022. It notes that the defendant is currently living in supported accommodation sourced through NDIS funding. Mr Glover interviewed the defendant by phone on 10 October 2022, and he noted that at times the defendant’s understanding may have been compromised by cognitive or mental health issues. When asked to discuss his risks, the defendant only identified alcohol and drug issues. Mr Glover observed that the defendant appeared to have limited insight into the nexus between his drug use and consequent deterioration of his mental health and subsequent increased risk of re-offence. The defendant also disclosed that he had been using pornography.
Proposed risk management strategies include (i) weekly contact with his CCO and unannounced home visits on a minimum monthly basis, (ii) attempting to use behavioural change therapy through various exercises (including managing high risk environments, managing cravings and pro-social lifestyle), (iii) field visits and surveillance, (iv) monitoring associations, (v) electronic monitoring, and (vi) future psychological risk management intervention.
Other engagement/supervision contemplated includes a curfew and schedule (in order to develop a routine), accommodation requirements and supervision, place and travel restrictions (including not visiting a place where persons under 18 reside), finance/expenditure monitoring, employment monitoring, alcohol, drugs and weapons possession conditions, non-association conditions (including with children), internet/social media conditions to permit associations to be monitored, search and seizure relating to compliance with the ESO and associations, and conditions enabling directions to be given concerning engagement with psychology services and community mental health clinicians.
So far as electronic monitoring is concerned, Mr Glover pointed out that there is no requirement for this as part of the defendant’s current parole. He suggests however that under an ESO it would assist in monitoring adherence to the schedule of movements and enable audits to be conducted to identify any concerning patterns in his behaviour, as well as monitoring his whereabouts.
Section 9(3)(e) - The Defendant’s Participation in Treatment and Rehabilitation Programs
The defendant has previously engaged in Alcohol and Other Drug Treatment (Relapse Prevention) within CSNSW custody. He has reportedly attended individual AOD counselling in Tamworth (possibly in 2001) and Lithgow (2003) as well as completing a group Relapse Prevention Program in Lithgow (2003). He has also completed the One Day Alcohol and Other Drug Program and the Getting SMART Programme at Grafton (in 2006 and 2007 respectively). He has also completed the Anger Management Program at Grafton Correctional Centre.CUBIT treatment. The defendant was offered a place to in the CUBIT (sex offenders therapy program) in 2007, however refused due to characterising himself as a victim of childhood sexual abuse and stating that he did not want to associate with paedophiles.
The defendant subsequently accepted a second offer to participate in CUBIT in September 2013 and his engagement “varied, reflecting the effects of acute mental health symptoms, personality traits and fluctuating motivation”. His input was characterised as demonstrating “a superficial understanding of concepts discussed” and his disclosure regarding sexual regulation and mental health symptoms “varied depending on his audience”, with conflicting reports being made to CUBIT psychologists and Personality and Behavioural Disturbances Unit (“PBDU”) staff. The defendant was assessed as actively mentally unwell during sessions, “consumed by recalling the details of delusions ... responding to external stimuli”, and on 30 January 2014 it was decided that his mental health symptoms, coupled with his difficulty in understanding the program concepts, merited suspension of his treatment.
On 21 May 2014, the defendant re-commenced CUBIT at MSPC, but was suspended on 23 May 2014 after two sessions when he touched the skirt of an education officer.
SRP: SO treatment. The defendant took part in the Self-Regulation Program: Sex Offending (“SRP:SO”) between 10 November 2014 and 12 November 2015. In the course of the program, the defendant’s intellectual functioning was assessed. His verbal comprehension index and his perceptual reasoning index scored in the low average range of intellectual functioning.
The defendant’s understanding of concepts was described as “superficial” and he was observed to lack an understanding of treatment terms. During participation in the SRP: SO he was receiving depot anti-psychotic medication, however he continued to report experiencing auditory hallucinations. The defendant was noted to make threats of violence to staff and other program participants, with staff querying whether this behaviour was calculated to “avoid treatment or be removed from the therapeutic ward due to interpersonal difficulties with other offenders (e.g., problems related to owing other offenders tobacco or other products).”
The defendant was noted to have frequent absences from sessions due to sleeping in (as a result of reported insomnia in the lead up to his fortnightly dose of anti-psychotic) or complaints of nausea, complaints which were difficult to verify in terms of accuracy due to his “pattern of excusing himself when group discussions related to other group members’ offences”, which the defendant had reported that he had “difficulty listening to”.
The defendant was also noted to provide contradictory information to different people, which the authors of the Treatment Report opined could be caused by (1) a lack of self-awareness; (2) attempts at manipulation; (3) altering information based upon the audience, e.g., expressing disgust for homosexual behaviour in-group but articulating homosexual fantasises and behaviour with other participants during individual contact; and (4) engagement in positive impression management.
The authors concluded that:
“The defendant’s sexual offending and sexualised behaviour in custody would indicate long-standing difficulty with regulating his sexual urges. [The defendant] acknowledged becoming fixated on sex (“I was sexualising everything”) whenever released from custody, experiencing arousal to exposing his genitals, and using masturbation to soothe himself when experiencing symptoms associated with his mental health. Much in the same way that instability in his mental health impacted negatively on [the defendant’s] ability to regulate his emotions and general behaviour, poor mental health tended to result in [the defendant] being more sexually impulsive; hence acting upon deviant sexual urges that he could more successfully inhibit when mentally well.”
During his participation in the program, despite denying any issues with sexual self-regulation, the defendant:“... [acknowledged] engaging in sexual behaviour with another member of the therapeutic wing, [exposed] himself to another offender, pornography [was] discovered in his cell by custodial staff, and [disclosed] masturbating to sexual thoughts about a male therapist”.
The defendant was placed on a behavioural management plan during his participation in the program, to assist him in increasing his compliance with supervision, however it proved to be ineffective, with the defendant continuing to breach conditions of the plan, wing guidelines and correctional centre routine throughout treatment. The authors of the report noted that “Reprimands for non-compliance with rules appeared to have limited consequence for [the defendant], and his constant rule breaking seemed to have the effect of fatiguing staff to the point that they no longer took notice of minor rule breaking”.
Key warning signs for elevated risk for the defendant were noted to be unstable mental health, drug and illicit substance abuse, rejection of supervision and sexual pre-occupation.
The report-writers also noted that:
“ The defendant has pattern [sic] of deceiving or lying to staff in an effort to obtain things that he wants which he may not be entitled to. All staff involved in his case management are encouraged to regularly converse so that instances of deceit can be detected and addressed. [The defendant] then benefits from being encouraged to distinguish between needs and wants, or seek his needs in less manipulative ways”.
Proposed HISOP treatment. The defendant has been described as resistant to engaging in HISOP and has not participated in any further treatment during his most recent period of incarceration. On 21 May 2021, the defendant declined an offer to participate in HISOP, citing “various issues including association issues, recent deaths in the family, auditory hallucinations and fearing for his life”.
Involvement with the Personality and Behavioural Disorders Service (“PBDS”). The defendant was referred to the PBDS on 10 January 2010 as a result of his continuing difficult institutional behaviour. In a behavioural assessment dated 28 July 2010, PDBU staff confirmed the previous diagnosis of Antisocial Personality Disorder made by Dr Delaforce on 6 October 2000. The behavioural assessment identified the following behavioural functions exhibited by the defendant in order of prevalence: forcing others to change their mind, for compliance; conduct motivated to obtain a tangible object (e.g. cigarettes); sexual gratification; behaviour motivated to avoid a particular demand; and expressing interpersonal difficulty as being disrespected or being treated unfairly.
The authors of the report stated:
“The defendant appears to have a very low tolerance for not getting his needs met immediately ... [and] appears to have an expectation that people in his environment should meet his needs and finds it very difficult to cope with refusal of requests of delays in meeting his requests ... he tends to react impulsively with anger or aggression when others do not comply with his expectation.
From analysing his sexual offences, the defendant also appears to have an expectation that others should meet his sexual needs as well. There is also some suggestion that he may derive sexual gratification from imposing his sexual behaviour upon others”.
The defendant completed the Personality Assessment Inventory (“PAI”) on 22 January 2001 and again on 22 November 2007. The first PAI returned a profile of someone “who might be described as pragmatic, independent, competitive, confident, egocentric, mistrusting and suspicious of others.” The second PAI profile was invalid due to [HT] reporting “an unusually high and unlikely, number of negative symptoms”, which was observed to be consistent with “a tendency to think in categorical terms”.
The defendant has also reportedly completed a number of educational courses in custody, including in Aboriginal Arts and Cultural practices, general construction OHS, and an introductory cleaning course. In one of his sentence proceedings, the defendant claimed to have completed a carpentry course in custody.
The defendant has completed the Work Readiness in Education (WRED) program, which allowed him to gain employment within the gaol setting in April 2013. He has engaged in sporadic employment whilst in custody, with a note that he was employed as an activities sweeper for a time in 2003 at Lithgow Correctional Centre. He was employed for four months in Buy Ups/Canteen in 2018 and for one month in 2019, although internal movement impacted upon his capacity to continue this employment. He was also employed as a Grounds and Hygiene General Hand for a few months in 2020 before being transferred.
Section 9(3)(F) Compliance With Obligations While On Parole
The defendant’s response to community supervision has been very poor. The defendant’s first breach of probation occurred in December 1996, as a juvenile. He was then dealt with for breach of a community service order in December 1996. On his release from custody on 30 November 1999 for break, enter and steal, the defendant failed to comply with his post-release arrangements, which included a move to Sydney to take up an Aboriginal football scholarship, and instead moved to Coffs Harbour to live with his father. He re-offended sixteen days after his release by committing a further break, enter and steal and enter with intent offence, resulting in the revocation of his parole order on 1 January 2000.Having served a non-parole period for that offence and following his release to parole on 5 December 2002, the defendant re-offended within thirteen days on 14 December 2002 by committing the offence of assault occasioning actual bodily harm. He returned to custody on 18 December 2002 and his parole was formally revoked on 13 February 2003.
The defendant was then released to parole on 28 October 2003 and his subsequent response was described as “unsatisfactory”. He failed to report on numerous occasions, was living an itinerant lifestyle, failed to comply with directions, and, and when he did report on 5 December 2003, his Community Corrections Officer formed concerns that the defendant was substance affected due to his bizarre behaviour, in which he stated that he was having problems “controlling lustful thoughts”. The defendant’s parole was formally revoked on 18 December 2002 as a result of these failings and he was returned to custody on that date.
The defendant was released to parole on 29 October 2003 and returned to custody on 12 July 2004 to serve the balance of his parole as a result of being charged with destroy/damage property (two counts) and receive/dispose of stolen property (one count), offences which occurred on 1 July 2004.
The defendant was released to parole in relation to the aggravated robbery on 31 March 2009. He was paroled to live with his ex-partner and their two children. During his time on parole, he was encouraged to make appointments with a psychologist or therapist, however he did not do so. He subsequently reported that he “did not cope ... and commenced abusing alcohol and other drugs.” The defendant then re-entered custody on 1 May 2009 as a result of the commission of the 2009 break and enters (and where obscene exposures, acts of indecency and stalking were taken into account) in breach of his parole, and served balance of parole between 30 April 2009 and 18 December 2010.
The defendant was eventually paroled on 5 February 2016 to the Nunyara Community Offender Support Programs (“COSP”). A Breach Report dated 22 March 2016 noted that, whilst the defendant had breached his parole conditions by testing positive to cannabis on 29 February 2016, he had been “generally compliant with supervision” and therefore revocation was not recommended. He tested positive to cannabis and amphetamine on 14 March 2016 and left the Nunyara COSP on 24 March 2016 to reside with his uncle and aunt in Kempsey. He admitted to a Community Corrections psychologist on 5 April 2016 that he had engaged in further cannabis use since his arrival in Kempsey and was refusing alcohol and drug counselling at Durri Aboriginal Medical Service. As a result, a breach warning was issued on 7 April 2016.
On 5 April 2016, the defendant tested positive to cannabis and methylamphetamine and was noted to have “expressed a degree of ambivalence regarding meaningful redress of his substance abuse issues and also articulated difficulty in coping with conditional liberty. In addition, he intimated some difficulty in self/sexual regulation.” He reported that his uncle was permitting his cannabis and alcohol use and had arranged a sexual encounter for him. The defendant reported that he “liked being stoned” and was unable to decline offers to take illicit drugs. He also reported “becoming sexually aroused when in the company of some females but had not acted on his urges”.
Revocation of parole was sought on 14 April 2016, and the defendant returned to custody on 26 April 2016, where he remained until the expiry of his sentence on 7 July 2016. He was released from custody on this date and apparently “lapsed into substance abuse and was associating with negative peers immediately following his release”. [HT] then entered custody on 14 September 2016 as a result of the commission of the index offences. He has been in custody since this time, until his parole on 23 September 2022.
Section 9(3)(g) Compliance with Obligations under the Child Protection (Offenders Registration) Act 2000 NSW
Section 9(3)(H1) Views Of The Sentencing Court
Section 9(3)(I) Any Other Information Available As To The Likelihood That The Offender Will Commit A Further Serious Offence
The defendant has an extensive history of drug and alcohol abuse, commencing when he was 14 years of age with heavy cannabis and alcohol use. At the age of 19, he dabbled in ecstasy use and was apparently using ecstasy at the time of committing H8870843, the offences in which he, inter alia, exposed himself to women in the street and broke into a home, unzipped the fly of his pants, and said to the female victim, “You know what I want”. In around 2016, he commenced using methylamphetamine in conjunction with alcohol, which he replaced with unprescribed Buprenorphine when he entered custody. The defendant’s Buprenorphine abuse ceased in custody upon his being placed on the Buvidol program in April 2020, but he reported using intravenous unprescribed Suboxone in custody in January 2020, as it reduced the intensity of his auditory hallucinations. He has also reported abusing Suboxone during his previous 2009 – 2016 period in custody, as well as intravenous methadone and heroin.The defendant had apparently been using intravenous drugs in custody between 21 November and 4 March 2022, with records indicating that he was found with gaol-made needles and requiring medical treatment for infected injection sites. In June 2021, he was found on two occasions smoking Buscopan in his cell and his urine subsequently tested positive for cannabis.
The plaintiff notes that, as at 29 September 2022, the defendant was prescribed 128mg of Bivudal (buprenorphine) monthly in the community, with an apparent intention to reduce this dose in the future. This is also referred to in an NDIS Service Model Assessment dated February 2022, which endorsed the use of alcohol and other drug counselling and rehabilitation.
Since release to parole, on 10 November 2022 the defendant was found to have used the search term “teen porn” on his browser and was informed that he could not search for that subject matter. Following the death of his father in November, the defendant self-reported experiencing auditory hallucinations including believing someone was breaking into his home, as a consequence of which he armed himself with a knife. later he experienced a hallucination about needing to masturbate to stop a young girl from being tortured. He also advised that he was not able to maintain an erection.
Section 5B(d): Conclusion in Preliminary Hearing
...drug and alcohol rehabilitation (given that it may be considered to contribute to destabilising and/or disinhibiting the defendant’s mental state), intensive supervision and engagement in pro-social activities, maintenance and monitoring of his mental health and medication compliance, ongoing psychological intervention for his issues underlying his sex offending, social and cultural community reintegration, and monitoring of the defendant for signs of increasing sexual preoccupation.
Discretion to make an ISO
CONDITIONS
Relevant Principles
44 i) Having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however this right is not absolute: State of New South Wales v Donovan [2015] NSWSC 1254 at [83].ii) In imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [68].
iii) A relevant consideration in imposing conditions is that a breach gives rise to criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].
iv) Conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53].
v) Conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36] to [38].
vi) Conditions must not be unjustifiably onerous or punitive, “[n]either may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision”: State of New South Wales v Bugmy [2017] NSWSC 855 at [89].
vii) Conditions “must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice”: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].
viii) To ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [129]- [131].
[119] The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 (“Wilde”) held that s 11 vests the Court with a “broad” discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). As mentioned, the purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).[120] Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to “facilitating rehabilitation” even when they do not personally require an offender to “undertake” rehabilitative steps (at [49]).
[121] The Court of Appeal further held at [53]-[54]:
[53] Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.
[54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a ‘demonstrated’ link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30)12 provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant’s serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant’s association with such groups.
[112] During the final hearing, submissions were advanced by the defendant as to State of New South Wales v Sturgeon (No 2) [2019] NSWSC 883 (“Sturgeon”) at [99]:
[99] The bases upon which conditions are to be regarded as appropriate have been discussed in many cases. It seems that the following matters are regarded as relevant in determining what conditions ought be imposed:
(1) an appropriate condition may be one which constrains particular conduct, or else imposes positive conduct obligations which are to be fulfilled: Attorney-General for NSW v Tillman [2007] NSWCA 119 at [10];
(2) the imposition of conditions involves striking a balance between relevant considerations so as to provide an outcome which is “fit and proper”: State of NSW v Ali [2010] NSWSC 1045 at [88]; State of NSW v Fisk [2013] NSWSC 364 at [96];
(3) as a breach of a condition has the consequence that an offence is committed, for which a term of imprisonment of up to 5 years may be imposed (s 12 of the HRO Act), there is a need for a proper basis to be demonstrated for a condition to be made in the first place: Ali at [88]; Wilde v State of NSW [2015] NSWCA 28 at [48];
(4) ordinarily, it will be necessary for any condition which is imposed to be related to the mitigation of the identified unacceptable risk which led to the Court’s conclusion that the person was a highrisk offender: State of NSW v Burns [2014] NSWSC 1014 at [59]; Wilde at [53];
(5) any condition attached to an ESO must address issues relevant too identified risk factors in relation to future commission of serious offences and not criminal offending generally: State of NSW v Green (Final) [2013] NSWSC 1003 at [36]- [38]; Wilde at [45];
(6) any condition which is imposed is not to be unjustifiably onerous or simply punitive: Green at [37];
(7) a condition cannot be simply an expression of the State’s paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense, or because it might be a convenient or resource-efficient means for the Department exercising supervision under the ESO: State of NSW v Bugmy [2017] NSWSC 855 at [89].
[123] Counsel for the defendant placed particular reliance on (4), as appears within the above extract from Sturgeon, in conjunction with the principles of Wilde to contend that for each condition imposed “there must be some sort of identification of the unacceptable risk and how that condition goes to it”.[124] In light of that submission, I turn to the decision of Button J in State of NSW v Farringdon [2018] NSWSC 874 (“Farringdon”). In Farringdon, the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements.
[125] In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant reoffending “and thereby aiding his rehabilitation” (at [37]). In applying the “test” set out in Wilde at [53]-[54], his Honour bore in mind “that one can expect the ‘Departmental Supervising Officer’ (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion” (at [46]).
[126] His Honour imposed the disputed conditions for the reasons outlined at [47]-[58]. Button J held (at [59]):
[59] ...Those of them that do not directly relate to his prior offending do nevertheless relate to preventing its recurrence indirectly, in my opinion. As I say, I am relying upon his DSO to exercise his or her discretion with regards to them in a practical and common sense way.
[Original emphasis.]
[127] With respect, I accept Button J’s statement of principles in Farringdon.
Adoption of parole conditions?
ADDITIONAL CONDITIONS12. You must abstain from alcohol.
13. You must not use a prohibited drug or substance, except those that have been prescribed to you.
14. You must, if so directed by your Officer, participate in the following intervention, CSNSW Psychology.
15. You must comply with all directions of the mental health team, including treatment and medication (and if applicable, the conditions of a Community Treatment Order).
16. You must not contact, communicate with, watch, stalk, harass or intimidate the victim/s.
17. You must comply with all conditions and requirements of the Child Protection Register.
18. You must not contact, communicate, or associate with your co-offender/s, without the express prior approval of your Officer.
19. You must not frequent or visit the Glen Haven Motor Inn, Glen Innes.
Core supports – maintain accommodation and access the community.Capacity Building Supports – improved daily living (Occupational Therapist), improved relationships (specialist behaviour intervention support), increased social and community participation (living skills development) and support coordination. (RAR, [80]).
a. Through his ongoing compliance, it is clear that the defendant understands his parole conditions, the manner of their enforcement and his responsibilities pursuant to those conditions. Unnecessarily changing those conditions risks the defendant inadvertently or accidentally breaching the order.b. The conditions sought by the plaintiff are far more onerous and restrictive than the current parole conditions. This regression in the defendant’s freedoms, without any connection to increased risk, is unfairly arbitrary and runs the risk of discouraging the defendant from future positive engagement with any order. If the defendant was to disengage with his own rehabilitation, it assists neither object of the Act as contained in s.3.
[6] [F]irst, the current parole conditions directly and adequately address any risk to the community presented by the defendant. Secondly, and significantly, they have a simplicity and clarity which the constellation of conditions proposed by the plaintiff do not. Thirdly, they are not overly paternalistic or inflexibly prescriptive. Fourthly, they are able to be understood and followed and they seem to have been functioning adequately over the last two weeks. Fifthly and importantly, they do not tend to unnecessarily criminalise uncontroversial and irrelevant elements of potential behaviour by the defendant. Sixthly, they tend to facilitate the necessary pursuit of the objects of the Act, the primary object of course being protection of the community, but the secondary object of rehabilitation of the offender which in turn has a role in increasing and improving the potential safety of the community.
[86] In my view, specific conditions as to particular matters can be a useful way by which different aspects of the risks which an offender poses can be addressed. Not only do they make clear to the offender what conditions are imposed upon him by the order, they also make clear to those supervising him, both the extent and limits of the broad discretion which condition three would otherwise give them, as to those matters. They also make clear to any other reader of the Court’s order, a police officer for example, the conditions which have been imposed as to identified matters.
Disputed Conditions
Conditions 5 and 5A
5. Subject to condition 5A, the defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.5A. The defendant is not required to wear electronic monitoring equipment unless he is directed to comply with condition 5 by a DSO. A DSO may direct the defendant to comply with condition 5 if any of the following occurs:
i. The defendant is charged with an offence of breaching the ISO or the ESO, or with a serious offence or an offence of a sexual nature as defined under the Act; or
ii. The defendant is charged with a serious indictable offence involving violence;
iii. A DSO is reasonably of the opinion that condition 5 is needed due to a significant increase in the risk of the defendant committing a serious offence as defined under the Act.
Conditions 6, 7 and 8
The defendant is not required to comply with conditions 6, 7 or 8 during the currency of any ISO or ESO except that all of these conditions will reapply if at any time the defendant refuses to be supported by service providers in accordance with his National Disability Insurance Scheme (“NDIS”) package or the defendant refuses to continue to engage with and accept the assistance of his available NDIS service providers.
Condition 10
Condition 13
13. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.
13. The defendant must promptly notify a DSO of any visitor under the age of 18 entering and remaining at his approved address and must not permit any person under the age of 18 to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.
Condition 22
Conditions 40, 44, 45 and 46
40. The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind....
44. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.
45. The defendant must not delete or edit any communications, applications or search history from his phone, computer or any electronic device or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.
46. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.
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Amendments
22 March 2023 - Judgment amended to use the pseudonym “HT” in reference to the defendant.
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URL: http://www.austlii.edu.au/au/cases/nsw/NSWSC/2023/249.html