Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Jones (Preliminary) [2021] NSWSC 378 Hearing dates: 13 April 2021 Date of orders: 16 April 2021 Decision date: 16 April 2021 Jurisdiction: Common Law Before: Hamill J Decision: The Court makes the following orders: (1) An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): (a) Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant, as the case may be, and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court; (b) Directing the defendant to attend those examinations. (c) The parties are to agree on the identity of the experts by 5.00pm on Monday, 19 April 2021. (2) An order pursuant to ss 10A and 10C of the Act that the defendant be subject to an interim supervision order for a period of 28 days from midnight, 28 April 2021, being the date upon which the defendant is to be released under the current detention order. (3) An order pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in Schedule A to this judgment. (4) An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. (5) Releasing the submissions of the parties, as redacted by agreement, in accordance with the media's request. Catchwords: CRIMINAL LAW – serious sex offender – preliminary hearing – whether an interim supervision order or interim detention order should be made – conditions proposed to mitigate risk Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Cases Cited: Attorney General for New South Wales v Tillman [2007] NSWCA 119 Jones v State of New South Wales [2020] NSWCA 202 State of New South Wales v Jones [2018] NSWSC 459 State of New South Wales v Jones (Final) [2020] NSWSC 461 Category: Procedural rulings Parties: State of New South Wales (Plaintiff) Michael David Jones (Defendant) Representation: Counsel: D New (Plaintiff) A Hughes (Defendant) Solicitors: Crown Solicitors' Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2021/81223 Publication restriction: Access to the Court file is restricted. Judgment 1. This matter is a preliminary hearing pursuant to s 7(3) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the CHRO Act"). The proceedings were commenced by summons filed by the State of New South Wales on 23 March 2021. The State seeks final relief pursuant to s 17(1)(b) of the CHRO Act, that the defendant be subject to a Continuing Detention Order ("CDO") for a period of two years. In the alternative, the State seeks an Extended Supervision Order ("ESO") for a period of five years pursuant to s 17(1)(a) of the CHRO Act. The defendant is currently subject to a CDO pursuant to a decision made by Ierace J on 29 April 2020 and upheld by the Court of Appeal in September 2020: State of New South Wales v Jones (Final) [2020] NSWSC 461; Jones v State of New South Wales [2020] NSWCA 202. The CDO will expire on 28 April 2021. I note, in passing, that the defendant is also subject to a sentence of 12 months' imprisonment which will expire on the same date. 2. At this stage the State seeks interim and interlocutory relief as follows: "1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant, as the case may be, and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court; Directing the defendant to attend those examinations. An order pursuant to ss 18A and 18C that the defendant be subject to an interim detention order for a period of 28 days. An order pursuant to s 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the period specified in paragraph 2 above. In the alternative to paragraphs 2 and 3 above: An order pursuant to ss 10A and 10C of the Act that the defendant be subject to an interim supervision order for a period of 28 days from the date of the order; and An order pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this Summons." 1. The State also sought the following order at prayer 8 of the Summons: "An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access." 1. The defendant does not contest, at least at the interim stage, that the statutory prerequisites for the making of such orders are established. However, it is for the Court to be satisfied, based on the evidence, that those prerequisites are established and that the orders sought by the State should be made. The defendant submits that he should be subject to the alternative form of relief and orders sought by the State, that is, that he should be subject to an interim supervision order rather than an interim detention order. There are also some relatively minor controversies surrounding the precise terms of the conditions of any supervision order. 2. I am satisfied that the legislative prerequisites required for the making of either an interim detention order or an interim supervision order have been established in accordance with ss 5B(d) and 15(4) of the CHRO Act. In particular, I am satisfied that the defendant's current custody will expire before the proceedings are finally disposed of: see, ss 10A(a) and 18A(a) of the CHRO Act. 3. I am further satisfied that the matters alleged in the supporting documentation tendered before me on the preliminary hearing would, if proved, justify the making of an ESO or CDO: see ss 10A(b) and 18A(b) of the CHRO Act. To reach the conclusion as required by ss 10A(b) and/or 18A(b) it is necessary to make a prediction as to the possible outcome of the final hearing. The judge presiding over the final hearing will be required to make decisions pursuant to ss 5B and 5C of the CHRO Act and, critically, will be required to determine whether they are "satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence" if not kept under supervision or in detention under the order. In reaching that conclusion, the Court will be required to take into account the fact that the primary purpose of the CHRO Act is to protect the community from further serious offending. The Court, in reaching its conclusion, will be required to consider the matters set out in s 17 of the Act. 4. The Court will also be required to consider a secondary aspect or objective of the Act, namely the facilitation of the rehabilitation of the defendant. However, that objective will be subsidiary or secondary to the primary objective of the CHRO Act and the making of such orders. In making an assessment of the risk, and whether it is an unacceptable risk, the Court will not be engaged in the exercise of an assessment of probability per se. Rather the Court will need to consider the potential ramifications of the risk manifesting itself, which in this instance, as will presently be demonstrated, could be catastrophic. In reaching its conclusion, the Court will not be permitted "to consider the ability to take action for a breach of the order" in deciding whether there is an unacceptable risk of the offender committing further serious offences: s 17(5) of the CHRO Act. 5. If the Court reaches that level of satisfaction, the Court will retain a discretion to decide whether any order should be made and whether the order should entail the continued incarceration of the defendant or whether he should be subject to a supervision order. 6. Based on the material tendered at the preliminary hearing, I am satisfied that an order of one form or the other would be justified. The reasons for that conclusion will be obvious to anybody who familiarises themselves with the material in Exhibit A. 7. The defendant is a paedophile. He has committed extremely serious offences against children over a number of years. In her helpful written submissions, counsel for the State, Ms New, summarised the defendant's criminal history in the following way: "40. In summary, the defendant's persistent offending has involved at least nine known victims, all aged between 11 and 16 years old. 41. The defendant committed serious sex offences in 1988 and served 7 years' imprisonment (non-parole period of 4 years) which commenced in 29 November 1991. In 1993, while in custody, the defendant was implicated in a paedophile ring. In 1997, while on parole, the defendant groomed a 14-year-old boy and was returned to custody. In 1999, less than a year after the defendant was released to the community, unconditionally, the defendant committed further serious sex offences (and was charged with two counts of persistent child abuse, an offence under s 66EA of the Crimes Act) for which he was sentenced to 14 years' imprisonment, commencing on 10 September 2004. The victims were an 11-year-old boy and a 14-year-old boy. 42. While in custody between 2004 and 2017 the defendant was found with lists of boys' names or coded lists and numbers, list[s] of names of young males in the same wing as him and magazine cut-outs of children. 43. When released to parole in 2017 the defendant knowingly and deliberately disobeyed directives. After deleting the Facebook application and being told not to use social media applications or tamper with his mobile phone, the defendant reinstalled the Facebook application to his mobile phone and deleted content from the mobile phone. The defendant used Facebook to contact three boys under the age of 16 years: one message wishing a boy happy birthday with an emoji of teddy bear. The defendant also communicated with that boy on his mobile phone but deleted the messages." 1. This criminal history is set out in more troubling detail in the judgment of Justice Adams when her Honour made a CDO in 2018, [1] and in the judgment of Justice Ierace when his Honour made a similar detention order in 2020. [2] There is no need to repeat the detail recounted by their Honours, although it is important to record that the defendant's earlier offending was of an extremely serious nature, involving the sexual abuse of a number of children and that there is a significant degree of consistency in the nature and seriousness of the defendant's crimes. They demonstrate a disturbing lack of empathy and an inability to control his paedophilic sexual urges. 2. While there have been some positive signs in the defendant's engagement with counsellors and others, there is nothing in the evidence that suggests that his paraphilia and paedophilic tendencies are likely to diminish in the foreseeable future, if at all. Further, there is little evidence that the defendant has any genuine insight into his condition or empathy for the victims of his crimes. 3. Having said that, it is clear that there are some encouraging signs in relation to his "rehabilitation". I use that word cautiously because his sexual deviance is unlikely to resolve and his rehabilitation turns on his ability to control and supress the sexual desires driven by his chronic paedophilia. 4. Putting aside the defendant's "contact" offences against children, he has also demonstrated a persistent interest and fantasy in having sex with children over the last few years. This has manifested itself in repeated and serious breaches of both conditional liberty and the criminal law. This offending and these transgressions have continued even when the defendant has been subject to orders under the CHRO Act. Again, to borrow from the helpful submissions of Ms New, she summarises the defendant's "further offending since the imposition of the first continuing detention order" as follows: "5. On 23 November 2018, while on the first CDO the defendant was charged with two offences under s. 91H of the Crimes Act 1900 (NSW) (the Crimes Act) for possession of 'child abuse material'. The defendant authored handwritten stories where he describes raping young boys or set out circumstances where young boys are raped. On 8 February 2019 Magistrate Kennedy convicted and sentenced the defendant to two years' imprisonment (non-parole period of 18 months) to commenced from 9 June 2018. The non-parole period expired on 8 December 2021. 6. On 31 January 2020, the defendant was released to a 7-day interim supervision order (ISO). Departmental Supervising Officers (DSOs) invited the defendant to declare any material that [would] contravene the ISO conditions. The defendant disclosed that he had TV Week Magazines which had pictures of children in them. The DSO searched the defendant's possession and found handwritten documents which contained recognised names of primary schools in the Northern Beaches area and a list of boys' names with numbers alongside seeming to be the primary school year associated with the name of the child. The names appeared, to the DSO, to be modern. The DSO also observed the defendant secret some letters in his pocket. When the DSO saw the letters, the DSO formed a view they were in code. 7. On 3 April 2020, while on the second CDO, the defendant was charged with an offence under s. 91H of the Crimes Act for producing child abuse material. Similar to the authored child abuse material on the first CSO, the defendant wrote about the persistent sexual abuse of boys at school through acts of oral and anal sexual intercourse. 'Michael' was the protagonist, portrayed as the protector of the abused children that were gang raped by other adults. On 10 December 2020 the defendant was convicted and sentenced to 12 months' imprisonment to commenced from 29 April 2020 (expiring 28 April 2021). 8. On 28 January 2021, the defendant was charged with two offences under s. 91H(2) of the Crimes Act for writing and possessing material that is child abuse material (the 2021 charges). The Police facts state: a. On 11 January 2021, a correctional officer searched the defendant's cell and located handwritten documents, which, on a preliminary review, contained sexually explicit stories. The defendant confirmed the documents were his; b. On 12 January 2021, a further search of the defendant's cell was conducted, and the correctional officer found more handwritten notes inside several envelopes; and c. Approximately 200 pages (double-sized) of material were seized. The protagonist is referred to as "Michael", "Daddy" or "Jonesy", "Michael Jones" or "Mr Jones". The writing sets out the protagonist having sexual intercourse with children as well as children having sex with each other. 9. The defendant has pleaded not guilty to the 2021 charge. The matter is next listed for reply mention [at] Newcastle Local Court on 8 April 2021." (Footnotes omitted.) 1. Again, the sordid and disturbing detail of these incidents is set out elsewhere in the material. 2. That material will amply justify the making of an order at the final hearing and hence I am in a position where an order under the CHRO Act must be made on an interim basis. As I have said, the dispute between the parties at this stage is whether an interim order should involve the defendant's continued detention or a form of heavily supervised release. 3. The defendant relies on the contents of a risk assessment report in which the author, a forensic psychologist, Mr Ardasinski, expresses the following opinion: "Little has changed in his situation since 2018, when he was found to pose so grave a risk to community safety as to warrant preventive detention on a CDO. In my assessment of Mr Jones, he was still unable to articulate fully why it was wrong to sexually abuse young boys, except that it was against the law. However, it has been 20 years since his last serious sex offence, and further intervention in custody has been considered by his treating psychologist to be less efficacious in moderating his risk than intervention conducted in the community." 1. Mr Ardasinski also said: "While the progress notes tracking Mr Jones' progress through the stages of CSC [Cognitive Self-Change] indicate that he is engaged and participating well in the process, in interview with me when I asked Mr Jones to describe the process to me and what he had been learning in these intervention sessions, his response suggested that his ability to explain his understanding of the concepts he has been learning for the past two years is still relatively rudimentary. He said he was up to stage three: 'putting into practice the different thought processes… If I keep thinking like that, I will end up back in gaol (which I don't want to do)… Only way to avoid returning to gaol, is to lead a lawful life – if I am doing that, I am not offending'. He gave an example which appeared to be around self-management planning and having supports in the community to help him avoid offending rather than running through how he would change his internal thinking. However, perusal of his treatment progress notes is encouraging and if Mr Jones was able to follow-up with this progress in a community setting, with more active 'live' risk issues being present and being able to be processed in sessions, this would provide a meaningful mechanism to genuinely moderate his risk of repeat sexual offending." 1. Counsel for the defendant also relied on the opinions provided by the defendant's treating psychiatrist, Dr Parker. That includes the contents of a report dated 22 July 2019 in which the psychiatrist made the following observation: "Mr Jones is a 54 year old man with a long-standing history of sexual offences against boys. His high scores on actuarial risk assessment instruments and his persistence in continuing to seek out children after numerous court interventions, and while taking anti-libidinal medication causes great concern. However, he has engaged appropriately in treatment and has some alternative thinking patterns he could use to avoid further offending. Whether these thinking patterns are robust enough is something that can ultimately, only be tested in the community." 1. One problem with the defendant's reliance on this opinion is that it would seem, as submitted by the State, that Dr Parker was not provided with all of the relevant information at the time of providing his opinion. The material suggests that the defendant was not completely honest with Dr Parker. Even whilst engaging with him on what appears in retrospect to have been a superficial basis, the defendant continued to engage in writings which demonstrated a profoundly dysfunctional and perverted sexuality. 2. Some of that (additional) material was brought to Dr Parker's attention before he gave evidence in the proceedings before Justice Ierace in April 2020. Dr Parker's evidence is set out at [52] of Justice Ierace's judgment: "Dr Parker gave short evidence in the hearing of this matter, the effect of which was that he had read some of the material that is the subject of the current charges and believed that he had a good understanding of the nature of it. The charges had not changed his opinion that he supported the defendant being subject to an ESO. He said: 'Q. And you are aware that some documents were found in his possession on 1 February when he went into the Campbelltown ISC? A. Yes, I am. Q. Do those developments change your opinion? A. No, the process that I am going through … the risk of offending really only produces right near the end of the process … when someone is competent it is step 3, it is … what, providers often talk about if someone is showing insight into their problems … and the problem with that … is that it is not enough to avoid re offending. What is needed to avoid re offending is a really well practiced script to deal with all the situations in the day-to-day moments so that I wouldn't expect his risk to reduce until he was quite competent in step 4, so until then the risk is basically unchanged. Q. But is it your view that the risk can be managed on an extended supervision order? A. The type of offending he does and taking the differences between the types of offences recently, so the produced child abuse material, I think for looking at specifically getting to a serious sexual offence in something involving contact with the child, the supervision mechanisms with an ESO, with … relatively tight conditions, would reduce the risk of that happening quite substantially, nothing can eliminate it. He may still do offences like produce child pornography and offences of a similar ilk, obviously the … process I am doing aims to reduce the risk of both of those occurrences, but I believe that a tight ESO with schedules of movement, electronic monitoring and arrangements, sensible conditions, would be able to contain the risk. It doesn't do anything for the long term, but the aim is … if we get him competent in step 4, then that reduce[s] the long term risk, but in the meantime, prior to that, the ongoing risk remains the same, but I believe an ESO can suppress the likelihood of further offences. Q. So to be clear, is it your view that you support an ESO? A. Yes, I do.'" 1. In spite of those opinions, Ierace J concluded that the kinds of conditions upon which the defendant would be supervised (which, in essence, amounted to home detention except when Mr Jones was accompanied by his DSO) were not practicable. The only realistic alternative was to impose a further CDO. 2. Counsel for the defendant also relied on the fact that there had been no "contact" offences for a period approaching 20 years. That submission emphasises that no actual children have been interfered with by the defendant since October 2001, when he was charged with two counts of persistent child abuse. 3. However, as Ms New submitted, serious sexual offences for the purpose of the legislation includes offences which are not contact offences but which involve things such as grooming via a carriage service: see s 5(1)(b5) of the CHRO and s 474.24A of the Criminal Code (Cth). While Mr Jones was not previously charged with an offence under that section of the Code, he was charged in 2017 for contacting children via social media (Facebook) in breach of his Child Protection Reporting obligations. 4. Since serving lengthy gaol sentences for the earlier "contact" offences, the defendant has been subject to two CDOs. Because he committed offences during that period, the defendant has also been subject to prison sentences, some of which have overlapped with the CDOs. Ierace J placed the defendant on a supervision order during the period from around February to April 2020 and the defendant's compliance was largely satisfactory although the conditions were unworkable in the longer term. 5. As counsel for the State acknowledged implicitly, the matter is one which is, or might be seen to be, finely balanced. To adopt and adapt some of things Adams J said in 2018, and McCallum JA reiterated in 2020, there is a point where an offender's right to liberty may prevail and the defendant will have to be released at some point: State of New South Wales v Jones [2018] NSWSC 459 at [204]-[205] (Adams J); Jones v State of New South Wales [2020] NSWCA 202 at [39] (McCallum JA). 6. There is also the fact that at least some of the expert opinion suggests that the defendant needs to be exposed to live situations in order to foster his rehabilitation. Counsel for the defendant notes that at least one form of protection of the community is to ensure the rehabilitation of an offender. 7. However, as Ms New submitted, exposing the defendant to "live" situations could have potentially devastating effects. 8. Further, I accept Ms New's submission that the Court of Appeal has indicated that the circumstances of some cases may mean that the "unchallenged evidence in a particular case [may] point strongly in the direction of risk-avoidance at the interim stage": Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [46]. Even so, their Honours went on to say: "However, we do not suggest that there is a general presumption in favour of maintaining the custodial status quo when interim relief is in question." 1. Earlier in Tillman the Court said at [45]: "The statutory objects in this extraordinary legislation are directed at 'ensuring' the safety and protection of the community and 'facilitating' rehabilitation of serious sex offenders. They also weigh against any strong presumption in favour of liberty prevailing, at least at the interim stage. A final hearing can be brought on with expedition." 1. It is also correct, as Ms New submitted, that my task at this stage is not to attempt to predict whether the judge hearing the final motion will make a detention order or a supervision order. I must exercise the discretion for myself based on all of the material before me. In doing so, I must recognise the primary purpose of the CHRO Act being the protection of the community, and I must give effect to the decision of the Court of Appeal in Tillman. 2. Having considered all of the material, I have determined that it is appropriate to impose an interim supervision order in the strict terms proposed in the alternative orders sought by the State. There are various reasons for that conclusion, some of which should be transparent from what I have said above. The protection of the community may well be fostered by the continued rehabilitation of the offender. Further, the strictures of the conditions proposed by the State will mitigate to a substantial degree the grave, and realistic, concerns, expressed by Ms New. Mr Jones must have learned from his experience over the last two years that any failure to comply with the onerous conditions of the interim supervision order is likely to result in the making of yet a further detention order. Conditions 1. I have considered the dispute between the parties as to the conditions that should attach to the interim supervision order. These were helpfully set out in a table at the back of the defendant's submissions and related to conditions 8, 10, 12, 27, 28, 29, 30, 45, 46, 53 and 64. I have come to the following conclusions: * The amendment sought to conditions 8 and 10 are more relevant to an ESO because they concern the 6-month periods stipulated. It is unnecessary to make amendments at this stage. Counsel for the defendant acknowledged this. * The amendment sought to condition 12 seeks to provide for the exigency that the defendant might be asleep when his DSO visits him and not be in a position to allow the DSO access to his premises. I do not propose to make the amendment by which words would be added to the condition along the lines of "take all reasonable steps". The circumstance the amendment seeks to address is unlikely to arise in the course of the 28 days the defendant will be subject to the interim supervision order and I have little doubt the DSO will conduct themselves reasonably if such an issue does arise. * The amendments to conditions 27 and 28 concern the prohibition on the defendant drinking alcohol. There is no evidence the defendant committed his offences while he was under the influence of alcohol and drugs. Ms New submitted it was well known that alcohol has a disinhibiting affect. Dr Hughes submitted that I could not take judicial notice of the effects of alcohol. I do not propose to address the question whether it is appropriate to take judicial notice of the disinhibiting effects of alcohol. However, if Mr Jones is to be released on supervision for the first time in a number of years, he can remain alcohol free for the period of 28 days. * The amendment to condition 29 concerns a prohibition on the defendant entering licenced premises without the prior approval of the DSO. The condition expressly excludes cafes and restaurants. I can see no basis for removing this condition. If the DSO is unreasonable in refusing approval, the matter can be revisited at the final hearing. * Conditions 30, 45 and 46 impose requirements that the defendant attend counselling and prohibit him from using the internet and similar services. These conditions seem entirely appropriate, at least in the short term. I do not propose to amend or delete those conditions. * The amendments to conditions 53 and 64 are not opposed by the State and I will vary the conditions set out in the Schedule to the Summons. * Condition 53 will be varied to include Mr Jones' correct full name. * Condition 64, relating to the defendant consenting to the disclosure of his criminal history, will be amended to add the words "as is reasonably necessary with respect to concerns related to the defendant's risk of re-offending". Orders 1. For those reasons, I make the following orders: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): 1. Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant, as the case may be, and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court; 2. Directing the defendant to attend those examinations. 3. The parties are to agree on the identity of the experts by 5.00pm on Monday, 19 April 2021. 1. An order pursuant to ss 10A and 10C of the Act that the defendant be subject to an interim supervision order for a period of 28 days from midnight, 28 April 2021, being the date upon which the defendant is to be released under the current detention order. 2. An order pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in Schedule A to this judgment. 3. An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. 4. Releasing the submissions of the parties, as redacted by agreement, in accordance with the media's request. ********** Endnotes 1. State of New South Wales v Jones [2018] NSWSC 459 at [54]-[71]. 2. State of New South Wales v Jones (Final) [2020] NSWSC 461 at [15]-[25]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2021