State of NSW v Wiggins (a pseudonym) (Final) [2022] NSWSC 67

Supreme Court New South Wales

Medium Neutral Citation: State of NSW v Wiggins (a pseudonym) (Final) [2022] NSWSC 67 Hearing dates: 13 December 2021 Decision date: 10 February 2022 Jurisdiction: Common Law Before: Button J Decision: Extended supervision order for two years imposed Catchwords: HIGH RISK OFFENDER – application for extended supervision order – history of sexual offences committed against girls and women who are developmentally delayed – repeated breaches of child protection legislation resulting in periods of incarceration – breaches concerning in themselves – interim supervision order in place – mandatory examinations indicate continuing risk – extended supervision order imposed – no dispute as to conditions Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) ss 5B, 9, 11 Child Protection (Offenders Registration) Act 2000 (NSW) Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Category: Principal judgment Parties: State of New South Wales (Plaintiff) Jacob Wiggins (a pseudonym) (Defendant) Representation: Counsel: I Fraser (Plaintiff) C Goodhand (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Hugo Law Group (Defendant) File Number(s): 2021/192943 Publication restriction: Pseudonym adopted for defendant to protect identity of child sexual assault victim

Judgment

Sketch of background 1. Mr Jacob Wiggins (a pseudonym adopted in order to protect a child victim; the defendant) was born several years after the end of World War II, and is now in his early 70s. He endured a very impoverished and deprived upbringing: amongst other factors, his father was a travelling carnival worker, and the life of the family was disrupted and difficult as a result. When the defendant was a child, his father suffered a serious workplace injury, and his mother spent time as an inpatient in a psychiatric hospital. To make matters worse, the defendant has claimed that, as a child, he himself was more than once the victim of sexual assault, a proposition that I accept on balance. 2. The defendant left school at the age of thirteen, and, as one would expect, has been employed in unskilled positions only. He has enjoyed two long-term relationships with adult women and claims, remarkably, to have fathered ten children throughout his life. Heavy drinking was a problem many years ago, but that seems to have abated. He states that he retired from employment at the age of sixty, well over a decade ago. Several years ago, the defendant suffered a "massive heart attack", and, as one might expect of a man of his age and background, he suffers from significant challenges to his physical health. 3. As for his intersections with the criminal justice system, they began when he was a youth. Convictions for such things as vagrancy and the like speak not only to the passage of time since then, but also his deprivation at the time. 4. In September 2003, aged in his fifties, he committed an offence of indecent assault against a person under the age of ten. The victim was his natural daughter, who was then aged 6 years 5 months. An important part of the context of that offending is that there is evidence that his daughter suffered from emotional and psychological problems, and was developmentally delayed. 5. It was not until 8 February 2007 that Judge Nicholson SC imposed a head sentence of 4 years 11 months 2 weeks, with a non-parole period of 2 years 3 months, each to commence on the date of imposition, and the non-parole period to expire on 7 May 2009. 6. In May 2005 (that is, between the date of that offence and the imposition of sentence for it), the defendant was accused of having committed other child sexual abuse offences, but was acquitted after a hearing. In accordance with the position agreed between both counsel and me at the hearing, I regard those allegations as not irrelevant, but give them far less weight than matters in which there has been a conviction. 7. After release on parole for the sentence imposed by Judge Nicholson SC on 21 July 2009, the applicant became subject to various statutory forms of conditional liberty as a convicted child sex offender. The relevant pieces of legislation were the Child Protection (Offenders Registration) Act 2000 (NSW) and the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). As is well known, these two Acts impose a significant burden on persons in the position of the defendant, and breaches of their requirements can be constituted by acts, or omissions, or circumstances that would otherwise be lawful. 8. Soon after his release, the defendant had developed a friendship with a family living in a suburb of Sydney, some members of whom were young children. Notably, all members of the family, including the adults, were developmentally delayed. It eventually came to light that he had shared a bedroom with one of the children. Not only that, but on at least two evenings, he had shared his bed with another of the children. His claim was that the child had crept into his bed late at night, and the defendant, by then aged about sixty, had seen fit to do nothing to stop it. 9. On 12 February 2010, he was sentenced to imprisonment for nine months for those two statutory breaches, they having occurred between July and October 2009. It is significant that the first of those failings occurred almost immediately after his release to parole for sexually assaulting his own daughter. 10. The defendant was released again in June 2011. This time he resided for a period in closely supported accommodation maintained by the Department of Corrective Services (DCS). He lived thereafter in the community for some years, but was in and out of custody again from early April 2016 until 15 September 2017, as follows. 11. Throughout 2016, he breached statutory conditions again. On 3 March 2016, he engaged in babysitting when he w as prohibited from doing so. On 14 November 2016, he had phone contact with his daughter, the victim of his initial offending. And finally, that phone contact had been facilitated by a social media username that the defendant had not reported to the police. 12. For the first offence, he received a fixed term of imprisonment for three months; for the second offence, a fixed term of imprisonment for nine months; and for the third offence a head sentence of imprisonment for 13 months, with a non-parole period of 10 months, was imposed. He was released for a time, as I have said, in mid September 2017. By that stage he was on parole, and also on bail, the latter as a result of having been charged with the following conduct. 13. Reverting in the chronological overview a little, by January 2016, the defendant, then 66 years of age, had struck up a friendship with a woman who was aged 24. That young woman was developmentally delayed, and has been assessed as having an IQ of 45 (I understand the average IQ of members of the community to be 100). She has also been described as having a "moderate" intellectual disability (it is well known that that term needs to be approached very cautiously). At the relevant time, the young woman was living in supported accommodation due to her cognitive deficits. 14. On 24 January 2016, the defendant and the young woman had sexual intercourse in a modest caravan and annexe in which the defendant was residing in the backyard of a friend's house in a Sydney suburb. He ultimately pleaded guilty to one count of having sexual intercourse with a person suffering from a cognitive impairment, constituted by penile/vaginal intercourse. The offence did not come to light for some time, and it was not until 5 April 2017 that charges were laid. 15. There were further delays in the matter being resolved, in that it was not until 6 April 2020 that Judge Hanley SC imposed sentence upon the defendant. In the meantime, the defendant had returned to custody on 10 April 2019. The sentence was made up of a head sentence of imprisonment for 3 years, to commence on 29 October 2018, and expire on 28 October 2021, with a non-parole period of 18 months, to expire on 28 April 2020. 16. At the time of imposing sentence, his Honour emphasised the "great abhorrence" with which the community regards offences of having sexual contact with a person who is either not consenting, or incapable of consenting. His Honour noted that therapy undertaken by the defendant had been seemingly unsuccessful. In ameliorating the sentence, his Honour gave significant weight to the physical health difficulties of the defendant. 17. The defendant was duly released to parole in late April 2020. He was subject to that form of conditional liberty, and the other statutory forms of which I have spoken. He was living in shared accommodation in a suburb of Sydney. It came to light that the 13-year-old daughter of one of his housemates was staying the night, if not living there, for a period of time. Of significant note is that that child suffers from autism. The defendant had brought her presence in the home in which he was living to the attention of no one until 9 December 2020. 18. At this time, he was charged with breaching a statutory condition, and also had his parole revoked. As a result of the latter, he was promptly returned to custody the day after his revelation, and served the balance of parole until the expiry of his head sentence on 28 October 2021. 19. The charge was resolved on 14 December 2021, as it happens the day following the hearing before me of the application that leads to this judgment. It was agreed at the hearing that, because the guilt of the defendant had not been resolved at that stage, with the result that I could hear only incomplete submissions about it, I would approach it merely as a matter of logistics or custodial structure, not as a matter that could be taken into account adversely to the defendant with regard to the substantive question. 20. In any event, he was convicted, and received a head sentence of imprisonment for 10 months to commence on 28 August 2021 and expire on 27 June 2022 with a non-parole period of 5 months, which expired on 27 January 2022. After the hearing, I was given to understand by the parties that the defendant was released on that date, and remains subject to parole conditions. 21. To complete this thumbnail sketch of offending, incarceration, and conditional liberty: on 27 October 2021 after the preliminary hearing of this application, R A Hulme J imposed an interim supervision order (ISO) of 28 days. It was suspended for a time by the operation of statute, and commenced on the day of the recent release of the defendant, and will expire, by my calculation, on 24 February 2022.