Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Harrison (Preliminary) [2022] NSWSC 335 Hearing dates: 4 March 2022 Date of orders: 4 March 2022 Decision date: 04 March 2022 Jurisdiction: Common Law Before: Rothman J Decision: (1) Order 1 in the further amended summons; (2) Order 2 in the further amended summons; (3) Order 4 in the further amended summons; (4) Pursuant to the terms of s 11 of the Act, the schedule of conditions of supervision on the defendant that are contained in the schedule to the further amended summons are imposed. Catchwords: High Risk Offenders – Interim Supervision Order – unacceptable risk – serious sex offences – defendant's consent to ISO and to conditions – Court satisfied on matters alleged that defendant poses unacceptable risk – satisfied to high degree of probability – ISO issued. Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 Child Protection (Offenders Registration) Act 2000 (NSW) Crimes High Risk Offenders Act 2006 (NSW) Category: Procedural rulings Parties: State of New South Wales (Plaintiff) Robert Harrison (Defendant) Representation: Counsel: A. Richards N. Broadbent Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2021/00355358 EX TEMPORE Judgment 1. HIS HONOUR: Before the Court is an application for interim relief in what is now a further amended summons filed today, Friday 4 March 2021, and relied upon by leave instanter. The original amended summons was filed yesterday and the only remaining issue between the parties was the wording of Condition 18 which has now been amended to insert the word "reasonably" where it refers to the possibility of a direction by the Departmental Supervising Officer (hereinafter a 'DSO'). Thus, it will now read: "The defendant must provide any information relating to his financial affairs including income and expenditure if reasonably directed by a DSO." 2. As is obvious from the foregoing, the parties have reached agreement as to the nature of the orders to be made and the conditions upon which the defendant will operate pursuant to the terms of s 11 of the Crimes High Risk Offenders Act 2006 (NSW) (hereinafter 'the Act). That is assuming the Court is otherwise satisfied of the requirements of the Act in relation to the matters before it. 3. The State of New South Wales seeks orders under s 7(4) of the Act: firstly, appointing two qualified psychiatrists and/or a registered psychologist or any combination of any two such persons to conduct separate psychiatric and/or psychological 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, secondly, directing the defendant to attend those examinations. Those orders are frankly obvious and necessary if the material that is required for the purposes of a final order, which is subject to this application by way of summons, is to be appropriately agitated. 4. Next, the State of New South Wales seeks an order, pursuant to the terms of s 10A and 10C(1) of the Act, that the defendant be subject to an interim supervision order (hereinafter an 'ISO'), for a period of 28 days commencing at midnight at the end of 15 March 2022. 5. Thirdly, an order is sought pursuant to terms of s 11 of the Act, as earlier stated, directing the defendant to comply with the conditions set out in the schedule to the further amended summons, filed today, 4 March 2022 . The summons seeks final relief in the nature of an extended supervision order, (hereinafter an 'ESO) for a period of 5 years from the date of the order. 6. The Court takes the view that the agreement reached and announced by Mr Broadbent on behalf of the defendant is an agreement that relates to the ISO and the parties' positions are obviously reserved in relation to any argument, if there be one, in relation to the application for, and ordering of, an ESO. 7. The State also seeks by way of ancillary relief an order that access to the Court's file in relation to 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 to 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. 8. That order will be granted. It is an order that is usually made in relation to high risk offenders who are subject to an application under this Act. The reasons for it are obvious. It is in aid of the admission of justice. Further, these orders are, and I don't say this critically, draconian in their effect. That is, they supervise or seek to supervise a defendant who generally has, or will have, already served a sentence for an offence on the basis of the risk, being an unacceptable risk, to society if he is unsupervised. 9. It is probably necessary for me to recite some of the procedural history and factual history. In so doing I am reminded and remind others that the provisions of various legislative schemes require the suppression of names of a child victim who is said to be the subject of a criminal offence and anything that would identify her or him. As a consequence, I will not use the names of any victim or deal with any other issue that might otherwise identify the victims in any proceedings. 10. The defendant is a 68 year old man who has been convicted of three instances of sexual offending against children. He was born in Rylestone New South Wales as one of twelve children. The defendant reports being sexually abused at the age of nine or ten by an older relative and has been described as having a "traumatic background". The defendant was involved in a motor vehicle accident in 1985 in which he suffered multiple skull fractures. According to the psychiatric report that I have already seen, those injuries may have had an effect on his offending and/or may affect the prospects of rehabilitation. 11. The defendant is currently on parole for the index offence, having been rereleased upon parole on 5 August 2021. He is currently residing in the western country area of New South Wales. The defendant's final sentence for the index offence was to expire on 15 March 2022. The defendant is registered pursuant to the Child Protection (Offenders Registration) Act. Following offending that occurred in 2020 he is subject to a Child Prohibition Order made pursuant to the Child Protection (Offenders Prohibition Orders) Act 2004 for a period of 5 years. Neither one of those provisions, in my view, interferes with or affects the exercise of the discretion to grant an ISO in the circumstances of the current defendant. 12. The defendant was convicted of the index offences in 2012. The defendant was convicted of two counts of sexual intercourse with a person aged under 10 years, one count of aggravated indecent assault, and one count of sexual intercourse with a person aged between 10 and 14 years. The index offending occurred over an extended period between 2003 and 2006 in relation to a female child for whom the defendant was engaged to babysit . The offending involved sexual intercourse, which occurred when the child was 7 years, 8 years or 9 years, and again at 10 years, together with the touching of her breasts when she was in the shower. The defendant was sentenced by his Honour Judge Nicholson SC DCJ to a sentence of 7 years and 3 months as the cumulative effective sentence of imprisonment. The defendant was first released on parole on 29 March 2019. 13. Over and above the index offences, the defendant was convicted in 1986 of one count of sexual intercourse without consent with a person under 16 years while in a position of authority, and one count of indecent assault of a person under 16 years while in a position of authority. The victim was a relative of the defendant. 14. The sentencing judge, Judge Jones of the District Court, deferred passing sentencing on the basis that the defendant be of good behaviour for 3 years and forfeit $2,000. 15. In 2020, the defendant was again engaged in conduct that led to a conviction on 15 April 2021. On that date, that is the latter date, the defendant was convicted for one count of intentionally touch a child older than 10 but younger than 16, being a person who was 11 years of age. This was a male child, and the person was touched on his penis and scrotum area on the outside of his underwear. This occurred while the defendant was on parole for the index offences. The defendant was sentenced to 2 years imprisonment which was backdated to commence on 17 December 2013. 16. The defendant accepts that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. That is the test for the making of an ISO. There are procedural steps which require, amongst other things, this Court to determine that the defendant was a supervised person. As earlier stated in the course of the proceedings, the defendant is currently on parole and, as a consequence, meets the definition of a supervised person. The offences with which the defendant has been charged in the past, particularly the index offences, are offences of a kind which give rise to the jurisdiction of the Court to make an extended supervision order and, necessarily, an interim supervision order as a consequence. 17. Lastly it should be said that the application was made in the time allowed by the Act to make such an application. 18. The only issue, other than what I will call the technical or procedural issues, is the issue of the unacceptability of the risk. The Act requires the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk. In the case of an order for an ISO, the Court must be satisfied of that fact, on the assumption that the matters alleged in the application will be proved at the final hearing. I am confident in the finding that , by the acceptance of the defendant, the matters alleged will be proved or, if proved, could amount, and will amount, to an unacceptable risk. In determining an unacceptable risk, the Court does not need to be satisfied on a balance of probabilities that there is a risk of re-offending. Rather, the Court is required to be satisfied that the risk is unacceptable to a high degree of probability. That involves a matrix which evaluates the risk of reoffending, its likelihood, which must be more than ephemeral or insignificant, and the damage that would be caused by the manifestation of that risk. When those factors are brought together, given the history of the reports, to which I will shortly refer, the applicant in my view, if all of the allegations are proved at final hearing, would be, and is, an unacceptable risk. The Court can be satisfied to a high degree of probability that there is an unacceptable risk if the defendant remains unsupervised by an ESO or ISO. 19. Initially, there was some dispute as to the conditions that ought to govern the defendant under s 11 of the Act. That issue has been resolved, as earlier stated, by inserting the term "reasonably" in condition 18. I hasten to add that, in my experience, which now spans some years and some applications, including breaches, the DSOs, and that part of the Department, do act reasonably. That is a general statement. Obviously, there may be circumstances where that does not occur. Nevertheless, in my view also implicit in the orders made under s 11 of the Act, in relation to governing defendants, is that directions that will be given by a DSO will be done reasonably. 20. As earlier stated, the factor that I take into account in determining the unacceptability of the risk is the previous offending, in particular that the defendant has committed sexual offences against children on three occasions in a period spanning thirty years, including an offence committed less than two years ago. Secondly, after being in custody for over eleven years, the defendant was in the community for less than fifteen months before committing a further serious sexual offence in 2020, committed whilst on parole. Thirdly, the consequences of the defendant's risk of sexual offending would be serious, and likely deleterious, upon potential young victims. It is renowned that abuse of that kind, and probably the defendant can attest to it, can be a life-long difficulty suffered by victims. 21. Lastly, the defendant's history of grooming young children does satisfy the Court that there is potential offending, and that any such offending will be difficult to detect if there isn't a supervision order. 22. There are uncharged acts which are before the Court. Those uncharged acts, while they are not obviously offences of which the defendant has been convicted, they are allegations which the Court can take into account in determining the risk to which the Court earlier referred, and, in particular, the risk of re-offending. The sexual intercourse with the young female relative to which the Court earlier referred was admittedly one that occurred over twenty or thirty times. By 'admittedly', I mean the defendant has admitted it and, therefore, the sexual offending was not limited to the four index offences to which the Court has earlier referred. 23. There are a number of reports of psychologists provided to the Court. There is a risk assessment report to which I have had regard and there are medical assessments. A psychiatrist, Dr Olaf Nielssen, in 2012 diagnosed the defendant with a traumatic brain injury. This is the matter to which I referred earlier. Dr Nielssen, who is a well-known forensic psychiatrist before the Court, had noted that as a consequence of that brain injury the defendant's social judgment and impulse control is likely to be impaired. Dr Nielssen considered that the defendant had possible or probable paraphilia. 24. Mr Petheram found the defendant did not exhibit general remorse. Frankly the agreement to the conditions is evidence contrary to that. Nevertheless, that was in relation to a report dated 1987 and, therefore, is a little dated. At that stage, the defendant was denying the 1986-1987 offences. 25. Dr Philips in 1987 rejected the proposition that was put at that time by the defendant that he had no recollection of the 1986-1987 offending, although he did note that some amnesia following his accident was possible. 26. Returning, if I might, to the report of Dr Nielssen. Dr Nielssen opined that the defendant's brain damage could limit the benefit he could derive from counselling programs and that his long-term management should be preventative rather than rehabilitative. 27. The risk assessment report prepared by Holly Cieplucha dated 22 October 2022 expresses the opinion that the defendant's most likely scenarios for a further sexual offending would involve grooming young children while in a position of authority with a high degree of psychological coercion; simulation of, or actual penetrative acts; and, that the likely victims would be prepubescent children around ten years of age. The author of that report is a Senior Psychologist. She also assessed the defendant as at an "average" risk of sexual re-offending. It should be borne in mind that the classifications have recently, that is in the last twelve months or so, altered. That is an average risk as compared to the ordinary sexual offender. Nevertheless, the author of the report clarified that the risk of reoffending would be much greater in situations where the defendant had access to a child victim. Hence, from the Court's perspective, the need for supervision. Ms Cieplucha also expressed an opinion that the Prohibition Order is inadequate to manage the risk to the community presented by the defendant. A level of oversight of the defendant under an ISO or ESO is far greater, as I think I have mentioned in earlier judgments relating to the interrelationship between the two. 28. As stated during the course of the proceedings, an affidavit of David Yang was read and relied upon by the State. It is an affidavit affirmed 15 December 2021. It annexes the documents necessary, some of which have been the subject of reference earlier in this judgment. It also annexes the criminal history of the applicant, including his convictions and appeal reports; three risk assessments and management reports; material arising from, and related to, the defendant's three convictions; and, the earlier mentioned psychological and psychiatric behavioural reports. It also annexes the parole documents. 29. As earlier stated, the defendant accepts that, for the purpose of the ISO proceedings, the matters alleged in the supporting documentation would, if proved at final hearing, justify the making of an extended supervision order. That gives the Court comfort, but the Court is required independently to come to the view that there is jurisdiction to make the order, this being a matter that is a statutory jurisdiction beyond what would ordinarily be allowed under the Common Law. 30. The Court is, for the reasons already given, satisfied that there is such an unacceptable risk, and that the procedural issues associated with the making of an ESO have been satisfied. The Court notes, as is mentioned in the defendant's submissions, that the defendant has generally had a positive history in incarceration and, with the exception of the offending to which I have already referred, generally complies with supervision processes while on parole and/or subject to other orders. 31. Currently, as I understand it, the defendant has a stable mental health and housing situation and is otherwise behaving satisfactorily on his parole supervision. The Court has some confidence that the supervision order will be the subject of compliance and accepts that the supervision order is necessary. 32. As a consequence of the foregoing, the Court makes the orders to which I referred earlier, namely: 1. Order 1 in the further amended summons; 2. Order 2 in the further amended summons; 3. Order 4 in the further amended summons; and, 4. Imposes pursuant to the terms of s 11 of the Act, the schedule of conditions of supervision on the defendant that are contained in the schedule to the further amended summons. 1. Obviously, there will be no order for costs. ********** 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: 25 March 2022