State of New South Wales v Woods [2022] NSWSC 535

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Woods [2022] NSWSC 535 Hearing dates: 03 May 2022 Date of orders: 04 May 2022 Decision date: 04 May 2022 Jurisdiction: Common Law Before: Hamill J Decision: Extended supervision order for 3 years with conditions as set out in the schedule. Catchwords: CIVIL LAW – high risk sex offender – extended supervision order – dispute as to conditions and duration of order – efficient and co-operative conduct of legal representatives – time constraints and workload of court – brief and truncated reasons – no question of principle Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) ss 5B, 5I, 9(1)(a), 11 Cases Cited: Manna v State of New South Wales [2021] NSWSC 1220 State of New South Wales v Bugmy [2017] NSWSC 855 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Shawn Michael Woods (Defendant) Representation: Counsel: A Richards (Plaintiff) G Marsden (Defendant)

Solicitors: Crown Solicitor's Office NSW (Plaintiff) Legal Aid Commission NSW (Defendant) File Number(s): 2021/00295438 Publication restriction: Nil.

eX TEMPORE Judgment (REVISED) 1. By summons filed on 18 October 2021, the State of New South Wales (or plaintiff) makes an application for an Extended Supervision Order (ESO) pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). 2. Following a preliminary hearing on 2 February 2022, Justice Ierace made orders on 9 February 2022 including an order for the appointment of experts and an Interim Supervision Order (ISO) commencing on 10 February 2022 for a period of 28 days. On 8 March 2022, Bellew J made a further ISO, extending the period of supervision by 28 days commencing on 10 March 2022. On 29 March 2022, Bellew J made another order extending the period of supervision by 28 days commencing on 7 April 2022. 3. The final hearing was conducted yesterday, that is Tuesday, 3 May 2022. On its face the ISO would expire on 6 May 2022. The parties agree that it may be possible to extend the ISO for a further several days (until 11 May 2022). Due to other commitments over the next week, it is necessary to resolve the controversy and deliver judgment today or, at the latest, on Friday 6 May 2022. As a result of these time imperatives, it is necessary to be exceedingly brief in providing the reasons for the orders that I propose to make. That task is made considerably easier by the efficient and cooperative conduct of counsel and their instructing solicitors on both sides. I express my appreciation, and that of the Court, for the conduct of the case by all of the lawyers involved. 4. The parties prepared a bundle of evidentiary and other material described as the Judge's Working Folder, which was marked as Ex A. That included "Volume 1" comprising two lever arch folders of affidavits, reports, submissions, case notes and other relevant documents. There was a third lever arch folder, described as "Volume 2", which was an exhibit to an affidavit by the State's solicitor, Ms Murty, affirmed 14 October 2021. That exhibit included further evidentiary material of significance, including, for example, the defendant's criminal history, the remarks on sentence of a number of sentencing Judges, the facts behind some of the relevant matters on the defendant's criminal record, and bundles of material from files maintained by Corrective Services NSW (Corrective Services). Over objection by the State, a few additional Corrective Services case note reports were admitted as Ex 1. Those notes were tendered to demonstrate that the ISO had been, or might be, administered in an inflexible way. The State's objection was that the relevant notes related to a period when the defendant was subject to a parole order, rather than an ISO, and that the State did not have the opportunity to call relevant officers to explain their conduct. However, no adjournment was sought, and I took the view the evidence was admissible and relevant because the same officer of Corrective Services was administering the defendant's parole, the ISO and (prospectively) any ESO that would be made on the State's present application. In admitting the evidence, and in making any findings based upon it, it must be acknowledged that the officers in question did not have the opportunity to answer any criticisms made by, or implicit in, the defendant's submissions. 5. Before turning to the matters in relation to which the parties do not agree, it is first necessary to state briefly that I accept the effective concession made on behalf of the defendant that I would exercise the Court's discretion to make an ESO. 6. The material in Volume 2 includes the defendant's criminal record, which commences in 1986 and includes a number of sexual offences, including offences against children. The first sexual offence was committed in December 2001 and resulted initially in a suspended sentence of two years. Presumably following a breach of the suspended sentence bond, the defendant was sentenced to a fixed term of imprisonment for six months commencing on 3 September 2003. 7. In 2005 and 2019, the defendant was charged but found not guilty of offences of sexual intercourse without consent. These allegations, while not proved, are relevant to the present application but the Court should be extremely cautious in taking those matters into account. The existence of these charges is not irrelevant, particularly in circumstances where the protection of the community is the paramount consideration guiding the Court in determining what orders to make. However, I have exercised great care in not giving too much, if any, weight to those offences which the prosecution was unable to establish to the criminal standard. 8. In 2011, the defendant was convicted of sexual intercourse without consent and sentenced to a term of imprisonment of five years and one month, with a non-parole period of three years. At the same time there were other offences involving acts of indecency or indecent assault. 9. On 9 August 2019, the defendant was again sent to gaol, this time for an offence of sexual intercourse with a person aged between 14 and 16 years. He was sentenced to three years and three months imprisonment with a non-parole period of two years and five months. That sentence was imposed by Judge Flannery SC. Her Honour's remarks on sentence are included in Ex A. 10. Finally, on 1 May 2020, Acting Judge Marien SC sentenced the defendant to imprisonment for a period of 2 years and 4 months, with a non-parole period of 1 year and 9 months, for two counts of aggravated indecent assault on a person under the age of 16 years. The non-parole period expired on 10 July 2021 and the total sentence expired on 10 February 2022. 11. The defendant was on parole in relation to the last-mentioned offences at the time the current proceedings were instituted. Accordingly, he was a "supervised offender" pursuant to the provisions in ss 5B and 5I of the Act. The other formal requirements under s 5I have also been satisfied. There is no dispute, and I am satisfied, that the formal requirements for the making of an order are established. 12. Further, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO. This finding is based on Mr Woods' criminal history, the facts of the cases detailed in that criminal history, Mr Woods' patchy record of compliance while on conditional liberty and the contents of various reports providing opinions as to his risk of re-offending based on statistical tools and the authors' experience and expertise. For example, a Risk Assessment Report dated 13 August 2021, described the defendant as being a "well above average risk" of committing further offences. It also described his "high density of criminogenic needs" relative to other male sexual offenders. A forensic psychologist, Dr Amanda White, provided a report setting out a number of matters relevant to an assessment of whether the defendant would commit further sexual offences if not closely supervised. Dr White provided the following opinions which are consistent with the assessment in the risk assessment report that the defendant poses a "well above average risk" of committing sexual offences: "104. In my view, Mr Woods does pose a risk of committing a sex offence and, in my opinion, it is likely that future sex offences may meet the threshold for serious sex offence as defined in the Act. 105. The Results of the current assessment are consistent with previous evaluations identifying that Mr Woods presents with High level needs and intervention to reduce his risk. Key risk factors include: sexual violence history, psychological coercion, extreme minimization, attitudes that support his sexual offending, problems with self-awareness, managing stress and coping mechanisms, sexual deviance, problems with intimate and non-intimate relationships, and problems with supervision and treatment. All of these factors have been related to risk of sexual offending either directly or indirectly and considering his individual risk profile together with previous nature and severity of sexual offending, it is in my view likely any future offences may fall under the definition of a serious sex offence in accordance with the Act. 106. Risk factors remain despite prior intensive treatment, indicating that further high-level intervention is required. Currently, he presents with substantial responsivity issues that impact on the likely efficacy of further treatment which suggests that external supervision will be required to manage and reduce risk. It is expected that if he is truly able to immerse himself in treatment, some factors such as his ability to respond to stress and relationship issues may reduce, which may assist in reducing likelihood of reoffending. … 108. … Assessment utilising static and dynamic factors is most effective for evaluating risk of sexual re-offending. Statistical analysis of Mr Woods' risk of sexual reoffending conducted in 2020 and 2021 consistently place him in the Well Above Average category. Combined with dynamic factors, Mr Woods' level of risk is still Well Above Average indicating high intensity intervention and support is required. Inherent limitations exist as with all assessment measures as described herein, however these measures have been shown to have utility in risk evaluations and adhere to current best practice." 1. It is unnecessary to go into further detail, however the forensic psychiatrist Dr Kerri Eagle provided a generally similar opinion to the experts already noted. She said the risk of further sexual offending was "well above average" based on both his clinical presentation and the administration of actuarial and structured professional judgment tools. 2. Having considered all of the material tendered by both parties, I am comfortably satisfied that the State has established that an ESO should be made based on the requirements of the Act. There is no reason that the discretion to make an ESO should not be exercised. 3. As I have said, or implied, the defendant and his legal advisers took a realistic approach to these matters and essentially conceded that the Court would be satisfied that an order should be made. However, the parties did not agree on the length or duration of the ESO, or the precise content of the conditions proposed by the State.