Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Kalaw [2022] NSWSC 1294 Hearing dates: 16 September 2022 Date of orders: 16 September 2022 Decision date: 16 September 2022 Jurisdiction: Common Law Before: Button J Decision: Interim supervision order for 28 days imposed and mandatory examinations ordered Catchwords: HIGH RISK OFFENDER – Application for mandatory psychiatric and psychological examinations and interim supervision order pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – Not opposed by unrepresented defendant – Significant sexual violence – Long period of incarceration – Where preliminary test for further supervision satisfied on risk/result analysis – Mandatory examinations and interim supervision order imposed – No dispute about conditions Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Cases Cited: Lynn v State of New South Wales [2019] NSWCA 300 State of New South Wales v Elomar (No 2) [2018] NSWSC 1034 State of New South Wales v Fisk [2013] NSWSC 364 State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 State of NSW v Baldwin [2016] NSWSC 1141 Category: Principal judgment Parties: State of New South Wales (Applicant) Kerubee Bernabao Kalaw (Respondent) Representation: Counsel: K Curry (Applicant) Respondent (Unrepresented) Solicitors: Crown Solicitor's Office (Applicant) File Number(s): 2022/221258 Publication restriction: Nil REVISED EX TEMPORE JUDGMENT Introduction 1. This judgment resolves a preliminary application brought by the State of New South Wales (the plaintiff) against Mr Kerubee Kalaw (the defendant) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). 2. I do think it is appropriate for me to deliver a short ex tempore judgment now, for a couple of reasons. The first is that all orders sought by the plaintiff are explicitly consented to by the defendant. The second is that I think that what should be done in this case, in terms of my own evaluative judgment, is absolutely clear, and does not require an extended period of reflection. 3. The defendant appeared for himself today, although he reserved his rights as to the future in all aspects of the proceedings, including as to future representation. I might say that he was perfectly courteous and coherent in our interactions. Furthermore, although he dispensed at the beginning of the proceedings with legal representation (for reasons that are not entirely clear), even so he retained the advice of very experienced counsel and also the advice of a solicitor, who I infer is an expert in criminal and quasi-criminal matters. Background 1. Evidence placed before me today satisfies me of the following. 2. The defendant is 45 years of age. He was born to wealthy parents in the Philippines. Regrettably, his parents separated when he was 10 years of age, and his mother emigrated to the United States of America. He claims that he was sexually assaulted as a child by, separately, a male and a female perpetrator. I must say I respectfully approach those assertions cautiously, and in particular the claim with regard to the female perpetrator with significant caution. 3. The defendant emigrated to this country in 1997. By three years later, he was married and had a young son. He had had no interactions with the criminal justice system. He was gainfully employed. There was no overt sign of any psychological or psychiatric problem. It seemed on the surface that everything was perfectly in order. In fact, however, things were going very badly wrong. 4. The defendant found his relationship with his wife to be unsatisfactory on a number of bases. He commenced to engage in many romantic affairs. He also obtained the services of sex workers. Perhaps because of resentment against his wife, he began to be attracted to sexual violence. He began to pay sex workers to engage in role play, as if they were the victims of sexual violence. That deviant sexuality upon his part was exacerbated by him exposing himself to violent pornography, and obtaining sexual gratification from it. 5. That process culminated, catastrophically, in six weeks of extremely grave criminality. Over that period of time, he sexually assaulted five young women. It was not just a matter of sexual violence; there was physical violence above and beyond the violence inherent in the sexual offences. There were also threats of violence, including with at least one weapon. 6. The sexual offending itself need not be recounted in detail now. But suffice to say it was extremely grave; it was penetrative; it featured ejaculation; it was degrading; it was the case that the defendant obtained pleasure from the palpable suffering of his victims; and there was a worsening in the offending, at least to the extent that, with regard to the last set of offences, so-called trophies were retained. 7. There is no doubt that many, perhaps most, perhaps all, of the victims suffered long-lasting psychological damage as a result of what the defendant did to them; indeed, perhaps permanent, lifelong damage. 8. The defendant's wife divorced him when the offences came to light. 9. Dr Jeremy O'Dea, a forensic psychiatrist most experienced in the field of sexual deviancy, diagnosed the defendant as suffering from a paraphilia; namely, sexual sadism. 10. Judge Ellis, a District Court judge most experienced in the criminal law, imposed a total head sentence of imprisonment for 18 years with a total non-parole period of 14 years. That was even despite pleas of guilty that had been entered (unless I am mistaken) at the earliest opportunity. That sentence was to commence in October 2004 when the defendant was first detected, arrested, and incarcerated. 11. Speaking generally, throughout many, many years of incarceration, the defendant was compliant. I accept that, to say the least, he had some very negative experiences over those years. 12. His non-parole period was to expire on 3 October 2018, but the defendant was not released to parole then. One can well understand the cautious approach of the authorities. Additionally, through no fault of his own, the defendant had not been able to complete therapeutic interventions. I might add that he has now, and they seem to have been very effective. 13. He ultimately was released on 25 May 2021; that is, after 16 years and 6 months in custody. He first lived for quite some time - four months or so - in a COSP, which is a very structured form of halfway house where people often go if they have spent a long time in custody, between gaol and living entirely independently in the community. 14. The defendant left the COSP on 22 September 2021. He is now living as I understand it on his own, in the community, independently. 15. His head sentence expires in its entirety on 3 October 2022, less than a month from today. 16. Separately, a very important development that I believe was quite unexpected occurred whilst Mr Kalaw was in custody. 17. From an early stage, at around the time of the proceedings on sentence, he spoke of hearing voices. But at that stage it was felt that that was really an emotional response to the stress of his offending having been detected and having been placed in custody. 18. But in the many years since then, in fact the defendant has been definitively diagnosed as suffering from schizophrenia, and that includes some paranoid features. The current state of medical diagnosis is that there is no doubt about that. Indeed, the defendant has been prescribed long-acting anti-psychotic medication. 19. It is not for me as a lay person to speculate as to whether there was any sense in which that chronic and serious mental illness may have been in a prodromal phase at the time of the commission of the offences. Certainly, to my understanding it is not suggested by any expert that that may be the case. 20. The defendant has been proceeding well in the community since September 2021. I think for anybody, let alone somebody suffering from a chronic mental illness, to be released from custody and to try to re-adjust to independent living after 16 years and 6 months in prison would be a very significant challenge. 21. The defendant is not working, but he receives a disability support pension. In all the time that he has been on parole - which is approaching 18 months since May 2021 - there has been no breach of parole as I understand it. Certainly, he has never been returned to custody. 22. The various detailed file notes with which I have been provided suggest that the defendant is receiving support; he is benefitting from it; he sees the benefit of conditional liberty; and as I have said, he is compliant with his anti-psychotic medication. The reports are generally positive. He is obtaining psychological help in the community. He has also re-established a romantic relationship with a former girlfriend. 23. There are some adverse matters to be weighed against that, as follows. 24. There is evidence that, recently, the defendant prevaricated to a medical professional about the precise circumstances of his offending. 25. There is also evidence that, as recently as 2020, he accepted that he continued to obtain gratification from fantasies about sexual violence. 26. He is not receiving explicitly anti-libidinal medication, although it is certainly the case that his anti-psychotic medication has some suppressive effect on his libido. 27. The other aspect is that the re-kindled romantic relationship to which I referred is moving quite quickly. Obviously, in light of the offences, there needs to be caution and reflection on the "pluses and minuses" of a new intimate relationship with a woman. 28. As well as that, the risk assessment report speaks of an above average risk of offending. I will not analyse that further: I think, respectfully, that is just sheer common sense, in light of how badly things went wrong many, many years ago, in that explosion of criminality of the utmost gravity. Application and submissions 1. That is the evidentiary context in which this hearing was conducted. As is orthodox, the plaintiff sought mandatory examinations and an interim supervision order (ISO) of 28 days, but liable to renewal up to a total period of not more than three months. The ultimate submission of the plaintiff will be that an extended supervision order (ESO) would be imposed in due course, of three years' duration. 2. There can be no dispute about any of the mechanistic matters that appear in the Act. It really boils down to the fulcrum test to be found in ss 5B, 9 and 10A of the Act in combination (see State of New South Wales v Fisk [2013] NSWSC 364), to which I shall return later in this judgment. 3. As I have said, the defendant until recently was represented. He represented himself today although he retained legal assistance. I am quite confident that there was no difficulty in him understanding the nature of the proceedings, what it was the plaintiff was seeking today, and what it was that he, Mr Kalaw, was consenting to. To be clear: his position today was that he did not oppose the mandatory examinations, nor the ISO, nor did he complain about any of the conditions. To repeat: he reserved his rights completely with regard to any aspect of any ESO. Determination 1. That is the joint position of the parties, to which I give significant weight. But applying my own evaluative judgment to it, I am soundly satisfied that an ISO should be imposed. That is because I am soundly satisfied that, in due course, a colleague of mine could be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision: see ss 5B and 10A(b) of the Act. For that reason, upon which I will expand in a moment, I do propose to order the mandatory examinations, and the ISO. 2. The reasons are as follows. 3. First, it is well known that the question that I have to ask myself today is prospective and contingent; in other words, it is not determinative. In a practical sense, I need to think about what another judge in the future could find. It is clear I think, and it has been said in the authorities, that that is not an overly onerous test: see State of NSW v Baldwin [2016] NSWSC 1141. 4. Secondly, I think that the combination of a proclivity to sexual deviance and schizophrenia is a powerfully adverse combination; in other words, the whole is greater than the sum of the parts. It is the kind of combination that could be powerfully criminogenic. 5. Thirdly, leaving aside entirely those adverse aspects, the defendant surely was institutionalised when he was first released. I do not believe that that characteristic has entirely disappeared over the past months. That constitutes a difficulty on its own, I think, for any person, even a person who is entirely well, who is released after so many years in custody. In a sense, it is to be added to the other two factors that are troubling. 6. Fourthly, the consequences of any further offending, similar to the offending that occurred during those six weeks many years ago, would almost certainly be catastrophic to any future victim. I think one is entitled to reflect upon the "risk/result analysis" that has also been spoken of in the authorities; namely, the greater the adverse consequences, the less pronounced the risk need be: see Lynn v State of New South Wales [2019] NSWCA 300. Again, that is just a matter of common-sense thinking, but I think that it has a significant application here. 7. Fifthly, the sexual deviance that reared its head many years ago was extremely powerful. By that I mean, it was not just thinking about sexual violence; it was not just gaining sexual gratification from fantasies about sexual violence; it was not just paying sex workers to engage in role-playing based upon sexual violence; it was not just acting upon the deviance, it was acting upon it in a very extreme way; it was acting upon it repeatedly; it was acting upon it in an escalating way, at least to the extent of the retention of "trophies" with regard to the final offending; and, finally, the offending only stopped when the defendant was apprehended. 8. The sixth matter that leads me to believe that mandatory examinations and an ISO are appropriate is, as follows. As I have said, the defendant is going well on parole. I respectfully think that, in all the circumstances, that is to his credit. Obviously one's hope is that in the not too distant future, whenever that may be, he will be able to live completely independently in the community, without any form of conditional liberty, and he may be able to be regarded as someone who, having offended so profoundly, is completely rehabilitated and rejoins the community completely. 9. Even so, as I have said, there have been some problematic aspects. Such adverse aspects are to be expected, I think. But suffice to say the picture is not entirely a rosy one. There are some difficulties, I think, that could develop if there were a complete absence of any form of supervision or guidance. 10. The seventh aspect is that I think, as a matter of common sense in light of the whole history of this matter, it is appropriate for me to err on the side of caution, at least at this stage of things. Again, I believe there is authority for the proposition that that is appropriate at the preliminary stage: see State of New South Wales v Elomar (No 2) [2018] NSWSC 1034; State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041. 11. The eighth and final aspect is that, although it is true that the defendant has been out of gaol for quite some time, 18 months or thereabouts, and he has been living independently in the community for almost exactly one year, on one reading that is many, many months. But, even so, as a percentage of the time that he spent in custody, one year living independently compared to 16 years and 6 months, proportionally it is a very small period of time. I do not say that critically with regard to the good progress he is making. But I simply make the point that, proportionally, although Mr Kalaw has no doubt chafed to some degree under the strictures of conditional liberty, even so as things stand today one must see it as "early days". 12. Those are the reasons why I do believe that it is appropriate to impose an ISO, and to direct that the defendant be examined by medical professionals. 13. I am also not satisfied that there is any discretionary reason why I should not take those steps. 14. In particular, I am satisfied without difficulty that the fulcrum test, as I call it, has been made out. Conditions 1. As to the conditions, none of them were disputed. I infer from that and Mr Kalaw's whole approach to this litigation, at least at the moment, that, unlike a lot of recalcitrant people, he actually sees that he needs help to succeed as a member of society again after so many years of being locked away, and he sees the benefit of conditional liberty. 2. I think, speaking generally, that reasonably rigorous conditions are appropriate in this case. I should indicate that before I make final orders I should simply cast my eye over again those final conditions that were to be found in the amended summons, just to double check my own satisfaction that they are all appropriate. [His Honour did so] 3. Suffice to say, to repeat myself, if things were to go wrong in a significant way, the outcome would almost certainly be disastrous. I think it is appropriate that the supervision be reasonably rigorous so that if things even start to go wrong, the authorities will be aware of that. And to the benefit of everybody, problems will be able to be "nipped in the bud". 4. I am content with all of those conditions. I note that they were adjusted quite substantially by the plaintiff in consultation with the defendant and his former legal team. To repeat myself: I accept that they are intrusive and onerous. But I think that that is soundly appropriate in this case. Conclusion 1. For all of those reasons, I shall shortly make formal orders, without expressing them orally, in accordance with the summons that originated these proceedings, with regard to the mandatory examinations, with regard to the ISO, and with regard to the conditions that were proposed (they being the ones attached to the amended summons with which I was provided). Those orders will be entered as soon as reasonably practicable. 2. To be clear, they will be orders 1 and 2 in their entirety sought in the original summons filed on 28 July 2022. Schedule of Conditions. State of NSW v Kalaw.16.9.22 (215798, pdf) ********** 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: 26 September 2022