Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Colebrook [2023] NSWSC 792 Hearing dates: 10 July 2023 Date of orders: 14 July 2023 Decision date: 14 July 2023 Jurisdiction: Common Law Before: Davies J Decision: 1. Pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the extended supervision order made by Adamson J on 1 December 2016 in State of NSW v Colebrook [2016] NSWSC 1702 is revoked. Catchwords: HIGH RISK OFFENDERS – extended supervision orders – application for revocation – sexual offending occurred 27 years ago – defendant released on parole eight years ago – ESO imposed seven years ago – where repeated ESO breaches result in incarceration – positive drug tests – no further sexual offending – application to revoke order brought by the State – defendant supports application – evidence of significant changes in behaviour and attitude of defendant – length of time since index offences – Court independently satisfied of material change in circumstances – where defendant is currently on a Community Correction Order for 18 months – Court not satisfied to high degree of probability that defendant poses an unacceptable risk – order revoked Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) ss 5B, 5C, 9, 10, 13 Cases Cited: State of New South Wales v Banks (Preliminary) [2021] NSWSC 1246 State of New South Wales v Carr [2020] NSWSC 643 State of New South Wales v Fisk [2013] NSWSC 364 State of New South Wales v King [2022] NSWSC 918 State of New South Wales v Manners [2008] NSWSC 1242 State of New South Wales v Paton [2020] NSWSC 1707 State of New South Wales v Paton (Preliminary) [2020] NSWSC 1178 State of NSW v Colebrook [2016] NSWSC 1702 Texts Cited: Nil Category: Procedural rulings Parties: State of New South Wales (Plaintiff) Daniel Michael Colebrook (Defendant) Representation: Counsel: P Aitken (Plaintiff) J Wilcox (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Ryan Payten Le (Defendant) File Number(s): 2016/226427 Publication restriction: Nil Judgment 1. On 1 December 2016 Adamson J made an order under ss 5C and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") that the defendant be subject to a high risk sex offender extended supervision order for a period of five years from the date of the order, and that he comply with the conditions set out in the Schedule: State of NSW v Colebrook [2016] NSWSC 1702. 2. Ordinarily, that order would have expired on 30 November 2021. However, since the order was made, the defendant has served periods of time in custody both for failing to comply with his ESO and by reason of committing other offences. Under s 10(2) of the Act the ESO is effectively suspended while the offender is in lawful custody during the pendency of the ESO. The result is that the order made by Adamson J will not expire at the earliest until 28 February 2026. 3. By a notice of motion filed 27 June 2023 the State of New South Wales seeks an order pursuant to s 13(1) of the Act that the ESO made by Adamson J on 1 December 2016 be revoked. The defendant supports the application. Legal principles 1. Section 13 of the Act relevantly provides: (1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State or the offender. (1A) … (1B) Without limiting the grounds for revoking an extended supervision order or interim supervision order, the Supreme Court may revoke an extended supervision order or interim supervision order if satisfied that circumstances have changed sufficiently to render the order unnecessary. 1. The principles that guide a decision in respect of applications under s 13 of the CHRO Act were well summarised by Lonergan J in State of New South Wales v Banks (Preliminary) [2021] NSWSC 1246 at [13]: Authorities of this Court that considered the application of s 13 of the Act in different contexts to those prevailing here were set out in Mr Harris's written submissions: [33] The Court may at any time vary or revoke an ESO or ISO on the application of the State or offender: s 13(1). The power to vary includes variation of the term of an order. However, the period of an order must not be varied so that the period is greater than that otherwise permitted under Part 2: s 13(1A). That period must not exceed 5 years from the day the order commences, plus periods during which the order is suspended: s 10(1A). Alternatively, it is open to the State to bring a new application for a further ESO: s 10(3). [34] The power in s 13 has been exercised to revoke orders, where a defendant no longer presents an unacceptable risk: see State of NSW v Myers [2018] NSWSC 1789; State of NSW v Schmidt (Preliminary) [2019] NSWSC 52; State of NSW v Carr [2020] NSWSC 643. [35] In Schmidt, Walton J held that, where an application is brought to revoke an ESO (or where a variation is in substance an application to revoke), the exercise of discretion is conditional on satisfying the Court that the circumstances have changed sufficiently to render the order unnecessary (cf. s 13(1B), at [22]). That question requires consideration of the reasons for judgment given when imposing the original order (at [27]). [36] The Court has observed that the power in s 13(1) may be exercised to vary an existing order by extending the term of the order: see State of NSW v Brooker [2014] NSWSC 1349 at [35]; State of NSW v Sines (No 3) [2017] NSWSC 985 at [72]; State of NSW v Conway [2011] NSWSC 925 at [28]. In the present case, Rothman J referred to the fact that the Department would be in a better position to assess any ongoing need for supervision, and the conditions, at the end of a 3-year order: State of NSW v Banks [2016] NSWSC 926 at [66]. However, it does not appear that power in s 13(1) has ever been exercised to extend the term of an ESO. [37] The power in s. 13 has also been exercised to vary or add conditions: see State of NSW v Bowdidge [2019] NSWSC 85; State of NSW v Kay [2018] NSWSC 1235; State of NSW v Mills [2019] NSWSC 298. [38] In Kay, Wilson J varied an existing ESO, which the defendant had breached, by imposing additional conditions. Her Honour held (at [66]) that the discretion conferred by s. 13(1) is "unfettered, subject to the objects and provisions of the Act". [39] In Mills, Campbell J considered an application to vary an ESO that had been made by Rothman J to add further conditions, including conditions which Rothman J had rejected. Campbell J held that, while an ESO may be renewed or extended under s 10(5), or varied or revoked under s 13, an ESO is a final order for the purpose of the res judicata doctrine. For this reason, his Honour held (at [30]): The Court would not be empowered to come to a contrary conclusion on the basis of the same evidence and arguments that were presented to Rothman J. Section 13 does not permit forum shopping. Rather, reading s 13 as a whole in its full statutory context I am of the view, … [that] the power to revisit the finding made by Rothman J for the purpose of considering whether the order he pronounced should be varied depends upon the demonstration of a material change in circumstances since the original order was made. And it is necessary for the State to prove to the statutory standard of a high degree of probability, that on the whole of the evidence currently available, including the relevant changed circumstance, the offender now presents an unacceptable risk of committing a serious sex offence if not kept under supervision.' [40] The latter requirement, to prove "unacceptable risk", was found in Mills in circumstances where the original ESO had been based on an unacceptable risk of serious violent offending, whereas the State asserted that there now existed an unacceptable risk of serious sexual offending (at [7]). Nonetheless, it is submitted that any variation must be demonstrated to be an appropriate exercise of discretion, in light of the provisions of the Act, including its objects, the test of unacceptable risk, and the other requirements contained in Part 1A and 2. [41] Accordingly, an application to vary an existing ESO requires the State to demonstrate: (a) first, a material change in circumstances, and (b) second, that the variation is an appropriate exercise of discretion, considering the requirements the Act. 1. In State of New South Wales v King [2022] NSWSC 918 I discussed the onus of proof in relation to an application by an offender. I said: [63] If an applicant demonstrated on the balance of probabilities that circumstances had sufficiently changed, the Court's power under s 13(1) would be enlivened. However, it is a power that may, not must, be exercised. At least, the Court would need to consider at the discretionary stage whether the Court remained satisfied to a high degree of probability that the applicant still posed an unacceptable risk. The interplay of ss 5B and 5D means that the State does not need to establish that matter on the balance of probabilities ("more likely than not"). … [66] If at the discretionary stage of the s 13 application the Court considers whether the applicant continues to pose an unacceptable risk, it must be so satisfied to a high degree of probability, even if it does not consider that the risk is more likely than not to eventuate. In that way, from a practical point of view, an applicant seeking to revoke an order under s 13 will have to persuade the Court that, because of the change of circumstances, the Court cannot be satisfied to a high degree of probability that the applicant continues to pose an unacceptable risk. That is the work "sufficiently" has to do. [67] On that basis, mere proof on the balance of probabilities that circumstances have changed to render the order unnecessary will not be enough. To show they have changed "sufficiently to render the order unnecessary" assumes the standard of proof in ss 5B and 5C. 1. The present application is brought by the State rather than the offender. However, there is no difference in principle to suggest that the approach I took on an application by an offender should not apply in an application by the State. That is because at the time the application is made under s 13, the offender has been shown to a high degree of probability that he poses an unacceptable risk. Index offences 1. There were three sets of index offences. They were described by Adamson J in her Honour's judgment as follows: Offences in January 1996 [25] While on parole for the offences referred to above, the defendant committed offences of aggravated sexual assault (contrary to s 61J(1) of the Crimes Act 1900) and aggravated break enter and steal. The circumstances of the commission of these offences are set out below. [26] At about 11pm on 13 January 1996, the victim V2, returned home to her ground-floor unit and went to bed. Her brother and his girlfriend were also at home in bed in another room. In the early hours of the morning of 14 January 1996, the defendant broke into the unit and cut the telephone line. He entered V2's bedroom with a knife and a tea towel. He put the towel over V2's head to stop her from seeing his face and put the blade of the knife against her throat. V2 woke up. The defendant instructed her not to scream and told her to remove her pants. He threatened to cut her if she tried to look. V2 removed her pants and underwear. The defendant held the knife against her throat and ordered her to tell him that she loved him. She acceded to his demand. She was crying. [27] The defendant forced his penis into V2's vagina and had penile intercourse. He then forced her to suck his penis. The defendant removed two rings from V2's fingers and told her not to move for a few minutes after he had gone. He said: "If I hear anything I'll come back and finish it." [28] V2 was terrified throughout the ordeal. Although her brother was close at hand she believed that if she called for help she would be killed. She was also concerned not to alert the defendant to the presence of others, whom she did not want to expose to harm. A vaginal swab was conducted and a DNA sample was taken which matched the defendant. He was not apprehended in respect of these offences until nine years later (see below). [29] From about February 1996 until May 1996 the defendant lived with Amy in a dining room, which was converted into their bedroom, in a house which was occupied by a woman, her three children and her de facto. The woman subsequently became the victim of the offences committed by the defendant in August 1996 which are addressed below in chronological sequence. Offences in April 1996 [30] At about 9.10pm on Thursday 4 April 1996 V1 went to licensed premises in Bidwill with friends. After some time they moved to another location in the area. Later in the evening V1 had an argument with a friend which resulted in her walking in the street by herself at 1.30am. She walked along King Square, Bidwill, to soccer fields and continued along the fence line to the fields. She noticed that the defendant was following her. He was carrying a tea towel and a knife. He placed the blade of the knife against her throat and grabbed her. He threatened to kill her if she made a noise. He tied the tea towel around her head and told her that he would kill her if she tried to escape. He instructed her to climb over the fence, which she did. V1 said: "I've got a daughter, please don't kill me." While she was still blind-folded he told her to slide under the gate of the Bidwill High School. He unzipped his pants and instructed her to suck his penis. She complied in the belief that he would kill her if she did not. [31] He instructed her to remove her clothes. She begged him not to. When she was naked, he instructed her to lie on the ground with her knees up. He had sexual intercourse with V1. He ordered her to tell him that she liked it, which she did because she was so terrified. He then instructed her to stand facing the wire fence and instructed her to bend over. He proceeded to have penile/ anal intercourse with her. He then instructed her to get dressed and directed her to another location. At one point he pulled her by her hair. She begged to be released and told him again that she had a daughter. He asked for her name and address. She provided false details. He then instructed her to pull down her pants and bend over. He again had penile/ anal intercourse with her. He told her to remove her pants and sit down. He then left the scene. [32] When V1 realised that the defendant might have left, she removed the blindfold and sought assistance. The police were called. V1 attended hospital where a sexual assault investigation kit was completed and swabs taken from V1's vagina. DNA analysis of the swabs indicated the presence of male DNA. [33] The defendant was not apprehended in relation to these offences until thirteen years later (see below). … Offences on 15 August 1996 [35] The facts relating to the August 1996 offences are taken from the facts as found by the sentencing judge, Holt DCJ in the remarks made on 26 May 1997: "On 15 August 1996 V3 was residing in a Housing Commission residence at A2 with her three children C1, C2 and C3. She went to bed around 11pm after speaking on the phone to a friend by the name of M1. She was awoken at an unknown hour when she felt a hand over her eyes demanding money. She was then struck several times to the head and her head was covered with a pillowcase. The accused said, "Suck it or I'll kill your kid". She was then made to suck the prisoner's penis and he ejaculated in her mouth. He later took her downstairs – had a drink from the fridge and upon returning upstairs, had penile intercourse with her after ripping her panties off and shortly thereafter attempted to do the same thing again. During this episode of intercourse the two youngest children, C3 (aged eighteen months at the time) and C2 (aged three and a half at the time) came into the room. C3 sat on her mother's chest. The prisoner pushed C3 away causing him to land on the floor. The prisoner then tied V3 up using nylon rope and said, "Give me all your jewellery, slut". Whilst this was happening V3 felt a sharp serrated object, which she believed to be a knife, against her throat. Then having taken off her nine rings and watch he left her tied up in C2's room whilst he searched the house. He returned to demand her keycard PIN number which she gave, and left V3 tied up in C2's bedroom. He had apparently searched the house and removed eighty dollars from her handbag, as well as a mobile phone and keycard. V3 remained in C2's bedroom until daybreak. Having managed to free herself, she called out to a neighbour M2 to whom she made the first complaint nominating the prisoner as the person responsible. The prisoner was confronted around 5pm on 16 August by M3, M4 and M5 at his home but denied any involvement in the matter. Fingerprints were found on two items: the prisoner's left index finger on the handbag sleeve and the prisoner's right thumb on a Department of Social Security card. [36] On 16 September 1996 V3's watch was found in a cassette holder in the defendant's caravan. As a result the defendant was interviewed by police about the offences. He denied any involvement. He was charged with the August 1996 offences and was refused bail. 1. The defendant was sentenced on three separate occasions for these offences. He was ultimately released on parole on 15 September 2015. 2. Prior to this offending the defendant had a criminal record extending back to the time that he was a minor. Although there were a large number of offences, there were no sexual offences. There were sufficient driving offences involving alcohol to suggest an alcohol problem, but in terms of violence, there were a few convictions for assault, some of which led to short prison sentences. 3. After 12 months on parole from the sex offences, an interim supervision order was made, culminating in the making of the ESO on 1 December 2016. Offending since the making of the ESO 1. The defendant has been convicted on seven occasions of breaching his ESO by reason of returning a positive test for drugs, usually cannabis, methylamphetamine, amphetamine or a combination of those drugs. He has been sentenced to various periods of imprisonment for these breaches. He has also been convicted of some driving offences, for one of which he was also imprisoned. Those periods of imprisonment have resulted in his ESO effectively being extended by reason of s 10(2) of the Act. 2. The last such offence has resulted in the defendant being incarcerated until 31 October 2024 when his non-parole period expires. The defendant has lodged a severity appeal, and that appeal was heard on the same day that the present application was heard. 3. I was subsequently informed by the parties that the defendant's severity appeal was upheld. In lieu of the prison sentence, the defendant has been sentenced to a Community Correction Order for a period of 18 months commencing 10 July 2023. The Order provides for supervision by Community Corrections, and includes the following orders: You must comply with all reasonable directions from a Community Corrections Officer about; a) the place where you will live b) participating in programs, treatment, interventions or other related activities c) participating in employment, education, training or other related activities d) not undertaking specified employment, education, training, volunteer, leisure or other activities e) not associating with specified people f) not visiting or frequenting specified places or areas g) ceasing drug use h) ceasing or reducing alcohol use i) drug and alcohol testing j) monitoring your compliance with the order k) giving consent to third parties to provide information to the officer that is relevant to your compliance with the order. You must comply with any other reasonable directions from a Community Corrections Officer. You must permit a Community Corrections Officer to visit you at the place where you live at any time, and permit the officer to enter the premises when they visit you. You must notify a Community Corrections Officer if you change your address, contact details or employment. You must do this before the change occurs if practicable, or within 7 days of the change occurring. Recent assessments 1. An ESO Completion Risk Assessment Report was prepared by Mr Samuel Ardasinski on 6 December 2022 to assist in deciding to consider whether any fresh application should be made under the Act, because at that time the defendant was entering the final year of his ESO. Mr Ardasinski concluded, as part of the Executive Summary to his report: Outside of occasional drug use, Mr Colebrook has led a relatively pro-social existence since his release in 2015 – working, spending time with his adult daughters, and sustaining a number of intimate relationships over the course of his ESO. His lifestyle has not at all resembled the criminal one he was leading at the age of 24 when he committed the index sex offences, aside from his repeated use of illicit drugs and occasional alcohol consumption. 1. Mr Ardasinski considered what had been said in the Risk Assessment Report prepared in 2016 for the purpose of the ESO application, and he said that few, if any, of the warning signs and risk factors identified there had been apparent over the course of the defendant's ESO. He said: 23. According to the initial report [the assessment Report by Youssef on 1/2/16], "Particularly salient dynamic risk factors for Mr Colebrook include: his poor general self-regulation manifested by his substance abuse, impulsivity, aggression, general instability, poor problem-solving skills, negative emotionality, poor coping skills as well as intimacy deficits, demonstrated by unstable relationships marked by substance use, poor history of attachment to significant figures and overall, a poor self-reflective capacity regarding internal processes (i.e. thoughts, emotions)". 24. In my opinion, Mr Colebrook's current presentation is inconsistent with this previous portrayal, since he has led a mostly prosocial existence whilst at conditional liberty on parole and then under the supervision of the ESO Team. I found him quite insightful at interview. 25. While there is obvious evidence of substance abuse which is impulsive, any aggression Mr Colebrook has displayed has been situational and has not resulted in violence. He has been generally stable, has managed problems he has encountered quite well and managed to sustain several longer-term relationships. A general sense of grievance, or negative emotionality, is quite typical for an offender who is subject to any form of post-sentence order. In my experience with Mr Colebrook since 2021, I have noted a reasonably well- developed self-reflective capacity regarding internal processes - he knows his risks and has actively avoided a return to a criminal lifestyle. 1. Mr Ardasinski considered that cohabitation with partners had largely been protective for the defendant and, although some of the relationships had ended badl, there had been no allegations of domestic or sexual violence. Further, whereas his overall risk in 2016 was summarised as moderate-high, that risk had reduced to moderate at the time of Mr Ardasinski's assessment in 2022. 2. Mr Ardasinski said that the evidence suggested the only risk factor present in the defendant's current situation was substance abuse and that had only been occasional. He noted that the defendant had sourced and maintained work and had prosocial relationships. 3. Mr Ardasinki recommended easing his restrictions during the remainder of his ESO, particularly in relation to abstinence from alcohol. Mr Ardasinski was of the opinion that the ESO appeared to have rehabilitated the defendant rather than simply contained his risks of committing a further serious offence. 4. An ESO Completion Report from Terry O'Brien, a Community Corrections officer, reached similar conclusions to those of Mr Ardasinski. Mr O'Brien noted that Corrective Services' records indicated the use of alcohol and drugs were not contributing factors to the defendant's sexual offending. He also recommended that consideration be given to easing the restriction on alcohol in the ESO. 5. Mr O'Brien said: Despite current physical and emotional barriers to gaining employment, Mr Colebrook has a history of securing and maintaining rewarding employment with positive feedback. Mr Colebrook has managed to navigate five intimate relationships, developing relationship skills and dealing with setbacks without attracting any allegation of criminal behaviour. Mr Colebrook identifies that his relationships, both intimate and with close family, provides a sense of responsibility that builds a defensive barrier to bad choices and behaviours. 1. Mr O'Brien also noted that the defendant had not been the subject of any sexual offending allegation or conviction since August 1996. Consideration 1. The following matters emerge from the evidence in the recent reports. First, there is a great deal of resentment on the defendant's part for the fact that he remains on an ESO. Secondly, he does not perceive any problem with his occasional use of alcohol and illicit drugs. That perception is borne out to some extent, because his use of alcohol and drugs on occasions has not led to any other criminal behaviour apart from driving offences. It has certainly not led to any indications of sexual offending. 2. Thirdly, the fact that the ESO has been breached on seven occasions for using drugs has, by reason of the incarceration on each occasion, interfered with his ability to establish stability within the community. The position seems to me analogous to what was said by Hamill J in State of New South Wales v Carr [2020] NSWSC 643: [31] First, the risk assessments no longer establish or suggest that Mr Carr represents a high risk of reoffending. His lack of any sexual offences in almost 20 years is a good indicator of that. The experts who have assessed him have not been struck by any sexual preoccupation expressed by him. I am satisfied that the order, as it presently stands, is serving little or no protective purpose. [32] Second, it is now clear that the impact of the order resulting in Mr Carr's repeated incarceration for relatively minor infractions and his consequent institutionalisation is adversely impacting on his prospects of rehabilitation. Neither the primary nor the secondary objectives of the legislation are being served by this order remaining in place. 1. Fourthly, whilst it may be accepted that the defendant has spent the majority of his adult life in prison, he has spent various periods of time in the community from 2015 until less than one month ago. These periods amount to almost five years in total, both before and since the ESO, although it may be accepted that he has always been under some form of supervision, whether parole or the ESO. Nevertheless, there has been no indication that, despite his use of drugs and alcohol, he has committed any offences which might endanger the community, let alone offences involving sexual offending. It is significant in that regard that Mr Ardasinski considered that a large number of risk factors which were identified in 2016 are no longer present. 2. In her report of 6 October 2016 Dr Eagle had said: 92. Scenarios that would place Mr Colebrook at a substantially higher risk of offending would include those involving the use of illicit substances or alcohol; engaging in criminal activity or associating with others similarly involved; in a perceived invalidating or unfulfilling relationship; in circumstances that present an opportunity to offend (ie carrying a weapon, unemployed, walking the streets late at night). 1. The contrast between those quite legitimate concerns in 2016 and what has eventuated since that time is quite marked. The casual or occasional use of alcohol and illicit drugs, and the experience of relationships which have not worked out, have not resulted in any behaviour of concern in respect of the Act. 2. Finally, it is significant that the present application is brought by the State and is supported by the defendant. Although the discretion under s 13 is ultimately one for the Court, the attitude of the State might be taken as a concession that the defendant no longer poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: see by analogy what was said by Garling J in State of New South Wales v Paton [2020] NSWSC 1707 at [26]. The jurisdiction of the Court under the Act is not a consent jurisdiction either for the making of orders or for their revocation: State of New South Wales v Fisk [2013] NSWSC 364 at [7]. However, the approach of parties represented by counsel is not without significance in assisting the Court to reach an appropriate decision: State of New South Wales v Manners [2008] NSWSC 1242 at [4]; State of New South Wales v Paton (Preliminary) [2020] NSWSC 1178 at [5]. 3. Section 13(1B) provides that the Court may revoke an ESO if satisfied that circumstances have changed sufficiently to render the order unnecessary. I am satisfied, on the balance of probabilities, that circumstances have changed sufficiently. That is apparent from the length of time since the index offences, and the significant changes in the behaviour and attitude of the defendant. 4. In considering whether the order should be revoked, it is significant that the defendant has now been placed on a Community Correction Order for 18 months where he will be supervised. I note the areas where the Community Corrections Officer may give reasonable directions. In assessing whether an ESO should be made, a consideration is the risk if the person "is not kept under supervision under the order" (s 5B(d)). The supervision now to be provided by Community Corrections is a further matter I take into account in considering whether I can, at the present, be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence. 5. Having regard to the changed circumstances, and the recent assessment reports, the Court could not be so satisfied and, accordingly, the ESO should be revoked. It is to be hoped that Community Corrections will have regard to the recommendations of Mr Ardisinski, seemingly supported by Mr O'Brien, with regard to the restrictions on the defendant's consumption of alcohol. 6. I make the following order: 1. Pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the extended supervision order made by Adamson J on 1 December 2016 in State of NSW v Colebrook [2016] NSWSC 1702 is revoked. ********** 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: 14 July 2023