Brett Stuart Radford v Parole Board [2002] NSWCCA 70

New South Wales Court of Criminal Appeal

CITATION : Brett Stuart Radford v Parole Board [2002] NSWCCA 70 FILE NUMBER(S) : CCA 60033/2002 HEARING DATE(S) : 12 March 2002 JUDGMENT DATE : 12 March 2002

PARTIES : Brett Stuart Radford Parole Board JUDGMENT OF : Heydon JA at 45; Dunford J at 44; Buddin J at 1

LOWER COURT JURISDICTION : Parole Board LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : GD Wendler (Applicant) MG O'Brien (Crown) SOLICITORS : Bronwyn Hay (Applicant) IV Knight (Crown) CATCHWORDS : Revocation of parole - review by Parole Board where a further offence is committed - whether Board's decision based on "false, misleading or irrelevant information" LEGISLATION CITED : Crimes (Administration of Sentences) Act 1999 Crimes Act 1900 CASES CITED: McCamley v Offenders Review Board (NSWCCA 9 February 1994, unreported) DECISION : Application refused.

IN THE COURT OF CRIMINAL APPEAL 60033/02

HEYDON JA DUNFORD J BUDDIN J

Tuesday 12 MARCH 2002

BRETT RADFORD v PAROLE BOARD JUDGMENT 1 BUDDIN J: Application is made to this Court by Brett Stuart Radford (the applicant) pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999. That section is in the following terms: 155 (1) If: (a) the Parole Board decides that an offender should not be released on parole, and (b) the offender alleges that the decision of the Parole Board has been made on the basis of false, misleading or irrelevant information, the offender may, in accordance with rules of court, apply to the Court of Criminal Appeal for a direction to be given to the Parole Board as to whether the information was false, misleading or irrelevant. (2) The Court of Criminal Appeal may give such directions with respect to the information as it thinks fit. (3) An application under this section is to be considered by the Court of Criminal Appeal if and only if it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application. 2 It is necessary to say something about the background history of the matter. On 14 August 1997 the applicant was sentenced by Judge Freeman in the District Court to a term of five years imprisonment which was specified to date from 16 June 1997. His Honour, in accordance with the provisions of the now repealed Sentencing Act, fixed a minimum term of three and a half years' imprisonment which meant that the applicant was eligible for release on parole on 15 December 2000. The full term of the sentence was fixed to expire on 15 June 2002. The sentence imposed followed the applicant's plea of guilty to an offence of sexual assault upon a young woman in the town of Tumut which had occurred in 1995. The circumstances of the offence appear in the remarks on sentence of Judge Freeman, the relevant passages from which are set out below: The victim, for example, was forced to flee to a nearby house where she was admitted by Mr Rackmore, who described her as being distressed, dressed only in a bra and tracksuit pants and looking as frightened as any woman he had ever seen, and well might the victim have been displaying such an appearance, the facts of the matter are nothing short of horrible. The victim had gone to a pizza place where she had pre-booked an order and the prisoner was in the vicinity of that pizza place in Tumut. He was slightly known to the victim in the sense that she had seen him around Tumut. He had spoken to her on a prior occasion in a hotel. He asked for a lift. She provided one for him on his assurance that he lived in the same street as she did. One might, in retrospect, regret her act of charity. One might even see her as being less than sublimely wise, but it certainly provides no explanation, excuse or justification for the actions of the prisoner. When sensing some change in his demeanour she attempted to stop the car, asking him to alight. He literally threw himself upon her. In her haste to exit the vehicle she stalled it, and fell out of the vehicle onto the ground, he falling on top of her and beside her. She attempted to run away and he pursued her, seized her, threw her to the ground, man-handled her in an appalling fashion; pulling off her top, pulling down her tracksuit pants and inserting one or more fingers into her vagina. It was this last grave indignity which provided the spur for the young woman to summon her strength and push the prisoner away so that she could flee to the house of Mr Rackmore. The victim sustained a number of grazes, bruises and the like, but I record that only for historical reasons. They do not constitute an aggravating element to the charge, simply they go to demonstrate the vigour and violence with which the prisoner pursued the attack culminating in his digital penetration of this young woman. 3 His Honour said "that this was as an assault pursued with extraordinary vigour and perseverance. I consider it a very serious charge of an absolutely unprovoked, grave form of sexual assault." The applicant said that he could not remember the incident because he was too inebriated at the time. 4 The sentencing judge had regard to the applicant's prior record which included a number of previous convictions although none which had resulted in the imposition of a sentence of imprisonment. It included offences of violence but none apparently of a sexual nature. He had been convicted in 1994 of assault occasioning actual bodily harm, an offence for which he was ordered to perform 150 hours of community service. There were other entries for assault involving domestic violence and for breaching an apprehended domestic violence order in 1992. He had twice been given the benefit of good behaviour bonds. There were various other convictions for malicious damage, larceny and possession of drugs for which he had been fined. Overall there was a pattern of offending which had commenced relatively shortly after his arrival in Australia in 1989 as an 18 year old from his native Zimbabwe. He had apparently had a very troubled childhood growing up in that country. Thereafter followed a number of years in which turbulent relationships with women and a dependence upon alcohol and cannabis featured prominently. 5 In accordance with normal practice, a number of reports were prepared in relation to the applicant and his progress whilst in custody, as the date for his eligibility for release to parole approached. 6 On 12 October 2000 the Parole Board expressed its intention not to release the applicant because he was, in its view, "unable to adapt to normal lawful community life; risk of re-offending; need to complete introductory SORT program (Sex Offender Redirection Training Program)". Even though the applicant did complete the SORT program, the Manager of the Junee Parole Unit still recommended against his release to parole. He described the applicant's commitment to changing his behaviour as merely "scratching the surface." He said that there were significant areas of his behaviour "with which he needs greater and more intensive intervention. His record suggests he fails to follow through with that in the community." Nevertheless the Parole Board did ultimately order the applicant's release on the due date of 15 December 2000. It is not clear what prompted the Board to alter its position but the Board did receive representations from his mother and stepfather, and from his estranged wife who wrote on behalf of their young daughter, Jacinta. Dr Alex Tahmindjis, a general practitioner working in Cooma, who professed to having had experience working with offenders, indicating a willingness to treat the applicant upon his release to the community. 7 A Parole officer from the Junee Parole Unit expressed misgivings about this arrangement because as he said "Dr Tahmindjis states that he does not have any specific qualifications in the area of sex offenders. It is also noted that, other than Dr Tahmindjis, the only available psychologists are generalist practitioners working with Community Health." That officer recommended that the applicant should be encouraged to do a further training course prior to his being released. 8 On 10 February 2001 an incident occurred which involved the applicant and his daughter, Jacinta, whilst he was having a contact visit with her at his mother's place. It is apparent from material placed before the Court that Jacinta complained that she had gone for a walk with the applicant and that during the course of the walk he had stopped and tried to pull down her pants. According to her account he had said he wanted to have a look because he had not seen her growing up. The applicant, when interviewed by police, stated that he was merely trying to remove something from the area of the complainant's stomach. The applicant was subsequently charged at Cooma Local Court on 7 March 2001 with aggravated indecent assault upon a person under the age of 16 years pursuant to s 61M(1) of the Crimes Act. The Parole Board on 29 March 2001 decided to add a further condition to the Parole order which was in the following terms: "The offender shall not be in the company of any person under the age of 16 unless accompanied by a responsible adult." 9 Following an application made by a Ms Martin, an ex-partner of the applicant, a Consent Protection Order was made on 26 March 2001 by the Canberra Magistrates Court. The application was made by Ms Martin on her own behalf and on behalf of her daughter with the applicant, Jasmine Chloe Radford. The order was made with Mr Radford's consent but without his making any admissions as to the complaint made by Ms Martin. The applicant agreed, inter alia, not to contact the applicant or the child unless authorised by court order. The parties also agreed that the applicant should have a contact visit once a month with Jasmine under supervision. 10 As at 28 March 2001 the applicant was reported to have been seeing Dr Tahmindjis twice a week. 11 On 20 June 2001 at Cooma Local Court the charge of aggravated indecent assault was withdrawn by the Director of Public Prosecutions. On 6 July 2001 what was described as being "related Apprehended Violence Order proceedings" were also withdrawn. 12 On 6 August 2001 the applicant was charged with an offence of peep and pry arising from an incident which had occurred at about 11 pm that evening in Cooma. It would appear that the applicant had climbed up on a table in order that he could look through the bathroom window of an accommodation centre where female secondary school students were showering. When he had been disturbed he had run from the area but had been caught and detained by a male teacher who had held him until police arrived. The applicant described the incident as having "occurred on the spur of the moment, and that his curiosity had been aroused after hearing one girl ask another to go to the shower with her. [He] stated that he had just been out walking, claiming that he often does this when he can't sleep." 13 A Probation and Parole Officer with the Cooma office strongly recommended in a report that the applicant's parole order should be revoked in the wake of this incident. He noted that when spoken to by his parole officer the applicant had made "an inculpatory statement with regard to the allegations." He also noted that the applicant had continued having counselling sessions with Dr Tahmindjis who had reported marked changes in his attitude. However the officer observed that "it remains a concern that [the applicant] fails to acknowledge harbouring any sexual deviancy. Consequently, his offending behaviour remains unaddressed." The author of the report also observed that the applicant's supervising officer had been concerned about comments which the applicant had made during interviews with him and in particular in relation to an objection which the applicant had voiced about one of the conditions of his Parole order. 14 On 9 August 2001 the applicant's parole was revoked as and from that day. It would appear that he was not in fact returned to custody to serve the balance of his parole period until 13 August 2001. 15 On 5 September 2001 the applicant was convicted of the offence of peep and pry and was placed upon a bond pursuant to s 9(1)of the Crimes (Sentencing Procedure) Act 1999 for a period of 18 months. There were a number of conditions attached to the bond, one of which required the applicant to continue treatment with Dr Tahmindjis. 16 On 24 September 2001 the Board adjourned the review of its decision to revoke the applicant's parole in order that a psychological assessment could be prepared in relation to him. 17 On 8 November 2001 the Board expressed its intention not to release the applicant on parole. The reason given was that the applicant was "unable to adapt to normal lawful community life; risk of re-offending; need for community management plan." 18 On 17 December 2001 the Board convened in order to reconsider its expressed intention to refuse parole. On that date the Board determined that the applicant should not be released until further review by the Board because it was said "the Board has sufficient reason to believe that if released from custody at this time the offender would not be able to adapt to normal lawful community life; risk of re-offending; need for community management plan." 19 It is that decision which gives rise to the present application. The applicant was represented at the Parole Board hearing by his solicitor, Ms Bronwyn Louise Hay, who swore an affidavit on 4 March 2002 which has been received by the Court. The affidavit relates to her recollection of the course which proceedings took before the Parole Board. 20 The Board had before it various reports. They included a report from Justin Hawkins, an officer with the Goulburn Probation and Parole Service, dated 25 October 2001 and a psychological assessment report dated the same day prepared by Matthew Thomas, who is described as being an Intern Psychologist at the Goulburn Correctional Centre, where the applicant was then being held. 21 Mr Hawkins' report was compiled from a number of sources which included interviews with various correctional staff and with the applicant himself. Mr Hawkins made the following assessment of the applicant's situation as a result of which he concluded that he could not recommend the applicant's release to parole: Mr Radford presents in prison as a highly cooperative inmate who attracts very positive comments from both custodial officers and inmate development staff. When he was last in the community on parole, he was also compliant with directives given him in relation to his behaviour and to his attendance for counselling. However despite a close level of supervision, Mr Radford encountered many personal difficulties which appeared to arise from various unresolved emotional issues with the result that his ability to remain law abiding was tenuous. Of particular concern are the nature of offences with which Mr Radford was charged during his recent period on parole. This is of particular concern given his previous conviction for a sexual related matter. Recent discussions with gaol psychologist Mr Matthew Thomas, who is preparing a report for the Board on Mr Radford, suggest, in his opinion, that Mr Radford required intensive intervention and specialists counselling. Regrettably it is unlikely that this type of counselling could occur in custody given that the inmate has only eight months to service. Enquiries were made in regard to community based counselling administered by Department of Corrective Services in Sydney. However, it was ascertained that Mr Radford did not meet the entry criteria. Whilst it may be argued that ongoing psychological counselling would be available in Cooma through Dr Alex Tahminduis (sic), it is reported that this medical provider has no specific qualification in counselling sex offenders. The recent psychological Risk Assessment does not allow for a positive prognosis at the present time. Parole can therefore not be recommended. 22 His recommendation was supported by a superior officer, Paul Maggs, who observed that the applicant's "previous parole period was not without concerns regarding his sexual behaviour. Coupled with the gaol psychologist's assessments, it would seem inappropriate to release him to parole at this time." 23 Mr Thomas interviewed the applicant on three occasions in October 2001 for a period totalling four hours before compiling his report. He had also spoken to Dr Tahmindjis and reviewed reports that the latter had prepared. The purpose of the report, which had been provided at the request of the Parole Board, was to provide an assessment of the risk of the applicant re-offending. The relevant parts of that report under the heading "Considerations of risk" are extracted below: Static/historical risk factors The Static-99 is an actuarial scale used to estimate risk of sexual and violent recidivism, defined as new charges or convictions. As its name suggests, it considers only historical ("static" and unchangeable) factors regarding the offender and his offending behaviour. It can be considered as an indicator of general potential for offending based on past conduct. The estimate made by the Static-99 in this case may be conservative, as the undersigned did not have access to Mr Radford's African criminal record or any interstate records, if they exist. Nevertheless, Mr Radford's score on the Static-99 was in the High risk category. In the normative population, 39% of those who received a similar score were charged with a new sexual offence within a five-year period, and 45% within a ten-year period. Further, 50% had recidivated violently within a ten-year period. Dynamic risk factors Dynamic (changeable) risk factors are those which relate to current psychological state and life circumstances. They can be considered to be an index of current "live-risk" , can change over time, and are therefore subject to intervention. On the Sex Offender Need Assessment Rating (SONAR), Mr Radford scored in the Moderate risk range. The following areas, associated with Mr Radford's future risk of re-offending, are of particular concern: · Mr Radford's performances while on parole: during this parole period, he was charged with two sexual offences, although one was withdrawn. Given that past behaviour is often predictive of future behaviour, it appears that Mr Radford may again find it difficult to succeed at parole. · The apparent progress that Mr Radford made during the SORT course did not appear to have been maintained: Mr L. Seary's report (26/9/00) stated that Mr Radford had acknowledged that he had planned the crime and "groomed" the victim; however, during the current interview he denied any planning of the offence. · The recent charge and conviction for the offence of Peep involved a minor, as did the charge of Aggravated indecent assault on a victim younger than 16 years. · At the moment, Mr Radford has no reasonable plans that specifically address sexual offending. His plans cover, trying to find gainful employment, lodgings and seeing a Dr Tahmindjis.. (Note: Mr Radford has been directed to continue counselling with Mr. Tahmindjis. Dr Tahmindjis appeared to have tried sincerely to help Mr Radford, but he does not have specific training in working with sex offenders. As a guide, psychologists in the Department of Corrective Services are expected to have 5 years experience working with offenders and are then trained and supervised closely, working with an experienced sex-offender treating psychologist. As noted above, Dr Tahmindjis did not claim to be either a psychologist or a psychiatrist but has a Masters in Psychological Medicine. In a telephone conversation with the author, Dr Tahmindjis had not set specific goals related to Mr Radford's sex offending, which is currently considered to be critical in treating sex offenders. It is the author's belief that Mr Radford, if he received parole, should be required to make the effort to travel to a qualified psychologist/psychiatrist who is experienced and trained in dealing with sex offenders.) Risk of general re-offending The Hare Psychopathy Checklist – Revised (PCL-R) was used to assess Mr Radford's risk of general recidivism. Mr Radford's total score was higher than 50% of the normative population of offenders. According to Serin (1996), 50% of the offenders who scored in a similar range as Mr Radford, committed another offence within 3 years. Some caution should be exercised in considering the scores from the PCL-R. The instrument is only as good as the quality of the information available in making the assessment. Generally speaking, it is a lack of information that may result in lower scores. The author did not have access to all the relevant information and did not have time to discuss Mr Radford's case with all people involved intimately in his life. The author has also seen the results of the Level of service Inventory-Revised (LSI-R) used by Mr D Kelley (23/07/01) to assess Mr Radford's level of need. Mr Kelley modified the risk of level that the LSI-R suggested, which was in the low-moderate range for risk/needs. This is brought to your attention because within 14 days of this assessment, Mr Radford did re-offend. It may be the case that Mr Radford's actual risk is much greater than these actuarial assessments predict. Mr Radford's general presentation and commendable work efforts may create an overly optimistic impression of his general level of risk. Conclusions and recommendations Overall, Mr Radford is assessed as at high risk of some form of sexual, violent or general re-offending. For this reason, it is highly recommended that Mr Radford refer himself for sex offender treatment through CUBIT. Mr Radford can make this referral through myself if he chooses to. Should Mr Radford be granted parole, it is also recommended that a plan be set in place with guidelines that actively address his risk factors for sexual re-offending. Listed below are areas that Mr Radford should work on when gaining professional help, as highlighted by his SONAR results: 1) Intimacy : Mr Radford appears to lack the skills required to enjoy a relationship with a woman. This lack of intimacy may heighten his risk of further offending in a sexual manner. 2) Social influences: Mr Radford does not appear to have access to social influences to whom he feels accountable for his actions. For this reason, he may find it easier to gain access to victims, thereby heightening his risk of re-offending. 3) Attitudes : Mr Radford still harbours some attitudes that seem to condone sexual assault. These attitudes tend to increase the risk of re-offending in a sexual manner. 4) Emotional/Sexual self-regulation : based on the evidence, Mr Radford appears to have poor sexual self-regulation. This heightens his risk of sexual recidivism. 5) General self-regulation: although there are indications that Mr Radford has good self regulation in the context of gaol, it appears that this does not hold when in the community. For example when last on parole: he breached it by committing the offence of Peep. All of these risk factors would be addressed in the CUBIT programme, and a detailed relapse-prevention plan formulated that would take into account specific risk situations for Mr Radford. On the positive side, Mr Radford has shown that he is capable of disciplined work practices and general good behaviour whilst in custody. A desirable outcome of participation in CUBIT would be minimizing the above risk factors and strengthening his positive qualities. 24 An updated report from the Probation and Parole Service, dated 5 December 2001 confirmed the view that parole was not recommended by the Service. Inquiries made by the Service had revealed that there were two psychologists in the ACT who were apparently qualified to provide appropriate treatment and therapy to sex offenders. It was pointed out however that they were some distance away from the applicant's residence in Cooma. The author of the report also highly recommended that the applicant undertake the CUBIT program referred to in Mr Thomas' report but went on to observe that "this is not now available in the time span available to Mr Radford." 25 As has already been observed, Ms Hay in her affidavit refers to the course which proceedings took before the Parole Board. She says that she took issue with the observation in Mr Hawkins' report that "whilst it may be argued that ongoing psychological counselling would be available in Cooma through Dr Alex Tahmindjis, it is reported that this medical practitioner has no specific qualifications in counselling sex offenders." Indeed to demonstrate that the statement was incorrect, she tendered two reports which had been prepared by Dr Tahmindjis. The first was dated, 17 August 2001 and the contents of it appear below: I have been seeing Brett since 20 December 2000. He had been recently released from gaol and was trying to settle into his new existence here with his family. At that initial time he held two particular views. Firstly, there was anger directed towards his ex-partners. His relationships with them appeared to be unhappy. He had the view that he had tried very hard to do everything to please them. However, nothing was ever enough. For instance, either he was working too hard, or not working hard enough. His relationships with some women in particular were frequently unhappy. Secondly, he seemed to have a great capacity for self-blame. If things went wrong, he accepted immediately that it must have been his fault. While, for instance, in the example above he had anger, a lot of it was directed inwards towards himself. "She" may have been nasty, but it was, after all, his fault for meeting her, or marrying her or..., he would say. His management was difficult as he had these strict rules of self-blame attached to himself. However, he did progress and gradually improved in his attitude to life and to people. Another problem arose here. He was charged with an offence here and this was known publicaly (sic). He was, I understand, abused and harassed in the street. This related to a matter that was dismissed. Naturally it made him angry, however, more than that, it made him sad and depressed. He was having difficulty handling the abuse and the guilt he would associate with that. For instance, he would be angry, but he would say that the abusers who accosted him had good reason. That was illogical but he would first blame himself, and treatment for such a character trait has been difficult. I believe that we have made considerable progress in our consultations over the past year and a half. However, we have a way to go. I believe that Brett will benefit from further long-term psychotherapy. If he does not remain in Cooma he should go to a centre where expert therapy is available. 26 The second report was dated 24 November 2001 and was thus prepared in the knowledge that an issue was being raised about his qualifications and capacity to counsel sex offenders. The contents of that report are also set out below: I have treated [the applicant] since December 2000 following his release from prison and until August 2001. The response he made to the therapy he was undergoing with me was significant. His attitude to many things, particularly that associated with his wife and children, developed significantly. His beliefs and views on matters relating to difficulties in his past also changed to a large degree. He found work, firstly in a virtually unpaid capacity, with a relative. Later he found paid employment. Most notable with these matters was that he made a choice between sitting at home and doing nothing, or of returning to the workforce and becoming a useful citizen. He selected the latter and worked, I believe, longer than normal hours at his jobs. His attitude to his offences was one of never denying his guilt. He has faced the reality of the situations in which he has put himself, and has shown, to me at least, what I regard as genuine remorse. He has also shown a genuine desire to engage in cognitive therapy in an effort to overcome his disorder. I believe that was an important step, as initially he was quite resistant. However, he did develop a desire to make changes to his beliefs and feelings where had previously been resistant. I believe that he should continue with his therapy and that the sooner he can do that the better it will be as far as achieving a good outcome for the long-term is concerned. My qualifications I am a medical practitioner. I have the following qualifications: Bachelor of Medicine, Bachelor of Surgery from the University of Sydney; Diploma in Criminology from the University of Sydney; Master of Psychological Medicine from the University of New South Wales; Fellow of the Faculty of Pharmaceutical Medicine of the Royal Colleges of Physicians of the United Kingdom; Fellow of the Australian College of Psychological Medicine. I have been working specifically in the field of treating psychological disorders for over five years. I have treated a number of patients with criminal convictions several with sexual offences, these including paedophilia and other sexually related offences. At the moment I am also treating a number of victims of sexual offences, and am undertaking a study of offenders who have committed sexual assault on children with the intention of offering my findings and conclusions for publication in a suitable medical journal. My experience in the area of treating patients and disorders related to sexual offences is quite large. I also claim a high degree of success in the management of patients such as these. I also do not perceive Brett as a failure. He did make very significant improvements, and I believe that it is important to continue to assist him to move further along the path towards a cure.' I work alone in Cooma and Jindabyne, and am the only doctor doing this work in this area. I have connections with psychiatric colleagues in Canberra with whom I meet regularly for the purpose of discussing patients and difficulties in management. Thus, although I work in relative isolation, I do have access to highly experienced colleagues with whom matters related to diagnosis and therapy can be discussed. 27 The concluding sentence in paragraph 5 of Ms Hays' affidavit is as follows: To the best of my recollection Dr Tahmindjis' success in counselling the applicant to date and his particular qualifications were stated on either this or an earlier date by the Chairman of the Parole Board to be "self-congratulatory remarks". 28 Ms Hay says that she later drew the Board's attention, in the course of her submissions, to another aspect of Mr Hawkins' report in which he had referred to the fact that the applicant had also been charged with the aggravated indecent assault offence upon his daughter but that the charge had later been withdrawn "for reasons not known to the author." According to her affidavit she informed the Board that she had been told by an officer of the DPP that the charge would be formally withdrawn. She had prepared a "no bill application" for the DPP's consideration although she had been informed that "it isn't necessary, however do so if you choose." 29 It was in that context that Ms Hay referred to an exchange to the following effect that had taken place during the course of submissions: Ms Hay: "I would ask the Board to take into account that these charges were withdrawn by the DPP in the early stages due to no supportive evidence." Chairman of the Board: "We do not have to concern ourselves with whether these charges were withdrawn or not. It is enough that the prisoner was charged in the first place."