New South Wales Supreme Court CITATION : The State of New South Wales v White [2009] NSWSC 535 HEARING DATE(S) : 4 June 2009 JUDGMENT DATE : 4 June 2009 JUDGMENT OF : Price J at 1 EX TEMPORE JUDGMENT DATE : 4 June 2009 DECISION : 1. Pursuant to section 13(1) of the Crimes (Serious Sex Offenders) Act 2006 (the Act) the interim supervision order made by the Court on 7 April 2009 and renewed on 12 May 2009 be revoked in effect on and from 4pm on 5 June 2009. 2. Pursuant to section 9(1)(a) of the Act, I make an extended supervision order in respect of the defendant for a period of five years to commence on and from 4pm on 17 April 2009, and pursuant to section 11 of the Act direct the defendant comply with the conditions set out in the schedule to these orders. 3. I direct the defendant's risk and resultant risk management plan be reviewed by the Department of Corrective Services at least once a year. 4. I further direct the impact upon the defendant of the wearing of the electronic monitoring device upon his ankle be immediately considered and monitored. 5. I grant liberty to apply to either party on this aspect of the orders on one day's notice. CATCHWORDS : Serious sex offender - application for extended supervision order - consideration of length of order and electronic monitoring device Crimes Act 1900 s 38, s 61N, 61J(1), 61L, LEGISLATION CITED : Crimes (Serious Sex Offenders) Act 2006 s 5, s 7(4), s 9(1)a, s 9(2), s 9(3) (a) -(i), s 9(3)(g), s 10(1)(b), s 11, s 13(1), s 17(2), s 17(3), CATEGORY : Principal judgment CASES CITED : Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327 PARTIES : The State of New South Wales Maxwell John White FILE NUMBER(S) : SC 11537/09 COUNSEL : Mr D Kell (Plaintiff) Mr Johnston (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PRICE J 4 June 2009 11537/09 The State of New South Wales v Maxwell John White EX TEMPORE JUDGMENT 1 HIS HONOUR: By a summons filed on 19 March 2009, the State of New South Wales (the plaintiff) seeks an order pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 (the Act) that the defendant be subject to an extended supervision order for a period of 5 years and pursuant to s 11 of the Act, that he be directed to comply with the conditions set out in the schedule to the summons. 2 The defendant was sentenced by Gibson DCJ on 29 October 1999 for one count of unlawfully administer a stupefying drug with intent to enable himself to commit an indictable offence, to wit sexual intercourse with JKN, a girl under the age of 16 years, namely 13 years, contrary to s 38 of the Crimes Act 1900; three counts of inciting JKN a person under the age of 16 years to commit an act of indecency contrary to s 61N of the Crimes Act; one count of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act, the circumstances of aggravation being that the victim YEJ was aged between 13 and 14 years and one count of indecent assault contrary to s 61L of the Crimes Act. TMW, the victim of that offence, was a 13 year-old girl. As a result of accumulation and concurrence, the defendant was sentenced to a total effective term of 10 years imprisonment with an additional term of 2 years imprisonment. He completed his sentence on 17 April 2009. 3 On the application of the plaintiff, Grove J on 7 April 2009 made an interim supervision order pursuant to s 8(1) of the Act which was to commence on the defendant's release from custody for a period of 28 days. The defendant was ordered to comply with the conditions set out in the schedule to the order. Orders pursuant to s 7(4) of the Act appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant were also made. On 12 May 2009, the interim supervision order was renewed to expire on 10 June 2009. 4 The plaintiff now seeks that the period of supervision be for a period of 5 years. Short Minutes of Order have been tendered which include in the attached schedule, conditions to which the defendant will be subject. The defendant does not oppose the making of an extended supervision order. The length of the order is, however, in dispute. It is submitted that the defendant who is 73 years old has numerous medical conditions that seriously affect his health and a 5 year supervision order is not required. A 2 year supervision order would be sufficient, the defendant argues, to monitor the defendant's progress in the community. 5 The defendant points out that should this period of supervision be insufficient, the plaintiff can make an application to vary the order for a longer period of time. As to the conditions of compliance, the sole issue is on what part of the body the defendant should be required to wear the electronic monitoring equipment. It is submitted that wearing a monitoring anklet causes an irritation of his skin problems or causes uncomfortable restriction because of vascular disease in his legs. 6 Section 3 of the Act provides: "Objects of Act 3 (1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation." 7 Part 2 of the Act provides for the making of an extended supervision order against a sex offender. Section 4 of the Act defines sex offender to mean a person who has at any time been sentenced to imprisonment following his conviction of a serious sex offence. The offences contrary to ss 38, 61J and 61N of the Crimes Act for which the defendant was sentenced by Gibson DCJ are serious sex offences as defined by s 5 of the Act. 8 Although the defendant does not oppose the making of an extended supervision order, such an order under s 9(2) of the Act may be made if and only if the Court "is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he is not kept under supervision." 9 The plaintiff bears the onus of proof. The standard of proof is high. What is required by s 9(2) is for the court to be satisfied "to a high degree of probability": see Cornwall v Attorney General for New South Wales [2007] NSWCA 374. In Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327 the meaning of the word "likely" in ss 17(2) and (3) of the Act was considered. Giles and Ipp JA said at [89]: "Accordingly, we would hold that the word 'likely' in ss 17(2) and (3) denotes a degree of probability at the upper end of the scale, but not necessarily exceeding 50 per cent." 10 What was said in Tillman applies to the meaning of the word 'likely' in s 9(2) of the Act. 11 The court is required to have regard to the matters identified in s 9(3) (a)-(i) in addition to any other matter it considers relevant in determining whether or not to make an extended supervision order. The matter identified in s 9(3)(g) is not relevant to the present proceedings. The serious sex offences 12 The offences for which the defendant was sentenced by Gibson DCJ involved sexual offences against three different victims in different geographical locations in 1995 and 1996 in country New South Wales. All of the victims were girls whom the defendant had befriended. Two of the girls were thirteen at the time of the offences and the third one had just turned sixteen. The similarities identified by the Judge when summing up to the jury included all of the victims being provided with drinks at some stage by the accused which tasted "funny". After they were given the drinks, all of the victims went to sleep and in the case of two of them, awoke to find that their clothing had been taken off and in the third case, that of YEJ, to find the defendant in bed with her and he taking her clothes off. Another similarity was that the defendant had available to him, over the period of time when the offences occurred, prescription drugs that, either alone or in combination, could bring about the effects which the victims complained of, namely, sleepiness, falling asleep and feelings of unreality at a particular time. These serious sexual offences reveal a pattern of sexual offending against girls. 13 When sentencing the defendant, Gibson DCJ remarked: "…he was a man who took advantage of all of these young girls who were, at the time of his interference, all having problems in their life with family relationships or lack of them." 14 The Judge also remarked that the defendant "has shown no remorse for his conduct whatsoever" and that the defendant "is a person whose word I find impossible to accept…" 15 The defendant's criminal history reveals that he had been convicted in South Australia for serious sex offences before the commission of the offences for which he was sentenced in this State in 1998. Of particular significance are the convictions for rape and assault with intent to commit rape in 1969 and for rape in 1973. 16 The offences for which he was convicted in 1968 were committed on 30 October 1968 near Port Augusta and the victims of the offences were two young adult women, both were hitchhikers for whom the defendant had provided a lift before committing the offences. 17 The defendant was sentenced to a term of imprisonment of 5 years 6 months for the offence of rape with a concurrent term of 2 years 6 months for the assault with intent to rape. 18 In 1973, the defendant was convicted of the rape of a 15 year-old girl on 25 November 1972. He was sentenced to imprisonment for 3 years, which was suspended upon the defendant entering into a bond to be of good behaviour for 3 years and to be under the supervision of a probation officer. It seems that in suspending the sentence the court took into account that the defendant's wife had recently died and his stated desire to be in a position to look after his children. It was an aggravating factor that this offence was committed whilst the defendant was on parole for the 1968 offences. 19 It is convenient to note that the defendant has a conviction in Western Australia in 1983 for breach of probation. Whilst other material in the tendered documentation suggests that he may otherwise have breached conditional liberty in Western Australia no breach action was taken. 20 Previous sexual offending by the defendant includes convictions for carnal knowledge in 1958 and 1961. Other than sexual offences, the defendant has a lengthy history of criminal convictions which include offences of dishonesty, possession of an unlicensed pistol, possession of cannabis and escape from prison. Psychiatric and psychological evidence 21 Extensive material has been tendered. In view of the position taken by the defendant I do not propose to detail all of the tendered material. 22 The defendant is 73 years old. He was born on 13 October 1936. Whilst in custody, he did not undertake any sex treatment programs including the custody based intensive treatment program (CUBIT) for high sex offenders. He was not considered suitable for CUBIT as he continued to deny that he had committed any of the serious sexual offences. From December 2007 to February 2008, he attended 10 sessions of the PREP Pre-Treatment Program which is aimed at motivating and preparing an offender to undertake a treatment program. The defendant voluntarily withdrew from the PREP program before its completion. Sharon Klamer, a Correctional Services psychologist, in a summary case note dated 11 March 2008 observed (tab 41, p 292): " Overall Mr White experienced difficulty understanding the purpose of treatment and voiced on a number of occasions that he does not believe treatment is effective. Mr White was observed through the group to externalise responsibility for all behaviours (offending and non-offending) to other people, particularly those in positions of authority such as the police and DCS staff members." 23 The defendant is an untreated sex offender. 24 It may be accepted that the defendant has had an extensive medical history which is detailed in the psychiatrists' reports and in the affidavit of Tony Sellathambu his solicitor. His history includes iscaemic heart disease with an acute myocardial infarction (heart attack) in 1999, stroke, vascular disease, Type II diabetes, elevated cholesterol, hypertension and osteoarthritis with hip pain. The psychiatrists in their reports note the extensive medication which the defendant has been taking. 25 Two psychiatrist Dr Samson Roberts and Dr Jeremy O'Dea have provided reports to the court pursuant to the orders made by Grove J. The defendant participated in one interview with Dr Roberts and two interviews with Dr O'Dea. 26 Dr Roberts in a report dated 5 May 2009, in answer to the question whether the defendant is likely to commit a further serious sex offence if released into the community and not kept under supervision states at p 22: " Mr White has offended against teenagers who found themselves in his care, giving the impression that he orchestrated contact with them. The impression of his sex offending behaviour overall however is that it is substantially driven by opportunism. Mr White's attraction to women of a variety of ages is also noted. His persistent denial with regard to the offences and his propensity to redirect blame for his circumstances onto the victims has precluded him from courses during his time in custody. It is noted that he withdrew prematurely from the one course in which he was involved. Mr White has essentially not undertaken any treatment whatsoever to address his offending behaviour. His assertion of impotence and lack of sex drive as factors which could mitigate his risk in this regard Is not considered relevant given that the offences for which he has been convicted occurred during the period of sexual dysfunction asserted by him. In summary, with regard to his risk of re-offending, it is my opinion that Mr White remains at high risk of engaging in sex offences in the future by virtue of the fact that the risk factors present at the time of his offences remain unchanged." 27 It is apposite to observe that at the time of the offending against JKN, the defendant was 60 years old. 28 Dr Roberts commented on the defendant's claim that he had been unable to engage in sexual intercourse since the early 1960s and on the defendant's account of the lack of desire for sexual contact since that time. He considered that whilst the defendant's account of impotence could not be verified without plethysmography, it was considered probable that a degree of sexual dysfunction is present in an elderly man with type II diabetes, hypertension, elevated cholesterol and vascular disease. The defendant's assertion that it was a sexually transmitted disease which the defendant thought might have been gonorrhea had curtailed his sexual abilities was unlikely although not impossible. Dr Robert's considered that the defendant's assertion of no interest in sex since his late twenties to be implausible. 29 Dr O'Dea did not diagnose the defendant as suffering from a major psychiatric illness. He opined that the defendant would satisfy the psychiatric diagnostic category of personality disorder with antisocial traits. 30 The psychiatrist noted that the defendant continued to deny his history of sex offending behaviours and projects blame onto the victims of at least the most recent three sets of sex offences. As to the defendant's age and medical problems, Dr O'Dea states at [50]: " I note his age and significant medical problems, including amongst other conditions, vascular disease and diabetes. These conditions and the current prescription of a number of medications, can and do impair erectile functioning and sex drive. However, these issues and problems do not preclude men from gaining erections and engaging in sexual behaviour." 31 As to a prediction of future serious sex offending Dr O'Dea states at [52-54]: " From a full clinical psychiatric risk assessment and risk management perspective, (and as judged by the actuarial risk assessment instruments, the STATIC-99, the widely used actuarial risk assessment instrument aimed at estimating future risk of recidivism of sex offenders, in which Mr White was given a score of 8/12, thereby placing him in the group with a high risk of engaging in further sex offending behaviour over time), Mr White would be considered as having a significantly high risk of engaging in further sex offending behaviours in the longer term. Specific identified risk factors pointing to such a significant risk in Mr White's case of engaging in further sex offending behaviours in the community in the long term would be at least his history of past sexual offending behaviours and his apparent personality. Although there is limited evidence in relation to these issues, his increasing age and medical infirmity may decrease this risk. That being said, and although Mr White's risk of engaging in further sex offending behaviours would be considered significantly high, I do not consider that the current evidence regarding the assessment of risk is suitably advanced to predict his risk of committing a further "serious sex offence" with the required degree of accuracy." 32 Ms Sahm, a psychologist, assessed the defendant's risk of sexual re-offending by reference to both his static risk factors using an instrument known as a STATIC-99 and his dynamic risk factors. The defendant's score of 8 by the application of the STATIC-99 placed him in the high category of sexual recidivism relative to other adult male sex offenders. 33 Ms Sahm in a report dated 9 January 2009 identified a number of key dynamic risk factors exhibited by the defendant that contribute to the characteristics of a persistent sexual offender which included the presence of sexually deviant interests, difficulties in general life stability, anti-social lifestyle and difficulties in interpersonal relationships. Ms Sahm expressed the view that whilst the defendant may have been considered at a lower risk of recidivism due to his age of 73, there were a number of issues which impacted upon that possibility. She concluded that lowering the defendant's risk of sexual re-offending because of his age was not recommended. She opined that the defendant who is 73 years old was a high risk, untreated sexual offender. 34 Professor David Greenberg, a psychiatrist, in a report dated 6 March 2009, concluded that the defendant falls into the high-risk category group for sexual re-offending relative to other male sex offenders. Professor Greenberg opined: " With reference to the Crimes (Serious Sex Offenders) Act 2006 definition of 'serious sex offence' and considering the Court of Appeal in Tillman v Attorney General for NSW decision of meaning of 'likely' I am of the view that Mr White is still at risk to commit further serious sex offence acts if released into the community and not kept under supervision." 35 Professor Greenberg diagnosed the defendant as having an Antisocial Personality Disorder. He expressed the opinion that persons with AntiSocial Personality Disorder tend to have sexual urges and look for situations or opportunities where they have a disregard for and lack of respect of the rights of others and conformity to the law. He states at p 13: " Individuals with AntiSocial Personality Disorders therefore tend to commit sexual and non-sexual offences depending on the opportunity and circumstances." 36 Professor Greenberg agreed with Ms Sahm's assessment of the defendant's dynamic risk factors using the Stable-2007 and Acute-2007 risk factors. He did not consider that the defendant has a paraphiliac (sexual deviant) disorder. The psychiatrist concurred with Ms Sahm's assessment of the relative importance of the defendant's advancing age in any risk assessment for sexual re-offending and remarked: " Older offenders generally display lower sexual recidivism rates, but how best to consider advancing age remains controversial." 37 The STATIC–99 is a predictive tool of limited value. A high score on the STATIC-99 does not by itself establish that the defendant is likely to commit a further serious sex offence. I take his high score into account as a guide in conjunction with the assessments made of him by the psychiatrists and the psychologists. Likelihood of Committing a Further Serious Sex Offence 38 Considering in combination the defendant's pattern of sexual offending, his breach of parole by the commission of a serious sex offence, the expert evidence and the absence of treatment I am satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision. The application will not be dismissed. The Order for Extended Supervision 39 The proposed conditions of the extended supervision order are necessarily rigorous. The primary object of the Act is to ensure the safety and protection of the community. What is at issue are not the proposed conditions but the length of the order. The maximum term of an extended supervision order is five years: s 10(1)(b) of the Act. 40 Section 13(1) of the Act relevantly provides that the Court may at any time vary or revoke an extended supervision order on the application of the State of New South Wales or the offender. 41 As to the length of the order, Dr Roberts expressed the following opinion [at 24-25]: " Based on the information available, Mr White's risk of recidivism has not altered since he committed the sex offences. Based on the information available therefore, Mr White's risk of recidivism is considered longitudinally stable. It is therefore not expected that over the upcoming period of five years, the risk that has remained unchanged for in excess of a decade, will diminish. On this basis, a supervision order of the maximum period is considered appropriate. Furthermore, a prolonged period of Court ordered treatment is considered to provide the greatest opportunity with respect to reducing future risk in the context of the psychological treatment." 42 Dr O'Dea opined at paragraph 59: "Mr White's risk of engaging in further sex offending behaviours in the community in the long term is likely to decrease with his increasing age and physical infirmity, and this risk and resultant risk management strategies should be reviewed on a regular basis, for example every year. However, in the absence of a dramatic decline in his physical health, this risk is likely to remain significant in the longer term, and potentially for five years, and therefore supervision should extend for at least this period of time, with the nature and extent of the monitoring and supervision tailored to his progress." 43 Professor Greenberg was of the view that any extended supervision order should be for an extended period of several years rather than a relatively short period of time. In his opinion, a period of up to five years would not be unbeneficial to the defendant's rehabilitation. 44 I acknowledge that there is the potential for the defendant's risk of serious sexual offending to diminish because of his advanced age and health problems. I propose, however, to adopt the opinions expressed by the court appointed psychiatrists. The term of the extended supervision order will be for five years. I will direct that the defendant's risk and resultant risk management strategies be reviewed by the Commissioner of Corrective Services at least one once a year. 45 As the defendant has been subject to an interim supervision order from 18 April 2009, the order for extended supervision will be made to commence from that date and not as proposed by the plaintiff from today. 46 The issue that remains is where on his person the defendant is to wear the electronic monitoring equipment. One of the conditions of the extended supervision order will mandate the wearing by the defendant of an electronic monitoring equipment if directed by the departmental supervising officer. Since the commencement of the interim order for supervision, the defendant, I am informed, has been wearing an electronic monitoring device. He has instructed his solicitor that wearing a monitoring device on his ankle causes him considerable discomfort due to his swollen lower limbs. 47 A medical certificate from Dr Les Pate made reference to the monitor not being placed on the lower limbs. 48 The difficulties which the defendant experiences with his lower limbs are not of recent origin. Professor Greenberg in his report relevantly recounts that the defendant has "peripheral vascular disease of his legs and suffers from diabetes mellitus. Mr White has a skin disorder called psoriasis, which is a flaking of the skin, most prominent on his elbows and knees." 49 I do not propose to detail here for reasons of confidentiality most of the evidence of Gavin Rowan. It is sufficient to state that I have taken that evidence into account. 50 Mr Rowan, however, gave evidence that he had spoken to Dr Pate. It was his evidence that Dr Pate said it was a circulation issue and if the anklet was looser there would not be a problem. He gave further evidence that it will be loosened tomorrow and then it will be assessed. Mr Rowan accepted, however, that the anklet has been placed on the defendant too tightly. 51 At the present time, there is insufficient medical evidence for me to conclude that the anklet contributes or aggravates the defendant's peripheral vascular disease. However, this is an issue about which I am concerned. 52 The primary object of the Act does not demand that considerations of humanity be overlooked. I direct that the impact of the wearing of the electronic monitoring device on the defendant's ankle should be closely considered. The monitoring device is to be immediately loosened. Should the defendant not be relieved of the discomfort from which he apparently suffers, an application may be made to the Court to vary the condition. I will grant liberty to apply to either party on this aspect of the proposed orders on one day's notice. 53 Accordingly, I make the follows orders: 1. Pursuant to section 13(1) of the Crimes (Serious Sex Offenders) Act 2006 (the Act) the interim supervision order made by the Court on 7 April 2009 and renewed on 12 May 2009 be revoked in effect on and from 4pm on 5 June 2009. 2. Pursuant to section 9(1)(a) of the Act, I make an extended supervision order in respect of the defendant for a period of five years to commence on and from 4pm on 17 April 2009, and pursuant to section 11 of the Act direct the defendant comply with the conditions set out in the schedule to these orders. 3. I direct the defendant's risk and resultant risk management plan be reviewed by the Department of Corrective Services at least once a year. 4. I further direct the impact upon the defendant of the wearing of the electronic monitoring device upon his ankle be immediately considered and monitored. 5. I grant liberty to apply to either party on this aspect of the orders on one day's notice. ********** 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.