Supreme Court New South Wales Medium Neutral Citation: State of NSW v Robert Ellmore [2011] NSWSC 837 Hearing dates: 21 July 2011 Decision date: 21 July 2011 Jurisdiction: Common Law Before: Latham J Decision: Pursuant to s 9 of the Crimes (Serious Sex Offenders) Act 2006 order that the defendant be subject to an extended supervision order for a period of three years to date from 4 pm on 21 July 2011, expiring 21 July 2014; and, pursuant to s 11 of the Act, I direct that the defendant comply with the conditions which are set out in the schedule to the summons filed in court today Catchwords: CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - application for extended supervision order - offender at a high risk of re-offending without supervision - search and seizure condition justified - extended supervision order made for a period of three years Legislation Cited: Crimes (Serious Sex Offenders) Act 2006 Child Protection (Offenders Registration) Act 2000 Child Protection (Offenders Prohibition Orders) Act 2004 Category: Principal judgment Parties: State of New South Wales - Plaintiff Robert Ellmore - Defendant Representation: L.A. Fernandez - Plaintiff P. Griffin - Defendant Crown Solicitor - Plaintiff Legal Aid NSW - Defendant File Number(s): 2011/88650-1 Judgment 1By amended summons filed on 21 July 2011, the State of New South Wales applied for an extended supervision order for a period of three years in respect of the defendant pursuant to Part 2 of the Crimes (Serious Sex Offenders) Act 2006 (the Act). On the same day I made the orders set out in the schedule to the amended summons. These are my reasons for so doing. 2On 13 April 2011 the proceedings, which were originally commenced by summons filed 18 March 2011, came before Justice Harrison. Justice Harrison made orders for interim supervision which were further extended by Acting Justice Grove on 17 May 2011. Justice Adams extended those orders on 17 June 2011 and a further extension of the orders was effected by Justice Schmidt on 15 July 2011. 3The defendant made no objection to the interim orders, nor does the defendant make any substantive objection to the final orders, subject to what appears below in relation to orders 34, 35 and 36. Notwithstanding the defendant's consent to the making of final orders, the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision : s 9(2). In reaching this level of satisfaction, the Court must have regard to the matters set out in s 9 (3) of the Act. 4The defendant's criminal history (s 9(3)(h)) commences in 1958 and is comprised predominantly of sexual offences committed against female children between the ages of five and 12 years. In 1958 when the defendant was about 20 years of age he indecently assaulted a female aged 10 and received a sentence of one month imprisonment. In August 1976 when the defendant was 38 years of age he indecently assaulted a 6 year old and an 8 year old female and received a term of three years imprisonment with a non-parole period of one year. There was a further indecent assault on a female taken into account on a Form One. 5In January 1981 when the defendant was 43 years of age he committed an act of indecency on a 10 year old child and received a sentence of 15 months imprisonment. In September 1984 when the defendant was 46 years of age he indecently assaulted a 12 year old child and received a fixed term of three years imprisonment. In November 1991 when the defendant was 54 years of age he was convicted of an assault occasioning actual bodily harm on a five year old child and received a good behaviour bond for a period of five years. 6In early 2001 when the defendant was 63 years of age he committed a number of aggravated indecent assaults on an eight year old child and received a sentence of seven years imprisonment, with a non-parole period of three years and eight months. That sentence expired on 23 April 2011. 7At the time that the last sentence was imposed on the defendant, the sentencing judge regarded the defendant's objective criminality as approaching "the highest order". It was noted that the defendant was on parole at the time of the commission of the offences. The sentencing judge also recommended that the defendant participate in the CUBIT program and that on release to parole he be required to participate in the community maintenance program. 8All of the offences involved non-penetrative touching of the genitalia and breasts, kissing and simulated sexual intercourse. The offences constitute serious sex offences as defined by the Act. Moreover, some of them were committed while the defendant was, or was posing as, an Anglican priest and therefore involved gross breaches of trust. 9Two psychiatrists, namely Dr Anthony Samuels and Dr Andrew Ellis, were appointed by the Court pursuant to s 7(4) of the Act to examine the defendant and provide reports. Dr Samuels' report is now exhibit A in these proceedings. Dr Ellis's report is exhibit B. Section 9(3)(b) mandates the Court to have regard to these reports. 10Dr Samuels found the defendant to display "an astounding level of denial, rationalisation and intellectualisation in regard to his offending history." The defendant persistently denied the majority of his offences and when challenged about apparent inconsistencies the defendant "blithely but politely dismissed these challenges." The defendant was inconsistent in his interview with Dr Samuels, initially describing a "skirmish" with his six-year-old niece, whom he said took her clothes off and was being inappropriate with him, albeit later acknowledging that he was sexually attracted to her. The only offence for which the defendant would take responsibility, although he claimed to have no memory of it, was one he committed, on his account, under the influence of alcohol. 11The defendant's explanation for pleading guilty on the majority of occasions that he was charged, and his explanation for undertaking treatment, attending groups and taking anti-libidinal medication, was that he persistently got bad legal advice and was misled by his solicitors. 12Dr Samuels was of the view that the defendant displayed "distorted attitudes towards women and his victims". Dr Samuels notes that "the level of denial, his frank, rather unguarded disclosures given the context and apparent inability to appreciate the inconsistencies in his presentation, [raised] the possibility of an underlying neurocognitive disorder. Against this is the fact that he is articulate, has no word finding difficulties, is able to remember dates and places, coherently give time sequences and his IQ seems to be relatively preserved". In summary, Dr Samuels was of the view that the defendant had quite "significant antisocial and narcissistic personality features." 13Dr Samuels' major concern in relation to the defendant's interaction with others in the community is that when the defendant encounters vulnerable people, "particularly young women with children", they "may be predisposed by religious beliefs or the context in which [the defendant] encounters them", to feel sympathetically disposed towards him as a former "man of the cloth" and accept that he has been subjected to "miscarriages of justice and unfortunate events". 14Dr Samuels found no evidence that the defendant's offending behaviour was in any way connected with substance abuse. The defendant appeared to have made limited gains from psychological treatment and was willing to continue therapy and medication. To the extent that the defendant benefited from anti-libidinal medication in the past, Dr Samuels noted that all of the offences were constituted by touching and that the ability to maintain an erection therefore does not preclude the defendant from committing further offences of that nature. 15Dr Samuels is of the opinion that the defendant's score of 4 on the STATIC-99R placed him in the moderate to high risk category, but that such a score significantly underrates his risk of re-offending. The score reflects a three point subtraction on account of the defendant's age, but Dr Samuels doubted that this subtraction was justified, given the defendant's presentation as a "reasonably robust man for his age", whose offending behaviour was "not necessarily likely to diminish because of age related factors." 16The defendant's criminal history disclosed "persistent sexual violence involving psychological coercion" and "a chronic pattern of behaviour". The defendant was said to exhibit "extreme minimisation, denial, attitudes that support or condone sexual violence, ... problems with self awareness and ... problems resulting from child abuse." 17Dr Samuels diagnosed the defendant as a sexual deviant with social adjustment problems including problems with intimate and non-intimate relationships, problems with employment and problems with treatment and supervision. Dr Samuels noted that the defendant "has had quite intensive psychological treatment but the benefits of this treatment are questionable. He does seem to have had some benefit from anti-androgen type medication but is now expressing some reservations about using it at the current dose in the long term." 18Taking into account all of these factors, Dr Samuels regards the defendant as being at high risk of committing further serious sex offences if not kept under supervision. 19Dr Ellis identified a number of factors that are most consistently or prominently associated with the risk of sexual re-offending. According to those factors, the defendant presented with "a clear pattern of paraphilic sexual arousal, heterosexual paedophilia". In the defendant's case, deviant sexual arousal would continue despite age. The defendant "showed poor understanding of the effect of sexual arousal on offending behaviour." 20Whilst the defendant did not present with an antisocial personality disorder, he does present with personality dysfunction, including narcissistic and schizoptypal personality traits. 21Dr Ellis noted that the defendant's completion of group sex offender treatment programs was not without difficulty and that his "treatment progress did not demonstrate significant changes in attitudes". The defendant "continued to display significant use of distortion, denial and disavowal of personal responsibility for offences, and attitudes towards victims supportive of further offending". The defendant's inflexible thoughts and attitudes were thought to be "likely to contribute to ongoing risk by influencing behaviour in at risk situations and by interfering with treatment progress". 22The defendant also expressed to Dr Ellis a desire to lower his current dose of anti-libidinal medication. 23Dr Samuels in the course of his report referred extensively to a report prepared by Mr Brabant on 28 January 2011. Mr Brabant, Professor Greenberg and Dr Patfield each assessed the defendant in terms of his risk of re-offending. These reports are relevant for the purposes of s 9(3)(c) of the Act. 24Mr Brabant's assessment of the likelihood that the defendant would commit a further serious sexual offence is consistent with that reached by Dr Samuel. Mr Brabant considered that the defendant has an "intense, enduring and recurrent sexual interest towards prepubescent females". It was noted that the defendant had difficulty acknowledging his level of risk, that he engaged in behaviour that placed him at a higher risk of re-offending and that the defendant expressed "extreme minimisation and denial of his offending behaviour, has difficulty with self awareness, [and] holds sexual offence supportive attitudes." The defendant displays distorted beliefs about his sexual offending, including the belief that children are sexually provocative and seek out and enjoy sex. 25Mr Brabant also noted that the defendant's response to treatment was less than ideal and that he begrudged the level of supervision to which he is subject. Notwithstanding that the defendant said he had no current sexual interest, including arousal in the presence of children, Mr Brabant indicated that the defendant was at risk of re-offending unless he was properly managed through medication. 26Mr Brabant's overall assessment of the defendant's risk of re-offending was in the high risk category relative to other adult male sexual offenders. 27Professor Greenberg prepared a report on 2 May 2008 at the request of the New South Wales State Parole Authority. His diagnosis was that the defendant had a paedophilia disorder and that the defendant would benefit from long-term treatment with anti-libidinal medication. Professor Greenberg thought that the defendant required monitoring by a psychiatrist with expertise in treating sexual offenders on anti-libidinal medication. 28Professor Greenberg's view was that in the short to medium-term, the defendant's risk of re-offending would "probably be substantially increased if he were to discontinue the medication." 29Dr Patfield prepared a report on 24 February 2010 again at the request of the State Parole Authority. Dr Patfield noted that the defendant saw himself as a passive participant in the circumstances leading up to his offending. Furthermore, the defendant did not demonstrate "any ability to respect the normal inter-personal boundaries" so that any release plan should restrict the defendant from interacting with minors. Dr Patfield's view was that the principal tools for risk reduction were social and biological rather than psychological. Dr Patfield identified anti-libidinal medication and psycho therapeutic treatment as potentially beneficial to reduce the defendant's risk of re-offending. 30The statistical assessments carried out for the purposes of s 9(3)(d) of the Act used the Static-99 actuarial tool. 31On 26 July 2001 Dr Lennings assessed the defendant using this tool and found his risk of re-offending to be moderately high. At that time, Dr Lennings thought there was a strong possibility of future sexual offending. 32Jason Borkowski in his report of 28 October 2005 assessed the defendant in the high risk category for sexual and violent recidivism relative to other adult male sexual offenders. 33Mr Brabant in his report of 28 January 2011 referred to an assessment using the statistical tool carried out on 20 January 2011, which placed the defendant in the moderate high risk category relative to other male sexual offenders. 34In Mr Brabant's opinion, the difference between the score on the Static-99 in January 2011 and the score in 2005 noted by Mr Borkowski was partly attributable to a recent revision of the statistical tool that takes into account reductions in offending that are commonly observed as offenders age. For this reason, offenders above the age of 60 received a three point subtraction from the score that they receive on testing. 35The subtraction of the three points from the defendant's score should be seen in the light of the fact that the defendant was 63 years of age when he committed his most recent offences. This point has also been made by Dr Samuels in the course of his report. 36Dr Ellis in his report explained that the assessment performed under Static-99 takes into account the low rates of sexual recidivism for persons over the age of 60. However, Dr Ellis's view is that the defendant has yet to demonstrate that there has been a decrease in these factors in his own case, albeit recognizing that the defendant has not had an opportunity to demonstrate such a decrease because he was until recently in custody. Dr Ellis found that there was some evidence that the defendant's sex drive and general behaviour has improved. 37Turning to the defendant's level of compliance with obligations whilst on parole (s 9(3)(f)), it is noted that the defendant was released to parole on 12 December 2000 and complied with his obligations to contact Probation and Parole and undergo monthly counselling. However, prior to the completion of his parole, the defendant was arrested on 24 April 2001 for further sexual offences. The offences were committed in March 2001 whilst the defendant was on parole for sentences imposed at Liverpool District Court in 1999. 38The defendant was last released to parole on 23 December 2010. The defendant has complied with supervising staff and has engaged with the services offered at the residential facility where he now lives. 39The defendant's participation in treatment programmes (s 9(3)(e)) is less than encouraging. The defendant completed a sex offender program in April 2000, consisting of eight sessions. The defendant was noted to have a "tendency to take the high moral ground on issues pertaining to sex with young persons". 40The defendant commenced on the high-intensity CUBIT program on 11 October 2004 and completed it in September 2005. The final treatment report noted that the defendant had disclosed the majority of the offences for which he had been convicted. It was also noted that the defendant disclosed during the course of the program a range of inappropriate and sexually abusive behaviours in the past. The clinical psychologist's report noted that the defendant demonstrated poor empathy towards his victims and that his deviant sexual arousal to prepubescent and pubescent girls, his cognitive distortion relating to his sexual offending behaviour, his externalisation of responsibility for his sexual offending and his manipulation of others all required further attention. 41In a supplementary report of the 28th of October 2005 Mr Borkowski identified the same issues as the clinical psychologist. Mr Borkowski noted that the defendant insisted that he had been misunderstood and that he presented as a "martyr", possibly in order to gain sympathy from therapists and other group members. Mr Borkowski identified these patterns of behaviour as manipulative and consistent with the tactics used by the defendant to facilitate his offending. 42In the final weeks of treatment, the defendant stated that he was "not prepared to change certain things". He claimed that he was "too old to learn", that he was misunderstood and that he was entitled to "keep the Church beliefs", whilst reluctant to disclose and discuss his sexual deviancy. 43The defendant lacked insight into how he would manage his potential risk factors when released into the community. The defendant's relapse prevention plans were considered superficial and his strategies to minimise re-offending were thought to be inappropriate. 44After completion of the CUBIT program, the defendant disclosed to another inmate that he would be able to maintain his role of deacon in the Anglican Church. However on 23 October 2001, the defendant was deposed from holy orders. Mr Borkowski described this disclosure to an inmate as "worrying", because the defendant had used his associations with the Church in the past to gain access to victims. 45The defendant commenced the Maintenance Program in May 2006. The psychologist noted that the defendant developed more strategies for dealing with his risk factors and that following release into the community, the defendant would require continued monitoring and support, including regular contact with a psychiatrist to monitor his response to medication and provide a comprehensive treatment plan for sexual deviance. The psychologist concluded that under no circumstances should the defendant have unsupervised contact with children. 46The defendant's experience with anti-libidinal medication commenced in October 1992. However in December 1993, the defendant ceased using the drug because he felt he had sufficient control over his sexual drive. 47The defendant was prescribed antidepressant medication in January 1999. He ceased this medication between December 1999 and December 2000. In April 2001, the defendant again requested anti-libidinal medication which he continues to take. It has already been noted that the defendant has expressed the desire to cease anti-libidinal medication and that it is unlikely that the defendant would continue to take it, unless it was a condition of his parole. This is of particular concern given the opinions of Dr Samuels and Dr Ellis to the effect that anti-libidinal medication appears to have been the only treatment that has some measurable effect on the defendant's paraphilia. 48A report dated 14 March 2011 sets out the terms of the defendant's supervision and case management by the Community Compliance and Monitoring Group (CCMG) : s 9(3)(d1) of the Act. 49The defendant presently lives at the Community Offenders Support Programme (COSP) and receives budgeting, job-seeking and private accommodation assistance. The accommodation provides the defendant with a structured environment to assist with his gradual reintegration into the community. 50The defendant is electronically monitored, which ensures he does not go into areas that are prohibited and that he keeps appointments with his service providers. He must provide a schedule of his proposed movements one week in advance. 51The defendant also participates in the Maintenance Program at Forensic Psychological Services on a weekly basis. The current risk management plan is to be extended to incorporate the conditions of an extended supervision order. 52There has been no complaint regarding the defendant's compliance with his reporting obligations since he has been in the community and subject to the obligations imposed under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 : see s 9(3)(g) of the Act. 53Section 9(3)(a) of the Act requires the court to have regard to the safety of the community. Taking into account the preceding matters, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of re-offending without supervision and that an extended supervision order is warranted in order to protect the community, more specifically young girls between the ages of five and 12 years. In summary, the defendant has an extensive record for committing serious sexual offences against girls in that age group, he has been diagnosed with paedophilia, he has been assessed as at a high risk of re-offending without supervision, he has committed sexual offences against children whilst on parole and he has failed to demonstrate any insight, despite his participation in sex offender treatment. The defendant continues to engage in minimisation and denial of his offending behaviour. The defendant has also displayed a reluctance to acknowledge his level of risk, particularly when one has regard to the defendant's attempts to re-engage with the Church and his ambivalent attitude towards anti-libidinal medication. 54It is in the context of these factors that the defendant's objection to conditions 34, 35 and 36 of the supervision order must be assessed. Those conditions relate to the powers of the supervising officer to search the defendant and/or his premises and seize any item where the supervising officer reasonably believes that the search is necessary for the safety and welfare of the residents at the defendant's accommodation, or to monitor the defendant's compliance with a supervision order or because the supervising officer reasonably suspects that the defendant is engaging in behaviour associated with an increased risk of re-offending. 55The defendant maintains that the plaintiff has not demonstrated that these conditions are necessary, given that they were not part of the interim order and there has been no material change in the defendant's circumstances. Furthermore, it is submitted that, in the absence of a specific provision in the Act directed to such conditions, there is no basis for subjecting the defendant to them, particularly where they infringe his fundamental rights. As to the last of these objections, the whole of the extended supervision order subject the defendant to such a close level of supervision that the imposition of search and seizure conditions can only minimally add to the infringement of the defendant's rights represented by the order. 56Section 11 of the Act provides that an extended supervision order may direct an offender to comply with such conditions as the Court considers appropriate. The section goes on to enumerate twelve non exclusive directions that may be imposed upon an offender. Clearly, the Court has the power to impose a search and seizure condition, if it is appropriate to the circumstances of the individual case. 57The material upon which the plaintiff relies to justify a search and seizure condition arises out of the report of Dr Ellis. Dr Ellis notes that the defendant expressed some disappointment when he was told he was not allowed to make contact with an acquaintance in New Zealand who had also been convicted of sex offences. Obviously, the defendant's contact with other offenders constitutes a dynamic risk factor. The defendant's supervising officers would therefore have a legitimate interest in detecting any correspondence that the defendant might have with other offenders. 58I am satisfied that conditions 34, 35 and 36 are justified in the circumstances referred to above. 59The court-appointed experts differ with respect to the length of the extended supervision order. Dr Ellis is of the view that a period of five years would be required to establish the defendant in the community and further refine the appraisal of risk. Dr Samuels is of the view that a period of three years is necessary. 60The plaintiff's submission is that an extended supervision order for a period of three years meets the circumstances of the defendant's case. The order includes a level of flexibility which will enable certain conditions to be reviewed at periodic intervals. Given the nature of conditions 34, 35 and 36, it is appropriate in my view that the order be restricted to a period of three years. Those conditions grant significant powers to departmental officers. The exercise of those powers should not be available for a longer period than is necessary to demonstrate any breaches or potential breaches of the supervision order. ********** 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: 04 August 2011