State of New South Wales v Reed [2012] NSWSC 308

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Reed [2012] NSWSC 308 Hearing dates: 23 June, 17 August, 5, 9 September 2011 Decision date: 09 September 2011 Before: Adams J Decision: Order made pursuant to s 9(1) of the Crimes (Serious Sex Offenders) Act 2006 that the defendant be subject to an extended supervision order for a period of three years commencing on 9 September 2011. Catchwords: CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offender - unacceptable risk of committing a serious sex offence if not supervised - extended supervision order Legislation Cited: Crimes Act 1900 Crimes (Serious Sex Offenders) Act 2006 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Graeme Allen Reed (Defendant) Representation: D Kell SC (Plaintiff) B Tronson SC (Defendant) Crown Solicitors Office NSW (Plaintiff) File Number(s): 2011/176651

Judgment Introduction 1The State of New South Wales applied for an extended supervision order in respect of the defendant under s 9(1) of the Crimes (Serious Sex Offenders) Act 2006 (the Act) for a period of four years. The original Summons was filed in the Court on 30 May 2011 and after several amendments now takes the form of a Further Amended Summons filed in Court with leave on 5 September 2011. At preliminary hearing of the application before McCallum J on 23 June 2011 in accordance with s 7(3) of the Act her Honour made orders under s 7(4) "appointing two experts to conduct psychiatric examinations of the defendant and furnish reports of those examinations to the Court." 2At the time of the hearing before me the defendant was on parole, having been sentenced by the District Court on 8 May 2007 to 5 years imprisonment commencing on 12 September 2006 and concluding on 11 September 2011 with a non-parole period of 3 years on one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. 3On 9 September 2011 I made the extended supervision order, although only for three years, in respect of the defendant, who did not oppose it. There was some controversy about some of the conditions sought by the plaintiff, which was resolved after discussion sufficiently appearing in the transcript. Although, in effect, the defendant consented to the supervision order, the Court itself is required to consider certain matters specified in the Act and be independently satisfied that the statutory requirements are met. I was so satisfied after perusing the material tendered in the proceedings and, hence, decided that the order should be made. Having regard to the timeframe, it was not possible to provide reasons at the time and I informed the parties that I would do so in due course. These are those reasons. The statutory criteria 4Section 9(2) of the Act prescribes the test which must be applied by this Court when determining whether or not to make a an extended supervision order under s9(1)(a). Section 9(3) lists the matters which the Court must consider in determining whether or not to make an extended supervision order. Accordingly, before considering whether to make the application it is necessary to have regard to criteria established in s9(3). Section 9(3) criteria 5The following are relevant in the defendant's case. Section 9(3)(h) - criminal history 6 On 10 May 1988 the defendant was sentenced in the District Court to an effective term of 16 years imprisonment commencing on 18 October 1987 with a non-parole period of 7½ years in respect of eight counts, comprising four counts of sexual intercourse without consent in respect of two separate victims, two of break and enter with intent to commit a felony, one of malicious wounding and one of armed robbery, committed against female victims on 28 June, 7 July and 6 October 1987. On 15 September 1995 the defendant was sentenced to a further aggregate term of imprisonment of nine years commencing on 28 February 1995, with a fixed term of 3 years concluding on 27 February 1998 in respect of one count of assault occasioning actual bodily harm and a minimum term of six years on each of three counts of aggravated sexual intercourse without consent to be served concurrently and an additional term of three years commencing on 28 February 2001. On 8 May 2007 the defendant was sentenced to a further term of five years imprisonment, backdated to commence on 12 September 2006, with a non-parole period of three years on one count of sexual intercourse without consent. All told, the defendant has been convicted of, inter alia, 5 counts of sexual intercourse without consent and 3 counts of aggravated sexual intercourse without consent against 4 female victims committed between June 1987 and August 2005. The defendant entered pleas of guilty to all of the offences for which he was sentenced. 7Brief details of the offences for which the defendant has been sentenced are as follows. While a private soldier in the Australian Army and living at the East Hills army barracks, the defendant, then aged 22, drove to the female army personnel barracks at Moorebank in the early hours of the morning of 28 June 1987 having consumed a quantity of wine. He gained access to the room occupied by a 21 year old female who was asleep. He covered her mouth with his hand and placed a knife against her throat. She woke and, in trying to push the knife, away cut her thumb. The defendant threatened her with the knife and thereafter forced her to engage first in oral and then vaginal intercourse, finally binding her wrists and ankles with electrical tape he had brought with him. 8In the early hours of 7 July 1987 the defendant, after having consumed a quantity of beer and smoked marijuana, returned to the female barracks at Moorebank and, in possession of a knife, gained access to the room of a 21 year old female. The victim, who woke to find the defendant sitting on her bed, pushed out at the defendant and cut herself. After a brief exchange in which the defendant said to the victim "I am going to undress", he touched the victim's vaginal area and the two struggled, the victim attempting to knee the defendant in the groin. During the struggle the two fell to the floor and the victim screamed, alerting another soldier who entered the room. As she did so, the defendant regained his footing and ran past her, subsequently cutting her arm when both women sought to restrain the defendant. 9On the morning of 6 October 1987 the defendant drove to Kings Cross and engaged the services of a female prostitute aged 17 years. The defendant drove her to a location in Potts Point where he produced a knife and demanded that she perform oral intercourse upon him, which she did. At the direction of the defendant, who was still holding the knife, she subsequently undressed and the defendant had vaginal intercourse with her. He then demanded money and, upon receiving forty dollars, he threw all of her clothing from the car, excepting a grey leather coat which she was wearing, ejected her from the car and drove off. 10Whilst at liberty on parole for the offences committed in 1987 the defendant, early on the morning of 28 February 1995, approached a 34-year-old female prostitute on Canterbury Road and offered her money in exchange for sex. She entered the defendant's car and the pair drove to an industrial estate in Riverwood where he produced a knife and stabbed the victim, resulting in a small cut to her right hand. The defendant threatened her with the knife and directed her to undress and perform oral sex on him. The defendant digitally penetrated the victim's vagina and had penile intercourse with her, after which she managed to escape from his car and flag down a police vehicle which pursued the defendant. He was arrested a short time later. 11Early on the morning of 21 August 2005, some 18 months after the expiration of his sentence for the offences committed in 1995, the defendant stopped his vehicle next to the victim, a 20 year old female who was working as a prostitute, and offered her a lift, which she accepted. Whilst en route the victim agreed to have sex with the defendant for $70 and she directed him to a factory car park where, after placing a condom on the defendant's penis, she performed oral sex. The pair then attempted to have consensual penile vaginal intercourse, however the victim was unable to relax. The defendant then removed the condom despite objections. The victim's offer to return the money was rejected by the defendant, who then had penile vaginal intercourse with the victim and ejaculated. He unlocked the car doors, she alighted and he drove off. The victim flagged down a police vehicle and was taken to a nearby hospital where she was examined. The semen tested matched the defendant's DNA. Section 9(3)(h1) - views of the sentencing court 12 In sentencing the defendant in respect of his last conviction, Flannery DCJ said "[i]t is clear from the [defendant's] criminal history that he has a serious psycho-sexual problem. He has been incarcerated as a result of it for approximately seventeen out of the last twenty years." Her Honour went on to say - It appears that, although the [defendant] was eligible for release at the expiration of his six year minimum term in respect of the 1995 matters, he was not in fact released until after he had served the total sentence of nine years. The result was that he had no supervision at all after what was effectively a seventeen year sentence. One cannot help but think if he had been supervised, we might not be here today. Section 9(3)(f) - compliance with obligations while on parole 13The defendant committed the offences on 28 February 1995, some two years and nine months prior to the expiry of his parole order on 15 November 1995, having been released on parole on 16 July 1992 in respect of the sentences imposed in May 1988. Section 9(3)(e) - previous treatment or rehabilitation programs 14A Department of Corrective Services Risk Assessment Report dated 7 April 2011 (DCS Report) lists the defendant's history of psychological treatment and involvement in rehabilitation programs. While in custody in 1992 the defendant participated in eight individual sessions with a Department of Corrective Services psychologist regarding his sexual offences. Between 1996 and 1998 he participated in individual sessions with two Departmental psychologists. The risk assessment report indicates that these sessions were directed to addressing "victim empathy and understanding of offending." 15Between December 1998 and 16 February 1999 the defendant attended 12 sessions of the Sex offender Psycho-Education program (SOPE). SOPE is not considered a treatment program as it was designed to prepare offenders for undertaking therapeutic programs such as the CUBIT. The defendant participated in CUBIT between February 1999 and February 2000. The report on his progress found that - "[w]hile [the defendant] has taken responsibility for his sexual offending behaviour, recognised the elements that led to his decision to offend and made improvements in expressing his feeling and dealing with them, he still needs to devote effort to managing uncomfortable emotional states by himself...[the defendant] also needs to work on challenging his distorted views about relationships and associated self-esteem issues." The report also found that his "risk of sexual reoffending is in the high range" and that his "risk for sexual recidivism is still viewed as high." 16Between March and July 2000 the defendant participated in the maintenance program for sex offenders while at the Kirkconnell Correctional Centre, the purpose of which was to "help the [defendant] maintain and consolidate the treatment gains...made in CUBIT". A report prepared by the Clinical Co-ordinator found that, despite undertaking the program the defendant "failed to address the issues raised in [the CUBIT] report as requiring further work ... [and concludes] that the his "risk of reoffending remains high ... [and] could not be managed in the community". 17The defendant undertook CUBIT between 20 March and 19 November 2009 for a second time while in custody for the offence for which he was sentenced on 8 May 2007. His participation in the program was described as "varied", fluctuating between appearing "motivated to engage in treatment" and "when experiencing negative mood states...[appearing]...to experience difficulty challenging these unhelpful thoughts and participating in group processes." The defendant "acknowledged and took responsibility for his sexual offences and attempted to explore issues directly relevant to his offending including deviant sexual fantasies and negative attitudes towards women" however "[i]t appeared that [he] experienced difficulty identifying personal decisions in his life that contributed to his unhealthy lifestyle and his current offences and, at times, externalised blame for problematic behaviours and life stressors." The report concluded (inter alia) that the defendant's "level of understanding of the nature of his offending was sound, as evidenced by his ability to identify the salient factors contributing to his sexual offending behaviour" although "at times, [he] appeared to continue experiencing some difficulties intervening in problem behaviours..." and that he "should be encouraged to maintain contact with his family, engage in open communication and explore appropriate avenues in which he can develop prosocial adult friendships". 18Following his completion of CUBIT the defendant participated in the Custodial Maintenance Program between December 2009 and September 2010 and then, commencing in November 2010, the Community Maintenance program which he commenced in November 2010. The case notes indicated that he "has participated adequately in group". He denied the ongoing experience of deviant sexual thoughts, but volunteered that his main current risk factors were "bottling up his emotions" and "not talking about issues ... However, there is a lack of depth in [his] participation and he will be encouraged to provide more open insight into his inner thoughts as he adjusts to the new group". Section 9(3)(b) - reports from court-appointed psychiatrists 19On 23 June 2011 MaCallum J made orders appointing Dr Samson Roberts and Dr Andrew Ellis, Forensic Psychiatrists, to conduct separate psychiatric examinations of the defendant pursuant to s 7(4) of the Act. They interviewed the defendant on 15 July and 1 August 2011 and produced reports dated 5 and 6 August 2011 respectively, which were tendered before me. In order to avoid unnecessary repetition it is convenient to briefly summarise the factual and historical information provided by both doctors, identifying any material divergences, and then discuss their individual findings. 20At the time of the interviews, the defendant was 46 years of age, single, unemployed and receiving social security payments. He resided at a Community Offender Support Program Facility in Western Sydney and is subject to electronic and GPS monitoring. He grew up in Newcastle as the eldest of three children and, upon completing his High School Certificate, undertook an apprenticeship in pattern making which he completed. He was unable to find work, was employed as a paper salesman and joined the Army Reserve before enlisting in the Army at age 22. The descriptions offered to both doctors concerning his childhood were consistent. He described his mother as "pretty strict" and "authoritarian" (giving examples of her extreme and humiliating treatment of him) and his father as "a quiet distant man" and his relationship with both as being "distant". Both doctors noted that while the defendant denied being the subject of sexual abuse as a child he had previously disclosed being sexually abused by his father. 21The accounts given to both doctors do not disclose any illicit drug or alcohol dependency, recording that, despite drinking heavily in his early twenties and experimenting with cannabis and speed, he is abstinent from both alcohol and illicit drugs. 22The defendant gave consistent histories about his early sexual experiences. While he has had a number of sexual partners, Dr Roberts noted that the longest sexual relationship lasted a period of 2 years. Dr Roberts also noted that in respect of his consensual sexual relationships the defendant "stated that there was no violence involved nor did he consider that there was any sexual conduct of an aberrant nature". 23He has a history of depression, which he informed Dr Roberts he first experienced in his early teens, although he was not diagnosed as suffering from the illness until 1995. Between 1987 and 1995 he made a number of attempts at suicide. Between 1995 and 2003 he was prescribed medication for his depression, which Dr Roberts noted was effective in stabilising his mood. Despite being weened off this medication in 2003 the defendant has recommenced taking antidepressant medication as prescribed by his general practitioner and is content with the treatment of his "depressive condition". The defendant is also currently taking a number of other medications including Androcur, an antilibidinal medication. The defendant suffers from a number of minor medical conditions for which he is being treated or partially treated. He has reported side effects from the Androcur.