State of New South Wales v KAS [2012] NSWSC 1139

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v KAS [2012] NSWSC 1139 Hearing dates: 19 September 2012 Decision date: 21 September 2012 Jurisdiction: Common Law Before: Barr AJ Decision: Orders in accordance with paragraphs 1 and 2 of the draft orders proposed by the plaintiff. Catchwords: SERIOUS SEX OFFENDER - Application for extended supervision order - conditions - electronic monitoring Legislation Cited: Crimes (Serious Sex Offenders) Act 2006 Cases Cited: Attorney General for NSW v Tillman NSW v Conway [2011] NSWSC 588 NSW v Thomas (preliminary) [2011] NSWSC 118 Category: Principal judgment Parties: State of New South Wales (Plaintiff) KAS (Defendant) Representation: Counsel: D T Kell (Plaintiff) M Johnston (Defendant) Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid Commission (Defendant) File Number(s): 2012/194778

Judgment on the plaintiff's application for an extended supervision order 1By its amended summons dated 26 June 2012 the plaintiff claimed the following orders - 1. An order pursuant to s 7(4) of the Crimes (Serious Sex Offenders) Act 2006 ("the Act"): (a) appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; (b) directing the defendant to attend those examinations. 2. An order pursuant to section 8(1) of the Act that the defendant be subject to an interim supervision order from 28 July 2012 for a period of 28 days, and pursuant to s. 11 of the Act, direct that, for the period of the interim supervision order, the defendant comply with the conditions set out in the Schedule to this Summons. 3. An order pursuant to section 9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of 3 years from the date of the order and pursuant to s. 11 of the Act, direct that the defendant comply with the conditions set out in the Schedule to this Summons. 2On 26 July 2012, after a preliminary hearing, I made orders in accordance with orders 1 and 2 of the amended summons. On 22 August 2012, I ordered that the interim supervision order be renewed so as to expire at 6.00pm on 21 September 2012. On 19 September 2012 the Court received evidence, including the reports of Dr Ellis and Dr Roberts, and submissions from Counsel on the question whether order 3 should be made and, if it were, whether the conditions referred to ought to be amended in certain respects. 3The Crimes (Serious Sex Offenders) Act 2006 ("the Act") has as its objects the provision for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community as well as the encouragement of sex offenders to undertake rehabilitation: see s 3 of the Act. The terms "serious sex offender" and "serious sex offence" are defined in ss 4 and 5 of the Act, but I do not need to set out the definitions. I shall review the defendant's convictions in this judgement. The parties are agreed that the offender is a serious sex offender and subject to the exercise of power under the Act. 4Other relevant sections are as follows - 9 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order: (a) by making an extended supervision order, or (b) by dismissing the application. (2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (2A) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence. (3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature. ... 11 Conditions that may be imposed on supervision order An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender: (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name. 5In order to make an extended supervision order at a final hearing the Court must be satisfied "to a high degree of probability" that the offender poses "an unacceptable risk of committing a serious sex offence" if not kept under supervision. See Attorney General for NSW v Tillman, per Bell J at [27]. 6In NSW v Thomas (preliminary) [2011] NSWSC 118 RA Hulme J expressed a tentative view at [20] that the test for unacceptable risk is satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made. Simpson J approved that formulation in NSW v Conway [2011] NSWSC 588 at [30]. 7The defendant was born on 12 February 1973 and is 39 years old. He came under the notice of the Children's Court when he was 14 and was dealt with over the years for many occasions of misbehaviour including offences of dishonesty and violence. In 1988 he was suspended from school after a report that he and his younger brother held down girls and fondled their breasts and vaginas. After he came of age he began to be dealt with in the Local Court but not for any offence of a sexual nature. 8Just before Christmas 1996 he impregnated his 11 year old cousin, in whose house he was staying at the time. He pleaded guilty in the District Court after DNA tests proved it highly probable that he was the father of the child delivered to the girl. He was sentenced to imprisonment. The Crown appealed against the sentence and it was increased in the Court of Criminal Appeal to a head sentence of 4 years and 6 months with a non-parole period of 2 years and 3 months. 9Between 1 November 1997 and 5 April 1998 the defendant committed two serious sexual offences against an 8 year old girl. Between 24 March and 18 December 1998 he committed two further offences against the same girl. Between 10 December 1998 and 20 April 1999 he committed a further offence against the girl, who was then 9 years old. The child was the daughter of a woman with whom the defendant had entered a relationship. 10In the first event the defendant touched the child's vagina with his finger but did not penetrate. In the second he had her suck his penis. He ejaculated. In the third he again touched her vagina without penetrating her. In the fourth he again had her perform fellatio until he ejaculated. His activities in the fifth were of much the same kind. 11The sentencing Court took the view that he was in the position of step-parent and that his actions, which occurred over a period of about 2 years, constituted breaches of trust. For the five offences the defendant was sentenced to an effective total term of imprisonment of 11 years with a non-parole period of 8 years. The Court of Criminal Appeal refused him leave to appeal against the severity of the sentences. 12The defendant was released to parole on 14 June 2012. His last sentence expired on 28 July 2012. 13On the application a treatment report written on 30 April 2012 by Sophie Purcell, Specialist Psychologist, and Maggie Cruickshank, Acting Therapeutic Manager, was tendered. Both authors had the management and assessment of the defendant, before his release to parole, under the CUBIT (Custodial Based Intensive Treatment) programme. CUBIT is a custody-based residential programme for men who have sexually abused adults or children. The programme balances risk management with a strengths-based approach to treatment for individuals with moderate to high risk and needs. The programme lasts between 6 and 10 months. 14Also before the Court was a risk assessment report written by Senior Specialist Psychologist Patrick Sheehan, acting director of the Sex and Violent Offender Therapeutic Programme, and Danielle Moatsuo, also of the CUBIT programme. 15Those having the management of the defendant were troubled about his attitude to illicit drugs. He was diagnosed as having opioid dependence with physiological dependence, amphetamine dependence with physiological dependence and alcohol dependence. During his teenage years he was diagnosed with schizophrenia and then again during the early stages of his sentences in 1999 and 2000, but the opinion was that his psychotic symptoms were probably related to drug use. There is no suggestion now that the defendant is psychotic. 16During his time in custody the defendant was dealt with 29 times for misconduct. More than half the offences were for drugs in urine or for failure to supply urine for testing. Substances detected in the urine included cannabis, buprenorphine and methamphetamine. 17The defendant's failure to come to terms with his offending against the children was reported on. 18In 2001 the defendant was found suitable to enter the CUBIT programme, but he declined to do so. In 2006 he was again offered the opportunity to commence the programme but he began to make excuses for not doing so and was ultimately regarded as having refused the offer. In 2010 he was again advised that he was suitable and was offered a position to begin, but again he refused to sign. It was not until 2011 that he finally consented to enter the programme. One result of this delay was that he could not fully complete it and in the end it had to be rushed. 19Early in the programme he participated and his prospects looked favourable. Later on, however, although he said that he wanted to progress through treatment, his behaviour was inconsistent. His progress slowed. He experienced high levels of shame and discomfort when attempting to explore past behaviour. He engaged in "avoidant-based coping through shifting responsibility to others". He offered minimal self-disclosure. He neglected to acknowledge a sexual attraction to children or access to children as a risk factor. 20Those reporting considered that the defendant fell in the moderate-high risk category, relative to other male sexual offenders, of sexually reoffending. 21Mr Sheehan considered that the defendant's history, including his previous poor response to supervision and his history of abusing illicit drugs and alcohol, suggested that he would probably struggle to apply treatment gains outside the CUBIT therapeutic unit. Mr Sheehan considered that the risk of his use of illicit drugs raised concerns as to his ability to benefit from treatment. 22Mr Sheehan considered that the disinhibiting effect of alcohol and illicit drugs was relevant to the risk of his sexual reoffending. 23Mr Sheehan pointed out that the offence committed in December 1996 was impulsive and opportunistic, whereas the offences committed against the child of his partner were committed over a long period and involved an element of planning. Mr Sheehan was struck by the defendant's versatility in that respect. 24On the application for Order 3, the extended order, Mr Kell, counsel for the plaintiff, tendered a report of Dr Ellis dated 19 August 2012 and a report of Dr Roberts dated 14 August 2012. Mr Kell read certain affidavits, to which I shall refer. 25On the hearing the issues between the parties were narrow. Mr Johnston, for the defendant, had indicated in written submissions filed before the day of hearing that the defendant would not oppose the Court's making an extended supervision for a period of three years. Mr Johnston indicated that the defendant would be content with the conditions proposed by the plaintiff, except for a few matters to which I shall refer. 26I have read the reports of Dr Ellis and Dr Roberts and the other evidence to which I have referred. I express myself satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. These are the reasons why I have come to that view. 27Dr Ellis was asked to express opinions on a number of matters including whether the defendant met the diagnostic criteria for any psychiatric or psychological condition, and the traits and symptoms, likely duration, chronicity, and the level of any condition. He interviewed the defendant and read documents recording the history of offending, management in jail, including offending there, and substance use. His diagnosis included the following - The recorded behaviour of obtaining an erection and ejaculating whilst in sexual activity with children is consistent with a diagnosis of paedophilia, attracted to females, non exclusive type. The behaviour is documented over a greater than six month period with two different victims. One victim is clearly prepubescent, and the other on the cusp of puberty. He endorsed some cognitions typical of persons with paedophilia both at interview today, such as believing the second victim enjoyed the time with him and on a structured scale administered to him 12 years ago. It is not uncommon for persons with paedophilia to be unaware of fantasies and urges associated with the behaviour, or to deny them although experiencing them. Paedophilia usually manifests as chronic relapsing condition. He would meet criteria for a polysubstance dependence disorder. This includes dependent use of alcohol, amphetamines, opioids, benzodizepines and abuse of cannabis and hallucinogens. This is currently in remission in a partially controlled environment. I note that recently despite being in a controlled environment substance use persisted, so this remission is very early. 28Dr Ellis expressed an opinion about the risk of commission of a further serious sexual offence, and his report included the following - Clinical considerations in regard to risk of reoffending include deviant sexual arousal or paraphilia, personality disorder, substance use, age, social isolation and treatment setting. These can be applied to a structured professional judgement instrument to determine areas of propensity for future sexual aggression such as the RSVP. I have made reference to this tool in my evaluation. It does not place persons into risk categories, but identifies factors contributing to risk. Deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence." [The defendant] presents with historical offences that indicate this pattern of arousal. He reported distorted attitudes typical of persons with paraphilic arousal at the time of offences, as well as psychological coercion, a chronic pattern of offending and threats towards children. Antilibidinal medication is the best treatment to address deviant arousal. Behavioural techniques may reduce deviant arousal, however from the CUBIT treatment report appear not to have been addressed due to [the defendant's] disavowal of deviant arousal. Antisocial personality orientation is another factor consistently identified with sexual reoffence. He is diagnosed with antisocial personality disorder. Disturbance in personality function can interfere with honesty in treatment, cooperation with restrictions and passive-aggressive sabotaging of treatment progress, and has been demonstrated by infractions during previous treatment. Personality difficulties often lead to conflict within relationships, and subsequent distress and negative mood states associated with offending. He describes relationship dysfunction during all of his offences. There is therefore need to continually address personality function as part of any ongoing treatment process. ... Substance use is significantly implicated in all offences. Similar to a disordered mental state, substance use itself is not a major factor, but serves to disinhibit underlying sexual impulses, and predisposes to disordered mental states. ... A consideration of the type of possible sexual offence should be considered in an estimation of risk. In the case of [the defendant], given the particular pattern of sexual arousal, the most likely type of victim would be a female child in a situation where they were alone or in a position of vulnerability. The associated intimidation and loss of a sense of bodily integrity through penetrative acts would be of the type where physical injury and psychological injury are foreseeable. In considering actuarial, structured professional and clinical parameters in the absence of any treatment or supervision [the defendant] would fall into a group of persons with a risk offending that is moderately high, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk. 29Dr Roberts, likewise, was asked to interview the defendant and report. Dr Roberts said this about the defendant's attitude towards his offences - At the time of his attendance for assessment, [the defendant] stated his opinion that drug and alcohol use was "the biggest issue". [The defendant] explained that he was intoxicated during all the sexual offences. He stated "there wasn't a day when (he) wasn't on something". He also considered that the lack of communication and inability to access or utilize support were significant factors. By contrast, in August 2002, it was noted that "[ thedefendant] was not able to make a link between substance abuse and his sex offence". ... When asked regarding his thoughts as to his risk of relapse to substance use, [the defendant] replied that he considered himself older and wiser. He stated that he had learnt from his previous behaviour and that "there are so many things people take for granted". He stated his opinion that he had his "priorities sorted now". ... Of the substances used by [the defendant], of particular concern is his use of stimulants, namely amphetamine and methamphetamine, benzodiazepines and alcohol. Stimulants have a euphoric, energizing, and disinhibiting effect. They have the potential to be associated with aggression and are strongly associated with the development of psychotic symptomatology such as those described by [defendant]. Benzodiazepines, whilst potentially sedating, cause disinhibition, clouding of the sensorium and have potential amnesic effects. Alcohol, by [the defendant's] account, renders him aggressive. All these substances in addition to cannabis and Buprenorphine, which [the defendant] reports having used previously, have the potential to compromise judgement, undermine cognition and produce disinhibition. In combination, the substances reportedly used by [the defendant] are expected to have an unpredictable synergistic effect dramatically heightening the risk of engaging in inappropriate conduct, in particular in someone who is pre-disposed to aggression, criminality or inappropriate sexual conduct. ... [The defendant] would appear to have demonstrated insight into the potential risks associated with substance use and has abstained from drugs and alcohol since January 2012. Whilst his success thus far is considered a positive prognostic indicator, his period of abstinence whilst under strict supervision, represents a short-lived success having regard for the many years of substance use including ongoing substance use in an environment where procuring substances is, in theory, more challenging than in the community. 30Dr Roberts expressed his opinion thus - Having regard for the nature of [defendant]'s sexual offending, it is my opinion that [the defendant] attracts a diagnosis of Paedophilia in accordance with the criteria stipulated in DSM-IV TR. The fact that [defendant] has minimized or indeed denied his sexual attraction to children cannot in my opinion be considered to negate a diagnosis which has been supported by past behaviour. In my opinion, [the defendant] is expected to suffer a life-long propensity to the development of psychotic symptoms in the context of stimulant use. Whilst it is apparent that the psychotic episodes have in the past fully remitted on reduction or cessation of stimulant use, it cannot be predicted with certainty whether future episodes of psychosis would fully remit should [defendant] relapse to substance use in the future. There remains uncertainty in relation to the presence of a psychiatric condition unrelated to his use of substances or the potential impact of cessation of his current medication regime. An opinion with regard to prognosis in this regard would be premature. The diagnosis of Paedophilia, in my opinion, reflects a life-long orientation which it is hoped [the defendant] will successfully manage with the support of skills derived from therapy and the ongoing support of professional services to which he has access in the community. 31Dr Roberts said this about the risk that the defendant might commit a further serious sex offence - Of concern in [the defendant's] case is his significant history of drug and alcohol use. [The defendant] was intoxicated at the time of the sexual offences and it is my opinion that a relapse to substance use would represent a situation of heightened risk. A relapse to his previous pattern of past substance use would dramatically impact upon his cognitive functioning, interpersonal manner and judgement. Furthermore, [the defendant] has demonstrated a propensity to developing psychotic symptomatology as a result of substance use of such a degree of severity as to have led previous psychiatrists to consider that he was suffering the major mental illnesses of Schizophrenia or Schizoaffective Disorder. ... In summary, it is my opinion that the above factors confer upon [the defendant] a high risk of potential reoffending. 32Both psychiatrists were asked to comment on the desirable length of any proposed course of management and treatment. Dr Ellis said this - From a psychiatric perspective a period of three years is considered reasonable in order to establish a baseline function in the community, and refine the appraisal of risk. It is most likely that a period of 12 months will be required to secure stable accommodation and regular meaningful activity in the community, given the restrictions on persons subject to extended supervision orders. During this period of time, it is unlikely that a person will have the focus to benefit from intense therapeutic activity. A further 12 months of regular treatment in a psychological program, coupled with medication and review of this medication would be necessary to consolidate the modest gains made in custodial programs. This period is estimated based on his personality disorder, paraphilia, substance use disorder and current attitudes to supervision that will be unlikely to change in the short term. Involvement in structured activity and appropriate social groups will also consolidate a routine promoting a positive lifestyle. A further period of 12 months would be required to monitor the consolidation. At this point a more informed appraisal of future risk in progress could be made. His psychiatric disorders are chronic and likely to persist beyond any period of supervision, but may be better internally controlled at that point. 33Dr Roberts said this - Overall, it is my opinion that [the defendant] has been in receipt of insufficient treatment aimed at addressing the risk factors associated with his offending behaviour. His successful reintegration into the community will require support to counter the lack of informal social support in Sydney if he is to remain in the metropolitan area in order to access the treatment that he requires. In my opinion, a treatment program and supported community reintegration plan would require a period of no less than three years. 34I have read the whole of the reports of Dr Ellis and Dr Roberts. The paragraphs I have extracted will serve to explain why I have reached the degree of satisfaction I have expressed. 35I should add that both psychiatrists point out that the defendant has been offered and refused anitlibidinal medication. Such medication may not be lawfully administered without the consent of the patient. I will not repeat the material here, but there is a substantial risk of troublesome side effects from the use of such medication, and I would not criticise the defendant for not wishing to take it. I have not taken his refusal into account in coming to the conclusion that I have expressed.