State of New South Wales v Vinh Le [2013] NSWSC 348

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Vinh Le [2013] NSWSC 348 Hearing dates: Orders made 2 February 2012 Decision date: 16 April 2013 Jurisdiction: Common Law Before: Hidden J Decision: Extended supervision order made Catchwords: SERIOUS SEX OFFENDERS - application for extended supervision order - need to address defendant's mental illness Legislation Cited: Crimes (Serious Sex Offenders) Act 2006 Crimes Act 1900 Child Protection (Offender's Registration) Act 2000 Cases Cited: R v Le [2000] NSWCCA 49 Category: Principal judgment Parties: State of New South Wales (plaintiff) Vinh Le (defendant) Representation: Counsel: L Fernandez (plaintiff) M Pickin (defendant) Solicitors: I V Knight, Crown Solicitor (plaintiff) S E O'Connor - Legal Aid (defendant) File Number(s): 2011/338037

Judgment 1On 2 February 2012 I granted an application by the plaintiff, the State of New South Wales, for an extended supervision order, pursuant to s 9 of the Crimes (Serious Sex Offenders) Act 2006, against the defendant, Vinh Le. The order was for a period of 3 years from 5.00pm on 2 February 2012 and, pursuant to s 11 of the Act, I directed the defendant to comply with a number of conditions set out in a schedule of that same date. I undertook to give reasons for that decision. These are those reasons. 2On 3 November 2011 I made an interim extended supervision order, for which I gave short reasons that day. In those reasons I sketched briefly the State's case. It is not necessary to repeat what I said on that occasion but, of course, it is necessary to expand upon it and to set out my findings in the light of psychiatric evidence which I received subsequently. 3The defendant is 57 years old. He is of Vietnamese origin, and migrated to Australia in 1984 when he was 29. There is no need to refer to his background in Vietnam or in this country, except to note that he has an older sister who lives in Melbourne, that he married and moved to Brisbane, the union producing a son who is now an adult, that the marriage failed and that he moved to Sydney in 1988, leaving his wife and son in Brisbane. 4In 1995 he met the woman who, along with her children, was to be the victim of the sexual offences of the following year. They embarked upon a sexual relationship and early in 1996, with the children, moved into a unit at Lakemba. It was there that the offences, committed over a period of some 6 months, took place. His partner's children were a daughter, aged 12, and a son, aged 4. 5In August 1998, he was found guilty at a trial in the District Court of 6 counts of sexual assault and 4 of common assault. Of the assault counts two were offences of striking the children, which do not appear to have sexual overtones. However, the same cannot be said of the other two, perpetrated against the mother. On the first occasion it was because she refused to believe his unfounded claim that her daughter was having a sexual relationship with a man. On the second occasion it was the result of his belief, again unfounded, that the mother herself had engaged in some sort of sexual activity with her daughter. These assaults were part of a wider pattern of violence, or the threat of it, by which he gained control over her. In her remarks on sentence the trial judge, Tupman DCJ, described the relationship as it developed as "abusive." 6The sexual offences of which the defendant was found guilty were the following: * Against the mother, sexual intercourse without consent (s 61R of the Crimes Act 1900); * Against the daughter, sexual intercourse without consent with a person under 16 years of age (s 61J of the Crimes Act), and indecent assault of a person under that age (s 61M(1)); * Against the son, sexual intercourse with a person under 10 years of age (s 66A of the Crimes Act), and 2 counts of indecent assault of a person under that age (s 61M(2)). 7The offence against the mother was his insertion, over her protests, of a carved wooden ornament into her vagina, causing her pain. Most of the offences against the children were committed through the agency of the mother, who largely complied with his wishes because of her fear of him. 8He persuaded the mother to sleep in the same bedroom as her daughter, apparently so that he could commence some sort of sexual relationship with the daughter. The mother reluctantly agreed because of her fear of violence from him. It was while this arrangement was in place that he committed the second assault upon the mother which I have outlined above. 9The indecent assault of the daughter occurred one night when he required her mother and her to remove their clothing. He instructed the mother to touch the girl in the genital area and place a carrot inside her vagina. The mother pretended to comply with his wishes about the carrot but did not in fact insert it. However, at his direction, she did touch her daughter in the genital area. 10The offence of sexual intercourse against the daughter occurred on a subsequent evening, when he again required her to insert a carrot into the girl's vagina. On this occasion he paid closer attention to what she was doing, and she did in fact insert it. 11It was later in the period of the offences that he turned his attention to the son. On two occasions he instructed the mother to play with the boy's penis. These were the two offences of indecent assault. On each occasion he also directed her to suck the boy's penis, which she refused to do. On the second occasion he had been kissing the boy around the top of his body while the mother touched his penis but, when she continued to refuse to suck the boy's penis, he did so himself. This was the offence of sexual intercourse. 12In evidence at his trial he had denied all the allegations made against him. He maintained that he had seen his daughter having sexual relations with a man, and that the mother had been involved in aberrant sexual conduct towards the children. 13It was common ground that this pattern of offending established him as a serious sex offender, as defined by ss 4 and 5 of the Crimes (Serious Sex Offenders) Act. 14Not surprisingly, when sentencing him, Judge Tupman described the offences as "of a most serious nature." She said: "The prisoner abused the position he had in relation to each of these children as a parental figure. He manipulated, I accept, his way into the lives of this family and he used the position of authority that he had established over [the mother] and, as a result, her children, for his own sexual gratification." 15There was evidence before her Honour that he suffered a mental illness, a matter to which I shall return. Her Honour took this into account on sentence, saying: "... I feel that it is proper and permissible, on the basis of the very nature of the offences themselves, and the bizarre quality of them to some extent linked to the evidence that I now have of not only the current diagnosis of the prisoner's mental condition but the many indicators of it that appear to have arisen in the last several years, to be satisfied that there was a connection between his mental illness and these criminal activities." 16Her Honour imposed sentences aggregating imprisonment for 8 years, with a minimum term of 4 years, dating from 28 August 1998. His appeal against his convictions was dismissed: R v Le [2000] NSWCCA 49. 17He was released on parole on 23 June 2006, close to the expiration of his sentence. For a year or so thereafter he was subject to a community treatment order. It seems that he was compliant with medication for his mental illness, albeit reluctantly, but he refused to accept that he suffered mental illness and was unsuitable for any therapy other than medication. However, he did not come under adverse notice until almost 3 years later, when he committed an assault with disturbing features. 18At the relevant time he was renting a bedroom in a house at Cabramatta in which there were other bedrooms which were also rented out. The tenants shared the common areas of the house. A young woman was staying in another room with her boyfriend. In the morning of Wednesday, 25 March 2009 he knocked on the door of that room, where the woman and her boyfriend were asleep. When she opened the door, he explained his presence by saying that he had heard a noise and thought that she might be sick. She went back into her room and locked the door. Later in the morning her boyfriend left the house. The defendant again knocked on the door, saying that he wanted to talk to her, and she let him in. 19Put briefly, what then ensued was that when he entered the room, he locked the door behind him. He seized the woman's wrists, sat on her bed and pulled her towards him. She was unable to escape his grip. He pulled her closer to him and attempted to hug her, but then she managed to get away from him. She unlocked the bedroom door and ran out of the premises. He chased her to the front door of the home, but desisted when she threatened to call the police. 20Plainly enough, the offence was sexually motivated. He was arrested but, when interviewed by police, denied the victim's account. He failed to appear at court and was found guilty in his absence. On 31 May 2010, a magistrate imposed a backdated sentence of 2 months imprisonment. 21The defendant was (and remains) subject to the provisions of the Child Protection (Offender's Registration) Act 2000. On the same day that he was dealt with for the assault the magistrate also imposed concurrent sentences of 2 months for two offences under that Act. The first offence was his failure to comply with reporting obligations between 4 June and 6 August 2009. He had not been living at an address at Regents Park which he had given to the police as his residence. The second offence was furnishing information which he knew to be false in a material particular, by telling the police that he did not own a car when in fact he did. 22These offences, under ss 17 and 18 respectively of the Child Protection (Offender's Registration) Act are included in the definition of the term "offence of a sexual nature" in s 5 of the Crimes (Serious Sex Offenders) Act. 23On 27 July 2010, the defendant was dealt with for further breaches of his reporting obligations. It was in April 2009 that he had told police that he had moved from the address at Cabramatta to the address at Regents Park, and that he did not own a car. He had signed a document to that effect and had been provided with a copy, which outlined his obligations under the Act. This included telling police where he was living and whether he owned a car. On 2 May 2010 police saw him, in possession of a car, in Glebe. He had been living in the vehicle in a street in Glebe, not at either of the addresses known to the police, the premises at Cabramatta and at Regents Park. In that area of Glebe there was a primary school, a girls' high school and a public swimming pool. He had bought the car in June 2009, and had not told the police of the change in his circumstances. 24On this occasion a magistrate sentenced him to 18 months imprisonment, with a non-parole period of 12 months, dating from 6 May 2010. He was released on parole on 2 July 2011, but his period of conditional liberty was short lived. His response to supervision was poor. He was housed in an accommodation facility at Campbelltown operated by the Community Offender Support Program ("COSP"). Put shortly, he was unco-operative with COSP staff, as he was with his parole officer, failing to comply with directions, including referral for psychological assessment, and dismissive of his obligations under the Child Protection Register. 25On 6 July his supervision was transferred to the Community Compliance and Monitoring Group, which provides more intensive management and supervision of offenders in the community. Suffice to say that he was equally unco-operative with that service, and continued to be argumentative and aggressive with COSP staff, although he was aware that his behaviour exposed him to revocation of his parole. He was not taking any medication. In the event, his parole was revoked and he was returned to custody on 28 July. It was in anticipation of the expiration of his sentence on 5 November 2011 that I made the interim extended supervision order. 26I was presented with a considerable body of psychiatric and psychological evidence. Not all of it need be referred to, and it can be summarised fairly succinctly. What emerges from this material is that the defendant had long suffered from paranoid schizophrenia, probably since his adolescence. He had no insight into this condition and did not accept that there was anything wrong with him. It seems that for some years he had had little or no contact with his sister, his wife or his son. His lifestyle, certainly during the period he was at liberty after his release on parole in 2006, was isolated and somewhat itinerant. In my interim judgment I referred to the comprehensive report of Mr Patrick Sheehan, psychologist, who said of him that he "does not appear to have any social influences in his life, whether positive or negative." Mr Sheehan added: "Nor does he appear interested in establishing a network of social supports. His distrust of people will likely have the effect that he remains on the periphery of social groups, moving on regularly when his paranoia or conflict makes him too uncomfortable." 27Mr Sheehan reviewed Corrective Services records concerning the defendant's behaviour while in custody, together with reports of health professionals who had dealt with him. That material is summarised in his report. Among other things, it records a pattern of delusional beliefs, generally of a paranoid nature. Some of these had sexual themes, including his belief that staff and other prisoners regularly entered his cell at night and anally raped him and that female celebrities had been coming into the prison at night and having sex with the inmates. 28Following his release in November 2011, the defendant was assessed by two psychiatrists, Dr Jeremy O'Dea and Dr Andrew Ellis, both of whom provided reports. Each of them also gave oral evidence. Their assessments faced the difficulty that he would not discuss with them the sexual offences of 1996 or the assault of 2009, all of which he denied. Nor, as I have said, did he acknowledge any psychiatric symptoms. They had to rely on records of his offences and of his psychiatric history. He declined to be interviewed by Mr Sheehan, who based his report on an extensive review of a large body of material. 29All three experts found, as had Judge Tupman, that the defendant's mental illness contributed to the 1996 offences, even if it did not wholly explain them. This condition, together with his refusal to discuss the offences, made it difficult to determine whether there was an underlying sexual disorder. 30Mr Sheehan was inclined to the view that there was a paraphilic disorder. He saw the defendant's behaviour towards the children as indicative of pedophilia, but was "reluctant to make an unqualified diagnosis" of that condition. Dr O'Dea expressed the opinion that, although the history of sex offending behaviour pointed to sexual deviance, it may, "at least in significant part, be understood in the context of ongoing problems at the time with disorganised thinking and behaviour, with poor judgment and poor impulse control, that may be related to" his psychiatric diagnosis. Dr Ellis reported that, as he was unable to obtain "any significant psychosexual history, the diagnosis of a comorbid paraphilia could not be made with any certainty." 31That said, the three experts agreed that treatment of the defendant's schizophrenia was vital to minimise the risk of his committing further sexual offences. They expressed that risk in different ways. 32As I recorded in my interim judgment, Mr Sheehan, after a careful examination of the offences, the defendant's psychiatric history and relevant aspects of his personal history, reported that he represented "a moderate to high risk of sexual offending relative to other adult male sexual offenders." Dr O'Dea was of the view that, without appropriate psychiatric treatment, his risk "of engaging in further sex offending behaviours", including further serious sex offences as defined in the Act, "would be considered significant ... ." In oral evidence he explained that by the term "significant" he meant a risk "of such a nature and severity that it would warrant intervention" by psychiatric treatment. Dr Ellis described the risk, in the absence of any treatment or supervision, as "moderately high, and greater than that of a theoretical average offender." In oral evidence, he explained the expression "theoretical average offender" as "a sort of statistical aggregate of people convicted of sex offences." 33In assessing the risk of the defendant committing further serious sexual offences, Mr Sheehan applied the familiar actuarial tool, the Static-99R, while acknowledging its limitations, together with the Risk of Sexual Violence Protocol. Dr O'Dea and Dr Ellis also recognised the limitations of the Static-99R. 34There is no need to examine Mr Sheehan's analysis of the application of those assessment tools. However, one matter should be noted. Mr Sheehan assessed the defendant's score on the Static-99R test as low, placing him in the moderate to low risk category relative to other male sexual offenders. However, with commendable caution, for the purpose of that test he did not have regard to the 2009 common assault on the basis that it was uncertain whether a sexual offence was "truly imminent", as defined in the coding rules. If that assault were to be scored as an "index offence", the total score would have placed the defendant in the high range. I was satisfied not only that that incident was sexually motivated, but also that the defendant would have forced his attentions upon that woman in some way if she had not taken the decisive action she did. 35At the time I made the interim order the defendant was unrepresented. However, at the final hearing he was represented by Mr Pickin of counsel. I am grateful for his assistance, as I am for that of counsel for the State, Mr Fernandez. 36The legislation empowers this court to make an extended supervision order "if and only if" it is "satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision": s 9(2). Mr Fernandez referred to some authority on that subsection in his written submissions, but it is not necessary to examine it for present purposes. The decision is to be made with an eye to the protective purpose of the Act spelled out in s 3. 37This is an usual case of its kind. The defendant is in his late fifties. Prior to the 1996 offences he had no criminal history. Those offences stand as the only serious sex offences of which he has been convicted. No explicitly sexual offence was committed over the years he was at liberty following his release on parole in 2006. Mr Pickin challenged the proposition that the 2009 assault was a frustrated sexual assault, but I have expressed my finding about that. In the light of these matters, and in the absence of a firm diagnosis of an underlying pedaphilia or paraphilia, Mr Pickin argued that it had not been demonstrated that the burden of extended supervision was necessary to protect the community. That being so, he submitted, the requirements of s 9(2) were not met. 38However, I was persuaded by the arguments of Mr Fernandez that there should be a period of extended supervision. The 1996 offences were bizarre and deviant, committed by a man with a chronic psychiatric condition. That condition was untreated and the defendant lacked insight into it. As Mr Fernandez put it in written submissions, it was "central to the risk that he poses, and his future management." He had had no sex offender treatment, continuing to protest his innocence of any offending of that kind. He lacked a stable lifestyle, had not complied with his sex offender registration obligations, and in his last brief period on parole was resistant to supervision. The risk of his committing a further serious sex offence was confirmed by the 2009 assault as I interpreted it. 39In my interim judgment I quoted a significant portion of Mr Sheehan's report. The force of those observations was not diminished at the final hearing. Indeed, they found support in the evidence of Dr O'Dea and Dr Ellis. 40Proposed conditions for an extended supervision order, if one were to be made, were largely not in contest. Some, however, were in dispute. 41Several of those conditions conferred a discretion upon the defendant's departmental supervising officer to impose certain requirements: the wearing of electronic monitoring equipment (condition 4), the notification in advance of his movements (conditions 5 - 8), and a curfew (condition 12). Mr Pickin queried the necessity of these conditions, given that the focus of extended supervision would be to ensure the defendant's psychiatric treatment. That certainly was the focus of the order, but it seemed to me that it required intensive supervision to achieve it. His history of changing addresses without notice and of poor response to supervisory directions led me to the conclusion that these conditions were an important adjunct to the order. Of course, I allowed them in the expectation that a departmental officer would exercise that discretion sensibly and in good faith. 42Also at issue were conditions requiring him to notify the departmental officer of his proposal to enter into a relationship with another person and permitting that officer to notify that person of his offence history if necessary (condition 19), restricting his association with children without permission (condition 21), and forbidding him from accessing pornography (condition 22). However, those conditions also appeared to me to be reasonable precautions in the pursuit of his rehabilitation. Again, insofar as conditions 19 and 21 confer a discretion upon the departmental officer, I expect that that discretion would be exercised responsibly. 43It should be noted that the effect of conditions 50 and 51 is that the Commissioner for Corrective Services is required to review the conditions of the order, particularly any requirement to wear electronic monitoring. Section 13 of the Act empowers this court to vary or revoke an extended supervision order on the application of the State or the defendant. 44The State sought that the order be in force for 5 years, the maximum period permitted under the Act: s 10(1A). Both Dr O'Dea and Dr Ellis recommended that period, being of the opinion that the defendant would require long-term treatment. However, while that period might be optimal from a therapeutic point of view, it did not appear to me to be necessary or appropriate to subject the defendant to supervision for that long. I fixed the period of the order at 3 years, mindful of the power of the court under s 13 to vary that period if the circumstances warranted it.