State of New South Wales v Irwin [2013] NSWSC 1773

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Irwin [2013] NSWSC 1773 Hearing dates: 7 November 2013 Decision date: 29 November 2013 Jurisdiction: Common Law Before: Barr AJ Decision: The defendant be subject to an interim supervision order from 9 November 2013 for a period of 28 days. That two qualified psychiatrist be and are appointed to conduct separate psychiatric examinations of the defendant, and furnish those reports to the Supreme Court by 19 December 2013. That the defendant attend those examinations. Catchwords: high Risk SEX Offender - interim detention order sought - interim detention order opposed - alternative interim supervision order sought - interim supervision order not opposed - long history of child sex offending - victims known to offender - opportunistic offender - mild intellectual disability - interim supervision order granted - conditions imposed - community offender support program - electronic monitoring - travel restrictions - approved accommodation - accommodation restrictions - curfew Legislation Cited: Crimes (High Risk Offenders) Act 2006 Child Protection (Offenders Prohibition Orders) Act 2004 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Scott Lee Irwin (Defendant) Representation: Counsel: T Hammond (Plaintiff) M Johnston (Defendant) Solicitors: (Plaintiff) (Defendant) File Number(s): 2013/321111 Publication restriction: None

Judgment 1These are proceedings brought by the State of New South Wales under the Crimes (High Risk Offenders) Act 2006 ("the Act"). The Act confers power upon the Court, in certain circumstances, to make an order for the extended supervision of a high-risk sex offender for a period of up to five years after the conclusion of a sentence of imprisonment. 2By its summons filed on 24 October 2013 the plaintiff seeks the following orders against the defendant, Scott Lee Irwin: (1)An order pursuant to section 15(4) of the Crimes (High Risk 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 18A of the Act that the defendant be subject to an interim detention order from 9 November 2013 for a period of 28 days; (3)An order pursuant to section 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in paragraph 2 above. (4)An order pursuant to section 17(1)(b) of the Act that the defendant be the subject of a continuing detention order for a period of two years from the date of the order. (5)An order pursuant to section 20(1) of the Act that the Court issue a warrant for the committal for the defendant to a correctional centre for the period specified in paragraph 4 above. (6)In the alternative to paragraphs 2 and 3 above, an order pursuant to section 10A of the Act that the defendant be subject to an interim supervision order from 9 November 2013 for a period of 28 days, and pursuant to section 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. (7)In the alternative to paragraphs 4 and 5 above, an order that pursuant to section 17(1)(a) of the Act, that the defendant be subject to an extended supervision order for a period of five years from the date of the order and pursuant to section 11 of the Act direct that the defendant comply with the conditions set out in the Schedule to this Summons. 3On 7 November 2013 I made orders pursuant to ss. 15(4), 10A and 11 of the Act. I announced that I would give reasons later. These are my reasons. 4The defendant is a 37 year old man with a mild intellectual disability and a long history of the commission of sex offences against boys, mostly boys between the ages of 6 and 11 years. He has convictions for the possession of child pornography. He has failed to comply with his obligations under child protection legislation. When I made my orders the defendant was within two days of the expiry of a 2 year sentence of imprisonment for contravening child protection orders made against him on 22 December 2010. 5Offences the defendant has committed come within the definition in s5 of the Act of "serious sex offences". It follows that the defendant is a sex offender as that term is defined in s. 4. By subs 5B(2) an offender is a high risk sex offender if the offender is a sex offender and the court is 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. I was satisfied to the relevant degree of probability that there was an unacceptable risk that if left unsupervised after his release on 9 November 2013 the offender would commit a serious sex offence. 6I may deal briefly with the evidence on which I reached that conclusion since Mr Johnston, counsel for the defendant, accepted that that conclusion was open and made no submission to the contrary. Patrick Sheehan, Senior Forensic Psychologist, Serious Offenders Review Group, Corrective Services New South Wales, wrote a risk assessment report on 2 September 2013. A copy is annexure C to the Affidavit of Paul Nash, affirmed on 23 October 2013. Mr Sheehan extensively reviewed the defendant's history of offending, his responses to programs offered in custody, his attitudes and abilities and the risk of his re-offending thereby demonstrated. Mr Sheehan concluded at pp. 23-24 of his report: The management of risk involves the offender improving their level of functioning in the afore-mentioned dynamic risk areas. As individual's address and become more skilled at managing dynamic risk factors their ability to manage their overall risk improves. Mr Irwin is assessed as within the high risk category with regard to actuarial factors. He has exhibited relevant risk factors in all 5 domains of the RSVP dynamic risk assessment tool and in less structured examination of known risk factors. In my opinion, the overall totality of evidence suggests that Mr Irwin is in the high risk category of sexual offending relative to other adult male sexual offenders. There has been no identifiable resolution of the factors associated with previous episodes of offending. Mr Irwin's behaviour over the previous year in custody does indicate a clear escalation in acute risk. In my view, this may not represent a linear escalation of risk trajectory over time, but an example of how Mr Irwin's risk can escalate quickly in response to stress. These escalations are likely to occur intermittently over time. He is at most escalated risk of engaging in offences related to non-penetrative sexual touching against male children, which might technically meet the threshold of the Crimes (High Risk Offenders) Act 2006, but may perhaps not be considered at the highest end of the spectrum of objective seriousness relative to other offences. The evidence suggests realistic possibility that the offences may escalate to more invasive or penetrative acts should the opportunity present itself. 7In due course the plaintiff will ask the court to make a continuing detention order, as provided for in s. 17 of the Act, or an extended supervision order, as provided for in ss. 9 and 10 of the Act. Before me, however, the application was confined to the management of the defendant during the time that must elapse before the making of such orders can be considered. The orders sought were in terms of orders (1), (2) and (3) in the Summons and, alternatively to orders (2) and (3), order (6). 8Mr Johnston consented to the first order. Section 15 deals with pre-trial matters. Subsection (4) is as follows. (4)If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must make orders: (a)Appointing: (i)2 qualified psychiatrists, or (ii)2 registered psychologists, or (iii)1 qualified psychiatrist and 1 registered psychologist, or (iv)2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b)Directing the offender to attend those examinations. 9I was satisfied on all the evidence, including the report of Mr Sheehan and the contents of his Affidavit made on 4 November 2013, that the matters if alleged would if proved justify the making of an extended supervision order. I therefore made an order in accordance with the first order sought in the summons. 10The remaining issue was narrow. The parties accepted that in the meantime the court must make either a detention order in accordance with order (2) of the summons, with a supporting order for committal in accordance with order (3), or an interim supervision order in accordance with order (6). Mr Johnston opposed the former course and consented to the latter. 11The issue that thus arose was whether during the interim period arrangements could be made that would adequately protect members of the public against the risk of the offender's reoffending. The effect of ss. 10A and 10C of the Act is that an interim supervision order lasts for 28 days at the most, but that it may be renewed, so long as it does not exceed three months altogether. In view of the time the psychiatrists might need to interview the defendant, review his history and write their reports, it seemed appropriate to assume that the interim period of supervision would last for three months. 12Following a number of offences for which the Children's Court did not record convictions, as well as a number of sexual allegations against him as a juvenile, the defendant was convicted on a number of occasions. 13On 22 January 1997, the defendant indecently assaulted a ten-year-old boy (V3) by the opportunistic fondling of the boy's penis in a shower block at the beach. The defendant was introduced by a friend of the family. He offered the victim money to let him wash the victim. The defendant pulled aside the victim's swimming trunks exposing the victim's genitals then started kissing the boy's neck. He then touched the boy's penis and genital area. The defendant exposed himself and urinated in the shower. The victim ran out of the shower block and told his mother a short time later. The defendant was later charged. At Wyong Local Court, he was subsequently placed on a good behaviour recognizance for 2 years. 14Between 1 December 1999 and 14 February 2000, the defendant indecently assaulted an eleven-year-old (V5). The defendant frequented a friend's house where a number of young boys used to visit, including V5. On one occasion he fondled the boy and attempted to put his hands down the front of the boy's pants. He later rubbed the boy's penis on the outside of his pants. 15This allegation came to light when the defendant was in custody, bail refused, in relation to a subsequent offence. The defendant was interviewed and charged with aggravated indecent assault. He was later convicted and sentenced to 9 months imprisonment, commencing 14 April 2002. 16On 13 April 2000, the defendant was working as a door-to-door salesman after just having started a Network Communication job. He was on bail at the time. He convinced the parents of a six-year-old boy (V6), whom he came to know, to allow the boy to accompany him on his rounds. After finishing work, the defendant took the boy to a friend's place and whilst there, touched the boys penis on the outside of his trousers and kissed him numerous times. The victim disclosed these events to his father very soon afterwards. 17The defendant was arrested and charged the following day and bail was refused. Eight months later, in the Sydney District Court, he was convicted of Indecent Assault (Under 10 years) and sentenced to 4 years imprisonment, expiring on 13 April 2004 with a non-parole period of 2 years. 18On 25 August 2000, the police interviewed the defendant in relation to further allegations of sexual misconduct against an 11 year old boy (V4) occurring between December 1999 and April 2000, in similar circumstances to those outlined above. The victim used to frequent the house of the defendant's friend. Whilst there, the defendant fondled the boy's penis and tried to kiss him. 19On another occasion, the defendant finished a shower and, whilst naked, pushed the boy onto a bed, pulled down the boy's pants and attempted to insert his penis into the boy's anus. The boy escaped by hitting the accused in the mouth. There were further occasions where the defendant either fondled the boy's genitals or forced the boy to fondle his genitals. 20He was charged with 4 counts of Indecent Assault and one count of assault with intent to have sexual intercourse with child 10 to 16 years old. 21The defendant was later convicted of 4 counts of indecent assault and sentenced to 9 months imprisonment commencing at the expiry of his earlier non-parole period, that is, 9 months from 14 April 2002 expiring 13 January 2003. 22On 25 November 2008, the defendant was charged with 17 counts of Possessing Child Pornography. Various pictures of naked children were found on the defendant's mobile phone and discs found in his possession. Most of the images were of young boys, mostly naked, and some engaging in sexual acts. The defendant also admitted to having numerous email addresses. He was subsequently convicted of 4 counts of possess child pornography and imprisoned for 17 months with a non-parole period of 386 days. His release was subject to supervision. An offence under the Child Protection Register legislation was taken into account on a Form 1. 23The most recent offences were: (i)On 9 November 2011, in contravention of a child protection prohibition order, the defendant contacted and associated with a registrable person under the Child Protection (Offenders Registration) Act 2000; and (ii)Between 6 and 9 November 2011, in contravention of a child protection prohibition order, the defendant contacted and associated with a person under the age of 18 years of age; and (iii)Between 8 June 2011 and 9 November 2011, in contravention of a child protection prohibition order, the defendant contacted and associated with a person under the age of 18 years of age. 24The offences were contraventions of orders under the Child Protection (Offenders Prohibition Orders) Act. On 4 November 2011, the defendant was residing in a Community Justice Program ("CJP") staffed-residence in Orange. He informed staff at his residence that he was travelling to Sydney to visit a relative and conduct some business. The defendant travelled to Sydney. Whilst there, he was contacted by the police who enquired about the name of the hotel in which he was staying and his activities whilst in Sydney. He told police he was attending a Herbalife conference - there was no such conference. The defendant was specifically warned about associating with John Baxter, another convicted sex offender. 25Despite the warning, the defendant met John Baxter, a child sex offender, and one of Baxter's former cellmates. Police investigated the defendant's Facebook account and saw that he had recently made friends with two 17-year-old girls, both of whom had an intellectual disability. By associating with Baxter and contacting the 17-year-old girls, the defendant contravened the prohibition orders made against him on 22 December 2010. 26On 10 November 2011, the defendant was taken into custody and charged with the above offences. On 23 January 2012, the defendant was convicted and sentenced to two years' imprisonment with an 18-month non-parole period, to date from 10 November 2011. 27The conviction was appealed to the Orange District Court, but on 6 June 2012, the conviction was confirmed. 28On 23 January 2012, a parole order was made for the defendant's release to parole from 22 May 2013, however this order was revoked on 8 May 2013 and the defendant has remained in custody since that time. The reasons for the revocation by the State Parole Authority ("SPA") were concerns about the lack of satisfactory accommodation arrangement or post-release plans. 29The defendant's sentence expires and he is due to be released on 9 November 2013. 30As appears from the Affidavit of Zouhier Abedine, Manager, Extended Supervision Order Team, Corrective Services NSW, the proposal for the housing and supervision of the defendant pending the resolution of this matter is that he be kept at Nunyara at Malabar, a Community Offender Support Program (COSP) facility maintained by Corrective Services NSW. Nunyara provides secure premises. It is staffed by 4 departmental officers. There are up to 45 residents at a time. There is a security guard at the front door. The gates are locked at night. 31The staff of Nunyara do not supervise any inmate who is allowed to leave the premises during the day. 32The conditions that would apply if the court made an interim supervision order included these: * The defendant must wear such electronic monitoring equipment as may from time to time be directed by the Departmental Supervising Officer and comply with all instructions given by a corrective services officer in relation to the operation of such equipment, and must not tamper with or remove such equipment. * If directed by the Departmental Supervising Officer, the defendant must inform the Departmental Supervising Officer of his movements in advance by providing a schedule. The schedule must be: (a)In writing; (b)For a period of 7 days ("the schedule period"), unless a shorter schedule period is approved by the Departmental Supervising Officer; and 201302775 D2013/470029 (c)Given to the Departmental Supervising Officer at least 3 days in advance of the schedule period. * The defendant must notify the Departmental Supervising Officer of any change to the schedule at least 24 hours in advance, unless a shorter period is approved by the Departmental Supervising Officer. * For the duration of the order the defendant must reside at accommodation approved by the Departmental Supervising Officer. * Except with the prior approval of the Departmental Supervising Officer, the defendant must not permit any person to reside either temporarily or on a permanent basis, for any period at the defendant's approved accommodation. * Except with the prior approval of the Departmental Supervising Officer, the defendant must not stay overnight, or for any other temporary period, at a place other than approved accommodation. * The defendant must permit entry and accept visits at his approved accommodation, including visits without prior notice, by the Departmental Supervising Officer or any other corrective services officer who may from time to time be allocated to the defendant's case. * If directed by his Departmental Supervising Officer, the defendant must be at his approved address between 9pm and 6am (or such other hours as may be specified by the Departmental Supervising Officer) unless his presence at another place during those hours has been approved by his Departmental Supervising Officer. * The defendant must not leave the State of New South Wales without the written permission of the Commissioner of Corrective Services ("the Commissioner") or his delegate. 33Evidence was called from Wayne Zahra, Team Leader, Clinical Services of the Community Adjustment Program, which is conducted by the department of Family and Community Services. According to Mr Zahra, a program called the Community Justice Program exists as a service to support young people and adults with learning disabilities who are being released from custody. The primary aim of the program is to minimise reoffending and to intervene to improve the behaviour, life quality, vocational and social skills of such persons so as to facilitate and achieve socially valued roles in the community. The idea is to achieve integration into the community through the provision of specialised clinical, case management, accommodation and support services. The aim is to identify and respond to the strengths, needs, risks and goals of people with intellectual disabilities through providing accommodation, behaviour support and case management. 34The offender has already been supervised in such a program. That was in 2011, when he was taken into custody following breaches of the Child Protection Prohibition Order. He was then resident in Orange and was permitted to travel to Sydney for the day. He said that he was going to visit a relative and conduct some business. That was apparently a trick, however, and while in Sydney unsupervised he associated with persons under 18 years of age. 35At the time of the Hearing before me, Mr Zahra was aware that the intention was to accommodate the defendant at Nunyara. He expected that his service would provide up to 35 hours' support per week during the defendant's daytime absences from Nunyara. The person allocated to the job would accompany the defendant on outings and assist him with the practical aspects of complying with his conditions of supervision. The intention was that the defendant would not be left alone while he was absent from Nunyara. 36Counsel for the plaintiff attacked the ability of the authorities to supervise the defendant during his absences from Nunyara. It was submitted that the persons who would supervise him would not be directly responsible to Community Services and would not be aware of the history of the defendant in dealing dishonestly with his supervisors. So there was a risk that the defendant may once again trick his supervisor and get away and offend. So the supervision proposed would not be adequate and the court should make a detention order. Counsel called in support of the opinion of Mr Sheehan, set out earlier in these reasons. In the same report Mr Sheehan said this about detention and supervision orders: In the event that Mr Irwin is considered suitable for a Continued Detention Order, he could potentially re-engage in the Self Regulation Program: Sexual Offending, at the Metropolitan Special Programs Centre. However, I note that Mr Irwin has at this stage engaged in a total of almost 2.5 years of intensive therapeutic programming, with limited effect. In addition to this, Mr Irwin has not yet had the opportunity to be managed in the community under the intensive management conditions that may available from the combined services of CSNSW and CJP. Therefore despite his prior failure to respond to the supervision of CJP and the direction of NSW Police, the adequacy of an ESO to sufficiently contain his risk is yet to be tested. In the event that Mr Irwin is subject to an Extended Supervision Order, it is likely that he would be subject to intensive supervision and case management by CSNSW. This may include: the obligation to provide weekly schedules of movement; unannounced visits by supervising staff; direction to reside in a Community Justice Program (CJP) facility and to comply with the CJP program, scrutiny of social contacts, assessment for participation in community based sex offender programs (Forensic Psychology Services, Surry Hills). Mr Irwin may be encouraged to pursue antilibidinal medication, however this is unlikely to be enforceable by the State. A common condition is electronic monitoring by Global Positioning Satellite (with exclusion zones around high risk locations). Intensive supervision may contribute to containing the risk of serious sexual offending. Successful management would involve containment of those behaviours associated with risk (such as: drug use, aimlessly wandering around public spaces, access to vulnerable children). The goal would be to encourage the development and maintenance of a stable and sustainable lifestyle, so that new habits can be formed that might endure beyond supervision. 37In his Affidavit of 4 November 2013 Mr Sheehan said this: ... The COSP is staffed 24 hours per day but there is no provision for staff to be watching Mr Irwin at all times. Monitoring equipment will advise if Mr Irwin leaves the COSP at times outside his scheduled activities. In my recommendation, the initial phase of Mr Irwin's supervision would be highly intensive. That is, he would reside in Nunyara COSP and his schedule of movements would restrict his activities outside the facility to only those where he is accompanied by the CJP appointed service provider. I am aware that the GP have offered to provide a drop-in support package for Mr Irwin whereby he receives up to 35 hours per week of support whilst he resides at the COSP. It is anticipated that the GP will provide a service whereby Mr Irwin is effectively chaperoned or escorted whenever outside the COSP. However, it is important to note that the people accompanying Mr Irwin on outings are not CSNSW security staff with training specific to dealing with sex offenders the subject supervision orders -, they are support workers. Further, it is unknown whether the level of support offered by the GP will be continued throughout the period of supervision. The COSP is not a permanent or semipermanent residence but a transitional facility. Mr Irwin will inevitably be moved to alternative accommodation, possibly a GP funded residence. In my experience, even the most rigorous community supervision cannot stop a sexual offence from occurring if the offender has a firm intention to reoffend. Effective supervision relies on the offender being, at worst, ambivalent towards sexual reoffending. Should Mr Irwin experience a period of unequivocal intention to sexually offend against children (such as recorded earlier this year), the capacity of community supervision to prevent a spontaneous offence is limited. For example, if Mr Irwin were to return to a similar way of life and the risk factors present at the time of his earlier offending were replicated, Mr Irwin could offend in a public location in close proximity to other people, such a public bathroom, or he could remove his electronic monitoring unit and abscond. 38I concluded that although it was impossible to remove the risk that the defendant would re-offend, the proposal for the defendant's residence at Nunyara and the management I have summarised was likely to be effective and that supervision was to be preferred to detention.