State of New South Wales v Delaporte (No 2) [2014] NSWSC 1395

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Delaporte (No 2) [2014] NSWSC 1395 Hearing dates: 2 October 2014 Decision date: 13 October 2014 Jurisdiction: Common Law Before: Button J Decision: (1) I impose a continuing detention order of 4 months' duration to date from today 21 October 2014 and expire on 20 February 2015. (2) I impose an extended supervision order of two years' duration to date from 20 February 2015 and expire on 19 February 2017. Catchwords: CIVIL LAW - Crimes (High Risk Offenders) Act 2007 - application for an extended supervision order - application for a continuing detention order - fresh charges - duration of extended supervision order - interpretation of s 18(2) of the Act Legislation Cited: Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) ss 5(1), 5B, 5C(1), 9(3), 10(1), 10(3), 13(1), 17(4), 18(2), 18(3), 19(1), 19(1A), 25B Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Cases Cited: R v Steadman [2013] NSWSC 170 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Jason Aaron Delaporte (Defendant) Representation: Counsel: D Kell (Plaintiff) M Johnston (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2014/219799

Judgment 1This is an application by the plaintiff for two orders pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) against Mr Jason Delaporte (the defendant). 2The defendant was born on 3 July 1970 and is therefore 44 years of age. His father left the family home when the defendant was very young, and he was brought up by his mother and stepfather. His childhood was not a happy one, and featured frequent beatings administered by his stepfather. At school the defendant was destructive and uncontrolled. By his early teens he had developed a problem with drugs and alcohol, and had left school. His dependence upon prohibited drugs worsened, especially with regard to amphetamines, and he took to frequenting Kings Cross and Darlinghurst. Deplorably, his first sexual experience was as a male prostitute aged 14 years at "the Wall" in the latter suburb. 3His criminal record reflects his dependence on prohibited drugs. It began with an entry for attempting to break, enter and steal in 1983 when he was aged 13, and it first shows a conviction to do with prohibited drugs in 1994, when he was aged 24 years. It is noteworthy that for many years there were no convictions for sexual offences, or offences of violence generally. 4That changed in 1996, when the defendant was convicted of indecently exposing himself by masturbating in the presence of a woman in the underwear section of a department store. In 1998 he was found not guilty after a trial by jury of a count of sexual intercourse without consent. And on 4 May 2000 he was sentenced for a number of very grave sexual offences and other offences of violence by his Honour Judge Kinchington QC to an overall head sentence of imprisonment for 16 years with a non-parole period of 13 years, to date from 22 October 1998. The offences for which the defendant was sentenced were: two counts of having sexual intercourse without consent in circumstances of aggravation, two counts of robbery whilst armed with an offensive weapon, one count of robbery, one count of breaking and entering a dwelling house and committing a felony therein in circumstances of aggravation, one count of indecent assault, and one count of assault. Apart from some day leaves (as part of a pre-release program) and a few months spent on parole this year, the defendant has been in continuous custody since 22 October 1998. 5The facts of the offences that led to that overall head sentence and non-parole period may be summarised as follows. 6At about 11 PM on 17 August 1998, the defendant broke into the home of a 17-year-old girl in Darlinghurst. He held a knife to her throat and forced her to engage in sexual intercourse (as that term is understood in general parlance, as opposed to in the Crimes Act 1900 (NSW)) with him. The knife remained at her throat throughout her ordeal. The defendant also stuffed fabric into the mouth of the victim. Immediately after ejaculating, the defendant fled the premises. 7At 8:50 PM on 25 August 1998, a woman was walking through Paddington. The defendant approached her, claimed to be armed with a knife, and demanded that she enter a motor vehicle with him. He pushed the victim into an alcove and forced her to masturbate him. The victim saw something that appeared to be a knife in his hand. During the ordeal the defendant threatened to stab the victim. The defendant ejaculated and then permitted the victim to leave. 8At about 8 PM on 6 September 1998, a woman was walking through Surry Hills. The defendant approached her and claimed to have a knife; he appeared to her to have a screwdriver in his hand. He demanded that she follow him to a motor vehicle. Instead the victim broke free and was able to escape. 9In the early hours of 22 September 1998, two women were walking along a street in Paddington. The defendant appeared from behind a tree armed with a broom handle, and demanded money. He escaped with $50 in cash. 10On 24 September 1998, the defendant entered a shop, and approached a female shop assistant. He produced a blood-filled syringe and threatened to stab her with it. He escaped with $500 cash. 11At about 2 AM on 5 October 1998, the defendant used a ladder to enter a first storey window of a home in Darlinghurst. The window was locked and he had to pry it open. He was armed with a 15 cm steel slide bolt. A 22-year-old woman was sleeping in one of the bedrooms. The defendant confronted her, claimed to have a knife, tied her wrists together, stuffed a sock in her mouth, and tied a shirt around her head. He then forced the victim to masturbate him, and thereafter forced her to have sexual intercourse with him. When he sought to kiss the victim she spat in his face; the defendant responded by squeezing her throat with his hand and thereby restricting her breathing. On departure the defendant stole $350 cash and a handbag from the house. 12At 3:30 PM on 18 October 1998, the defendant returned to the entrance of the store at which he had committed the armed robbery on 24 September 1998. The victim recognised the defendant and sought to lock the door, but was unable to forestall his entry. The victim offered the defendant cash from the cash register, but he took only some of it, and preferred to rifle through her handbag. Thereafter he ordered her to perform fellatio on him. After that he sought to have sexual intercourse with her but was unable to maintain an erection. He then forced her to perform fellatio on him again. Eventually he ejaculated on the clothes of the victim, and left. 13In his remarks on sentence the learned sentencing judge said, "The objective facts which give rise to those charges are abhorrent from a community point of view" (ROS 2). His Honour also noted the dysfunctional upbringing of the defendant; his early departure from school and attraction to Kings Cross; the proposition that, at the time of the offences, the defendant was using three quarters of an ounce of amphetamines per day; and the fact that the early pleas of guilty evidenced some remorse on the part of the defendant. His Honour remarked that those pleas had "spared the victims of his criminal conduct the horror of having to relive once again the terrifying experiences that no doubt each of them had to endure at his hands." 14A number of things may be said about my brief conspectus of the sexual and other violent offences for which the defendant was sentenced to a lengthy period of imprisonment. First, their profound seriousness requires no elaboration. Secondly, no doubt the victims of the defendant have suffered psychologically for many years. Some will never fully recover. Thirdly, the commission of so many grave sexual offences, even many years ago, inevitably causes one to reflect very carefully upon the need to protect the community if and when the defendant is at liberty. That consideration reflects the primary purpose of the Act: see s 9(3)(a). 15Over the past many years in which he has been in custody, the defendant did not present a serious management problem, and refrained to a reasonable degree from violence towards prison officers and other prisoners, and from misbehaviour generally. He was noted to be an agitated person on many occasions, and received psychological treatment, including by way of medication. 16In 2010, he entered the well-known CUBIT program for sex offenders. It is true that he has completed the program. But it was felt by those who assessed him that he had gained little more than an "intellectual" understanding of the program. And it has been noted relatively recently that the defendant claimed that he continued to "enjoy being angry", and that he regarded it as likely that he would return to prohibited drugs on his release. It is also of concern that his progress in CUBIT was impeded by his "physical and sexual aggression", which led to him not being permitted to enter the cells of other prisoners. Having said that, it is not clear whether that aggression went beyond the verbal. 17As a result of the concerns of the Serious Offenders Review Council (SORC) and the State Parole Authority (SPA), the defendant was not released at the end of his overall non-parole period on 21 October 2011. Indeed, he was not released on parole until 2 July 2014, a mere matter of months before the complete expiry of his head sentence. He lived in a halfway house next door to Long Bay Gaol. 18Regrettably, his parole was not a success. Amongst many other matters, the defendant has admitted using crystal methylamphetamine; did not keep to his schedule of agreed movements; refused to provide a urine sample for the purpose of drug testing; telephoned brothels; and described himself whilst on parole as a person capable of great violence when roused to aggression. Perhaps most significantly, it seems not to be disputed by the defendant that he committed a break enter and steal in residential premises in Darlinghurst, and took and drove a motor vehicle without permission on the same occasion. To my mind, the fact that two of the sexual assaults that the defendant committed many years ago commenced by the defendant breaking into homes in that very suburb of Sydney is not without importance. 19On the other hand, the defendant has also been subject to the Child Protection (Offenders Registration) Act 2000 (NSW) and the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). There is nothing that suggests that the defendant has not complied with any of his obligations under those Acts. 20As a result of (amongst other things) fresh charges arising from the new allegations, the SPA revoked the parole of the defendant, and he has been in custody serving his balance of parole since 28 August 2014. He is also bail refused on the new charges. As I have said, his balance of parole will expire on 21 October 2014; because the Crown will elect to prosecute the fresh matters on indictment, their resolution could take quite some time. Unless something quite unexpected happens, one can with reasonable confidence predict that the defendant will receive a further sentence of imprisonment to commence on the expiry date of his balance of parole. 21It is in that context that the plaintiff has brought proceedings pursuant to the Act, and seeks final orders (at least in the technical sense) from me. Overview submissions, including with regard to expert evidence 22The plaintiff seeks two orders pursuant to an amended summons that was itself amended at the hearing. The first is a continuing detention order of only four months. The second is an extended supervision of five years, to commence at the end of that continuing detention order. The defendant does not oppose the former order, but, by the end of the hearing, expressed serious reservations about the latter. 23The plaintiff accepted that, in light of the fresh charges, the custodial position of the defendant is in something of a state of flux. It is highly likely (though not inevitable) that the defendant will receive a sentence of imprisonment of some length, and it is highly likely (though not inevitable) that the defendant will be bail refused in any event for several months until the fresh charges are resolved. For that reason, the plaintiff seeks only a very short continuing detention order at this stage, in order to "protect the position" of the State, as against the possibility that the defendant is somehow granted bail, or is not ultimately sentenced to imprisonment. 24Of course, the position of the plaintiff is that it reserves the right to apply to have any such short continuing detention order varied in the future by way of extension (in accordance with ss 19(1) and 19(1A) of the Act), or to seek a further continuing detention order on the expiration of the first (in accordance with s 18(3) of the Act). 25The position of the defendant with regard to the proposed continuing detention order is that he accepts the reasonableness of the proposal of the plaintiff. Of course, he reserves the right to oppose in future any variation by extension of such an order, or the making of a further continuing detention order. 26As for the proposed subsequent extended supervision order of five years, the plaintiff maintained the position that it would be appropriate. It submitted that the risk assessments undertaken of the defendant are all one way: he poses a high risk of committing further serious sexual offences. That submission was founded upon the following evidence. 27The treatment report of Ms Michelle Turp, a psychologist, of 29 June 2011 includes a risk assessment that suggests that the defendant is in the high risk category relative to other male offenders, and highlights several of his dynamic risk factors. 28The risk assessment report of Ms Kathleen Harle, a psychologist, of 29 May 2014 confirms that the defendant is in the high risk category relative to other male sexual offenders, and that he displays a number of dynamic risk factors associated with his reoffending that have not been sufficiently addressed. Her supplementary report of 11 September 2014 is to the effect that the return to custody of the defendant following breach of parole is further support for the proposition that his treatment gains are limited, and that he continues to display a number of dynamic risk factors associated with reoffending. 29The psychiatric reports of Dr Richard Furst of 11 September 2014 and 19 September 2014 are to the following effect. 30Although accepting that the defendant suffered from Attention Deficit Hyperactivity Disorder (ADHD) as a child, and continues to do so, Dr Furst was of the opinion that there was no sign of a major mental disorder such as psychosis. 31During an interview for the purposes of assessment, the defendant remarked to the psychiatrist "nothing scares me but me", and expressed a continuing desire to take prohibited drugs. Referring to his dissatisfaction with the other prisoners in the CUBIT program, the defendant remarked "I wanted to drown every one of them". Dr Furst noted that the defendant was angry and irritable from the outset of the interview. 32Dr Furst expressed the view that the insights gained by the defendant from the CUBIT program appeared to have been "lost in more recent years". 33The psychiatrist raised the possibility of the use of anti-libidinal medication in the future. 34In summary, Dr Furst diagnosed the defendant as suffering from an anti-social personality disorder; a substance use disorder (founded upon dependence on amphetamines); ADHD; and paraphilia (that is, a deviant disorder of sexual arousal, in this case founded upon anger and violence). 35Dr Furst concluded by expressing the opinion that there was a high risk of the defendant reoffending in a sexual manner. After being informed of the fact that the parole of the defendant had been breached and he had returned to custody, Dr Furst expressed the opinion that a modified CUBIT program could be of use to the defendant. 36The psychiatric reports of Dr Roberts of 12 September 2014 and 18 September 2014 may be summarised as follows. 37In an interview with the psychiatrist, the defendant accepted that, whilst at liberty, he had purchased a "point" of methylamphetamine. He stated that he had found compliance with the requirement to prepare a schedule of his movements very onerous. Eventually he became "overwhelmed" by the requirements of his supervision in the community. He committed the offences with which he had been charged so that he could be returned to custody. 38In the same interview, the defendant remarked that he "can 'snap' readily", though he also said that he had been using meditation for several years to control his anger. 39The psychiatrist noted that the defendant reported himself as being "highly aroused by pain, violence and anger". 40Dr Roberts concurred with the view that there was no evidence of psychosis or mood disorder. With regard to the pathological use of amphetamines by the defendant, Dr Roberts preferred to diagnose him with a stimulant use disorder. He also concurred with the diagnosis of ADHD, and antisocial personality disorder. Dr Roberts expressed caution about a diagnosis of paraphilia, whilst noting that the defendant possessed a "marked elevated libido". Dr Roberts preferred to diagnose an unspecified paraphilia disorder. 41As for treatment, the options canvassed by Dr Roberts included the cautious use of stimulants with very stringent conditions in an effort to control the ADHD of the defendant. He also raised the possibility of the use of anti-libidinal medication. 42Based upon actuarial risk assessment and other factors, Dr Roberts was of the opinion that the defendant presents a "high risk of committing a further serious sex offence if he is not kept under supervision." If the defendant were to return to his illicit drug use or previous lifestyle, he "would be considered to represent a person at very high risk of offending sexually". 43Dr Roberts expressed the view that an extended supervision order of five years "can readily be justified". 44After the breach of parole and the return of the defendant to custody, Dr Roberts expressed the opinion that a number of factors: ...support the impression of a very poor prognosis for sustained stability in the community and the very high likelihood that [the defendant] would engage in general criminal behaviour on his return to the community. It is expected that under such circumstances, he would quickly revert to his former lifestyle, including amphetamine use. In this context, his risk of engaging in a further serious sex offence would escalate significantly. 45Finally, with regard to a continuing detention order, Dr Roberts was supportive of a modified CUBIT program, long-term drug and alcohol treatment, and consideration of the commencement of anti-libidinal medication. 46Based upon all of the evidence, the submission of the plaintiff was that, whatever one may think about the appropriate length of a continuing detention order, there can be no doubt that a subsequent lengthy period of supervision - no doubt able to be made less onerous over the years if the defendant responds to it favourably - will be appropriate. 47Having said that, in discussion between the Bench and Bar table, counsel for the plaintiff came to accept that, if I were to adopt, in light of the unresolved custodial position of the defendant, a de facto interlocutory approach by imposing a very short continuing detention order, it could be that I should also adopt that approach to the length of any subsequent extended supervision order. 48The position of counsel for the defendant about the extended supervision order evolved to some degree throughout the course of the hearing. At first he was content with the making of an extended supervision order of five years duration, on the understanding that there could very well be an application by the defendant to shorten it after his custodial position becomes clearer. Later, counsel for the defendant adopted the position that any extended supervision order subsequent to a continuing detention order should be quite short; if it becomes the position of the plaintiff that it wishes to vary it by extension or to seek a further extended supervision order, it may apply to this Court to do so, pursuant to ss 13(1) or 10(3) of the Act. Determination with regard to a short continuing detention order 49There is no question that the defendant is a "sex offender", as defined in s 4 of the Act. That is because he is over 18 years of age, and has been imprisoned for a "serious sex offence", as defined in s 5(1) of the Act. 50The real issue for determination by me is whether the test in s 5B(2) has been made out: namely, whether I am "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." 51I have considered that test in light s 5B(3), which is as follows: 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. 52I have also considered that test in light of the analysis that I undertook in R v Steadman [2013] NSWSC 170: [65] I have approached the requirement of satisfaction "to a high degree of probability" as constituting an elevated standard of proof that falls between the criminal standard and the civil standard, in accordance with Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; (2007) 178 A Crim R 133. [66] As for what is involved in the concept of "unacceptable risk of committing a serious sex offence" I respectfully adopt what was said by Davies J in State of New South Wales v Richardson (No. 2) [2011] NSWSC 276 at [90]: "Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. That is also because s 17(3) [of the Crimes (Serious Sex Offenders) Act 2006, the predecessor of s5B of the Act] provides for the further assessment that if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk a supervision order will not be adequate to meet the risk." 53To state things succinctly, shortly before entering custody for a very lengthy period, the defendant committed many extremely grave sexual offences. By their nature and number, they give rise to an irresistible concern about their repetition by the defendant, a concern that may, perhaps, never be able to be fully dispelled. I accept that he has made an effort to obtain psychological help whilst he has been incarcerated. Still and all, one could by no means be confident that he was completely rehabilitated when he was released to parole on 2 July 2014. 54Furthermore, his short time on parole early this year was a comprehensive failure. Of serious concern is the fact that he has used methylamphetamine again, the very drug by which he claims to have been grossly affected at the time of the offences. As I have said, it is also a matter of serious concern that, it seems, he has broken into a house in Darlinghurst again, just as he did when he brutalised two victims. 55In those circumstances I am well satisfied, to a high degree of probability, that the offender poses a risk of committing a serious sex offence if he is not kept under supervision. And, in light of the gravity of the offences that the defendant could commit, and the severe and permanent injury that they could cause to members of the community, I regard that risk as an unacceptable one. 56I have reflected upon all of the factors contained in s 17(4) of the Act, and which I am required to take into account in determining that question. I consider that they are adequately referred to in this judgment without explicit repetition. 57It follows that I respectfully adopt the joint position of the parties, founded upon my own satisfaction that the statutory test is made out, and that a continuing detention order should be made. 58Counsel for the defendant did express concern about the meaning of s 18(2) of the Act, and whether that subsection could prejudice the defendant (if he is in lawful custody) as a result of any continuing detention order being suspended, not only with regard to its term, but also with regard to its expiry date. 59Section 18(2) is as follows: An offender's custody under a continuing detention order is suspended while the offender is in lawful custody under any other Act or law, but that suspension does not affect the expiry date of the order. 60I confess that to me the subsection seems clear: if a defendant is in lawful custody pursuant to being bail refused, or serving balance of parole, or serving a sentence, or indeed for any other reason, the continuing detention order is "suspended", but its expiry date is unchanged. In other words, the continuing detention order is to come to an end on its original expiry date, without that date being in any way postponed by reason of the defendant being in lawful custody for some other reason. 61However, as against the possibility that I am wrong in my interpretation of the statute, I make my intention clear as follows. Whatever may be the custodial position of the defendant, the continuing detention order that I shall impose is of 4 months' duration, it dates from 21 October 2014, and it expires on 20 February 2015. Determination - extended supervision order 62Turning to the question of making an extended supervision order that commences at the expiry of the continuing detention order, it can be seen that the test for the making of such an order, pursuant to s 5C(1) of the Act, is identical: it is again contained in s 5B. I shall not repeat my analysis of why I am comfortably satisfied that that test is made out. 63I adopt the same approach to the factors in s 9(3) that I am required to consider in determining that question. 64I am also satisfied, in light of the shortness of the continuing detention order that I shall impose, that it should be followed by an extended supervision order, in accordance with s 10(1) of the Act. 65However, I respectfully reject the proposition that, at this stage, I should make an extended supervision order of five years' duration, or anything approaching that period. 66As a result of the fresh charges that he is facing, it is quite possible that the defendant will be sentenced to spend many more months, or even some years, in prison. One cannot predict with any certainty what progress he may make during such a period. Although in the past a not completely successful effort was made by him, that may not be the result in the future. To my mind, there are far too many variables in play at this stage for me to curtail the liberty of a citizen for (in total) well over five years. If the defendant does spend another reasonably substantial period in custody, then his behaviour in custody, progress towards rehabilitation, risk of reoffending, support in the community, and countless other factors should and will be reassessed as he comes to the end of that period of incarceration. 67As well as that, s 25B is as follows: 25B Orders may be made at same time (1) Nothing in this Act prevents the Supreme Court from making an extended supervision order in respect of a person at the same time that it makes a continuing detention order in respect of the person. (2) In such a case, despite section 10 (1), the extended supervision order commences on the expiry of the continuing detention order and expires: (a) at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended. 68My reading of s 25B(2) is that, if the continuing detention order that I shall impose is varied by extension before the commencement of the extended supervision order, then the commencement date of the extended supervision order will be postponed until the expiry of the continuing detention order. In other words, it is possible that the extended supervision order will not commence until after many years from today. 69As I remarked to counsel during discussion, I do not consider that a judge of this Court should impose a lengthy (indeed, the maximum) period of an extended supervision order, on the assumption that it may be varied by reduction in the future. Rather, I consider that I should impose an extended supervision order that is of an appropriate length in all of the circumstances as they are known to me now, whilst giving primacy to the "safety and protection of the community". 70Here, because of the fact that so many circumstances with regard to the immediate and medium-term future of the defendant are unclear at this stage, I am not prepared to impose an extended supervision order, to commence at the end of the short continuing detention order, that is longer than two years. 71Of course, none of the foregoing should be seen as any fetter on the variation (by extension or reduction) of the continuing detention order and the extended supervision order that I shall now impose. Orders 72I make the following orders: (1)I impose a continuing detention order of 4 months' duration to date from today 21 October 2014 and expire on 20 February 2015. (2)I impose an extended supervision order of two years' duration to date from 20 February 2015 and expire on 19 February 2017.