The State of New South Wales v David Moses Kokkotas [2015] NSWSC 455

Supreme Court New South Wales

Medium Neutral Citation: The State of New South Wales v David Moses Kokkotas [2015] NSWSC 455 Hearing dates: 6 March 2015 Date of orders: 17 April 2015 Decision date: 23 April 2015 Jurisdiction: Common Law Before: Adams J Decision: 1. Pursuant to s. 5C(1) of the Crimes (High Risk Offenders) Act 2006, the defendant be subject to a high risk sex offender extended supervision order ("the extended supervision order") for a period of two years from the date of the order. 2. Pursuant to section 11 of that Act, the defendant is directed, for the period of the extended supervision order, to comply with the conditions set out in the Schedule filed in Court on 17 November 2014 and marked to that effect for the period referred to in order one. Catchwords: EXTENDED SUPERVISION ORDERS– Crimes (High Risk Offenders) Act 2006 – Unacceptable risk of re-offending if not supervised – Reasonable conditions Legislation Cited: Crimes (High Risk Offenders) Act 2006 Cases Cited: New South Wales v Richardson (No 2) [2011] NSWSC 276 Category: Principal judgment Parties: State of New South Wales (Plaintiff) David Moses Kokkotas (Defendant) Representation: Counsel: Ms N L Sharp (Plaintiff) Mr N Johnston (Defendant)

Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2014/00300322 Publication restriction: None

Judgment

Introduction 1. On 17 April 2015, an extended supervision order under s 9(1) of the Crimes (High Risk Offenders) Act 2006 (all statutory references are to this Act unless otherwise indicated) was made for a period of two years. These are the reasons for this order. 2. The original summons seeking this order was filed on 13 October 2014. On 18 November 2014, Button J made an order in accordance with s7(4) appointing Dr Andrew Ellis (psychiatrist) and Dr Katie Seidler (psychologist), to conduct separate examinations of the defendant and furnish reports of their findings to the Court. At the time of the hearing before me the defendant was subject to an interim supervision order imposed by Garling J on 10 February 2015 which commenced on 16 February 2015 and expired on 15 March 2015 or on the date of final judgment, whichever was the sooner. 3. Whilst accepting that, ultimately, the appropriate orders are for the Court to determine, most have been agreed, including that the supervision order should be made. The remaining dispute concerns three matters: whether electronic monitoring is necessary and, if so, when; whether the defendant can attend legal brothels; and whether the defendant should be permitted to have access to pornography on the internet. This approach means that, whilst I need to determine whether the supervision should be made, the reasons for so deciding can be relatively brief since there is no controversy requiring discussion. 4. I do not intend to set out the statutory provisions. It is sufficient to state that an extended supervision order can only be made if an offender is a "high risk sex offender", which requires the Court to be "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": s 5B. As explained usefully by Davies J in New South Wales v Richardson (No 2) [2011] NSWSC 276 at [90] this involves balancing between the risk of commission of serious sex offence on the one hand and the serious consequences of either continued detention or onerous supervision on the other. 5. This case is unusual in that, although the defendant has been convicted (on his plea) of several relevant offences, they arise from the one incident occurring on 21 January 2006. The offences were aggravated sexual assault and armed robbery (with the offences of detain for advantage and indecent assault taken into account on a Form 1). On 8 December 2006, he was sentenced to an overall head sentence of 9 years imprisonment, with a non-parole period of 5 years and 6 months, commencing on 21 July 2007. 6. Further, as the plaintiff concedes, the defendant has (with what are submitted to be "some notable exceptions") complied with his obligations whilst on parole and from 20 January 2015 whilst subject to successive interim supervision orders under the Act. It is submitted, however, that the defendant nevertheless poses an unacceptable risk of re-offending should he not be subject to further supervision. 7. The facts of the defendant's offences are as follows. On 21 January 2006 at about 2:45am, the defendant approached the victim, then aged 24, who was using a public telephone booth close to a suburban train station. He produced a knife from his jacket pocket, pointed it at the victim, hung up the telephone and demanded that she accompany him away from the booth. He took her by hand, put the knife back in his jacket pocket and led her some 200m to a public toilet block. He threatened to kill her if she did not do as he said. The victim complied with the defendant's demands. She pleaded to be freed, but was forced to enter a cubicle in the women's toilet and remove her clothing. The defendant demanded that the victim perform oral sex on him and, shortly after, ordered her to lie on the floor, where he had vaginal intercourse until he ejaculated. He allowed her to dress, and stole approximately $500 from her and a gold bracelet she was wearing. He then ran from the toilet block. 8. The victim returned to the telephone booth and told a friend what had happened. The police were then called and arrived shortly after. A crime scene was established. At about 4am that morning, the defendant approached police at the scene, saying he had a confession to make and told them, in effect, that he had "raped her, in there".