State of New South Wales v Howard [2015] NSWSC 1193

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Howard [2015] NSWSC 1193 Hearing dates: 20 August 2015 Decision date: 24 August 2015 Jurisdiction: Common Law Before: Button J Decision: See paragraph 77. Catchwords: CIVIL LAW - application for preparation of two psychiatric reports pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 - application for interim supervision order pursuant to s 10A of the Act – all orders sought by plaintiff consented to by defendant Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), s 160A Crimes (High Risk Offenders) Act 2006 (NSW), ss 4, 5(1), 5B(2), 5I, 7(1), 7(2), 7(4), 9, 10A, 10A(b), 11 Cases Cited: Attorney General (NSW) v Hayter [2007] NSWSC 983 State of New South Wales v Holschier [2014] NSWSC 867 State of New South Wales v Reay [2014] NSWSC 1362 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Kevin Howard (Defendant) Representation: Counsel: T Hammond (Plaintiff) G Scragg (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid New South Wales (Defendant) File Number(s): 2015/224604

Judgment Introduction 1. This is an application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) for a number of preliminary orders to be made before the hearing of an application for an extended supervision order (ESO) later this year. 2. In a nutshell, the plaintiff seeks, pursuant to s 7(4) of the Act, the appointment of two psychiatrists to examine the defendant, along with his mandatory attendance upon those two doctors; pursuant to ss 10A and 11 of the Act, the imposition of an interim supervision order (ISO) upon the defendant of 28 days' duration to commence on 3 September 2015; a number of mechanistic orders directed towards the efficient resolution of the matter; and, finally, an order restricting unfettered access to the court file (and thereby the personal details of the defendant) that is intended to facilitate the rehabilitation of the defendant whilst subject to the ISO. 3. It should be noted that the orders sought are a little different from those proposed in the summons of the plaintiff filed on 31 July 2015. They are contained in short minutes of order filed by counsel for the plaintiff at the preliminary hearing before me. It should also be noted that the proposed conditions of the ISO were also altered at the preliminary hearing; the superseding conditions were appended by my Associate to the summons. 4. All preliminary orders sought, and all conditions of the ISO sought, were the subject to the consent by the defendant. Because of that fact, and the fact that he was represented by a solicitor and counsel highly experienced in criminal law, my analysis of the matter need not be as extensive as it would have been if there had been any dispute between the parties. Chronological précis of evidence Early life 1. The defendant was born in early 1953, and accordingly is now aged 62 years. One of three sons, he grew up in regional and rural Australia. He has recounted that his mother died when he was a toddler, and thereafter his father had difficulty coping. Later, his father formed a relationship with another woman. She and the defendant did not get on well. 2. The father of the defendant held a number of unskilled labouring positions. One can infer that the childhood and teenage years of the defendant were free from privilege. The defendant has recounted that the family relocated frequently, thereby unsettling the schooling and social life of the defendant when he was a boy. He was not a good student, and truanted from school. His account is that he commenced working at the age of 13 years, and has only ever held unskilled positions. 3. When he was aged 18 years, the defendant was involved in a motorcycle accident that caused him a severe head injury. His position is that he was hospitalised, and indeed in a coma, for some weeks. The question of whether or not that head injury has played any role in the subsequent chronic criminality of the defendant has been explored in the past, but never definitively answered. Criminal record 1. The criminal record of the defendant commenced almost half a century ago. 2. In 1967, whilst a child, the defendant committed a break enter and steal. In early 1968, he was placed on a bond by the Children's Court. 3. In early 1970, he stole a number of items, and was also found to have a "military rifle" in his possession. Still a juvenile, he was committed to an institution. 4. On 23 December 1977, when he was aged 24 years, the defendant indecently assaulted a woman. The circumstances were that, at about 10.30 PM, he was found to be driving with a blood alcohol concentration of .130. Police did not detain him. At about 11 PM, a woman was in a telephone booth within a post office. The defendant approached her and started talking to her and peering over her shoulder. When she left the telephone box, he stood in front of her and placed his hands under her blouse and onto her breast, and began rubbing it. She pushed him away, but the defendant followed her to her car and repeated his actions. He asked the victim whether she wished to "go for a drive". The victim drove off, attended a police station, and the defendant was promptly apprehended. 5. By way of a typewritten statement, the defendant told police that he had simply been feeling sexually aroused, and was affected by alcohol at the time. 6. On 17 February 1970 in a Court of Petty Sessions, he was placed on a two year bond with supervision, and also fined and disqualified from driving for a period. 7. Less than five months later, at about 6:30 PM on 5 July 1978, a woman was entering her car in a car park. The defendant approached her and asked her for sexual intercourse. She refused, and he forced her into the car at knifepoint. Thereafter he raped her. During her ordeal she received some cuts to her person from the knife. Of course, the defendant was at that stage only a matter of months into a bond imposed for the commission of a sexual offence. 8. The defendant was arrested on 11 August 1978. He admitted to police what he had done, and thereafter pleaded guilty to the offence of rape. On 21 November 1978, he was sentenced in the Supreme Court of New South Wales to a head sentence of imprisonment for 13 years, with no non-parole period. On appeal to the Court of Criminal Appeal, the head sentence was reduced to imprisonment for nine years, and a non-parole period was imposed of four years. 9. Although records of perfect precision are not available, it was agreed between the parties that I should proceed on the basis that the defendant was released to parole in August 1982. In other words, he spent four years in custody as a result of the commission of the offence of rape in 1978. 10. In the evening of 10 December 1982, four months after his release to parole for the offence of rape, the defendant and a male co-offender were driving through the streets of Sydney. They came across a partially blind 17-year-old girl who was walking with her boyfriend along a suburban street. The defendant and the co-offender had previously agreed between the two of them that they would "find a woman". The defendant and co-offender stopped their vehicle, frightened away the boyfriend, and abducted the young girl. She was taken to an isolated place, and sexually assaulted repeatedly by each of the two men. 11. The defendant was arrested three days later on 13 December 1982. He was remanded in custody. He admitted what he had done, and stated that he had been badly affected by alcohol at the time. He also sought to shift the blame to a degree to his co-offender. 12. On 31 March 1983, for the offences of sexual assault and abduction, Roden J in the Supreme Court of New South Wales imposed a total head sentence of imprisonment for 10 years with a non-parole period of five years. 13. As a result of the remission system then in place, the defendant was released to parole on 25 November 1986. It can be seen that, for those offences, the defendant spent a few weeks short of four years in custody. 14. In 1989, whilst on parole for the offences of sexual assault and abduction, the defendant approached three girls aged four, five and six years at a park or playground. He approached one of them, pulled up her skirt, and pulled down her underpants. He pulled down the pants of another one of the children. One of the girls claimed that the defendant had tried to "poke" one of them in the vagina. The defendant invited all three children to leave with him in the car of his friend. They refused. 15. On 29 January 1990, the defendant was convicted in the District Court of New South Wales at Newcastle of two counts of committing an act of indecency against a child. Judge Ducker QC imposed a sentence of periodic detention for 18 months. The defendant was also placed on a five-year bond. 16. Many years passed. The defendant was not subject to conditional liberty for over a decade. 17. By October 2006, the defendant, by then aged 53 years, was living alone in a caravan park. A four-year-old girl was apparently in the habit of visiting him in his caravan. 18. On 5 October 2006, the defendant lent his mobile phone to a woman who was a former romantic partner. She stumbled across images on that phone of a very young girl engaging in sexual contact with an adult male. At first, the defendant was charged with possessing child pornography. Later, when it was determined that the child depicted was the four-year-old and that the adult male was the defendant, the defendant was charged with two counts of having sexual intercourse with a person under the age of 10 years, and other child sexual assaults. Amongst other things, the photographs demonstrated that the defendant had performed oral sex on the four-year-old victim, and had caused her to do the same thing to him. 19. Although the defendant admitted his actions in a recorded interview with police, and expressed regret about his proclivities, he also (at least implicitly) placed some of the blame upon the infant victim. 20. The defendant was arrested for those offences and bail refused on 8 October 2006. He has been in continuous custody ever since, a period of almost 9 years. 21. The defendant pleaded guilty to two offences of sexual intercourse with a child under the age of 10 years; one offence of possessing child pornography; one offence of using a child under the age of 14 for pornographic purposes; and 10 offences of indecent assault on a child under the age of 10 years. On 20 September 2007, in the District Court of New South Wales at Newcastle, Armitage QC ADCJ imposed a total head sentence of imprisonment for nine years to date from 8 October 2006. Due to accumulation upon a non-parole period, the defendant received an unusually long (in terms of its ratio to the total head sentence) total non-parole period of eight years. In the remarks on sentence, his Honour noted that the defendant had sought to place some of the blame for what had occurred on the four-year-old. 22. That total non-parole period expired in October 2014. However, the defendant was not released to parole at that time. He does have pending an application for parole, I was told, that could result in his release to parole on 3 September 2015. 23. It can be seen that, whether he is granted parole or not, the total head sentence of the defendant will expire completely on 7 October 2015. 24. To summarise then the sexual offences of which the defendant has been convicted: he committed an indecent assault against an adult woman in a public place in 1977; he raped an adult woman in a motor vehicle in 1978; in company with a co-offender, he abducted and repeatedly sexually assaulted a 17-year-old girl in 1982; he committed acts of indecency against three very young girls in 1989; and he committed many sexual offences against a four-year-old girl in the period leading up to late 2006, and saw fit to photograph his actions for his own subsequent sexual gratification. 25. Since he became an adult, this man of mature years has regrettably spent 17 years of his life in custody as a result of his sexual offending against women and girls. Other incidents not the subject of charges 1. As can be seen from the above chronology of convictions, there was a lengthy period during which the defendant was not convicted of any sexual offences. However, there were matters of relevance that did not lead to convictions. 2. In 2002, the police attended at the home of the defendant with regard to a break enter and steal. They enquired of him whether there would be the fingerprints of others to be found in his home. He referred to the fact that he received visits from "schoolchildren". When the police enquired further, the defendant was reluctant to explain. 3. In April 2003, the police received a report that the defendant had sexually assaulted an eight-year-old girl and a nine-year-old girl who had been visiting his home. That allegation was never the subject of charge or prosecution. 4. In June 2003, the police received a report that two men were handing out ice blocks to schoolchildren as they alighted from a bus in the town of Goulburn. It was said that one of those men was the defendant. Other matters of background 1. As one would imagine, the defendant has been assessed by many psychologists and psychiatrists over the decades since he first began to intersect with the criminal justice system. 2. To summarise those assessments, he is of normal intelligence, though is a concrete thinker. He does not suffer from psychiatric abnormalities other than his proclivity to commit extremely grave sexual crimes. Prohibited drugs are not an issue for him, though it can be seen that alcohol has played a role in his past offending. 3. He has not been a management problem in custody over the years; indeed, he is a good worker and a talented artist. He does not have much contact with the outside world. He has been spoken of as a lonely person, lacking in intimacy. Treatment, risk assessment and the future 1. In 2012, the defendant "applied" for treatment of his sexual problems whilst in custody. I express myself in that way because, in the document placed in evidence before me, the defendant stated that he did not in truth wish to enrol in the program; that he had no issues or problems that he thought he needed to address; and that he had "nothing" to gain from treatment. It is noteworthy that that document was created after the defendant had spent well over thirteen years of his life incarcerated for repeated sexual offences. 2. That obduracy changed in 2014, when the defendant enrolled in the Custody Based Intensive Treatment program (CUBIT). A report placed before me suggests that he is beginning to develop some degree of commitment to the propositions that children are not sexual beings to be exploited by adults, and that women must be afforded sexual autonomy. A report of Marie Rubio, psychologist, of 20 July 2015 is cautiously optimistic, but expresses the opinion that a structured environment in the community will be essential to continue any progress already made. 3. Two reports relating to risk were placed before me. The first was a report of 27 February 2015 of Narcisa Sutton, senior psychologist within the Department of Corrective Services. By way of a well-known static risk assessment tool, in combination with a dynamic risk assessment, the defendant's risk of re-offending sexually was assessed as being in the "moderate-high risk category relative to other male sex offenders." 4. The report of Ms Sutton also contained the following noteworthy observations: 34. …I note that his masturbatory habits are relatively high in context of his age and living circumstances. It is likely that, after release and with exposure to women in the community, sexual arousal may become a significant risk factor for [the defendant]. An assessment of his need and suitability for antilibidinal medication should be made after his release if sexual arousal does become an issue. … 42. … the impression I gained at interview is that [the defendant] has adopted ideas about his risk and management factors as exposed in treatment, without much more than a superficial understanding of the concepts and principles behind them. In my view [the defendant], although of average intelligence, is a concrete thinker and may not have the ability to gain a deeper level of insight. 1. The report also addresses the post-release plans of the defendant. 2. The defendant has not worked in the community for many years. It seems that he lived on a disability support pension whilst living in the caravan park in 2006. A marriage ended years ago, as a result of his sexual offending. 3. In the short term, it seems that he has been offered accommodation with a woman he knows from Goulburn, or with his brother, who lives in the same town. In the long term, he would like to move to the Coffs Harbour area. The defendant has no plans to work, but rather intends to play pool (presumably in hotels), go fishing, and have "a few beers". Ms Sutton expressly noted that the defendant's future plans "equate to returning to a lifestyle very similar to that he had at the time of the index offence." 4. A risk management report of 7 April 2015 and authored by Joyleen Nowrot, community corrections officer, was also placed before me. The report details that, although the defendant was reluctant at first, he would be open to being housed at the Nunyara Community Offender Support Program (COSP). He has since been assessed as suitable to reside at that facility. 5. The report also expresses the opinion that the defendant would benefit from a period of participation in the community maintenance programme for at least one year. That would be provided by a psychological service at Surry Hills. 6. Ms Nowrot is of the view that intensive supervision and monitoring, as provided for by an ESO, would allow the defendant an opportunity to develop new habits that could endure beyond the period of intensive supervision. The report sets out in great detail the supervision and monitoring to which the defendant would be subject, but they do not require further elaboration by me at this preliminary stage. 7. More than one report has spoken of the defendant as being a man with a very high sex drive. Despite that, he has recently expressed a firm reluctance about taking anti-libidinal medication. Submissions 1. It was agreed between the parties that all of the statutory preconditions for the making of the orders sought had been established. 2. First, the defendant is a "sex offender" as defined in s 4 of the Act: he has committed a "serious sex offence" as defined in s 5(1) of the Act; he is over the age of 18 years; and has been sentenced to imprisonment on conviction for that serious sex offence. 3. Secondly, the plaintiff is entitled to seek an ESO against the defendant because he is a "supervised sex offender", as defined in s 5I of the Act. 4. Thirdly, the plaintiff has complied with the preconditions of service and disclosure of documents with regard to the defendant, in accordance with ss 7(1) and 7(2) of the Act. 5. Fourthly, with regard to s 10A of the Act, it is clear that the total head sentence of the defendant will expire before a final hearing will be able to be heard with regard to the imposition of an ESO. 6. Fifthly, each party agreed that the test for making an ESO is contained in s 5B(2) of the Act. It may be summarised as a state of satisfaction on the part of a judge of this Court, to a high degree of probability, that a defendant poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. 7. Sixthly, and most significantly, each party agreed that, pursuant to s 7(4) and s 10A(b) of the Act, at the conclusion of the preliminary hearing I would have been satisfied that the matters alleged in the supporting documentation filed by the plaintiff would, if proven, justify the making of an ESO in due course against the defendant. 8. Seventhly, each party agreed that it would be correct for me broadly to equate that test with the test applied by a magistrate determining, in committal proceedings, whether or not a prima facie case had been established against a criminal defendant: see Attorney General (NSW) v Hayter [2007] NSWSC 983 at [6]; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]; and State of New South Wales v Reay [2014] NSWSC 1362 at [29]. 9. Eighthly, each party agreed that the list of mandatory factors contained in s 9 of the Act, and which are to be taken into account in determining whether an ESO should be imposed, are of relevance (albeit indirectly) to the question of whether or not an ISO should be imposed. But in light of the preliminary nature of these proceedings; the indirect effect of the factors contained in s 9 of the Act; and the fact that all orders are the subject of the consent of the defendant whilst represented by counsel, each party submitted that it would not be necessary for me to work through seriatim the many factors in that section in this judgment. 10. Ninthly and finally, each party agreed that, although the question of whether or not the defendant will be released on parole at some time between 3 September 2015 and 7 October 2015 is yet to be determined, nevertheless that contingent state of affairs does not stand in the way of me making an ISO. 11. In that regard, my attention was invited to the decision of State of New South Wales v Holschier [2014] NSWSC 867, in which an ISO was imposed in broadly similar circumstances. My attention was also invited to s 160A of the Crimes (Administration of Sentences) Act 1999 (NSW). That section is as follows: 160A Relationship of parole orders to high risk offender orders (1) An offender's obligations under a parole order are suspended while the offender is subject to an extended supervision order, an interim supervision order, an interim detention order or an emergency detention order under the Crimes (High Risk Offenders) Act 2006. (2) For the purposes of Division 3 of Part 7, the offender's obligations under the extended supervision order or interim supervision order are taken to be obligations under the parole order. Note: Consequently, the offender's parole order may be revoked under Division 3 of Part 7 if the offender fails to comply with his or her obligations under the supervision order. (3) Any parole order to which an offender is subject is revoked if a continuing detention order is made against the offender under the Crimes (High Risk Offenders) Act 2006. 1. Each party submitted that the existence of that section demonstrates that Parliament has foreseen the very situation that could arise in this case (of a person being subject to both conditions of parole and conditions of an ISO) and accommodated it. It was said that, as a matter of statutory interpretation, the existence of the section demonstrates that Parliament intended that I could make orders in this situation, if otherwise satisfied that they are appropriate. Determination 1. Regrettably, the life history of the defendant demonstrates that he has an entrenched proclivity to commit very grave sexual offences against women and girls. It first revealed itself in 1977 and was last to be seen in 2006, a period of almost 30 years. Since the latter year, the defendant has had no opportunity to reoffend in that way, because he has been continuously incarcerated. 2. Furthermore, the defendant has repeatedly committed those grave crimes whilst subject to more than one form of conditional liberty. 3. It is true that there was a gap in proven or admitted offending between 1989 and 2006, a not insignificant period of 17 years. That is important, but by no means determinative in the overarching context. And although I give them less weight, it is not irrelevant that there were other incidents and allegations, some of them very serious, during that period. 4. As recently as 2012, documentary evidence shows that the defendant was wholly lacking in insight about the damage he has done to the lives of others, and to his own. 5. Some progress has been made since then, and one hopes that it will continue. But on the evidence placed before me, one cannot be confident that the defendant has anything other than the most primitive understanding of the way human beings deserve to be treated when it comes to questions of sexual contact. 6. Quite apart from the fact that I accept the expert risk assessment recently made, the criminal history of the defendant, combined with his lack of treatment and, until very recently, his lack of insight, compels the conclusion that the plaintiff has established a prima facie case for the making of an ESO in due course. 7. In accordance with the joint position of the parties, I am well satisfied that the test contained in ss 7(4) and 10A(b) of the Act is made out. I have made brief reference in this judgment to all of the factors in s 9 of the Act that are relevant at this stage. 8. It follows that, pursuant to s 7(4) of the Act, I must make orders facilitating the subsequent availability of the reports of the psychiatrists. 9. As for the making of an ISO, it can be seen from the chapeau of s 10A that it is not mandatory. But there is nothing in the material placed before me that would lead me to exercise any discretion to decline to make such an order, and to do so contrary to the express consent of the defendant given through his counsel. Indeed, I consider that the evidence powerfully argues against exercising any discretion in that way. 10. Finally, the parties have persuaded me that the fact that it is currently unclear whether or not the defendant will enjoy a short period on parole at some stage after 3 September 2015 and before 7 October 2015 constitutes no impediment to me making an ISO that commences on the former date. 11. In all the circumstances, I propose to make the substantive orders sought by the plaintiff and agreed to by the defendant. 12. I am satisfied that the rigour of the amended conditions of the ISO sought at the hearing are appropriate, again in accordance with the concession of counsel for the defendant. 13. I also propose to make all of the mechanistic orders directed towards the efficient resolution of the matter later this year. 14. Finally, I consider that order 8 is soundly appropriate, in order to ensure that the rehabilitation of the defendant, whilst he is subject to very strict supervision, is not disrupted. Orders 1. I make the following orders: 1. Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 : 1. That Dr Andrew Ellis, psychiatrist, and Dr Jeremy O'Dea, psychiatrist, be appointed to conduct separate examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by 2 October 2015; and 2. Directing the defendant to attend those examinations. 1. Pursuant to section 10A of the Act, the defendant is subject to an interim supervision order from 3 September 2015 for a period of 28 days expiring on 30 September 2015. 2. Pursuant to section 11 of the Act, directing that the defendant comply with the conditions filed in Court on 20 August 2015, for the period of the interim supervision order referred to in order 2 above. 3. The plaintiff to file and serve any evidence and submissions on which it relies for the final hearing by 16 October 2015. 4. The defendant to file and serve any evidence and submissions on which he relies for the final hearing by 30 October 2015. 5. The matter be listed for hearing on 6 November 2015 with an estimate of one day. 6. The matter be listed on 29 September 2015 to hear the plaintiff's application that the defendant be subject to a further interim supervision order. 7. Direct that access to the court file in respect of any document shall not be granted without the leave of a Judge of the Court. lf any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to be given the opportunity to be heard. 8. Liberty to apply to relist the matter on one day's notice.