Supreme Court New South Wales Medium Neutral Citation: State of NSW v Clarke [2019] NSWSC 411 Hearing dates: 21 March 2019 Date of orders: 12 April 2019 Decision date: 12 April 2019 Jurisdiction: Common Law Before: Fullerton J Decision: 1. Summons dismissed. 2. Plaintiff to pay the defendant's costs. Catchwords: HIGH RISK OFFENDER – preliminary hearing – where the State seeks an order that the defendant be subject to an extended supervision order – orders opposed – whether matters alleged in the supporting documentation would, if proved, justify the making of extended supervision order – summons dismissed Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code Act 1995 (Cth) Crimes (High Risk Offenders) Amendment Act 2017 (NSW) Cases Cited: State of NSW v Ceissman [2018] NSWSC 508 State of NSW v Pacey [2015] NSWSC 1983 Tillman v Attorney-General (NSW) [2007] NSWCA 327; 70 NSWLR 448 Category: Principal judgment Parties: State of New South Wales (Plaintiff) William James Clarke (Defendant) Representation: Counsel: J Emmett (Plaintiff) T Edwards (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2018/385026 Judgment 1. HER HONOUR: By Summons dated 14 December 2018 the State of New South Wales ("the State") seeks an order pursuant to ss 5B, 5I and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") that William James Clarke (the defendant) be subject to an extended supervision order for a period of two years from the date of that order and that he be subject to an order pursuant to s 11 of the Act directing him to comply with a range of proposed conditions, itemised in Schedule A to the Summons, for the duration of the order. 2. At the preliminary hearing, convened before me on 21 March 2019, the State sought an order that the defendant be subject to an interim supervision order for 28 days to date from 11 April 2019 (and that he be directed to comply with the same conditions sought in respect of the extended supervision order pending the final hearing of the Summons); that being the date upon which the sentence for the index offence expires. That order was sought despite the fact the defendant is currently serving a sentence of imprisonment which does not expire until 11 May 2019. That sentence was imposed for a breach of the Child Protection (Offenders Registration) Act 2000 (NSW) committed whilst the defendant was on parole for the index offence. I will return to consider the significance of that breach in the context of the orders the State seeks under the specific jurisdiction of the Act and its intended operation. 3. In the event that an interim supervision order is made, the State also sought an order pursuant to s 7(4) of the Act for the appointment of two qualified psychiatrists and/or registered psychologists ("the experts") to conduct separate examinations of the defendant, and to furnish reports to the Court on the results of those examinations in advance of the final hearing. 4. Although the defendant opposes the application for an extended supervision order, as he does each of the orders sought in the preliminary hearing, he accepted, through his counsel, that he met the statutory criteria entitling the State to invoke the jurisdiction of the Court under the Act in that, inter alia, he is over the age of 18 (he was born in August 1985 and is now 33 years of age) and is serving the balance of a sentence of imprisonment for a serious offence (as defined) being the index offence (an offence of a sexual nature for the purposes of s 5I of the Act). He also accepted that the State's application for both the interim and extended supervision orders were made in accordance with s 5I, and that he is a supervised offender within the meaning of the same section. Although not expressly conceded by him, it is implicit that he acknowledges that the State has brought the application within nine months of his sentence expiring, in compliance with s 6(1) of the Act, and that the documents identified in s 6(3) have been filed in support of the Summons. 5. The index offence was an aggravated sexual assault of a person under the age of 16 pursuant to s 61J(1) of the Crimes Act 1900 (NSW). That offence was committed on 12 March 2014. Upon entering a plea of guilty, a sentence of imprisonment for 5 years was imposed, commencing on 28 March 2014 and expiring on 27 March 2019, with a non-parole period of 2 years and 6 months expiring on 27 September 2016. Notably, in the context of a lengthy criminal record dating from 10 February 1999 with no less than 48 convictions prior to the commission of the index offence, the index offence is the only serious sex offence (as defined). Indeed, it is the only offence of a sexual nature recorded in his criminal antecedents. 6. I will also return to consider the significance of the fact that the index offence is the only offence that grounds the Court's jurisdiction under the Act. The statutory framework 1. The question for determination on the State's application for an extended supervision order is whether the Court is satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. At the preliminary hearing it is not for the Court to assess the weight of the supporting documentation bearing on that question or to seek to predict the outcome of the proceedings for final orders. Rather, the Court is to engage in an evaluative exercise taking into account all of the supporting documentation (and such material as has been tendered by a defendant) and, proceeding on the assumption that the facts alleged in the supporting documentation are proved, to determine whether those facts would justify the making of an extended supervision order. That obliges the State at the preliminary hearing to allege certain facts which, if proved, would lead to a conclusion that the making of an extended supervision order is justified, or, to put it another way, the State bears the burden of persuading the Court that the assumed facts establish to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not supervised. 2. In determining whether to exercise its discretion in favour of making interim orders, the Court needs to be persuaded not simply that an unacceptable risk of the relevant kind will manifest if the defendant is not subject to supervision, but also of the seriousness of the harm that will ensue in the absence of protective measures in the form of supervision orders (see State of NSW v Ceissman [2018] NSWSC 508 at [26]). 3. It follows that if the Court is unable to reach that level of satisfaction at the preliminary hearing the Summons must be dismissed. 4. It is also clear that in undertaking that evaluative task the protection and safety of the community from the dangers posed by high risk sex offenders or violent offenders is paramount (see s 9(2) introduced by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The Act is not concerned with addressing rates of recidivism in the prison population per se or the risk of prisoners reoffending against the general criminal law. Neither is the Act concerned with how rates of recidivism might be addressed in the interests of community safety. In exercising the jurisdiction under the Act, this Court is not exercising the powers or function of a de facto parole authority. 5. The observations of Harrison J in State of NSW v Pacey [2015] NSWSC 1983 at [53] have particular resonance in that connection and on this application: It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release. The evidence 1. The evidence comprising the supporting documentation upon which the State relies in seeking the interim orders includes the affidavits of Shawanah Tasneem affirmed 12 December 2018 and Benjamin Madden affirmed 28 February 2019 to which are annexed the standard categories of documents accompanying applications under the Act including the defendant's criminal record, various court attendance notices and facts sheet, a record of the defendant's custodial history and progress/treatment notes. A risk assessment report and a risk management report were also tendered. Mr Clarke's background 1. Mr Clarke is now 33 years of age. He is of aboriginal heritage. He is the eldest of eight children. Two of his siblings have since died. 2. He has been exposed to and been the victim of significant violence during his upbringing. His parents had a violent relationship, and the man he believed for many years to be his father assaulted his mother on multiple occasions. He has variously described the man as constantly drinking which would invariably result in violence. On one occasion, his mother was struck in front of him, causing her jaw to break in three places. The defendant described feeling "that he was the one left out in the family". He later learnt that the man he thought his father was not his father. He described having been "bashed" by that man, and recalls that of his seven siblings, he "copped it the worst". 3. From age 11 the defendant was raised by his grandparents. The circumstances in which they assumed responsibility for his care are not apparent, although the available inference is that it was because of the violence and instability in his primary family unit. I note that the Offender Integrated Management Sydney (OIMS) records indicate that the defendant's grandfather died on 11 October 2018 while the defendant was in custody (his parole having been revoked). His request to attend his grandfather's funeral was refused. 4. His school attendance was poor. He attended primary school on his estimate for approximately 80 days a year. He was frequently suspended for misconduct and was expelled at least once. He completed year ten in a juvenile detention facility. He has not completed any further secondary or tertiary education or any trade courses. He has been in receipt of social security payments for much of his adult life, however he has obtained occasional labouring work. 5. The defendant is not currently in an intimate relationship. While the material in the supporting documents reveals that he has previously expressed some uncertainty as to the number of children he has fathered, I accept that he believes he has eight children from five or six relationships. He has contact with some but not all of his children. Many of his domestic or intimate relationships appear to have involved violence. The OIMS records further reveal that one of the defendant's daughters, aged some few months, died unexpectedly on 28 November 2018. His daughter was born while he was in custody (his parole having been revoked). His first physical contact with his daughter was following her death, during which period he was living at the Nunyara Community Offender Support Program (COSP) Centre. His contact with his daughter, including his holding her, was supervised by police; a matter which the OIMS records reveal he found "very hard". 6. As I have already observed, the index offence, an aggravated sexual assault of a person under 16 years contrary to s 61J(1) of the Crimes Act, is the only offence on the defendant's record of a sexual nature, and the only serious sex offence as defined. He has committed no serious violence offences. The index offence was committed on 12 March 2014. 7. The Crimes (High Risk Offenders) Act defines "serious violence offence" as follows: (1) For the purposes of this Act, a "serious violence offence" is a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. … 1. The terms "serious sex offence" and "offence of a sexual nature" comprehend a range of offences contrary to the Crimes Act and the Commonwealth Criminal Code set out in the Schedule to the Criminal Code Act 1995 (Cth). The index offence was a serious sex offence by reference to the following definition: (1) For the purposes of this Act, a "serious sex offence" means any of the following offences: (a) an offence under Division 10 of Part 3 of the Crimes Act 1900 , where: (i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and (ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises), … 1. After serving 3 years and 3 months of the index offence (exceeding the expiration of his non-parole period by 9 months), the defendant was released to parole on 8 June 2017 ("the first grant of parole"). The defendant breached his parole conditions in a number of ways, including by failing to report for scheduled appointments, unsatisfactory attendance at treatment with Forensic Psychological Services (FPS), and vacating his known accommodation without disclosure to community corrections or the child protection register. He did not commit any offences of violence, neither did he commit a sexual offence. He was not charged with any drug offence or offence of dishonesty. 2. Parole was eventually revoked on 14 March 2018 consequent upon the defendant's failure to comply with reporting obligations imposed under s 17(1) of the Child Protection (Offenders Registration) Act. He was arrested on 28 March 2018 and charged with a breach of that Act. Thereafter, he remained in custody for a further period of months until parole was again granted on 19 November 2018 ("the second grant of parole") 3. On 21 January 2019 a Future Court Attendance Notice was issued in respect of a further failure to comply with reporting obligations under the Child Protection (Offenders Registration) Act contrary to s 17(1) of the Act, the defendant having again vacated his premises without notifying police. He was arrested for breach of parole on 12 February 2019 consequent upon that breach. He entered a plea of guilty to that charge and on 18 February 2019 was sentenced to a term of imprisonment of 3 months to commence on 12 February 2019, expiring on 11 May 2019. The preliminary hearing in summary 1. The single issue at the preliminary hearing was whether the matters alleged in the supporting documentation would, if proven, justify the making of an extended supervision order. 2. Mr Emmett, counsel for the State, submitted that there is a very substantial risk of the defendant committing a further offence in the community if he is not supervised under the statutory regime provided for in the Act. He acknowledged that the Act is concerned with the risk of a person committing a serious offence (as defined), as distinct from the risk of offending per se, in respect of which he advanced the following submission: … if the defendant's offending does lead to a serious violence offence or serious sexual offence, the harm could be very substantial. Indeed, in relation to some of the defendant's non-serious violent offending in the past, it might be said that it was good fortune that the conduct did not lead to the kind of injury that would make the offence a serious offence as defined. (emphasis added) 1. As I understand it, Mr Emmett's submission is that if the defendant is not supervised, his criminal offending may become significantly worse over time which could readily culminate in the commission of an offence satisfying the statutory definition of a serious offence, and, that being the case, the Court would be satisfied to a high degree of probability that there is an unacceptable risk of the defendant committing such an offence if not supervised pursuant to the scheme provided for in the Act. 2. In Mr Edwards' written submissions, filed on behalf of the defendant, the obvious flaw in the State's analysis was identified, namely that the defendant's lengthy criminal history does not, properly interpreted, reflect any tendency to escalating levels of violence, sexual or otherwise, and that, properly understood, the context in which the index offending was committed provides no evidence of that tendency. Mr Edwards noted, as I have earlier, that the only offence committed by the defendant which meets the definition of "serious offence" is the index offence, and further that the only offences committed whilst the defendant was on parole for that offence were offences relating to non-compliance with his reporting obligations under the Child Protection (Offenders Registration) Act, imposed solely by reason of the index offence, and what Mr Edwards fairly described as a "relatively minor" property offence. 3. Mr Edwards also submitted that the State's submission that the defendant's previous violent offending could "easily have deteriorated into the commission of a serious violence offence" must also be rejected. In its terms that submission, taken at its highest, is based upon no factual foundation other than the defendant's pattern of recidivism. The incontrovertible fact remains that his offending did not deteriorate as the State predicts it might have. Self-evidently, in circumstances where the defendant's offences of violence span a period of years and involve multiple victims, mostly in a domestic context, the theoretical potential for that offending to have escalated into the commission of a serious violence offence as defined simply has not materialised. Mr Edwards labels the State's contention that without supervision the defendant's offending could become significantly worse and could readily culminate in the commission of a further serious offence as, at best, highly speculative; an analysis which is anathema to the evaluative exercise in which the Court is engaged. That submission is persuasive and, for reasons which I will later develop, is ultimately dispositive of the Summons. The defendant's criminal history, his pattern of offending behaviour and the views of any sentencing court (see ss 9(3)(h) and (h1)) 1. The defendant's criminal history commenced in 1999 at age 13 when he was charged and convicted of stealing a car, larceny and being carried in conveyance taken without the consent of the owner. A good behaviour bond was imposed. 2. The first offence of violence (cf serious violence as defined) was committed in February 2001 when the defendant was aged 16 years. He was charged with common assault contrary to s 61 of the Crimes Act. That offence involved the defendant, in the company of two other juveniles, striking the victim with a closed fist six or seven times. The defendant was convicted of that offence. A three month control order pursuant to s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (NSW) was imposed. 3. The next offence of violence was committed on 11 April 2004 when he was aged 19. Again, a charge of common assault contrary to s 61 of the Crimes Act was laid. The victim was the defendant's domestic partner. He struck her when she was three months pregnant causing considerable swelling to her right eye. A bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was imposed. 4. On 16 April 2005, 12 November 2005, 5 December 2005 and 14 November 2006 the defendant assaulted his domestic partner, or former partner. On each occasion, in addition to being charged with common assault, he was charged with having breached an apprehended domestic violence order in place for the protection of those women. In respect of the first series of offences, the defendant was subject to a term of 6 months imprisonment. In respect of the second and third series of offences he was subject to 6 month terms of imprisonment which were suspending on his entering a bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act. In respect of the fourth series of offences, he was sentenced to 9 months imprisonment. 5. There are no offences of violence of any kind on the defendant's criminal record between November 2006 and January 2013. He was, however, charged and convicted of a range of offences during this period including custody of knife in a public place for which a fine of $300 was imposed; contravening a prohibition in an apprehended domestic violence order attracting the imposition of a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act for two years; demand property in company with menaces with intention to steal for which a term of imprisonment for 166 days was imposed; robbery in company for which a term of imprisonment for 2 years and 2 months was imposed with a 15 month non-parole period commencing on 23 September 2010 and expiring on 22 December 2011, and supplying a prohibited drug for which a sentence of imprisonment for 6 months was imposed, commencing on 24 May 2011 and expiring on 23 November 2011. 6. On 5 January 2013 the defendant was charged with assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act when upon entering the home of his former girlfriend he struck her to the right side of her face, causing her to lose consciousness. Following the assault and a grant of bail, further charges were laid in respect of the defendant's failure to appear in accordance with his bail undertaking (on 19 December 2013), and a further course of assaultive conduct on 26 March 2013 resulting in the laying of a charge for assault occasioning actual bodily harm, a charge of common assault and a charge of contravening his apprehended domestic violence order. An aggregate term of imprisonment of 12 months was imposed in respect of that entire course of conduct. A 6 month non-parole period was fixed. It expired on 20 August 2013. The index offence 1. The index offence was committed on 12 March 2014. The defendant was not on parole at the time or otherwise subject to conditional liberty. 2. The police facts indicate that the victim (the defendant's second cousin), then aged 15, left her home and walked to where the defendant was then living with his mother and her partner with the intention of borrowing his mobile phone. The defendant informed her that his phone needed to be charged. She elected to wait until the phone was charged. 3. The defendant offered the victim two cans of a pre-mixed alcoholic drink which she accepted. They then walked into his bedroom to see whether the phone was charged, after which they both sat on the accused's bed. The defendant asked the victim if she was a virgin. She indicated that she was not, having engaged in sexual intercourse on five occasions. After consuming more alcohol, she passed out. 4. Upon waking, the victim recalls opening her eyes and seeing the defendant next to her. She recalled that her pants and underwear had been pulled down and her vagina was sore. She accused the defendant of having sexually assaulted her, to which the defendant replied, "oh well, princess". 5. The victim ran to a neighbouring property. Police and ambulance were called and she was conveyed to hospital. The defendant was apprehended on 28 March 2014 and charged with the index offence. He entered a plea of guilty to aggravated sexual assault contrary to s 61J(1) of the Crimes Act and was sentenced on 29 October 2014. 6. In his sentencing remarks, Mahony SC DCJ described the offending as "very serious". He went on to say: 53. In respect of the offender's prior criminal history, I have regard to what the High Court said in Veen v (No 2) (1998) 164 CLR 465 at 477 where the plurality said: The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. 54. Clearly, the offender falls within the latter category of case. 1. As discussed at [22] and [23], above, parole was granted for the index offence and revoked on two occasions. The defendant is currently in custody as a consequence of his conviction and sentence for breach of the Child Protection (Offenders Registration) Act while on parole. Risk assessment report of Dr Richard Parker (relevant to ss 9(3)(c) and 9(3)(d) of the Act) 1. A risk assessment report was prepared by Dr Richard Parker, senior psychologist within the Serious Offenders Assessment Unit. The report was prepared responsive to a request from Correctives Services NSW (CSNSW) in anticipation of the State's application for orders under the Act. 2. The report was prepared following an interview with the defendant at Cooma Correctional Centre and by reference to a range of collateral information including the defendant's CSNSW case management file and OIMS records, the defendant's criminal history, various pre-sentence reports and the sentencing remarks of Maloney DCJ dated 29 October 2014. 3. Dr Parker described the defendant's criminal history as "appalling", culminating in the commission of the index offence on 12 March 2014. He noted that the defendant's release to parole was initially positive but that his behaviour deteriorated soon thereafter. He observed this was consistent with earlier releases to parole and periods of supervision. Dr Parker observed that despite the defendant having completed the CUBIT program – a program which was designed to address sexual offending and to assist an offender to manage their risk in the community by assisting them to change their thinking, attitudes and feelings that led to their offending – the completion of that program did not have a sufficient impact to prevent him falling back into a similar pattern of non-compliance and offending. What Dr Parker does not comment upon is that the defendant has in fact not offended in any way since completing that program (save as to have breached a reporting obligation under the Child Protection (Offenders Registration) Act and a minor property offence). 4. Dr Parker assessed the defendant's risk factors through various actuarial instruments and his criminogenic needs. He accepts that criminogenic needs have often failed to demonstrate any incremental predictive value. His findings, in summary, are as follows. Actuarial instruments (relevant to s 9(3)(d) of the Act) Level of Service Inventory – Revised (LSI-R): 1. Dr Parker describes this instrument as a "good predictor of general (any) offending, but also a modest predictor of violence". Its ability to predict sexual reoffending is said to range (in the literature) from "acceptable levels … to unpredictive". 2. The defendant scored 22 out of a possible 54, placing him in the "low/medium" category for his risk of reoffending. Dr Parker believed that a "higher score is warranted, particularly as the instrument was scored during the relatively brief window when [the defendant] was employed and exhibiting few problems". I note that the LSI-R was performed in September 2017, during which time the defendant was employed as a fulltime casual labourer/form worker in Sydney for a private company. 3. Referable to the literature, Dr Parker observed that it was recommended that this instrument be "… considered in conjunction with other validated risk assessment measures when making community supervision decisions". Static 99R: 1. This instrument is designed to assist in the prediction of sexual recidivism for individuals charged with or convicted of a sexual offence. It is said to have a moderate predictive accuracy. Available scores range from between -3 and 12 and are referable to five risk categories: Level I to Level V. Level V is the highest risk category and designates those who are "virtually certain" to reoffend. Despite that designation, Dr Parker observed that rates of recidivism for the highest categories in Static-99R are between 20% - 50%, with the result that it is simply not possible to generate a Level V designation for this instrument. Accordingly, the highest category is designated as Level IV-b. 2. Dr Parker observed that the defendant's total score was 6, corresponding to category IV-b. Rates of recidivism for sexual offenders falling within this category range between 21.5% and 30.3% over five years, and 30.5% and 44.7% over ten years. Dr Parker observed that compared to "other adult male sex offenders", the defendant's score correlated to the 94th percentile and that, taking into account the fact that 3.6% of sex offenders shared the same score as the defendant, that percentile corresponded to 92% of offenders scoring lower than Mr Clarke, and 4% scoring higher. STABLE-2007: 1. This is an actuarial tool developed to assist clinicians to identify stable dynamic risk factors for sexual re-offending. Such dynamic risk factors include intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation. These risk factors are persistent characteristics which are said to remain "relatively stable over time", but are amenable to change through "effortful intervention, such as treatment and supervision". 2. The defendant scored 11 out of 27, corresponding to a risk level of "moderate". STABLE-2007 and Static 99R: 1. Dr Parker explains that the results produced by these actuarial instruments can be combined to generate an "overall risk level" of the likelihood of reoffending; the combination of which yields a rating for the defendant of Level IV-B which is classed as "well above average risk". This is a result which Dr Parker observed "may be useful in determining the level of supervision or intensity of intervention required by Mr Clarke". Violence Risk Appraisal Guide-Revised (VRAG-R): 1. This is an actuarial risk assessment tool developed to assess the risk of violent offending, designed to be used in respect of both sexual and violent offenders. The tool assesses static risk factors to provide a probability of an individual's risk for violent (including sexually violent) offending over longer periods of time. 2. The defendant's score was equal to, or higher, than the score of at least 98% of the construction sample, which placed him in the ninth of nine "bins". Dr Parker observed that 76% of violent offenders with a similar score "reoffended violently" within five years, and 87% within twelve years. Criminogenic needs 1. Dr Parker also considered the defendant's criminogenic needs, which he described as "dynamic risk factors". 2. Having regard to the research of Polaschek and Ward, Dr Parker analysed, referable to the defendant, five attitudes which the researchers identified as "implicit theories among rapists". Those attitudes, and Dr Parker's analysis of them, are as follows: 1. Entitlement: this attitude refers to the idea that a person's needs and desires exceed any concern of another's well-being. Dr Parker observed that this is a consistent theme throughout the defendant's offending and general behaviour, both whilst he was in custody and in the community, and concluded, "the needs/desires of other people appear to be of little concern to [the defendant]". 2. Dangerous world: this attitude refers to the idea that the world is a dangerous place, filled with individuals who will act malevolently towards the defendant, consequent upon which he must adopt aggressive strategies to defend himself against perceived attacks from others. Dr Parker observed that Mr Clarke's frequent resort to violence, particularly in domestic relationships, reveals a readiness to feel threatened and a preparedness to respond violently. 3. Women as sex objects: this attitude is based upon the theory that women are seen to exist in a constant state of sexual reception and were created to meet the sexual desires of men. Dr Parker identified that one implication of this theory is that there is "often a discrepancy between what women say then want and what they actually want" as assessed by a person who ascribes to this theory. Dr Parker observed that the index offence provides evidence for this theory, "as [the defendant] may have misinterpreted the victim's friendliness as an invitation for sexual contact, even after she had rebuffed his advances" by pushing his hand away when he touched her inner thigh. 4. Male sex drive is uncontrollable: this attitude focuses on the idea that the man is not responsible for his sexual behaviour, and that if he is deprived of a sexual outlet, he is not responsible for the behaviour that follows. In respect of this attitude, Dr Parker concludes (perhaps somewhat elliptically), "[w]hile there is no direct evidence he has this implicit theory, the conflict in his relationships means it cannot be excluded". 1. In Dr Parker's opinion the defendant "does not appear to have fully disclosed the extent of his substance abuse" (the basis of the assumption is not clear) in respect of which he opined that excessive consumption of substances "places [the defendant] in contact with other problematic substance users and distances him from prosocial people", increasing the likelihood of him associating with other offenders and adopting a criminal lifestyle. He also observed that alcohol is a disinhibitor and increases the likelihood that the defendant will act impulsively. Finally, he observes that "substance abuse is expensive, and crimes may be committed to fund further substance use". The relevance of that observation to this application is not obvious. Dr Parker's conclusions as expressed in the risk assessment report 1. Dr Parker assessed the defendant as being at well above average risk of committing further offences of sexual and/or non-sexual offending. He observed that Mr Clarke continues to hold substantial antisocial attitudes and that while he may comply with the law for a period of time, his own desires will "eventually … over-ride any concerns about breaking the law". He opined that while those infractions of the law may be relatively minor initially, they are likely to escalate over time, "graduating to substance abuse, association with antisocial people, and eventually descending into a chaotic antisocial lifestyle". He opined that the resulting offending "may involve" general offending, sexual violence or non-sexual violence, but that the "theme will revolve around Mr Clarke taking what he wants" consistent with him addressing his own desires to the detriment of others and society as a whole. 2. He went on to say the following: [His breaking of the law] may commence with breaking of small rules, such as being late for appointments, disengaging from, and being dishonest with, treatment providers and supervisory agents. However, it is likely to escalate over time, graduating to substance abuse, association with antisocial people, and eventually descending into a chaotic antisocial lifestyle. In this situation, Mr Clarke will focus more and more upon his own desires, to the detriment of other people and society as a whole. The resultant offending may involve general offending, sexual violence or non-sexual violence, but the theme will revolve around Mr Clarke taking what he wants. The actual type of offence will more likely relate to the particular desires Mr Clarke has at that time. Given his previous history, it is likely that any further sexual offending would be preceded by substance abuse and non-sexual offending – whether or not such offending is officially detected. The most likely victims of interpersonal offences will be people he already knows, but it is not inconceivable he could offend against someone he has just met. (emphasis added) The level of the defendant's compliance with obligations while on release to parole and compliance with obligations under the Child Protection (Offenders Registration) Act (relevant to ss 9(3)(f) and 9(3)(g) of the Act) 1. The level of the defendant's compliance with obligations while on release to parole and compliance with obligations under the Child Protection (Offenders Registration) Act are relevant considerations pursuant to ss 9(3)(f) and 9(3)(g). As is clear from what I have said earlier, the level of the defendant's compliance with parole obligations and reporting obligations under the Child Protection (Offenders Registration) Act has been poor, resulting in a revocation of parole and his conviction and imprisonment for failing to comply with his reporting obligations. 2. While I have had regard to these matters, and his failure to comply with parole conditions and obligations under the Child Protection (Offenders Registration) Act, they do nothing to inform my assessment of whether the defendant will commit a serious violence offence or serious sexual offence if not subject to supervision. Risk Management Report prepared by Marc Corcoran (relevant to s 9(3)(d1) of the Act) 1. A risk management report dated 4 October 2018 was prepared by Mr Marc Corcoran, a senior community corrections officer within the metropolitan extended supervision order team. That report was prepared following an interview with the defendant, and with reference to Dr Parker's risk assessment report, the sentencing remarks of Mahony SC DCJ in respect of the index offence, the defendant's criminal record and other records held by CSNSW. 2. Mr Corcoran observed that the defendant has been known to Community Corrections since 2004 and that he has been the subject of various pre-sentencing reports and supervision by Community Corrections since that time with a focus on substance abuse, addressing violence and aggression, and most recently, management of the risk he poses of committing an offence of a sexual nature by reason of the index offence. He observed that the defendant's observance of parole conditions generally commences in a positive manner, but that the defendant's behaviour deteriorates over a period of time with the defendant abusing substances, re-offending and disengaging with supervising authorities. 3. As to the defendant's post-release plans as at the date of the report which I note was prior to the second grand of parole, Mr Corcoran observed that the defendant has secured accommodation at Nunyara Community Offender Support Program (COSP) which is staffed by CSNSW employees, and from which the defendant will receive re-integration support and assistance with securing independent accommodation. He further observed the defendant's disclosure that on his last release from parole (the first grant of parole), rental affordability was a stressor for him and that on this occasion he intends to seek assistance from COSP staff and relevant agencies to obtain sustainable long-term accommodation. He will be in receipt of Centrelink Newstart payments upon his release from custody, and hopes to obtain employment in the construction industry in the longer-term. The defendant also indicated to Mr Corcoran an intention to return to the "Forensic Psychology Service maintenance group". He is also recorded as having requested contact with the Justice Health Connections project and expressed hope that strategies can be established prior to his release for him to engage in Opioid Replacement Therapy and other relapse prevention intervention upon release. 4. Mr Corcoran made the following observation: Overall Mr Clarke expressed a desire to build a law abiding sustainable lifestyle for himself in the community, and to be open and honest with Community Corrections and other community based services that he is involved with. Given his response during previous periods of supervision, it is unclear how long he would be able to sustain such a lifestyle. 1. Mr Corcoran then identifies the defendant's risk of re-offending as "well above average", largely it seems referable to Dr Parker's report. He identifies a range of risk management strategies that might be deployed to manage the defendant's risk in the community (many of which are reflected in the conditions sought by the State), and the limitations of those strategies. Treatment and rehabilitation programs in which the defendant has participated (relevant to s 9(3)(d1) of the Act) 1. The defendant has completed a range of programs, including the EQUIPS Addiction program in May 2015, the SMART Recovery program in July 2015 and attended Alcoholics Anonymous meetings in 2015 and 2016. 2. I also understand that the defendant completed a CUBIT Program in 2017. A report dated 20 April 2017 in relation to the defendant's participation in that program is within the supporting documentation. It was prepared by Ms Aimee Press, forensic psychologist. It identifies the defendant as being at a high risk of reoffending. As to his participation in the CUBIT program, it reads as follows: Mr Clarke used his treatment period constructively, developing insight into his patterns of behaviour including substance use, violence, general criminality and his sexual offending. He demonstrated a basic understanding of strategies for self-management and risk management that will need to be reinforced and monitored as he transitions into less restrictive environments. He has generally been responsive to feedback and advice, and will need to ensure that he continues to seek help and challenges any beliefs about that been seen as weakness [sic]. He has reasonable plans for his reintegration, but will need to ensure that he remains grounded, establish a strong foundation for development including reliable employment. Mr Clarke cannot afford to become complacent with potential risks, especially related to emotional dysregulation and substance use. He has started his commitment to ongoing interventions and engagement with professional services and is encouraged to follow through with that. 1. A number of recommendations are made by Ms Press to assist Community Corrections with the defendant's reintegration into the community and his risk management, as follows: 1. That the defendant attend the FPS maintenance group to provide him with a constructive forum to discuss risk, management strategies, and receive support. 2. That the defendant be assessed for suitability to attend either community based substance abuse treatment or maintenance, and that he remain abstinent from alcohol and drugs and be subject to frequent, random urinalysis. 3. That the defendant not associate with known criminal or antisocial peers. 4. That the defendant be subject to conditions associated with the Child Protection Register. 5. That the defendant be proactive in seeking employment and engaging in vocational pursuits. 6. That the defendant be encouraged to engage with indigenous support networks such as an Aboriginal Men's Shed. 7. That the defendant be encouraged to participate in groups which promote an interest in the welfare of others. 8. The establishment of romantic/sexual relationships should be done with the awareness of the defendant's support groups, and if he were to experience difficulties expressing himself and communicating with his partner, he should access community based relationship services such as those provided by Relationships Australia. 1. Finally, a recommendation is made in the following terms: Whilst it is recognised that Mr Clarke may need some time to re-adjust to the community, it is recommended that this period be no longer than necessary, and monitored for any signs of boredom so as to minimise the likelihood of [idle] time resulting in the development of any inappropriate ideas and/or behaviours. Mr Clarke is encouraged to continue the physically active lifestyle he has established whilst in prison, finding appropriate avenues for exercising and ideally environments where he can meet and train with others who share a similar passion for health and fitness. The OIMS records 1. The OIMS records relating to the first and second grants of parole reveal a willingness on the defendant's part to understand the conditions of his parole, and to fully comply with them. They also reveal an eagerness to start a "new life", to re-establish contact with his children to the extent to which that is permitted under his parole conditions, and the existence of a network of family prepared to support him to successfully re-integrate into the community. 2. Upon his initial release to parole he resided at the Nunyara COSP Centre, before finding private rental accommodation. He also obtained full-time casual employment as a labourer/form worker. He established a new relationship and informed parole officers off it consistent with his obligations to do so. He also informed parole officers that his new partner had two young children and he appeared to understand his limits on contact with the children unless such contact was approved by CSNSW. He sought treatment as directed from a range of treatment providers. 3. Unfortunately, the records indicate that the defendant's employment came to an end some time later; the defendant having felt isolated by the absence of other indigenous employees. The termination of employment led to cashflow problems and he fell behind on rent for some time, although subsequently indicated that the payment in arrears had been met by the Hillsong Church. 4. The defendant's compliance with parole conditions waned over a period of months and by late February his engagement with Community Corrections ceased, leading to the revocation of his first grant of parole in March 2018. The defendant's second grant of parole followed a similar course, with initial compliance with parole obligations giving way to increasingly sporadic contact with Community Corrections before a cessation of contact and a further revocation of parole. I note, however, that the conduct giving rise to the revocation of parole on both occasions (which I have discussed above and relevantly includes a failure preceding both revocations to comply with reporting obligations under the Child Protection (Offenders Registration) Act and a charge of receive stolen property contrary to s 188(1) of the Crimes Act) fell far short of conduct comprehended by the definition of a serious violence offence or serious sex offence. 5. I note also that during the period of the defendant's second grant of parole his infant daughter died (a matter to which I referred at paragraph 17, above). I am satisfied that a traumatic event of this severity would have overwhelmed his coping strategies and may explain, in part, his non-compliance with his reporting obligations. Consideration 1. I accept, unreservedly, Mr Emmett's submission that supervision orders are protective and not punitive, as I do his further submission that the Act is designed to address the "intractable problem" of how to respond to those cases where a prisoner who is otherwise entitled to be released nonetheless presents a "serious danger" to the community (see Tillman v Attorney-General (NSW) [2007] NSWCA 327; 70 NSWLR 448) 2. Ironically, in this case those submissions, when considered in the context of the test in s 5B of the Act as it applies to this defendant, dictates that the Summons be dismissed. 3. To elaborate, proceeding on the assumed basis that the facts within supporting documents are proved at the final hearing, I am not satisfied that there is a sufficient factual foundation for the making of an extended supervision order against the defendant. That is, after taking into consideration the high risk of reoffending reported upon by Dr Parker based upon actuarial instruments and in Ms Press' views in her report of two years ago, in light of all of the material the Court is obliged to evaluate for statutory purposes including his conduct in the community on parole, I am not satisfied, to a high degree of probability, that if the defendant is not supervised pursuant to the scheme provided for in the Act there is an unacceptable risk that he will commit a serious offence of violence of a serious sexual offence (as defined). 4. I accept that there is a possibility that what Dr Parker describes as "a chaotic lifestyle" may trigger the risk of him reoffending, particularly if he responds opportunistically and impulsively to "gratify his desires", and I also accept that the most likely victims of violence, if he is to use violence at all, will be in the context of intimate or interpersonal relationships. That does not, however, constitute either the level of risk or the specific type of risk of reoffending with which the Act is concerned. The Act is not concerned with the risk of people breaking the law per se or for that matter with risks of reoffending associated with a prisoner leaving a custodial setting and transitioning to an unsupervised environment within the general community, despite the support that an extended supervision order may supply. Rather, the Act is concerned with the risk of such a person committing a serious sexual offence or an offence of violence of a particular kind such that the highly regulated scheme of supervision contemplated by an extended supervision order is the only appropriate means of addressing that particular risk. Costs 1. It was the agreed position between the parties that were the Summons to be dismissed, the appropriate order in respect of costs is that the plaintiff pay the defendant's costs. In circumstances where the plaintiff has been wholly unsuccessful in obtaining the relief sought, that is the appropriate order. Orders 1. Accordingly, I make the following orders: 1. The Summons is dismissed. 2. The plaintiff is to pay the defendant's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2019