State of New South Wales v Jubb (Final) [2019] NSWSC 709

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Jubb (Final) [2019] NSWSC 709 Hearing dates: 3 June 2019 Date of orders: 14 June 2019 Decision date: 14 June 2019 Jurisdiction: Common Law Before: R A Hulme J Decision: Extended supervision order for 3 years with conditions Catchwords: HIGH RISK OFFENDER – application for extended supervision order – final hearing – serious sex offences and offences of a sexual nature – statutory preconditions for order are satisfied – whether satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision – consideration of independent expert evidence – defendant sentenced for further breaches of child protection orders after preliminary hearing – three year extended supervision order imposed with conditions Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 5B(d), 9(1), 9(2), 9(3), 10C(1), 10C(1A), 10C(2), 11 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Gavin Jubb (Defendant) Representation: Counsel: Mr P Aitken (Plaintiff) Mr M Johnston SC (Defendant)

Solicitors: Crown Solicitor's Office Legal Aid NSW File Number(s): 2019/37390

Judgment 1. HIS HONOUR: The State of New South Wales (the plaintiff) commenced proceedings on 4 February 2019 under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The plaintiff then reformulated the proceedings somewhat by filing an amended summons on 3 June 2019, whereby it sought various orders to be made in relation to Mr Gavin Jubb. It is claimed that there is a high degree of probability that Mr Jubb poses an unacceptable risk of committing a serious sex offence if not kept under supervision. 2. On 11 March 2019, Ierace J made orders following a preliminary hearing, including an interim supervision order. He also made a non-publication order which the parties accepted before me was no longer necessary. However, because of the basis upon which his Honour made that order, it was submitted that care should be taken in relation to what is disclosed in this judgment. For that reason, I will refer to his Honour's judgment simply as "the preliminary judgment". 3. Mr Jubb is an offender who has served a sentence of imprisonment for "serious sex offences" as defined in the Act. Those offences, in addition to further offences of "a sexual nature" as similarly defined, occurred some years ago. They involved children aged 12 or 13. The offences involved grooming a child for unlawful sexual activity, aggravated indecent assault, inciting a person under 16 to commit an act of indecency, attempting to, and committing aggravated acts of indecency, and the basic offence of committing an act of indecency. 4. Mr Jubb was sentenced in the Local Court but the overall sentence was reduced on appeal to the District Court. Payne DCJ imposed an aggregate sentence of imprisonment for 2 years, 10 months with a non-parole period of 1 year, 9 months. The facts of the offences are summarised in the preliminary judgment at [4]. 5. Mr Jubb has committed no further serious sex offences or offences of a sexual nature, but has committed a number of offences in breach of the requirements of his registration on 7 February 2013 under the Child Protection (Offenders Registration) Act 2000 (NSW) and a prohibition order made under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) on 5 June 2018. The prohibition order is valid for a period of 5 years and is due to expire on 4 June 2023. Its provisions include that he not actively communicate, or attempt to do so by any means, with any person under the age of 18 years. 6. On 16 May 2018, Mr Jubb was convicted in the Local Court on two charges of failing to comply with his reporting obligations pursuant to his registration under the Child Protection (Offenders Registration) Act between 1 January and 7 March 2018. The facts relating to those offences are summarised in the preliminary judgment at [7]. Mr Jubb received sentences of imprisonment for 8 months, but the sentences were suspended upon him entering a good behaviour bond. 7. On 13 June 2018, Mr Jubb was convicted in the Local Court of an offence of contravening the prohibition order under the Child Protection (Offenders Prohibition Orders) Act, as well as another offence of failing to comply with his reporting obligations under the Child Protection (Offenders Registration) Act. He was also dealt with for breaching the good behaviour bonds entered into only weeks before. He was sentenced to an overall term of imprisonment of 12 months with a non-parole period of 9 months. The non-parole period expired on 11 March 2019 and the total term expired on 11 June 2019. 8. The offences of failing to comply with reporting obligations for which Mr Jubb was initially sentenced on 16 May 2018 were committed between 1 January and 7 March 2018. He was the manager of a chicken farm and lived on the site. He was associating with six children of a couple who also worked on the farm. One child, aged 17, had been living with him. He was required to report such an association with children to police, but had failed to do so. He was also obliged to report his use of social media, but had failed to do so in respect of a Snapchat account he had been using for the previous 3 to 4 months. 9. The offences of contravening the prohibition order and failing to comply with reporting obligations for which Mr Jubb was sentenced on 13 June 2018 were committed on 12 June 2018. These offences involved him having two boys under the age of 18 (in fact 17) working at the chicken farm. He told police that he felt "stuck" and that he had "no choice" due to his employment situation. He did not want people to find out that he was on the Child Protection Register and he had a Child Protection Prohibition Order. 10. No allegation of sexual impropriety has been made in respect of Mr Jubb's involvement with the various children who had been at the chicken farm. 11. Ierace J provided a very thorough review of Mr Jubb's background and the various assessments which had been made of him, as well as the risk he presents of committing further serious sex offences in the preliminary judgment (at [20]-[33]). There is no point in my repeating any of it. His Honour was satisfied that an interim supervision order should be made for a period of 28 days (the maximum period permitted under s 10C(1) of the Act). Such period is suspended during any period an offender is in lawful custody (s 10C(1A)). The order may be renewed from time to time but not so as to provide for supervision for periods totalling more than 3 months (s 10C(2)). 12. There was a dispute about the appropriateness of some of the conditions that should apply to the interim supervision order. His Honour declined to include a condition that Mr Jubb submit to electronic monitoring. He was satisfied that other conditions requiring Mr Jubb to live at an approved address, to submit to a curfew, as well as to abide by conditions that comprehensively covered his movements and associations when not at home were sufficient. "Home" was to be, initially at least, at a Community Offender Support Program (COSP) facility at Malabar. 13. A condition was proposed requiring Mr Jubb to obtain the approval of his Departmental Supervising Officer (DSO) before any person may remain at his approved address or stay overnight. His Honour modified this so that it referred only to "any person under the age of 18". He did so because the condition in the proposed terms would tend to discourage Mr Jubb from forming adult relationships, which was identified as one of his risk factors. 14. Mr Jubb was released on parole on 11 March 2019 whereupon he moved to the COSP facility at Malabar. 15. On 28 March 2019, Mr Jubb was questioned by his DSO about the contacts he had in his phone. They included a 15-year-old boy. He said, "I have not had contact with [the 15-year-old boy] for 12 months". 16. On 2 April 2019, Mr Jubb was arrested and charged with contravening his child protection prohibition order. It was alleged that he did so between 13 August 2018 and 2 February 2019 whilst he was in custody. 17. On 10 April 2019, a magistrate at the Hornsby Local Court sentenced Mr Jubb to imprisonment for 18 months with a non-parole period of 13 months dating from 2 April 2019. An appeal to the District Court against the severity of the sentence is listed for hearing on 2 July 2019. 18. The Police Facts in relation to this offence include that whilst in Junee Correctional Centre, Mr Jubb made over 70 attempts using the Offender Telephone System to contact a particular mobile phone number which he had recorded in his approved phone list. Police reviewed the recordings of calls that were successful and found that Mr Jubb was speaking with the abovementioned 15-year-old boy and sometimes with the boy's mother. His conversations with the boy included Mr Jubb suggesting that they "meet up on the day I get out", and that after his parole period is over he will move to Queensland, and "You can come visit me". 19. Pursuant to an order made by Ierace J, the two experts appointed to examine Mr Jubb and provide reports were Dr Adam Martin, forensic psychiatrist, and Ms Jenny Howell, psychologist. They interviewed Mr Jubb on 26 April and 3 May 2019, and provided reports dated 5 May and 14 May 2019 respectively. 20. Both experts supported a diagnosis of paedophilic disorder. They were of the view that Mr Jubb had an interest in adolescent male children. Dr Martin described it in the following terms: [1] "It's generally considered to be a chronic vulnerability, so by definition, longer than I think six months but more than likely it's a lifelong time. It's something you wouldn't expect a person to grow out of." 1. Ms Howell essentially agreed: [2] "Yes, it's primary sexual interest so it's usually lifelong." 1. In his report, Dr Martin was asked to address the question of whether Mr Jubb poses a risk of committing a further serious offence. His response included: "[In] my opinion, it is reasonable to say that his risk is significant. I concur with the comments generally made by Ms Tulloh and Cieplucha in relation to future risk of sexual offending. There are a number of protective factors in his case which include that the sexual offending against the boys occurred in an isolated manner apparently and did not involve extreme violence. He does not have an anti-social personality and there is no suggestion of other sexual deviance such as sexual sadism. He does not have a substance abuse disorder. He does not have a major mental disorder. He apparently has some supports and has been able to maintain friendships and an intimate relationship with an adult male. Within the limitations of a relatively brief and crosssectional assessment, he appeared comfortable with his sexuality and was able to articulate the wrongfulness of sexual behaviour involving children. He was open to engaging in psychotherapy in relation to sex offending. He has a reasonable employment record apparently. He is of reasonable intelligence. The main concern that I have is that he has not engaged in lengthy psychotherapy in relation to sex offending and has been considered "untreated". There may be an element of minimisation and denial which are common cognitive distortions among people who offend sexually. There have been a number of breaches of his supervisory orders which raise some concern in relation to his insight, understanding of legal requirements and restrictions, and possibly lack of regard for such requirements. The alleged multiple phone calls with a 15-year old male in contravention to the order is worrying. It is plausible and likely that the risk of offending will be reduced with further supervision, especially with appropriate psychological therapy and support and help with engaging in age-appropriate relationships, and finding appropriate accommodation and employment." 1. Ms Howell's response to the same question included: "Mr Jubb's risk of committing a further serious offence falls in the Average Risk category based on Static-99R actuarial assessment. Clinical assessment together with Mr Jubb's dynamic risk factors and incomplete treatment participation suggests his overall risk could be higher than an average risk to re-offend. He participated in sex offender programs in custody and in the community, however, he did not complete the High Intensity Sex Offender Program (HISOP) (previously known as CUBIT) and his participation with the Pastoral Counselling Institute consisted of participation in five one hour assessment for treatment sessions. Incomplete treatment is an acknowledged high risk factor for future offending. Risk is dynamic and prone to fluctuation in response to personal and environmental factors. Mr Jubb's risk could abate over time, alternatively, his risk may escalate in the event he is unable to obtain employment and meaningful connections to the community. He has very limited family support and experiences loneliness and isolation which may act as stressors for further offending."