Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Jones [2020] NSWSC 51 Hearing dates: 7 February 2020 Date of orders: 07 February 2020 Decision date: 07 February 2020 Jurisdiction: Common Law Before: Ierace J Decision: 1. Pursuant to ss 10A and 10C of the Crimes (High Risk Offenders) Act 2006 (NSW), until further order of the Court, the defendant is subject to an interim supervision order for 28 days commencing 7 February 2020. 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is directed for the period of the interim supervision order to comply with the conditions set out in Schedule A. Catchwords: HIGH RISK OFFENDER – interim hearing – application for interim detention order – interim supervision order made – conditions Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Cases Cited: New South Wales v Jones [2018] NSWSC 459 Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Michael David Jones (Defendant) Representation: Counsel: D New (Plaintiff) N Broadbent (Defendant) Solicitors Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2019/331867 Judgment 1. HIS HONOUR: By notice of motion filed on 31 January 2020, the State of New South Wales seeks an order that the defendant, Michael David Jones, be subject to an interim detention order ("IDO"); alternatively, an interim supervision order ("ISO") commencing on that date for a period of 28 days. Interim orders were made on the date of filing, namely, 31 January 2020, imposing an ISO for a period of seven days. That period expires today. 2. The defendant has a criminal history involving paedophilic offences against boys. The relevant immediate background to the matter is that on 16 April 2018, Adams J made an order that the defendant be subject to a continuing detention order ("CDO") for a period of 12 months, commencing on that date and expiring on 15 April 2019. However, on 8 February 2019, that is, whilst subject to the CDO, the defendant was convicted of two counts of production and possession of child abuse material contrary to s 91H of the Crimes Act 1900 (NSW). The defendant had created a diary that detailed narratives of sexual offending against young boys. He was sentenced to a total sentence of two years' imprisonment, which will expire on 8 June 2020, with a non-parole period of 18 months. He became eligible for parole on 8 December 2019. 3. On 23 October 2019, the plaintiff filed a summons seeking a CDO for two years; alternatively, an extended supervision order ("ESO") for a period of five years and the usual orders accompanying such an application, to the effect that reports be prepared by two qualified psychiatrists and/or psychologists and furnished to the Court. That application was determined by Walton J on 6 December 2019. In his Honour's judgment, which was delivered ex-tempore, he found that taking the material before him at its highest, he was satisfied that an ESO was warranted. However, the State Parole Authority had declined to grant the defendant parole, so that for that moment at least, there was no need for an IDO or ISO to be contemplated. 4. On 31 January 2020, the State Parole Authority granted the defendant parole, ordering that he be released no later than 4pm the following day, being 1 February 2020. The plaintiff filed a notice of motion on the same day as the decision of the State Parole Authority, seeking orders, inter alia, that the defendant be subject to an IDO for a period of 28 days, together with the issuing of a warrant, so that effect could be given to such an order; and in the alternative, an ISO for 28 days. 5. On that day, his Honour Hulme J, sitting as Duty Judge, made an order for an ISO for a period of seven days. It appears that the conditions of that order were modified on 3 February 2020. 6. Since 1 February 2020, the defendant has been residing at a Corrective Services NSW ("Corrective Services") Integrated Support Centre, known as an ISC. On that date, a meeting occurred between the defendant and Community Corrections officers of Corrective Services. The defendant was invited to declare any items in his possession which might be in breach of the conditions of the ISO that had been made by Hulme J. According to an affidavit of Erin Kirkwood, affirmed on 6 February 2020, the defendant offered that he had material which he considered would breach the conditions, because it contained images of children which he then provided to staff. I understand that the material was in the nature of magazines such as TV Week. 7. The defendant was advised that the officials intended to search his belongings to ensure that he was not in possession of any further prohibited items. Ms Kirkwood, in her affidavit, states that the defendant consented to the search. The search was then performed, during which written material, which appeared to be in the form of diaries and other handwritten sheets, was located. I will return to the nature of that material later. The defendant was advised that the items would be seized for further analysis. 8. Ms Kirkwood stated in her affidavit that the following day, being 2 February 2020, she telephoned the defendant and gave him a verbal direction to go through his remaining property and review it, to ensure that it complied with the conditions. The defendant was required to dispose of any material that did not so comply. Ms Kirkwood states that the defendant indicated to her that he did not wish to dispose of certain property, being images of children. Ms Kirkwood advised the defendant that he would need to collate that material and provide it to the ESO Team and/or other relevant staff pending a final determination. 9. Later that morning, according to case notes, the defendant provided some material described as "a few pages from magazines, which contained images of children". The defendant was asked if that was all of the relevant material and he said that it was. 10. Ms Kirkwood states that on 5 February 2020 she had an opportunity to review some of the material that had been seized from the defendant in the nature of handwritten material, and came to the view that much of it was in code and referred to certain male names. 11. The plaintiff relies on the material in Ms Kirkwood's affidavit, together with some other material that has been tendered at the hearing. That other material includes an affidavit of Samara Abbott sworn on 6 February 2020. 12. Ms Abbott states that she is the acting manager of the extended supervision team and that she assisted in transferring the defendant from his place of incarceration to the ISC on 1 February 2020. The effect of her affidavit is that during the process of transportation she ensured that the defendant fully understood the conditions of the ISO that had been approved by Hulme J. She states that on that date, the defendant was asked if he wished to declare any material that might contravene those conditions, and he acknowledged in response that he had a number of TV Week magazines which may contain pictures of children. His property was searched in his presence. She described his attitude as being cooperative when directed to do something. 13. A number of items were removed from the defendant's property, including a box of magazines and writing. Ms Abbott states that she viewed a piece of paper with handwriting, including words which she recognised as being the names of schools in the Northern Beaches area, in particular, a primary school in Dee Why and another in Bayview, as well as a further primary school in Davidson. The defendant was asked for an explanation for these references and stated that, "I wrote these things down from the TV. These were from a show I was watching". Ms Abbott also noticed that there was a list of names apparently in the handwriting of the defendant, with numbers alongside, which the defendant explained were names of people he had been to school with in different school years. However, Ms Abbott noted that some of the names appeared to be ones which are in fashion now and were not in fashion some years ago. I note that the applicant is presently aged 55. She also located within his property a cut-out picture of a choirboy from a magazine that was folded and placed within the pages of a computer magazine. Ms Abbott states that the defendant was found to be in possession of several letters apparently written by a person named Corey, which were of a sexual nature. The defendant stated that they were written by a friend that he had met whilst incarcerated. The defendant was seen to remove the letters from his property and secret them in his pocket. Ms Abbott came to the view that some of the writing appeared to be in code, which I have already noted was a view also formed by Ms Kirkwood. 14. A further item tendered by the plaintiff in support of the application, which is more concerning, is an affidavit of Detective Sergeant John Bongiorno, sworn on 7 February 2020. Detective Sergeant Bongiorno is a team leader responsible for a team of investigators working alongside Corrective Services in the management and monitoring of offenders who are subject to extended supervision orders. He states in his affidavit that he directed other police officers to search the property of the defendant on 3 January 2020, which resulted in material being seized, including diaries and other handwritten material. He provides seizure numbers and exhibit numbers so as to ensure a chain of possession for the items that were seized thereafter. In all, he identifies in his affidavit seven bags of material. He states that the material included approximately 800 A4 pages which contain handwriting on both sides of each page. One of the seven bags of material was read and reviewed by a detective involved in the investigation of this matter. In his affidavit, Detective Sergeant Bongiorno includes passages from material located by Detective Williams. The passages, I think, could be reasonably described as exercises in fantasy of a paedophilic nature. It is apparent from the detective sergeant's affidavit that the remaining six bags of material have not yet been closely examined. 15. The final item of evidence relied upon by the plaintiff is a supplementary risk assessment report dated 6 February 2020, prepared by Dr Richard Parker, who is a psychologist employed in the Serious Offenders Assessment Unit of the Department of Corrective Services. Dr Parker has prepared a number of reports over the years in relation to the defendant. Some of that material was referred to in the judgment of N Adams J in New South Wales v Jones [2018] NSWSC 459. 16. Dr Parker has been providing treatment to the defendant since May 2018. By July 2019, he had seen the defendant on 39 occasions. The nature of the treatment that he has provided to the defendant has four stages, set out in a report by him dated 22 July 2019 at para 7. The first stage is identified as "learning to pay attention to your thinking and reporting it objectively". The second is "learning the connection between your thinking and your behaviour (that is, which thoughts push particular behaviours)". The third is "developing alternative thinking that allows you to follow the law and feel good about that". The final stage is "practising that alternative thinking until you can do it when it counts". For some time, Dr Parker has been of the view that the defendant has effectively completed the first two stages, but the latter two stages cannot be advanced until such time as he is returned to the community. In so saying, Dr Parker acknowledges that there is a risk of the defendant re-offending when he is ultimately returned to the community. 17. Dr Parker gave evidence before the State Parole Authority, including, as I understand it, in the last fortnight as part of the consideration by the State Parole Authority as to whether the defendant should be granted parole. Dr Parker's opinion that his treatment cannot productively move forward until his return to the community played a role in the State Parole Authority determining that the defendant should be granted parole. 18. In his supplementary risk assessment report, Dr Parker states that he had made available to him, for the purposes of reports prepared for the hearing before Walton J, samples of the child abuse material that the defendant had produced, which were part of the offences of which he was convicted on 8 February 2019. 19. In relation to the material that was seized from the defendant's prison cell on either 3 January or 3 February 2020 or both, Dr Parker states as follows: "8. Shortly before his release from custody, further written materials were seized from his cell. Police are examining this material but have not determined it constitutes child abuse material, although it appears to come close to that line. I was given a small sample of this material on 5 February 2020 and have read it. I have not yet had the opportunity to talk to Mr Jones about this, but will incorporate it in my future work with him." 1. Dr Parker does not elaborate on what it was that he was provided and therefore it is not apparent whether it was part of the material that appears in the affidavit of Detective Sergeant Bongiorno. 2. Dr Parker states in the supplementary report what steps Corrective Services would take if the Court comes to the view that an extended supervision order is appropriate in due course. The nature of the proposals might be reasonably described as being strict. 3. As I noted earlier, Walton J in his judgment of 6 December 2019 found that based on the material before him, he was satisfied that an ESO was warranted, that is, taking that material at its highest, which the Court is required to do on such an application. One might infer that his Honour was not satisfied that a CDO would be warranted based on that material. The application by the plaintiff is to the effect that the discovery of the further material in the possession of the defendant in the last five weeks significantly alters the state of evidence that was before Walton J, such that this Court would come to a different conclusion, that is, that a CDO is likely to be the outcome of the final hearing. 4. It is not necessary for me to make a ruling on that. The plaintiff submits that an IDO is now clearly appropriate in view of the material recently discovered. 5. The defendant submits that a relevant consideration, taking into account Dr Parker's view that the protection of the community is best served by an advancement of the treatment of the defendant, which can only occur when he is returned to the community, is relevant to the issue of whether an IDO or CDO is appropriate in the sense that the community is best protected by the defendant being subject to an ISO rather than an IDO. 6. The difficulty with that submission is that it is not known what Dr Parker's considered expert opinion will be once he has had the opportunity of being acquainted with the nature of all of the offending material found to be in the possession of the defendant in the last five weeks. That being so, the Court does not know whether Dr Parker would adhere to his previously expressed view as to how treatment can best be advanced. 7. The defendant submits that such consideration is relevant to interim orders having regard to the relevant provisions of the Crimes (High Risk Offenders) Act 2006 (NSW), those relevant provisions being in terms of an ISO (s 10A) in conjunction with ss 5B and 9(3)(e1). Similar provisions apply to the contemplation of an IDO pursuant to s 18A, together with ss 5C, 9(3)(e1) and 17(4)(e1). 8. Although, in my view, the terms of the legislation do require the Court to take those matters into account, it seems to me that the overriding consideration in that regard is an obligation on the Court to take the evidence at its highest in terms of interim orders, cognisant of the primary objective of the legislative scheme being the protection of the community. In the context of this case, those considerations, in my view, are likely to play a greater role at the final hearing of this matter; and that given the uncertainties as to the nature of the material that has been seized from the defendant, in particular on 3 January 2020, that primary objective requires that the defendant not be permitted to move in an unsupervised fashion in the community if he is not to be the subject of an IDO. 9. Again, cognisant of the primary objective of the legislation, it seems to me that the risk that the defendant would pose to the community over the forthcoming short period before the final hearing of the matter can be met by the defendant remaining at the ISC, but on the basis that he not be permitted to move unsupervised in the community without the permission of his Detention Services Officer ("DSO"). By "unsupervised", I mean "not in the company of". In other words, the objective of the protection of the community can be met by the defendant remaining at his present place of residence but not being permitted to leave that place of residence unless permitted by his DSO. On one view, the degree of freedom that that proposition would allow him is marginal compared to the alternative of an IDO, which would require him to be kept in custody in a prison. As marginal as it is, it is still an advance on that alternative, and it may be that that degree of freedom, that is, residing in an ISC, enables Dr Parker to advance the treatment which he is presently providing to the defendant until such time as the final hearing. I expect that by the time of the final hearing, the examination of the seized material will be completed and Dr Parker will have the benefit of a summary of that material so that he can give his considered opinion in relation to the matters which will then be before the court. 10. That brings me to the terms of the conditions of the ISO. [Draft conditions amended and agreed as between the parties.] 1. For the above reasons, I make orders in terms set out in Schedule A, attached to this judgment. ********** State of NSW v Jones Schedule A (101 KB, pdf) 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: 10 February 2020