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Supreme Court 8 September 2011

State of New South Wales v John Owen Conway

[2011] NSWSC 976

Sexual offences
CRIMINAL LAW CRIMES (SERIOUS SEX OFFENDERS) ACT 2006 SERIOUS SEX OFFENDER SEXUAL ASSAULT OF NIECE AGED 5 OFFENDER THEN AGED 20 NUMEROUS OTHER SEXUAL ACTS

Citation: State of New South Wales v John Owen Conway [2011] NSWSC 976
Court: Supreme Court of New South Wales
Date: 8 September 2011
Judge(s): Davies J

Background

The defendant was convicted in September 2007 of sexually assaulting his five-year-old niece, an offence under s 66A of the Crimes Act 1900 (NSW). He was sentenced to four years' imprisonment and released on parole in April 2011. Shortly after his release, the State applied for orders under the Crimes (Serious Sex Offenders) Act 2006 (the Act), ultimately seeking a three-year extended supervision order (ESO).

Following an application heard by Simpson J in June 2011, interim supervision orders were made and twice extended while the matter proceeded. Two psychiatrists were appointed to examine the defendant, and their reports informed the final hearing before Davies J.

The defendant came from a severely dysfunctional family background with a history of intergenerational sexual abuse. He had been diagnosed with paedophilia and an intellectual impairment, and had achieved limited results from treatment programmes during his imprisonment.

  • Whether the defendant posed an unacceptable risk of committing a serious sex offence if not supervised, satisfying the threshold for an ESO under the Act
  • Whether uncharged or unconvicted sexual conduct could be considered as part of the defendant's relevant history when assessing that risk
  • Whether the defendant should be permitted to reside at home (with his mother and stepfather) subject to any supervision order, or required to live within a more controlled environment
  • What conditions should attach to any ESO, including the extent of electronic monitoring and residential restrictions

Decision

Davies J was satisfied that the defendant posed an unacceptable risk of committing a serious sex offence if not supervised, and that an ESO was therefore warranted under the Act. The court reached this conclusion having regard to the defendant's diagnosis of paedophilia, his intellectual impairment, his limited engagement with and benefit from treatment programmes, and the accounts he had given of the index offence, which revealed a concerning pattern of pre-planning and minimisation.

On the question of uncharged conduct, the court accepted that prior sexual acts reported by the defendant and others, even without charges or convictions, were properly considered in assessing the nature and extent of his risk. This approach was consistent with the Act's protective purpose and with authority recognising that risk assessments must account for the totality of available relevant information.

The court rejected the defendant's submission that he should be permitted to reside with his mother and stepfather during the supervision period. The expert evidence indicated that living at home, without intensive structured supervision, would not adequately manage the risk he presented. The court directed that the defendant reside at a Community Justice Program (CJP) intensive residential support facility, where line-of-sight supervision would be available. Provision was made for approved overnight visits to his mother's property, subject to conditions assessed by the Departmental Supervising Officer.

An ESO for three years was made, with a detailed schedule of conditions including electronic monitoring, reporting obligations, restrictions on contact with children, and provisions for regular review.

Orders Made

  • An extended supervision order for three years from the date of the order, pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006
  • The defendant directed to comply with all conditions set out in the Schedule to the order, pursuant to s 11 of the Act, including:
  • Residency at CJP intensive residential support accommodation, with the Departmental Supervising Officer's approval required for any change
  • Electronic monitoring (subject to review after 12 months)
  • Reporting and movement notification obligations
  • Restrictions on contact with children and on access to electronic devices
  • Approved overnight visits to his mother and stepfather's property, subject to ongoing assessment
  • Six-monthly review of electronic monitoring and 12-monthly review of all conditions
  • Access to the court file restricted to parties, with leave of a Judge required for non-party access
  • Liberty to apply on two days' notice

Key Takeaways

  • Under the Crimes (Serious Sex Offenders) Act 2006, a court may impose an extended supervision order where satisfied on the evidence that an offender poses an unacceptable risk of committing a serious sex offence if unsupervised, even where the offender has only one relevant conviction.
  • Uncharged and unconvicted sexual conduct is not excluded from consideration when assessing an offender's risk profile under the Act; the protective purpose of the legislation supports a broad approach to relevant history.
  • A diagnosis of paedophilia combined with intellectual impairment and limited treatment progress can support a finding of unacceptable risk, particularly where expert evidence identifies ongoing concerns about self-regulation and insight.
  • Residential conditions attached to an ESO may require placement in an intensive supervised facility rather than the offender's preferred domestic arrangement, where expert evidence indicates that home-based supervision would be insufficient to manage the assessed risk.
  • Conditions on ESOs are subject to structured periodic review, with the Departmental Supervising Officer able to consult treating clinicians when assessing whether conditions such as electronic monitoring remain necessary.

Legislation and Cases Referenced

Legislation:
- Crimes (Serious Sex Offenders) Act 2006 (NSW)
- Crimes (Serious Sex Offenders) Amendment Act 2010 (NSW)
- Crimes Act 1900 (NSW), s 66A
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)

Cases:
- State of New South Wales v Conway [2011] NSWSC 588
- State of New South Wales v Garry Allan Conway [2011] NSWSC 925
- Cornwall v Attorney General for New South Wales [2007] NSWCA 374
- State of New South Wales v Richardson (No. 2) [2011] NSWSC 276
- State of New South Wales v Scerri [2011] NSWSC 683
- State of NSW v Bastian [2011] NSWSC 641
- State of New South Wales v Tillman [2008] NSWSC 1376
- State of New South Wales v Manners [2008] NSWSC 1376
- State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
- Director of Public Prosecutions (WA) v GTR (2008) 198 A Crim R 149
- Director of Public Prosecutions (WA) v Williams (2007) 176 A Crim R 111
- Weininger v R (2003) 212 CLR 629