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Supreme Court 9 August 2018

State of New South Wales v Graham James Kay

[2018] NSWSC 1235

Sexual offencesPublic order & justice offences
HIGH RISK OFFENDER EXISTING EXTENDED SUPERVISION ORDER BREACHES OF ORDER BY HIGH RISK OFFENDER PRIMARY OBJECT OF LEGISLATION NEED TO PROTECT COMMUNITY

Citation: State of New South Wales v Graham James Kay [2018] NSWSC 1235
Court: Supreme Court of New South Wales
Date: 9 August 2018
Judge(s): Wilson J

Background

The defendant, a high risk sex offender, was subject to an Extended Supervision Order (ESO) imposed by Harrison J on 17 March 2017 under the Crimes (High Risk Offenders) Act 2006. The ESO included electronic monitoring for a period of 12 months. Once that monitoring period ended in March 2018, two incidents occurred that prompted the State to seek enhanced conditions.

The first incident, discovered on 7 April 2018, involved the defendant secretly commencing a sexual relationship with a sex worker, allowing her to stay overnight at his home without permission, and lying to his supervising officer about it. The second, on 17 April 2018, involved the defendant touching and kissing a 16-year-old shop attendant on the cheek without her consent at a supermarket checkout. The attendant, who knew of his criminal history, described being both disgusted and frightened. The defendant faced criminal charges arising from both incidents and pleaded guilty to three breaches of the ESO, for which he was serving four months imprisonment at the time of judgment.

The State filed a Notice of Motion seeking to vary the ESO by imposing more stringent conditions. The defendant did not oppose some proposed variations but contested eight of them, including the reintroduction of electronic monitoring, movement schedules, restrictions on contact with persons under 18, and requirements to disclose intimate relationships.

Legal Issues

  • Whether the court should exercise its discretion under s 13(1) of the Crimes (High Risk Offenders) Act 2006 to vary the existing ESO by imposing additional and more restrictive conditions.
  • Whether the contested conditions, particularly electronic monitoring, movement schedules, non-association with persons under 18, and relationship disclosure requirements, were the least intrusive conditions available to adequately manage the risk the defendant poses to the community.
  • How to balance community protection (the primary statutory object) against the defendant's liberty and rehabilitation interests.

Decision

Issue 1: Whether additional conditions were necessary

Wilson J concluded that the additional conditions sought by the State were necessary to adequately supervise the defendant and protect the community (at [69]). Her Honour emphasised that a risk can require close supervision even if the likelihood of it materialising is assessed as low, because the potential gravity of serious sexual offending demands that every available measure be taken to prevent recurrence (at [69], [75]). The court found a clear correlation between close supervision and compliance: the defendant had complied with the ESO while subject to electronic monitoring but did not do so once that supervision was removed (at [71]-[72]).

Issue 2: Electronic monitoring and movement schedules (conditions 5-8)

The defendant argued that electronic monitoring would not have prevented either incident, as both occurred at locations not restricted by the ESO, and that it hampers community reintegration. The court accepted those points but found that electronic monitoring and movement schedules give supervising officers significantly greater oversight of the defendant's activities, whereabouts, and associations (at [81]). Wilson J noted that if monitoring were imposed with flexibility for supervisors to reduce it as risk decreases, the condition could assist the defendant's re-entry into the community following his imminent release from custody (at [82]).

Issue 3: Restriction on contact with persons under 18 (condition 22)

The defendant raised concerns about the potential for inadvertent breaches, for example, sitting next to a 17-year-old on a bus. Wilson J acknowledged this but held that sensible implementation by supervising officers would address such fanciful scenarios, and that a properly worded condition of this kind, if observed, would have prevented the incident with the young shop attendant on 17 April 2018 (at [84]-[85]).

Issue 4: Relationship disclosure conditions (conditions 25-26) and phone and SIM card disclosure (conditions 34-35)

The court accepted that requiring the defendant to disclose friendships and intimate relationships, and permitting supervisors to inform those persons of his background, could be experienced as humiliating. Nonetheless, it found those conditions necessary to protect women who might associate with the defendant in ignorance of his history, particularly given his secretive conduct with the sex worker (at [87]). The phone and SIM card disclosure conditions were found necessary because the defendant's prior deception of his supervisor demonstrated the need for supervisors to monitor his compliance with the relationship and contact conditions (at [89]).

Orders Made

  • Pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006, the Extended Supervision Order made on 17 March 2017 is varied by replacing its Schedule of Conditions with the new Schedule of Conditions set out in Annexure A to the orders of 9 August 2018.
  • The new conditions include: electronic monitoring as directed by the supervising officer; weekly movement schedules; restrictions on deliberate contact with persons under 18 without prior supervisor approval; requirements to disclose intimate relationships and friendships; requirements to disclose mobile phones and SIM cards; and various reporting, accommodation, travel, employment, and non-association obligations.

Key Takeaways

  • Under s 13(1) of the Crimes (High Risk Offenders) Act 2006, a court's discretion to vary an existing ESO is broad but must be exercised consistently with the Act's primary object of community safety and protection, which takes precedence over the rehabilitation and liberty interests of the supervised offender (at [64], [68]).

  • A risk may warrant close supervision and restrictive conditions even where actuarial tools assess the overall likelihood of reoffending as moderate or moderate-high: the gravity of the potential harm from serious sexual offending can itself make the risk unacceptable (at [69]).

  • The Supreme Court found that a clear correlation between electronic monitoring and compliance justified reimposing that condition, notwithstanding the defendant's argument that monitoring could not have prevented the specific incidents that triggered the application (at [71]-[72], [81]).

  • Where actuarial classification of recent incidents does not capture their "sexual flavour" in the context of an offender's history, a court may give weight to that contextual assessment independently of the actuarial categorisation (at [73]-[74]).

  • Conditions requiring disclosure of intimate relationships and access to communications devices were held proportionate where prior deliberate concealment from supervisors demonstrated that less intrusive measures were insufficient to ensure compliance with other ESO conditions (at [87], [89]).

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (High Risk Offenders) Act 2006
- Crimes Act 1900 (NSW)

Cases
- R v Kay [2002] NSWCCA 286; (2002) 132 A Crim R 72
- State of New South Wales v Kay [2016] NSWSC 1820
- State of NSW v Kay [2017] NSWSC 274
- Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65