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Supreme Court 30 October 2020

State of New South Wales v Levy (Preliminary)

[2020] NSWSC 1531

Sexual offences
HIGH RISK OFFENDERS PRELIMINARY HEARING SEXUAL OFFENDING DISPUTED CONDITIONS RELEVANT STATUTORY CONSIDERATIONS MITIGATION OF RISK

Citation: State of New South Wales v Levy (Preliminary) [2020] NSWSC 1531
Court: Supreme Court of New South Wales
Date: 30 October 2020
Judge(s): Schmidt AJ

Background

The State applied under the Crimes (High Risk Offenders) Act 2006 (NSW) for a three-year extended supervision order in respect of a 31-year-old man who had been released on parole in August 2020 after serving sentences for serious sexual offences against children. His offending, committed between ages 24 and 26, included internet grooming, uploading and distributing child abuse material, and contact offences against the young stepdaughters of a flatmate. His total sentence balance was due to expire on 4 November 2020.

There was no dispute between the parties that an interim supervision order should be made and that two psychiatrists should be appointed to examine the offender. The contest was confined to a number of specific conditions proposed by the State to accompany the order.

Before judgment was delivered, the offender was arrested on seven further charges, including inciting sexual intercourse with a child under ten, failing to comply with reporting obligations, and using a carriage service to transmit child abuse material. He was refused bail. The State was granted leave to reopen its application, and the parties agreed to file fresh evidence but did not advance further submissions on the disputed conditions.

Legal Issues

  • Whether the statutory threshold for an interim extended supervision order under the Crimes (High Risk Offenders) Act 2006 (NSW) was met.
  • Whether disputed conditions relating to a schedule of movements (conditions 5-7), access to places frequented by children (condition 15), restrictions on pornography and sex workers (conditions 16-17), financial disclosure (condition 20), disclosure of criminal history (condition 28), internet and device use (conditions 30-40), search and seizure (condition 41), changes to appearance (condition 45), and disclosure to treating medical practitioners (condition 53) were appropriate.
  • Whether any of those conditions required modification to achieve a proper balance between the intrusion imposed on the offender and the risk he posed.

Decision

Threshold findings: The court was satisfied that the statutory preconditions for an interim order were met. The offender's State convictions under the Crimes Act 1900 (NSW) constituted serious sexual offences within the meaning of the Crimes (High Risk Offenders) Act 2006 (NSW), and the undisputed evidence established that he posed an unacceptable risk, to a high degree of probability, of committing another serious offence if not kept under supervision (at [9]-[10]). The subsequent arrest for further offences confirmed the conclusions the court had otherwise reached (at [6]).

Schedule of movements (conditions 5-7): The court rejected the submission that electronic monitoring alone was sufficient. Evidence from the Corrective Services supervising officer described how advance notice of movements enabled random surveillance, compliance checks, and targeted responses by phone or in person (at [42]-[43]). The conditions permitted the offender to seek approval for spontaneous departures from his schedule, including unplanned family outings, on a 24-hour basis, and there was no reason to suppose such approval would be unreasonably refused (at [44]-[45]).

Access to places frequented by children (condition 15): The offender sought to amend the condition to permit unsupervised access in the company of his parents. The court declined (at [50]-[53]). Permitting attendance at places where children were present without prior assessment would not be appropriate given the risks he posed, and the evidence did not establish that his parents were prepared to undertake the level of supervision the amendment would require (at [51]-[52]).

Pornography and sex workers (conditions 16-17): The offender argued these restrictions would impede management of his criminogenic factors, including sexual preoccupation. The court rejected that submission, noting that pornography had featured in the pathway to his offending, that not all pornography necessarily involves adults, and that any approval would involve a considered assessment of his circumstances at the time (at [56]-[59]).

Financial disclosure (condition 20): Relying on State of NSW v Vincent [2017] NSWSC 858, where a similar condition was found disproportionate on final orders, the offender argued the condition was too onerous. The court distinguished that authority on the basis that the present orders were interim, not final, and that the offender's drug abuse had been directly linked to his prior offending, making detection of drug purchases through financial monitoring relevant to risk management (at [66]-[68]).

Criminal history disclosure (condition 28): The offender sought to limit disclosure to persons within his identified victim profile, being female children under 18. The court refused, noting the evidence that his offending extended to contacting mothers and other adults in order to gain access to child victims (at [70]-[72]).

Internet and device conditions (conditions 30-40): The court found the detailed conditions proposed by the State appropriate and rejected the offender's shorter alternative drafting. The alternative removed obligations such as prohibiting use of an alias, prohibiting undisclosed email addresses, and requiring consent to information-sharing by service providers (at [75]-[77]).

Search and seizure (condition 41): The court accepted that the condition required modification in line with the approach taken in Tannous, Grooms, Baldwin, and Single, so that search and seizure would depend on reasonable belief that it is necessary, while providing that failure to submit would constitute a breach (at [80]-[81]).

Appearance changes (condition 45): The offender argued the word "significant" was subjective and risked inadvertent breach. The court imposed the condition nonetheless, noting that prior approval was a sensible tool given his history of internet-based offending and would trigger maintenance of a photographic record (at [83]-[85]).

Treating medical practitioners (condition 53): The offender accepted the condition applying to treating psychologists, psychiatrists, therapists and counsellors but objected to its extension to general practitioners. The court imposed the broader condition, finding that GPs might refer him for mental health treatment where disclosure of his history and risk profile was necessary, and that practitioners encountered during treatment could inadvertently provide him access to children (at [89]-[91]).

Orders Made

  • The parties were directed to confer and file short minutes of orders by 4pm on 2 November 2020, reflecting their agreements and the court's conclusions on the disputed conditions.
  • Two psychiatrists were appointed to conduct psychiatric examinations of the offender and provide reports to the court.

Key Takeaways

  • Under the Crimes (High Risk Offenders) Act 2006 (NSW), the court must impose the least intrusive conditions consistent with an assessment of the risk posed and of what conditions are likely to be effective, striking a balance between those factors as required by Lynn v State of New South Wales (2016) 91 NSWLR 636 (at [35]).
  • A condition requiring a financial statement can appropriately form part of an interim supervision order even where a comparable condition has been found disproportionate on final orders, particularly where the offender's drug abuse is linked to his offending history (at [66]-[68]).
  • Restricting disclosure of criminal history only to persons matching the offender's known victim profile may be inappropriate where the offending pattern included using adults as intermediaries to access child victims (at [70]-[72]).
  • Detailed technology-related conditions are not rendered redundant by electronic monitoring and may be warranted in their full form where the offender's prior offending involved extensive online conduct, including grooming via social media and procurement of child abuse material (at [75]-[77]).
  • In modifying a search and seizure condition to require reasonable belief that the search is necessary, the Supreme Court followed a consistent line of authority aligning such conditions with the powers framework in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) while preserving a breach consequence for non-submission (at [80]-[81]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 61(2), 61M(2), 66EB(2).
- Crimes ( High Risk Offenders) Act 2006 (NSW) ss 3, 4A, 5 ( 1), 5B, 5I, 6, 10A, 11
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Mental Health Act 2007 (NSW)

Cases
- Lynn v State of New South Wales (2016) NSWLR 636; [2016] NSWCA 57
- R v Levy (District Court (NSW) 14 June 2014 unrep)
- State of New South Wales v Baldwin [2019] NSWSC 1882
- State of New South Wales v Grooms (Final) [2019] NSWSC 353
- State of New South Wales v Steven Single [2019] NSWSC 176
- State of New South Wales v Tannous [2020] NSWSC 292
- State of NSW v Vincent [2017] NSWSC 858
- Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28