CONVICTED SEX OFFENDER APPEALS EXTENDED SUPERVISION ORDER, RAISES HIS MENTAL ILLNESS AS A DEFENSE
State of New South Wales v Rigby (Final) [2021] NSWSC 472 (5 May 2021)
Facts:
The State of New South Wales (hereinafter the “State” or the “plaintiff”) sought an Extended Supervision Order (hereinafter “ESO”) under the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter the “Act”). The order sought is in relation to the defendant, Mr Michael Rigby, for a period of five years.
The defendant has a criminal history, commencing with several property offenses as a juvenile. Since December 2002, when the defendant was 24 years old, he has spent the great majority of his time in custody.
The defendant pleaded guilty to all offences that were preferred in two indictments: (1) The first indictment related to offences committed against a victim, V1, who was the defendant’s niece. The offences included two counts of aggravated act of indecency towards the victim, who was seven years of age at the time. These offences involved the defendant masturbating while sitting next to V1; and a further five counts of aggravated indecent assault against V1, four of which took place when V1 was seven or eight years of age and a final count occurring when V1 was ten; (2) The second indictment addressed offences committed against V2, who was also a niece of the defendant. Those offences comprised four counts of aggravated indecent assault, committed when V2 was nine years of age.
On 27 February 2014, the defendant was sentenced in the District Court to an overall term of imprisonment of 9 years, commencing 29 January 2012, with a non-parole period of 6 years. The defendant’s sentence expired on 28 January 2021.
The defendant has a history of other sexual offences dating back to 2002, including a serious sexual offence against an adult woman at a train station, involving both penile-vaginal penetration and forced oral sex. For those offences he was sentenced to 8 years’ imprisonment.
The defendant submits that the discretion not to issue an ESO should be exercised because of the admitted psychiatric issues from which the defendant suffers. Dr O’Dea diagnosed the defendant as suffering from Severe Chronic Treatment Resistant Schizophrenic Illness, complicated by a history of Substance Use Disorder. Dr O’Dea pointed out that these are associated with repeated offending behaviours, in particular repeated sex offending behaviours.
Issue: Should the court impose an Extended Supervision Order against the defendant?
Law:
Analysis:
The nature of the index offences and the re-offending that is likely are extremely serious. The index offences have been outlined. They involve serious sexual misconduct against girls of a very young age.
Dr O’Dea’s evidence seems to support the continuation of his professional treatment, which the court accepts. However, the court does not see the issuing of an ESO as interfering with any treatment regime and there is no evidence that the ESO would prevent or hinder any recommended treatment programme. On the contrary, the proposed Conditions require the continuation of treatment or therapy under any Mental Health Care Plan or Community Treatment Order.
The other difficulty with the submission is that it depends on the proposition that the treatment of the defendant will be successful, either wholly or sufficiently to reduce the risk to a significant degree. Yet the evidence is that the defendant’s condition or one of his conditions, namely, the Schizophrenic Illness, is treatment resistant.
The purposes of sentencing are very different from the purposes of an Order under the Act. Yet the underlying principles applied to mental or psychiatric conditions have relevance. While the Court is not here concerned with punishment or deterrence, protection of the community and ensuring “the safety and protection of the community” are similar purposes or objects.
Overall, the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sex offense.
Conclusion: Hence, the defendant shall be subject to an Extended Supervision Order for a period of five years from the date of the order.
