ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v QUINN

LEGISLATION CITED : Crimes (Serious Sex Offenders) Act 2006 (NSW)

CASES CITED : Attorney General for the State of NSW v Gallagher [2006] NSWSC 340 Briginshaw v Briginshaw (1983) 60 CLR 336)"

PARTIES : ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v QUINN, Peter Andrew

COUNSEL : P: L Babb/D Kell D: M Austin

SOLICITORS : P: I V Knight D: S E O'Connor

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v. PETER ANDREW QUINN

1 HIS HONOUR: This is an application brought by the Attorney General for New South Wales by way of summons filed on 24 April 2007 pursuant to the Crimes (Serious Sex Offenders) Act 2006 (NSW) (the Act). 2 The relief sought at the hearing on 8 May 2007 was an order pursuant to s.16(1) of the Act that the defendant be detained in a correctional centre on an interim basis for a period of 28 days from 13 May 2007. 3 The alternative relief sought is an order pursuant to s.8(1) of the Act that the defendant be subject to interim supervision for the same period. 4 I observe at this point that the hearing of the application for a continuing detention order by way of a "preliminary hearing" is required to be conducted by the Supreme Court within 28 days after an application is filed: s.15(3) of the Act. 5 In the case of a preliminary hearing, the Court is required to determine if it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or an extended supervision order, as the case may be: s.7(4) and s.15(4) of the Act. 6 The application is supported by the following affidavits:-

(a) affidavit of Sharon Klamer affirmed 2 May 2007;

(b) affidavit of David Anthony Bright affirmed 2 May 2007;

(c) affidavit of Christina Valentine affirmed 24 April 2007;

(d) affidavit of Christina Valentine affirmed 2 May 2007;

(e) affidavit of Denes Blazer affirmed 7 May 2007. 7 In the observations which I make and in the conclusions and findings which I express in this judgment, I emphasise that in no way should I be understood as indicating that those observations or conclusions would necessarily apply in relation to any matter that would arise for consideration and determination on a final hearing of the matter. The Act does not, in a preliminary hearing or in relation to an application for an interim order under the Act, provide for evidence or material tendered by the Attorney General to be challenged. Nor does the Act make provision for material or evidence to be produced or tendered by the defendant at those stages. That, however, can occur or take place at a hearing before any final order is made.

The statutory provisions 8 The scheme established by the Act has been the subject of examination by McClellan CJ at CL in Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340. It is sufficient for the purposes of the present application to confine attention to certain key provisions of the Act. 9 Section 3 sets out the objects as follows:- "The objects of this Act are to provide for the extended supervision and continuing detention of serious sex offenders so as:- (a) to ensure the safety and protection of the community, and (b) to facilitate the rehabilitation of serious sex offenders." 10 As McClellan CJ at CL observed in Gallagher, at [21], the fundamental objective of the legislature is the protection of the public which, where necessary, is intended to be achieved by supervision of an individual or if necessary by his or her continuing detention. If an order is made, as his Honour there observed, the consequences may be the continuing incarceration of an individual or the imposition of serious restrictions on his or her liberty. 11 On an application for an interim detention order under s.16 of the Act, the Court is required to be satisfied of three fundamental matters, namely:-

(a) That the defendant is currently in custody in a correction centre serving a sentence of imprisonment by way of full-time detention for a "serious sex offence" or an "offence of a sexual nature" : s.14(1). There was no issue taken in the present proceedings on this matter. The requirement is satisfied on the evidence in the present application.

(b) The defendant's current custody is to expire before the proceedings for final orders: s.15(1)(a). In this application, that requirement is satisfied as the defendant's current sentence is due to expire on Sunday 13 May 2007.

(c) That the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order: s.15(1)(b). 12 A substantial amount of the evidence on this application was directed to this third requirement.

The statutory process: continuing detention orders 13 A number of the provisions of the Act impose conditions as to time as follows:-

• An application by the Attorney General under the Act may not be made until the last six months of the offender's current custody: s.14(2).

• A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Court may allow: s.15(3).

• An interim detention order must not exceed 28 days from the day on which it commences: s.16(2).

• Interim detention orders may be renewed from time to time, but not so as to provide for the detention of the offender under such an order for periods totalling more than 3 months: s.16(3). 14 I note at this point that s.16(1)(a) clearly envisages a situation whereby the offender's current custody may expire before an application under the Act is heard and determined. It is for that eventuality that power is vested in the Court to make interim detention orders under s.16. 15 Proceedings under the Act are civil proceedings and to the extent that the Act does not provide for their conduct, such proceedings are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings (s.21). 16 Proceedings under the Act are instituted by the Attorney General by application to this Court under Part 2 of the Act (in respect of "extended supervision orders" - meaning orders under s.9 and s.17 of the Act or under Part 3 in respect of "continuing detention orders" made under s.17 of the Act). 17 Applications made under Part 2 or Part 3 may proceed:-

(a) By way of a preliminary hearing (s.7(3) and s.15(3)).

(b) Unless dismissed under s.7(5) or s.15(5), applications for either type of order referred to in the preceding paragraph are to be heard and finally determined in accordance with either s.9 or s.17 of the Act. 18 Parts 2 and 3 both make provision for interim orders (interim supervision orders or interim detention orders). Such orders, as earlier noted, may only operate for a finite term (28 days from the date of commencement of the order) unless renewed but for not more than 3 months: s.8(3) and s.16(3). 19 In proceedings for interim orders under s.8 or s.16, the Court may receive and act upon supporting documentation. It is clear from the terms of those sections that the rules of evidence do not apply in proceedings for interim orders. Those provisions state, inter alia, that the Court may make an interim order if "it appears to … the Court", inter alia, "that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing order or extended supervision order". The provisions for interim orders are, accordingly, less exact and demanding, at least as to their admissibility requirements concerning the material relied upon in the application for such inter orders than the actual evidence adduced in the proceedings by way of final determination. So much is clear from the expressions in s.8(1)(b) and s.16(1)(b) "the matters alleged" and "would, if proved". 20 However, that said, the matters alleged or established in the supporting documentation on an application for an interim order under the Act must be such that "if proved" they would justify the making of a continuing supervision order or an extended supervision order: s.8(1)(b) and s.16(1)(b). Accordingly, the supporting documentation must address matters that the Court will be required, in due course, to consider when determining proceedings under s.9 or s.17 of the Act. These include "the safety of the community". 21 A question has been raised in these proceedings as to whether the Court has a residual discretion not to make interim orders even if it appears to the Court that the specified prerequisites in s.8 or s.16 are satisfied. That, however, is not an issue that needs to be resolved in the present proceedings for reasons recorded below. 22 In the present application, there is a substantial body of supporting documentation, much of which would be admissible on a hearing for final relief under the Act. Whilst it is not specifically required by s.8(1)(b) or s.16(1)(b), given the significance to a defendant against whom an interim order is sought under the Act, it is obviously desirable, where possible, for the matters relied upon in support of an application for an interim order under the Act to be supported by material provided by those with direct knowledge of the facts concerning the individual offender. That is certainly the case here. 23 In an application for an interim order, it is necessary for the Court to determine whether, if proved, the relevant matters would justify the making of a continuing detention order or an extended supervision order: see in that respect, s.9(3) and s.17(4). For that purpose, consideration must also be given to the provisions of s.17(2) and (3) which are in the following terms:- "17(1) … (2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision. (3) A continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order." 24 In the written submissions on behalf of the Attorney General (paragraph 93), reference was made to the preliminary view expressed by McClellan CJ at CL in Gallagher (supra) at [34] to the effect that the Act imposes a standard of proof higher than the ordinary civil standard but less than the criminal standard, beyond reasonable doubt. This preliminary analysis was challenged and it was suggested that the Act "may fairly be viewed as imposing the ordinary civil standard of balance of probabilities - with the nature of the issue, and the gravity of the consequences flowing from a particular finding, affecting the process of being satisfied to the requisite civil standard (cf. Briginshaw v Briginshaw (1983) 60 CLR 336)". 25 I consider, by reason of the nature of the supporting documentation relied upon in the present application, that it is unnecessary to express any final opinion in relation to the provisions of s.17(3). It is sufficient to say that the standard of persuasion in a civil proceeding in terms of the reasonable satisfaction of a tribunal as to whether a past event or fact has been established having regard, in particular, to the seriousness of an allegation made, the likelihood or otherwise of its occurrence and the gravity of the consequences flowing from a particular finding (the Briginshaw test) may not be entirely applicable to the making of a determination under s.17(2) and (3). Such a determination involves, not the establishment of a past fact or event, but the undertaking of a predictive risk assessment as to the degree of probability that a particular offender some time in the future is "likely" to commit a further serious sex offence in the circumstances to which those provisions refer. No doubt, the nature and quality of the material used for such the making of an assessment will be vital.

Submissions on behalf of the defendant 26 Mr M Austin of counsel, on behalf of the defendant, submitted that on the material provided, the Court would not make a determination that a continuing detention order is appropriate in the circumstances of this case. He submitted in this respect that the material on the application merely discloses that the defendant, after almost nine years in custody, is "an untreated sex offender". It was further submitted that the defendant is not a person for whom the Custody Based Intensive Treatment (CUBIT) programme is appropriate. Mr Austin submitted that the only proposition established by the material before the Court was that there is a programme for serious sex offenders and that the defendant has not completed that programme. He submitted that whilst the programme may be the best programme "for the average or majority of inmates who could fall into the category of serious sex offenders", it could not be suggested that the material in support of the application established that the programme was suitable for everyone and it was contended that it certainly was not suitable for the defendant. 27 Accordingly, it was contended that the material relied upon in support of the application would not enable the Court to reach the conclusion required by s.16(1)(b), given, in particular, the high standard of proof that applies under s.17 of the Act. 28 Mr Austin additionally relied upon the issue of delay in the making of the application. 29 As I understood the contention made in relation to the issue of delay, it was that the legislation should be interpreted and understood as requiring any application for a continuing detention order to be made at a time which would enable the Court to conduct a preliminary hearing and, if necessary, make any interim orders within a period of six months. 30 In the present proceedings, the complaint was that, by reason of delay, any interim order now made by the Court will result in the continued detention of the defendant beyond the current period of custody. Had the application been made at an earlier point in time, a preliminary hearing could have been conducted and completed well within the six month period to which he referred and thereby have avoided the prospect of the defendant being further detained after having served nine years in custody. 31 The submission on delay was linked with the submission that the Court ultimately will not be satisfied on the material so far presented that it is likely that a final determination will result in a continuing detention order being made. I will return to these contentions below.

The relevant history of offences 32 The defendant's criminal record in relation to sexual offences, including the offence the subject of the current term of imprisonment, was set out in the detailed written submissions produced by Mr L Babb, Crown Advocate, and Dr D Kell, who appeared for the Attorney General. Reproduced below is a schedule taken from paragraph 31 of those submissions:- Date of conviction Conviction Details of Sentence 2 May 1977 Indecent assault (2 counts) On each count committed to an institution (juvenile)

6 May 1977 Peep and pry Fined $50.00 Indecent assault female Three years imprisonment 8 April 1982 (date of offence: 10 Oct 81) (to date from 8.4.82) (18 month non-parole period) Assault and ill treat female 12 months hard labour from expiration of sentence then serving 27 October 1982 (date of offence: 2 Aug 81) (* aggregate non-parole period to expire 8 April 1984; aggregate parole period to expire on 7 April 1986) 5 years minimum term of imprisonment on each count of attempt sexual intercourse without consent, additional term of 20 months; s Sexual intercourse without consent; s Attempted sexual intercourse without consent (2 counts) 2 years minimum term of imprisonment on counts of sexual intercourse without consent and indecent assault, additional term of 8 months; 8 December 1989 s Indecent assault (all sentences to commence from 2 June 1989, all sentences to be served concurrently) (date of offences: 27-28 Nov 85; offence committed while on parole from previous sex offence) (Quinn to be considered eligible for release on parole from 1 June 1994; total sentence to expire on 1 February 1996) aggravated sexual assault without consent (s 61J, Crimes Act 1900) 9 years imprisonment with a 7 year non-parole period

14 May 1998 (prior to NSWCCA reducing sentence, Cantrill DCJ had imposed sentence of 11 years imprisonment with a 9 year non-parole period) (date of offence: 23 Dec 95; offence committed while on parole from previous sex offence) (Quinn became eligible for parole on 13 May 2005; parole twice refused; full sentence expires 13 May 2007)

33 A matter relied upon in the present application was the evidence establishing that the sexual offence in respect of which the defendant is currently serving a sentence of imprisonment, as well as the sexual offences in respect of which he was convicted on 8 December 1989, were both committed whilst the defendant was on release on parole following conviction on a prior sexual offence.

Matters under s.17(4) of the Act 34 The documentation in support of the application includes a number of pre-release reports made by Ms Joanne Kennedy, Manager, Long Bay Parole Unit dated 23 March 2005, 14 April 2006 and 7 June 2006. 35 The assessment and recommendation made in the report of 23 March 2005, is based upon interviews with the defendant and other sources of information identified in the report. It is unnecessary here to detail the history and assessments referred to in it. It is sufficient to say that the source materials relied upon, taken at face value, would support the recommendation stated therein, namely, that release of the defendant to parole was not recommended and that the most appropriate course for him was that he make a further application to join the next CUBIT Programme scheduled for later in that year (2005). 36 The pre-sentence report dated 14 April 2006 referred to assessments of a medium risk of general re-offending and to a high risk of sexual/violent re-offending, each assessment being based upon the administration of "Instruments" or assessment tests. The report records that the defendant's circumstances remained unchanged and that otherwise he remained as "an untreated sex offender …" who continued to refuse to re-enter the CUBIT programme since his unsuccessful attempt in 2003. 37 The supplementary pre-release report dated 7 June 2006 maintained the previous risk assessments and re-affirmed that release to parole posed "an unacceptable level of risk to the community". 38 The psychological risk assessment report dated 18 April 2007 by Sharon Klamer, psychologist, proceeds upon the basis of a detailed account of the historical sex offences committed by the defendant, his response to previous supervision, noting his breaches of parole, and his attitude to treatment and his attitude to risk. 39 In light of the submissions made on behalf of the defendant, it is appropriate to observe that, according to Ms Klamer's report (p.7), the defendant enrolled to participate in the Education of Sex Offenders Programme at Lithgow Correctional Centre in October 2003, but that he withdraw from the programme before completing it. 40 The report also records that the defendant commenced treatment in the High Intensity Custody Based Intensive Treatment (CUBIT) on 17 March 2003. The programme length varies between 8 and 12 months, depending upon progress. The report records that the defendant was discharged from the programme at his own request on 5 May 2003 after six weeks in treatment. His progress in treatment was described as poor, it being noted that there was a failure by him to accept responsibility for his general behaviour in the programme and two suspensions for threatening behaviour. 41 On 2 June 2003, a Ms Shaw is recorded as having recommended that the defendant be re-referred to CUBIT and that he complete the programme "prior to his release". Ms Klamer's report notes that information contained in reports compiled since that time in relation to the defendant's interest, or lack thereof, in participating in treatment, was conflicting. 42 Since 16 September 2006, the report records that there had been a number of written communications from the defendant in relation to him returning to the programme and the conditions under which he would agree to return. These included requests by him that he recommence the programme from where he stopped in 2003, a refusal to discuss the index offence and his most recent prior convictions "due to the involvement of underworld figures" and a request to discuss these offences with the therapeutic manager or psychologist individually. 43 In November 2006, the defendant was advised that he was not eligible to participate in a programme as he was due for release at the end of his sentence on 13 May 2007 and there was no longer sufficient time to complete the programme. 44 On the evidence on this application, I am unable to accept the submission made on behalf of the defendant that the CUBIT programme was not an appropriate or was not a suitable one to meet his requirements. 45 The affidavit of Ms Klamer sworn 2 May 2007, paragraph [45], stated that in her opinion, the only appropriate treatment programme for the defendant is the CUBIT programme. Ms Klamer there also stated that there is no comparable programme available in the community for high risk offenders. 46 Mr David Bright also addressed the issue in his affidavit sworn 2 May 2007. Mr Bright is the Therapeutic Manager of CUBIT, Sex Offender Programmes at the New South Wales Department of Corrective Services. 47 Correspondence with the defendant annexed to Mr Bright's affidavit reveals that the reason for refusing to re-admit him to the CUBIT programme was not that he was considered as unsuitable or that the course was not an appropriate one for him. Rather, the reason was that the conditions requested by him could not be met. Subsequent correspondence referred to by Mr Bright indicates that the conditions which the defendant was seeking to have imposed upon his proposed re-entry to the programme were not acceptable. Mr Bright's conclusion expressed in his affidavit (paragraph 77) does suggest that the CUBIT treatment programme would be both appropriate and suitable for the defendant. 48 The supporting material concerning the defendant's convictions suggests a pattern of offending of an opportunistic nature and the difficulty that any such tendency may pose in terms of supervision taken with his prior history of breaches of parole, the assessments made of the defendant and his unwillingness to participate in the programme on the conditions specified in it, all constitute supporting material on this application for interim relief which would, if proved, justify the making of a continuing detention order. 49 Ms Klamer stated in her affidavit that in February 2007, she was requested by the New South Wales Commissioner of Corrective Services to prepare a risk assessment report in respect of the defendant in anticipation of an application under the Act. Ms Klamer undertook the assessment and produced a Risk Assessment Report dated 18 April 2007 which is Exhibit SK-1 to her abovementioned affidavit. She interviewed the defendant on 27 February 2007 and 2 March 2007 for the purposes of making her assessment. Ms Klamer stated that she also took a risk assessment relating to the defendant based upon both Static Risk Factors using the Static - 99 Actuarial Risk Assessment Tool and upon Dynamic Risk Factors. Her overall assessment and conclusion was that the defendant is a high risk sex offender and that that assessment is based upon both of the abovementioned risk assessments. Ms Klamer scored the defendant as a "9" on the Static - 99 by application of the Static - 99 Coding Rules. Ms Klamer stated that, in her experience it is rare for an offender to receive a Static - 99 score as high as nine, which score places the defendant in the group of offenders in respect of whom there is a high risk of re-offending. 50 Ms Klamer also addressed the Dynamic Risk Factors which involves a structured interview process undertaken with the offender and has regard to the individual offender's psychological state and life circumstances. Based on the Static and Dynamic Risk Factors, Ms Klamer assessed the defendant as being in the high risk category of sexually re-offending relative to other adult males (report, p.14). 51 Having regard to the material on this application for an interim order which points to a limited amount of community support available to the defendant (in particular that that would be available from his female friend), the defendant's previous pattern of offending and the assessments made as to his risk of re-offending, I am not presently persuaded that supervision as envisaged by the Act would provide sufficient protection from the assessed prospect of him re-offending. 52 I am of the opinion that the material tendered on this application establishes a basis for the risk assessment referred to in the reports. I also have regard to the defendant's past conduct in not responding to the trust reposed in him when on parole. Accordingly, I am not satisfied on this application that an extended supervision order would afford adequate community protection. 53 On the issue of delay, I do not consider that I should accept that there has been relevant delay. As indicated earlier, the Act expressly provides that an application may not be made until the last six months of the offender's current custody or supervision: s.6(2) and s.14(2). The Act does not specify a date by which an application must be made. As earlier indicated, the direction for a risk assessment to be undertaken by Ms Klamer was given in February 2007 and there has not been any relevant delay since that time. 54 I have had regard in considering the submissions made on behalf of the defendant to the fact that, prior to Ms Klamer advising the defendant that an assessment was to be made for the purposes of a possible application under the Act, he had an expectation that he would be released on 13 May 2007. That, I accept, is an important matter in determining whether or not there is any relevant unfairness or detriment arising from the making of the application. 55 I have concluded that, given the time periods prescribed in the legislative scheme, that it has not been established that relevant delay has occurred. Even if there can be said to have been delay prior to February 2007, I do not consider that any such delay in itself has created a basis for refusing the application. 56 The question of the exercise of any residual discretion referred to in paragraph [21] need not be determined as I am of the opinion that an interim detention order ought be made. 57 I, accordingly, make orders in terms of paragraph (1) and (2) of the summons as follows:-

(1) An order pursuant to s.16(1) of the Crimes (Serious Sex Offenders) Act 2006 (NSW) that the defendant be detained in a correctional centre on an interim basis for a period of 28 days from 13 May 2007.

(2) An order pursuant to s.20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in order (1) above. 58 I, accordingly, direct that the above orders be entered forthwith and that an appropriate warrant issue. 59 I emphasise, as I have indicated earlier, that the findings I have made have been made for the purpose of the application for an interim detention order pursuant to s.16 of the Act. Those findings are based upon the material and evidence that has been placed before the Court for that purpose. 60 The Act envisages that, following a preliminary hearing, if the Court is satisfied of matters referred to in s.16(4) of the Act, then the Court is to make orders appointing two qualified psychiatrists to conduct separate psychiatric examinations of the offender and to furnish reports to the Court on the results of those examinations and to direct the offender to attend such examinations. 61 The hearing of the application for an interim detention order has addressed the matter that the Court is required to determine in a preliminary hearing under s.15(4) of the Act and I accept the submission that has been made on behalf of the Attorney General that the hearing of the application for an interim detention order constitutes the "preliminary hearing" under that provision. In the case of such a hearing, the Court is required to determine if it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continued detention order or an extended supervision order. 62 Paragraph [4] of the summons seeks orders which the Court is empowered to make under s.15(4) of the Act. On the basis of the findings to which I have referred, the plaintiff has established an entitlement to such orders. 63 Accordingly, pursuant to s.15(4) of the Act, I make the following additional orders:-

(3) Two qualified psychiatrists are to be appointed to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 1 June 2007.

(4) The defendant is directed to attend those examinations. 64 Finally I record that, in order that the Court may determine at a final hearing the application that has been made for a continuing detention order, it must consider any admissible evidence that may be adduced on behalf of the defendant. Accordingly, the legislation makes it clear that a finding required and made at this stage is preliminary in nature. In proceedings for a final determination and a final order due regard must be given to the evidence in such proceedings, including, psychiatric reports to which I have referred. **********

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