Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 | Case summary

JUDGMENT 1 HER HONOUR: The plaintiff, the Attorney General for the State of New South Wales, claims orders including an order pursuant to s 7(2)(b) of the Crimes (Serious Sex Offenders) Act 2006 (the Act), that the defendant be detained in a correctional centre for five years from the date of the order. The defendant is serving a sentence of imprisonment following his conviction for a number of sexual offences. His sentence will expire full term on 17 June 2007. 2 The plaintiff applies pursuant to s 16(1) of the Act for an order that the defendant be detained in a correctional centre on an interim basis for a period of 28 days from 17 June 2007. 3 The scheme of the Act is described in the judgment of McClellan CJ at CL in Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340. The preliminary hearing, which the Act requires take place within 21 days after the application is filed, and the application for an interim order have been heard together. 4 In Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119, the Court of Appeal discussed the approach to be taken to the grant of interim orders under s [16] of the Act and I note their Honours observations at paragraphs [43] to [46]. 5 At paragraph [98] their Honours said: The task assigned by section 16(1)(b) is for the court to look at what is alleged in the documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order (section 16(1)(b)). In determining whether the power to grant an interim order is enlivened the court is not involved in weighing that documentation or predicting the ultimate result. The power is enlivened if the supporting documentation would, if proved, justify the making of either category of final order, bearing in mind the elevated standard of proof stated in subsection 17(2) and (3). That threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Indeed, it is to be considered without taking in to account the evidence (if any) called by the offender at the interim hearing. Such evidence may go to (relevant) discretionary matters but would not cast light upon what is alleged in the Attorney General's supporting documentation. 6 I am to consider whether it appears that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or an extended supervision order. In the event that it appears that the supporting documentation would, if proved, support the making of either order I may make the interim order, which the plaintiff seeks. I am not constrained to do so. 7 In considering the application it is appropriate to take into account the objectives of the Act, which are to ensure the safety and protection of the community and to facilitate the rehabilitation of serious sex offenders. In dealing with the interim orders it is appropriate to give weight to risk-avoidance. 8 The defendant is represented by Mr Dalton SC, who informed the court at the commencement of the hearing that his client does not oppose the making of an interim detention order. Mr Dalton said that arrangements are presently in train to identify suitable accommodation for the defendant on his release, but that to-date no such arrangements have been made. 9 In light of the supporting documentation on which the plaintiff relies I understood Mr Dalton SC to accept that the preconditions for an interim order under s 16(1) are established. Taking in to account the observations of the Court of Appeal in Tillman, the absence of suitable accommodation for the defendant and the likely interval of time associated with the preparation of psychiatric reports, I understood Mr Dalton SC to acknowledge that it would be appropriate that the term of an interim detention order be for a period of 28 days. 10 This co-operative approach did not involve any concession concerning the nature of any final order that might be made. It remains that the court may not make an order for the interim detention of an individual unless the matters set out in subs 16(1)(a) and (b) are established. 11 The plaintiff tendered a substantial body of material in support of the application. I do not propose to review the whole of it. In written submissions prepared by Mr Buchanan SC and Mr Kell, who appear on behalf of the plaintiff, my attention was directed to passages in a number of core documents which were isolated in a single folder. Mr Dalton SC did not refer to any material going outside the core documents. 12 The defendant is a "sex offender" for the purposes of the Act: He is a person who has been sentenced to imprisonment following his conviction of a serious sex offence. Section 14 deals with applications for a detention order against a sex offender. The Attorney General may apply to the court for a continuing detention order against such an offender who, when the application is made, is in custody in a correctional centre while serving a sentence of imprisonment by way of full-time detention for a serious sex offence. 13 The application may not be made until the last six months of the offender's current custody. The application must be supported by documentation addressing each of the matters referred to in s 16(4), which includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner assessing the likelihood of the offender committing a further serious sex offence. 14 The court must conduct a preliminary hearing in to the application within 28 days after the application is filed or within such further time as the court allows. 15 The application was filed by summons dated 18 May 2007. The defendant's sentence expires on 16 June 2007. The application is brought within the period limited in section 14. 16 At the preliminary hearing I am to consider whether the plaintiff has established what may be described as a prima facie case for the relief sought. If I am not so satisfied I must dismiss the application. Provided I am satisfied that the matters alleged in the documentation would, if proved, justify the making of either a continuing detention order or an extended supervision order I must consider whether interim orders should be made. 17 If I am satisfied that a prima facie case exists I am required to make an order appointing two qualified psychiatrists to conduct separate psychiatric examinations of the offender and to furnish reports to the Supreme Court on the results of those examinations and to direct the offender to attend those examinations. 18 Section 17(2) of the Act provides that 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. Section 17(3) provides 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. 19 Taking in to account the principles explained by the Court of Appeal in Tillman, it is sufficient for present purposes if the plaintiff establishes that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, and accordingly it is not necessary for me to consider if the matters, if proved, would establish the further test of s 17(3). 20 The supporting documentation shows that the defendant has a record of convictions for offences of a sexual nature against children. A number of these are serious sex offences for the purposes of the Act. On 18 March 1999 at the District Court sitting at Wagga Wagga the defendant pleaded guilty to, and was convicted of, 13 sex offences committed against children over the period between January 1997 to June 1998. The offences involved nine male victims aged between eight and 15 years. They included two counts of sexual intercourse with a person under the age of ten years, contrary to s 66A of the Crimes Act 1900. One count of sexual intercourse with a person between the age of ten and 14 years, contrary to s 66C(1). Four counts of indecent assault with a person under the age of ten years, contrary to s 61M(2). Three counts of committing an act of indecency under the age of ten years, contrary to s 61O(2), and three counts of committing an act of indecency against a person under the age of 16 years. Save for the last three offences all are serious sex offences within the meaning of the Act. 21 The plaintiff's application is supported by documentation addressing each of the applicable subparagraphs of s 17(4). It includes a report by a qualified psychologist, Katherine Sahm, containing an assessment of the likelihood that the defendant will commit a further serious sex offence. 22 The defendant's background is set out in the report of Dr Wilcox dated 12 February 1999. He is presently aged 41 years. It is not necessary to review his history in detail. It is sufficient to note that it includes that he was sexually abused as a child and that he grew up in a household in which he was subject to physical and verbal abuse. He described a long history of self-harm dating back to when he was aged 12 years. At the age of 22 he was ordered by a court to undergo psychiatric treatment. He attended a psychiatrist, Dr Tym, pursuant to the order. He was reported to have overdosed on the antidepressant medication that Dr Tym prescribed. 23 Dr Wilcox recorded an extensive history of drug and alcohol abuse. She stated that the defendant provided inconsistent information concerning his charges and she did not assess him as a totally reliable historian. She questioned his level of intellectual functioning. She observed that he gave the impression of being a man a great deal younger than his stated age. She commented that he had denied sexual interest in the young boys the subject of the charges, but that his reported actions suggested a diagnosis of paedophilia. 24 The supporting documentation contains a number of reports prepared over the years by psychiatrists. They include a report prepared by Professor Greenberg, addressed to the New South Wales Parole Board, based on an assessment of the defendant conducted on 10 February 2006. Professor Greenberg concluded that the defendant has a paedophile disorder. This diagnosis is consistent with the diagnosis made by Dr Walker. Dr Nielsen describes the defendant as having an underlying paraphilia. 25 The defendant was sentenced by Payne DCJ. Her Honour's remarks on sentence point to the offences of which he was convicted forming part of a larger pattern of conduct. She noted that the defendant had taken advantage of the vulnerability of his young victims, gaining their interest and attendance at his house by allowing them to use his computer and, in one instance, by the offer of cigarettes. Her Honour was satisfied that most of the offences were premeditated. 26 Professor Greenberg noted that the defendant gave an account that his male victims had been "basically neighbours". The defendant acknowledged, in the course of his interview with Professor Greenberg, that he had previously been charged with "peep and prying", an allegation that he said related to one girl and two boys. He denied sexual molestation of these children. 27 There is material in the supporting documentation concerning charges brought against the defendant arising out of incidents on 18 December 1987 and 1988 at Cootamundra; "peep and pry"; malicious damage to property; possess house breaking instruments; and enter enclosed lands. The addresses at which the offences occurred were close to where the defendant was then living. The offences involved removing fly-screens from the bedroom windows of rooms occupied by children. The December 1987 offence involved attempt to gain entry to a bedroom where a four-year-old girl was sleeping. The 1988 offence involved an attempt to gain entry to a bedroom in which two boys aged seven and five were sleeping. The supporting documentation includes a handwritten account by the defendant acknowledging these offences. The defendant acknowledged his intention of sexually assaulting the female child in the first of the incidents. The defendant acknowledged that he was in breach of bail at the date of the second offence. 28 Professor Greenberg considered that the defendant had poor insight into his psychosexual disorder. Professor Greenberg concurred with the opinions contained in the psychological reports that the defendant falls in to the high-risk category on the Static 99 actuarial instrument. 29 The defendant was admitted to the CUBIT program for the high intensity psychological treatment of moderate to high-risk sex offenders. He did not complete this program. Katherine Sahm records that the defendant was discharged from the CUBIT program on 24 August 2001 in the context of attempts at self-harm. At the time of his discharge he was noted as having "poor and unsatisfactory" participation in treatment groups. There is support for this conclusion in the affidavit of David Bright, which extracts a number of entries from the CUBIT discharge report. 30 In late 2004 the defendant embarked on a course of treatment with anti-libidinal medication. This was discontinued in 2006 because of the unwanted side effects of the medication. He then started on a course of Depo-provera, but this was discontinued in January 2007, again because of the side effects. 31 The results of statistical assessment are that the defendant is in the high-risk category for sexual re-offending. This assessment finds support in the opinions of Mr Bright, the manager of the CUBIT program, and Ms Sahm, a registered psychologist with expertise in the assessment of sex offenders. 32 In her report Ms Sahm observes that the defendant employed methods of increased sophistication in enticing children into his home. She assesses him as a high-risk untreated sex offender, on the basis of the actuarial instrument and a consideration of dynamic factors personal to the defendant. 33 As the written submissions filed on behalf of the plaintiff note, subs (17(4)(b), (f) and (g) are not of application to this defendant at the stage of the interim application. Taking into account the considerations to which the balance of subs 17(4) directs attention, I consider that the supporting documentation would, if proved, justify the making of a continuing detention order or an extended supervision order. 34 I am satisfied that it is appropriate to make an order for the interim detention of the defendant for a period not exceeding 28 days from 17 June 2007. 35 For these reasons I make the following orders:

Attorney General for the State of New South Wales v Winters

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