Attorney General for the State of NSW v Cornwall

CASES CITED : Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119

PARTIES : Attorney General for the State of New South Wales Raymond Barry Cornwall

COUNSEL : Mr D Arnott SC and Ms A Mitchelmore - Plaintiff Mr D Dalton SC - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

013126/07 ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v RAYMOND BARRY CORNWALL

JUDGMENT - ex tempore 1 HIS HONOUR: The Attorney General for the State of New South Wales seeks orders including an order pursuant to s 16(1) of the Crimes (Serious Sex Offenders) Act 2006 (the Act) that the defendant be detained in a correctional centre on an interim basis for a period of twenty-eight days from 7 July 2007. 2 The defendant was sentenced by Viney DCJ on 6 December 1993 on six counts of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 and one count of armed intent to commit an indictable offence contrary to s 114(1)(a) of the Crimes Act to an aggregate sentence of fourteen years imprisonment commencing on 8 July 1993. The head sentence for which the defendant is currently imprisoned expires next Saturday ,7 July 2007. 3 Mr Dalton SC, who appears for the defendant, has informed the court that his client does not oppose the making of an interim detention order for a period of twenty-eight days. The defendant's accommodation after release is presently being considered.

4 No concession is made by Mr Dalton concerning the nature of any final order that might be made. 5 Notwithstanding the defendant's lack of opposition to the interim order, the Court may not make an order for the interim detention of the defendant unless the matters in ss 16(1)(a) and (b) of the Act are established. Section 16(1) of the Act relevantly provides: "16(1) If, in proceedings on an application for a continuing

(a) that the offender's current custody will expire before the proceedings are determined; and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court may make an order for the interim detention

6 The Court is required by s 16(1)(b) of the Act 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. The use of the word "may" in s 16 confers a discretion enabling the Court in a proper case to decline to make an order for interim detention even if it appears that the supporting documentation justifies the making of the interim order which is sought: see Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119. 7 What is required for the making of an extended supervision order or a continuing detention order is set out in ss 17(2) and 17(3) of the Act respectively. In determining whether the power to grant an interim detention order is enlivened, the Court is not involved in weighing the supporting documentation or predicting the ultimate result: see Tillman at [98]. The test for the making of an interim order is similar to the requirement for a prima facie case to be made out in committal proceedings. 8 A large amount of material has been tendered in support of the application. I do not propose to detail all of it. 9 The offences for which the defendant was sentenced by Viney DCJ involved a series of sexual offences committed against teenage girls and young women aged between thirteen and twenty-four years. The defendant's victims were forced to comply with his directions by threats made with a knife, except in one case where the victim was threatened with strangulation. The sexual indignities to which the victims were subjected included, but were not limited to, vaginal and anal penetration. The criminality involved in counts 3 and 4 involved two girls aged fourteen being forced to perform lesbian acts upon each other. The offences occurred on five separate occasions between June 1991 and July 1993. 10 All of the offences contrary to s 61J are serious sexual offences within the meaning of the Act. The defendant is a sex offender for the purposes of the Act, having been sentenced to imprisonment following the convictions on 6 December 1993. 11 There are in the supporting material two affidavits from psychologists. The first affidavit is sworn by Graham Rendell on 28 June 2007. Mr Rendell assessed the defendant's potential for re-offending through either violent and/or sexual aggression by reference to both his static risk factors, using an instrument known as the Static-99, and his dynamic risk factors. A score of "6" and higher on the application of the Static-99 places a person in the high risk category for sexual and/or violent recidivism relevant to other adult male offenders. Mr Rendell agreed with the score that had earlier been obtained for Mr Cornwall, being a score of "6", by Ms Vidler and Ms Bel, who it appears had assessed the defendant at an earlier stage. The factors assessed for the Static-99 instrument are factors which do not change. 12 The score of "6" places the defendant in a group of offenders who, on average, sexually re-offend at 39 per cent over five years and 45 per cent over ten years. The rate of violent recidivism for the high risk category is 44 per cent over five years and 51 per cent over ten years. It is important to observe that these are estimates and the score does not directly correspond to the recidivism risk of an individual offender. 13 In assessing the defendant's potential for re-offending through either violent and/or sexual aggression on the basis of a compilation of both his actuarial risk and his dynamic risk factors, Mr Rendell considered the defendant to present a "high" risk of either violent or sexually aggressive acts on either children under sixteen years or adults if released to the community without having successfully completed offence specific psychological treatment. 14 It appears that whilst the defendant was at the Berrima Correctional Centre he twice undertook the Sex Offender Psycho-Education programme known as SOPE. However, it seems that he refused to participate in the Custody Based Intensive Treatment programme for high risk sex offenders known as CUBIT. CUBIT, Mr Rendell recounts, is a residential group-based programme and is of a length and intensity considered by research to be best practice by world standards to impact the identified targeted treatment needs of sex offenders. 15 The second affidavit is affirmed by Jayson Barry Ware who is the State-wide Clinical Co-ordinator of Sex Offender Programmes with the Department of Corrective Services. Mr Ware addresses the reasons he understood to have been provided by the defendant to Mr Rendell for his refusal to participate in CUBIT. In short, Mr Ware states that the defendant could have started and completed the CUBIT programme between June 2003 and 7 July 2007. 16 According to Mr Ware, the SOPE programme is a psycho-educational programme which does not amount to treatment. He opines that the CUBIT programme is the most appropriate and beneficial treatment option for the defendant. There are, it seems, no other appropriate options within the Department of Corrective Services, either within a custodial or community setting. 17 The defendant is now fifty-two years old. It appears from the personal history provided to Mr Rendell that he had a childhood of relative stability in a family of parents and eight siblings in suburban Sydney. The family unit appears to have been somewhat financially and, from Mr Cornwall's perspective, somewhat emotionally impoverished. The defendant reported poor interest and achievement at school, resulting in his leaving at age fourteen without any scholastic certification. He disclosed being sexually abused on a weekly basis by an adult family friend when he was seven years old. 18 The defendant's prior criminal history at the time of sentence on 6 December 1993 included offences of dishonesty and the driving of motor vehicles with the prescribed concentration of alcohol. There was one prior sexual offence, being a conviction in 1975 for indecent exposure, for which he was fined. The reports from Mr Taylor, a clinical psychologist, and Dr Koller, a psychiatrist, which were tendered during the proceedings on sentence suggest that this was not an isolated occurrence. Mr Rendell considered that the defendant's sexual aberrant behaviour "was well established prior to his commission of the matters for which he is currently incarcerated". 19 The application is supported by documentation that addresses each of the matters referred to in s 17(4) of the Act and includes a report prepared by a qualified psychologist that assesses the likelihood of the offender committing a further serious sex offence. The application, in compliance with s 14(2) of the Act, was not made until the last six months of the defendant's current custody. 20 Sections 17(4)(b), (f) and (g) of the Act are not relevant to the present application. I conclude, taking into account the considerations to which the balance of s 17(4) directs attention, that the supporting documentation would, if proved, justify the making of a continuing detention order or an extended supervision order. 21 In my view it is appropriate to make an order for interim detention of the defendant for a period not exceeding twenty-eight days from 7 July 2007. 22 I make the following orders: 1. Pursuant to s 16(1) of the Crimes (Serious Sex Offenders) Act 2006, the defendant Raymond Barry Cornwall be detained in a correctional centre on an interim basis for a period of twenty-eight days from 7 July 2007. 2. Order pursuant to s 20(1) of the Act that a warrant issue for the committal of Raymond Barry Cornwall to a correctional centre for the period specified in order 1 above. 3. Order that two qualified psychiatrists conduct separate psychiatric examinations of Raymond Barry Cornwall and that those two psychiatrists furnish reports to the Supreme Court of the results of those examinations on or before 4pm on Friday, 20 July 2007. I direct the defendant is to attend those examinations.

4. Direct that the defendant is to serve any evidence on which he relies not later than 4pm on Tuesday, 24 July 2007; and the plaintiff is to serve any evidence in reply not later than 4pm on Thursday, 26 July 2007. 5. List the amended summons for hearing on Monday, 30 July 2007. I note the estimate of three to four days. 6. The parties have liberty to apply to the list Judge on one day's notice.

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