Attorney General for the State of NSW v Hayter

Crimes Act 1900 s 61M(1) LEGISLATION CITED : Crimes (Serious Sex Offenders) Act 2006 s 7(4), s 14(2), s 15(4), s 17(2), s 17(3), s 17(4)(b), s 17 (4)(g),

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 Warren Graeme Hayter

COUNSEL : Mr L Babb & D Kell - Applicant Ms C Loukas - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

14210/07 Attorney General for the State of New South Wales v Warren Graeme Hayter

Ex Tempore Judgment 1 HIS HONOUR: The Attorney General for the State of New South Wales seeks orders pursuant to s 15(4) of the Crimes (Serious Sex Offenders) Act 2006 ("the Act") or further or alternatively s 7(4) of the Act: (a) appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the defendant to attend those examinations.

2 The defendant was sentenced by Delaney DCJ on 4 February 2005 on one count of aggravated indecent assault on a victim under the age of 16 years, contrary to s 61M(1) of the Crimes Act 1900, to imprisonment with a non-parole period of two years commencing on 29 June 2004 and expiring on 28 June 2006, with a balance of term of one year and three months which is to expire on 28 September 2007. The sentence for which the defendant is currently imprisoned accordingly expires on 28 September 2007.

3 An offence contrary to s 61M(1) of the Crimes Act is punishable by imprisonment for seven years, and is found within Division 10 of Part 3 of that Act. The offence is a serious sexual offence and an offence of a sexual nature under the Act. 4 Miss Loukas, who appears for the defendant, has informed the court that her client does not oppose the preliminary orders which are sought today. No concession however is made by Miss Loukas concerning the making of any other order that might be made. Notwithstanding the defendant's lack of opposition to the present orders, the court may not make orders for the appointment of the two qualified psychiatrists unless 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.

5 The court is required by s 15(4) of the Act to look at what is alleged in the documentation to see whether the matters therein alleged would, if proved, justify the making of a continuing detention order or extended supervision order. What is required for the making of an extended supervision order or a continuing detention order is set out in s 17(2) and s 17(3) of the Act.

6 In determining whether to order psychiatric examinations pursuant to s 15(4) the court is not involved in weighing the supporting documentation or predicting the ultimate result. See Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119, where the Court of Appeal considered s 16(1)(b) of the Act, which is in similar terms to s 15(4). The test for making the orders presently sought is similar to the requirement for a prima facie case to be made out in committal proceedings.

7 The defendant is a sex offender for the purposes of the Act, having been sentenced to imprisonment following his conviction on 4 February 2005. The offence for which the defendant was sentenced by Delaney DCJ involved the defendant luring a fourteen year old boy into bushes, whereby he indecently assaulted him.

8 A large amount of documentation has been tendered in support of the application, and I do not propose to detail all of it. The documentation addresses each of the matters referred to in s 17(4) of the Act to which the court must have regard, other than s 17(4)(b) and s 17(4)(g), which are not relevant to the present application.

9 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.

10 There is in the supporting material an affidavit of Patrick Sheehan, a psychologist, sworn 28 August 2007. Mr Sheehan assessed the defendant's risk of sexual re-offending by reference to both his static risk factors, using an instrument known as the STATIC -99, and his dynamic risk factors. A score of "six" and higher in application of the STATIC -99 places a person within the high risk category of sexual recidivism relevant to other male offenders. The defendant scored a "nine".

11 The factors assessed for the STATIC -99 instrument are factors which do not change, although the offender's age can have a moderating affect. Mr Sheehan opined that given the defendant's age of 43 years and the absence of health complaints or diminished sexual desire, it might be premature to make any age-related adjustment moderating his risk at the present time.

12 A score of "nine" places the defendant in a group of offenders who on average sexually re-offend at thirty nine per cent over five years and forty five per cent over ten years.

13 In assessing the defendant's potential sexual re-offending on the basis of a compilation of both the actuarial risk and his dynamic risk factors, Mr Sheehan considered the defendant as being in the high risk category of sexual re-offending relevant to other adult male offenders.

14 The defendant, in Mr Sheehan's opinion, requires significant improvement in the dynamic features of his risk before any confidence could be had in his ability to successfully and consistently manage these factors, and the resultant risk to the community. The dynamic risk factors include, in Mr Sheehan's assessment, intimacy deficit, distorted attitudes, general self-regulation, and social influences.

15 The defendant, to his credit, has been a participant in the Custody Based Intensive Treatment program for high-risk sex offenders, known as CUBIT, since January 2007. However, his progress is described by Mr Sheehan as being inconsistent. Mr Sheehan opines that the defendant's behaviour indicates ambivalence towards the therapeutic goal of life without sexual offending or deviant sexual interest.

16 Recently, material which might be described as inappropriate and disturbing was found in the defendant's cell during a random search. The defendant was removed from CUBIT due to security concerns, and his movement back into the program is apparently dependant on these concerns being addressed.

17 It appears that the CUBIT program might not be successfully completed by the time of the expiration of the defendant's sentence, and Mr Sheehan considers that more treatment within CUBIT to address specific ongoing issues will be required. In his report dated 6 July 2007 Mr Sheehan details at pages nine and ten the previous involvement of the defendant in treatment for sexual offending.

18 The defendant has an unattractive criminal history, which includes an extensive record of sexual offences in New South Wales, Queensland and South Australia. A disturbing pattern emerges from an examination of those offences, which is summarised in the plaintiff's written submissions, which I propose to adopt:

1. The defendant has been convicted of 20 separate sexual offences involving over 12 different victims.

2. All victims were under-age boys and one victim was only seven years old.

3. A number of sexual offences were committed whilst the defendant was on parole, a good behaviour bond, or on bail.

4. The victims were boys who were not related to the defendant.
5. The offences reveal at least a degree of sophistication and grooming techniques on the part of the defendant.

19 In his affidavit Mr Sheehan made reference to the defendant's commission of offences whilst subject to conditional liberty, and considered that "there must be significant concerns as to the extent to which [the defendant] could be relied upon to consistently adhere to conditions on release". 20 The defendant was born on 2 October 1963 and is 43 years old. It appears from Delaney DCJ's remarks on sentence that the defendant is a divorced man with two children. He has had limited education, employment and training over the years, principally because of the fact that he has spent much of his life in prison. 21 I conclude, taking into account the considerations to which s 17(4) of the Act directs attention that the supporting documentation would, if proved, justify the making of a continuing detention order or an extended supervision order. I propose to make the orders sought.

1. Order that two qualified psychiatrists conduct separate psychiatric examinations of Warren Graeme Hayter and that those two psychiatrists furnish reports to the Supreme Court of the results of those examinations on or before 4pm 20 September 2007.
2. I direct the defendant is to attend those examinations.
3. I list this summons for hearing on 25 September 2007. I note the estimate to be four days.
4. I direct that the plaintiff is to serve any evidence upon which the plaintiff relies no later than 4pm Monday 24 September 2007.
5. The parties have liberty to apply to the list judge on one day's notice.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.