Attorney General v Jamieson

(f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, …

(h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, … 31 Clearly, all those matters have been addressed. The basal consideration is the first of them, the safety of the community. As is spelt out in ss9 and 17, a final order for continued detention or extended supervision requires proof "to a high degree of probability that the offender is likely to commit a further serious sex offence …". The standard of proof encompassed by those words was examined briefly by McClellan CJ at CL in Gallagher at [33]-[36], and by Hall J in Quinn at [24]-[25]. I need say no more than that it appears to be a high standard, although falling short of the criminal standard, appropriate for the gravity of the matter at issue, that is, the detention or supervision in the community of a man whose sentence has expired: cf Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J (as he then was) at 361 - 2. 32 As I have said, by s16(1)(b) the question to be decided in the present application was whether the material before me, untested and unrebutted, could meet that standard of proof. Clearly, it could. As Hoeben J observed in Tillman at [16], the test on an interim application is "similar to the requirement for a prima facie case to be made out in committal proceedings". 33 In so saying, I am mindful of the fact that the preponderance of the material I have is the expert evidence of psychologists. In proceedings for a final order evidence of that kind would be valuable but, most likely, would not be determinative of the question to be decided. No doubt, there would be additional evidence, perhaps from the defendant himself, perhaps from other experts. The reports I have leave unanswered questions such as the effect upon the likelihood of the defendant's re-offending of his more advanced age and his lengthy period of incarceration. However, as Mr Babb pointed out in argument, there is nothing before me touching on matters of that kind. Nor, it seems, could there be. I have had no choice but to decide this interim application on the limited material I have. 34 There is nothing to suggest that the long delay between the defendant's referral to CUBIT and his being offered a place in the program is attributable to any conduct on his part. If that is so, it is most disturbing. More importantly, it is regrettable that an intensive course such as CUBIT is not available to the defendant in the community. (One wonders whether he would maintain his opposition to such a program if it were.) That, however, is not a matter germane to my decision, for the reasons articulated by McClellan CJ at CL in Gallagher at [77]. 35 Mr Cook submitted that I should not make an interim detention order unless I was persuaded that it was the only option, and that the community would not be adequately protected by an interim supervision order. He referred to s17(3) of the Act, and the decision of Hasluck J in Director of Public Prosecutions for Western Australia v Mangolamara [2007] WASC 71 at [178] ff. That was an application for a continued detention order or a supervision order under the Dangerous Sexual Offenders Act 2006 (WA). What Hasluck J there said is valuable but, putting aside the fact that his Honour was considering different legislation from that with which I am concerned, he was dealing with an application for a final order. An interim detention order had previously been made by Blaxell J: [2006] WASC 172. 36 As I have said, an interim detention order may be made under s16(1)(b) where the Attorney's material, if proved, would justify the making of a continuing detention order or an extended supervision order. In any event, the fact that the form of treatment said to be most appropriate for the defendant is not available outside the prison system is a matter of concern, although that does not necessarily mean that he could not effectively be supervised in the community. Mr Cook put no other discretionary matter, such as delay, in opposition to an order. 37 All that said, it is in the light of very recent developments that I decided that a short interim detention order was appropriate. As I have said, when I heard argument two days ago I was informed that the defendant is likely to be deported upon his release. That position was confirmed yesterday but, in addition, counsel became aware only then that he has recently been charged with further sexual offences. These may well be the charges which he foreshadowed in 2004. 38 I took the view that, interim detention being available on the evidence, a period of 7 days was desirable and would allow further information about the defendant's position to be gleaned. If fresh charges are to proceed, the question of bail will arise. He would not oppose deportation and, if the charges do not proceed, it seems that he would be promptly returned to his country of origin. 39 Mr Babb submitted that I should, nevertheless, make an interim detention order for the period of 28 days sought by the Attorney. He noted that, by s19(1) of the Act, such an order could be varied or revoked in the light of developments. However, I was unwilling to make an order of such significance in circumstances where it might prove unnecessary. I directed that the matter be listed before me on Thursday next, 17 May, to review the situation and entertain any further application which might be made.

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