NSW v Quinn [2008] NSWSC 1080 | Case summary

JUDGMENT - ex tempore 1 HIS HONOUR: The Attorney General seeks an extended supervision order against the defendant under s9 of the Crimes (Serious Sex Offenders) Act 2006. 2 On 10 August 2007, Hall J made a continuing detention order against the defendant for 12 months. The background to the present application is to be found in his Honour's judgment: see Attorney General v Quinn [2007] NSWSC 873 at [69] ff. There is no need to recite that background because the present application is the subject of a large measure of agreement between the parties. 3 Since his release after the continuing detention order, the defendant has been subject to interim supervision orders made by me. Before I could make the order now sought, I would need to be satisfied to a high degree of probability that the defendant is likely to commit a serious sex offence if he is not kept under supervision. Those are the terms of s9(2) of the Act. 4 I am so satisfied. The defendant has a significant history of sexual offending of escalating gravity, culminating in the aggravated sexual assault of a fifteen-year-old girl. It was at the end of his sentence in respect of that offence that Hall J made the continuing detention order to which I have referred. There is ample support for that conclusion in a body of expert opinion, psychiatric and psychological. Indeed, the defendant accepts as much and the extended supervision order is not opposed. 5 It is proposed that the order be accompanied by conditions set out in a Risk Management Plan which has been supplied to me. Those conditions are onerous in their totality but, in large part, they are appropriate. Again, the defendant accepts as much and there is relatively little dispute as to what they should be. The only issues I have to decide are, firstly, the length of the order and, secondly, the terms of a few of the conditions about which there has been argument. 6 Let me turn, first, to the duration of the extended supervision order. An important factor in that decision is the defendant's significant history of substance abuse, particularly of alcohol, which clearly has been associated with his offending. There is no argument about that and again it is not necessary to recite the abundant expert evidence on that topic. The maximum period for which an extended supervision order can be made is five years. 7 Dr O'Dea, in a report of September this year, expressed this opinion: Any community management plan should be long term and therefore at least five years in duration as Mr Quinn's risk of relapse of his alcohol abuse and his risk of engaging in further sex offending behaviour are long term issues.

I am not exactly sure what Dr Samuels meant by that rider. It could be interpreted to mean no more than periodic review of the conditions of an extended supervision order, but I think what the doctor meant was that the duration of the order should itself be subject to an annual review. 8 Professor Greenberg was more circumspect. In a report of June this year, he said no more than whether a five year period was required was a matter to be addressed by the courts. In an affidavit sworn in July, he said that the duration of the "ongoing support, supervision, maintenance, treatment and rehabilitation programs" for the defendant would depend on his response to them, and that it is impossible to "numerically quantify the duration" of such a program. He concluded: The best description of the duration is that it will be medium to long term. Attempting to alter Mr Quinn's behaviour will be a slow process. 9 Counsel for the defendant, Mr Johnston, argued that I should have regard for this purpose to the continuing detention order which the defendant has already served and the period of interim supervision to which he has since been subject. He submitted that orders under the Act have a punitive component, even though the purpose of the Act undoubtedly is protective, and that I should take those periods into account. 10 I would not approach the matter in that way, but it is important, as Mr Johnston put it, that the defendant "has worked in good faith to achieve the purposes of the Act". While subject to continuing detention, he completed the CUBIT program. He has been compliant with conditions of interim supervision. He has abandoned the pursuit of an inappropriate relationship with a woman much younger than him who is intellectually disadvantaged and, indeed, he has accepted certain conditions relating to her in relation to the current order. It can fairly be said that some progress has been made towards his rehabilitation and, in my view, that rehabilitation would be fostered by his seeing some light at the end of a tunnel. 11 I have given this matter anxious consideration and have concluded that the appropriate duration of the order is three years. I arrive at that conclusion aware that the Attorney and, indeed, the defendant are able to make application under s13 of the Act for variation of the order. I imagine that if he is not making the progress one would hope he does, the Attorney would take that course. 12 Let me turn, then, to the conditions about which there has been argument. In the course of argument a fair measure of agreement was reached about those. I refer now, of course, to the conditions set out in the Risk Management Plan. 13 Condition 5, as presently expressed, would require the defendant to inform his departmental supervising officer of his movements in advance on a weekly basis, or as otherwise directed by that officer. I consider that period of notice unreasonably long. I should say generally that the conditions currently proposed place a large amount of discretion upon the departmental officer, so as to afford them appropriate flexibility. I have no doubt that that discretion would be exercised responsibly but, again, in the interests of the defendant being encouraged to pursue his rehabilitation, I think that some parameters should be set, whilst still retaining an appropriate measure of flexibility. Accordingly, in respect of condition 5, I would require advance notice of two days, or 48 hours, of the defendant's movements. Otherwise, I would leave the condition as it stands. 14 Condition 7 requires the Commissioner's approval of any employment which the defendant may undertake. The preferable course, I think, and I do not understand the Crown Advocate to strongly maintain otherwise, is to place that discretion with the departmental officer. Accordingly, that condition will be that the defendant may undertake employment provided that has been approved by his departmental supervising officer. 15 Condition 10 restricts the defendant's access to licenced premises generally. It is agreed that there should be added a rider to that condition, to enable him to attend rugby league fixtures. A proposed rider has been supplied to me in a note by the Crown Advocate, which I understand Mr Johnston has accepted, and that will be added to condition 10. 16 Condition 12 requires the defendant to wear electronic monitoring equipment as directed by his departmental supervising officer. On its face, that condition could endure for the whole period of the order. I understand that that would be unlikely to happen, and that the supervising officer would be likely to effectively dispense with that condition within a reasonable time. Nonetheless, I think there is force in Mr Johnston's submission that some period ought to be imposed upon it. It is an onerous condition, significantly affecting his daily life, and I think it is reasonable that an upper limit be imposed upon its life. I propose that it be limited to the first 12 months of the extended supervision order. 17 Condition 25 would impose a curfew, again for the whole of the period of the order, subject to a discretion in the supervising officer to approve the defendant being at some other place during those hours. Yet again, I think it would encourage the defendant's compliance in pursuit of his rehabilitation if that condition were drawn with greater precision and certainty. Having said that, it is essential that it be flexible because I am aware that an important part of his supervision is the capacity for his departmental supervising officer to visit him unannounced. 18 Mr Johnston proposes a sliding scale over a 12 month period, after which there would no longer be a curfew, but accepts that there needs to reside in the supervising officer a discretion to impose one from time to time even after that period. The Crown Advocate's position is that there might be a sliding scale for the first 12 months, but some curfew should endure for the rest of the order, again subject to the discretion of the supervising officer. I propose to take the course advanced by Mr Johnston, comfortable in the knowledge that there is sufficient flexibility in the condition to ensure its effectiveness. 19 I had best read what I propose on to the record because the dates are now somewhat different from those suggested by Mr Johnston. The condition will now read as follows: The defendant must be at his approved address between the hours of the prescribed curfew, unless his presence at another place during those hours has been approved in advance by his departmental supervising officer. Subject to any direction by the departmental supervising officer about curfew hours, the prescribed curfew is as follows: From today, 2 October 2008 to 31 December 2008, 9.30pm to 6am; from 1 January 2009 to 31 March 2009, 10pm to 6am; from 1 April 2009 to 30 June 2009, 11pm to 6am; from 1 July 2009 to 30 September 2009, 12 midnight to 6am. There will be no curfew from 1 October 2009.

NSW v Quinn

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