HIS HONOUR: On 6 September 2016, the State of New South Wales filed a summons naming William Bird as the defendant. The summons sought four types of relief. First, it sought an order under s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the "Act") appointing two qualified psychiatrists to examine Mr Bird. Second, the State sought an interim detention order under s 18A of the Act to date from 10 December 2016 or, in the alternative, an interim supervision order. Third, the State sought a continuing detention order ("CDO") against Mr Bird. Fourth, as an alternative to the CDO or in conjunction with it, the State sought an Extended Supervision Order (an "ESO").
The matter was listed before me today in the duty list primarily to deal with the first two forms of relief that were sought. When the matter was called on, I was advised that a final hearing for the summons had been fixed on 30 November 2016, which is prior to the expiry of Mr Bird's sentence. This rendered otiose the second form of relief that was sought.
Counsel for Mr Bird indicated that there was no opposition to the first form of relief, namely, the order appointing two psychiatrists and stated the only matter that had to be determined between the parties was the directions necessary to have the matter ready for final hearing.
However, it was accepted that, notwithstanding the position of the defendant, it was necessary for the Court to satisfy itself of the criteria for the making of the order. For the reasons that follow, I am satisfied that it is appropriate and necessary to make that order.
Before explaining the statutory regime, it is necessary to note the factual material placed before the Court on the application. This material is recounted in circumstances where the relevant test at a preliminary hearing requires the Court to effectively accept the matters alleged in the supporting documentation. None of what follows amounts to any final finding of fact.
On 15 June 2012, Mr Bird pleaded guilty to an indictment that charged him with an attempt to have sexual intercourse without a person's consent knowing that they were not consenting, and at the time inflicting bodily harm upon his victim, contrary to ss 61J and 61P of the Crimes Act 1900 (NSW).
On 5 September 2012, Mr Bird was sentenced to a term of imprisonment of six years, commencing 11 December 2010 and expiring 10 December 2016. The court fixed a non-parole period of three years and nine months, which expired on 10 September 2014. However, Mr Bird was not released on parole and there does not appear to be any suggestion that he will be released on parole prior to the final expiry of his sentence on 10 December 2016. In sentencing Mr Bird, the court also took into account, on a "Form 1", a charge of stealing property from a home near to that occupied by the victim.
It is unnecessary to set out the details of the offence. It suffices to state that, according to the facts that were tendered, at around midnight on 10 December 2010 Mr Bird walked the back streets in Urbenville, probably intoxicated, and entered the victim's home from an open window. He went to the victim's bedroom. She was assaulted. The victim was fifty-eight at the time of the offence. Mr Bird was twenty-two. The facts disclose that he attempted to rape her. In doing so, he held his forearm to her throat and during the assault the victim's head struck the bedside cabinet and she had difficulty breathing. Needless to say, the facts reveal a very serious act of sexual violence.
Section 17(4) of the Act requires that consideration be given to not just the applicant's criminal convictions but his criminal history of offending.
The supporting material stated that when Mr Bird was fifteen he was charged with sexual offences arising out of an incident when he went to an hospital in Queensland and attempted to rape a woman who was a patient in bed in a vegetative state. It is also alleged that some weeks later while on bail he forced his way into a home and attempted to rape or indecently assaulted a woman who resided there. Mr Bird was eventually found unfit to be tried on these charges.
Otherwise, his criminal record in Queensland reveals a number of other offences being committed as a juvenile. They are not of significance in this application.
Mr Bird is now twenty-six years of age. The material that was provided by the State reveals that he was offending from a young age and is affected by an intellectual disability.
Placed before the Court was a Risk Management Report. The report is undated but appears to be prepared this year. It states that Mr Bird's family support is in Queensland but he lacks any such support in New South Wales. It recites that he only commenced the sex offenders program ("SOP: SR") in November 2015. Apparently this program takes twelve to eighteen months to complete. The report stated that it is uncertain as to whether Mr Bird will complete the program prior to his sentence expiring. The report noted Mr Bird's intellectual disability which I referred to. It describes him as being in the extremely low range of intellectual functioning.
The report stated that an assessment of his risk of offending reveals that Mr Bird is in the medium to high risk category of repeat sexual offending. The report reveals risk factors and identifies a number of significant limitations on any supervision strategy.
The assessment of Mr Bird's risk of re-offending in the risk management report was extracted from a risk assessment report prepared on 27 May 2016, which was also tendered. The report considered that his risk of offending was related to his level of intoxication. Consistent with what I said earlier, the report states, "Mr Bird presents an overall high risk of sexual offending relevant to other male sexual offenders" and hypothesises that risk significantly increases when Mr Bird is intoxicated "seemingly most likely wandering alone engaging in sexual thoughts having noticed female potential victims whom he considered sexy based on their clothing."
The report also states that given the current lack of management strategies, "it is considered necessary that Mr Bird currently complete his SOP: SR program".
Section 13B of the Act provides that an application for a high risk sex offender CDO can only be made in respect of "a detained sex offender". In the light of Mr Bird's conviction in 2012 and the fact that he is still serving a sentence, there is no doubt that he is "a detained sex offender" (see s 13B(2)(a)).
Section 14 specifically requires an application for a CDO to specify whether the application is for a high risk sex offender CDO or a high risk violent offender CDO, as well a requirement that it be supported by the documentation referred to in s 14(3). The application clearly meets that criterion.
Section 15(4) obliges the Court to make orders appointing either two qualified psychiatrists, two registered psychologists or a combination thereof to examine an offender if "following a preliminary hearing it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order".
I have earlier referred to so much of this contest that refers to the "matters alleged in the supporting documentation if proved". This confirms that the Court must accept the matter stated in the material accompanying the application. The reference to the making of a CDO or a ESO directs attention to whether that material, if proved, would demonstrate that Mr Bird is a "high risk sex offender" as this is the common criteria for the making of either a CDO or ESO (see ss 5B(1), 5C(1) and 5D(1)). The offender is a high risk sex offender if the Court is satisfied to a high degree of culpability that the offender poses a serious risk of committing a serious sex offence if they are not kept under close supervision (s 5B(2)).
A consideration of the matters alleged in the documentation to which I have referred fully confirms that test is met.
Mr Bird has a history of random sexual assaults and his circumstances suggest that, at the very least, if he is not supervised then he poses an unacceptable risk of committing a serious sexual offence.
It follows that the Court is obliged to make the order appointing two psychiatrists under subs 15(4) to examine Mr Bird. If it is not otherwise obvious, nothing in this judgment constitutes a determination that the appropriate form of relief that should be ordered is either a CDO or an ESO or a combination of both.
Accordingly, the Court makes the following orders:
An order pursuant to s 15(4) of the Act appointing two psychiatrists, Dr James and Dr Charlie Chew to conduct separate examinations of the defendant and to furnish reports to the Court on the result of those examinations of 24 October 2014.
Direct the defendant to attend those examinations.
The plaintiff to file any evidence and written submissions on which he will rely for the final hearing by 9 November 2016.
The defendant to file any evidence and written submissions on which it will rely at a final hearing by 28 November 2016.
On or before 18 November 2016, the defendant to file and serve a statement of all the real issues in dispute for the final hearing, such statement to be no longer than one page.
The final hearing to be listed on 30 November 2016 with an estimate of one day.
Liberty to apply on two days' notice.
An order pursuant to s 77 of the Crimes Administration of Sentence Act 1999 (NSW) for the defendant to attend the final hearing on 30 November 2016 by video-link.
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Decision last updated: 07 October 2016