State of New South Wales v Graeme Allan Reed

Judgment 1These are proceedings brought by the State of New South Wales for orders under the Crimes (Serious Sex Offenders) Act 2006. That Act confers power upon the court, in certain circumstances, to make an order for the extended supervision of sex offenders for a period of up to five years after the conclusion of a sentence of imprisonment. 2The Act also makes provision for the making of a continuing detention order. However, no such order is sought in the present case. A continuing detention order may only be made if (among other things) the court is satisfied that adequate supervision will not be provided by an extended supervision order. There is no such suggestion in the present case and indeed Mr Reed is presently on release on parole and subject to the supervision of the State Parole Authority. 3The Act requires the court to conduct a preliminary hearing into the application within 28 days after it is filed. The future conduct of the proceedings is mandated by the outcome of the preliminary hearing. If, following the preliminary hearing, the court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the court must make certain orders for the appointment of experts to conduct psychiatric or psychological examinations of the defendant and to report the results of those examinations to the court: see s 7(4) of the Act. If the court is not satisfied in the terms of s 7(4), the court must dismiss the application: see s 7(5) of the Act. 4This judgment records the outcome of the preliminary hearing in the present proceedings. The hearing was greatly facilitated by the careful written submissions provided on behalf of the State and the defendant's response to that document. The written submissions provide a comprehensive summary of the matters alleged in the supporting documentation. On behalf of Mr Reed it was indicated, without making any admission or concession as to the appropriateness of the final relief sought by the State, that he accepts the accuracy of that summary and accepts that those matters would, if proved, justify the making of an extended supervision order. In those circumstances, again without concession or admission, Mr Reed consented to the making of orders under section 7(4). 5Mr Reed's consent to the orders sought does not of course obviate the need for the Court to determine whether it is satisfied in the terms of the section. It does, however, enable the Court to make that determination with a measure of confidence that the Crown's submissions may readily be accepted. 6The task of assessing whether the matters alleged by the State would (if proved) justify the making of an extended supervision order must be informed by the provisions of section 9(3) of the Act, which contains a list of mandatory considerations in determining whether or not to make an extended supervision order. 7It is also necessary to have regard to the test for making an extended supervision order. Section 9(2) of the Act provides: 9(2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. 8As I noted in State of New South Wales v Richard John Darrego [2011] NSWSC 360, the test as formulated in s 9(2) is a new test introduced by the Crimes (Serious Sex Offenders) Amendment Act 2010, which took effect from 7 December 2010. The previous formulation of the test required to be addressed in determining whether to exercise the power to make an extended supervision order (and other powers under the Act) was expressed in terms of whether the offender was "likely" to commit an offence of the specified kind. 9The Court of Appeal had held in Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327 that, in order to be satisfied in those terms, the Court was not required to be satisfied that it was more likely than not that such an offence would be committed. In other words, the test did not require a degree of probability exceeding fifty per cent (at [88] to [90] per Giles and Ipp JJA; Mason P disagreeing at [8] to [18]). The principle there accepted by the majority is now reflected in s 9(2A), which was introduced as part of the amendments made last year to which I have referred. 10In Darrego, after considering the decision of R A Hulme J in State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118, I expressed the view (at [8] and [11]) that it may be preferable not to dilate upon the circumstances that would satisfy the statutory test. I said that the task for the court is to form a judgment, after considering the relevant risk, as to whether that risk is unacceptable. 11I also suggested, perhaps incautiously, that the court's approach to that task "might be informed by the jurisprudence in the field of medical negligence proceedings as to the obligation of a medical practitioner to warn a patient of a material risk inherent in proposed treatment. In that context, there is a useful discussion of the notion of risk in the judgment of Gummow J in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at 453 to 456, [60] to [69]". 12Those remarks were understood by Simpson J in State of New South Wales v Conway [2011] NSWSC 588 as suggesting that the notion of "material risk" in the field of medical negligence should be imported into the test under section 9(2). That was no doubt due to poor expression on my part, but I intended to state no such proposition. On the contrary, the point I was endeavouring to make in my decision in Darrego was that it is undesirable to embroider the plain words of the section with any gloss. The only point of my referring to the jurisprudence in the field of medical negligence was for the assistance there provided, particularly in the judgment of Gummow J to which I referred, in understanding the various dimensions of the notion of risk. 13Since my decision in Darrego , there have been two final decisions in which extended supervision orders have been made under section 9(2) in its amended form, applying the test of "unacceptable risk". In New South Wales v Thomas (Final) [2011] NSWSC 307, R A Hulme J concluded at [58] that the case before his Honour did not call for a detailed analysis of the new formulation. His Honour was satisfied that: giving the words their everyday meaning, in the context of the provision in which they appear, and having regard to the objects of the Act, it is plain on any view that there is a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if not kept under supervision. 14In State of New South Wales v Richardson (No 2) [2011] NSWSC 276, Davies J referred to two decisions of the Western Australian Court of Appeal and evidently accepted, on the strength of those decisions, that the assessment of "unacceptable risk" involves: a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. 15In the proceedings before me, the State respectfully submitted that it may be appropriate to treat the interstate authorities (and, implicitly, the decision of Davies J to the extent that his Honour relied upon those authorities) with caution. It was submitted that the impact of an order on the offender is not a factor in the relevant balancing exercise, which focuses rather on assessment of factors relevant to the content of the risk itself (such as the degree of risk and the likely consequences if an offence is committed). 16It is not necessary for present purposes to resolve that issue. Approaching the matter as I did in Darrego (and as I understand R A Hulme J ultimately to have approached the question in Thomas (Final) ) , I am satisfied that the matters alleged by the State in the present case would, if proved, justify the making of an extended supervision order. In reaching that conclusion, I emphasise that it is no part of the Court's function in the present stage of the proceedings to assess the probative weight of the matters alleged. The application proceeds on the assumption that the matters would be proved and without regard to any evidence that the defendant may call. It is not a prediction of the final result in the proceedings. 17I have considered the factors listed in section 9(3) of the Act and particularly those addressed in the written submissions provided on behalf of the State. 18A significant factor is the defendant's criminal history. The defendant has convictions for ten serious sexual offences involving five separate victims and five separate occasions ranging from June 1987 to August 2005. In each case the victim was a young adult female. On each but the last occasion the defendant used a knife to force submission on the part of the victim. 19It is not necessary for present purposes to recite the detail of those offences, which is set out at length in the State's written submissions. 20Separately, it is appropriate to have regard to the views of the Court that sentenced the defendant for the offence for which he is currently serving a sentence of imprisonment. In her remarks on sentence Judge Flannery said: It appears that although the offender was eligible for release at the expiration of his six year minimum term in respect of the 1995 matters, he was not in fact released until after he had served the total sentence of nine years. The result was that he had no supervision at all after what was effectively a seventeen year sentence. One cannot help but think if he had been supervised, we might not be here today. I propose to find special circumstances, as I believe that the offender needs regular monitoring over an extended period. 21It is also relevant to have regard to the fact that the offender committed offences in 1995 whilst on parole in respect of the offences committed in 1987. Separately, perhaps alarmingly, I note that the defendant served the full term of his sentence in respect of the 1995 offences because he did not wish to be subject to parole supervision. 22The offender has undertaken a series of individual sessions and departmental programmes directed to his sexual offending. For present purposes it is perhaps enough to record that he has committed offences after undertaking the CUBIT programme. He has since undertaken that programme again. His participation in the programme for the second time was described as "varied". 23I have had regard a series of psychiatric assessments. It is not necessary for present purposes to record the detail of all of the relevant reports. Significantly, as recently as September 2009, the defendant was assessed as meeting the diagnostic criteria for sexual sadism. 24The defendant presently takes anti-libidinal medication but there is some evidence to suggest that the continuation of that treatment may be contra-indicated by the possible presence of a deep vein thrombosis. There are also some unhappy side effects of that medication with which the defendant is presently struggling. 25Finally, I have had regard to the risk assessments conducted in respect of the defendant. It is perhaps enough for present purposes to refer to the report dated April 2011 of Mr Patrick Sheehan, senior specialist psychologist with Corrective Services. Mr Sheehan summarised his findings as follows: Mr Reed is a 47 year old male who has been convicted on three separate occasions of sexual offences against adult women. There are a total of five adult female victims. Mr Reed completed an intensive custody-based sex offender treatment program in 2000, but subsequently reoffended 1.5 years after release. He has undertaken that program for a second time during his current sentence. He is currently taking antilibidinal medication to reduce his sex drive and receiving weekly psychological therapy in a specialised treatment program. He is intensively supervised by the Community Compliance and Monitoring Group, subject to electronic monitoring and GPS monitoring. He resides in a fully staffed Community Offender Support Program facility, within which he is subject to curfew. The totality of file information indicates some improvements in Mr Reed's behaviour relative to his presentation during previous sentences. Under the current supervision conditions, Mr Reed's risk may be considered well managed. Despite his expressions of confidence, in the absence of this intensive support and supervision, it is unclear whether Mr Reed would have the ability to independently manage his risk successfully. I consider Mr Reed a high risk of sexually reoffending relative to other male sex offenders. The combination of recurrent deviant sexual interest, poor self-regulation, and entrenched desire to dominate women when experiencing negative affect, have predisposed Mr Reed to sexual violence against women throughout his adult life. The mitigation of true risk will require community supervision and support until such a time that Mr Reed can reliably demonstrate the ability to respond effectively to life stressors without recourse to the pathological coping behaviours associated with his sexual offending. 26My consideration of those factors leads me to be comfortably satisfied in the terms of section 7(4) of the Act. It follows that I must make the orders sought by the State today.