State of New South Wales v Hayter

Supreme Court of NSW|2008-04-28|Before: Hislop J

Introduction 1 The plaintiff has applied, by summons filed on 6 March 2008, for an order pursuant to s 17(1)(b) of the Crimes (Serious Sex Offenders) Act, 2006 ("the Act") that the defendant be subject to a continuing detention order for a period of up to five years from the date of the order. 2 When the application was made the defendant was in custody in a correctional centre pursuant to an existing continuing detention order for a period of six months made on 16 October 2007 ("the October judgment") The continuing detention order followed a gaol term of three years three months for a serious sex offence as defined in s 4 of the Act. 3 On 18 March 2008 I made an order, by consent, for the interim detention of the defendant pursuant to s 16 of the Act. Such order was to commence on 15 April 2008 and expire on 13 May 2008. 4 The evidence before the court at the time of the October judgment established to a high degree of probability that the defendant was likely to commit a further serious sex offence if he was not kept under supervision and that adequate supervision would not be provided by an extended supervision order. 5 The psychiatrists and psychologists who gave evidence at that time were unanimously of the opinion that the defendant required treatment, both psychological (through the CUBIT programme) and by way of anti-libidinal medication and that in the absence of successful treatment, it was highly likely the defendant, if released into the community, would pose a significant threat to the safety of the community by reason of his high risk of reoffending. 6 The CUBIT programme was, and is, only available to persons in custody and whilst the medication could be prescribed and monitored either in custody or in the community, there were identifiable benefits in commencing the medication in a controlled custodial environment. 7 The defendant had commenced the CUBIT programme prior to the October judgment. The best estimate of the period of treatment required at that time was six months within which it was anticipated that the CUBIT programme would be completed and the defendant stabilised on anti-libidinal medication. It was recognised that a longer period may ultimately prove necessary, in which event a further application by the Crown would be made. 8 The defendant's background and the reasons for the imposition of the continuing detention order are fully set out in the October judgment - see Attorney General for the State of New South Wales v Hayter [2007] NSWSC 1146.

The CUBIT programme 9 The defendant continued in the CUBIT programme following the October judgment until January 2008. At that time a claim was made by another CUBIT participant that the defendant had threatened his safety. The claim was investigated, a non-association alert issued and on 25 January 2008 the defendant was suspended from CUBIT. As a result the defendant is unable to return to the CUBIT programme whilst the other offender is participating therein. The estimated completion date for the other offender is mid to end May 2008. 10 The defendant's progress in the CUBIT programme during the period October 2007 to 25 January 2008 was described by his primary therapist as poor. Although some gains were made, the defendant had not undertaken or satisfactorily completed a number of the components within the programme. 11 Particular problems were noted in that:

(a) In December 2007 it was noted that the defendant had engaged in sexually inappropriate behaviours, entering inmates' cells, watching inmates in showers, writing inappropriate sexual letters, forming unhealthy relationships and disobeying directions of custodial staff.

(b) On 23 January 2008 it was noted the defendant had been making threats to harm inmates, disrespecting boundaries, engaging in sexually inappropriate behaviour and breaching CUBIT community rules.

(c) In August 2007 the defendant had been found to have possession of inappropriate material, including a list of names, descriptions and schools of school children taking part in a television programme. He said he used the information to fantasise over the children and was recording the names and details of the children to target future victims and was planning to offend when released from custody. This material had raised significant concerns, which concerns were ongoing.

(d) On 23 January 2008 a list of 127 DVD movies, many depicting male children, was found in the defendant's cell together with a document by him entitled "Snake Identifying Programme". These documents were in the defendant's handwriting. The latter purported to be a business plan for snake handling mentoring. A section of the document involved asking persons (relating to adoption of an animal) if the animal is for a child, the child's name and age, together with the address of the relevant adult. The defendant said in relation to the list of DVDs that he was planning on watching them when released. An exchange occurred as follows: "Q. What is the list of DVDs about? Defendant: Male/child actors. Q. Why is this inappropriate? Defendant: I might…would start fantasising."

The defendant also said that he was scared and in fear of letting go of his offending behaviour because it had been a big part of his life and that he liked the "old me". He didn't like the "new me". Also found in his cell at that time was a page taken from "That's Life" magazine containing pictures of young children. The defendant denied any knowledge of this document.

(e) On 18 April 2008 a handwritten letter containing sexually explicit language and details was found in the defendant's cell. Although the letter was not written by him, the defendant acknowledged the letter was for him and he stated that the letter may be problematic because "it can arouse me or cause me to slip back into my old ways". The letter is of concern because of its sexually explicit nature and because the defendant acknowledged it could arouse him and could cause him to slip back into his old ways. Additionally, if he had had the letter in his possession for eighteen months, as he said he did, without disclosing it, this would have been contrary to the spirit of the programme which seeks to build a relationship of trust and openness. 12 Since his suspension from the CUBIT programme, the defendant has had no treatment but has participated in four motivational sessions with Ms Senior aimed at determining whether he is ready to resume the CUBIT programme. The defendant has engaged satisfactorily in these sessions. The defendant has expressed a strong desire to return to the CUBIT programme as soon as possible. He told Dr Allnutt he believed he needed to remain in CUBIT and intended to do so. He told Dr Samuels he wanted to finish the CUBIT programme. The defendant estimated he would require a further 6-8 months to do so. Ms Senior stated the aim is to have him return to the programme. Once the other offender leaves the CUBIT programme and the security order is removed, a review process will take place to determine if the defendant will re-enter the CUBIT programme.

Anti-libidinal medication 13 The defendant was commenced on anti-libidinal medication on 30 November 2007, initially at an oral dosage of 50 mg per day, reduced to 25 mg per day on or about 17 January 2008. He remains on this regime at present. 14 The perceived benefit of such medication is to reduce the defendant's sex drive and interest in sex. It also, by reducing his preoccupation with sexual matters, may allow him to concentrate more on the CUBIT programme with better results. 15 Blood tests since 30 November 2007 have confirmed a significant reduction in the defendant's testosterone levels. 16 The defendant said that he had noted a reduction in his fantasies and the strength of associated sexual urges with less preoccupation with sexual matters. He said he believed his sexualised thoughts were more controlled on medication. 17 However, notwithstanding the reduction in his biological drive, a range of aberrant behaviours continue to be noted, many of which appear to be sexualised. This suggests that some of these behaviours are significantly entrenched and that in addition to biological factors, psychological factors are also driving these behaviours. Dr Samuels suggested a different form of medication may assist. 18 The defendant acknowledged to Professor Greenberg that he was still having fantasies of children, though less in number, and that he was still having fantasies of 13 year old boys.

Mr Sheehan 19 Mr Sheehan is a registered psychologist employed by the New South Wales Department of Corrective Services. He had assessed the defendant for the purpose of the previous application and had concluded that the defendant presented a high risk of sexually reoffending relative to other adult male offenders. He also regarded the defendant as having a demonstrated capacity to reoffend during periods of supervision. 20 Mr Sheehan reviewed the defendant for the purposes of the current application and stated he remained of the views he had previously expressed. 21 In his opinion, the likelihood of a positive outcome for the defendant would be maximised were he afforded the opportunity to return to the CUBIT therapeutic community and continue both psychotherapeutic and anti-libidinal interventions for an uninterrupted period until such time as he was better equipped to manage in a lawful community life. It was difficult to gauge how long this might equate to in real terms, as it was primarily contingent on the defendant making a sustained commitment to change in a way not yet observed. Mr Sheehan estimated that twelve months may provide a safe period for the defendant to make observable progress in CUBIT without placing unreasonable pressure on him to make changes in a brief period. In the event that he could successfully complete the programme before this time, he could participate in the custodial maintenance programme and start working towards generalising treatment gains into his daily life outside the CUBIT therapeutic community, but within the secure environment of the Metropolitan Special Programs Centre.

Ms Senior 22 Ms Senior was not requested to provide a risk assessment. She was of the opinion that a further period of six months in the CUBIT programme was reasonable and, if successfully completed, a further period in the custodial maintenance programme thereafter would be preferable before the defendant returned to the community.

The evidence of psychiatrists 23 The court appointed psychiatrists each noted the defendant was cooperative on interview. There is a suggestion the defendant was not completely frank with his history to Dr Allnutt.

Dr Samuels 24 Dr Samuels had given evidence in respect of the previous application. 25 He reviewed the defendant for the purpose of the present application. He concluded: "My view is essentially unchanged and in fact reinforced by the events that have transpired since my last assessment that Mr Hayter is a high risk sex offender and that there is a high probability that he is likely to commit a further serious sex offence if he is not kept under supervision and that adequate supervision will not be provided by an extended supervision order at this time. Although I am not entirely convinced that Mr Hayter is highly motivated to participate in psychologically based treatment, I think it will be important for him to be given the opportunity to participate either in the remainder of the CUBIT programme or in some form of individually based psychological treatment before a decision is made to release him into the community." 26 As to the anti-libidinal medication, he said: "The literature suggests that in up to 80 percent of cases a good biological response to this medication can be achieved ie, a reduction of testosterone to about one-third of its prior level, although this is generally associated with a decline in sexually deviant fantasisation and behaviour. … What is of concern however is the fact that despite this reduction in his biological drive, a range of aberrant behaviours continue to be noted, many of which appear to be sexualised. This suggests that some of these behaviours are significantly entrenched and that in addition to biological factors, psychological factors are also driving these behaviours."

Professor Greenberg 27 Professor Greenberg reported on the previous application that: "I am of the opinion that Mr Hayter's risk of committing further serious sexual offences over the next few years should he be released back into the community without adequate suitably completed basic treatment, strict supervision and a comprehensive community management plan, would be extremely high at this point of time. I am of the opinion that Mr Hayter should complete the CUBIT programme which provides an underlying psychological basis for providing him with internal self managed controls to assist him in controlling his sexual offending behaviour. I am of the view that he requires anti-libidinal medication in the long term to assist him with his paraphiliac sexual urges and drives." 28 Professor Greenberg reviewed the defendant for the purpose of the present application and concluded that his conclusions and recommendations documented in his previous psychiatric report were still valid at this time. 29 Professor Greenberg obtained a history on 2 April 2008 from the defendant that the defendant was still having paedophilic fantasies of children. Professor Greenberg concluded the psychological and biological treatment to address the defendant's deficits in sexual self regulation were currently having a minimal impact. In his opinion, the dosage of anti-libidinal medication of 25 mg per day was too low to provide a clinically effective result, a much higher dosage was required. He considered total testosterone levels were a poor measure of sex drive. 30 In Professor Greenberg's opinion the defendant should be given the opportunity for an adequate trial of anti-libidinal medication, and it would take approximately three months to stabilise him clinically. He should also complete the CUBIT programme before being considered for release into the community.

Dr Allnutt 31 Dr Allnutt's evidence on the previous occasion was that, in his opinion, the defendant fell into a high risk group for offending. He did not regard it as feasible to safely manage the defendant in the community without almost continual supervision. He considered that the defendant should continue the CUBIT programme and, additionally, anti-libidinal medication should be introduced. 32 Dr Allnutt reviewed the defendant for the purpose of this application. He concluded: "With regard to his risk for future recidivism, it is possible that his risk profile has changed due to a reduction in his sex drive; but this cannot be reliably stated at this stage because of the unreliability of his self report. Objective evidence of stabilisation in his behaviour is required to assist in such a determination."

The defendant's case 33 The defendant did not give or call any evidence. He was represented by experienced senior counsel who accepted that a further order under s 17(1)(b) of the Act "has to be made" and that "given the evidence it would appear that a period of 12 months would be an appropriate length for that order". The plaintiff agreed with such an approach and did not press for an order for continuing detention exceeding twelve months on the present application.

Consideration 34 Section 3 of the Act has been amended. It now provides: "(1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation." 35 In determining whether or not to make a continuing detention order, I have had regard to all relevant matters, including all of the matters listed in s 17(4) of the Act. These matters are referred to in the October judgment and, insofar as there has been any relevant change, in this judgment. 36 Three issues arise for determination in respect of the application. Those issues are considered hereunder:

(a) Whether the court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision. 37 In Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327 the majority of the Court of Appeal held the term "likely" "denotes a high degree of probability, but not necessarily involving a degree of probability in excess of 50 percent; that is, such likelihood need not be more probable than not." 38 The defendant has a record, extending over many years, of committing serious sex offences when unsupervised. Appropriate treatment has not been completed. The experts appointed by the court, confirm that at the present time the defendant is highly likely to commit a serious sex offence or offences if he is not kept under supervision. The defendant has called no evidence to rebut that opinion. Indeed, it is accepted by the defendant that this requirement is established on the evidence. I accept the expert opinion. 39 I am satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision.

(b) Whether the Court is satisfied to a high degree of probability that adequate supervision will not be provided by an extended supervision order 40 There remains some uncertainty as to the precise meaning of "adequate supervision". However, it is unnecessary to determine that issue in this case. 41 The defendant has a history of opportunistic offences against young boys, who very often are unknown to him. The offences frequently occur in public places. The expert evidence before me is unanimous that the defendant requires successful treatment, both psychological and by way of anti-libidinal medication. In the absence of such treatment, it is highly likely the defendant, if released into the community, would pose a significant threat to the safety of the community by reason of his risk of reoffending. 42 The conditions attaching to an extended supervision order, in order to be effective, require compliance by the offender. There is no evidence that the defendant intends to comply with such conditions if imposed upon him and the defendant's history suggests that compliance may not be forthcoming. 43 It is very difficult, if not impossible, to protect the community from crimes of the nature here in issue short of having the defendant under full time physical surveillance. 44 Whilst electronic and GPS monitoring of the defendant's whereabouts is available, this does not allow for immediate and rapid response and provides little protection if a person is intent on committing an offence. 45 The expert evidence confirms that adequate supervision will not be provided by an extended supervision order. The defendant has submitted that the Court should accept that evidence and does not seek to argue to the contrary. I accept the expert evidence. 46 I am satisfied to a high degree of probability that adequate supervision will not be provided by an extended supervision order.

(c) The period of the detention order 47 The defendant has stated that he wants to complete the CUBIT programme. He considers this will take 6-8 months. The medical opinion is that the defendant should complete that programme. There is evidence (Mr Sheehan) that the defendant would require 12 months to complete the CUBIT programme. There is evidence from Ms Senior that six months would be the optimum period. The starting date for resumption of the CUBIT programme is uncertain. At the earliest it may be the end of May 2008. At the conclusion of the CUBIT programme it is reasonable the defendant undergo a period in a maintenance programme in custody to confirm that he is ready to resume life in the community. The time to be spent in custody on the maintenance programme is unclear. The defendant has suggested that 12 months would be an appropriate period for the detention order and the plaintiff has concurred in this. I also accept that a period of 12 months is appropriate, noting that s 19 of the Act empowers the court, on the application of either party, to vary or revoke a continuing detention order. 48 It was not submitted that there was any discretionary consideration militating against the making of a continuing detention order. In my opinion it is appropriate to make a continuing detention order for a period of 12 months.

Orders 49 1. I order that Warren Graeme Hayter be detained in a correctional centre for twelve months from today.

Pursuant to s 20(1) of the Act, I issue a warrant for the committal of Warren Graeme Hayter to a correctional centre for the duration of the continuing detention order in order 1 above. **********

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.

CITATION : State of New South Wales v Hayter [2008] NSWSC 394

CASES CITED : Attorney General for the State of New South Wales v Hayter [2007] NSWSC 1146 Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327

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