State of New South Wales v Hippett

Supreme Court of NSW|2016-08-19|Before: Garling J

Judgment

By a Summons filed on 25 July 2016, the State of New South Wales ("the State") seeks orders pursuant to the Crimes (High Risk Offenders) Act 2006 ("the HRO Act") that the defendant, Mr Hippett, be subject to a continuing detention order for a period of 18 months from his proposed date of release, and thereafter subject to an extended supervision order for a period of 3½ years. Mr Hippett opposes the orders which are sought.
Because Mr Hippett is still in custody, and is not due to be released until 20 September 2016, the State seeks interim relief. Relevantly, for the purposes of this judgment, the State seeks the following orders: "(1) An order pursuant to s 15(4) of the [HRO] Act: 1. appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant, and to furnish reports to the Supreme Court on the results of those examinations by a date fixed by the Court; 2. directing the defendant to attend those examinations. (2) An order pursuant to s 18A of the [HRO] Act that the defendant be subject to an interim detention order from the date of his proposed release from custody for a period of 28 days. (3) An order pursuant to s 20(1) of the [HRO] Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in (2) above. ... (7) In the alternative to paragraphs (2) and (3) above, an order pursuant to s 10A of the [HRO] Act that the defendant be subject to an interim supervision order from the date of his proposed release from custody for a period of 28 days and pursuant to s 11 of the [HRO] Act direct that for the period of the interim supervision order, the defendant comply with the conditions set out in the Schedule to this Summons."
For the reasons which follow, I am of the opinion that the State has made out its case for interim relief and an interim detention order, and other consequential orders ought to be made.

Index Offence

Mr Hippett is currently serving a sentence of imprisonment imposed on 24 October 2014 by Lerve DCJ in the District Court at Walgett.
On 28 April 2014, Mr Hippett pleaded guilty to an offence of aggravated break and enter and commit a serious indictable offence in breach of s 112 of the Crimes Act 1900. That offence occurred about a year earlier on 9 March 2013 at Walgett in NSW.
The total sentence imposed by Lerve DCJ was 3 years and 6 months, commencing on 21 March 2013 and concluding on 20 September 2016. A 2 year non-parole period was imposed which expired on 20 March 2015.
It is necessary to say something about the facts. It appears that at about 6.30am on 9 March 2013, Mr Hippett entered the backyard of a house in Walgett. A hinged window facing the backyard had been left open a fraction by the owner of the house overnight to assist in cooling the house. The window was held in place by a latch chain mechanism. That mechanism prevented the window from being opened completely.
Having entered the backyard of the premises, Mr Hippett opened the window by manipulating the latch chain mechanism on the inside frame of the window, thereby allowing the window to be completely opened. He then entered the house and went to the bedroom where the victim was sleeping. He attempted to wake the victim by pushing a number of times on her back. He then grabbed the victim's buttocks (she was covered with a blanket at the time). The victim woke up and turned over. She saw that Mr Hippett was holding a lighter and moving it up and down, illuminating her body. He tried to pull the blanket off the victim. Mr Hippett asked the victim if he could have sexual intercourse with her. She declined, forcefully telling him to go away and go home. At that stage, the defendant attempted to remove the victim's pants with one hand, whilst attempting to remove his own pants at the same time with his other hand. The victim tried to kick Mr Hippett, whilst she kept yelling for him to stop and go home.
In the face of such resistance, Mr Hippett stopped his advances, left the bedroom, closed the door and left the house. The victim, who was most distressed, ran to the lounge room and woke her mother. The police were called. Mr Hippett was identified as the offender because of the fingerprints found at the premises.
Mr Hippett pleaded guilty on the first day of his trial. The sentencing Judge allowed him a 10% discount because of that plea. At the time of the offence, Mr Hippett was almost 18½ years old. The sentencing Judge described him as being relatively immature and a person who operated at a lower level of cognitive functioning than many members of the community. The sentencing Judge formed the opinion that Mr Hippett's conduct was at the lower end of the mid-range of objective seriousness.
The Crown submitted, and Mr Hippett's counsel agreed, that this index offence was of a "sexual nature" as described in s 5(2) of the HRO Act.

Relevant Legislation

It is necessary to set out the relevant provisions of the HRO Act, which constrain the decision-making of the Court in these proceedings.
The objects of the HRO Act are set out in s 3: "(1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders … so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high-risk sex offenders … to undertake rehabilitation."
It is the State's contention in these proceedings that Mr Hippett is a high-risk sex offender.
Section 5B makes provision for a person to be found to be a high-risk sex offender. Relevantly, it provides: "5B High Risk Sex Offender (1) An offender can be made the subject of a high-risk sex offender extended supervision order or a high-risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high-risk sex offender. (2) An offender is a high-risk sex offender if the offender is a sex offender and 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. (3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence."
The concept of a serious sex offence is also central to the disposition of these proceedings. A serious sex offence is defined in s 5 of the HRO Act in the following terms: "(1) For the purposes of this Act, a 'serious sex offence' means any of the following offences: (a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where: (i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and (ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises), … (b) an offence under section 38, 86 (1) (a1), 111, 112, 113 or 114(1) (a), (c) or (d) of the Crimes Act 1900 that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act 1900 , where the offence intended to be committed is punishable by imprisonment for 7 years or more, and includes: ..."
It is unnecessary to set out the detail of the underlying provisions because the State contends, and counsel for Mr Hippett accepts, that he is a detained sex offender in accordance with s 13B(2) of the HRO Act, which means that the Crown is entitled to make an application for a continuing detention order by reason of s 13B(1) of the HRO Act.
As I am hearing a preliminary application, which is a "pre-trial" procedure, insofar as the State seeks a continuing detention order, the provisions of s 15 of HRO Act apply. They are in the following terms: "15 Pre-trial procedures (1) An application under this Part for a continuing detention order must be served on the offender concerned within 2 business days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (2) The State must disclose to the offender such documents, reports and other information as are relevant to the proceedings on the application (whether or not intended to be tendered in evidence): (a) in the case of anything that is available when the application is made, as soon as practicable after the application is made, and (b) in the case of anything that subsequently becomes available, as soon as practicable after it becomes available. (3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the 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, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must dismiss the application."
Insofar as the State, as an alternative to a continuing detention order, seeks an extended supervision order, the pre-trial procedures are those set out in s 7 of the HRO Act. It is unnecessary to repeat those provisions as they are in an almost identical form to the provisions in s 15.
Section 17 of the HRO Act identifies the matters to which this Court must have regard when determining an application for a continuing detention order. It is in the following form: "17 Determination of application for continuing detention order (1) The Supreme Court may determine an application under this Part for a continuing detention order: (a) by making an extended supervision order, or (b) by making a continuing detention order, or (c) by dismissing the application. … (4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, … (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (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 …, … (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, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender continuing detention order)…, ... (5) In this section, a "relevant offence" means: (a) in the case of an application for a high risk sex offender continuing detention order - a serious sex offence."
In considering the State's alternate application for an extended supervision order, s 9 of the HRO Act provides for similar matters to be taken into account.
Section 21 of the HRO Act provides that these proceedings are civil proceedings and are to be conducted generally in accordance with the law (including rules of evidence) relating to civil proceedings.

Applicable Legal Principles

Because this is a preliminary hearing, the task which the Court applies is different from that at the final hearing. At this stage of proceedings, the Court is not concerned to predict the ultimate result, or to form views, or come to a conclusion, about the appropriate weight to be given to particular documentation which has been provided, or to choose between conflicting opinions. The Court does not consider what evidence, if any, Mr Hippett may put before the Court at a final hearing. Rather, the Court is to consider whether the matters alleged in the supporting documentation would, if proved, justify the making of the final orders sought by the State: Attorney General for the State of NSW v Tillman [2007] NSWCA 119 at [98].
The test which the Court is obliged to apply is said to be similar to a prima facie test applied by Magistrates in committal proceedings: Attorney-General for the State of NSW v Hayter [2007] NSWSC 983 at [4]; State of NSW v Manners [2008] NSWSC 1242 at [8]-[9]; State of NSW v Pacey [2015] NSWSC 1983 at [9].
The approach to these proceedings requires the two objects of the legislation to which I have earlier made reference to be kept in mind. It is also appropriate at this hearing to give weight to risk avoidance: Attorney-General for NSW v Winters [2007] NSWSC 611 at [7].
In dealing with an interim detention order, the provisions of s 18A apply. The effect of s 18A is that if it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or a continued detention order, then where the defendant's sentence would expire before the final hearing of the proceedings, the Court may make an interim detention order. This remains a discretionary and evaluative decision.
It is agreed between the parties that the defendant's sentence will expire before any final hearing of the proceedings. What is in issue between the parties is whether the material provided would justify the making of a continuing detention order, or extended supervision order.
That requires me to determine as the central issue, in accordance with the principles outlined and on the documentation provided, whether I am satisfied to a high degree of probability that Mr Hippett poses an unacceptable risk of committing a serious sex offence if he is not kept in detention or under supervision.
Another part of that test involves the phrase "a high degree of probability". The meaning of that phrase was discussed by the Court of Appeal in Cornwall v Attorney-General of NSW [2007] NSWCA 374 at [21] where the Court said: "21 The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion 'likely' ..."
The Court is also required to consider the question of an unacceptable risk. R A Hulme J considered the meaning of that phrase in State of NSW v Thomas (Preliminary) [2011] NSWSC 118. It appears from his judgment at [16] ff that: 1. a risk may still be an unacceptable risk even though the State does not satisfy the Court that it is more likely than not that a defendant will commit a serious violence offence, or "… put another way, the risk may be less likely than not, but still be an unacceptable risk"; and 2. a risk would be unacceptable if was present to a sufficient degree "… so that the safety and protection of the community cannot be ensured unless an order is made.
The expression has also been recently considered by the Court of Appeal. In Lynn v State of NSW [2016] NSWCA 57, Beazley P (with whom Gleeson JA agreed) expressed the following views at [49] ff: 1. the meaning of the phrase "unacceptable risk" raises a question of statutory construction (at [49]); 2. the determination of the existence of an unacceptable risk is an evaluative task, which requires a normative context in which to be made (at [51]); 3. the objects of the legislation may be relevant to the meaning to be given to the provisions of the HRO Act, but those objects cannot control clear statutory language (at [54]); 4. the preferable approach is to give the words their everyday meaning in the context of the provision in which they appear and having regard to the objects of the Act (at [58]); and 5. in the context of the HRO Act, the evaluation being made by the Court is "… directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection" (at [61]).
Gleeson JA put the matter succinctly at [148]: "It would subvert the language of the statute if the interests of the offender in liberty and privacy were to be taken into account in the assessment of the threshold of 'unacceptable risk' in s 5E(2) of the Act. There is no 'balancing' exercise involved in the Court's assessment of the threshold of 'unacceptable risk'."
As his Honour went on to explain, the interests of the offender in liberty and privacy are taken into account at a later stage, when the Court is exercising its discretionary power under s 9 of the HRO Act to either make or refuse to make an extended supervision order.

Evidence

The State relies upon facts which are amply demonstrated by contemporaneous documents and expert reports. None of those facts were challenged at the preliminary hearing. No submission was made for the purpose of this preliminary hearing that I should not accept that those facts will be proved at a final hearing.
Rather, the issue the subject of the parties' submissions was whether the Court would be satisfied that the material contained in the documentation would, if proved, justify the making of a continuing detention order.

Mr Hippett's Prior Offending

The index offence for which Mr Hippett is presently serving a sentence has been earlier described at [4]-[11]. It is that offence which constitutes an offence of a sexual nature.
The initial offence, which was committed in September 2009, constituted a serious sex offence. Mr Hippett pleaded guilty before the District Court to an offence of non-consensual sexual intercourse in circumstances of aggravation contrary to the provisions of s 61J(1). At the time he committed this first offence, Mr Hippett was a juvenile. He was almost 15 at the time. The victim of the offence was at a party. Having consumed alcohol, she then went to a local licensed club, met up with her boyfriend and retired to her home, which was in Walgett. During the evening, Mr Hippett and three co-accused went to the victim's house and entered the victim's bedroom where she was sleeping. The four co-offenders illuminated the room with cigarette lighters and then, whilst filming the events, inserted an object into the victim's vagina. The victim was completely unaware of what had occurred until she saw the video later that morning.
Mr Hippett pleaded guilty before the District Court and came up for sentencing before G D Woods QC A-DCJ. His Honour concluded that the events in question amounted to: "… a rather immature, spur of the moment, voyeuristic activity [carried out] by some immature young men in an extended family setting. I consider that the incident comes towards the low range of objective seriousness".
His Honour imposed a term of imprisonment of 17 months, which he then suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 for a 17 month period. Mr Hippett was directed to accept the supervision of Juvenile Justice.
At the time he sentenced the offender, the sentencing Judge took into account an offence on a Form 1. That offence occurred in September 2011, again in Walgett, and constituted an offence against s 112(1) of the Crimes Act, namely entering the dwelling of the victim with intent to commit a serious indictable offence therein, namely, to indecently assault the victim and then break out of the dwelling.
The facts of this offence are remarkably similar to the index offence. In this case, in the early hours of the morning in a house in Walgett, Mr Hippett broke into the house and entered a bedroom in which a female and her 4 year old daughter were sleeping. He lifted the doona covering the female. This woke up the adult female, who yelled at him, and he left the bedroom and the house. In an interview with police, Mr Hippett said that he was drunk at the time, and that he knew the family.
In December 2011, Mr Hippett, whilst still a juvenile, was convicted of offences of assaulting police, behaving in an offensive manner and criminal damage to property in the early hours of the morning. The reason that Mr Hippett came to the attention of the police on this occasion was that they had been called to a house in the early hours of the morning where it was alleged that Mr Hippett had indecently assaulted a female. However, the material provided to police was not sufficient to enable them to proceed with a charge relating to the indecent assault. With respect to the offences of assaulting police, he was sentenced to concurrent control orders for a period of 6 months commencing on 2 June 2012 and expiring on 1 December 2012; with respect to the criminal damage to property and behaving in an offensive manner, Mr Hippett was sentenced to a 12 month good behaviour bond.
The State submitted that there are two other matters which, although they do not constitute prior offending, are matters to which the Court would be entitled to have regard to pursuant to s 17(4)(i) of the HRO Act.
The first is a series of facts surrounding a charge brought against Mr Hippett alleging that on 14 March 2010, he committed an offence of aggravated break and enter and commit a serious indictable offence contrary to s 112 of the Crimes Act in circumstances where he broke into a house in Walgett, entered the bedroom of a 14 year old girl and, whilst holding a mobile phone as a light source, asked the girl to have sex with him. His request was rejected. The young girl called out to her father and Mr Hippett left the house.
There is no material before the Court to indicate why that matter was dismissed by the Local Court at the conclusion of the hearing. Certainly, Mr Hippett was not convicted of the offence.
The police also provided records that Mr Hippett is suspected of committing a similar offence on 26 September 2012 at Walgett. It was said that in the early hours of the morning he broke into his niece's house and entered her bedroom, placed his hand under her sheets and asked her for sexual intercourse. She refused and told him to leave. He attempted to put his hands into her pants. She pushed him away and told him to leave, whereupon he did.
Although she was spoken to by authorities, and in so doing had disclosed the facts of this offence, the victim stated that she did not wish to pursue the matter and, accordingly, the authorities did not bring any charge against Mr Hippett.
In my view, a Court hearing a final application would be entitled to take these matters into account. I do so on this preliminary application.

Expert Reports

On 21 March 2016, Mr Samuel Ardasinski, a senior psychologist who works within the Justice Department, prepared a risk assessment report. His recommendations were supported by the Acting Chief Psychologist attached to the risk management programs of the Department of Justice. The State relied significantly upon Mr Ardasinski's report and its conclusions.
In his executive summary, Mr Ardasinski says the following of Mr Hippett: "… He has recently been assessed as having a cognitive impairment with his intellectual functioning being assessed as falling in the borderline range of function. Based on the available information, Mr Hippett presents an overall high risk of sexual re-offending relative to other male sexual offenders. His risk of repeat sexual offending would be most significantly increased in situations in which he is affected by drugs or alcohol, in a regional setting such as Walgett, and he is sexually preoccupied or lonely. Mr Hippett is considered untreated, as he has not participated in a program aimed at addressing his sexual offending, refusing to consent to a referral to custody-based sex offender programs in 2014 and 2015, and only recently consenting to a referral in January 2016, when he was advised of the current application. He has completed a program of moderate intensity to address his extensive substance abuse history, however remains untested in regard to any possible return to drug and alcohol use. He has stated that he does not want to return to live in Walgett because he knows that he will likely return to jail for repeat offending if he does so. Should Mr Hippett be considered for a continuing detention order, he may be motivated to participate in high intensity programming to address his sexual offending since he has recently consented to a referral. He may also be able to participate in a staged release process allowing for works release or other external leave, and this may allow for more community supports to be set up for him in a new location if he maintains the stance that being released to 'anywhere but Walgett' may be more protective for him. He may also have the opportunity to complete further intervention to address his alcohol and other drugs issues and link in with community supports. Should Mr Hippett be considered for an extended supervision order, the mitigation of future risk may be enhanced by ongoing community supervision and support, since he appears to require ongoing intensive supervision around his movements at night, alcohol misuse and associations with anti‑social peers to moderate his risk."
A reading of Mr Ardasinski's report shows that he has carefully considered the defendant's past criminal history, and the history of the past events to which I have earlier made reference. Of that history, Mr Ardasinski observed: "Based on the above offending history, it would seem that Mr Hippett's sexual violence has escalated in the most recent episode in 2013: instead of decamping as soon as his advances were rejected, Mr Hippett on this occasion attempted to force himself on the victim, who kicked him away in an effort to defend herself. This would suggest that Mr Hippett's risk of more serious sexual offending warrants consideration."
Although Mr Ardasinski identified Mr Hippett as being in the borderline range of functioning, he was satisfied that Mr Hippett was not suffering from any diagnosable mental illness. Mr Ardasinski noted the connection between the excessive drinking of alcohol and the commission by Mr Hippett of the identified offences.
Mr Ardasinski noted that Mr Hippett had responded extremely poorly to community supervision in the past when a juvenile. It was observed that he had breached his bail on numerous occasions and had breached a 12 month good behaviour bond.
Mr Ardasinski was concerned that Mr Hippett demonstrated only a rudimentary insight into some of the factors underlying his offending such as alcohol abuse, although Mr Hippett had expressed to him an appreciation that a return to Walgett would be unhelpful for him. Mr Ardasinski concluded: "However, overall Mr Hippett demonstrated limited insight into his offending behaviours (since he denied recall of any of the sexual offences he has been charged with or convicted of) and the factors underlying his chronic habit of breaking into houses in the early hours of the morning in order to seek sexual intercourse from the female occupant."
He noted that Mr Hippett had completed the EQUIPS - Addiction Program on 29 September 2015. As at the date of the report completed by Mr Ardasinski, Mr Hippett had not participated in any program offered whilst in custody dealing with his sex offending. However, other evidence shows that Mr Hippett is presently undertaking such a program.
Mr Ardasinski went on to consider the results of various tests which had been administered to Mr Hippett. In so doing he noted the following: "It needs to be stated that it is not scientifically possible to accurately predict whether or not an individual offender will or will not actually re-offend. The best that can be offered is an estimate that is anchored to empirical literature specifying features associated with risk and sound clinical analysis and formulation of how those present features might operate in the individual subject to the assessment."
Mr Ardasinski identified the following results based upon the following tests: 1. Level of Service Inventory: Revised (LSI-R), administered in November 2014, saw Mr Hippett's risk needs as falling in the high range relative to other male offenders; 2. STATIC-99, administered in October 2014, identified Mr Hippett as falling in the high risk category relative to other male sexual offenders; 3. RSVP, which is a protocol seeking to identify the risk of sexual violence which was administered in October 2014, identified that Mr Hippett presents a high risk of sexual recidivism; and 4. JSOAP-II, was administered whilst Mr Hippett was a juvenile and in custody. That actuarial risk assessment saw Mr Hippett falling into the moderate risk range. Mr Ardasinski noted that Mr Hippett had re-offended sexually since the time that this test was administered.
Mr Ardasinski then provided further detailed comments on the STATIC-99 and Stable 2007 tests. In so doing, Mr Ardasinski identified a number of dynamic risk factors which he thought relevant to Mr Hippett's risk of sexual re‑offending.
The first was substance abuse. Mr Ardasinski noted that Mr Hippett had a long history of binge drinking and excessive cannabis use and he further noted that sexual offending occurred at times when Mr Hippett was abusing alcohol.
The second factor that Mr Ardasinski identified was Mr Hippett's living in Walgett. He said: "It seems that Mr Hippett's situation, in growing up in a small Aboriginal community in the town of Walgett, is related to his risk of repeat sexual offending: the circumstances of such rural living seem to mean that the community consists of low density housing, and some residents do not lock their doors at night. This has provided Mr Hippett with ample opportunity to offend."
The third dynamic risk factor identified by Mr Ardasinski was that in circumstances when Mr Hippett felt lonely, unwanted or bored, and had difficulties with intimate relationships, his risk of repeat sexual offending was enhanced.
The fourth factor noted by Mr Ardasinski was that Mr Hippett had sexual self‑regulation deficits and used coping mechanisms which involved sexualising potential victims. Mr Hippett was noted to have a poor capacity to plan and a tendency to be impulsive - particularly with respect to his criminal activity. Mr Ardasinski also noted as another dynamic factor, that Mr Hippett had no recorded work history and few transferrable skills from any vocational training, and that he had demonstrated poor compliance with community correction requirements.
Mr Ardasinski noted that, based on all of the history that he had obtained, the results of the various tests which had been administered, and the dynamic risk factors which I have just outlined, there were various scenarios in which Hippett's risk of sexually reoffending would be considerably increased.
Having done so, Mr Ardasinski expressed these conclusions about overall risk: "44. The management of risk involves the offender improving their level of functioning in the aforementioned dynamic risk areas. As individuals address and become more skilled at managing dynamic risk factors, their ability to manage their overall risk improves. 45. The overall totality of evidence suggests that Mr Hippett falls in the high risk category of sexual and other criminal offending relative to other adult male sexual offenders. On his previous history of same, it is possible that any future sexual violence or other criminal offending could approach the threshold of a 'serious sexual offence' … Whilst Mr Hippett's prior offences did not involve the use of physical violence to gain victim compliance, the most recent offence did involve an escalation in the use of attempted physical coercion to gain victim compliance. A further escalation could result in a serious sexual offence. 46. Mr Hippett is a 21 year old Aboriginal man whose risk of sexual reoffending is estimated to be in the high risk category relative to other men who have offended sexually. It was hypothesised that should Mr Hippett use alcohol or illicit substances, encounter an unlocked or poorly secured residence in a low density housing area, and become sexually aroused in the presence of a vulnerable sleeping female occupant, he may pose a significant sexual violence risk."
Mr Ardasinski considered the position with respect to Mr Hippett if he were to be released after 20 September 2016, without there being an extended supervision order in place. Of that, he said this: "It may be that Mr Hippett could independently remain offence free. However, there is a precedent set for how Mr Hippett self-manages his risk in the community, and based on his history of previous offending behaviour committed within a period of months post release, it is considered that he will likely require further assistance to manage his everyday stressors and maintain abstinence from alcohol use and compliance with curfews. Mr Hippett expressed in interview a firm intention to live in the community without committing further crimes. However, due to his complex needs, he is unlikely to demonstrate the level of cognitive problem solving ability which may ameliorate his participation in actions that contribute to high risk situations. Whether this would be considered 'unacceptable' in the context of the Crimes (High Risk Offenders) Act 2006 is a matter to be determined by the Court."
The State also relied upon a Risk Management Report dated 17 April 2016, prepared by Ms Rebecca Kaye, a Community Corrections Officer with the Extended Supervision Order team. That report was produced after Mr Ardasinski's report and after Ms Kaye had a telephone interview with Mr Hippett.
Ms Kaye's report included the following remarks: "On 21 March 2016, he [Mr Hippett] was assessed as suitable for the Self-Regulation Program: Sexual Offending (SRP:SO). As outlined in Appendix 2 of the Risk Assessment Report dated 21 March 2016 by S Ardasinski, the SRP:SO is a custody-based program that is run at a slower pace for offenders with an intellectual disability and the program takes 12-18 months to complete. It is noted that therapeutic intervention of the level of intensity required to adequately treat Mr Hippett's needs is not available in the community - high intensity sex offender treatment is currently only available in CSNSW Custody."
Ms Kaye accepted the dynamic risk factors identified by Mr Ardasinski and contemplated how a risk management plan could be formulated. Ms Kaye set out the details of a management strategy providing for supervision in the community. She identified a number of limitations to the management strategy. The first was Mr Hippett's compliance with the treatment and the reporting of his behaviours in the community; the second was the failure of Mr Hippett previously to accept adequate supervision from juvenile justice authorities; the third was that Mr Hippett, in the course of the interview with her, was dismissive of the potential for a supervision order, and made comments that indicated to Ms Kaye that he would prefer to remain in jail than be subject to the conditions of such an order; the fourth, and one which to me is particularly concerning, was that Mr Hippett appeared to dismiss any possibility that he would abstain from drinking alcohol. He also made other comments indicating that the extent of his compliance with residential conditions or other obligations imposed by supervision in the community might be problematic.
Although she prepared the risk management report, Ms Kaye also separately prepared notes of her telephone interview with Mr Hippett on 14 April 2016. Those notes are contained in the case notes relating to Mr Hippett, which form part of the documentation relied on by the State. Particularly concerning, in terms of this application, are the following notes: "ESO/CDO - overall Mr Hippett is very resistant, we talked about how an ESO suspends while someone is in custody (in response to him saying that he will just stay in jail for the term of any order). He is very immature and will require assistance, encouragement, motivation to complete the program (should a CDO be granted) and then with the idea of supervision in the Sydney metropolitan area and this time it appears that he would be unmanageable in the community to supervise and without supervision he has clearly stated he will be drinking alcohol and living wherever he wants, it seems without any regard for the consequences or any clear plan on how he will manage not to reoffend."
Ms Ellen McCarroll, who is the manager of the Extended Supervision Order team for Corrective Services NSW, gave evidence both by affidavit and orally.
The effect of Ms McCarroll's evidence is that, although there could be difficulties in the provision of accommodation in the community for Mr Hippett if he was to be released, following further enquiries with the manager of the Campbelltown Integrated Support Centre, there was a place available for Mr Hippett to live from which he could be the subject of supervision under an extended supervision order.

Discernment

As recorded earlier, it is not in dispute that the State is entitled to make the application which it has, nor is it in dispute that the State has established each of the threshold matters which would permit the Court to make the orders sought, if it were satisfied appropriately in accordance with the legislative requirements and applicable legal principles.
The State submitted that: "… the combination of the defendant's past pattern of offending, his substance abuse, his (initial) unwillingness to participate in a sex offending rehabilitation program and his lack of stable post-release accommodation mean that, if left unsupervised, there is an unacceptable risk of him sexually reoffending. … … his ongoing participation in sex offender therapy, his lack of post-release accommodation and his unmitigated risk, are factors which justify the making of an IDO. Further incarceration clearly has a therapeutic purpose in this case."
In her thoughtful oral submissions, counsel for the State highlighted a number of reasons why, in the particular circumstances of this defendant, the Court ought to prefer an interim detention order over an interim extended supervision order. Those factors were: 1. the defendant, for whatever reason, remains untreated in the sense that he has not completed any sex offender programs; and 2. a final hearing and judgment on the matter will occur relatively soon after he is due to be released on the present time schedule. Accordingly, it is desirable and preferable that the status quo, namely his continuation in custody whilst attending sex offender programs, is preserved. It would be disruptive to his current rehabilitation program to be released to supervision in the community where programs are different from those conducted in custody.
Counsel for the defendant candidly accepted in final submissions that the material available to the Court was such that the Court could be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a sex offence, or an offence of a sexual nature. However, counsel submitted that the material before the Court, if accepted in its entirety, would not justify the Court coming to the conclusion that the defendant posed an unacceptable risk of committing a serious sex offence. Counsel emphasised the need for the Court to be satisfied about the serious nature of the offending before any order could be made: State of New South Wales v Sancar [2016] NSWSC 867.
Counsel for the defendant submitted that there were a number of factors which tell against a conclusion that Mr Hippett poses an unacceptable risk of committing a serious sex offence. He identified and relied upon the following factors: 1. the initial serious sex offence occurred some years ago in 2009 at a time when Mr Hippett was only 14 years and 10 months of age; 2. Mr Hippett had successfully completed the EQUIPS program in custody to address his alcohol and drug addiction; 3. notwithstanding that Mr Hippett had been convicted of a number of offences since the 2009 serious sex offence, there had been no subsequent conduct falling within the description of a serious sex offence; 4. a significant feature of all of Mr Hippett's offending since the 2009 serious sex offence was that, when rebuffed by the intended victim, he would generally leave the premises without any further conduct. Counsel accepted that the index offence featured some additional conduct, but he submitted that in the overall consideration of the defendant's conduct, this ought not to carry much weight.
Counsel went on to deal with Mr Ardasinski's report, and essentially submitted that the Court should be conscious that the opinion expressed by Mr Ardasinski about the defendant's risk was premised upon a hypothetical set of a facts and events, namely that if the applicant was to return to Walgett or another similar remote township and abused alcohol and become intoxicated, he would be likely to engage in similar behaviour. The defendant submitted that the Court ought to conclude that there is a very low level of risk of any sexual offending occurring again outside the hypothetical circumstances identified by Mr Ardasinski.
Ultimately, counsel for the defendant submitted that based on Mr Ardasinski's report, it was completely speculative for the Court to determine that there was any substantial risk of a serious sex offence occurring and that the only conclusion the Court could reach was that the risk of a serious sex offence occurring was very low, and therefore not capable of being an unacceptable risk.
As identified earlier, this Court is engaged in an evaluative task which requires it to take into account all of the material that has been placed before it, and to assume that the facts disclosed in that material will be appropriately proved at a final hearing. The question which is then to be asked is whether that material satisfies the Court to a high degree of probability that Mr Hippett poses an unacceptable risk of committing a serious sex offence if he is not kept in custody or under supervision. The judgment which the Court is asked to make has a predictive element about it. There can be no certainty that this evaluative judgment will be the same as that which a court, if a final hearing was held, would reach. That is because the evidence before a court on a final hearing might be different from that which this Court considers: not the least because a court hearing the matter finally would have before it the various psychiatrist or psychologist reports which this Court is asked to order.
As well, this Court is not making the final evaluation itself. It is only determining whether on the material before it, the Court could be satisfied that an unacceptable risk of the relevant kind exists.
It is also important to note that in circumstances where the defendant has been denied parole and is approaching the end of his custodial sentence, the State and its Corrective Services agencies, including the State Parole Authority, should not see a continuing detention order or an extended supervision order as a substitute for parole.
In the extensive documentation provided, there are many indications that individuals, including those in authority and those attending to matters relating to parole for Mr Hippett, simply regard the regime available under the HRO Act to be applicable to an individual as a matter of routine. In this particular case, no attempt was made to explain to Mr Hippett that, if at the end of his sentence he remained "untreated", then an application would be made for his continued detention under the HRO Act. Equally, no attempt was made to explain to him that if he had not been released for a period of parole, which included supervision, then that fact could be relied upon as the basis for an order under the HRO Act. Mr Hippett was left to continue his period of imprisonment on the entirely understandable assumption that he would be released upon completing the entirety of his term of imprisonment.
It would be wrong for this Court to make an order under the HRO Act, whether on a preliminary or a final basis, as a substitute for the proper use of parole in the reintegration of an individual into the community.
What the Court is considering, however, are the objects which the legislation seeks to achieve, having regard to the present factual circumstances of the defendant and the expert reports which have been prepared.
I have reached the conclusion that in light of the matters alleged in the supporting documentation, the Court at a final hearing would be justified in finding, to a high degree of probability, that Mr Hippett poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision or in detention.
The particular factors which point me to that conclusion are these: 1. the criminal and offending history of Mr Hippett demonstrates a complete inability on his part, particularly when affected by alcohol, to refrain from engaging in conduct of a kind which is highly likely to result in the commission of a serious sex offence. That this has occurred on only one occasion in the past has been, in my assessment, largely due to the conduct of each of the victims. When the conduct of the victim of the 2009 offence did not impact upon the defendant's behaviour to deter him from the crime, the crime progressed to being a serious sex offence. Whilst I accept that the most serious offence, in 2009, occurred at a time of immaturity in Mr Hippett's development, and that since that time his increased maturity may explain why his crimes have not progressed to become serious sex offences, his attitude and responses to both Ms Kaye and Mr Ardasinski in the course of their respective interviews does not give me any confidence that that maturity, and the lengthy period of time he has spent in custody, would tell against the defendant committing further serious sex offences; 2. because the defendant has not had the benefit of any programs with respect to his sex offending being completed, it is simply not possible to form a view that the risk which his past conduct represents has been mitigated or ameliorated to any extent. The risk that he will therefore commit further offences, including serious sex offences, remains high; 3. the defendant's attitude to compliance with supervision has in the past not demonstrated success, and his current attitude found in remarks to Mr Ardasinski and Ms Kaye, do not indicate that that attitude is likely to change. Accordingly, the availability of supervision in the community is unlikely to mitigate the present risks which exist; 4. the conclusion of Mr Ardasinski, based on statistical assessment, that the defendant has a high risk of further sexual offending is sufficient, for the purposes of this preliminary hearing, to give rise to a substantial inference that there is a risk that if released without supervision, the defendant will engage in sexual offending of a kind which would constitute serious sex offending within the meaning of the HRO Act; and 5. notwithstanding that accommodation is now able to be provided at Campbelltown, in circumstances where the defendant's attendance at sex offender programs in custody would be interrupted, the defendant has no ties to the community at Campbelltown, and the defendant has indicated that he wishes to return to Walgett to see his mother, or perhaps stay with a cousin in Dubbo, I cannot conclude that there is any reasonable prospect that the defendant would comply with an extended supervision order requiring him to reside at Campbelltown and engage in programs in Sydney. If he were to leave that accommodation then there is no prospect of him attending any treatment programs.
For all of those reasons, I am satisfied that I should accept the Crown's submission on this preliminary hearing and conclude that on the material available, a court would be justified in concluding to a high degree of probability that there is an unacceptable risk of Mr Hippett committing a serious sex offence if he is not kept under supervision.
The fact that: 1. Mr Hippett has not yet completed any treatment program for sex offending, and is part-way through a custodial program which is not directly available in the community; 2. the proposed accommodation for the defendant is in Campbelltown, an area entirely unfamiliar to him; and 3. Mr Hippett has stated his unwillingness to comply with supervision requirements, persuade me that, on an interim basis, the appropriate order to be made is one for continuing detention.

Orders

I make the following orders: 1. Order, pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006, 1. that two qualified psychiatrists be appointed to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by Friday 30 September 2016; 2. that the defendant is to attend those examinations. 1. Order, pursuant to s 18A of the Crimes (High Risk Offenders) Act 2006, that the defendant be subject to interim detention from 20 September 2016 for a period of 28 days. 2. Order, pursuant to s 20(1) Crimes (High Risk Offenders) Act 2006, that a warrant issue for the committal of the defendant to a correctional centre for the period specified Order (2) above. 3. Stand the proceedings over for further directions before the Registrar at 9am on Monday 29 August 2016, for the fixing of a date for the final hearing of these proceedings.

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. Decision last updated: 25 August 2016

At a glance

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Judgment (10 paragraphs)

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Legislation Cited (1)

Cases Cited (9)

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