This is an application for an interim detention order ("IDO") under s 18A of the Crimes (High Risk Offenders) Act 2006 (NSW). The respondent, Bruno Presta, is presently the subject of such an order but it is due to expire at 4.00 pm today.
On 4 November 1998, Mr Presta was sentenced in the District Court on five counts of kidnapping contrary to s 90A of the Crimes Act 1900 (NSW) and 21 counts of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 (NSW). He received a sentence which comprised an effective non-parole period of 14 years and three months and an additional term of four years and nine months. His non-parole period expired on 13 February 2012. His overall sentence is due to expire on 13 November 2016.
Although Mr Presta was eligible for release on parole from February 2012, it was not until May 2016 that the Parole Board determined that he should be released, albeit subject to its conditions. Since that time, his parole was revoked, but that revocation was itself overturned once accommodation became available to him, a matter I will return to.
In the meantime, the State of New South Wales commenced these proceedings seeking a continuing detention order against Mr Presta.
On 24 May 2016, Fagan J made an IDO against Mr Presta for a period of 28 days, that being the maximum period permitted by the Act for such orders (s18C(1); State of New South Wales v Bruno Presta (unreported, 24 May 2016)). His Honour also fixed the time for the final hearing of proceedings on 12 August 2016.
On 20 June 2016, a further IDO for a period of 28 days was made by Wilson J by consent. It is that order which expires today.
In his judgment, Fagan J accurately described the facts of Mr Presta's offences as being of "sickening depravity". In short, on five separate dates between May 1996 and November 1997, Mr Presta kidnapped a young male alleged to be between 15 and 18 years of age on each occasion. He took his victim to his home. At his home, he filmed himself drugging, torturing, raping and humiliating his victim over many hours.
Section 18A of the Act provides:
"18A Interim detention order - high risk sex offender
The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court:
(a) that the offender's current custody (if any) will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order."
There is no dispute that s 18A(a) is satisfied in this case, in that Mr Presta's current period of custody will expire before the proceedings are determined in August 2016.
Further, in relation to s 18A(b), there is no real issue on this application that that provision is also satisfied. This is so because Mr Presta's convictions means that he satisfies the definition of a "sex offender" (s 4) and the material in support of the application "if proved" would undoubtedly lead the Court to be 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" (s 5B(2)).
The issue raised by the present application is whether the discretion conferred by s 18A(1) to make an IDO should be exercised or, instead, the Court should make an interim supervision order ("ISO") under s 10A of the Act.
On this application, there was a debate as to the approach to be adopted to the exercise of the discretion conferred by s 18A. This is so, because with IDOs, there is no statutory equivalent to s 5D(1) of the Act which provides that the Court may make an order for the detention of an offender "if the offender is a high risk sex offender and the Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order".
In referring to the circumstances in which the Court might make an IDO under s 18A, Button J in State of New South Wales v Davie [2015] NSWSC 413 ("Davie") at [28] stated " … even though there is no analogous provision that applies to interim orders in the way that ss 5D and 5G apply to final orders, nevertheless I would not make an IDO unless I were satisfied that an ISO would not fulfil the primary purpose of the Act of ensuring 'the safety and protection of the community'".
However, in State of New South Wales v Strong [2016] NSWSC 573 at [7] Campbell J stated "[i]t seems that paragraph (b) of s 18A deliberately provides alternative tests for the making of an interim detention order setting the bar somewhat lower than that for a continuing order under s 5D".
It is not necessary to address whether there is a disparity between these observations much less how any such disparity should be resolved. Instead, I am content to approach the application on the basis urged upon me by counsel for Mr Presta, Ms Cook, namely by the adoption of the test stated by Button J in Davie.
A perusal of Fagan J's reasons for making an IDO on 24 May 2016 reveals that a crucial factor in his Honour's decision was the absence of any suitable form of supervised accommodation for Mr Presta if he was to be released pursuant to an ISO. However, on this application, there was evidence that such accommodation was available and I will summarise that evidence shortly.
However, it is firstly necessary to briefly note the contents of some of the many reports that were placed before the Court on this application. One of those reports was a report by a psychiatrist, Dr Samuels, dated 22 April 2016. Dr Samuels reviewed the material concerning Mr Presta and then addressed a number of questions that were posed to him. One of those questions was whether Mr Presta met the diagnostic criteria for a psychiatric condition. In answer to that question, Dr Samuels stated that he regarded Mr Presta as "fulfilling the criteria for Sexual Sadism Disorder, Cluster B Personality Traits, Opioid and Benzodiazepine Abuse" which he noted were "currently in remission".
In answer to a question about the risk posed by Mr Presta of committing a further serious sex offence or a sexually violent offence, Dr Samuels stated, inter alia:
"Mr Presta has had extensive Actuarial Risk and Structured Risk assessments performed. There are actuarial risk factors as well as structure risk assessments which suggest his is at Moderate-High risk. There certainly are a number of risk scenarios which could lead to destabilisation including the use of drugs, rejection in the community, lack of support, relationship problems and a recurrence of feelings of anger that could precipitate future violence."
Dr Samuels continued:
"Taking all these factors into account as well as clinical risk factors, particularly his personality factors (anti-social, narcissistic, schizoid) and sexual deviance, I would continue to regard Mr Presta as being at Moderate-High risk of committing a further serious sex offence and or seriously violent offence in the future."
On or about the same date, Ms Katrina Frost, a senior Community Corrections Officer, completed a risk management report. Amongst other matters, Ms Frost provided details of a management strategy for Mr Presta should he be released from custody. However, in doing so, Ms Frost identified a number of limitations on the effectiveness of such an approach. This included what Ms Frost identified as Mr Presta's "lack of transparency in his willingness to discuss sadistic and sexual deviant thoughts", Mr Presta's diagnosis of a "Sexual Sadism Disorder", his extensive years in custody and what Ms Frost referred to as the limited resources available to the community corrections ESO team and the extended supervision order investigations team.
On 22 February 2016, a risk assessment report was completed. Amongst other matters, that risk assessment report identified three possible risk scenarios that could eventuate from Mr Presta's release and any decision by him to re-offend.
One of those scenarios was effectively a repetition of the terrible events that led to his being convicted in the 1990s. Another scenario involved him potentially engaging in a casual sexual encounter with a consenting adult or teenage male which might then proceed to non-consensual sexual behaviour including behaviour of the sadistic kind that he engaged in when he committed the offences that lead to his conviction. A third scenario involved him being in possession of sexually sadistic pornography which, if dwelled upon, might lead to a risk of the other forms of behaviour reoccurring.
However, in a passage from that report which was relied on by Ms Cook, it was also noted that the detention of Mr Presta under a continuing detention order would be a "significant step backward". The report stated that as Mr Presta had already served over 18 years in custody, the most effective way to assist in his effective re-integration and adaption to "2016 Sydney society" was to allow for his intensive supervision in the community.
On this application, evidence was adduced from a clinical psychologist, Ms Wojciechowski. Ms Wojciechowski is responsible for the operation of an accommodation facility operated under the auspices of the Department of Justice known as the "Integration Support Centre" ("ISC"). The ISC is designed to specifically target sexual and violent offenders with a medium-to-high risk of recidivism. Its eligibility criteria provides that the residents must record a "medium to medium-high/high" score on an assessment scale for recidivism, that efforts must have been made to canvass other accommodation options in the community for that offender prior to their referral to the ISC and that any resident must be on a supervised legal order which includes an ISO.
In her oral evidence, Ms Wojciechowski explained that the ISC has only just commenced operations. It currently has one resident, but it will soon increase to accommodating 10 offenders. It is hoped that, as the systems at the ISC become more developed, it will increase to its full capacity of 26. Each resident occupies a single room. The centre does not have security guards but its front gates are locked between 7.00 pm to 6.00 am and residents are expected to be within the centre from that time.
Ms Wojciechowski stated that during the day there will be five full-time staff working. At night, it is anticipated there will be two staff. Ms Wojciechowski repeatedly emphasised that the ISC will work in conjunction with the appropriate ESO team for any resident as well as forensic psychiatric services so that together they will provide a regime of support and supervision for residents.
Ms Wojciechowski said that Mr Presta had been assessed as suitable to reside at the ISC. She agreed that his profile was complex and that he presented a challenge, especially given his level of intellectual functioning. However, she stated that he was no more likely to be a significant challenge compared to the other residents given, as I have stated, that the ISC targets sexual and violent offenders who are assessed as having a medium or higher level of risk of re-offending.
During her evidence, Ms Wojciechowski was taken to various risks posed by Mr Presta should he be accommodated at the ISC under an ISO. These included such circumstances as his obtaining illicit drugs, obtaining another mobile phone on which he could view pornography, visiting Internet cafes, contacting youth outside the ISC as well as the risk that he might pose to other persons within the ISC.
In each such example, Ms Wojciechowski fairly and candidly accepted the existence of some risk that might ensue from those circumstances. However, she also pointed to various aspects of the ISC's operations which mitigated those risks such as the possibility of electronic monitoring under an ESO and the existence of rules within the ISC that prohibited one resident from being in the room of another.
Again, at the risk of repetition, in assessing any question of the risk that may be posed of a person residing at the ISC, it must be understood that the staff there will be working in conjunction with the relevant ESO team and other professionals.
Overall, I formed a very favourable opinion of Ms Wojciechowski and the likely success of the program. Nevertheless, it must be remembered that the program is still in its relative infancy. The most difficult aspect of this application arises from the combination of the diagnosis of Mr Presta as having a Sadistic Sadism Disorder together with his high level of intellectual functioning. Those matters in my view make it very hard for the Court to achieve the necessary level of satisfaction on an application such as this, that the community will be safe from any repetition of his reprehensible conduct.
In those circumstances, I am satisfied that an ISO would not fulfil the primary purpose of the Act namely to ensure the safety and protection of the community. Accordingly, I will make a further IDO.
Accordingly, I order that:
1. Pursuant to s 18A of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to an IDO for a period of 28 days to take effect from 4.00 pm 11 July 2016 and to expire at 4.00 pm on Monday 8 August 2016. *
2. The proceedings stand over for mention before the Common Law Duty Judge on Friday 5 August 2016 at 10.00 am.
3. The parties have liberty to apply on 24 hours' notice.
4. Under s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW), the Commissioner of Corrective Services cause the respondent to be present before the Court or to appear by audio visual link on Friday 5 August 2016 at 10.00 am unless the requirement for him to appear is dispensed with in the meantime in which case the Court should be notified of such a change.
* Note: On 12 July 2016, Order (1) was varied so that it expired on Sunday, 7 August 2016 at 4.00 pm.
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Decision last updated: 15 July 2016