State of New South Wales v PS

Relevant principles

1. Section 15 of the Act provides for pre-trial procedures in the following terms: (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.
2. Despite the fact that the only orders sought pertain to the appointing of qualified experts to examine the defendant, I am nonetheless required by s 15(4) of the Act to be satisfied that, if the material provided to me was proved, it would "justify the making of a continuing detention order or an extended supervision order."
3. It has been held that the task of the Court at a preliminary hearing such as this is similar to the task in committal proceedings: Attorney General (NSW) v Hayter [2007] NSWSC 983. It requires proof at a higher standard than the mere balance of probabilities: Cornwall v Attorney-General for NSW [2007] NSWCA 374.
4. An offender can only be made the subject of a high risk sex offender CDO if the Court is satisfied that the offender is a "high risk sex offender" as defined in s 5B(2) of the Act as follows: "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."
5. The meaning of "a high degree of probability that the offender poses an unacceptable risk" was recently considered by the Court of Appeal in Lynn v State of New South Wales [2016] NSWWCA 57. Prior to that decision there had been two approaches applied in this court as to what constitutes "unacceptable risk." In State of New South Wales v Richardson (No 2) [2011] NSWSC 276, Davies J held that consideration of the likelihood of the defendant committing a further offence and the gravity of such an offence should be balanced against the consequences of an ESO on the defendant. The alternative approach is that adopted by Hulme RA J in State of New South Wales v Thomas (Final) [2011] NSWSC 308 at [58] where his Honour held that the words should be given their ordinary meaning within their context and having regard to the objects of the Act. In Lynn v State of New South Wales, Beazley P found that the proper approach was that suggested by RA Hulme J in Thomas (Final).
6. In State of New South Wales v Kamm (Final) [2016] NSWSC 1 Harrison J repeated with approval a submission made by the State at [41] that: "The determination of what is an unacceptable risk may require consideration of various factors (such as the perceived likelihood of recidivism and the type and nature of offences that may be committed absent supervision), and may entail a balancing of factors in cases where they might point towards differing outcomes (such as a low risk of recidivism versus likely drastic consequences to the victim if an offence occurs). Clearly, any analysis of the concept of unacceptable risk involves recognition that there will be a range of factors affecting risk and some cases that are more obvious examples of unacceptability than others.

Defendant's history of sexual offending

1. Before turning to consider the submissions of the parties it is necessary to outline the history of the defendant's sexual offending as it has formed a significant part of my conclusion that the statutory test has been met.
2. The defendant was born in January 1956. He is currently 60 years old.
3. Since 1973, when the defendant was 17 years of age, he has committed a large number of sexual assaults upon male children between the ages of 5 years and 13 years. The children against whom the defendant has offended sexually have been given pseudonyms in the material before me and I will use those pseudonyms herein.
4. Between 1973 and 1974, the defendant visited relatives in rural New South Wales at which time he committed sexual acts upon children referred to as V3 and V4 (Exhibit PN-1, Tabs 18, 29).
5. Between 1975 and 1976, while staying with relatives in rural New South Wales, the defendant committed sexual acts upon children described as V5 and V6 (Exhibit PN-1, Tabs 18, 29).
6. In 1976 to 1977, the defendant committed sexual acts on children described as V7 and V8 (Exhibit PN-1, Tabs 18, 29).
7. On 5 November 1977, the defendant is alleged to have engaged in penile-anal intercourse with a male child aged five years (Exhibit PN-1, Tab 58).
8. On 6 November 1977, the defendant was questioned by police in relation to the allegation of sexual offending said to have occurred on 5 November 1977 but no further police action was taken at that time (Exhibit PN-1, Tab 58).
9. On 13 November 1977, the defendant was charged with indecent assault for the first time although no conviction was subsequently recorded. At that time, Stuart was employed as a table tennis coach at the Beacon Hills youth club (Exhibit PN-1, Tab 12).
10. Between 1978 and 1981, the defendant was employed as a squash instructor, bus driver, taxi driver, truck driver and computer programmer (Exhibit PN-1, Tabs 16, 33 and 35).
11. On 26 May 1978 the defendant appeared for sentence before Judge Ward in the Sydney District Court. He was placed on a reconnaissance to be of good behaviour for three years. No conviction was recorded (Exhibit PN-1, Tab 14).
12. On 24 June 1978 the defendant touched V2's penis after a game of round robin in the Killarney Heights squash centre (Exhibit PN-1, Tab 16).
13. On 15 September 1978, the defendant was convicted and sentenced in the Manly Local Court for indecently assaulting V2 on 24 June 1978. He was placed on a recognisance to be of good behaviour for three years (Exhibit PN-1, Tabs 14 - 15).
14. On 10 October 1978, the defendant breached his recognisance but no action was taken on the breach (Exhibit PN-1, Tab 14).
15. In 1980, while staying with relatives in rural New South Wales the defendant committed sexual acts on the child described as V9 (Exhibit PN-1, Tabs 18 and 29).
16. Between 1980 and 1982 while staying with relatives in rural New South Wales the defendant committed sexual acts on children described as V9 and V10. (Exhibit PN-1, Tabs 18 and 29). The defendant resided with a friend's family in suburban Sydney for a period of time during which he assaulted eight children over a period of two years (Exhibit PN-1, Tab 34).
17. On 22 June 1984, the defendant was committed to sentence on four charges of buggery (Exhibit PN-1, Tab 30).
18. On 6 September 1984 the defendant was convicted and sentenced to 9 years' imprisonment with a non-parole period of three years for four counts of buggery with a further 11 counts of buggery, sexual intercourse without consent and indecent assault taken into account on a schedule (Exhibit PN-1, Tabs 32-33).
19. On 27 September 1985, the defendant was set to be released on parole (Exhibit PN-1, Tab 68).
20. In July 1986, the defendant was compliant with his parole obligations but on 12 August 1986 he failed to report to his parole officer. His father indicated that he had commenced working as a truck driver at that time (Exhibit PN-1, Tab 71).
21. On 2 August 1986, the defendant indecently assaulted the child described as V16. (Exhibit PN-1, Tab 36).
22. On 26 August 1986 and 27 August 1986 the defendant reported to his parole officer by telephone but he failed to report on 15 September 1986. On 17 September 1986 and 26 September 1986 he again reported to his parole officer. On 26 September 1986, his parole officer received a telephone call from police in Maitland in relation to allegations that the defendant had sexually assaulted two male children aged nine and 11 years old. The defendant was charged but subsequently acquitted in relation to those counts. (Exhibit PN-1, Tab 71).
23. On 26 September 1986, the defendant's New South Wales parole was revoked and he was directed to serve the balance of his sentence (Exhibit PN-1, Tab 72). By December 1986, he was at liberty in Queensland. On 26 and 27 December 1986, the defendant sexually assaulted a six-year-old male child described as V17 while staying in a caravan park in Queensland. (Exhibit PN-1, Tabs 51 and 53).
24. On 6 January 1987 the defendant was formally charged with aggravated unlawful assault of a child under 14 years. He admitted to police that he had showered with the child and touched the child's penis (Exhibit PN-1, Tabs 51 and 53).
25. On 12 November 1987 a parole report notes the fact that contact had been "recently lost" with the defendant for a period of six months. (Exhibit PN-1, Tab 73).
26. On 31 May 1989, the defendant was indicted at trial for offences committed on 16 August 1986. On 1 June 1989, he was convicted and sentenced to three years' imprisonment for sexually assaulting a male child and committing an act of indecency with a person under 16 years (Exhibit PN-1, Tab 36).
27. On 6 December 1990, the defendant was not recommended for parole (Exhibit PN-1, Tab 76).
28. On 1 October 1990, the defendant wrote to Corrective Services staff reminding them of his application for transfer to Cooma Jail. That application had been previously granted on 19 September 1991. The defendant was informed that there was insufficient room in the transport wagon at that time and that his name had been placed on a list for transfer. That document notes that the defendant was "due to discharge on 18 November 1991" (Exhibit PN-1, Tab 77).
29. On 17 November 1993, the defendant was convicted for aggravated indecent dealing in the Brisbane District Court in relation to a child described as V22. He was sentenced to imprisonment for two years, to commence from 5 October 1993 (Exhibit PN-1, Tab 49).
30. On 3 February 1994, the defendant was convicted on three counts of aggravated assault of a sexual nature on a child under 14 years in the Brisbane Magistrates Court. He was sentenced to two years' imprisonment at that time. That sentence was imposed to be served cumulatively to that imposed in the District Court in 1993 (Exhibit PN-1, Tabs 49 and 55).
31. On 12 December 1994, the defendant was convicted of two counts of aggravated indecent dealing with a child under 12 years and two counts of indecent dealing with a child under 12 years in the Brisbane District Court (Exhibit PN-1, Tabs 49 and 56).
32. On 29 November 1998, the defendant travelled with the child described as V17 from Melbourne to Brisbane. On 6 December 1998, he travelled with the same child from Brisbane to Victoria. On 7 to 8 December 1998, he travelled with the same child from Melbourne to New South Wales. It is alleged that he masturbated the child's penis, digitally penetrated the child's anus and showered with the child on various occasions (Exhibit PN-1, Tab 46).
33. On 15 December 1998, V17 told his parents about the defendant's actions (Exhibit PN-1, Tab 46).
34. On 18 December 1998, the defendant was telephoned by V17 during which time he confessed to touching V17's penis and admitted that he loved that child (Exhibit PN-1, Tab 46).
35. On 20 April 1999, a first instance warrant was issued and the defendant was arrested in the Brisbane Magistrates Court. He was later conveyed to Lismore Police Station for questioning and was charged. A provisional warrant was issued by the Queensland Police for his arrest (Exhibit PN-1, Tabs 46 and 49).
36. On 22 May 2000, the defendant was indicted on two counts of homosexual intercourse and four counts of sexual intercourse with a child under 12 years in his authority. (Exhibit PN-1, Tab 48). On 13 June 2000, he was convicted and sentenced after trial at the Lismore District Court to imprisonment for nine years and six months (Exhibit PN-1, Tabs 42 and 46).
37. On 21 July 2005, the defendant was arrested and charged at Burwood Police Station with offences committed during the period 1973 to 1982. On 5 May 2006, he was refused parole (Exhibit PN-1, Tab 18).
38. On 22 November 2006, the defendant was indicted in relation to six counts of indecent assault of a male person, four counts of attempting to commit an act of buggery and one count of buggery pertaining to offences that occurred in 1973 to 1982 (Exhibit PN-1, Tabs 19-20). On 1 February 2007, he pleaded guilty and was convicted by Judge Donovan QC and sentenced to imprisonment for 11 years. Further matters were taken into account on a Form 1 (Exhibit PN-1, Tab 21).
39. On 12 November 2009, the defendant commenced the PREP program (a sex offenders pre-treatment programme) (Exhibit PN-1, Tab 91).
40. On 12 January 2010, the defendant declined to participate in the CUBIT programme (Custody-Based Intensive Treatment) (Exhibit PN-1, Tab 80). In order to participate in the programme an offender must acknowledge that he or she is attracted to children and identify self-management strategies in the future.
41. In May 2010, the defendant completed the PREP programme but on 27 July 2010 again declined to participate in the CUBIT programme (Exhibit PN-1, Tabs 80 and 91).
42. On 9 February 2011, the defendant again declined to participate in the CUBIT programme (Exhibit PN-1, Tab 80).
43. On 11 February 2011, the defendant claimed that he was being threatened by the Serious Offenders Review Council with making security reclassification contingent upon his participation in the CUBIT programme. The defendant indicated at that time that he would participate in the CUBIT programme but expressed concern as to group confidentiality and his personal safety (Exhibit PN-1, Tab 79).
44. On 11 August 2011, the defendant again declined to participate in the CUBIT programme (Exhibit PN-1, Tab 80).
45. In March 9, 2012 the defendant indicated that he intended to participate in CUBIT midway through 2014 so that he could be released at the expiration of his current term. Despite this, on 27 March 2012 and 10 May 2012, the defendant declined to participate in the CUBIT program. He was refused parole on 7 June 2013 (Exhibit PN-1, Tabs 4, 80 and 82).
46. On 16 February 2015 the defendant agreed to participate in the CUBIT program (Exhibit PN-1, Tab 90).
47. On 19 and 26 March 2015, warrants were sworn in Queensland in relation to historical charges pertaining to the defendant said to have occurred between 1996 and 1998 (Exhibit PN-1, Tab 64).
48. On 19 June 2015, the defendant was again refused parole (Exhibit PN-1, Tab 4).
49. On 14 April 2016, the defendant was charged with two counts of indecent assault at the Newcastle Local Court. These were historical matters pertaining to an earlier date. Those matters are currently stood over for directions before Newcastle Local Court (Annexures C and D of the affidavit of Paul Nash sworn 19 April 2016).
50. On 21 July 2016, the defendant's current sentence expires. Queensland police have indicated that they propose to execute the outstanding warrants in relation to him upon his release from custody (Exhibit PN-1, Tabs 2 and 64).

The State's submissions as to "unacceptable risk"

1. In addition to the defendant's troubling history of committing sexual offences against children, the plaintiff further relies upon some of the various explanations provided by the defendant for his offending behaviour over the years in support of its submission that the defendant poses an unacceptable risk of re-offending.
2. In 1977, the defendant told Dr Wright-Short that he had no sexual problems and explained that he had an "innocent" attraction to children. This was at a time when he was actively sexually abusing V3 in rural New South Wales. In a later report, Dr Wright-Short noted that the defendant had "come to the realisation that he has unacceptable paedophilia tendencies" and had commenced aversion conditioning on the basis of an apparent recognition that "his behaviour appeared to be neurotically compulsive": (Report of Dr Wright-Short; Exhibit PN-1 Tab 8)
3. In 1984, the defendant attributed his offending to young boys approaching him and to having been intoxicated. He admitted sexual enjoyment of the acts to Dr Petit. He denied homosexuality and claimed to have sexual fantasies involving females but he also dreamed about male paedophilia at times. Dr Pettit recommended aversion therapy (Report of Dr Petit; Exhibit PN-1 Tab 34). The defendant claimed subsequently to have converted to Christianity and was willing to have psychological intervention (Pre-Sentence Report; Exhibit PN-1 tab 74).
4. In 2006, the defendant was reported as saying that he now attributed his offending to confusion over his sexuality, that he was comfortable with his homosexuality and no longer needed to seek the affection of young boys (Pre-Release Report; Exhibit PN-1 Tab 78).
5. In January 2007, he told Dr Olav Nielssen that he had not offended since he was 26 years old at a time when he had pleaded guilty to more recent offences than that (Report of Dr Nielssen; Exhibit PN-1 Tab 60).
6. In January 2009, the defendant told psychologist Elana Delbaere that he denied being sexually attracted to children or finding them attractive and that he thought he had no risk of reoffending. He denied the commission of all offences in relation to which he was convicted after 1989. He told Ms Delbaere he was never attracted to young boys and that the offending arose from anger and frustration about his repressed homosexuality. She concluded that his overall risk of sexual reoffending was within the high range (Report of Elana Delbaere January 2009; Exhibit PN-1 Tab 62).
7. On 22 October 2015, senior psychologist Dr Richard Parker prepared a risk assessment report in relation to the defendant. The defendant denied the commission of any offences after 1986. This is despite the fact that the judges who sentenced the defendant in relation to his 1989 and 2000 convictions found that the evidence was overwhelming. The defendant claimed his earlier sexual offending was an outlet for his frustration against his repressed homosexuality (Risk Assessment Report of Richard Parker; Exhibit PN-1 Tab 63). He also referred to actuarial instruments in assessing the defendant as being a high risk of further sexual offending.
8. A Risk Management Report was prepared by Claire McNaughton, who is a senior Community Corrections officer. That report is dated 16 December 2015. In her report, Ms McNaughton noted that the defendant has no supports in New South Wales and was unwilling to reveal social connections in Queensland where he intends to reside. She noted that he has warrants in Queensland for his arrest and that extradition is to be sought upon his release. The defendant would be required to reside in New South Wales when released on parole. Although her report identifies various management strategies in relation to the defendant, the limitations of such strategies are identified including reliance upon him being truthful about his relationships, social supports, associates and employment. She identified that the defendant presents quite well and is in denial about his offending. This means he may be untruthful about matters and conceal risky behaviours. (RAR; Exhibit PN-1 tab 63).
9. As for the defendant's willingness to undertake rehabilitation, the plaintiff notes that in 2009 the defendant told Ms Delbaere that he wished to complete his entire sentence in jail and then return to Queensland. He again told Dr Parker that he wants to return to Queensland on release and resume truck driving. Although the defendant is currently completing the CUBIT program he declined to take part in it over a number of years.
10. In addition to the above the plaintiff relies upon the defendant's history of non-compliance with court orders and parole orders. When combined with his attitude to his offending behaviour and lack of insight it is submitted that the court could have no confidence that he would not commit further offences if paroled or even if placed on an ESO.

The defendant's submissions

1. Ms Hall of counsel, who appeared on behalf of the defendant, provided written submissions in which she submitted that there was no dispute that the defendant has committed serious sex offences as required by the Act. She noted Dr Parker's conclusion in his report that the defendant is assessed as a high overall risk of reoffending. Accordingly, she concedes that the threshold criterion for the court to make an order appointing two experts in accordance with s 15(4) of the Act is met. She submits that the defendant consents to the making of an order appointing the two experts in circumstances where the Court is likely to make a final determination in relation to the State's application prior to the expiration of the defendant's current sentence. She noted that that concession should not be understood as reflecting any attitude towards the State's ultimate application.

Consideration

1. I have had regard to the material placed before me as summarised above. I have considered the relevant statutory task in the context of the factual matrix of the defendant's prolonged history of offending, the histories he has provided to psychiatrists over the years, the results of assessments as to his likelihood of reoffending and his non-compliance with parole and court orders in the past.
2. I am satisfied, on the basis of the material provided to me, but in particular of the defendant's history of sexual offending in relation to children and his apparent continued sexual preoccupation with children, that if such material is proved, it could justify the making of a CDO or ESO.

Orders

1. I make the orders set out in the document headed Short Minute of Orders which was handed up in court on 20 April 2016. Those orders are: 1. Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006: 1. That Dr Andrew Ellis and Dr Jeremy O'Dea be appointed to conduct separate psychiatric examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by 12 May 2016; 2. Directing the defendant to attend an appointment with Dr Andrew Ellis by AVL at Cessnock Correctional Centre on 2 May 2016 at a time to be arranged; and 3. Directing the defendant to attend an appointment with Dr Jeremy O'Dea in person at Cessnock Correctional Centre on 4 May 2016 at a time to be arranged. 1. The plaintiff files and serve any affidavit evidence on which it relies by 19 May 2016. 2. The defendant files and serves any affidavit evidence on which he relies by 26 May 2016. 3. The plaintiff files and serves submissions on which it relies by 9 June 2016. 4. The defendant files and serves submissions on which he relies by 14 June 2016. 5. Any submissions of the plaintiff in reply to be filed and served by 15 June 2016. 6. The matter is listed for hearing on 16 June 2016 at 10.00am with an estimate of one day. 7. Pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999, an order directing the attendance of the defendant at the Supreme Court by AVL for the hearing referred to in order (7) above. 8. Liberty to apply to relist the matter on one day's notice. 9. Parties to be given notice if any third party seeks access to the Court file in order to give them the opportunity to be heard on that issue.

Amendments 1. Identifying details removed in order to comply with non-publication order in respect of the defendant's identity. 2. Addition of order (10).

Amendments 26 April 2016 - Typographical errors in orders. 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: 26 April 2016