This is a preliminary hearing under s 7(3) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The State seeks an Interim Supervision Order (ISO) under s 10A of the Act, as well as the appointment of experts pursuant to s 7(4).
The parties provided what I might call a joint tender bundle in the form of a working folder. That was marked as Ex A and included the helpful submissions of counsel for both parties. It included a number of previous judgments of this Court concerning the defendant, Mr Rush, as well as a Risk Assessment Report, a Risk Management Report, and a number of previous District Court judgments including remarks on sentence which set out, amongst other things, some of the offences for which Mr Rush has previously been sentenced to terms of imprisonment. Also included were his New South Wales and Queensland criminal histories, his custody management record, various documents emanating from the State Parole Authority, and other relevant documents typically tendered in cases of this kind.
On 17 December 2010, Judge Ellis SC in the District Court sentenced Mr Rush to a series of gaol sentences for extremely serious child sexual offences that were committed in 1997. Those sentences followed verdicts of guilty reached by a jury after a trial in which Mr Rush essentially denied that he had committed the offences. The total effect of the sentence imposed by Ellis DCJ was that Mr Rush was sentenced to 12 years' imprisonment with a non-parole period of 7 years. There were 7 individual sentences, but that was the total impact of the sentence imposed by his Honour.
The non-parole period expired on 24 March 2014 and the total sentence expired on 24 March 2019. Mr Rush was not released at the expiration of the non-parole period but remained incarcerated until 11 April 2017 when he was finally released to parole. The result was that the sentencing Judge's clear intention that there be an extended period of supervised parole was thwarted, not to say disregarded. It is unnecessary and inappropriate to make any further comment about that other than to note that this appears to be very common, especially in cases of child sexual assault and homicide.
In any event, Mr Rush breached his parole by entering what is described in the material as an "exclusion zone", that is, by going to an area frequented by children. That also constituted an offence arising out of his obligations regarding the child protection register, pursuant to the Child Protection (Offenders Registration) Act 2002 (NSW). He was sentenced to 3 months' imprisonment for the offence and his parole was revoked.
Toward the expiration of the sentence, the State applied for an Extended Supervision Order (ESO) under the Act. Interim orders were made by Justice Lonergan on 10 December 2018, [1] renewed on 8 April 2019, [2] and the final hearing was determined by her Honour on 17 May 2019. [3] Her Honour made an ESO for a period of 3 years from 17 May 2019. As far as I can tell, Mr Rush has largely complied with the terms of that order, and it is due to expire on 18 May 2022 (which is to say, in about a week).
The present proceedings, which ultimately seek a further ESO, were commenced by summons, filed on 6 April 2022. At that time, and now, Mr Rush is a "supervised offender" under the definition in s 5I of the Act. That is one of the formal prerequisites to the making of an order.
I am also satisfied that the application has been made in compliance with the other formal prerequisites in the Act. That is, the application was brought in accordance with the time limits provided within the Act and the application otherwise complies with the provisions of ss 5B and 5I. As there is no issue about that it is unnecessary to say any more.
As this is a preliminary hearing, the more substantive task involving an assessment of risk is a predictive one. That is, I am required to assume proof of the matters in the supporting documentation and come to a conclusion as to whether those matters would justify the making of an order. Whether an order is justified, in turn, turns upon whether the judge making the final determination is "satisfied to a high degree of probability" that there is an "unacceptable risk" that Mr Rush will commit "another serious offence if not kept under supervision" under the terms of such an order, pursuant to s 5B(d) of the Act.
Ms Alderton, who acts for Mr Rush, has taken no issue in relation to this for the purpose of the preliminary hearing, but, as she points out in her submissions, the Court must make its own determination. I am so satisfied.
Given the sensible position taken by counsel I can state my reasons fairly briefly. The matters that lead me to the conclusion that an ISO should be made and that the terms of the Act have been met are, in short form, as follows. First, the facts of the offences for which Ellis DCJ imposed sentence. These are set out in his Honour's judgment. They involve a grave and nasty sexual assault on a 13-year-old male child. This included threats of choking if the child did not comply, or if he screamed, as the defendant performed demeaning and abhorrent sexual acts. Second, the facts of a series of earlier offences for which Mr Rush was sentenced by Judge Job in October of 1999. That case involved four victims. Again, Mr Rush denied any wrongdoing, and again he was found guilty by a jury. He was sentenced to a total effective prison term of 9 years with a 6-year non-parole period. The prosecution appealed against the asserted inadequacy of that sentence, and some of the sentences for individual counts were increased. The details can be seen in the judgment of Simpson J (as her Honour then was), with Stein JA and Dunford J agreeing. [4]
The facts underlying these sentences can be seen in the remarks of Job DCJ, as well as the judgment of Simpson J in the Court of Criminal Appeal. I need not refer to them in any detail here. They are disturbing and justify the submissions made by Ms Climo, who appears for the State.
The magnitude of the risk to children, putting aside the probabilities of that risk manifesting, is extremely grave. Whether a risk is "unacceptable" turns on both the probability of the risk being realised and, more importantly in a case like this, the gravity of the consequences of that risk being realised.
There is also evidence that Mr Rush has suffered psychiatric conditions, variously described in the material. These are also relevant to an assessment of his risk profile. These have been described as schizophrenia, or schizoid in nature, and also, unsurprisingly, paedophilia. Mr Rush's offending in 2020 that involved the killing of cats bespeaks of bizarre conduct and a capacity for detached violence with indifference to the suffering of living creatures.
It is also the case that Mr Rush was found to be unfit to be tried at one stage, [5] and also somewhat bizarrely gave inexplicable responses to various communications in the course of his current ESO supervision, one of which was highlighted by Ms Alderton in her submissions. Mr Rush was told in October of 2021 that he was no longer required to provide evidence of his schedules of movement. Mr Rush responded that he would continue to plan his life that way "as it forms the 'roadway line in front of the choo choo train'". [6] What one is to make of that I do not know.
There are also the contents of the Risk Assessment Report, which in a sense precipitates the present proceedings. That report describes his risk profile as well above the average risk category for sexual offending. A Risk Management Report makes a similar assessment.
I have taken the contents of those two reports into account, and I have also taken into account earlier psychiatric and psychological reports which form part of the material, and which were foundational to the making of the ESO by Lonergan J three years ago.
Against all of that, Mr Rush has not committed any offence against a child for well over a decade. I have also considered that Mr Rush has been compliant with the ESO imposed by Lonergan J, which was imposed many years since his last offence. However, as I have already said, there was an earlier breach of his obligations under the Child Protection (Offenders Registration) Act, and the fact that his lengthy period without offending has been either while he was in custody (with no access to children) or while he has been subject to the strictures of the earlier ESO, or a parole order, or the ISO which pre-dated the earlier ESO.
In all of those circumstances, and based on the assumption that those facts will be proved, I am comfortably satisfied that, first, the ISO should be made, second, that the facts if proved would justify the making of an ESO and, finally, without prejudging the issue to be determined at the final hearing, that there is an unacceptable risk of further serious offending if Mr Rush is not kept under supervision by such an order.
The parties have worked together to fashion conditions. The summons as filed included conditions that appear to be rather more onerous than those imposed by Lonergan J, although the differences were mainly matters of form rather than substance. However, there were some matters of substance.
I had concerns initially about Mr Rush's ability to comprehend the conditions because there is some evidence, albeit far from convincing evidence, that he suffers some cognitive deficits. However, I accept Ms Alderton's assurances that her client understands the conditions and will remain compliant as the matter makes its way towards a final hearing.
There was one condition relating to search and seizure which remained in dispute at the commencement of the hearing, but I adjourned for a period after having some conversations with counsel, and the parties also reached agreement in relation to that condition. The dispute concerned whether it was appropriate to require the Departmental Supervising Officer to form a reasonable suspicion before embarking upon a search. The conditions agreed upon by the parties do require that in terms of a general search but not in relation to searches of electronic devices, and I am satisfied that the condition as formulated by the parties is an appropriate and necessary condition, taking into account Mr Rush's risk factors and the various matters to which I have already referred.
Accordingly, I propose to make the orders in accordance with the summons, subject to those amendments to the conditions upon which the parties have agreed, as follows:
1. An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (the Act):
1. appointing two qualified psychiatrists or psychologists (or combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and
2. directing the defendant to attend those examinations as and when required.
1. An order:
1. pursuant to section 10A of the Act that the defendant be subject to an interim supervision order;
2. pursuant to section 10C(1) of the Act, that the interim supervision order be for a period of 28 days commencing at midnight on 18 May 2022; and
3. pursuant to section 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the schedule to this judgment.
1. An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party for any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.
[2]
Endnotes
See State of New South Wales v Rush (Preliminary) [2018] NSWSC 1949.
See State of New South Wales v Rush (Preliminary No 2) [2019] NSWSC 417.
See State of New South Wales v Rush (Final) [2019] NSWSC 582.
See R v Rush [2000] NSWCCA 134.
See R v Rush [2009] NSWDC 325.
See NSW Department of Corrective Services Case Note Report, 24 October 2021 (Ex A at p 398).
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Decision last updated: 18 May 2022