State of New South Wales v Russell

Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 CASES CITED : State of New South Wales v Manners [2008] NSWSC 1242 Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 Tillman v Attorney General for the State of NSW (2007) 70 NSWLR 448

PARTIES : State of New South Wales (Plaintiff) Anthony Joseph Russell (Defendant)

COUNSEL : Ms A Stenmark SC; Mr D Kell (Plaintiff) Mr D Thiering (Defendant)

SOLICITORS : Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13574/09 State of New South Wales v Anthony Joseph Russell

JUDGMENT 1 JOHNSON J: By Amended Summons filed on 28 July 2009, the Plaintiff, the State of New South Wales, seeks orders against the Defendant, Anthony Joseph Russell, pursuant to the Crimes (Serious Sex Offenders) Act 2006 ("the Act"). 2 The Amended Summons seeks, by way of final relief, an order that the Defendant be subject to an extended supervision order under s.9 of the Act for a period of five years. A continued detention order is not sought with respect to the Defendant. 3 The Defendant is presently in custody at the Parramatta Correctional Centre serving a sentence of imprisonment for twelve months for the offence of failing to comply with reporting conditions under s.17 Child Protection (Offenders Registration) Act 2000. He was released to court-ordered parole on 3 February 2009 with respect to that offence. However, on 16 April 2009 the State Parole Authority revoked the parole order with effect from 8 April 2009, and issued a warrant for the Defendant's arrest. The stated reason for revocation of parole was breach of prescribed parole conditions, being unable to adopt to normal lawful community life and failing to reside at an address agreed on by the Defendant's parole officer. He returned to custody on 17 April 2009. 4 The Defendant's sentence will expire by effluxion of time on Wednesday 12 August 2009.

The Present Application 5 The matter is before the Court today for the purpose of a preliminary hearing required under s.7 of the Act, for the Court to determine whether to appoint two psychiatrists to examine the Defendant and furnish separate reports. Today's hearing also involves a claim by the Plaintiff for an order that the Defendant be subject to an interim supervision order under s.8 of the Act from 12 August 2009. 6 Mr Thiering of counsel appears for the Defendant. In view of the evidence filed by the Plaintiff, Mr Thiering concedes that the Court has jurisdiction to make the orders sought by the Plaintiff. Further, the Defendant does not object to the Court making an order for examination by psychiatrists, and agrees to attend for that purpose. Although noting that it remains a matter for the Court, Mr Thiering does not object to the making of an interim supervision order. He does not make any submission opposing the making of such an order. The Defendant reserves his position with respect to a final hearing, which will involve additional evidence after examination by the psychiatrists has taken place. Counsel for the Defendant does not oppose the conditions sought as part of the interim supervision order, although he made short submissions concerning the operation of one proposed condition, to which I will return. 7 In light of this practical and sensible approach by the Defendant, the Court may confine attention to matters which require determination on this application. 8 A substantial body of documentary evidence has been tendered by the Plaintiff on the application. This includes an affidavit of Patrick Sheehan affirmed 23 July 2009, an affidavit of Warren Abadee affirmed 16 July 2009 and a further affidavit of Mr Abadee affirmed 28 July 2009, an affidavit of Colette Davies affirmed 24 July 2009, an affidavit of Jayson Ware affirmed 30 July 2009 and an affidavit of Nicholas Vrzic affirmed 27 July 2009.

Relevant Statutory Provisions 9 Sections 6 and 9 of the Act are relevant to an application for an extended supervision order. Section 6 concerns the process of application for such an order, and s.9 is concerned with the determination of an application for an extended supervision order. 10 In respect of each category of final order referred to in the Act, provision is made for a preliminary hearing to be undertaken by which the Court is to consider whether the matters alleged in the supporting documentation would, if proved, justify the making of a final order. If they would, the Court is required to order that psychiatric and/or psychological examinations ought be undertaken. 11 Section 8 of the Act empowers the Court to make an interim supervision order if the offender's current custody will expire before the proceedings are determined, and the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. The interim supervision order cannot exceed twenty-eight days. It can be renewed from time to time, but not so as to exceed a total period of three months. As stated earlier, the Defendant's present custody will expire in two days' time, on 12 August 2009. 12 At both the preliminary hearing required by s.7(3) of the Act and when considering an application for an interim order under s.8(1), the Court is to assume that the allegations would be proved at a final hearing. The Court is not involved in the task of weighing the documentation relied upon by the Plaintiff or trying to predict the result of the case at a final hearing: Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 at [98]. 13 The words "if proved" in s.7(4) and s.8(1)(b) refer to an evidential, rather than legal, burden. It has been observed, in a number of decisions of Judges of this Court, that the provision is analogous to consideration whether there is a prima facie case established by the evidence of the prosecution in committal proceedings: State of New South Wales v Manners [2008] NSWSC 1242 at [7]-[9]. 14 The Plaintiff submits that the supporting documentation, being the evidence tendered in support of the application, would, if proved, justify the making of an extended supervision order under s.8(1)(b) of the Act. This, in turn, imports by way of s.9(2), the requirement that the matters alleged in the supporting documentation would, if proved, satisfy the Court "to a high degree of probability" that the Defendant "is likely to commit a further serious sex offence if he or she is not kept under supervision". It is necessary for the Court to have regard to the matters in s.9(3). 15 The words "satisfied to a high degree of probability" constitute the statutory standard of proof which is higher than the civil standard, but lower than the criminal standard: Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27]; Tillman at [5], [18] (Court of Appeal). 16 The Court of Appeal in Tillman v Attorney General for the State of NSW (2007) 70 NSWLR 448 at 461-462 [89]-[90] determined that the word "likely" in the first limb of s.17(3) of the Act denotes a degree of probability at the upper end of the scale but not necessarily exceeding 50 per cent. In this respect, the word "likely" does not mean "more probable than not". The same reasoning applies with respect to s.9(2). 17 In the case of an application for an extended supervision order, the burden is on the Plaintiff to satisfy the Court to a high degree of probability that the Defendant is likely, in the sense described above, to commit a further serious sex offence if he is not kept under supervision. 18 Section 6 of the Act sets out certain threshold criteria which the Plaintiff must satisfy. In view of the concession made by counsel for the Defendant with respect to jurisdiction to make the present orders, and having considered the matters myself independently, I am satisfied that the threshold criteria for the purpose of s.6 have been established in this case.

Section 9(3) Factors 19 I turn to matters which bear upon one or more of the factors which the Court must have regard to under s.9(3) of the Act. Given the limited nature of the Court's function at this interlocutory hearing, I will not make extensive reference to these matters. However, it is appropriate to consider these factors, given the requirement that the Court satisfy itself that the orders sought by the Plaintiff ought be made. I will refer in what follows to broad categories of evidence, rather than the statutory list of factors in the order in which they appear in s.9(3) of the Act. 20 The Defendant has a number of criminal convictions for serious sexual offences. In 1980, whilst fifteen years of age, he committed an offence of indecent assault upon a thirteen-year-old girl. This was an offence involving unwanted sexual contact with a young girl and the offence was dealt with by way of probation for two years. 21 Some years later, in 1989, the Defendant, then aged about twenty-four years, committed offences of break, enter and have sexual intercourse without consent, and having sexual intercourse without consent, with a twenty-nine-year-old woman. These were described as most serious crimes in the sentencing remarks of his Honour Judge Solomon in the District Court on 14 December 1990. It appears that the Defendant was affected by alcohol at the time of the commission of the offences. He entered the premises of the victim, and made threats of violence against her and her child, culminating in several sexual offences being committed against her over a period of time. Custodial sentences were imposed. 22 Following his release on parole for those matters, and whilst still on parole, the Defendant committed in 1995 offences of aggravated sexual assault without consent against a thirteen-year-old girl. At the time, the Defendant was living in a de facto relationship with the mother of the child. There were a series of offences committed over a period of months, involving sexual intercourse with the young girl. At this time, the Defendant was about thirty years of age. 23 It is noteworthy that psychiatric evidence adduced on his behalf at the sentencing hearing, in the form of a report of Dr Koller, psychiatrist, described the Defendant as having "a somewhat confused notion of sexuality, rights and wrongs". The sentencing remarks of his Honour Judge Shillington QC in the Wagga Wagga District Court on 21 March 1997 again emphasised the seriousness of these crimes, and a custodial sentence was imposed. 24 There have been a number of offences committed by the Defendant under the Child Protection (Offenders Registration) Act 2000. I have mentioned the offence, for which he is presently still in custody, described as the index offence, for the purpose of this application. This offence involved events on 11 April 2008, when the Defendant was observed by police working on a children's amusement ride at a country show. He was seen interacting with, and picking up, young children to assist them on to the ride. He was convicted in the Local Court and sentenced to imprisonment, the end of which he is presently serving following revocation of parole. 25 In addition, there are two other offences on the Defendant's record for failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000. These were offences committed in September 2006, and involved failure to comply with reporting conditions under the Act and failing to report a new address and employment details. These offences are significant, given the recent failure by the Defendant to comply with fundamental statutory obligations arising from his history of offending. 26 In addition, the Defendant has a history of offending for non-sexual offences, many of which, it appears, are associated with the abuse of alcohol. These include stealing, illegal use of a motor vehicle, assault, at least five offences of driving with either the low, mid or high range prescribed concentration of alcohol, offences of driving whilst disqualified, break, enter and steal, malicious injury to property and other offences. 27 A significant issue on an application such as this involves the extent to which a person has undertaken sex offender treatment programmes whilst in custody. This feature operates significantly against the present Defendant. The evidence reveals that the Defendant has declined to undertake the CUBIT programme whilst in custody. There have been a number of opportunities for him to undertake this or other custodial sex offender treatment programmes, but he has declined to do so. 28 In 1997, he commenced the introductory SORT (Sex Offenders Re-Direction Training) programme whilst at the Junee Correctional Centre, but he withdrew from the programme after only four weeks. His stated reason for withdrawal was that he was unable and unwilling to address sensitive issues in his past. He was offered another place in the programme later that year, but did not take up the offer. 29 The Defendant was subsequently assessed as needing a high intensity programme, in the form of the CUBIT programme conducted at the Long Bay Correctional Centre, having regard to his high risk of sexual reoffending. 30 He has declined to enter the CUBIT programme. That programme is presently the only custody-based programme designed for high-risk sex offenders. There is no community-based treatment programme for high-risk sex offenders such as the Defendant. The Department of Corrective Services presently runs only post-treatment maintenance programmes for high risk offenders who are subject to a form of supervision order (such as an extended supervision order or release on parole) and who have already undertaken the CUBIT programme prior to release from custody. Within the general community, the Department conducts a sex offender treatment programme designed only for low risk sex offenders. This programme is not suitable for the Defendant, given the assessment which has been made that he is a high-risk sex offender. 31 It is not necessary to set out in elaborate detail the opportunities which the Defendant has had over the years to enter the CUBIT programme. The evidence reveals that, in March 2000, he signed a form indicating he was not then interested in participating in the CUBIT programme. In 2001, he indicated again he was not interested in undertaking the CUBIT programme. By November 2001, however, the Defendant had indicated an interest in undertaking the CUBIT programme and was offered a place in it. By January 2002, however, the Defendant had changed his mind and he signed a form indicating he had decided not to take the place that had been offered to him. His then stated reason for declining to participate was that he did not wish to take part in sessions that were videotaped. 32 In a January 2002 report of a psychologist, the Defendant was recorded as expressing his reluctance to proceed with the sex offender programme because of his perception that he felt pressured at a time when he was not ready to deal with certain sensitive issues, including his sexual offences. 33 In June 2003, the Defendant was recorded again in departmental records as being unwilling to participate in CUBIT, and further reference is made again in records to that view being expressed in May 2004. 34 The evidence before the Court today reveals that both static and dynamic risk assessments have been undertaken with respect to the Defendant. The static or actuarial assessment conducted (by reference to STATIC-99), and the dynamic risk assessment undertaken by reference to the subjective circumstances of the Defendant have led to the conclusion that he is classified as an untreated high risk sex offender. The position is exacerbated, so the Plaintiff submits (and there is evidence to support this proposition), by a number of statements made as recently as June 2009 by the Defendant indicating thought processes with respect to sexual activity with children that are distorted and inappropriate. 35 If the Defendant had undertaken the CUBIT programme when the opportunities had presented themselves whilst in custody, these thought processes may have been addressed. However, the position has now been reached where he is about to be released into the community, without any conditions governing his release, and in circumstances where he, at the age of 45 years, has inappropriate thought processes with respect to sexual activity with children and where, unless the present orders are made, there will be no regulation or supervision within the community which may be undertaken in the interests of the community. 36 The risk assessment report of Mr Sheehan, psychologist, dated 26 June 2009, and Mr Sheehan's affidavit itself, provide significant evidence in support of the Plaintiff's present application. 37 The Plaintiff points as well to the Defendant's long standing problem with alcohol, which appears to have played a part with some of his sexual offending, and certainly a range of other offending. This is a significant issue with which he will need to grapple within the community upon release. 38 The Plaintiff points as well to a history of breaches of parole, good behaviour bonds and supervision orders which bear upon an assessment of his risk of recidivism. I have already mentioned that the 1995 offences were committed whilst the Defendant was on parole for his earlier serious sex offences. In addition, there have been offences committed in 2006 in breach of good behaviour bonds, and offences involving contravention of an apprehended domestic violence order in December 2006, which were in breach of good behaviour bonds. All of this bears upon the question of the appropriateness of making orders under the Act. 39 In addition, there is the breach of parole referred to which led to the revocation in April this year of the Defendant's parole and his return to custody. Thus, there is an extensive history of breaches of orders whilst the Defendant has been in the community, including the very recent breach this year. 40 I have not enumerated individually the s.9(3) factors. However, many of them are overlapping and the factual matters to which I have referred bear upon them. 41 The Plaintiff submits, by way of summary, that the Defendant has been assessed as presenting a high risk of sexual reoffending, having regard to both actuarial and clinical risk assessments, that he has a history of committing sexual offences against females extending over a period of years in his life (as an adolescent, as a man in his mid 20s and as a man of about 30), and then a range of other offences to which reference has been made. The refusal to undertake the CUBIT programme, combined with a longstanding problem with alcohol and a lengthy history of non-compliance with parole orders, bonds and other supervision orders, are emphasised. 42 Mr Sheehan, in his report refers to a scenario which he contends is a quite realistic one, which could see the Defendant upon his release, through a combination of factors including a relationship, the use of alcohol and other pressures, finding himself in circumstances where the commission of sexual offences is more than on the cards. I do not, for the purpose of this judgment, detail the scenario referred to by Mr Sheehan. It is sufficient to note that there is substantial support in the material to which Mr Sheehan refers for that scenario to be regarded as a realistic one. 43 I am well satisfied that the evidence before the Court warrants the making of the orders sought by the Plaintiff today. The individual factors referred to in s.9(3) of the Act all relate, directly or indirectly, to the safety of the community, the first factor referred to in s.9(3)(a) of the Act. 44 There is a proper foundation for the making of the orders sought in paragraphs 1 and 2 of the Amended Summons.

Proposed Conditions 45 The conditions which are sought, as part of the interim supervision order, are in the form annexed to the Amended Summons. One condition only has attracted specific submissions. Condition 24 relates to the use of sex drive reduction medical treatment or therapy, including anti-libidinal treatment if prescribed by a medical practitioner. 46 The point that has been made by Mr Thiering in submissions concerns the Defendant's consent to the use of such treatment if those circumstances presented themselves. Both Senior Counsel for the Plaintiff and Mr Thiering agree in submissions today that the use of sex drive reduction medication on the Defendant under Condition 24 could only occur if it was prescribed by a psychiatrist, and that it would not be prescribed by a psychiatrist without the informed consent of the Defendant. Tests would be required, in any event, to determine whether there was any physical factor which suggested that such medication ought not be used. Thus, the one area of controversy raised with respect to the conditions is addressed in that fashion, for the moment at least.

Orders 47 I am satisfied that orders should be made in accordance with the draft orders handed up today. As I indicated, I propose to make orders, with Order 3 being varied to say at the end "at 10.00 am on Monday 7 September 2009" and with Order 4 saying "list the matter for final hearing on 7 October 2009 with a two to three day estimate". 48 I make orders 1, 2, 3, 4, 5 and 6 in accordance with the Orders which I have signed and dated.

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