State of New South Wales v Russell

The case advanced by the State in support of the orders sought in summary

1. The State submitted that the preconditions set out in the CHRO Act enlivening the jurisdiction of the Court to make the orders sought in the Summons at the preliminary stage are satisfied for the following reasons: 1. The defendant is an "offender", as defined in s 4A of the CHRO Act, being over 18 years of age and having been sentenced to imprisonment following his conviction for both serious violence offences and serious sex offences as defined in ss 4 and 5A(1) of the CHRO Act ("the offender precondition"); 2. The defendant is a "detained offender" pursuant to s 13B(2) of the CHRO Act as he is currently subject to a CDO imposed by Button J on 7 December 2018. That order is due to expire on 11 December 2019 ("the detained offender precondition"). The defendant is also serving a sentence of imprisonment of 9 months with a non-parole period of 6 months for an assault committed against another inmate. The non-parole period is due to expire on 16 January 2020. The overall sentence will expire on 16 April 2020. A common assault is not a serious offence of violence under the CHRO Act; 3. The preconditions in ss 5B or 13B which the State must meet in order to commence proceedings are satisfied, the application for orders under the CHRO Act being filed when the defendant was "a detained offender ("the application precondition"); 4. The Court will be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sex offence if an order for his extended detention or his extended supervision is not made ("the unacceptable risk precondition").
2. Pursuant to s 18A of the CHRO Act, the Court has the power to make an IDO where it appears that: 1. The offender's current custody (if any) will expire before the proceedings are determined; and 2. The matters alleged in the supporting documentation would, if proved, justify the making of an ESO or a CDO.
3. Section 10A of the CHRO Act provides a similar power for the making of an ISO.

The position of the defendant

1. For the purposes of the preliminary hearing, the defendant, through his counsel, did not oppose an order for an IDO for a period of 28 days to date from the expiration of the non-parole period imposed for an assault committed against an inmate in custody, being 16 January 2020. Through his counsel he accepted that the statutory test for the making of an IDO is satisfied, that is, that the matters alleged in the supporting documentation relied upon by the Crown, if proved, would justify an order for a CDO or an ESO.
2. Although the Court is obliged to satisfy itself that the statutory test in s 18A of the CHRO Act for the making of an IDO is met, the approach taken by the defendant means that the assessment of the risk that he will commit another serious offence of violence or another serious sex offence if not kept in detention or under supervision (the test to be applied in considering whether a CDO or an ESO should be made) and whether, on the assumption that the material facts in the supporting documentation are proved, a CDO or ESO would be made, can be dealt with in a summary way.
3. In that regard I have been assisted by the consideration given by Button J to the application by the State for a CDO for a period of 12 months, an application which his Honour heard on 23 November 2018 and which was the subject of orders made on 7 December 2018 (see State of New South Wales v Russell [2018] NSWSC 1880).
4. In particular, I have been greatly assisted by his Honour's rendition of the defendant's background and his antecedents, the views of the sentencing judges before whom the defendant has appeared, and the various matters to which his Honour was obliged to have regard under ss 17(4)(h) and (h1) of the CHRO Act when determining to impose a CDO. They are set out in full below. They are also matters to which I am obliged to have regard in these proceedings, although not to the same level of detail given the approach the defendant has taken to the application for an IDO and related orders at the preliminary hearing.
5. At [1]-[31] of the decision, his Honour noted the following: Mr Brett Thomas Russell (the defendant) was born in November 1962, and accordingly is 56 years of age. An Aboriginal man, he grew up in La Perouse in the south-eastern suburbs of Sydney in difficult and deprived circumstances. Among the most adverse of those were that both of his parents were alcoholics, and that he was subject to physical abuse as a child. The most noteworthy aspect of his life since then is that he was first detained pursuant to orders of the Children's Court in September 1974 (before his twelfth birthday), and was first imprisoned in May 1981, before he had turned 20. Since that time, as a result of committing many offences of sexual violence and physical violence, he has spent a large proportion of his life in prison, and is institutionalised. I shall expand on those sad statements by proceeding to summarise his interactions with the criminal justice system. In doing so, I shall not refer to offences of dishonesty or to do with driving, because I regard them as virtually irrelevant to the proceedings before me. I shall also not recount allegations that were not proceeded with by the prosecuting authorities, or that led to verdicts of not guilty, either from a judicial officer or a jury. That is because, although I do not regard such matters as entirely irrelevant to proceedings such as these, I give them minimal weight. Forty years ago, the defendant was placed on probation by the Children's Court in October 1978 for assault occasioning actual bodily harm. In 1982, he was fined for, amongst other things, common assault, and discharging a firearm in a public place. In December 1983, he was sentenced by the District Court to a head sentence of penal servitude for six years with a non-parole period of two years for an offence of robbery. In 1985, in the Local Court at Goulburn, he was sentenced to two months' hard labour for an offence of common assault. Subsequently, he received a short cumulative sentence for an offence of escape. In May 1990, the defendant was sentenced to imprisonment for twelve months for counts of assault occasioning actual bodily harm and common assault, and imprisonment for two years for one count of malicious wounding. In summary, the defendant had, without provocation, punched a 17-year-old girl in the face a number of times, dragged her by her hair, threw her to the ground and took her handbag. He threatened to kill the victim if she told anyone about what he had done. A few weeks after that incident, the defendant was seen to strike his then-girlfriend, stab a man who intervened, and assault another two men who also intervened. In June 1990, he was sentenced by Judge Madgwick QC in the District Court for a number of offences, including maliciously inflicting grievous bodily harm and sexual intercourse without consent. He received a total head sentence of imprisonment for four years, with a total non-parole period of two years. In a nutshell, the grievous bodily harm was inflicted upon a male victim by the defendant when the victim refused to let the defendant drive, on the ground that he was obviously drunk. The defendant elbowed the victim to the face, and kicked the victim a number of times to the head. After witnessing this assault, the female victim called out to the defendant to stop, the defendant reacted angrily, and punched the victim to the back of her head. He then took her to a toilet block, where he raped her several times. In his remarks on sentence, Judge Madgwick emphasised: the defendant's pleas of guilty; his "severe disturbances in his childhood"; his prior criminal record; his abuse of alcohol and illicit drugs; his motivation towards rehabilitation; and the finding that "the matter cannot overall be treated as one at the top of the range of seriousness". In November 1990, the defendant, whilst in custody, assaulted another inmate by punching and kicking the victim's face and upper body. The victim lost consciousness as a result. The defendant was sentenced to imprisonment for 16 months for two counts of assault occasioning actual bodily harm, and imprisonment for 3 months for a further count of assault occasioning actual bodily harm. In 1996, the defendant was sentenced to imprisonment for four months after he assaulted an inmate in custody. The defendant had repeatedly punched the victim to the face. In December 2001, he was placed on a suspended sentence by the Local Court for three counts of aggravated indecent assault. The victim was 13 years old when the defendant touched her breasts, put his hand on her vagina, and kissed her mouth. In March 2003, he was sentenced to imprisonment for four months for two counts of assault occasioning actual bodily harm. In a nutshell, the defendant violently assaulted his female and male roommates. He punched the male roommate to the jaw and back, and left the female roommate unconscious with injuries to her head. In June 2004, he was sentenced to a head sentence of imprisonment for 18 months with a non-parole period of nine months for assault occasioning actual bodily harm. The defendant had assaulted his then-girlfriend, with the victim suffering a swollen eye, bruising to her mouth, and soreness to her ribs and abdomen. He also threatened to kill her. In March 2008, the defendant, whilst on parole, punched his then-girlfriend a number of times, and said to her "I'll kill you, you fucking cunt". In April 2015 in the District Court, following a plea of guilty in late 2014 (I infer that for some reason the proceedings were in abeyance for an extended period), Judge Frearson SC sentenced the defendant for two counts of assault occasioning actual bodily harm and one count of assault to imprisonment for 18 months (which was completely concurrent with the total sentence for the "index offences", described below). In July 2009, the defendant was sentenced by Judge Woods QC for two counts of sexual intercourse without consent and two counts of indecent assault, after his conviction at the conclusion of a trial by jury. His Honour imposed a total head sentence of imprisonment for nine years, to commence on 4 October 2009 and conclude on 3 October 2018, with a non-parole period of seven years that concluded on 3 October 2016. In a nutshell, the offences were committed in April 2008 against a young woman aged 19, when the defendant was aged 46. The victim lived next door to the defendant and was "a naïve and unworldly young person". During a visit to a park at Watsons Bay, the defendant and the victim sat on some grass, and the defendant engaged in actions constituting indecent assault. The defendant then inserted his fingers in the victim's vagina and licked her vagina without her consent. Later that same day at his residence, whilst the victim was alone in the defendant's partner's son's room, the defendant offered the victim a drink, she asked him to leave, and he demanded that she look up some pornography on a computer for him, threatening that he would kill her if she did not comply. The defendant then put his fingers in the victim's vagina without her consent. Judge Woods, in his remarks on sentence, emphasised: the objective seriousness of the offending; the defendant's "long and tragic history of criminality flowing from deprived family circumstances and exposure to violence"; his extensive criminal history; the lack of "any realistic hope of rehabilitation"; the defendant being "thoroughly institutionalised"; and the conclusion that "a significant factor in sentencing this man should be simple prevention". An appeal against sentence to the Court of Criminal Appeal was successful with regard to an aspect of the sentence structure, but had no practical effect on the total head sentence and total non-parole period. In November 2017, the defendant was charged with committing assault occasioning actual bodily harm against a fellow inmate. CCTV footage showed the defendant deliberately emptying a cup of hot water onto the victim after they exchanged words. The victim suffered burns to his face. In September 2018, the defendant pleaded guilty, and was convicted with no penalty imposed. The defendant was not released at the conclusion of the seven year non-parole period in early October 2016. Indeed, he was not released during the entirety of his parole period of two years. And, at the conclusion of the entirety of the head sentence of nine years in October this year, he was placed on an interim detention order (IDO) by McCallum J: see State of New South Wales v Russell (Preliminary) [2018] NSWSC 1396. The result of the most recent orders made with regard to the defendant is that he has been in continuous custody since early April 2008, a period of ten and a half years. Speaking more generally, since early 1985 (that is, well over three decades), by my analysis of his custodial history the defendant has never lived in the community for a continuous period of more than two years. That is because, the evidence demonstrates, his parole has been breached on every occasion upon which he has been subject to it. And it is noteworthy that the offences that led to the sentences imposed by Judge Woods were committed on 6 April 2008, a little over one month after the defendant was released to parole on 4 March 2008. Turning now from courts and prisons to a discussion of the life of the defendant in broader terms, from an early age he experienced learning difficulties, and was described as "easily slighted". In the past, some have ascribed that to paranoia, not just a quick temper. He commenced to use alcohol at the age of 12, cannabis at the age of 14, and has subsequently been diagnosed with a substance use disorder with regard to alcohol and amphetamines. He has had a number of long-term romantic relationships, but has never married. He has also fathered many children, however the exact number is not entirely clear on the evidence. He has been diagnosed as suffering from mental conditions in the form of anxiety, anti-social personality disorder, and the problem with substances to which I have referred.
6. I have also been assisted by his Honour's treatment of the reports of 5 November 2018 furnished by Dr Furst and Mr Watson-Munro (separately exhibited in the proceedings before me) and the Risk Assessment Report of Mr Ardasinski of 16 March 2018 (also separately tendered) in which they each determined the defendant to be in a high risk category of reoffending violently and sexually even if under extended supervision. Mr Ardasinski considered that the defendant's position within a high risk category of future offending was due to a number of factors, including: his personality disorder and his presentation with a large number of psychopathic traits; his lack of remorse; his hostility towards women; his institutionalisation; his chronic alcohol use; and his poor response to supervision. His Honour also recorded that Mr Ardasinski found the defendant to be "relatively criminally versatile" and that his risk (of reoffending) remains "chronic".
7. For present purposes, I also note that Mr Ardasinski observed that the defendant's offending appeared to be: … quite reactive, often in response to some perceived slight (suggestive of issues with general and emotional regulation) and has largely occurred within the context of substance misuse, mostly alcohol.
8. Mr Ardasinski also observed that in the period leading up to the defendant's release to parole in 2008 (shortly prior to the commission of the 2009 index offences), there were reports of sexually predatory behaviour towards younger inmates. Mr Ardasinski considered that this may have been indicative of an increasing level of sexual preoccupation in the lead up to sexual offending.
9. Mr Ardasinski considered a number of actuarial and dynamic risk assessments. Based on those assessments, he considered that a number of dynamic factors were relevant to the defendant's risk of sexual reoffending and his risk of violence. In summary, the factors are as follows: 1. Substance abuse (specifically alcohol consumption but also other drugs). 2. Lack of interpersonal intimacy skills, hostility towards women. 3. Personality disorder and sense of adult identity as "offender". 4. Increasing sexual preoccupation, sexual entitlement issues. 5. Victim access, lack of consideration as to impact of offending on self or others. 6. Being told "No" or otherwise not getting his way, or perceiving an insult.
10. Mr Ardasinski concluded that the defendant was in the high risk category for both sexual offending and violence. He considered that the most likely scenario for sexual offending would involve forced sexual intercourse against a known female acquaintance or intimate partner (possibly after physical violence), and noted that it may involve the use of a weapon. He considered the likely motivation to be sexual gratification/release, or that it may proceed from a domestic dispute in relation to which the defendant perceives a slight or feels rejected. Mr Ardasinski also outlined a potential scenario in which the defendant finds a vulnerable teenage victim who is able to be coerced into sexual contact without the need for physical coercion (such as in the 2008 sexual offences).
11. Mr Ardasinski considered that, given the 2008 conviction for penetrative sexual activity with a teenage victim, it was "possible" that any future sexual violence could approach the threshold of a serious sexual offence. He noted that whilst the defendant had no convictions for "serious violence" since 1990, his potential for aggression within the context of his sexual offending and independent of it has yet to be adequately addressed.
12. At the time of the preparation of the Risk Assessment Report tendered in the proceedings before Button J, the defendant had recently accepted a place on the custody-based intensive therapy ("CUBIT") program. Mr Ardasinski considered that a short CDO may allow completion of the program and, in that way, a means of assessing whether the defendant had addressed his sexual offending in a meaningful and constructive way. Subsequent events have proved otherwise.
13. In determining the State's application for a CDO, Button J made the following findings: 1. If released without any order the defendant would pose an unacceptable risk of committing a further serious offence. In reaching that conclusion, his Honour said: I think that the future of the defendant by way of serious offending as defined in the Act if simply released - without any conditions on his liberty - cannot be predicted merely to a high degree of probability; I think that it can be assessed as being a virtual certainty. 1. Even a "lengthy and rigorous ESO would not sufficiently protect community safety". His Honour noted: … even with all of those conditions in place, one can foresee a very real risk of a deterioration in the defendant's emotional state, and his failure in the community by way of serious re-offending. 1. That a one year CDO should be imposed: … bearing in mind the possibility that substantial progress could be made by the defendant in custody during that period.
14. Following the imposition of the CDO the defendant returned to the CUBIT program (now referred to as the High Intensity Sex Offenders Program - "HISOP"). After a period of monitoring he recommenced on 15 February 2019, at which time he was subject to a behaviour management plan. On 21 March 2019 the defendant committed his most recent offence, assaulting another participant of the program. He was subsequently removed from the program and transferred to another wing, although he remains eligible to undertake the program if he were to make a new referral.
15. Since that time, the defendant has made it clear to CSNSW that he is unwilling to undertake the program and unwilling to engage with psychological services. His intransigence was manifest by his behaviour in the preliminary hearing where he repeatedly interrupted the evidence of Ms Matsuo by declaring he would not engage with either the HISOP or VOTP programs. I have no confidence that the defendant will meaningfully engage in one-on-one psychological counselling, even if he were considered a candidate for that form of treatment which, given the limited resources for counselling of that kind within the prison system, is unlikely without a demonstrable change in the defendant's attitude and a willingness to abide by protocols set by treatment providers.
16. The Supplementary Risk Assessment Report, prepared by Mr Ardasinski in July 2019 for the purpose of these proceedings, was compiled without the defendant's cooperation. He refused to sign the relevant consent form and indicated verbally and by his conduct that he had no wish to participate in any psychological interview and would not consider a referral to any custody-based sex offender programs in the future.
17. The defendant refused to be interviewed for the purposes of the report. His attitude has not changed since that time. Accordingly, the supplementary report was prepared using what were described as "file materials alone", including the defendant's CSNSW case file which included the Offender Integrated Management System electronic case notes ("OIMS"). Particular emphasis was placed on the information collated in those materials since the earlier Risk Assessment Report prepared for the proceedings before Button J. It is unnecessary to set out the additional secondary materials to which Mr Ardasinski had access. It is also unnecessary to set out in detail the content of the supplementary report, save as to note that, in Mr Ardasinski's assessment the defendant presents with the same level of risk of reoffending in a serious sexual or serious violent way in 2019 as he did in 2018. It is necessary, however, on this application, to consider the impact of the defendant's lack of participation and compliance with the treatment programs.
18. Mr Ardasinski observed that: … if the literature on treatment dropouts is taken into account, [the defendant] may even be said to be at greater risk of recidivism than his peers who have completed treatment since May 2018 when [the defendant] joined their high risk cohort in the high-intensity treatment program.
19. I also note the following comments extracted from the Executive Summary to the report: If [the defendant] were to be subject to a further Continuing Detention Order, he may be able to complete programming in custody, provided he again consents. Unfortunately, if [the defendant] were to refuse to consent, he would not be able to access the relevant treatment process which is of sufficient intensity to address his very high risk of repeat offending. He is significantly institutionalised, which would also suggest that a graduated release from custody would give him the best possible chance of success in the community. Little has changed in his situation since 2018, and he was found to pose so grave a risk to community safety as to warrant preventive detention on a CDO a year ago. Further detention is likely to make [the defendant] angrier, and anger is a problem which has yet to be adequately addressed in treatment, and has resulted in poor decision-making (including further violence in custody). However, it would protect the wider community from further serious harm for the duration of his detention. There will be a continuing risk to other inmates from [the defendant] since he has demonstrated the propensity for institutional violence also, although this has not yet reached the threshold for 'serious violence' and may therefore be considered somewhat more 'acceptable'.

The cross-examination of Ms Matsuo and Ms Grabham

1. Counsel for the defendant accepted in final submissions that Ms Matsuo's evidence was intended to elaborate upon the custody-based treatment options currently available to the defendant in light of the very limited progress he has made to date in the treatment programs that it was anticipated he would participate in and benefit from over the course of the 12-month CDO imposed by Button J in December 2018.
2. The cross-examination of Ms Matsuo focused, in particular, on the High Intensity Sex Offenders Program (HISOP), a program delivered to inmates by CSNSW specialist psychologists in a group therapy format where participants reside in self-contained units comprising what was described as "a modified therapeutic community" designed to address the risk of future serious sex offending. As noted above, the defendant commenced that program in May 2018, and was enrolled at the time of the final hearing before Button J in November 2018 when his Honour made an order for his continued detention for a period of 12 months. By the time final orders were made on 7 December 2018, the defendant had been suspended from that program.
3. On 15 February 2019, the defendant recommenced the program subject to a behaviour management plan. However, he was excluded from continued participation on 21 March 2019 due to the physical violence he inflicted against another participating inmate.
4. Despite the defendant's categorical unwillingness to be considered for reintroduction into the program and an unwillingness generally to engage with psychological services (a position he has made clear in the Supplementary Risk Assessment Report prepared by Mr Ardasinski, and a position he volunteered from the AVL suite at Junee Correctional Centre during the course of the preliminary hearing in repeated interruptions in the course of Ms Matsuo's evidence), Ms Matsuo was invited to comment upon other custody-based treatment alternatives for offenders assessed to be in the moderate to high risk category of committing serious offences of violence, including the Violent Offenders Treatment Program and the EQUIPS suite of programs. To the extent that the defendant was willing to participate in treatment programs in the future, and that CSNSW regarded him as suitable for inclusion, given persisting questions concerning the risk of a repetition of violence towards other participants or program coordinators and the defendant's generalised attitudes of defiance and belligerence, Ms Matsuo was also invited to comment on the likely duration of those programs.
5. Ms Grabham's evidence was directed to the availability of community-based programs and accommodation options in the event that at the final hearing of the Summons the Court was satisfied that an ESO could adequately manage the risk of the defendant committing a further serious sex offence or offence of violence.
6. The evidence of both witnesses was of marginal relevance at the preliminary hearing given the attitude of the defendant, through his counsel, that the making of an IDO is not opposed. For that reason, it is not necessary to refer further to their evidence for the purposes of the question of whether interim orders should be made. Their evidence will, however, be relevant to the issues that are likely to present at the final hearing of the Summons.

Consideration

1. Taking into account the balance of the matters set out in s 17(4) of the CHRO Act to which I am obliged to have regard, albeit in a qualified way for the purposes of the preliminary hearing, I emphasise that the defendant's compliance with custodial protocols and rules whilst subject to the continuing detention order imposed by Button J and his poor participation in custody-based programs is such that, as Mr Ardasinski observed, little can be said to have moderated an assessed high risk of the defendant's future sexual and violent offending.
2. Having regard to Mr Ardasinski's report read more broadly, it seems to me to follow that there are presently no reasonable or practical means for the defendant to be managed in the community given his repeated problematic behaviours, his unpredictable and explosive interactions with staff and other inmates and his limited progress in treatment programs which are specifically designed, not only to address his risk of violent or sexual reoffending but, more generally, to address his personality and behavioural disorders.
3. The question for determination in the preliminary hearing is whether, if the matters in the supporting documents are proved, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sex offence or another serious offence of violence if not kept in detention or under supervision under the CHRO Act. I accept that it is not for the Court to assess the weight of the supporting documentation bearing on that question, or to seek to predict the outcome of the proceedings for final orders. Rather, the Court is to engage in an evaluative exercise taking into account all of the supporting documentation and, on the assumption that the facts alleged in the supporting documentation are proved, to determine whether those facts would justify the making of a CDO or, in the alternative, an ESO.

Determination

1. I am satisfied that the State has identified a complex of facts and circumstances in the supporting documentation which, if proved, would lead to a conclusion that the making of either a CDO or an ESO is justified. I am further satisfied that those assumed facts and circumstances establish, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious sex offence or a serious offence of violence if not detained or supervised under the CHRO Act, such that the interim orders for his continuing detention should be made with allied orders for his further examination by nominated experts.
2. In undertaking that evaluative assessment, I have given paramount consideration to the protection and safety of the community from the dangers posed by serious sex offenders and serious violence offenders who are assessed at a high risk of inflicting serious sex offences or offences of violence. In exercising the discretion in s 18A of the CHRO Act in favour of making an interim detention order, I am well persuaded not simply that an unacceptable risk of that kind will manifest if the defendant is not subject to continued detention, but that there is a risk of serious harm to others were those orders not made.

Orders

1. Accordingly, I make the following orders: 1. Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): 1. a qualified psychiatrist and a registered psychologist are to be appointed to conduct separate psychiatric and/or psychological examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; 2. the defendant is directed to attend those examinations. 1. Pursuant to s 18A of the Act the defendant is to be subject to an interim detention order for a period of 28 days to date from 16 January 2020. 2. Pursuant to s 20(1) of the Act the Court issues a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in order (2) above. 3. 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 in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard.

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: 05 December 2019