Mr Russell is the third eldest of twelve children. Both his parents suffered from severe alcoholism and he witnessed and sustained violence, particularly by his father, during the first ten years of his life. He has described that this behaviour became "normalised" for him.
Mr Russell attended La Perouse Primary School where he had severe conduct problems. He was placed at Chifley Primary School, in an activity-based specialised program for conduct-disordered children. He then briefly attended Matraville High School. He left school at the end of Year 7 barely literate or numerate.
Mr Russell spent his time between the ages of 11 and 15 years in various Boys' Homes as a result of his criminal offending. He was first incarcerated in September 1974 at the age of 11 and has since been incarcerated throughout most of his adult life.
In the periods where Mr Russell has been in the community, he has been largely unemployed, although he reports having some casual labouring and factory jobs. During these brief periods in the community he has fathered 12 children. He states that he is not in contact with any of them.
As for the applicant's drug and alcohol use, he started sniffing lighter fluid when aged 10 and commenced consuming flagons of port wine with friends from the age of 11. He became a binge drinker and experienced prolonged blackouts from alcohol intake. For about four years from the age of 12, he consumed marijuana in moderate quantities but subsequently became addicted to amphetamines. He has been described as having a poly substance abuse disorder: alcohol, petrol and cannabis.
[2]
Index offences (sentence being served at time of first CDO application)
On 16 March 2009, Mr Russell pleaded not guilty in the District Court to an indictment containing two counts of indecent assault contrary to s 61L of the Crimes Act and three counts of sexual intercourse without consent contrary to s 61 of the Crimes Act. Verdicts of guilty were returned on four of the five charges: two counts of indecent assault and two counts of sexual assault without consent.
Mr Russell had been released on parole on 4 March 2008 to reside with his partner (who he states has stuck by him and is still his partner to this day). Less than a month after his release on parole, Mr Russell went to a park in Watsons Bay with his 19-year-old female neighbour who was described by Wood QC DCJ as "a naive and unworldly young person". Mr Russell made sexual advances towards her which she rejected. He then digitally penetrated and licked her vagina without her consent. After the offending, he warned her not to disclose what had happened and threatened violence if she did so.
The day after these offences, he attended her home and demanded that she look up pornography on his behalf on the internet. He then digitally penetrated her vagina again without consent.
When sentencing the offender, Judge Woods QC noted the impact of this offence on the victim:
"The young girl was naive and trusting and her person was violated. I have carefully read the victim impact statement presented by her mother and I recall that evidence to the extent that it tells me that the young lady has been deeply disturbed by the offences. This is a conclusion which I would have reached in any event, regardless of the victim impact statement. The court notes the victim impact statement and although it would not cause me to increase the sentence I would otherwise have imposed, I take the opportunity to convey to the victim and her mother the sympathy of the court and the community in the circumstances of this case."
It is to be noted that when discussing this offence with the court appointed experts Ms Dewson and Dr Eagle, it became clear that the applicant considered these offences to be an act of infidelity rather than a criminal offence. Ms Dewson commented that Mr Russell claimed to take "full responsibility" for his behaviour, yet primarily focused on the "indiscretion" within his romantic relationship. In Dr Eagle's report, her description of his account of the index offence is as follows:
"…He said 'it was that time of the month for [his partner] and she was cranky. I wanted to leave. [The victim] came around. She was on the computer in the stepson's room. She was downloading porn. I didn't know that until later. I wanted to go to the pub to play the pokies. I went to Watson's Bay. I took her. I went home to my house and was arrested the next morning.' He said that she was young and watching porn sites. He stated 'am I being set up or what? Was she consenting? I thought she was consenting'."
[3]
The section 17(4) factors
The remaining material placed before the court in support of this application can be conveniently summarised under the various mandatory considerations in s 17(4) of the Act.
[4]
The offender's criminal history and any pattern of offending behaviour disclosed by that history, s 17(4)(h)
Mr Russell has a long criminal history beginning with his initial incarceration in 1974:
1. In 1974 he was convicted of three counts of assault as well as break, enter and steal and steal from a dwelling. He was sentenced to imprisonment.
2. In 1978 he was convicted of assault occasioning actual bodily harm and was sentenced to a 12-month period of probation.
3. In 1981 he was convicted of two counts of assault police and two counts of resisting arrest. He was sentenced to imprisonment for 3 months.
4. In 1981 he was convicted of common assault, and discharging a firearm in a public place. He received a fine for these offences.
5. In 1981 he was convicted of assault, resist arrest, stealing and malicious injury. He received a fine. Five months later he received more fines for driving as an unlicensed driver; assault; resist arrest; malicious injury and stealing.
6. In 1983 he was convicted of robbery and sentenced to 6 years imprisonment with a non-parole period of 2 years.
7. In 1985 he was convicted of common assault and sentenced to 2 years imprisonment.
8. In 1992 he was convicted of four counts of assault occasioning actual bodily harm, common assault and malicious wounding and sentenced to imprisonment for 3 years.
9. In 1992 he was convicted of the serious sexual and violence offences detailed above at [17]-[19]. He was sentenced to imprisonment for 3 years, with a total non-parole period of 2 years.
10. In 1991 and 1992 he was convicted of two counts of assault occasioning actual bodily harm and imprisoned for 16 months. He was also convicted of a further assault occasioning actual bodily harm and sentenced to imprisonment for 3 months. These offences were committed on another inmate while Mr Russell was in prison.
11. In 1996 he was convicted of assaulting another inmate and was sentenced to imprisonment for 4 months.
12. In 2001 he was convicted of three counts of aggravated indecent assault and placed on a suspended sentence. The victim was his 13 year old stepdaughter. Mr Russell touched her breasts, put his hand on her vagina, and kissed her. A condition of this suspended sentence was that Mr Russell completed a Sex Offender Rehabilitation Program. Mr Russell never attended this program. When discussing this offence with Dr Kerrie Eagle he denied the offences and said "she didn't want me to be with her mother."
13. In 2003, he was convicted of two counts of assault occasioning actual bodily harm was sentenced to imprisonment for 4 months.
14. In 2004 he was convicted of assault occasioning actual bodily harm and sentenced to a head sentence of imprisonment for 18 months with a non-parole period of 9 months. The victim was his then-girlfriend.
15. In 2006 he allegedly committed a number of sexual and violence offences on a female victim, his cousin. They were committed to the District Court for trial, some charges were ultimately not proceeded with and Mr Russell was found not guilty on the other charges.
16. In 2008 he was convicted of two counts of assault occasioning actual bodily harm and one count of assault and sentenced to imprisonment for 18 months. The victim was his current girlfriend.
17. In 2009 he was convicted of the index offences.
18. In 2017 he was convicted of assault occasioning actual bodily harm with no other penalty. This offence was committed on another inmate.
19. In 2019 he was convicted of common assault for an offence on another inmate and was sentenced to 9 months imprisonment with a non-parole period of 6 months.
Mr Russell's criminal record also discloses approximately 31 offences of break and enter, robbery, stealing and good in custody capable suspected of being stolen. These offences date from 1974 to 2009.
[5]
The views of the sentencing court: s 17(4)(h1)
The applicant was sentenced by Woods QC DCJ for the index offences on 2 July 2009. His Honour commented that the offender had a "long and tragic history of criminality flowing from deprived family circumstances and exposure to violence." When commenting on how many children Mr Russell had fathered, his Honour observed:
"Whether he fathered twelve children or some other number is not entirely clear, but certainly I accept that he does have numerous children.
This is relevant in the present case because [Mr Russell] is a strikingly handsome aboriginal man, who, it would seem, has little difficulty, during the limited time he is out of gaol, forming sexual relationships and fathering children, whatever be the precise number. The situation is quite extraordinary and indeed pathological. It would appear to explain much about this present case. While [Mr Russell] did not set out to arrange the circumstances in which he spent much of 6 April 2008 with the victim, once she was in his company he simply pressed on to some kind of sexual contact with her, however incongruous it was, however dangerous to him it may have been, or however non-consensual it was."
His Honour went on to observe that:
"Little in this sad history excites any realistic hope of rehabilitation. This man is thoroughly institutionalised by the prison environment and in my view a significant factor in sentencing this man should be simple prevention. Regrettably rehabilitation appears minimally relevant. Deterrence is an important consideration, both for him and for others who may be tempted to misbehave in this fashion. As I have said, it is a case where one important purpose of the prison sentence must be to keep him away from people who he may victimise. I say this bearing in mind the decisions of the High Court in Veen's case and I specifically identify the incapacitative element in this sentence within the range of what I judge to be the just desserts for this criminality, in light of other recognised principles of sentencing."
[6]
The results of expert assessments as to the likelihood of the offender committing a further serious offence: s 17(4)(c)
Mr Samuel Ardasinski is a psychologist employed by Corrective Services. He prepared a Risk Assessment Report ("RAR") for the previous CDO application and a supplementary report for this application.
Mr Ardasinski's first RAR was dated 16 March 2018. He noted Mr Russell's criminal history and summarised the circumstances of the index offences. He noted that Mr Russell fulfilled the criteria for anti-social personality disorder and also that he demonstrated elevated scores in terms of psychopathy, with "a high-level of psychopathic features which can be linked to poor treatment outcomes and increased violence risk, including sexual violence risk and general recidivism risk."
Mr Ardasinski recommended that Corrective Services continue to monitor Mr Russell and that it was important for him to complete program in custody, such as the Custody Based Intensive Treatment program ("CUBIT"). This program is now known as the High Intensity Sex Offender Program ("HISOP"). In his opinion, the most likely scenario for future offending by Mr Russell would involve forced sexual intercourse against a known female acquaintance or partner and may involve the use of a weapon to gain victim compliance. The likely motivation would be sexual gratification or release after a domestic dispute in which Mr Russell felt slighted. Alternatively, Mr Ardasinski stated that if Mr Russell found a more vulnerable teenage victim then he might use psychological coercion.
In Mr Ardasinski's supplementary RAR dated 2 July 2019, he opined that Mr Russell remains as high a risk now as he did in 2018 when the previous CDO was imposed. In fact, he opined that the risk is potentially higher due to the fact that Mr Russell dropped out of the CUBIT.
Mr Ardasinski described Mr Russell as a relatively criminally versatile offender and noted that there had been reports of sexually predatory behaviour in custody and sexual interactions with transgender persons. He stated that after Mr Russell re-started the HISOP he was not able to complete it because he assaulted another inmate. He re-iterated that Mr Russell's level of anger had risen and, as such, his risk assessment had not changed.
The two court-appointed experts who prepared reports for the final hearing before Button J were Mr Tim Watson-Munro, a forensic psychologist and Dr Richard Furst, a forensic psychiatrist.
In Mr Watson-Munro's report dated 31 October 2018 he noted that he was unable to complete formal risk assessment with Mr Russell (because of logistical issues in relation to the operating hours in the clinic and inability by the staff to remain in the clinic for supervision). In the absence of a formal risk assessment, Mr Watson-Munro stated that he was of the view
"…that Mr Russell poses a risk of committing further serious offences. The basis of this lies in his prior history and his ongoing custodial history, inclusive of episodes of violence in jail and alleged predatory sexual behaviour towards younger males. Until these issues are satisfactorily addressed through an ongoing and solid commitment to treatment, I believe that the risk cannot satisfactorily managed in the community."
Mr Watson-Munro cited Mr Russell's poor impulse control, intense substance use, poor interpersonal skills and inability to understand personal boundaries as the reason for this conclusion, stating that such issues "[needed] to be comprehensively addressed and treated prior to any realistic consideration of his involvement with treatment in the community referable to an ESO". He was concerned about Mr Russell's "continuing obfuscation" in relation to the index offences.
In Dr Furst's opinion, Mr Russell was in a category of offenders at a high risk of re-offending violently and sexually. He also expressed the view that there was only limited evidence that custodial-based treatment programs such as the CUBIT reduced the risk of re-offending.
In 2009, the psychologist who provided the report at the sentencing for the index offences before Wood QC DCJ, Mr Smith, opined that Mr Russell's early years involved a dysfunctional family characterised by high levels of alcohol, violence and fear. His opinion was that Mr Russell grew to young adulthood with "a strong sense of anti-social values, sense of being a victim, a strong sense of inadequacy and a fierce determination." Mr Smith reported that, "the adult years had been largely described as, a career offender." He also stated, that "over time it has taken very little pressure or frustration for [the applicant] to make the wrong decisions and his re-offending seems to occur very quickly."
[7]
The reports received from the persons appointed under section 15 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination: s17(4)(b)
Following the orders made by Fullerton J, Dr Kerri Eagle and Ms Chelsea Dewson were engaged to provide reports for the court for the final hearing.
[8]
Dr Kerri Eagle
Dr Eagle assessed Mr Russell on 6 February 2020. In a report dated 21 February 2020 she provided a summary of his demographic information, recent presentation, sexual offender program involvement, past psychiatric history, substance use history, index offences, prior sexual offences and prior violent offences.
Dr Eagle diagnosed Mr Russell as having a substance use disorder involving the use of alcohol and cannabis. However, she noted that this was in remission in a controlled environment.
She also diagnosed Mr Russell with an antisocial personality disorder. This was the basis of a "pervasive pattern" of disregard for the rights of others, unlawful behaviours, impulsivity, aggressiveness, reckless disregard for the safety of himself and others, consistent irresponsibility and lack of remorse. She stated that the offender had an entrenched negative attitude to the world and responded to conflict with aggression.
In her opinion, there was insufficient information to diagnose Mr Russell with a paraphilia. This was because his offending had been relatively opportunistic and appeared to be motivated by the vulnerability of the victim, rather than in response to sexual preference.
Dr Eagle assessed Mr Russell's risk of re-offending using the Static 99R, and the revised 2014 version, the results of which are summarised below. When assessing the combined results of these tests, Dr Eagle observed that:
"On the basis of a statistical risk assessment utilising the Static 99R and the Stable 2007, Mr Russell falls into the well above average category of sexual offenders (category IVb). Offenders within this category are reported to reoffend at least three to four times the rate of the average offender convicted of a sexually motivated offence. An offender in the well above average category has been found to reoffend sexually, on average, at a rate of 26.8% after 5 years (17.4 - 36.3 CI)."
Dr Eagle also used the Historical Clinical Risk Management 20 scale, Version 3 ("HCR-20-3"), as detailed below. In her overall assessment of Mr Russell' risk, Dr Eagle stated that Mr Russell was at a "substantially elevated risk" of committing a future serious sexual offence and a further violent offence. In her opinion, it was less clear whether the offender would commit a further serious violence offence. She explained her conclusion in the following terms:
"Mr Russell falls into a category of offenders at the highest risk of reoffending sexually and violently. The factors that are primarily contributing to Mr Russell's ongoing risk of reoffending include his poor insight and attitude to previous offending behaviours including his overall unwillingness to take responsibility for his actions; his emotional instability; his persistent negatives attitudes towards supervision and therapeutic programs; his distorted cognitions towards others and the world resulting in pervasive negative emotionality driven by grievances; and his limited prosocial support network or prospects for stability and employment in the community."
In Dr Eagle's opinion, Mr Russell could reduce his risk if he meaningfully engaged with a therapeutic process of intense psychotherapy once or twice a week for a long period of time. If he did so he might improve his conflict resolution skills and enhance his social cognitive skills. [Emphasis added.].
Dr Eagle explained the basis of Mr Russell's problems and why this form of therapy could work during her cross-examination as follows:
"…[W]hen you've been exposed to trauma, you can become quite hypervigilant so you see the world as a dangerous place because you've always - you've had so many experiences where you've been hurt or harmed, and so everybody is, you know, automatically in your mind, out to harm you. Now, that cognitive distortion, that may be able to be reflected on in an individual psychological session where there's some trust and explored, so that when he's faced with a situation where he assumes someone is about to hurt him, he might be able to reflect on that."
Dr Eagle further stated that Mr Russell's ability to cope in the community was unknown. His risk could be reduced if he obtained employment, complied with supervision, reduced impulsivity and stabilised his behaviour, emotions and thoughts. She recommended the highest level of support and structure in accommodation if the offender was to be released into the community. Such accommodation, in her view, was particularly important in managing the offender's risk. Dr Eagle considered an ESO of at least five years would likely be necessary to manage such risk. If appropriate accommodation was not available, Dr Eagle recommended a CDO for at least 6 months.
During her evidence in court, Dr Eagle was asked about her recommendation that Mr Russell have one-on-one psychotherapy and she stated the following:
"….people with the types of vulnerabilities that Mr Russell displays and that is basically vulnerabilities over a lifetime, where the vulnerabilities do appear to be quite entrenched, he's going to require regular individual psychotherapy at least on, say, a weekly basis, although that would be determined by a clinical psychologist after a period of assessment and continued, almost for the foreseeable future really, probably at least for sort of 12 months, but then you know, potentially for years if you're going to see some change or some sustained change in his behaviour.
Having said that, he may achieve some improvements in his ability to manage his emotions for instance or tolerate stress or interact with others over a shorter period of time, and that may enable him to engage in other types of programmes like ..(not transcribable).. group programmes, which I do still see as, as playing an important role. It's just that at this stage he's not capable I don't think of participating in those group programmes."
And later:
"I think even if he is provided with the intensive psychological therapy I don't think there's any guarantee that he's going to be able to address these problems quickly or even at all, but I think that's my best recommendation. However, if he didn't have any attempt at individual psychological therapy to work on these psychological vulnerabilities, then I think his risk will remain high and I think his risk will remain high to others around him generally, whether it be other residents, staff, the community at large."
[9]
Ms Chelsea Dewson
Ms Dewson is a registered forensic psychologist and provided a report on 25 February 2020. Ms Dewson's report was based on a 90 minute consultation with Mr Russell via AVL and other materials, such as Mr Ardasinski's report and previous risk assessments. She described Mr Russell's presentation and mental status, response to supervision, criminogenic treatment and psychosocial history. In her discussion of the offending with Mr Russell, she noted that he demonstrated little victim empathy and "appears to continue to engage in cognitive distortions in relation to his offending and these likely allow him to overcome any moral objections that he otherwise may have had to sexual and violent offending."
In her Psychological Assessment of Mr Russell, Ms Dewson noted that he has not had a documented history of psychopathology. However, she adopted the opinion of Mr Ardasinski that Mr Russell may have Antisocial Personality Disorder ("ASPD"). She explained that ASPD relates to a reduced moral sense or conscience and subsequent disregard for rules or the rights of others. She also added that the social and criminal history of Mr Russell likely met the criteria for a conduct disorder during childhood. She further observed that Mr Russell has a polysubstance abuse problem involving alcohol, petrol and cannabis.
Before indicating her conclusions as to the overall risk posed by Mr Russell, Ms Dewson made the following observations about the inherent limitations in any assessment process:
"It is important to note caution with respect to the practice of risk assessment. Although useful in guiding decisions about risk and the management thereof, the practice of risk assessment is subject to several important limitations. Specifically, given the base rate of some offending is relatively uncommon, the prediction of such behaviour is difficult. Secondly, actuarial risk assessments provide information that pertains to the risk posed by groups of individuals that were studied in the creation of the instruments and it is always unclear how any one individual will perform relative to the group that was studied. Further, risk assessments are by their nature limited to the data available and are bound by time. Risk assessments can change as new information becomes available, and all risk assessments have an appreciable level of error built into them. Risk assessments attempt to restrict the possibility that spurious factors, such as "gut feeling" and prejudice can sway judgment. Although research typically highlights the superiority of structured risk assessment over unstructured clinical judgment, the evidence supporting such assessments is moderately valid only."
Ms Dewson then summarised the previous risk assessments carried out by Mr Ardsinski, Dr Richard Furst and Mr Watson-Munro. Overall, she assessed Mr Russell as being a high risk for both sexual recidivism and violent re-offending. A potential risk scenario for him, in her opinion, would involve alcohol intoxication and physical or sexual violence against women known to him, especially after an incident such as a brief argument. She noted that "acts of violence are likely to occur during times of conflict or when he feels disempowered or ridiculed. In this context, weapons may feature in his offending; specifically, those which are commonly found within the home (e.g. knives) and sexual violence could be used to degrade the victim and as a means for Mr Russell to meet his own sexual wants".
In formulating this high level of risk, Ms Dewson echoed Mr Ardasinski's concerns about Mr Russell's inability to mitigate his risk factors in custody:
"In considering any progress made by Mr Russell in relation to addressing his offending, he presented to the assessment with an intellectual understanding of some risk mitigation concepts, although it doesn't appear that he has been able to implement these practices, as evidenced by recent violence within custody and his failure to complete prescribed treatment. To echo the points made by Mr Ardasinski, there is evidence to suggest that treatment failure is associated with an increased level of risk. As such, any potential benefits he may have gained whilst within the HISOP program have likely been balanced (or potentially outweighed) by the risks associated with treatment drop out. In taking into consideration this information, Mr Russell appears to have made little progress in ameliorating his risk of reoffending and is therefore considered to remain at a high risk of sexual and violent offending in the community."
In her opinion, Mr Russell's risk could be reduced with greater investment on his behalf to engage in treatment, and to make changes on an emotional level. She stated this was best achieved by individualised treatment in addition to the group-based program in custody. She suggested that:
"Should he agree to participate in a treatment program, it may be beneficial for him to engage in a few individual based sessions prior to commencing, with the intent to prepare him for treatment and to discuss contingency plans should he encounter any difficulty within the program."
Ms Dewson recommended the Violent Offenders Treatment Program ("VOTP"), or, given the concerns about his safety, the HISOP. She endorsed a CDO for a period of 2 years.
In her evidence in court, Ms Dewson was asked about her opinion regarding Dr Eagle's recommendation that Mr Russell have weekly psychotherapy. She responded as follows:
"I think there's two different circumstances. There's one where he does individual treatments for the purpose of them doing individual treatments. The other is where he does individual treatments for the purpose of entering into a group‑based program. They have quite different durations. Should he do individual treatment on its own I imagine that that would take quite a long time, possibly a number of, of years. If he engages in the individual sessions and then goes into a treatment program I imagine that that would be much shorter, because essentially it would almost act as a bit of a Band‑aid fix to allow him to get into the program in order to develop those, those more or those better skills that he needs for the long term effects regulation."[Emphasis added.]
[10]
The results of any statistical or other assessments as to the likelihood of the offender committing a further serious offence, s 17(4)(d)
A number of tools were used in the expert reports which assessed Mr Russell's likelihood of committing a future serious offence. Most of these tools involved an identification of Mr Russell's static and dynamic risk factors. Static factors referred to unchangeable factors (such as prior offending) and dynamic (such as community support) are enduring characteristics that may be associated with the likelihood of re-offending.
[11]
Static 99-R
The Static 99R is an actuarial risk assessment tool which evaluates the risk of sexual recidivism among adult male sexual offenders based on their demographic and criminal history. The test contains ten items developed from data from four samples across Canada and the United Kingdom. When Dr Eagle utilised this tool in her assessment of Mr Russell in her report of 21 February 2020, she placed him in the "well above average" category.
Similarly, in Ms Dewson's report of 25 February 2020, she assessed Mr Russell as Risk Level IVb ("well above average risk"), with a total score of 7 out of 10. She noted that Mr Russell's risk was higher than 97.2% of sexual offenders. Offenders with the same score as Mr Russell's score generally had a recidivism rate of 27.2%, with a margin of error in this estimate of 24% to 31%. Ms Dewson was also of the opinion that the Static 99R test "has moderate accuracy in ranking offenders according to their relative risk for sexual recidivism".
Mr Ardasinski scored Mr Russell according to the Static 99R and, in his assessment; Mr Russell fell into the highest risk category for general and sexual re-offending. In Dr Furst's report dated 3 November 2018, he assessed Mr Russell according to the Static-99R and Mr Russell was classified as "high risk".
[12]
Stable-2007
In her report dated 21 February 2020, Dr Eagle also utilised the revised 2014 version of the Stable 2007 tool. The Stable 2007 uses empirically-based risk factors. In Dr Eagle's assessment, Mr Russell fell into the "above average risk" category, which is the highest category; although Dr Eagle noted that this tool should be used with caution with an Indigenous offender.
Mr Ardasinski also assessed Mr Russell with the Stable 2007, noting that Mr Russell had a high density of criminogenic needs and required a high level of intervention and/or supervision. He also fell into the high risk category when Mr Ardasinski assessed him against the RSVP. Mr Ardasinski identified six criminogenic needs that needed to be addressed:
1. Substance abuse (specifically alcohol but also other drugs);
2. Lack of interpersonal intimacy skills, hostility towards women;
3. Personality disorder, and sense of adult identity as an 'offender';
4. Increasing sexual preoccupation, sexual entitlement issues;
5. Victim access, lack of consideration as to the impact of offending on self or others;
6. Being told 'no' or otherwise not getting his way or perceiving an insult.
[13]
Spousal Assault Risk Assessment ("SARA")
Ms Dewson also assessed Mr Russell using the SARA, which is a 20-item tool used to assess the likelihood of domestic violence offending. She concluded that Mr Russell had a high risk of re-offending. This was due to his history of violence against acquaintances and release/community supervision violations. She also noted that he was unemployed, witnessed childhood family violence, had impulsivity and behavioural instability, was sexually jealous and had committed sexual violence, used weapons, violated no-contact orders and likely holds attitudes that condone spousal violence.
[14]
Violence Risk Scale ("VRS")
The VRS is another actuarial tool which is used to assess an offender's static and dynamic risk factors and their capacity for post-release violence. Offenders are scored against six static and 20 dynamic variables. Ms Dewson stated in her report that five static and 18 dynamic static variables applied to Mr Russell. She highlighted that VRS focuses on identifying positive changes as a result of treatment intervention and noted Mr Russell's difficulties with treatment. She scored Mr Russell as having a score of 66 on the VRS, which placed him in the "high risk" and within a group of offenders that had a violent recidivism rate of 54.5% after five years
[15]
HCR-20-3
The HCR-20-3 involves a structured professional judgment assessing multiple risk factors commonly identified in the literature as being associated with increased risk of future violence.
The risk factors that the HCR-20-3 identifies have been empirically validated over the course of 20 years of research. In Dr Eagle's report, she identified the historical risk factors of concern for Mr Russell as violence, other antisocial behaviour, substance use, relationships, employment, personality disorder, traumatic experiences, violent attitudes and treatment or supervision response. The clinical factors relevant to Mr Russell were insight, instability, violent ideation and treatment or supervision response. The risk management factors relevant to the offender were professional services and plans, living situation, personal support and treatment or supervision response.
In Dr Furst's report dated 3 November 2018, he assessed Mr Russell according to the HCR-20-3. Mr Russell was classified as "high risk". He had also assessed Mr Russell on a previous occasion.
[16]
Static-2002R
Ms Dewson also assessed Mr Russell using the Static-2002R, but noted in her report that this tool has "no meaningful difference" when compared to the Static 99R "in relation to predictive accuracy". She assessed him as scoring within the "above average risk" category for being charged or convicted of another sexual offence.
[17]
Risk for Sexual Violence Protocol ("RSVP")
Ms Dewson's report of 25 February also contained an assessment of Mr Russell according to the RSVP. The RSVP involves assessing 22 items in relation to mental disorder, sexual violence history, psychological and social adjustment and manageability. The dynamic risk factors that she identified for Mr Russell were chronicity of sexual violence, non-sexual criminality, physical coercion in sexual violence and attitudes that support or condone sexual violence. Other dynamic risk factors included Mr Russell's problems with self-awareness, stress or coping, child abuse, substance use, intimate relationships, non-intimate relationships, supervision and employment.
[18]
Rehabilitation programs in which the offender has had an opportunity to participate s 17(4)(e); Any options available that might reduce the likelihood of the offender re-offending over time, s 17(4)(e1),
I propose to deal with these two factors together as, on the material before me, they both concern the same issue, namely, Mr Russell's failure to participate in the recommended program and the need for him to do so to minimise his risk.
It was the common view of all of the experts that Mr Russell is an untreated sex offender and needs to complete the HISOP. It is usually of 6-10 months duration and It is considered by the experts to be the only group-based program and the only offence-specific program of sufficient intensity that could address Mr Russell's risks. Another program recommended by the experts was the VOTP (described below at [132]-[136]).
Mr Russell was referred to the CUBIT program in November 2015, assessed as suitable in November 2016 and was offered and accepted a place in the program on 13 March 2018. It was proposed that he would commence the program within the last seven months of his sentence and hopefully be able to finish it before his sentence expired on 3 October 2018. Unfortunately, he was suspended from that program due to bad behaviour but wanted to withdraw from it in any event.
Mr Ardasinski described Mr Russell's engagement with the program as "very poor from the start." He walked out of his very first session. According to Mr Ardasinski's calculations, in 2018 Mr Russell attended 38 two-hour group sessions and 20 to 25 individual interventions or case reviews. He noted that Mr Russell requested a discharge in October 2018. Mr Russell was suspended from the CUBIT by letter dated 27 November 2018 in which he was advised that his re-entry would be considered upon completion of the suspension (10 December 2018) and that he could not have individual treatment (as requested by him).
The CUBIT Progress Notes from 7 May to 25 June 2018 and the Behaviour Management Plans dated 23 May 2018, 7 January 2019 and 15 February were also before the Court. They indicate that Mr Russell walked out of three of the seven groups that he attended: on 7, 10 and 22 May 2018.
As at the time of the CDO made by Button J, it was envisaged that Mr Russell would return to the HISOP and complete it by the expiration of that 12 month CDO.
On 7 January 2019, having completed the period of suspension, Mr Russell accepted an amended Behaviour Management Plan in order to return to the CUBIT. He was to be monitored for a month from 16 January 2019 because he had received a charge of intimidation during the period of suspension in 2018. He returned to the program on 15 February 2019 and recommenced group treatment on 20 February 2019. However, following the assault on another participant in the CUBIT program described above, he was discharged again on 21 March 2019 after only 13 sessions. His level of engagement is relevantly summarised in a progress note of 5 March 2019 as follows:
"He stated that he would not do anything differently because he did not see anything wrong with his behaviours…he appears to have the capacity to engage in the group process with the focus not on him. Does not appear to take on constructive feedback, instead interprets feedback as being a personal attack."
If Mr Russell was to return to the CUBIT, he would need to complete treatment modules in the areas of Self-Esteem, Life History Review, Treatment Gaols, Offence Pathways, Risk Factors and Early Warning Signs, and Self-Management Plans.
Danielle Matsuo is the Director of State-wide Programs at Corrective Services. She is responsible for the development, coordination and management of state-wide program for all offenders, including high risk sexual and violent offenders. She provided two affidavits in this matter and gave evidence at the final hearing.
She described the HISOP and the VOTP. She explained that the HISOP program is designed for sex offenders who are assessed as being at moderate to high risk of offending, and is delivered in an open group setting. During the 10 month long program with sessions running three times a week, the participants reside together in self-contained units that comprise a therapeutic community. This therapy format is designed to provide the offenders with the opportunity to work intensively (24/7) on changing the thinking, attitudes and feelings that led to the offending behaviour.
This intensive treatment is not delivered on an individual basis due to evidence-based benefits of therapy in a group setting as well as the high cost implications. Nor is it delivered in the community due to public concerns in relation to risks associated with untreated offenders in the community.
In relation to the VOTP, Ms Matsuo deposed that this is a high intensity program designed for medium-high and high risk violent offenders. It is delivered in a similar setting as the HISOP, namely in an open group therapy format within a therapeutic community that is not available in the community or on an individual basis.
Ms Matsuo deposed that Mr Russell may be eligible for the VOTP in the event he was to receive a further CDO, decline to make a new referral for the HISOP and make a referral to the VOTP. In her opinion the VOTP would not be able to address issues specific to sexual self-regulation; those issues would need to be addressed in adjunct individual sessions. She further opined that, given the significant overlap between Mr Russell's risk factors for violent and sex offending, the VOTP may impact on risk reduction but only to the extent to which Mr Russell would be willing to engage in the program.
In relation to other options available in custody, Ms Matsuo deposed that there may be a possibility for individual contacts with a psychologist but there are limitations to such an approach due to a high demand for services of that kind. She also opined that individual sessions, when contrasted with residential group treatment program, would not comprise effective treatment, because of the low intensity contact and lack of opportunity to be monitored or tested.
Ms Matsuo gave evidence at the preliminary hearing on 29 November 2019. and at the final hearing. She confirmed that Corrective Services did not have the resources to fund the form of psychotherapy recommended by Dr Eagle, but agreed that she would be able to arrange for the short form or "band aid" individual sessions suggested by Ms Dewson. She was asked this by Ms Orman-Hales in cross-examination:
"Q: Is it your position with representing Corrective Services in your role that they would be able to provide at least some individual psychotherapy for perhaps about six weeks? Is that right?
A. The position, to be clear and it's really around this word of "psychotherapy", so psychotherapy is effectively what I understand, certainly from my own sort of knowledge, but also from where Dr Eagle appears to be coming from, she is referring to some really intensive individual contact to start addressing those deep, deeper or core issues that Mr Russell is experiencing. That type of work is the type of work that would require - would need to happen over a long period of time in order for him to sort of experience any stability, I guess, if you're going to start discussing those sorts of issues and then for him to sort of stabilise prior to going into a group program. We cannot commit - Corrective Services cannot commit to that type of individual intervention. The type of intervention that we could commit to wouldn't start to look at those core or sort of causal issues. It would simply be readying Mr Russell to actually come back into the group program and - and dealing with strategies, I think I heard earlier Ms Dewson suggested it would be about strategies to cope essentially whilst he was in the intensive group program."
The Offender Integrated Management System ("OIMS") case notes from 20 May to 1 November 2019 also record Mr Russell's continuing poor attitude and behaviour towards anyone in authority as well as the fact that he becomes agitated and aggressive if he does not get his way. They record Mr Russell's discharge from the HISOP due to ongoing behavioural difficulties and fighting and that his psychologist's referral was closed after he refused to attend a referral appointment, stating that he did not want to participate because he was not interested. The notes also describe Mr Russell's continued troubles when working in a large group environment and his negative case notes regarding his interactions with staff in the education area. They further noted the deteriorating situation regarding his employment in the kitchen.
In summary, the evidence before the Court was that high risk offenders like Mr Russell would require at least 300 hours of offence specific treatment for it be considered effective and commensurate with the risk. The time currently completed by Mr Russell amounts to only 120-150 hours. Ms Matsuo estimated that it would take between six and eight months for Mr Russell to finish the CUBIT. To complete the VOTP, supplemented by adjunction individual sessions in relation to sexual offending, Ms Matsuo estimated a period of up to 10 months.
The evidence as to why Mr Russell refused to re-enter and finish the CUBIT/ HISOP was complex.
When he was last in the program, Mr Russell stated that he did not wish to be speaking about sex offences with other sex offenders. The progress notes dated 22 May 2018 record that Mr Russell did not want to open up in front of other people in the group and did not trust them not to share information with others in the community.
Mr Russell also informed officers that he was not willing to undertake the VOTP because he considered he would be in danger in the program. Mr Russell stated that he would be prepared to complete any required programs in the community. He has also explained that he would be willing to undertake one-on-one therapy in custody. When evidence was being given about this at the final hearing, Mr Russell sought to clarify the position by speaking directly to me. Given the fact that he was on AVL and could not see his counsel (who was appearing by way of telephone) I permitted him to answer (with his counsel's permission). He stated the following:
"DEFENDANT: The reason why I didn't get, I, I didn't get to finish the sex offenders program, the CUBIT program, right, and then I got a 12 month CVO to go back in to finish it and then when I went back in there to finish it, an inmate inappropriately grabbed me on the groin area in front of the psychologist and other inmates, and I subsequently hit the other person; I assaulted the other person. The police came; I made a statement to the police; made allegations against the other fellow that he'd inappropriately grabbed me and I admitted to hitting the other person and so I subsequently got kicked out of the program and was sent back to Junee.
I come back here for - I was up here for almost 11 months. I was working in the kitchen for that time and then I had - I almost had an altercation with another inmate in the kitchen, so I removed myself from the kitchen and went - I was - but I was in an area, in a C, a class O area and because I, I removed myself from the kitchen because of the other inmate, I got threatened by five other inmates in C well from the kitchen because this other inmate had another co-worker. So I ended up in LA and the reason why - I, I don't want to - I had no qualms about doing the CUBIT program or the VOTP, but I'm just going around in circles. I'm going into do these programs, I'm just going around in circles. All I'm doing is defending myself from getting into fights, left, right and centre. The gaol is full of young people and, you know, they look at me, they think I'm a child molester and all of this sort of stuff and I'm, I'm defending myself stupid and that's why I'm in LA. I'm in LA, limited association, to be away from those other inmates. For me to go down and do the VOTP or the CUBIT I have to sign back into SMAP to go and do the program. It's not like they say that you're protected or anything. They know what goes on in there and, you know, I go into VOTP, I don't want anybody to jump on me or king hit me or I end up dead or I might do that to them.
I don't want that. I, I want - I generally want to get out of gaol and just live my life.
All I'm trying to say is, your Honour, is that I'm just going around in circles. I'm, I'm, I'm, I'm in a protected area now where I'm, I'm, I'm okay in here, but I'm just going around in circles. You know, look, okay, if I have to stay in gaol to do another program, well, how are we going to go about doing that? It's not that I don't want to do the program, but how am I going to go about going down there to do the program without - and be safe and finish the program? That's - I went to CUBIT; I signed off and went to CUBIT to do it and then and, and, and then I got into trouble down there." [Emphasis added.]
OIMS notes for 22 January 2020 record that Mr Russell completed Workplace Hygiene on 22 November 2019, Health Survival Tips on 2 October 2019 and WRED on 16 June 2017. These were described as short courses. He has otherwise not completed any vocational courses in custody.
The OIMS notes for 12 February 2020 record the following during an interview with a staff member:
"Mr Russell presented as anxious and institutionalised and became emotional during the interview (placed his head in his hands, sighed deeply, wiped his eyes) and spoke about feeling concerned about being released. He stated "I've made a home in here" and expressed his concern about how much things have changed - he noted that he doesn't have a mobile phone, doesn't know how to use on, doesn't have any money as he didn't participate in the call with Centrelink due to "having a bad day" and withdrawing from everything (he identified that he tends to withdraw when he is feeling stressed or overwhelmed and acknowledged that he needs to not do this) and he expressed concerns about not having accommodation. Mr Russell also verbalised his concern about the level of uncertainty surrounding his release as a decision had not yet been made by the court."
[19]
Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, s 17(4)(d1)
To meet this statutory requirement, Kelli Grabham, the Corrective Services NSW High Risk Offender Applications and Operational Governance Officer, prepared a Risk Management Report (RMR) dated 2 August 2019 detailing Mr Russell's prior management by community corrections, his current post release plans, his risk of re-offending and risk management plan.
With respect to his prior management by community corrections Ms Grabham stated that on every occasion Mr Russell was released on parole since 1986 his parole was revoked due to his failure to comply with the conditions or re-offence or both. His most recent supervision in relation to a good behaviour bond in 2003 was breached due to re-offending. The breach report recorded that his poor response to supervision was due to his unwillingness to participate in recommended programs. His placement at a residential rehabilitation facility in 2005 was unsuccessful when his child sex offender status became known, as this facility accepted female clients with small children. His placement at another facility was not successful due to his failure to comply with the rehabilitation process and reporting obligations. It is noted that Mr Russell completed the EQUIPS (Explore, Question, Understand, Investigate, Practice to Succeed) addiction program while in custody in 2016.
Ms Grabham interviewed Mr Russell on 16 July 2019 in relation to his post release accommodation should he be released on an extended supervision order ("ESO"). Even though he was initially positive, Mr Russell was not interested in exploring those options nor did he nominate any family members with whom he could potentially reside. A further attempt to discuss this on 17 July 2019 was refused by Mr Russell who stated that he "did not want to talk to parole".
Ms Grabham noted Mr Russell's risk of re-offending assessments as falling in the high risk category for general re-offending, sexual offending and violent offending. Noting that Mr Russell's risk factors had not changed since the psychological assessment report of 16 March 2018, Ms Grabham detailed identified his risk factors as being substance abuse (specifically alcohol consumption and other drugs), lack of interpersonal intimacy skills and hostility towards women, personality disorder and sense of adult identity as an "offender", increasing sexual preoccupation and sexual entitlement issues, victim access and lack of consideration of impact of offending both of self and others, and being told "no" or otherwise not getting his way or perceiving an insult.
With respect to identified risks to be managed and monitored, Ms Grabham's risk management plan included the following: interviews with Mr Russell, field visits, third party contacts, monitoring, schedules and curfews, referrals to Corrective Services psychological services, psychiatric, alcohol and other drug services, alcohol and other drug testing, no contact with children under 18 years of age and non-association and place restrictions. The plan also provided details of management strategy and its limitations.
Ms Grabham provided three affidavits detailing, inter alia, the efforts she had made to find post release accommodation for Mr Russell in the event he was placed on an ESO. The efforts were all unsuccessful until just prior to the final hearing when an approval was received for Mr Russell to reside at the Campbelltown Integrated Support Centre "ISC" if he was released under an ESO. She explained the difference between an ISC and a COSP ("Community Offender Support Program"). They are both services run by Corrective Services to provide accommodation to high risk male offenders when no other accommodation options are able to be sourced. The difference is mainly in relation to the number of beds at each location. They are both short term accommodation solutions which are based in the community funded and run by Corrective Services. Generally, a high-risk offender can reside there for up to three months. There is potential for the manager to extend for a further three months depending on the offender's compliance with their case management.
It is always anticipated that anybody who is staying at an ISC or the COSP is actively seeking appropriate accommodation in the community. In the previous two months, both locations have been full and both locations have had a waiting list. This has impacted on the ability of people to go into placements at either locations because they have not been able to relocate people in the community. One of the main issues that many of the offenders who use these services face is with budgeting. One purpose of the stay at a COSP/ISC is to try and save enough money so that at the end of their stay they can move into more independent accommodation
[20]
Whether the offender is likely to comply with the obligations of an extended supervision order s 17(4)(e2)
Dr Eagle identified several risk factors which might hamper Mr Russell's ability to comply with an ESO. These included his severe emotional dysregulation, aggression, non-compliance with treatment and supervision, poor insight and lack of acceptance of responsibility. She noted that "Mr Russell has had no community access (such as day leave) and his ability to function and cope in the community after a lengthy period of time in a prison in unknown and untested." In her opinion, Mr Russell would need a high level of supervision and support in order to comply, which might be provided by a COSP or ISC.
Ms Dewson was of the opinion that Mr Russell could not be managed adequately in the community under an ESO. She stated that Mr Russell is "untreated" and has consistently been assessed as being high risk of sexual and violent re-offending. An ESO would not give Mr Russell the high level external management and monitoring for him to function effectively in the community.
When considering the possibility of an ESO, Mr Ardasinski considered the supervision measures that could be utilised to ensure Mr Russell's compliance, including the possibility of a Child Protection Prohibition Order ("CPPO"). He stated: "I would conclude that such other community-based options for Mr Russell's risk management are inadequate, given his assessed risks and needs, and especially given that he remains untreated going into the final seven months of his sentence."
[21]
The level of the offender's compliance with parole or ISO or ESO conditions: s 17(4)(f)
Although Mr Russell has never been on an ESO he has an unfortunate history of breaching parole. He has been released to parole on nine occasions and failed to complete parole on any of those nine occasions. Those breaches are as follows:
1. On 7 November 1986 his parole was revoked for alleged assault on his girlfriend and for failing to comply with a Community Corrections direction to see a psychiatrist;
2. On 31 July 1987 his parole was revoked because of a failure to report;
3. On 19 August 1988 his parole was revoked because of a failure to report;
4. On 7 December 1995 his parole was revoked because of a recommendation from Rehabilitation Centre staff, noting Mr Russell's volatile, abusive and aggressive behaviour. He also failed to report as directed;
5. On 22 August 1997 his parole was revoked because of a failure to moving to Adelaide without notification;
6. On 4 June 2004 his parole was revoked due to the May 2004 assault occasioning actual bodily harm offence and a failure to report. Mr Russell also failed to report in relation to his suspended sentence received in 2001;
7. On 10 March 2005 his parole was revoked because he was not at his directed abode nor attending a rehabilitation facility as directed;
8. On 14 December 2006 his parole was revoked because of a failure to report;
9. On 18 April 2008 his parole was revoked because of the index offences.
Mr Russell was also in breach of a suspended sentence in March/May 2002.
[22]
Consideration
I propose to first consider whether s 5C of the Act is satisfied and then turn to consider whether, in the exercise of the discretion conferred under s 17(1) of the Act, I would dispose of the application by way of a CDO.
As for the four requirements in s 5C of the Act, I have already stated above that I am satisfied that Mr Russell is an "offender" who has previously served a sentence of imprisonment for a "serious offence" for the purposes of s 5C(a)); that he is a "detained offender" for the purpose of s 5C(b) and s 13B of the Act; and that this application for a CDO has been made in accordance with s 13B: s 5C(c).
That leaves s 5C(d) of the Act. I could not impose a CDO on Mr Russell unless I was satisfied to a high degree of probability that Mr Russell poses an unacceptable risk of committing a "serious offence" if not kept in detention under a CDO.
The phrase "unacceptable risk" is not defined in the Act. It was considered by the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57 where Beazley P (with whom Gleeson JJA agreed) held that the phrase "unacceptable risk" in the Act is to be given its everyday meaning within its context and having regard to the objects of the Act (at [58]). In addition, s 5D of the Act provides that this court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43] Harrison J observed:
"It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, "[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate."
In the present matter I am satisfied that the consequences of Mr Russell committing a serious sex offence would be significant and that the likelihood that the risk will eventuate in this matter is also significant based on, inter alia, the expert evidence regarding his risk of re-offending summarised above, the actuarial risk assessments, Mr Russell's criminal history, his pattern of offending, his relatively short periods in the community without re-offending and his poor history of compliance with parole conditions in the past. Button J put it this way when placing Mr Russell on the previous CDO (at [47]):
"……quite apart from the unanimous opinion of the experts, as a matter of common sense exercised by a layperson sitting as the tribunal of fact, I readily accept the proposition that Mr Russell is at high risk of seriously re-offending, either sexually, or with separate violence, or both. I say that simply because he has been committing offences of violence since the 1970s; he has committed such offences both in the community and in custody; he has failed whenever he has been on conditional liberty; the index offences were committed a few days past one month after he was last released to parole; he is institutionalised and will find re-adjustment to living in the community extremely difficult; and he has received very little therapy over the many years that he has spent in custody."
I adopt this observation and have independently come to the same conclusion. The risk of Mr Russell committing a serious sex offence on someone known to him is high as is the risk of him committing a serious violence offence against either someone known to him or a stranger if he felt slighted or threatened in some way.
As for the discretionary exercise of whether I should place Mr Russell on a CDO, I am satisfied that, regrettably, there has not been any identifiable change in his risk factors since the last CDO was made by Button J. I have had regard to the evidence relevant to the s 17(4) factors summarised above and in particular s 17(2). They all lead to the same conclusion. Mr Russell is an untreated offender. None of the experts opine that his risk could be appropriately managed in the community in a way that is actually available. The only proposed accommodation is temporary Corrective Services housing. and it is anticipated that he would move to a boarding house or other group or community accommodation thereafter.
There was some suggestion in the OIMS notes, and this was confirmed by some of the expert evidence, that Mr Russell has some limited insight into his violent offending. He knows that he needs to remove himself and isolate so as to prevent him losing his temper and striking out. For this reason, he removed himself from the kitchen job he had and chose to go into limited association. The difficulty with this is that he cannot, and would not want to, live in isolation for the rest of his life. He needs to acquire some skills so that he can manage his risks in a group environment. In any event, even if he does show some little insight into his violent offending, there was nothing before the court to suggest that he has any insight into his sexual offending.
Dr Eagle's opinion was that Mr Russell needs intense psychotherapy to learn the skills required to live in the community. Ms Matsuo's evidence that Corrective Services is not able to provide this mode of treatment either in custody or in the community. Both Ms Dewson and Ms Matsuo were of the opinion that the only practical and available type of intervention that could reduce his risk would be intensive group treatment in the nature of either the HISOP or the VOTP. Ms Dewson considers that it would both "place the community at risk" and be "setting Mr Russell up for failure" to release him without suitable treatment.
Each of the experts considers that the successful completion of appropriate treatment such as the HISOP would potentially reduce his risk. The difficulty is that Mr Russell objects to further participation in the HISOP on the basis of threats against his safety. He has repeatedly stated that his life is at risk if he has to go back to group therapy. He would only agree to treatment in the community or to participate in the HISOP by AVL. Neither of these options is available.
Ms Matsuo's evidence was that the HISOP is run in a small unit which can only house up to 20 offenders at any one time. She described the level of security as "quite sound". She repeated that Mr Russell needs a group based cognitive behavioural therapy program of high enough intensity in order to meet his needs and the only ones on offer that could actually achieve this are either the VOTP or the HISOP.
Ms Matsuo was cross examined about Mr Russell's objection to undertaking the HISOP due to fears for his safety and the fact that he is well known within the gaol. She was asked by Ms Orman-Hales what Corrective Services proposed to do if Mr Russell continued to refuse to participate in the program. Ms Matsuo stated, "this really is for Mr Russell a choice that he needs to make with respect to the options that Corrective Services can offer him".
There was a breakthrough, of sorts, on the question of possible treatment when Ms Matsuo conceded in her evidence that although the level of psychotherapy suggested by Dr Eagle could not be provided, a short course of one-on-one counselling for six weeks or so could be provided in order to prepare Mr Russell to participate in a group program such as the HISOP.
I have had regard to Mr Russell's explanation for not wanting to participate in any group therapy. He is on Limited Association ("LA") but the HISOP is conducted in Special Management Area Placement ("SMAP"), which is a less strict form of protective custody than LA. He would need to leave LA to go into SMAP to undertake the HISOP. Although it is to be accepted that there is an unfortunately high prospect of violence in correctional centres, the pool of people who he believes might assault him is a small one and the evidence is that the Unit has a "sound" degree of security.
It is not uncommon for sex offenders to refuse to undertake the CUBIT/HISOP on the basis that they claim they are innocent and/or do not need or want treatment. This is not Mr Russell's objection. Without wishing to downplay his fears, the fact remains that the expert opinion is that he needs the group therapy-based training and the court has not been provided with any available options for him to advance without it. It is to be accepted that undertaking the HISOP is no guarantee of risk reduction but Mr Russell has had virtually no assistance in custody to address his risk factors, largely of his own doing.
When Button J placed Mr Russell on a twelve-month CDO it was anticipated that he might be able to address his risk factors during that time. That has not occurred and nothing has effectively been achieved from him serving yet another period in custody. Although it is most unfortunate that the Court is placed in the position of being required to determine a further CDO application for Mr Russell, he does not come before the court as someone who has taken every step that he can in the custodial environment to facilitate his eventual release. On the contrary, it is to a large extent his own attitude that has led to this second CDO application being made. The fundamental problem for Mr Russell is that his dysfunctional and traumatic childhood followed by a lifetime of repeated incarcerations means that his attitudes are entrenched. But the Court is concerned with risk and unless Mr Russell can modify his attitudes in some way his risks will remain too high for him to be released.
Ms Orman-Hales accepted the evidence that Mr Russell need assistance to be able to cope with the group environment but she submitted that "something needs to happen" to provide reassurance to Mr Russell that he will be able to move forward and not be subjected to repeated CDO applications.
A further difficulty is that Mr Russell has not even been assessed as C3 classification which would allow him to undertake graduated release; he would first need to progress from his current C1 classification to a C3 classification (as determined by the Serious Offenders Review Council), and would then need to be approved for such leave by the High Risk Offenders Assessment.
There is no doubt that Mr Russell needs help to reduce his risk factors but the weight of the evidence did not support Mr Russell being released on an ESO. Having already been satisfied to a high degree of probability that he poses an unacceptable risk of committing either a serious sexual offence and/or a serious violence offence if he is not detained, I am also satisfied that in the exercise of my discretion he should be placed on a CDO.
As for the length of the CDO, Ms Dewson considered that a CDO of 2 years would be appropriate to permit Mr Russell to complete an appropriate treatment program and to engage in graded release to the community. Even though Mr Russell has completed a number of the modules in the HISOP, the evidence is that he has only completed 120-150 out of 300 hours and it could take six to eight months for him to finish it. He could also be offered six weeks of one-on-one counselling beforehand to prepare him for it and try to overcome his concerns about return to this group therapy.
Dr Eagle considered that any CDO would need to be at least of 6 months duration to permit the completion of individual psychological counselling on at least a weekly basis.
The State contended that the CDO should be for a period of 2 years in order to provide a realistic timeframe for Mr Russell to engage in a treatment program and any available graded release opportunities. On behalf of the applicant it was submitted that a shorter period, as suggested by Dr Eagle, would be more appropriate.
I am not satisfied that a CDO of 6 months would be sufficient for Mr Russell to complete what he would be required to complete before his release could contemplated. Nor am I satisfied that it is appropriate to order him to serve another 2-year CDO. The change in circumstances of the one-on-one counselling is a new opportunity for Mr Russell to take steps to help himself and address his risk factors.
I am satisfied that the length of the CDO should be 12 months.
It would be most unsatisfactory if in 12 months' time the court was to learn that Corrective Services had not, in fact, arranged for the important one-on-one counselling that Mr Russell obviously needs. It would also be most unfortunate if the court was to learn that Mr Russell had squandered this opportunity and was no further advanced on the road to addressing his risk factors.
[23]
Orders
In consideration of the above, I make the following orders:
1. Pursuant to ss 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to a continuing detention order for a period of 12 months commencing on 15 April 2020 and expiring on 14 April 2021.
2. Pursuant to section 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) a warrant is to issue for the committal of the defendant to a correctional centre for a period of 12 months commencing on 15 April 2020.
3. Access to the 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, an, 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 in relation to the application of access.
[24]
Endnote
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 November 20111 at 13710.
[25]
Amendments
23 April 2020 - 14 April 2020 amended to 14 April 2021
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: 23 April 2020
By summons filed on 24 October 2019, the State of New South Wales seeks an order that the defendant, Brett Thomas Russell, be placed on a continuing detention order ("CDO") for a period of 2 years pursuant to s 5C of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). In the alternative, the State seeks that Mr Russell be placed on an extended supervision order ("ESO") for a period of 5 years under s 5B of the Act.
Mr Russell is 57 years old. He is an Indigenous man who has spent most of his life in custody for multiple offences of violence and sexual assault as well as numerous breaches of parole. It is common ground that he is institutionalised. The expert evidence is that the "psychological vulnerabilities" which lead to his offending behaviour "arise out of a lifetime of dysfunction and trauma and have been compounded….by his repeated incarcerations and [a] cycle of self-destructive behaviours".
On 4 October 2009 Mr Russell was sentenced on two counts of sexual intercourse without consent and two counts of indecent assault. Judge Woods QC sentenced him to imprisonment for 9 years, to commence on 4 October 2009 and conclude on 3 October 2018, with a non-parole period of 7 years. An appeal to the Court of Criminal Appeal was successful in a limited respect but did not vary the length of the effective sentence: Russell v R [2010] NSWCCA 248.
Mr Russell was not released after the expiration of his non-parole period for these offences and remained in custody, serving the balance of his term. As the expiration of his head sentence grew near, the State made an application to this Court under the Act to place him on a CDO. Following the preliminary hearing, as required by s 15(3) of the Act, McCallum J (as her Honour then was) placed Mr Russell on an interim detention order ("IDO"): State of New South Wales v Russell (Preliminary) [2018] NSWSC 1396.
On 7 December 2018, following the final hearing of the application, Button J placed Mr Russell on a CDO for a period of 12 months to expire on 11 December 2019: State of New South Wales v Russell [2018] NSWSC 1880. In doing so his Honour J observed the following at [48]:
"I think that the failure of Mr Russell 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."
As for whether Mr Russell should be placed on an ESO rather than an CDO his Honour observed at [65]:
"… even with all of those conditions in place, one can foresee a very real risk of a deterioration in Mr Russell's emotional state, and his failure in the community by way of serious re-offending."
The State sought a CDO for a period of 12 months, which was the period of the order imposed by Button J, "bearing in mind the possibility that substantial progress could be made by Mr Russell in custody during that period" at [68].
Whilst in custody on the CDO imposed by Button J, Mr Russell assaulted another inmate and was sentenced to imprisonment for 9 months with a non-parole period of 6 months. As the expiration of the CDO grew near, the State brought the current application for a further CDO.
On 29 November 2019, a preliminary hearing was conducted before Fullerton J. On 5 December 2019, her Honour placed Mr Russell on an IDO for a period of 28 days. She also ordered that a qualified psychiatrist and a registered psychologist conduct separate psychiatric and/or psychological examinations of Mr Russell and furnish reports to this Court: State of New South Wales v Russell (Preliminary) [2019] NSWSC 1717. That IDO was extended on a number of occasions until 16 April 2020, which the maximum period provided under the Act (3 months).
The Legislative Scheme
The primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community: s 3(1). Another object is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation: s 3(2).
The Supreme Court may make a CDO if the four conditions under s 5C of the Act are satisfied. Although no issue was taken that the first three of these statutory requirements were met in this matter, it is necessary that I be independently satisfied of them all.
Firstly, the person must be an "offender" who is serving (or who has served) a sentence of imprisonment for a "serious offence" and must be either in custody or under supervision in the community: s 5C(a). "Offender" is defined in s 4A of the Act as a person who is at least 18 years of age and who has at any time been sentenced to imprisonment for a "serious offence". "Serious offence" is defined in s 4 as including a "serious sex offence" and/or a "serious violence offence".
Section 5(1) of the Act defines a "serious sex offence" to include, relevantly, a sexual offence against an adult punishable by imprisonment for 7 years committed in circumstances of aggravation. This includes any offence that, at the time it was committed, was a serious sex offence for the purposes of this Act: s 5(1)(c1). Mr Russell was convicted of an offence under the (then) s 61D(1) of the Crimes Act 1900 (NSW) which involved acts of violence. That is, he committed an aggravated sexual assault. If he committed the same offence today he could have been charged with an offence of aggravated sexual assault under s 61J of the Crimes Act, which is a serious sex offence under s 5(1)(a) of the Act.
Section 5A of the Act provides the definition for a "serious violence offence". That definition includes, relevantly, engaging in conduct that causes grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, grievous or actual bodily harm to another person. Section 5A(2) provides that a serious violence offence also includes an offence that has these elements "regardless of how those elements are expressed, and whether or not the offence includes other elements". On 17 March 1990, Mr Russell was convicted on counts of maliciously inflicting grievous bodily harm contrary to s 35(b) of the Crimes Act (as it then was) arising out of the same events which led to the commission of the serious sex offence.
The serious sex offence and serious violence offence committed by Mr Russell both arose out of the same incident in 1991. After an evening out at a local tavern with two friends a brief dispute arose over plans to attend another drinking establishment. Mr Russell assaulted the male victim, causing a fractured jaw, several broken teeth, swelling to his eyes and a laceration to one of his ears (serious violence offence). He then violently assaulted the female victim, and then forced her into a toilet block where he had sexual intercourse with her without her consent (serious sex offence).
Victim Statements: s 21A
Another relevant statutory provision in this application was s 21A of the Act which concerns "[v]ictim statements". Sections 21A(1)-(3) create an obligation on the State to notify a "victim" of an ESO or CDO application to afford them the opportunity to provide a statement for the hearing. Subsection (3A) provides that any statement in writing must be provided before a specified date. Subsection (4) then provides that any such statement "may" be placed before the Supreme Court for consideration in respect of the application. Subsection (4A) provides that an oral statement "may be made at such time during the proceedings" before the matter is determined. Subsection (4B) provides that the Court is to "hear an oral statement in the absence of the offender unless the person giving the statement consents to the offender being present." Subsection (4C) provides that the Court may arrange for an oral statement to be made by way of closed circuit television and subs (5) provides that a person who makes a statement may amend or withdraw the statement.
The remaining subsections in 21A are as follows:
21A Victim statements
…
(6) The Supreme Court and the State must not disclose a statement (other than one given in the presence of the offender in accordance with subsection 4B) to the offender to which the application relates unless the person who made the statement consents to the disclosure.
(7) If consent is not provided the Supreme Court may:
(a) reduce the weight given to the statement, and
(b) take reasonable steps to disclose to the offender, or the offender's legal representative, the substance of the statement but only if the Court is satisfied that those steps could not reasonably be expected to lead to the identification of the victim or the person who made the statement.
At the hearing on 3 April 2020, counsel for the State placed on the record that the Crown Solicitor's Office was in possession of a victim statement under s 21A of the Act, but it had not been provided to Mr Russell's solicitor or counsel as the victim did not consent to that occurring. I indicated that I would not receive a document into evidence if a copy had not been provided to Ms Orman-Hales for her to address on. Counsel then indicated that the State did not seek to rely on the statement. I was not taken to the express terms of s 21A of the Act at that time.
On 14 April 2020 (the day before the final orders were due to be delivered in this matter), the Crown Solicitor's Office emailed my Associate (with the approval of Mr Russell's legal representatives) indicating that the State had received instructions to be heard further on s 21A of the Act.
The Court was re-convened at 9.30am on 15 April 2020 for the parties to further address the Court on this issue. The State submitted that s 21A(7) of the Act provides, regardless of any question of the victim's consent, that the Court must receive the statement and then determine whether action under s 21A(7) is appropriate. It was also submitted that the Court would take steps under 7(b) to disclose the substance of the statement regardless of the victim's consent. It was observed that Mr Russell would not necessarily know who the statement was from given the amendments to the Act consequent to the decision in State of New South Wales v Amacha (Final) [2017] NSWSC 799 ("Amacha") (discussed further below). These amendments mean that Mr Russell would only know the pool of victims that could have possibly made a statement. Overall, the State's position was that the scheme of s 21A contemplates the situation where consent is not provided and the Court would needs to receive the statement in order to consider what action it should take under subs (7). I was invited to adopt the approach in State of New South Wales v Wilmot (Final) [2019] NSWSC 127 on this issue.
Mr Russell was also convicted of three offences of aggravated indecent assault contrary to s 61M(1) of the Crimes Act on a 13-year-old female committed on 2 June 2000. These offences are serious sexual offences under s 5(1)(a) of the Act, although he was not imprisoned for them. Although Mr Russell was serving a sentence for sexual assault offences at the time of the application for the first CDO, those offences do not fall within the definition of "serious sex offence" in s 5(1) of the Act.
The second condition under s 5C of the Act is that the person must be a "detained offender" or "supervised offender" within the meaning of s 13B: s 5C(b). A "detained offender", is an offender who, when the application for a CDO is made, is inter alia, in custody on a CDO (s 13B(2)). There was no issue taken that Mr Russell was serving a CDO at the time this application was made.
The third condition under s 5C is that the application for the CDO must be made in accordance with s 13B of the Act: s 5C(c). The application was brought within time and in relation to a detained offender. There was no issue taken that this element was satisfied.
The fourth condition under s 5C comprises the substantive test for consideration. In order to make a CDO, the Court must be "satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order". It is to be noted that s 5D provides that the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
Under s 17(1) of the Act, the Supreme Court can dispose of a CDO application in one of three ways: by making a CDO, by making an ESO or by dismissing the application. In determining whether or not to make a CDO or an ESO, the safety of the community is the paramount consideration: s 17(2). Under s 17(4), when determining an application, the Court may regard any matter it considers relevant but must take any relevant matters enumerated at s 17(4) (a)-(i).
It has been held that the criteria in s 17(4) of the Act are still relevant to the first question of whether a person poses an "unacceptable risk" within the meaning of the Act: per Beech-Jones J in State of New South Wales v Fisk [2013] NSWSC 364 at [84], followed by Hall J in State of New South Wales v Wilde [2014] NSWSC 305 at [111] and by Harrison J in State of New South Wales v Kamm [2016] NSWSC 1 at [48].
The Act commenced on 3 April 2006 (under a previous name) and the relevant provisions have been judicially considered on numerous occasions since then. Following an amending Act which commenced on 6 December 2017, the statutory test for determining whether an offender could be placed on a CDO was changed. I considered this and other amendments to the Act in State of New South Wales v Jones [2018] NSWSC 459 at [15]-[31] ("Jones"). Shortly afterwards, when I came to consider another application for a CDO in State of New South Wales v Barrie (Final) [2018] NSWSC 1005 ("Barrie"), I came to a slightly different conclusion as to the steps required by a Court following the amendments. Counsel in the present matter both submitted that I should adopt the approach I took in the decision of Jones. I propose to adopt this course but consider it necessary to set out my reasons for doing so.
Prior to the amendments, the Act provided that the Court could only make a CDO if satisfied both that the offender was a "high risk sex offender" and that adequate supervision would not be provided by an ESO. A "high risk sex offender" was defined as a "sex offender" who the Court was satisfied to a high degree of probability posed an unacceptable risk of committing a serious sex offence if not kept under supervision. This previous test thus involved a two stage process: first determining whether the person was a high risk sex offender and then, if so satisfied, determining whether the Court was satisfied that adequate supervision would not be provided by an ESO: Anderson v State of New South Wales (2016) 258 A Crim R 381; [2016] NSWCA 86 at [14]-[15]. It was only after this two-stage process had been undertaken that the Court could turn to the separate discretionary decision as to whether to make a CDO as provided in s 17.
The purpose of the amendment to the test for imposing a CDO was to place greater emphasis on an offender's risk to the community than on the question of whether he or she could be adequately supervised. It was expressly stated by Attorney-General Mark Speakman SC that it was anticipated that some offenders who had previously received an ESO would receive a CDO following the amendments (see Jones at [27]-[29]).
In Jones I concluded at [207]-[209] and [225] that the correct approach was a two-stage one. The first question to be determined is whether a CDO could be imposed. This involves satisfaction of the factors in s 5C and, in particular, whether the unacceptable risk test in s 5C(d) is satisfied. If s 5C is satisfied then the second stage is to determine whether, in the exercise of the Court's discretion, a CDO should be made (as opposed to an ESO or no order at all). The Court may have regard to the s 17(4) factors at the first stage and must have regard to them at the second stage, as well as s 17(2) of the Act: the safety of the community must be the paramount consideration.
In Barrie I came to the conclusion that a single evaluative decision must be involved following the amendments to the Act. I observed at [24] that:
"….The question is simply whether s 5C(d) of the Act, having regard to s 17(2) and 17(4) of the Act, is satisfied. If so, the court may impose a CDO. The consideration of whether the test in s 5C(d) is established must be undertaken by reference to s 17 of the Act. That involves one evaluative decision rather than two."
Further, at [31] I noted that:
"As a matter of practical reality, in most cases, the question of whether a one-stage or two-stage test is applied will not make any difference to the result so long as ss 17(2) and 17(4) are considered (as occurred in State of NSW v Jones). But the problem with a two-stage test, which was not addressed in the State's supplementary submissions, is that it means that a decision has already been made by the Court at the end of the first step that it is satisfied to a "high degree of probability" that the relevant offender poses an unacceptable risk of committing a serious offence if not detained. I can see no textual basis to then require the Court to consider s 5C(d) again but this time having regard to the factors in ss 17(2) and 17(4) of the Act. The better reading of the provisions is that the Court addresses the question of whether s 5C(d) is established, having regard to all of the factors in ss 17(2) and 17(4) of the Act. A CDO would be appropriate if the test in s 5C(d) was satisfied and an ESO would be appropriate if the test in s 5C(d) was not satisfied (so long as the test in s 5B(d) was satisfied)."
It was submitted by counsel for the State that the question of the correct approach following the amendments has not been expressly addressed since I delivered those two decisions in 2018. Despite this, in State of New South Wales v Russell, Button J appears to have taken the two-stage approach. His Honour first considered whether s 5C was satisfied and then turned to determine what he considered to be the "real" question: whether to impose a short CDO or a lengthy ESO.
Having given the matter further consideration, I am satisfied that the approach I took in Jones is the correct approach. I remain of the view that it would be an unusual case where a court would be satisfied to a "high degree of probability" that an offender posed an "unacceptable risk of committing a serious offence" if not detained and then go on to release them on an ESO in the exercise of the Court's discretion. This was the view that led me to conclude in Barrie that the amendments must have required one evaluative exercise. Despite still holding this view, I am also satisfied that the structure of the Act suggests that two separate decisions are required: s 5C of the Act provides the test for whether the Court could impose a CDO and, if made out, s 17 of the Act provides for the mandatory considerations to have regard to when considering whether a CDO should be imposed. That is the approach I propose to take in this matter.
Counsel for Mr Russell submitted that the State had brought an unusual application where the victim did not want their statement disclosed, yet the State wanted the statement put before the Court and its substance disclosed to the defendant's counsel.
Following these submissions, I ruled that I would not receive a copy of the statements unless copies were first provided to Mr Russell's counsel. I briefly indicated my reasons for this approach at the time: the State has asked the Court to re-visit the tender on the day that judgment was due, the State refused to provide a copy of the statement to Mr Russell's legal representatives (contrary to what occurred in Wilmot) and the State was unable to identify an authority for the proposition that the Court is required to accept such a statement even though the defendant's legal representatives have not seen it. I propose to expand on those reasons now given the lack of any judicial consideration of this question.
Section 21A was inserted into the Act in 2010. On 24 November 2011, the Honourable John Hatzistergos, Attorney General, explained the purpose of the provision as follows:
"…Item [24] is an important reform which will allow victims of the offender to make a statement in relation to an application under the Act. This reform was recommended by the NSW Sentencing Council, which considered that there would be merit in allowing victims' views to be considered by the court, particularly in circumstances where they might be aware of events not known to the authorities of relevance to any ongoing danger to themselves or other members of the community. In recognition that some victims may not want to be made aware of such an application, only victims who are recorded on the Victim's Register in respect of the offender and who are a victim of an offence committed by the offender for which the offender is currently serving, or most recently served, a sentence of imprisonment will be notified.
Under subsection (2) the statement may contain the person's views about the order and any conditions to which the order may be subject, or any other matters prescribed by the regulations. The provision of such a statement is optional, and under subsection (5) the victim may amend or withdraw the statement. Under subsection (6) provision is made for the victim to have a say in whether or not the statement is disclosed to the offender." [1]
There was no express reference in the Second Reading Speech to an intention to legislate to exclude principles of procedural fairness insofar as the admission of victim statements under s 21A was concerned.
I was required to consider the terms of s 21A in a different context in Amacha at [35]-[39]. In that application two victim reports were provided by the victim of an earlier offence, not the index offence. At that time the definition of "victim" in s 21A(8) was as follows:
"victim of an offender means a victim who is recorded on the Victims Register in respect of the offender and who is a victim of an offence committed by the offender for which the offender is currently serving, or most recently served, a sentence of imprisonment."
Copies of the statement had been provided to the defendant's counsel who objected to the statement being before the court because the author was not a "victim" under the Act. Given the narrow definition in s 21A(8) at that time I was satisfied that the reports did not appear to fall within the terms of s 21A(8) of the Act, stating at [38]:
"I note that s 21A of the Act does not set out how it is that such a statement is to be taken into account in any event. Section 21A(4) provides that such a report may be placed before the Court 'for consideration in respect of the application' and s 21A(7) provides, inter alia, that if consent to disclose the report is not provided the Supreme Court may "reduce the weight given to the statement". I have been unable to find any judicial consideration of s 21A of the Act."
Although I did not consider that the statements made by an earlier victim in Amacha came within the terms of s 21A, I was nonetheless satisfied that some of the material in the victim statement was relevant under s 9(3)(i) of the Act (which is in similar terms to s 17 of the Act but concerns ESOs rather than CDOs). This was on the basis that it included evidence that the victim had attended Mr Amacha's earlier parole hearing in relation to the offences against her and made representations to the effect that she had forgiven him and supported his parole. After she had learned that he had gone on to commit later offences, she no longer maintained her earlier position. I considered this to be relevant to the opportunities the defendant has already been given to "demonstrate that his remorse and commitment to rehabilitation are genuine": at [35]-[39].
Following the decision in Amacha, the definition of "victim" in s 21A was amended in October 2017, so that "victim" for the purposes of s 21A now means any victim of the offender (see Sch 1 of the Crimes (High Risk Offenders) Amendment Act 2017 (NSW)).
Section 21A does not appear to have been considered again until State of New South Wales v French (Final) [2017] NSWSC 1475 ("French"). In that application before Walton J, a victim statement was admitted into evidence pursuant to s 21A of the A ct. The victim had not objected to a copy being provided to the defendant's counsel in that matter; only to the defendant. Thus, unlike the present application, the defendant's counsel was in a position to make submissions in relation to it. The issue in dispute in French was the purpose for which such a report could be used by the Court. It was submitted on behalf of the State that:
"The purpose behind section 21A, in a sense, is to give the victim a voice in the proceedings and give the opportunity to have before the court the impact, some impact, from the perspective of the victim before the court. Further, the State advised that the victim 'consents to that document going to the legal representatives of the defendant, but not the defendant'. By withholding consent, this Court should attach little weight to the statement: s 21A(7)(a)."
The State submitted that the victim statement did not bear upon the Court's assessment under s 9 (or s 17) of the Act except in a "broad" sense of being relevant to "the vulnerability and the risk to the community and the protection of the community; part of that assessment of risk is the harm that's been done to individual victims". The position of the State in French was that it did not need to otherwise rely upon it and would not be relying on it.
In French, not only did the State rely upon the victim statement in a very limited respect, Walton J determined that the substance of it could not be provided to the defendant without identifying the relevant victim. On this basis his Honour observed that "in the result, very little weight may be attached to it": [82]-[86].
In State of New South Wales v Wilmot (Final) [2019] NSWSC 127 ("Wilmot") two victims' statements were admitted into evidence pursuant to s 21A of the Act. Again, the authors of the statements consented to disclosure of their statements to the defendant legal representatives but not to the defendant. The judgment records at [108] that:
"Here the defendant's legal representatives were given the statements and whilst they were unable to be shared with the defendant, the general nature of them was disclosed to him. Most importantly, the defendant's counsel were able to make informed submissions about what parts of the statements may stray into areas of debate as to weight."
In that matter, senior counsel for the defendant submitted that little weight should be placed upon their content and parts of the statements should not be admitted, such as opinions in that as to whether the Court should impose either a CDO or an ESO. Parts of the statements also dealt with matters similar to a victim impact statement, such as would have been tendered on sentencing proceedings. Lonergan J accepted the submission of senior counsel for the defendant that proceedings under the Act are not a "re-punishing" for past offending.
Contrary to the position taken by the State in French, the State 's position in Wilmot was that the Court should take the content of the statements into account on the question of "unacceptable risk" as they gave some indication of the effect of offending on those persons, rather than simply offering opinions. Her Honour accepted this submission in light of s 21A(4), which provides that any statement in writing received may be placed before the Supreme Court "for consideration in respect of the application". [Emphasis in original.]
Lonergan J was referred to the decision in French and noted that the State made certain concessions in that matter that were not made before her Honour. Her Honour went on to observe that subs (7) provides a discretion to reduce the weight if a copy is not provided to the defendant but not an obligation. Her Honour then stated at [113]-[115]:
"In respect of the parts of the statements that express a view about whether I should grant a CDO or an ESO or not, and what the conditions should be, I accept the submissions of senior counsel for the defendant that I must be circumspect about placing weight on those opinions given they are first, not expert opinions, second, the extent of the material upon which the views were based is not clear, and third, and perhaps most significantly, this question is one for the Court to determine based on all the evidence.
In reaching this view I hasten to add that I am in no way being critical of those views being offered. Section 21A(2) in its terms provides that the authors of statements may address their views about "the order or any conditions to which the order may be subject". In some cases, victims who are in, for example, a small town, or a family, or are easily identifiable, or victims of very recent offending would have views that would be of significant weight in fashioning conditions such as residence or may have particular practical concerns to raise.
This is not such a case, but I am indebted to the two authors of the statements for having the courage to articulate what they have, in the way they have, which is of assistance to the Court."
A victim statement under s 21A was also tendered before Lonergan J in State of New South Wales v KAS (Final) [2019] NSWSC 1378. As for the purpose of the tender, her Honour observed at [95]:
"The plaintiff tendered a statement authored by one of the victims of the defendant's offending. Section 21A provides for the contacting of victims where there is an application for an order under the HRO Act so that they have an opportunity to place before the Court a statement containing their views about the order being sought, any conditions to which the order may be subject and any other matters prescribed by the regulations. In this case, the s 21A statement outlined the devastating effect that the defendant's offending has had upon the victim and the effect it has had on her life and her ability to trust. I am of the view that I should take the contents of the statement into account on the question of unacceptable risk, given the requirement in properly addressing that consideration, to look at both the probability of an event occurring as well as the gravity of the consequences. The statement provided gives me an indication of the effect of the offending on that person and that material, along with other material tendered in the proceedings, assists in gaining an understanding of the potential gravity of any future offending."
I have been unable to find any other decisions where the purpose of the admission of s 21A statements has been considered. Significantly, this application appears to be the first application under the Act in which the State has refused to provide a copy of a s 21A statement to the defendant's legal representatives and there was objection to it being tendered on that basis.
The terms of s 21A are silent as to whether the Court is required to admit a s 21A statement into evidence when the defendant's legal representatives are not provided with a copy. The mandatory provisions in s 21A are directed at the State's requirements insofar as notification to victims is concerned. Subsection (4) provides that the State "may" place such a document before the Court; subs (4A) provides that an oral statement "may" be made at the hearing; subs (4B) provides that the Court "is to" hear an oral statement in the absence of the defendant unless consent is given by the victim for him or her to be there and subs (4C) provides that the Court "may" arrange for an oral statement to be made by way of CCTV. None of these provisions require the Court to receive such a statement over objection.
Subsection (6) provides that both the State and the Court "must not" disclose a written statement "unless the person who made the statement consents to the disclosure". Subsection (7) provides that if consent is not provided the Supreme Court "may" reduce the weight given to it and, significantly for present purposes, take reasonable steps to disclose to the offender, or the offender's legal representative, the substance of it: but only if the Court is satisfied that those steps could not reasonably be expected to lead to the identification of the victim or the person who made the statement.
The question is whether s 21A in its terms requires the Court to receive a copy of a victim statement under s 21A in circumstances where the defendant's legal representatives have not been provided with a copy of it.
It is to be accepted that subss (6) and (7) only apply if a victim statement is already before the Court but the terms of s 21A do not expressly provide that the Court must receive it in the first place. Nor does the text of s 21A expressly provide that principles of procedural fairness are to be departed from to permit the tender of a victim statement in circumstances where its contents are unknown to the defendant and his lawyers. Parliament may legislate to exclude or modify the rules of procedural fairness but such a departure needs to be made clear by "plain words of necessary intendment".
In Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7, the High Court considered the effect of s 10 of the Criminal Organisation Act 2009 (Qld), which required the Queensland Supreme Court to have regard to "declared criminal intelligence" which the respondent or a respondent's legal representative would not hear or receive. Hayne, Crennan, Kiefel and Bell JJ commented at [156]-[157]:
"The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed in the context of administrative decision-making but in terms which have more general and immediate application, "[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." To observe that procedural fairness is an essential attribute of a court's procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing.
Consideration of other judicial systems may be taken to demonstrate that it cannot be assumed that an adversarial system of adjudication is the only fair means of resolving disputes. But if an adversarial system is followed, that system assumes, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. As the trade secrets cases show, however, the general rule is not absolute. There are circumstances in which competing interests compel some qualification to its application. And, if legislation provides for novel procedures which depart from the general rule described, the question is whether, taken as a whole, the court's procedures for resolving the dispute accord both parties procedural fairness and avoid 'practical injustice'."
The High Court found that the scheme provided for by the Criminal Organisation Act in relation to the hearing of "criminal intelligence" was not incompatible with the institutional integrity of the Supreme Court because the Court maintained a discretion as to information should be declared criminal intelligence. Similarly, in Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4, Crennan J had observed the following in relation to procedural fairness, at [182]:
"The appellant's particular complaints alleging a want of procedural fairness were that it did not have access to material adverse to it and the Court was deprived of the benefit of its submissions on such material. Parliament can validly legislate to exclude or modify the rules of procedural fairness provided there is "sufficient indication" that "they are excluded by plain words of necessary intendment". Whether the obligation to accord procedural fairness is satisfied will always depend on all the circumstances."
More recently, in HT v The Queen [2019] HCA 40, the High Court considered whether the content of sensitive material to which public interest immunity applied could be admitted into evidence in sentencing proceedings when it had been withheld from a defendant and his lawyers. The Court of Criminal Appeal had held that it could. The High Court unanimously held that it could not. Kiefel CJ, Bell and Keane JJ were satisfied that to do so led to the appellant being denied procedural fairness and that it was not part of the doctrine of public interest immunity to proceed in that way. At [43] their Honours observed: "It should not be assumed that procedural fairness should altogether be denied in order that sensitive information be kept confidential." Their Honours went on to state that orders can always be tailored to balance the need for procedural fairness against the need to protect sensitive material.
Nettle and Edelman JJ agreed with their Honours and observed at [59]:
"…the practice that appears until now to have been followed of offering a prisoner a "choice" between the tender of a truncated, presumably less favourable statement of assistance, to which the prisoner will be afforded access, and the tender of a complete, presumably more favourable statement of assistance, to which he or she will be denied access, should cease. Whatever the sentencing judge sees, the prisoner must be able to see, and must be able to give instructions on to his or her counsel."
Gordon J observed the following at [64] (footnotes omitted):
"Procedural fairness lies at the heart of the judicial function. It requires a court, making an order that finally alters or determines a right or legally protected interest, to afford to the parties a fair opportunity to test and respond to evidence upon which the order might be made. In other words, a court must provide each party before it an opportunity to be heard, and to tender evidence and advance arguments relating to its own case and to answer the case put against it. The justifications for the requirements of procedural fairness are numerous and of such force that exceptions are narrow. However, the content of the requirements of procedural fairness is not fixed; it varies according to the circumstances of each case. Procedural fairness is essentially practical - the concern is to avoid practical injustice." [Emphasis in original.)
Although the above statements were made in the context of criminal proceedings, they apply, a fortiori, to s 21A of the Act. HT v The Queen was concerned with highly sensitive material to which public interest immunity applied. The material that the State refuses to disclose in the present matter would not attract any principle of public interest immunity; it is material which the victim would prefer was not disclosed to the defendant.
I am not satisfied that s 21A mandates that a victim statement must be received by the Court. There is not "sufficient indication" that notions of procedural fairness have been excluded from s 21A. Nor am I satisfied that s 21A provides how it is that a defendant's counsel and/or solicitor can be prevented from providing a copy to their client, the defendant. A legal representative might receive certain documents on the undertaking that a copy not be provided to their client. This situation can arise, for example, in criminal trials where an accused person has subpoenaed material of a sensitive nature. If the only basis upon which NSW Police and/or the DPP would disclose such material was on an undertaking that it not be shown to the accused then an accused person may be willing to provide instructions that he or she agrees to that course in order to obtain the documentation sought. But that does not answer how a lawyer is to obtain instructions from their client if they cannot show a document to him or her.
In French and Wilmot the victims were content for the statement to go to the lawyers but not the defendant. It seems to me that it would be open to a defendant's lawyers in such a case to refuse to provide an undertaking not to show it to his or her client. The reference in s 21(7)(b) of the Act to contents being disclosed to "the offender, or the offender's legal representative" covers the situation where a defendant may be unrepresented. But if the defendant is represented then it would be consistent with the professional obligations of his or her lawyers to show the document to their client in order to obtain instructions. This is particularly so if, as occurred in Wilmot, such a statement is relied upon as being relevant to ss 9/17 factors.
Even putting to one side the question of procedural fairness, I have another difficulty with the approach suggested by the State in this matter. If, as the Second Reading Speech suggests, s 21A was enacted to allow victims' views to be considered by the court but also to make provision for them to refuse to disclose the statement to the offender, it seem to undermine the respect to be afforded to such victims for the State to tender such a statement knowing that under s 21A(7)(b) its contents will be provided to the offender over the victim's objection This seems to undermine the very concerns the provision is aimed at addressing.
These were my reasons for not admitting the victim statement in this matter. In circumstances where I refused the tender, it is not necessary for me to consider the purpose of such a tender. Given the apparent conflict between French and Wilmot, that issue can be determined if and when it next arises.