STATE of NEW SOUTH WALES v SCERRI

Judgment 1HIS HONOUR: Nature of proceedings By summons filed 6 June 2011 the plaintiff, the State of New South Wales (NSW) seeks orders under the Crimes (Serious Sex Offenders) Act 2006 (the Act) with respect to the defendant, Mark Anthony Scerri. The defendant is presently serving a sentence of imprisonment for 8 years, having been convicted in 2003 of the offence of sexual intercourse without consent, contrary to s61I of the Crimes Act 1900. The defendant was released on parole on 10 February 2011. The defendant's sentence and his parole order will expire on 11 September 2011. 2The summons, as final relief, seeks the making of an extended supervision order under s9(1) of the Act. A preliminary hearing proceeded on 1 July 2011 under s7(3) of the Act. NSW seeks an order under s7(4) appointing psychiatrists to examine the defendant and requiring his attendance for that purpose. NSW does not seek an interim supervision order under s8 at this time. It is apparent that the defendant is presently subject to conditional liberty on a range of conditions as part of his parole. 3In view of the material served by NSW for the purpose of the application, counsel for the defendant concedes, for the purpose of the preliminary hearing and on the basis of supporting documentation now before the Court, that the Court is likely to be satisfied of the threshold test that the matters alleged in the supporting documentation would, if proved, justify the making of a supervision order for the purpose of s7(4) of the Act. However, counsel makes no concession concerning the position of the defendant at a final hearing, particularly in relation to s9(2) of the Act. On the basis of this concession, the defendant does not oppose the Court making orders appointing two qualified psychiatrists to examine the defendant. The defendant, subject to his current supervision conditions, will comply with any direction to attend examinations. 4Given the terms of s7(4) and (5) of the Act, however, it remains a matter for the Court to determine whether the statutory criteria have been satisfied. In this respect, I agree with the approach of Price J in Attorney-General for the State of New South Wales v Hayter [2007] NSWSC 983 at [4]. That process, however, is facilitated by the fact that there is no controversy between the parties to be resolved in this respect; rather, it remains for the Court to consider the supporting documentation tendered on the application and then apply the test under s7(4) of the Act. Evidence on application 5NSW has read affidavits and tendered other documents in support of the application. The affidavits read are those of Narci Sutton, affirmed 17 June 2011, together with "NS1" to that affidavit, two affidavits of Ian Fraser, affirmed 9 June 2011 and 17 June 2011, together with three folders of documents which are exhibit "IF1" to the second affidavit of Mr Fraser. The defendant did not object to the tender of that material in the application under s7(4). Statutory test 6The objects of the Act are set out in s3 which states, in summary, that the primary object of the Act is to provide for extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. The further object of the Act is to encourage serious sex offenders to undertake rehabilitation. 7On the present application by way of preliminary hearing, the Court must consider whether, for the purposes of s7(4), it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order with respect to the defendant. If so, the Court must make orders appointing psychiatrists or psychologists to undertake examinations. If, following the preliminary hearing, the Court was not satisfied in accordance with s7(4), the Court must dismiss the application: s7(5). Thus it falls to the Court to apply that test in the circumstances of this case. 8In Attorney-General for the State of NSW v Tillman [2007] NSWCA 119 at [98], the Court of Appeal emphasised that the task of the Court, at the preliminary hearing stage, was not to weigh up the documentation, or to predict the ultimate result or to consider what evidence the defendant might call at the final hearing. It has been said that the test to be applied at this stage is similar to the prima facie case test applied by Magistrates as part of committal proceedings: Attorney-General for the State of NSW v Hayter at [6]; State of NSW v Brookes [2008] NSWSC 150 at [13]. 9One purpose of the preliminary hearing procedure is to allow the Court to filter out unmeritorious applications at an early stage. Another purpose is to give the Court the benefit of the expert opinions of two independent witnesses before making a final decision. 10Section 9(2) provides that an extended supervision order may be made if, and only if, the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. The application for final relief requires consideration of the factors contained in s9 of the Act. It is necessary, for the limited purposes presently required, to refer to s9 factors and their application to this defendant. 11Section 9(2) in its present form is of recent origin. It was inserted into the Act with effect from 7 December 2010, replacing a formulation which used the words: "Is likely to commit a further sex offence". 12Given that at this stage in the proceedings the Court is applying a test similar to the prima facie case test applied by Magistrates in committal proceedings, I am content to rely upon the interpretation of "unacceptable risk" set out by Davies J in State of New South Wales v Richardson (No 2) [2011] NSWSC 276 at [20] where his Honour said: "[30] ... [20] Whilst bearing in mind the second of those two objects, I would regard the test in s 9(2) as being satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made." I note that I applied that test in making a final order in State of New South Wales v Bastian [2011] NSWSC 641 at [72] - [73]. Statutory criteria 13There are certain threshhold criteria which the plaintiff must satisfy. I am satisfied that the defendant falls within the definition of "sex offender" and that he is serving a relevant sentence for a "serious sex offence". I note, in this respect, the extended definition in s6(1)(a) which provides that the term "current custody or supervision" in the Act includes a person who is on release on parole whilst serving a sentence of imprisonment. The defendant is presently on parole as part of the sentence of imprisonment passed upon him on 12 September 2003. 14The defendant has been on parole since 10 February 2011. The present application was commenced by NSW on 6 June 2011. NSW is prevented, by s6(2) of the Act, from making application under the Act until the last six months of the current custody or supervision of the relevant offender. Thus, although the present defendant has been at large in the community since 10 February 2011, albeit subject to a number of conditions, NSW was prevented from bringing this application until a date after 11 March 2011. 15I am satisfied that the application is supported by documentation which meets the requirements of s6(3)(a) of the Act, in that the documentation addresses each of the matters referred to in s9(3). I am also satisfied that the documentation satisfies s6(3)(b) of the Act in that it includes reports from Dr Barbara Sinclair of 24 August 2010 and from Dr Jonathan Adams of 5 October 2010 (psychiatrists) and of Ms Narci Sutton of 21 March 2011 (psychologist) which assess the likelihood of the defendant committing a further serious sex offence. Section 9(3) criteria 16I now consider the factors referred to in s9(3) of the Act, for the limited purpose required on a preliminary hearing. I refer to a number of these factors out of their statutory order. 17Section 9(3)(h) requires the Court to consider the defendant's criminal history, including prior convictions and findings of guilt, in respect of offences committed in New South Wales or elsewhere and any pattern of offending behaviour disclosed by that history. The Court has been assisted by helpful written submissions provided by counsel for NSW which summarise material contained in the supporting documents with respect not only to the defendant's criminal history, but to other features which arise for consideration under s9. 18The defendant was born in 1964 and is now aged 46. He has convictions for eight serious sexual offences committed on four separate occasions in June and September 1989 and May 2002. The sexual offences were committed against four separate victims. 19On 12 September 2003 the defendant was sentenced by Phelan DCJ in the Wollongong District Court for the offence of sexual intercoruse without consent, being an offence contrary to s61I of the Crimes Act . The defendant pleaded guilty. The victim (JS) was a 26 year old male. The defendant committed the offence in Wollongong on 12 May 2002. In sentencing the defendant, Judge Phelan took into account a charge on a Form 1 of assault occasioning actual bodily harm to the victim. The defendant committed the sexual offence less than six months after having been released on parole in respect of a sentence imposed by Justice James in 1993 for one of the seven sexual offences that the defendant committed in 1989. 20Judge Phelan noted that the index sexual offence was carried out in circumstances "remarkably similar" to the sexual offences carried out against the three separate male victims in 1989. 21In his Remarks on Sentence Judge Phelan described the factual circumstances of the offence. At about 5am on Sunday, 12 May 2002 the 26 year old victim left licensed premises in the Wollongong CBD with the intention of either catching a taxi or train to his home. While walking along a street, the victim was grabbed from behind by the offender who placed a stranglehold on him. Eventually the victim was forced to the ground in an isolated grassed area. 22The offender undid the victim's jeans and pushed them down to his knees. While the victim was continuing to struggle and yell for help, the offender punched him to the face before sucking his penis. The victim managed to reach for the offender's eyes which he gouged with both of his hands. The offender reacted to this by pulling hard on the victim's penis. The offender eventually let go of the victim and stood up holding his eyes. The victim ran away from the offender and went to the Wollongong Police Station. He was in a distressed state with an amount of blood on his clothing. Ambulance personnel were summoned and attended to his facial injuries. Apart from being emotionally traumatised, the victim suffered a broken nose, two black eyes, abrasions and tenderness about his body, was coughing blood and had trouble swallowing as a result of the offender holding him by the throat. 23Judge Phelan sentenced the defendant to imprisonment for 8 years, commencing 12 September 2003 and expiring 11 September 2011 with a non-parole period of 6 years, commencing 12 September 2003 and expiring 11 September 2009. In sentencing the defendant, Judge Phelan had regard to a pscychiatric report dated 3 September 2003 from profession Greenberg, who diagnosed the defendant as having a chronic and severe paraphilic disorder, namely a sexual sadism disorder. 24On 19 February 1993 the defendant was sentenced by Justice James in the Supreme Court in respect of seven sexual offences committed against three separate victims on different occasions in 1989. The defendant had been found guilty of the offences, following a trial before a jury. Justice James imposed an effective total sentence of 16 years imprisonment comprising a minimum term of 12 years with an additional term of 4 years. 25Six of the counts on the indictment and in respect of which the defendant was convicted, charged an offence under s61D of the Crimes Act of sexual intercourse without consent. Another count was inflicting actual bodily harm with intent to have sexual intercourse, contrary to s61C of the Crimes Act and the other count was inflicting grievous bodily harm with intent to have sexual intercourse, contrary to s61B of the Crimes Act . The defendant was 25 years old when he committed the 1989 offences. Each of the victims was a young adult male. In the hearing before James J, there was no issue that the offences had been committed, the only issue was the identification of the offender. 26PSM, a 21 year old male, was one of the 1989 victims. On 11 June 1989 he was walking home in Wollongong. The defendant grabbed the victim from behind and committed two offences of sexual intercourse without consent. The sexual assaults comprised oral sexual intercourse and penile anal sexual intercourse. The sexual assaults were accompanied by threats by the defendant to kill the victim and members of his family. 27The defendant grabbed PSM from behind and knocked him over a low boundary wall about a metre high running along the side of the street. The defendant then pushed PSM across part of a vacant property into a shed. Inside the shed, the defendant took PSM's pants down and made him lie on his stomach. The defendant rolled PSM onto his side and sucked his penis. The defendant then told PSM to turn towards the wall of the shed and having made threats to kill him and members of his family, had full anal sexual intercourse with him. The defendant told PSM to remain lying in the shed. Some hours passed before PSM reported the offence to the police, because he was terrified that the defendant might kill him or members of his family. It was common ground that PSM was physically very small and slender. 28DWL, a 22 year old male, was another victim. On 25 June 1989 he was walking along the same street in Wollongong, having been out to a number of nightspots. The defendant tackled DWL from behind and hit him three or four times on the back of his head with a rock. The defendant pushed DWL in a westerly direction, past the shed in which he had assaulted PSM, and into a toilet block in a park. In a cubicle in the toilet block, the defendant told DWL to take his pants down and he then took DWL's penis in his mouth. The defendant then told DWL to get down on his knees and put his chest on the ground. The defendant then inserted his penis into DWL's anus and had anal sexual intercourse with him. DWL bled profusely while he was in the cubicle. When the defendant left, DWL was able to get a lift from a passing motorist who took him to hospital. 29The third victim was a 29 year old male, AEC. On the night of 21 September 1989 AEC was one of a group of men celebrating the recent birth of a child. He had consumed a very large amount of alcohol and early in the morning of 22 September 1989 left a nightclub in Wollongong grossly intoxicated. The defendant and AEC left the nightclub together, but when they were next to a site on which a building had been demolished, the defendant punched him on the nose several times, breaking it. The defendant then hit AEC on the side and back of his head several times with a rock. The defendant removed AEC's pants and while he was on his hands and knees, he inserted his penis into AEC's anus and had anal sexual intercouse with him. He said to AEC "Shutup or I will keep bashing you". When the defendant left the area, AEC was disoriented and wandered about until he was able to get to the Wollongong Police Station a few hundred metres away. He was wearing a Tshirt which was covered in blood and he was naked from the waist down. He spent a week as a patient in the Wollongong Hospital and 40 stitches were inserted in wounds in his head. 30On 28 June 1994 the NSW Court of Criminal Appeal dismissed an appeal by the defendant against the severity of the sentences imposed by James J. 31As can be seen from the circumstances relating to all of the offences, a common scenario emerged. In that regard, Professor Greenberg in 2003 made the following observations in relation to the 1989 sexual offending: "He (the defendant) states that the modus operandi with all three victims was the same. They were all between the ages of 20 and 40. He would follow the victim from the hotel and subdue the victim with threats of intimidation and physical assault. He would then pull down their pants and perform fellatio on them. If they hadn't obtained an erection, he would humiliate them further and physically abuse them. He states that his abuse would sexually arouse him and he would rape the victim by anal penetration with his erect penis. He admits to inducing suffering and humiliating the victim and subjecting them to physical assault which sexually aroused him. He states he would then remove their wallets and pretend that he had noted their address. He would threaten the victims that if they reported the incident he would "come and get them". He denies he stole any wallets from the victims." 32Section 9(3)(h1) requires consideration of the views of the sentencing court in relation to the index offence. In his Remarks on Sentence, Judge Phelan referred to the remarkable similarity between the index sexual offence and the prior sexual offences for which the defendant convicted when sentenced in 1993. Judge Phelan also extensively referred to the report of Professor Greenberg and the diagnosis of paraphilia (sexual sadism) in respect of the defendant. He noted that the index offence was committed whilst the defendant was on parole, following his 1993 conviction. His Honour also noted the stated need for the defendant to again undertake the CUBIT program (Custody Based Intensive Treatment program). 33In his Remarks on Sentence, Judge Phelan said: "The matters which render this particular charge serious refer specifically to the earlier charges of almost identical kind. Add to that the fact ... that he has undergone substantial rehabilitation but despite the clear warnings, particularly those related to alcohol, in the end result he ignored them to his own cost and that of the innocent victim. The offence was committed whilst on parole after he had spent a very long period in gaol." 34Section 9(3)(f) relates to the defendant's compliance with obligations while subject to parole. In relation to the 1989 offences, as has already been indicated, the defendant was released on parole on 24 November 2001 and committed the index sexual offence on 12 May 2002. On 16 October 2002 he was arrested and charged with the index sexual offence. Following the receipt of a breach of parole report, on 31 October 2002 the Parole Board ordered that the defendant's parole be revoked with effect 12 May 2002 for breach of parole condition number 3, i.e. unable to adapt to normal community life. 35When he committed the index sexual offence in May 2002 the defendant had been attending FPS Psychological Maintenance Sessions on a weekly basis since November 2001. The fact that, in such circumstances, he nonetheless committed the offence was described in the CUBIT treatment report of 21 October 2010 as "suggesting some difficulty being open with staff and working through any risk situations effectively". 36On 10 February 2011 the defendant was released on parole and taken to reside at Nunyara COSP Centre. He is being case managed and supervised by the Community Compliance and Monitoring Group (CCMG). As part of his parole conditions, the defendant is subject to electronic monitoring and scheduling obligations. 37Section 9(3)(e) requires consideration be given to any treatment or rehabilitation programs in which the defendant has had an opportunity to participate, his willingness to participate in such programs and the level of his participation in such programs. While incarcerated for the 1989 sexual offences, the defendant participated in the Sex Offender Psycho-Educational Group Program (SOPE) from 28 October 1999 to 23 December 1999 at the John Moroney Correctional Centre. The SOPE was described as an educational group which aims to assist offenders to overcome common misunderstandings about sexually abusive behaviour, to challenge their thinking errors and to motivate them to enter treatment. 38The defendant received individual counselling sessions from Graham Rendell, psychologist, for approximately a year on a fortnightly basis at the John Moroney Correctional Centre prior to undertaking CUBIT for the first time. Mr Rendell described the defendant as having "made significant gains in addressing those issues contributing to his offending". 39From 21 January 2001 until 2 November 2001 the defendant undertook the high intensity CUBIT program at the Long Bay Correctional Centre. The defendant's participation in CUBIT is detailed in the final treatment report dated 6 November 2001. The report spoke positively of the defendant's participation in the program. He completed the disclosure component of treatment "satisfactorily"; his progress in the victim empathy section of treatment was "pleasing" and his written work (apology letters) reflected a genuine empathy for his victims. In addition, he satisfactorily completed the offence cycle component; and during treatment he developed a relapse prevention plan based on his risk factors that he identified when he completed his offence cycle. However, he failed to complete the sexual self-regulation component of the treatment. It was recommended that the defendant participate in the maintenance program, whether in custody or in the community. 40Having regard to both static and dynamic risk factors, the Final Treatment Report (FTR) recorded the defendant's overall risk of sexual recidivism as being "moderate". 41Following his release from custody on parole in November 2001, the defendant attended the Community Management Program on a weekly basis until his arrest, missing only three sessions (on each occasion phoning with a reason for his non-attendance). Mr Rendell was again the defendant's therapist. In a report dated 6 November 2002 Mr Rendell referred to the defendant's participation in the maintenance program in generally positive terms. 42While subsequently incarcerated for the index sexual offence, the defendant again undertook the CUBIT program at the Long Bay Correctional Centre. Prior to undertaking the program, the defendant participated in the Custodial Maintenance program at Kirkconnell Correctional Centre. 43The defendant participated in the CUBIT program (second time) from 23 April 2009 to March 2010. In the Treatment Report, dated 21 April 2010, Ms Senior reported that, overall, the defendant's participation within treatment groups was positive in terms of the contributions he made to discussions and the completion of task related work. However, a number of challenges were noted and it was recommended that the defendant participate in the Community Based Maintenance program until parole was granted and thereafter continue in the Community Based Maintenance program. In this respect, continued psychological work required with the defendant was identified as including: