State of New South Wales v Scerri

Section 9(3)(h) - criminal history 6The defendant was born on 18 October 1964. His lengthy criminal record is characterised primarily by sexual, personal violence and driving offences. On 26 September 1989 the defendant was charged with a number of personal violence and sex offences committed between June and September that year against three male victims in the Wollongong area. In late 1992, he was tried and convicted in this Court of five counts of sexual intercourse without consent contrary s 61D of the Crimes Act 1900, one count of maliciously inflict grievous bodily harm with intent to have sexual intercourse contrary to s 61C and one count of stealing from the person contrary to s 94. James J sentenced the defendant to an aggregate sentence of 16 years imprisonment comprising a minimum term of 12 years commencing on 26 September 1989 with an additional term of 4 years. The defendant was released to parole on 24 November 2001. 7On 16 October 2002 the defendant was charged with (inter alia) one count of sexual intercourse without consent in respect of one victim on 12 May 2002. The defendant pleaded guilty in the Local Court on 26 February 2003 and was subsequently sentenced by Phelan DCJ in the District Court on 12 September 2003, a charge of assault occasioning actual bodily harm being taken into account on a Form 1. The defendant was sentenced to an effective term of eight years to commence on 12 September 2003, with a non-parole period of six years. Despite being eligible for parole on 11 September 2009, the defendant was not released to parole until 10 February 2011. 8The details of the offences for which the defendant has been sentenced can be outlined briefly and are taken from the remarks on sentence made by the sentencing judges. At approximately three o'clock on the morning of Sunday 11 June 1989 PSM, a male aged 21 years at the time, was walking along a street in Wollongong when he was grabbed by the defendant from behind and knocked over a small boundary fence into vacant property. The defendant threatened to injure PSM unless he did as he was told. The defendant pushed him into a shed on the property, pulled PSM's pants down, told him to lie on the ground on his stomach and unsuccessfully attempted anal intercourse. (This was not the subject of a count on the indictment and the defendant was not sentenced for the offence.) The defendant then rolled PSM onto his side and fellated him. After some time, the defendant told PSM to turn towards the wall of the shed and threatened to kill or hit PSM or kill members of his family if he did not do as he was told. He then had anal intercourse with PSM and ejaculated. After this assault, the defendant left the shed, telling PSM to remain there. Several hours passed before PSM reported the offences to the police as he feared that the defendant might kill him or members of his family. 9Shortly after 2am on 25 June 1989 DWL, a male then aged 22 years, was walking home, having visited a number of nightclubs in Wollongong. He encountered the defendant who tackled him from behind and hit him three or four times on the back of the head using a rock, causing heavy bleeding. The defendant pushed DWL into a toilet block and the defendant told DWL to "shut up and keep your head down" and take his pants down. The defendant fellated DWL. The defendant then directed DWL to get down on his knees and put his chest on the ground and, when he did so, had anal intercourse with him for about five minutes. The defendant and DWL remained in the toilet block for some time, both falling asleep. DWL, who continued to bleed from the injuries sustained to his head and who had drunk a large amount of alcohol earlier in the evening, did not move for fear of waking the defendant. The defendant returned DWL's wallet, having taken it from him when the pair entered the toilet block after removing $20 in cash. The defendant left the toilet block. DWL left shortly thereafter and walked across the park and waved down a passing motorist who drove him to the hospital. 10 In the early hours of the morning of 22 September 1989, heavily affected by alcohol, AEC left a nightclub in Wollongong. Having refused an offer by the doorman of the club to call him a taxi, AEC remained at the door of the club where he encountered the defendant. The pair commenced to walk away from the club together. As they passed a vacant block the defendant punched AEC several times on the nose, ultimately breaking it. The defendant then struck AEC several times on the side and back of his head with a rock. He then removed AEC's pants and while AEC was on his hands and knees commenced to have anal intercourse with AEC during the course of which he told the victim to keep quiet or he would keep bashing him. When he had finished, the defendant left the area and AEC wandered around the site bleeding profusely, ultimately making his way to the Wollongong police station a few hundred metres away. AEC suffered serious physical injuries amounting to grievous bodily harm. 11At approximately 5am on 12 May 2002 JS, a male aged 26 years at the time, left a licensed premises in Wollongong to return home. While walking he was grabbed from behind by the defendant who placed him in a "strangle hold" and forced him into an isolated grassed area near the platform of Wollongong railway station. While sitting on JS's torso the defendant undid JS's jeans and pushed them down to his knees. The defendant then punched JS, who was struggling and screaming for help, to the face and fellated him. The defendant punched him to the face again. At some point during the assault, JS gouged the defendant's eyes with his hands and the defendant eventually let go. He stood up and JS fled the scene, making his way to the Wollongong police station where he reported the attack. He also suffered serious injuries, spending a week in hospital and needing some forty stitches for his head wound. The defendant was on parole for the offences committed in 1989 at the time of this offence, having been released to parole on 24 November 2001, some six months earlier. Section 9(3)(h1) - views of the sentencing court at the time of sentencing the defendant 12James J noted the claim of the defendant that he only had homosexual urges when he was "totally" drunk and observed that there was little to suggest that he was in this state when he attacked his victims. He considered that the assaults were all objectively very serious and the offence of maliciously inflicting grievous bodily harm upon AEC with intent to have sexual intercourse with him was "close to being an example of the worst class of case". The defendant's last conviction for a sexual offence was in the District Court on 12 September 2003 before Phelan DCJ in respect of the offence committed against JS on 12 May 2002. His Honour referred to the report of Dr Greenberg which stated, in short, that the defendant had disclosed that he was sexually aroused by the violence and humiliation inflicted on his victims. In sentencing the defendant, his Honour noted the "remarkable similar[ity]" between the offence committed against JS and those committed in 1989. His Honour said - "The matters which render this particular charge serious refers specifically to the earlier charges of almost identical kind. The fact that he has undergone substantial rehabilitation but, despite 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." Section 9(3)(f) - compliance with obligations while on parole or earlier extended supervision order 13The defendant committed the offences against JS on 12 May 2002, some six months after having been released on parole on 24 November 2001 for the offences committed in 1989. The Parole Board on 31 October 2002 revoked his parole order. He committed the offence whilst he had been attending weekly FPS psychological maintenance sessions. The commission of the offence certainly "[suggested] some difficulty being open with staff and working through any risk situations effectively" as submitted by the CUBIT Treatment Report of 21 April 2010. 14On 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). His parole conditions subject him to electronic monitoring and scheduling obligations. 15The defendant has not previously been subject to an extended supervision order. Section 9(3)(g) - compliance with reporting obligations under Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 16There is no evidence that the defendant was subject to any reporting obligations under such legislation and it is therefore unnecessary to consider this matter. Section 9(3)(e) - previous treatment or rehabilitation programs 17Whilst serving the sentences imposed by James J on 19 February 1993, the defendant participated in the Sex Offender Psycho-educational Group Program (SOPE) for two months at the end of 1999. SOPE is described as an educational group which aims to assist offenders to overcome common misunderstandings about sexually abusing behaviours, to challenge their thinking errors and to motivate them to enter treatment. He was also counselled by Mr Graham Rendell fortnightly for about a year prior to undertaking CUBIT the first time. Mr Rendell described the defendant as "having made significant gains in addressing those issues contributing to his offending". From 21 January to 2 November 2001, the defendant undertook the high intensity CUBIT program, which was the subject of a Final Treatment Report on 6 November 2001. Overall his participation was regarded as satisfactory or better. However, he failed to complete the sexual self-regulation component and it was recommended that he participate in the maintenance program whether in custody or the community. Having regard to static and dynamic risk factors, the Report recorded an overall risk of sexual recidivism as "moderate". 18On release the defendant attended the Community Maintenance Program weekly except for three sessions. Mr Rendell was again his therapist and reported on 6 November 2002 in generally positive terms. 19When imprisoned for the last offence, the defendant again undertook the CUBIT program from 23 April 2009 to March 2010, having previously participated in a Custodial Maintenance program. In the Treatment Report of 21 April 2010 it was said that his participation was positive but a number of "challenges" were noted and it was recommended that he undertake a community-based maintenance program until parole was granted and, when released, continue that participation. Continued psychological work required attention to a number of identified matters, which it is not necessary to detail. However, they are significant matters that certainly need some resolution to reduce the risk of recidivism. The Treatment Report expressed concerns about the ability of the defendant to comply with supervision requirements and stated - Mr Scerri has a tendency to behave in a compliant manner and can appear to be managing well even at times of extreme distress ... At such times Mr Scerri appears able to detach from his emotional experience and suppress his needs and emotions. These needs then buid up and are more explosively expressed at a later point. Following completion of the CUBIT program in March 2010, the defendant attended Custodial Management sessions until his release on parole in February 2011. He then commenced weekly attendance at the Community Maintenance programme at FPS from 3 May 2011. Psychiatric Diagnosis: s 9(3)(c) and (i) 20In a report of 3 September 2003, Professor Greenberg diagnosed the defendant as having a sexually sadistic (paraphilic) disorder as defined in DSM-IV of a chronic and severe nature. Dr Greenberg explained the term, in substance as a sexually deviant disorder in which the person "derives sexual excitement from the psychological or physical suffering of the victim". I interpolate that, though described as a "disorder", I do not infer from the psychiatric or psychological material tendered in this case, that it can or indeed ought to be understood in any sense as an illness. Of concern is Dr Greenberg's opinion that the disorder is "chronic and should be regarded as a severe disorder in view of his criminal sexual activity". 21Professor Greenberg also diagnosed alcohol abuse dependence, a history of PTSD and a dysthymic disorder. 22In a report of 24 August 2010, Dr Sinclair came to the same conclusion as Dr Greenberg about the defendant's condition and added that she thought "his risk of re-offending to be extremely high". Accordingly, further reports on his progress were needed within 6 months. 23In a psychiatric report of 5 October 2010, Dr Jonathon Adams noted that the history given by the defendant about the circumstances of his sexual arousal differed significantly to that given earlier to Dr Greenberg and noted in the CUBIT Treatment Report of 21 April 2010. In short, they tended to minimise the extent and occasions of arousal. This is a troubling feature that underlines the need for caution in too readily accepting that the various interventions permit optimism about the risk of recidivism, although I would accept that there has been significant improvement. 24I mention the reports of Dr Samuels and Dr O'Dea but they are largely along the same lines as those I have already mentioned and do not call for further discussion. Abuse of alcohol: s 9(3)(i) 25The defendant has a long history of abusing alcohol, probably starting in his early teens. However, as follows from the comments of James J, the actual role that alcohol played in the applicant's offences may well have been exaggerated by him. Even so, alcohol is typically a disinhibitor - Dr Greenberg thought that it was imperative that the defendant remain abstinent of alcohol and illicit substances for the remainder of his life. Drs Samuels and O'Dea also recommend abstinence. Risk assessment (other than court-appointed psychiatrists): s 9(3)(c) and (d) 26I have already mentioned the assessment of Dr Greenberg in his report of 3 September 2003. In Dr Sinclair's report of 24 August 2010 she desribed the defendant as having an "extremely high" risk of re-offending. Ms Sutton, senior specialist psychologist with Corrective Services NSW carried out a psychological risk assessment by reference both to actuarial risk assessment (STATIC-99R) and dynamic risk factors. On the former scale his score was 9, placing him in the high risk category relative to other adult male sex offenders. She noted that the rates of recidivism for sexual offences within the normative samples with the same score as the defendant were "between 29.5% and 52.4% over five years and 53.1% and 61.9% over ten years". In terms of relative risk, sexual offenders with a score of 9 showed 6.48 times than the recidivism rate of a "typical" sex offender. 27As is widely conceded, the STATIC-99R assessment has significant inherent limitations and must be treated with considerable caution. It is important to consider also the dynamic risk factors. Ms Sutton used the Risk of Sexual Violence Protocol (RSVP) for this assessment. Overall, she concluded that the defendant still had a moderate to high level of risk for sexual offending with risk factors present in each of the five marking sub-categories. So far a stable dynamic risk factors were concerned, Ms Sutton identified access to potential victims, hostility, use of alcohol, emotional collapse, collapse of social supports and rejection of supervision as key risk factors for the defendant. These needed close supervision. 28Overall, Ms Sutton assessed the defendant as presenting a high risk of sexual offending relative to other adult male offenders. Reports received from court appointed psychiatrists: s 9(3)(b) 29Dr Samuels assessed the defendant's risk of sexual recidivism by reference to clinical, static, dynamic and protective factors as being high "if he is not kept under close supervision and monitoring in the community". 30Dr Jeremy O'Dea's report was dated 16 August 2011. He concluded - ... from a full psychiatric risk management perspective and as judged by various actuarial and more so called dynamic risk assessment instruments, in the absence of specific risk management interventions ...Mr Scerri's risk of engaging in further sex offending behaviours would be considered significantly high and appropriate for these specific interventions. In addition, it could be considered that there would be a significantly high degree of probability that Mr Scerri would be likely to commit a further serious sex offence in the community in the long term if these treatment interventions were not successfully provided. Safety of the community: s 9(3)(a) 31It is not necessary to dilate upon this factor. It is obvious that the defendant poses a significant risk to the community if he is permitted to go at large without a high degree of supervision and monitoring. The conditions that have been imposed reflect this need. 32As I mentioned, the plaintiff contended that the Order should be granted for a period of five years, which is the maximum prescribed term. Both Drs Samuels and O'Dea consider that the need for supervision is long term and, at least five years is required. I should state at the outset that, as a lay person, I entirely share this view, viewed from the present vantage point. The Act provides for constant periodic review and permits the subject of the order to seek revision on his or her own initiative. With respect, I agree with the observation by Johnson J in State of New South Wales v Tillman [2008] NSWSC 1293 at [61] that it is inappropriate to draw analogies from principles relating to punishment by way of imprisonment. A supervision order is in no sense punishment. It is designed, so far as it may reasonably do so bearing in mind the civil rights of all citizens, to protect the community from the risk of further serious offences being committed by those who have demonstrated in the most direct way the tendency to commit such offences. 33Of course, it cannot be denied that the imposition of a supervision order is a very substantial inroad into the civil rights of a person to go about his or her life freely as long as his or her actions do not impinge criminally on the lives of others. In our community, such limits on freedom cannot be imposed by the Executive. They are reserved, for reasons that do not need to be explained, to the independent Courts to decide in accordance with the law. This fundamental principle, indeed, is reflected in the legislation presently under consideration. With great respect for those who may differ from me on this matter, I consider that vindicating the essential role of the courts in protecting the liberties of the subject is especially important where, as here, no sentence of punishment is being imposed but, rather, a person's fundamental right of personal freedom is being very substantially qualified in order to protect the community. 34This is not to express any opinion whatever about the desirability of the legislation. It is the duty of the Court to undertake conscientiously the task entrusted to it by the Parliament. However, in my view, the appropriate course is to limit the supervision order, in the first instance to three years. My expectation is, as indeed the doctors opine, that it will be in all likelihood necessary to extend it. However, the future is unpredictable and, although an application can always be made if circumstances change, that is not the same as requiring a fresh application to be made in three years time to remind the parties - and the community - that the Court is ultimately responsible, in accordance with the law, for making orders that affect the basic human right to be free from physical restraint. Conclusion 35Under s 9(1) of the Act, the court is empowered to determine an application for an extended supervision order by either making an order or dismissing the application. I am required to be 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". As is obvious, I am so satisfied and, accordingly, made the supervision order as mentioned at the outset of these reasons. 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: 10 April 2012