Solicitors:
Crown Solicitor's Office (Plaintiff)
Legal Aid New South Wales (Defendant)
File Number(s): 2015/301807
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Judgment
Introduction
On 6 November 2015, Adams J made an interim detention order (IDO) with regard to Mr Guillermo Marcello Schmidt (the defendant), pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). His Honour also ordered that psychiatric reports be prepared with regard to the defendant, and that he cooperate in their preparation. Thereafter the IDO was extended by other judges of this Court.
The final hearing of the matter came before me on Thursday 4 February 2016. At that stage the defendant remained incarcerated pursuant to an IDO. By way of the inflexible operation of s 18C of the Act, the IDO that I made on that occasion could not extend past midnight on the evening of Tuesday 9 February 2016. I shall return to discuss the appropriateness of that state of affairs later in this judgment.
At the final hearing, the plaintiff (the State) moved upon its summons filed on 15 October 2015, and sought a continuing detention order (CDO) for a period of 18 months, to be followed by an extended supervision order (ESO) for a period of 5 years, against the defendant. In the alternative, the State sought an ESO for a period of five years. Those orders were sought on the basis that the State had established that the defendant is a high risk sex offender as defined in s 5B(2) of the Act. There was no submission made that the defendant is also a high risk violent offender.
The primary submission of counsel for the defendant was that the test for interfering with the liberty of her client in either way had not been made out; accordingly, neither a CDO nor an ESO should be made. In the alternative, she submitted that, if I were satisfied that the central test had been fulfilled by the State, then I would impose an ESO and not a CDO. Furthermore, she submitted that any ESO should not be for more than three years.
A very substantial amount of documentary evidence was placed before me by the State. As well as that, the two psychiatrists who had prepared reports pursuant to the order of Adams J gave oral evidence in conclave at the hearing before me. The defendant neither gave evidence himself nor tendered any evidence.
I turn now to summarise matters of fact of which I am satisfied on the balance of probabilities. Because there are serious questions about the credibility of the defendant as a historian, I have exercised caution in accepting his uncorroborated assertions; with regard to some matters I am not satisfied on the balance of probabilities that things he has said to other persons are correct.
Background and upbringing
The defendant was born in March 1969, and accordingly is a few weeks shy of his 47th birthday. It is unclear whether in truth he was born in Germany or Chile, but he was certainly brought up in the latter country. His father was a police officer who became entangled in the political unrest that roiled Chile in the 1970s, and that featured the military coup that deposed the government of President Salvador Allende in September 1973. As a result of that unrest, the father of the defendant was summarily executed by the military. Although at the time the defendant was only a young child, I accept that the subsequent revelation to him of what had occurred deeply and adversely affected him emotionally. As well as that, I accept more generally that the defendant suffered personally at the hands of the military regime. In short, I accept on the balance of probabilities that the defendant was and is psychologically damaged as a result of events that occurred during his childhood and teenage years.
Life in Australia
The defendant left Chile for Australia in 1989. He was then aged about 20 years, and intended to make a new life here. He arrived with limited skills in English, and without the support of family or friends. Since that time, he has become an Australian citizen, and has no intention of returning to his homeland, where his elderly mother and his three sisters remain. A brother has since moved to Sydney, but it seems that he and the defendant have little contact.
Regrettably, it cannot be said that things have turned out well in Australia for the defendant from any perspective. Employment has played little role in his life over those decades, although he did work as a storeman for a period of seven years in the 1990s. As well as that, he has been burdened by psychiatric issues (including depression leading to at least one suicide attempt) requiring inpatient treatment, a number of unsatisfactory intimate relationships, and very serious criminality. Indeed, the defendant has been incarcerated continuously in New South Wales since late 2003, a period of more than 12 years.
Separately, the defendant has experienced long-standing problems with prohibited drugs and alcohol. They began in Chile, when he commenced to use prohibited drugs in early adolescence. Since that time he has progressed from cannabis to amphetamines, and has also experimented with cocaine, LSD, and heroin. Once in Australia, he also began to drink alcohol excessively.
The defendant has enjoyed eight or nine intimate relationships over the years, and sexual relations with many women. Two marriages ended in divorce, though there is little detail about them in the evidence before me. Many of his intimate partners have been the victims of his crimes, a topic to which I now turn.
Criminal record
In 1990, quite soon after his arrival, the defendant was placed on a bond for an offence of common assault. The facts were, in a nutshell, that the defendant requested his then wife to make him something to eat. When she refused, he grabbed her and bashed her head and face against a wall, and punched her in the face with a closed fist.
In 1991, he committed a further common assault and also carried a cutting weapon, for which he was fined the following year. In short, the defendant had entered a unit and stood over the sleeping female complainant, with whom he had previously been in a relationship. Things escalated when the defendant was asked to leave, and culminated in the defendant punching and pushing the complainant.
In 1997, the defendant committed a very grave sexual assault against a young woman. The defendant did not come under suspicion as the perpetrator, however, until many years later, when a cold hit DNA match implicated him. It was not until 2004 that he was charged with that offence; as a result, I shall discuss it a little later in this judgment.
In the year 2000, he committed an assault occasioning actual bodily harm, for which he was fined $500. The male victim told police that he was in an intimate relationship with the defendant, but the defendant has always rejected that proposition. The facts were that during an argument the defendant pushed and punched the victim, and whilst holding his hair hit his head upon the floor repeatedly.
On at least three occasions in the latter part of the year 2000, the defendant breached apprehended domestic violence orders. Again, the victim was an intimate partner. For all of those offences, he was ultimately fined or placed on a bond.
In August 2003, the defendant committed an assault occasioning actual bodily harm. The circumstances in short were that the defendant wanted to file a complaint in derogatory terms against the manager of a refuge at which he then resided. The victim, another member of staff, refused to record a complaint in those terms, and asked the defendant to leave. The defendant then punched the victim repeatedly. Many months later, he was sentenced in the Local Court to a fixed term of imprisonment for one year to commence on 11 December 2003.
In December 2003, the defendant committed a malicious wounding upon a woman whom he had met in an alcohol rehabilitation centre, and with whom it seems he had developed an intimate relationship. The offences occurred in her own home after an argument developed between the two of them. The defendant restrained her by way of bathrobe sashes used as ties, and stabbed her repeatedly with a knife to (amongst other areas) her face, neck and chest. He also used a heavy lamp to inflict a severe beating upon the victim. Entirely unsurprisingly, she suffered great physical and emotional trauma. Originally charged with far more serious offences, the defendant ultimately pleaded guilty to malicious wounding. Again, the sentence for this offence was imposed some time later, and I shall detail it in a moment.
Returning to the sexual offence of 1997, as I have said, it was not detected until many years later. The facts were as follows (I have derived them from the remarks on sentence).
A young woman caught a bus home in the early hours of the morning, and alighted near Summer Hill Railway Station. She was walking through a park when the defendant, affected by amphetamines, approached her. He dragged her into some bushes, and there sexually assaulted her by way of penile/vaginal penetration that included ejaculation. The defendant inflicted violence that resulted in actual bodily harm to the victim in order to achieve his goals. The victim was deeply traumatised.
As I have said, the guilt of the defendant was detected by way of a match of his DNA profile with a profile derived from the semen of the perpetrator. At a subsequent trial before his Honour Judge Berman SC, the defendant presented the "defence" that the victim, who was a complete stranger to him before their encounter, and who suffered physical injury as a result of it, had spontaneously consented to having sexual intercourse with him in a public place in the hours shortly before dawn. The maintenance of that position by the defendant before a jury leads me to approach very guardedly the expressions of remorse that the defendant has made in subsequent years about the effect of his offending, not only upon that particular victim, but also upon all of the others.
After the verdict of guilty on the sexual assault was returned, the defendant pleaded guilty to an unrelated offence of malicious damage. In a nutshell, on 24 August 2003 the defendant smashed a window when he felt that another person had been discourteous to him. His Honour imposed a fixed term of one year to commence on 11 December 2003; it can be seen that that sentence is wholly concurrent with the sentence for the assault occasioning actual bodily harm to which I have referred above.
After conviction for the sexual assault, on 15 October 2004 his Honour imposed a head sentence of 9 years and 6 months with a non-parole period of 7 years, to date from 11 May 2004, the non-parole period therefore expiring on 10 May 2011. It can be seen that that sentence is partly concurrent with the sentences for the malicious damage and the assault occasioning actual bodily harm.
As one would expect, his Honour emphasised the profound objective seriousness of the offence, and the fact that it called for significant deterrence. His Honour also noted the absence of remorse, and expressed the view that there was nothing in the evidence at that stage to suggest that the defendant would not offend similarly in the future.
Subsequently, the defendant was sentenced for the malicious wounding of 2003 by His Honour Judge Bell. In the remarks on sentence, his Honour seemingly gave some credence to the assertion of the defendant that his actions were motivated to a degree by self-defence, in that he claimed that the victim had originally confronted him with the knife that he ultimately used. his Honour also took a guardedly favourable view of the defendant in the remarks on sentence. For the purposes of the proceedings before me, I am not satisfied on the balance of probabilities that the extreme acts of the defendant against the victim were motivated by self-defence in any degree.
As well as that, the victim in that matter separately claimed that the defendant and another man had sexually assaulted her. The defendant was never convicted of those alleged offences; indeed, he was never charged with them. That untested allegation, made many years ago by a person whom Judge Bell described as possessing a "history of mental instability", is not to be disregarded by me in these proceedings; nevertheless, I give it little weight in the circumstances.
His Honour imposed a head sentence of 4 years and 6 months with a non-period of 2 years, each to date from 11 May 2011. It can be seen that that sentence is fully cumulative on the sentence imposed by His Honour Judge Berman. It can also be seen that, pursuant to that cumulative non-parole period, the earliest possible release date of the defendant became 10 May 2013, and that the total head sentence being served by the defendant expired in its entirety on 10 November 2015.
Incarcerated
In fact, the defendant was refused parole shortly before the expiry of the last non-parole period, and indeed was never released on parole. Prior to the expiry of his head sentence, the proceedings that came before me for final hearing were commenced. As I have said, upon the expiry of his head sentence, the defendant became subject to an IDO that has been renewed in the meantime.
The behaviour of the defendant in custody over the past many years has not been exemplary: so much is established by his record of custodial charges. On the other hand, it can be said that it is not as lengthy or serious as some that one sees. Separately, he has been reported on occasions by persons working in the prison system as being an aggressive, demanding, and manipulative person.
Of more direct concern is the fact that the defendant has never engaged in any therapy addressed to his sexual offending or his violent offending. Various reasons have been given by him for that, including logistical difficulties and a personal preference of the defendant to pursue other avenues of rehabilitation. One is entitled to infer that the truth is that the defendant has simply not been prepared to engage in that sort of therapy in custody.
In short, he remains a person who has committed an extremely serious sexual offence but has engaged in no treatment whatsoever with regard to it. An identical statement may be made with regard to his lengthy record for offences of violence, culminating in an extremely grave example of the serious offence of malicious wounding.
Psychiatric treatment
As I have said, the defendant has experienced psychiatric difficulties for many years. Some of those, I consider, can be explained by his long-standing abuse of prohibited drugs and alcohol, but by no means all of them.
Over many years he has been diagnosed with depression, and has made suicidal gestures, culminating in a possibly sincere suicide attempt in custody by way of an overdose of prescription medication in 2008.
As long ago as 2002, he was admitted as an inpatient to Roseville Hospital. The following year he was admitted to Cumberland Hospital, and later in 2003 voluntarily presented at Rozelle. As I have said, in the same year he was receiving treatment for alcohol dependence.
Over the years, the defendant has frankly spoken of himself as suffering from depression. He has also on occasions spoken of hearing voices and being paranoid. Those symptoms have been doubted by medical professionals in the past. And the evidence is that, other than those complaints, the defendant has never described symptoms that are strongly suggestive of frank psychosis or schizophrenia until very recently.
Recent assessments
That changed late last year when he was interviewed by Dr Adams, forensic psychiatrist, pursuant to the order made by Adams J. Without detailing all that the defendant said to Dr Adams, it can certainly be said that the defendant spoke of symptoms far more pronounced than he had revealed to any psychiatrist or psychologist in the past, including when he was assessed for sentence in the District Court by two eminent forensic psychiatrists. He now claims that for years he has suffered from ideas of reference with regard to television sets; visual hallucinations in the form of seeing "spirits" and a "werewolf"; the sensation of hearing the thoughts of others; the sensation of being able to predict the future; the belief that his actions are being controlled by external forces; and the belief that he has had an electronic chip implanted in his brain.
As I have said, the defendant had never spoken in those terms before. Furthermore, Dr Adams noted that the defendant on interview showed no sign of responding to the voices that he claimed to be hearing then and there. Dr Adams also expressed the opinion that such a pronounced constellation of symptoms is unusual indeed. Finally, it is noteworthy that when seen by Dr O'Dea on 26 November 2015 and 22 December 2015 - that is, at times very close to the consultations with Dr Adams - the defendant said little or nothing about such extreme manifestations of mental illness.
Dr Adams expressed real reservations about the veracity of the description given by the defendant of his purported symptoms. I interpolate to say that I share those reservations. In his report, and in oral conclave evidence before me, Dr Adams expressed the opinion that the starting point of any management of the defendant is to determine whether or not he is in truth floridly mentally ill. To that end, Dr Adams expressed the opinion that the defendant should be intensively assessed in a mental health unit.
Dr O'Dea took a slightly different approach. He was prepared to see the report of voices in the context of the substance abuse disorder and antisocial personality disorder from which he diagnosed the defendant as suffering. He was also less directly troubled by questions of veracity than Dr Adams.
Each doctor, as one would expect, expressed the opinion that, at the least, the defendant presents a significant risk of committing a serious sex offence if he were simply to be released without any conditions on his liberty. Those opinions were based upon statistical tests that take into account a number of factors; each doctor accepted that such tests, seeking as they do to extrapolate the future behaviour of an individual from the observed behaviour of a group of individuals in the past have inherent limitations. Nevertheless, Dr Adams spoke of the defendant manifesting "a number of risk factors that increase the likelihood of him engaging in a future serious sex offence, as delineated in the assessment of his sexual violence risk above." Dr O'Dea said that "it would seem reasonable to consider that there would be a significantly high degree of probability that Mr Schmidt possesses an unacceptable risk of committing a further "serious sex offence"… in the community in the long term, if these above outlined treatment interventions above [sic] were not successfully implemented in the context of community supervision and monitoring".
Having said that, each psychiatrist was of the view that there is no firm evidence that treatment in custody of violent offenders is any more effective in reduction of serious reoffending than treatment in the community. They maintained that position before me even whilst accepting that the former treatment is more intensive, and permits of a deeper analysis of a participant than merely attending at the rooms of a psychiatrist or psychologist once or twice a week in the community.
Furthermore, whilst fully cognisant of the risk that the defendant presents, Dr O'Dea was of the opinion that that risk could be managed in the community by way of an ESO that is founded upon stringent conditions and that is intensively managed. Dr Adams was more cautious, and regarded clarification of the true psychiatric state of the defendant as being an essential pre-condition to his proper management in the community.
Ms Matsuo, a senior psychologist within the Department of Corrective Services, was rather less optimistic about management of the defendant in the community, and saw benefits in therapeutic intervention in custody. She was also of the view that the defendant constitutes a high risk of serious sex reoffending compared to other sexual offenders.
Dr Payne, who interviewed the defendant about a year ago and thereafter provided a risk assessment report, noted that he was hostile and threatening; for example, the defendant stated that he would "break someone's jaw" if he were called upon by an ESO to live in supported accommodation with rigorous conditions such as a curfew. Having said that, I think there is force in the submission of counsel for the defendant that at that stage he was just beginning to appreciate that he may be detained past the complete expiry of his head sentence, and may well have been "lashing out" in frustration. Dr Payne came to the same opinion with regard to risk: the applicant is at a high risk of reoffending when compared to others in his cohort.
I also received evidence about the logistics of supervision in the community, founded upon the affidavits of Mr Yeomans and of Ms McCarroll. Suffice to say there have been some recent advances in the technology underpinning electronic monitoring, and supervision of the defendant in the community could be very rigorous indeed. Having said that, no supervision can guarantee, of course, that any defendant can be continuously and absolutely prevented from reoffending whilst in the community.
Position of the defendant
As recorded in at least one report, the plans for the future of the defendant are rather vague. He speaks of finding a place to live (though nothing has been put in place by him in that regard), and visiting family in Chile in due course. He intends to abstain completely from prohibited drugs and alcohol, but has no intention of entering a residential rehabilitation centre in that regard.
To complete my thumbnail sketch of the evidence, counsel for the plaintiff was content for me to be told the following matters from the Bar table by counsel for the defendant. First, the defendant is now quite content to reside in a Community Offender Support Program (COSP), and would abide by all and any conditions in that regard imposed by way of an ESO. Secondly, he would certainly be willing to engage in therapy whilst in the community. Thirdly, as for the question of anti-libidinal medication (a possibility raised in the report of Dr O'Dea), that is something that the defendant would be open to considering, if a psychiatrist thought it was appropriate.
Summary of contending positions about the evidence
In short, as counsel for the plaintiff emphasised, the evidence shows that Mr Schmidt has committed a sexual offence of great gravity. He has also committed very many offences of violence, including an extremely disturbing one, over many years. He has received no effective treatment whatsoever. He has a long-standing problem with alcohol and prohibited drugs. On the basis of what he has told Dr Adams, he is either severely mentally ill, and has been hiding it for many years from countless medical professionals; the alternative hypothesis is that he is someone who is prepared to lie if he believes that it would be advantageous to do so. In all the circumstances, the position of the State is that there can be no question of the defendant simply leaving prison on Wednesday morning and returning to the community without supervision or support. Indeed, the submission was that the evidence shows that the defendant should be detained by way of a CDO.
On the other hand, as counsel for the defendant emphasised, the application is founded upon a serious sexual offence having been committed by the defendant. The well-known statutory test (to which I shall turn in more detail in a moment) is founded upon satisfaction that there is an unacceptable risk of the defendant committing a further serious sex offence: see s 5B(2) of the Act. And yet the defendant has not demonstrated a chronic tendency repeatedly to commit sexual offences. To the contrary, he has been convicted of only one; it occurred almost 20 years ago; and, between 1997 and 2003, the defendant was living in the community unsupervised, and he did not commit another sexual offence during that period.
Preliminary statutory matters
The parties were agreed that all statutory preconditions for the making of the orders sought had been made out, save for the central one contained in s 5D(2) of the Act. In those circumstances, I shall not tarry to analyse those undisputed matters.
Unacceptable risk of commission of serious sex offence?
The primary position of counsel for the defendant was that the State has not established that the defendant is a "high risk sex offender" as defined in section 5B(2) of the Act. In other words, it was said that I would not be satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision, pursuant to an order of mine. I do not accept that proposition of counsel for the defendant, for the following reasons.
First, the defendant has committed an extremely serious sexual offence that was attended with physical violence, above and beyond its inherent violence. When ultimately confronted with powerful evidence of his guilt, he maintained a denial that bordered on irrational, a denial that he has now come to accept was false.
Secondly, some years after the commission of that offence, he committed a very serious offence of violence, which could easily have been fatal, against an entirely separate female victim.
Thirdly, he has been violent to many other persons over the course of his life in Australia. The vast majority of them have been women. I accept the submission of the State that offences of violence without a sexual flavour committed against others, especially women, have a role to play in the assessment of the risk of the defendant committing an offence of sexual violence in the future.
Fourthly, the defendant has received no effective treatment whatsoever whilst in custody with regard to his sexual offending and his chronic tendency to commit offences of violence.
Fifthly, the defendant is burdened by unresolved issues with alcohol and prohibited drugs. In the past, his consumption of those substances has been criminogenic.
Sixthly, the defendant has served over 12 years of continuous custody. He has little or no social and emotional support of which I am aware in the community. It is very difficult to be confident that he will be able to readjust to community life without supervision and assistance in those circumstances.
Seventhly, the defendant undoubtedly suffers from psychological and psychiatric problems, including depression, that have led to his admission to psychiatric hospitals as an inpatient more than once in the past.
Eighthly, if he was telling the truth to Dr Adams about his long-standing symptoms, he is in truth suffering from a chronic mental illness with psychotic features. If he was not telling the truth to Dr Adams about those symptoms, he is a person who is prepared to attempt to manipulate a forensic psychiatrist, even when his liberty is at stake. On either analysis, the report of the phenomena that he told Dr Adams he had been and is experiencing is a matter of serious concern.
Ninthly, entirely as one would expect in light of the evidence that I have recounted, two experienced psychiatrists and two experienced psychologists have expressed grave concerns about the risk of the defendant reoffending in the way under consideration.
Tenthly, I do not propose to work through the factors that are mandated for my consideration in s 9(3) of the Act. I believe that I have referred to all those that are relevant in this judgment, albeit some of them only briefly. In particular, underpinning my analysis is regard for the very first factor to be considered pursuant to that section: the safety of the community.
In all of the circumstances, I am well satisfied that the central statutory test has been established.
ESO inadequate?
As I have said, the submission of the State was that a CDO should be imposed, not an ESO. That submission was founded on the submission, made pursuant to s 5D of the Act, that I would be satisfied that an ESO will not provide adequate supervision of the defendant. I do not accept that proposition, for the following reasons.
First, it is true that the defendant has committed an extremely serious sexual offence. But apart from that, he has never been convicted of another sexual offence in his entire life. In contrast to many other sexual offenders, he has not demonstrated a chronic, seemingly compulsive proclivity to commit sexual offences.
Secondly, he was living in the community without supervision between the commission of that sexual offence in 1997 and his entry into custody in 2003. It is true that during that period he was incapable of complying with the requirements of the criminal justice system, in that he repeatedly breached apprehended violence orders. Still and all, during that period, he did not commit a sexual offence of which he has been convicted.
Thirdly, both Dr Adams and Dr O'Dea remain to be convinced that there is sound evidence that intensive custody-based therapeutic programs with regard to violent offenders are any more effective (in terms of actually reducing reoffending) then less intensive programs conducted in the community. Ms Matsuo is rather more optimistic about such programs in custody. In weighing up that evidence, I think that at the least I should be cautious about accepting the proposition that an ESO would be inadequate because only in custody could the defendant be properly treated. Neither of the two eminent forensic psychiatrists who gave evidence before me were persuaded of that proposition.
Fourthly, it is true that in the past the defendant has been somewhat recalcitrant and obdurate about his readiness to comply with conditional liberty after the expiry of the entirety of his head sentence. But I think that that initial reaction is to be expected of prisoners who are ignorant of the existence and operation of the Act. And now the defendant has conveyed through his counsel his readiness to live in structured accommodation; to receive therapy in the community; to consider anti-libidinal medication if a psychiatrist recommends it; and generally to comply with all of the conditions that the State submits should be attached to an ESO.
Fifthly, as a matter of commonsense, even the strictest of ESOs cannot guarantee that an offender will not reoffend. Nevertheless, the conditions proposed are extremely rigorous, and one can infer that the starting point of the conditional liberty of the defendant is that he will be supervised and supported very closely indeed.
Sixthly, it is true that Dr Adams expressed the opinion that the first step is to clarify the true mental state of the defendant, and expressed a preference for that occurring in a controlled setting. But neither psychiatrist expressed the view that, if it be the case that the defendant is floridly ill, that condition cannot be managed in the community. And one knows that countless people with chronic and severe mental illnesses are able to be managed in that way without being detained.
For the foregoing reasons, the State has not satisfied me that an ESO will not provide adequate supervision of the defendant. As a result, the statute calls upon me to impose an ESO, as opposed to a CDO, subject to my exercise of discretion not to do so.
In that regard, for the reasons that I provided above as to why I consider the central test has been made out, this is not a case in which there is any occasion to exercise my discretion to decline to make an ESO, pursuant to s 5C of the Act.
Conditions
As I have said, the conditions proposed are extremely rigorous. There was no dispute at the hearing as to the suitability of any one of them on the part of counsel for the defendant. There was also, as I have said, an expression of readiness to comply with them, delivered by the defendant through his counsel. I am satisfied that it is appropriate to impose all of the conditions sought by the State.
Length of ESO
As for the length of any ESO, the position of the State was that it should extend for five years. Counsel for the defendant submitted that it should be for three years.
As I said at the hearing, such disputes are rather arid, in light of the fact that each party has a statutory right to apply at a later stage to shorten or extend an ESO, pursuant to s 13 of the Act. As well as that, towards the end of an ESO, the State is at liberty to apply for the making of a further one, pursuant to s 10(3) of the Act.
In the decision of Attorney General for the State of New South Wales v Steadman [2013] NSWSC 170 at [75] - [80], I reviewed some authorities with regard to the length of an ESO; I shall not repeat that conspectus here.
In all the circumstances, I consider that an ESO that extends for three years is appropriate.
Law reform?
Finally, I record that this matter was heard before me on 4 February 2016. The IDO that I imposed on that occasion expires at 11.59 PM this evening; that is, 5 days after the hearing. As it happened, I was away from Sydney at a legal conference during the entirety of the intervening weekend. I was also, of course, in court on every sitting day between the date of the hearing and the date upon which this judgment became essential.
The fact is that the State is not permitted by statute to commence proceedings of this nature at any time prior to six months before the expiration of the head sentence of a defendant, pursuant to s 6(2) of the Act. It is also undoubtedly the case that, once preliminary orders have been made, there are inevitable logistical delays in psychiatrists or psychologists being able to see a prisoner, and thereafter prepare their reports for tender at a final hearing.
Nevertheless, these applications involve the receipt by a judge of this Court of an enormous amount of documentary evidence. And because their subject matter is the curtailment or complete deprivation of the liberty of a citizen without conviction, such applications require an opportunity for considered reflection.
For those reasons, I respectfully suggest that reform of the Act should be considered by Parliament, so that judges of this Court are not forced to determine final orders with only days to spare before any interim order expires absolutely.
Orders
I make the following orders:
1. The defendant is subject to an extended supervision order, pursuant to s 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), for a period of 3 years to date from 9 February 2016 and expire on 8 February 2019.
2. During the period of the extended supervision order specified in order 1, pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant must comply with the conditions set out in the Schedule to the Summons (33.1 KB, pdf) filed by the plaintiff on 15 October 2015.
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Decision last updated: 15 February 2016