State of New South Wales v Scott

Judgment 1This is the preliminary of hearing of proceedings which seek an order under s 9 of the Crimes (High Risk Offenders) Act 2006. The Plaintiff seeks an interim detention order under s 18A and s 18C, alternatively, an interim supervision order under s 10A and s 10C with the conditions set out in schedule 8 to the summons. 2The Plaintiff also seeks an order pursuant to s 7(4) of the Act for the appointment of two qualified psychiatrists to conduct psychiatric examinations of the Defendant and an order directing the Defendant to attend those examinations. 3The Defendant opposes the orders that are sought today. Although he has no instructions to do so Mr Scragg, who appeared for the Defendant, anticipates that it may at least be necessary to make an interim supervision order. His principal position is, however, that on a final hearing the high standard of proof will not be made out. 4On 20 April 2007 the Defendant was sentenced in respect of a serious sex offence, namely having sexual intercourse without consent, and at the time of the offence did maliciously inflict actual bodily harm on the victim. An offence of indecent assault was taken into account on a Form 1. The victim of these offences was a stranger, a female university student whom the Defendant approached in the street. The offences were committed on 27 May 2006. 5He was sentenced by Judge Norrish in the District Court to an overall sentence of seven and a half years with a non-parole period of three years nine months commencing 30 June 2006. He has served the whole of his sentence and is due to be released on 29 December 2013. One reason for his serving the whole sentence is that for one reason or another he has not undertaken any courses for sex offenders whilst incarcerated. 6The Defendant's conviction for these offences means that he is a sex offender within the meaning of s 4 of the Act. Since the Defendant remains in custody at the present time he is a supervised sex offender (s 5I), that enables the State to make the present application (s 5 H). 7Section 7(4) of the Act provides that if following the preliminary hearing the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended detention order or extended supervision order, the Court must make orders for examination of the Defendant by, inter alia, two qualified psychiatrists. 8In addition, under those sections if the Defendant's current custody will conclude before these proceedings are determined, the Court may make an interim detention order or an interim supervision order for a period not exceeding 28 days. 9The task of the Court at the preliminary hearing stage is not to predict the ultimate result. Rather the test is one similar to the prima facie test applied by magistrates in committal proceedings: Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119; Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 993 and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]. 10In the State of New South Wales v Brooks [2008] NSWSC 150 Fullerton J discussed the requirements when an interim order is sought and drew attention to the fact because two of the objects of the Act are to ensure the safety and protection of the community and to facilitate the rehabilitation of serious sex offenders, it is appropriate to give weight to risk avoidance: see also Attorney General for New South Wales v Winters (2007) NSWSC 611 at [7]. 11The test that must be satisfied was formally found in s 9(2) of the Act but is now to be found within the definition of a high risk offender in s 5B(2). Nevertheless the wording is identical and the learning which had developed in relation to s 9(2) is equally applicable under the amended form of the Act. 12Section 5B provides that if, and only if, the offender is a high-risk sex offender can an extended detention order or extended supervision order be made. Section 5B(2) of the Act provides an offender is a high-risk sex offender if the offender is a sex offender and 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 or she is not kept under supervision. 13Section 5D provides the Supreme Court may on an application under this Act make an order for the detention of an offender if the offender is a high-risk sex offender and the Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order. 14In Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 176 A Crim R 110 Wheeler JA (with whom Le Miere AJA agreed) said at [63]: In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention. 15In Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008)198 A Crim R 149 Steytler P and Buss JA said at [27]: The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk - A return to basics (2006) 20 AJFL 249, 252), the advantage of the phrase 'unacceptable risk' is that 'it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case ... '. 16In State of New South Wales v Richardson (No. 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 I said at [90]: Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. That is also because s 17(3) provides for the further assessment that if the court is satisfied to a high degree of probability that the offender poses an unacceptable risk a supervision order will not be adequate to meet the risk. 17What was contained in s 17(3) is now to be found in s 5D. 18The Defendant was born on 23 August 1983 and is now aged thirty-one years. He has a criminal record extending back to 1997 when he was aged fourteen. The offences are a mixture of property and drug related offences but there are also a number of offences involving violence. A number of charges were dealt with by way of dismissal under the Mental Health Act 2007. The material currently available shows that the Defendant suffers, and has suffered, from chronic schizophrenia and a severe intellectual disability. 19There is a comprehensive risk assessment report dated 8 November 2013 from Megan Donaldson, a forensic psychologist. Ms Donaldson gave evidence on the application. She was an impressive witness who was on top of her material and upon whom I feel I could completely rely. The executive summary of her report relevantly says this: Mr Scott has an extensive history on (sic) non-sexual criminality and consistent failure to respond to community based supervision. Mr Scott suffers with Chronic Schizophrenia, predominantly negative symptoms; and an intellectual disability. These are responsivity factors or factors they may interfere with progress in regard to participation in treatment programs. ...Mr Scott has limited insight into his mental illness and intellectual disability needs. He has been appointed a Guardian as an alternative decision maker for Accommodation, Advocacy, Legal Services and Services. Mr Scott has recently demonstrated improved compliance with medication. Mr Scott has not completed any treatment specific to sexual offending. Mr Scott does not have realistic release plans. A referral has been made to ADHC for services and support. Based on actuarial assessment Mr Scott is considered a high risk of sexual re-offending relative to other men who have sexually offended. The mitigation of future risk would be temporarily enhanced by intensive community supervision and support. 20The reference to the appointment of a guardian is a reference to a determination by the Guardianship Tribunal to the effect set out in that executive summary on 28 June 2013. 21Ms Donaldson carried out a series of tests and assessments on the Defendant. Two of those which concern the likelihood of sexual re-offending are the STATIC - 99R instrument and the Risk for Sexual Violence Protocol (RSVP). The Defendant's total score on the STATIC - 99R was 6 which places him in the high-risk category relevant to other male offenders. The recidivism rate for those who score 6 is around 3.77 times higher than the recidivism rate expected for typical sex offenders, those scoring a 2 on the instrument. Around 92.4% of sexual offenders in the routine sample scored below the Defendant's score. 22The STATIC - 99R instrument has limitations which Ms Donaldson acknowledges. 23The RSVP was developed to assist in the identification and management of a comprehensive range of factors identified by the literature as related to sexual offending. It includes a total of two, both static and dynamic factors grouped into five domains; sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. These factors are not mutually exclusive. 24It is not necessary to detail all of the subcategories of the five domains and how the Defendant fits into those categories and meets the criteria. It is sufficient to note that Ms Donaldson concludes that the Defendant presents with risk factors in all five of the domains covered by the RSVP. That, she said in her oral evidence, tends to support the assessment made on the basis of the STATIC 99R protocol. 25The Defendant drew attention to an earlier assessment of the Defendant made on the STATIC - 99 protocol where he scored 5 which placed him in the moderate to high-risk range. The difference, Ms Donaldson explained, was that under the STATIC - 99R a revised version of the protocol, age is a more nuanced assessment. The general principle seems to be that risk of re-offending declines with age. At 31 the Defendant scores a 1 for his age with the result that he is placed in the high risk for offending. 26Ms Donaldson says in paragraph 89 of her report having considered what she determined from both of the protocols: Were Mr Scott to re-offend it could be relatively opportunistic evolving from an incidental encounter with a potential stranger victim or someone he knows. The victim would most likely be an adult female on her own; and may or may not occur in a private or public space during the day or night. His history of offending suggests he is at highest risk for sexual touching that may or may not escalate to penetration. The potential for escalation to more invasive penetrative sexual acts could not be discounted, should the offence be uninterrupted by external influence or the victim's resistance. He is likely to use physical violence, may threaten to harm or kill them if they raise alarm (e.g., scream) or resist; and, he may or may not equip himself with an improvised weapon. Mr Scott would likely be substance affected or not maintaining his medication at the time of offending. The offence would most likely be an isolated incident and he is likely to be easily identified and apprehended shortly after. 27Other matters of significance in the report are these. First, apart from schizophrenia he has been diagnosed with schizoaffective disorder, substance abuse, mild mental retardation and personality disorder in regard to his level of anger on interpersonal conflicts. He may also have mild organic brain damage from previous use of petrol sniffing. His full scale IQ was in the extremely low range of intellectual functioning. 28Secondly, the Defendant has limited insight into his mental health issues. In this regard it is worth quoting paragraph 30 of Ms Donaldon's report: The results of Mr Scott's assessment of intellectual functioning suggests Mr Scott has difficulty comprehending information presented to him orally, thinking using words, and expressing his own thoughts and mental processes using words. He is likely to function on a concrete level and would struggle with abstract concepts such as navigating social and other relationships, and compliance with societal norms. 29Thirdly the Defendant has incurred 29 institutional misconducts since he was incarcerated in 2007. Eleven of these involve violence. 30Fourthly, and not unrelated to the previous matter for present purposes, the Defendant has a poor history of cooperation with supervision. The index offence, it may be noted, was committed whilst he was serving the balance of parole for an earlier offence. I accept, however, that most breaches of conditional liberty occurred whilst the Defendant was a juvenile. 31Fifthly, as was mentioned earlier, the Defendant has not undertaken any course in gaol relating to his sexual offending. Indeed there is evidence on at least one occasion on 10 May, 2011 where he declined to participate in the CUBIT course because he said: I have too many gaol charges and I can do the rest of my time because I will be getting released from custody and too many other gaol issues, like gaol charges and that." 32I note however that a month later on 19 June 2011 he said: I would like to meet with probation and parole officer to let them know I may do that course to try and get put back on probation and parole and to talk to him or her and I will for sure do the course. 33It appears that shortly after that time mental health issues intervened and orders were made under the Mental Health Act 2007 which may have prevented that from happening. Mr Scragg submitted that the main reason the Defendant has not undertake the courses is that there were none he was eligible for because of his intellectual disability. Ms Donaldson confirmed in her oral evidence that that was so. She noted in that regard - the second sentence at paragraph 94 of her report should read: There are currently no readiness programs available for sexual offenders with an intellectual disability in custody. 34I can accept that it is unfair to the Defendant that his inability to undertake appropriate courses whilst incarcerated should weigh against him on an application such as the present, but it is a factor which I must take into account bearing in mind the objects of the Act, the primary one being the safety and protection of the community, and noting that risk avoidance is a significant consideration on an interim application. 35I have been provided also with a risk management report prepared by Community Corrections Officer, Ms Smith, and overseen by the manager of the extended supervision order team, Mr Ziggy Abedine. Both of those persons gave evidence before me. 36I have read the risk management report. The evidence that each of them gave added little to what was contained in that report. A significant matter in that report is the heading on page 5 "Accommodation". That section relevantly says this: To effectively manage Mr Scott's overall risk in the community it is essential that a provision be included in the risk management plan so that the offender can only reside at accommodation approved by his nominated departmental supervising officer. The offender has been appointed a guardian for a limited term as an alternative decision maker for accommodation, advocacy, legal services and services. A referral has been made for Mr Scott to receive support for ADHC and possibly reside in Community Justice Program (CJP) supported accommodation, however, the outcome of that referral is unknown at the time of writing this report. 37I interpolate here that the outcome is still unknown and will not be determined until 5 February 2014. The report goes on to say this: Should Mr Scott be made subject to an ESO, and his referral to CJP is unsuccessful, this Service would refer him to Nunyara, [a community offender support program known as COSP at Malabar]. This COSP centre is operated by Corrective Services NSW to provide transitional accommodation for offenders, generally for a period of up to approximately six months. 38Regrettably the Defendant has been ruled unsuitable to reside at the COSP facility at Nunyara. It is unfortunate that the application to the CJP will not be considered until 5 February. I was informed that the principal reason for that delay was because of initial reluctance on the part of the Defendant to agree to the process through ADHC with regard to accommodation. That, in turn, led to the application to the Guardianship Tribunal for the appointment of a guardian at least in respect of accommodation. That took time with the result that the procedures under ADHC were not initiated until September and that delayed the application to the CJP. 39What is clear from all of that is that there is no suitable accommodation available to the Defendant at the present time. The matter was adjourned yesterday overnight to enable further inquiries to be made because of the concern I expressed about the accommodation for the Defendant in the face of the unsuitability for COSP and the later determination by the CJP. 40I have been provided with an email forwarded from the NSW Trustee and Guardian that says this: The Public Guardian's view is that a comprehensive support plan needs to be in place prior to Mr Scott's release from the facility to ensure that his release is a success and that he is not a significant risk to himself and others when released. In these circumstances the Public Guardian would normally expect that a person has a comprehensive needs assessment and that services are then in place which adequately address these needs prior to returning to the community. 41The email also noted that the manager of Statewide Disability Services advised the Public Guardian that the Defendant has been deemed eligible to receive ADHC services. Nevertheless the determination of the CJP will not take place until February. 42The Defendant submits that at a final hearing the high onus of proof will not be discharged for the making of any order against the Defendant. The test of the present application is whether, if the evidence I have is proved, that evidence would justify the making of either type of order. 43To make an extended detention order on a final basis involves an additional consideration set out in s 5D to which I have already referred. It involves in any event the balancing exercise that I referred to in Richardson (No 2) at [90]. 44I cannot and I do not disregard the rehabilitation of the Defendant in that regard. Some of the evidence suggests that his rehabilitation can be achieved within the community. It may be that if he obtained suitable accommodation that rehabilitation can be implemented so that at a final hearing a continuing detention order would not need to be made. 45There is nothing in the evidence I have, however, that suggests that no order of any sort would be made at a final hearing. The evidence I have if proved would justify the making of an extended supervision order. Such a finding by me enables an interim order of either kind to be made, Attorney General v Tillman at [98]. 46Bearing in mind the factors that I have identified above - the mental illness, the intellectual difficulties, the poor insight and the fact that the Defendant has not done any courses towards rehabilitation in custody, coupled with the present lack of satisfactory living accommodation, I cannot be satisfied that an interim supervision order will provide sufficient protection to the public given what are said to be his risks of re-offending. 47In those circumstances the orders that I will make are these: (1) Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 the Court appoints two qualified psychiatrists being Dr Allnutt and Dr O'Day to conduct separate psychiatric examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by 31 January 2014. (2)The Defendant is directed to attend those examinations. (3)Pursuant to s 18A of the Act the Defendant is subject to an interim detention order from 29 December 2013 for a period of 28 days. (4)Pursuant to s 20 ss 1 of the Act a warrant is issued for the committal of the Defendant to a correctional centre for the duration of the interim order referred to. (5)The proceedings are listened before the duty judge on 23 January 2014 to hear the State's application to extend the interim detention order and warrant referred to in orders 3 and 4 above. (6)I make an order pursuant to s 77 for the attendance of the Defendant, Mr Scott, at the Supreme Court to the hearing referred to in the orders 4 and 5 above. (7)The Plaintiff is directed to file and serve any further evidence by 18 February 2014. (8)The Plaintiff is to file and serve written submissions five days prior to the final hearing that is appointed. (9)The Defendant is to file and serve written submissions one day prior to the final hearing. (10)Liberty to apply to either party on one day's notice (11)Leave to approach the listing manager for a final hearing on the basis that the matter will take two to three days, and noting by the nature of the proceedings that there is some urgency and expedition required in that regard.