The State of New South Wales moves the Court for an interim detention order in respect of the defendant, Mr Strong, under s18A of the Crimes (High Risk Offenders) Act 2006 (NSW). The proceedings were commenced by summons dated 14 March 2006. The State seeks by way of principal relief the making either of a continuing detention order under the provisions of s 5D of the Act or, in the alternative, an extended supervision order under the provisions of s 5C.
At the preliminary hearing before Hall J on 4 April 2016 orders were made under s 15 of the Act for the appointment of two qualified psychiatrists to examine Mr Strong and provide expert evidence at the final hearing of the proceedings. I am informed by counsel - as appears from the evidence read before me - that the psychiatrists have examined Mr Strong but that the reports are not yet available.
Mr Strong is serving a term of imprisonment in respect of a serious sex offence. His term of imprisonment expires on 15 May 2016. It is not disputed before me that he meets the definition of a High Risk Sex Offender within s 5B of the Act. Indeed, so much is conceded on his behalf. Having considered for myself in a provisional way the material exhibited with the affidavit of Paul Nash, solicitor, affirmed on 14 March 2016, I am satisfied that that concession, made only for the purpose of today's proceedings, is properly made.
It is therefore unnecessary for me to detail Mr Strong's criminal history. Suffice it to say that he has been convicted of about seven sex offences, many of them of a very serious type and he has spent the greater part of his adult life in prison. He is now nearly fifty-seven years of age.
The court's power to make an interim detention order is conferred by s 18A in the following terms:
"The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a Continuing Detention Order, it appears to the court:
(a) that the offender's current custody...will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would if proved, justify the making of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order."
At the preliminary hearing before Hall J dates for the final hearing were fixed for 14 and 16 June 2016. It is apparent that the conditions stated in paragraph (a) of s 18A are satisfied, that is, that Mr Strong's current custody will expire before the proceedings are determined. The focus of the evidence and argument before me has been whether the matters raised in the supporting documentation, if proved, justify the making of an order under either s 5C or 5D.
It seems that paragraph (b) of s 18A deliberately provides alternative tests for the making of an interim detention order setting the bar somewhat lower than that for a continuing order under s 5D. A continuing order under s 5D can only be made "if the offender is a High Risk Sex Offender and the Supreme Court is satisfied that adequate supervision will not be provided by the standard supervision order": see Anderson v State of New South Wales [2016] NSWCA 86; Davie v State of New South Wales [2016] NSWCA 96.
This case may in its circumstances provide an illustration of why the legislature has adopted that approach. Essentially, notwithstanding what appears to be diligent efforts of Corrective Services New South Wales ("CSNSW") and its officers to devise a plan for supervision in the community which would adequately supervise the offender and the unacceptable risk he presents of committing a serious sex offence if unsupervised, three factors remain outstanding. They are as follows:
1. Very importantly, no suitable residence or accommodation has been identified for Mr Strong upon his release;
2. A question about his ability to continue to comply with his medication outside prison; and
3. A question in relation to his ability to manage his finances, which doubtless are very simple, if no order is made by the Civil Administrative Tribunal of New South Wales under the Guardianship legislation to enable those matters to be managed for him.
Given the proper concession that Mr Strong is a High Risk Sex Offender it is obvious that the first alternative provided by s 18A (b) is satisfied, that is, without more, an extended supervision order is justified if the documentation provided is proved at the hearing: s 5C of the Act. This alone is enough to justify an interim detention order. But in deference to the evidence and argument that has been advanced before me today, and so that Mr Strong might better understand why the court is making the order sought, I propose to give some reasons why I am persuaded that the material before me, if proved at a final hearing, would justify a finding that an extended supervision order would not provide adequate supervision of him in the community.
Suitable and stable accommodation is fundamental to adequate supervision in the community. From the affidavit of Mr Devoy sworn on 2 May 2016 I am satisfied that over a long period of time CSNSW has attempted unsuccessfully through its officers to find suitable accommodation for Mr Strong upon his release at the expiration of his sentence. The difficulty in that regard is presented by a number of factors.
The first, it must be said, is his criminal history itself. Accommodating him is against the policy of otherwise suitable organisations. But it is also important to understand that he has been diagnosed as suffering from severe mental illness, although the evidence is not free from doubt about the precise diagnosis. He also suffers from personality disorder and cognitive impairment. There is evidence that these conditions overlap and some doubt about which may be more significant in terms of the risk he presents to the community. These matters limit available suitable accommodation. Release to a private residence on his own would not suitably or adequately supervise the risk. There are difficulties otherwise with private accommodation because, as the material indicates, family members are not confident that they could adequately cope with him given that some of his offending in the past has been directed at relatives. There are limited places available in halfway houses or the like; or even in civilian mental health facilities.
So far as civilian mental health facilities are concerned there is a difference of opinion about whether he is a candidate for admission to one. There are differences whether a community treatment order could be made in his case, although that is the preferred option of Doctor Jones who has examined him whilst he was in custody and whose affidavit was read today. Part of the difficulty, and only part, in relation to a civilian mental health facility is that, to his credit, Mr Strong has been compliant with the requirements of his medication whilst in custody. The medication covers not only treatment appropriate to his mental condition, including anti-psychotic medication, but also regular Depo-Provera injections to suppress his libido. He has, unlike other offenders in respect of whom continuing detention orders have been made, willingly whilst in custody complied with regular injections of that type, at least recently.
The problem identified in the documentation, is that absent a guardianship order that would enable consent to that treatment to be given on his behalf, it would be difficult to continue to ensure his compliance with that necessary treatment whilst he is at liberty because of the mental health issues I have referred to.
The efforts of the Department really have come down to one identified option for accommodation and that is at the Nunyara COSP. But his suitability for accommodation in that facility is yet to be assessed. A number of other applications made on his behalf by the Department to other facilities have been refused for various reasons.
The guardianship order that has been sought extends to the management of his financial affairs. That is a particularly important matter for the management of the risk he presents to the community because part of the explanation for his past serious offending has been his inability to juggle his finances. This has led to periods of homelessness which have led him to offend by increasing feelings of resentment he has at times expressed in relation to women.
The difficulty with accommodation also operates at a more basic level. Given his risk it is inevitable that he will be subject to electronic surveillance including wearing an anklet. Without a fixed place of abode, and a suitable one, that device cannot operate. A purpose of the device is ensuring compliance with curfew conditions and CSNSW needs to be able to monitor his comings and goings from his place of residence to successfully respond to any deviation from the requirements of any supervision order.
Although it was perhaps not necessary to descend into this detail, given my understanding of the meaning of s 18A, were it necessary for me to so find, I am satisfied that the material placed before me today in support of this interim application if proved at a final hearing would justify the making of a Continuing Detention Order in as much as it demonstrates that, currently, he could not be adequately supervised by the conditions of an Extended Supervision Order.
That is not to say, as I have said, that things will not change in the near future. The efforts of the Department continue with regard to finding suitable accommodation. Moreover, an application has been filed with NCAT for a guardianship order and it is expected that an expedited hearing can be allocated by NCAT on 31 May 2016.
It seems to me there is a good prospect, given more time, that the concerns identified can all be addressed before the final hearing of the State's application. For those reasons I am satisfied that an interim detention order should be made in accordance with the provisions of s18A, in compliance with s18C of the Act, and I will make orders in accordance with the Short Minutes of Order, the form of which has been agreed by the parties.
I make the following orders:
1. Pursuant to s 18A and s 18C of the Crimes (High Risk Offender) Act 2006, the defendant be subject to an Interim Detention Order ("IDO") for a period of 28 days to take effect from 15 May 2016 to 12 June 2016.
2. The matter is listed for further hearing before the Registrar at 9:00 a.m. on Friday 10 June 2016 to determine whether an application for further IDO is required.
3. Order the Registrar to issue an order under s 77 of the Crimes (Administration of Sentences) Act 1999 directing the Commissioner of Corrective Services to cause the Defendant to be produced at the Court in person for the final hearing on 14 June 2016 and 15 June 2016, unless the court otherwise.
4. Liberty to apply to the Duty Judge for the release of the reports of the Court appointed psychiatrists to Corrective Services NSW and practitioners treating the defendant.
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Amendments
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Decision last updated: 09 May 2016