State of New South Wales v Wilde [2008] NSWSC 1148 | Case summary

JUDGMENT 1 HIS HONOUR: The plaintiff seeks orders pursuant to the Crimes (Serious Sex Offenders) Act 2006 ("the Act") in relation to Mr Wilde. Mr Wilde is presently in custody pursuant to a continuing detention order made under the Act by Price J on 24 January 2008. The order which his Honour made was for a period of eight months, expiring 23 September 2008. 2 The summons seeks orders pursuant to s 15(4) of the Act, or in the alternative, pursuant to s 7(4), which provide for the appointment of relevant medical practitioners. The plaintiff seeks the appointment of two qualified psychiatrists. 3 By way of ultimate relief, the plaintiff seeks an order pursuant to s 17(1)(b) of the Act that Mr Wilde be detained in a correctional centre for seven months from the date of the order, but in the alternative, seeks orders for extended supervision for a period of five years. 4 By reason of the making of the application, the jurisdiction provided in the Court pursuant to s 16(1) has been initiated. Section 16(1) provides a power in the Court to make an order for the interim detention of an offender. 5 By initiating proceedings for a continuing detention order, the Court is provided with power to make an interim detention order if two matters are satisfied: firstly, s 16(1)(a) provides that it must be apparent that the offender's current custody would expire before the proceedings, being the proceedings for final relief, can be determined; secondly, the Court must be satisfied that the matters alleged in the supporting documentation justify the making of a continuing detention order or extended supervision order. Section 16(1)(b) Mr Wilde through his counsel concedes that the evidence before me would if proved justify the making of an extended supervision order. It is also apparent that Mr Wilde's present custody will expire before the proceedings for final relief can be determined. In that event, it is conceded that I have power to make an order for interim detention of Mr Wilde. 6 That power has been considered by a number of judges and by the Court of Appeal. I considered the position in Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340. It was considered by the Court of Appeal in Attorney General for New South Wales v Tillman [2007] NSWCA 119. 7 In Tillman, it was said that the approach which the trial judge had taken to the exercise of the discretion in s 16 was erroneous. The court said at [44]-[46]: "There is a strong presumption against construing a statute so that it trenches upon a fundamental right such as the liberty of the subject. However, that presumption is weakened in the present context and would not prevail over the clear and explicit language of the statute with its clearly stated protective and rehabilitating objects. Thus s 16 applies where the offender is already in custody and where the claim for final relief is for a continuing detention order. In the instant case, the 'supporting documentation' demonstrated that, if proved, the making of a continuing detention order would be justified. Moreover s 16(2) and (3) sets the outer limits for the period of any interim detention order and any renewals, namely twenty-eight days maximum for any individual order and no more than three months in total with any renewed orders. The statutory objects in this extraordinary legislation are directed at 'ensuring' the safety and protection of the community and 'facilitating' rehabilitation of serious sex offenders. They also weigh against any strong presumption in favour of liberty prevailing, at least at the interim stage. A final hearing can be brought on with expedition. We see no basis for discounting unchallenged evidence in a particular case that points strongly in the direction of risk-avoidance at the interim stage. However, we do not suggest that there is a general presumption in favour of maintaining the custodial status quo when interim relief is in question." 8 The Court then went on to consider the facts of that particular case, and made plain that the conduct of the matter by the plaintiff, in particular, a delay in making an application to the Court, was not a significant reason for declining to make an interim detention order. 9 The Court said if the protection of the public called for one or both types of interim order, then the Attorney General's delay, even if unjustifiable, was not a factor that should have carried any weight in the exercise of the discretion. 10 At [99] the Court said: "Since s 16(1)(b) is satisfied if either category of final order would be justified if the matters alleged in the documentation are proved, the Court is not required, at the stage of considering whether the discretionary power to make an interim detention order is engaged, to assess which category of final order is likely to be made at the end of the day. Because the word 'may' in the closing portion of s 16(1) imports a true discretion, it is open for the Court to refuse to make an interim detention order even if conditions (a) and (b) are satisfied. But it would not be a proper exercise of that discretion, in our opinion, for the Court to make an interim supervision order instead of interim detention order simply because the probabilities suggested that an extended supervision order was the more likely (final) candidate. That would involve reading words into the subsection that are not there. If (unlike the present case) there was only a claim for a continuing detention order, then the only options available to the Court under s16(1) would be to make an interim detention order or to dismiss the claim for interim relief." 11 The history of Mr Wilde's offending includes three convictions for sexual assault matters together with a number of other convictions of a lesser order of seriousness. 12 His record also reveals that he has, on a previous occasion, breached recognisance orders. He was convicted of rape in 1981 and sentenced for that offence. In 1982 the record indicates a conviction for a breach of recognisance and in July of that year, a conviction for escaping from lawful custody. He was convicted of indecent assault and threatening actual bodily harm with intent to have sexual intercourse in March 1985. In June 1993 he was convicted of an aggravated sexual assault and other related offences. It is unnecessary for me to detail the facts of each of those offences beyond indicating that they were serious and involved not only an assault upon the victim but seriously degrading acts. 13 Mr Wilde acknowledges his guilt in relation to the first sexual assault matter but denies his guilt in relation to the latter two. In relation to the offence for which he was convicted in June 1993 his total sentence expired on 5 November 2007, although provision was made in his sentence, if appropriate, for him to be released at an earlier date on parole. He did not obtain parole and as a consequence of the potential expiry of his sentence, application was made to this Court for a continuing detention order. That was the application which was considered by Price J and to which I have previously referred. 14 The fact that Mr Wilde does not concede or admit his guilt in relation to the latter two offences has been the cause of some difficulty. He has also given evidence before me of his inability to respond in a non-aggressive fashion to people known to be paedophiles. The source of that difficulty is apparently the death of his child at the hands of such a person. Because of his inability to respond in an appropriate manner to such persons, Mr Wilde has not been able to complete the conventional treatment program within the prison system. That problem was confronted in the proceedings before Price J and arrangements were made for a special treatment program to be implemented which would ensure that he would not confront paedophiles in the course of group therapy. The evidence before me indicates that that special program has not been completed by reason of the fact that Mr Wilde continues to deny the latter two offences. 15 The evidence upon which the plaintiff relies comes essentially from three witnesses. Mr Craig Baird has provided a psychological risk assessment. His present position may be appropriately described as equivocal. He says in his report: "I am unsure what to recommend in order to continue to address Mr Wilde's dynamic risk factor deficits should he remain in custody. I am however currently of the opinion that the lack of opportunities for normal social and interpersonal contact in the present custodial environment will greatly limit the rate of development in the areas in which Mr Wilde needs development to better manage his risk of re-offending sexually and violently." 16 Mr Baird also gave oral evidence. As I understand his position he believes that it is unlikely that further benefit will be gained from continuing treatment if Mr Wilde continues to be incarcerated and that his rehabilitation will only be progressed by him being able, in a controlled way, to re-enter the community. 17 Mr Baird's report was agreed to by Mr Ware, who at the time was the Statewide Clinical Coordinator for Sex Offender Programs. His role has since changed a little and he is now the Acting Director, Sex and Violent Offenders. He also provided a written report. In that report he concludes that Mr Wilde is assessed as being a high risk category for sexual offending relative to other adult male sexual offenders: "He has been assessed as high risk on the Static 99 [An accepted method of assessing risk of re-offending amongst sexual offenders] and moderate high risk on the SVR-20 Risk Assessment Instruments." 18 Again I interpolate another accepted method of assessment: "Mr Wilde was also assessed by the PCL-R as having a high level of psychopathic personality traits. Further, in considering a number of dynamic risk factors that are predicted of sexual recidivism, it was clear that these are likely to be present for Mr Wilde, although it is unclear as to what extent of severity. I note this conclusion is consistent with all other psychiatric and psychological reports." 19 Mr Ware continues: "Mr Wilde's sex offences committed to date were similar. It is therefore, reasonable to assume that if he were to commit a further sexual offence it would follow a similar pattern. This sort of offence is, as I understand it, serious sexual offences defined by the Crimes (Serious Sex Offenders) Act 2006. I further note that if Mr Wilde is to commit a further sexual offence that it is reasonable to assume that the degree of physical and psychological harm incurred would be high and that a weapon and or force would be used. Further, it is also in my view reasonable to assume that should he re-offend, then it will occur quickly upon release as is happened previously whilst under supervision conditions." 20 Mr Ware expresses the view that further treatment is necessary in order to reduce Mr Wilde's risk of sexual recidivism. He believes treatment should be of higher intensity and within a custodial context. Furthermore, he expresses a concern that it will be necessary to take steps to manage Mr Wilde's risks towards police officers, paedophiles, female parole offences and psychologists. 21 Mr Ware's opinion is shared by Ms Booby who is the Acting Executive Director, Offender Services and Programs. The effect of the evidence of Mr Ware and Ms Booby is that in their opinion further treatment within the prison system is necessary before Mr Wilde could be released under supervision with an appropriate level of assurance for the safety of the community. 22 When Price J considered the position earlier this year he was assisted by evidence from three psychiatrists: Doctors Allnut, O'Dea and Nielsen. In general, their evidence does not give the same conservative picture of Mr Wilde's prospect of successful re-entry into the community. However, Dr O'Dea did say: "Although Mr Wilde's risk of engaging in further sex offending behaviours would be considered significantly high, I do not consider that the current evidence regarding his assessment of risk is sufficiently advanced to predict with sufficient accuracy Mr Wilde's precise likelihood of engaging in further sex offending behaviours on release into the community." 23 Later he said this: "Whilst his denial of sexual offences is of note, it may not in and of itself predict further sex offending behaviours and would not necessarily preclude Mr Wilde from engaging in and benefitting from a comprehensive risk management program. That being said, Mr Wilde's state of refusal to participate in a community based treatment management program may limit the impact of such a program, at least in the first instance. However, further extended periods in custody to complete specific psychological programs are unlikely to significantly reduce Mr Wilde's risk of sexual re-offending in the long-term." 24 Dr Nielsen concluded: "After reviewing Mr Wilde's history of offending and the recent observations by experienced psychologists, it is clear that Mr Wilde will need considerable assistance in adjusting to life in the community and there are good grounds to continue supervision of Mr Wilde for several years after his eventual release. However, the only scientific grounds for recommending counselling would be to assist in his adjustment to life in the community and as part of a monitoring program. That would also be very much in Mr Wilde's interests." 25 Dr Nielsen expressed this conclusion: "From a review of the material it did not appear to the doctor that Mr Wilde's sexual behaviours is due to a treatable psychiatric disorder and there is no scientific basis for the opinion, he says that his long-term risk of offending will be reduced by any form of counselling." 26 Dr Allnut, in his comprehensive report, ultimately expressed the conclusion that it was a matter for the Court as to whether Mr Wilde, at least in November 2007, should be subject to an extended supervision order for a continuing detention. Dr Allnut noted that Mr Wilde has a: "[H]istory of poor adherence to legal as well as correctional supervision orders, sexually offending in the context of supervision orders." 27 Price J considered all of that material and determined that a continuing detention order should be made with the expectation that a treatment program specific to Mr Wilde should be provided for him. As I understand the position that program has been made available, but the evidence of Mr Ware and Ms Booby is that, for the reason I have previously indicated, further treatment is necessary before they would be satisfied that it was appropriate to release Mr Wilde under supervision. 28 Section 16 of the Act is engaged when an application has been made for an interim detention order. Section 15 relates to applications for continuing detention orders. Subs (4) contemplates a preliminary hearing following which, if the matters alleged in supporting documentation are proved, the Court must make orders appointing qualified persons to conduct examinations and furnish the reports to the Court. The scheme of the legislation is apparent. The Parliament contemplates that the Court will be assisted in its ultimate decision as to whether or not orders should be made as requested by the State by obtaining evidence from persons who the Court has appointed to assist it in resolving the matter. The plaintiff asks the Court to appoint Doctors Allnut and O'Dea to fulfill that task in the present case. 29 Mr Wilde has given evidence before me; in giving that evidence he has indicated a disposition to comply with the terms of any supervision order. He has indicated a preparedness to accept further treatment if it is determined that it be necessary. However he has also made plain to me that he maintains serious difficulties in dealing with paedophiles which may be a significant issue, a resolution of which is not immediately apparent. I draw attention to that matter only because it seems to me from the evidence presently available that I could not be satisfied that it is appropriate, even on an interim basis, to provide for Mr Wilde's supervised release. That may be the appropriate position but the uncertainties in the evidence, the conflicts between the evidence of Mr Ware and Ms Booby and Mr Baird and the difficulties expressed in the psychiatric reports, persuade me that I should, in the exercise of the discretion available to me, provide for the continuing interim detention of Mr Wilde. I do so mindful, as I have said, of the fact that when the contemplated reports have been obtained, the up-to-date position in relation to Mr Wilde's psychiatric situation will be available. It will also be possible to have the psychiatrists speak to their reports and an opportunity provided for Mr Baird and Mr Ware and Ms Booby to join in a discussion with the psychiatrists in an endeavour to resolve the disagreements between them and identify whether there is common ground or whether the Court otherwise could confidently conclude that it would be appropriate to provide for Mr Wilde's release under supervision. 30 It is necessary of course, as the Court of Appeal stressed, that when exercising the discretion, to be mindful of the objects of the Act. Those objects were amended in December 2007. The amendment has the effect of making the primary object of the Act to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. 31 A subsidiary object is to encourage serious sex offenders to undertake rehabilitation. The emphasis on safety and protection of the community which the amended objects provides was not the situation when the Court of Appeal considered the matter of Tillman. 32 For those reasons I am persuaded that I should make the interim detention order.

State of New South Wales v Wilde

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