State of NSW v Guider

Supreme Court of NSW|2019-08-20|Before: Button J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2019/53538

Introduction

On 4 June 2019, I determined a preliminary application by the State of New South Wales (the plaintiff) against Mr Michael Guider (the defendant) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). On that occasion, I imposed an interim detention order (IDO) of 28 days. That order has subsequently been extended, including recently by me. It must expire, pursuant to the Act, on 5 September 2019.
Subsequently, on 20 August 2019, a final hearing was conducted before me. The primary submission of the plaintiff was that the defendant should be subject to a continuing detention order (CDO) of 12 months, to be followed by an extended supervision order (ESO) of five years. The ancillary position of the plaintiff was that the defendant should simply be subject to an ESO of five years.
The position of the defendant was that he did not dispute the appropriateness of imposing an ESO of five years' duration, or the conditions proposed by the plaintiff. His submission was, however, that the statutory test for the imposition of a CDO as opposed to an ESO had simply not been made out.
At the final hearing, I invited submissions about any aspect of my preliminary judgment that was said to be erroneous, or ill-considered, or incomplete. No submissions were made to that effect. The parties were also content for all of the evidence placed before me at the preliminary hearing to be understood to be before me at the final hearing as well. In this final judgment, I shall therefore not repeat all that I wrote at that earlier stage, I assume familiarity on the part of the reader with that judgment, and all that it recounts by way of background and submissions previously made by the parties should be understood to be incorporated by this judgment, except to the extent that it is superseded. I shall also adopt the same terminology as in my preliminary judgment without further explanation. The digital version of this judgment, at its conclusion provides a hyperlink to the earlier judgment.

The real issue

As I have recounted above, the dispute between the parties at the final hearing was in truth circumscribed. There was no dispute that the defendant and his past offending fulfil all of the non-evaluative preconditions for an order being made pursuant to the Act: ss 5C(a)-(c), 13B(1), 13B(2)(b) of the Act. Nor was it disputed by the defendant that the test for making a continuing order of some kind against him had been established. Nor, at the end of the final hearing, was there any dispute about the length of an ESO appropriately being five years, nor about the appropriateness of the conditions sought by the plaintiff. Nor was it said by the defendant that there is any discretionary reason why I should decline to impose an ESO upon him.
I accept all of those concessions of the defendant. In my opinion, it would be out of the question for the defendant simply to be released at the conclusion of his current detention without a great deal of monitoring, supervision, and support. The whole history of this matter - featuring as it does repeated sexual assaults against many children; the unlawful homicide of Samantha Knight (the deceased) during a process of committing the same kind of offence against her; followed by the continuous incarceration of the defendant for a period well beyond two decades - cries out for the making of, at the least, an ESO of great rigour for the maximum period allowed by the Act.
The real question is as stated by the parties: would very significant diminution of liberty pursuant to such an ESO be sufficient, or has the plaintiff established that there must be further deprivation of the liberty of the defendant pursuant to a CDO?

Determination

For the following reasons, I have resolved that question in favour of a lengthy and rigorous ESO. I proceed to state my reasons for that, in no particular order of importance. In doing so, I incorporate my acceptance or rejection of the comprehensive and helpful written and oral submissions of both parties.
First, the interaction between the defendant and the criminal justice system is over. Indeed, it came to an end some months ago, on 6 June 2019, when his total head sentence expired in its entirety. Since that time, he has not been interacting with the criminal justice system at all, but rather with a civil system of supervision and detention founded upon assessment of unacceptable risk. The task in which I am engaged is not explicitly founded on the past (although the past is undoubtedly relevant); it is an effort to assess the future, and the risks to which it may give rise: s 5C(d) of the Act.
In other words, the exercise in which I am engaged is not about the appropriateness of further punishment of an offender for what he or she has done in the past. To repeat: it is a process of assessment of risk with regard to what he or she may do in the future.
Second, contrary to the submission of the plaintiff, I do not accept that a further period of incarceration for 12 months would serve any rehabilitative purpose. Whilst no doubt something could be found to be done in that regard, I believe that rehabilitation in the setting of a gaol has been taken as far as it can be taken in this case: s 3(2) of the Act. The stark choice with which I am confronted is highly restricted liberty in the community or simple incapacitation.
Third, the primary order sought by the plaintiff itself demonstrates that even the moving party postulates that the defendant should be released on highly restricted conditional liberty within a short time from now. To restate that: even the plaintiff does not contend for a period of further incarceration of more than 12 months, and envisages the defendant being at highly restricted conditional liberty thereafter. In my opinion, that implicit concession raises a question of futility with regard to further incarceration, other than the straightforward outcome of incapacitation to which I have referred above.
Fourth, the defendant has been incarcerated for a continuous period of over 23 years. He has done all that can be done in that setting to further his rehabilitation with regard to his undoubted sexual attraction to children: s 17(4)(e) of the Act. The last offence of child sexual assault of which he has been convicted occurred in early 1996. That is not to say that I am completely convinced that that attraction has disappeared entirely. But it is to say that I believe that the passage of years, and the many phases of therapeutic work that has been done, have an important role to play. In similar vein, the submission of the plaintiff that the three sets of remarks on sentence that have been placed before me are unremittingly bleak is undoubtedly correct; on the other hand, so is the submission of the defendant that the last of them was delivered almost exactly 17 years ago: s 17(4)(h1) of the Act.
Fifth, with regard to the death of the deceased in 1986, the judgment of the criminal justice system was that it was not accompanied by an intention to cause death or really serious physical injury, with the result that the defendant was convicted of manslaughter, not murder. To state that is not to diminish for a moment the tragedy of the loss of the life of this little girl; nor the abhorrent circumstances in which it occurred; nor the immense suffering over more than three decades occasioned by it, and of which Ms Tess Knight spoke so movingly and with such dignity at the final hearing. Rather, it is simply to acknowledge the objective reality that the defendant has been convicted of the lesser form of homicide, as part of the overall assessment of risk called for by the Act: s 17(4)(h) of the Act.
Sixth, the ESO proposed by the plaintiff and to which the defendant consents is of great rigour. It involves the defendant living at a very structured halfway house attached to a prison, being subject to electronic monitoring, and more than 50 other measures that will inevitably be extremely restrictive. To adopt the words of Ms Howell, forensic psychologist, there will surely be a very "stable and predictable level of supervision" imposed upon the defendant for many years. I also believe that in the circumstances of this case one can surely expect those who will supervise the defendant to err on the side of great caution in doing so.
In other words, the choice is not between incarceration and a lax form of conditional liberty; quite the contrary: it is between continuing incarceration and highly restricted conditional liberty that may be thought of as no more than a transitional step between gaol and living freely in the community: s 17(4)(d1) of the Act.
Seventh, it is true that each of the experts qualified as part of these proceedings (and with all of whom the defendant fully cooperated) has sounded significant notes of caution about the defendant; in the circumstances, any other approach would be remarkable.
For example, amongst the results that Mr Ardasinski (a forensic psychologist employed by the Department of Corrective Services and highly experienced in this area) obtained from the battery of risk assessments that he deployed was the result that the defendant possesses a "High density of criminogenic needs relative to other male sexual offenders". Dr Adams, a forensic psychiatrist distinguished in his field, has spoken generally of a high risk of future sexual offending, and a moderate risk of future violent offending. Ms Howell, a similarly experienced forensic psychologist, has emphasised the deviant sexual interest upon which the defendant has shown himself prepared to act, his isolation, his institutionalisation, and his abuse of alcohol and prescription drugs in the past: s 17(4)(d) of the Act. And it is also true, as the plaintiff emphasised, that the decision is ultimately for me, not them. But having said all that, it is surely significant that all three experts with different areas of expertise speak with one voice: to synthesise the varying ways in which they have expressed themselves, they all believe that it is reasonable to take the view that the undoubted risk presented by the defendant can be managed in the community, so long as a very stringent and lengthy regime of supervision and control is in place: s 17(4)(b) and (c) of the Act.
Eighth, it is quite true that good behaviour in a custodial setting is hardly a guarantee of avoidance of serious offending once released. But I adopt the opinion of the experts that, overall, the signs so far have been as positive as they can be: the defendant has been a compliant and cooperative prisoner in a setting that has no doubt been very physically dangerous for him; he has (as I have said) pursued rehabilitation over an extended period; he has worked outside the prison for a time, albeit whilst under supervision; he has been subjected to electronic monitoring for years already; and, finally, he has had the benefit of escorted day leave on many occasions without incident: s 17(4)(e2) and 17(4)(i) of the Act.
Ninth, there are, as the plaintiff submitted, undoubtedly adverse aspects of the matter, as follows.
The first is the ambiguous approach of the defendant to his responsibility for the death of the deceased. In fact, I think that he may have been ambivalent about that question since the time when he entered a plea to manslaughter in satisfaction of the murder count, many years ago. It is true to say, I think, that the moral ramifications of what he has done in that regard have not been fully embraced by the defendant. That may be because of an inability or refusal to face up to its enormity; or a sense of shame; or a process of psychological disassociation; or a view that further discussion of the topic inevitably redounds to the detriment of the defendant; or some other reason. And I see the force in the submission of the plaintiff that that ambivalence may intensify the risk that the defendant poses if released. Having said that, my specific role in these proceedings is not to assess the moral blameworthiness of the positions adopted by the defendant. As I have written, it is simply to assess risk into the future. And the simple fact is that the defendant publicly and formally admitted his guilt with regard to the death of the deceased over 17 years ago, and thereby exposed himself to inevitable further lengthy incarceration as a result.
In similar vein, it is quite true that the body of the deceased has never been able to be found. I know from experience in other matters that the denial of a decent burial to family members of a homicide victim is exceptionally painful. Having said that, for many years it has been posited that the defendant simply may not be able to say (for whatever reason) where the body of the deceased is to be found, and I believe that, 33 years later, the correctness of that proposition is a reasonable possibility.
Finally on this point, it is to be recalled that both Ms Howell and Dr Adams, forensic psychologist and psychiatrist, were aware of the ambivalence of the defendant about this whole topic. Each of them was concerned about it, but neither of them withdrew his or her opinion about the reasonable appropriateness of management in the community: s 17(4)(c) of the Act.
Another adverse factor is my lack of acceptance of the proposition that the defendant has never thought of children in a sexual way in the more than two decades during which he has been incarcerated. But I think it naive to have expected this man simply to have put that sexual attraction to one side instantly upon entering prison. As Ms Howell has explained, and as a matter of commonsense and experience of the world as the tribunal of fact, I think that I can regard sexual interest as "enduring", not something that can be turned on and off at will. And as Dr Adams has opined, I think the most realistic optimistic thesis about the sexual drive of the defendant is a gradual reduction in such an attraction over the course of many years, as part of an ageing process, and as a result of sincere engagement in therapy. And that is precisely why the defendant has been called upon to engage in significant rehabilitation during that time, and will be called upon to do the same if released to an ESO.
Relatedly, I agree it is a matter of some concern that, whilst in custody, the defendant drew pictures of children. But I think the point is soundly made on his behalf that that was one incident, it was seven years ago, and those drawings were created in the context of drawings of others, including adult women. It is also noteworthy that they do not seem to have been secreted, but rather displayed on the wall of his cell. In short, I do not believe that the fact that the defendant drew images of two children almost 100 months ago plays a significant role in determining whether to permit him to be at highly restricted conditional liberty or further incapacitated by incarceration. To adopt the approach of Dr Adams, I regard the finding of those items as "inconclusive".
Tenth, as to the details of how the defendant would be managed on an ESO, it is true that the picture with regard to the use of anti-libidinal medication is not clear. But that is because it has not been fully investigated medically at this stage (I make no criticism of that, bearing in mind that any release of the defendant has been contingent upon the conclusion of these proceedings). And it is also the case that anti-libidinal medication is obviously by no means the complete answer with regard to persons who may commit sexual offences for complex reasons that go well beyond simple sexual gratification. Still and all, it is important that the defendant has expressed his readiness to take such medication, so long as it is physically safe for him to do so: s 17(4)(e1) of the Act.
Eleventh and speaking more generally, of course there is a risk in releasing the defendant, even if subject to a very stringent ESO, as he will be. And I appreciate that the consequences of the commission of offences of child sexual assault are very often devastating, as the articulate and insightful statements of Ms Lisa Giles and another, anonymous victim amply demonstrated at the final hearing: s 21A(4) of the Act. But the fact is that there is some risk in releasing any person on the complete expiry of his or her sentence who has been shown to commit offences of the utmost gravity in the past, whatever their particular nature. Despite the undoubted paramountcy of the safety of the community (s 17(2) of the Act), the statute calls upon me to reflect specifically upon whether or not the plaintiff has established an unacceptable risk that could only be forestalled by further incarceration, not any risk: s 5C(d) of the Act. And it is incumbent upon the plaintiff to establish that proposition to a high degree of probability: s 5C(d) of the Act. It is that normative judgment with which I am asked to engage, not some process whereby any person who presents any risk is to be indefinitely detained.
Twelfth, it is true that my finding today is different from the finding that I made some months ago. But as I remarked at the final hearing, my earlier finding pertained to detention for a period of one month, not one year; it was contingent and predictive, whereas this judgment is determinative; and it was not informed by the subsequently available opinions of a highly experienced forensic psychiatrist and forensic psychologist.
Thirteenth and finally, to adopt the metaphor of senior counsel for the defendant, I believe that there is a nettle to be grasped in these proceedings. I say that not only because the criminal justice system has not seen fit to impose a sentence of life imprisonment upon the defendant. I also say it because, as the originating process in these proceedings shows, even the plaintiff envisages that his release will occur within a period of 12 months. And I further say it because I do not believe that the plaintiff has established the necessity of an order effecting incapacitation, in light of the length and rigour of the alternative order. On the evidence placed before me, and applying the test set out in the Act, I believe that it is my judicial responsibility to grasp the nettle now.

Orders

I make the following orders: 1. An order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) that the Defendant, Michael Guider, be subject to an extended supervision order from 5 September 2019 for a period of five years; and 2. An order pursuant to s 11 of the Act directing the Defendant to comply with the conditions set out in the Schedule to this judgment during the duration of the final order referred to in order 1 above. Guider Conditions (Final Hearing) - 20 Aug 2019 (389 KB, pdf) State of NSW v Guider judgment (119 KB, pdf)

Amendments 03 September 2019 - Need to change the two attachments to pdf format. 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: 03 September 2019

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