In August 1986, Samantha Knight (the deceased), then aged nine years, disappeared. She was last seen on Bondi Road, in the Eastern suburbs of Sydney, talking to an adult male. A huge police investigation ensued, and the case is notorious to any person who was an adult and living in New South Wales at that time. Her body has never been found.
In early 1996, two young children complained that they had been sexually assaulted by Mr Michael Anthony Guider (the defendant). In the course of investigating those allegations, police located an enormous number of images of children in his possession that were taken when they were being indecently assaulted or penetratively sexually assaulted by the defendant.
The creation of the images was itself, of course, a criminal offence. They were created by the defendant for his own subsequent sexual gratification. The general modus operandi adopted by the defendant was to inveigle himself into the lives of various families and to gain their trust, thereby gaining access to children. The specific modus operandi adopted by the defendant, whereby the child victims could be more readily sexually assaulted (and perhaps to render them with no memory of what had been done to them), was to administer them a well-known sedative.
In due course, Judge Flannery QC imposed sentence upon the defendant in the District Court for 60 counts founded upon sexual offences committed against 11 children between 1980 and 1986. As I have said, some but not all of the offences involved penetrative sexual intercourse.
His Honour imposed a total head sentence of imprisonment for 16 years with a non-parole period of 10 years 6 months, each to commence on 27 February 1996.
Subsequently, as the investigation deepened, further sexual offences against children came to light. Four years after the first set of sentences was imposed, on 11 February 2000 Judge O'Reilly QC imposed two fixed terms of 6 years 6 months for that offending. The structural effect of those further sentences was that the earliest possible release date of the defendant was extended from February 2006 until August of that year.
Returning now to the deceased, a number of factors connected the defendant to her. Items seized from the possession of the defendant established that he had a strong interest in her disappearance. It was also established that he had had been in her company at some stages. As well as that, by a process of logical elimination, it could be inferred that in his possession was an indecent photograph of her. It is to be recalled that the last person with whom the deceased had been seen was an adult male. He had at one stage suggested that her body may be located in a particular park in the Eastern suburbs. Prisoners suggested that he had confessed to them that he had killed her and disposed of her body. Finally, when spoken to by police, he put forward various preposterous explanations for her disappearance.
Eventually, many years after August 1986, the defendant was charged with her murder. In the event, a plea of guilty to manslaughter was accepted by the Crown in full discharge of the allegation of homicide. The agreed thesis upon which Wood CJ at CL sentenced the defendant in this Court for manslaughter was that, in order to commit a sexual offence against the deceased, the defendant had adopted his well-established method of dosing her with the sedative. She unexpectedly died as a result, and he thereafter secretly disposed of her body (my understanding is that the Crown could not prove that the intended sexual offence fell within the statutory definition of a foundational offence for the purposes of the doctrine of constructive murder).
During those sentence proceedings, the defendant was represented by senior counsel with great experience in criminal law. At no stage was there an application to withdraw the plea of guilty to manslaughter after it was entered. Tendered in the proceedings on sentence was a psychiatric report prepared by an eminent forensic psychiatrist. That document recounted the version of events of the defendant, which was consistent with his plea of guilty.
On 28 August 2002, the Chief Judge at Common Law imposed a head sentence of imprisonment for 17 years with a non-parole period of 12 years, each to date from 7 June 2002. That extended the total non-parole period of the defendant to 6 June 2014.
The State Parole Authority (SPA) declined to release the defendant on parole at that time, on the advice of the Serious Offenders Review Counsel (SORC). After that, the defendant did not apply for parole, and he remains in custody.
In summary then: the defendant has been in continuous custody for well over 23 years, since February 1996, as a result of his convictions for one count of homicide and countless offences of child sexual assault. His total head sentence will expire completely on Thursday, 6 June 2019.
[3]
Application
The foregoing is a thumbnail sketch of the curial and custodial context in which the State of New South Wales (the plaintiff) has sought preliminary orders against the defendant pursuant to the Crimes (High Risk Offender) Act 2006 (NSW) (the Act). In a nutshell, the plaintiff has sought mandatory psychiatric and psychological examination, and an interim detention order (IDO) of 28 days; in the alternative to the latter order, an interim supervision order (ISO) was sought. Also foreshadowed were applications for final orders by way of a continuing detention order (CDO) of one year, to be followed by an extended supervision order (ESO) of five years.
[4]
Refinement of issues
At the hearing, senior counsel for the defendant (who is very experienced not only in criminal law, but also in civil applications such as these) accepted, of course, that all determinations are matters for me. Still and all, he helpfully delineated the matters that are conceded by him on behalf of the defendant, and those that are in dispute.
First, he accepted that all mechanistic statutory preconditions to interference with the liberty of the defendant pursuant to the Act have been established.
Secondly, he conceded that the central test to be found in the Act at s 15(4) for the mandating of psychiatric and psychological examination had been established.
Thirdly, he conceded that the test to be found in s 10A of the Act had been established with regard to the making of a very rigorous ISO.
Fourthly, he disputed that an IDO should be imposed.
Fifthly and finally, if I were to accept his third and fourth propositions, he conceded that all of the proposed conditions of that ISO were appropriate.
In short, as between the parties, the dispute became a very straightforward one: should I impose an ISO for a period of four weeks, or should I go further, and continue the incarceration of the defendant for the same period?
[5]
Submissions of plaintiff
In support of an IDO, senior counsel for the plaintiff relied in particular on the following propositions, said to be able to be derived from the extensive documentary evidence placed before me.
First, as a matter of statutory interpretation, the reference to the paramountcy of the safety of the community when considering whether to make a CDO or an ESO, to be found in s 17(2) of the Act, must surely also inform the question with which I am confronted of whether to make an IDO pursuant to s 18A, or an ISO, pursuant to s 10A of the Act.
Secondly, he invited attention to the remarks on sentence of the three judges, all of them most experienced in criminal law, who have previously dealt with the defendant; as one would expect, their Honours emphasised the gravity of all that he has done, and the patently compulsive nature of the sexual offending of the defendant.
Thirdly, the record of convictions speaks for itself about the chronicity and intensity of the sexual attraction of the defendant to children, and his readiness to act upon it.
Fourthly, and relatedly, the chronology of offending demonstrates that, even after the death of the deceased, the defendant continued to sexually assault children by way of his established method of administering a sedative. To express my understanding of that submission: even after the unintended death of the deceased, and the belief of the defendant at that stage that he had seemingly escaped detection for it, his sexual attraction to children was so profound that the death of a child at his hands did not deter him from continuing to offend in the same way, and using the same self-evidently potentially fatal method of doing so.
Fourthly, despite his plea of guilty to, conviction of, and punishment for the manslaughter of the deceased, the defendant has never seen fit to reveal the location of her body. Relatedly, and perhaps even more concerningly, his position now has deteriorated to being a firm denial that he had anything to do with her death, despite all of the evidence to the contrary, and despite the considered position adopted by him in 2002.
Fifthly, the defendant is undoubtedly institutionalised and bereft of contacts within the community. That state of affairs could well be criminogenic.
Sixthly, senior counsel submitted that it is not inappropriate for a "risk adverse" approach to be adopted at this preliminary stage. In support of that submission, he relied upon what was said by Bell J in Attorney-General for NSW v Winters [2007] NSWSC 611 (as recently cited in State of New South Wales v Sturgeon [2019] NSWSC 559), and what was said by the Court of Appeal of this State in Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [44] - [46].
Seventhly and finally, he accepted that a rigorous ISO would in all likelihood effectively obstruct the previous modus operandi of inveiglement and grooming. But he submitted that an intelligent person - as the defendant undoubtedly is - can readily adjust criminal methods of sexual fulfilment as necessary.
[6]
Submissions of defendant
In response, senior counsel for the defendant submitted that the three very adverse sets of remarks on sentence may be accepted. But the last of them was delivered 17 years ago.
Secondly, he expressly conceded that the paramount factor spoken of by Parliament in s 17(2) of the Act is also applicable at this stage of proceedings. But he submitted that there are other factors to be considered as well, not least the object of the encouragement of the undertaking of rehabilitation, spoken of at s 3(2) of the Act.
Thirdly, he submitted that, despite the undoubtedly difficult and constrained circumstances in which the defendant has been incarcerated for well over two decades, he has shown himself to be a model prisoner.
Fourthly, he submitted as part of that that the defendant has done all he can do in custody to rehabilitate himself with regard to his admitted paedophilia. Nothing further can be achieved in that setting; indeed, more effective rehabilitation in all likelihood could take place in the community.
Fifthly, it is true that the current position of the defendant is to deny his culpability in the death of the deceased. But he has always admitted, and continues to admit, his criminal sexual attraction to children - which, after all, underpins the manslaughter - and has engaged in a sincere effort, over twenty years, to overcome it.
Sixthly, the simple fact is that the defendant has been given the benefit of escorted day release on many occasions, and it has proceeded very well, without any suggestion of endangerment of the community, including children.
Seventhly, if released subject to an ISO, the defendant would be subject to conditional liberty far more stringent than that that is imposed upon offenders by way of parole. In particular, he would be living in supported accommodation attached to a gaol; would be subject to a curfew; would have his movements electronically monitored; and would be subject to a great deal other intensive and intrusive surveillance and supervision.
Eighthly and finally, senior counsel submitted that it is apparent from the final orders sought by the plaintiff in its summons, and as a matter of objective reality in any event, that eventually the defendant - who is not, of course, the subject of a life sentence - will be released. Other than simple incapacitation, there is nothing to be served by delaying that event; indeed, there is something to be gained from not doing so. In short, he submitted: the nettle should be grasped now.
[7]
Determination
Turning to my determination. I believe that with regard to much that I have recounted I can be concise.
First, there is no doubt but that the mechanistic statutory preconditions for the making of one order or the other have been established; I shall not pause to recount them.
Secondly, as for the statutory fulcrum, nor do I believe that there can be any doubt that a judge of this Court in the future could impose, at the least, an ESO. I shall not engage in a discussion of the ongoing judicial characterisations of the contingent test that arises at this preliminary stage, simply because I accept without hesitation the concession of senior counsel for the defendant that, at a final hearing, the liberty of the defendant could be at the least curtailed. I say that because, in my opinion, the whole history of the sexual offending against children by the defendant, including its fatal consequence on one occasion, speaks for itself, even despite the length of time during which the defendant has been incarcerated, and even despite the sound efforts that he has made to rehabilitate himself.
Thirdly, it follows that I respectfully agree that the real question for me is whether to impose an ISO or an IDO.
Fourthly, I accept the unanimous legal submission that, as a matter of statutory interpretation, the safety of the community is the paramount consideration at this preliminary stage, even despite the fact that the factor is not explicitly mentioned in the Act with regard to the making of an IDO or an ISO. I think that to interpret the Act otherwise could render it structurally unsound; for example, it would be an odd result if a citizen could be detained more readily for a year (pursuant to a CDO) than he or she could be detained for 28 days (pursuant to an IDO).
Fifthly, I respectfully think that much of what has been written and said by senior counsel for the defendant has force, as follows.
It is hard to accept that, if subject to conditional liberty of the utmost rigour, the defendant could ingratiate himself with a family again, without his supervisors knowing of it and forestalling it at the earliest possible stage.
I accept also that the defendant, over many years, has confronted his grossly distorted sexuality, and made a real effort to overcome it.
It is also correct to say that the death of the deceased was unintended, and the defendant has not shown himself otherwise to be a violent person (leaving aside, of course, the unquestionable violence inherent in the commission of any sexual offence against any person, adult or child).
Separately, I do not interpret the refusal of the defendant to seek parole as recalcitrance or manipulation, but rather a belief in its futility, and perhaps a level of hopelessness.
Finally, it is true to say that the position of the plaintiff itself envisages the release of the defendant in the reasonably near future.
In short, over the past few days I must say that the matter has been finely balanced in my mind.
Sixthly, however, I think it true to say that, if - despite all - the defendant retains an intense sexual attraction to children, an alternative criminal methodology could readily be adopted. By that I mean, even the most stringent ISO will permit of occasions when the defendant would be out and about alone, and during which children would be vulnerable. Speaking generally, experience shows that a committed paedophile can complete a grave offence of child sexual assault in a matter of moments. And I am by no means sure that the chronic, intense, longstanding sexual attraction to children of the defendant has dissipated entirely.
Separately, the current refusal of the defendant to accept any responsibility of any kind for the death of the deceased is concerning indeed. It intensifies the concerns - expressed 17 years ago by the Chief Judge - about his refusal to reveal the disposition of the body of the deceased. It must be interpreted as a significant backward step. In my opinion, it raises a question not only about his acceptance of responsibility for what he has done, but also, perhaps, about his mental state more generally.
Centrally, the conceded paramountcy of the safety of the community has resolved this matter in my mind in favour of a short extension of incarceration.
Finally, on my analysis there is no discretionary basis upon which I should fail to impose the order that I consider appropriate.
For the foregoing reasons, I have mandated the examinations sought, and imposed a renewable IDO of 28 days to date from 6 June 2019.
[8]
Orders
I make the following orders:
1. An order pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2005 (NSW) (the Act):
1. Appointing one qualified psychiatrist and one registered psychologist to conduct separate psychiatric or psychological examinations of Mr Michael Anthony Guider, the Defendant, as appropriate, and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and
2. Directing the Defendant to attend those examinations.
1. An order pursuant to s 18A of the Act that the Defendant is subject to an interim detention order from 6 June 2019 for a period of 28 days.
2. An order pursuant to s 20(1) of the Act that the Court issue a warrant for the committal of the Defendant to a correctional centre for the duration of the interim order referred to in order 2 above.
[9]
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Decision last updated: 04 June 2019