State of NSW v Hayter

One purpose of the preliminary hearing procedure is to allow the Court to filter out unmeritorious applications at an early stage. Another purpose is to give the Court the benefit of the expert opinions of two independent witnesses before making a final decision.

Section 9(2) provides that an extended supervision order may be made if, and only if, the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit further serious sex offences if he is not kept under supervision. The application for final relief requires consideration of the factors contained in s.9 of the Act. It is necessary, for the limited purposes presently required, to refer to s.9 factors and their application to this Defendant.

The Court of Appeal has stated that the word "likely" in s.9(2) of the Act, does not require a degree of probability exceeding 50%: Tillman v Attorney-General for the State of New South Wales [2007] NSWCA 327 at [88]-[90], [92]. The word "likely" may be taken to mean a "sufficiently substantial probability" : Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21]. [paras 8-11] 17 It should be noted that whilst the defendant accepts that the court is bound by the decision in Tillman, it contends that the word "likely" in s 9(2) should be taken to mean "more likely than not". Nevertheless, Mr Haesler SC, who appeared for the defendant, candidly conceded that the statutory requirements had been met in the present case irrespective of which test was adopted. 18 Section 9(3) of the Act is in the following terms: In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant : (a) the safety of the community, (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 , (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature.

19 The s 9(3) factors which are relevant to the defendant are addressed below, albeit not in the order in which they are listed in the subsection.

Section 9(3)(h) - the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere) and any pattern of offending behaviour disclosed by that history 20 An analysis of the defendant's criminal history was provided by Hislop J in Attorney-General for NSW v Hayter [2007] NSWSC 1146 at para 10. Although it is unnecessary to refer to the details of that history it suffices, for present purposes, to observe that the defendant has convictions for sexual offences committed in 1984, 1985, 1987, 1993, 2001 and 2005. On each occasion, other than in respect of the first set of offences, he was sentenced to a term of imprisonment. The 1993 offences were committed in Queensland and the 2001 offence was committed in South Australia. All the other offences were committed in New South Wales. In short, the defendant who is now aged 45, has been regularly committing sexual offences against young boys for more than 20 years. There have been at least 20 separate offences involving at least 12 different victims. The evidence also reveals that the defendant has acknowledged committing at least ten other sexual offences with which he has never been charged. 21 A number of other features of his offending conduct may be noted. Each of the defendant's victims has been a young boy, with the youngest being only 7 years of age. Each of his victims was a stranger to the defendant. The offences were opportunistic in nature and often occurred in public places. The offences reveal a degree of increasing sophistication and grooming techniques on the part of the defendant. Some of the offences were particularly serious and involved penetration of the victims. 22 Professor Greenberg makes the following observations about the defendant's conduct: [His] modus operandi is that he approaches acquaintances or strangers, strikes up a conversation with the boy and then psychologically grooms the victim or offers him money, gifts or accommodation. It has also been reported of him using pornographic video material to lure his victims, then having engaged in various forms of sexual molestation with his victims. 23 The defendant told Dr Samuels that he "would only approach children who were disadvantaged or homeless, never rich kids" and that "his sexual attraction to children was 'like a heroin addiction to me'". 24 Similarly, he admitted to Professor Greenberg that he "has an 'addiction' to sex with children" and that he enjoys sexual contact with young males and that he well understood at the time the consequences of his offending behaviour. In his report dated 20 September 2007, Professor Greenberg recorded the defendant as stating that he enjoyed paedophiliac behaviour and that he would masturbate to fantasies of his sexual experiences with children. 25 The defendant's criminal history also includes convictions for trespass, killing cattle, receiving, escaping from lawful custody and larceny.

Section 9(3)(d): the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to the offender committing a further serious sex offence and Section 9(3)(c): the results of any other assessment prepared by a ... registered psychologist ... as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment and the level of the offender's participation in any such assessment 26 In the proceedings in both 2007 and 2008, Hislop J was satisfied to a high degree of probability that the defendant was likely to commit a further serious sex offence if not kept under supervision. 27 In terms of actuarial assessment, Mr Sheehan, Professor Greenberg and Dr Samuels have each scored the defendant as a "9" using the Static-99 actuarial risk assessment tool. Details regarding the STATIC-99 instrument are conveniently set out in the affidavit of Patrick Sheehan affirmed 9 April 2009 and his accompanying risk assessment report.

Section 9(3)(e) - treatment or rehabilitation programs 28 The defendant commenced the CUBIT program for high risk sex offenders on 19 January 2007 and completed it on 12 January 2009. He was twice suspended from the program. On a number of occasions during 2007 and 2008 the defendant conducted himself in an entirely inappropriate fashion: see Hayter [2008] NSWSC 394 at para 11. Moreover, in September 2007 the defendant acknowledged an intention to sexually re-offend upon his release from custody. 29 The risk assessment report prepared by Mr Sheehan, in essence, brings up to date details of the defendant's participation in the CUBIT program. Mr Sheehan described the defendant's progress in these terms: .. Mr Hayter's participation and progress in the CUBIT program might be described as convoluted and laborious. In all, he has taken almost two years to complete a program usually completed by offenders within eight to ten months. Much of this time in treatment was characterised by: disparity between Mr Hayter's stated objectives and actual behaviour, ongoing sexual coping (including coping using deviant sexual thoughts and fantasies), interpersonal difficulties with peers, and intensive efforts to manage his behaviour by staff. 30 And a little later: By the conclusion of the CUBIT phase of treatment, Mr Hayter could best be described as having made modest therapeutic gains. His final treatment report (Rubio, 23/2/09) makes reference to Mr Hayter having demonstrated "slightly improved" understanding of risk factors and self-management plans, as well as "slight improvement" in emotional regulation and interpersonal skills. Deficits in understanding on an emotional level and difficulties in comprehensively applying his theoretical understanding to daily life are also noted.

31 Ms Rubio in her treatment report dated 23 February 2009 raised a number of continuing concerns about the defendant's conduct. Mr Sheehan also expressed concerns about the fact that the defendant did not have realistic plans for his release from custody and because of the fact that he lacked intimacy skills. 32 Mr Sheehan's conclusions are in the following terms: Overall, Mr Hayter is assessed as being in the high risk category of sexual offending relative to other adult male sexual offenders. The management of one's risk involves improving their level of functioning in the afore-mentioned dynamic risk areas. As individual's address and become more skilled at managing dynamic risk factors their ability to manage their overall risk improves. Over the course of a lengthy and intensive treatment program, Mr Hayter has demonstrated what has been interpreted as modest therapeutic gains as gauged by his ability to generalise theory and insight into daily behaviour. His participation in antilibidinal medication is also temporally associated with a decrease in recorded deviant or inappropriate sexual behaviour over recent months. This direction is positive and should be encouraged. However, the totality of evidence clearly suggests that Mr Hayter is only beginning to make what could confidently be recognised as enduring positive change. A number of the dynamic risk factors identified by Mr Hayter and this therapist continue to influence his behaviour. In my opinion, he will require significant ongoing support and supervision before he could successfully and consistently manage these factors, and therefore his risk to the community. Notwithstanding his efforts in the CUBIT program, Mr Hayter is assessed as being in the high risk category of sexual offending relative to other adult male sexual offenders. Were Mr Hayter released to the community with no form of supervision and structural support, I find it unlikely that he would be successful in comprehensively applying his treatment goals to community life, which would include independently seeking ongoing specialist psychological support, maintaining antilibidinal medications and building an aspirational lifestyle that is beyond his traditional behavioural repertoire. In the challenging experience of adjusting to community life after an extended period in custody, my belief is that Mr Hayter would most likely resort to the constellation of well-rehearsed dysfunctional coping behaviours that supported his transient, socially marginalised life in the past, and predisposed him to risk of sexually offending. Previous methods of supervising Mr Hayter in the community have proved unsuccessful in preventing him from sexually reoffending. However, if Mr Hayter is subject to ongoing supervision, he will most likely be supervised by the Community Compliance Group, which can offer Mr Hayter a more comprehensive level of support and supervision than he has yet received. It is recommended that any management plan be designed to be minimally restrictive, but rather to be supportive of and to encourage the establishment of a balanced and responsible lifestyle as reflected in Mr Hayter's Self Management Plan. The level of restriction and autonomy afforded to Mr Hayter should remain dynamic, reflecting changes in his own ability to manage his risk behaviour as evidenced by his behaviour over time. The Community Maintenance Program as offered in the Department of Corrective Services Sex Offender Programmes would be available to assist Mr Hayter with ongoing therapeutic assistance. 33 Since completing CUBIT, the defendant has been undertaking the Custodial Maintenance Program. 34 Professor Greenberg gave evidence in the 2007 proceedings before Hislop J to the effect that unless the defendant took anti-libidinal medication, his chances "of a fairly rapid relapse were very, very high". The defendant was prescribed Androcur by Dr Ellis and commenced taking it on 30 November 2007. The evidence was that by the time of the proceedings in 2008 the medication had reduced the defendant's sex drive with the consequence that he was able to participate more effectively in the CUBIT program. On 31 December 2008 the defendant ceased taking the medication, claiming that it made him vomit. Since 12 January 2009 the defendant has been taking Depo Provera by injection fortnightly. There have been no reported side effects. 35 The importance of the defendant continuing to take anti-libidinal medication is apparent from the following observation made by Professor Greenberg in his report dated 9 April 2008 in which he says: I am of the view that Mr Hayter would probably need to take this medication for the next twenty years or more if he remains in the commuity … I am of the view at this time that without anti-libidinal medication, Mr Hayter is unlikely in the short to medium term to be able to control his own sexual regulation of his paedophilic and hebophilic urges. [emphasis added]

Section 9(3)(f) - compliance with any obligations to which the offender has been subject while on release on parole 36 In Hayter [2007] NSWSC 1146, Hislop J observed that: The defendant has a history of non-compliance with parole, bail and supervision orders as follows: revocation of bail for breach of conditions in 1984; the defendant entered into a recognizance under s 558 of the Crimes Act in respect of the offences for which he was convicted on 5 November 1984. He committed a serious sexual offence during the period of the recognizance. The breach of recognizance was admitted on the court file; in November 1985 the defendant failed to comply with the direction of the Probation and Parole Service to remain in the Bathurst/Oberon area (and instead travelled to Sydney and committed an offence at Parramatta). The bond that the defendant had entered into had, relevantly, required him to accept the supervision and guidance of the Probation and Parole Service and obey all reasonable directions; on 1 November 1985 the defendant entered into a District Court recognizance at Bathurst to be of good behaviour for three years. Five days later and in breach of the recognizance, the defendant committed a further sex offence at Parramatta. The defendant was called up for sentencing for breach of recognizance and breach of the recognizance was admitted; on 18 March 1987 the defendant was released from Cooma gaol on parole and subject to a parole order with supervision that was to expire on 26 February 1989. Notwithstanding that he was subject to the parole order until 26 February 1989, on 19 and 21 September 1987 the defendant committed sex offences for which he was subsequently convicted and sentenced; a number of the sex offences for which the defendant was convicted and sentenced on 24 February 1993 in Queensland occurred after the defendant had been arrested and released on bail in respect of other sex offences; after his release from gaol in South Australia, the defendant moved to New South Wales in circumstances that involved a failure to comply with a South Australian parole order. (at para 13) 37 An offender's response to court-ordered supervision, is a factor which may be regarded as being relevant to any risk assessment. In this respect, the defendant's poor history of responses to supervision is a factor pointing towards a high risk of sexual recidivism.

Section 9(3)(g) - level of offender's compliance with any obligations under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 38 Hislop J also dealt with this issue in the judgment to which I have just referred. His Honour said: For significant periods of time during which these Acts have been in force, the defendant has been in custody, either serving a sentence of imprisonment or on remand. However, in respect of such period of time as the Acts could relevantly apply to the defendant, documentary material raises an issue as to non-compliance on the part of the defendant despite being on notice of reporting obligations under the statute. (at para 14)

Section 9(3)(a) - the safety of the community 39 Ensuring the safety of the community is the primary object of the Act. All of the matters to which reference has been made are relevant to that issue but the following matters are worthy of repetition in the present context: (i) the defendant's criminal history, including his commission of sexual offences over a number of decades against young boys, and his seeming inability to alter his predatory behaviour over time; (ii) the increasing sophistication of the defendant's offending behaviour; (iii) the defendant's history of non-compliance with parole and supervision orders; (iv) the evaluation of the defendant's static and dynamic risk factors; (v) the assessment of the defendant as presenting a high risk of sexual re­offending if released into the community. 40 In my view, there is compelling evidence that the safety of the community would be put at risk if the defendant were to be released without supervision. 41 In the light of the material which has been placed before the court, I am satisfied that the matters alleged in it would, if proved, justify the making of the orders which are sought. Nor are there any countervailing factors which would justify the court in refusing to make them. In my view the need to protect the community, as well as the need to facilitate the defendant's rehabilitation, require that the defendant be subject to conditions upon his release from custody. 42 Accordingly I make the following orders.

1 Pursuant to section 7(4)(a) of the Crimes (Serious Sex Offenders) Act 2006 ("the Act"), I order that Professor Greenberg and Dr Samuels be appointed to conduct separate psychiatric examinations of the defendant and that each of them is to furnish a report to the Court on the results of those examinations on or before 27 May 2009.

2 Pursuant to section 7(4)(b) of the Act, the defendant is directed to attend the examinations referred to in Order 1 above.

3 Pursuant to section 8(1) of the Act, the defendant is to be subject to an interim supervision order with effect from 5 May 2009 for a period of 28 days. I direct that he is to comply with the conditions which are set out in the Schedule which is annexed to this judgment. I note that the original of the Schedule has been signed by the defendant and by a representative of the Department of the Attorney-General.

4 The matter is stood over for mention until 9.30 am on 28 May 2009.

5 Grant liberty to apply on 24 hours notice. Schedule INTERIM SUPERVISION ORDER: CONDITIONS APPLICABLE TO WARREN GRAEME HAYTER

Oversight The defendant be directed to comply with the following orders, oversight of which is to be administered by a Departmental supervising officer of the Department of Corrective Services ("the Department") being appointed by the Department to manage his supervision. Reporting and monitoring obligations

1. The defendant must accept the supervision of the Probation and Parole Service (which includes the Community Compliance Group ("CCG")) for the duration of the supervision order. 2. The defendant must report personally once a week to the responsible Departmental supervising officer or otherwise as directed by that officer. 3. The defendant must comply with any reasonable direction given by the Departmental supervising officer or any Departmental officer who may from time to time be allocated to the defendant's case. 4. The defendant must not commit any offence punishable by a period of imprisonment. 5. The defendant must wear electronic monitoring equipment if directed by the Departmental supervising officer and comply with all instructions given by a Corrective Services Officer in relation to the operation of such equipment, and must not tamper with or remove such equipment. 6. If directed by the Departmental supervising officer, the defendant must inform the Departmental supervising officer of his movements 48 hours in advance by providing a schedule in writing (or as otherwise directed by the Departmental supervising officer) and must obtain prior approval from the Departmental supervising officer for any proposed change. 7. The defendant must accept visits at his approved accommodation, including visits without prior notice, by any Departmental supervising officer. 8. The defendant must not attend public places mainly frequented by children including schools, pre-schools, day care centres, amusement parlours and parks, and any other public place as the Departmental officer may direct, unless accompanied by a responsible adult (being a person previously approved by the Departmental supervising officer for the purpose of this condition). 9. The defendant must not associate or make contact with children under the age of 18 years unless in the presence of an appropriate adult (being a person previously approved by the Departmental supervising officer for the purpose of this condition). 10. The defendant must not undertake employment other than that which has been approved by the Departmental supervising officer. 11. The defendant must not leave the State of New South Wales without the written permission of the Commissioner. 12. (a) Unless otherwise approved by the Departmental supervising officer, the defendant must not possess or consume any alcohol (including any alcohol-based products such as methylated spirits); (b) The defendant must not abuse prescription medication or other forms of medication; (c) The defendant must not possess or consume any illicit drugs; and (d) The defendant must submit to drug and alcohol testing as directed by the Departmental supervising officer. 13. The defendant must not go to any licensed premises, excluding restaurants and cafes, but including hotels, bars, licensed clubs and racecourses, without the prior approval of the Departmental supervising officer. 14. The defendant must not associate with any persons specified by the Departmental supervising officer. 15. The defendant must not change his name from Warren Graeme HAYTER without the prior approval of the Departmental supervising officer. 16. The defendant must not, without the approval of the Departmental supervising officer, change his facial appearance (including facial hair) or the colour of his hair and must not alter the length of his hair to the extent that he cannot be easily recognised. 17. If the defendant's proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental supervising officer. 18. Should the defendant propose to enter into a relationship with another person, he must notify his Departmental supervisor officer of their relationship at the earliest opportunity and the other party of his offences. The Departmental supervising officer may disclose the defendant's offence history to such other person.

19. For the duration of the order the defendant must reside at accommodation approved by the Departmental supervising officer. Note It is envisaged that the defendant will reside at a Community Offenders Support Program (COSP) centre for a period of up to six months.

20. If directed by his Departmental supervising officer, the defendant must be at his approved address between 9pm and 6am (or such other hours as may be specified) unless his presence at another place during those hours has been approved by his Departmental supervising officer.

21. The defendant must accept a comprehensive assessment (and further assessments from time to time) including medical examination, pathological investigations, psychometric testing and radiological imaging to be conducted by the Community Forensic Mental Health Service (CFMHS) or the Area Mental Health Service (AMHS), to determine what is required for treatment, including control, of the defendant's psychiatric condition, and potential for sex offending. 22. The defendant must accept psychological and psychiatric treatment as may be provided by an AMHS (or CFMHS or Justice Health), including counselling, psychological therapy and any anti-psychotic or other psychiatric medication as indicated. 23. Without limiting paragraph 22 above, the defendant must accept sex drive reduction medical treatment or any other therapy, including anti-libidinal treatment, if prescribed by a medical practitioner, as may be provided by CFMHS, Justice Health, an AMHS or any medical practitioner, and must not unreasonably refuse his consent to the administering of such prescribed drug or therapy. 24. The defendant must not take any medication or substance which may affect any anti-libidinal medication (including SSRIs) being taken by the defendant unless the defendant's Justice Health treating psychiatrist prescribes such medication. 25. The defendant must attend regular medical consultations, physical examinations, pathology testing, and medical imaging as directed by the Area Health Service, CFMHS or Justice Health. 26. The defendant must attend consultations with the Area Health Service or CFMHS, at such a frequency, venue and time as directed by his treating clinicians. 27. If directed by his Departmental supervising officer, the defendant must accept such psychological intervention by psychologists employed by the Department as may be offered to him, including the maintenance program provided by the Forensic Psychology Services and must participate in all such rehabilitation treatment and programs as may be directed by the Departmental supervising officer. 28. The defendant must engage a general practitioner and he must notify the Departmental supervising officer of the identity and address of the general practitioner and provide consent to the disclosure of confidential medical information as between the general practitioner and any treating psychologist and/or psychiatrist and the Departmental supervising officer. 29. The defendant must forthwith disclose to the Department the identity of any other medical or mental health practitioner that he consults. Disclosure of information 30. The defendant must waive his right to the confidentiality of all information disclosed by him during treatment to his treating doctors (including any specialist) and any psychologist. 31. The defendant must consent to his Departmental supervising officer and other responsible officers (including from the CCG) accessing all relevant information regarding the defendant's progress while subject to supervision, which may include confidential medical information disclosed in the course of his treatment. 32. The defendant must agree to the sharing of all information between his Departmental supervising officer, other Departmental officers (including from the CCG), officers from Justice Health/CFMHS, the defendant's general practitioner and any treating psychologist or psychiatrist. 33. The defendant must agree that, if the Departmental supervising officer considers it appropriate to do so, the Departmental supervising officer may provide to any prospective or actual employer of the defendant information relating to the defendant's criminal history and may notify such prospective or actual employer that the defendant is subject to a supervision order and of the terms of the order. 34. The defendant must not use a computer for the purpose of accessing the World Wide Web to view or to download child pornography. 35. The defendant must comply with any direction made by the Departmental Supervising Officer regarding access to or use of the World Wide Web and the internet by him and without limitation the Departmental Supervising Officer may direct the defendant to use any computer with a parental lock or other device or software that may restrict access to or permit access only to certain websites. 36. The defendant must not attend any internet cafe or internet kiosk without the prior approval of the Departmental Supervising Officer.
22. If and as directed by the Departmental Supervising Officer, the defendant must: (a) permit the Departmental Supervising Officer and any computer technician employed or engaged by or on behalf of the Department to assist or advise the Departmental Supervising Officer to access and inspect any computer owned by the defendant, including the temporary removal of the computer from his place of residence for the purpose of inspection; (b) take all available steps to permit the Departmental Supervising Officer and the computer technician to have access to and inspect any computer used by but not owned by the defendant; (c) provide the Departmental Supervising Officer and the computer technician with any requested assistance to enable them to access and inspect any computer owned or used by the defendant, including providing them with any required passwords; (d) permit the Departmental Supervising Officer and the computer technician to make copies of any files or materials on any computer owned by the defendant that the Departmental Supervising Officer reasonably believes may be relevant to the management of the defendant's risk of re-offending. **********

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