HIS HONOUR: The defendant is a young man who committed a number of child sex offences when he was aged between 15 and 17 years of age. He was convicted in June 2010 and sentenced to an overall term of imprisonment of 9 years and 9 months. The defendant's parole expired on 13 November 2018. Whilst on parole, the defendant was convicted of using a carriage service to access child pornography, contrary to s 474.19(1) of the Commonwealth Criminal Code. He was sentenced on 11 August 2017 to imprisonment of 2 years and 3 months, expiring on 8 May 2019. The sentencing Judge directed that the defendant be released at the expiration of 15 months of his sentence upon him entering a recognizance release order. The recognizance release order is due to expire on 8 November 2019.
The defendant has also been convicted of two breaches of s 17(1) of the Child Protection (Offenders Registration) Act 2000 committed on 3 June 2016, for which concurrent 12 month good behaviour bonds were imposed. The bonds have expired.
By summons filed on 31 October 2018, the plaintiff seeks, relevantly:
An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006:
Appointing two qualified psychiatrists or two registered psychologists (or one of each such persons) to conduct separate psychiatric or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court;
Directing the defendant to attend those examinations.
Section 7(4) of the Act provides as follows:
"(4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:
(a) appointing:
(i) 2 qualified psychiatrists, or
(ii) 2 registered psychologists, or
(iii) 1 qualified psychiatrist and 1 registered psychologist, or
(iv) 2 qualified psychiatrists and 2 registered psychologists,
to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and
(b) directing the offender to attend those examinations."
State of NSW v NW [2019] NSWSC 999 | Case summary | Zoe
On 16 April 2019, I published reasons for judgment dealing with the preliminary question of whether the plaintiff's summons had been filed according to the time-period requirement in s 6(1) of the Act (see State of NSW v NW [2019] NSWSC 415). I found that it had been. In the course of that judgment, at [34], I said "in no real sense did I conduct, nor was I asked to conduct, a preliminary hearing of the type which the sub-section appears to contemplate." Accordingly, because the defendant did not oppose the appointment of specialists as anticipated by s 7(4) and consented to the order sought in paragraph 1 of the summons, I decided that upon receipt of the names of two practitioners, I would make an order pursuant to s 7(4) of the Act for the appointment of psychiatrists or psychologists to examine the defendant (see [35]).
The day after my judgment was published the matter was again listed before me. Mr Thompson, who appeared as solicitor for the plaintiff, orally submitted, contrary to what I said in [34] and [35] of my judgment, that s 7(4) did in fact require me to conduct a preliminary hearing before appointing two practitioners to examine the defendant. This was so despite the fact that the defendant consented to the appointment of specialists.
In the circumstances I acceded to Mr Thompson's request that I conduct a preliminary hearing. Consequently, I decided to treat myself as reserved on the issue of whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. What follows are my reasons for finding that if the matters alleged in the supporting documentation were proved, it would justify the making of an extended supervision order.
I note that the parties are agreed that I ought to conduct the preliminary hearing without further oral argument. I also note that the evidence tendered during the hearing of 9 April constitutes the material upon which I am to conduct the preliminary hearing.
[2]
Relevant principles
Recently, in State of New South Wales v KAS (Preliminary) [2019] NSWSC 924, Johnson J said:
"[25] At a preliminary hearing, it has been said that it is not for the Court to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing. Rather, the Court undertakes a task that has been described as being akin to applying a prima facie case test in committal proceedings (as they were before 30 April 2018), taking the Plaintiff's case at its highest. The use of the term "prima facie case" seems especially apt given that the Minister used this term in the 2006 second reading speech when describing the process at a preliminary hearing". (Citations omitted)
As already observed, the defendant consents to the appointment of two medical specialists pursuant to s 7(4). Furthermore, in its written submissions the defendant conceded that the evidence supports a finding that the s 5B(d) test is satisfied, namely, there is a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order. The concessions made by the defendant, however, do not relieve the Court from the obligation to hold a preliminary hearing and determining whether the orders should be made: State of New South Wales v PS [2018] NSWSC 504, at [5] (and see authorities cited there).
Before an order pursuant to s 7(4) can be made, the threshold requirements in s 5B(a)-(c) must be satisfied. In this case, the threshold requirements have been satisfied. The defendant is an offender who has served a sentence for a serious offence, he is a supervised offender within the meaning of s 5I (see State of NSW v NW at [9]) and an application for the order has been made in accordance with s 5I. The ultimate question is the one posed by s 5B(d) of the Act: is the Court satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision. Consideration of the ultimate question need not be lengthy and does not call for elaborate or lengthy reasons: State of New South Wales v Sturgeon [2019] NSWSC 559, at [16].
[3]
Consideration
In June 2010, after pleading guilty, the defendant was convicted of one count of aggravated indecent assault of a victim under the age of 16 years, contrary to s 61M(1) of the Crimes Act 1900, and eight counts of sexual intercourse with a person under the age of 10 years, contrary to s 66A of that Act. The defendant's offending occurred over a two and a half year period and took place in his family home. He offended against five victims all of whom were siblings. The victims, who were known to the defendant's family, were in his home because they were being looked after by the defendant's mother.
In summary, count 1 involved the touching of the victim's breasts and bottom; count 2 involved digital penetration of the victim's vagina; count 3 involved penile penetration of the victim's anus; count 4 involved fellatio of the victim; count 5 involved penile penetration of the victim's anus; count 6 involved fellatio of the victim; count 7 involved penile penetration of the victim's anus; count 8 involved cunnilingus of the victim; and count 9 involved digital penetration of the victim's vagina. These offences are the index offences for the purpose of the high risk offender application.
Following his release from custody to parole, the defendant was placed on the Child Protection Register. On 3 June 2016, police attended the defendant's home and found a mobile phone which the defendant had not disclosed. A search of the mobile phone revealed that the defendant also had an email address which was undisclosed to police. The defendant was convicted of two counts of fail to comply with reporting obligations whilst on parole, contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2010.
On the same day he was sentenced for breaching his parole, police searched the defendant's mobile phone. The defendant's browsing history revealed a number of child pornography websites had been accessed. During an interview with police, the defendant admitted to accessing and viewing child pornography on his mobile phone. He was convicted of an offence under s 479.19(1) of the Commonwealth Criminal Code.
The defendant has been subject to a number of psychiatric and psychological assessments for the purpose of the various sentencing proceedings and for the State Parole Authority. The most recent assessment was conducted by Dr Richard Parker. In his report of 2 July 2018, Dr Parker concluded that the defendant was "at high risk of committing further sexual offences". Dr Parker observed that the defendant has a self-admitted sexual attraction to children, and that he has been diagnosed as having a paraphilic disorder.
According to a NSW Department of Corrective Services case note of May 19 2018, compiled while the defendant was on parole for the index offences, the defendant informed a Community Corrections officer that although he did not currently have any thoughts to reoffend, he could not guarantee how long it would be before such thoughts returned. According to a case note of 29 May 2019, the defendant disclosed that his church had recently amalgamated a children's and adults' service and that after that happened he began to have thoughts and urges to reoffend. Strategies to distract him from reoffending were suggested.
Based on the foregoing, I am satisfied that if the matters alleged in the material before me were proved, the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. The defendant admits to having a continuing sexual attraction to children, he has been diagnosed as having a paraphilic disorder, he allegedly admitted only last year that he has had thoughts of reoffending and he has been assessed as posing a high risk of reoffending by Dr Parker.
[4]
Orders
I make the following orders:
1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006:
1. That Dr Anthony Samuels and Jenny Howell be appointed to conduct separate examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by a date agreed by the parties;
2. Direct the defendant to attend an appointment with Dr Anthony Samuels at a time agreed by the parties;
3. Direct the defendant to attend an appointment with Jenny Howell at a time agreed by the parties.
[5]
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Decision last updated: 04 September 2019