State of NSW v Russell

State of NSW v Russell - [2009] NSWSC 1081 - NSWSC 2009 case summary — Zoe

[13]

The legal requirements 5 Section 3 of the Act provides: (1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation 6 Section 6 of the Act is in the following terms: (1) The State of New South Wales may apply to the Supreme Court for an extended supervision order against a sex offender who, when the application is made, is in custody or under supervision: (a) while serving a sentence of imprisonment: (i) for a serious sex offence, or (ii) for an offence of a sexual nature, whether the sentence is being served by way of full-time, periodic or home detention and whether the offender is in custody or on release on parole, or (b) pursuant to an existing extended supervision order or continuing detention order, referred to in this Part as his or her current custody or supervision . (2) An application may not be made until the last 6 months of the offender's current custody or supervision. (3) An application must be supported by documentation: (a) that addresses each of the matters referred to in section 9 (3), and (b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence. (4) An application may indicate the kinds of conditions that are considered to be appropriate for inclusion under section 11 in the event that an extended supervision order is made. 7 Section 9 of the Act is in the following terms: (1) The Supreme Court may determine an application for an extended supervision order: (a) by making an extended supervision order, or (b) by dismissing the application. (2) 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 a further serious sex offence if he or she is not kept under supervision. (3) 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. 8 It is clear that s 6 authorises the making of an application for an extended supervision order. The court's power to make such an order derives from s 9(1)(a) of the Act. The test which the court must apply is identified in s 9(2). In Russell (supra) Johnson J made the following observations about the manner in which the test has been interpreted: The words "satisfied to a high degree of probability" constitute the statutory standard of proof which is higher than the civil standard, but lower than the criminal standard: Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27]; Tillman at [5], [18] (Court of Appeal). (the reference is [2007] NSWCA 119).

[17]

The defendant's compliance with obligations cast upon him - s9(3)(f)(g) 14 The defendant has a poor history of compliance with court ordered obligations including breaches of parole, of probation, of good behaviour bonds and of supervision orders. Whilst on probation for the indecent assault offence committed in 1980 he twice committed a series of offences, albeit of a non-sexual nature. I have already referred to the fact that the 1995 sexual assault was committed whilst the defendant was on parole for the 1990 offences. 15 On 10 April 2006 the defendant was placed on a good behaviour bond in the Local Court. On 28 September 2006 the defendant pleaded guilty to failing to comply with his reporting obligations under s 17(1) of the Child Protection (Offenders Registration) Act 2000 (the 2000 Act). The offence arose from his failure to meet his obligation to report to police that he was living at an address in Walgett with a woman, who had children living there who were under the age of 18. On the same date he pleaded guilty to a separate offence under the same legislation which arose from his failure to report his new address and employment details to police. He was given the benefit of suspended sentences for those offences. At the same time other unrelated offences committed on 17 June 2006 were also dealt with by way of suspended sentences. Those particular offences were also committed in breach of the good behaviour bond imposed in April 2006. Whilst still on that bond, the defendant was found guilty of having contravened an apprehended domestic violence order. He was placed on a further good behaviour bond. 16 Shortly thereafter the defendant was convicted of offences of contravening an apprehended domestic violence order and damaging property. As he was still subject to various good behaviour bonds, the defendant was called-up for breaching those bonds. On 1 March 2007 he received an overall head sentence of 12 months imprisonment with a non-parole period of 9 months for those breaches. He was released to parole on 23 November 2007. 17 On 4 August 2008 the defendant was sentenced to 12 months imprisonment with a non-parole period of 6 months after having pleaded guilty to a further offence, committed in April 2008, of having failed to comply with his reporting obligations under the 2000 Act. That offence is described as the "index offence" and arose from the defendant's failure to advise police of his employment details within the required 14 day period. The evidence reveals that the defendant had been observed operating a children's amusement ride at the Newcastle Show. 18 On 3 February 2009 the defendant was released on parole but his parole was again revoked on 16 April 2009 and he was returned to custody the following day. The breach arose because the defendant was absent from his approved place of residence and was discovered to be residing with a friend in premises adjacent to a school. The defendant was released on parole on 12 August 2009.

[25]

The results of any assessments as to the defendant's likelihood of committing a further serious sex offence - s9(3)(c) and (d) 20 In a risk assessment report dated 26 June 2009, Patrick Sheehan assessed the defendant by reference to both actuarial risk assessment (STATIC-99) and dynamic risk factors. He described the defendant's attitude to risk as being ambivalent. He went on to describe the defendant as having good intentions in terms of managing risk but as finding himself easily distracted from his goals and often making impulsive decisions to solve problems without thinking through the consequences. 21 Mr Sheehan scored the defendant as a "7" on the STATIC-99 instrument, thus placing him in the high risk category relative to other adult male sex offenders. The defendant had previously been assessed as being in the high risk category for STATIC-99. 22 Mr Sheehan also assessed the defendant's risk of sexual recidivism by reference to dynamic risk assessment factors and in that context had regard to intimacy deficits, social influences, distorted attitudes, general self-regulation, and sexual self-regulation. 23 Significantly, in terms of distorted attitudes, Mr Sheehan identified the defendant as having endorsed a number of problematic comments such as: Some kids like sex with adults because it makes them feel wanted and loved; Sometimes, touching a child sexually is a way to show love and affection; When kids don't tell that they were involved in sexual activity with an adult it is probably because they liked it or weren't bothered by it; and Some children can act very seductively. 24 Mr Sheehan expressed the opinion that: [t]he above attitudes are problematic as they suggest limited boundaries regarding sexual contact with children. Belief systems such as this would be regarded as treatment targets in the CUBIT program. Given Mr Russell's lack of treatment intervention, it is likely that he has not had the opportunity of assisted examination of these beliefs and may not appreciate that they constitute a risk factor. 25 Mr Sheehan also identified alcohol as being an acute risk factor for the defendant particularly as it has been closely associated with some of the episodes of sexual abuse and other offences of violence for which he has been responsible. Mr Sheehan recommended that, in order to successfully manage the risk posed by the defendant, he should completely abstain from consuming alcohol. I was provided with a document, in the form of chronology, which underscores the extent to which the defendant's dependency upon alcohol has been a feature of his on-going problems with the criminal justice system. 26 Mr Sheehan's conclusion is stated in the following terms: Mr Russell's risk of sexually reoffending is estimated to be in the high risk category relative to other men who have sexually offended. Despite many episodes of encouragement, he has not utilised the opportunity to participate in departmental sex offender treatment programs that may have assisted him to manage his risk and to enjoy an otherwise more adaptive community life. His institutional behaviour is otherwise excellent and he has generated what appear to be some realistic and useful plans for managing himself better in the community. Mr Russell's actual behaviour in the community demonstrates that he has not yet achieved capability in applying his plans in the context of daily life. Episodes of rule-breaking, impulsive decision making, aggressiveness, alcohol intoxication all expose Mr Russell to elevated risk of offending sexually or otherwise and all suggest that a number of dynamic and acute risk factors are still operating. Put simply, Mr Russell has attempted to change his behaviour without changing his behaviour. Ongoing supervision may assist Mr Russell by enforcing that he does not engage in high risk behaviours at times when his own self-management is inadequate. Mr Russell would benefit from ongoing therapeutic assistance to build on any commitment to change that he has already made and to assist him to generalise these intentions and alternative coping strategies to the community, should he be amenable to such intervention. 27 For completeness I should note that in reports created in December 2000 and September 2007 respectively the defendant was also assessed as presenting a high risk of sexual recidivism.

[26]

The additional psychiatric evidence - s9(3)(b) 28 I have received the benefit of very extensive reports from three distinguished psychiatrists. Dr Roberts expressed the following opinion in his report: Based on the information available, it is evident that Mr Russell is to be considered at high risk of sexual recidivism. His risk of re-offending is to be considered particularly high if he were to relapse to alcohol consumption. Mr Russell has acknowledged his sensitivity in this regard. … Two factors which may prove clinically manageable include Mr Russell's volatility and his propensity to consume alcohol, both of which are considered by Mr Russell to be critical to his offending. Other factors such as family and community support, will influence Mr Russell's prognosis. … Information from the documents indicates that alcohol was not an invariable part of his offending. There is however a significant risk to the community conferred by Mr Russell relapsing to previous patterns of conduct, fuelled by alcohol consumption and its disinhibiting effects. Mr Russell has demonstrated a propensity to relapse despite the courses undertaken in custody. … Mr Russell has previously failed to comply with orders, he has difficulty maintaining sobriety and will require extensive therapy to facilitate his reintegration into the community and address issues of sexual offending. Therapy may be compromised if cognitive impairment is confirmed, thereby elevating his overall risk of relapse to alcohol and offending behaviour. It is expected that a period of ongoing therapy of at least five years duration would be required if long-term risk is to be mitigated. On the basis of these factors, it is my opinion that an order of the maximum duration is warranted. 29 Dr Samuels stated his conclusions in the following terms: Thus, taking into account anamnestic clinical risk factors including static, dynamic and protective factors, actuarial risk factors and structured risk assessment, it is my view that Mr Russell is likely to commit a further serious sex offence if released into the community and not kept under supervision. … My major concern from a psychiatric perspective is that Mr Russell is essentially an untreated sex offender, at high risk of relapse from alcohol abuse, with anti-social personality features and that he continues to basically oppose any treatment intervention. I would see his risk of re-offending as therefore being ongoing and the need for some kind of monitoring and supervision to be in place for an extended period. Unless he is willing to accept treatment and there is some demonstrated response to such intervention with concomitant lessening of his risk profile, I would see it as being appropriate that such an order continues for the five-year period. 30 In addition to those reports, Dr Westmore provided a report in which he diagnosed the defendant as having a conduct disorder, which arose in adolescence, as well as having problems with alcohol abuse. He also opined that the defendant had a "psychosexual disorder characterised by aggression and some history of age inappropriate sexual offending". He concluded that he thought that the defendant was "at high risk at this time of further offending, probably at greater risk of non-sexual offending but the risk of further sexual offences cannot be excluded at this time". Having had the advantage of reading the reports of Dr Roberts and Dr Samuels, Dr Westmore observed that "other psychiatric opinions refer to the suitability of extended supervision for five years. This may not be inappropriate however, I am of the view that an earlier review is much more sensible from a clinical perspective". It is common ground, given the limited time that he was given to provide his report, that Dr Westmore did not have all the material which had been made available to Dr Roberts and Dr Samuels. 31 Each of the psychiatrists also addressed particular aspects of the conditions of the order that were initially proposed. As there is no longer controversy about any of them, it is unnecessary to consider those issues any further.

[32]

(e) the defendant is an untreated, high risk sex offender who has declined to undertake the CUBIT program which is designed to assist such offenders. 33 Section 6 of the Act sets out certain threshold criteria each of which I am satisfied that the plaintiff has established. First, at the time the application is filed, the offender must be serving a sentence of imprisonment for "a serious sex offence" or "an offence of a sexual nature". The expression "offence of a sexual nature" is defined by s 5(2)(f) of the Act to include "an offence under section 17 or 18 of the Child Protection (Offenders Registration) Act 2000" which is the offence in respect of which the defendant was serving a sentence at the relevant time. 34 Secondly, the defendant is a "sex offender' within the meaning of s 4(1) of the Act because he has been sentenced to imprisonment following his conviction for a serious sex offence that he committed whilst he was an adult. Finally, the application was brought within the last six months of the defendant's current custody as is required by s 6(2) of the Act. 35 Section 10(1)(b) of the Act provides that an extended supervision order may be made for a period not exceeding 5 years. A second or subsequent order of that character can be made: s10(3) of the Act. Section 13 provides that such an order can be varied or revoked on application by either the State of New South Wales or the offender. 36 As I have indicated, I must now also have regard, pursuant to s 9(3)(b) of the Act, to the reports of Dr Roberts and Dr Samuels. The opinions expressed by the two psychiatrists reinforce my view that it is highly probable that the defendant is likely to commit further serious sex offences if not kept under supervision. In other words I am satisfied that the requirements of s 9(2) of the Act have been established by the plaintiff. In arriving at that conclusion I have applied the test as it is described in the authorities to which I referred earlier. I am of course aware that the test has a different application at this, the final stage of the proceedings. It is apparent that both of the psychiatric experts are also of the view that the proposed conditions are necessary in order that the process of supervising the defendant can be facilitated. I am fortified in the conclusion which I reached about this aspect of the matter by the fact that the defendant does not oppose the orders being made. 37 I accept that making an order in the terms sought by the plaintiff will impact significantly upon the defendant in a number of respects and that the conditions which are proposed are onerous. Nevertheless the psychiatric evidence, as well as the other evidence led on behalf of the plaintiff, is all one way. Moreover, the conditions themselves contain an element of flexibility about them and in any event provide a mechanism for at least some measure of internal review. Importantly, the defendant can avail himself of the remedy provided for in s 13 of the Act to apply at any time to vary or revoke the order. Finally, of course I must keep firmly in mind the objects of the Act. 38 For all those reasons I have reached the conclusion, after having considered the entirety of the material which has been led on this application as well as the submissions advanced on behalf of the parties, that it is appropriate to grant the relief sought by the plaintiff.

[36]

For the duration of the supervision order, the defendant must accept the supervision of the CCG for so long as the CCG is involved in the supervision of the defendant and, for any period that the supervision of the defendant is transferred from the CCG to Probation and Parole, the defendant must accept the supervision of Probation and Parole. 2. The defendant must report personally once a week to the 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 other Departmental officer who may from time to time be allocated to the defendant's case. 4. For the period of the supervision order, the defendant must not commit any offence defined by s 5 of the Crimes (Serious Sex Offenders) Act 2006 as a "serious sex offence" or an "offence of a sexual nature", and must not commit any other offence punishable on conviction by a period of imprisonment of 12 months or more. 5. The defendant must wear such electronic monitoring equipment as may from time to time be directed by the Departmental supervising officer and comply with all instructions given by a CCG 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 the Departmental supervising officer or any other Departmental officer who may from time to time be allocated to the defendant's case. 8. The defendant must not attend public places mainly frequented by children under the age of 16 years including schools, pre-schools, day care centres, amusement parlours and parks, and any other public place as the Departmental supervising 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 16 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 of Corrective Services ("the Commissioner"). 12. (a) The defendant must not possess or consume any alcohol (including any alcohol-based products such as methylated spirits);

[42]

The defendant must undergo a comprehensive assessment (and further assessments from time to time) including medical examination, pathological investigations, psychometric testing and radiological imaging to be conducted and/or arranged 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. 23. 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 must take any anti-psychotic or other psychiatric medication if and as prescribed. 24. Without limiting paragraph 23 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. 25. 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. 26. 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. 27. The defendant must attend consultations with the Area Health Service or CFMHS, at such frequencies, venues and times as directed by his treating clinicians. 28. 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. 29. The defendant must 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. 30. The defendant must forthwith disclose to the Departmental supervising officer the identity of any other medical or mental health practitioner that he consults.

[43]

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. 32. The defendant must consent to his Departmental supervising officer and other Departmental 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. 33. 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. 34. 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. 35. The defendant must not access the internet to view or to download child pornography. 36. The defendant must comply with any direction made by the Departmental supervising officer regarding access to internet by him, and without limitation the Departmental supervising officer may direct the defendant to use on any computer a parental lock or other device or software that may restrict access to or permit access only to certain web sites. 37. The defendant must not attempt to or access the internet by the use of any computer available in any internet café or internet kiosk or other public area without the prior approval of the Departmental supervising officer. 38. 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.

At a glance

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Judgment (45 paragraphs)

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Cases Cited (4)