Attorney General for the State of New South Wales v Boyce (No 2)

[2017] NSWSC 648

Supreme Court

New South Wales

Medium Neutral Citation:	Attorney General for the State of New South Wales v Boyce (No. 2) [2017] NSWSC 648
Hearing dates:	22 May 2017
Date of orders:	26 May 2017
Decision date:	26 May 2017
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	Pursuant to clause 1 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) the defendant is made subject to an extension order for 5 years from 27 May 2017, expiring on 26 May 2022.
Catchwords:	CIVIL LAW – application pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW) – high risk forensic patient – final hearing – application for extension order – application not opposed in principle – question regarding period of supervision – order made
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Interpretation Act 1987 (NSW) Mental Health Act 2007 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 Attorney General for New South Wales v McGuire (No. 2) [2013] NSWSC 288 Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378; [2015] HCA 5 Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 John Fairfax Publications v District Court of NSW(2004) 61 NSWLR 344 Kizon v Palmer (1997) 72 FCR 409 Lynn v State of NSW [2016] NSWCA 57 Osborne v R [2014] NSWCCA 17; (2014) 283 FLR 97 Rinehart v Welker [2011] NSWCA 403
Category:	Principal judgment
Parties:	Attorney General of NSW Wales (plaintiff) Warren Boyce by his tutor Jennifer Thompson (defendant)
Representation:	Counsel: Ms G Wright (plaintiff) Ms S Kluss (defendant)   Solicitors: Crown Solicitor’s Office NSW (plaintiff) Legal Aid NSW (defendant)
File Number(s):	2017/16287
Publication restriction:	No

Judgment

1. HER HONOUR: Warren Boyce is an intellectually disabled man with a long history of sexual offending against children. The Attorney General contends that the risk he poses is such that he ought to be made subject to an extension order under the provisions of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”). An order pursuant to clauses 1 and 7(1)(a) of Schedule 1 of the Act is sought, making the defendant the subject of an extension order for a period of 5 years.

2. The defendant is presently subject to an interim extension order consequent upon orders made by Davies J on 24 February 2017. That order, as extended, expires at midnight on 26 May 2017, at which time the defendant will – if no further orders are made – be released from custody unsupervised into the community.

3. The matter came on for final hearing of the Attorney’s application before me on 22 May 2017. As is not uncommon, the Attorney has tendered a considerable volume of documentary evidence in support of its case. No oral evidence was called. Given the amount of material, and the shortness of time, it is not proposed to refer to each document tendered to the Court, but to focus on those of most significance in determining the application.

4. The defendant, by his tutor, does not dispute that the voluminous evidence establishes a basis upon which the Court could conclude that an extension order ought be made. He contends, however, that the period of the extension order should be one of 3 years, rather than the 5 years sought by the Attorney.

Background to the Application

5. Until 4 March 2017 the defendant was in custody subject to an overall limiting term of 3 years and 6 months which was imposed upon him by the Newcastle District Court on 6 October 2015, after he was found guilty on the limited evidence available at a special hearing of two offences. The offences are aggravated act of indecency contrary to s 61O(2) of the Crimes Act 1900 (NSW) and fail to comply with reporting obligations contrary to s 17 of the Child Protection (Offenders Registration) Act2000 (NSW).

6. The index offences occurred on 5 September 2013 at a time when the defendant, who was born on 12 November 1955 (or, according to some documents, 1956), was aged 56 or 57 years. He was living in a caravan park in the Swansea area at that time, camping in a tent.

7. The victim of the s 61O(2) offence had come to the caravan park with his family for a short vacation. He was aged 5 years at the time and had two younger siblings. The victim’s family camped at a site some 80 metres away from the defendant’s campsite, with nothing intervening between the two. The defendant initially spoke to the family in the context of assisting them to start a car, the battery of which had been flat. Thereafter, he spoke to both the adults and children in the family and, on one occasion, he brought the children a bag of lollies. Promising more lollies if the children were “good”, the defendant later asked them to help him clean his car.

8. The defendant gained the consent of the adults by offering to give them “a break” [from the children]. The children’s parents allowed them to go with the defendant to his campsite to help with the cleaning. After a short time the two youngest children returned to the family campsite, but the victim did not. His mother walked to the defendant’s camp looking for him. Looking into the defendant’s tent she saw the defendant lying on his back on a mattress with his track pants pulled down and his erect penis exposed. He was looking at the victim who was near him and who also had his pants down. The defendant was masturbating. The victim’s mother confronted the defendant and he pulled his pants up and fled. He was later arrested.

9. As the defendant had previously been convicted of a child sexual assault offence he was a registered person pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW) and was obliged to advise police of his residential address and other information. The defendant had not provided this information to police. When asked about it, he said that he had intended to notify police of his address when completing an annual report.

10. The defendant having been found unfit to be tried for these offences, the matter proceeded as a special hearing. On finding that the defendant committed the offences on the limited evidence available, Ellis DCJ imposed two limiting terms upon the defendant: a term of 12 months for the registration offence, and 3 years for the s 61O(2) offence. The overall term of 3 years and 6 months commenced on 5 September 2013, that being the date of the defendant’s arrest, and the date on which he went into custody.

11. Previous to these proceedings the defendant had been before the Courts with some regularity. His criminal history commenced in 1979 with a stealing offence, dealt with without conviction pursuant to (the now repealed) s 556A of the Crimes Act. Thereafter, the defendant appeared (principally) before the Local Court with some frequency, commonly for driving offences.

12. In November 1980 the defendant was placed on a 5 year recognisance pursuant to (the now repealed) s 558 of the Crimes Act for an offence of indecently assaulting a female under 16 years. He was obliged to accept the supervision of the Probation and Parole Service.

13. The defendant’s criminal history (Ex. MA-1.1) reveals that he repeatedly breached that bond, with driving and dishonesty offences. The breaches were so numerous that eventually the defendant received a custodial sentence for breaching the recognisance, with a 6 month term imposed in September 1983. On release from prison, the defendant continued to offend, being convicted of numerous drive whilst disqualified offences, and larceny and other dishonesty offences.

14. In November 1995 the defendant was convicted of common assault, and in March the following year he served prison sentences for break enter steal and failing to appear. The driving offences continued.

15. In September 1997 the defendant was charged with two counts of aggravated sexual assault (person under 16) but the Director of Public Prosecutions determined not to prosecute the matters.

16. In May 1998 the defendant was placed on supervised recognisances for 2 years for common assault, and for 3 counts of indecent assault (Ex. MA-1.45). He was later called up for breaching the recognisances and, after initially failing to appear to answer the breaches, he was ultimately dealt with by the imposition of further bonds, for 1 year pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1995 (NSW).

17. In 2001 the defendant was charged with a number of sexual offences against a child (Ex. MA-1.27 and 28), but he failed to appear at his trial in July 2002 and bench warrants issued for his apprehension. On apprehension the defendant was convicted and sentenced to terms of imprisonment, for 3 years for an offence of homosexual intercourse with a male 10 – 18 years, and further shorter terms for act of indecency with male under 18 years, and indecent assault with person under 16 years. The male victim, a family member, was aged between 3 or 4 years and 17 years at the time of the offences, which were representative of an ongoing course of conduct (Ex. MA-1.32).

18. The defendant became a registered child sex offender as a consequence of these offences. Thereafter, he was subject to reporting obligations.

19. Upon his release from prison the defendant resumed driving in such a way as to attract the attention of the criminal law. He served further terms of imprisonment.

20. In November 2006 the defendant was charged with his first offence of failing to comply with reporting obligations, being ultimately discharged pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). He continued to be charged as a disqualified driver, for the most part being dealt with by way of bonds or short prison terms.

21. In January 2009 and again in May of that year he was convicted and sentenced (to terms of 1 month imprisonment) for failing to comply with reporting obligations. In July 2010 a 12 month supervised bond was imposed on the defendant for the same offence, requiring him to submit to the supervision of both the Probation and Parole Service and the NSW Department of Aging and Disability for as long as those services deemed necessary within the currency of the bond.

22. Generally, the defendant has not responded well to supervision, breaching most bonds he has been subject to (Exs. MA-1.1; MA-1.76). As his criminal record makes clear, he has frequently failed in reporting obligations.

23. In September 2013 the defendant appeared before the courts as a consequence of being charged with the index offences. He has remained oin custody. Since being incarcerated, the defendant has faced at least one allegation of sexual assault of another inmate, being an allegation of fondling the genitalia of a seriously disabled inmate on 3 December 2015 (Ex. MA-1.3, p.35). In relation to that matter it seems that no charges were laid because of the cognitive difficulties experienced by both the alleged victim and the defendant.

24. Corrective Services records note that the defendant has engaged in inappropriate sexual behaviour around and towards other inmates, including masturbating in front of other prisoners. His conduct has been described as “bordering on predatory” (Ex. MA-1.113 at p.629).

25. On 5 May 2017 the Mental Health Review Tribunal (“MHRT”) approved conditional release for the defendant for placement in an intensive residential facility in a rural area. Acceptance of anti-libidinal medication is a condition of the release, should it be prescribed to the defendant by a medical practitioner.

The Application

26. During his incarceration, on 12 November 2015, the Mental Health Review Tribunal determined pursuant to s 24 of the Act that the defendant had an intellectual disability, but was not mentally ill. It ordered that he be detained in the Additional Support Unit at Long Bay. Because the defendant is the subject of a limiting term and was detained in custody pursuant to an order made under s 24 of the Act, he is a “forensic patient” within the meaning of the definition of that term in s 42 of the Act.

27. Section 54A of the Act gives power to the Court to extend a person’s status as a forensic patient in accordance with Schedule 1 to the Act.

28. The test for making an extension order is set out in cl 2 of Sch 1 as follows:

“2 Forensic patients in respect of whom extension orders may be made

(1)   A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that:

(a)   the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and

(b)   the risk cannot be adequately managed by other less restrictive means.

(2)    The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.”

29. That language mirrors the language employed in the Crimes (High Risk Offenders) Act 2006 (NSW). The interpretation of that Act and relevant authorities are thus of assistance in interpreting and applying the provisions of the Act. The phrase “high degree of probability” used in cl 2(1) has the meaning of the corresponding phrase in the Crimes (High Risk Offenders) Act. See generally Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21].

30. The phrase “unacceptable risk” also has the same meaning as in the Crimes (High Risk Offenders) Act. See Lynn v State of New South Wales [2016] NSWCA 57. The phrase “adequately managed” has been held in Attorney General for New South Wales v McGuire (No. 2) [2013] NSWSC 288 to mean:

“...that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community” (at [63]).

31. “[O]ther less restrictive means” is not defined in the Act.

32. There is no dispute that the defendant is a forensic patient who can be made the subject of an extension order in that there is evidence which is capable of establishing that he poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient, and that the risk cannot be adequately managed by other less restrictive means.

33. Section 40 sets out the objects of Part 5 of the Act which deals with forensic patients. They are:

“(a)   to protect the safety of members of the public,

(b)   to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition,

(c)   to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders,

(d)   to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment,

(e)   to give an opportunity for those persons to have access to appropriate care.”

34. The Attorney submits that only by making the defendant subject to an extension order for 5 years can all of these objects, and particularly the protection of the community, be met. The defendant submits that any extension order should not be for a period of more than 3 years, that being adequate to provide access to rehabilitative programmes directed to his sexual offending. It is noted that the Attorney could make a further application at the expiration of a 3 year order if that were considered necessary: cl. 8.

35. In considering whether to make the orders sought the Court must have regard to those matters set out in Clause 7(2) of Schedule 1, as well as to any other relevant matter.

The Expert Reports

36. Professor Susan Hayes, forensic psychologist, saw the defendant at the request of the Court on 5 April 2007. She had some previous knowledge of him, having assessed him on 13 March 2007 in relation to criminal proceedings (Ex. MA-1.99), and was comprehensively briefed for present purposes.

37. Professor Hayes interviewed the defendant at the Long Bay Correctional Centre, in a visitor’s yard. She thought he looked older than his age, and regarded him as a poor historian. The defendant was generally cooperative although he avoided answering questions on topics relating to his sexual offending and the risk of future offending.

38. The professor took a history from the defendant, supplemented by information obtained by her during the 2007 consultation, and the documentary material with which she was briefed. The defendant was born in Newcastle and is of Aboriginal heritage. His father died when he was aged 2 (or 7 on some accounts), and his mother placed him in institutional care in Victoria at age 7. He has two brothers and a sister but has no contact with them.

39. The defendant attended school until he was 16 (or 19) years old, but told Professor Hayes that he did not learn much. After leaving the institution he had been accommodated in, probably at age 19, the defendant returned to Newcastle to live with his maternal grandmother. He has lived in the wider Newcastle area since then, when not incarcerated.

40. The defendant claimed to have been thrice married, and to have a son now aged about 28 from one of his marriages.

41. On 22 December 2016 a guardianship order was made for a period of 18 months. The guardian has functions with respect to accommodation, advocacy, health care, medical and dental consents, and services.

42. As to his offending past, the defendant claimed only to have had driving offences. When asked directly if he had committed sex offences he said that he did not know. He denied the sex offences he was previously charged with.

43. On formal testing using the Kaufman Brief Intelligence Test Second Edition, the defendant achieved results that indicate he functions in the range of mild intellectual disability, at a level lower than 99.7% of his peers. There was a significant difference between his verbal and non-verbal abilities. In comparison with his results in 2007 the defendant’s verbal skills are at a similar level although his non-verbal skills have declined, possibly due to ageing, or poor diet, or other health or environmental factors.

44. Another test, the Vineland Adaptive Behaviour Scales – II, tests adaptive behaviour. The defendant returned results for this test which place him in the range of severe intellectual disability for skills of adaptive behaviour. Expressed as an age equivalent, the defendant displays communication skills the equivalent of a 4 or 5 year old, domestic daily living skills the equivalent of a 15 year old, and socialisation skills (interpersonal relationships) the equivalent of a 6 year old.

45. In terms of risk assessment Professor Hayes referred to some of the documentary material (also before this Court) to note that the defendant is regarded as at a high risk of reoffending relative to other male sex offenders, an assessment with which she agreed. She noted some possible protective factors, but thought no firm conclusions could be drawn in that regard. Overall, Professor Hayes thought that the defendant’s intellectual disability increased his risk of reoffending because of the significant deficits he has in the ability to foresee consequences. She noted:

“There appears to be no change to his sex offending behaviour over a period of many decades, or to his lack of victim empathy and denial. He is consistently rated by clinicians, including myself, as posing a high risk of further sexual re-offending.”

46. She thought it was possible that the defendant has paraphilia but noted that the diagnosis could not be made because of the dearth of information about some aspects of the defendant’s sexuality, given his refusal to speak of such matters.

47. Regardless of any paraphilic disorder, Professor Hayes is of the opinion that the defendant “poses a risk of causing serious harm to others if he ceases to be a forensic patient” (Ex. A, p. 13). That is a risk which Professor Hayes appears to regard as largely static. She said:

“In the past, Mr Boyce has been non-compliant with treatment and appointments for supervision. There appear to have been few successful attempts to engage Mr Boyce in any interventions for his offending behaviour and general lifestyle factors. The most consistent supervision has been when he has been in custody, but even in this situation it has not been possible to engage him in programs to address his offending behaviour, with the exception of some one-to-one psychological counselling sessions. Mr Boyce’s lack of insight into the need to engage in programs and to attempt to alter his offending behaviour are factors which are partly related to his intellectual disability and impulsivity.”

48. Referring to risk management strategies, the professor concluded that supervision needs to be intensive, and any sex offender programmes ought be of at least two years duration for optimal results in reducing recidivism. She is of the opinion that the defendant’s status as a forensic patient needed to be continued, because the risk of him causing serious harm to others could not be adequately managed by other less restrictive means.

49. As to the length of time over which the defendant should remain a forensic patient, Professor Hayes said:

“Given the unknown and unpredictable factors described in detail above in this report, and taking into consideration the research on duration of treatment for optimum results with sex offenders with an intellectual disability and Mr Boyce’s reluctance to engage in therapeutic interventions, I consider that an appropriate period for an extension order would be at least three years.”

50. Ms Chelsea Dewson, also a forensic psychologist, saw the defendant on 30 March 2017 at the Long Bay Complex. She noted his presentation as dishevelled and unkempt but thought he engaged easily in interview. Like Professor Hayes, Ms Dewson was exhaustively briefed, reviewing much of the material in her report (Ex. B). It is not intended to deal with every aspect of her report here.

51. Referring to the documentary material from the Probation and Parole Service, Ms Dewson noted that the defendant was first reported as having a level of intellectual disability in 1981. References to him as “almost illiterate”, “bordering on retardation” and the like continued to be made in Probation and Parole reports throughout the defendant’s encounters with that Service. Professor Hayes placed the defendant in the mild to moderate level of intellectual disability in 2007. Dr Seidler in 2014 concluded that the defendant’s performance on various tests was commensurate with that of a 5 year old child. Dr Morgan, also in 2014, concluded that the defendant’s intellectual disability is enduring and has been there since a young age. In March 2014 the MHRT concluded that the condition is a continuing one with no evidence to suggest that it will either improve or deteriorate. It is regarded as a permanent condition.

52. Ms Dewson noted that the defendant’s risk of reoffending has been assessed as high.

53. In her interview with the defendant, Ms Dewson took a history from him, including a history of his offending. The defendant acknowledged having committed traffic related offences, and some larceny offences when he was “young and stupid”, but he denied involvement in sexual offences. The defendant only acknowledged having “stuffed up” and made “mistakes” in the past. He stated that he sometimes “walked around naked” and sometimes “pulled” his “dick”, but he was not able to identify this as potentially offending behaviour. Ms Dewson concluded that the defendant accepted little personal responsibility and showed no contrition (Ex. B, report of 20 April 2017 at [38]). He flatly denied commission of the index offences.

54. Like Professor Hayes, Ms Dewson found the defendant a poor historian, giving inconsistent accounts of events, including his childhood circumstances. He described his father’s death due to a terrible workplace accident, and his own trauma at witnessing the event, or being at the scene soon after, (improbably) leading to the defendant falling into a coma for three years. He also described himself as going “berserk” and “out of control” after this event and attributed his bad behaviour to his mother’s decision to commit him to an institution.

55. He described his education as difficult and said that he found it hard to read and write. He is functionally illiterate. The defendant claimed to have undertaken various jobs over the years, including as a fishing hand, but he has not been meaningfully employed for at least 40 years. He was formerly in receipt of the Disability Support Pension.

56. The defendant reported being socially isolated, with no long term friendships, and experiencing feelings of exclusion and alienation. The defendant said that he finds it easier to make friends with children, and had formed friendships in the past. Rather chillingly, given his offending history, the defendant told Ms Dewson, “kids love me and I love them” (Ex. B, report of 20 April 2017 at [55]). He has no contact with or support from family.

57. The defendant gave an account of his (non-offending) sexual life but Ms Dewson thought it may be untrustworthy. Based on that account she concluded that there was no evidence of hyper sexuality, and the defendant had a libidinal level which was normal. He denied sexual attraction to children, and denied having sexually assaulted other inmates in the prison, even though he was aware that he had been moved from the Additional Support Unit because of allegations of sexual assaults by him.

58. The defendant denied any psychological disorder.

59. Ms Dewson administered the Static-99R to assess the defendant’s relative degree of risk. Test results placed him in a risk category of being above average risk for sexual reoffending (Ex. B, report of 17 May 2017). She noted however that the Static-99R had some limitations and should be used with caution. Another risk assessment tool, the Risk for Sexual Violence Protocol (“RSVP”) judges both static and dynamic risk factors. Taking into account relevant risk and protective features, Ms Dewson concluded on the RSVP test that the defendant poses a high risk of reoffending. She said:

“Mr Boyce’s primary risks relate to deficits in sexual self-regulation, and characteristics related to sexual deviance have been found to be the strongest predictor of sexual recidivism. Further, he appears to experience social isolation, intimacy deficits and poor general self-regulation. Given the nature of Mr Boyce’s offending, it seems most likely that Mr Boyce’s risk in the future will be for offences against a child, that is manipulating the environment or individuals to create a situation where he is alone with a child, and then offending sexually against them. The age and gender of the child is unlikely to be a consideration for Mr Boyce when potentially selecting future victims, but rather any child with whom he has the capacity to isolate when he is experiencing sexual arousal. Although physical violence has not been a central factor in Mr Boyce’s offending, he has become physically violent and made attempts to retain a victim in the past, and thus the possibility of physical coercion in the future cannot be ruled out. If Mr Boyce is unable to access children, it is possible that he may commit sexual offences against vulnerable adults. Based on the information provided, Mr Boyce appears to have minimal insight into factors relating to his risk, nor into means through which he could potentially mitigate them. He is reportedly willing to be compliant with supervisions orders, however, demonstrated no insight into intrinsic means by which he may manage his behaviour. Based on this, it is assessed, in my opinion, that Mr Boyce is a High risk of reoffending should he be released into the community.” (Emphasis in original.)

60. Ms Dewson thought that the defendant demonstrated little insight into the risks he may pose, or potential risk mitigation strategies, and considered that the risk he posed was likely to remain stable.

“Mr Boyce’s dynamic risk factors appear more stable (entrenched) and thus, in my opinion, are unlikely to change without considerable effort from Mr Boyce and engagement in an intensive therapeutic program. Based on this, I predict that Mr Boyce’s risk will remain stable at the level identified in this report.”

61. Given the nature of the risk posed by the defendant Ms Dewson did not believe that the defendant could be managed in a less restrictive environment. She recommended that he be subjected to close supervision including monitoring his interactions with others and “line of sight” supervision. Overall, Ms Dewson was of the view that the defendant poses an unacceptably high risk to the community absent his management as a forensic patient. She noted that he has failed to demonstrate a capacity to regulate his own behaviour in either the community or in prison and, given the nature of offending and the level of risk, she recommended that the defendant continue as a forensic patient for a period of 5 years.

Risk Assessment and Risk Management

62. Mr Samuel Ardasinski, forensic psychologist, prepared a risk assessment report dated 24 June 2016 (Annexure C to Affidavit of Matthew Ashworth sworn 19 January 2017). It is relied upon by the Attorney for the purposes of cl 6(5) and cl 7(2)(b).

63. Like Ms Dewson, Mr Ardasinski administered the Static-99R and RSVP tests, similarly concluding that the defendant is at high risk of re-offending. Indeed, he considers that the likelihood of the defendant reoffending if living rough and unsupervised is “chronically high” (Annexure C to Affidavit of Matthew Ashworth of 17 January 2017, dated 24 June 2016, at [36]). The defendant’s intellectual disability contributes to risk, as he lacks any internal mechanism to regulate his conduct. Additionally, his cognitive deficits are such that he is unable to socialise with adults and identifies emotionally with children. Conversely, and also increasing risk, the defendant has the capacity to engage well enough with adults to gain access to their children.

64. Mr Ardasinski considers it likely that the defendant will accept the supervision of the Community Justice Programme as provided by the Department of Ageing, Disability and Home Care, at least as far as is necessary to gain his release from prison. He opines that there remains a risk that, if the defendant is frustrated by the supervision, absent status as a forensic patient he would simply be able to abandon it and return to an itinerant lifestyle, with all of the attendant risks of sexually reoffending against children.

65. Other reports in the material relied upon by the Attorney, such as that of Ms Kristen Willis of 24 November 2016 (Ex. MA-2.5), Ms Laura Durkin of 6 August 2016 (Ex. MA-2.10) and 13 February 2017 (Ex. MA-2.2), and Ms Olivia Munn of 13 March 2017 (Ex. NS-1) are in the same vein. The defendant is regarded by those with the expertise to assess him as at high risk of reoffending, in particular against children.

66. The alternative to close supervision as a forensic patient is for the defendant to be in the community with a guardian to assist him with life decisions, aided by the support of a Community Justice Programme. The opinion of the experts is, generally, that the defendant is unlikely to accept supervision unless he is compelled to do so, and the risk he poses in the community without close supervision is very high.

Consideration

67. As is implicit in the concession made on behalf of the defendant, there is an overwhelming weight of evidence to establish that Mr Boyce poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and that risk cannot be adequately managed by means less restrictive than continuing his status as a forensic patient.

68. Expert after expert has referred to the high risk of sexual offending that the defendant constitutes, in particular to children, but also to vulnerable adults if access to children is not available. Indeed, the need for “line of sight” supervision is referred to by a number of those experts consulted, as necessary to adequately manage the risk posed by the defendant.

69. On all of the evidence, I am satisfied to the necessary standard that the only available means of providing proper supervision of the defendant, and thus reducing the risk that he will reoffend, particularly sexually, is by extending his status as a forensic patient. Only by that means can the defendant additionally be provided with support and access to therapeutic and other necessary programmes.

70. The real question is the length of the order. Having considered the competing submissions from the parties, and considering the evidence, I accept the Attorney’s submission that an order of 5 years duration is necessary.

71. As is clear on the evidence, the defendant’s disability is enduring and largely static. Intellectual disability, unlike a mental illness, cannot be treated by medication, and there is no prospect of “recovery”. It cannot be expected that the defendant’s cognitive impairment will improve over time to the extent where he no longer poses a risk. Indeed, he is likely to continue to constitute a high risk to others of sexual offences until such time as age and infirmity make it impossible for him to offend.

72. In some regards the defendant represents a perfect storm: his disability is such that he has no insight into the risk he poses to others, and cannot regulate his own conduct, although he is not so impaired as to be incapable of the sort of calculating behaviour that was reflected in his conduct during the index offences. The defendant had sufficient cunning to ingratiate himself with the parents of his victim and secure their consent to his taking the children away, but not enough self-awareness to manage his own impulses in such a way as to comply with the criminal law.

73. Since the prospects of the defendant accessing a sex offenders’ programme suitably tailored to his level of cognition, and learning how to manage his behaviour from any such programme, seems bleak, the risk he poses must be a long-term one. That is particularly so in circumstances where the defendant continues to deny the commission of any sexual offence, and has demonstrated poor response to supervision in the past.

74. Professor Hayes concluded that at least 3 years was necessary for the defendant to be actively supervised. Ms Dewson in her unchallenged evidence considered that the risk was such that 5 years was essential for that purpose.

75. Having regard to the enduring nature of the defendant’s disability I accept Ms Dewson’s recommendation in that regard and propose to grant the relief sought in prayer 3 of the summons filed on 17 January 2017.

The Question of Publication

76. At the hearing of this matter the defendant sought permanent orders pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Suppression Act”) going to non-publication of the following:

“a   The Patient’s current residence and future residence;

b   The geographic location of the Patient’s residence;

c   Information on treatment relating to the Patient;

d   Information relating to rehabilitation activities undertaken by the Patient whilst either in a correctional centre or in the community;

e   The Patient’s name in these proceedings be referred to by a pseudonym; unless it be necessary to reveal his name to any person for the purpose only of the proper preparation and presentation of the proceedings;

f   that no access be granted to any third party to the Court file in these proceedings without the parties first having an opportunity to be heard in relation to the granting of such access.

g   Any information pertaining to any uncharged allegations or offences.”

77. The Crown opposes any non-publication order as unnecessary.

78. Section 7 of the Suppression Act provides:

“7   Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:

(a)     information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b)     information that comprises evidence, or information about evidence, given in proceedings before the court.”

79. That power may be exercised as provided by s 8:

“8   Grounds for making an order

(1)     A court may make a suppression order or non-publication order on one or more of the following grounds:

(a)     the order is necessary to prevent prejudice to the proper administration of justice,

(b)     the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c)    the order is necessary to protect the safety of any person,

(d)     the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e)     it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2)   A suppression order or non-publication order must specify the ground or grounds on which the order is made.”

80. Section 9 provides the procedure for making an order and s 12 provides for the duration of any order.

81. Any court considering making a suppression or non-publication order must take into account the matters referred to in s 6, which provides:

“6   Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.”

82. By virtue of s 7, the only grounds upon which an order may be made under the Suppression Act are those specified in s 8(1). Here, the defendant submits that grounds as provided by s 8(1)(a), (c), and (e) are relevant. Those provisions each require that the order must be “necessary” to achieve the particular end.

83. The meaning of “necessary” was considered in Rinehart v Welker [2011] NSWCA 403 at [27], per Bathurst CJ and McColl JA, where it was said that,

“[t]he operative condition for making a suppression order under s 8 of the [Suppression] Act is that it be ‘necessary’ to do so, which ‘... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ... ‘suggests Parliament was not dealing with trivialities’: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commission were made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act) did not contain a provision in like terms to s 6 of the [Suppression] Act. That provision, in our view, reinforces the legislative intention that [Suppression] Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW (at [21]).”

84. In John Fairfax Publications v District Court of NSW (2004) 61 NSWLR 344, Spigelman CJ said, at [21], that:

“From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, e.g. RaybosAustralia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D-E and 54G.)”

85. In Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378; [2015] HCA 5 the High Court said at [44]:

“The rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances.”

86. The test to be applied then, is a stringent one.

87. The defendant contends that, as a forensic patient, the protection provided by s 162 of the Mental Health Act 2007 (NSW) applies to this judgment and any publication of it or its contents. That provision is in the following terms:

“162   Publication of names

(1)     A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a)     to whom a matter before the Tribunal relates, or

(b)     who appears as a witness before the Tribunal in any proceedings, or

(c)     who is mentioned or otherwise involved in any proceedings under this Act or the Mental Health (Forensic Provisions) Act 1990, whether before or after the hearing is completed.

Maximum penalty:

(a)    in the case of an individual—50 penalty units or imprisonment for 12 months, or both, or

(b)     in the case of a corporation—100 penalty units.

(2)     This section does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3)     For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or material that identifies the person or is likely to lead to the identification of the person.”

88. Also relevant is s 189 of the Mental Health Act which provides,

“189   Disclosure of information

(cf 1990 Act, s 289)

(1)    A person must not disclose any information obtained in connection with the administration or execution of this Act or the Mental Health (Forensic Provisions) Act 1990 or the regulations unless the disclosure is made:

(a)     with the consent of the person from whom the information was obtained, or

(b)     in connection with the administration or execution of this Act or the Mental Health (Forensic Provisions) Act 1990, or

(c)     without limiting paragraph (b), to a designated carer or principal care provider of a person in connection with the provision of care or treatment to the person under this Act or the Mental Health (Forensic Provisions) Act 1990, or

(d)     for the purposes of any legal proceedings arising out of this Act or the Mental Health (Forensic Provisions) Act 1990 or the regulations or of any report of any such proceedings, or

(d1)     for a purpose referred to in health privacy principle 10(1)(f) (research) under the Health Records and Information Privacy Act 2002, or

(e)     with other lawful excuse.

Maximum penalty: 50 penalty units.

(2)     A person is not required to comply with subsection (1) if non-compliance is necessarily implied or reasonably contemplated under an Act or law.”

89. Whilst the spirit of those provisions may be of some relevance, I do not accept that the letter of them applies to this Court, if for no other reason than that a court is not a “person”. Section 21 of the Interpretation Act 1987 (NSW) defines “person” as including an individual, a corporation and a body corporate or politic. Whilst that definition is inclusive and not exclusive, there is authority that “person” in the parallel Federal context does not extend to a court: Kizon v Palmer (1997) 72 FCR 409 at 430 – 31; Osborne v R [2014] NSWCCA 17; (2014) 283 FLR 97.

90. Further, it is apparent that those provisions apply to proceedings before the MHRT and not to proceedings before this Court. Accordingly, the question of whether non-publication orders should be made falls to be decided under the Suppression Act.

91. The defendant contends that the grounds referred to in s 8(1)(a), (c) and (e) are made out. It is argued that, without a non-publication order from this Court, the protection ordinarily afforded to the defendant by s 162 of the Mental Health Act would be “stripped away”, and his protection, rehabilitation, and potentially the availability of suitable accommodation for him would be jeopardised. It is submitted that the defendant’s interest to privacy in these things outweighs the public interest in open justice.

92. The defendant relies upon Ex. 1, tendered on the application for a non-publication order. Ex. 1 is an e-mail chain amongst staff of the Legal Aid Commission which attaches the text of an article published in the Daily Telegraph on 1 April 2017 headlined, “Mental Act review demand: Telegraph calls for changes to law that allows details suppression”. The first few sentences give the flavour of the article:

“HUNDREDS of the state’s most vile and vicious criminals are being secretly protected by the state – with their fate and whereabouts unknown.

Under secretive laws designed to protect criminals deemed to be mentally ill – many of them killers and rapists – all details about their treatment and incarceration are suppressed, including the identity of their victims.”

93. The article goes on to refer to the “extraordinary powers” of the MHRT to “protect killers”, asserting:

“Strict reporting rules mean this newspaper is not allowed to elaborate on even basic details – like who these offenders are, which suburbs they are being released into, and even who their victims are.”

94. It complains, “[T]he tribunal is shrouded in so much secrecy”. The article goes on to set out the Telegraph’s “campaign” for legislative amendment such that proceedings before the MHRT would be made “more transparent”.

95. There is no evidence that the Daily Telegraph or any other media organisation has taken an interest in the defendant’s case, and no journalists from any news agency were present in Court during the hearing before me.

Consideration

96. A material consideration when determining whether a non-publication order is necessary is the fact that no order has been made to date and, to some extent at least, information pertaining to the defendant is already in the public domain: Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144.

97. Much of the evidence that was before me is also in the public domain, in that those aspects of it previously tendered before the criminal courts relevant to the defendant are not suppressed or the subject of any non-publication order.

98. The only evidence before this Court that has not been referred to in a public judgment of this Court, or tendered to another court and made part of the public record, are Exhibits A and B, and some of the material that was before the MHRT from time to time when a review of the defendant’s case has been conducted. The latter material is protected by the statutory non-publication provisions which the Telegraph decries in the exhibited article. Exhibits A and B, whilst not subject to the same protection, contain nothing new or different to expert opinion already referred to and summarised in the published judgment of Davies J at an interim stage of these proceedings.

99. There is thus a real question mark over the utility of any order, a feature that militates against its making.

100. I am also conscious of the limited evidence advanced by the defendant. Whilst there is evidence of a single article from a media outlet calling for amendments to the provisions governing proceedings before the MHRT, there is no evidence that any media agency has taken an interest in the defendant’s case, or wishes to publish information about him, or poses any sort of risk to him. Even if there were an agency wishing to make the defendant’s circumstances public, those parts of the evidence before this Court that are not already in the public domain, or similar in content to such material, are protected by ss 162 and 189 of the Mental Health Act.Details of the defendant’s proposed residence and the like are not referred to herein and I do not consider publication of this judgment to constitute a risk to the defendant’s safety or future rehabilitation.

101. Accordingly, I am not persuaded that a non-publication order is necessary on any of the three grounds relied upon.

orders

1. Pursuant to clause 1 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) the defendant is made subject to an extension order for 5 years from 27 May 2017, expiring on 26 May 2022.

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Decision last updated: 26 May 2017