Attorney General for the State of New South Wales v Steadman
[2013] NSWSC 170
•07 March 2013
Supreme Court
New South Wales
Medium Neutral Citation: Attorney General for the State of New South Wales v Steadman [2013] NSWSC 170 Hearing dates: 15 February 2013 Decision date: 07 March 2013 Jurisdiction: Common Law Before: Button J Decision: (1) Pursuant to s 9(1) of the Crimes (Serious Sex Offenders) Act 2006, the defendant is subject to an extended supervision order that commences today, 7 March 2013, and expires after 3 years.
(2) The conditions of the extended supervision order are those contained in the amended schedule filed by the plaintiff on 4 March 2013.
Catchwords: CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - application for an extended supervision order - order not opposed except for duration - independent assessment of criteria contained in s 9(3) - defendant unwilling to undergo rehabilitation - defendant high-risk of re-offending - order imposed for 3 years Legislation Cited: Crimes (Serious Sex Offenders) Act 2006 Cases Cited: State of New South Wales v Bastian [2011] NSWSC 641
State of New South Wales v Conway [2011] NSWSC 925
State of New South Wales v Darrego [2011] NSWSC 1449
State of New South Wales v Richardson (No. 2) [2011] NSWSC 276
State of New South Wales v Russell [2009] NSWSC 810
State of New South Wales v Scerri [2012] NSWSC 271
State of New South Wales v Watson [2011] NSWSC 1692
Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; (2007) 178 A Crim R 133Category: Principal judgment Parties: Attorney General for the State of New South Wales (P)
Robert Stanley Steadman, also known as Robert Stanley Stanton (D)Representation: Counsel:
G Denman (P)
P Johnson (D)
Solicitors:
Crown Solicitor's Office (NSW) (P)
Legal Aid NSW (D)
File Number(s): 2012/346094
Judgment
The plaintiff moves upon an amended summons seeking an extended supervision order ("the order") with regard to the defendant pursuant to the Crimes (Serious Sex Offenders) Act 2006 ("the Act").
The defendant was represented by a solicitor and counsel at the hearing. It was made clear that the defendant does not wish to be heard against the propositions that various necessary matters fall within the definitions contained in the Act; that the test in the legislation that is a precondition for the making of such an order has been made out; and that the order should be made. The only point of dispute between the parties requiring determination by me is as to the duration of the order. The plaintiff submits that it should be for 5 years. The defendant submits that it should be for 3 years. Due to the fact that, in truth, the only matter in dispute is whether the order should extend for an extra 24 months, I can be briefer than if the making of the order were comprehensively disputed by the defendant.
A number of minor disputes between the parties as to the precise conditions of the order were resolved before and during the hearing. After the end of the hearing, the plaintiff filed on 4 March 2013 an amended schedule that reflects the resolution of those disputes and contains the precise conditions of any order that I would make.
Review of evidence
Convictions
The defendant was born in March 1994, and has just turned 69. He was first convicted of a criminal offence in 1953, when he was dealt with for three charges of stealing in a Children's Court. In August 1958, when he was aged 14, he was charged with indecent assault on a female aged six years, found guilty, and committed to an institution. The facts of that offence are not now available. Since then he has been convicted of a number of sexual offences against many female children.
In 1960, he was convicted of a common assault against an 11 year old girl committed when he was aged 16 years. The charge took that form, but the underlying facts had an undeniable sexual flavour. The facts are that the defendant confronted the victim at the front door of her home. He entered the home with his penis exposed. He grabbed the victim and attempted to push her into a bedroom. She was able to free herself and scream help. He grabbed her again, and placed both hands on her throat. The defendant was committed to an institution for that offence.
In 1993, he was convicted of aggravated sexual intercourse without consent in the District Court of New South Wales at Lismore after a trial by jury. The victim was a girl aged 11 years. She was the young friend of the daughter of a woman with whom the defendant was living. The facts were that, during one evening when the victim was sleeping over at the home of the defendant, he placed his hand down the front of her underpants and inserted one of his fingers into her vagina. The sentencing judge was unable to determine whether the offence was committed on the spur of the moment, or had been the subject of some planning. His Honour found that there had been a breach of trust. The defendant was sentenced to a head sentence of imprisonment for 2 years 8 months with a non-parole period of imprisonment for 2 years.
In 2009 in the District Court of New South Wales at Tamworth, the defendant pleaded guilty to one count of aggravated indecent assault upon a person under the age of 16 and two counts of indecent assault upon persons under 10. Taken into account on a Form 1 was a charge of possessing child pornography.
There were three separate female victims, two aged 9 years, and one aged 10 years. They were the "step granddaughters" of the defendant. The offences were committed between February and May 2007. With regard to the first offence, the defendant touched the genitals of the victim whilst her parents were absent. There was evidence of the defendant telling the victim to tell no one, and also promising her "treats". With regard to the second offence, the defendant touched the genitals of the victim on a trip to a local council tip. There was a degree of planning, because the defendant asked the victim not to wear any underpants before embarking on the journey. On the same occasion, the defendant requested that the victim take photographs of his penis. The third count was founded on the fact that the defendant fondled the genitals of the victim whilst she was lying on a seat in his van. At least some of the child pornography was generated by the defendant himself from his interactions with the victims.
The defendant received a total head sentence of imprisonment for 5 years 5 months with a total non-parole period of imprisonment for 4 years 2 months. The sentencing judge noted that the defendant displayed little appreciation of the seriousness of what he had done and was not entitled to leniency in light of his record. His Honour recommended that the defendant receive treatment in prison.
For reasons that will become clear shortly, the defendant was not released on parole at the end of the non-parole period of that sentence. Indeed, he remained in custody until shortly before the expiry of the total head sentence. He was released to parole on 10 September 2012. The sentence expired in its entirety on 10 December 2012. Since that date the defendant has been subject to interim orders pursuant to the Act.
The defendant has a long record for offences that are not of a sexual nature. None of them are of the greatest seriousness.
Allegations
Quite apart from the offences of which the defendant has been convicted, there have been various other allegations of sexual crimes against three other children. It has been asserted at various times over the years that he committed offences in March 1993, February 1999, and between May and August 2007. With regard to the latter allegation, the defendant was acquitted at trial in the District Court of New South Wales. Finally, an intellectually disabled woman has claimed that the defendant sexually assaulted her. None of these allegations resulted in convictions.
Personal circumstances of the defendant
Since his release to parole on 10 September 2012 the defendant has been living in a halfway house for released prisoners at Malabar. It is not a therapeutic community. It seems that he has not breached his parole, or the interim orders, or any Child Protection Order, since his release. More generally, he has complied with conditions of parole in the past.
The defendant has no friends or family with whom he is in contact. He has no contact with his three former wives, and his surviving sister wishes to have nothing to do with him.
The plans of the defendant for the future are unclear, but include living a quiet life somewhere in country New South Wales. He does not wish to live in Sydney, due, he says, to its association in his mind with the Granville train disaster in 1977, in which he was involved. Although he has held a number of unskilled positions over the years, he does not propose to work, and is in receipt of the age pension. He enjoys gardening.
He has no issues with drugs or alcohol. He has never been diagnosed with a major psychiatric disorder. He suffers from high blood pressure for which he is medicated, some loss of hearing, and a bad back. For a man of his age, his health is good.
Attitudes of the defendant
The various positions of the defendant with regard to the offences of which he has been convicted are that he cannot remember the matter; that he has been the subject of false allegations based on ill-feeling towards him; or that he has pleaded guilty under pressure from incompetent lawyers.
The defendant has no, or virtually no, insight into his long-standing proclivity to commit sexual crimes against young girls. Although he has been prepared to seek treatment with regard to claimed Post Traumatic Stress Disorder ("PTSD"), said to have arisen from his involvement in the train disaster, he has refused treatment with regard to that proclivity. That is the case both when he has been in custody and when he has been at liberty in the community. It is noteworthy that the material before me reveals that the defendant adamantly refused treatment when he was still a boy in 1960, well over half a century ago.
The sole exception to the attitude of the defendant that has been maintained over many decades is as follows. Before being sentenced in 2009, the defendant saw a probation and parole officer for the preparation of a pre-sentence report dated 3 April 2009. In that report, it is said:
"Mr. Stanton [as the defendant was then known] was initially closed to conversation in relation to his offending. He did, however, arrive at a point of admission of his offending and his inability to control "the urges" that he had in relation to his sexual offending. He admitted he needed assistance in addressing his offending behaviour and indicated he was willing to undertake programs specifically to address this area of criminogenic need."
Later, the defendant denied that he had ever met the author of that report.
It is true that, in late 2011 and early 2012, the defendant attended a program designed to increase motivation and readiness to engage in a sexual offenders program. However, in summary, during that attendance the defendant did nothing to address the real issue.
In short there is a complete and long-standing lack of insight into the issue, and an entrenched refusal to seek to deal with it.
As at the date of the hearing, it seems that the defendant was not prepared to take anti-libidinal medication. A dispute between the parties as to orders in that regard was resolved. The position of the plaintiff is that there should not be an order that the defendant take such medication unless he consents to doing so.
Finally with regard to the attitudes of the defendant, it is to say the least of concern that, in the mid 1990s, the pre-release plans of the defendant included involving himself in Camp Quality, a well-known charity directed towards helping children suffering from cancer.
Recent psychological and psychiatric reports
Although there have been a large number of reports written about the defendant over many years, it is only necessary to refer to three of them in detail. A psychologist evaluated the defendant shortly before his release, and two psychiatrists recently saw the defendant pursuant to a court order for the purpose of these proceedings.
Mr Sheehan is a senior specialist psychologist within Corrective Services New South Wales. He saw the defendant on 6 and 7 June 2012, and prepared a report of 21 June 2012. That document is very much directed towards a risk assessment of the defendant.
With regard to actuarial assessment by way of Static 99, a well-known instrument for indicating the risk of sexual recidivism, Mr Sheehan placed the defendant in the "moderate-high risk category".
With regard to dynamic risk factors, Mr Sheehan noted that there were five domains: sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. Mr Sheehan expressed the opinion that the defendant had "exhibited relevant risk factors in all five domains".
In short, Mr Sheehan expressed the opinion that "the overall totality of evidence suggests that Mr Steadman remains in the moderate-high risk category of sexual offending relative to other adult male sexual offenders."
As for what would be envisaged if the defendant were to be in the community subject to an order, Mr Sheehan referred to a requirement that the defendant live in one place and not travel spontaneously, a monitoring of his social contacts, limitation on his access to vulnerable children, and the encouragement of an appropriate lifestyle that could extend beyond supervision.
Doctor Allnutt saw the defendant on 27 November 2012, and prepared a report shortly thereafter, the salient feature of which were as follows.
The history to which I have referred above was reviewed by the doctor. Dr Allnutt noted that, at the time of the interview, the defendant expressed a preparedness to seek treatment for any sexual problems he may have. He claimed that his sex drive was diminished.
Dr Allnutt expressed the opinion that, based on the history given, the defendant is indeed suffering from PTSD.
In considering the risk of further offending in the future, Dr Allnutt placed emphasis on a number of factors. First, the sexual offending of the defendant commenced when he was 14 years of age, and is last proven to have occurred when he was 63 years of age. Secondly, the offending has taken a number of forms, including digital penetration, fellatio, and obtaining pornographic photographs of his victims. The offences also on occasion featured the use of force. Thirdly, the offences have occurred in public and private places. Fourthly, access to the victims has been achieved in a variety of ways, including as stranger, acquaintance and step-grandfather.
With regard to actuarial assessment of the risk of future offending, Dr Allnutt also used Static 99. He emphasised that it is to be used as a guide only. Dr Allnutt noted that, if one does not take into account as an ameliorative factor the advanced age of the defendant (a possible approach, in light of the fact that he committed the last set of offences at the age of 63), the defendant would be at a high risk of re-offending. If one takes into account the age of the defendant, then he would be, according to Static 99, at a higher than average risk of re-offending.
Finally, Dr Allnutt took into account that it seems that, in the future, the defendant will maintain a position of outright denial, or, at least, minimisation of his sexual offending against young girls. Dr Allnutt also referred to isolation as a factor that significantly increases the risk of re-offending.
In short, Dr Allnutt expressed the opinion that:
"He manifests a long term propensity to serious sexual offending that requires monitoring at this stage; there are a number of current factors that perpetuate his risk, predominantly because he has not yet engaged in a therapeutic and rehabilitation program, some of which are ambiguous due to his limited self-report; he has some protective factors predominantly his capacity to engage in rehabilitation should [he] choose to engage."
With regard to the length of any order, Dr Allnutt was reluctant to express an opinion, on the basis that that was a legal question that involves a restriction upon liberty.
Doctor Roberts saw the defendant on 26 November 2012 and prepared a report dated 11 December 2012. He cast doubt on the existence of PTSD relating to the train disaster. He noted, for example, that in the past the defendant had indicated a readiness not only to be near railway stations and lines but even to be a passenger on trains. He emphasised that the last offences were committed when the defendant was 63 years of age, and was cautious in those circumstances about regarding his current age as a protective factor. He diagnosed the defendant as suffering from "Paedophilia, Sexually Attracted to Females", and expressed the expectation that that diagnosis will persist indefinitely.
Dr Roberts contended that the risk of re-offending fell within the moderate to high range, and at the higher end of that range. Dr Roberts expressed the view that the defendant is either insightless, or in denial, or dishonest. He expressed the opinion that any order should be of the maximum duration. He said:
"It is therefore expected that unsupervised, Mr Steadman would not be motivated to take any steps whatsoever to mitigate what would ordinarily be considered to represent circumstances which have the potential to place him at high risk of inappropriate sexual contact with children."
Submissions of the plaintiff
As I have indicated, by the time of the hearing before me there was a simple, discrete point of dispute between the parties that required determination. The plaintiff made eight submissions in support of the proposition that the order should be for 5 years.
First, the conditions proposed do not constitute an overly burdensome restriction upon the liberty of the defendant.
Secondly, if the defendant is compliant, one would expect the conditions to be substantially less onerous at the end of the period of 5 years than they were at the beginning.
Thirdly, Dr Allnutt was not prepared to express a firm opinion either way. In contrast, Dr Roberts was unequivocal that the order should be for the maximum period.
Fourthly, it seems that the defendant will not currently consent to taking anti-libidinal medication, a necessary pre-condition of him receiving it.
Fifthly, it is clear that the defendant will be socially isolated. He will probably be physically isolated as well, bearing in mind his desire to live in the country. That will increase the prospect of re-offending.
Sixthly, merely because the plaintiff has the ability to seek further supervision of the defendant in the future is no reason not to make an order for five years now, if that is the appropriate order on the evidence.
Seventhly, there is a real risk, it was submitted, that the defendant will inveigle himself into the life of a person who is close to children. That could be, for example, an older person who has grandchildren. It is noteworthy that that is precisely how the defendant committed the offences for which he was sentenced in 2009.
Eighthly and finally, it was submitted that, whilst rehabilitation is a purpose of the Act, the primary purpose is the protection of the community.
In short it was submitted that, in all the circumstances, an order for 5 years was warranted.
Submissions of the defendant
In response, six submissions were made.
First, the period of 3 years to which consent is effectively being given is not an insubstantial one.
Secondly, one should not forget that there will be continuous practical restrictions upon the liberty of the defendant.
Thirdly, counsel for the defendant submitted that it is incumbent upon the plaintiff to demonstrate that the order should extend for 5 years, as opposed to it being incumbent upon the defendant to demonstrate that it should exist for only 3 years.
Fourthly, based on past history, it seems likely that the defendant will be compliant with any such order, whatever its length.
Fifthly, the conditions of the order will themselves guard against the defendant having an opportunity to develop relationships that will provide him with access to children.
Sixthly, and perhaps most importantly, there is no restriction upon the plaintiff in the future seeking to vary an existing order of 3 years, including as to its duration, or indeed seeking a further order for a substantial period towards the end of the initial order.
In short it was submitted that a period of 3 years is, at least at this stage, sufficient.
The statute
The objects of the Act are set out in s 3:
"Objects of Act
(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."
The test contained in ss 9(2)-(2A) of the Act is as follows:
"Determination of application for extended supervision order
...
(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 poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.
(2A) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence."
Section 9(3) of the Act contains a list of matters to which I must have regard before determining whether to make the order sought by the plaintiff. It is convenient to set those matters out as follows:
"Determination of application for extended supervision order
...
(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,
(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,
(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,
(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,
(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature."
Section 13 of the Act is as follows:
"Supervision order may be varied or revoked
(1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State of New South Wales or the offender.
(1A) The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part.
(2) For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months."
Determination - making the order
Although the defendant does not oppose the making of an order, and made no submissions seeking to persuade me not do so, I have applied my own independent judgment to the question.
The offences of which the defendant was convicted in 2009 fall within the definition of a "serious sex offence" in s 5 of the Act.
The plaintiff has complied with the various procedures set out in s 6 of the Act with regard to an application for an order.
I have approached the requirement of satisfaction "to a high degree of probability" as constituting an elevated standard of proof that falls between the criminal standard and the civil standard, in accordance with Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; (2007) 178 A Crim R 133.
As for what is involved in the concept of "unacceptable risk of committing a serious sex offence" I respectfully adopt what was said by Davies J in State of New South Wales v Richardson (No. 2) [2011] NSWSC 276 at [90]:
"Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. That is also because s 17(3) provides for the further assessment that if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk a supervision order will not be adequate to meet the risk."
That analysis is equally applicable to the test contained in s 9(2), as the words of s 17(3) and s 9(2) are identical.
I have made an independent assessment of all of the factors in s 9(3) of the Act. I do not propose to advert to the factor in each of the sub-paragraphs seriatim, because I consider that I have dealt with each of them in the judgment as a whole.
I am satisfied that the defendant has a chronic tendency to commit sexual offences against female children that has existed for well over 50 years. I come to that conclusion even though there was a break of substantial duration in the proven offending of the defendant. That tendency puts the safety of the public at risk.
I accept the diagnosis of Dr Roberts that the defendant suffers from paedophilia, characterised by sexual attraction to female children.
With regard to the attitude of the defendant to that condition, I am satisfied that he either denies its existence, or accepts its existence and is happy with it and has no desire to change it. Either way, as a result of his entrenched position, he has received no treatment for it.
The age of the defendant is relevant but, in light of the offending when he was 63 years of age, hardly determinative as to whether he is likely to re-offend. I do not consider that the lifelong sexual attraction to young girls of the defendant has dissipated with age. I consider that he may well seek to act upon his sexual attraction to young girls in the future.
I consider that there is certainly a risk to the community that the defendant may inveigle himself into sustained contact with children, either directly or (perhaps more likely) indirectly by way of, for example, a relationship of friendship or affection with an older person with grandchildren, and take the opportunity to commit serious sexual offences against them.
In short, with regard to the test contained in s 9(2) of the Act, as supplemented by s 9(2A) of the same Act, I am "satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if [he] is not kept under supervision."
It follows that I propose to make an extended supervision order with regard to the defendant. The conditions will be those in the amended schedule to which I referred at [3] and which is attached to this judgment.
Determination - length of order
Review of cases
It is convenient to review briefly some recent cases in which the length of an order arose as a discrete point for determination. Of course, each case will turn to a large degree on its own facts.
In State of New South Wales v Bastian [2011] NSWSC 641, the plaintiff sought an extended supervision order for a period of 3 years. The experts had reached divergent conclusions, one expert opining that a period of 3 years was appropriate and the other recommending that a period of 5 years was required. In the course of determining that an appropriate duration of the order was 3 years, Hoeben J said the following at [64] - [65]:
"As both the psychiatrists acknowledge, the defendant's risk is chronic. Notwithstanding his age, his libido is high and he continues to fantasise about young boys. In light of the evidence of the court appointed psychiatrists as to his physical health, the State now seeks an order for extended supervision of 3 years.
I am satisfied that an order of 3 years would facilitate monitoring and review of the defendant's risk as suggested by Dr Ellis. There is then a further 6 months period for review and consolidation or, if necessary, a further application under the Act."
In State of New South Wales v Conway [2011] NSWSC 925, an extended supervision order was made for a period of 3 years. That order was made in circumstances where the plaintiff had sought an order for 5 years and the defendant contended for the lesser period of 3 years. Despite expert opinion to the contrary of the period ultimately imposed, Hidden J observed the following at [28]:
"Nevertheless, as [the expert] properly observed, this decision is a legal one, not a clinical one. After careful consideration, I am persuaded by [counsel for the defendant's] submission that 3 years is a significant period in which to monitor the defendant in the community, and provide significant scope for professional intervention. That lesser period, in my view, would provide a greater incentive for the defendant to pursue his rehabilitation and, in particular, to commit himself genuinely to treatment."
In State of New South Wales v De La Torre [2011] NSWSC 1263, the defendant did not oppose the making of an order, but submitted that it should only be for 3 years. However, the experts that were appointed by the Court both agreed that it was appropriate in that case that an extended supervision order be for a period of 5 years. In those circumstances, Garling J ordered that the extended supervision order be for a period of 5 years.
In State of New South Wales v Darrego [2011] NSWSC 1449, the plaintiff sought an order for a period of 5 years, and the defendant submitted that it should be for a period of 3 years. In that case, the experts were not unanimous in their recommendations as to the length of any extended supervision order. Ultimately, Fullerton J imposed an extended supervision order for a period of 5 years whilst noting at [87]:
"The question of the duration of a supervision order was specifically posed for each of the court-appointed psychiatrists. Ultimately, however, the question whether a five-year term or some shorter term should be imposed is a question for the Court. Unlike the psychiatrists, I am obliged to take in to consideration a number of competing considerations in determining the appropriate length of the supervision order, with all of the limitations inherent in a predictive exercise of that kind."
In State of New South Wales v Scerri [2012] NSWSC 271, the plaintiff sought an order for a period of 5 years, whereas the defendant contended for an order for a period of 3 years. Adams J ultimately imposed an order for a period of 3 years despite observing at [34] that "[m]y expectation is, as indeed the doctors opine, that it will be in all the likelihood necessary to extend it".
Resolution
The submissions of the plaintiff have a degree of force. It seems that the defendant will be very socially isolated, and perhaps geographically isolated as well. He has set his face against receiving treatment for his profoundly antisocial condition. There is a risk that he will be able to manipulate himself into a position where he has access to children.
On the other hand, 3 years is not a period of short duration. The conditions of the order that I will make are a significant erosion of the liberty of the defendant. Nothing precludes the plaintiff from applying to amend such an order during its duration, including as to its length. Nor does anything preclude the plaintiff from seeking a further order of substantial length towards the end of the order I will make. At that stage the position as to the need for extension will be clearer than it is today. Whilst I accept that those processes, if necessary, will involve time, trouble, and expense, and those considerations deserve to be given some weight, they are not determinative.
Considering the purposes of the Act, taking into account all of the evidence, and balancing the competing positions of the parties, I propose to make the order, and it will expire 3 years from today.
Orders
(1) Pursuant to s 9(1) of the Crimes (Serious Sex Offenders) Act 2006, the defendant is subject to an extended supervision order that commences today, 7 March 2013, and expires after 3 years.
(2) The conditions of the extended supervision order are those contained in the amended schedule filed by the plaintiff on 4 March 2013.
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Decision last updated: 07 March 2013
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