Attorney-General (NT) v JD

[2015] NTSC 28

The Attorney-General of the Northern Territory v JD [2015] NTSC 28

PARTIES:The Attorney-General of the Northern Territory

v

JD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY ORIGINAL JURISDICTION

FILE NO:36 of 2015 (21518615)

DELIVERED:  21 May 2015

HEARING DATES:  12 MAY 2015

JUDGMENT OF:  MILDREN AJ

CATCHWORDS:

SERIOUS SEX OFFENDERS ACT – Preliminary hearing – The Court must consider whether the allegations would, if proved, satisfy the Court that the respondent is a ‘serious danger to the community’ – ‘Would’ requires a ‘positive absolute conclusion that the order ‘would’ be made on the balance of probabilities’ – Must be proved to the reasonable satisfaction of the Court – ‘Serious danger to the community’ requires an assessment of whether there is an unacceptable risk of the respondent reoffending – Court satisfied.

Evidence Act s 57.
Serious Sex Offenders Act ss 3, 4, 6, 7, 22, 23, 25, 79, 90, 92, 94, 97.

Attorney-General of the Northern Territory v EE [2013] NTSC 35; Briginshaw v Briginshaw (1938) 60 CLR 336; Director of Public Prosecutions (WA) v GTR (2009) 198 A Crim R 149, followed.

REPRESENTATION:

Counsel:

Applicant:T Anderson

Respondent:  S Cox QC

Solicitors:

Applicant:Solicitor for the Northern Territory

Respondent:  Northern Territory Legal Aid Commission

Judgment category classification:   B

Judgment ID Number:  MIL15532

Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Attorney-General of the Northern Territory v JD [2015] NTSC 28

No. 36 of 2015 (21518615)

BETWEEN:

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Applicant

AND:

JD

Respondent

CORAM:    MILDREN AJ

REASONS FOR JUDGMENT

(Delivered 21 May 2015)

1. This is an application by originating motion for an order pursuant to s 23 of the Serious Sex Offenders Act 2013 (“the Act”) for a final continuing detention order, or alternatively a final supervision order in relation to the respondent. By summons on the motion, the applicant has sought a final hearing date for the application for the relief sought pursuant to s 25 of the Act.

2. At the conclusion of the preliminary hearing of the summons, I found that the matters alleged in the application would, if proved, satisfy the Court that the respondent is a serious danger to the community. I therefore set a date for the hearing of the application and made a medical assessment order as required by s 25(2) of the Act. I also made a non-publication order of the respondent’s name pursuant to s 57 of the Evidence Act.  At the time of delivering my decision I gave brief reasons and said that I would publish my reasons in full at a later time.  These are my reasons.

   The Act

3. The Act seeks to remedy a concern that those prisoners who have committed very serious sexual offences are released back into the community in circumstances where there is an unacceptable risk that, upon their release, they will commit another serious sex offence. The Act represents a very important shift in the administration of justice because it impacts upon the fundamental principle that a person’s liberty is not to be affected except upon proof of a criminal offence, and then only for so long as the sentence of the court in respect of that offence allows, and no longer. The scheme of the Act permits this Court in the exercise of its civil jurisdiction to make an order for continued detention or supervision beyond expiration of the Court’s sentence imposed in relation to a criminal sentence even though no further offence has been committed, albeit only in very limited circumstances.

4. The objects of the Act are expressed in s 3:

   3       Objects of Act

   (1)The primary object of this Act is to enhance the protection and safety of victims of serious sex offences and the community generally by allowing for the control, by continued detention or supervised release, of offenders who have committed serious sex offences and pose a serious danger to the community.

   (2)The secondary object of this Act is to provide for the continuing rehabilitation, care and treatment of those offenders.

5. The words “serious sex offence” are defined by s 4 of the Act to mean any of the offences listed in Schedule 1 of the Act (including an offence that was in Schedule 1 at the time it was committed), an offence which substantially corresponds to such an offence which has since been repealed or is a law from another jurisdiction, or an attempt, a conspiracy or incitement to commit such an offence. The offences listed in Schedule 1 include sexual intercourse and gross indecency without consent including a range of other sexual offences where the maximum penalty is seven years or longer.

6. The expression “serious danger to the community” is defined by s 6(1) of the Act if there is an “unacceptable risk” that the person “will commit a serious sex offence unless he or she is in custody or subject to a supervision order”.

7. The jurisdiction of this Court to entertain the application requires proof that the respondent is a “qualifying offender”. That expression is defined in s 22(1):

   (1)A person is a qualifying offender if:

   (a)he or she has been convicted of a serious sex offence; and

   (b)either:

   (i)he or she is under sentence of imprisonment for that offence; or

   (ii)subsection (4) applies to him or her.

   Subsection (4) provides for persons who have served their sentence for the serious sex offence but are still in custody for any other reason other than under a continuing detention order.

8. The evidence is that on 30 June 2005 the respondent was convicted of having sexual intercourse without consent on 29 March 2005. He was sentenced to imprisonment for 10 years commencing from 30 March 2005 and a non-parole period of seven years was imposed. The respondent has not been released on parole. On 30 September 2014 the respondent, whilst still in prison, was convicted of aggravated assault on a prison officer and sentenced to imprisonment for four months. Pursuant to s 59(2) of the Sentencing Act, the 10 year sentence was suspended until this four month sentence was served. In the result, the respondent will not have completed his 10 year sentence until 29 July 2015. He is therefore a “qualifying offender” within the meaning of s 22(1) of the Act. The evidence is that the respondent is now over the age of 18. There is therefore jurisdiction to consider the application under s 23 of the Act which provides:

   23Application for continuing detention order or supervision order

   (1)The Attorney-General may apply to the Supreme Court for a final continuing detention order or final supervision order in relation to a qualifying offender.

   (2)     An application cannot be made unless the offender:

   (a)is due to cease to be a qualifying offender within 12 months; and

   (b)will be over 18 years of age when he or she ceases to be a qualifying offender.

9. The next stage of the proceedings is governed by s 25 of the Act which provides:

   25Preliminary hearing to determine if evidence of serious danger to the community

   (1)At the preliminary hearing the Supreme Court must decide whether the matters alleged in the application would, if proved, satisfy the Court that the qualifying offender is a serious danger to the community.

   (2)     If the Court decides that it would be satisfied, it must:

   (a)     set a date for the hearing of the application; and

   (b)make a medical assessment order in relation to the offender naming 2 medical experts.

   (3)If the Court decides that it would not be satisfied, it must dismiss the application.

10. The matters alleged in the application are set out in the affidavit and annexure thereto of Barbara Sampson, the Director of Offender Services and Programs, Correctional Operations Division of the Northern Territory Department of Correctional Services. I note that s 25 of the Act does not require proof, at this stage, of those allegations. Section 90(1)(b) of the Act provides that an application must be accompanied by any affidavits which the applicant intends to rely upon. Section 92 confines the affidavit to evidence in the deponent’s personal knowledge although it may contain statements based on information and belief if the deponent states the sources of information and the grounds for the deponent’s belief. No objection was taken to Ms Sampson’s affidavit and no affidavit in response has yet been provided. Section 94 provides that all proceedings under the Act are civil proceedings which are to be conducted in accordance with the law (including the law of evidence) applicable to civil proceedings unless the Act otherwise provides. There was attached to the affidavit a number of exhibits including two reports from Dr Raeside, a psychiatrist and a neuropsychological report from a clinical and forensic psychologist, Ms Vidula Garde. Those reports were admissible vide s 97(2)(a) of the Act. No objection was taken to the admissibility of the evidence contained in Ms Sampson’s affidavit, although some of the important information was clearly expressed to be an ‘allegation’ rather than a fact.

11. The material before the Court is very lengthy and I do not think it is necessary to summarise it all.  The most important facts are:

    ·The respondent first came before the courts in 1987 at the age of 17.  Between 1987 and 2014 the respondent has been convicted of 80 offences mainly involving assaults, aggravated assaults, stealing, trespass and unlawful entry.

    ·The respondent has a history of failing to comply with court orders, (breaches of bond, breaches of suspended sentences) and also breached parole orders.

    ·In January 1988, when the respondent was aged 18, he committed an aggravated assault on a male child aged six and an assault of another male child aged six with intent to have carnal knowledge of him and thereby causing him bodily harm.  On 20 July 1988 he pleaded guilty to those offences.  The maximum penalties he faced were five years and 14 years respectively.  He was sentenced by this Court to a total period of imprisonment for five years and a non-parole period of two years and six months was fixed.  In relation to this offending, the facts revealed that the respondent held both boys at knife point and told them to lie down on a mattress inside his bedroom.  One boy was released but the respondent had anal intercourse with the other boy whilst holding a knife to his throat.  Although only slight penetration was effected, nevertheless there were slight tears and abrasions to the anal orifice caused. 

    ·Subsequently there are a number of allegations of alleged sexual offending including alleged threats of sexual assaults, and other allegations of sexual misconduct whilst in prison.  None of these matters resulted in any charges being brought so far as the material before me reveals and they remain at this stage no more than allegations.  None of them, if proved, would amount to a serious sex offence as defined, and some may not amount to anything much at all in terms of sexual offending, depending on the circumstances.  At this stage there are no facts before me which provide any indication of the circumstances of any of these matters. 

    ·There is also some evidence that, as a child, the respondent behaved inappropriately towards his female teachers on one occasion, but that allegation if proved is not particularly serious in itself.

    ·Borderline intellectual disability.

    ·Extremely low range ability to speak and comprehend English.

    ·Gross deficit in audiology and visual attention.

    ·Could have memory impairment.

    ·Difficulties with problem solving.

    ·Behavioural disinhibition consistent with frontal lobe brain damage.

    ·Inability to correctly identify facial emotion and interpersonal distress which is an important risk factor according to some theorists.

    ·History of binge drinking.

    ·There is reference to a long history of illicit drug use which is not well documented.  The respondent has denied that he smokes tobacco or takes illicit drugs.

12. In the opinion of Dr Raeside he does not have a mental illness which can be treated to reduce risk factors.  In addition:

    ·He has a mixed personality disorder with antisocial, paranoid and narcissistic traits.

    ·No meaningful rehabilitation has been able to occur in prison.

    ·Very high risk of further offending, both violent and non-violent as well as sexual offending.

13. Because the evidence did not specifically deal with the risk of committing a serious sex offence in the future, Dr Raeside was called to give brief evidence. He explained that by “sexual offending” he was referring to the whole range of sexual offending including those sexual offences listed in Schedule 1 to the Act.

14. There is also evidence that the respondent does not accept responsibility for his crimes and blames others for his imprisonment.  He has refused to undergo any rehabilitation courses.  He has never been employed.  Upon release his plans indicate that he will most probably be homeless.

15. Dr Raeside, in reaching his conclusion as to the respondent’s risk of committing a serious sex offence took into account a range of factors including the history of alleged, but at this stage unproved, sexual offences allegedly committed for the most part whilst in prison. Section 25(1) of the Act requires me to assume at this stage that these matters, and the opinion of Dr Raeside, will be proved at the hearing of the application. If the alleged offending in prison is not proved this may go to the weight of Dr Raeside’s opinion but that is not a question which I am required to consider at this stage. What I am called to consider is whether, assuming these matters alleged against the respondent are proved, would those matters satisfy the Court that the respondent “is a serious danger to the community”, as that expression is defined. I agree with Blokland J in Attorney-General of the Northern Territory v EE[1] that “would” requires a “positive absolute conclusion that the order “would” be made on the balance of probabilities”, although in my opinion the test to be applied would require proof according

to the standards referred to by Dixon J, as he then was, in Briginshaw v Briginshaw.[2]  This is consistent with the observation of Blokland J in the EE case that the finding cannot be made unless proven to the standard of a “high degree of probability, that there is acceptable and cogent evidence of sufficient weight to justify the decision” (s 7(1)).[3]

1. In making this preliminary finding I am required to have regard also to the matters referred to in s 6(2):

   (2)In deciding whether a person is a serious danger to the community, a court must have regard to the following:

   (a)the likelihood of the person committing  another serious sex offence;

   (b)the impact of serious sex offences committed, or likely to be committed, by the person on:

   (i)victims of those offences and the victims’ families; and

   (ii)members of the community generally;

   (c)the need to protect people from those impacts.

2. As to the likelihood of the respondent committing another serious sex offence is concerned, the evidence at this stage, if proved and accepted by the Court, would in my opinion clearly demand a finding adverse to the respondent having regard to all of the risk factors, including the respondent’s history of offending, the respondent’s attitude towards and inability to take advantage of rehabilitation, the respondent’s personality disorder, lack of English skills, lack of education, lack of any employment history, history of binge drinking to the point of unconsciousness, probable homelessness or lack of community support, and the failure to comply with parole orders and with the conditions of court orders.  There is no evidence at this stage that there is any impact on the victims or their families, whether past or future, from which there is a need to protect.  However, the very high degree of probability of further sexual offending of a serious nature and the respondent’s circumstances are a strong indicator of the need for protection of the community generally. 

3. As to whether there was therefore “an unacceptable risk”, I accept the analysis of Steytler P and Buss JA in Director of Public Prosecutions (WA) v GTR:[4]

   The word “unacceptable” necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious consequences to the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).  As John Fogarty points out, albeit in a rather different context (Unacceptable risk – A return to basics (2006) 20 AJFL 249 at 252), the advantage of the phrase “unacceptable risk” is that “it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case”.

4. Ms Cox QC on behalf of the respondent pointed out that there is a gap of some 17 years between the two serious sexual offences which the respondent has committed.  It is always difficult to predict the future, but I note that the last serious sex offence was committed less than a month after being released from prison for other offending.  That offence was described by the learned sentencing judge, Southwood J, as a brutal, heinous and degrading attack on the victim motivated by a callous desire for sexual gratification.  The victim was a stranger who had been walking home in an alleyway at night and was very drunk having spent the day drinking with her family.  The victim was defenceless.  She was struck with a fist causing her to fall on the ground, and then punched and kicked to the head and body several times.  She lost consciousness.  When she regained consciousness she was forced onto a school ground and threatened with death if she did not comply to his demands for sexual intercourse.  At the sentencing hearing Southwood J noted that there was no remorse, that the respondent showed no empathy for his victim and no regard for her dignity as a person, and that the respondent had virtually no prospects of rehabilitation.

5. In my opinion, if the facts alleged are proved, bearing in mind all of the circumstances and the seriousness of the consequences to the respondent if an order is made, the risk in this case would be an unacceptable one.

6. In conclusion I was satisfied that it was appropriate that I make an order under s 25(1) of the Act. Accordingly I made the following orders:

   (1)Order listing the hearing of the motion at 10:00 a.m. on 23 July 2015.

   (2)Order pursuant to s 79(1) of the Act that the respondent submit to being examined by two psychiatrists whom I have named in the order.

7. Ms Cox QC requested a non-publication order of the respondent’s name because of risk of further problems at the prison. In those circumstances I ordered, pursuant to s 57 of the Evidence Act, forbidding the publication of the respondent’s name.

[1] [2013] NTSC 35 at [13]

[2] (1938) 60 CLR 336 at 362

[3] [2013] NTSC 35 at [14]

[4] (2009) 198 A Crim R 149 at 159 [27]