Richardson v The State of New South Wales - [2010] NSWSC 1555

NEW SOUTH WALES SUPREME COURT

CITATION:
Richardson v The State of New South Wales [2010] NSWSC 1555

JURISDICTION:
COMMON LAW

FILE NUMBER(S):
2010/410845

HEARING DATE(S):

17 December 2010

EX TEMPORE DATE:
17 December 2010

PARTIES:
The State of New South Wales (Plaintiff)
Craig Daryl Richardson (Defendant)

JUDGMENT OF:
Davies J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
P Menzies QC & D Kell (Plaintiff)
J Watts (Defendant)

SOLICITORS:
Crown Solicitor’s Office (Plaintiff)
C M Hunter (Defendant)

CATCHWORDS:
CRIMINAL LAW – sentence – post-custodial orders – interim detention order – extended supervision order – conviction of 2 counts of aggravated sexual assault and attempted murder – no prior sex offences – psychiatric evidence suggesting moderate to high risk of re-offending – whether prima facie case shown – interim order made.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Amendment Act 2010
Crimes (Serious Sex Offenders) Act 2006

CATEGORY:
Procedural and other rulings

CASES CITED:
Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 983
Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119
State of New South Wales v Brooks [2008] NSWCA 150
The State of New South Wales v White (unreported – Grove J - 7 April 2009)

TEXTS CITED:

DECISION:
(1) Pursuant to s. 15(4) of the Crimes (Serious Sex Offenders) Act 2006 ("the Act"): (a) Dr Samson Roberts and Dr Andrew Ellis are appointed to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 31 January 2010; and (b) the defendant be directed to attend those examinations. (2) Pursuant to s 16(1) of the Act, the defendant be committed to a correctional centre on an interim basis for a period of 28 days from 19 December 2010 and to expire at 4.00pm 15 January 2010.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DAVIES J
17 DECEMBER 2010
2010/410845 RICHARDSON V THE STATE OF NEW SOUTH WALES
JUDGMENT

In 1995 the Defendant was sentenced in respect of a number of offences including assault with an offensive weapon, intent to rob, and two counts of aggravated sexual assault.
He was sentenced by Newman J on 24 November 1995 to a 16-year head sentence for the attempted murder and two concurrent fixed terms for sexual assault.
The sentence for the sexual assault expired on 19 December 2004 and the sentence for the attempted murder expires on 19 December 2010. He was given a non-parole period in relation to the attempted murder charge which expired in 2004, but he has not been released on parole for the whole period of his head sentence.
The State of New South Wales now makes application under the Crimes (Serious Sex Offenders) Act 2006 for orders, first of all under s 8 for an interim detention order, and then under s 9 for an extended supervision order.
The reason for the late application is that the Crimes (Sentencing Procedure) Amendment Act 2010 only came into force on 7 December 2010. The effect of that Act was that if a prisoner was serving a sentence other than for a serious sex offence an application under the Crimes (Serious Sex Offenders) Act 2006 could be made whereas previously such an application could only have been made if the prisoner was serving a sentence at the time for the serious sex offence.
In any event, as I have said, the Defendant's sentence expires on 19 December 2010. The Plaintiff seeks orders that 2 qualified psychiatrists be appointed to conduct separate psychiatric examinations of the Defendant, and asks for an interim 28-day order under s 16 of the Act.
The slightly unusual situation in the present case is that the Defendant has never been convicted of any other serious sex offences or, indeed, any other sex offences. There is evidence that he suffers from a mental illness, probably schizophrenia, and has for most of his life had substance-abuse problems. It seems likely that the offences for which he was sentenced by Newman J were committed under the influence of alcohol and drugs.
I have been provided with a large number of affidavits amongst which are affidavits from psychologists who have had contact with the Defendant in the prison system. Those affidavits record conversations with him as well as their appraisals of him, and identify the fact that the Defendant has violent tendencies and says that he intends to play out those violent tendencies if he can by harming or killing various people. However, none of the psychologists identifies any particular sexual violence or other indications of sexual problems in the Defendant.
The Defendant has been examined by Professor James Ogloff who is Professor of Chemical Forensic Psychology at Monash University. He has conducted what appears to be a lengthy examination of the Defendant and has provided a detailed report of that examination and his opinion of the Defendant. In particular he has given some detailed evidence about the likelihood of the Defendant re-offending in a sexual way as well as in a non-sexual way.
He carried out a series of tests and assessments on the Defendant. Two of those which concern the likelihood of sexual re-offending are the STATIC-99 instrument and the Risk of Sexual Violence Protocol.
Professor Ogloff acknowledges the limitations in the use of STATIC-99, particularly for this Defendant who has been in custody for a long period of time. Nevertheless, based on the use of that instrument he assesses that the Defendant falls into the moderate to high category of risk for sexual re-offending.
Professor Ogloff’s assessment, based on the Risk of Sexual Violence Protocol, identified that the Defendant's overall score fell at the lower end of the high range, indicating that the Defendant demonstrates most of the personality traits and behaviours associated with psychopathy, and that such a finding indicates (all things being equal) that his level of risk for re-offending again, violently and sexually, is greater than would be the case for someone with lower scores. He also concludes, on the basis of another Protocol known as 82R20, that the Defendant is at a high level of risk for re-offending violently.
Section 9(2) of the Act provides that on an application for an extended supervision order, which is a final order in these proceedings, such an order can be made only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision. What the Court is concerned with is a risk of the offender committing a serious sex offence and not with the risk of the offender committing any other sort of offence, even an offence involving violence.
My task, however, where an interim order is sought, is on the basis of a number of authorities, in effect, only to be satisfied that a prima facie case has been made out. It is not part of my task to decide whether a final order is likely to be made: see Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119; The State of New South Wales v White (unreported – Grove J - 7 April 2009); Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 983.
In State of New South Wales v Brooks [2008] NSWCA 150 Fullerton J discussed the requirements when an interim order is sought and drew attention, in particular, to the fact that because of the objects of the Act, two of which are to ensure the safety and protection of the community and to facilitate the rehabilitation of serious sex offenders, it is appropriate to give weight to risk avoidance.
The Defendant says that it is not appropriate to make even an interim order in the matter and points particularly to the lack of criminal record involving multiple sexual offences. I have already mentioned that the only sexual offences committed are those for which the Defendant was convicted in association with the attempted murder charge.
A challenge is made by the Defendant to a number of matters in Professor Ogloff's report including, for example, the chronology of some of the history that he took concerning, the length of sexual relationships that the Defendant has had in the past which is a matter that goes to the question of likelihood of sexual re-offending.
The Defendant challenges the paucity of the history taken by Professor Ogloff in relation to sexual matters and sexual deviance and points also to the fact that he had available to him records of the Defendant going back to the Defendant's childhood which would indicate that there was nothing of that sort in his history.
He also points to the fact that there is very much reduced significance in the failure of the Defendant to undertake various courses for sexual offenders available within the prison system. Whilst it is true that at one point that the Defendant conceded he refused to consent to undergo such a sexual offenders' program, it is said that that was at the time at which he was coming up, as he thought, for release on parole and for that reason he was not interested in undertaking it.
It is also said because of the particular classification of the Defendant at Goulburn gaol that the courses were simply not open to him whether or not he consented to undergo them. In that way it is said that the fact that he refused at one stage or another to undergo the courses ceases to have very much relevance. It is nevertheless significant in my view that when the Defendant was being examined by Professor Ogloff he declined to discuss with Professor Ogloff matters relating to his sexual history in any great detail and certainly declined to discuss issues associated with sexual fantasies.
The Defendant also points to the fact that for a number of years now within the prison system he has been able to be described almost as a model prisoner with all prison disciplinary matters having been some time in the past.
The Defendant particularly points to the fact that the majority of the material, whilst disclosing him to have a series of issues in relation to violence and also to have schizophrenia and, at least in the past, substance-abuse issues, is not indicative that there is any likelihood of a re-offending by the commission of sexual offences.
It seems to me that many of the submissions made by the Defendant are likely to be more appropriate to the consideration of whether there should be an extended supervision order. My task is, in effect, to determine if the material indicates that there is a prima facie case that an extended supervision order will be made having regard to the high degree of probability that s 9(2) requires.
In my opinion the evidence of Professor Ogloff, even accepting some of the limitations that needs to be placed on it, is sufficient for me to be satisfied that an interim order should be made.
I have regard to the fact that, although it was the view of the sentencing judge that the offences for which he was sentenced commenced merely as a robbery, nevertheless, they escalated to a very serious degree of violence and to prolonged sexual offending against the victim which resulted in the two particular charges. The length and extent of the sexual assault on the victim is an indication that they were not merely incidental to any robbery that was taking place at the time.

In my view the State has made out at least a prima facie case for an interim order and I intend to make the order contained in the Short Minutes.
I will note that the Defendant's counsel accepts that the form of the interim order contained in the Short Minutes of Order provided to me by the State is appropriate and I will make orders in terms of paragraphs 1 to 6 and grant the liberty to apply referred to in those orders.
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LAST UPDATED:
14 February 2011