State of New South Wales v Ali

[2010] NSWSC 1045

CITATION:	State of New South Wales v Ali [2010] NSWSC 1045
HEARING DATE(S):	8 September 2010
JUDGMENT DATE :	9 September 2010
JUDGMENT OF:	Johnson J at 1
DECISION:	Interim supervision order and order for examination by psychiatrists made
CATCHWORDS:	SERIOUS SEX OFFENDER - application for extended supervision order - application for interim supervision order pending final hearing - application for order for examination by psychiatrists - interim supervision order and order for examination made
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006 Crimes (Administration of Sentences) Act 1999 Child Protection (Offenders Registration) Act 2000 Child Protection (Offenders Prohibition Orders) Act 2004
CATEGORY:	Procedural and other rulings
CASES CITED:	State of New South Wales v Myers (McCallum J, 26 September 2008) Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 State of New South Wales v Manners [2008] NSWSC 1242 Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; 70 NSWLR 448 R v Maclay (1990) 19 NSWLR 112 State of New South Wales v Tillman [2008] NSWSC 1293 State of New South Wales v Carr [2009] NSWSC 813
PARTIES:	State of New South Wales (Plaintiff) Raizal Ali (Defendant)
FILE NUMBER(S):	SC 2010/252548
COUNSEL:	Mr D Kell (Plaintiff) Mr M Johnston (Defendant)
SOLICITORS:	Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

9 September 2010

2010/252548 State of New South Wales v Raizal Ali

JUDGMENT

1 JOHNSON J: By Summons filed on 29 July 2010, the Plaintiff, the State of New South Wales, seeks orders against the Defendant, Raizal Ali, pursuant to the Crimes (Serious Sex Offenders) Act 2006 (“the Act”).

2 The Summons seeks, by way of final relief, an order that the Defendant be subject to an extended supervision order under s.9 of the Act for a period of three years. A continuing detention order is not sought with respect to the Defendant.

3 The Summons also seeks, by way of interim relief, an order under s.7(4) of the Act appointing two qualified psychiatrists to conduct separate examinations of the Defendant and to furnish reports to the Court, and directing the Defendant to attend those examinations. It also seeks an interim order pursuant to s.8(1) of the Act, that for a period of 28 days from 19 September 2010, the Defendant be subject to a supervision order requiring him to comply with certain conditions.

4 Counsel for the Defendant opposes the making of the interim order. As will be seen, it is submitted that a proper basis has not been demonstrated for the making of that order. If an order is to be made, counsel for the Defendant submits that a number of the proposed conditions are not appropriate in the circumstances of the case. I will return to these issues later in the judgment.

5 A number of affidavits and other documents were read and tendered at the preliminary hearing conducted yesterday. The affidavits and other documents which were read and tendered are sufficiently identified in the transcript of the proceedings. A substantial volume of documentary material was placed before the Court for the purpose of the application. In addition, Jacqueline Hanna, a Compliance and Monitoring Officer within the Community Compliance Group (“CCG”) of the Department of Corrective Services, was cross-examined. No oral or affidavit evidence was adduced by the Defendant, although a document relating to his current TAFE studies was tendered in his case.

Relevant Statutory Provisions

6 I turn to the relevant statutory provisions applicable to this preliminary hearing. It is appropriate to take, as a starting point, the objects of the Act as stated in s.3. The primary object of the 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. Another object of the Act is to encourage serious sex offenders to undertake rehabilitation. As has been stated in decisions of this Court (such as State of New South Wales v Myers (McCallum J, 26 September 2008, pages 5-6), the second object is a means of fortifying and advancing the primary object. The effective rehabilitation of serious sex offenders serves itself to ensure the safety and protection of the community.

7 Sections 6 and 9 of the Act are relevant to an application for an extended supervision order. Section 6 concerns the process of application for such an order, and s.9 is concerned with the determination of an application for an extended supervision order.

8 In respect of each category of final order referred to in the Act, provision is made for a preliminary hearing to be undertaken by which the Court is to consider whether the matters alleged in the supporting documentation would, if proved, justify the making of a final order. If they would, the Court is required to order that psychiatric and/or psychological examinations ought be undertaken.

9 Section 8 of the Act empowers the Court to make an interim supervision order if the Defendant's current custody or supervision will expire before the proceedings are determined, and the matters alleged in the supporting documentation, if proved, justify the making of an extended supervision order. The interim supervision order cannot exceed 28 days. It can be renewed from time to time, but not so as to exceed a total period of three months.

10 The present Defendant's sentence, to which further reference will be made shortly, will expire by effluxion of time on 19 September 2010. Accordingly, the Plaintiff seeks the interim supervision order to operate from that date. I note that the Defendant has been subject to supervised liberty on parole since 5 May 2010.

11 At both the preliminary hearing required by s.7(3) of the Act and when considering an application for an interim order under s.8(1), the Court is to assume that the allegations would be proved at a final hearing. The Court is not involved in the task of weighing the documentation relied upon by the Plaintiff or trying to predict the result of the case at a final hearing: Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 at [98].

12 The words "if proved" in ss.7(4) and 8(1)(b) refer to an evidential, rather than legal, burden. It has been observed, in a number of decisions of this Court, that the provision is analogous to consideration of whether there is a prima facie case established by the evidence of the prosecution in committal proceedings: State of New South Wales v Manners [2008] NSWSC 1242 at [7] to [9].

13 It has been observed that one purpose of the preliminary hearing procedure is to allow the Court to filter out unmeritorious applications at an early stage, with another purpose being to give the Court the benefit of expert opinions of two independent witnesses before making a final decision: State of New South Wales v Manners at [9].

14 The Plaintiff submits that the supporting documentation, being the evidence tendered in support of the application, would, if proved, justify the making of the extended supervision order under s.8(1)(b) of the Act. This, in turn, imports by way of s.9(2), the requirement that the matters alleged in the supporting documentation would, if proved, satisfy the Court "to a high degree of probability" that the Defendant "is likely to commit a further serious sex offence if he is not kept under supervision”. It will shortly be necessary for the Court to have regard to the matters in s.9(3).

15 The words "satisfied to a high degree of probability" constitute the statutory standard of proof which is higher than the civil standard, but lower than the criminal standard: Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27].

16 The Court of Appeal in Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; 70 NSWLR 448 at 461-462 [89]-[90] determined that the word "likely" in the first limb of s.17(3) of the Act denotes a degree of probability at the upper end of the scale, but not necessarily exceeding 50 per cent. In this respect, the word "likely" does not mean "more probable than not". The same reasoning applies with respect to s.9(2).

17 Section 6 of the Act provides for certain formal requirements concerning the timing of the application and the status of the Defendant. No issue is taken by the Defendant here that the formal requirements of s.6 have not been satisfied. I am satisfied that the requirements of s.6 have been met in this case.

Section 9(3) Factors

18 The real area of controversy with respect to the application for the interim order concerns a challenge to the sufficiency of the material, which counsel for the Defendant submits in this case does not warrant the making of the order.

19 It is appropriate that I turn to the factors contained in s.9 of the Act. I will refer to the evidence relied upon by the Plaintiff with respect to the s.9(3) factors, and then turn to consider and determine the application for the interim order itself.

The Defendant’s Offending History - s.9(3)(h)

20 The Plaintiff relies upon a significant body of evidence concerning the Defendant's offending history, relevant for the purpose of s.9(3)(h) of the Act.

21 The Defendant was born in March 1981. In 2000, he committed serious sex offences, when he was aged 19 years. He came to be sentenced for these offences (and later offences) in 2003, before his Honour Judge O'Reilly QC in the District Court.

22 The first group of sexual offences were committed by the Defendant on 20 October 2000. It is not necessary on this application to recite in great detail the circumstances of the offences. It is sufficient to note that the Defendant ultimately pleaded guilty to three counts of sexual intercourse without consent in circumstances of aggravation. The victim was an 18-year old woman whom the Defendant had met at a nightclub. The aggravating circumstance, in each instance, was the malicious infliction of grievous bodily harm before each act of forced intercourse.

23 It appears that the Defendant was affected by alcohol or drugs at the time of these offences. Having met the victim, they travelled by foot to the railway station at Penrith, where the Defendant commenced a course of conduct involving forced sexual contact with the victim. There was what could be accurately described as a determined attack by him, and acts of digital, penile and oral intercourse occurred. During the course of the offences, the Defendant threatened to kill the victim. He threatened to do so in circumstances where, firstly, she screamed, or secondly, she did not describe in positive terms his sexual conduct, or thirdly, if she was to bite his penis during forced fellatio. The fact that these were serious sexual assaults is self-evident from that brief description.

24 The young woman reported the assaults immediately to security guards on the train. In turn, the train was met by police at Springwood and an investigation commenced. Largely as a result of DNA evidence, the Defendant was apprehended.

25 In November 2000, he was granted bail. These sexual assault offences were committed whilst the Defendant was on a good behaviour bond for offences of damaging property and assault police.

26 Whilst on bail for the October 2000 sexual assault offences, the Defendant came to be charged with an offence of assault occasioning actual bodily harm upon his then pregnant girlfriend. He was sentenced to a term of imprisonment by way of periodic detention in that respect.

27 I should mention at this point (because of its suggested significance to the application generally), that in June 2001, the Defendant was undertaking drug and alcohol counselling in the Penrith area. A report dated 18 June 2001 was prepared by a drug and alcohol counsellor for the purpose of a court appearance. The report described the Defendant's problems as including drinking and marijuana use, and drug and alcohol abuse generally, leading to trouble with the law and problems in his relationship with his then partner. However, the author of the report said she was impressed by the Defendant's commitment and motivation to change. There had been a significant life-style change, and the view was expressed that the Defendant had formed the view that he needed to move away from drug and alcohol abuse and criminal associates which had contributed to his problems. A child had been born two weeks prior to this report being written, and it was said that the Defendant wished to make a fresh start for him and his family in those circumstances.

28 The Plaintiff submits that there is some significant similarity between that scenario in June 2001 and the scenario as it presents in the latter part of 2010, and that this bears upon the determination of this application.

29 Whilst serving periodic detention and being subject to bail, on 30 September 2001 the Defendant committed a further sex offence. He was then 20 years’ old. The victim was a 17-year old girl, who had recently commenced residing in a youth hostel at Penrith. She had met the Defendant at the hostel when he was there visiting a friend.

30 On 30 September 2001, after visiting his friend at the hostel, the Defendant broke into the victim's room, turned on the light, sat next to her in bed and ultimately sexually assaulted her. He used force by holding her throat with both hands, and he made threats to kill her. Acts of unlawful sexual intercourse took place before the Defendant, whom the sentencing judge accepted was well intoxicated, fell asleep on the bed. The victim escaped the room and reported the matter to the caretaker. The police were called and the Defendant was arrested. This time he was not released on bail and remained in custody.

31 In due course, the Defendant appeared before his Honour Judge O'Reilly QC at the Penrith District Court, and on 26 March 2003, his Honour imposed sentences of imprisonment comprising an effective sentence of nine years’ imprisonment to date from 20 September 2001, expiring on 19 September 2010 with a non-parole period of six years and six months expiring on 19 March 2008. His Honour also recommended to the Department of Corrective Services that the Defendant be a suitable candidate for the CUBIT program. It is that head sentence, fixed in 2003, which is to expire in 10 days’ time.

32 I should observe that his Honour Judge O'Reilly QC referred, in his remarks on sentence, to the Defendant's attitude towards women with respect to sexual activity (pages 12-14). These observations were based upon statements in a report of Dr John Baron before the sentencing court. Those comments suggested an attitude on the part of the Defendant towards women and sex, and the use of violence in that context, which sheds some light upon the serious sex offences committed by him in 2000 and 2001.

33 The Plaintiff relies as well upon convictions for non-sexual offences committed by the Defendant. I have mentioned already a matter of assault occasioning actual bodily harm, committed in December 2000 upon his then pregnant partner. There are other matters in 2001 which the Plaintiff relies upon. It is said that there is some proximity between non-sexual offences and the sexual offences committed by the Defendant in the past, undoubtedly in the context of abuse of alcohol and drugs.

Abuse of Drugs and Alcohol - Acute Dynamic Risk Factors - s.9(3)(i)

34 The Plaintiff next makes submissions by reference to factors in s.9(3)(i) of the Act concerning abuse of drugs and alcohol and what are described as acute dynamic risk factors. There is evidence of a history of alcohol and drug abuse which can accurately be described as constituting acute risk factors for his serious sex offending. These factors formed part of the context of the offences for which he was sentenced in 2003.

35 The evidence indicates that the Defendant has a history of alcohol and drug abuse extending back to his teenage years. As will be seen, there is also evidence of abuse by him of alcohol and drugs following his initial release on parole in September 2008, although the evidence suggests that there has been no abuse in recent months of alcohol and drugs.

Non-Compliance with Parole Conditions and Other Supervision Obligations - s.9(3)(f)

36 The Plaintiff relies upon evidence relevant to the factors in s.9(3)(f) of the Act, concerning non-compliance with parole conditions and other supervision obligations. The Plaintiff points to the fact that the first serious sex offence in 2000 was committed whilst the Defendant was on a bond, and then (more significantly), that the second serious sex offence in 2001 was committed whilst the Defendant was on bail for the first serious sex offence, and indeed whilst he was serving periodic detention for the assault upon his partner. Reference is made to breaches of good behaviour bonds in this respect.

37 The Plaintiff points as well to evidence of what is said to be the Defendant's unsatisfactory progress during his release on parole since September 2008. The evidence, in my view, does point to what can accurately be described as problematic behaviour on the part of the Defendant, certainly up to May 2010 when he was released again on parole. The problematic behaviour involves a range of things, including failure to comply with curfews, loss of employment, a number of occasions when the Defendant was consuming and abusing alcohol and, upon drug testing, was shown to have been using cannabis and methylamphetamine.

38 Warning letters were sent to the Defendant by the State Parole Authority, including one on 2 July 2009. His supervising parole officer, in the light of positive drug tests, was concerned with respect to his progress on parole in July 2009, and breach reports were furnished to the State Parole Authority.

39 In September 2009, there was a further positive test to cannabis and there was a failure to attend an appointment with a psychologist.

40 In September 2009, there is a statement contained within a psychologist's report that the Defendant was acting impulsively in the context of what was said to be a relationship with a pregnant ex-girlfriend.

41 On 19 November 2009, a further warning letter was issued by the State Parole Authority to the Defendant. In November and December 2009, he was observed by the police on one occasion in an intoxicated state, and returned a positive test for methamphetamine. In January 2010, he provided a positive urine sample for methylamphetamine and cannabis.

42 Based upon a breach of parole report issued to the State Parole Authority in early 2010, on 4 February 2010, the State Parole Authority made an order revoking the Defendant's parole and issued a warrant for his arrest. The particular areas of breach, relied upon for the purpose of revoking parole, were the Defendant's abuse of drugs and alcohol, and his failure to undergo psychological assessment and counselling as required.

43 The Defendant was arrested on 11 March 2010. The circumstances of his apprehension involved what has been described as a high-speed pursuit and then a foot chase, leading to his arrest by police. The Defendant came to be charged with a number of matters, and has pleaded guilty to driving at a speed or manner dangerous to the public, assaulting a police officer in the execution of duty, and resisting an officer in the execution of duty, with those matters listed for sentence at the Parramatta Local Court on 15 October 2010. A presentence report has been requested by the Local Court. I should mention that the Defendant has undertaken the MERIT program, and has apparently completed it with a favourable report.

44 Thus, on 11 March 2010, the State Parole Authority warrant revoking parole was executed and the Defendant returned to custody, where he remained until 4 May 2010 when the State Parole Authority made an order rescinding its earlier order, the effect of that being that the Defendant was released on parole once again.

45 Since 5 May 2010, the Defendant has been residing with his family and his partner at the family home in Western Sydney. Ms Hanna, who gave evidence, became the Defendant's supervising officer. The evidence indicates that, since May, any breath tests for alcohol have proved negative, and any urine tests for drugs have proved negative.

46 Some time after the Defendant’s release from custody, an incident occurred whereby his current partner suffered facial injuries and gave inconsistent accounts as to how this had come about. However, in June 2010, the State Parole Authority conducted a hearing, leading to the conclusion that no finding could be made that it was the Defendant who had assaulted his partner.

47 In June 2010, application was made by the CCG to the State Parole Authority that the Defendant be subjected to electronic monitoring. However, the State Parole Authority determined not to take that course, apparently upon the basis that it would contradict its earlier decision. It appears that the State Parole Authority formed that view by reference to protected material under s.194 Crimes (Administration of Sentences) Act 1999. The State Parole Authority did not have available to it the wide range of evidence, including the risk assessment report of Mr Patrick Sheehan, which is before the Court on this application. It is to state the obvious to observe that the State Parole Authority, in the discharge of its statutory functions, is performing a different task to this Court under the statute governing the present application.

48 In July 2010, the Defendant's partner gave birth to a daughter. The Defendant is undertaking TAFE studies to become a fitness instructor.

49 In his risk assessment report dated 18 May 2010, Mr Sheehan described the Defendant as a “problematic parolee”. He refers to his history as involving parallels, at times, to his behaviour during the period 2000 to 2001 leading up to the episodes of sexual offending. Of course, Mr Sheehan's report was written in May 2010, about the time when the Defendant was released. The Defendant’s conduct since then appears to have become more settled, with no suggestion of drug or alcohol abuse.

Compliance with Reporting Obligations Under Child Protection Legislation - s.9(3)(g)

50 The next factor to which the Plaintiff points is the Defendant's compliance with reporting obligations under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004. The Defendant is required to comply with obligations under the Child Protection (Offenders Registration) Act 2000 because the victim of his September 2001 assault was a 17-year old girl.

51 In June 2009, the Defendant was reported to have failed to notify police in accordance with his reporting obligations under the Child Protection (Offenders Registration) Act 2000.

Sex Offender Treatment - s.9(3)(e)

52 The next factor upon which the Plaintiff relies concerns sex offender treatment which the Defendant has received (s.9(3)(e)).

53 It will be recalled that the sentencing judge in 2003 recommended that the Defendant undertake the CUBIT program in custody. The Defendant did participate in the CUBIT program between October 2007 and July 2008. A treatment report was prepared which described his performance in the CUBIT program in positive terms.

54 Mr Sheehan, in his risk assessment report, described the Defendant as having made significant efforts during the CUBIT program. The CUBIT therapist noted that the Defendant had maintained a high level of motivation for the future, and that this would be the key to him maintaining the therapeutic gains observed in the CUBIT program.

55 However, as I have noted, the period after the release of the Defendant in September 2008 was marked by frequent occasions when he used illegal drugs and abused alcohol, these being important linking factors to his serious sex offending conduct. There were, as well, occasions where he was not complying with parole in the ways in which I have already mentioned.

56 Thus, the Plaintiff points to the material as showing expressions of good intention by the Defendant in the course of the CUBIT program, but not matched by the reality of his conduct following release in September 2008.

57 The Defendant was required to attend the community-based maintenance program run by the Forensic Psychology Services Branch of the Department of Corrective Services upon his release. He did attend a number of sessions. For varying reasons, he also missed a number of sessions. In his risk assessment report, Mr Sheehan describes the Defendant's participation in the maintenance program in the context of his problematic progress in the community. During the maintenance program, the Defendant disclosed high levels of sexual preoccupation, having sexual activities with multiple partners, spending nights in the city and what was described as "a poverty of pro-social peers and activities".

58 In his report, Mr Sheehan referred to insights which appeared to have been gained during the CUBIT program, but pointed to the Defendant's post-release conduct as giving rise to ongoing concern. All of this was relevant, giving Mr Sheehan's assessment that the Defendant had a high risk of sexual recidivism.

Risk Assessment - s.9(3)(c) and (d)

59 I turn then to a matter of great significance on an application such as this, and relevant under s 9(3)(c) and (d) of the Act, namely, risk assessment.

60 There had been some historical risk assessments made of the Defendant in the context of his sex offending in 2000 and 2001. Dr Baron expressed the view, in a psychological report dated 11 November 2002, that the Defendant was at high risk of sexual or violent re-offending unless all relevant dynamic risk factors were addressed, with particular reference to what was described as his long-standing problem with abuse of alcohol and other drugs.

61 Mr John Taylor, in a psychological report dated 13 November 2002, expressed the opinion that the Defendant had a personality disorder with antisocial characteristics, and that there was a 50% chance of him committing further indictable offences following release, but that this would be significantly reduced if he were able to engage in a rehabilitation program for his substance abuse.

62 A report dated 20 May 2008 of Mr Marcelo Rodriguez identified a history of poly-substance abuse, including alcohol dependence and withdrawal, as well as the presence of personality pathology relating to traits of antisocial and narcissistic personality disorder.

63 Most recently, Mr Sheehan, the psychologist who undertook the risk assessment in May 2010 for the purpose of this application, has expressed the opinion that the Defendant meets the diagnostic criteria for both antisocial personality disorder and narcissistic personality disorder. Mr Sheehan's report provides an elaborate explanation of the risk assessment undertaken, by reference to STATIC-99R, the actuarial risk assessment process, and dynamic risk assessment undertaken by reference to the subjective circumstances of the Defendant.

64 Mr Sheehan scored the Defendant as falling within a high-risk category relative to other adult male sex offenders, by reference to the actuarial risk assessment, and reached a similar view by application of acute dynamic risk factors. Mr Sheehan explained his opinion by reference to a number of considerations, including chronicity of sexual violence, the use of physical and psychological coercion in sexual violence, the presence of attitudes that implicitly supported or condoned sexual violence, problems with self-awareness, the exhibiting by the Defendant of a history of sexual preoccupation and arousal to sexual dominance over women, problems with substance abuse and a history of violence, together with problems with intimate relationships. Added to these were what was described as significant non-sexual criminal conduct suggesting criminal versatility and general antisociality and problems with both treatment and supervision.

65 In terms of acute dynamic risk factors, Mr Sheehan identified substance abuse, victim access, hostility, emotional collapse, collapse of social supports and rejection of supervision as key risk factors for the Defendant. As I have said, he was assessed as falling within the high-risk category for sexual re-offending.

66 In his affidavit affirmed 29 July 2010, Mr Sheehan referred directly to the expiration of the parole order currently affecting the Defendant on 19 September 2010.

67 At that time, the current supervisory regime under the parole system in this State will end. It is true that the Defendant is to appear before the Local Court on 15 October 2010 for sentence on the matters arising from the incident on 11 March 2010, and that a presentence report has been sought for the purpose of that sentencing hearing. That, however, will mean that after 19 September 2010, unless an order is made by this Court on this application, the only obligation of the Defendant will be to co-operate with the officer of the Probation and Parole Service for the purpose of the preparation of the presentence report.

68 Of course, the Local Court will make a sentencing order, of one type or another, having regard to the facts of that case and the view which the sentencing Court forms. In mentioning this topic at this time, I am not suggesting that what I am asked to do bears upon any sentencing decision concerning the Defendant. What I am saying is intended to emphasise that, unless this Court makes some order, then the supervision regime which has been in place with respect to the Defendant will end in 10 days' time.

69 Mr Sheehan expressed the view that when the Defendant's parole expires, supportive resources, supervisory conditions and monitoring will continue to be required to enhance the likelihood of the Defendant being able to successfully manage his risk of sexual recidivism. He said that continued supervisory conditions and monitoring would be likely to decrease the risk of the Defendant re-offending. The existence of supervisory conditions and monitoring would mean that, in the event of heightened risk arising from matters such as abuse of illicit drugs or alcohol, negative coping and antisocial peers, there is a greater chance than would otherwise be the case of successful and positive intervention on the part of those involved in the Defendant's supervision, and thus disruption of factors that might otherwise spiral into sexual re-offending.

Safety of the Community - s.9(3)(a)

70 The Plaintiff submits that all of the matters mentioned so far, which are relevant under s 9(3), are brought under the broad umbrella of the first factor identified in s.9(3)(a), namely, "the safety of the community".

Submissions Concerning an Interim Supervision Order

71 The Plaintiff submits that, having regard to the limited inquiry and the low threshold applicable here, the Court would be satisfied that an interim supervision order ought be made by reference to statutory factors concerning the following aspects.

72 Firstly, it is submitted that the Defendant has committed sexual offences involving violence, physical and psychological coercion and threats to kill his victims. Secondly, the Defendant's second sexual offence was committed while he was on bail in respect of the first. Thirdly, the Defendant has a poor history of compliance with supervisory conditions, including breaches of a good behaviour bond. Fourthly, abuse of drugs and alcohol have been identified as acute dynamic risk factors for the Defendant that were present in the lead-up to the commission of the sexual offences in 2000 and 2001. Fifthly, the Defendant's performance during parole has been problematic and unsatisfactory, and ultimately resulted in his parole being revoked. The Defendant has been detected abusing illicit drugs in the form of methylamphetamine, amphetamine and cannabis. The Defendant has consumed alcohol. The Defendant has been reported for breach of curfew requirements, failing to attend appointments for sex offender maintenance treatment and other psychological sessions, and has disengaged with, and rejected, aspects of the supervision process. Sixthly, the Defendant's experience on parole was said to have involved a rejection of treatment gains obtained during the CUBIT program. And seventhly, the Defendant is assessed by Mr Sheehan as presenting a high risk of sexual recidivism by reference to both actuarial and dynamic risk factors.

73 For those reasons, the Plaintiff submits that an interim supervision order ought be made.

74 Counsel for the Defendant submits that the present application is not one which should see an order being made under this Act. It was submitted that the Defendant does not fall into what was described as the usual category of Defendants in applications before this Court. He committed serious sex offences when aged 19 and 20 years. He was released on parole, and although there have been behavioural problems in a number of respects identified, there has been no suggestion of further sex offending. Emphasis has been placed upon what is said to be a stable pattern since May 2010 involving family and education.

75 Reference was made to the second reading speech for the Crimes (Serious Sex Offenders) Bill 2006, where it was said that a particular concern dealt with by the statutory scheme involved "a handful of high-risk, hardcore offenders who have not made any attempt to rehabilitate whilst in prison". It is submitted that the Defendant does not fall within this description. He has served one sentence for sexual offences. He has completed the CUBIT program. And although there may be problems in the area of parole compliance, the difficulties have settled down, so that he is not a person to whom this legislation ought apply.

76 It was submitted by counsel for the Defendant that attention must be given to the purpose of the legislation and the relevant test, at this threshold stage, as to whether the documentation would, if proved, satisfy the Court to a high degree of probability that the Defendant is likely to commit a further serious sex offence if he is not kept under supervision. Counsel submitted that the Court would not be so satisfied in this case. Emphasis was placed upon the Defendant’s satisfactory progress, at least in the last four months.

Should an Interim Supervision Order be Made?

77 It is the case that many applications for interim supervision orders are not the subject of serious contest in this Court, with the principal debate focusing upon conditions. However, this is a case where there has been a substantial argument put in resistance to the application for the interim supervision order.

78 At the outset, I observe that the Court is applying the terms of the Act. Statements in the second reading speech may provide some understanding of the origin of the legislation, but the Court is called upon to construe and apply the Act, and not the second reading speech: R v Maclay (1990) 19 NSWLR 112 at 124A-C. It is the fact that this Act is not confined, in its terms, to serious sex offenders who have not undertaken custodial rehabilitation programs. It may be, of course, that if an offender has undertaken a custodial rehabilitation program with considerable success and there is no sign of significant problems with respect to the risk of sex offending, then firstly the Plaintiff may not bring an application of this sort at all and, secondly, if application was made, the Court would give close attention to the question of whether an order ought be made, even at the interim stage.

79 The problem for the Defendant is that he has a very chequered post-release history with respect to the very issues that gave rise to the circumstances of his serious sex offending in 2000 and 2001. These are the use and abuse of alcohol and drugs, and a type of social disorder surrounding him in a number of respects, and what appears to be (at least between September 2008 and May 2010) quite a number of incidents of non-compliance with orders designed to assist his rehabilitation and thereby protect the public. The fact that he completed the CUBIT program is an important step which stands in his favour. The problem is what has happened since, which suggests that the CUBIT program, in his case, may not have had the full effect for which it is no doubt designed.

80 There is a further difficulty. This is not the first time that there appears to have been positive signs, and statements of good intention on the part of the Defendant, in the context of rehabilitation measures. The situation as it stood in June 2001 appeared optimistic, but what followed was a further serious sex offence involving a violent attack upon a 17-year-old girl whilst the Defendant was subject to bail and periodic detention. Now, it may be said he was 20 years’ old then and he is 29 years’ old now. However, it is the totality of the evidence to which the Court must give attention for the purpose of this application at this time.

81 The evidence which I have sought to summarise reveals significant problems with respect to the Defendant's behaviour between September 2008 and May 2010 in areas which can be directly linked to the risk of serious sex offending. That is, in effect, the link which Mr Sheehan has drawn in his risk assessment report, with the conclusion that the assessment of risk is high.

82 What can be said with respect to events since May this year? Is the effect of that evidence such that the low threshold required under the Act is not reached in this case? In my view, the evidence satisfies the requirement for an interim supervision order. I take into account what has happened in the last four months, but I do so against the background of what has happened since September 2008, and what happened in 2000 and 2001.

83 Serious sex offences were committed by the Defendant against different victims on different occasions, involving not just sexual violence but threats to kill, and what seems to be a type of psychological domination in which he derived some pleasure. That scenario is a troubling one.

84 The Defendant’s sentence will have been served, in its entirety, in 10 days' time. Of course, the scheme under the Act is not to be applied as a means of extending parole. The scheme is to be applied because there is a proper basis for the Act to apply.

85 In 10 days' time, the regime which has effectively provided some assistance and support to the Defendant in the last four months, to which he seems to have reacted more positively than in the past, will end. The very risk factors identified by Mr Sheehan will be heightened.

86 I am satisfied in all the circumstances that an interim supervision order ought be made. I am satisfied that the matters relied upon by the Plaintiff warrant the making of an order, which will have the effect of causing the Defendant to be examined by two independent psychiatrists, who will eventually report to the Court. At a final hearing, the Court may determine what steps ought be taken with respect to him.

Conditions

87 It is necessary to consider what conditions should be fixed. Again, as I have said, there is controversy with respect to several proposed orders.

88 In approaching the question of conditions, I bear in mind what was said in State of New South Wales v Tillman [2008] NSWSC 1293 at [68], that the imposition of conditions which are considered appropriate involves the striking of a balance between relevant considerations, so as to provide an outcome which is fit and proper. I bear in mind, as well, that the imposition of conditions under this Act creates a statutory offence if conditions are breached. The consequence of the ordering of a condition emphasises the need for a proper basis to be demonstrated for the condition to be made in the first place.

89 Condition 2 seeks an order that the Defendant report personally once a week to the departmental supervising officer or otherwise as directed by that officer.

90 I am satisfied that an order in terms of Condition 2 should be made. This topic was touched upon in the oral evidence of Ms Hanna (pages 7-8 of transcript). It does not seem to me that this condition is vague, nor unduly onerous. The very process of reporting personally involves some element of flexibility. I am satisfied that Condition 2 ought be included amongst the reporting and monitoring obligations to be included in the order of the Court.

91 Proposed Condition 4 seeks a condition that the Defendant must not, for the period of the supervision order, commit any offence punishable by a period of imprisonment.

92 It was submitted for the Defendant that this condition is unnecessary. If the Defendant commits another offence, no doubt he will be dealt with for it by the appropriate Court. The imposition of a condition of this type, it is said, is not justified, having regard to the statutory purposes of the Act. The Plaintiff relies upon the decision of State of New South Wales v Carr [2009] NSWSC 813, where Hall J, at [38] and following, considered a condition of this type. In the end, his Honour included a condition in these terms as part of a final order, noting that there was evidence that there was some interrelationship between heightened risk factors in the Defendant in that case, and the commission of any offences.

93 In my view, a similar conclusion may be reached, at least on the interim basis, concerning the present Defendant. With respect to his serious sex offences in 2000 and 2001, there were surrounding non-sexual offences which appear to demonstrate aspects of instability and an association with drug and alcohol abuse, so that it can be said that that his non-sexual offending can be related to sex offending. This point has been made in the risk assessment report of Mr Sheehan. I note, of course, that the Defendant committed non-sexual offences in March 2010, which are to come up for sentence next month. In my view, the imposition of Condition 4 as a condition for this interim order is an appropriate exercise of power under the Act and I propose to include that condition.

94 Conditions 5 and 6 concern the proposed requirement that the Defendant wear electronic monitoring equipment and inform the departmental supervising officer of his movements 48 hours in advance.

95 Counsel for the Defendant placed emphasis upon the fact that an unsuccessful application was made to the State Parole Authority in June this year for the inclusion of such a condition as a condition of the Defendant's parole. I do not think that the decision of the State Parole Authority sheds any particular light on the approach this Court should take at this time on this application. This Court has before it a significant body of additional evidence, in particular, the report of Mr Sheehan which bears upon the issue of monitoring.

96 It is also submitted for the Defendant that there is simply no need demonstrated for such a condition, that the Defendant is now living with his family at his parents' house and is attending TAFE, and that conditions of this sort are simply not required. It is submitted that the Defendant is not in the class of offender of the type one sometimes sees in these applications, where there is a risk of sex offending against children, so that the location of a Defendant near a school or another place where children gather is of concern. It has not been contended for the Plaintiff that the Defendant is in that class of sex offender.

97 It is, however, submitted that there are aspects of his behaviour, including a pattern of life between September 2008 and May 2010 (and certainly in 2000 and 2001) where being out at places where alcohol or drugs could be consumed, where women were met, seemed to be a regular part of his life. There is also the explanation given in evidence yesterday by Ms Hanna (at pages 9-10 and 15 of the transcript) concerning what was said to be the necessity for electronic monitoring.

98 It was submitted for the Defendant as well that the wearing of an electronic monitoring device could prove embarrassing to the Defendant during his studies and generally, and that the question of whether a device ought be required at all could be left as a question to be addressed for the psychiatrists to report to the Court.

99 I have given careful consideration to the submissions on this issue. It is correct, as counsel for the Defendant submits, that if the Court comes to make an interim supervision order, an electronic monitoring condition is not an automatic part of that process. Whether a condition of that type ought be made depends upon whether it is necessary in the circumstances of the case.

100 I bear in mind a number of factors in this respect. Although there has been some stability on the part of the Defendant in recent months, there has been an earlier history, in my view, of significant instability involving the use and abuse of alcohol and drugs. There can be no certainty, of course, that that pattern will not repeat itself. It seems on the face of it, to be a fairly well entrenched pattern. I have regard as well to the pressures that the Defendant is under. Amongst other things, he has a sentencing hearing in the middle of October 2010.

101 Of course, the real question is: is the condition needed to serve the purposes of this Act; that is, to enhance protection of the public by reducing the risk of serious sex offending on his part?

102 I am persuaded that it is appropriate that this condition be included in the conditions which the Court will fix as part of the interim order. In this respect, I have regard in particular to the evidence of Ms Hanna (at page 10 of the transcript). I note, of course, that these conditions will not commence until 19 September 2010. No doubt, the psychiatrists who are called upon to report will consider this aspect, and the electronic monitoring issue may be considered in the light of what happens as a result of the order I will make. It seems to me, however, that given the history of the Defendant, and the volatility in his life in the last two years (albeit with a period of relative stability in the last four months), that conditions of this sort will serve the public interest, and the protection of the public, with respect to the risk of serious sex offending by the Defendant.

103 In my view, Condition 6 is capable of being fashioned in a way that will not create an onerous obligation on the Defendant. There appears to be some measure of predictability in his life, including attendance at TAFE. No doubt, otherwise he should be at home with his young family. Therefore, the notification of movements ought not be a significant problem. If there are particular urgent movements which are to be undertaken, as may well occur with a young child, then there is a process of communication which can be utilised. I do not think that these conditions are unduly onerous, and I am satisfied in the circumstances that they ought be included.

104 Proposed Condition 9 seeks that the Defendant be placed under a curfew.

105 It is submitted for the Defendant that he is not presently subject to a curfew, and that is the case.

106 There have been past problems when curfew conditions have been in place. This is not an argument against the use of a curfew condition. In fact, it seems to me that it is an argument in favour of it. For the purposes of this legislation, I am satisfied at this time that a curfew condition ought be included and Condition 9 will be included.

107 Condition 19 seeks a requirement that the Defendant give notice if he was to enter into a relationship with a woman. It is common ground that this proposed condition ought be amended in the form of an exception, given his current relationship with [XXX]. I will include a qualification to Condition 19 in the manner which has been proposed by counsel.

108 Condition 22 seeks that the Defendant accept psychological and psychiatric treatment and the taking of psychiatric medication if and as prescribed by a medical practitioner.

109 The fact is that the Defendant is not presently taking any psychiatric medication. The evidence before the Court on this application does not suggest that he is suffering from a condition which is likely to see the need for psychiatric medication. This is not a case where there is said to be any medication, relating to sexual urges, that may need to be considered.

110 In my view, the requirement that the Defendant take psychiatric medication ought be deleted from proposed Condition 22. If the psychiatrists who undertake the statutory examinations form the view that there is some appropriate need for psychiatric medication, no doubt that question can be revisited.

111 Proposed Condition 29 requires, in effect, the giving of consent by the Defendant to the provision of access to information.

112 It has been submitted for the Defendant that it is appropriate to exclude from Condition 29 the requirement that the Defendant consent to disclosure of protected information under s 194 Crimes (Administration of Sentences) Act 1999. I am satisfied that that restriction ought be included in Condition 29.

113 Accordingly, I am satisfied that an order ought be made for psychiatric examination by two psychiatrists of the Defendant, and that an order ought be made that the Defendant be subject to an interim supervision order from 19 September 2010.

[See transcript for further submissions concerning formal

aspects of order - Short minutes handed up]

114 HIS HONOUR: I make Orders 1 through to 8 in accordance with the terms of the order which I have signed and dated today. The signed copy will be sealed by my Associate.

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