State of New South Wales v Atkins

[2013] NSWSC 1988

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Atkins [2013] NSWSC 1988
Hearing dates:	20 December 2013
Decision date:	20 December 2013
Jurisdiction:	Common Law
Before:	Rothman J
Decision:
Catchwords:	CRIMINAL LAW - serious sex offender - application for interim orders - test to be applied - whether appropriate to make detention order or supervision order
Legislation Cited:	Crimes (High Risk Offenders) Act 2007
Cases Cited:	Attorney-General for NSW v Hayter [2007] NSWSC 983 Attorney-General for NSW v Winters [2007] NSWSC 311 Cornwall v Attorney-General for NSW [2007] NSWCA 374
Category:	Interlocutory applications
Parties:	State of New South Wales (Plaintiff) Bruce Allan Atkins (Defendant)
Representation:	Counsel: S Callan (Plaintiff) P Johnson (Defendant) Solicitors: I V Knight (Plaintiff)
File Number(s):	2013/359164
Publication restriction:	None

Judgment

1. By summons filed 28 November 2013, the plaintiff seeks a Continuing Detention Order ("CDO") and, in the alternative and Extended Supervision Order governing the defendant, Bruce Allan Atkins. The summons also seeks interim orders ("IDO" and "ISO" respectively) pending the final hearing of the matter. The Court, on 20 December 2013, made orders, including an ISO with which the defendant must comply. These are the reasons for those orders.

1. The parties confined the issues between them. It is necessary, however, to recite some facts.

1. The defendant was, at the time the ISO issued, still in custody. He had pleaded guilty to two offences of aggravated indecent assault (victim under 16 years) and one offence of indent assault (victim under 10 years). He was serving a sentence that was due to expire on 26 December 2013.

1. The defendant has a history of sexual offences. He also suffers from an intellectual disability and continued to deny the index offences. He was denied parole, inter alia, because of the lack of suitable accommodation in the community.

Principles

1. The Court is dealing with an interim order and not finally determining the rights or appropriate order, if any, to be made on a final basis. The Court is required, within 28 days of application, to conduct a preliminary hearing and may make and ISO or IDO if satisfied that the matters in the supporting documents, if proved, would justify the making of a CSO or CDO: see ss 10A and 18A of the Crimes (High Risk Offenders) Act 2007 ("the Act"); Attorney-General for NSW v Hayter [2007] NSWSC 983.

1. The task of the Court at a preliminary hearing is similar to the task in committal proceedings, but does not involve proof beyond reasonable doubt: Hayter. It does, however, require proof at a higher standard than the mere balance of probabilities: Cornwall v Attorney-General for NSW [2007] NSWCA 374.

1. The primary object of the Act is to ensure the safety and protection of the community (s 3(1)) and the facilitation and encouragement of rehabilitation (s 3(2)). The Act is not punitive and, subject to the terms of the Act, persons who have served a sentence for an offence are entitled to be at liberty.

1. Ultimately, for an order of any kind sought to be issued, the Court is required to be satisfied to a high degree of probability that an offender, the defendant in the proceedings, poses an unacceptable risk of committing, relevantly, a serious sex offence unless kept under supervision (s 5B of the Act). If the Court were also satisfied that adequate supervision could not be provided by an ESO, the Court may make a CDO (s 5D). The provisions are facilitative and evaluative; not discretionary.

The defendant's circumstances

1. The defendant's criminal record is before the Court. The defendant was convicted of: minor stealing offences between 1977 and 1982; set fire with intent to murder in 1983; stealing and possession of a prescribed restricted substance (the items stolen included, relevantly, 19 pairs of children's or women's underpants) in 1984; act of indecency towards person under 10 years in 1991; and, in 2007, the index offences of aggravated indecent assault.

1. It is appropriate to summarise briefly the 1991 offence and the index offences. The 1991 offence occurred when the defendant exposed his penis to the victim and rubbed it on the top of her legs. The victim was six years old at the time. She was the daughter of Ms R with whom the defendant had commenced a relationship about five or six months earlier.

1. The defendant was convicted after trial and continues to maintain his innocence.

1. The index offences occurred when a friend (Mrs B) of Ms R (with whom the defendant had continued in a relationship) visited the premises occupied by the defendant and Ms R. Mrs B visited the premises with her daughters aged 12, 9, 7, and 5 years of age.

1. On 5 January 2007, Mrs B visited with her 9-year-old daughter who was recovering from an operation on her leg and needed to utilise crutches. At about 3pm, Ms R and Mrs B went to collect Mrs B's other daughters from school, leaving the recovering 9-year-old with the defendant.

1. During the period alone, the defendant removed his pants and underwear, lay on top of the child (after having removed her underwear and raised her skirt) and rubbed his penis on her labia (outside the vagina). The child pushed him away, after several attempts, after which the defendant threatened her by saying, "If you tell anyone, I'll kill you".

1. The next day, the defendant and Ms R visited Mrs B's home. At about 7pm, Mrs B went to the hospital for an hour, accompanied by Ms R. The defendant informed the four children that he, the defendant, needed to speak to the 12-year-old. He told the others to go to the backroom and lay behind her, threatening that if she were to inform anyone, he would hurt her.

1. Later that evening, the 12-year-old went to her bedroom. The defendant locked the other children outside in the backyard, went to the oldest child's bedroom, took off his pants, took off her shorts and underwear and lay between her legs. She asked him to stop. He had already threatened her.

1. One of the other children, who had managed to enter the house, saw what was happening through the gap in the door. On Mrs B's return, both the 9-year-old and 12-year-old informed Mrs B of the events of that evening and the evening before. Mrs B rang the police.

1. The defendant pleaded guilty to the two counts of aggravated indecent assault (victim under 16) and one count of indecent assault (victim under 10). Notwithstanding the plea of guilty, the defendant maintains his innocence.

1. The defendant has offended while on conditional liberty but not during the last two extended periods (May 1986 to November 1990 and March to September 1993). The defendant was refused parole, although of good behaviour during incarceration, because of the perceived risk arising from his non-attendance at an appropriate therapeutic programme, and dure to accommodation issues.

1. I note that his non-attendance was due to his assessed ineligibility for the courses on offer. There seems to have been no course available for a sex offender, of his kind, who both denies guilt and has an intellectual disability. (There are programmes available for persons who possess one of those attributes, but not both.)

1. Further, until very recently, the perceived risk was exacerbated by the proposal that the defendant return to reside with Ms R.

1. The Court has before it, notwithstanding the interim nature of these proceedings, a number of reports from psychiatrists and psychologists, most compiled for sentencing purposes and for that reason some are quite out of date.

1. The latest report of that kind was dated 6 June 2012 and was provided for parole purposes. The psychologist, Ms Celia Langton, assesses the defendant as having a high risk of sexual reoffending.

1. A report was also compiled specifically for the purposes of these proceedings by Mr Patrick Sheehan, Senior Forensic Psychologist at Corrective Services. Parts of that report were not pressed by the plaintiff.

1. Mr Sheehan also assesses the defendant "in the high risk category relative to other men who have sexually offended". He recommends, or expects, "intensive supervision and case management" by Corrective Services, if the defendant were subject to an ESO. I have read each of the tendered reports and rely on them in reaching my conclusions (except those parts that were not pressed).

Conclusion

1. First, from the foregoing and the material before the Court, it is clear that there is jurisdiction to make either of the orders sought (or there existed jurisdiction at the time the orders issued), namely, the defendant is a high risk sex offender: s 5B of the Act. Further, the requirements of s 6 of the Act have been satisfied.

1. Any assessment of the defendant, on a preliminary basis on the material before the Court, would conclude that, if that material were proved, one or other category of EDO or ESO would be justified: s 16(1)(b) of the Act.

1. For the purposes of making an interim order, I give greater weight to risk avoidance: Attorney-General for NSW v Winters [2007] NSWSC 311 at [7], per Bell J.

1. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision.

1. The major issue, on the submissions of the parties and the material before the Court, is whether the appropriate order is an IDO or an ISO. There are factors pointing in each direction.

1. One of the most important factors was the proposal that the defendant return to reside with Ms R. If that proposal were to have continued, I have no hesitation in remarking that an IDO would have issued. That proposal was altered.

1. The current proposal is that the defendant reside in a Community Offender Support Program ("COSP") Centre operated by Corrective Services. As a consequence, there would be no likelihood of children living on the premises or being on the premises unsupervised. This is a most significant factor.

1. Another significant aspect is the defendant's stated refusal to medicate with anti-libidinal drugs. Currently, there is no evidence that the defendant's past offending is a manifestation of sexual desire. There are a number of reasons that such offending may occur.

1. The report of Ms Young on 18 August 2008, provided for sentencing for the index offences, suggests that the offending may be referrable to the defendant's assessment of his intellectual disability. (The defendant has a reading ability approximating a 5-year-old and is in the lowest 2.2% of the population in intellectual functioning.) Ms Young notes that the offending may disclose intimacy deficits under which the defendant identifies with children, rather than adults. In each offence, the defendant expressed "his love" for the victim.

1. It is not necessary, in making an interim detention order, for the Court to be satisfied that a supervision order would not suffice. Such a determination is necessary when final orders are to be made.

1. Nevertheless, the intimacy deficits to which I have referred are consistent with the pattern of offending. The risk of offending based on such issues is significantly reduced by the accommodation of the defendant at the COSP Centre and, at least on an interim basis, ameliorates the concerns associated with the defendant's lack of insight into his behaviour and the refusal to abide by any prescribed anti-libidinal medication.

1. For those reasons, I was satisfied that an ISO, as distinct from an IDO, should issue. For the same reasons, and to ensure that the Court is better informed at the final hearing, an order under s 15(4) of the Act, appointing two psychiatrists, also issued.

1. No issue was taken with the conditions proposed in the ISO, if it were to issue. The conditions proposed were both reasonable and appropriate.

1. As a consequence, on 20 December 2013, the Court issued orders substantially in the terms of prayers 1 and 6 of the Summons filed by the plaintiff on 28 November 2013.

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Decision last updated: 08 January 2014