State of New South Wales v Boney (Preliminary)

[2020] NSWSC 704

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Boney (Preliminary) [2020] NSWSC 704

Hearing dates:

5 June 2020

Date of orders:

05 June 2020

Decision date:

05 June 2020

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

Johnson J makes the following orders:

1. Pursuant to s. 15(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

a) two qualified psychiatrists and one psychologist are appointed to conduct separate psychiatric examinations and psychological examination of the Defendant and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court; and

b) the Defendant is directed to attend those examinations.

2. Pursuant to s.18A of the Act, the Defendant is to be subject to an interim detention order for a period of 28 days commencing on 21 July 2020.

3. Pursuant to s.20(1) of the Act, a warrant is to issue for the committal of the Defendant to a correctional centre for the duration of the interim detention order referred to in Order 2 above.

4. Access to the Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Catchwords:

HIGH RISK OFFENDER - preliminary hearing - application for interim detention order and for examination by court-appointed psychiatrists - Defendant serving sentence for index offences - where Defendant does not contest making of interim detention order and order for examination - Court satisfied that orders should he made - interim detention order made together with order for examination by two psychiatrists and a psychologist

Legislation Cited:

Crimes (High Risk Offenders) Act 2006

Cases Cited:

Boney v R (2008) 187 A Crim R 167; [2008] NSWCCA 165
R v Boney [2006] NSWDC 85

Texts Cited:

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Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Phillip Mitchell Boney (Defendant)

Representation:

Counsel:
Mr L Fernandez (Plaintiff)
Mr P Coady; Mr R El-Choufani (Defendant)

  Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2020/98899

Publication restriction:

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Judgment

1. JOHNSON J: By Summons filed on 31 March 2020 the Plaintiff, the State of New South Wales, seeks certain orders with respect to the Defendant, Phillip Mitchell Boney, under the Crimes (High Risk Offenders) Act 2006 (“the Act”).

The Preliminary Hearing

2. In accordance with the statutory regime under the Act, the Court has undertaken a preliminary hearing concerning the Plaintiff’s application. Mr Fernandez of counsel appears for the Plaintiff and Mr Coady of counsel appears with Mr El-Choufani for the Defendant.

3. The Plaintiff has read in its case at the preliminary hearing, the affidavit of Jessica Murty affirmed 30 March 2020 and tendered as well an associated folder of documents, Exhibit JM-1. In addition, the Plaintiff has read the affidavit of Ellen Southwood affirmed 1 May 2020.

4. The Defendant has read the affidavit of Hayley Le affirmed 25 May 2020 and relies as well upon the associated folder of documents contained in Exhibit HL-1.

5. The Court has received helpful written submissions prepared by Mr Fernandez and Mr Coady.

6. The contested issues on this application are very narrow, if any. It remains a matter for the Court to determine whether the relief sought by the Plaintiff at the preliminary hearing should be granted. I note, however, that counsel for the Defendant has not opposed the making of certain orders. Although it remains a matter for the Court to determine whether the statutory requirements have been satisfied, the approach of counsel for the Defendant is both constructive and helpful in the circumstances of the case.

The Defendant

7. The Defendant is now 40 years of age. He is an Aboriginal man from Moree. The circumstances in which he has come into conflict with the criminal law over a number of years have largely reflected offences committed in a domestic setting. The use of that term is not intended to in any way downgrade the gravity of the Defendant’s offences. They have, however, been committed in a context which is no doubt reflective of the Defendant’s own history of social disadvantage as well as that of his partner and family.

The Index Offences

8. The Defendant is presently serving a sentence of imprisonment for very serious offences committed in 2005. The Defendant went to trial in 2006 with respect to these matters. He was found guilty by a jury and was sentenced, on 27 October 2006, by Finnane QC DCJ to a total effective sentence of imprisonment for 27 years with a non-parole period of 20 years. The offences for which the Defendant was sentenced include aggravated sexual intercourse without consent, kidnapping, detain for advantage and a range of associated offences in which the victim was the Defendant’s partner. The sentencing remarks of Finnane QC DCJ may be found in R v Boney [2006] NSWDC 85.

9. The Defendant appealed against conviction and sentence to the Court of Criminal Appeal and, on 19 August 2008, that Court (constituted by McClellan CJ at CL, R S Hulme J and Mathews AJ) dismissed the appeal against conviction but allowed the appeal against sentence: Boney v R (2008) 187 A Crim R 167; [2008] NSWCCA 165. The Court found a number of errors on the part of the sentencing Judge with respect to sentence. The Defendant was resentenced to a total effective sentence of imprisonment for 15 years with a non-parole period of 12 years, with the head sentence to expire by effluxion of time on 21 July 2020.

10. The Defendant has remained in custody and has not been released on parole. A number of factors have contributed to that position being adopted by the State Parole Authority. Accordingly, the present application has been initiated at a time when the Defendant is still in custody serving his sentence, which will expire completely on 21 July 2020.

The Present Application

11. The application made by the Plaintiff is for the appointment of qualified psychiatrists under s.15(4) of the Act to examine the Defendant and report on those examinations. In addition, the Plaintiff seeks an order under s.18A of the Act that the Defendant be subject to an interim detention order (“IDO”) for a period of 28 days from 21 July 2020. Finally, an order is sought (of a type which is commonly made) restricting access to the Court file with respect to any application by a non-party for access to the file.

12. I noted earlier that counsel for the Defendant does not oppose the making of the orders sought by the Plaintiff at this preliminary hearing. It is conceded, on behalf of the Defendant, that the formal requirements under the Act are satisfied in this case with respect to the Defendant’s status as a sentenced prisoner and other relevant criteria specified in the Act. It is conceded as well that the Defendant meets the formal requirements for either an extended supervision order or a continuing detention order (at this preliminary stage at least) and therefore that an IDO is open to be made by the Court. It remains a matter for the Court to be satisfied of those factors. The approach adopted by the Defendant, which is a considered one, is helpful. In my view, the concession is properly made. I am satisfied that the formal requirements under the Act are all made out in this case.

13. The practical context in which the Defendant has taken this approach is that he embarked in March 2020 upon the Self-Regulation Program: Violent Offenders (“SRP:VO”) course and he wishes to complete the course.

14. The evidence reveals the Defendant’s chequered history over the years with respect to undertaking or completing particular courses which have been available to him in custody. It is not necessary to recite the problems which have arisen in this respect. It is, however, a positive feature at the present time that the Defendant wishes to persevere and complete the SRP:VO course. At the age of 40, this is an important step.

15. The evidence indicated initially that the SRP:VO course may be completed by July 2020. However, the most recent indication is that, subject to any restrictions flowing from the COVID-19 pandemic, the course would be completed in September 2020. For the purpose of today, I do no more than record the fact that they are the dates which have been indicated in the evidence.

16. The task of the Court today is confined to making orders at the preliminary hearing, being orders for examination and by way of an IDO, which is time limited. It will be a matter for a Court at a later time to determine what other orders ought to be made, if the Court proceeds to make the orders sought by the Plaintiff today.

17. I have had regard to the evidence which is furnished in respect of the application. It is not necessary to recite the legal principles applicable at this preliminary hearing. The principles are well-known and are summarised in the written submissions prepared on behalf of the Plaintiff. I have applied those principles in considering this application.

18. The task of the Court at this preliminary hearing is a limited one where the Court is not reaching a settled view as to the ultimate question. I note that the authority to order an IDO arises if the Court is satisfied to a limited extent, sometimes described as a prima facie level, that a continuing supervision order or a continuing detention order may be ordered in the case.

19. I am satisfied, on the material, that the statutory requirements are met so that the Court is authorised to make the orders sought by the Plaintiff. The Defendant accepts that this is the appropriate conclusion to be reached at this time.

20. I should note, however, that counsel for the Defendant has made clear that, at any final hearing, there will be a contest as to whether any continuing detention order should be made. It is important to observe that that will be an issue in the future, so that there is no misunderstanding about the approach of the Defendant today. It may be, at a future time, there will be less of a contest with respect to an application for an extended supervision order, but I say no more about that. Clearly, it will depend upon the evidence before a Court at a final hearing and the position of the parties by reference to that evidence.

21. I have had particular regard to the description of the offences committed in 2005, as outlined in the sentencing remarks of Finnane QC DCJ and the judgment of the Court of Criminal Appeal. It is not necessary to repeat those matters for the purpose of this judgment. It will be apparent that the effective sentence imposed by the Court of Criminal Appeal reflects the gravity of the offences committed against the victim over a period of time, some 15 years ago.

22. The Defendant does have a prior criminal history and I have had regard to that. It is not necessary to particularise that record for the purpose of this decision.

23. The Act requires the Court to consider other categories of material. These include reports which have been prepared in the past with respect to the Defendant. These include a psychological report by Dr Katie Seidler in 2006 prepared for the purpose of the sentencing hearing before Finnane QC DCJ, together with a presentence report, which identified matters of particular concern at that time.

24. More recently there have been, in accordance with the legislative requirements, a Risk Assessment Report prepared by Mandy Lau, Senior Psychologist with the Serious Offender Assessment Unit, dated 16 October 2019. That report identifies areas of progress on the part of the Defendant whilst in custody, and also significant areas of non-progress concerning matters that bear upon the risk of further offending. It is not necessary to recite in detail the contents of Ms Lau’s report, but they indicate a current need for a number of steps to be taken in the area of reduction of risk of reoffending with respect to the Defendant.

25. It is the case that the Defendant has undertaken a number of courses in custody, although only some have been completed or other problems have presented. I have mentioned the fact that he is undertaking the SRP:VO course at the present time.

26. Reports have been prepared for the State Parole Authority, including necessary reports by the Serious Offender Review Council, which have regularly advised against release of the Defendant on parole. I have had regard to that material.

27. It is important to note in Ms Lau’s report of 16 October 2019 that recently the Defendant has stated that he now perceives Community Corrections as a form of support and has expressed an intention to remain compliant with conditions. The Defendant attributed his change in perspective to maturity and other factors which have borne upon his thought processes. Ms Lau noted that the Defendant had demonstrated an ability to identify and engage in pro-social coping strategies such as thought challenging, mindfulness exercises and appropriate problem solving during the initial periods of his participation in the SRP:VO program.

28. Ms Lau noted a number of risk assessments undertaken with respect to the Defendant in 2006, 2009 and 2019. In May 2019, the Defendant was assessed, using the Violence Risk Scale, as being in the high-risk category of reoffending. Ms Lau’s assessment in October 2019 pointed to a hypothetical risk scenario in which the Defendant would return to the community and resume contact with the victim and, in particular, referred to circumstances where there was significant concern as to the risk posed by the Defendant.

29. In addition to the report of Ms Lau, there is a Risk Management Report prepared by Erin Kirkwood, Senior Community Corrections Officer with the Extended Supervision Team, dated 15 September 2019. This report identified a number of risk factors as well, which are pertinent for the purpose of today’s hearing.

30. The position then is that recent assessments concerning the Defendant point to levels of concern with respect to the risk of reoffending, in particular in a context similar to that in which the 2005 offences occurred.

31. The Plaintiff contends that an IDO should be made in this case, submitting that the evidence indicates that the Defendant has limited insight into the seriousness of his sexual and violent offending, which is in the high-risk category for violent offending and above-average risk on actuarial assessment of sexual reoffending; he has a high density of criminogenic needs, being relationship skills deficits, general self-regulation and distorted attitudes; he has multiple risk factors for reoffending; he has a history of poor compliance with conditional liberty in the past; there have been limited efforts to complete offence-specific programs in the past and that it is only recently that the Defendant has returned to involvement in the program which he is presently undertaking.

32. I outline those matters which are supported by the material before the Court. I emphasise, however, that the material now before the Court indicates that the Defendant has embarked upon a path (perhaps being at an early stage of it) of confronting a number of features which have given rise to past, serious criminality and which may involve him coming to terms with these factors and developing insight in a way which may hold some hope for the future. It is no doubt because of the stage which the Defendant has reached that he has taken the sensible approach to the present application, which I have outlined.

33. I do propose to make the orders as sought by the Plaintiff in the Summons.

Examination by Psychiatrists and a Psychologist

34. There is, however, one area where a variation will be made in the orders as sought in the Summons. The Summons sought the appointment of either two qualified psychiatrists or a qualified psychiatrist and a qualified psychologist, to conduct separate psychiatric and/or psychological examinations of the Defendant. In other words, what the Summons sought was that two health professionals examine the Defendant and report to the Court with respect to those examinations.

35. Mr Fernandez submitted that, having regard to the evidence before the Court, the Court should appoint two qualified psychiatrists to report to the Court. Reference was made to evidence concerning medication which the Defendant is presently receiving, and other aspects of the matter so that psychiatric examinations were the appropriate course to adopt.

36. Mr Coady submitted that there was a proper role for the Court, in the appointment of experts, to nominate a clinical psychologist as one of the experts to be appointed. Mr Coady pointed to what he submitted were issues of disadvantage and distorted thought patterns, which would be appropriately considered and assessed by a clinical psychologist.

37. The Plaintiff submitted that there is an abundance of material about psychological examinations of the Defendant already in the material before the Court.

38. Ordinarily, on applications under the Act made at a preliminary hearing, if the Court is minded to make orders, the Court makes orders without addressing the type of health professional who should carry out the examination. The usual practice is that the parties reach an agreement as to the identity of selected psychiatrists or psychologists and reports are thereafter prepared by those persons.

39. In this application, the Court has been asked to consider this issue. I note that s.15(4)(a) of the Act provides for a number of permutations and combinations. The Court can appoint:

“(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 1 qualified psychiatrist and 1 registered psychologist, or

(iv) 2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations.”

40. It can be seen then that s.15 of the Act provides flexibility as to the particular class of expert, whether it be a psychiatrist or psychologist, and the number of them. In the present case, which is a complex one, and where there is a long history of the Defendant having been in custody already for 15 years, it seems to me that the Court will be best assisted by taking up the submissions made on behalf of both the Plaintiff and the Defendant.

41. I propose to order that examinations be undertaken by two qualified psychiatrists so that the Judge hearing the final application in this matter will have the benefit of those opinions, expressed by reference to the contemporaneous state of affairs concerning the Defendant from a psychiatric perspective. There are, it would seem, psychiatric issues to be considered.

42. In addition, however, I am satisfied that a clinical psychologist should also be appointed by the Court. I do not think that the numbers of psychiatrists and psychologists specified in s.15(4)(a) constitute an exhaustive recital of the persons who may be the subject of Court appointment. There is no reason why the Court would not consider appointing two psychiatrists and a psychologist. Clearly, the Act envisages that the Court should consider what is necessary in the particular circumstances of the case.

43. The Defendant has a complex history. His offences have largely been confined to offences committed in a domestic setting, but they are offences of very substantial gravity, as reflected in the sentences which have been imposed. There is a complex mix of social and other factors, including health factors, which have no doubt been at play. A Court considering what orders should be made under the Act with respect to the Defendant, who is now 40 years old, will be best assisted by reports from two psychiatrists and one clinical psychologist.

40. In the circumstances of this case, I propose to make an order to that effect.

41. The IDO to be made under s.18A of the Act will be expressed to operate for a period of 28 days commencing on 21 July 2020, that being the date upon which the Defendant’s current sentence will expire.

42. For the reasons which I have expressed, I make Orders 1, 2, 3 and 4 in accordance with the Short Minutes of Order, which I have signed and dated today.

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Decision last updated: 10 June 2020