State of New South Wales v Cheney (Preliminary)

[2020] NSWSC 703

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v Cheney (Preliminary) [2020] NSWSC 703
Hearing dates:	29 May 2020
Date of orders:	29 May 2020
Decision date:	11 June 2020
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	See Paragraph 59
Catchwords:	HIGH RISK OFFENDERS – preliminary hearing – interim orders - s 17 considerations – whether the matters alleged justify making an order - determining whether to grant an interim detention order or an interim supervision order – considerations of likely final order a question for the final hearing
Legislation Cited:	Crimes Act 1900 (NSW), s 90A (repealed) Criminal Appeal Act 1912 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) ss 5C, 5D, 12, 13B(3), 14, 15(3), 15(4), s 17, s 18A, 20
Cases Cited:	Attorney General for New South Wales v Tillman [2007] NSWCA 119 Cornwall v Attorney General for NSW [2007] NSWCA 374 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
Category:	Principal judgment
Parties:	State of NSW (Plaintiff) Roger David Cheney (Defendant)
Representation:	Counsel: E. Sullivan (Plaintiff) S. Hall (Defendant)   Solicitors: Crown Solicitor (Plaintiff) Legal Aid Commission (Defendant)
File Number(s):	2020/112847

Judgment

1. The total effective sentence imposed upon the defendant, Roger Cheney (“the offender”), of imprisonment for 25 years for 14 counts of connected offending in 1993, including shocking, serious child sex abuse offences, expires on 21 June 2020. The State of New South Wales (“the State”) has commenced proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW) seeking an order under s 17(1)(b) for the offender’s continuing detention for a period of 3 years from the expiration of his sentence. Unless otherwise stated all references to legislation are to the Act.

2. The summons was filed on 15 April 2020 and it came before me for a preliminary hearing in accordance with s 15(3) on 29 May 2020. At the preliminary hearing the State sought an order for interim detention in accordance with s 18A and orders under s 15(4) for the appointment of two relevantly qualified experts to conduct separate examinations of the offender, furnish individual reports to the Court following each examination, and directing the offender to attend the examinations.

3. As alternative final relief, the summons claims an extended supervision order, and an interim supervision order is sought if, in the exercise of my discretion, I decline an interim detention order.

4. The offender accepts that: he is a detained offender serving a sentence of imprisonment for a serious offence to whom Part 3 of the Act applies; the application for the Continuing Detention Order has been made within time permitted by s 13B(3); the State’s application has been made in accordance with the requirements of s 14; and that the evidence relied upon by the State is capable of proving that he is an offender who poses an unacceptable risk of committing another serious offence if not kept under supervision. He does not accept that the matters alleged in the supporting documentation before me, if accepted at the final hearing, would establish that he is a person who poses an unacceptable risk of committing another serious offence if not kept in detention.

Legal issues at preliminary hearing

5. The key provisions for my purposes are s 18A and s 15(4). Section 18A is in the following terms:

The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court:

(a)  that the offender’s current custody (if any) will expire before the proceedings are determined, and

(b)  that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order. (My emphasis.)

I interpolate that there is no question that s 18A(a) is satisfied: the offender’s current custody will expire before the proceedings for final relief are determined.

6. Section 15(4) need not be set out in full. Its effect is that if following the preliminary hearing I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of either a continuing detention order or an extended supervision order, I must make orders for the appointment of two relevantly qualified experts, compulsory examination of the offender and the provision of an expert report following each examination.

7. It is notable that the legal effect of s 18A, in the context of the present dispute, is that I have a discretion to make an interim detention order even if satisfied that the matters alleged would have proved to justify the making of an extended supervision order and not a continuing detention order: Attorney General for New South Wales v Tillman [2007] NSWCA 119.

Central question

8. The central question for my consideration is whether the matters alleged in the supporting documentation, if proved at the final hearing, would justify the making of an extended supervision order or a continuing detention order. This requires consideration of those allegations through the provisions of both s 5C(d), which prescribes the substantial condition that must be satisfied before a continuing detention order may be made, and s 17, conferring power to determine the application and setting out the mandatory considerations governing the exercise of that power.

9. It needs to be borne in mind that after a final hearing the Court may only make a continuing detention order if it is satisfied that the unacceptable risk condition has been established “to a high degree of probability”, a level of persuasion higher than the usual civil standard of “on the balance of probabilities”: see Cornwall v Attorney General for NSW [2007] NSWCA 374 at [21]. Section 5D makes clear that the Court does not have to find that the chance of the risk materialising is “more likely than not” for the risk to be unacceptable. An assessment of future probabilities is called for, not a prediction of future outcomes on the balance of probabilities, or as “more likely than not”.

The offender’s background and past offending

10. According to the Risk Assessment Report of September 2019 by Dr Richard Parker, a senior psychologist employed by the Department of Communities and Justice, which I will refer to again below, the offender was born in 1958, the second of four children in his “pro-social” family. The offender was well brought up and well behaved until the age of 14. Then, an incident occurred involving an assault by him in the classroom on a young teacher. The school principal apparently advised his family it would be better if he left school if he had work available, notwithstanding that he was still under-aged. He was sent from his home in regional New South Wales to Victoria to work as an apprentice horse trainer/caretaker. He did not complete that apprenticeship but returned to his home town and undertook some further schooling before obtaining an apprenticeship as a bricklayer. He also obtained a licence as an amateur jockey. At about this stage in his life he commenced offending involving property crimes and an assault. At the age of 17 he was sentenced to detention which he described to Dr Parker as a “school of crime”.

11. His experience of substance abuse consisted of binge drinking on weekends and occasional cannabis use.

12. As a young adult he was sentenced by the District Court to a term of imprisonment of 5 years with a 2 year non-parole period in August 1976 for the offence of breaking a dwelling and entering to commit a robbery. In March 1984 he was sentenced by the then Court of Petty Sessions to imprisonment for 2 years with a non-parole period of 1 year for five counts of break, enter and steal. In March 1985 he was sentenced by the District Court to imprisonment for 18 months for three counts of break, enter and steal.

13. His first apparent sex offence occurred in July 1988 in the Australian Capital Territory. He was charged with and convicted of one count of assault with intent to have sexual intercourse and four counts of sexual intercourse without consent against an adult victim in a public park. While awaiting trial he was convicted of a number of property offences in the ACT involving burglary, receiving stolen property and 100 counts of obtaining financial benefit by deception and related matters. He was in custody serving sentences and on remand for these various matters including the sexual offence from 30 August 1988 until 26 April 1991.

14. He was released from custody after a successful appeal to the Full Court of the Federal Court of Australia from his conviction for the sex offences. His convictions were quashed and a re-trial ordered because of important departures from the presuppositions underpinning a fair trial by the trial judge permitting certain Crown evidence to be led in reply, and the ACT prosecuting authorities decided not to re-try him.

15. On 3 May 1991, only one week after his release from this custody, he committed the offences of the malicious infliction of actual bodily harm on an adult female with intent to have sexual intercourse and assault occasioning actual bodily harm on a police officer attempting his arrest. He was arrested near the scene of the attempted sexual assault and remanded in custody before being granted bail and released on 19 August 1992.

16. He seems to have absconded while on bail because warrants for his non-appearance were issued in the District Court on 1 November 1992 and 2 November 1993. He must have been re-arrested promptly on the second warrant because the records show that he was released to bail again on 3 November 1993. It was while he was on bail for the 1991 offences that he committed the index offences between 21 November and 8 December 1993. He was re-arrested on 8 December 1993 and has been in custody ever since, initially serving a sentence for the 1991 offences (Shillington DCJ, 24 March 1995) and then for the index offences (Kirkham DCJ, 20 April 1995).

The sentence for the 1991 offences

17. The offender entered a plea of not guilty and was tried by Shillington DCJ sitting alone without a jury in a trial commencing on 8 March 1995. He was convicted by his Honour on 14 March 1995. There was evidence at the trial which the learned judge accepted that the female victim was unable to give evidence at the trial because of a post-traumatic stress disorder resulting from the assault. When examined at hospital, the victim was described as extremely distraught, in tears and “collapsing”. There was evidence of physical violence around her face, neck, abdomen, hands and genital area. The offender was disturbed in the act of attempting sexual intercourse by police arriving in response to a report from a member of the public and he attempted to flee. He led police in a long chase and violently resisted arrest when caught.

18. The offender had made a dock statement denying that he was the perpetrator and stating that he just happened to be innocently in the vicinity before being set upon by police. It is a feature of the offenders sexual offending that he continues to deny any involvement in any of the matters and has sought to vindicate what he regards as his innocence by pursuing available avenues of appeal under Criminal Appeal Act 1912 (NSW), and review under the Crimes (Appeal and Review) Act 2001 (NSW). In the latter case, more than once.

19. In his remarks on sentence of 24 March 1995, Shillington CJ, having recounted the evidence of the psychological trauma suffered by the female victim remarked, “it would be difficult to think of a more serious case of this type” (Working Folder (“WF”) Vol. 2 p. 161). His Honour also observed that the offender had shown no contrition and that even in proceedings on sentence he had claimed his innocence. The sentencing judge regarded the offender’s attitude as “aggressive and self-righteous” and his conduct as “both cold-blooded and calculating” (WF Vol. 2 p. 162). His Honour considered that “very little” could be said in the offender’s favour “from the point of view of subjective matters” (WF Vol. 2 p. 162). He was sentenced to a term of imprisonment commencing on 8 December 1993, when he was taken back into custody, having a non-parole period of 4 years and 8 months and an additional term of 2 years.

The index offending

20. On arraignment in the District Court at Coffs Harbour constituted by Kirkham DCJ and a jury on 20 April 1995, the offender pleaded not guilty to 12 counts of serious criminality involving sexual intercourse or the attempted sexual intercourse with two minors on separate occasions. He was convicted by the jury of all counts on 8 June 1995. As I have indicated above, this offending took place over the period 21 November 1993 to 8 December 1993 while the offender was on bail for the 1991 offending. Indeed the offending commenced two and a half weeks after his release to bail following his arrest on a warrant for non-appearance in the District Court on 2 November 1993. Once again the offender has maintained his innocence of all these charges contending he was merely the wrong person in the wrong place at the wrong time when arrested by police. He was sentenced by his Honour Judge Kirkham on 22 June 1995. In one respect only the sentenced passed on the offender by Judge Kirkham was corrected on appeal by the New South Wales Court of Appeal on 7 October 1999, reducing the total effective sentence, as I have already said to one of 25 years, partially accumulated on the sentence passed on the offender for the 1991 offending by Shillington DCJ by about nineteen months.

21. The fourteen counts were as follows:

Count 1:   On or about 21 November 1993 at Port Macquarie in the State of New South Wales, the offender did take away M with intent to hold M to his advantage.

Count 2:   On or about 21 November 1993 at Port Macquarie in the said State, the offender did assault M and at the time of such assault did commit an act of indecency upon her, she then being aged 10 years.

Count 3:   On or about 21 November 1993 at Port Macquarie in the said State, the offender did have sexual intercourse with M, she then being under the age of 16 years.

Count 4:   On or about 28 November 1993 at Port Macquarie in the said State, the offender did enter dwelling house of S with intent to commit a felony therein, namely to assault a person or persons thereon.

Count 5:   On or about 28 November 1993 at Port Macquarie in the said State, did assault M.

Count 6   On 7 December 1993 at Port Macquarie in the said State, did break in and enter the dwelling house of [a resort complex] and therein did steal certain property, namely one lady’s handbag, one wallet, three credit cards, one purse, one silver pen, two sets of sterling silver earrings, cosmetics, one ten dollar note, the property of [a victim].

Count 7   On or about 8 December 1993 at Port Macquarie in the said State, did use an offensive weapon, namely a revolver with intent to prevent the lawful detention of himself.

Count 8   On or about 8 December 1993 at Port Macquarie in the said State, did take away A with intent to hold A for advantage to [the offender].

Count 9   On or about 8 December 1993 at Port Macquarie in the said State, did have sexual intercourse with A, she then being under the age of 10 years.

Count 10   On or about 8 December 1993 at Port Macquarie in the said State, did assault A and at the time of such assault did commit an act of indecency on her, she then being under the age of 10 years.

Count 11   On or about 8 December 1993 at Port Macquarie in the said State, did have sexual intercourse with A, she then being under the age of 10 years.

Count 12   On or about 8 December 1993 at Port Macquarie in the said State, did have sexual intercourse with A, she then being under the age of 10 years.

Count 13   On 8 December 1993 at Port Macquarie in the said State, did assault [another victim] thereby occasioning to [them] actual bodily harm.

Count 14   On 8 December 1993 at Port Macquarie in the said State, did assault [yet another victim] thereby occasioning to [them] actual bodily harm.

22. In the list of charges M and A, as the initialisms suggest, are the minors involved. M, at the time of the offending was a 10 year old female child and A, an 8 year old female child. They were unrelated. M’s family home was located near the area of Port Macquarie where the offender was then camping. A was staying with her family in holiday accommodation in what his Honour described as “a resort complex in the northern area of the city of Port Macquarie … relatively close to the camp site” that the offender had set up on the north shore of the Hastings River (WF Vol. 2 p. 87).

23. For the purpose of sentencing the offender, Kirkham DCJ described the sexual content of the offending against M as follows (WF Vol. 2 p. 85 - 86):

On 21 November 1993 a ten year old female child to whom I shall refer to as M went to bed in her home at Port Macquarie. Present in the house were her parents and family friends, one of whom shared M’s bedroom. During the hours of darkness [the offender] by some means entered M’s bedroom without being detected, whilst M’s friend slept nearby. She next remembers waking outside under her doona. She lay on the ground. [The offender was] near her. [The offender] told her to go to sleep and left her alone for a few moments. She tried to sleep but she could not.

[The offender] spoke to her in whispers and spoke of a monster. [The offender] indecently assaulted the child by touching her around the vaginal area. [The offender] then forced her to suck [his] penis. [He] told her that [his] name was Jimmy. A little later [the offender] put her back in bed and told her to be a good girl. [The offender] said that she should not relate what had occurred between [him] and her to anybody.

When M tried to complain to her mother “she was unable to convince her mother that it had been anything more than a nightmare”.

24. He broke into M’s house again on 28 November and attempted to pull down her tracksuit pants. When she resisted he told her that monster would get her. Judge Kirkham continued (WF Vol. 2 p. 86 - 87):

At this she screamed and ran into her parents’ bedroom. They tried to calm and reassure her.

She was able to say that Jimmy had returned, or words to that effect, but they still had trouble believing that anybody had been in her room. Her stepfather carried her around the house to prove that there was no intruder present, but he noticed a porcelain doll and a pot plant out of place near a window which had obviously been interfered with. The police were called and an investigation commenced.

25. Judge Kirkham described the sexual offending against A in the following terms (WF Vol. 2 p. 90 - 91):

First, by their verdict of guilty on the count of kidnapping, the jury was satisfied beyond reasonable doubt that it was indeed [the offender] who was in A’s room at the relevant time and carried her off. Second, by its verdict of guilty of all of the counts concerning A the jury was satisfied beyond reasonable doubt that [the offender] had indecently assaulted and then had sexual intercourse with A, committing cunnilingus upon her and also by forcing her to suck [the offender’s] penis, and finally by penile penetration of her vagina which caused a tear to her hymen, she also suffered other superficial injuries to the body and face in the process.

As [the offender] had done with M, [he] spoke in whispers, told her [his] name was Jimmy and that she should not tell anybody as to what had occurred. [The offender] also left her alone for a few moments which had also been M’s experience. Like M, A was taken back to her bed. However, before [the offender] did this [he] took her to the pool area in the resort where [he] washed her around the vaginal area, no doubt in an attempt to remove any identifiable traces of [his] own person around her body. During this process her red t-shirt became wet.

[The offender], as in M’s case, [was] undeterred by the presence in A’s bedroom of another child when [he] kidnapped her.

26. Later in the afternoon of the 8th, the offender was spotted by a police officer and a civilian. When the police officer gave chase, the offender attempted to escape in the course of which he assaulted two male civilians inflicting actual bodily harm on them.

27. Kirkham DCJ set out the evidence led at the trial of the attempts the offender had made from custody to suborn the evidence of important witnesses by forging letters purporting to be from police officers.

28. His Honour said (WF Vol. 2 p. 93):

Objectively the offences against A and M are extremely serious, A more than M because of the nature and number of offences committed upon A during her time under [the offender’s] control, and the nature of her injuries which I find beyond reasonable doubt does amount to a substantial injury within the meaning of the Act. It will be some time before it is known whether or not A has suffered any long-term emotional harm as a result of [the offender’s] actions. The experience of the courts has been that on the probabilities this type of conduct involving indecent assault, fellatio, cunnilingus and forcible penile penetration with associated hymen damage of a pre-pubescent girl, future problems will be experienced in her relationships with men, and perhaps even with her father.

29. Kirkham DCJ found the offender to be a very resourceful criminal who committed evil crimes against these children making him a “very dangerous criminal”. His Honour said (WF Vol. 2 p. 96):

There seems to be no end of the types of crime that [the offender] will commit, which seem to be escalating in order of seriousness as time passes.

His Honour also said (WF Vol. 2 p. 96 - 97):

For [his] crimes [the offender is] totally unrepentant, totally without remorse and at the moment now aged nearly 40 and further denying [his] guilt of these offences, without any prospect of rehabilitation. [The offender is] a true menace to the community, inflicting pain and anguish and fear upon [his] many victims, both young and old.

…

[The offender is] an exploiter of the criminal justice system, [he] manipulate[s] that system using every ploy to avoid conviction and to distract the tribunal of fact. [The offender] exploit[s] its weaknesses and grasp[s] the benefits of its strengths. It is another measure of [the offender’s] menace to the community as a whole that [he] recognise[s] these strengths and weaknesses and use[s] them as [he does].

His Honour referred to an attitude of “calculated arrogance” in the offender’s attitude to the criminal justice system and the conduct of his defence. His Honour emphasised the need for retribution and general deterrence, for the protection of children. He said (WF Vol. 2 p. 98):

… young children are entitled to the security of their homes and when this security has been breached, they are further entitled to expect that the full measure of the law would be brought to bear to deter people like [the offender] as well as any other person who may be likeminded.

His Honour was unsurprised by the offender continuing to profess his innocence having regard to the view his Honour had formed about his attitude. His Honour found that kidnapping A for the purpose of the offender’s, I will say, perverted, sexual gratification and occasioning substantial injury fell into the worst category of kidnapping offence created by the former s 90A Crimes Act 1900 (NSW). It is convenient to say here that the Court of Criminal Appeal agreed with his Honour’s assessment (WF Vol. 2 p. 117 at [85]).

30. The Court of Criminal Appeal dismissed the offender’s conviction appeal, but granted leave to appeal on sentence and upheld that appeal, reducing the total effective sentence which had been imposed of 30 years to one of 25 years, expiring on 21 June 2020. The non-parole period was also reduced by a factor of 5 years so that the offender first became eligible for parole on 21 June 2012. He has never been adjudged eligible for parole. The error identified was one of principle. Their Honours did not disagree with Kirkham DCJ’s finding of fact or the inferences drawn from them.

Other section 17 considerations

S 17(2)

31. I bear in mind that the safety of the community is the paramount consideration informing the exercise of the Court’s power to make a Continuing Detention Order: s 17(2). This protective purpose does not exclude the consideration of the right of the offender to be at liberty after the completion of his sentence as a relevant consideration informing the exercise of the Court’s discretionary powers under s 17(1): Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [129]-[131] (Basten JA) and [149] (Gleeson JA). On the other hand the protective and secondary rehabilitative purposes are said to “weigh against any strong presumption in favour of liberty prevailing, at least at the interim stage”: Attorney General v Tillman at [45].

Reports under s 17(4)

32. Obviously at the preliminary stage no such reports are available for consideration.

S 17(4)(c) and (d)

33. Quite remarkably in my experience of cases under the Act, there are no known psychological or psychiatric reports extant other than the risk assessment report prepared by Dr Parker on 27 September 2019. No psychiatric or psychological report was tendered in the proceedings on sentence for neither the 1991 offending nor the index offending. Doubtless, they were heard in a different age before the apparent ubiquity of such reports in proceedings on sentence. It may also be that the offender’s denial of responsibility for the offending made the tender of such reports otiose, except to the extent to which his intransigence may have been explained on psychological grounds.

34. I have already made some reference to Dr Parker’s report. He makes the salient point that since the age of 20, the offender has spent less than 8 years in the community, and in broken periods. He is now in his 62nd year (Dr Parker erroneously recorded the year of the offender’s birth as 1956). Dr Parker records that the offender continues to deny involvement in any sexual offending. Perhaps counter-intuitively, Dr Parker records that “denial” is neither a barrier to effective psychological treatment, nor an acknowledged risk factor for future sexual offending (referencing Hanson and Bussière 1998). Quite apart from the Risk Assessment Report undertaken by Dr Parker he has been treating the offender since 7 March 2018 in sessions of individual psychological intervention in custody. Dr Parker records that the offender willingly agreed to participate and as at the date of the preparation of the Risk Assessment Report had participated in 29 sessions at the Long Bay Correctional Complex. There is no evidence that the offender suffers an intellectual disability or from a psychiatric condition. Dr Parker is of the view that the offender “has made excellent progress in the individual treatment” program, but needs an opportunity to practise his skills in a community setting (WF Vol. 2 p. 63 at [97]).

35. Dr Parker administered the usual battery of statistical or actuarial assessment tests. Overall, Dr Parker concluded (WF Vol. 2 p. 62 at [87]):

The actuarial instruments used in this report place Mr Cheney at an above average risk of sexual offending. Instruments using broader definitions of recidivism placed him in the second highest categories of risk.

36. From the sessions Dr Parker has conducted with the offender he formed the view (WF Vol. 2 p. 64 at [99]):

His expressed attitudes indicate he would comply with the conditions of an ESO, but he has not had any opportunity to demonstrate whether he would comply with community supervision.

37. Dr Parker’s assessment and opinions were reviewed and supported by Mr Samuel Ardasinski, the Acting Chief Psychologist for the Department’s Risk Management Programs.

S 17(4)(d1), Risk Management Report

38. The Risk Management Report has been prepared by Ms Ashley-Ann Newby, a community corrections officer with the Extended Supervision Order Team (WF Vol. 2 p. 67 – 83). Her report is dated 1 November 2019. She makes the point that looking at the offender’s record prior to his commencement of his current long period of incarceration he was yet to complete a period of supervision in the community in a satisfactory manner (WF Vol. 2 p. 67). Despite first becoming eligible for parole after 21 June 2012, he has never been granted parole by the Parole Authority (WF Vol. 2 p. 67). The offender has minimal, if any, familial or social supports in the community and has had no visitor for over 2 years (WF Vol. 2 p. 67). He has been accepted for placement at the Nunyara Community Offender Support Program (COSP) Centre but this was cancelled after being denied parole in November 2019 (WF Vol. 2 p. 67). It is not said this accommodation would not be available now. Ms Newby’s opinion appears to be that the offender can be managed in the community with the usual suite of stringent conditions including electronic monitoring, schedules of movement, curfews, ongoing psychological support services, exclusion of contact with children under the age of 18 and supervision by Community Corrections.

S 17(4)(e), Treatment and rehabilitation in custody

39. Doubtless because of his “denial” the offender has not taken the opportunity to engage in all of the available programs that have been offered to him during his long period of incarceration. As long ago as July 2008 (WF Vol. 2 page 192) he refused to undertake a psychological assessment for a report requested by the Serious Offenders Review Council relevant to his progress in custody prior to the consideration of his release on parole. He thought the assessment unnecessary because he expected to be exonerated on the basis of “fresh evidence” placed before the Supreme Court as part of a review under the Crimes (Appeal and Review Act) 2001 (NSW) and was worried that the assessment could be used against him in court.

40. As I have said, he did agree to participate and has co-operated with Dr Parker in the individual intervention. But apart from that he has not completed any available course except the EQUIPS Addictions Program. He steadfastly refused to engage in any sex offender programs. He refused to undertake the CUBIT Program in October 2010; he refused to participate in PREP Program in 2012; and he refused referral to the Violent Offenders Therapeutic Program in 2014, refusing to sign the relevant form because he had a further review application before the Supreme Court. He again refused to participate in the Deniers Program in September 2016 for the same reason, declining to sign the refusal form.

41. He eventually agreed to participate in the Deniers Program of approximately 6 months duration in or about 2017, but when a place was offered in 2019 he refused it in the belief that it would adversely affect his prospect of being released on parole because of its duration. It appears not to have occurred to him that participation in appropriate sex offender programs may have promoted his prospects of release on parole.

42. As is obvious he has never been released on parole. On my reading of the material this is mainly due to the opposition of the Serious Offender’s Review Council. It appears that that body may have been reconsidering its position in October 2019 but due to an “intelligence report of 19 August 2019” the Council had doubts about the success of Dr Parker’s individual intervention program (WF Vol. 2 p. 314). The intelligence report appeared to relate to an alleged attempt to contact high school girls. In the event, the Review Council maintained its previous opposition to parole.

S 17(4)(e)(1)

43. Given that the offender has no mental health condition, is not eligible for parole and his sentence is about to expire, the only options available to reduce the likelihood of the offender re-offending over time are orders under the Act either by way of continuing detention or extended supervision.

S 17(4)(e2), The likelihood of compliance; and s 17(4)(f) history of compliance

44. The offender has told Dr Parker that he would comply with the obligations of an extended supervision order, if imposed. Indeed, through his legal representatives he has made it clear to the Court that he accepts that it is appropriate that an extended supervision order be made in his case. Given his long period of incarceration and the inevitable institutionalisation involved, it is difficult to assess the likelihood of his compliance in future. However, one acknowledges that the Court’s experience with the operation of the Act is that the supervision provided in appropriate cases is extremely close, enhancing the prospect of compliance by virtue of the need for the offender to observe sometimes onerous conditions. However it is also the Court’s experience that a certain number of offenders do struggle to comply and find themselves charged with a series of breaches under s 12. As I have stated, the offender’s history of compliance in the past has not been good. At the same time, it must be acknowledged that he has been incarcerated continuously since 8 December 1993. And there have been no breaches of discipline or prison offences recorded against him since 2014.

45. Dr Parker records that, overall, the offender is viewed as “a quiet, compliant prisoner” (WF Vol. 2 p. 54 at [34]). However, there was a very short lived escape in 1994 while he was in hospital for treatment. He has also incurred infringements for abusive language, damaging property and failing to supply urine for a drug test (on two occasions), although there is no other evidence that suggested that the offender has used illicit substances in prison.

46. His compliance with parole and bail prior to December 1993 was, of course, extremely poor. The 1991 offending was committed within a week of his release from custody for the alleged July 1988 sexual offending and the index offending while he was on bail for the 1991 offending. Prior to the offender committing sex offences, his other offending continued unabated notwithstanding the imposition of terms of imprisonment for prior offences.

S 17(4)(g), Child protection legislation

47. The offender has not been required to comply with any obligations under this legislation given his incarceration.

S 17(4)(h), Criminal History and views of sentencing court

48. These considerations have been addressed above. By the time of his conviction for the index offences the offender had a long and varied criminal history. As I have pointed out, Judge Shillington and Judge Kirkham, both experienced criminal judges, saw very little hope for the offender’s rehabilitation. Judge Kirkham regarded him as “a dangerous criminal”.

Other relevant considerations

49. Notwithstanding Dr Parker’s, perhaps guarded, optimism, it is important to refer to the affidavit of Danielle Matsuo sworn on 12 May 2020. Ms Matsuo is a registered psychologist and the director of State-wide programs for Corrective Services New South Wales (“CSNSW”). She is aware of the offender, but has not had direct contact with him. She has reviewed Dr Parker’s Risk Assessment Report. She explains that the Deniers Program is delivered by CSNSW specialist psychologists in a closed group format involving two group sessions per week of approximately 2.5 hours per session (p. 3 at [14]). The program takes 6 months and involves 150 hours of treatment (p. 3 at [14]). One aim of the program involves assisting participants to take responsibility for being accused of a sexual offence, identify how and why they were accused and develop new strategies and skills to allow them to develop a self-management plan to assist their conduct when released (p. 3 -4 at [14]). The program is not available on a regular basis, but only when there are enough inmates wait-listed to participate (p. 4 at [15]). It’s unlikely that the next program will be available before late 2021, or perhaps even later (p. 4 at [15]).

50. Ms Matsuo states that CSNSW records indicate that in October 2010 and October 2016 (as I have said above) the offender refused to be referred to a sex offenders program. The Deniers Program had been available 3 times during that period. Notwithstanding having belatedly expressed willingness to participate, he declined a place in September 2019 because he hoped then to be paroled. Ms Matsuo is of the view that the offender “has some outstanding treatment needs” that could be addressed in the Deniers Program ( p. 4 at [20]). Other options include the Real Understanding of Self-Help Program which, again, is only available in custody or the EQUIPS Foundation which is available in the community (p. 5 at [21]). I am unsure, however, whether participation in that program may require the offender to acknowledge responsibility for his past sex offending.

The submissions of the parties

51. Ms E. Sullivan of Counsel for the State has submitted that I should be satisfied that the supporting material is capable of satisfying the Court on the final hearing to the requisite high degree of probability that the risk of the offender committing another serious sex offence is unacceptable. Ms S. Hall of Counsel for the offender does not take issue with this submission. As I have said, the issue between the parties is whether the offender should be subject to an interim detention order or an interim supervision order pending final determination of the proceedings.

52. In support of an interim detention order, Ms Sullivan referred to seven factors: the offender’s criminal history and pattern of offending; his past failure to comply with conditional liberty; the risk assessment made by Dr Parker, particularly having regard to the actuarial risk; the offender’s ongoing denial of responsibility for his sex offending; the offender’s outstanding treatment needs as identified by Ms Matsuo; the problems that institutionalisation will present for the offender if released; and the lack of a pro-social network in the terms of the absence of familial or other positive community support.

53. Ms Hall emphasised the uncertainty of the availability of the Deniers Program and the availability of other programs such as EQUIPS Foundation in the community if released to supervision under the Act. She submitted that the matters alleged in the supporting documentation were not capable of supporting an order for continuing detention, but at best supported an order for extended supervision.

Determination

54. My own review of the material I have summarised above satisfies me that counsel are correct to agree that the offender presents an unacceptable risk of committing a serious sex offence if released to the community without supervision under the Act. In my view the material is capable of supporting that finding at a final hearing to the necessary high degree of probability. Having regard to that consideration and to my analysis of what the material is capable of supporting in relation to the application of the s 17(4) considerations, I am satisfied at this preliminary stage that the matters alleged in the supporting documentation would, if proved, at the final hearing justify the making of an Extended Supervision Order. I am not satisfied even to the relatively low level required at this preliminary stage that those matters alleged would justify the making of a Continuing Detention Order. This is mainly because I accept that there appear to be other options for addressing the offender’s outstanding treatment needs and, giving full weight to the paramount consideration of the protection of the community, it is not clear that the material supports the conclusion that the risk is unacceptable unless kept in detention, rather than under supervision.

55. But it is not relevant for me to attempt to predict the final outcome of the proceedings. In Attorney General v Tillman at [100], a unanimous Court of Appeal said that it involved error for a judge at the preliminary stage to make a decision as to the appropriate interim order by reference to a view formed about the most likely final outcome of the proceedings.

54. Section 18A(1)(b), like the former s 16(1)(b) considered in Attorney General v Tillman, requires the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or an extended supervision order: Tillman [98] – [99]. At [99] the Court said:

Since [s 18A(1)(b)] is satisfied if either category of final order would be justified if the matters alleged in the documentation are proved, the Court is not required, at the stage of considering whether the discretionary power to make an interim detention order is engaged, to assess which category of final order is likely to be made at the end of the day. Because the word "may" in the closing portion of [s 18A(1)] imports a true discretion, it is open for the Court to refuse to make an interim detention order even if conditions (a) and (b) are satisfied. But it would not be a proper exercise of that discretion, in our opinion, for the Court to make an interim supervision order instead of interim detention order simply because the probabilities suggested that an extended supervision order was the more likely (final) candidate. That would involve reading words into the subsection that are not there. If (unlike the present case) there was only a claim for a continuing detention order, then the only options available to the Court under [s 18A(1)] would be to make an interim detention order or to dismiss the claim for interim relief.

57. Were it permissible for me to treat the present application as though it were a final application, I acknowledge that there is much to be said on the material for the idea that an extended supervision order would provide the requisite degree of community protection which the Act seeks to promote as its primary objective. However, that is not relevant for present purposes.

58. I am persuaded, in the exercise of my discretion, that an interim detention order should be made. This is largely for the purpose of preserving the status quo until the opinions of the experts, whom I am required to appoint by the terms of s 15(4), and other evidence that the parties may wish to introduce, are available for consideration in the context of a final hearing. Of the various facts Ms Sullivan has referred to, I am concerned, at this preliminary stage, about whether the offender will comply with an interim supervision order notwithstanding the likely closeness of the supervision, having regard to his poor compliance with conditional liberty in the past, albeit more than a quarter of a century ago, and his “denial”. I have not overlooked Dr Parker’s expert opinion that denial is neither a bar to effective rehabilitation nor does it add to risk factors for future offending. However, expert opinion cannot be afforded the final say in this area. It is the experience of the courts, and I would think within the ken of ordinary folk, that the acceptance of responsibility for past offending is a necessary condition of an offender’s reform. One would not wish to elevate participation in the Deniers Program out of all proportion to its true significance. However, Ms Matsuo’s evidence suggests a purpose of it is to facilitate offenders accepting responsibility for past offences. This is no doubt capable of being a significant factor in judicial evaluation of all relevant evidence after the final hearing. Moreover, whether the EQUIPS Foundation program is available to a “denier” when offered in the community to those under supervision needs to be clarified.

59. My orders are:

1. Under ss18A and 18C Crimes (High Risk Offenders) Act 2006 (NSW), Roger David Cheney is subject to an Interim Detention Order for a period of 28 days commencing upon the expiration of his current sentence of imprisonment on 21 June 2020;

2. Under s 20 of the said Act, direct that a warrant issue for the committal of the said Roger David Cheney to a correctional centre for the period specified in Order 1.

3. An order pursuant to s 15(4) of the said Act:

1. Appointing 2 qualified psychiatrists and/registered psychologist (or any combination of 2 such experts) to conduct separate psychiatric and/or psychological examinations of the defendant, as the case may be and to furnish reports to the Court on the results of those examinations as soon as may be reasonably practicable after the completion of those examinations;

2. Directing the defendant to attend for and submit to the examinations appointed pursuant to Order 3(a).

4. List the matter for call-over or directions before Justice Bellew on a date to be arranged with his Honour’s associate on or after 6 July 2020.

5. Order that 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.

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Amendments

11 June 2020 - Remove footnote from last page of judgment

Decision last updated: 11 June 2020