State of New South Wales v Delaporte

[2014] NSWSC 1165

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Delaporte [2014] NSWSC 1165

Hearing dates:

18 August 2014

Decision date:

18 August 2014

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act):

(a) Doctor Richard Furst and Doctor Samson Roberts are appointed to conduct separate psychiatric examinations of the defendant;

(b) The defendant is directed to attend those examinations;

(c) Doctor Richard Furst is to furnish his report to the Supreme Court of New South Wales on the results of his examination by 9 September 2014;

(d) Doctor Samson Roberts is to furnish his report to the Supreme Court of New South Wales on the results of his examination by 18 September 2014.

(2) The matter is listed for final hearing on 2 October 2014 with an estimate of one day.

(3) The plaintiff is to file and serve any further evidence by 12 September 2014.

(4) The defendant is to file and serve any evidence by 19 September 2014.

(5) The plaintiff is to file and serve written submissions by 22 September 2014.

(6) The defendant to file and serve written submissions by 26 September 2014.

(7) The parties are to notify one another of any witnesses or authors of reports required for cross-examination by 26 September 2014.

(8) Grant liberty to apply on one day's notice.

(9) Direct that access to the court file in respect of any document shall not be granted without the leave of a judge of the court. If any application for access is made by a non-party in respect of any documents the parties are to be notified by the Registrar so as to be given the opportunity to be heard.

(10) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2006 (NSW) there is to be no publication in New South Wales of any material that will identify the defendant's whereabouts or residential address. Such order to remain in force until the conclusion of the hearing on 2 October 2014.

Catchwords:

CIVL LAW - Crimes (High Risk Offenders) Act 2006 - psychiatric evaluation - interim orders - non publication orders

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)

Category:

Procedural and other rulings

Parties:

Plaintiff: State of New South Wales
Defendant: Jason Aaron Delaporte

Representation:

Counsel:
Plaintiff: D T Kell
Defendant: M Johnston
Solicitors:
Plaintiff: Crown Solicitors of NSW
Defendant: Legal Aid NSW

File Number(s):

2014/19799

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2006 (NSW) there is to be no publication in New South Wales of any material that will identify the defendant's whereabouts or residential address. Such order to remain in force until the conclusion of the hearing on 2 October 2014.

Judgment

1. HIS HONOUR: By summons filed on 25 July 2014 the State of New South Wales (the plaintiff) seeks a variety of orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of the defendant, Jason Delaporte. In support of the application the plaintiff reads an affidavit of Rita Giurastante. That affidavit annexes a number of documents including two risk management reports and a variety of other documents concerning the defendant's criminal history and his past response to supervision and rehabilitation programs within and without the custodial setting.

1. The case is currently before me for interim orders. The summons seeks an interim supervision order pursuant to s 10A of the Act as well as the imposition of various conditions pursuant to s 11 of the Act. However, the defendant is currently being supervised under a Parole Order attaching to a sentence which was imposed upon him on 4 May 2000. The Parole Order will continue until 21 October 2014 and there is a reasonable prospect that the final hearing will be heard before that date. In those circumstances it is not necessary to make an interim supervision order at this stage.

1. The plaintiff also seeks preliminary orders under s 7(4) of the Act by which qualified psychiatrists are appointed to conduct examinations of the defendant and to furnish reports to the court for the purposes of the final resolution of the matter. Associated orders requiring the defendant to attend upon such examinations are also sought. The defendant is represented by counsel with significant experience in matters such as this and he informs me that the defendant consents to the orders under s 7(4). I am satisfied that the defendant is on notice of the application both for interim and final orders and I am satisfied that the plaintiff has disclosed to the defendant relevant documents: cf s 7(2).

1. Before making the interim orders it is necessary for the court to be satisfied that "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order". If I am so satisfied s 7(4) is in mandatory terms. I "must" make the orders sought.

1. In view of the sensible approach taken by counsel for the defendant and in view of his experience in the area it is unnecessary to set out in detail the factual circumstances relied upon by the plaintiff. However these are matters upon which I need to be independently satisfied and I am.

1. The evidence, if accepted, establishes that the defendant has committed a number of sexual offences ranging from obscene exposure to sexual intercourse without consent. Over time he has committed offences against at least eight women, one of whom was just seventeen years of age at the time of the offending.

1. There are two risk assessment reports annexed to the affidavit of Ms Giurastante and those risk assessment reports place the defendant in the "high risk category for sexual and violent re-offending". The reports also demonstrate, if accepted, that the plaintiff's response to supervision and programs has been inconsistent. I should note at this stage that the plaintiff has filed in court without objection an affidavit of Kathleen Harle who is the author of one of the risk assessment reports to which I have just made reference.

1. If the court hearing the final application were satisfied that the opinions stated in the risk assessment reports and the facts to which I have briefly referred are proved the court would be justified in the making of an extended supervision order. Having reached that conclusion, s 7(4) requires me to make the orders sought and I propose to do so.

1. The defendant seeks orders to protect his safety and privacy by ordering non-publication of material which would identify his whereabouts or the location of his residence. He also seeks an order that if any application is made for access to the court file he and the plaintiff's lawyers should be notified of such an application. Mr Kell who appears for the plaintiff and who is also vastly experienced in this area of the law has indicated that the plaintiff consents to such orders.

1. I am satisfied that such orders should be made in the circumstances set out in both the helpful submissions of counsel for each side and in the factual material tendered by the plaintiff. For the purpose of ss 7 and 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) I am satisfied that a non-publication order is "necessary" to protect the safety of the defendant and other persons living with him.

1. The parties have agreed upon a date for hearing and that date is suitable to the court and I propose to confirm that date. I will also make some orders in the nature of case management to ensure that the matter runs efficiently on the day upon which it is listed for hearing. Counsel have helpfully provided me with some draft orders which seem appropriate and I propose to make orders in those terms as well as an order, as I have indicated, under the Court Suppression and Non-Publication Orders Act 2010 (NSW).

1. The orders I make are these:

(1) Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act):

(a)   Doctor Richard Furst and Doctor Samson Roberts are appointed to conduct separate psychiatric examinations of the defendant;

(b)   The defendant is directed to attend those examinations;

(c)   Doctor Richard Furst is to furnish his report to the Supreme Court of New South Wales on the results of his examination by 9 September 2014;

(d)   Doctor Samson Roberts is to furnish his report to the Supreme Court of New South Wales on the results of his examination by 18 September 2014.

(2)   The matter is listed for final hearing on 2 October 2014 with an estimate of one day.

(3)   The plaintiff is to file and serve any further evidence by 12 September 2014.

(4)   The defendant is to file and serve any evidence by 19 September 2014.

(5)   The plaintiff is to file and serve written submissions by 22 September 2014.

(6)   The defendant to file and serve written submissions by 26 September 2014.

(7)   The parties are to notify one another of any witnesses or authors of reports required for cross-examination by 26 September 2014.

(8)   Grant liberty to apply on one day's notice.

(9)   Direct that access to the court file in respect of any document shall not be granted without the leave of a judge of the court. If any application for access is made by a non-party in respect of any documents the parties are to be notified by the Registrar so as to be given the opportunity to be heard.

(10) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act2010 (NSW) there is to be no publication in New South Wales of any material that will identify the defendant's whereabouts or residential address. Such order to remain in force until the conclusion of the hearing on 2 October 2014.

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Decision last updated: 26 August 2014