State of New South Wales v Devries (Preliminary)

[2021] NSWSC 949

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Devries (Preliminary) [2021] NSWSC 949

Hearing dates:

27 July 2021

Decision date:

02 August 2021

Jurisdiction:

Common Law

Before:

R A Hulme J

Decision:

Interim supervision order for 28 days with two qualified psychiatrists and/or registered psychologists appointed to conduct separate examinations of the defendant

Catchwords:

HIGH RISK OFFENDERS – interim supervision order – high risk sex offender – orders consented to – offender with limited intellectual capacity – debate about terms of conditions – conditions consistent with offender’s current parole order imposed

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)(e)

Crimes (High Risk Offenders) Act 2006 (NSW)

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Glen Devries (Defendant)

Representation:

Counsel:
Ms S Love (Plaintiff)
Ms E Sullivan (Defendant)

Solicitors:
Crown Solicitors
Legal Aid NSW

File Number(s):

2021/169062

Judgment

1. HIS HONOUR: The State of New South Wales has brought a proceeding under the Crimes (High Risk Offenders) Act 2006 (NSW) whereby it asks for Mr Glen Devries to be placed on an extended supervision order for five years because he is said to be a high-risk sex offender.

2. This is the preliminary hearing of the application. The State wants Mr Devries placed under an interim supervision order until the final hearing. That will be in about two months' time. Mr Devries is currently on parole until 4 August 2021.

3. There are some other orders sought pending the final hearing. One of them was concerned with not identifying Mr Devries by name. That was thought to be necessary because there are some offences in Mr Devries’ criminal history that occurred when he was a juvenile and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) would require anonymisation. Those juvenile offences are extremely peripheral to the present proceeding; so much so that I do not propose to make any further reference to them. It seemed to me that the principle of open justice was not best served by anonymisation. Ultimately it was accepted that he could be identified but with there being an order made under the Court Suppression and Non-publication Orders Act 2010 (NSW) that no information be published concerning prior offending that occurred when Mr Devries was a juvenile.

4. Through his counsel, Ms Sullivan, Mr Devries does not wish to be heard against the making of an interim supervision order, provided the Court is satisfied the statutory requirements have been met. He opposes the conditions that should apply to an interim supervision order because of the way they are expressed; he says they should be written in ter,s that he can understand. He consents to the other orders sought by the State.

5. The written submissions by Ms Love, for the State, and Ms Sullivan, for Mr Devries, address the principles bearing upon an application of this type in a way that is helpful in reminding me of them (for which I am grateful) but I do not need to repeat them.

6. Similarly, the parties are well aware of all of the factual material relied upon by the State to justify the making of the orders so there is no need for me to tell them anything about it. I am not being asked to make any factual findings.

7. The critical issue is whether I am satisfied that the matters alleged in the documents relied upon by the State would, assuming they are proved, justify the making of an extended supervision order. To justify the making of an extended supervision order, the legislative requirement is that a Court is satisfied to a high degree of probability that Mr Devries poses an unacceptable risk of committing another serious offence if he is not kept under supervision.

8. Having reviewed the documents relied upon by the State, particularly the report of Ms Holly Cieplucha, Senior Psychologist, Serious Offenders Assessment Unit, Corrective Services NSW, as well as the results obtained by the use of risk assessment tools, I'm satisfied of what is required. I will make an interim supervision order.

9. The next issue to decide concerns the conditions that should apply to that interim supervision order. There is a substantial debate between the parties about this. The issue arises because of Mr Devries' very limited intellectual capacity in relation to understanding and remembering written and oral communications. His own ability to communicate is hamstrung by certain attributes of his Aboriginality.

10. Written submissions by Ms Sullivan at paragraph 22, helpfully summarise principles relating to the imposition of conditions in respect of high risk offender supervision orders. There does not appear to be any significant controversy between the parties about them.

11. The debate between the parties has left the Court with an array of choices. They are to impose conditions in terms of the following:

1.   As they are set out in the annexure to the summons where they are in what might be described as “the usual terms”.

2.   In accordance with a plain English version suggested in an annexure to written submissions by Ms Sullivan, with certain amendments suggested in a report by Dr Sally McSwiggan, consultant neuropsychologist.

3.   In accordance with even further amendments suggested by the State, some of which are agreed and some which are opposed.

4.   In accordance with the conditions of the defendant's current parole order. These conditions are very broad by comparison with any of the above versions of the suggested conditions of a supervision order. They allow for a very wide range of discretion for the supervising community corrections officer to impose conditions and generally give directions to Mr Devries. In my experience in cases of this type, defendants usually seek more rather than less precision in the conditions. In any event, this is an alternative proposal suggested by Ms Sullivan.

5.   In accordance with the summons, but on an understanding that they will be supplemented by a plain English guide to be provided in the near term, pending preparation and implementation of what is referred to as an "Easy Read Guide" by the Council for Intellectual Disabilities. This proposal is described in the affidavit of Ms Kelli Grabham of 26 July 2021 at paragraphs 25 to 28.

12. The difficulty I wish to avoid is to settle upon the terms of conditions which I consider appropriate and capable of being understood by Mr Devries, guided by the evidence before me. However, what I might settle upon now will undoubtedly be the subject of modification in the light of the evidence that will become available between now and final hearing. For example, the State will be obtaining the assistance of the Council for Intellectual Disabilities as described by Ms Grabham.

13. I wish to avoid Mr Devries being faced with a suite of conditions expressed in certain terms now, only to be confronted with conditions expressed in different terms in a couple of months or so time. His ability to understand and recall his obligations under a supervision order will not be enhanced if that was to occur.

14. For the past four months Mr Devries has been subject to the conditions of parole I have referred to. They are quite stringent (even though broad). They have been formulated for an offender requiring the highest level of supervision and monitoring as Mr Devries is assessed to be. Apparently, he has had no difficulty in understanding them and there has been no breach. It seems to me the best course is to continue with the conditions under the parole order. That order continues until 4 August 2021. The interim supervision order that I impose will take effect from then and it will be the subject of the same conditions. (Some inapt terminology might require modification but only to a small degree and the substance will remain unchanged.)

15. I make it clear that I am proceeding in this way with the expectation that between now and a final hearing there will be further steps taken by the parties to agree upon appropriately worded conditions that will apply in the event that an extended supervision order is made. I implore the parties to seek agreement as far as can be done to avoid the Court on the next occasion having to adjudicate over the nuances and semantics of what they each consider might be appropriate. The achievement of an expression of conditions that can be understood and complied with by Mr Devries is a common goal.

16. I make the following orders:

(1)   Two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) as agreed by the parties are to conduct separate psychiatric and/or psychological examinations of the defendant and are to furnish reports to the Court on the results of those examinations by a date agreed by the parties.

(2)   The defendant is directed to attend those examinations.

(3)   The defendant is to be subject to an interim supervision order from midnight on 4 August 2021 for a period of 28 days.

(4)   The defendant is directed to comply with the conditions of the interim supervision order for the period of that order, the conditions being based upon the defendant’s current conditions of parole in a form to be settled by the parties.

(5) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), there is to be no publication of any information disclosed in this proceeding pertaining to offences committed by the defendant when he was under the age of 18 years. Such order is made on the ground in s 8(1)(e) of that Act; is to apply throughout the Commonwealth of Australia; and is to remain in force for five years.

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Decision last updated: 02 August 2021