State of New South Wales v Gjo

[2020] NSWSC 968

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v GJO [2020] NSWSC 968

Hearing dates:

14 July 2020

Date of orders:

14 July 2020

Decision date:

14 July 2020

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

Supervision

(1)   The plaintiff to file and serve short minutes of order to reflect the orders sought in prayers 1, 2 and 4 of the Amended Summons, in accordance with these reasons for judgment.

Suppression and Non-publication

(2) Pursuant to s 10 of The Court Suppression and Non-publication Orders Act 2010 (NSW), the Court orders the suppression and non-publication of the name and of any information or matter that would tend to reveal the identity, address or occupation of the defendant until further order of the Court.

(3)   For the purposes of these proceedings and the ex tempore judgment just issued and orders as a consequence of the ex tempore judgment, the defendant shall be referred to as “GJO”.

(4)   That order will subsist for a period of the reservation of the reasons for judgment and orders on the motion.

Catchwords:

HIGH RISK OFFENDERS – Interim Supervision Orders – Test for imposition – previously subject to Extended Supervision Orders – no opposition by defendant – Interim Suppression Order granted.

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 8, 10

Crimes Act 1900 (NSW), s 61J(1)

Crimes (High Risk Offenders) Act 2006 (NSW), ss 7(4), 10A, 12

Cases Cited:

State of New South Wales v Michael Lidster [2020] NSWSC 275

Category:

Procedural and other rulings

Parties:

State of New South Wales (Plaintiff/Respondent)
GJO (Defendant/Applicant)

Representation:

Counsel:
D New (Plaintiff/Respondent)
A Cook (Defendant/Applicant)

Solicitors:
Crown Solicitor’s Office (Plaintiff/Respondent)
Younes + Espiner Lawyers (Defendant/Applicant)

File Number(s):

2020/171836

Publication restriction:

Pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the Court orders the suppression of the name and the non-publication of the name and the suppression and non-publication of any information or matter that would tend to reveal the identity, address or occupation of the defendant until further order of the Court.

Ex tempore Judgment

1. HIS HONOUR: Before the Court, by way of Amended Summons filed 9 July 2020, the State of New South Wales seeks orders against the defendant, GJO (a pseudonym), under the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter “the Act”). At the preliminary hearing, the State seeks ancillary relief in the motion which is, for want of a better term, the usual relief for the attendance of the defendant on two qualified psychiatrists or psychologists, and those orders are sought pursuant to the terms of s 7(4) of the Act.

2. The State of New South Wales also seeks an Interim Supervision Order (hereinafter “ISO”), under s 10A of the Act for a period of 28 days, which is the maximum duration for such an order, although of course, supervision may be renewed by the Court making an Extended Supervision Order (hereinafter “ESO”) at a hearing for that purpose.

3. Currently, the defendant is subject to the terms of an existing ESO issued by the Court and varied on the last occasion by Wilson J on 9 August 2018. The terms of the ISO presently sought by the State are set out in Schedule A to the Amended Summons, such terms being equivalent to the existing ESO. At the final hearing, the State will seek an ESO in different terms to the currently applicable ESO (and the proposed ISO), and the orders that the State seeks are contained in Schedule B to the Amended Summons.

4. The defendant, quite properly and appropriately, does not oppose the appointment of the two experts nor the imposition of the proposed ISO, for a period of 28 days commencing 19 July 2020.

5. Over and above that matter, the defendant, by way of a Notice of Motion filed 9 July 2020, seeks non-publication and pseudonym orders until the final hearing on the application for an ESO pursuant to s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (hereinafter “the Suppression Act”).

6. It is necessary for me to detail the issues before the Court. The fact that there is consent is, of course, of great assistance and I am grateful to the parties for their cooperation.

7. The defendant is 68 years of age. He is presently the subject of an ESO. As I have already indicated, that ESO expires on 19 July 2020. The defendant was sentenced in July 2000 to a total sentence of 20 years imprisonment commencing on 18 February 1997 and expiring on 17 February 2017 with a non-parole period of 16 years in relation to four counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW) in relation to a course of offending between December 1995 and December 1996. Two additional counts of sexual intercourse without consent in circumstances of aggravation and two counts of threatening to inflict actual bodily harm with intent to have sexual intercourse were taken into account on a Form 1.

8. The facts of the defendant’s 1995 to 1996 sexual offending are detailed in previous judgments of the Court. The facts of the offending were described by Wilson J in 2018 as “disturbing” and were characterised by Schmidt J as a “crime spree he was then”, that is, at the time of his arrest, “still obviously pursuing”.

9. In summary, the defendant engaged in eight attacks upon adult females and female teenagers on the North Shore of Sydney between December 1995 and December 1996. The attacks involved the defendant following his female victims, frequently from a railway station, demanding money or credit cards, forcing material into their mouths, holding a blade to their throats and threatening to cut or kill them, and otherwise engaging in the sexual offences to which I have already referred. He was apprehended as a result of a police operation directed at his identification.

10. The defendant was released on parole on 20 February 2015, some 2 years after he was first eligible. He did not breach his parole obligations. Harrison J imposed an ESO for 3 years on the defendant commencing 17 March 2017.

11. In 2018, the defendant was convicted for one count of breaching his current ESO contrary to s 12 of the Act. It is necessary to detail that offence. The offence is related to an incident in April 2018 involving the defendant commencing an intimate relationship without informing his supervising officer, having a person at his home for an overnight stay without permission and lying to his supervisor. He was sentenced to 4 months’ imprisonment, commencing 21 April 2018. I do not suggest, and it is not suggested by the State, that that offending involved unwelcome, unsolicited or uninvited sexual activity.

12. The defendant was also convicted for a second offence in 2018, being a common assault relating to an incident on 18 April in a supermarket in which the defendant recognised a 16 year old retail assistant and placed his hand on her hip. He then leaned towards her and kissed her on the cheek. The kiss and touching of the victim’s hip were not welcome and the defendant accepted he was reckless as to her lack of consent. He was sentenced to a 15 month good behaviour bond.

13. Following the defendant’s 2018 arrest for breach of his ESO and subsequent imprisonment, the conditions of his ESO were varied by Wilson J, as already indicated.

14. The defendant has a history of other convictions dating back to 1971, including for assault, indecent assault, breach of domestic violence orders and peep and pry.

15. The plaintiff relies upon the Affidavit of Isabel Kallinosis affirmed 9 June 2020 together with the exhibit thereto. The plaintiff’s submissions essentially are that the proposed orders should be made, for the following reasons:

16. The ongoing nature of the defendant’s diagnosed paraphilic disorder, which would appear to be resistant to treatment;

17. The defendant’s assessed moderate to high risk of future sexual offending (noted in the Risk Assessment Report dated 15 November 2019, hereinafter the “Risk Assessment Report”);

18. The fact that while the defendant has engaged in significant treatment since his release from custody in 2017, it would appear that he has set limits on what he is willing to disclose (Risk Assessment Report at [13]);

19. The defendant’s near complete social isolation including the loss of contact with his sister who was previously his sole social support coupled with his failure to form a relationship of any meaningful depth during the term of his ESO (Risk Assessment Report at [9];

20. The increasing risk factors demonstrated by the defendant’s 2018 breach of his ESO conditions and assault conviction (State’s written submissions at [65]).

21. As earlier stated, the defendant does not oppose the imposition of the ISO on the terms suggested by the State, nor does the defendant oppose the making of the ancillary orders under s 7(4) of the Act. Rather, the defendant’s evidence goes to a quite different matter. It is necessary, to deal with the issue of the ISO, first. It is, dare I say, obvious, from the foregoing recitation, albeit in a summary form, of the matters upon which the State relies in its Affidavit together with the comments, albeit that I am not bound by statements of fact in previous judgments of previous judges that have dealt with the ESO and/or ISO, that the defendant poses an unacceptable risk in the absence of appropriate ameliorative conditions.

22. The principles governing the making of an ISO have been rehearsed in a number of judgments. In State of New South Wales v Michael Lidster [2020] NSWSC 275, I summarised them in the following way:

“9   The imposition of an ESO is governed by the terms of Part 2 of the Act. The Court has already dealt with some of the technical requirements for the making of an ESO. The satisfaction of the Court as to the technical requirements also includes the pre-trial procedures governed by the provisions of s 7 of the Act, namely, service of the appropriate documentation.

10   The determination of an application for an ESO is governed by the terms of s 9 of the Act and it grants the Court the discretion either to make an ESO or to dismiss the Application. The paramount consideration in the exercise of that discretion is the safety of the community: s 9(2) of the Act.

11   The terms of s 9(3) of the Act requires the Court to have regard to a number of matters, some of which would be unavailable at the time that an ISO is sought or made. It is unnecessary to repeat each of the criteria in s 9(3) of the Act.

12   The jurisdiction of the Court to impose an ESO depends upon the evaluation by the Court that the offender, who is sought to be the subject of the order, ‘poses an unacceptable risk of committing another serious offence if not kept under supervision under the order’: see s 5B(d) of the Act. The foregoing satisfaction is not a technicality and has not yet been dealt with by the Court.

13   The satisfaction of the Court must be to ‘a high degree of probability’ (s 5B(d) of the Act) but the Court ‘is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk’: s 5D of the Act.

14   The determination of whether an offender poses an unacceptable risk has been the subject of much authority. The Court of Appeal discussed the issue in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. See also State of New South Wales v Thurston [2018] NSWSC 421.

15   Because of the agreement between the parties that the defendant poses an unacceptable risk (at least for the purposes of the interim order), it is necessary only to summarise the principles that I apply.

16   The determination of an ‘unacceptable risk’ involves consideration of a number of factors that form a matrix and include the probability that the risk will result and, further, that the seriousness of the harm that will ensue is such that the risk becomes unacceptable. The unacceptable risk is the unacceptability of the risk of committing a serious violence offence, as defined in section 5A of the Act. The harm that may manifest and to which the risk refers is the harm occasioned by the commission of a serious violence offence.

17   A risk that is insignificant is not a risk with which the Court should be concerned. Once a risk is not insignificant, the Court is required to look at whether the result of it manifesting would involve serious harm.

18   The unacceptability of risk balances the likelihood that a serious violence offence may occur and the seriousness of the outcome of that occurrence. This results in somewhat of a continuum in which the seriousness of the harm which may eventuate is balanced against the probability that the serious violence offence will occur.

19   As the seriousness of the harm that may eventuate increases, the required degree of likelihood of the commission of a serious violence offence decreases. Conversely, as the seriousness of the harm that may eventuate decreases, the required degree of the likelihood of the commission of a serious violence offence must increase.

20   The task upon which the Court embarks is to be satisfied to a high degree of probability that the defendant poses such an unacceptable risk: see Lynn, supra. The interference with the liberty of the defendant is not a factor that the Court considers in determining the issue of the unacceptability of the risk.

21   Nevertheless, the effect, particularly if the conditions are draconian, of the imposition of an order on a defendant is a matter that the Court can and should take into account in determining whether, in its discretion, it should make an ESO. Notwithstanding that capacity, as earlier stated, the Court must give paramount consideration to the safety of the community in that assessment.

22 While the foregoing deals with the requirements for the making of an ESO, those requirements are a necessary consideration in the making of an ISO, because the Court’s jurisdiction to make an ISO is conditioned on the Court being satisfied that the current custody or supervision will expire before the proceedings are determined and that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO: s 10A of the Act.

23 In examining whether the ‘matters alleged’ ‘would, if proved, justify an ESO’, it is insufficient for the plaintiff to allege boldly a conclusion and rely on the provisions of s 10A(b) of the Act to require the Court to accept the conclusion would be justified.

24 In my view, the matters alleged, as that term is used in s 10A(b) and in s 7(4) of the Act, is a reference to matters of fact, not conclusions. Matters of fact include expert opinions.

25   First, the plaintiff must allege facts that are capable of being proved. Secondly, the matters alleged do not refer to a conclusion; they refer to the facts that would lead the Court to a particular conclusion.

26   Notwithstanding that qualification, the requirement for the Court to assume that the matters alleged are proved, for the purpose of determining whether to issue an ISO, is a different process to the finding of a ‘prima facie case’, as it has sometimes been described.

27   Further, there are significant difficulties in exercising discretion, at a preliminary hearing for an ISO, that is the same as that which is reposed on the Court at the time that the Court considers whether an ESO should issue. This is because the degree of probability of the risk of a future serious violence offence is, at best, a matter alleged or the subject of preliminary opinion.

28   In any event, as earlier stated, the discretion as to whether an ISO and an ESO should issue requires the Court to give paramount consideration to the safety of the community. As a consequence, it would be most unusual for the Court to conclude that the defendant posed an unacceptable risk but, at the interim stage, for the Court to choose to exercise its discretion not to impose an ISO.”

23. As stated, applying those principles, the Court is satisfied that an ISO should issue binding on the defendant, as, in the absence of an ISO, the defendant poses an unacceptable risk.

24. It seems to me that the conditions proposed by the State are appropriate to ameliorate the unacceptability of the risk, and I congratulate, once more, the parties on reaching agreement as to both the implementation of an ISO and the conditions under which that ISO will operate.

25. The Court will make the orders in or to the effect of those sought in prayers 1, 2 and 4 of the Amended Summons and I will ask the State to provide me with a minute of order at the appropriate time, and that order will necessarily impose conditions under s 11 of the Act, in the terms of Schedule A to the Amended Summons.

26. The defendant’s submissions deal with the question of a suppression order and relate to a range of the factors dealt with under s 8 of the Suppression Act. The matters upon which the defendant relies are referred to in ss 8(1)(a),(c) and (e) of the Suppression Act. The Court starts with the proposition that the proceedings before the Court are proceedings that are open to the public. Open justice is an extremely important aspect of the jurisdiction exercised by courts and tribunals in this country and an essential element in the overall governance of a democratic country.

27. The difficulty I have is that there are aspects to the publication of the defendant’s name which give rise to significant concerns. Those concerns are expressed in the Affidavits of the defendant and his solicitor on the record. There is also an issue raised by the parties as to the appropriate operation of s 10 of the Suppression Act, which allows the Court to make interim orders. It seems to me that it is appropriate for the Court to deal with how s 10 of the Suppression Act is to operate and in what circumstances, and I do need to look more carefully at the facts to determine whether, in my view, the grounds for an order under s 8 have been made out to such a degree that it overturns a prima facie capacity to have proceedings, and the result of proceedings, wholly subject to public scrutiny.

28. Because I do need to look at those matters with more care, it seems to me that I need to ensure that the application on the motion of the defendant for a suppression order not be rendered nugatory by a publication in the interim, and in those circumstances, an order pursuant to the provisions of s 10 of the Suppression Act shall be made, prohibiting the publication of the name of the defendant or of any information tending to reveal the identity of the defendant, his address or his workplace. That order will subsist only for so long as the judgment is reserved on the question of the making of a suppression order.

29. For the purposes of any publication, if there be any, the applicant on the motion, being the defendant to the substantive proceedings, will be given a pseudonym “GJO”, and the same shall be used in these proceedings and the orders made in relation to the Amended Summons.

30. The Court makes the following orders:

Supervision

1. The plaintiff to file and serve short minutes of order to reflect the orders sought in prayers 1, 2 and 4 of the Amended Summons, in accordance with these reasons for judgment.

Suppression and Non-publication

1. Pursuant to s 10 of The Court Suppression and Non-publication Orders Act 2010 (NSW), the Court orders the suppression and non-publication of the name and of any information or matter that would tend to reveal the identity, address or occupation of the defendant until further order of the Court.

2. For the purposes of these proceedings and the ex tempore judgment just issued and orders as a consequence of the ex tempore judgment, the defendant shall be referred to as “GJO”.

3. That order will subsist for a period of the reservation of the reasons for judgment and orders on the motion.

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Decision last updated: 21 September 2020