State of New South Wales v Harrison

[2008] NSWSC 1240

CITATION:	State of New South Wales v Harrison [2008] NSWSC 1240
HEARING DATE(S):	3 November 2008
JUDGMENT DATE :	3 November 2008
JUDGMENT OF:	Johnson J at 1
EX TEMPORE JUDGMENT DATE:	3 November 2008
DECISION:	(a) Pursuant to s.15(4) of the Crimes (Serious Sex Offenders) Act 2006, an order is made appointing two qualified psychiatrists, Dr Andrew Ellis and Dr Samson Roberts, to conduct separate psychiatric examinations of the Defendant, Graham Loughlan Harrison, and to furnish reports to the Supreme Court (by provision to the Plaintiff's solicitor) on the results of those examinations by 20 November 2008. (b) The Defendant, Graham Loughlan Harrison, is to attend the examinations to be carried out by the two psychiatrists mentioned in the preceding order. (c) The hearing of the Plaintiff's application for final relief is listed for hearing commencing on 24 November 2008, with an estimate of two to three days. (d) The Plaintiff is to file and serve any further evidence upon which it proposes to rely by 13 November 2008. (e) The Defendant is to file and serve any evidence upon which he proposes to rely by 21 November 2008. (f) The parties have liberty to apply on one day's notice. (g) An order is made under section 77 of the Crimes (Administration of Sentences) Act 1999 directing the Commissioner for Corrective Services to cause the Defendant, Graham Loughlan Harrison, to be produced at Court for the purpose of the hearing commencing on 24 November 2008.
CATCHWORDS:	SERIOUS SEX OFFENDER - application for continuing detention order - preliminary hearing - application for order for examination by psychiatrists - order for examination made
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006 Child Protection (Offenders Registration) Act 2000 Child Protection (Offenders Prohibition Orders) Act 2004 Crimes (Administration of Sentences) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Attorney General for New South Wales v Hayter [2007] NSWSC 983 State of New South Wales v Tillman [2007] NSWSC 605 Attorney General for the State of New South Wales v Tillman [2007] NSWCA Tillman v The Attorney-General for New South Wales [2007] NSWCA 327 Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 State of New South Wales v Brookes [2008] NSWSC 150 R v Harrison (1997) 93 A Crim R 314
PARTIES:	State of New South Wales (Plaintiff) Graham Loughlan Harrison (Defendant)
FILE NUMBER(S):	SC 2008/15357
COUNSEL:	Mr P Menzies QC; Mr D Kell (Plaintiff) Mr PM Strickland SC (Defendant)
SOLICITORS:	Crown Solicitor's Office (Plaintiff) Legal Aid Commission (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

3 November 2008

2008/15357 State of New South Wales v Graham Loughlan Harrison

JUDGMENT

1 JOHNSON J: By Summons filed on 10 October 2008 the Plaintiff, the State of New South Wales, seeks orders against the Defendant, Graham Loughlan Harrison, under the provisions of the Crimes (Serious Sex Offenders) Act 2006 ("the Act").

2 The Defendant is presently serving balance of parole with respect to a sentence of imprisonment and is due for release on 27 November 2008.

3 The Plaintiff seeks as final relief in the Summons a continuing detention order or, alternatively, an extended supervision order under the Act.

Preliminary Hearing

4 Today, I have undertaken a preliminary hearing for the purposes of s.15(3) of the Act. If, following a preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Court must make orders appointing psychiatrists or psychologists to conduct separate examinations of the Defendant, and to furnish reports to the Court on the results of those examinations, and directing the Defendant to attend those examinations: s.15(4). If, following the preliminary hearing, the Court is not so satisfied, the Court must dismiss the application: s.15(5).

5 The Plaintiff does not seek, at this time, an interim detention order under s.16. This is because a hearing date has been reserved for the final hearing in the event that interlocutory orders are made on the preliminary hearing, that hearing date being fixed for 24 November 2008 with an estimate of two to three days. As I have mentioned, the Defendant is not due for release until 27 November 2008.

6 The Court was informed this morning by Mr Strickland SC, for the Defendant, that no submission was made in opposition to the order sought by the Plaintiff at this preliminary hearing.

7 It remains a matter for the Court to determine whether such an order should be made having regard to the terms of s.15(4) and (5): Attorney General for New South Wales v Hayter [2007] NSWSC 983 at [4]. Having regard to the approach of the Defendant to the present application, however, the reasons of the Court for reaching its conclusions may be expressed relatively briefly.

Evidence on the Application

8 The Plaintiff has relied upon a number of affidavits at the hearing. These are the affidavit of Anne Maree Young affirmed 16 October 2008, the affidavit of Dr Samson Frederick Roberts affirmed 16 October 2008, the affidavit of Joanna Cheng Cheng Murray affirmed 10 October 2008 and the affidavit of Jayson Barry Ware affirmed 20 October 2008.

9 In addition, the Plaintiff has tendered, as part of the supporting documentation for the purpose of the application, a volume of documents admitted and marked Exhibit AY1.

Applicable Legal Principles

10 A written outline of submissions has been provided to the Court by counsel for the Plaintiff. The written outline helpfully summarises the applicable principles and further summarises a number of factual matters which bear upon the present application.

11 It is sufficient, for present purposes, to observe that the Court, in determining whether an order adverse to the Defendant ought be made at a preliminary hearing under s.15, must consider whether it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order. If so satisfied, the Court must make an order appointing psychiatrists or psychologists to conduct examinations and directing the Defendant to attend at those examinations. If not so satisfied, as I have earlier observed, the Court is required by s.15(5) to dismiss the application.

12 Because of the wording of s.15(4) of the Act, the Court must examine, for the limited purposes required at the preliminary hearing, the terms of s.17 of the Act which relates to the determination of an application for a continuing detention order. A continuing detention order may be made if, and only if, the Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he is not kept under supervision and that adequate supervision will not be provided by an extended supervision order: s.17(3).

13 An extended supervision order may be made if, and only if, the Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he is not kept under supervision: s.17(2).

14 In this case, the Plaintiff presses at the final hearing for a continuing detention order or, alternatively, an extended supervision order. For present purposes, the s.15(4) test is satisfied if the Court has regard to the prospect of either of those types of orders being made.

15 In any event, s.17(4) requires the Court at a final hearing to consider a number of specified factors. For the purpose of this preliminary hearing, the Court will look ahead, by reference to the material contained in the supporting documentation, to consider those factors for the limited purpose of applying the relatively low threshold involved.

16 I have regard to the decisions of this Court and the Court of Appeal, with respect to the meaning of the term "satisfied to a high degree of probability" in s.17(3) of the Act and the term "likely" to commit a further serious sex offence in the same section. See the judgment of Bell J (as her Honour then was) in Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27], and the decision of the Court of Appeal in Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 at [5] and [18], and the decision of the Court of Appeal in Tillman v The Attorney-General for New South Wales [2007] NSWCA 327 at [89].

17 With respect to the nature of the Court's function under s.15(4) of the Act, I have regard to the statements in Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 at [98]. It is for 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 extended supervision order, in determining whether the power to grant an interim order is enlivened. The Court is not involved in weighing that documentation or predicting the ultimate result. The threshold question is to be resolved without considering what evidence might be called by the Defendant at a final hearing. The Court retains a discretion as to whether an order should be made following a preliminary hearing.

18 It has been said, in a number of decisions of this Court, that the approach which a judge takes at a preliminary hearing for the purpose of s.15(4) is analogous to a consideration of whether there is a prima facie case established by prosecution evidence at a committal hearing: Attorney General v Hayter at [6]; State of New South Wales v Brookes [2008] NSWSC 150 at [13].

Threshold Statutory Criteria

19 I am satisfied that the Defendant is a "sex offender" within the meaning of the Act and is presently serving a sentence of imprisonment for a "serious sex offence" which also satisfies the test of an "offence of a sexual nature" as defined in the Act.

20 The statutory preconditions for the timing of the application have been complied with on the application.

The Present Defendant

21 The Defendant was born on in 1968 and is now forty years of age.

22 The Defendant’s criminal record reveals a number of sexual offences, including most serious sexual offences involving actual and threatened sadistic violence. For present purposes, I will refer (to the extent that it is necessary) to the decision of the New South Wales Court of Criminal Appeal in R v Harrison (1997) 93 A Crim R 314, which summarises the offences for which the Defendant is presently serving sentences of imprisonment and certain other offences also relevant to the present application.

23 I note that the Defendant was released to parole on 19 December 2007 and remained at liberty for a period until his parole was revoked and he returned to custody on 1 April 2008.

Consideration of Section 17(4) Factors

24 I turn to a number of the factors referred to in s.17(4) of the Act for the limited purpose of the preliminary hearing under s.15(4) of the Act. I will refer to factors which are presently relevant (but not in their statutory order).

25 Section 17(4)(h) requires consideration of the Defendant's criminal history including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere and any pattern of offending behaviour disclosed by that history. The Defendant has a number of convictions for sexual offences. For present purposes, I will refer solely to the offences which were before the New South Wales Court of Criminal Appeal in the judgment of 20 February 1997 to which reference has been made.

26 In the early 1990s, the Defendant committed a series of serious sexual assault offences. One group involved offences against a seventeen-year-old girl, TJK, being four charges of aggravated sexual intercourse without consent, the aggravation in each case being a threat to inflict actual bodily harm with a knife. A further set of charges related to an incident involving an eighteen year old girl, CH. The Defendant pleaded guilty to assault occasioning actual bodily harm upon that victim.

27 A further group of offences were committed in Queensland. These offences were described in the decision of the New South Wales Court of Criminal Appeal and involved offences committed two days after those committed by the Defendant against TJK. As with the other groups of charges, the Defendant had abducted a young woman and taken her to an isolated place where sexual offences were committed against her. In the Queensland case, this involved the placing of a plastic bag over the woman's head (tied by a rope around the neck) and other threats.

28 The Defendant was sentenced in the District Court in New South Wales to terms of imprisonment for the New South Wales offences against TJK and CH, involving a head sentence of twelve years and a non-parole period of nine years. That sentence was increased, on a Crown appeal, by the Court of Criminal Appeal so that a head sentence of sixteen years was imposed with a minimum term of twelve years and an additional term of four years, with the minimum term to commence in November 1992. It is that sentence which the Defendant is serving and which is approaching its expiry by effluxion of time.

29 There are other entries on the Defendant's record, involving both offences of a sexual nature and offences of a non-sexual nature. It is not necessary, for present purposes, to outline the nature of those offences.

30 With respect to the very serious offences committed upon the young woman in Queensland, I should indicate that a lengthy sentence of imprisonment was imposed in November 1992 by Ambrose J in the Supreme Court of Queensland, that sentence being the subject of an unsuccessful appeal by the Defendant to the Court of Appeal of Queensland.

31 The Plaintiff submits, by reference to the pattern of the Defendant's offences, that there is a history of sadistic violence committed against young women in terrifying circumstances which involved threatened and actual violence and threats to kill. The evidence on this application supports that submission.

32 Section 17(4)(c) and s.17(4)(d) require the Court to consider the results of any assessment prepared by a psychiatrist or psychologist as to the likelihood of the Defendant committing a further serious sex offence, the willingness of the Defendant to participate in any such assessment and the level of his participation in such assessment, and also the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to the Defendant committing a further serious sex offence.

33 There is before the Court a risk assessment prepared by Ms Young, a psychologist with the Department of Corrective Services. That report addresses both a statistical actuarial risk assessment (by reference to the Static 99 actuarial risk assessment tool) and also a dynamic risk assessment with respect to subjective factors applicable to this Defendant. Ms Young expresses the opinion that the Defendant presents a high risk of sexual recidivism.

34 Dr Samson Roberts, psychiatrist, has prepared a report annexed to his affidavit which, as I understand it, is the product of a document examination only. Dr Roberts expresses the opinion, based on the matters set out in some detail in his report, that the Defendant presents a high risk of re-offending.

35 Mr Ware, psychologist, is the Acting Director, Sex and Violent Offender Therapeutic Programs within the Department of Corrective Services. He refers, amongst other things, to the reports of Ms Young and Dr Roberts, and repeats the opinions expressed by those persons. There is nothing in Mr Ware's report that undermines the opinions of Ms Young or Dr Roberts. To the contrary, the content of Mr Ware's affidavit tends to fortify those opinions.

36 Accordingly, the evidence before the Court relevant to the factors in ss 17(4)(c) and (d) is supportive of the conclusions submitted by the Plaintiff on this application.

37 Section 17(4)(e) requires consideration of the extent to which the Defendant has undertaken treatment or rehabilitation programs and his experience of those programs. The Defendant undertook a significant part of the CUBIT program but did not complete it. It is not necessary, for the purpose of this application, to expand upon the reason for that. The Defendant, however, was one of three offenders, each of whom was a CUBIT non-completer, who did participate in a new sex offender program at the Goulburn Correctional Centre, in his case between March and September 2007. The program included three-hour group sessions held fortnightly. The report of that program observed that, whilst the Defendant actuarially presents as a high risk of re-offending, it is felt that his dynamic risk issues have been addressed as far as possible within the custodial environment.

38 Since the revocation of the Defendant's parole and his return to custody, he has undertaken a limited number of individual sessions with Departmental psychologists.

39 In the risk assessment report of July 2008, Ms Young identifies the Defendant as having significant outstanding treatment needs. In addition, the Defendant has thus far declined to be assessed by Justice Health as to his suitability for anti-libidinal medication.

40 It is the fact, then, that the Defendant has undertaken programs to an extent whilst in custody, but reservations have been expressed as to the point reached by the Defendant in that respect. I say no more on this application.

41 Section 17(4)(f) requires consideration of the compliance with any obligations to which the Defendant has been subject whilst on release on parole. The Plaintiff points to the Defendant having three separate convictions for breaches of probation orders in Queensland. Those, of course, were some years ago. It is the fact, however, that the Defendant has been in custody since the early 1990s, except for his relatively short period on parole at the end of last year and the beginning of this year.

42 The Plaintiff points to the fact that the offences in New South Wales and Queensland (referred to at [26]-[31] above), were all committed whilst the Defendant was on probation.

43 Reference is made to the recent revocation by the State Parole Authority of the Defendant's parole. The Plaintiff points to an incident at a McDonalds restaurant on 27 March 2008, in which it is said the Defendant acted in an inappropriate manner, including giving his mobile contact number to two teenage girls. Ms Young addresses this incident in her risk assessment report. It is a significant issue, being an incident occurring whilst the Defendant was at liberty, which bears upon the risk assessment.

44 Accordingly, factors relevant under s.17(4)(f), to the extent that they need to be considered for present purposes, do not assist the Defendant and support the Plaintiff’s application.

45 Section 17(4)(g) requires consideration of the level of the Defendant’s compliance with any obligations under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004. The Defendant was required to register under the 2000 Act, having regard to the age of one of his victims. The report of Ms Young reveals that, for the limited period of time during which he was at liberty on parole, the Defendant expressed some frustration regarding his compliance obligations. However, he did not fail to comply with any obligation during that period of time.

46 I return to s.17(4)(a), the safety of the community. This is the primary object of the Act: s.3(1). All of the matters to which I have made reference as arising for consideration under s.17, may be grouped for the purpose of consideration of the safety of the community.

47 The Plaintiff points to the Defendant's criminal history, including a pattern of assaults on women who are strangers to him involving actual and threatened sadistic violence, the history of non-compliance with parole and probation orders, the evaluation of his static and dynamic risk factors, and the assessments that are in evidence which place him in the high risk category in terms of sexual re-offending (having regard to both the static and dynamic factors). All of these factors, it seems to me, operate in favour of the Plaintiff on the present application with respect to the objective of safety to the community.

Conclusion

48 In light of the evidence before the Court, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or, at the least, an extended supervision order. Being so satisfied, I propose to make an order for the purpose of s.15(4) of the Act.

49 I make the following orders:

(a) Pursuant to s.15(4) of the Crimes (Serious Sex Offenders) Act 2006 , I make an order appointing two qualified psychiatrists, Dr Andrew Ellis and Dr Samson Roberts, to conduct separate psychiatric examinations of the Defendant, Graham Loughlan Harrison, and to furnish reports to the Supreme Court (by provision to the Plaintiff's solicitor) on the results of those examinations by 20 November 2008.

(b) I direct the Defendant, Graham Loughlan Harrison, to attend the examinations to be carried out by the two psychiatrists mentioned in the preceding order.

(c) I confirm that the hearing of the Plaintiff's application for final relief is listed for hearing commencing on 24 November 2008, with an estimate of two to three days.

(d) I order the Plaintiff to file and serve any further evidence upon which it proposes to rely by 13 November 2008.

(e) I order the Defendant to file and serve any evidence upon which he proposes to rely by 21 November 2008.

(f) The parties have liberty to apply on one day's notice.

(g) I make an order under section 77 of the Crimes (Administration of Sentences) Act 1999 directing the Commissioner for Corrective Services to cause the Defendant, Graham Loughlan Harrison, to be produced at Court for the purpose of the hearing commencing on 24 November 2008.

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