State of New South Wales v Hunt (No 2)

[2017] NSWSC 1448

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Hunt (No 2) [2017] NSWSC 1448

Hearing dates:

8 May 2017

Date of orders:

08 May 2017

Decision date:

08 May 2017

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) An order pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 that the defendant be the subject of a High Risk Sex Offender Continuing Detention Order from 8 May 2017 to 3 September 2017.

 

(2) An order pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 that the Court issue a warrant for the committal of the defendant to a correctional centre for the period specified in paragraph 1 above.

 

(3) An order pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to a High Risk Sex Offender Extended Supervision Order for a period of 5 years concluding 3 September 2022 and pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 direct that the defendant comply with the conditions set out in the Schedule attached to these orders.

 (4)   The parties have liberty to apply directly to the Associate of his Honour Justice Rothman to relist the matter.

Catchwords:

HIGH RISK SEX OFFENDER – application for Continuing Detention Order followed by Extended Supervision Order – defendant diagnosed with paraphilia – little chance of control without anti-libidinal medication – defendant agrees to undertake such medication program – time required to stabilise and test such medication – Continuing Detention Order granted for period sufficient for such stabilising and testing to occur – thereafter Extended Supervision Order for 5 year period issued.

Legislation Cited:

Crimes (High Risk Offenders) Act 2006, ss 9, 10, 11, 17, 18, 20, 25

Cases Cited:

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Michael Shane Hunt (Defendant)

Representation:

Counsel:
DK Jordan (Plaintiff)
P Coady (Defendant)

  Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2016/344713

Judgment

1. On 8 May 2017, the Court, as presently constituted, issued orders requiring the defendant, Michael Shane Hunt, to be detained pursuant to a Continuing Detention Order (“CDO”) from 8 May 2017 until 3 September 2017 and thereafter to be subject to a High Risk Sex Offender Extended Supervision Order (“ESO”) for a period of 5 years. Conditions were imposed pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (“the Act”).

2. The application for a CDO and ESO was made by Summons by the State of New South Wales (“the State”) at a time that was within six months of the release of the defendant and while the defendant was in custody. As a consequence, the procedural conditions for the granting of the application and the making of orders, either under s 9 or s 17 of the Act, have been satisfied.

3. On 8 May 2017, at the time of the hearing of the application and the issuing of the orders, the Court issued short ex tempore reasons and reserved full reasons, to the extent the Court considered it necessary. It is unnecessary to expand on the reasons of the order other than as contained in these short reasons.

4. The ex tempore reasons for judgment are in the following terms:

“[1]    On 1 December 2011, the defendant was sentenced to imprisonment by Madgwick ADCJ for the offences of (1) indecent assault on a person under the age of ten years; (2) sexual intercourse with a person under the age of ten years; and (3) another count of sexual intercourse with a person under the age of ten years.

[2]    The sentence imposed, the details of which I will set out in the full reasons, ended up with an aggregate sentence of 14 years with a 12 year non-parole period. However, as a consequence of the term of imprisonment currently being served by Mr Hunt, the head sentence has already expired and the continuing detention orders will expire on 11 May 2017.

[3]    At the time the defendant was sentenced by Madgwick ADCJ for the offences outlined above, he was serving a term of imprisonment for the possession of child abuse materials, aggravated indecent assault and drug supply. He has also served time in prison for a murder committed on 12 January 1988, the circumstances of which were that Mr Hunt stabbed his former girlfriend with a hunting knife some 23 times. For that offence he was ultimately sentenced, that is after appeal, to a non-parole period of 9 years, 6 months and 3 days and a head sentence of 12 years and 7 months.

[4]    The sentence commenced on 13 February 2003 and expired on 12 February 2017. The defendant became eligible for parole on 12 February 2015 but has remained in custody and was not released on parole.

[5]    The Court has, pursuant to the orders made under the Summons and on an interlocutory basis, the benefit of a report by two qualified forensic psychiatrists: Dr Jonathon Adams and Dr Andrew Ellis.

[6]    Each of them comment on the risk associated with the defendant’s release and each of them comment of the proposed regime of anti-libidinal medication to which the defendant has agreed in order to enable him better to control the urges that have led him to the sexual offending for which he was convicted.

[7]    There is strong evidence from both of the experts that the defendant would be able to live in the community and be released under the conditions that are proposed by the State for the extended supervision order and that his risk of reoffending would be supervised and controlled in a way that would, in their view, allow him to be released.

[8] Of course, their view is an expert view based upon the psychiatric material and I do not wish to cavil with the view they have expressed, but the provisions of s 17 of the Act require the Court to factor in the issues outlined in subs 4 of s 17, one of which issues is the reports received from the persons appointed pursuant to the orders of the Court under s 15 of the Act.

[9]    The primary issue of concern is the safety of the community. It has to be said that I congratulate and laud the conduct of the defendant in agreeing to anti-libidinal medication so as to enable him better to control the urges with which he suffers and which led to some of the offending earlier mentioned.

[10]    The reports tend to suggest that the defendant’s offending, in part, relates to his better ability to converse with and to enjoy the company of younger children, as much as it is purely sexual. Nevertheless, those are issues that the psychiatrists are dealing with.

[11]    The ultimate question that I am concerned with is the issue of the continuing detention order, there being, it seems, no objection to a continuing supervision order and, indeed, the expert reports would require a continuing supervision order if the Court were minded to release him forthwith.

[12]    The most difficult aspect of the case seems to me to be how I deal with the initial assessment as to the defendant’s medication, its effect on him and whether, if he is first prescribed that medication, it is found to be suitable how that assessment will alter, if it alters, and how such an alteration might affect the defendant.

[13]    As I understand the regime of medication, there is a degree of trial and error. That is, the medication is set at a level and increased so as to allow the medication to have an effect. At the same time there are assessments conducted to monitor the side effects that may occur. It understand that the process of assessment will take approximately two months from the time it would commence; one month for it to be effective and another month for the effect to be measured. I’m therefore disposed to setting a period of continuing detention because it seems to me in the circumstances, that the safety of the community is better served by ensuring the medication is finalised before the defendant’s release into the community.

[14]    I am mindful that Dr Ellis takes the view that a period in custody to establish the anti-libidinal treatment could be of benefit. He predicted, in his report, that it would likely require three to six months but that was explained to include the whole of the time during which he would be assessed for the medication and investigations and monitoring of the medication after its initial prescription.

[15]    In the circumstances, it is my intention in terms of the Summons before the Court, to make the order in order (4), for a period concluding on 3 September 2017. I hasten to add that 3 September is a Sunday and to, obviously, make the ancillary order in (5) and to make the order in (7) from 4 September 2017.

[16]    In terms of the extended supervision order, I make the schedule of conditions of supervision as put forward by the State with the alterations previously mentioned to the State during the course of argument. That is inserting the word ‘suitable’ before employment on each occasion it appears in condition 20 and adding a sentence at the end of condition 20 to the effect that ‘suitable’ refers to suitable to both the DSO and to the defendant.

[17]    Those are the orders I make. Those are the short reasons. I reserve full reasons for the reasons I have outlined already.

[18]    Both parties have liberty to apply on short notice.”

5. As earlier stated, the State sought a CDO, which was granted, by the Court differently constituted, on an interim basis and was to expire on 11 May 2017. As a consequence, the orders issued on 8 May 2017 were issued urgently. The Court is grateful for the prior lodging of the two Psychiatrists’ Report: Dr Jonathon Adams and Dr Andrew Ellis.

6. The risk to which the Court referred in the ex tempore reasons is based upon the expert opinions that the defendant has been assessed by each of the experts of being at risk of committing further serious sex offences and the Court is satisfied that there is a high probability of such offending. The Psychiatric Reports identify certain psychiatric issues.

7. Dr Adams, Forensic Psychiatrist, in his Report of 31 January 2017, did not identify a major mental illness from which the defendant suffers. Nevertheless, Dr Adams agreed that the anti-depressant medication prescribed for the defendant seemed to be of benefit in helping him achieve emotional stability.

8. Notwithstanding the absence of a major mental illness, such as major depression or bipolar affective disorder, the defendant’s history, as given by him, is consistent with a diagnosis of a substance use disorder. Further, the defendant’s identification of long-lasting sexual fantasies and urges, focusing upon male prepubescent children, together with the defendant’s history and the other matters to which Dr Adams refers, satisfied Dr Adams that the defendant satisfied the criteria for a diagnosis of a paedophilic disorder.

9. Dr Adams also referred to the defendant’s sexual violence risk factors spanning a range of domains, including sexual violence history, psychological adjustment, mental disorder, social adjustment, and manageability.

10. The defendant has completed Custody Based Intensive Treatment (“CUBIT”) and within that the Sexual Offender Treatment Program. The outcome of this treatment seemed relatively negative.

11. The factors to which Dr Adams referred that support the anti-libidinal medication, to which the defendant has agreed, included the chronology and nature of the defendant’s sexual offending; the chronicity and intensity of his paedophilic disorder; and the fact that he has continued to experience sexually inappropriate fantasies despite a long period of reporting compliance with SSRI medication (Selective Serotonin Reuptake Inhibitors, used usually as anti-depressants.

12. As pointed out in the experts’ evidence, deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffending. This supports the view taken by the Court as to the unacceptable risk posed by the defendant.

13. Dr Ellis, in his Report, also of 31 January 2017, confirms the diagnosis proffered by Dr Adams. Dr Ellis expresses the opinion that the defendant meets the criteria for a substance use disorder, primarily cannabis and alcohol and also expresses his primary concern as the diagnosis of paraphilia paedophilia. Dr Adams explains that anti-libidinal medication is the best treatment to address deviant arousal, although behavioural techniques may also have some effect.

14. It was Dr Ellis who referred to the three to six month period in custody to establish whether anti-libidinal treatment would be of benefit and to stabilise the treatment. The period of three months, as indicated in the ex tempore reasons, included periods that, it was agreed, could occur during the defendant’s conditional liberty.

15. As Dr Ellis explains, paraphilias (including paedophilia) are chronic, relapsing conditions and are resistant to treatment and rehabilitative efforts. The time period explained by Dr Ellis as needed for securing stable independent accommodation and maintaining a stable mental state with meaningful occupational and social activities in the community, gives rise to the probability that no stability will be obtained prior to the conclusion of a two-year period and Dr Ellis opined that 36 months of regular treatment thereafter, being a psychological program, coupled with regular review of anti-libidinal medication, would be necessary. As a consequence, the five-year duration for the ESO is appropriate.

16. When the orders first issued, the date was calculated incorrectly. Pursuant to s 25B of the Act, the Court has the capacity to fix a duration for an ESO that commences at the conclusion of a CDO, even though each issues at the same time and notwithstanding the combined effect of s 10 and s 18 of the Act. In those circumstances, the duration of 5 years will conclude on 3 September 2022. The State may, in its discretion, apply for further or different orders and the defendant may apply to revoke or vary.

17. The ex tempore reasons and these more extended reasons presuppose an understanding of the statutory framework and objectives of the Act. The primary object is to provide orders so as to ensure the safety and protection of the community. Other objects include facilitating or encouraging rehabilitation. Primarily, it has been found, the fundamental objective of the legislation is the protection of the community and the Act is protective, not punitive.

18. Notwithstanding that primary fundamental objective, the effect of the Act and orders made under it on a particular individual is severe. It permits the Court to restrict the liberty of a person in circumstances where that person has already served the sentence imposed upon her or him for the commission of a particular crime.

19. The Act, in that regard, permits the Court to impose custodial orders and orders restricting liberty in circumstances where the reason for such orders is the unacceptable risk of future offending of a serious kind by the defendant. As has been explained, on a number of occasions, the criteria for the determination of an application and the imposition of an order of the kind that the Act allows is the determination by the Court that the defendant poses an unacceptable risk.

20. The term “unacceptable risk” is not defined in the legislation. It is a term that must be given its everyday meaning in the context of the provision and the context of the Act as a whole. At one stage, there was a difference amongst the judges of the Court, in their reasons for judgment, as to whether the determination of whether a person is an unacceptable risk involves a balancing exercise in which the draconian effect of the order is balanced against the risk to the community. That is not the current state of the law. Nor is it a view that I share.

21. In my view, the term “unacceptable risk” must be given, as earlier stated, its everyday meaning, being that phrase in the context of the Act as a whole, the objects of the statute as a whole and the achievement of harmonious goals by the legislature: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70] and [78].

22. The appropriateness of restricting the liberty of the defendant, and the appropriate nature of that restriction, is a matter to be taken into account under s 17 of the Act which permits the Court, on an application of this kind, to make a CDO, or an ESO, or to dismiss the application.

23. The foregoing principles are those that were applied by the Court in issuing the orders on 8 May 2017 and expand upon the reasons already provided for the making of the orders. As a matter of abundant caution, I reiterate the orders of the Court previously issued and make clear that the reiteration is not intended to have any effect on the orders issued on 8 May 2017, except as to the correction to the concluding date of the ESO that has already issued.

**********

SCHEDULE OF CONDITIONS OF SUPERVISION

MICHAEL SHANE HUNT

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1.   The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.

2.   The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.

3.   The defendant must follow all reasonable directions by his DSO or any other person supervising him.

4.   The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order.

Electronic Monitoring

5.   The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

Schedule of Movements

6.   If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

7.   If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period

8.   The defendant must not deviate from his approved schedule of movements except in an emergency.

9.   The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Part B: Accommodation

10.   The defendant must live at an address approved by his DSO.

11.   The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO.

12.   The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

13.   The defendant must not spend the night anywhere other than his approved address without the approval of his DSO.

14.   The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions

15.   The defendant must not leave New South Wales without the approval of CSNSW.

16.   The defendant must surrender any passports held by the defendant to the Commissioner.

17.   The defendant must not go to a place if his DSO tells him he cannot go there.

18.   Without limiting condition 17 above, the defendant must not go to any:

a.   Day-care centres, pre-schools and schools;

b.   Amusement parlours, amusement parks and theme parks

c.   Cinemas;

d.   Libraries and museums;

e.   Camping grounds and caravan parks;

f.   Children’s playgrounds, parks, and areas with play equipment provided for the use of children;

g.   Pools, playing fields and sporting facilities;

h.   Concerts, theatre shows, movies, events and activities intended for the entertainment of children; or

i.   Residences where the defendant knows that persons under 18 ordinarily reside

j.   Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies).

19.   The defendant must not attend any place where alcohol or drugs are illegally sold.

Part D: Employment, finance and education

20.   If the defendant is unemployed, the defendant must enter available suitable employment if and as directed by the DSO or make himself available for suitable employment, education, training or participation in a personal development program as directed by the DSO. Suitable refers to suitable to both the DSO and the defendant.

21.   The defendant must not start any job, volunteer work or educational course without the approval of his DSO.

22.   The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.

23.   The defendant must not sign any lease, mortgage, contract for sale for goods or services above the value of $500, hire agreement, power of attorney, deed, or any instrument relating to obtaining any credit, opening of any account held at a bank, credit union, building society or similar institution without prior approval of the DSO.

Part E: Drugs and alcohol

24.   The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.

25.   The defendant must submit to testing for drugs and alcohol as directed by his DSO.

26.   The defendant must not enter any licensed premises without the approval of his DSO.

27.   The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

Part F: Non-association

Association with Children

28.   The defendant must not approach or have contact without anyone who he knows is under 18 unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO.

Associations with Others (not children)

29.   The defendant must not associate with people that his DSO tells him not to.

30.   The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol.

31.   If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.

32.   The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service

Part G: Access to the internet and other electronic communication

33.   The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers.  This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.

34.   The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant’s email addresses, in monitoring compliance with this order.  

35.   The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.

36.   The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.

37.   The defendant must provide a list of communication devices and data storage devices in the defendant’s possession and advise the DSO of any change to the inventory immediately.

Part H: Search and seizure

38.   If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary:

a.   for the safety and welfare of residents or staff or persons present at the defendant’s approved address;

b.   to monitor the defendant’s compliance with this order; or

c.   because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;

then the DSO may direct, and the defendant must submit to:

d.   search and inspection of any part of, or any thing in, the defendant’s approved address;

e.   search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant;

f.   search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or

g.   search and examination of his person.

39.   For the purposes of the above condition:

a.   a search of the defendant means a garment search or a pat-down search.

b.   to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO.

NOTE:

“Garment search” means a search of any article of clothing worn by the defendant or in the defendant’s possession, where the article of clothing is touched or removed from the person’s body.

“Pat-down search” means a search of a person where the person’s clothed body is touched.

40.   During a search carried out pursuant to condition 35 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant’s possession or not, which the DSO reasonably suspects will compromise:

a.   the safety of residents or of staff at the defendant’s approved address;

b.   the welfare or safety of any member of the public or any other person; or

c.   the defendant’s compliance with this order;

or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.

41.   The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.

42.   The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 38-41 above.

Part I: Access to pornographic, violent and classified material

43.   Unless approved by his DSO, the defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, R18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO.

Part J: Personal details and appearance

44.   The defendant must not change his name from “Michael Shane Hunt” or use any other name without the approval of his DSO.

45.   The defendant must not use any alias, log-in name, or a name other than “Michael Shane Hunt” or use any email address other than those known to the DSO under condition 33 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

46.   The defendant must not change his appearance without the approval of his DSO.

47.   The defendant must let CSNSW photograph him.

48.   If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part K: Medical intervention and treatment

49.   The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.

50.   The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.

51.   The defendant must take all medications that are prescribed to him by his healthcare practitioners.

52.   If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.

53.   The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.

54.   The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

Decision last updated: 24 October 2017