State of New South Wales v JC (No 2)

[2017] NSWSC 1139

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v JC (No 2) [2017] NSWSC 1139

Hearing dates:

28 August 2017

Decision date:

28 August 2017

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

1. Order pursuant to s 18CB of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an emergency detention order from 3.05 pm for a period of 96 hours expiring Friday 1 September 2017 at 3.05 pm.

 

2. Make an order pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the emergency detention order referred to in Order 1 above.

 

3. Make an order pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) that the offender be available via AVL at 9.00 am on Friday 1 September 2017 before me or another Judge allocated to hear the matter.

 4.   Stand the matter over to 9 am on Friday 1 September 2017 for the hearing of any further application, or for directions, as the case may be.

Catchwords:

CRIMES (HIGH RISK OFFENDERS) ACT 2006 – high risk sex offender – offence against s 66A of the Crimes Act 1900 (NSW) – series of further sexual offences committed while defendant a minor – where interim detention order previously refused due to insufficient evidence that there is no suitable accommodation available for defendant post-release –emergency detention order sought – whether there are “altered circumstances” – HELD – where there has been passage of time and further avenues for suitable accommodation appear to have been exhausted this does constitute “altered circumstances” – possibility of defendant being homeless on release a consideration – protection of public is a principal purpose of the legislation – adequate supervision of defendant only possible under extended supervision order if there is suitable accommodation for the defendant – where there is a need to ensure that the defendant does not pose an imminent risk of committing a serious offence –emergency detention order granted for a period of 96 hours

  STATUTORY CONSTRUCTION – whether defendant is subject to an extended supervision order when he is in custody serving a sentence – HELD – distinction between an extended supervision order and obligations under an extended supervision order – person may be subject to an existing supervision order, although his obligations under that order are suspended by a custodial sentence

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW), s 77
Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 10, 10C, 18CA, 18CB, 18CC, 18CD, 20, Pt 3
Crimes Act 1900 (NSW)

Cases Cited:

State of New South Wales v JC [2017] NSWSC 1126

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
JC (Defendant)

Representation:

Counsel:
A Williams (Plaintiff)
A Cook (Defendant)

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

File Number(s):

2017/239984

Judgment – EX TEMPORE

1. On 23 August 2017 I heard an application by the State of New South Wales (the plaintiff) for an interim detention order against the defendant who I will refer to as “JC”. Because of the urgency of the matter, I published reasons for my refusal of the plaintiff's application at about 5pm on Thursday, 24 August 2017: State of New South Wales v JC [2017] NSWSC 1126.

2. By application made before me this morning, the State of New South Wales has now applied under Div 3A of Pt 3 of the Crimes (High Risk Offenders) Act 2006 (NSW) for an emergency detention order (EDO) in respect of the defendant. All references to legislation in these reasons will be to this Act unless otherwise specified. Relevantly s 18CA provides that the plaintiff may apply to this Court for an EDO for the detention of an offender who is the subject of an extended supervision order (ESO) and who, because of altered circumstances, cannot be provided with adequate supervision under the ESO. Although that provision entitles this Court to hear an application for an emergency detention order in the absence of the offender concerned fortunately, Ms Cook, who appeared on behalf of the defendant on the last occasion, was able to appear in Court at short notice and the defendant was present by audio visual link from the gaol.

3. The power to make an EDO is conferred by s 18CB which relevantly provides:

“18CB   Making of emergency detention orders

(1)  The Supreme Court may make an emergency detention order if it appears to the Court that the matters alleged in support of the application for the order would, if proved, establish that:

(a)  because of altered circumstances, the offender cannot be provided with adequate supervision under the extended supervision order or interim supervision order to which the offender is currently subject, and

(b)  without adequate supervision, the offender poses an imminent risk of committing a serious offence.

(2)  The Supreme Court is not to make more than one emergency detention order in respect of the same occasion of altered circumstances.”

4. The background to the proceedings and the previous application appear from my reasons for decision referred to above. The following summary suffices for present purposes. The defendant served a term of imprisonment from 19 September 2007 which expired on 18 June 2011. He was released to parole on 27 April 2011. On 18 June 2011 an interim supervision order (ISO) was made in respect of him. Subsequently Davies J made an ESO for a period of three years from 8 September 2011.

5. On 29 August 2013, when the defendant was residing at the Mercy Institute and subject to the provisions of the ESO he was arrested and taken into custody as a result of admissions he had made in a journal and a letter to his therapist, Calinda Payne. He was charged with 18 offences, to which he pleaded guilty and was sentenced. This resulted in his spending the next four years in custody. His sentence expires at midnight tonight. My reasons for refusing the interim detention order (IDO) included that I accepted the assurance of Ms Langdon, the defendant's Departmental Supervising Officer (DSO), that suitable accommodation would be found for the defendant on his release if an IDO was refused.

6. It appears, on the basis of the material which has been tendered on behalf of the plaintiff today which comprised an affidavit of Assistant Commissioner Caruana sworn 28 August 2017, that the assurance given that the defendant would be provided with suitable accommodation on his release is not able to be fulfilled. It was argued by Ms Cook, who appeared on behalf of the defendant that this matter did not amount to “altered circumstances” within the meaning of s 18CB(1)(a). She submitted that the evidence given by Assistant Commissioner Caruana was, in substance, the same as the evidence given by Ms Langdon last Wednesday and was, in effect, that the State had identified various facilities; and that, although it had not identified any available accommodation that would be suitable, it had not exhausted the possibilities. On neither occasion did anyone from Community Justice Programme (CJP) give evidence to assist the Court as to actual, current position regarding the search for an appropriate placement for the defendant on his release.

7. Although I consider there to be some real force in Ms Cook’s submission I consider that the expression "altered circumstances" in s 18CB(1)(a) ought be given a relatively broad construction. If nothing else, what has changed the circumstances is the passage of time during which further avenues appear to have been exhausted. I am concerned that, in light of the evidence given on behalf of the plaintiff and the submissions made by Mr Williams who appears on its behalf today, that if I do not make an EDO either no accommodation will be provided for the defendant at midnight when he is released or that whatever accommodation is provided will be unsuitable for him and inadequate to protect the public.

8. The principal purpose of the Act is the protection of the public: s 3(1). However, I am also concerned about the interests of the defendant who has been in custody or in supervised environments effectively for the last 10 years. I would not want to leave him at large either for his own sake or for the sake of the community. Accordingly, I am satisfied that the passage of time and the further attempts made on behalf of the plaintiff to find suitable accommodation for him satisfy the requirement of "altered circumstances" in s 18CB(1)(a).

9. Ms Cook also submitted that this Court did not have jurisdiction to make an EDO because it could not be said that the offender is presently the subject of an ESO within the meaning of s 18CA(1). Mr Williams submitted that when one has regard to the terms of ss 10 and 10C it is apparent that Parliament makes a distinction between an ESO on the one hand and obligations under an ESO on the other. He submitted that the defendant could be said to be presently subject to an ESO (being the one made by Davies J on 8 September 2011) although he is not subject to the obligations of this ESO, they having been suspended by the operation of s 10(2) during his present period of custody.

10. Although the distinction may be a fine one it does appear that Parliament does make that distinction as is apparent from the wording of s 10. In particular, I note the wording of section 10(1A)(b) which provides that an ESO expires at the end of, if the order is suspended for any period, the period specified in (a) (being five years) plus each period during which the order is suspended. Thus, in the present case, the ESO made by Davies J on 8 September 2011 has been in operation for almost six years although suspended for much of that period. That is within the contemplation of Parliament, having regard to the provisions of s 10(1A)(b). Accordingly, I am satisfied that the defendant can appropriately and accurately be described as an offender who is the subject of an ESO notwithstanding that he is presently serving a term of custody which will expire at midnight tonight.

11. As I am satisfied that these jurisdictional matters have been proved by the plaintiff it remains to be determined whether it appears to the Court that the matters alleged in support of the application for an order would, if proved, establish that the offender cannot be provided with adequate supervision under the ESO and without adequate supervision, the offender poses an imminent risk of committing a serious offence.

12. The crux of the matter is that the adequate supervision under an ESO can only be provided if there is suitable accommodation for the defendant. If that accommodation could be provided then I am satisfied he could be adequately supervised under the ESO made by Davies J. However, in the absence of suitable accommodation, it would appear to me that the defendant would pose an imminent risk of committing a serious offence.

13. The reasons for those views appear, in large measure, from the reasons that I gave on 24 August 2017. It is sufficient for present purposes to note that the defendant suffers from porphyria and he is also disinhibited as a result of a blood condition and has some difficulties with his mental capacity. This means that, if he is given the opportunity, as he has shown in the past, there is a risk that he will commit an impulsive offence which constitutes a sexual assault on a young child. Having regard to the provisions of the Crimes Act1900 (NSW) those impulsive sexual offences against children tend to qualify as “serious sex offences” under the Act and can pose a significant risk to the public, particularly to young children.

14. It is also necessary to address the reasons why there are no other practical and available means of ensuring that the offender does not pose an imminent risk of committing a serious offence other than detention. The evidence of Assistant Commissioner Caruana was not entirely satisfactory in that it was apparent that she received information from other sources but had effectively no knowledge of any relevant fact from her own experience. I infer that the limitations of her knowledge, which was wholly derivative, were the consequence of her other responsibilities which I am prepared to assume are considerable. Nonetheless her answer to a very significant number of questions was "I don't have that level of detail" which amounted to no more than an admission of ignorance about relevant matters about which she was cross-examined by Ms Cook. I note that, although an application for an EDO must be supported by an affidavit by an officer of Corrective Services of at least the rank of Assistant Commissioner (s 18CC), this is a requirement for, but not a limitation on, the evidence that may be adduced in support of such an application. Once again, it would have been helpful if an officer of CJP could have given evidence.

15. For present purposes, it is sufficient that I note that it appears to me that the State has, at least since I published reasons on Thursday afternoon, tried to obtain suitable accommodation for the defendant and has failed in that endeavour. It appears on the basis of what the Assistant Commissioner has said in these proceedings that the defendant has now some priority and that it may be that suitable accommodation can be provided to him in the near future. When asked directly, the Assistant Commissioner did suggest that if suitable accommodation could not be found the defendant would effectively be homeless tonight. I must say that this has been a matter I have taken into consideration as being of substantial weight in the making of an EDO. I consider that scenario to be one that ought be avoided, for the protection of the public and in the interests of the defendant.

16. In terms of the duration of an EDO, the Act provides that I am to make such an order for no longer than is reasonably necessary to enable action to be taken under the Act: s 18CD(1). Section 18CD(2) provides that an EDO commences as soon as it is made and expires at the end of such period not exceeding 120 hours from when it commences.

17. If I granted an EDO for the maximum period allowed, it would expire next Saturday afternoon. I do not consider that that would be a practical period at all. I am disposed to make the order for a period of 96 hours and bring the matter back before the Court at 9 am on Friday 1 September to consider any other application which may be made at that time.

Orders

18. At the conclusion of the hearing on 28 August 2017, at 3.05pm, I made the following orders:

1. Order pursuant to s 18CB of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an emergency detention order from 3.05 pm on 28 August 2017 for a period of 96 hours expiring Friday 1 September 2017 at 3.05 pm.

2. Make an order pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the emergency detention order referred to in Order 1 above.

3. Make an order pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) that the offender be available via AVL at 9.00 am on Friday 1 September 2017 before me or another Judge allocated to hear the matter.

4. Stand the matter over to 9am on Friday 1 September 2017 for the hearing of any further application, or for directions, as the case may be.

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Decision last updated: 17 April 2018