State of New South Wales v JC (No 5)

[2017] NSWSC 1304

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v JC (No 5) [2017] NSWSC 1304
Hearing dates:	26 September 2017
Decision date:	26 September 2017
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	(1) An order pursuant to s 18A of the Crimes (High Risk Offenders) Act 2006 (the Act) that the defendant be detained under an interim detention order from 29 September 2017 for a period of 28 days. (2) Pursuant to s 20(1) of the Act, the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in the previous paragraph.
Catchwords:	CIVIL LAW – Crimes (High Risk Offenders) Act 2006 – serious sex offender – application for further interim detention order – no suitable accommodation available for supervision in the community – possible vacancy being evaluated – defendant conceded order should be made – order made for 28 days
Legislation Cited:	Crimes (High Risk Offenders) Act 2006, ss 18A, 20
Cases Cited:	State of New South Wales v JC (No 4) [2017] NSWSC 1208 State of New South Wales v JC (No 3) [2017] NSWSC 1181 State of New South Wales v JC (No 2) [2017] NSWSC 1139 State of New South Wales v JC [2017] NSWSC 1126
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) JC (Defendant)
Representation:	Counsel: I Fraser (Plaintiff) A Cook (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid Commission (Defendant)
File Number(s):	2017/239984
Publication restriction:	Pursuant to orders of this court, the name of the defendant and the location of possible accommodation are not to be published.

Judgment

1. HIS HONOUR: This matter emanated from a summons filed on 7 August 2017 whereby the State of New South Wales (the plaintiff) sought orders against JC (the defendant) under the Crimes (High Risk Offenders) Act 2006 (the Act). The plaintiff sought, first, an interim detention order (IDO) and, alternatively, an interim supervision order (ISO) and then by way of final orders, a continuing detention order (CDO) for a period of one year and an extended supervision order (ESO) for the ensuing three years. The hearing today was concerned with an application by the plaintiff for an IDO for a period of 28 days to follow an existing IDO that is due to expire at the end of this week.

2. The factual background of the matter is more than adequately set out in previous and recent judgments of Adamson J of 24 August 2017 (State of New South Wales v JC [2017] NSWSC 1126) and 28 August 2017 (State of New South Wales v JC (No 2) [2017] NSWSC 1139), and Lonergan J on 5 September 2017 (State of New South Wales v JC (No 3) [2017] NSWSC 1181) and 8 September 2017 (State of New South Wales v JC (No 4) [2017] NSWSC 1208) to which reference will be made. Accordingly, I will confine my reference to just a few particularly pertinent matters.

Criminal history

3. The defendant was sentenced in the District Court by Judge Payne on 19 September 2007 to imprisonment for four years, with a non-parole period of two years and three months for having sexual intercourse with his five-year-old niece. He was released on parole on 27 April 2011 but returned to custody after being charged with further sexual offences on 29 August 2013. In the intervening period, a three-year ESO was made by Davies J on 8 September 2013. Its operation was suspended while the defendant was held in custody.

4. On 24 April 2015 the defendant was sentenced by Judge Toner to an aggregate term of imprisonment for four years with a non-parole period of two years. This was in respect of 18 sexual or sex-related offences concerning seven children ranging from an infant to a 12-year-old, committed between 1998 and 2007. The defendant was not granted parole and the full term of the sentence expired at midnight on 28 August 2017.

Risk assessments

5. A report by Dr Samson Roberts, consultant forensic psychiatrist, dated 5 July 2011 that was before Davies J included an assessment (p. 19) that the defendant "represents a high risk of a future serious sex offence".

6. Another report that was before his Honour by Dr Andrew Ellis, forensic psychiatrist, dated 20 July 2011 included (p. 14) that based upon "actuarial and clinical parameters in the absence of any treatment or supervision [the defendant] would fall into a group of person with a risk of offending that is moderate and equivalent to a theoretical average offender".

7. A risk assessment report by Mr Patrick Sheehan, then Senior Specialist Psychologist with Corrective Services NSW concluded (p. 25) that "a risk level of ‘High’ describes [the defendant's] category for sexual recidivism at this time".

8. Dr Richard Furst, consultant forensic psychiatrist, in a report dated 15 February 2014 made a number of diagnoses, including intellectual disability (mild range) and paedophilia. It was his view (p. 7) that the defendant presented "a moderate to high risk of future re-offending".

9. Dr Katie Seidler, clinical and forensic psychologist, concluded in a report dated 15 April 2015 that the defendant posed "a high risk of re-offence". She wrote (pp. 24-25):

“The most salient risks in this case are associated with [the defendant’s] deviant sexual interests and history of ritualised, compulsive and inappropriate sexual behaviours. It is likely that those vulnerable to [the defendant] will be varied and includes both males and females, especially those that are objectively vulnerable and to whom he has access. Further to this, [the defendant] is likely to offend both in an impulsive and opportunistic manner, in addition to that which is organised and planned. Thus, his modus operandi and choice of victim will vary, which will make him a management challenge in the community, especially given his disability and the ramifications of this. Despite [the defendant’s] claim to the contrary, I have concerns about his capacity to regulate himself and address his deviant thinking and to this end, his risk would likely be imminent in the community and difficult to control without external management. It is also possible that [the defendant] may engage in acts of significant violence, although this is less likely than acts of a generalised sexually abusive nature.”

The course of the present proceedings

10. There was a preliminary hearing pursuant to s 15(3) of the Act on 23 August 2017 before Adamson J. At that hearing there was no issue about the threshold statutory criteria being made out. The critical issue was whether suitable accommodation was available for the defendant that would be adequate to manage his risk of re-offending. For example:

“[43] I am persuaded, for the purposes of the preliminary hearing, that the defendant is a high risk sex offender: s 5B(2). He represents an unacceptable risk of committing a serious sex offence (as defined by s 5) if he is not kept under supervision having regard to his past offending, diagnoses, ongoing sexual preoccupation with children and the expert opinions referred to in these reasons. Whether adequate supervision can be provided (s 5D(1)) depends on the availability of suitable accommodation in the community at which he can be secured and provided with line-of-sight supervision by an escort, when outside the facility and in the community.”

11. Her Honour's conclusions included:

“[55] For the reasons given above, I am not satisfied that, if an IDO is not made, suitable accommodation cannot be found for the defendant which meets the recommended requirements (secure, active overnight monitoring and line-of sight supervision under escort when outside the facility). Indeed, I accept the assurance given by Ms Langdon to the Justice Health nurse that suitable accommodation will be provided to the defendant upon his release. Accordingly, I consider, on the basis of the material tendered before me, that the high risk of re-offending which the defendant continues to pose to the community can be adequately managed under the ESO granted by Davies J, which will become operative on 28 August 2017 when the defendant’s sentence expires. …”

12. Her Honour refused to make an IDO. She noted that the three-year ESO made by Davies J on 8 September 2011 would become operative on 28 August 2017 after having been suspended due to imprisonment of the defendant from 29 August 2013. An order was made for the appointment of a psychiatrist and a psychologist to examine the defendant and furnish the Court with reports by 4 October 2017.

13. The evidence before Adamson J included the following from the defendant’s account of his past sexual fantasies written while he was living in a residential facility prior to his return to custody in 2013 (Exhibit KN-1 pp 35-36, 38). It is illustrative of why there has been a difficulty in finding suitable accommodation for him in the community.

"I've had thoughts of killing all the clients in the house and staff. Then going to the staff's place and killing the staff's wives and raping there [sic] dead wives and kids to [sic] but not killing the kids but didn't do it no guts to."

“I’ve had thoughts of wanting to kill and rape little girls and boys but I didn’t do it because I have no guts to do it.”

“I have thoughts about me killing these people because I get sexually gealous [sic] of these people and think well if I can’t have these all people girls to myself well than [sic] no one can have them at all. I get gealous [sic] of all the girls that I knew and went to school with and all my girl cousins including the kids and nieces and my 2 sisters because I want them all to myself. And if I can’t have sex with them either than [sic] no one can at all either.”

14. The defendant's sentence was due to expire at midnight on 28 August 2017. Suitable accommodation was unable to be found, contrary to what Adamson J had been given to understand would be the case. The plaintiff made an application for an emergency detention order (EDO) pursuant to s 18CB of the Act and the matter came back before Adamson J on 28 August 2017. Her Honour stated:

“[7] … 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.

…

[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.

…

[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.”

15. The orders her Honour made included an EDO from 3.05pm on 28 August 2017 to 3.05pm on 1 September 2017 and she stood the matter over to 9am on Friday, 1 September 2017 for hearing of any further application, or for directions, as the case may be.

16. The matter came before Lonergan J on 1 September 2017. The plaintiff sought an IDO for 28 days from 1 September 2017. The defendant opposed the making of an IDO on the basis that an IDO had previously been refused by Adamson J. The contention was that the matter should have been taken on appeal by the plaintiff to the Court of Appeal. However, Lonergan J held that she had jurisdiction to entertain a further application (at [50]).

17. The effect of the evidence before Lonergan J on that occasion was that suitable accommodation to manage the risk had still not been secured for the defendant. Counsel for the defendant conceded that the criteria for the making of an IDO for a short term was satisfied. (See [51])

18. Lonergan J concluded:

“[52] I am persuaded by the material set out in paragraphs [25] to [41] of this judgment that it is appropriate to make an order for the interim detention of the Defendant for 5 days. Not only is there, as evidenced in the affidavit of Mr Frize, a lack of suitable identified accommodation, but I do not have before me any current psychiatric assessments that would assist me in determining the current risks of the Defendant acting upon any of the thoughts and preoccupations he has articulated in the past regarding the abduction and sexual assault of small children, the “raping” of girls and boys and female staff members, the killing and having sexual intercourse with various identified persons, and what, if anything, can currently be done to assist the Defendant undertake rehabilitation that will have any effect on his proclivities. In the past, the Defendant has acted opportunistically to sexually assault small children both known and unknown to him.

[53] The thorough report of Dr Ardasinski from June 2017 highlights the difficulties presented by the combination of the Defendant’s intellectual disabilities, psychiatric disorders, and the complexities associated with his supervision needs.

[54] Given the primary object of the Act is to “provide for the extended supervision and continuing detention of high risk sex offenders … so as to ensure the safety and protection of the community”, it appears to me that on the evidence available as at 1 September 2017 those objects are served by the granting of an IDO.

[55] This should not be taken as an indication that I or any other judicial officer will necessarily make further IDOs, nor does this dictate the ultimate outcome of the CDO application filed on 7 August 2017. The affidavit of Mr Frize is to the effect that accommodation availability is a dynamic matter and availability of a suitable place can change. It does not appear to be a situation of priority based on release or ESO date. Accordingly, the Plaintiff has an obligation to continue to pursue suitable supervised accommodation for the Defendant.”

19. The orders made by Lonergan J included that there would be an IDO for five days from 1 to 6 September 2017 and the matter was stood over for further hearing on 5 September 2017.

20. When the matter returned to Lonergan J on the latter date for hearing regarding an application for a further IDO, evidence was provided to the effect that inquiries in relation to suitable accommodation were still unsuccessful. The defendant conceded through his counsel that a further IDO for a suitable time could be made because of the unavailability of accommodation provided it was for a limited period and that the next hearing date was not later than 29 September 2017.

21. Her Honour made orders which included an IDO from 6 to 29 September 2017. The plaintiff's notice of motion was stood over for hearing of any application for renewal of the IDO on 26 September, that is today, and the final hearing of the plaintiff's summons and notice of motion was listed for hearing on 23 November 2017 with a two-day estimate.

The search for suitable accommodation

22. An affidavit by Ms Ellen McCarroll, who is the Manager of the Metropolitan Extended Supervision Orders Team (the ESO Team), affirmed on 31 August 2017, is before me. It includes that the ability of the ESO Team to adequately supervise the defendant is predicated on suitable accommodation being located having regard to the defendant's complex needs which include:

1. intellectual disability;

2. paedophilia;

3. other identified paraphilias; and

4. a rare metabolic syndrome known as porphyria which has neurological effects on his functioning.

23. Current parameters for suitable accommodation for the defendant were identified as:

1. active 24-hour supervision;

2. line of sight supervision at all times when the defendant is in the community; and

3. appropriate security to ensure containment within the facility.

24. Ms McCarroll deposed that when proposals are put forward by the Community Justice Project (the CJP), an arm of the Department of Family and Community Services, as to possible accommodation options, they are assessed by the ESO Team with those parameters in mind. She also said, in effect, that it was not the function of Corrective Services NSW to provide 24-hour active supervision to offenders who are not in a correctional centre. Also, it was not the function of the ESO Team to provide 24-hour active supervision. The only option which she was aware of was “Intensive Residential Support” (IRS) placements arranged through the CJP.

25. Dr Matthew Frize is the Manager of the CJP. He has, amongst other things, expertise as a psychologist. He is a co-author of risk assessment tools specific to those with an intellectual disability which, through international research, have been shown to be valid and reliable in predicting sexual and general offending. He has worked at the CJP for 10 years, the last three as its manager. In an affidavit of 1 September 2017, he outlined the levels of accommodation services provided to "clients" of the CJP, the highest level of supervision being placement in an IRS facility. These are facilities with full-time staff on shift 24 hours a day, seven days a week, with overnight staff who remain awake to supervise. It also provides for line of sight supervision of clients when they are in the community.

26. Dr Frize described a number of IRS facilities that had been considered for the defendant. They were all unsuitable for various reasons, such as there being no vacancy or other residents being vulnerable female sexual abuse victims. The defendant had resided at one particular facility in the past and the operators were not prepared to have him back because of past threats made by him to staff and their families. Another facility was regarded as unsuitable because its location did not allow for electronic monitoring by the ESO Team. Facilities with a lower level of supervision were also considered but found unsuitable for various reasons.

27. Dr Frize concluded that there were, at that time, no suitable accommodation options available. However, if the defendant were to remain in custody, he would also remain on his organisation's Vacancy Management Team's weekly meeting agenda until compatible accommodation had been identified for him.

28. In an affidavit of 5 September 2017 Dr Frize indicated that the CJP still had no accommodation to offer the defendant.

29. In an affidavit of 21 September 2017 he indicated that the current position was that there was a potential vacancy at a particular IRS where a vacancy had arisen. He said, "CJP staff are currently completing a compatibility analysis and working with the unit to negotiate accepting [the defendant] into the service". There was, however, a question as to whether the ESO Team would approve placement at that facility. (In Dr Frize’s affidavit of 1 September 2017 he said that in 2015 the CJP had assessed the defendant as suitable for a placement at this particular facility, but the ESO Team had assessed the facility as unsuitable.)

30. Dr Frize also indicated in this affidavit that the Vacancy Management Team had met twice since his previous affidavit and other clients had been considered for transition to make way for the defendant. He said "this process is currently ongoing".

24. In a further affidavit affirmed today, Dr Frize indicated that the CJP had completed its analysis and the defendant had been found compatible for this particular IRS facility. The placement had been referred to the ESO Team for its consideration. If it was found to be suitable, Dr Frize indicated a number of matters that would need to occur before the defendant could be placed. Without setting those matters out, the upshot is that Dr Frize estimated that the earliest that the defendant could be placed at this particular IRS facility was 25 November 2017.

25. In a further affidavit by Ms McCarroll sworn 25 September 2017 she confirmed the consideration by the ESO Team of the IRS facility referred to by Dr Frize. The process of conducting a suitability assessment of the property is underway. The affidavit sets out certain matters that need to be considered. In short, the processes referred to by Ms McCarroll are estimated to require about another three weeks to be carried out.

Conclusions

33. It is, I must say, unfortunate that the process of assessing this particular facility as to its suitability for placement of the defendant must take so long. His sentence, as I have previously observed, has expired and he is only kept in custody because of the lack of suitable accommodation being identified. However, counsel for the defendant has indicated today that it is accepted that progress is being made and that, at least for the purposes of today's hearing, it is conceded that the order sought by the plaintiff should be made.

34. It has to be acknowledged that making a detention order subsequent to the expiry of a person's sentence of imprisonment is no light matter. However, it must also be borne in mind that the primary object of the Act “is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community” (s 3(1)).

35. My own assessment of the materials has led me to agree with the conclusions of Adamson and Lonergan JJ. The matters alleged in the supporting documentation would, if proved, justify this Court making a high risk sex offender ESO or a high risk sex offender CDO: s 18A(b) of the Act. Put another way, absent appropriate supervision, a key component of which is the provision of suitable accommodation, it appears there is an unacceptable risk of the defendant committing a further serious sex offence.

36. I make the following orders:

1. An order pursuant to s 18A of the Crimes (High Risk Offenders) Act 2006 (the Act) that the defendant be detained under an interim detention order from 29 September 2017 for a period of 28 days.

2. Pursuant to s 20(1) of the Act, the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in the previous paragraph.

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Decision last updated: 17 April 2018