State of New South Wales v Kevin Todd Fernando

[2016] NSWSC 1427

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Kevin Todd Fernando [2016] NSWSC 1427
Hearing dates:	4 October 2016
Date of orders:	04 October 2016
Decision date:	04 October 2016
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Orders made pursuant to Crimes (High Risk Offenders) Act 2006
Catchwords:	SEX OFFENDER – interim supervision order – no question of principle
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW)
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Kevin Todd Fernando (Defendant)
Representation:	Counsel: Ms H Bennett (Plaintiff) Mr D O’Neil (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid (Defendant)
File Number(s):	2016/269248

Judgment

1. HIS HONOUR: By summons filed on 7 September 2016, the State of New South Wales sought, in substance, three forms of order against the defendant Kevin Todd Fernando. The first was an order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the “Act”) seeking the appointment of two qualified psychiatrists or psychologists to examine him and directing that he attend those examinations.

2. The second was an order in the form of an interim supervision order (“ISO”) under the Act for a period of 28 days and subject to various conditions set out in the schedule to the summons.

3. The third was an extended supervision order (“ESO”) for a period of 5 years made under the Act again subject to various conditions.

4. In accordance with the usual practice, the matter was listed before me today for a preliminary hearing of the State's application for the first two forms of order with a date for the hearing of the third to be fixed at a later time. At the hearing of the application, Counsel for the State, Ms Bennett, sought and was granted leave to file an amended summons. The amended summons sought in substance the same three forms of relief. However, the schedule to the summons contained a number of amendments to the proposed conditions. Those amendments reflected the effect of careful submissions made on behalf of Mr Fernando concerning the conditions. Ultimately, at least for the purposes of this application, the conditions as redrafted were not opposed. Accordingly, the matter proceeded on the basis that the first two forms of relief set out in the amended summons were not opposed. Nevertheless, I take the view that it is necessary for the Court itself to be satisfied that that relief should be granted

5. Before I turn to the requirements of the Act I will set out briefly the factual matters that support the orders being made. In setting these out it needs to be understood that what follows does not represent any final findings but instead reflects the requirements of the Act that these first two forms of relief be addressed on the basis of the matters that are alleged in the supporting documentation that accompanies the State's application.

6. The defendant, Mr Fernando, was born on 17 June 1962. He has a long criminal record. For the years 1973 to the end of the 1980s his record primarily consisted of assaults and break and enter with some entries for robbery. However, the seriousness of his offending increased substantially towards the end of the 1980s.

7. On 10 June 1994, he was sentenced in the District Court for aggravated sexual assault and armed robbery. He received a custodial sentence. It is not necessary to describe the circumstance of those offences in detail. It suffices to state that Mr Fernando effectively invaded the victim's home and threatened her with a knife before raping her. On any view of the facts of that offence it was an horrific assault.

8. Of particular relevance to this matter is that, while he was on parole for those offences, he then committed what is described as the “index offences”. Specifically, on 26 October 2000 he was convicted and sentenced in the District Court in respect of two sets of offences. The first were committed on 12 October 1999 and involved the forcible abduction of the victim with intent to carnally know her, an assault with intent to have sexual intercourse with a child of 14 years, being under the age of 16 years, the commission of an act of indecency with a person under 16 years, common assault occasioning actual bodily harm, take and drive conveyance without consent of an owner, larceny and break and enter a building with intent to commit a felony. Again, it is not necessary to describe the facts of those offences in any detail. It suffices to state that it was a terrifying ordeal for the young victim during which she was tied up and sexually assaulted under threats of violence by Mr Fernando.

9. The second set of offences were committed on 18 October 1999, being six days after the first set of offences. Specifically, Mr Fernando was convicted of aggravated sexual assault of a victim under 16 years, detain for advantage and cause injury to the victim, steal motor vehicle and obtain property under false pretences. Once again it is not necessary to describe the offences in any detail, It suffices to state that, using threats of force, he abducted a fifteen year old girl on her way to school and raped her. Needless to say it was undoubtedly an extremely horrific event for this victim.

10. For these offences Mr Fernando was sentenced to long terms of imprisonment. The last of the non-parole periods for those offences expired on 19 October 2013. The sentences themselves are due to expire on 19 October 2016. Despite the expiry of his non-parole period Mr Fernando was not released from custody. However, ultimately on 11 May 2016 he was released to parole and he has remained in the community since that time.

11. Three matters need to be noted about what has happened to him since then. First, on 3 August 2016 he was convicted and given a bond for failing to report in accordance with the requirements applicable to someone who had committed a sexual offence against children.

12. Second, given his mental health condition, a matter I will return to, he has been subjected to a Community Treatment Order by the Mental Health Tribunal.

13. Third, since his release Mr Fernando has been residing in a Community Offender Support Program or “COSP” Centre, which is a form of supervised accommodation.

14. Relevant to this application a number of other matters should be noted at this point. Tendered in support of the State's application was a vast quantity of material which I have reviewed. Included within that material was a Risk Assessment Report dated 3 February 2016. The effect of that report is described in its Executive Summary as follows:

“Mr Fernando is a 53 year old man with a long history of offending fuelled by poly‑substance abuse. While he has experienced some periods of stability in the community, the severity of his offending has increased since he started offending as a teenager, culminating in violent sexual assaults while threatening the victims at knife point.

While in custody, Mr Fernando completed a CUBIT program and attended maintenance treatment for 15 months. He has been compliant with prison routine and has a good work ethic. He has also completed the EQUIPS Addiction program and is not assessed as eligible for any further custodial offence‑focused programs.

Since entering custody on the current offences, he has been diagnosed with schizophrenia. Apart from a period in 2014, when he ceased taking his medication, this condition has been well‑managed.

He is assessed as high risk of further offending and it is believed an Extended Supervision Order would assist in reducing the risk of further offending. He has expressed the willingness to comply with such an order. Should the Court believe that such an order would represent an unreasonable risk to society, it could impose a Continuing Detention Order."

15. There was also tendered a Risk Management Report dated 1 March 2016. As its name implies, the report traverses a number of matters relevant to the risk posed to the community by Mr Fernando's release. It is noted that since August 1989 Mr Fernando has been incarcerated for that entire period except for approximately two years and twenty days. The report notes the significant danger of him having become institutionalised.

16. The report also notes the matter adverted to in the executive summary of the Risk Assessment Report, namely his diagnosis of schizophrenia. To that end the State tendered a number of psychiatric reports concerning Mr Fernando, the latest of which was a report of Dr Richard Furst dated 23 February 2016, which noted that he met the diagnostic criteria for schizophrenia, substance use disorder dependence, antisocial personality disorder and paraphilia.

17. The Risk Management Report also notes that Mr Fernando has completed a number of courses in custody and referred to the matter noted earlier, namely his completion of the custody based intensive treatment program “CUBIT” while in custody as well as the “Sexual Offender Program Maintenance Program”.

18. The report identifies a number of risk factors associated with Mr Fernando's release, namely substance abuse, gambling and various societal influences. The report sets out a number of matters affecting the management of him in custody which in broad terms are reflected in the proposed conditions.

19. Section 5H of the Act confers upon the State the power to apply to this Court for an ESO against an offender. Section 5I(1) provides that an application for a high risk sex offender ESO may be made only in respect of a supervised sex offender. Section 5I(2) defines a supervised sex offender as a sex offender who is in custody or under supervision at the time when the application for the order is made.

20. Given Mr Fernando's criminal history, parts of which I have described, he clearly meets the definition of “sex offender” in s 4. Further, given that at the time the summons was filed he was subject to supervision, being his parole, the balance of the requirements of 5I(2) have been met.

21. Section 6(1) of the Act requires that an application for an ESO must specify whether the ESO sought is a high risk sex offender extended supervision order or a high risk violent offender extended supervision order. The summons meets that requirement.

22. Section 6(2) provides the application may not be made until the last six months of the offender's current custody or supervision. That requirement has been complied with.

23. Section 6(3) provides that the application must be supported by documentation that addresses each of the matters referred to in s 9(3) and includes a report that assesses the likelihood of the offender committing a further serious sex offence or a further serious violent offence. The reports to which I have referred meet that requirement. Further, the matters listed in s 9(3) are addressed in the material to which I have referred and which are annexed or exhibited to the affidavits.

24. Section 7(3) provides that the preliminarily hearing of this kind must be conducted within 28 days after the application is filed within the Court or such further time as the Court may allow.

25. Section 7(4) confers on the Court the power to grant the first form of relief sought by the State, namely, the power to appoint two psychiatrists or two psychologists or a mixture thereof to examine Mr Fernando and direct him to attend the examination. The Court is obliged to make that order if it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. The reference to “the matters alleged in supporting documentation” raises the point I adverted to earlier, namely that on the hearing of this application the Court does not undertake any assessment of the matters referred to in the documentary material, but instead takes that material as a given.

26. In terms of whether those are matters which if accepted would justify the making of an extended supervision order, this directs attention to ss 5B and 5C. Section 5C(1) confers on this Court the power to make an order for the supervision of an offender if the offender is a “high risk sex offender”. Section 5C(2) defines such an order to be an extended supervision order.

27. A high risk sex offender is defined by s 5B(2) and that definition is satisfied “if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.” The assessment of whether that test is satisfied is in part informed by the criteria in s 9(3) that I referred to earlier.

28. I have already described the basic material relevant to this assessment. I am satisfied to a high degree of probability that, if the matters alleged in the supporting documentation were proved, then Mr Fernando would pose an unacceptable risk of committing a serious sex offence if he is not kept under supervision. The combination of his criminal history, his mental health condition, his long period of incarceration and the lack of community support that would follow if he was not kept under supervision means that that test has clearly been met. Accordingly, the Court will make the order required under s 7(4).

29. The power to make an ISO is conferred by s 10A. Section 10A empowers the Court to make an order if it appears to the Court that the offender's 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 a high risk sex offender extended supervision order.

30. In relation to the first criteria, the current period of supervision of Mr Fernando under his parole order will expire later this month. There is, as I understand it, no prospect of obtaining a final hearing date before that time.

31. In relation to the second criteria it follows from the earlier conclusion that the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order against Mr Fernando.

32. Further, the Court is granted a discretion to make the order and the exercise of that discretion is informed by the various criteria in s 9(3) which I have already referred to but not explained in much detail. Included within those criteria is, as one would expect, consideration of the safety of the community as well as a requirement to have regard to the various reports to which I have already referred as well as the other material which the State relies upon, as well as consideration of Mr Fernando's involvement in treatment or rehabilitation programs, his level of compliance with obligations to which he has been subject, his criminal history and the views of the sentencing court at the time the imprisonment was imposed upon the offender. These criteria have already been touched upon in the background which I gave earlier. In my view they all demonstrate the necessity to make the ISO that is sought.

33. Part of the proposed ISO includes the imposition of conditions. As stated, the careful submissions of Counsel for the defendant identified some issues with the drafting and form of various conditions which have been considered. I have reviewed the revised conditions and I consider that in light of the material alleged in the supporting documentation they are justified.

34. Accordingly, the Court will make orders that reflect paragraphs 1 and 2 of the amended summons. Specifically the Court will make orders 1 to 5 and 7 to 8 in the short minutes of order. With number 6 the Court will simply direct the parties to approach the Manager of Listings to obtain a final hearing date with an estimate of one day.

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Decision last updated: 07 October 2016