State of New South Wales v Mintern

[2014] NSWSC 664

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Mintern [2014] NSWSC 664

Hearing dates:

15 May 2014

Decision date:

15 May 2014

Jurisdiction:

Common Law

Before:

Adams J

Decision:

1. Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (the Act):

(a). The Court appoints Dr Samson Roberts and Dr Richard Furst to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 28 July 2014; and

(b). The defendant is directed to attend those examinations.

2. Pursuant to section 10A of the Act the defendant is subject to an interim supervision order from 24 June 2014 for a period of 28 days.

3. Pursuant to section 11 of the Act, the defendant is to comply with the conditions set out in the Schedule to the short minutes of order for the period referred to in paragraph 2 above.

4. See orders in Court file.

5. See orders in Court file.

6. List the matter for mention on 18 July 2014 for the purpose of the State's application to renew the interim supervision order made at order 2 above.

7. List the matter for mention on 15 August 2014 for the purpose of the State's application to further renew the interim supervision order made at order 2 above.

8. Matter listed for final hearing on 29 August 2014 with an estimate of a half-day.

9. Direct that access to the Court file in respect of any document shall not be granted without the leave of a Judge of the Court. If any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to be given the opportunity to be heard.

10. Grant liberty to apply on three day's notice.

Catchwords:

CRIMINAL LAW - Crimes (High Risk Offenders) Act 2006 - serious sex offender - unacceptable risk of committing a serious sex offence if not supervised - interim supervision order

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW), ss 9, 7(4), 10A, 10C, 5I, 5B, 9(3)
Crimes Act 1900 (NSW), s 61J(1)

Cases Cited:

State of New South Wales v Richardson (No 2) [2011] NSWSC 276; (2011) 210 A Crim R 220

Category:

Interlocutory applications

Parties:

State of New South Wales (Plaintiff)
Neil William Mintern (Defendant)

Representation:

Counsel:
G Mahoney (Plaintiff)
P Johnson (Defendant)
Solicitors:
Crown Solicitor's Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2014/123988

ex tempore Judgment

1. The plaintiff, by summons filed on 24 April 2014, is seeking an extended supervision order in respect of the defendant pursuant to s 9 of the Crimes (High Risk Offenders) Act 2006 (NSW) and an interim supervision order for a period of 28 days pursuant to ss 10A and 10C of the Act pending final hearing of the matter, at which time final orders will be sought. The summons also seeks an order pursuant to s 7(4) of the Act appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court and an order directing the defendant to attend those examinations.

1. Section 10A of the Act provides that an interim supervision order may be made by the Court if it is satisfied that the defendant's current custody will expire before the proceedings are to be determined and that the matters alleged in the supporting documentation, if proved, justify the making of a high risk sex offender extended supervision order. The decision to make an interim supervision order is discretionary and it is open to the Court to refuse to make such an order, even if the conditions specified in the relevant section are satisfied.

1. I should mention that the making of the present interim order is not opposed, although there has been some disagreement, now resolved, as to the terms of the order. For the purposes of this hearing, the defendant concedes that the matters alleged in the supporting documentation, if proved, would justify the making of a high risk sex offender supervision order. Nevertheless, it is necessary for the Court to be satisfied that such an order is appropriate

1. The defendant is in custody following a plea of guilty to one count of aggravated sexual assault under s 61J(1) of the Crimes Act 1900. He was sentenced on 13 June 2008 to six years and eight months imprisonment with a non-parole period of three years and six months, commencing on 5 October 2007. The defendant was released on parole on 17 August 2011 but his parole was revoked on 30 March 2012. He was again released on parole on 25 October 2012. However, on 18 January 2013 parole was again revoked and he remains in full-time custody. The defendant has either been in custody or subject to supervision by the Probation and Parole Service during this period, so he continues to be a supervised sex offender within the meaning of s 5I and, accordingly, the present application may be considered.

1. It is not necessary for present purposes to predict the ultimate result of the proceedings; merely to find prima facie that the matters alleged, if proved, would justify the making of the final extended supervision order envisaged. Amongst other things, it does not involve the weighing up of documentation or the consideration of evidence which will be called at the final hearing.

1. It is necessary before a high risk offender extended supervision order is made that the Court be satisfied that the offender is a high risk sex offender within the meaning of s 5B of the Act. Section 5B provides -

"(2) An offender is a high risk sex offender 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." [Emphasis original].

1. The meaning of the important element of the definition that there be a high degree of probability that the offender poses an unacceptable risk has been considered, amongst others, by Justice Davies in State of New South Wales v Richardson (No 2) [2011] NSWSC 276; (2011) 210 A Crim R 220. Essentially it involves a balancing exercise between the likelihood of the commission of a serious sex offence by the defendant on the one hand and, on the other, serious consequences for him by way of significant limitations on his freedom as a citizen. These considerations are relevant also to the making of an interim order.

1. The Act specifies the matters to which the Court must have regard when considering whether to make an extended supervision order (see s 9(3)). These include the safety of the community, the reports of the psychiatrists and other persons appointed to conduct examinations of the offender, the results of assessments, the results of statistical analysis, reports prepared by Corrective Services New South Wales, the outcome of treatment or rehabilitation programmes in which the offender has been involved, his level of compliance with parole obligations or any earlier extended supervision order or any other obligations to which he or she has been subject, his criminal history, the views of the sentencing court at the time of his being sentenced and other information that pertains to the likelihood of future offending.

1. I do not intend and it is not necessary for present purposes to detail the criminal history and patterns of offending behaviour of the defendant, it is enough to say that I have read the material which is relied on by the plaintiff in that regard. The defendant has a lengthy criminal history and has been convicted of committing sexual offences against four victims, the youngest being a four year old child. The first of these offences was committed when the defendant was thirteen years of age.

1. The risk report provided by the Department of Corrective Services prepared by a psychologist within the department confirms the risk which the offender represents and describes the extent to which the defendant can reasonably and practically be managed in the community. The defendant was assessed as falling within the high risk category of sexual offending relative to other male sexual offenders. I should mention, of course, that a supervision order is in no sense punishment. It is designed, so far as it may reasonably do so, bearing in mind the civil rights of all citizens including the defendant, to protect the community from the risk of serious offences being committed by him, he having demonstrated in the most direct way the tendency to commit such offences.

1. I am satisfied in the present case from the material provided and the reports supplied that the matters alleged, if proved, would justify the making of an extended supervision order. Accordingly, it is appropriate to make the interim supervision order subject to the conditions specified in the schedule attached to the summons with the amendments which have been the subject of debate and, ultimately, agreement. It is not necessary to further refer to these matters in this judgment.

1. Accordingly, I make the orders in accordance with paragraphs 1 and 2 of the summons.

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Decision last updated: 29 May 2014