State of New South Wales v Myers

[2008] NSWSC 1430

CITATION:	State of New South Wales v Myers [2008] NSWSC 1430
HEARING DATE(S):	25 & 26 September 2008; 23 & 28 October 2008; 21 November 2008; 8, 10 & 11 December 2008
JURISDICTION:	Common Law
JUDGMENT OF:	McCallum J
EX TEMPORE JUDGMENT DATE:	11 December 2008
DECISION:	1. Pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006, I make an extended supervision order in respect of the defendant for a period of 2 years to commence at 4pm today, 11 December 2008 and pursuant to s 11 of the Act, I direct the defendant to comply with the conditions set out in the schedule to these orders during that period. 2. I order that the interim order made by me on 21 November 2008 conclude at 4pm today. 3. I make a direction 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 is made by a non party in respect of any document, the parties are to be notified by the registrar so as to be heard.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Serious Sex Offenders) Act 2006
CATEGORY:	Procedural and other rulings
CASES CITED:	Tillman v Attorney General 2007 NSWCA 327
PARTIES:	State of New South Wales (Plaintiff) Shannon Troy Myers (Defendant)
FILE NUMBER(S):	SC 14700/08
COUNSEL:	Ms A Stenmark SC / Mr D T Kell (Plaintiff) Mr J Stratton SC / Mr P Johnson (Defendant)
SOLICITORS:	Crown Solicitors (Plaintiff) Legal Aid Commossion (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

THURSDAY 11 DECEMBER 2008

14700/08 THE STATE OF NEW SOUTH WALES v TROY SHANNON MYERS

JUDGMENT

1 HER HONOUR: On 17 February 2005, Troy Myers was sentenced to imprisonment with a non-parole period of 2 years and a balance of term of 2 years after he pleaded guilty to an offence of aggravated sexual assault contrary to s 61J of the Crimes Act. As a result of those events, he is a "sex offender" within the meaning of the Crimes (Serious Sex Offenders) Act 2006 and is, accordingly, amenable to the jurisdiction of this Court under that Act.

2 The Act confers power in an appropriate case to make an order for a person's extended detention or supervision notwithstanding the fact that he or she has served the full term of the sentence imposed in respect of the offence that attracts its operation. It is not necessary for present purposes to record the details of the relevant offence in the present case except to say that it was a sexual assault committed on a young male within the family at a time when Mr Myers had fallen into a pattern of heavy use of the drug methamphetamine commonly known as “Ice”. The use of that drug is said to cause intense sexual arousal in Mr Myers. It is also known to impair judgment and the ability to control aggressive behaviour.

3 Mr Myers pleaded guilty at an early stage of the proceedings and was extremely remorseful for his acts. He also pleaded guilty to an offence of aggravated robbery committed some months earlier. The sentencing judge had regard to a report of Dr Bruce Westmore, a psychiatrist who said:

“I believe both the matters now before the Court have arisen in the context of his drug abuse. I do not believe he suffers from the condition paedophilia. This opinion is based on his self reported psycho-sexual history. He expressed on several occasions during the assessment that he has deep feelings of regret and remorse about both offences, and he is looking forward to attending a sex offender programme while in custody. If this young person can move into sobriety from illicit drugs, then I believe his risk of reoffending will be significantly reduced. I also think his risks of acting again in a sexual way towards [the victim] or indeed, any other minor, is negligible to non-existent.”

4 The judge took those remarks into account when he concluded that the level of criminality was well below the middle of the range having regard to the early onset of Mr Myers' drug dependency, the lack of planning and the circumstance that he is not a paedophile.

5 Mr Myers was released to parole in December 2007, but that was revoked when he relapsed into drug use. At the time his parole was revoked, he had 6 weeks of his sentence remaining. It was during that period that the State applied for an extended supervision order. The Serious Sex Offenders' legislation requires a preliminary hearing to be conducted to ascertain whether the application should be dismissed or whether experts should be appointed by the Court to examine the defendant. That hearing was conducted by me in this case. On 26 September 2008, I made orders for Mr Myers' examination by two psychiatrists. Since Mr Myers was then due to be released within days, the State also sought an interim order for extended supervision. I made an interim order and directed Mr Myers to comply with a number of conditions pursuant to s 11 of the Act.

6 On 16 October 2008 Mr Myers was arrested and charged with an offence under s 12 of the Act of breaching the interim extended supervision order. He had taken methamphetamine, contrary to one of the conditions I imposed. The same day, Ms Bateman, Mr Myers' girlfriend with whom he had originally been permitted to live during the period of extended supervision, contacted a Corrective Services Officer and told him that she had left the house with her children as Mr Myers was "out of control" and threatening suicide.

7 On 30 October 2008, Mr Myers pleaded guilty to the offence under s 12 and was sentenced to imprisonment for the 2 weeks during which he had already been in custody. When released from custody, he wanted to return to live with Ms Bateman, but the departmental supervising officer in charge of his case very sensibly took the view that he needed to ‘go to rehab” to address his drug dependency first. Various attempts were made to find residential rehabilitation for Mr Myers. Regrettably, no facility in Sydney or within the area of Sydney accepts sex offenders and no suitable rehabilitation course has been identified.

8 On 18 November 2008, Mr Myers used the drug again and was arrested and charged with a second offence under s 12. To his credit, it was he who contacted the case officer to disclose that offence. I note that when visited in the cells by the case officer the next day, Mr Myers said he was sick of being supervised by the Community Compliance Group and that he would, "rather go back to gaol, then I'll get out and not have to put up with CCG." I express the hope that Mr Myers is aware that gaol is not an alternative that he may simply elect in order to bring an end to the supervision. The Act permits the making of a second or subsequent order. Mr Myers should work on the basis that the State will continue to seek orders permitting his supervision so long as the experts assess him to be likely to commit further sexual offences.

9 Mr Myers was convicted of the second offence on 28 November 2008 and released that afternoon. As a result of the offences under s 12, the State amended the summons in these proceedings to seek an extended detention order, but that application was abandoned during the hearing.

10 The hearing for final orders was greatly facilitated by Mr Myers' concession that the evidence before the Court would satisfy the test for the making of an extended supervision order and his indication that he would not oppose the imposition of conditions of the kind imposed by the interim orders.

11 Those concessions, however, do not obviate the need for the Court to be satisfied in the terms of s 9(2) which provides:

“An extended supervision order may be made if, and only if, the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision.”

12 As noted by Ms Stenmark, who appeared with Mr Kell for the State, the test in s 17 of the Act, which is in the same terms, has been construed by the Court of Appeal to denote a degree of probability “at the upper end of the scale, but not necessarily exceeding 50 per cent” (see Tillman v Attorney General 2007 NSWCA 327 at para 89). The evidence on the issue of the probability of Mr Myers sexually re-offending was conveniently summarised in an outline of submissions provided by counsel for the State. Since there is no contest as to that issue, it is not necessary to set it out in detail.

13 In summary, Dr Anthony Samuels, one of the psychiatrists appointed by me to examine Mr Myers, expressed the opinion that in the case of Mr Myers, substance misuse is correlated with a high risk of offending generally, both sexual and general criminal offending. He assessed the risk of Mr Myers' offending when using substances as being moderate to high, and in light of the breaches of the interim orders, was less confident than he had previously been trying to separate out the risk of general reoffending from the risk of sexual reoffending.

14 The other psychiatrist appointed by me, Dr Robert Lewin, expressed a similar opinion. He said that there were factors in Mr Myers' personality which meant that he was vulnerable to certain antisocial patterns of conduct and that the risk of reoffending in a serious sexual manner was, in his case, alarmingly magnified by the use of methamphetamine.

15 Finally, Ms Jillian Mears, a psychologist, expressed the opinion that Mr Myers presents a high risk of sexually re-offending if released from custody without supervision. Ms Mears' opinion was based, in part, on an actuarial risk assessment tool known as Static-99. I approach that evidence with some circumspection, having regard to the evidence of Dr Samuels at T25. He said:

“The problem with actuarial analysis is that it compares the behaviour of an individual with the behaviour of cohort of similar offenders, saying nothing about the individual.”

16 The recidivism rate of people assessed by that test in the high range over 15 years is 52 per cent. Dr Samuels made the point that the test does not identify whether the particular offender is in the 52 per cent who will re-offend or the 48 per cent who won't. However, Ms Mears' opinion was also formed by reference to what she refers to as dynamic risk factors, importantly including Mr Myers' drug abuse, and also by reference to structured clinical judgment.

17 Apart from the evidence relied on by the State, I have also had regard to the reports Dr Westmore relied on by the defendant. Dr Westmore provided an updated report for the purpose of these proceedings in which he confirmed the views relied on by the sentencing judge to which I have already referred. Dr Westmore's recent examination of Mr Myers led him to express the following opinion:

“All mental health professionals who have assessed Mr Myers; three psychiatrists and a psychologist, have all emphasised and linked his future risk both of an aggressive and sexual type with his use of illicit substances in particular, but also with any state of intoxication. That consistency of opinion is most important in my view, and it would suggest that the principal thrust of management in this case is to ensure that Mr Myers maintains his sobriety from illicit drugs and alcohol. Any breach increases the risks to himself and to others. He has some insight into this.”

18 On the strength of all of that material, I am satisfied to a high degree of probability that Mr Myers is likely to commit a further serious sex offence in the sense in which that term has been construed by the majority in Tillman. Further, I am satisfied having regard to the matters referred to in s 9(3) of the Act that I should make an extended supervision order. The evidence indicates that Mr Myers needs to be kept under supervision so as to monitor his success in rehabilitating himself from his tendency to drug abuse, which is the most volatile factor in his risk of re-offending. I do not assess the probability of his re-offending as exceeding 50 per cent by any means, but as I am bound by the decision of the majority in Tillman, the degree of probability established, on any view of the evidence, is enough.

19 As to the term of the extended supervision order, the State submits that the order should be for a duration of 3 years. Mr Stratton, who appeared with Mr Johnson for the defendant, submitted that a period of 2 to 3 years was appropriate. Dr Samuels originally expressed the opinion that “2 to 3 years” was the appropriate period and Dr Westmore agreed with that opinion. Dr Samuels' report states that if Mr Myers stays drug free for a year, he (Dr Samuels) would have improved confidence in the long term prognosis. However, Dr Samuels also noted that people can relapse into drug use after long periods of stability. Further, in his second report, Dr Samuels said that in light of recent events, a longer period of supervision "might be a safer approach.”

20 I have given careful consideration to that evidence. None of the experts said, without equivocation, that a period of 3 years is the appropriate period. The appropriateness in 2 years time of a further year of the stringent supervision contemplated is a matter that I cannot presently assess since it will turn so acutely on the progress made by Mr Myers in the meantime. If a further period of supervision is considered appropriate at that stage, a second or subsequent order can be made: see s 10(3). I am conscious of the fact that a further hearing in 2 years time would involve additional cost and burden on the stretched resources of this State's legal system (and the Corrective Services Department), but I doubt whether that is a relevant consideration.

21 There is a substantial body of material that demonstrates Mr Myers is torn between a strong desire to rehabilitate himself and a compelling urge to use the drug. As a result, he is at times co-operative with those charged with his supervision but at times, he buckles under the weight of what are, after all, substantial curtailments of his freedom. Considering those matters, I have come to the view that the preferable course is to confine the term of the order to 2 years in the hope of fixing an attainable goal. If Mr Myers is able to work with his supervision in that period and address the issue of his drug abuse, there will be a compelling case for ending supervision at that time. Plainly, if he continues to strain against his supervision, a different picture will emerge.

22 It remains to consider the conditions which it is appropriate to impose. Section 11 of the Act provides "An extended supervision order may direct an offender to comply with such conditions as the Court considers appropriate." That section confers a broad judicial discretion, but one that must, of course, be exercised judicially having regard to the objects of the Act.

23 When I made the first interim orders, I remarked that the twin objects of the Act of ensuring the safety and protection of the community (which is the primary object) and of encouraging serious sex offenders to undertake rehabilitation are not binary. Plainly, rehabilitation of offenders is conducive to the safety of the community. The primary purpose of promoting protection of the community is achieved in the making of the order itself. By operation of such an order, an offender is amenable to the supervision of experienced Corrective Services officers. If he fails to accept such supervision, he risks demonstrating that adequate supervision will not be provided by the order, with the consequence that he will likely face an application for an extended detention order. An application by the State may indicate the kinds of conditions considered appropriate for inclusion in an order under s 11 (see s 6(4)). However, the Court does not have to impose any particular condition sought by the State and, equally, the officers of Corrective Services do not need the Court's approval in the conduct of every aspect of an offender's supervision.

24 In my view, it is neither necessary nor appropriate for the conditions imposed by the Court to foreshadow and address every aspect of supervision that may arise. It must be borne in mind that breach of an extended supervision order is a criminal offence. The orders that will be considered appropriate should, in my view, be confined to those for which that sanction is reasonably necessary in aid of the many difficult tasks of the supervising Corrective Services officers.

25 One of the conditions sought by the State in this case was to require Mr Myers to disclose to the State the name and address of any medical health practitioner consulted by him and to compel him to waive his right to confidentiality in communications with such practitioners. Dr Westmore expressed the opinion that if such professionals were required to disclose confidential communications, that could have an adverse impact on the therapeutic alliance and the course and outcome of any therapy received by Mr Myers. He suggested an alternative formulation which required the clinicians to disclose only specific risk management concerns. However, the orders of this Court would not compel any practitioner to do anything. The Court’s orders reach only to the conduct of Mr Myers.

26 I have come to the view that it is not appropriate to make any order in respect of disclosure of medical treatment. It is not necessary to decide the difficult issue whether this Court has power to compel an offender to consent to waive a legal right. In any event, I am not persuaded that it is an appropriate condition to be imposed in this case.

27 The other conditions sought by the State were broadly agreed between the State and Mr Myers. I make the following orders:

(1) Pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006, I make an extended supervision order in respect of the defendant for a period of 2 years to commence at 4pm today, 11 December 2008 and pursuant to s 11 of the Act, I direct the defendant to comply with the conditions set out in the schedule to these orders during that period.

(2) I order that the interim order made by me on 21 November 2008 conclude at 4pm today.

(3) I make a direction 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 is made by a non party in respect of any document, the parties are to be notified by the registrar so as to be heard.

I will initial this copy of the conditions. I have put in brackets "not including anti-libidinal treatment” in condition 18.

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