State of New South Wales v Roach

[2009] NSWSC 1336

CITATION:	State of New South Wales v Roach [2009] NSWSC 1336
HEARING DATE(S):	2 December 2009
JUDGMENT DATE :	2 December 2009
JUDGMENT OF:	Harrison J
EX TEMPORE JUDGMENT DATE:	2 December 2009
DECISION:	1. Pursuant to s 8 of the Crimes (Serious Sex Offenders) Act 2006 ("the Act"), the defendant be subject to an Interim Supervision Order for a period of 28 days on and from 31 December 2009; 2. Pursuant to s 11 of the Act that the defendant comply with the conditions contained in the attached Schedule for the duration of the interim supervision order referred to in order 1 above; 3. Pursuant to s 15(4) of the Act: (a) two qualified psychiatrists (Dr Stephen Allnut and Dr Jeremy O’Dea) are appointed for the purposes of conducting separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on or before 15 January 2010; and (b) the defendant is directed to attend those examinations. 4. The matter be listed before the Duty Judge on 27 January 2010 for the purposes of fixing a final hearing date and dealing with any application by the plaintiff that the defendant be subject to a further interim supervision order. 5. The parties have liberty to apply on 24 hours notice. 6. The court file in this matter is not to be released to any third parties without leave of a judge of the Supreme Court and that the parties are to be notified and given an opportunity to be heard on any such application.
CATCHWORDS:	CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offender - preliminary hearing - release from custody imminent - application for interim supervision order for 28 days pending final hearing – order sought for examination by psychiatrists – orders made
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006
CATEGORY:	Procedural and other rulings
PARTIES:	State of New South Wales (Plaintiff) Frederick Francis Roach (Defendant)
FILE NUMBER(S):	SC 15119 / 2009
COUNSEL:	D A Buchanan SC with S G Callan (Plaintiff) D J Thiering (Defendant)
SOLICITORS:	I V Knight, Crown Solicitor (Plaintiff) Legal Aid Commission of New South Wales (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

2 December 2009

15119/2009 State of New South Wales v Frederick Francis Roach

JUDGMENT – EX TEMPORE

1 HIS HONOUR: This is an application by summons filed on 10 November 2009. The plaintiff seeks orders pursuant to s 7(4) of the Crimes (Serious Sex Offenders) Act 2006 appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and to furnish reports to the Court, and to direct the defendant to attend those examinations. It also seeks an interim order pursuant to s 8(1) of that Act that, for a period of 28 days from the expiry of the defendant's sentence on 31 December 2009, he be subject to a supervision order requiring him to comply with certain conditions in the form of the conditions attached to the summons.

2 In the events that have occurred, the defendant does not now oppose the making of either order and does not now object to the conditions in an amended form. He does not, however, concede that a supervision order should be made on anything other than an interim basis and expressly reserves his right to contest both the threshold question (to which I shall shortly refer) as well as to the nature and extent of any conditions attaching to an extended supervision order if in due course this Court were satisfied that such an order could or should be made.

3 With respect to the so-called threshold question, I am required to be satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision. That requirement exists even notwithstanding that a defendant, such as in the present case, does not oppose the making of an order or the form of the conditions that give it content. In this respect I note that the threshold for making interim orders is lower than that for making final orders: see, for example, Attorney General for the State ofNew South Wales v Hayter [2007] NSWSC 983 per Price J at [6] as follows:

"[6] In determining whether to order psychiatric examinations pursuant to s 15(4) the court is not involved in weighing the supporting documentation or predicting the ultimate result. See Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119, where the Court of Appeal considered s 16(1)(b) of the Act, which is in similar terms to s 15(4). The test for making the orders presently sought is similar to the requirement for a prima facie case to be made out in committal proceedings."

4 I have had regard to the affidavits of Brett Thomson affirmed on 10 November 2009 and 24 November 2009 and to the considerable material annexed or exhibited to each of them. Those documents include, but are not limited to, a very detailed report dated 25 September 2009 prepared by Patrick Sheehan, a senior specialist psychiatrist from the New South Wales Department of Corrective Services Serious Sex Offenders Review Group. I have also had regard to the helpful and extensive written submissions prepared by counsel on behalf of both the plaintiff and the defendant.

5 On the basis of that material I am presently satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision on an interim basis for a period of 28 days from the date of expiry of his sentence on 31 December 2009. To this end I have been provided with short minutes of order, in accordance with which I have been asked to make orders, to which are attached a series of amended conditions that I am informed are suitable to both parties. I consider that these amended conditions are appropriate and adequate to give effect to these orders.

6 Accordingly I make orders in accordance with the short minutes of order dated today, which I shall initial and place with the papers.

**********