State of New South Wales v Rush (No 2)

[2019] NSWSC 417

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v Rush (No 2) [2019] NSWSC 417
Hearing dates:	On the papers
Date of orders:	08 April 2019
Decision date:	12 April 2019
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	1.   Pursuant to ss 10C(1) and (2) of the Act, the ISO is renewed from 21 April 2019 for a further 28 days; 2.   Pursuant to s 11 of the Act, the defendant is directed to comply with the conditions of the ISO as renewed; 3.   The listing of 10 April 2019 is vacated; and 4.   Any application for further renewal of the ISO may be made orally at the final hearing.
Catchwords:	HIGH RISK OFFENDER – serious sex offender – preliminary hearing - application for interim supervision order
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	State of New South Wales v Rush (Preliminary) [2018] NSWSC 1949
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Shayne Charles Rush (Defendant)
Representation:	Counsel: P Aitken (Plaintiff) A Cook (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2018/295920

Judgment

1. On 14 December 2018, I made orders under the Crimes (High Risk Offenders) Act 2006 (NSW) with respect to the defendant: State of New South Wales v Rush (Preliminary) [2018] NSWSC 1949.

2. In that judgment I set out my reasons for determining that the interim supervision order (ISO) should be made together with orders for a psychiatric and psychological examination. In short, those reasons were based on the evidence before me that the defendant was at moderate to high risk of future sexual offending against a background - albeit some time ago - of random sexual attacks on children in public places associated with sudden violence and threats.

3. The proceedings are listed for final hearing on 10 May 2019 with an estimate of one day.

4. Since the orders I made on 14 December 2018, the defendant has been assessed by Dr Adam Martin, Forensic Psychiatrist. His report dated 5 February 2019 has been provided to the Court and I have reviewed it. One matter of relevance raised in Dr Martin’s report is that the defendant was in custody at the time of the assessment due to a breach of a parole condition regarding accommodation. He had been in custody since 21 December 2018. A hearing was planned in respect of the asserted breach of parole conditions to take place on 7 February 2019. I do not know the result of that hearing and whether the defendant remains in custody or not.

5. Dr Martin concluded that the defendant fulfils the diagnostic criteria for pedophilic disorder. Dr Martin noted in the history taken from the defendant that the defendant denies ongoing attraction to children. The offending behaviour happened more than 20 years ago and thus it is arguable that the fantasies and behaviours and urges have abated, but Dr Martin explained that given the number of child victims, he concluded that it is more likely than not that the defendant has a pedophilic disorder which essentially represents an enduring vulnerability to experiencing ongoing aberrant urges, fantasies and behaviours involving sexual activity with children.

6. In respect of the risk of committing a further serious offence, Dr Martin concluded that he concurs generally with Mr Ardasinski’s opinion (the effect of which is set out in paragraphs 24 and 29 of the preliminary judgment) that the defendant remains at a moderate to high risk of committing a further serious offence.

7. Dr Martin identified the major risk factors appear to be:

“…the history of serious and violent sexual offending on the background of general anti-social behaviour and lack of regard for the rights of others. He has shown evidence of cognitive distortions such as minimisation and denial of the nature of the offending in the past…”

And

“If in the community and without supervision, he would be vulnerable to use of substances which could also act as a disinhibiting factor, increasing risk. Historical sex offending in the context of probable paraphilia is the major risk factor and this is likely to remain an issue for him. I have considered that the offending happened 20 years ago and there has not been further offending. However, he has been in a highly restricted environment since, and my view is that the risk is significant, particularly in circumstances of not being closely monitored.”

Decision

8. In my view, there is nothing in the report of Dr Martin that causes me to conclude other than that the ISO should be renewed, pending the final determination listed for hearing on 10 May 2019.

9. Consent orders were provided by the parties to effect such a renewal. I note that the defendant informed Dr Martin that he was “happy” with the proposed extended supervision planned and said that he “did not care how long it was for” and that he was “not fighting it”.

10. I currently have no information as to whether the defendant is in custody or not, however it seems to me that if he is in custody, there is nothing in the Schedule of Conditions of Supervision, that is incompatible with being in the custody of Corrective Services New South Wales.

11. I make the following orders which were noted as consented to by the legal representatives for the defendant:

1. Pursuant to ss 10C(1) and (2) of the Act, the ISO is renewed from 21 April 2019 for a further 28 days;

2. Pursuant to s 11 of the Act, the defendant is directed to comply with the conditions of the ISO as renewed;

3. The listing of 10 April 2019 is vacated; and

4. Any application for further renewal of the ISO may be made orally at the final hearing.

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Amendments

16 May 2019 - 16 May 2019 - Medium Neutral Citation changed to State of New South Wales v Rush (No 2) [2019] NSWSC 417.