State of New South Wales v Russell

[2022] NSWSC 1034

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Russell [2022] NSWSC 1034

Hearing dates:

2 August 2022

Date of orders:

2 August 2022

Decision date:

02 August 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Pursuant to ss 18C(1) and (2) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act"), the interim detention order imposed by Justice Button on 28 June 2022 is renewed for a period of 28 days commencing from midnight on 2 August 2022 and expiring on 30 August 2022.

2. Pursuant to s 20(1) of the Act, the Court orders the issue of a warrant for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in order (1).

Catchwords:

HIGH RISK OFFENDERS – interim detention order – renewal after 28 days – whether court is required to make fresh independent decision – where no change of circumstances since order made – whether court can review reasons for the earlier order – order for renewal made

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW) ss 5C, 18A,

Cases Cited:

Brimaud v Honeysett Instant Print Pty Limited (1988) 217 ALR 44

State of New South Wales v Banks (Preliminary) [2021] NSWSC 1246

State of New South Wales v King [2022] NSWSC 918

State of New South Wales v Russell (Preliminary) [2018] NSWSC 1396

State of New South Wales v Russell (Final) [2018] NSWSC 1880

State of New South Wales v Russell (Preliminary) [2019] NSWSC 1717

State of New South Wales v Russell (Final) [2020] NSWSC 396

State of New South Wales v Russell (Preliminary) [2021] NSWSC 361

State of New South Wales v Russell (Final) [2021] NSWSC 702

State of New South Wales v Russell (Preliminary) [2022] NSWSC 843

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Brett Thomas Russell (Defendant)

Representation:

Counsel:
A Mykkeltvedt (Plaintiff)
Dr J Lucy (Defendant)

Solicitors:
Crown Solicitors Office (Plaintiff)
Voros Lawyers (Defendant)

File Number(s):

2022/74102

Publication restriction:

Nil

Judgment

1. On 28 June 2022 Button J made an order pursuant to s 18A of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act) that the defendant be subject to an interim detention order (IDO) for a period of 28 days commencing from midnight on 5 July 2022. His Honour also made orders appointing two qualified psychiatrists or registered psychologists to prepare separate reports after conducting examinations of the defendant, and to furnish those reports to the Court, pursuant to s 15(4) of the CHRO Act: State of New South Wales v Russell (Preliminary) [2022] NSWSC 843.

2. On 8 July 2022 Bellew J fixed the matter for a final hearing on 19 September 2022.

3. The proceedings now come before me for the purpose of renewing the IDO for a period of 28 days commencing from midnight on 2 August 2022. Ordinarily such renewals of IDOs or interim supervision orders (ISO) are made without contest. However, in the present case the defendant opposes the renewal of the IDO and submits that I need to form an independent view in terms of s 18A of the Act.

4. Some brief background history is relevant.

5. In April 2008 the defendant committed two counts of sexual intercourse without consent and two counts of indecent assault against a young woman aged 19 who lived next door to the defendant. At the time the defendant was aged 46. He was convicted after a trial by jury. He was sentenced in July 2009 by Judge Woods QC in the District Court to a total sentence of imprisonment for nine years commencing 4 October 2009 and concluding 3 October 2018 with a non-parole period of seven years concluding on 3 October 2016.

6. The offending was not by any means the first offending committed by the defendant. He had first been placed on probation by the Children’s Court in October 1978 for assault occasioning actual bodily harm. Thereafter he had been convicted and sentenced on numerous occasions for all manner of offending, particularly for serious offences of violence and a number of offences of sexual assault.

7. In his Remarks on Sentence, Judge Woods QC said this:

Little in this sad history excites any realistic hope of rehabilitation. This man is thoroughly institutionalised by the prison environment and in my view a significant factor in sentencing this man should be simple prevention. Regrettably, rehabilitation appears minimally relevant. Deterrence is an important consideration, both for him and others who may be tempted to misbehave in this fashion. As I have said, it is case where one important purpose of the prison sentence must be to keep him away from people whom he may victimise.

8. The defendant was not released from custody at any time before the conclusion of his total sentence. Prior to the expiry of that sentence the State made application for a continuing detention order (CDO) for a period of 12 months. On 11 September 2018 McCallum J made an IDO: State of New South Wales v Russell (Preliminary) [2018] NSWSC 1396.

9. On 7 December 2018, Button J ordered that the defendant be subject to a CDO for a period of 12 months from 12 December 2018 to 11 December 2019: State of New South Wales v Russell (Final) [2018] NSWSC 1880.

10. On 24 October 2019 the State filed a further application under the CHRO Act seeking a further CDO for a period of 12 months in respect of the defendant. On 5 December Fullerton J made an IDO commencing 16 January 2020: State of New South Wales v Russell (Preliminary) [2019] NSWSC 1717.

11. On 22 April 2020 N Adams J ordered that the defendant be subject to a CDO for a period of 12 months commencing 15 April 2020 and expiring 14 April 2021: State of New South Wales v Russell (Final) [2020] NSWSC 396.

12. On 1 March 2021 the State filed a further application under the CHRO Act seeking a further CDO for a period of 12 months followed by an extended supervision order for a period of five years. On 9 April 2021 Cavanagh J imposed an IDO commencing from midnight on 14 April 2021: State of New South Wales v Russell (Preliminary) [2021] NSWSC 361.

13. On 18 June 2021 Harrison J ordered that the defendant be subject to a CDO for a period of 12 months commencing 6 July 2021 and expiring 5 July 2022: State of New South Wales v Russell (Final) [2021] NSWSC 702.

14. The contest before Button J in June 2022 was whether an IDO or an ISO should be ordered. The principal basis for the defendant suggesting that all that should ultimately be imposed would be an ESO was that he had completed a number of therapeutic courses in custody to deal with his sexual and violent offending. He completed the EQUIPS- Foundation Program and the EQUIPS Aggression Program (Explore, Question, Understand, Investigate, Practice, Succeed), the RUSH (Real Understanding of Self Help) Program, and the HISOP (High Intensity Sex Offender Program) Program.

15. Despite the defendant having completed those programs, Button J said:

[7]   There is, to my mind, a reasonably strong case that, in April 2022, the defendant inflicted actual bodily harm on a fellow prisoner. That harm was allegedly inflicted by way of a punch and a kick to the victim’s head, and constituted a brief loss of consciousness, bruising to the mouth, a minor scratch on the lip, and a bump on the head.

[8]   There is also, to my mind, a reasonable case that the motivation for those actions on the part of the defendant was a refusal by that other prisoner to continue to provide him with sexual satisfaction.

[9]   The point was soundly made by counsel for the defendant that there has been no conviction in that regard, and that the defendant has entered a plea of not guilty to the charge. Even so, she did not resist the proposition that I could take the allegation into account as I saw fit, adopting suitable caution.

[10]   I have done so. And I have reflected upon it in the context of there being some earlier incidents of violence committed by the defendant in custody that have resulted in convictions, albeit over many years.

[11]   And I have also reflected upon it – again with caution, because of the absence of convictions in the following regard – bearing in mind that there is a reasonably strong suggestion in the evidence placed before me that, as recently as 2020, the defendant has been a person who will threaten or inflict severe violence against other prisoners if they do not accede to his sexual demands.

16. Justice Button’s reasons for imposing the IDO were these:

[21]   … I propose to impose an IDO, for the following reasons.

[22]   First, the defendant is unquestionably thoroughly institutionalised. Readjustment to life in the community will be an enormous challenge.

[23]   Secondly, I accept that progress has been made, and that the defendant has come to see that there will need to be a change in his behaviour, and thinking and feeling, otherwise he runs a serious risk of being detained, perhaps until the end of his life or earlier enfeeblement.

[24] Thirdly, I respectfully agree that, whatever outcome strict or theoretical application of the Act might countenance, speaking generally one would do one’s best responsibly to avoid the result whereby a person is detained for a very extended period without conviction. To do otherwise ignores the secondary purpose of the Act.

[25]   Fourthly, even so, the latest allegation is very troubling: as I have said, there is a reasonably strong case that physical violence was inflicted, and a case of some strength that it was inflicted with an underlying sexual motivation.

[26]   Fifthly, that having allegedly occurred after the defendant had completed a therapeutic program directed towards preventing that kind of violence, and after there had been signs of mellowing, and in the context of the prior convictions of the defendant, and – perhaps most concerning of all – when the defendant was well aware that his then CDO was coming to an end, and the question of his liberty would be raised again – is troubling indeed. So is the seeming insouciance of the defendant about it affecting his prospects of release: that suggests, I think, that the prospect of re-incarceration for breaching an ISO would not powerfully deter the defendant from doing so.

[27]   Sixthly, I appreciate that a constructive regime of conditional liberty is proposed. Even so, there will surely be times when the defendant would be out and about completely unsupervised in the community. Bearing in mind the catastrophic impact that any offence of serious violence or sexual violence could have on another member of that community, as things currently stand the realisation of that risk is not something that I am prepared to accept.

[28]   Seventhly and finally, the latest psychiatric report to hand is, as I have said, bleak indeed. It predicts failure within a matter of weeks. Indeed, on one view it could be said that the recent allegation constitutes a failure before the defendant was even released. I am not prepared to take the step of releasing the defendant to conditional liberty with the latest psychiatric opinion providing that prognosis, bearing in mind the immediate context that I have sketched.

17. Section 18C of the CHRO Act relevantly provides:

18C   Term of interim detention order

(1)   An interim detention order in respect of an offender commences on the day fixed in the order for its commencement (or, if no such day is fixed, as soon as it is made) and expires -

(a)   at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order, or

…

(2)   An interim detention order may be renewed from time to time, but not so as to provide for the detention of the offender under such an order for periods totalling more than 3 months.

18. The defendant submits that, as the order made by Button J is due to expire and needs to be renewed, the same test should be applied by me, independently considering the information, as is required under s 18A of the Act; that is, that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order.

19. Dr Lucy of counsel for the defendant first submitted to me that I did not have the necessary material before me to form that opinion, and there was therefore no basis for renewing the order. However, there was provided to me the material which had been before Button J when the IDO was sought; that is, the folders that were marked by Button J as Exs A and B. I have read the material in those exhibits.

20. Dr Lucy submitted that when regard was had to s 18C, it was necessary for an independent assessment to be made on each occasion when renewal was necessary, if the IDO was not expire.

21. In Brimaud v Honeysett Instant Print Pty Limited (1988) 217 ALR 44 McClelland J said (at 46):

The private injustice and public undesirability of permitting the relitigation of matters already litigated once is recognised in a number of principles of law, notably the rules relating to res judicata and issue estoppel, the more flexible rules under the rubric of vexation and abuse of process illustrated in such cases as Stephenson v Garrett [1891] 1 QB 677 and Hunter v Chief Constable, West Midlands Police [1982] AC 529; [1981] 3 All ER 727, and the restrictive provisions governing the adducing of further evidence on the hearing of an appeal even by way of rehearing: see, for example s 75A(8) of the Supreme Court Act 1970 (NSW).

Interlocutory orders, of their very nature, create no res judicata or estoppel, and the court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings. However the general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.

The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see for example Wilkshire & Coffey v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest "until further order" (as to which see for example Warringah Shire Council v Industrial Acceptance Corp (unreported, SC(NSW), McLelland J, 22 November 1979).

In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application: see Woods  v Sheriff of Queensland (1895) 6 QLJ 163 at 164-5; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447-8; Chanel Ltd v F W Woolworth & Co [1981] 1 All ER 745; [1981] 1 WLR 485; Adam P Brown Male Fashions v Philip Morris (1981) 148 CLR 170 at 177-8; 35 ALR 625 at 629-30; Butt v Butt [1987] 1 WLR 1351 at 1353; Gordano Building Contractors Ltd v Burgess [1988] 1 WLR 890 at 894.

(See also Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82 at [11]-[12])

22. The decision of Button J was an interlocutory decision of a substantive nature, made after a contested hearing in contemplation that the IDO would operate until the final disposition of the proceedings, subject only to renewal in accordance with s 18C of the Act.

23. Whilst the intention of the Legislature in fixing a 28-day period for an IDO, with renewal permitted for similar periods up to three months is not clear, what was not intended was that there be three contested hearings between the making of an IDO and the making of a CDO at a later time. There is nothing in the Second Reading Speech either at the time the CHRO Act was first enacted in 2006, nor at any time since it was amended, to throw any light on the matter. The Second Reading Speech was chiefly concerned with the three month overall limit on renewals of ISOs and IDOs.

24. Dr Lucy submitted that one reason for the 28-day period may have been because the liberty of a defendant was being interfered with by the imposition of the IDO or even an ISO, because of the restrictive conditions that might be attached to such an ISO. The 28-day period was, she submitted, designed to encourage expedition and the regular monitoring of the restriction, whatever it was, by the Court. However, given that the judge hearing the first application for an IDO is obliged to refer the matter to two professionals for psychiatric/psychological opinions, a 28-day period seems unreasonably short.

25. Section 19 of the CHRO Act may have relevance to the present application. That section relevantly provides:

19   Detention order may be varied or revoked

(1)   The Supreme Court may at any time vary or revoke a continuing detention order, interim detention order or emergency detention order on the application of the State or the offender.

(1A)   The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part.

(1B)   Without limiting the grounds for revoking a continuing detention order, interim detention order or emergency detention order, the Supreme Court may revoke a continuing detention order, interim detention order or emergency detention order if satisfied that circumstances have changed sufficiently to render the order unnecessary.

26. It seems to me that, given an IDO has been made, opposition to the renewal of the IDO, pending the making of the CDO, amounts, in substance, to an application by the offender to revoke the IDO. At the very least, it raises for consideration the circumstances which would permit the IDO not to be renewed. What is contained in s 19 of the Act, as well as the judgment in Brimaud point strongly to the fact that a party seeking that the IDO not be renewed identify some change of circumstances sufficient to warrant a further substantive interlocutory hearing.

27. Although sub-s (IB) allows for orders to be revoked on the basis of a wide discretion, ordinarily, such an order would not be revoked unless, on the application of an offender, circumstances have changed sufficiently to render the order unnecessary: State of New South Wales v Banks (Preliminary) [2021] NSWSC 1246 at [13]; State of New South Wales v King [2022] NSWSC 918 at [6].

28. It is conceivable that a change of circumstances may occur that is such as to justify a reconsideration of the making of the IDO, although such circumstances are likely to be extremely rare.

29. As was explained in State of New South Wales v King it will not be enough to demonstrate on the balance of probabilities that there has been a change in circumstances; to show they have changed “sufficiently to render the order unnecessary” assumes the standard of proof in ss 5B and 5: King at [67].

30. In the present case, nothing is demonstrated as having changed since Button  J ordered the IDO. It is not appropriate, as Dr Lucy submitted, for me to review the reasons Button J gave for making the IDO. That is the task of the Court of Appeal.

31. In those circumstances, the IDO should be renewed for a further period of 28 days.

26. Accordingly, I make the following orders:

1. Pursuant to ss 18C(1) and (2) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act"), the interim detention order imposed by Justice Button on 28 June 2022 is renewed for a period of 28 days commencing from midnight on 2 August 2022 and expiring on 30 August 2022.

2. Pursuant to s 20(1) of the Act, the Court orders the issue of a warrant for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in order (1).

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Decision last updated: 02 August 2022