State of New South Wales v Russell

[2018] NSWSC 1880

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v Russell [2018] NSWSC 1880
Hearing dates:	23 November 2018
Decision date:	07 December 2018
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) Pursuant to ss 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to a continuing detention order for a period of twelve months from 12 December 2018 and expiring on 11 December 2019. (2) The Court is to issue a warrant for the committal of the defendant to a correctional centre for the period specified in order 1.
Catchwords:	HIGH RISK OFFENDER – serious sex offender – application for continuing detention order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – ancillary order sought for extended supervision order – assessment of risk – community safety paramount concern – continuing detention order imposed
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW), ss 5C, 17
Cases Cited:	State of New South Wales v Russell (Preliminary) [2018] NSWSC 1396
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Brett Thomas Russell (Defendant)
Representation:	Counsel: D New (Plaintiff) S Orman-Hales (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Voros Lawyers (Defendant)
File Number(s):	2018/207619
Publication restriction:	Nil

Judgment

Background

1. Mr Brett Thomas Russell (the defendant) was born in November 1962, and accordingly is 56 years of age. An Aboriginal man, he grew up in La Perouse in the south-eastern suburbs of Sydney in difficult and deprived circumstances. Among the most adverse of those were that both of his parents were alcoholics, and that he was subject to physical abuse as a child.

2. The most noteworthy aspect of his life since then is that he was first detained pursuant to orders of the Children’s Court in September 1974 (before his twelfth birthday), and was first imprisoned in May 1981, before he had turned 20. Since that time, as a result of committing many offences of sexual violence and physical violence, he has spent a large proportion of his life in prison, and is institutionalised.

3. I shall expand on those sad statements by proceeding to summarise his interactions with the criminal justice system. In doing so, I shall not refer to offences of dishonesty or to do with driving, because I regard them as virtually irrelevant to the proceedings before me. I shall also not recount allegations that were not proceeded with by the prosecuting authorities, or that led to verdicts of not guilty, either from a judicial officer or a jury. That is because, although I do not regard such matters as entirely irrelevant to proceedings such as these, I give them minimal weight.

4. Forty years ago, the defendant was placed on probation by the Children’s Court in October 1978 for assault occasioning actual bodily harm.

5. In 1982, he was fined for, amongst other things, common assault, and discharging a firearm in a public place.

6. In December 1983, he was sentenced by the District Court to a head sentence of penal servitude for six years with a non-parole period of two years for an offence of robbery.

7. In 1985, in the Local Court at Goulburn, he was sentenced to two months’ hard labour for an offence of common assault. Subsequently, he received a short cumulative sentence for an offence of escape.

8. In May 1990, the defendant was sentenced to imprisonment for twelve months for counts of assault occasioning actual bodily harm and common assault, and imprisonment for two years for one count of malicious wounding.

9. In summary, the defendant had, without provocation, punched a 17-year-old girl in the face a number of times, dragged her by her hair, threw her to the ground and took her handbag. He threatened to kill the victim if she told anyone about what he had done.

10. A few weeks after that incident, the defendant was seen to strike his then-girlfriend, stab a man who intervened, and assault another two men who also intervened.

11. In June 1990, he was sentenced by Judge Madgwick QC in the District Court for a number of offences, including maliciously inflicting grievous bodily harm and sexual intercourse without consent. He received a total head sentence of imprisonment for four years, with a total non-parole period of two years.

12. In a nutshell, the grievous bodily harm was inflicted upon a male victim by the defendant when the victim refused to let the defendant drive, on the ground that he was obviously drunk. The defendant elbowed the victim to the face, and kicked the victim a number of times to the head. After witnessing this assault, the female victim called out to the defendant to stop, the defendant reacted angrily, and punched the victim to the back of her head. He then took her to a toilet block, where he raped her several times.

13. In his remarks on sentence, Judge Madgwick emphasised: the defendant’s pleas of guilty; his “severe disturbances in his childhood”; his prior criminal record; his abuse of alcohol and illicit drugs; his motivation towards rehabilitation; and the finding that “the matter cannot overall be treated as one at the top of the range of seriousness”.

14. In November 1990, the defendant, whilst in custody, assaulted another inmate by punching and kicking the victim’s face and upper body. The victim lost consciousness as a result. The defendant was sentenced to imprisonment for 16 months for two counts of assault occasioning actual bodily harm, and imprisonment for 3 months for a further count of assault occasioning actual bodily harm.

15. In 1996, the defendant was sentenced to imprisonment for four months after he assaulted an inmate in custody. The defendant had repeatedly punched the victim to the face.

16. In December 2001, he was placed on a suspended sentence by the Local Court for three counts of aggravated indecent assault. The victim was 13 years old when the defendant touched her breasts, put his hand on her vagina, and kissed her mouth.

17. In March 2003, he was sentenced to imprisonment for four months for two counts of assault occasioning actual bodily harm. In a nutshell, the defendant violently assaulted his female and male roommates. He punched the male roommate to the jaw and back, and left the female roommate unconscious with injuries to her head.

18. In June 2004, he was sentenced to a head sentence of imprisonment for 18 months with a non-parole period of nine months for assault occasioning actual bodily harm. The defendant had assaulted his then-girlfriend, with the victim suffering a swollen eye, bruising to her mouth, and soreness to her ribs and abdomen. He also threatened to kill her.

19. In March 2008, the defendant, whilst on parole, punched his then-girlfriend a number of times, and said to her “I’ll kill you, you fucking cunt”. In April 2015 in the District Court, following a plea of guilty in late 2014 (I infer that for some reason the proceedings were in abeyance for an extended period), Judge Frearson SC sentenced the defendant for two counts of assault occasioning actual bodily harm and one count of assault to imprisonment for 18 months (which was completely concurrent with the total sentence for the “index offences”, described below).

20. In July 2009, the defendant was sentenced by Judge Woods QC for two counts of sexual intercourse without consent and two counts of indecent assault, after his conviction at the conclusion of a trial by jury. His Honour imposed a total head sentence of imprisonment for nine years, to commence on 4 October 2009 and conclude on 3 October 2018, with a non-parole period of seven years that concluded on 3 October 2016.

21. In a nutshell, the offences were committed in April 2008 against a young woman aged 19, when the defendant was aged 46. The victim lived next door to the defendant and was “a naïve and unworldly young person”. During a visit to a park at Watsons Bay, the defendant and the victim sat on some grass, and the defendant engaged in actions constituting indecent assault. The defendant then inserted his fingers in the victim’s vagina and licked her vagina without her consent. Later that same day at his residence, whilst the victim was alone in the defendant’s partner’s son’s room, the defendant offered the victim a drink, she asked him to leave, and he demanded that she look up some pornography on a computer for him, threatening that he would kill her if she did not comply. The defendant then put his fingers in the victim’s vagina without her consent.

22. Judge Woods, in his remarks on sentence, emphasised: the objective seriousness of the offending; the defendant’s “long and tragic history of criminality flowing from deprived family circumstances and exposure to violence”; his extensive criminal history; the lack of “any realistic hope of rehabilitation”; the defendant being “thoroughly institutionalised”; and the conclusion that “a significant factor in sentencing this man should be simple prevention”.

23. An appeal against sentence to the Court of Criminal Appeal was successful with regard to an aspect of the sentence structure, but had no practical effect on the total head sentence and total non-parole period.

24. In November 2017, the defendant was charged with committing assault occasioning actual bodily harm against a fellow inmate. CCTV footage showed the defendant deliberately emptying a cup of hot water onto the victim after they exchanged words. The victim suffered burns to his face. In September 2018, the defendant pleaded guilty, and was convicted with no penalty imposed.

25. The defendant was not released at the conclusion of the seven year non-parole period in early October 2016. Indeed, he was not released during the entirety of his parole period of two years. And, at the conclusion of the entirety of the head sentence of nine years in October this year, he was placed on an interim detention order (IDO) by McCallum J: see State of New South Wales v Russell (Preliminary) [2018] NSWSC 1396.

26. The result of the most recent orders made with regard to the defendant is that he has been in continuous custody since early April 2008, a period of ten and a half years.

27. Speaking more generally, since early 1985 (that is, well over three decades), by my analysis of his custodial history the defendant has never lived in the community for a continuous period of more than two years. That is because, the evidence demonstrates, his parole has been breached on every occasion upon which he has been subject to it. And it is noteworthy that the offences that led to the sentences imposed by Judge Woods were committed on 6 April 2008, a little over one month after the defendant was released to parole on 4 March 2008.

28. Turning now from courts and prisons to a discussion of the life of the defendant in broader terms, from an early age he experienced learning difficulties, and was described as “easily slighted”. In the past, some have ascribed that to paranoia, not just a quick temper.

29. He commenced to use alcohol at the age of 12, cannabis at the age of 14, and has subsequently been diagnosed with a substance use disorder with regard to alcohol and amphetamines.

30. He has had a number of long-term romantic relationships, but has never married. He has also fathered many children, however the exact number is not entirely clear on the evidence.

31. He has been diagnosed as suffering from mental conditions in the form of anxiety, anti-social personality disorder, and the problem with substances to which I have referred.

32. To complete this brief conspectus, the defendant enrolled in May of this year in the well-known therapeutic program in custody for sex offenders known as CUBIT. Regrettably, he has found the therapeutic process extremely challenging, and has discharged himself from it, and been suspended from it, more than once. A more positive development is that, reasonably recently, the defendant was able to complete a course about avoiding abuse of prohibited drugs and alcohol.

Application

33. It is in that context that, at a final hearing before me, the State of New South Wales (the plaintiff) primarily sought a Continuing Detention Order (CDO) of a duration of one year, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). In the alternative, the plaintiff sought an Extended Supervision Order (ESO) of four years’ duration.

Expert opinion

34. In accordance with the orders of McCallum J, reports were prepared by Dr Richard Furst, forensic psychiatrist, and Mr Tim Watson-Munro, forensic psychologist. Placed before her Honour had been a risk assessment prepared by psychologist, Mr Samuel Ardasinski. In the event, only Dr Furst and Mr Ardasinski were called to give oral evidence before me and cross-examined.

35. The combined force of the written and oral evidence of the experts may be summarised as follows. On the one hand, one can appreciate the criminogenic upbringing of the defendant, and the fact that he has recently sought to take a number of positive steps in custody. Furthermore, undertaking group therapy in custody has its inevitable difficulties. One might also expect, as a general proposition, a reduction in offending as a person gets older, including with regard to sexual offending.

36. On the other hand, the defendant must be assessed as being at a high risk of re-offending in a serious way, and the outlook as a whole must be pessimistic. Furthermore, there is a real question about whether or not the defendant could comply with the conditions of any conditional liberty, no matter how rigorous. Finally, it is one thing to talk about general propositions about reductions in offending as people age; it is quite another to draw inferences from such propositions and apply them to a particular individual.

Submissions of counsel

37. The position of the plaintiff as explained by its counsel may be summarised as follows.

38. It was submitted that s 5C of the Act provides the central test, and the task of the Court is evaluative and instinctive. That task is informed by the nature of the risks posed by the defendant, and the behaviours associated with such risks. If the test for the imposition of an order of some kind is established, the next step is assessing the adequacy of supervision to manage the risk, in order to determine whether a CDO or ESO is appropriate.

39. In this case, it was submitted that the defendant’s risk and associated severity of behaviours exhibited by him fulfil the criterion within s 5C(d). Counsel for the plaintiff emphasised the speed with which, every time the defendant has been on parole, he has breached parole by committing further offences. Further, his history of offending reveals a pattern of a behaviour of concern, putting the community at risk. Such risks were said to “compromise the safety of the community to such a degree that detention is the appropriate measure for 12 months”. The fall-back position was, as I have said, that the Court should impose a very rigorous ESO.

40. Further, it was submitted that the Court should consider that, whilst the defendant wishes to change, the defendant has not yet achieved it, which is relevant to the evaluation of the defendant’s risk.

41. It was also accepted that facilitation of rehabilitation is not a determining factor with regard to whether to impose a CDO or ESO; however, it is a factor to be broadly considered under s 17(4)(e1) of the Act. As such, it was submitted that the ability of the defendant to complete CUBIT whilst in custody is a consideration in favour of the imposition of a CDO.

42. In response, counsel for the defendant emphasised the following points.

43. I understood it to be accepted that all of the “mechanistic” preconditions to the making of an order pursuant to the Act had been established. It was also accepted that the crucial test for imposing an ESO had been established, and that one could be made of the duration proposed by the plaintiff. But further incarceration was firmly resisted.

44. It was submitted that the defendant seeks to be released to the community under an ESO to “get some tools to assist him to actually be able to stay in the community a bit longer this time”. The degree of supervision proposed and the ability to receive intensive psychological intervention “may well assist him”.

45. However, if the Court had a desire for the defendant to complete the CUBIT program in custody, it was submitted that a CDO shorter than one year should be imposed, to encourage the defendant to continue with his rehabilitation.

46. Counsel for the defendant also emphasised the recently-demonstrated ability of the defendant to engage in and complete challenging courses, including his progress with CUBIT, bearing in mind his very adverse background and upbringing.

Determination

Order pursuant to the Act?

47. Turning to my determination of this matter, and quite apart from the unanimous opinion of the experts, as a matter of common sense exercised by a layperson sitting as the tribunal of fact, I readily accept the proposition that the defendant is at high risk of seriously re-offending, either sexually, or with separate violence, or both. I say that simply because he has been committing offences of violence since the 1970s; he has committed such offences both in the community and in custody; he has failed whenever he has been on conditional liberty; the index offences were committed a few days past one month after he was last released to parole; he is institutionalised and will find re-adjustment to living in the community extremely difficult; and he has received very little therapy over the many years that he has spent in custody.

48. Sadly, I think that the failure of the defendant by way of serious offending as defined in the Act if simply released – without any conditions on his liberty – cannot be predicted merely to a high degree of probability; I think that it can be assessed as being a virtual certainty.

49. I am satisfied, therefore, that the precondition for the making of one or other of the orders sought has been established. To express my view in terms of the statute, in accordance with s 5C(d) of the Act, I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not at least kept under supervision pursuant to an order.

CDO or ESO?

50. The real question that has exercised my mind is whether a short CDO should be imposed, or in the alternative a lengthy ESO, in accordance with the question posed by s 17(1), as informed by s 17(2) and the factors in s 17(4) and s 17(5) of the Act.

51. If the defendant were released on an ESO, the proposal is that he would live at a Community Offender Support Program Centre (COSP) in the south-western suburbs of Sydney. He would receive psychological therapy in the community at the direction of his Departmental Supervising Officer. He would also be subject to very rigorous conditions, including electronic monitoring, abiding by a curfew, travel and place restrictions, conditions relating to drug and alcohol use, non-association, and search and seizure.

Statutory factors

52. Turning now to consideration of the central question through the prism of the factors to be found in s 17(4) of the Act, Dr Furst and Mr Watson-Munro opine that the defendant poses a high risk of re-offending by committing a serious sex or violence offence, even if subject to an ESO (s 17(4)(b),(c) or (d)). Both Dr Furst and Mr Watson-Munro diagnose the defendant with substance use disorder and anti-social personality disorder, which are linked to the defendant’s offending behaviours. A number of statistical assessments also place the defendant at high risk of re-offending violently and sexually.

53. Dr Furst notes that those offending behaviours are driven by “his intrinsic personality traits, attitudes that condone criminal behaviour and impulsive/opportunistic offending, especially when intoxicated and/or angry”.

54. Mr Watson-Munro opines that the defendant has “poor impulse control, poor insight, protracted and intense substance use, poor interpersonal skills and an inability to recognising and understanding personal boundaries”. Those qualities have led to Mr Watson-Munro’s concern about the defendant’s “continuing obfuscation” in relation to the index offence. Mr Watson-Munro also states that “the issue of his poor impulse control and the understanding of boundaries needs to be comprehensively addressed and treated prior to any realistic consideration of his involvement with treatment in the community referable to an ESO”.

52. Mr Ardasinski also places the defendant in the high risk category. In the risk assessment report, Mr Ardasinski opines that that is due to a number of factors, including: his personality disorder; lack of remorse; hostility towards women; his institutionalisation; chronic alcohol use; and poor response to supervision. Mr Ardasinski finds that the defendant “is relatively criminally versatile”, and that the risk remains “chronic”.

53. Furthermore, many experts over the years have expressed the view that the defendant requires long-term treatment for his alcohol abuse and paranoid personality disorder (s 17(4)(c)).

54. In relation to the participation of the defendant in treatment or rehabilitation that might reduce the likelihood of re-offending (s 17(4)(e) and (e1)), as I have said, in May 2018 the defendant was accepted into CUBIT. Since that time, he has been suspended from the program as a result of his own behaviour, and has also sought to withdraw from it. Whilst some positive indications are recorded in the October 2018 CUBIT report, such as “significant improvements in his ability to manage his emotions by utilising emotion regulation skills more often”, it is said that there remains a need for the defendant to complete CUBIT, as he continues to have “ongoing difficulty adjusting to [a] therapeutic community; including abiding by the rules and guidelines…”

55. In 2016, the defendant also completed “EQUIPS addition” that runs for 20 sessions. However, his intention to abstain from alcohol and prohibited drugs has manifestly not yet been tested in the community.

56. Further, a risk management report prepared by CSNSW outlines the extent to which the defendant could be managed reasonably and practically in the community (s 17(4)(d1) and (e1)). The report notes that the defendant is in the high risk category of sexual and violent offending, and that high intensity supervision is needed. It also states that “whilst monitoring, schedules and curfews would assist in determining the whereabouts of [the defendant] and any adverse pattern in his movements, this strategy will neither prevent any high risk situations or offending behaviours…”

57. In addition, the defendant has demonstrated a history of very poor compliance with parole orders, as he has breached such conditions each time he has previously been on parole (s 17(4)(e2) and (f)).

58. He is not subject to any obligations under child protection legislation (s 17(4)(g)). Nor are the factors in s 17(4)(j) and (k) applicable.

59. In considering the question of whether to impose a CDO or an ESO, I have regarded community safety as paramount: s 17(2) of the Act. I have also disregarded the ability of the authorities to take breach action pursuant to any ESO: s 17(5) of the Act.

60. In summary of the above, I consider that the factors that the Act calls upon me to consider, to regard as paramount, and to disregard, argue strongly for the imposition of a CDO as opposed to an ESO, chiefly on the basis that the latter will be a failure.

ESO insufficient

64. And thinking about the matter more generally and in a less structured way, the constructive aspects of all of that is proposed by way of an ESO cannot be denied. I also accept that, as counsel for the defendant submitted, that form of conditional liberty would be far more rigorous (and onerous) than the forms to which the defendant has been subject in the past, including parole.

65. But again, I think as things stand, even with all of those conditions in place, one can foresee a very real risk of a deterioration in the defendant’s emotional state, and his failure in the community by way of serious re-offending.

66. I also think that, bearing in mind his tendency to commit offences of violence in custody, that it would be quite possible that he could offend in that way against a fellow resident of the COSP.

67. Finally, it is important that, albeit many years ago now, the most recent failure occurred within 40 days, and constituted extremely grave offending against a vulnerable young victim.

68. In short, I am affirmatively satisfied that even a lengthy and rigorous ESO would not sufficiently protect community safety. It follows that, having determined to impose an order pursuant to the Act, it falls to me to impose a CDO, in accordance with s 17 of the Act. I respectfully agree with counsel for the plaintiff that it should not extend beyond one year, bearing in mind the possibility that substantial progress could be made by the defendant in custody during that period. I cannot accept that it should be shorter.

A disregarded event

69. Finally, I indicate for completeness that, halfway through the hearing at which he was present by audio-visual link (AVL), the defendant used a modicum of bad language towards me, angrily departed from the AVL room, and thereafter refused to speak to his lawyers. In a separate ex tempore judgment, I explained why I considered it appropriate to conclude the hearing in his absence.

70. At first, I queried whether that conduct by the defendant had some probative value with regard to how he might respond to stressful or adverse circumstances in the community. After reflection, however, I have accepted the joint submission of the parties that his behaviour was merely the result of the natural exasperation of a man who feared that his incarceration might continue indefinitely; accordingly, that episode plays no part in my determination.

Conclusion

71. In short, I am satisfied that an order pursuant to the Act should be imposed; that an ESO would not sufficiently protect the community; that a CDO should be imposed; and that it should not be shorter than one year.

Orders

72. I make the following orders:

1. Pursuant to ss 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to a continuing detention order for a period of twelve months from 12 December 2018 and expiring on 11 December 2019.

2. The Court is to issue a warrant for the committal of the defendant to a correctional centre for the period specified in order 1.

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Amendments

10 December 2018 - In the catchwords on the cover sheet the word "supervision" was amended to "detention".

Decision last updated: 10 December 2018