State of New South Wales v Russell (Preliminary)

[2021] NSWSC 361

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

29 March and 06 April 2021

Date of orders:

09 April 2021

Decision date:

09 April 2021

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

I make the following orders:

(1) An order pursuant to s15(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

(a) Appointing two qualified psychiatrists or a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and/or psychological examinations of the defendant, as the case may be, and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court; and

(b) Directing the defendant to attend those examinations.

(2) An order pursuant to sections 18A and 18C(1)(a) of the Act that the defendant be subject to an interim detention order for a period of 28 days from midnight on 14 April 2021 (“the interim detention order”).

(3) An order pursuant to section 20(1) of the Act that a warrant be issued for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in paragraph 2 above.

(4) An order that access to the Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them to be heard in relation to the application for access.

Catchwords:

HIGH RISK OFFENDERS – Preliminary hearing - Serious sex offender – Interim detention order – Assessment of risk

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

Jones v State of New South Wales [2020] NSWCA 202

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

State of New South Wales v Holschier (No 2) [2018] NSWSC 1921

State of New South Wales v Monteiro (aka Lowe) (No 3) (Preliminary) [2020] NSWSC 350

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

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

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

State of New South Wales v Simcock (Final) [2016] NSWSC 1805

State of New South Wales v Sturgeon [2019] NSWSC 559

State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
D New (Plaintiff)
S Orman-Hales (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Voros Lawyers (Defendant)

File Number(s):

2021/57800

Publication restriction:

None

Judgment

1. By way of a summons filed on 1 March 2021, the State of New South Wales (“State”) brings proceedings against the defendant, Brett Russell, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. The State seeks preliminary orders, interim orders and final relief in the nature of a continuing detention order (“CDO”) and an extended supervision order (“ESO”).

3. This is the judgment in respect of the preliminary hearing.

4. The issue I am determining is whether I should make the orders for interim relief appointing two qualified psychiatrists and/or psychologists to conduct examinations and provide reports and an order directing the defendant to attend those examinations.

5. I am also considering whether the defendant should be subject to an interim detention order for a period of 28 days from midnight on 14 April 2021 (“the interim detention order”).

6. The defendant has already been subject to two CDOs. His current CDO expires on 14 April 2021.

7. The defendant was initially subject to a 12 month CDO pursuant to orders made by Button J commencing on 12 December 2018[1] . Further orders were made by N Adams J in respect of a 12 month CDO commencing on 15 April 2020[2] .

   1. State of New South Wales v Russell [2018] NSWSC 1880.

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

8. During the period of the first CDO, the defendant was sentenced to a further period of imprisonment of 9 months for assaulting an inmate. In the circumstances, the IDO commenced at the expiration of that sentence and was renewed until the CDO commenced on 16 April 2020.

9. If I do not make the interim orders sought, the defendant will be released into the community on 14 April 2021.

Legislative scheme

10. The primary object of the Act is protective rather than punitive. It provides for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community: s 3(1) of the Act.

11. As set out in s 5C of the Act, the Court may make an order for the continued detention of a person if:

5C Making of continuing detention orders – unacceptable risk

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a detained offender or supervised offender (within the meaning of section 13B), and

(c) an application for the order is made in accordance with section 13B, and

(d) the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.

12. Section 15 deals with pre-trial procedures, that is, the procedure at this stage of the proceedings. Section 15(4) is in the following terms:

15 Pre-trial procedures

(4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must make orders:

(a) appointing:

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 1 qualified psychiatrist and 1 registered psychologist, or

(iv) 2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and

(b) directing the offender to attend those examinations.

13. As set out in s 15(5), if, following the preliminary hearing, the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or ESO, the Court must dismiss the application.

14. Sections 15(4) and (5) impose mandatory obligations on the Court. That is, if the Court is satisfied of the matters referred to in s 15(4), it must make the orders appointing the experts and directing the defendant to attend the examinations. On the other hand, if the Court is not so satisfied, then it must dismiss the application[3] .

    3. State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776; State of New South Wales v Sturgeon [2019] NSWSC 559.

15. It is not necessary that the Court be satisfied at the preliminary stage that the matters alleged in the supporting documentation will be proved. The Court is only required to be satisfied that, if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely, a high degree of probability.

16. At this stage, the Court is not engaged in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties that appear in the documentation. Nor is it necessary for the Court to predict the ultimate result or assess the likelihood of the ultimate result[4] .

    4. Sturgeon at [6] (Garling J); Wilmot at [7] (Lonergan J); State of New South Wales v Monteiro (aka Lowe) (No 3) (Preliminary) [2020] NSWSC 350 at [17] (Cavanagh J).

17. In this matter, the pre-trial procedures set out in s 15 of the Act have been complied with. Further, the defendant concedes that:

1. he has been convicted of “serious sex offences” and “offences of a sexual nature”;

2. he has been convicted of a “serious violence offence”; and

3. he has been sentenced in respect of a further assault on an inmate on 21 March 2019.

18. In the circumstances, the matters set out in s 5C (and s 5B(a), (b) and (c)) of the Act are established. The issue in this matter is whether I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or ESO. If so, I must make the orders appointing the psychiatrists/psychologists.

19. Further, as set out in s 18A and s 18C of the Act, I may make an order for the interim detention of the defendant if it appears:

1. that the defendant’s current custody (if any) will expire before the proceedings are determined; and

2. that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or ESO.

20. Section 18A is satisfied in that the defendant’s current custody will expire before the proceedings are determined.

21. Whether a person poses an unacceptable risk involves an evaluative balancing exercise[5] .

    5. State of New South Wales v Holschier (No 2) [2018] NSWSC 1921 at [24] (Hoeben CJ at CL).

22. The risk that the Court must find to be unacceptable is the risk that the offender poses of committing a serious offence if not kept in detention (or under supervision)[6] .

    6. Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [51] (Beazley P).

23. The assessment of the risk involves a consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate[7] .

    7. State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J).

Background facts/Defendant’s criminal history

24. The defendant is a 58 year old Aboriginal male. Unfortunately, he has been in custody almost continuously since his first sentence of imprisonment at the age of 14. He was last in the community on parole in 2008.

25. On 5 April 2008, he sexually assaulted a 19 year old girl. He returned to custody on 7 April 2008 and has remained in custody since that time. He has remained in custody since that time in part because of the imposition of CDOs. He has long since served his sentence in respect of the offence he committed in 2008.

26. In July 2009, he was sentenced on two counts of sexual intercourse without consent and two counts of indecent assault. He was sentenced to a term of imprisonment of 9 years which was to conclude on 3 October 2018 with a non-parole period of 7 years.

27. The defendant has a long criminal history as must be apparent from the length of time that he has spent in custody. It involves many offences of violence going back to 1974. As observed by the sentencing judge (Woods QC DCJ) on 2 July 2009, the defendant had a long and tragic history of criminality flowing from deprived family circumstances and exposure to violence.

28. This history has been the subject of consideration and comment in the two earlier decisions leading to the imposition of CDOs.

29. Prior to 2008, the defendant had a long history of violent offending and the offence in 2008 constituted a serious instance of offending of a sexual nature as has been conceded by the defendant.

30. As he is institutionalised and has been in custody for such a long period, I am really considering the question of risk at this preliminary stage, in the context of a person who will or could be released into the community after such a long period in custody.

Latest expert reports

31. It is not necessary that I refer in this judgment to all the material which was relied on and referred to in the earlier judgments imposing the earlier CDOs. I have had regard to it. I will focus on the latest material in this judgment.

32. The plaintiff relies on risk assessment reports from Samuel Ardasinski, a forensic psychologist. Mr Ardasinski has reviewed the defendant on a number of occasions. He prepared reports dated 16 March 2018 and 2 July 2019 which were relied on in respect of the State’s earlier application. He has prepared a second supplementary risk assessment report dated 3 December 2020 for the purposes of this application.

33. As Mr Ardasinski notes, the defendant commenced high intensity custody-based treatment for sexual offending in May 2018. However, there have been a number of suspensions due to poor behaviour, including violence. He was discharged from the program in March 2019 as he committed common assault against another participant but, since being re-admitted, he has completed a 20 session general offending program. He has also undertaken an anger and aggression management program.

34. Mr Ardasinski notes that the defendant remains significantly institutionalised. He would require a gradual release from custody so as to give him the best possible chance of success in the community. He observes that when he was assessed in 2019, little had changed in the defendant’s situation. At the time, the defendant was found to pose so grave a risk to the community’s safety as to warrant preventative detention on two consecutive CDOs.

35. By December 2020, he had participated in some group intervention but had not returned to high intensity treatment. Mr Ardasinski considers that the defendant remains untreated and he continues to assess the defendant as posing a high risk of violent and sexual offending. Mr Ardasinski considers that the defendant has struggled to sustain meaningful relationships with women. He has a current long-distance relationship which appears to be stable.

36. In her judgment of 11 September 2018, McCallum J (as her Honour then was) observed that the defendant appears to be hostile to women and poses a significant risk to their safety[8] .

    8. State of New South Wales v Russell (Preliminary) [2018] NSWSC 1396 at [15].

37. The State submits that, despite undertaking some programs and showing some improvement, the defendant’s hostility to women remains. This is exemplified by the reference in the case notes on 19 February 2021 to the defendant not wishing to talk to a female.

38. Mr Ardasinski opines that the defendant remains in the high risk category relative to other men who have offended sexually. He also poses a high risk of committing further violent offences in the future and falls into the highest risk category for possible future domestic violence as well.

39. Despite that, and as submitted on his behalf, he has made some progress and is showing some improvement. Mr Ardasinski considers it possible that the defendant is determined to live an offence-free life and is generally seeking out support and assistance to enable this. However, he should complete the program to address his sexual offending. He should also complete the HISOP program. He suggested a short CDO of 6 to 9 months duration may be all that is warranted to ensure that he has completed his treatment and consolidated any treatment gains.

40. Attached to the latest affidavit of Jessica Leigh Murty affirmed 31 March 2021 is a report from a Chief Psychologist within the NSW Department of Communities and Justice, Nicole Ahern, dated 29 March 2021 regarding his progress undertaking HISOP. HISOP is the High Intensity Sex Offender Program. It is a prison-based residential therapy program for men who have sexually abused adults and children. According to the Compendium of Offender Behaviour Change Programs helpfully provided by the State, it is held within designated therapeutic communities designed to help participants work intensively on changing their thinking, attitudes and feelings that led to their offending behaviour. It is offence-focussed, addressing core sex offender treatment targets. It lasts for approximately 10 months or 6 months when combined with dosage from general criminogenic programs.

41. It seems the defendant returned and commenced HISOP on 21 January 2021 but was again suspended on 16 February 2021. He then returned on 23 March 2021. There was a delay in recommencing treatment due to the need to move into another treatment group.

42. He will commence a further program being the RUSH program in mid-April. The RUSH program (being the Real Understanding of Self-Help program) is a skills-based group treatment program intended to address anti-social attitudes, beliefs, poor self-control, impulsivity and difficulties with self-management. It uses cognitive, behavioural and acceptance-based intervention techniques.

43. According to Ms Ahern, the defendant is currently working on his treatment goals. He is completing the early core tasks and he would need at least 6 months to complete these tasks. She considers that perhaps over the next 6 to 8 months, subject to completing these programs, he might be able to demonstrate his ability to self-regulate in an adaptive way.

44. Put simply, the defendant remains a person who poses a high risk of reoffending, both sexually and in a violent way.

45. The State points out that during the period prior to 2019 the defendant had 48 institutional misconduct charges but during 2019 and 2020 he had only two recorded incidents of violence. That tends to indicate a significant improvement, perhaps reflective of his greater participation in the programs available to him.

46. However, although he appears to have difficulties remaining in and completing the programs, he is showing greater effort and more insight than he has in the past. It may be a reflection of his desire to be released and live in the community with appropriate support.

Other evidence

47. Having said that, there are some matters of significance in terms of his conduct whilst in custody, even in recent times.

48. The OIMS notes tend to show that he continues to lack self-control when exposed to slights. He responded violently to a purported sexual interest in him.

49. On 11 July 2020 he struck another inmate in the face with a sandwich press and punched him with closed fists. He claimed that the inmate had put something in his coffee. During the incident he was quoted as saying “What’s the punishment? I’m not saying nothing! I should have killed the mother fucker!”

50. Then there was an allegation referred to in a COPS event dated 16 July 2020. It is alleged that he raped and physically assaulted his cellmate on 8, 9 and 10 July 2020. When the cellmate called for assistance on 10 July 2020, he was punched and kicked.

51. No charges have been laid against the defendant in respect of these allegations.

52. The State submits that I should take account of this, although give it less weight than it might otherwise have been given if the event had been verified. I adopt that approach, although bearing in mind that at the preliminary stage I am only considering whether the matters alleged in the supporting documentation would, if proved, would justify the making of a CDO or ESO. I have had regard to all of the material in the OIMS notes.

53. The position, at this stage, being the preliminary stage of the latest CDO application may be summarised as follows:

1. the defendant has shown some real improvement in his attitude to and participation in programs available to him since the imposition of a CDO in April 2020;

2. there is expert opinion to the effect that, if he continues to engage in and complete the programs over the next 6 months or so, it may be that the risks associated with his release into the community would be reduced;

3. although he has shown improvement and indeed a real desire to be released into the community, there have been instances of violence in the past 12 months, including to his cellmate, another inmate and during his participation in the programs;

4. in his latest risk assessment, Mr Ardasinski continues to opine that the defendant poses a high risk of reoffending. Many of the risk factors which Mr Ardasinski identified in his earlier reports remain; and

5. there is some evidence of a continuing hostility towards women, such as the refusal to speak to a staff member because she was a woman.

Conclusion

54. Ms Orman-Hales on behalf of the defendant emphasises that he has shown improvement and that his improvement should be recognised. She further emphasises that prison is a tough place and some regard should be had to that when assessing the risk posed by the defendant. I took her to mean that I should not place too much weight on instances of violence whilst in custody, as a person such as the defendant is institutionalised and is forced to confront violence within the prison system.

54. I accept that prisoners are sometimes faced with difficult and challenging situations but the instances of violence to which I have referred do not instil confidence in the defendant’s ability to self-regulate, control his impulses and reduce his risk of violent and sexual reoffending. His response to his perception that someone had put something in his drink was to put a sandwich maker to the head of another inmate.

55. As discussed with the parties, there may come a time when the observations made by McCallum JA in Jones v State of NSW [9] , become particularly pertinent to this defendant. That is, the discretionary power (to impose a CDO) should be exercised having regard to the importance of the right to personal liberty to the extent possible consistent with the purpose and the express provisions of the Act. Her Honour noted there would be a point that, beyond which, the Act can intrude no further upon the right to liberty.

    9. [2020] NSWCA 202 at [39].

56. On behalf of the State, Ms New observed that the final orders sought were perhaps reflective of that, in the sense that the State seeks a CDO of 12 months followed by an ESO of 5 years.

57. Having said that, my task at this preliminary stage is to consider whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or CDO.

58. I am so satisfied.

59. In those circumstances, I must make an order appointing the psychiatrists or psychologists to conduct examinations and to furnish reports to the Court. Although I still have a discretion as to whether to make an interim detention order or not.

60. I am satisfied that such an order should be made.

61. Having regard to the matters alleged in the supporting documentation, the defendant poses an unacceptable risk of committing a further serious offence if not kept in detention. Despite some improvement in the defendant’s attitude and his response to treatment, Mr Ardasinski continues to point to a high risk of reoffending. His behaviour in custody during the last 12 months is not unblemished. There are signs that continued participation in the appropriate programs will significantly reduce the risk of reoffending, but he has shown himself unable to control his responses when provoked or to perhaps control his tendency towards sexual violence.

62. When this matter first came before me on 29 March 2021 the defendant was unrepresented as Legal Aid had not yet been granted. Mr Greville appeared amicus curae. I adjourned the matter for further hearing until 6 April 2021. On that first day, the defendant himself asked the question (through the AVL) “Is there any chance of me getting released from prison any time soon?”

63. As I said to Ms Orman-Hales at the later hearing on 6 April 2021, the defendant may be best placed to assist in achieving this through continued improvement, behavioural change and participation in the programs which he is now undertaking and which have been recommended for him.

64. I thus make the following orders:

1. An order pursuant to section 15(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

1. Appointing two qualified psychiatrists or a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and/or psychological examinations of the defendant, as the case may be, and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court; and

2. Directing the defendant to attend those examinations.

2. An order pursuant to sections 18A and 18C(1)(a) of the Act that the defendant be subject to an interim detention order for a period of 28 days from midnight on 14 April 2021 (“the interim detention order”).

3. An order pursuant to section 20(1) of the Act that a warrant be issued for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in paragraph 2 above.

4. An order that access to the Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

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Endnotes

Decision last updated: 09 April 2021