State of New South Wales v Scerri

[2011] NSWSC 683

Supreme Court

New South Wales

Medium Neutral Citation:

STATE of NEW SOUTH WALES v SCERRI [2011] NSWSC 683

Hearing dates:

1 July 2011

Decision date:

07 July 2011

Jurisdiction:

Common Law

Before:

HOEBEN J

Decision:

(1) Order pursuant to s7(4) of the Crimes (Serious Sex Offenders) Act 2006 that:

(a) Dr Jeremy O'Dea and Dr Anthony Samuels be appointed to conduct separate psychiatric examinations of the defendant and that reports be furnished to the Supreme Court on the results of those examinations on or before 8 August 2011.

(b) Direct the defendant to attend those examinations.

Catchwords:

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offence - preliminary hearing - orders sought for examination by psychiatrists - defendant on parole - objects of Act - despite consent of defendant, need for Court to be satisfied under s7(4) of the Act.

Legislation Cited:

Crimes Act 1900
Crimes (Serious Sex Offenders) Act 2006

Cases Cited:

Attorney-General for the State of New South Wales v Hayter [2007] NSWSC 983
Attorney-General for the State of NSW v Tillman [2007] NSWCA 119
State of New South Wales v Bastian [2011] NSWSC 641 at [72] - [73]
State of NSW v Brookes [2008] NSWSC 150 at [13]
State of New South Wales v Richardson (No 2) [2011] NSWSC 276 at [20]

Category:

Principal judgment

Parties:

STATE of NSW - Plaintiff
Mark Anthony Scerri - Defendant

Representation:

Counsel:
Mr PD Kell - Plaintiff
Mr DP Griffin - Defendant
Solicitors:
V Knight, Crown Solicitor - Plaintiff
Legal Aid Commission of NSW - Defendant

File Number(s):

2011/00184919

Judgment

1. HIS HONOUR:

Nature of proceedings

By summons filed 6 June 2011 the plaintiff, the State of New South Wales (NSW) seeks orders under the Crimes (Serious Sex Offenders) Act 2006 (the Act) with respect to the defendant, Mark Anthony Scerri. The defendant is presently serving a sentence of imprisonment for 8 years, having been convicted in 2003 of the offence of sexual intercourse without consent, contrary to s61I of the Crimes Act 1900. The defendant was released on parole on 10 February 2011. The defendant's sentence and his parole order will expire on 11 September 2011.

1. The summons, as final relief, seeks the making of an extended supervision order under s9(1) of the Act. A preliminary hearing proceeded on 1 July 2011 under s7(3) of the Act. NSW seeks an order under s7(4) appointing psychiatrists to examine the defendant and requiring his attendance for that purpose. NSW does not seek an interim supervision order under s8 at this time. It is apparent that the defendant is presently subject to conditional liberty on a range of conditions as part of his parole.

1. In view of the material served by NSW for the purpose of the application, counsel for the defendant concedes, for the purpose of the preliminary hearing and on the basis of supporting documentation now before the Court, that the Court is likely to be satisfied of the threshold test that the matters alleged in the supporting documentation would, if proved, justify the making of a supervision order for the purpose of s7(4) of the Act. However, counsel makes no concession concerning the position of the defendant at a final hearing, particularly in relation to s9(2) of the Act. On the basis of this concession, the defendant does not oppose the Court making orders appointing two qualified psychiatrists to examine the defendant. The defendant, subject to his current supervision conditions, will comply with any direction to attend examinations.

1. Given the terms of s7(4) and (5) of the Act, however, it remains a matter for the Court to determine whether the statutory criteria have been satisfied. In this respect, I agree with the approach of Price J in Attorney-General for the State of New South Wales v Hayter [2007] NSWSC 983 at [4]. That process, however, is facilitated by the fact that there is no controversy between the parties to be resolved in this respect; rather, it remains for the Court to consider the supporting documentation tendered on the application and then apply the test under s7(4) of the Act.

Evidence on application

1. NSW has read affidavits and tendered other documents in support of the application. The affidavits read are those of Narci Sutton, affirmed 17 June 2011, together with "NS1" to that affidavit, two affidavits of Ian Fraser, affirmed 9 June 2011 and 17 June 2011, together with three folders of documents which are exhibit "IF1" to the second affidavit of Mr Fraser. The defendant did not object to the tender of that material in the application under s7(4).

Statutory test

1. The objects of the Act are set out in s3 which states, in summary, that the primary object of the Act is to provide for extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. The further object of the Act is to encourage serious sex offenders to undertake rehabilitation.

1. On the present application by way of preliminary hearing, the Court must consider whether, for the purposes of s7(4), it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order with respect to the defendant. If so, the Court must make orders appointing psychiatrists or psychologists to undertake examinations. If, following the preliminary hearing, the Court was not satisfied in accordance with s7(4), the Court must dismiss the application: s7(5). Thus it falls to the Court to apply that test in the circumstances of this case.

1. In Attorney-General for the State of NSW v Tillman [2007] NSWCA 119 at [98], the Court of Appeal emphasised that the task of the Court, at the preliminary hearing stage, was not to weigh up the documentation, or to predict the ultimate result or to consider what evidence the defendant might call at the final hearing. It has been said that the test to be applied at this stage is similar to the prima facie case test applied by Magistrates as part of committal proceedings: Attorney-General for the State of NSW v Hayter at [6]; State of NSW v Brookes [2008] NSWSC 150 at [13].

1. One purpose of the preliminary hearing procedure is to allow the Court to filter out unmeritorious applications at an early stage. Another purpose is to give the Court the benefit of the expert opinions of two independent witnesses before making a final decision.

1. Section 9(2) provides that an extended supervision order may be made if, and only if, the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. The application for final relief requires consideration of the factors contained in s9 of the Act. It is necessary, for the limited purposes presently required, to refer to s9 factors and their application to this defendant.

1. Section 9(2) in its present form is of recent origin. It was inserted into the Act with effect from 7 December 2010, replacing a formulation which used the words: "Is likely to commit a further sex offence".

1. Given that at this stage in the proceedings the Court is applying a test similar to the prima facie case test applied by Magistrates in committal proceedings, I am content to rely upon the interpretation of "unacceptable risk" set out by Davies J in State of New South Wales v Richardson (No 2) [2011] NSWSC 276 at [20] where his Honour said:

"[30] ...

[20] Whilst bearing in mind the second of those two objects, I would regard the test in s 9(2) as being satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made."

I note that I applied that test in making a final order in State of New South Wales v Bastian [2011] NSWSC 641 at [72] - [73].

Statutory criteria

1. There are certain threshhold criteria which the plaintiff must satisfy. I am satisfied that the defendant falls within the definition of "sex offender" and that he is serving a relevant sentence for a "serious sex offence". I note, in this respect, the extended definition in s6(1)(a) which provides that the term "current custody or supervision" in the Act includes a person who is on release on parole whilst serving a sentence of imprisonment. The defendant is presently on parole as part of the sentence of imprisonment passed upon him on 12 September 2003.

1. The defendant has been on parole since 10 February 2011. The present application was commenced by NSW on 6 June 2011. NSW is prevented, by s6(2) of the Act, from making application under the Act until the last six months of the current custody or supervision of the relevant offender. Thus, although the present defendant has been at large in the community since 10 February 2011, albeit subject to a number of conditions, NSW was prevented from bringing this application until a date after 11 March 2011.

1. I am satisfied that the application is supported by documentation which meets the requirements of s6(3)(a) of the Act, in that the documentation addresses each of the matters referred to in s9(3). I am also satisfied that the documentation satisfies s6(3)(b) of the Act in that it includes reports from Dr Barbara Sinclair of 24 August 2010 and from Dr Jonathan Adams of 5 October 2010 (psychiatrists) and of Ms Narci Sutton of 21 March 2011 (psychologist) which assess the likelihood of the defendant committing a further serious sex offence.

Section 9(3) criteria

1. I now consider the factors referred to in s9(3) of the Act, for the limited purpose required on a preliminary hearing. I refer to a number of these factors out of their statutory order.

1. Section 9(3)(h) requires the Court to consider the defendant's criminal history, including prior convictions and findings of guilt, in respect of offences committed in New South Wales or elsewhere and any pattern of offending behaviour disclosed by that history. The Court has been assisted by helpful written submissions provided by counsel for NSW which summarise material contained in the supporting documents with respect not only to the defendant's criminal history, but to other features which arise for consideration under s9.

1. The defendant was born in 1964 and is now aged 46. He has convictions for eight serious sexual offences committed on four separate occasions in June and September 1989 and May 2002. The sexual offences were committed against four separate victims.

1. On 12 September 2003 the defendant was sentenced by Phelan DCJ in the Wollongong District Court for the offence of sexual intercoruse without consent, being an offence contrary to s61I of the Crimes Act . The defendant pleaded guilty. The victim (JS) was a 26 year old male. The defendant committed the offence in Wollongong on 12 May 2002. In sentencing the defendant, Judge Phelan took into account a charge on a Form 1 of assault occasioning actual bodily harm to the victim. The defendant committed the sexual offence less than six months after having been released on parole in respect of a sentence imposed by Justice James in 1993 for one of the seven sexual offences that the defendant committed in 1989.

1. Judge Phelan noted that the index sexual offence was carried out in circumstances "remarkably similar" to the sexual offences carried out against the three separate male victims in 1989.

1. In his Remarks on Sentence Judge Phelan described the factual circumstances of the offence. At about 5am on Sunday, 12 May 2002 the 26 year old victim left licensed premises in the Wollongong CBD with the intention of either catching a taxi or train to his home. While walking along a street, the victim was grabbed from behind by the offender who placed a stranglehold on him. Eventually the victim was forced to the ground in an isolated grassed area.

1. The offender undid the victim's jeans and pushed them down to his knees. While the victim was continuing to struggle and yell for help, the offender punched him to the face before sucking his penis. The victim managed to reach for the offender's eyes which he gouged with both of his hands. The offender reacted to this by pulling hard on the victim's penis. The offender eventually let go of the victim and stood up holding his eyes. The victim ran away from the offender and went to the Wollongong Police Station. He was in a distressed state with an amount of blood on his clothing. Ambulance personnel were summoned and attended to his facial injuries. Apart from being emotionally traumatised, the victim suffered a broken nose, two black eyes, abrasions and tenderness about his body, was coughing blood and had trouble swallowing as a result of the offender holding him by the throat.

1. Judge Phelan sentenced the defendant to imprisonment for 8 years, commencing 12 September 2003 and expiring 11 September 2011 with a non-parole period of 6 years, commencing 12 September 2003 and expiring 11 September 2009. In sentencing the defendant, Judge Phelan had regard to a pscychiatric report dated 3 September 2003 from profession Greenberg, who diagnosed the defendant as having a chronic and severe paraphilic disorder, namely a sexual sadism disorder.

1. On 19 February 1993 the defendant was sentenced by Justice James in the Supreme Court in respect of seven sexual offences committed against three separate victims on different occasions in 1989. The defendant had been found guilty of the offences, following a trial before a jury. Justice James imposed an effective total sentence of 16 years imprisonment comprising a minimum term of 12 years with an additional term of 4 years.

1. Six of the counts on the indictment and in respect of which the defendant was convicted, charged an offence under s61D of the Crimes Act of sexual intercourse without consent. Another count was inflicting actual bodily harm with intent to have sexual intercourse, contrary to s61C of the Crimes Act and the other count was inflicting grievous bodily harm with intent to have sexual intercourse, contrary to s61B of the Crimes Act . The defendant was 25 years old when he committed the 1989 offences. Each of the victims was a young adult male. In the hearing before James J, there was no issue that the offences had been committed, the only issue was the identification of the offender.

1. PSM, a 21 year old male, was one of the 1989 victims. On 11 June 1989 he was walking home in Wollongong. The defendant grabbed the victim from behind and committed two offences of sexual intercourse without consent. The sexual assaults comprised oral sexual intercourse and penile anal sexual intercourse. The sexual assaults were accompanied by threats by the defendant to kill the victim and members of his family.

1. The defendant grabbed PSM from behind and knocked him over a low boundary wall about a metre high running along the side of the street. The defendant then pushed PSM across part of a vacant property into a shed. Inside the shed, the defendant took PSM's pants down and made him lie on his stomach. The defendant rolled PSM onto his side and sucked his penis. The defendant then told PSM to turn towards the wall of the shed and having made threats to kill him and members of his family, had full anal sexual intercourse with him. The defendant told PSM to remain lying in the shed. Some hours passed before PSM reported the offence to the police, because he was terrified that the defendant might kill him or members of his family. It was common ground that PSM was physically very small and slender.

1. DWL, a 22 year old male, was another victim. On 25 June 1989 he was walking along the same street in Wollongong, having been out to a number of nightspots. The defendant tackled DWL from behind and hit him three or four times on the back of his head with a rock. The defendant pushed DWL in a westerly direction, past the shed in which he had assaulted PSM, and into a toilet block in a park. In a cubicle in the toilet block, the defendant told DWL to take his pants down and he then took DWL's penis in his mouth. The defendant then told DWL to get down on his knees and put his chest on the ground. The defendant then inserted his penis into DWL's anus and had anal sexual intercourse with him. DWL bled profusely while he was in the cubicle. When the defendant left, DWL was able to get a lift from a passing motorist who took him to hospital.

1. The third victim was a 29 year old male, AEC. On the night of 21 September 1989 AEC was one of a group of men celebrating the recent birth of a child. He had consumed a very large amount of alcohol and early in the morning of 22 September 1989 left a nightclub in Wollongong grossly intoxicated. The defendant and AEC left the nightclub together, but when they were next to a site on which a building had been demolished, the defendant punched him on the nose several times, breaking it. The defendant then hit AEC on the side and back of his head several times with a rock. The defendant removed AEC's pants and while he was on his hands and knees, he inserted his penis into AEC's anus and had anal sexual intercouse with him. He said to AEC "Shutup or I will keep bashing you". When the defendant left the area, AEC was disoriented and wandered about until he was able to get to the Wollongong Police Station a few hundred metres away. He was wearing a Tshirt which was covered in blood and he was naked from the waist down. He spent a week as a patient in the Wollongong Hospital and 40 stitches were inserted in wounds in his head.

1. On 28 June 1994 the NSW Court of Criminal Appeal dismissed an appeal by the defendant against the severity of the sentences imposed by James J.

1. As can be seen from the circumstances relating to all of the offences, a common scenario emerged. In that regard, Professor Greenberg in 2003 made the following observations in relation to the 1989 sexual offending:

"He (the defendant) states that the modus operandi with all three victims was the same. They were all between the ages of 20 and 40. He would follow the victim from the hotel and subdue the victim with threats of intimidation and physical assault. He would then pull down their pants and perform fellatio on them. If they hadn't obtained an erection, he would humiliate them further and physically abuse them. He states that his abuse would sexually arouse him and he would rape the victim by anal penetration with his erect penis. He admits to inducing suffering and humiliating the victim and subjecting them to physical assault which sexually aroused him. He states he would then remove their wallets and pretend that he had noted their address. He would threaten the victims that if they reported the incident he would "come and get them". He denies he stole any wallets from the victims."

1. Section 9(3)(h1) requires consideration of the views of the sentencing court in relation to the index offence. In his Remarks on Sentence, Judge Phelan referred to the remarkable similarity between the index sexual offence and the prior sexual offences for which the defendant convicted when sentenced in 1993. Judge Phelan also extensively referred to the report of Professor Greenberg and the diagnosis of paraphilia (sexual sadism) in respect of the defendant. He noted that the index offence was committed whilst the defendant was on parole, following his 1993 conviction. His Honour also noted the stated need for the defendant to again undertake the CUBIT program (Custody Based Intensive Treatment program).

1. In his Remarks on Sentence, Judge Phelan said:

"The matters which render this particular charge serious refer specifically to the earlier charges of almost identical kind. Add to that the fact ... that he has undergone substantial rehabilitation but despite the clear warnings, particularly those related to alcohol, in the end result he ignored them to his own cost and that of the innocent victim.

The offence was committed whilst on parole after he had spent a very long period in gaol."

1. Section 9(3)(f) relates to the defendant's compliance with obligations while subject to parole. In relation to the 1989 offences, as has already been indicated, the defendant was released on parole on 24 November 2001 and committed the index sexual offence on 12 May 2002. On 16 October 2002 he was arrested and charged with the index sexual offence. Following the receipt of a breach of parole report, on 31 October 2002 the Parole Board ordered that the defendant's parole be revoked with effect 12 May 2002 for breach of parole condition number 3, i.e. unable to adapt to normal community life.

1. When he committed the index sexual offence in May 2002 the defendant had been attending FPS Psychological Maintenance Sessions on a weekly basis since November 2001. The fact that, in such circumstances, he nonetheless committed the offence was described in the CUBIT treatment report of 21 October 2010 as "suggesting some difficulty being open with staff and working through any risk situations effectively".

1. On 10 February 2011 the defendant was released on parole and taken to reside at Nunyara COSP Centre. He is being case managed and supervised by the Community Compliance and Monitoring Group (CCMG). As part of his parole conditions, the defendant is subject to electronic monitoring and scheduling obligations.

1. Section 9(3)(e) requires consideration be given to any treatment or rehabilitation programs in which the defendant has had an opportunity to participate, his willingness to participate in such programs and the level of his participation in such programs. While incarcerated for the 1989 sexual offences, the defendant participated in the Sex Offender Psycho-Educational Group Program (SOPE) from 28 October 1999 to 23 December 1999 at the John Moroney Correctional Centre. The SOPE was described as an educational group which aims to assist offenders to overcome common misunderstandings about sexually abusive behaviour, to challenge their thinking errors and to motivate them to enter treatment.

1. The defendant received individual counselling sessions from Graham Rendell, psychologist, for approximately a year on a fortnightly basis at the John Moroney Correctional Centre prior to undertaking CUBIT for the first time. Mr Rendell described the defendant as having "made significant gains in addressing those issues contributing to his offending".

1. From 21 January 2001 until 2 November 2001 the defendant undertook the high intensity CUBIT program at the Long Bay Correctional Centre. The defendant's participation in CUBIT is detailed in the final treatment report dated 6 November 2001. The report spoke positively of the defendant's participation in the program. He completed the disclosure component of treatment "satisfactorily"; his progress in the victim empathy section of treatment was "pleasing" and his written work (apology letters) reflected a genuine empathy for his victims. In addition, he satisfactorily completed the offence cycle component; and during treatment he developed a relapse prevention plan based on his risk factors that he identified when he completed his offence cycle. However, he failed to complete the sexual self-regulation component of the treatment. It was recommended that the defendant participate in the maintenance program, whether in custody or in the community.

1. Having regard to both static and dynamic risk factors, the Final Treatment Report (FTR) recorded the defendant's overall risk of sexual recidivism as being "moderate".

1. Following his release from custody on parole in November 2001, the defendant attended the Community Management Program on a weekly basis until his arrest, missing only three sessions (on each occasion phoning with a reason for his non-attendance). Mr Rendell was again the defendant's therapist. In a report dated 6 November 2002 Mr Rendell referred to the defendant's participation in the maintenance program in generally positive terms.

1. While subsequently incarcerated for the index sexual offence, the defendant again undertook the CUBIT program at the Long Bay Correctional Centre. Prior to undertaking the program, the defendant participated in the Custodial Maintenance program at Kirkconnell Correctional Centre.

1. The defendant participated in the CUBIT program (second time) from 23 April 2009 to March 2010. In the Treatment Report, dated 21 April 2010, Ms Senior reported that, overall, the defendant's participation within treatment groups was positive in terms of the contributions he made to discussions and the completion of task related work. However, a number of challenges were noted and it was recommended that the defendant participate in the Community Based Maintenance program until parole was granted and thereafter continue in the Community Based Maintenance program. In this respect, continued psychological work required with the defendant was identified as including:

• Working on modifying the "all or nothing"/"black-white" thinking and continue to challenge unhelpful or distorted thinking, tied to his offence.
• Modifying behaviour suggesting he is trying to impress others by addressing self-esteem.
• Increasing his ability to show care and concern for others and building positive relationships.
• Developing a clearer understanding of his offence process (offence cycle) to assist in further understanding the risk factors related to his offending and how to intervene and modify these.
• Exploring the defendant's victimisation of sexual abuse with an experienced psychologist trained in victim treatment.
• Continue developing intimacy skills.
• Continue to strengthen professional and personal support.
• Continue to address difficulties with sexual self-regulation as they arise.

1. The Treatment Report highlighted concerns about the defendant's ability to comply with supervision requirements. The report also stated that:

"Mr Scerri has a tendency to behave in a compliant manner and can appear to be managing well even at times of extreme distress. This is easy to misinterpret. At such times, Mr Scerri appears able to detach from his emotional experience and suppress his needs and emotions. These needs then build up and are more explosively expressed at a later point."

1. Following his completion of the CUBIT program in March 2010, the defendant attended Custodial Maintenance sessions until his release on parole in February 2011. The defendant commenced attending the Community Maintenance program at FPS on a weekly basis from 3 May 2011.

1. Sections 9(3)(c) and (i) require consideration of other psychiatric or psychological assessments of the defendants and any other information relevant to the likelihood of the offender committing a further serious sex offence and the willingness of the offender to participate in such assessments.

1. In a report dated 3 September 2003 Professor Greenberg diagnosed the defendant as having a sexually sadistic (paraphilic) disorder defined in DSM-IV, of a chronic and severe nature.

1. Professor Greenberg described the defendant's paraphilic disorder in the following terms:

"This is a paraphillic (sexually deviant) disorder where the individual derives sexual excitement from the psychological or physical suffering of the victim. This usually includes the humiliation of the non-consenting victim. Sexually sadistic fantasies usually involve complete control over the victim who is terrified of the impending sadistic act. Although sexual masochism is commonly associated with this disorder, Mr Scerri denies any masochistic fantasies, sexual urges or sexual acts. His erotic sexual fantasies involve dominance of the victims. Mr Scerri denies any previous sexual fantasies, sexual urges or sexual acts involving sexual sadistic themes prior to the age of 24. However, most people with this diagnosis usually have sexually sadistic fantasies which begin during the teenage period. The onset of sexually sadistic acts is more variable but commonly in early adulthood as in the case of Mr Scerri. ... These sexual disorders are chronic and should be regarded as a severe disorder in view of his criminal sexual activity."

1. In a report dated 24 August 2010 Dr Barbara Sinclair, psychiatrist, described the defendant as having a significant paraphilia. She said:

"I believe Mr Scerri has a significant paraphilia which is currently suppressed in his controlled environment. I also consider he has a substance use disorder that is currently in remission. However, because I consider his risk of re-offending to be extremely high I think that a subsequent report will need to be done within six months by the Community Forensic Mental Health Service (CFMHS) or a forensic psychiatrist, specialising in sexual offending disorder."

1. In a report dated 5 October 2010 Dr Adams, psychiatrist, recorded the defendant as denying having experienced any sexual fantasies of a homosexual or violent nature prior to these offences, and also denying any arousal related to violent acts or the humiliation of victims. However, Dr Adams noted that the defendant's account seemingly contradicted that recorded by Professor Greenberg in his report of September 2003 and also that contained in the CUBIT treatment report dated 21 April; 2011. The latter referred to the defendant's previous "sexual fantasies involving sex with men and strong feelings of sexual arousal towards men".

1. With regard to the defendant's ongoing treatment and noting the apparent contradictions referred to, Dr Adams said that it was paramount that additional assessment be targeted at the defendant's sexual thought processes and fantasies preceding his offending behaviour.

1. Section 9(3)(i) requires consideration of any other information relevant to the likelihood that the offender will in future commit offences of a sexual nature. The defendant reported abusing alcohol at the age of 14. This included significant binge drinking and instances of blackouts. He also reported heavy drinking on the night of the index sexual offence and at the time of the earlier sexual offences. The defendant identified alcohol as the key factor in his sexual offending. Following his most recent release on parole, the defendant is reported to be voluntarily taking Antabuse, anti alcohol medication. The State Parole Authority made it a condition of the defendant's current parole that he not consume alcohol.

1. Section 9(3)(c) and (d) require consideration of reports and statistical and other assessments dealing with the likelihood of the defendant committing a further serious sex offence. Ms Narci Sutton, senior psychologist with Corrective Services NSW, carried out a psychological risk assessment for the purposes of a potential application under the Act. For this purpose Ms Sutton interviewed the defendant on 2 and 10 march 2011. She assessed the defendant's risk of sexual recidivism by reference to both Actuarial Risk Assessment (STATIC-99R) and dynamic risk factors.

1. Ms Sutton scored the defendant as a "nine" on the STATIC-99R, thus placing him in the high-risk category relative to other adult male sex offenders. Ms Sutton pointed out:

"The rates of sexual recidivism for sexual offences within the normative samples who have the same total score as Mr Scerri were between 29.5 percent and 52.4 percent over 5 years and 53.1 percent and 61.9 percent over 10 years."

1. In terms of relative risk, Ms Sutton said that in the STATIC-99R sample population, sexual offenders with a score of nine showed 6.48 times higher than the recidivism rate of a "typical" sexual offender. Ms Sutton acknowledged the inherent limitations of the STATIC-99R as a tool for predicting individual behaviour.

1. In relation to the dynamic risk factors, Ms Sutton utilised the Risk of Sexual Violence Protocol (RSVP) as a structural clinical tool to assist in the assessment of risk of sexual violence. Ms Sutton reported that the defendant exhibited relevant risk factors in all five domains of the RSVP. The relevant RSVP dynamic risk factors include the following:

• Chronicity of sexual violence. Ms Sutton said "His sexual violent offending has involved multiple assaults over a relatively short time period and a new assault a short time (six months) after release from gaol."
• Physical coercion: The defendant used violence in carrying out the sexual assaults.
• Problems with self-awareness: As evidenced by the defendant's confusion as to the dynamics of his offending behaviour.
• Problems with stress and coping: As illustrated by the dysfunctional coping strategies discussed in treatment and his use of alcohol to deal with stress.
• Problems resulting from child abuse: The defendant has been diagnosed as suffering from post-traumatic stress disorder associated with his reported experience of being abused by a paedophile ring when he was a child.
• Sexual deviance: As evidenced by the defendant's repeated offending behaviour. Ms Sutton stated that sexual deviance is strongly associated with sexual violence, although on its own may not be sufficient for the perpetuation of sexual violence.
• Problems with substance abuse.
• Problems with intimate relationships: As documented in the CUBIT treatment report.
• Problems with treatment while participating in treatment: Seemingly wholeheartedly the defendant had continuing difficulties in being able to gain a clear understanding of his offending process - being a specific area of treatment that impacts directly on his offence behaviour.
• Problems with planning: Poor self-management which is likely to lead to negative affectivity.
• Problems with supervision: As evidenced by the defendant's past relapse while on supervision.

1. In relation to the last mentioned RSVP factor, i.e. problems with supervision, Ms Sutton said:

"Mr Scerri's relapse while on supervision indicates past problems in this area. I am aware that he is currently considered to be co-operative, even enthusiastically so, with his supervising officer. However, given this was also the case in the early stages of his parole order, just before he re-offended, it needs to be considered as a possible risk factor until better tested."

Ms Sutton reported that taken together, the risk factors of the RSVP suggest that the defendant still had a moderate to high level of risk for sexual re-offending with risk factors of each of the five sub-categories present.

Conclusion

1. Having considered the factors applicable to this application under s9(3) of the Act, I express the conclusion that I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order. Accordingly, I am satisfied that the order should be made for the appointment of psychiatrists to undertake examinations of the defendant so that this application may proceed to its next phase.

1. I make the following orders:

(1) I order pursuant to s7(4) of the Crimes (Serious Sex Offenders) Act 2006 that:

(a) Dr Jeremy O'Dea and Dr Anthony Samuels be appointed to conduct separate psychiatric examinations of the defendant and that reports be furnished to the Supreme Court on the results of those examinations on or before 8 August 2011; and

(b) I direct the defendant to attend those examinations.

(2) I list the matter for further mention on 12 August 2011 before the Duty Judge.

(3) I grant liberty to the parties to apply on 2 days' notice.

(4) I direct that access to the Court file in respect of any document should not be granted without the leave of a Judge of the Court. 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 be given the opportunity to be heard.

(5) I fix the matter for hearing with an estimate of 2 days on 8 and 9 September 2011.

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Decision last updated: 08 July 2011