State of New South Wales v Wilmot (Preliminary)

[2021] NSWSC 1189

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Wilmot (Preliminary) [2021] NSWSC 1189

Hearing dates:

17 September 2021

Date of orders:

17 September 2021

Decision date:

17 September 2021

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”):

(a) appoint one qualified psychiatrist and one registered psychologist, to conduct separate psychiatric or psychological examinations of the Defendant, as appropriate, and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court;

(b) direct the Defendant to attend those examinations.

(2) Pursuant to s 18A of the Act the Defendant is subject to an interim detention order for a period of 28 days.

(3) Pursuant to s 20(1) of the Act the Court is to issue a warrant for the committal of the Defendant to a correctional centre for the duration of the interim order referred to in order 2 above.

(4) The parties have liberty to apply on 24 hours’ notice by email to my Associate.

Catchwords:

HIGH RISK OFFENDER – serious sex offences – preliminary hearing – interim orders sought – interim detention order made

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

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

State of New South Wales v Wilmot (Final) [2019] NSWSC 1276

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Wayne Wilmot (Defendant)

Representation:

Counsel:
P Aitken (Plaintiff)
D Carroll / S Climo (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Ryan Payten Le (Defendant)

File Number(s):

2021/213919

Publication restriction:

Nil

Judgment

1. By Summons filed on 26 July 2021, the State of New South Wales seeks orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) against Wayne Wilmot. The State seeks either his continuing detention for 2 years, (“CDO’), or his extended supervision for 5 years, (“ESO”).

2. The matter is at the preliminary hearing stage and the State seeks orders for the appointment of a psychiatrist and a psychologist as well as an interim detention order (“IDO”) or an interim supervision order (“ISO”) until the matter is finally heard and determined.

3. The defendant is 48 years old and has been in custody continuously since 1988 save for a period of about 20 months between 1996 and 1998. In that short period he committed a robbery, sexually assaulted a female alone at a train station (2 June 1998), and detained and maliciously wounded another young female later that same month.

4. He has, it must be said, an horrendous history of violent and sexually violent offending. This is set out in the preliminary and final judgments in respect of the State’s previous application for a CDO, heard and determined by me in 2019: State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776; State of New South Wales v Wilmot (Final) [2019] NSWSC 1276.

5. The defendant was made subject to a 2 year CDO on 24 September 2019. His custody under that order expires at midnight on 23 September 2021 and a decision on an interim basis upon the current application is required before that date.

6. The defendant has conceded, for the purposes of this preliminary hearing only, that the threshold requirements for s 5C of the Act have been met and does not resist the orders for assessment nor the making of the IDO, provided the Court is satisfied that the matters alleged in the supporting documentation, if proved, would justify the making of a CDO: S5C(d).

7. The State submits that I should make the IDO because I would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention when regard is had to:

1. his criminal history,

2. the assessments of Dr Eagle and Dr Parker in 2019 regarding his risk factors including his lack of insight, severe personality disorder and psychopathy,

3. his previous inability to comply with bail or parole including offending behaviour while on conditional release,

4. [REDACTED],

5. the observations of Dr Parker in his most recent risk assessment report dated 17 June 2021 which concludes that:

• The defendant has a high loading of psychopathic traits which results in disinhibition regarding offending,

• The sexual and violent offending is likely to be driven by his deeply held anti-social beliefs, and possibly deviant sexual arousal,

• There has been only “small gains” in individual therapy and he remains unwilling to admit past offences,

• “Little has changed” since the CDO was made in September 2019,

• It is not known whether he will comply with ESO conditions given his history, institutionalisation, attitudes, personality profile and risk.

8. There is no dispute that all of the statutory preconditions for the making of an IDO are established. The only matter currently in dispute is whether the matters alleged in the supporting documentation would, if proved, justify the making of a CDO.

9. A starting point is to acknowledge the objects of the Act, that being to ensure the safety and protection of the community and also to encourage high risk offenders to undertake rehabilitation: s 3 of the Act.

10. Whilst there are a number of matters that must be taken into account set out in s 17 of the Act, the safety of the community must be the paramount consideration.

11. If I am satisfied at this stage that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or an ESO, then I must make orders for the appointment of experts to examine the defendant and provide reports.

12. Tendered in support of the orders sought are three affidavits of a solicitor Ms Najjar to which is exhibited five volumes of material that addresses the criteria set out in s 17 of the Act. I must have regard to those criteria when determining an application for a CDO (or IDO).

13. A large proportion of this material was assessed and relevantly canvassed in my previous judgments regarding the defendant in 2019. The material includes detailed psychological and psychiatric reports between 1997 and 2019, risk assessment reports, comments by sentencing judges, details of the previous violent and violent sexual offending and documents from the State Parole Authority.

14. Updating the situation regarding risk are [REDACTED] and Dr Parker’s risk assessment report of 21 June 2021.

15. Suffice to say this extensive material provides a sound detailed multidimensional demonstration of the risk presented to the community by this defendant.

Conclusion

16. As I concluded in 2019, the defendant is a versatile offender. There have been numerous violent and sexually violent offences since his early teens, mainly against women on their own, [REDACTED]. The attacks are brazen and in public. He does not seem to care about being “caught”. The attacks are highly distressing and degrading and cause long term harm to victims.

17. The defendant continues to deny and minimise the offending to police and to the professionals who assess him.

18. I accept the opinion of Dr Parker and his detailed bases for it as set out in his June 2021 report that “little has changed” since the 2019 determination. The risk scenario for the defendant is said by Dr Parker to “appear to be any opportunity where a potential victim is alone, and Mr Wilmot is unsupervised”.

19. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if he is not kept in detention.

Orders

20. I make the following orders:

1. Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):

1. appoint one qualified psychiatrist and one registered psychologist, to conduct separate psychiatric or psychological examinations of the Defendant, as appropriate, and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

2. direct the Defendant to attend those examinations.

2. Pursuant to s 18A of the Act the Defendant is subject to an interim detention order for a period of 28 days.

3. Pursuant to s 20(1) of the Act the Court is to issue a warrant for the committal of the Defendant to a correctional centre for the duration of the interim order referred to in order 2 above.

4. The parties have liberty to apply on 24 hours’ notice by email to my Associate.

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Decision last updated: 21 September 2021