State of New South Wales v Anderson

By summons filed 6 October 2015, the State of New South Wales seeks orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

First, it seeks an order under s 7(4) that qualified psychiatrists be appointed to conduct psychiatric examinations on the defendant and to furnish reports to the Court along with a direction that the defendant attends those examinations. Secondly, it seeks an interim detention order under s 18A commencing on 17 October 2015 for a period of 28 days. There is an associated order pursuant to s 20 seeking the issue of a warrant for that purpose. In the alternative to the interim detention order, the plaintiff seeks an interim supervision order pursuant to s 10A of the Act.

Counsel for the defendant, who is operating under a distinct forensic disadvantage as a result of matters to which I will presently turn, has made a number of significant concessions. As a result of those concessions the dispute between the parties (at this stage) is relatively confined. In essence, the defendant acknowledges that he is a “detained sex offender” as that expression is defined s 13B. It is also conceded that the application for the interim detention order or the interim supervision order has been brought within the time limits provided for by the Act. Further, and importantly, the defendant concedes that the matters alleged in the supporting documentation tendered by the plaintiff would, if proved, justify the making of a continuing detention order or an extended supervision order.

As a consequence of those concessions, the defendant does not dispute that the order appointing psychiatrists should (or must) be made and does not, at least on an interim basis, resist the application for an interim supervision order. However, the defendant opposes the making of an interim detention order. Accordingly, the dispute between the parties comes down to the question of whether the Court’s discretion should be exercised in favour of ordering the defendant’s continued detention until the final hearing or whether the defendant should be subject to an interim supervision order until that time.

The case was heard on Monday, 12 October 2015 in circumstances where the defendant is due to be released from a total effective 13 year prison sentence on Saturday, 17 October 2015. These reasons have been prepared over the course of 2-3 days as a consequence of the urgency inherent in that timetable.

At the commencement of the hearing, counsel for the defendant raised an objection to the extensive affidavit material which was tendered by the plaintiff in support of the summons. The basis of that objection was that there was a denial of procedural fairness in circumstances where the application was brought by the State at such a late stage and supported by an enormous bundle of factual and evidentiary material.

As I indicated at the time, there was real substance in the objection and also in the complaints articulated by counsel. Notwithstanding the validity of those complaints, I felt constrained to allow the evidentiary material in view of the urgency of the application and the objectives of the Act. The primary objective of the Act is to provide for the extended supervision and continued detention of high risk offenders so as to ensure the safety and protection of the community: s 3(1). To have excluded the plaintiff’s evidence would be anathema to that primary objective. It would have left the State with no case and the summons would inevitably have been dismissed. The result would have been that the defendant would be released this weekend without any supervision, his sentence being due to expire on Saturday.

While counsel for the plaintiff apologised at the commencement of the hearing, no meaningful explanation has been provided for the delay in bringing this application. Nor has there been any explanation for the failure to notify the defendant and his legal advisers of the fact of the application and the evidence upon which it is based.

A great deal of the evidence that has been placed before me is historical and has been in the possession of the State for many months or years. One of the most significant documents relied on by the plaintiff is the report of the psychiatrist Dr Richard Furst. That document, a dense psychiatric report of 30 pages, is dated 3 August 2015. It makes reference to a number of documents within the 5 volumes of material upon which the State now relies. Not only does it refer to that material, it refers to the tab numbers within the 5 volumes. This makes it clear that the State was aware in July 2015 of the likelihood that this application would be made and was also substantially aware of the material upon which it would rely.

Because of the terms of the legislation, an application of this kind cannot be brought until the final 6 months of an offender’s sentence: s 13B(3). Section 15 of the Act provides that the offender must be served with the application within 2 days of the filing of the application and that the Supreme Court must conduct a preliminary hearing with 28 days. These provisions are in need of reform. In my opinion, given the voluminous nature of the material that generally accompanies such applications, the significant impact of the application on the human rights of the offender and the pressure on the Court to list and properly determine the applications, Parliament should consider increasing the period in s 13B(3) to 12 months and should require the application to be brought at least one month before the expiration of the offender’s sentence.

Nevertheless, even based on the time limits in the Act as it stands, I can see no justification for the State to bring such an application before the Court in the final week of an offender’s sentence. Even allowing for the possibility that there will be urgent and compelling circumstances, there is no justification for failing to place an offender on notice that an application will be made (or is likely to be made) and allowing his legal representatives an opportunity to peruse and digest the material upon which the State proposes to rely.

As McCallum J said in State of New South Wales v Donovan [2015] NSWSC 1254 at [2]:

Her Honour’s decision to impose an extended supervision order rather than a continued detention order was upheld in the Court of Appeal: State of New South Wales v Donovan [2015] NSWCA 280.

An application such as the present is one that is calculated to violate that most basic right of which McCallum J, and the High Court before her, spoke: see, for example, Williams v The Queen [1986] HCA 88; 161 CLR 278. It should not be - and I am quite certain that it is not - an application that is brought lightly by the State. Further, it is an application in relation to which a defendant has a critical interest and a right both to be prepared for the hearing and to have the opportunity to be heard to contest the application. Providing a defendant’s lawyers with thousands of pages of documents a few days before the hearing does not afford an offender that right and opportunity.

In those circumstances, there is a heavy responsibility on those representing the State to bring such applications in a timely manner.

The circumstances of the present case, which are not atypical, place inappropriate pressure on the Judge to make a decision of great importance to both the individual and the community hastily and under unwarranted time pressure. Just as importantly, it puts the defendant and his or her legal representatives in a position where they are unable to peruse all of the relevant material to uncover facts and circumstances which might militate against making the kinds of orders that are sought in such cases.

I am not the first judge to have made comments such as these. For example, in the State of New South Wales v Phillips [2014] NSWSC 205, Bellew J described the situation in that case as “highly unsatisfactory” and said (at [15]);

Bellew J referred to similar observations made by judges in earlier cases and described the situation as “unacceptable”. I have come to a similar view in the present case.

However, it is necessary to decide the case based on the evidence that has been presented, in accordance with the terms of the Act and particularly bearing in mind the principal objective of that Act in terms of the protection and the safety of the community.

Nothing that I have said in the preceding paragraphs should be taken to reflect upon counsel for the plaintiff or his instructing solicitor. On my observation and understanding of the material, they have acted with some alacrity in getting the material ready for the Court and have conducted the hearing itself in a balanced and fair manner, bringing to my attention matters which might militate in favour of the making of a supervision order in spite of their primary position and instructions being to make an application for a detention order. I also have no doubt about the sincerity of the apology offered to the Court and to the lawyers for the defendant at the commencement of the hearing.

A continuing detention order can only be made if the Court is satisfied that the defendant is a “detained sex offender”. I am satisfied that he is. He is currently in custody serving the final days of a lengthy sentence of full-time imprisonment for a serious sex offence.

I am satisfied that the application has been brought within the time frame required by the Act. That is, the application may not be made more than 6 months before the end of the offender’s total sentence. Putting aside the question of possible amendment to that time period, the temporal limitation provided in s 13B has been complied with.

I am also satisfied, pursuant to s 15(4) that the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order: see ss 10A, 15(4) and 18A.

While those matters have been conceded by counsel for the defendant, it is necessary for me to be satisfied independently of those matters. In coming to those various conclusions, I have considered the matters that must be considered by the Judge presiding over the final hearing of the application. Section 17(4) states that in determining whether or not to make a continuing detention order or extended supervision order, the Court is to have regard to the matters listed from (a) to (k) that the Court considers relevant. Those factors include:

Due to the urgency of the application and the limited time available, I state the reasons for my conclusions in point form:-

Based on the material in the brief as summarised in the foregoing series of dot points, I am satisfied for the purpose of ss 7(4), 10A and 18A that the matters alleged in the supporting documentation would, if proved, justify the making of a high-risk sex offender extended supervision order or continuing detention order.

As a result of the finding referred to in the last paragraph, I am required pursuant to s 7(4) of the Act to make the orders sought in paragraph one of the summons, namely to appoint psychiatrists and to direct the defendant to attend upon them so that reports can be prepared for the purpose of the final hearing.

The second legal consequence of those findings is that the Court’s jurisdiction to make an interim detention order or interim supervision order is enlivened.

When the matter comes on for final hearing and the Court is required to decide whether a continuing detention order or extended supervision order should be made, a relevant question will be whether adequate supervision can be or will be provided by an extended supervision order: see s 5D of the Act. While that is a relevant consideration on the final hearing, it has been held (and I accept) that it is not a proper exercise of discretion to make an interim supervision order rather than an interim detention order simply because the probabilities suggest that an extended supervision order is the more likely outcome at the final hearing: see Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 at 99. In Tillman the Court said of the discretion (as it existed in the legislation at the time):

Section 18A, which provides for interim detention orders, does not require proof on the part of the plaintiff that adequate supervision will not or could not be provided by an extended supervision order: see State of New South Wales v Thomas (Interim) [2009] NSWSC 1119. However, the legislation provides the Court with a “true discretion” (note the use of the word “may”) and that discretion must be exercised judicially and in the light of all of the information before the Court. It must be exercised in the light of the primary objective of the Act (to protect the community) and its secondary objective (to promote an offender’s rehabilitation).

The material before me establishes that the defendant’s conduct whilst in custody, while very far from perfect, has largely been compliant. I accept the submission that his behaviour has improved over time. The material also demonstrates that the defendant undertook an intensive treatment program known as the CUBIT program prior to the expiration of his non-parole period in October 2012 (that being the expiration of a fixed term for escape accumulated on the non-parole period for the sexual assault offence): R v Anderson [2002] NSWCCA 304 at [51]. The report generated in April 2011 was mostly a positive one. The defendant was described as a confident and insightful group member and expressed what appeared to be genuine remorse and contrition for his offences. While his insight into his sexual offending was in some respects lacking, he was able to articulate specific situations and risk factors that might cause him to re-offend. It was considered that he had gained considerably as a result of his participation in the program. The report said that “in terms of overall treatment outcome, Mr Anderson was considered to have made some positive shifts and progress in developing insight into his offending.”

The report also recommended that it was a priority for Mr Anderson to engage in what was described as “custody based maintenance” at the Metropolitan Special Program Centre at Long Bay.

The defendant has not complied with that recommendation. Various reasons have been identified for his failure to undertake the custody based maintenance. In part, the failure seems to have resulted from the defendant’s own resistance and lack of trust in the professionals running the CUBIT program and the maintenance program which followed.

It is impossible for me in the time available to determine whether some of Mr Anderson’s justifications for failing to do the maintenance program are valid or not. However, he has completed other relevant programs such as the Getting Smart and Smart Recovery programs and is described in the case notes as “an excellent and reliable worker who mentors young inmates”. A case note in October 2014 notes that he “wishes to be able to participate in pre-release programs”. Another reason for his failure to engage in the maintenance program seems to be the fact that it would require him to be moved from one correctional centre (Junee) to another (in Sydney). More recently (in July 2015) the defendant wrote to authorities asking if he could complete the CUBIT maintenance programme via audio-visual link (AVL). On 3 August he signed a consent form to participate in the sessions via AVL.

A consistent theme that runs through the material, including the progress notes and his many interactions with psychologists within the system, suggests that he was resistant to engaging in the maintenance programs while in custody but repeatedly expressed a willingness to engage in intensive rehabilitation programs whilst in the community. It appears that his classification (which is affected by his status as an escapee) has impacted on his ability to participate in pre-release programs that encompass day release and similar.

While there are various positive indicators of Mr Anderson’s willingness to participate in programs, the fact remains that he has not completed the maintenance programs that were recommended in the CUBIT report back in 2011. No doubt, that is the reason why his applications for parole have been consistently declined and is one of the strongest arguments raised by the plaintiff in urging me to exercise my discretion by ordering his interim continued detention rather than placing him on an interim supervision order.

The plaintiff also points to a note dated 17 September 2015 which records that the defendant plans to visit a family grave in Coffs Harbour “regardless of restrictions” that might be imposed by those administering an extended supervision order. Counsel put to me that the defendant denied making such a statement and that I should treat the notation with caution.

In a Risk Management Report prepared on 2 March 2015, Kevin Makar, a Senior Community Corrections Officer, identified the following risk factors that impacted on the likelihood of Mr Anderson committing further sexual offences. This analysis was predicated on the seemingly unanimous view that he was at a high risk of further sexual offending. The risk factors were as follows:

Mr Makar went on to set out a thorough risk management plan which attempted to address each of the identified risk factors. Annexed to the risk management report is a detailed summary of the nature of the supervision that is available to an offender if released on an extended supervision order (ESO). Such supervision would commence if an interim order is made.

Included in the management plan is an electronic monitoring system which enables the authorities to be aware 24 hours a day, 7 days a week as to whether an offender subject to an ESO is complying with conditions as to his whereabouts. There is also intensive counselling services and the opportunity for referral to the relevant programs and services.

Mr Makar also gave evidence in the proceedings and confirmed that the there is a bed available at the Community Offender Services Program (COSP) and that this would be available from the day of Mr Anderson’s release if he is subject to an extended supervision order. The COSP is a residential program and it is quasi-custodial in its nature. Those administering the programme would transport the defendant from gaol directly to the COSP centre.

Generally, participants in the program are only allowed to stay at the COSP for a period of between 3 and 6 months, although this can be extended with the agreement of the manager of the COSP. The participants in the program are locked in between 6 pm and 6 am. They are only permitted to be absent from the centre at times which are prearranged by the provision of agreed weekly diaries prepared in advance. In the early stages, permission to leave the premises is limited to necessary medical and similar appointments. Strict time limits are provided for such absences from the centre. If a participant fails to return in accordance with the schedule attempts are made to contact them and, if necessary, police are contacted and the electronic monitoring system used to locate and take the offender into custody. Substantial gaol sentences are prescribed for breaches of such orders.

Mr Makar gave evidence that it is difficult, although not impossible, to remove the electronic monitoring equipment which is generally attached to the ankle of the offender. If the monitor is removed the electronic monitoring centre is notified immediately. Such removal would constitute a breach of the order and the person in question would be liable to be returned to custody as well as charged with an offence.

In view of the grave criminality in which the offender engaged in 2001 and the reports to which I have made passing reference, it is not possible to say with absolute certainty that the onerous conditions proposed in the interim supervision order provide a complete mitigation of the risk that the defendant may pose to the community. However, that would be true in any case where a person has been held to fall within the provisions that enable their continued detention or extended supervision under the provisions of the Act.

One ramification of an order making the defendant subject to an interim supervision order arises from the provisions of s 13B(4)-(6). Those sections mean in effect that if the defendant is compliant and circumstances do not change this may have some influence on the outcome of the final proceedings. This provides significant incentive for the defendant to be compliant if an ISO is imposed. Such an outcome accords with the secondary objective of the Act, that is encouraging high risk offenders to undertake rehabilitation.

I have taken into account the opinion of Dr Furst that various risk facts “mean that his release in the community, even if supervised under the proposed conditions of an ESO, probably poses an unacceptable risk to the community”. However, Dr Furst goes on to acknowledge that:

Mr Makar’s report and evidence indicate that those programs will form part of the highly structured and supervised conditions of the defendant’s life at the COSP centre if he is subject to an interim supervision order.

Taking into account all of the relevant factors including the defendant’s willingness to participate in programs outside of the custodial setting and his increased insight into his behaviour and notwithstanding his criminal record and the appalling and chilling nature of the index sexual offence, I have decided to exercise the discretion in favour of ordering the defendant to be subject to an interim supervision order rather than ordering his continued detention pending the outcome of the final hearing of this case in December. This approach achieves the primary objective of the Act and is protective of the community because of the onerous conditions and quasi-custodial nature of the supervision and accommodation. It also achieves the secondary objective of the Act by requiring the defendant to participate in rehabilitation programs and providing him with the incentive to be compliant pending final resolution of the Plaintiff’s application for a continuing detention order.

Accordingly I propose to make orders in accordance with paragraphs 1 and 4 of the Summons along with some orders in the nature of a timetable. I make the following orders: