State of New South Wales v Sturgeon

1. [1]

   On 21 February 2019, the State of New South Wales (“the State”), brought proceedings pursuant to the Crimes (High Risk Offenders) Act 2006 (“the HRO Act”) against Mark Douglas Sturgeon, the defendant, seeking a Continuing Detention Order (“CDO”) and an Extended Supervision Order or, alternatively, solely an Extended Supervision Order (“ESO”). Other relief is sought.

2. [2]

   In accordance with the legislation, this Court is obliged to conduct a preliminary hearing into the application within a 28 day period after the filing of the application. The Court has a discretion to allow further time if it is required: s 7(3) and s 15(3) of the HRO Act.

3. [3]

   This judgment relates to the preliminary hearing conducted by the Court.

Nature of a Preliminary Hearing

1. [4]

   At the preliminary hearing, the Court is obliged to reach a state of satisfaction that “… the matters alleged in the supporting documentation would, if proved, justify the making of …” a CDO or an ESO: s 7(4) and s 15(4) of the HRO Act. If the Court is not so satisfied, then the application must be dismissed: s 7(5) and s 15(5) of the HRO Act.

2. [5]

   A preliminary hearing does not require the Court to be satisfied that the matters 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”: s 5B and s 5C of the HRO Act.

3. [6]

   The Court, in undertaking this exercise, is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is no part of the Court’s function to predict the ultimate result, or assess the likelihood of the ultimate result. If on the matters alleged in the supporting documentation it is open to the Court at a final hearing to make a CDO or and ESO, then a conclusion that the Court would be justified in making the order, is inevitable. The issue is to be resolved without considering what evidence might be called by the defendant at a final hearing, and without taking into account any evidence which may be called by a defendant at an interim hearing, because such evidence would not cast light upon what is alleged in the supporting documentation: Attorney‑General of NSW v Tillman [2007] NSWCA 119 at [98].

4. [7]

   Once the Court reaches the requisite state of satisfaction at a preliminary hearing, there remains a discretion that enables the Court to refuse to make an order for an interim detention order (“IDO”) or an interim supervision order (“ISO”): Tillman at [32]. In addressing this discretionary exercise, it is open to a defendant to adduce evidence which addresses the exercise of the Court’s discretion. However, having regard to the nature of the HRO Act as protective legislation, and the stated primary object in s 3 of the HRO Act, “… to ensure the safety and protection of the community …”, it is difficult to see that the discretion to decline to make an IDO or ISO would arise other than in an exceptional case.

5. [8]

   The defendant drew attention to the decision in State of NSW v Stevenson (Preliminary) [2019] NSWSC 492. There, R A Hulme J, drawing on an earlier decision of Rothman J in the State of New South Wales v Elomar (No.2) [2018] NSWSC 1034, expressed the test at [19] as:

6. [9]

   Rothman J in Elomar (No.2) at [7] was not using the word “facts” in any narrow sense, nor in any sense different from the phrase “…matters alleged in the supporting documentation…”. What Rothman J was making clear was that “…matters alleged…” did not include any conclusion of the kind that would justify the making of a final order: see Elomar (No.2) at [9].

7. [10]

   The use of the word “facts” in Stevenson is not to be understood in any different way. It is clear that the matters set out in supporting documentation adduced by the State include more than statements of mere fact.

8. [11]

   That phrase, “…matters alleged in the supporting documentation…”, including the word “matters”, is coherent with the use of the word “matters” in s 9(3) and s 17(4) of the HRO Act. The phrase includes the variety of reports, results of statistical or other assessments, treatment or rehabilitation programs in which a defendant has participated, the criminal history of a defendant and the views expressed by a sentencing court and “any other information”, contained in the supporting documentation.

9. [12]

   The Court must have regard to these things in determining whether to make an ESO or a CDO. As a matter of the application of the HRO Act as a whole, it is appropriate when considering the meaning of the relevant phrase “… matters alleged in the supporting documentation …” not to limit those matters in any way which would exclude any of the variety of items referred to in s 9(3) and s 17(4) of the HRO Act.

10. [13]

    It follows that there is no place at a preliminary hearing for the undertaking of any challenge, by cross-examination or otherwise, of any person who has stated facts, including expert opinions, in the documentation supporting the State’s application, or else who has written reports of the kind referred to, or who has undertaken any of the assessments referred to. Nor is there any place to tender any contradictory material. These are matters reserved for determination at a final hearing.

Preliminary Hearing - Issues

1. [14]

   The issues which fall for consideration at a preliminary hearing can conveniently be divided into two:

2. [15]

   Consideration of the threshold requirements set out above in [14(a)] would ordinarily be a straightforward consideration of relatively simple matters of fact. Experience dictates that there is rarely, if ever, any issue about the satisfaction of these matters.

3. [16]

   The consideration of the ultimate issue, set out above in [14(b)], need not be lengthy, and does not call for elaborate or lengthy reasons. The Court is required, in the context of a preliminary hearing (which is not a final one) to undertake an assessment of whether, on the material available, the making of an order at a final hearing would be justified. It seems to me, on any such assessment, unless the Court concludes that it would not be open to it at a final hearing to make an order for supervision or detention, it must follow that the material would justify the making of an order.

4. [17]

   In practice, this task is achieved relatively easily, as it was intended by the legislation. After all, what flows from such a determination is a requirement for the defendant to attend an expert psychiatric or psychological examination, and be the subject of either an interim detention or interim supervision order for a period of 28 days.

5. [18]

   This analysis is supported by the fact that there is no right of appeal under s 22 of the HRO Act from a judgment resulting from a preliminary hearing or any orders made after such hearing. Any appeal from orders made after a preliminary hearing would require leave of the Court of Appeal: s 101(2)(a) Supreme Court Act 1970.

The State’s Case

1. [19]

   The State’s case is summarised in its submissions in this way:

2. [20]

   The State’s case at the preliminary hearing relied principally upon the expert opinion of Mr Samuel Ardasinski, a senior psychologist with the Serious Offenders Assessment Unit.

Report of Mr Ardasinski

1. [21]

   Mr Ardasinski did not interview the defendant, because the defendant declined to make himself available for that interview. Mr Ardasinski prepared his report using only documents which were made available to him. Based upon that material, Mr Ardasinski drew the following conclusions:

2. [22]

   Mr Ardasinski’s conclusions are expressed in the following way:

3. [23]

   Mr Ardasinski also says:

The Defendant’s Submissions

1. [24]

   The defendant does not dispute that the various threshold conditions as set out in [14(a)] above are satisfied. He does, however, put in issue whether, on the material before it, the Court would be satisfied that the matters in the supporting documents would justify the making of a CDO or an ESO. That is because he submits the material would not satisfy the Court, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence. The defendant does not seek the exercise by the Court of any ultimate discretion to dismiss the application.

2. [25]

   These submissions highlight the fact that at no time has the defendant committed a serious violence offence as defined in the HRO Act. This is common ground. The submissions draw attention to the fact that the only violent offences on his criminal history comprise common assaults and assaults on police. These offences did not require an offender to have formed any particular intention, whereas a serious violence offence is one which requires the holding of an intention (or else recklessness) to kill or cause grievous or actual bodily harm.

3. [26]

   The defendant draws attention to the fact that subsequent to his commission of the nominated serious sex offence, he completed the CUBIT program. The defendant also draws attention to the fact that, between July and October 2017 (when the defendant was on parole for the serious sex offence), he attended community-based maintenance sessions on a roughly weekly basis. His parole expired in November 2017 and his response to supervision during that period was regarded as satisfactory.

4. [27]

   The defendant notes that the offences which have been committed since that time relate to low level violence but none involve any sexual aspect.

5. [28]

   However, the defendant conceded that one of the sets of offences is defined as an offence of a sexual nature. This involved two offences contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (“the Registration Act”), which involved him failing to report particular items specified in the Act as being required to be reported.

6. [29]

   The defendant submitted that the Court, at a final hearing, would disregard the Registration Act matters because they are not capable of informing any assessment as to whether the defendant would commit a serious sexual offence in the future. In that respect, the defendant relies upon the remarks of Fullerton J in State of NSW v Clarke [2019] NSWSC 411 at [62]. The remarks of Fullerton J in that decision would support the defendant’s submission that a Court might not give significant weight to the defendant’s offences against the Registration Act, however, they are not statements of principle, and are specifically addressed to the particular individual who was being considered by her Honour in that case.

7. [30]

   The defendant’s submission accepts that there was “… certainly dysfunction to Mr Sturgeon’s life”, but noted that mere dysfunction does not inform to any real or substantive extent, the risk of committing another serious offence.

Discernment

1. [31]

   The defendant has not, to date, been shown to have committed a serious violence offence. The material provided by the Crown, if accepted, is capable of satisfying a Court that the defendant falls within a medium to high risk range of general and violent recidivism. The only actuarial assessment tool specifically directed towards violence by which the defendant was assessed, namely VRAG-R, classified him as high risk compared to other violent offenders.

2. [32]

   The VRAG-R tool is subject to the limitation that, having regard to its methodology, it does not necessarily reflect the recidivism risk of an individual offender, nor does it specifically address offences which would fall within the definition of a serious violence offence. A serious violence offence is a sub‑set of offences included in the VRAG-R predictions.

3. [33]

   In circumstances where the defendant has never committed any serious violence offence, and has not engaged in any conduct which approaches the level of serious violence required by the statutory definition, I am unable to conclude that the material relied upon by the State would justify the making of either a CDO or else an ESO relating to the risk of the defendant committing an offence of serious violence. This is so, particularly as the level of satisfaction required by the Court is one of a high degree of probability.

4. [34]

   If this was the only basis upon which the State put its case, then I would be obliged to dismiss it.

5. [35]

   However, the State also relies upon, and it is necessary to consider, the risk of the defendant committing a serious sexual offence.

6. [36]

   As is apparent from the defendant’s history, he has committed a serious sexual offence. It is also apparent from the facts of, and surrounding that offence, that he knew that what he was doing was an offence and proceeded to carry it out, notwithstanding the protestations of the victim.

7. [37]

   The material relied upon by the State also establishes, notwithstanding the defendant’s compliance with his parole conditions, that he has regularly failed to take the medication appropriate to his mental condition. Whilst unmedicated, the defendant has behaved in a manner that tends to suggest that he is not able to contain the risks of committing a sexual offence, including a serious sexual offence.

8. [38]

   Put differently, if the defendant is not supervised, and he does not take his medication, then the risk of commission of one or more further serious sexual offences by him, would be regarded as very significant. It is certainly sufficient to enable the Court at a final hearing, and in the absence of any further evidence, to be justified in making a CDO or an ESO.

Which Order is Appropriate

1. [39]

   In light of the conclusion recorded in [38] above, and having regard to the fact that the State seeks, in the alternative, an IDO or an ISO, the Court is obliged to determine which of those orders should be made. As the making of any interim order is discretionary, it follows that it is open to the Court to choose the order which is appropriate in the circumstances.

2. [40]

   The State relies upon the fact that the defendant has declined to assist the ESO team to identify suitable accommodation, or to engage in the question about what his current mental state (or diagnosis) is and how that should be addressed in the community as the principal basis for its submission that the appropriate interim order is one for detention. The State submitted that, pending the examination by the experts, the Court ought make an IDO as it would maintain the status quo, and also best serve the statutory object of the protection of the community.

3. [41]

   The defendant disputed that the State had established the basis for any order to be made by the Court, and submitted that the Summons ought be dismissed. A careful consideration of the defendant’s oral and written submissions does not reveal any submission directly addressed to the present issue, namely, if the Court is persuaded that the State has satisfied all of the requirements for the making of an IDO or an ISO, which one is appropriate.

4. [42]

   However, I note that in addressing the issue of risk of committing serious sexual offences, the defendant’s counsel drew attention to the fact that the defendant had satisfactorily completed a period of parole in November 2017, and that he had successfully completed another period of parole with only relatively minor breaches.

5. [43]

   I also have regard to the evidence in the Risk Management Report by Mr Marc Corcoran (dated 31 January 2019) that measures can be put in place to manage the risks which are posed by the defendant being released into the community.

6. [44]

   The commencement point of the consideration of the order which ought to be made is the HRO Act. As noted, it is a piece of protective legislation intended to achieve the primary object of ensuring the safety and protection of the community.

7. [45]

   There is no evidence on this preliminary hearing that:

8. [46]

   There is some evidence of statements made by the defendant that he would not comply with any directions if he was being supervised on release, and also that he would prefer to be held in custody than submit to a supervised release.

9. [47]

   As Bell J noted in Attorney-General for NSW v Winters [2007] NSWSC 611 at [7], it is appropriate for the Court when dealing with the making of interim orders “…to give weight to risk-avoidance”.

10. [48]

    Having regard to the evidence as it stands, and giving weight to ensuring both the safety of the community and risk avoidance, the only appropriate order to be made is an IDO. Section 18C(1) requires that such order is limited to a maximum period of 28 days. Having regard to the fact that a final hearing cannot be held until the further expert reports are obtained and the defendant has had the opportunity of gathering any evidence which he intends to rely upon, although it is open to the Court to fix a shorter period, there is no reason to do so in this case.

11. [49]

    No submissions were made that if the Court was satisfied that the Summons should not be dismissed, it should not make the appropriate pre-trial orders providing for the proposed psychiatric examinations. In fact, it is obliged so to do by the legislation: s 7(4) and s 15(4) of the HRO Act.

Orders

1. [50]

   I make the following orders:

   1. (1)

      Order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

   2. (2)

      Order pursuant to s 18A of the Act that the defendant be detained for a period of 28 days commencing on 4 June 2019 and concluding on 2 July 2019.

   3. (3)

      Order pursuant to s 20(1) of the Act that a warrant for the committal of the defendant to a correctional centre for the period of 28 days specified in Order (2) be issued.

   4. (4)

      Order that access to the Court’s file for any documents shall not be granted to a non-party without leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

   5. (5)

      Stand the proceedings over for further directions to the Registrar’s list on Monday 17 June 2019.