State of New South Wales v Russell (Preliminary)

1. [1]

   By Summons dated 24 October 2019, the State of New South Wales (“the State”) seeks various orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the CHRO Act”) in respect of Brett Russell (the defendant), including an order for final relief that he be subject to a continuing detention order (“CDO”) for a period of two years or, in the alternative, an extended supervision order (“ESO”) for a period of five years pursuant to ss 5B and 9(1)(a) of the CHRO Act. In the event that an ESO is ordered, the State seeks an order pursuant to s 11 of the CHRO Act that the defendant comply with the conditions set out in the Schedule to the Summons for the period of the ESO.

2. [2]

   On 29 November 2019, a preliminary hearing was convened in accordance with s 15(3) of the CHRO Act at which the State sought an order pursuant to s 18A that the defendant be subject to an interim detention order (“IDO”) for a period of 28 days or, in the alternative, that he be subject to an interim supervision order (“ISO”) pursuant to s 10A of the CHRO Act, also for a period of 28 days, to date from 16 January 2020, the date upon which his current custody expires. It is not anticipated that the final hearing of the Summons will be convened before 16 January 2020. In the event that an ISO is imposed, the State seeks an order that the defendant comply with the same conditions set out in the Schedule to the Summons for the duration of that order.

3. [3]

   An order was also sought at the preliminary hearing pursuant to s 7(4) of the CHRO Act appointing two qualified psychiatrists or psychologists, or a combination of both, to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Court on the results of those examinations.

4. [4]

   If satisfied at the preliminary hearing that an ISO should be made, the Court is obliged under s 15(4) of the CHRO Act to order the appointment of experts to conduct examinations. If the Court is not so satisfied the Summons must be dismissed.

5. [5]

   For the purposes of the preliminary hearing the plaintiff relies upon the following evidence:

   1. (1)

      Affidavit of Jessica Murty affirmed 24 October 2019, and folder exhibited as Exhibit JM-1.

   2. (2)

      Further affidavit of Jessica Murty affirmed 15 November 2019, and folder exhibited as Exhibit JM-2.

   3. (3)

      Affidavit of Danielle Matsuo affirmed 18 November 2019.

   4. (4)

      Affidavit of Kelli Grabham affirmed 15 November 2019.

6. [6]

   Ms Matsuo and Ms Grabham were cross-examined. Ms Matsuo is the Director of State-Wide Programs within Corrective Services New South Wales (“CSNSW”). She is responsible for the development, coordination and management of programs for all offenders, including high risk sexual and violent offenders. Ms Grabham is employed by CSNSW as a High Risk Offender Applications and Operational Governance Officer with the Extended Supervision Order Team. I will review their evidence later in this judgment.

The case advanced by the State in support of the orders sought in summary

1. [7]

   The State submitted that the preconditions set out in the CHRO Act enlivening the jurisdiction of the Court to make the orders sought in the Summons at the preliminary stage are satisfied for the following reasons:

   1. (1)

      The defendant is an “offender”, as defined in s 4A of the CHRO Act, being over 18 years of age and having been sentenced to imprisonment following his conviction for both serious violence offences and serious sex offences as defined in ss 4 and 5A(1) of the CHRO Act (“the offender precondition”);

   2. (2)

      The defendant is a “detained offender” pursuant to s 13B(2) of the CHRO Act as he is currently subject to a CDO imposed by Button J on 7 December 2018. That order is due to expire on 11 December 2019 (“the detained offender precondition”). The defendant is also serving a sentence of imprisonment of 9 months with a non-parole period of 6 months for an assault committed against another inmate. The non-parole period is due to expire on 16 January 2020. The overall sentence will expire on 16 April 2020. A common assault is not a serious offence of violence under the CHRO Act;

   3. (3)

      The preconditions in ss 5B or 13B which the State must meet in order to commence proceedings are satisfied, the application for orders under the CHRO Act being filed when the defendant was “a detained offender (“the application precondition”);

   4. (4)

      The Court will be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sex offence if an order for his extended detention or his extended supervision is not made (“the unacceptable risk precondition”).

2. [8]

   Pursuant to s 18A of the CHRO Act, the Court has the power to make an IDO where it appears that:

3. [9]

   Section 10A of the CHRO Act provides a similar power for the making of an ISO.

The position of the defendant

1. [10]

   For the purposes of the preliminary hearing, the defendant, through his counsel, did not oppose an order for an IDO for a period of 28 days to date from the expiration of the non-parole period imposed for an assault committed against an inmate in custody, being 16 January 2020. Through his counsel he accepted that the statutory test for the making of an IDO is satisfied, that is, that the matters alleged in the supporting documentation relied upon by the Crown, if proved, would justify an order for a CDO or an ESO.

2. [11]

   Although the Court is obliged to satisfy itself that the statutory test in s 18A of the CHRO Act for the making of an IDO is met, the approach taken by the defendant means that the assessment of the risk that he will commit another serious offence of violence or another serious sex offence if not kept in detention or under supervision (the test to be applied in considering whether a CDO or an ESO should be made) and whether, on the assumption that the material facts in the supporting documentation are proved, a CDO or ESO would be made, can be dealt with in a summary way.

3. [12]

   In that regard I have been assisted by the consideration given by Button J to the application by the State for a CDO for a period of 12 months, an application which his Honour heard on 23 November 2018 and which was the subject of orders made on 7 December 2018 (see State of New South Wales v Russell [2018] NSWSC 1880).

4. [13]

   In particular, I have been greatly assisted by his Honour’s rendition of the defendant’s background and his antecedents, the views of the sentencing judges before whom the defendant has appeared, and the various matters to which his Honour was obliged to have regard under ss 17(4)(h) and (h1) of the CHRO Act when determining to impose a CDO. They are set out in full below. They are also matters to which I am obliged to have regard in these proceedings, although not to the same level of detail given the approach the defendant has taken to the application for an IDO and related orders at the preliminary hearing.

5. [14]

   At [1]–[31] of the decision, his Honour noted the following:

6. [15]

   I have also been assisted by his Honour’s treatment of the reports of 5 November 2018 furnished by Dr Furst and Mr Watson-Munro (separately exhibited in the proceedings before me) and the Risk Assessment Report of Mr Ardasinski of 16 March 2018 (also separately tendered) in which they each determined the defendant to be in a high risk category of reoffending violently and sexually even if under extended supervision. Mr Ardasinski considered that the defendant’s position within a high risk category of future offending was due to a number of factors, including: his personality disorder and his presentation with a large number of psychopathic traits; his lack of remorse; his hostility towards women; his institutionalisation; his chronic alcohol use; and his poor response to supervision. His Honour also recorded that Mr Ardasinski found the defendant to be “relatively criminally versatile” and that his risk (of reoffending) remains “chronic”.

7. [16]

   For present purposes, I also note that Mr Ardasinski observed that the defendant’s offending appeared to be:

8. [17]

   Mr Ardasinski also observed that in the period leading up to the defendant’s release to parole in 2008 (shortly prior to the commission of the 2009 index offences), there were reports of sexually predatory behaviour towards younger inmates. Mr Ardasinski considered that this may have been indicative of an increasing level of sexual preoccupation in the lead up to sexual offending.

9. [18]

   Mr Ardasinski considered a number of actuarial and dynamic risk assessments. Based on those assessments, he considered that a number of dynamic factors were relevant to the defendant’s risk of sexual reoffending and his risk of violence. In summary, the factors are as follows:

10. [19]

    Mr Ardasinski concluded that the defendant was in the high risk category for both sexual offending and violence. He considered that the most likely scenario for sexual offending would involve forced sexual intercourse against a known female acquaintance or intimate partner (possibly after physical violence), and noted that it may involve the use of a weapon. He considered the likely motivation to be sexual gratification/release, or that it may proceed from a domestic dispute in relation to which the defendant perceives a slight or feels rejected. Mr Ardasinski also outlined a potential scenario in which the defendant finds a vulnerable teenage victim who is able to be coerced into sexual contact without the need for physical coercion (such as in the 2008 sexual offences).

11. [20]

    Mr Ardasinski considered that, given the 2008 conviction for penetrative sexual activity with a teenage victim, it was “possible” that any future sexual violence could approach the threshold of a serious sexual offence. He noted that whilst the defendant had no convictions for “serious violence” since 1990, his potential for aggression within the context of his sexual offending and independent of it has yet to be adequately addressed.

12. [21]

    At the time of the preparation of the Risk Assessment Report tendered in the proceedings before Button J, the defendant had recently accepted a place on the custody-based intensive therapy (“CUBIT”) program. Mr Ardasinski considered that a short CDO may allow completion of the program and, in that way, a means of assessing whether the defendant had addressed his sexual offending in a meaningful and constructive way. Subsequent events have proved otherwise.

13. [22]

    In determining the State’s application for a CDO, Button J made the following findings:

14. [23]

    Following the imposition of the CDO the defendant returned to the CUBIT program (now referred to as the High Intensity Sex Offenders Program - “HISOP”). After a period of monitoring he recommenced on 15 February 2019, at which time he was subject to a behaviour management plan. On 21 March 2019 the defendant committed his most recent offence, assaulting another participant of the program. He was subsequently removed from the program and transferred to another wing, although he remains eligible to undertake the program if he were to make a new referral.

15. [24]

    Since that time, the defendant has made it clear to CSNSW that he is unwilling to undertake the program and unwilling to engage with psychological services. His intransigence was manifest by his behaviour in the preliminary hearing where he repeatedly interrupted the evidence of Ms Matsuo by declaring he would not engage with either the HISOP or VOTP programs. I have no confidence that the defendant will meaningfully engage in one-on-one psychological counselling, even if he were considered a candidate for that form of treatment which, given the limited resources for counselling of that kind within the prison system, is unlikely without a demonstrable change in the defendant’s attitude and a willingness to abide by protocols set by treatment providers.

16. [25]

    The Supplementary Risk Assessment Report, prepared by Mr Ardasinski in July 2019 for the purpose of these proceedings, was compiled without the defendant’s cooperation. He refused to sign the relevant consent form and indicated verbally and by his conduct that he had no wish to participate in any psychological interview and would not consider a referral to any custody-based sex offender programs in the future.

17. [26]

    The defendant refused to be interviewed for the purposes of the report. His attitude has not changed since that time. Accordingly, the supplementary report was prepared using what were described as “file materials alone”, including the defendant’s CSNSW case file which included the Offender Integrated Management System electronic case notes (“OIMS”). Particular emphasis was placed on the information collated in those materials since the earlier Risk Assessment Report prepared for the proceedings before Button J. It is unnecessary to set out the additional secondary materials to which Mr Ardasinski had access. It is also unnecessary to set out in detail the content of the supplementary report, save as to note that, in Mr Ardasinski’s assessment the defendant presents with the same level of risk of reoffending in a serious sexual or serious violent way in 2019 as he did in 2018. It is necessary, however, on this application, to consider the impact of the defendant’s lack of participation and compliance with the treatment programs.

18. [27]

    Mr Ardasinski observed that:

19. [28]

    I also note the following comments extracted from the Executive Summary to the report:

The cross-examination of Ms Matsuo and Ms Grabham

1. [29]

   Counsel for the defendant accepted in final submissions that Ms Matsuo’s evidence was intended to elaborate upon the custody-based treatment options currently available to the defendant in light of the very limited progress he has made to date in the treatment programs that it was anticipated he would participate in and benefit from over the course of the 12-month CDO imposed by Button J in December 2018.

2. [30]

   The cross-examination of Ms Matsuo focused, in particular, on the High Intensity Sex Offenders Program (HISOP), a program delivered to inmates by CSNSW specialist psychologists in a group therapy format where participants reside in self-contained units comprising what was described as “a modified therapeutic community” designed to address the risk of future serious sex offending. As noted above, the defendant commenced that program in May 2018, and was enrolled at the time of the final hearing before Button J in November 2018 when his Honour made an order for his continued detention for a period of 12 months. By the time final orders were made on 7 December 2018, the defendant had been suspended from that program.

3. [31]

   On 15 February 2019, the defendant recommenced the program subject to a behaviour management plan. However, he was excluded from continued participation on 21 March 2019 due to the physical violence he inflicted against another participating inmate.

4. [32]

   Despite the defendant’s categorical unwillingness to be considered for reintroduction into the program and an unwillingness generally to engage with psychological services (a position he has made clear in the Supplementary Risk Assessment Report prepared by Mr Ardasinski, and a position he volunteered from the AVL suite at Junee Correctional Centre during the course of the preliminary hearing in repeated interruptions in the course of Ms Matsuo’s evidence), Ms Matsuo was invited to comment upon other custody-based treatment alternatives for offenders assessed to be in the moderate to high risk category of committing serious offences of violence, including the Violent Offenders Treatment Program and the EQUIPS suite of programs. To the extent that the defendant was willing to participate in treatment programs in the future, and that CSNSW regarded him as suitable for inclusion, given persisting questions concerning the risk of a repetition of violence towards other participants or program coordinators and the defendant’s generalised attitudes of defiance and belligerence, Ms Matsuo was also invited to comment on the likely duration of those programs.

5. [33]

   Ms Grabham’s evidence was directed to the availability of community-based programs and accommodation options in the event that at the final hearing of the Summons the Court was satisfied that an ESO could adequately manage the risk of the defendant committing a further serious sex offence or offence of violence.

6. [34]

   The evidence of both witnesses was of marginal relevance at the preliminary hearing given the attitude of the defendant, through his counsel, that the making of an IDO is not opposed. For that reason, it is not necessary to refer further to their evidence for the purposes of the question of whether interim orders should be made. Their evidence will, however, be relevant to the issues that are likely to present at the final hearing of the Summons.

Consideration

1. [35]

   Taking into account the balance of the matters set out in s 17(4) of the CHRO Act to which I am obliged to have regard, albeit in a qualified way for the purposes of the preliminary hearing, I emphasise that the defendant’s compliance with custodial protocols and rules whilst subject to the continuing detention order imposed by Button J and his poor participation in custody-based programs is such that, as Mr Ardasinski observed, little can be said to have moderated an assessed high risk of the defendant’s future sexual and violent offending.

2. [36]

   Having regard to Mr Ardasinski’s report read more broadly, it seems to me to follow that there are presently no reasonable or practical means for the defendant to be managed in the community given his repeated problematic behaviours, his unpredictable and explosive interactions with staff and other inmates and his limited progress in treatment programs which are specifically designed, not only to address his risk of violent or sexual reoffending but, more generally, to address his personality and behavioural disorders.

3. [37]

   The question for determination in the preliminary hearing is whether, if the matters in the supporting documents are proved, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sex offence or another serious offence of violence if not kept in detention or under supervision under the CHRO Act. I accept that it is not for the Court to assess the weight of the supporting documentation bearing on that question, or to seek to predict the outcome of the proceedings for final orders. Rather, the Court is to engage in an evaluative exercise taking into account all of the supporting documentation and, on the assumption that the facts alleged in the supporting documentation are proved, to determine whether those facts would justify the making of a CDO or, in the alternative, an ESO.

Determination

1. [38]

   I am satisfied that the State has identified a complex of facts and circumstances in the supporting documentation which, if proved, would lead to a conclusion that the making of either a CDO or an ESO is justified. I am further satisfied that those assumed facts and circumstances establish, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious sex offence or a serious offence of violence if not detained or supervised under the CHRO Act, such that the interim orders for his continuing detention should be made with allied orders for his further examination by nominated experts.

2. [39]

   In undertaking that evaluative assessment, I have given paramount consideration to the protection and safety of the community from the dangers posed by serious sex offenders and serious violence offenders who are assessed at a high risk of inflicting serious sex offences or offences of violence. In exercising the discretion in s 18A of the CHRO Act in favour of making an interim detention order, I am well persuaded not simply that an unacceptable risk of that kind will manifest if the defendant is not subject to continued detention, but that there is a risk of serious harm to others were those orders not made.

Orders

1. [40]

   Accordingly, I make the following orders:

   1. (1)

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

   2. (2)

      Pursuant to s 18A of the Act the defendant is to be subject to an interim detention order for a period of 28 days to date from 16 January 2020.

   3. (3)

      Pursuant to s 20(1) of the Act the Court issues 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. (4)

      Access to the Supreme 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.