State of New South Wales v Rush (Preliminary)

1. [1]

   By Summons filed on 27 September 2018, the plaintiff, the State of New South Wales, seeks certain orders under the Crimes (High Risk Offenders) Act 2006 (“the HRO Act”) with respect to the defendant, Shayne Charles Rush.

2. [2]

   The defendant is currently on parole. He attended court and actively participated in proceedings by providing his counsel with instructions during the hearing.

3. [3]

   The application made by the plaintiff is for interim relief in accordance with orders 1 and 2 of its Summons. For the purposes of determining the application for interim relief, the court has to undertake a preliminary hearing in accordance with the HRO Act.

4. [4]

   Mr Aitken of counsel appears for the plaintiff and Ms Cook of counsel appears for the defendant. An affidavit of Kate Horman sworn 27 September 2018 was read in support of the application. Exhibited to that affidavit were two volumes of documents regarding the defendant’s offending that has led to this application, including a risk assessment report of Mr Ardasinski, psychologist and a risk management report of Ms Carden from DCS, the sentencing remarks of the various judges who have dealt with the previous offending, and parole reports.

5. [5]

   Counsel for the plaintiff and the defendant have furnished helpful written submissions. Ms Cook did not resist the interim relief sought in the Summons if the court is independently satisfied to the requisite standard that such orders should be made. No submission was made by the defendant that the court should not be so satisfied.

6. [6]

   The defendant did not oppose the making of the orders sought in paragraphs 1 and 2 of the Summons, however submissions were made concerning a number of the conditions the plaintiff sought as conditions of the interim supervision order (ISO). It reflects well on counsel for the parties that the area for disagreement has been narrowed to one issue only. That was in respect of condition number 28 regarding non association with children. After some helpful debate and proposed modification, that condition also was able to be the subject of agreement. I will return to that condition later in this judgment.

7. [7]

   I was greatly assisted by counsel’s approach to the issues, however the court is still required to form its own view as to whether the orders ought to be made in accordance with the provision of the HRO Act. Given the lack of opposition to the orders sought, whilst I need to explain the reasons for the orders which will be made, the Court is not required to give detailed reasons in respect to its analysis of each statutory factor.

Relevant provisions of HRO Act

1. [8]

   Section 7(3)-(5) of the HRO Act provides:

2. [9]

   For the purpose of assessing whether a s 7 order should be made, I am required to consider the matters contained in s 9 of the HRO Act:

3. [10]

   It is also necessary for the court to consider the requirements contained in s 5B of the HRO Act:

4. [11]

   Section 5I sets out threshold requirements that the court needs to consider at the preliminary hearing stage in respect of applications for an extended supervision order:

Threshold issues

1. [12]

   Statutory threshold requirements were conceded by counsel for the defendant and I am satisfied there was a proper basis for these concessions.

2. [13]

   There are a number of threshold requirements under ss 4A(a), 4A(b), 5I(2)(a)(i) and (ii) and 6(1) of the HRO Act. These concern formal matters concerning the timing of the application, the custodial status of the defendant at the time of the application, the age of the defendant (he is now 53 years old), the fact that the defendant has served a sentence of imprisonment following conviction for a serious offence in the form of a serious sex offence (here an offence contrary to s 61J of the Crimes Act 1900) and the fact that the defendant is a supervised offender within the meaning of the HRO Act, are all met here.

Some relevant legal principles

1. [14]

   I adopt the summary of the relevant principles to apply at preliminary hearing from the judgment of Johnson J in State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 at [20]-[25]:

Consideration of statutory factors under section 9(3) HRO Act

1. [15]

   I have considered the evidence adduced at the preliminary hearing by reference to the statutory factors contained in s 9(3) of the HRO Act. Given the defendant has conceded these requirements have in effect been met, I will briefly refer to key matters only.

Section 9(3)(h): Defendant’s criminal history and pattern of offending behaviour

1. [16]

   The defendant had a history of non-sexual offending both as a young person and into adulthood comprising thefts, break and enters and goods in custody as well as some violent offences in the nature of hindering police, malicious damage and assault. There were many driving offences spanning 1982 to 1997 including drink driving and negligent driving as well as one charge of possession of drugs in 1995.

2. [17]

   In addition to the index offending for which he was sentenced on 17 December 2010, the defendant was convicted for offences committed in September 1998. For those offences, he was sentenced on 19 October 1999 to nine years imprisonment. They involved a series of attacks on young girls in Wyong Shopping Plaza and a Gosford shopping centre. In respect of one of the offences, the defendant pleaded guilty. That plea related to his conduct on 2 September 1998 where he approached a nine year old girl dragged her by her school uniform into a fire escape, sexually assaulted her, threatened her that he would and punch her in the mouth, placed his hand across her mouth so she could not scream for help and then made her “squeeze” his penis until he ejaculated.

3. [18]

   The defendant pleaded not guilty to other charges relating to his conduct on 9 September 1998, but was found guilty by a jury. In essence, he raped a 13 year old girl in a toilet cubicle, threatened her and told her he had a knife and that he would stab her if she is not quiet.

4. [19]

   There was another charge taken into account on the Form 1 which involved the defendant masturbating in the presence of another child, a 10 year old female, in 1998. There were additional charges involving sexual attacks on two 12 year old girls in May 1998. However, he was found not guilty of those charges in October 1998. Whilst there is some authority to suggest that I can take into account charges not established in exercising my discretion under the HRO Act, I decline to do so here. There is ample evidence that activates my discretion in the form of the convictions for serious sex offending against children, including rape, as well as the risk assessments of the defendant carried out in July 2018.

5. [20]

   The index offending occurred in 1997 and involved three counts of aggravated sexual intercourse without consent, aggravated indecent assault and commit or incite acts of indecency (three counts) involving a 13 year old boy, whom the defendant randomly attacked and threatened violence if he did not do what the defendant said. The defendant was DNA matched in 2008, hence the late arrest and sentence for that offending.

6. [21]

   As observed by the sentencing judges in respect of all of the offending for which he was convicted, the defendant behaved in a way that was predatory, opportunistic and deliberately degrading of the children concerned.

Section 9(3)(e): Treatment or rehabilitation programs undertaken

1. [22]

   Whilst the defendant underwent the CUBIT program in custody and showed some improved cooperation later in his participation, observations were made about his impulsive nature, his limited consequential thinking, his poor understanding of boundaries, and limited self-awareness. He was reported on a number of occasions to have minimised the offending behaviour. He made assertions such as the 13 year old boy “exaggerated” what had happened, and that the boy “had not done anything he didn’t want to do”. He said that the female victims “were better off” because he had “made them more aware of life”. This was described by an assessing psychologist as a “cognitive distortion to justify his actions”.

2. [23]

   Of particular concern is the perception perpetuated by the defendant that the 13 year old boy had “sexed him”, showing a lack of insight into the predatory nature of his own behaviour and a lack of recognition of the unacceptable nature of his attacks.

Section 9(3)(c) and (d): Risk assessment reports undertaken

1. [24]

   Dr Ardasinski in his report of July 2018 noted that since release on parole in April 2017, the defendant had not formed any relationships or social connections. Because he has been in custody almost continually from 1999 to April 2017, it is difficult to predict what will happen. He identified that the defendant probably has a pre-existing sexual preoccupation with children. These matters, together with the history of offending, lead Dr Ardasinski to the view that the defendant is at a moderate to high risk of sexual re-offending.

Section 9(3)(f): Behaviour whilst on parole

1. [25]

   Whilst on parole (over the last 18 months) there have been no breaches. It appears that the containment associated with the conditions of parole has been protective, and hence the usefulness of close supervision with clear conditions, should continue for the protection of vulnerable young persons against potential random sexual attacks by the defendant.

Section 9(3)(d)(ii): Corrective Services Risk Management report

1. [26]

   The risk management report prepared by Ms Carden, Community Corrections Officer, dated 26 July 2018 set out a number of potential management strategies to address the defendant’s risk for sexual reoffending. She noted this risk to be well above average or “high” on the assessment of Luke Brabant, Psychologist, in June 2018. Risk factors were identified as anti-social lifestyle, drug use, hedonism, lack of direction, relationship and intimacy deficits, emotional loneliness, possible deviant sexual interest, impulsivity, poor problem-solving, personality factors and difficulty accepting feedback. Ms Carden outlined a risk management plan which included a number of strategies aimed at managing those risks. Those strategies have been largely incorporated into the series of conditions proposed by the plaintiff with the Summons and consistently with which I made the orders on 10 December 2018.

Determination

1. [27]

   I have had regard to the various statutory factors outlined in this judgment and the evidence which relates to them. The issue for the court at this stage is a threshold one involving the application of a prima facie test by reference to the evidence.

2. [28]

   I am completely satisfied that an ISO should be made in this case together with orders for a psychiatric and psychological examination. I have significant concern that the defendant may well engage in similar types of random sexual attacks upon young children. The evidence discloses that the risk of him committing this type of offence is moderate to high. The attacks are random, committed in public places accessible to children, and are associated with sudden violence and threats to the children concerned.

3. [29]

   The assessment of Mr Ardasinski places the defendant in the moderate to high risk category for future sexual offending. I am required pursuant to s 3(1)(b) of the HRO Act to provide for extended supervision of high risk sex offenders so as to ensure the safety and protection of the community. I am satisfied to the prima facie level, that on the evidence before the court there is real risk of the defendant committing a serious sex offence involving young, vulnerable children. This level of risk is likely to be ameliorated by a further lengthy period of supervision with stringent conditions and accordingly the interim or preliminary ISO should be made.

Conditions of the ISO

1. [30]

   Annexed to the Summons were a number of proposed conditions which had been discussed between the parties prior to the preliminary hearing.

2. [31]

   The remaining condition in issue was 28 which dealt with the important issue of “non-association with children”. The form of the condition proposed by the plaintiff was as follows:

3. [32]

   Ms Cook, counsel for the defendant, drew attention to the difficulties associated with that condition in circumstances where the defendant may well approach, for example, a cashier who is aged under 18 to purchase grocery items or may sit on a bus next to a young person, behaviour which might be considered by some DSOs or judicial officers to be “approach” or “contact”.

4. [33]

   Counsel for the defendant submitted (persuasively) that the form of wording adopted by Johnson J in State of New South Wales v BG [2018] NSWSC 1694 would be a more appropriate wording to allow the defendant to carry out simple activities such as purchasing groceries from a check-out or standing at a bus stop or catching public transport without running the risk of being in breach of his ISO conditions.

5. [34]

   After submissions, the form of wording adopted is as follows:

6. [35]

   In fixing this condition, I confirm that it is understood by the court (and should be understood by the DSO (Departmental Supervising Officer) and the defendant) that this condition is not intended to apply to a situation where for example the defendant gets on a train or bus and within that train or bus is a person under the age of 18, so long as the defendant does not approach or have contact with such a person. That means that he must not sit next to such a person he knows, or reasonably believes to be under 18, or stand in close proximity to such a person. He cannot approach or have contact with such persons. If he does so, he will be in breach of this condition. Whilst it is not practical to build that explanation into the form of the condition, I note these matters to assist in the practical enforcement of the condition. The defendant should be and remain aware that compliance with this aspect of his ISO is critical.

Conclusion

1. [36]

   I am satisfied that an ISO should be made in this case, together with an order for examination of the defendant by a psychiatrist and a psychologist and the other associated orders.

2. [37]

   I am satisfied that the conditions attached to the Summons including the re-framed condition 28 should be included as part of the ISO.

3. [38]

   I have nominated the commencement for the ISO as 24 March 2019 in the orders I made on 10 December 2018. There will not have been a final hearing by that date, and so the order is necessary. I have also listed the matter before me on 14 December 2018, at which time further clarity ought to be available as to the examination to be organised with the psychologist.

4. [39]

   I make the following orders:

   1. (1)

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

   2. (2)

      Pursuant to s 10A of the Act, the defendant is subject to an interim supervision order from 24 March 2019 and expiring on 21 April 2019.

   3. (3)

      Pursuant to s 11 of the Act, I direct that the defendant comply with the conditions set out in the Schedule annexed to the Summons in these proceedings noting that condition 28 has been modified to be worded as follows:

   4. (4)

      The matter is listed at 9:30 am on 14 December 2018 before Justice Lonergan for directions to set a timetable for final hearing.

   5. (5)

      Access to the Court’s file by a non-party in respect of any document shall not be granted without the prior notification by the Registrar of the Court to the parties of that non-party’s application for access, and such access will not be granted without the leave of a Justice of the Court.

   6. (6)

      Liberty to apply to relist the matter on one day’s notice to Lonergan J by email to her Associate or alternatively to the Duty Judge via the Duty Registrar if liberty to apply is sought during the Court vacation period, that is 15 December 2018 to 28 January 2019.