State of New South Wales v Dickson (Final)

1. [1]

   HER HONOUR: By summons filed on 19 July 2019 and amended on 13 August 2019 the State of New South Wales (“the State”) sought, against Kenneth Dickson, orders of various kinds under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The orders sought in the amended summons include interlocutory orders under s 7(4) of the Act, interim orders under ss 10A, 10C and 11 of the Act, final orders under ss 5B, 9(1)(a) and 11 of the Act, and “other orders”. Interlocutory orders and interim orders of the kind sought have been made by Johnson J on 27 August 2019: State of New South Wales v Dickson (Preliminary) [2019] NSWSC 1116. Pursuant to s 10C(2) renewal of the interim orders has been made by Bellew J on 19 September 2019 and 17 October 2019. Those orders expired on 19 November 2019.

2. [2]

   What remained for determination was the State’s application for final and other orders. The orders sought are:

3. [3]

   The application was listed for hearing on 15 November 2019. At the conclusion of the hearing, I made orders in accordance with prayer 3(a) and (b) of the amended summons, and noted the “order” in prayer 4. It remains to explain why I did so.

4. [4]

   It is convenient here to set out the relevant legislation, all of which is contained in the Act.

5. [5]

   The objects of the Act are stated in s 3 as follows:

6. [6]

   “Offender” is defined in s 4A as a person who:

7. [7]

   “Serious offence” is defined in s 4 as:

8. [8]

   A “serious sex offence” is defined in s 5, relevantly to include offences under Pt 3, Div 10 of the Crimes Act 1900 (NSW) (which relate to sexual offences against adults and children) where the offence is punishable by imprisonment for 7 years or more (s 5(1)(a)(i)).

9. [9]

   A “serious violence offence” is defined in s 5A to include a serious indictable offence constituted by a person engaging in conduct that causes grievous bodily harm with the intention of causing, or being reckless as to causing, grievous bodily harm to another person (s 5A(1)(a)).

10. [10]

    By s 5H the State may apply to this Court for an extended supervision order (“ESO”) against an offender. By s 5I such an application may be made only in respect of a supervised offender. A “supervised offender” is, relevantly, an offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for a serious offence or for an offence of a sexual nature.

11. [11]

    By s 6 an application for an ESO may not be made until the last 9 months of the offender’s current custody or supervision and must be supported by documentation that addresses certain matters identified in s 9(3), to which I will come, and includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence.

12. [12]

    The operative provision is s 5B which provides:

13. [13]

    Section 7 relevantly provides:

14. [14]

    By s 9(1) the Court may determine an application for an ESO by making such an order or by dismissing the application. By subs (2) of s 9, in determining whether or not to make an ESO the safety of the community must be the paramount consideration.

15. [15]

    Subsection (3) of s 9 sets out, non-exhaustively, matters to which the Court must have regard in determining whether or not to make an order. Those matters are:

16. [16]

    By s 10A the Court may make an order for the interim supervision of an offender if it appears that the offender’s current custody or supervision will expire before the proceedings are determined and that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. By subs 10C(1)(a) an interim order must expire not less than 28 days from the day on which it is made. By subs 10C(2) an interim supervision order may be renewed from time to time, but not so as to provide for the supervision of the offender under such an order for periods totalling more than 3 months.

17. [17]

    As indicated above, on 27 August 2019, pursuant to s 7(4) Johnson J ordered:

18. [18]

    In accordance with s 10C(2) the time during which the order made by Johnson J may be renewed would expire on 27 November 2019.

Background to the application

1. [19]

   Mr Dickson is now 35 years of age. He has a criminal history dating back to 2001, when he was 17. That history has been extensively set out in the judgment of Johnson J and I do not repeat it.

2. [20]

   On two separate occasions in 2005 (2 August and 13 September) he committed a series of offences, some of which were extremely serious. The details of those offences are also set out in the judgment of Johnson J which, again, I do not repeat. It is sufficient to note that they included:

3. [21]

   The events of 13 September 2005 gave rise to charges of:

4. [22]

   Mr Dickson was sentenced to imprisonment for 14 years commencing on 13 September 2005 and expiring on 12 September 2019 with a non-parole period of 10 years and 6 months expiring on 12 March 2016. He was released on parole on 27 June 2019.

5. [23]

   There is no issue that the formal requirements of the Act have been met. For example, the application was made on 19 July 2019 at a time when Mr Dickson was, within the meaning of s 5I(2), a “supervised offender”. That is because he was serving a sentence of imprisonment (although on parole) for offences of the kind referred to in s 5I (that is, a serious offence or an offence of a sexual nature). Nor is it in issue that the preconditions stated in s 5B(a)-(c) are met.

6. [24]

   Accordingly, pursuant to s 5B(d) the Court may make the orders sought if:

7. [25]

   “Unacceptable risk” is not defined in the Act. What is encompassed by the concept has been the subject of some consideration in the Common Law Division of this Court and of the Court of Appeal: see, for example, Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118; State of New South Wales v Pacey [2015] NSWSC 1983.

8. [26]

   In Thomas, R A Hulme J considered that the test would be satisfied if:

9. [27]

   That was cited with approval by Beazley P in Lynn.

10. [28]

    The evidence on which the State relies is voluminous and encompasses a considerable amount of history of Mr Dickson’s offences and his periods of incarceration. Much of the evidence was before Johnson J in the preliminary hearing, and an account of it can be found in that judgment. It was then, and remains, compelling evidence for the making of interim orders. It remains compelling evidence at the final hearing stage. Indeed, as will shortly appear, it is not in contest that the evidence satisfies the requirements of s 5B. Further evidence specifically with respect to the s 9 considerations is principally to be found in the two expert reports, of Dr Adam Martin, a forensic psychiatrist, and Ms Chelsey Dewson, a forensic psychologist, each of whom was appointed pursuant to the 27 August orders of Johnson J.

11. [29]

    Before turning to review those reports, I remind myself that the question to which my attention is directed is whether I ought to be satisfied “to a high degree of probability” that Mr Dickson poses “an unacceptable risk of committing another serious offence if not kept under supervision” under an ESO.

12. [30]

    Prior to those reports a number of psychologists in the service of the Department of Corrective Services had reported. These reports were in the preliminary material available to Johnson J. Dr Martin and Ms Dewson had regard to those reports. There is no inconsistency in the numerous opinions expressed.

13. [31]

    Both Dr Martin and Ms Dewson recorded similar histories taken from Mr Dickson. He is of Aboriginal descent. He grew up in a dysfunctional family marked by domestic violence, gambling and addiction to prescription medicine. He had been sexually abused by an aunt at the age of four, and again by another person at the age of seven. His school attendance was poor and he was in juvenile justice custody as an adolescent. His older brothers have been incarcerated. He himself has been guilty of domestic violence.

14. [32]

    He began consuming alcohol at about 12, frequently binge drinking. He began using illicit drugs at age 15, starting with cannabis and progressing to amphetamines, methylamphetamine and heroin.

15. [33]

    He has had some employment in the construction industry. Both Dr Martin and Ms Dewson commented positively on Mr Dickson’s engagement in the interviews.

16. [34]

    Dr Martin diagnosed substance use disorder which he considered to be “in relative remission in circumstances of control and supervision”. He considered Mr Dickson’s criminal history to be “consistent with anti-social personality disorder”, but did not diagnose a major mental illness.

17. [35]

    He concluded:

18. [36]

    Dr Martin nevertheless noted some “protective factors” including current relative stability.

19. [37]

    Before embarking on her “risk assessment” (which she considered to be “subject to several important limitations”), Ms Dewson sounded a note of caution. Predictions of some kinds of uncommon offending is difficult; actuarial risk assessments provide information about groups of individuals, but do not necessarily throw light on the future behaviour of any one individual; they are “limited to the data available and are bound by time”, can change as new information becomes available and all have “an appreciable level of error built into them”.

20. [38]

    Ms Dewson then reviewed previous risk assessments of Mr Dickson and made her own assessment. She concluded that Mr Dickson posed:

21. [39]

    Overall, Ms Dewson rated Mr Dickson as in “the moderate-high range for sexual and violent reoffending” (par 110). She concluded:

22. [40]

    Both Dr Martin and Ms Dewson considered that Mr Dickson’s risk could be managed in the community under an ESO.

23. [41]

    Prior to the hearing, an outline of submissions on behalf of Mr Dickson was forwarded to the Court. The submissions included concessions that:

24. [42]

    Under the heading “Unacceptable risk” it was submitted:

25. [43]

    Mr Dickson expressly did not challenge the appropriateness of the proposed conditions set out in the document, Schedule A to the amended summons.

26. [44]

    The Court is not bound by concessions made on behalf of a person in Mr Dickson’s position, and it is necessary that it be satisfied of the four s 5B requirements.

27. [45]

    Having read the material presented, I am satisfied that the concessions made by and on behalf of Mr Dickson were properly made. Even without those concessions, and in the absence of argument, I would have been satisfied that the orders sought by the State were appropriate.

28. [46]

    Accordingly, at the conclusion of the hearing, I made the following orders: