State of New South Wales v Wilmot (Final)

1. [1]

   By amended summons filed in court on 1 June 2023, the State of New South Wales seeks an order that the defendant, Wayne Wilmot, be placed on a continuing detention order (“CDO”) for a period of 12 months pursuant to s 5C of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). In the alternative, the State seeks that Mr Wilmot be placed on an extended supervision order (“ESO”) for a period of 5 years.

2. [2]

   The defendant is 50 years old and has been in custody for almost 33 years having been incarcerated since he was 15 years old, except for a short period of 1 year and 8 months in late 1996 to mid-1998.

3. [3]

   These proceedings are the second post-sentence proceedings brought against the defendant. At the time the proceedings were commenced, the defendant was subject to a 2 year CDO that I imposed on 24 September 2019: State of New South Wales v Wilmot (Final) [2019] NSWSC 1276. That CDO expired on 23 September 2021.

4. [4]

   On 17 September 2021, following a preliminary hearing, I imposed an interim detention order (“IDO”) for a period of 28 days: State of New South Wales v Wilmot (Preliminary) [2021] NSWSC 1189. On 9 September 2021, the defendant was charged with alleged sexual offending while in custody. From that date he was on remand pending determination of those charges and his IDO was suspended under s 18C(1A) of the Act.

5. [5]

   Those matters resolved on 10 March 2023 when the defendant was acquitted after two consecutive judge alone trials dealing with the separate charges. The IDO imposed on 17 September 2021 came into operation from 10 March 2023 to 7 April 2023. That IDO was extended twice, pending final hearing, to 10 June 2023, which is the maximum period provided under the Act.

6. [6]

   The defendant’s history of offending is set out in [34] to [53] of my judgment State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776:

7. [7]

   It should be noted that the context of some of the offending was whilst the defendant was given the benefit of parole and bail. On release to parole in October 1996, the defendant breached his parole by committing further offences. He robbed a female victim in August 1997 and assaulted another female victim in October 1997. When released on bail for that offending, he carried out two other very serious violent and sexual attacks on two young women, just weeks apart, in June 1998, leading to further sentences of imprisonment.

The Legislative Scheme

1. [8]

   The primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community: s 3(1). Another object is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation: s 3(2).

2. [9]

   The Court’s power to make a CDO is discretionary. Section 5C of the Act provides that the Court may make a CDO if four preconditions are made out. It is common ground that the following three preconditions are satisfied:

   1. (1)

      Mr Wilmot is an offender who is serving or who has served a sentence of imprisonment for a “serious offence” as defined in s 4 of the Act: s 5C(a).

   2. (2)

      Mr Wilmot is a “detained sex offender” within the meaning of s 13B of the Act: s 5C(b).

   3. (3)

      The present application has been made in accordance with s 13B of the Act: s 5C(c).

3. [10]

   The fourth condition under s 5C comprises the substantive test for consideration before this Court. It provides that in order to make a CDO, the Court must be “satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order”: s 5C(d).

4. [11]

   The defendant accepts (via his counsel) that test is met on the evidence tendered, that is, that the Court can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under an order: ss 5B(d); 5C(d). This acceptance is in my opinion the only sensible position that the defendant can take, given his criminal history and the views of the independent experts to which I will come to, and the very high level of supervision and support in the community that the defendant would require to be in place before he could even be considered for release on an ESO.

The evidence and final hearing

1. [12]

   The State tendered the following evidence:

   1. (1)

      Five affidavits of Sarah Najjar, solicitor, affirmed 26 July 2021, 26 August 2021, 14 September 2021, 28 April 2021 and 26 May 2023, annexing multiple volumes of reports and evidentiary material responsive to the s 17(4) factors that this Court is required to consider in determining the application;

   2. (2)

      An affidavit of Kelli Grabham, High Risk Offender’s Applications and Operations Governance Officer, affirmed 14 September 2021;

   3. (3)

      Two affidavits of Jessie Slattery-McDonald (Ms Grabham’s successor), affirmed 28 April 2023 and 26 May 2023;

   4. (4)

      Affidavit of Ryan Gaffney, “Project Coordinator, Co-existing Disorders Program,” affirmed 26 May 2023;

   5. (5)

      Affidavit of Sharryn Coe, Director of the ESO Team, affirmed 29 May 2023.

2. [13]

   Ms Coe was cross-examined by senior counsel for the defendant Mr Johnston SC. The effect of her answers was that steps were already in train to set up a potential plan for supervision of the defendant and that these steps could be completed in six months.

3. [14]

   A paginated collection of Offender Information Management System (“OIMS”) notes was separately tendered, as well as a bundle of emails containing efforts made by the plaintiff to secure accommodation for the defendant and responses.

4. [15]

   Two victim statements were also tendered on a confidential basis and received under s 21A of the Act. I have taken those statements into account. As I observed in 2019, statements of this kind provide a human face to the serious lifelong effect that the violent and sexual offending engaged in by the defendant has had on these victims. It is important and helpful in assisting to understand the gravity of the offending which in turn, informs the question of unacceptable risk.

5. [16]

   The defendant tendered two affidavits of the solicitor for the defendant, Hayley Le, affirmed 9 September 2021 and 30 May 2023 which annexed selected records from the OIMS notes.

6. [17]

   Two court appointed experts supplied reports: Dr Kerri Eagle, Forensic Psychiatrist dated 5 November 2021 and 23 May 2023, and Dr Sally McSwiggan, Consultant Neuropsychologist, dated 11 November 2021 and 23 May 2023.

7. [18]

   The evidence confirms that there is currently no available accommodation suitable for the defendant. In particular, both the Community Offender Support Program (“COSP”) and the Integrated Support Centre (“ISC”) have refused to accommodate the defendant, identifying, amongst other concerns, inadequate “wrap around support services”, and that he may assault vulnerable residents who have mental health issues or disabilities. [1] There are also exclusion zones [REDACTED] which has ruled out other agencies and accommodation options. Obviously it is essential these exclusion zones are protected.

8. [19]

   The State’s primary position is that the defendant is an unacceptable risk and a further 12 month period under a CDO remains necessary. This was expressed in the plaintiff’s written submissions as necessary to ensure that appropriate accommodation, community supports and supervision resources are available before there could be an acceptably safe release under an ESO, [2] but in oral submissions the position was clarified to confirm that the order is sought in furtherance of the primary object of the Act, that is, to ensure the safety and protection of the community: s 3(1).

9. [20]

   The level of supervision that would be required if the defendant was to be released on an ESO is set out in Ryan Gaffney’s affidavit:

10. [21]

    It seems to me that if “at least” two male staff members are required to directly supervise the defendant when he is outside the “supported accommodation”, surely the same needs apply within the accommodation to protect staff and other residents. It also begs the question of whether a person who requires that level of supervision is safe to release. Dr Parker, Psychologist, concluded in June 2021 that the risk scenario for the defendant appeared to be “any opportunity where a potential victim is alone and Mr Wilmot is unsupervised.”

11. [22]

    There are also pre-release requirements that would need to be met as set out at [17] to [18] of the affidavit of Sharryn Coe, Director of the ESO Team:

12. [23]

    Ms Coe’s answers in cross-examination modified her evidence to an extent to assert that the steps required to implement this re-integration could be done in six months, a slight shift from her affidavit evidence of a six month “minimum”. She stated that a meeting with “stakeholders” was taking place on 2 June 2023 to undertake further planning.

13. [24]

    In the written submissions filed 30 May 2023, counsel for the defendant contended that in exercising its discretion the Court should impose an ESO rather than a CDO. However through his counsel, Mr Johnston SC, during the hearing this position was modified to accept that a CDO would likely be imposed in the circumstances (i.e. no proper arrangement yet available and in place). Mr Johnston SC submitted however that any CDO should not exceed six months given Ms Coe’s oral evidence that arrangements could be in place within that timeframe. Mr Johnston SC submitted that the risk of fixing a CDO of 12 months length is that the “stakeholders” may not act sufficiently quickly to take the necessary steps and make the necessary arrangements, creating a situation where there is still no adequate plan in place in 12 months, due to loose timeframes.

Consideration

1. [25]

   In determining whether or not to make either a CDO or an ESO, the safety of the community is the paramount consideration: ss 17(2) and 3(1) of the Act. When determining an application, the Court may have regard to any matter it considers relevant, but must take into account matters set out at s 17(4)(b) to (i).

Section 17(4) mandatory factors

1. [26]

   Dr Eagle examined the defendant for the previous application for a CDO in July 2019 when she conducted an extensive review of records, assessed him over two hours and provided a very detailed report dated 9 August 2019. This was followed by a further report dated 5 November 2021 prepared in the context of the 2021 application that was suspended.

2. [27]

   In my final judgment in 2019, State of New South Wales v Wilmot (Final) [2019] NSWSC 1276, I summarised Dr Eagle’s key findings in her August 2019 report. The summary is provided for context in circumstances where Dr Eagle has confirmed in her May 2023 report that “little has changed since my previous reports”:

3. [28]

   On 28 October 2021, pursuant to orders I made as part of an IDO imposed on 17 September 2021, Dr Eagle conducted a one hour review by phone (not AVL), relevantly noting the following matters:

4. [29]

   On 16 May 2023 Dr Eagle conducted a 60 minute assessment of the defendant via audio-visual link (“AVL”). She was asked to provide a current assessment of the defendant’s risk of committing a further serious offence and whether her opinions expressed in her previous reports had changed. Dr Eagle set out the defendant’s current presentation, noting that he is currently housed in a one out (single) cell as an Extreme High Risk (EHR) inmate, which the defendant “preferred”. [3]

5. [30]

   Dr Eagle stated that the defendant has “demonstrated an ongoing lack of acceptance of responsibility for past actions” and “continued to display poor insight into the factors that might have resulted in his incarceration and may place him at risk in future”. [4]

6. [31]

   Dr Eagle referred to certain very recent entries in the OIMS notes that she viewed as a concern:

7. [32]

   Using the Static 99R, an actuarial risk assessment tool, Dr Eagle assessed the defendant as 9 (as he scored in 2019 and 2021), and concluded that he remains in the well above average risk category. [8] Dr Eagle noted that the average 5 year sexual recidivism rate for a person in that group is between 17.4% and 36.3%, 9 times out of 10. [9]

8. [33]

   Using the Stable 2007, another risk assessment tool, the defendant received a score of 15, down from 17 in the 2021 assessment. It is worth noting that in this assessment Dr Eagle recorded that the defendant “is guarded in his discussion of his interactions or potential interactions with women, but did not express any negative or stereotyped comments about women on this review, or in recent case notes”. [10]

9. [34]

   In relation to ‘Violent Re-offending’, Dr Eagle stated the following:

10. [35]

    Dr Eagle also noted that over the last six months, the defendant had demonstrated a “number of persistent clinical factors that have been found to be associated with violent offending including problems with insight into his behaviour and offending history; persistent cognitive, behavioural and emotional instability; and problems accepting and tolerating supervision”. [12] Dr Eagle noted that future problems with risk management factors have been associated with an increased risk of future violence, identifying the following:

11. [36]

    In terms of a ‘Risk Formulation,’ Dr Eagle stated that the defendant’s “risk formulation remains largely unchanged from previous reports”, [14] noting that:

12. [37]

    Dr Eagle’s current risk assessment of the defendant comprises the following:

13. [38]

    In November 2021 Dr McSwiggan reviewed the defendant by telephone as AVL review was not available due to the defendant refusing to cooperate with personal protective equipment (PPE) requirements related to COVID-19 risks. The following aspects of his self-account (and continuing lack of insight) were noted:

14. [39]

    Dr McSwiggan concluded:

15. [40]

    Dr McSwiggan conducted her most recent assessment via AVL on 12 May 2023 over almost two hours. She was asked to provide a current assessment of the defendant’s risk of committing a further serious offence and whether her opinions expressed in her previous reports had changed. [17]

16. [41]

    In relation to the defendant’s Static 99R and 2002R scores, Dr McSwiggan noted that his scores “were higher than 99.7% of routine samples of individuals charged or convicted of a sexual offence”. [18] Using the assessment Static 2002/R(BARR/200R, for testing of general criminality, Dr McSwiggan noted the following:

17. [42]

    Using the Violence Risk Appraisal Guide, Dr McSwiggan assessed the defendant’s risk rate to be in the high range of High. Using the Sex Offender Risk Appraisal Guide the defendant was also estimated to be in the high range of High. [20]

18. [43]

    Dr McSwiggan stated that supervision of the defendant will be problematic, noting that he “seriously offended after less than a year in the community around 20 years ago and that since being in custody, he has attracted [REDACTED] custodial infractions suggesting a pattern that may well be repeated”, [21] the “circumstances of his offending seemed to have minimal thought in it. His history is an opportunistic offender. Interventions during custody do not appear to have substantially shifted his attitudes and behaviours”. [22]

19. [44]

    Dr Parker, Psychologist, prepared a comprehensive risk assessment report in June 2021. He concluded:

20. [45]

    Pre 2021 psychological assessments were set out in my judgment, State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776 at [75] to [103]. These assessments cover 1999 to 2019. I recount that summary as it provides important diagnostic and other background relevant to the risk presented by the defendant due to his psychopathy and personality disorder:

21. [46]

    These statistical assessments have been covered above in my discussion of Dr Eagle and Dr McSwiggan’s reports and the various assessments set out in [45] of this judgment. In short, the defendant’s risk is in the highest range of sexual, violent and general recidivism.

22. [47]

    The affidavits of Ms Coe an Mr Gaffney make it clear the defendant’s risk cannot be managed in the community at this stage without appropriate supervised accommodation and the extensive “wrap around” services identified. These affidavits supersede the risk management report prepared in July 2021 by Ms Robinson.

23. [48]

    The situation as at 26 July 2019 was covered in my final judgment in 2019 at [59] to [60]:

24. [49]

    It appears to me on my reading of the more recent OIMS notes and other 2022/2023 material, staff are “working around” the defendant, leaving him alone and requiring nothing of him. An OIMS note dated 27 January 2022 stated: “Wayne has not completed any further programs or intervention activity refusing all suggestions of engagement…”. His AVL sessions with Ms Lau, Psychologist ceased in April 2022 after two years. The next one-on-one psychologist provided appears to have only conducted three sessions and no therapeutic relationship was established.

25. [50]

    Nothing has been identified other than one-on-one psychologist counselling and the more intensive steps set out in Ms Coe’s affidavit reproduced at [22] in this judgment. It remains to be seen whether the defendant will cooperate with those proposals.

26. [51]

    I have significant doubts that the defendant will cooperate. The defendant has repeatedly commented about what he will and will not accept. He has an unrealistic expectation that he and his lawyers can “negotiate” conditions to what the defendant thinks is acceptable. He also said to Ms Lau on 27 April 2021 that if the ESO is too strict, he “might run, because what’s the point”. He said something similar to Dr McSwiggan in September 2021.

27. [52]

    The defendant has not been on parole or released on any basis for 25 years. When last on parole and then bail, he committed four separate random violent attacks on four women and afterwards repeatedly denied or minimised these attacks as “consensual” or “misunderstandings”.

28. [53]

    This has been set out in [6] of this judgment. The pattern of offending is opportunistic, versatile, violent and without any insight or remorse despite years of incarceration programs and supportive counselling.

29. [54]

    This consideration was addressed in State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776 at [55] to [59] and that summary remains relevant:

Decision

1. [55]

   It was common ground that the material tendered by the plaintiff was sufficient to satisfy the Court to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention under the order.

2. [56]

   The alternative initially proposed by the defendant of an ESO of some unspecified length was not pressed at the hearing, Mr Johnston SC recognising, responsibly and appropriately, that there was no accommodation that would accept the defendant unless and until certain arrangements for extensive direct supervision and support were in place and so an ESO was out of the question.

3. [57]

   There is more work to be done by the State, but some of this preparation work requires the defendant’s cooperation.

4. [58]

   Rehabilitation is a two-way street. It requires effort and cooperation by the defendant, not a sitting back and criticising anything that does not suit him, or alternatively, becoming aggressive or walking out of sessions arranged to this end. This has been the defendant’s repeated behavioural pattern to date.

5. [59]

   The defendant seems to be under the seriously mistaken impression that he can dictate the terms of his release. He has declared that he will only cooperate with the NDIS or organisations that he apparently thinks he can manipulate and that are separate to the Department of Corrective Services.

6. [60]

   I accept that rehabilitation of an offender can facilitate protection of the public, but this defendant needs to recognise that he has to participate and cooperate in that rehabilitation. I acknowledge that the more recent OIMS notes often repeat as a daily report that the defendant is “compliant with unit routine” and “respectful towards segregation staff”. It seems however that whenever anything is required of him that he does not want to do, or does not agree with, that response changes dramatically and he becomes abusive and threatening.

7. [61]

   The OIMS notes and other notes and assessments over the years are replete with complaints by the defendant that “the system” is the problem, that Corrective Services did not alter his classification to the level he thinks it should have, and that the State has let him down because it is not ready to provide the intensive level of direct supervision the defendant would require before he could be considered for release on an ESO.

8. [62]

   The defendant needs to recognise that these difficulties were and are created by himself. They are a result of the nature and extent of his appalling offending and his violent, offensive and uncooperative behaviour in custody.

9. [63]

   I have not lost sight of the role of rehabilitation in the Act, but safety of the community is paramount, and that is why I have concluded that the order sought for a 1 year CDO should be made.

10. [64]

    The expert evidence remains unanimous that the defendant is insightless, remorseless, and his expectations of life on release are short-sighted and unrealistic.

11. [65]

    His attitudes regarding sex, women and consent are particularly troubling and entrenched and betray a very high risk of future serious sexual offending. In 2020 when discussing the issue of consent with his trusted psychologist Ms Lau, he stated that he believes people in the community do not actually obtain consent prior to engaging in sexual activities.

12. [66]

    I am not at all confident that the defendant will cooperate with the steps required of him as set out in the evidence of Ms Coe and Mr Gaffney. If he does not cooperate, this will cause delays. I am not at all confident the necessary steps and arrangements can be accomplished within 6 months, despite what Ms Coe ended up stating in cross-examination, even if the defendant does cooperate.

13. [67]

    However the task I am assigned under the Act is not to design the length of CDOs around how long is required to set up a hypothetically acceptable arrangement in the community so that the defendant’s release into that arrangement can be considered.

14. [68]

    The task is to consider the application made on the basis of the evidence tendered. That evidence supports to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sexual offence if not kept in detention under the order. The 12 month CDO sought by the Crown should be made.

15. [69]

    The defendant must recognise that he bears a high degree of ongoing responsibility for what will be the nature of the next application made by the State 12 months from now.

Orders

1. [70]

   I make the following orders:

   1. (1)

      Pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to a continuing detention order for a period of 1 year commencing 10 June 2023 and expiring on 9 June 2024.

   2. (2)

      Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) a warrant is to be issued for the committal of the defendant to a Correctional Centre for the purpose of order (1).