State of New South Wales v JC (No 3)

1. [1]

   By way of notice of motion dated 31 August 2017 filed in court on 1 September 2017, the State of New South Wales (“the Plaintiff”) seeks orders against JC (“the Defendant”), including an order pursuant to s 18A of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that the Defendant be detained under an interim detention order (“IDO”) from 1 September 2017 for a period of 28 days.

2. [2]

   The notice of motion also seeks amendments to an extended supervision order (“ESO”) made by his Honour Justice Davies on 8 September 2011 by the addition of six conditions and an amendment to one of the existing conditions.

3. [3]

   The application is urgent because the Defendant’s sentence expired on 28 August 2017 and he is in custody pursuant to an emergency detention order (“EDO”) made by Adamson J on 28 August 2017, due to expire at 3:05 pm, 1 September 2017.

4. [4]

   These proceedings were commenced by way of a Summons filed on 7 August 2017 seeking, amongst other orders, an IDO and a continuing detention order (“CDO”) of 12 months.

5. [5]

   Adamson J heard that application on 23 August 2017, and on 24 August made ancillary orders regarding medical examinations pursuant to s 15(4) of the Act but refused the application for an IDO. Her Honour noted that the ESO made by Davies J in 2011 would become operative on the Defendant’s release on 28 August 2017.

6. [6]

   The matter was stood over to 9:00 am on Friday 1 September 2017 “for the hearing of any further application or for directions, as the case may be”.

7. [7]

   It was not until 12:32 pm on 31 August that the Plaintiff served the Defendant’s legal representatives with the proposed notice of motion. The further affidavits in support of that notice of motion were served at 3:02 pm, and the written submissions at 5:06 pm.

8. [8]

   Concern was raised by the solicitor for the Defendant that the provision of the material so late did not give sufficient time for the substance of the application and evidence to be discussed with the Defendant, nor was it reasonable to expect instructions in response to it to be able to be obtained before the hearing listed for 9:00 am the following morning.

9. [9]

   Despite this late service, counsel for the Defendant prepared a helpful outline of submissions and, subject to confirmatory instructions, narrowed the issues for consideration.

10. [10]

    The Defendant’s primary position was that the Court does not have jurisdiction to hear a further application for an IDO, given that Adamson J declined to make an IDO on 24 August 2017. In the alternative, if the Court is of the view that there is jurisdiction to consider a further IDO application, the Defendant sought further time to obtain detailed instructions from the Defendant (given his developmental delay) and to prepare for hearing. It was submitted that proper hearing of the merits of the application for an IDO may well require cross-examination of the deponents of the affidavits, and detailed consideration of the submissions.

11. [11]

    Given the concessions made on the Defendant’s behalf on 23 August which counsel for the Defendant informed the court were maintained for the purposes of this preliminary hearing, namely:

12. [12]

    For the reasons set out in this judgment, I made an IDO for a period of 5 days commencing at 3:05 pm on Friday 1 September 2017 and expiring at 3:00 pm on Wednesday 6 September 2017. I set the matter down for further hearing before me at 10:00 am on Tuesday 5 September 2017.

Evidence tendered in support of the notice of motion filed in court on 1 September 2017

1. [13]

   Further affidavits were tendered by the Plaintiff in support of its notice of motion as follows:

2. [14]

   Reliance was also placed upon the following affidavits and material that had been tendered on the earlier application:

3. [15]

   In relation to the tender of the new affidavits, the Defendant reserved his position but had no objection to me reading those for the purposes of determining the necessary matters relevant to the short IDO and to determine the question of the Court’s jurisdiction to entertain a further IDO application.

Relevant legislation

1. [16]

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

2. [17]

   Section 13B provides that an application for a CDO may only be made in respect of a detained sex offender or a supervised sex offender. The initial application by way of summons was filed on 7 August 2017, and at that time the Defendant was a detained sex offender in custody serving a sentence for serious sex offences.

3. [18]

   Section 14 makes provision for the documentary requirements with respect to an application for a CDO and s 15 sets out the pre-trial procedures, including the requirement that psychiatric and/or psychological examinations be appointed (subs (4)) if the supporting documentation would if proved justify the making of a CDO. (These orders for examinations were made by Adamson J on 24 August 2017).

4. [19]

   Section 17 relevantly provides:

5. [20]

   As observed by Adamson J in State of New South Wales v JC (No 1) [2017] NSWSC 1126 at [44], it is necessary to briefly survey the requirements of s 17(4) to the extent relevantly applicable to be satisfied that there are bases established, if proven at final hearing, to make a CDO.

6. [21]

   It is worth noting for the purposes of the argument regarding jurisdiction to entertain a further application for IDO that s 17(4)(k) clearly contemplates an application being made for a CDO in circumstances where it becomes apparent that adequate supervision cannot be provided under an ESO or ISO.

7. [22]

   Section 18A relevantly provides:

8. [23]

   Section 19 provides that any detention order may be varied or revoked:

Background facts

1. [24]

   The Defendant was born in 1986 into an extremely dysfunctional family where he was exposed to a culture of continuous sexual abuse. In 2007, he was convicted of an offence under the Crimes Act 1900 (NSW) s 66A, which qualifies as a serious sex offence for the purposes of the Act s 5. He was sentenced on 19 June 2007 to 4 years imprisonment and was released on 18 June 2011. Between April 2011 and August 2013, the Defendant was released initially on parole and subsequently to be managed under an ESO made by Justice Davies on 1 September 2011. Pursuant to arrangements set up and managed by the Community Justice Project (“CJP”), he lived at a place called Mercy Centre, and was provided with comprehensive 24-hour line of sight supervision.

2. [25]

   In July 2013, the Defendant wrote a letter to his therapist which contained multiple admissions of sexual assaults he had committed when he was a child. These details were provided to the police and, on 29 August 2013, he was taken into custody in relation to those charges, some of which he admitted and others which he denied but were, after police investigation, found to be true.

3. [26]

   He also provided a journal to his therapist on 31 July 2013 which set out in numbered paragraphs in addition to details of sexual assaults he had committed, thoughts about sexually assaulting particular people, mainly children, and some identified adults, “killing and raping little girls and boys” and killing and eating particular identified children and adults. There are sixty-seven “thoughts about sexually assaulting people”. Here are four examples:

4. [27]

   In August 2013, the CJP that had been managing the supervision of the Defendant advised Corrective Services that it proposed to withdraw provision of accommodation to the Defendant because of what he had written and the risk to staff, but his arrest intervened and the Defendant has been in custody since that time.

5. [28]

   There were various opinions placed before the sentencing Judge in August 2015 that are relevant. Mr Sheehan, Senior Forensic Psychologist stated in his report dated 6 August 2013:

6. [29]

   Subsequent to Mr Sheehan’s report, there was a pre-sentence report prepared by Sean Herford dated 8 February 2014. Mr Herford observed this in relation to the Defendant’s ability to obtain benefit from rehabilitation and treatment:

7. [30]

   More contemporaneous to the sentencing and of particular concern to the sentencing Judge was the report of a psychologist, Dr Kate Seidler, dated 15 February 2015, which stated:

8. [31]

   The Defendant, in effect, pleaded guilty to all charged offences and was sentenced on 24 August 2015 by Judge Toner QC for an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years. A number of the offences qualify as “serious sex offences” for the purpose of s 5 of the Act. The sentencing Judge found that the Defendant had significant mental disabilities, porphyria and paedophilia. The sentencing Judge expressed significant reservations about the ability of the Defendant to be rehabilitated given his psychiatric conditions.

9. [32]

   Since August 2015 the Defendant has remained in custody. He has attended some programs with limited progress, but there is little available in custody for him to suit his complex needs according to Dr Ardasinsky. He has not offended whilst in custody.

Affidavit evidence relied upon in support of notice of motion

1. [33]

   This affidavit, affirmed by the solicitor with carriage of the matter on behalf of the Plaintiff, exhibits various formal notices and extracts from documents obtained in response to s 25 notices to Corrective Services, Family and Community Services, Justice Health, New South Wales Police, Office of the Children’s Guardian, Office of the Director of Public Prosecutions, Serious Offenders Review Council, State Parole Authority, and Victims’ Services.

2. [34]

   Within that exhibit, OIMS case notes make various references to consultations with “the psychiatrist” or “a psychiatrist” which shows at different times the Defendant has been commenced on medication. For example, in June 2016, he was placed on Olanzapine (5 mg, twice daily) for intrusive thoughts, and also Fluoxetine. There is also mention in the notes that antilibininal therapy has been determined to be inappropriate given the Defendant’s psychiatric co-morbidities, in particular his OCD.

3. [35]

   Ms Matsuo is a registered psychologist who is currently Director of Statewide Programs, with Corrective Services New South Wales. She deposes to the exigencies of the risk assessment conducted of the Defendant, the appropriateness or otherwise of placing the defendant in a COSP (“Community Offender Support Program”) and the risk he poses to other residents in such a setting, a possible treatment plan, and risks associated with the defendant being placed in accommodation with adults who have been victims of previous sexual violence, given his propensity to articulate his fantasies of sexual abuse of children.

4. [36]

   Ms Langdon is the unit leader of the ESO Team. She deposes to the fact that to her knowledge, there has no suitable post-release accommodation for the Defendant as at 6 August, and outlines her review of relevant parts of concern within the OIMS notes and the history of accommodation with CJP Mercy Centre in Coffs Harbour. She deposes to efforts as early as 2014 to source appropriate accommodation for the Defendant’s release from custody. Accommodation assessed included the Defendant’s mother’s home which was assessed to be unsuitable. A particular proposed accommodation in Tarlo was also assessed and found to be unsuitable due to its lack of security and other identified factors.

5. [37]

   In June 2017, the Defendant was assessed by Dr Ardasinski, Forensic Psychologist, who prepared a report dated 26 June 2017. In that report, addressing in particular the risks associated with the Defendant, Mr Ardasinski concludes:

6. [38]

   Dr Ardasinski concluded that JC’s risk scenarios ultimately revolve around his contact with children, given he has groomed victims in the past, with the risk highest with female children aged 5 to 12. Dr Ardasinski concluded that JC continues to fall in the high-risk category of sexual and other criminal offending relative to other adult male sexual offenders and thus, given the offending has involved hands-on offending against young children, it appears likely that any future sexual violence would approach the threshold of a serious sexual offence as defined in the Act.

7. [39]

   Dr Ardasinski referred to some internal mechanisms that have been exhibited by JC to avoid risky situations and that he has capacity to leave a situation if he perceives there is a risk that he would be left alone with a child placing him in breach of his ESO. He has developed some unsophisticated strategies for managing deviant arousal, for instance, covering his head with a jacket when driving past a school in order not to see young children about whom he can fantasise.

8. [40]

   Mr Frize is the Manager of Clinical and Case Management Services for the CJP. His affidavit is significant in its outline of the process of obtaining suitable accommodation options for clients of the CJP and his analysis of each of the accommodation options and the reasons why none are suitable and or available for the defendant as at the time the affidavit was sworn, on 1 September 2017. He concluded that CJP would not be able to offer any accommodation as unsuitable for the Defendant, and the most that could be provided was emergency accommodation operated by Housing NSW with CJP “possibly providing some drop-in support”.

9. [41]

   Ms McCaroll is the current Manager of the Metropolitan ESO Team. She sets out her background and her responsibility for the operational approval of accommodation for the Defendant should he be the subject of an ESO. She deposes to having reviewed Mr Ardasinki’s risk assessment report, and in light of that, assessed the adequacy of a proposed COSP, a particular property, and emergency housing by Housing NSW. She concluded that there was none suitable and the latter would be an inappropriate option for Defendant, and that such an option would present a risk to the community that the Defendant would reoffend. She deposed to the fact that Corrective Services cannot provide 24-hour active supervision to offenders who are not in a correctional centre, and that it is not a function of the ESO team to provide 24-hour active supervision to offenders.

Jurisdiction to entertain a further application for an interim detention order

1. [42]

   The Defendant submitted that given Adamson J refused to make an IDO on 23 August 2017, it was impermissible to approach the Court with a further application for an IDO. It was submitted that the proper avenue for relief is an appeal to the Court of Appeal pursuant to s 101 of the Supreme Court Act 1970 (NSW). The Act makes no provision for review or reconsideration of a refusal to grant an IDO and the Act envisages only a single preliminary hearing because of the language used in s 15 of the Act referring to “a” preliminary hearing and “the” preliminary hearing. It was submitted that the legislative scheme provides for the renewal of IDOs pursuant to s 18C(2), but not for multiple applications. This was contrasted with the provisions made in s 18CB for EDOs, where it is made clear that another EDO application can be made if there are altered circumstances, but there is no such provision regarding the making of a further IDO application because of altered circumstances.

2. [43]

   In response, the Plaintiff submitted that there was new material which showed altered circumstances which justified and supported an IDO being made and that this material was not available to Justice Adamson. There is no statutory preclusion to a further IDO application. The primary position of the Plaintiff is that this is a fresh IDO application and should be considered accordingly. There was no appeal from the decision of Justice Adamson because there was no error given the evidence she had before her at the time. The evidence of Mr Frize now available showed that the current position was that the Defendant could not be released on an ESO because there was no accommodation that was available presently that would provide the necessary level of vigilant 24-hour supervision.

3. [44]

   The structure of the legislation, and in particular the objects of the Act, indicate that primacy must be given to ensuring the safety and protection of the community from the risk presented to it by the release of high risk offenders. The structure of the legislation clearly contemplates that there will be circumstances where the risk to the community associated with high risk sex offenders (and high risk violent offenders) may change. Section 5D provides relevantly for CDOs for high risk sex offenders where the Supreme Court is satisfied that adequate supervision will not be provided by an ESO.

4. [45]

   As part of the machinery of the Act, and given the time delays associated with obtaining the necessary updated psychiatric and/or psychological evaluations, IDOs can be made pursuant to s 18A where, in proceedings on an application for a CDO, it appears to the Court:

5. [46]

   Section 17(4)(k) also clearly contemplates a situation where altered circumstances since the making of an ESO (or ISO) against the offender mean that adequate supervision cannot be provided under an ESO or an ISO, thus providing a relevant ground for pursuit of a CDO. Accordingly, there may be situations where, on the way to gathering relevant evidence so the Court can consider the making of a CDO because of changed circumstances, an IDO may have to be made.

6. [47]

   It is clear that the legislation is addressing the dynamic nature of an offender’s psychological or psychiatric state, their compliance with any obligations to which they are subjected, and information that becomes available regarding the likelihood the offender will commit serious offences of a sexual nature as predicated by the considerations set out in s 17.

7. [48]

   Section 18C, which deals with the term of an IDO, provides as follows:

8. [49]

   It is evident from that wording that so long as an IDO does not, including renewals, exceed a period of 3 months, there is no provision precluding the making of more than one application for an IDO. There is also clear provision in s 19(2) for the revocation or variation of an IDO so if suitable accommodation for an appropriate ESO does become available, an application can be made.

9. [50]

   I am satisfied that the Court has jurisdiction to entertain a further application for an IDO. There is no abuse of process associated with the making of the further application. Further affidavit evidence that was not available upon the application made and determined by Justice Adamson on 24 August 2017 has been tendered and it is consistent with the legislative scheme that I make a determination based on all the evidence before me on 1 September 2017.

Discretion to make an interim detention order for a high risk sex offender

1. [51]

   Section 18A provides the discretion to make an order for the interim detention of an offender if certain criteria are met. Counsel for the Defendant conceded that for the purposes of a short term IDO, the criteria in s 18A are met. There still remains however a discretion to make or refuse to make such an order.

2. [52]

   I am persuaded by the material set out in paragraphs [25] to [41] of this judgment that it is appropriate to make an order for the interim detention of the Defendant for 5 days. Not only is there, as evidenced in the affidavit of Mr Frize, a lack of suitable identified accommodation, but I do not have before me any current psychiatric assessments that would assist me in determining the current risks of the Defendant acting upon any of the thoughts and preoccupations he has articulated in the past regarding the abduction and sexual assault of small children, the “raping” of girls and boys and female staff members, the killing and having sexual intercourse with various identified persons, and what, if anything, can currently be done to assist the Defendant undertake rehabilitation that will have any effect on his proclivities. In the past, the Defendant has acted opportunistically to sexually assault small children both known and unknown to him.

3. [53]

   The thorough report of Dr Ardasinski from June 2017 highlights the difficulties presented by the combination of the Defendant’s intellectual disabilities, psychiatric disorders, and the complexities associated with his supervision needs.

4. [54]

   Given the primary object of the Act is to “provide for the extended supervision and continuing detention of high risk sex offenders … so as to ensure the safety and protection of the community”, it appears to me that on the evidence available as at 1 September 2017 those objects are served by the granting of an IDO.

5. [55]

   This should not be taken as an indication that I or any other judicial officer will necessarily make further IDOs, nor does this dictate the ultimate outcome of the CDO application filed on 7 August 2017. The affidavit of Mr Frize is to the effect that accommodation availability is a dynamic matter and availability of a suitable place can change. It does not appear to be a situation of priority based on release or ESO date. Accordingly, the Plaintiff has an obligation to continue to pursue suitable supervised accommodation for the Defendant.

   1. (1)

      Pursuant to s 18A of the Crimes (High Risk Offenders) Act 2006, the Defendant be detained under an interim detention order from 1 September 2017 for a period of 5 days to Wednesday 6 September 2017 at 3:00 pm.

   2. (2)

      Pursuant to s 20(1) of the Act, that the Court issue a warrant for the committal of the Defendant to a correctional centre for the duration of the interim order referred to in paragraph (1) above.

   3. (3)

      I stand the plaintiff’s notice of motion over to Tuesday 5 September 2017 at 10:00 am for further hearing before me.

   4. (4)

      Access is not to be granted to the Court file except with leave from a judge of this Court, and following prior notice to the parties to enable each of them to be heard in respect of any such application.

   5. (5)

      The defendant in these proceedings is not to be identified by name pursuant to the requirements and protections afford to victims of various offences by virtue of s 15A(1)(c) of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act.