State of New South Wales v Russell

HIS HONOUR: By summons filed on 1 March 2021, the State of New South Wales seeks various orders pursuant to the Crimes (High Risk Offenders) Act 2006. Most recently, Cavanagh J made preliminary orders on 9 April 2021: see State of New South Wales v Russell (Preliminary) [2021] NSWSC 361. I will assume a familiarity with his Honour’s decision for present purposes. Moreover, in State of New South Wales v Russell (Preliminary) [2018] NSWSC 1396, State of New South Wales v Russell [2018] NSWSC 1880, State of New South Wales v Russell (Preliminary) [2019] NSWSC 1717 and State of New South Wales v Russell (Final) [2020] NSWSC 396, McCallum J, Button J, Fullerton J and N Adams J respectively dealt with similar applications for similar orders against Mr Russell. A familiarity with their Honours’ decisions in those matters, and the evidence upon which they have expressly relied, is also assumed for present purposes.

By way of final relief, the State now seeks the following orders:

In support of this application, the State relied upon the affidavits of Jessica Murty affirmed on 1 March, 25 March, 31 March and 20 May 2021, Angela Rybak affirmed on 14 May 2021 and Kelli Grabham affirmed 20 May 2021. The State also tendered Exhibit JM-1 to Ms Murty’s first affidavit. The State also relied upon the reports of Drs Richard Furst and Marcelo Rodriguez to which reference is made later in these reasons.

Before I can make an order for the continuing detention of Mr Russell, I must be satisfied of the four preconditions referred to in s 5C of the Act. Having regard to the evidence before me, it is not in contest, and I am otherwise satisfied that:

It is also necessary for me to be satisfied to a high degree of probability that Mr Russell poses an unacceptable risk of committing another serious offence if not kept in detention under an order. The evidence touching this consideration is voluminous. The weight of opinion is predominantly all to the same effect.

For example, Dr Richard Furst, a forensic psychiatrist, in his report to the Court dated 26 May 2021, considered that Mr Russell was placed “in a group of individuals considered to be at high risk for causing serious physical harm to others”. Dr Furst said this:

Dr Furst was asked for his opinion, based on the view that Mr Russell posed a risk of committing a serious offence that could not be managed in the community, about what he considered to be the appropriate duration of any continuing detention order that should be imposed, having regard to the maximum term of 5 years for which the Act provides. Dr Furst said this:

The other opinion provided to the Court following upon the orders made by Cavanagh J was that from Dr Marcelo Rodriguez, psychologist, dated 21 May 2021. Dr Rodriguez took a slightly less conservative approach than Dr Furst. Dr Rodriguez considered that if a continuing detention order were to be made, it should be for an initial period of one year, subject in effect to review thereafter having regard to Mr Russell’s success, or otherwise, in completing the HISOP and RUSH programs in which he is currently enrolled. He said this:

Significantly, and helpfully in the present context, Dr Rodriguez offered the following opinion concerning how the completion of any treatment Mr Russell may receive if subject to a continuing detention order might affect his future risk of committing a serious offence:

It is a fair summary of these opinions that Dr Furst considers that Mr Russell will not be suitable for even a supervised return to the community without the risk of serious re-offending within five years at least and Dr Rodriguez is of the view that any consideration of Mr Russell returning to the community under an extended supervision order cannot presently be reliably assessed unless or until his further programs have been successfully completed.

In determining whether or not to make a continuing detention order or an extended supervision order, the safety of the community must be the paramount consideration: s 17(2) of the Act. Moreover, I must have regard to the matters referred to in s 17(4) of the Act. Importantly, s 17(4)(b) and (c) draw particular attention to the need for me to have regard to opinions such as those from Drs Furst and Rodriguez to which I have already referred. Having regard to these matters, I am satisfied to a high degree of probability that Mr Russell poses an unacceptable risk of committing another serious offence if not kept in detention under a continuing detention order.

As already indicated, the Crown has sought a continuing detention order for a period of one year only, followed by an extended supervision order for a further five years. That is so notwithstanding Dr Furst’s emphatic opinion that Mr Russell should not be released into the community for at least five years and Dr Rodriguez’ opinion that an assessment of whether to order an extended supervision order, or the appropriateness of associated conditions, cannot take place at present. In my view, a continuing detention order should be made. I am not, however, prepared at this time to make an extended supervision order. My reasons for this are as follows.

The burden of expert opinion is that the programs that Mr Russell is currently enrolled in or that he should undertake are either of no reliable predictive value at all with respect to his prospects of committing a further violent offence (Dr Furst) or can only offer assistance once they have been successfully completed (Dr Rodriguez). Having regard to Mr Russell’s difficulties with attending these programs to date without being suspended for behavioural breaches, as well as his somewhat indifferent performance as a member of the programs, it is not possible for me with any confidence to assume that they will be successfully completed either within the next 12 months or at all. Furthermore, the appropriateness of any conditions that might theoretically be imposed upon an extended supervision order might necessarily be expected to be informed by whatever degree of success Mr Russell is able to achieve. That includes, if it eventuates, any success that Mr Russell can achieve if granted day release while subject to his continuing detention order. In short, it is premature at this stage to consider the making of an extended supervision order with a future start date or the crafting of conditions to it that might be imposed.

There remains the question of the period for which Mr Russell should be subject to a continuing detention order. If Dr Furst’s opinion were to hold sway, it would have to be for a period in excess of the period of one year for which the State has applied. However, therein lies a difficulty. The State having applied for a continuing detention order of only one year, and the proceedings having been conducted before me on that basis, it would in my opinion be a denial of procedural fairness if I were even to consider the imposition of a continuing detention order for any period longer than that. I accept that this is adversary litigation and that I retain a discretion to make a continuing detention order and on what terms, but the State has not asked for such an order for longer than one year and there is no current imperative, including the paramount consideration of community protection, why an order for longer than that should be made.

It was submitted on Mr Russell’s behalf that a continuing detention order of less than one year would be appropriate. That submission was based upon the expectation that Mr Russell would complete his programs within that time and that the potential for favourable feedback from day release, if it occurred, would support the imposition of a shorter period. As I have already intimated, these are contentions that are based on matters that have not yet materialised, and on Dr Furst’s view will not, or at least may not, ever materialise. Doing the best I can, it seems to me that a continuing detention order for one year as sought by the State is appropriate in the circumstances.

Finally, I should note, as the transcript of the proceedings before me will reveal, that Mr Russell spoke to me via video link from gaol about his position as an inmate of longstanding, with some insight into his present predicament. I listened closely to what he said, and I have taken his words into consideration. Mr Russell maintained that he was not a sex offender, even though he had committed sex offences. That was at one level an unfortunate statement and one that may be thought to evidence a lack of insight on his part. However, Mr Russell was to my observation doing his best to communicate directly with me, having silently and respectfully observed the proceedings and the evidence given by Dr Furst and Dr Rodriguez.

Accordingly, I will make the following orders: