State of New South Wales v Russell

On 28 June 2022 Button J made an order pursuant to s 18A of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act) that the defendant be subject to an interim detention order (IDO) for a period of 28 days commencing from midnight on 5 July 2022. His Honour also made orders appointing two qualified psychiatrists or registered psychologists to prepare separate reports after conducting examinations of the defendant, and to furnish those reports to the Court, pursuant to s 15(4) of the CHRO Act: State of New South Wales v Russell (Preliminary) [2022] NSWSC 843.

On 8 July 2022 Bellew J fixed the matter for a final hearing on 19 September 2022.

The proceedings now come before me for the purpose of renewing the IDO for a period of 28 days commencing from midnight on 2 August 2022. Ordinarily such renewals of IDOs or interim supervision orders (ISO) are made without contest. However, in the present case the defendant opposes the renewal of the IDO and submits that I need to form an independent view in terms of s 18A of the Act.

Some brief background history is relevant.

In April 2008 the defendant committed two counts of sexual intercourse without consent and two counts of indecent assault against a young woman aged 19 who lived next door to the defendant. At the time the defendant was aged 46. He was convicted after a trial by jury. He was sentenced in July 2009 by Judge Woods QC in the District Court to a total sentence of imprisonment for nine years commencing 4 October 2009 and concluding 3 October 2018 with a non-parole period of seven years concluding on 3 October 2016.

The offending was not by any means the first offending committed by the defendant. He had first been placed on probation by the Children’s Court in October 1978 for assault occasioning actual bodily harm. Thereafter he had been convicted and sentenced on numerous occasions for all manner of offending, particularly for serious offences of violence and a number of offences of sexual assault.

In his Remarks on Sentence, Judge Woods QC said this:

The defendant was not released from custody at any time before the conclusion of his total sentence. Prior to the expiry of that sentence the State made application for a continuing detention order (CDO) for a period of 12 months. On 11 September 2018 McCallum J made an IDO: State of New South Wales v Russell (Preliminary) [2018] NSWSC 1396.

On 7 December 2018, Button J ordered that the defendant be subject to a CDO for a period of 12 months from 12 December 2018 to 11 December 2019: State of New South Wales v Russell (Final) [2018] NSWSC 1880.

On 24 October 2019 the State filed a further application under the CHRO Act seeking a further CDO for a period of 12 months in respect of the defendant. On 5 December Fullerton J made an IDO commencing 16 January 2020: State of New South Wales v Russell (Preliminary) [2019] NSWSC 1717.

On 22 April 2020 N Adams J ordered that the defendant be subject to a CDO for a period of 12 months commencing 15 April 2020 and expiring 14 April 2021: State of New South Wales v Russell (Final) [2020] NSWSC 396.

On 1 March 2021 the State filed a further application under the CHRO Act seeking a further CDO for a period of 12 months followed by an extended supervision order for a period of five years. On 9 April 2021 Cavanagh J imposed an IDO commencing from midnight on 14 April 2021: State of New South Wales v Russell (Preliminary) [2021] NSWSC 361.

On 18 June 2021 Harrison J ordered that the defendant be subject to a CDO for a period of 12 months commencing 6 July 2021 and expiring 5 July 2022: State of New South Wales v Russell (Final) [2021] NSWSC 702.

The contest before Button J in June 2022 was whether an IDO or an ISO should be ordered. The principal basis for the defendant suggesting that all that should ultimately be imposed would be an ESO was that he had completed a number of therapeutic courses in custody to deal with his sexual and violent offending. He completed the EQUIPS- Foundation Program and the EQUIPS Aggression Program (Explore, Question, Understand, Investigate, Practice, Succeed), the RUSH (Real Understanding of Self Help) Program, and the HISOP (High Intensity Sex Offender Program) Program.

Despite the defendant having completed those programs, Button J said:

Justice Button’s reasons for imposing the IDO were these:

Section 18C of the CHRO Act relevantly provides:

The defendant submits that, as the order made by Button J is due to expire and needs to be renewed, the same test should be applied by me, independently considering the information, as is required under s 18A of the Act; that is, that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order.

Dr Lucy of counsel for the defendant first submitted to me that I did not have the necessary material before me to form that opinion, and there was therefore no basis for renewing the order. However, there was provided to me the material which had been before Button J when the IDO was sought; that is, the folders that were marked by Button J as Exs A and B. I have read the material in those exhibits.

Dr Lucy submitted that when regard was had to s 18C, it was necessary for an independent assessment to be made on each occasion when renewal was necessary, if the IDO was not expire.

In Brimaud v Honeysett Instant Print Pty Limited (1988) 217 ALR 44 McClelland J said (at 46):

The decision of Button J was an interlocutory decision of a substantive nature, made after a contested hearing in contemplation that the IDO would operate until the final disposition of the proceedings, subject only to renewal in accordance with s 18C of the Act.

Whilst the intention of the Legislature in fixing a 28-day period for an IDO, with renewal permitted for similar periods up to three months is not clear, what was not intended was that there be three contested hearings between the making of an IDO and the making of a CDO at a later time. There is nothing in the Second Reading Speech either at the time the CHRO Act was first enacted in 2006, nor at any time since it was amended, to throw any light on the matter. The Second Reading Speech was chiefly concerned with the three month overall limit on renewals of ISOs and IDOs.

Dr Lucy submitted that one reason for the 28-day period may have been because the liberty of a defendant was being interfered with by the imposition of the IDO or even an ISO, because of the restrictive conditions that might be attached to such an ISO. The 28-day period was, she submitted, designed to encourage expedition and the regular monitoring of the restriction, whatever it was, by the Court. However, given that the judge hearing the first application for an IDO is obliged to refer the matter to two professionals for psychiatric/psychological opinions, a 28-day period seems unreasonably short.

Section 19 of the CHRO Act may have relevance to the present application. That section relevantly provides:

It seems to me that, given an IDO has been made, opposition to the renewal of the IDO, pending the making of the CDO, amounts, in substance, to an application by the offender to revoke the IDO. At the very least, it raises for consideration the circumstances which would permit the IDO not to be renewed. What is contained in s 19 of the Act, as well as the judgment in Brimaud point strongly to the fact that a party seeking that the IDO not be renewed identify some change of circumstances sufficient to warrant a further substantive interlocutory hearing.

Although sub-s (IB) allows for orders to be revoked on the basis of a wide discretion, ordinarily, such an order would not be revoked unless, on the application of an offender, circumstances have changed sufficiently to render the order unnecessary: State of New South Wales v Banks (Preliminary) [2021] NSWSC 1246 at [13]; State of New South Wales v King [2022] NSWSC 918 at [6].

It is conceivable that a change of circumstances may occur that is such as to justify a reconsideration of the making of the IDO, although such circumstances are likely to be extremely rare.

As was explained in State of New South Wales v King it will not be enough to demonstrate on the balance of probabilities that there has been a change in circumstances; to show they have changed “sufficiently to render the order unnecessary” assumes the standard of proof in ss 5B and 5: King at [67].

In the present case, nothing is demonstrated as having changed since Button J ordered the IDO. It is not appropriate, as Dr Lucy submitted, for me to review the reasons Button J gave for making the IDO. That is the task of the Court of Appeal.

In those circumstances, the IDO should be renewed for a further period of 28 days.

Accordingly, I make the following orders: