State of New South Wales v Hunt (Preliminary)

1. [1]

   Michael Hunt is a convicted murderer and child sex offender whom the State of New South Wales contends presents an unacceptable risk to the community such that he should be made the subject of a continuing detention order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. [2]

   The matter came before me at a preliminary stage of the proceedings for the determination of prayers 1, 2, and 3 of the Summons filed by the State on 17 November 2016. The orders sought are:

   1. (1)

      An order pursuant to section 15(4) of the Crimes (High Risk Offenders) Act:

   2. (2)

      An order pursuant to section 18A of the Act that the defendant be subject to an interim detention order from 12 February 2017 for a period of 28 days.

   3. (3)

      An order pursuant to section 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 2 above.

3. [3]

   The defendant does not dispute that the threshold requirements relevant to orders under s 5C or s 5D of the Act can be established by the State. That is, there is no issue that the defendant is a “sex offender” within the meaning of s 5B(1) of the Act, being a person over the age of 18 years who has been convicted of a “serious sex offence” with respect to which he was sentenced to a term of imprisonment, a sentence which remains current.

4. [4]

   The “serious sex offence” of which the defendant was convicted is an offence of sexual intercourse with a person under 10 years contrary to s 66A of the Crimes Act 1900 (NSW). On 1 December 2011 the defendant was convicted of two counts of that offence, together with an offence of aggravated indecent assault contrary to s 61M(2) of the Crimes Act, and sentenced to an aggregate term of 14 years imprisonment, backdated to commence on 13 February 2003. That sentence expires on 12 February 2017. The non-parole period expired on 12 February 2015, but the defendant was not admitted to parole.

5. [5]

   The defendant is both a “detained sex offender” (s 13B(2)) and a “supervised sex offender” (s 5I(2)) and it is therefore open to the State to make an application to the Court for either a continuing detention order pursuant to s 13A or an extended supervision order pursuant to s 5H of the Act.

6. [6]

   The relevant temporal requirements have been met: ss 13B(3) and 6(2).

7. [7]

   So much is acknowledged by the defendant, and it is conceded that it is open to the Court to make an order pursuant to s 15(4) of the Act for the appointment of two psychiatrists to examine the defendant and provide reports to the Court (prayer 1).

8. [8]

   The dispute before me was confined to the issue of whether the Court should make an order for the defendant’s interim detention pending finalisation of the State’s application (prayers 2 and 3). It is the defendant’s submission that the terms of the proposed extended supervision order (the order ultimately sought by the State in the alternative to a continuing detention order) will provide adequate supervision and thus a detention order ought not be made.

9. [9]

   At this preliminary stage an order can only be made if the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. A continuing detention order can only be made if the Court is satisfied that adequate supervision will not be provided by an extended supervision order.

10. [10]

    What is meant by an “unacceptable risk” is dependent to a degree on the context in which the risk is to be measured, as was pointed out in Lynn v State of New South Wales [2016] NSWCA 57 at [50] (per Beazley P). The determination of whether a risk is unacceptable involves an evaluation, as Beazley P said at [55] of Lynn:

11. [11]

    The State contends that the defendant poses a considerable risk of committing serious sexual offences against children, and that the risk is unacceptable. Two lever arch files of documentary evidence were tendered in support of that contention.

12. [12]

    This matter being heard less than five days before the end of the law term for the year, it is not possible to refer to all of that evidence in these reasons; I shall endeavour to refer to that which is of most significance to the determination of the matter at this preliminary stage.

The Defendant’s Criminal Antecedents

1. [13]

   The defendant’s criminal history commenced in 1983 when he was dealt with for an offence of break, enter and steal contrary to s 112 of the Crimes Act. He was before the Local Court for a similar offence two years later, and thereafter made relatively regular appearances before the courts, principally for dishonesty offences. Other than the break enter steal convictions already referred to, the defendant has convictions for stealing and possessing drug implements (October 1984); attempt wilful damage (April 1985); stealing (March 1986); and break, enter steal, attempt break enter steal, and possessing housebreaking implement (from June 1986). All of those offences were dealt with summarily, and by community based sentencing options, such as community service orders, bonds and fines.

2. [14]

   In January 1988 the defendant was charged with murder, being convicted of that crime on 21 April 1989. He was sentenced to a term of 20 years imprisonment with a non-parole period of 15 years. An appeal to the Court of Criminal Appeal was later abandoned. After a re-determination of the sentence, the defendant served about 9 and a half years in custody, followed by a period of parole.

3. [15]

   After his release following service of that sentence, the defendant was again criminally charged, with an offence of child abuse, on 16 February 2000. He was placed on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 2 years from 26 May 2000.

4. [16]

   During the currency of that bond (on 13 February 2003) the defendant was charged with a number of offences, which were dealt with by conviction and sentence on 3 March 2004 as follows:

   1. (1)

      Publish Child Pornography 2 years imprisonment to date from 12 February 2004 expiring on 11 February 2006;

   2. (2)

      Publish Child Pornography 1 year imprisonment to date from 11 February 2006 expiring 10 February 2007;

   3. (3)

      Indecent Assault Child Under 10 years 2 years imprisonment to date from 10 February 2007 expiring on 9 February 2009;

   4. (4)

      Indecent Assault Child Under 10 years 3 years imprisonment to date from 13 February 2008 expiring on 12 February 2011, with a 2 year non-parole period expiring on 12 February 2010;

   5. (5)

      Supply Prohibited Drug 1 year imprisonment to date from 13 February 2003 expiring on 12 February 2004;

   6. (6)

      Possess Child Pornography taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act.

5. [17]

   The remarks on sentence of Knight DCJ are before the Court as Ex BT-1.3. The defendant’s victim was a 9 year old boy. The defendant lived near to a holiday home owned by the parents of the victim. In that context he became acquainted with the family, cultivating the boy, his 12 year old brother, and another 13 year old boy, and spending a great deal of time with the children. In January 2002 the defendant engaged in various activities with the boys, such as fishing, using that time away from the parents of the children to supply them with cannabis. The two indecent assault offences involved the defendant touching the genitals of the 9 year old boy. He also prepared discs of what was described by the sentencing judge as “graphic video clips of sex scenes involving adult males and very young male and female children” (Ex BT-1.3, p 34), and showed them to the children.

6. [18]

   The sentencing judge said this of these crimes:

7. [19]

   A psychiatric report from Dr Jeremy O’Dea dated 2 March 2004 was before the District Court during the sentence proceedings. Dr O’Dea diagnosed the defendant as suffering from paedophilia, with an attraction to both male and female children, and recommended that the defendant accept treatment with anti-libidinal medication. The sentencing judge noted that the defendant had declined such treatment.

8. [20]

   The sentencing judge was not satisfied that the defendant had fully accepted his responsibility for the offences, and regarded him as having only a limited degree of insight into his crimes. He concluded that the defendant was at high risk of sexual reoffending against children. His Honour concluded:

9. [21]

   His Honour later observed (at p 43):

10. [22]

    An appeal against sentence was heard but dismissed by the Court of Criminal Appeal on 9 June 2005: R v Hunt [2005] NSWCCA 210.

11. [23]

    The charges that are the subject of the index offences arose from admissions the defendant made whilst a participant in the Custody Based Intensive Treatment program (‘CUBIT’) (that Judge Knight had recommended the defendant undertake). In February 2010 the defendant gave one of the officers involved with the program a letter, in which he disclosed a number of child sexual assault offences that he had committed in around 2001.

12. [24]

    Before the sentencing court on 1 December 2011 were the index offences of aggravated indecent assault and sexual intercourse with a child under 10 (2 counts). There were two victims, boys aged 5 and 4 respectively. Taken into account on sentence for one of the s 66A offences was a further crime, one of maliciously inflict grievous bodily harm contrary to s 35 of the Crimes Act 1900 (NSW). That offence occurred in July 1986.

13. [25]

    The facts of the index offences were set out by the sentencing judge, Madgwick ADCJ (at Ex BT-1.1, p 3; also Ex BT-1.2, p 14).

14. [26]

    The defendant befriended the mother of the 5 year old boy and invited her to attend his home with her young children. He also began visiting her home, staying overnight. The defendant encouraged the victim’s mother to take alcohol and prescription medication, and to work in a shed in the backyard of her home, whilst he looked after the children. His particular interest was in the 5 year old boy, and he began sleeping in the child’s room at night, telling the mother that the child was unsettled. On some of these occasions the mother noticed that the child’s nappy had been removed; the defendant claimed the nappy had been wet.

15. [27]

    The indecent assault offence occurred in late 2000 or early 2001 and involved the defendant entering the child’s bedroom at night and taking all of the boy’s clothing off. He then forced the child to touch his, the defendant’s, anus, an activity the child later described as disgusting.

16. [28]

    The sexual assault charge relating to the five year old boy occurred in March 2001. The boy was alone in his bedroom at night, his mother being at work in the backyard shed. The defendant went into the bedroom and removed all of the boy’s clothing. He took all of his own clothes off save for his underpants. He then performed fellatio on the child for a period of time. His offence was both discovered and stopped by the sudden entry into the bedroom of the boy’s older sister. Suspecting something, she went quickly into the darkened bedroom and switched on the light, observing the defendant crouched over the boy, with his head over the child’s exposed penis.

17. [29]

    The alarm was immediately raised and the semi-clad defendant dragged from the room by a neighbour, who had heard the commotion and come to the aid of the family. Despite the circumstances, the defendant denied any wrongdoing.

18. [30]

    The matter was reported to the Department of Community Services the following morning, and the victim was interviewed by police from the Joint Investigation Response Team. No doubt because of his very young age, only limited complaint was made of the defendant’s activities. The defendant refused to be interviewed and no charges were laid.

19. [31]

    In 2007, when the defendant was in custody serving the sentences imposed by Judge Knight, some troubling material was found during a search of the defendant’s cell. A small diary was seized in which the defendant had written notes referring to the boy, his mother, and sister. Of the mother he said:

20. [32]

    The second of the s 66A offences occurred in a similar context to the offences against the 5 year old, with the defendant befriending a single mother of two young children, in August 2001. This woman, like the mother of the 5 year old, was isolated and with limited assistance in caring for her children, and she readily accepted the defendant’s friendly overtures.

21. [33]

    Over the following weeks the mother of the child noticed that the defendant favoured her four year old boy, frequently taking him onto his lap and promising chocolate and money to him. She also noticed the boy becoming withdrawn and, on asking him if everything was alright, she was told by the boy, “Michael sucked my doodle” (EX BT-1.2, p 16). The child told his mother that the defendant promised him money if he didn't tell anyone.

22. [34]

    The woman immediately contacted the defendant by telephone and confronted him with her son’s disclosure. He conceded, “I know I have a problem” (EX BT-1.2, p 16). The woman took her children from the area and fled. Although she made a complaint to authorities soon after, her instability, and perhaps the young age of the boy, meant that no charges were laid at the time.

23. [35]

    On 26 June 2009 the defendant commenced the CUBIT program. On 17 February 2010 he gave an officer a letter referring to a number of sexual assaults of seven children, including the 5 and 4 year old boys. The confession was referred to police.

24. [36]

    The defendant was arrested on 27 September 2010. He was interviewed and, whilst acknowledging having written the letter given to the CUBIT officer, and the notes seized in 2007 from his cell, he denied any sexual offences against children.

25. [37]

    The sentencing judge described the defendant’s crimes as “grave - indeed horrifying”, but “not in the worst class” (EX BT-1.1, p 9).

26. [38]

    His Honour was not optimistic concerning the defendant’s future prospects, as the following extract makes clear:

27. [39]

    The reference to the serious violence offence is to the matter that was before the sentencing court on a Form 1 document, to be taken into account against one of the s 66A offences.

Psychiatric, Psychological and Risk Assessment Evidence

1. [40]

   In November 2010 the defendant was interviewed and assessed by Senior Specialist Psychologist, Patrick Sheehan, in anticipation of an application under this Act (an application rendered unnecessary by the defendant's conviction before Acting Judge Madgwick and the further sentence imposed upon him). Mr Sheehan assessed the defendant then as at high risk of sexually reoffending relative to other male sex offenders.

2. [41]

   Mr Sheehan concluded that the defendant met the diagnostic criteria for Paedophilia, Nonexclusive Type. He thought that he had an enduring and recurrent intense sexual interest in children, particularly boys. Mr Sheehan also thought that the defendant has a history indicative of "Cluster B" Personality Disorder, more particularly Antisocial Personality Disorder and Borderline Personality Disorder.

3. [42]

   Referring to the defendant's behaviour in custody Mr Sheehan noted that there were a number of matters relevant to future risk management, mostly relating to the defendant's "intense ideation of interpersonal violence and ongoing sexual deviancy" (Ex HMK-1.3, p 23). The matters referred to included expressions of homicidal thoughts in 2003 directed to those the defendant perceived as bullying him as a child at school; expressed thoughts in the same year of "revenge" against the "system / officers", and homicidal thoughts expressed in 2004 and 2005.

4. [43]

   In 2007 the defendant was found in possession of a diary which contained notes as to:

5. [44]

   There was a list of persons the defendant expressed a wish to harm, including an inmate about whom he wrote, "definitely has to die a painful tortuous death. Make the cunt scream with pain and agony" (Ex HMK-1.3, p 24). The defendant had gathered newspaper clippings that focused on "kid-friendly" resorts, stories about child sex internet predators, and employment advertisements seeking school teachers, and he had collected many pictures of children.

6. [45]

   Mr Sheehan noted a number of risk scenarios, which could be cumulative, and concluded:

7. [46]

   In a sentence heavily relied upon by the defendant, Mr Sheehan observed (at Ex HMK-1.3, p 34):

8. [47]

   Dr Richard Furst was engaged to conduct a psychiatric assessment of the defendant, and specifically, an assessment of the risk he posed in relation to sexual and non-sexual violent recidivism. His report was before Acting Judge Madgwick during the 2011 sentence proceedings.

9. [48]

   Subsequent to the examination, Dr Furst produced a report indicating his diagnosis concerning the defendant. The following is a summary of that report.

10. [49]

    The defendant has two younger sisters and two younger brothers, all but one of whom were adopted, as was the defendant. The defendant described a reasonably close relationship with his adoptive family and felt that his basic needs were met during childhood.

11. [50]

    There was a childhood history of septicaemia when he was about 6 months of age that he claimed resulted in “brain damage.” There was an apparent history of delayed speech development and learning difficulties. The defendant reported being diagnosed with Attention Deficit Hyperactivity Disorder in his childhood and prescribed Ritalin due to his persistent restlessness and difficulty in paying attention.

12. [51]

    He denied any history of fighting or truanting school but asserted that in his younger years he was picked on, “bullied” and “spat on” (Ex BT-1.9, p 128).

13. [52]

    The defendant described feeling depressed in mood from around 2003. He told Dr Furst that, at the time of consultation, he suffered from periods of low energy, low mood and excessive anxiety. He was taking antidepressant and mood stabilising medication in order to address this.

14. [53]

    Dr Furst reported that there is no history suggestive of major mental illness and the defendant has never been admitted to a psychiatric hospital.

15. [54]

    The defendant reported drinking every day from 18 years of age. He said that he smoked cannabis from the age of 17 years with his friends. He claimed he wasn’t addicted to this drug.

16. [55]

    Dr Furst reported that the defendant has spent a period undertaking drug and alcohol counselling at a residential rehabilitation facility in Liverpool, and a further period in rehabilitation in Katoomba.

17. [56]

    The defendant claimed to have been sexually abused on a Scout camp when he was about 12-13 years of age. He reported first experiencing sexual thoughts around the ages of 11-12 when observing people, including children. At 19-20, he acknowledged that he still had a tendency towards children, preferring pre-pubescent boys because “they’re a bit easier” (Ex BT-1.9, p 128).

18. [57]

    The defendant reported using child pornography in the year 2000. He told Dr Furst that “he didn’t think much about it when he was not using a computer,” and that he performed other search functions on the computer, such as music and movies, but he then deviated back to child pornography (Ex BT-1.9, p 128).

19. [58]

    In the past, a consultant psychiatrist had prescribed an anti-libidinal agent to the defendant in order to reduce deviant sexual arousal. However, due to the side effects associated with that drug, such as weight gain and breast enlargement, the defendant discontinued use.

20. [59]

    In relation to the index offences, the defendant conceded the facts as outlined in the Agreed Facts. He acknowledged being sexually attracted to the victim. In relation to the second victim, he said he “suppose(s)” that he was sexually attracted to him. He believes that he misconstrued the “signs” that the two boys were giving; he reported them being “clingy” or “hanging off him” (Ex BT-1.9, p 128).

21. [60]

    The defendant indicated to Dr Furst that he wished the index offences had not occurred, stating:

22. [61]

    The defendant denied any ongoing fantasies involving children. He said, “I try not to think about it.” (Ex BT-1.9, p 129).

23. [62]

    He successfully completed the CUBIT program. When prompted by Dr Furst to reflect on the effectiveness of the program, the defendant reported that he was better able to detect early warning signs. He also reported being better able to identify distorted cognitions, such as justifying offending behaviour by believing, “it’s okay if it’s only once,” and has learnt to challenge and adjust this thought process (Ex BT-1.9, p 129).

24. [63]

    Dr Furst noted that:

25. [64]

    In relation to the defendant’s sexual offending, Dr Furst noted that he appeared to have “intimacy deficits,” including trusting others and having meaningful relationships with women (Ex BT-1.9, p 132). Dr Furst attributed this deficit to the sexual abuse the defendant suffered in childhood, resulting in an antisocial attitude and deviant sexual fantasies.

26. [65]

    Dr Furst opined that, at the time of the index offences, the defendant was probably having trouble adjusting to life in the community but there was no formal diagnosis such as severe depressive illness or major mood disorder. As such, he concluded that the defendant “was aware of his actions and aware of their wrongfulness” (Ex BT-1.9, p 133).

27. [66]

    The Static-99 is an actuarial instrument designed to assess the probability of sexual and violent recidivism amount adult males who have already been convicted of at least one sexual offence against a child or non-consenting adult. Dr Furst employed this tool in assessing the defendant’s long-term sexual risk potential and recorded that the defendant yielded a score which places him in the High risk category.

28. [67]

    In light of the defendant’s past behaviour, attraction towards prepubescent boys, and the nature of the offences before the court, Dr Furst concluded that the defendant met the criteria for the diagnosis of paedophilia. He further opined:

29. [68]

    In his 2011 report Dr Furst recommended a treatment plan directed to reducing the defendant's risk of re-offending. The plan included psychological treatment, readmission to CUBIT, further drug and alcohol counselling prior to release, and the prescription of an anti-libidinal agent in the last 6 months of the defendant's sentence, with use continued in the community.

30. [69]

    Ms Lee’s report for the Serious Offender Review Council was prepared on 14 February 2013, primarily to assess the defendant’s current circumstances, his sexual and violence recidivism risk levels, and any other outstanding risk factors.

31. [70]

    Ms Lee noted that the defendant presented as “somewhat evasive and detached emotionally when discussing his sexual offences in particular” (Ex BT-1.7, p 71).

32. [71]

    Ms Lee’s report confirmed that the defendant completed the CUBIT program in 2010. His treatment response was poor, and:

33. [72]

    Ms Lee expressed a view that the defendant’s poor response to treatment was related to:

34. [73]

    The defendant reported regular consumption of alcohol from the age of 17 to age 23, and cannabis use from the age of 18, with alcohol and cannabis use to intoxication virtually daily until his incarceration. He told Ms Lee he wished to stop using illicit drugs, given their impact on his offending conduct.

35. [74]

    Ms Lee took a history from the defendant that was similar to that obtained by Dr Furst. At the time Ms Lee saw the defendant he was prescribed antidepressants (Epilem and Zoloft). He had previously been prescribed anti‑libidinal medication (Androcur) but had subsequently not taken it.

36. [75]

    On assessing the defendant Ms Lee found that he scored mostly highly within the clinically significant range on the Narcissistic personality scale and the Drug-dependence scale (Ex BT-1.7, p 82).

37. [76]

    As to risk assessment, Ms Lee administered the Hare Psychopathy Check List – Screening Version assessment tool, with the results showing significant risk associated traits including lack of empathy, lack of remorse, non-acceptance of responsibility (in relation to minimisation of his offences), poor behaviour controls and an adult history of antisocial behaviour. She concluded that it would be difficult for the defendant to be motivated to attend further treatment, and his risk of reoffending was likely to remain elevated.

38. [77]

    Using other risk assessment tools, including the LSI-R, Ms Lee found that the defendant fell within the medium-high risk category for general and violent recidivism within 12 months from release from custody. Incorporating all known information however, Ms Lee concluded that the defendant was in fact at high risk of recidivism in the community.

39. [78]

    To predict sexual recidivism, the Static-99R was employed. The defendant’s assessed level of risk using this actuarial tool was in the moderate to high category in relation to other male sexual offenders.

40. [79]

    Finally, Ms Lee applied the Risk of Sexual Violence Protocol to examine those risk factors associated with the defendant's psychological state and life circumstances prior to the commission of the relevant offence, including his history of the commission of murder and other violent crime. The defendant’s assessed level of risk of recidivism places him in the high range for sexual violence. Ms Lee recommended that:

41. [80]

    Other relevant evidence relied upon by the State includes the report from the defendant’s participation in the CUBIT program, and reviews of the defendant conducted during the course of his present sentence.

42. [81]

    As noted by both Acting Judge Madgwick and Ms Lee, the defendant participated in CUBIT, between 26 June 2009 and 29 July 2010, but the assessment of his participation overall was not positive, being characterised in the treatment report of 14 September 2010 as lacking in motivation (Ex BT-1.8, p 106). The defendant spoke of wishing to make changes in his life, but CUBIT staff felt that his behaviour did not reflect his expressed intentions. The authors of the report noted:

43. [82]

    During the course of the program the defendant incurred a number of institutional misconducts, including an incident involving sexual comments from November 2009, and having excess stores (including 30 condoms) from May 2010.

44. [83]

    Further, his deviant beliefs about children and sex continued:

45. [84]

    The defendant seemed to gain little from the program with the report authors concluding that sexual dysregulation was both pervasive and entrenched, evidenced by the prominent role his deviant sexual interest in children had and continued to have in his life (Ex BT-1.8, p 115; p 116).

46. [85]

    The defendant was noted to have a moderate to high risk of re-offending using the STATIC-99R risk assessment tool, although the report authors thought that rating underestimated the risk the defendant actually posed (Ex BT-1.8, p 121).

47. [86]

    Later reports demonstrate little or no change. A pre-release report of 2 December 2015 noted that the defendant had thrice refused to undertake the CORE Moderate program, in October and December 2014 and in 2015, and he had completed no other therapeutic program following his participation in CUBIT. The defendant’s risk assessment rating remained the same (Ex BT-1.10).

48. [87]

    Reports prepared for the Serious Offender’s Review Council (November 2014 and November 2015) were in the same vein. The defendant was consistently regarded as unsuitable for release to parole, with factors cited being his poor participation in CUBIT, his refusal to undertake the CORE-Moderate program, and his misconduct in custody. An example of the last is the defendant’s possession, following completion of CUBIT, of inappropriate pornographic material and a children’s Best and Less catalogue, resulting in a charge of Possess/create prohibited goods of 2 February 2013.

49. [88]

    The defendant’s response to drug and alcohol rehabilitation was more positive: he completed the Getting SMART Program on 16 April 2014.

50. [89]

    The most recent Risk Assessment Report before the Court was one prepared in readiness for these proceedings by Dr Richard Parker, on 16 June 2016. The following are among the matters noted by Dr Parker in that report.

51. [90]

    The defendant’s response to community based supervision has, in the past, been mixed, as Dr Parker noted at [43] of his report:

52. [91]

    Like other psychologists in the past, Dr Parker used a number of assessment tools to calculate risk, including actuarial tools and assessment of dynamic risk factors. Noting that prediction of risk is an imprecise science, Dr Parker concluded that the defendant is at high risk of committing further sexual offences.

53. [92]

    Of scores calculated by reference to actuarial tools, the defendant was found to be at Medium/High risk of general re-offending; and at High overall risk of sexual re-offending (combining results from two different tools, the STATIC-99R and STABLE-2007 tools). Dr Parker concluded:

54. [93]

    Whilst Dr Parker concluded that the most likely risk scenario was one in which the defendant would cultivate an adult to gain access to a child or children associated with that adult, he also thought that the defendant may offend against a stranger by approaching an unaccompanied child, and luring the child away for sexual exploitation.

55. [94]

    Also before the Court was a Risk Management Report from Kevin Makar, prepared on 19 August 2016. In his report Mr Makar set out the history of the defendant’s previous responses to community based supervision, which was mixed.

56. [95]

    Mr Makar notes that the defendant has indicated his willingness to reside in accommodation provided through a Community Offender Support Program (“COSP”), such accommodation providing a structured and supervised residence. Such accommodation would be made available for a six month period (that being the whole of the likely period required to finalise these proceedings).

57. [96]

    The defendant would be suitable for referral to a maintenance program conducted in the community by Forensic Psychology Services.

58. [97]

    To manage the risks posed by the defendant in and to the community Mr Makar referred to the following strategies as being available, including:

59. [98]

    The strategies are all noted to be subject to limitations.

60. [99]

    The defendant has, in the past, demonstrated a superficial response to supervision in the community. Of particular concern is that the offences of murder and child abuse of which he stands convicted were both committed when the defendant was subject to supervision.

61. [100]

    Weekly interviews with supervisory staff could mitigate the risk of reoffending, but much would depend upon the defendant’s truthfulness with supervisors and his level of engagement. His poor level of participation and refusal to undertake the CORE program is of relevance.

62. [101]

    The defendant’s refusal to consider or accept anti-libidinal medication is also a concern, as is his past withdrawal from therapeutic programs. He has ceased taking SSRI medication, even though that medication was prescribed to assist him in controlling his sexual deviancy.

63. [102]

    Whilst close scrutiny of the defendant’s person, home and technological devices is of assistance, all are subject to the resources available to supervisors. Surveillance and supervisory interaction would not be conducted on a constant basis; there would necessarily be significant periods of time when the defendant would be left to his own devices.

64. [103]

    Even electronic monitoring cannot fully guarantee the safety of others with whom the defendant may come in contact in the community. Electronic monitoring assists supervisors to know where the defendant is, but it cannot allow supervisors to know whether he is engaging in “risk scenarios”. Particular reference was made of the risk that the defendant might lure an unaccompanied child to a location where he could sexually offend against the child. Electronic monitoring could not prevent that (Annexure C to the Affidavit of Brett Thomson dated 17 November 2016, p 8).

Consideration

1. [104]

   As earlier noted, there is no real dispute that, for the purposes of these preliminary proceedings, the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision: s 5B of the Act.

2. [105]

   Having reviewed the evidence tendered by the State, I am satisfied to that high degree of probability that the defendant poses a risk of the nature contemplated by s 5B. His history of serious child sexual offending, his poor response to therapeutic programs (CUBIT) and refusal to undertake others (CORE), the fact that he has refused to accept anti-libidinal medication, and the entrenched nature of his deviant sexuality is such that that test is readily met.

3. [106]

   The question to be next answered is that posed by s 5D(1) of the Act, whether adequate supervision will not be provided by an extended supervision order such that a detention order is appropriate. In my conclusion, community based supervision pursuant to a supervision order is not adequate, and the protection of the community is best ensured by the defendant’s interim detention, until such time as the State’s application is determined.

4. [107]

   To some extent the matters to which I have already referred are additionally relevant to the question of the efficacy of community based supervision.

5. [108]

   The defendant is a committed child sex offender; he has clearly demonstrated that in the past and all indications are that he remains so. That is the opinion of Dr Parker. The therapeutic intervention he has to date experienced does not seem to have been effective in addressing that pathology. The risk that he will again sexually prey upon children is ongoing, and is assessed as high.

6. [109]

   There is a likelihood that successful management of that risk in the community cannot be undertaken, with the risk remaining unacceptable.

7. [110]

   In the past, community supervision has not prevented the defendant from offending, and from offending in the most serious way. The offences of child abuse and murder were both committed when the defendant was subject to supervision. The former is a summary offence, but the facts of the crime are suggestive, particularly having regard to the defendant’s entrenched paedophilia. The latter offence was extraordinarily serious and, having regard to the fact that the defendant stabbed his victim to her genital area, it has a clear sexual flavour to it.

8. [111]

   Additionally, the offences dealt with by Judge Knight were all committed by the defendant when subject to conditional liberty.

9. [112]

   Dr Parker concluded that the defendant is someone who would seek out opportunities to offend, as well as taking advantage of such opportunities as presented themselves to him. It is reasonable to conclude at this preliminary stage that supervision would not prevent him taking those opportunities.

10. [113]

    Whilst the defendant has undertaken the CUBIT program, there is little in the reports of his participation that could give the Court confidence that he has absorbed its lessons, or re-ordered his thoughts and behaviour to a more socially acceptable form of sexuality. Indeed, the post-CUBIT institutional misconducts provide strong support for a conclusion that the defendant has taken nothing positive from CUBIT.

11. [114]

    Whilst Mr Sheehan concluded in 2010 that the defendant could be adequately supervised in the community, his opinion did not take events since 2010 into account, including the defendant’s failure over the years to take advantage of rehabilitative programs, or his continuing sexual misconduct, most recently evidenced by the events of 2013.

12. [115]

    If being incarcerated cannot prevent the defendant from taking such opportunities as present for the pursuit of sexual fantasies surrounding children (secreting the Best and Less catalogue for example) one wonders how a greater degree of freedom in the community would be abused by him.

13. [116]

    That he would have a much greater degree of freedom despite supervision is clear, particularly when regard is had to the limitations to supervisory strategies that Mr Makar referred to in his report. Even electronic monitoring cannot provide more than a means of determining where the defendant might be at any given time; it cannot detect what he may do. The postulated risk scenario of the defendant luring a child away to abuse him or her would not be prevented by electronic monitoring, or any of the other protective strategies, such as a schedule of movements, weekly visits, or inspection of the defendant’s telephone.

14. [117]

    Such strategies might reduce risk, but they cannot obviate it. That needs to be considered in the context of the identified risk posed by the defendant: that he would take a child from some place, where he may be approved to be, and sexually assault the child. The consequences of that risk eventuating would be catastrophic.

15. [118]

    It is not possible to accurately predict or scientifically quantify the risk posed by the defendant of sexually reoffending against children, but there is a clear risk in my view, and one which cannot be adequately met by community based supervision.

16. [119]

    The weight of the evidence is that the defendant continues to experience a strong sexual attraction to children, and he lacks either the insight or the self‑control to adequately regulate his conduct.

17. [120]

    I consider the State has discharged the burden of establishing, at this preliminary stage, that the defendant poses an unacceptable risk of committing a serious sexual offence if not kept under supervision, and that adequate supervision will not be provided by an extended supervision order.

18. [121]

    Accordingly, I propose to grant prayers 1, 2, and 3, and to make ancillary orders for the final hearing of the matter.

    1. (1)

       Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):

    2. (2)

       Pursuant to ss 18A and 18C(1) of the Act, that the defendant be subject to an interim detention order from midnight on 12 February 2017 (the time at which the defendant’s sentence expires) for a period of 28 days.

    3. (3)

       Pursuant to s 20(1) of the Act, that a warrant be issued for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in order 2.

    4. (4)

       The plaintiff to file and serve any affidavit evidence on which it relies by 5:00pm on 7 February 2017.

    5. (5)

       The defendant to file and serve any affidavit evidence on which he relies by 5:00pm on 14 February 2017.

    6. (6)

       The plaintiff to file and serve submissions on which it relies by 5:00pm on 24 February 2017.

    7. (7)

       The defendant to file and serve submissions on which he relies by 5:00pm on 3 March 2017.

    8. (8)

       Any submissions of the plaintiff in reply to be filed and served by 5:00pm on 6 March 2017.

    9. (9)

       The matter be listed for hearing on 7 March 2017 at 10:00am with an estimate of one day.

    10. (10)

        An order be made under s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) directing the Commissioner of Corrective Services to cause the defendant to be produced at the Court, or via audio-visual link, for the final hearing on 7 March 2017 unless the Court otherwise orders.

    11. (11)

        Liberty to apply to relist the matter on one days’ notice.