State of New South Wales v Hunt (No 2)

On 8 May 2017, the Court, as presently constituted, issued orders requiring the defendant, Michael Shane Hunt, to be detained pursuant to a Continuing Detention Order (“CDO”) from 8 May 2017 until 3 September 2017 and thereafter to be subject to a High Risk Sex Offender Extended Supervision Order (“ESO”) for a period of 5 years. Conditions were imposed pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (“the Act”).

The application for a CDO and ESO was made by Summons by the State of New South Wales (“the State”) at a time that was within six months of the release of the defendant and while the defendant was in custody. As a consequence, the procedural conditions for the granting of the application and the making of orders, either under s 9 or s 17 of the Act, have been satisfied.

On 8 May 2017, at the time of the hearing of the application and the issuing of the orders, the Court issued short ex tempore reasons and reserved full reasons, to the extent the Court considered it necessary. It is unnecessary to expand on the reasons of the order other than as contained in these short reasons.

The ex tempore reasons for judgment are in the following terms:

As earlier stated, the State sought a CDO, which was granted, by the Court differently constituted, on an interim basis and was to expire on 11 May 2017. As a consequence, the orders issued on 8 May 2017 were issued urgently. The Court is grateful for the prior lodging of the two Psychiatrists’ Report: Dr Jonathon Adams and Dr Andrew Ellis.

The risk to which the Court referred in the ex tempore reasons is based upon the expert opinions that the defendant has been assessed by each of the experts of being at risk of committing further serious sex offences and the Court is satisfied that there is a high probability of such offending. The Psychiatric Reports identify certain psychiatric issues.

Dr Adams, Forensic Psychiatrist, in his Report of 31 January 2017, did not identify a major mental illness from which the defendant suffers. Nevertheless, Dr Adams agreed that the anti-depressant medication prescribed for the defendant seemed to be of benefit in helping him achieve emotional stability.

Notwithstanding the absence of a major mental illness, such as major depression or bipolar affective disorder, the defendant’s history, as given by him, is consistent with a diagnosis of a substance use disorder. Further, the defendant’s identification of long-lasting sexual fantasies and urges, focusing upon male prepubescent children, together with the defendant’s history and the other matters to which Dr Adams refers, satisfied Dr Adams that the defendant satisfied the criteria for a diagnosis of a paedophilic disorder.

Dr Adams also referred to the defendant’s sexual violence risk factors spanning a range of domains, including sexual violence history, psychological adjustment, mental disorder, social adjustment, and manageability.

The defendant has completed Custody Based Intensive Treatment (“CUBIT”) and within that the Sexual Offender Treatment Program. The outcome of this treatment seemed relatively negative.

The factors to which Dr Adams referred that support the anti-libidinal medication, to which the defendant has agreed, included the chronology and nature of the defendant’s sexual offending; the chronicity and intensity of his paedophilic disorder; and the fact that he has continued to experience sexually inappropriate fantasies despite a long period of reporting compliance with SSRI medication (Selective Serotonin Reuptake Inhibitors, used usually as anti-depressants.

As pointed out in the experts’ evidence, deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffending. This supports the view taken by the Court as to the unacceptable risk posed by the defendant.

Dr Ellis, in his Report, also of 31 January 2017, confirms the diagnosis proffered by Dr Adams. Dr Ellis expresses the opinion that the defendant meets the criteria for a substance use disorder, primarily cannabis and alcohol and also expresses his primary concern as the diagnosis of paraphilia paedophilia. Dr Adams explains that anti-libidinal medication is the best treatment to address deviant arousal, although behavioural techniques may also have some effect.

It was Dr Ellis who referred to the three to six month period in custody to establish whether anti-libidinal treatment would be of benefit and to stabilise the treatment. The period of three months, as indicated in the ex tempore reasons, included periods that, it was agreed, could occur during the defendant’s conditional liberty.

As Dr Ellis explains, paraphilias (including paedophilia) are chronic, relapsing conditions and are resistant to treatment and rehabilitative efforts. The time period explained by Dr Ellis as needed for securing stable independent accommodation and maintaining a stable mental state with meaningful occupational and social activities in the community, gives rise to the probability that no stability will be obtained prior to the conclusion of a two-year period and Dr Ellis opined that 36 months of regular treatment thereafter, being a psychological program, coupled with regular review of anti-libidinal medication, would be necessary. As a consequence, the five-year duration for the ESO is appropriate.

When the orders first issued, the date was calculated incorrectly. Pursuant to s 25B of the Act, the Court has the capacity to fix a duration for an ESO that commences at the conclusion of a CDO, even though each issues at the same time and notwithstanding the combined effect of s 10 and s 18 of the Act. In those circumstances, the duration of 5 years will conclude on 3 September 2022. The State may, in its discretion, apply for further or different orders and the defendant may apply to revoke or vary.

The ex tempore reasons and these more extended reasons presuppose an understanding of the statutory framework and objectives of the Act. The primary object is to provide orders so as to ensure the safety and protection of the community. Other objects include facilitating or encouraging rehabilitation. Primarily, it has been found, the fundamental objective of the legislation is the protection of the community and the Act is protective, not punitive.

Notwithstanding that primary fundamental objective, the effect of the Act and orders made under it on a particular individual is severe. It permits the Court to restrict the liberty of a person in circumstances where that person has already served the sentence imposed upon her or him for the commission of a particular crime.

The Act, in that regard, permits the Court to impose custodial orders and orders restricting liberty in circumstances where the reason for such orders is the unacceptable risk of future offending of a serious kind by the defendant. As has been explained, on a number of occasions, the criteria for the determination of an application and the imposition of an order of the kind that the Act allows is the determination by the Court that the defendant poses an unacceptable risk.

The term “unacceptable risk” is not defined in the legislation. It is a term that must be given its everyday meaning in the context of the provision and the context of the Act as a whole. At one stage, there was a difference amongst the judges of the Court, in their reasons for judgment, as to whether the determination of whether a person is an unacceptable risk involves a balancing exercise in which the draconian effect of the order is balanced against the risk to the community. That is not the current state of the law. Nor is it a view that I share.

In my view, the term “unacceptable risk” must be given, as earlier stated, its everyday meaning, being that phrase in the context of the Act as a whole, the objects of the statute as a whole and the achievement of harmonious goals by the legislature: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70] and [78].

The appropriateness of restricting the liberty of the defendant, and the appropriate nature of that restriction, is a matter to be taken into account under s 17 of the Act which permits the Court, on an application of this kind, to make a CDO, or an ESO, or to dismiss the application.

The foregoing principles are those that were applied by the Court in issuing the orders on 8 May 2017 and expand upon the reasons already provided for the making of the orders. As a matter of abundant caution, I reiterate the orders of the Court previously issued and make clear that the reiteration is not intended to have any effect on the orders issued on 8 May 2017, except as to the correction to the concluding date of the ESO that has already issued.