Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Sittczenko (Preliminary) [2021] NSWSC 547 Hearing dates: 10 May 2021 Date of orders: 10 May 2021 Decision date: 18 May 2021 Jurisdiction: Common Law Before: Rothman J Decision: (1) An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): (a) Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of these examinations by a date to be fixed; and (b) Directing the defendant to attend those examinations. (2) An order pursuant to ss 10A and 10C(1) of the Act that the defendant be subject to an Interim Supervision Order ("the Interim Supervision Order") from midnight on 8 June 2021 for a period of 28 days. (3) An order pursuant to s 11 of the Act, directing that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to these Orders. (4) Access to the Supreme Court file is restricted in respect of this proceeding so that access will only be permitted to a non-party with the leave of a Judge of the Court, and only after the parties have had notice of the non-party's application for access and have been afforded an opportunity to be heard with respect to the application for access. (5) The matter be listed before Bellew J for directions at 9:15 AM on 13 May 2021. Catchwords: HIGH RISK OFFENDERS – Interim Supervision Order – application – consent – matters to be considered – unacceptable risk of committing a serious offence – Interim Supervision Order issued Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 5D, 5H, 5I, 6, 7(4), 9, 10A, 10C(1), 10C(1A), 11, 25 Cases Cited: Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Aaron John Sittczenko (Defendant) Representation: Counsel: K Curry (Plaintiff) L A Fernandez (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2021/84890 Judgment 1. HIS HONOUR: On 5 May 2021, the plaintiff, the State of New South Wales, filed in Court an Amended Summons. That Summons claims interim relief, being the issuing of an Interim Supervision Order (hereinafter "ISO") pursuant to the terms of s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter "the Act"). 2. The Amended Summons also seeks for the Court to appoint two qualified psychiatrists and/or registered psychologists to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Court on the results of those examinations and a direction that the defendant attend at examinations. 3. The application for an ISO was made pursuant to the terms of ss 10A and 10C of the Act and was sought for a period of 28 days. Over and above the foregoing, and pursuant to the terms of s 11 of the Act, the plaintiff sought an order directing that the defendant comply with conditions set out in the Schedule to the Summons for the period of the ISO. 4. The Amended Summons also seeks final orders, being an order that the defendant be subject to an Extended Supervision Order (hereinafter "ESO") for a period of 3 years, pursuant to the terms of ss 5B and 9(1)(a) of the Act and that the defendant be directed to comply with the conditions set out in the Schedule to the Summons for that period. The plaintiff also seeks restricted access to the Court file in relation to the documents relating to these proceedings. 5. The Court, having perused the material filed in support of the Summons, in its original form, was informed that the defendant did not object to the making of an ISO in the terms amended by the plaintiff and being bound by the conditions proposed. Nor did the defendant object to the orders relating to psychiatric/psychological examination. 6. As a consequence of the Court's satisfaction of the statutory preconditions, and the view it had formed in relation to that material, the Court, comforted by the consent of the defendant, issued orders on 10 May 2021, which orders were entered on that date, and reserved its reasons for decision. These reasons for judgment are the reasons for the making of the orders. As a consequence of the consent of the defendant, the reasons can be brief. Background 1. The defendant is a 37-year-old man who has been convicted of two sex offences committed in 2004 and 2006. Each offence occurred during a robbery and the robbery occurred in circumstances where the defendant was seeking a means to finance his substance abuse. The victims were female strangers, aged 52 and 15 years respectively. 2. The defendant was serving a 15-year sentence with a non-parole period of 11 years, as a consequence of those offences and was released to supervised parole on 4 July 2018. The sentence is due to expire on 8 June 2021. 3. Following the defendant's release into the community, he engaged, once more, in substance abuse; failed to report to Community Corrections; and failed to attend his community-based sex offender maintenance from time-to-time. Further, the defendant did not comply with directions in relation to alcohol and drug intervention programs and was arrested twice for offending, although each offence was not a sexual offence, serious or otherwise. 4. On 22 August 2020, the defendant was returned to custody. He is currently serving the balance of his parole and is bail refused in relation to a fresh charge. 5. Further, the defendant is awaiting sentence for an offence of failing to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW). The defendant has pleaded not guilty to offences of possessing housebreaking implements, with intent to commit indictable offence; and custody of a knife in a public place. In the original documents filed by the plaintiff in these proceedings, prior to the hearing date, his next court appearance was to have been on 21 April 2021. 6. An ISO commences on the day fixed in the order for its commencement, which, on the application of the plaintiff to which the defendant consents, is 8 June 2021. The operation of an ISO is suspended for any period during which the defendant, bound by the ISO, is in lawful custody whether under the Act or under any other law. The defendant will be in lawful custody at least until 8 June 2021 and, as a consequence, a commencement date of 8 June 2021 is appropriate but will not be immediately effective if the defendant is still in custody. [1] Evidence and Submissions 1. The plaintiff relies on two Affidavits of Harriet Rose Olivier, sworn 26 March 2021 and 5 May 2021 respectively. The Affidavit of 26 March 2021 adduces material obtained as a result of orders issued under s 25 of the Act. Those orders issued on 17 September 2020 and 2 October 2020. 2. The provisions of s 25 of the Act allow the Attorney General, who is the Minister that is entitled to act on behalf of the State of New South Wales for the purpose of applications under the Act, in effect, to give notice requiring a person to provide documents, reports or other information relating to the behaviour, financial circumstances or physical or mental condition of the defendant. It is a criminal offence to fail to comply with such an order. 3. Requirements for the production of material were served on Corrective Services New South Wales on 15 October 2020; on New South Wales Police on 17 September 2020; on the Office of the Director of Public Prosecutions on 5 November 2020; on Justice Health on 27 October 2020; on State Parole Authority on 7 October 2020; on Victim Services on 26 October 2020; on the Department of Communities and Justice on 15 October 2020; on Parramatta Drug Court on 14 October 2020; on Penrith Local Court on 6 October 2020; and on Sydney District Court on 8 October 2020. 4. The documents produced in answer to the orders under s 25 of the Act were compiled into an Exhibit to the Affidavit [2] which compiles the material that the plaintiff relies upon in support of its application for an ISO. Those documents include a Risk Assessment Report, a Risk Management Report and documents extracted from other material. The Affidavit also exhibits the remarks on sentence from the District Court, his Honour Judge Cogswell SC, in the sentence proceedings on 21 September 2007. 5. The second Affidavit, being the Affidavit of Ms Olivier of 5 May 2021 updates the criminal history otherwise provided in the earlier material, including the sentences imposed on 21 April 2021 for custody of knife in public place; possess implements to enter/drive conveyance; and found with intent to commit indictable offence (previous conviction). The sentence imposed for those offences was an effective term of imprisonment of 12 months, with a non-parole period of 8 months. That non-parole period expired on 21 April 2021 and the balance of term will expire on 21 August 2021. 6. On the same date, namely 21 April 2021, the defendant was sentenced for offences relating to the failure to comply with the reporting obligations under the Child Protection (Offenders Registration) Act and for assault occasioning actual bodily harm. For those latter offences, the sentencing court imposed a Community Correction Order for a period of 12 months, commencing on 21 April 2021 and concluding 20 April 2022. 7. The defendant's application for release to parole was listed before the State Parole Authority on 4 May 2021. The State Parole Authority declined to rescind the defendant's revocation order of 2 September 2020. As a consequence, the defendant remains in custody. Application for ISO 1. The statutory preconditions for the making of an application for an ISO or ESO have been discussed by the Court in a number of judgments and on many occasions. The Act grants the State the capacity to apply to the Court for an ESO. [3] 2. Such an application may be made only in relation to a supervised offender, who, relevantly, is a person who is in custody or under supervision at the time of the application. That term includes a person who is serving a sentence of imprisonment for a serious offence or an offence of a sexual nature or for an offence arising from a breach of a Supervision Order already in place, or any other offence served concurrently or consecutively with one or more of the earlier kinds of sentences. A "supervised offender" also includes a person who is under an existing ISO, ESO or an interim or continuing Detention Order. [4] By operation of s 5I(3) of the Act, a term of imprisonment includes full-time custody; an Intensive Corrections Order; and it matters not whether the person is in custody or on parole. 3. The requirements with respect to an application are that such an application may not be made until the last 9 months of the offender's current custody or supervision and must be supported by documentation that addresses each of the matters referred to in s 9(3) of the Act and includes a report that assesses the likelihood of the defendant committing a serious offence. [5] 4. I do not recite, nor do I summarise, the provisions relating to service and other pre-trial procedures. 5. Once the application has been validly made, the Court may determine an application, insofar as it seeks an ISO and otherwise applies for an ESO, if it appears to the Court that the defendant's current custody or supervision will expire before the proceedings are finally determined and that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. [6] 6. Because of the terms of s 10A(b) of the Act, it is necessary, in determining whether to grant an ISO, to examine the requirements for the grant of an ESO. On an application for an ESO, the Court may either make the ESO or dismiss the application. [7] In arriving at that termination, the safety of the community must be the paramount consideration of the Court. [8] 7. In determining whether or not to make an ESO, the Court has been provided with mandatory considerations to which it must have regard. Those considerations are prescribed by s 9(3) of the Act. 8. Some of the mandatory considerations prescribed by s 9(3) of the Act do not exist at the time that the Court is considering whether to grant an ISO. For example, the mandatory considerations include reports received as a result of examinations conducted by order of the Court, issued at the time that the ISO is considered and granted. 9. Nevertheless, it is appropriate to recite the terms of s 9(3) of the Act, which is in the following terms: "9 DETERMINATION OF APPLICATION FOR EXTENDED SUPERVISION ORDER … (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: (a) [REPEALED], (b) the reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence." Unacceptable Risk 1. Thus far, the Court has not dealt with the tests applicable to the making of an ESO under the Act. The provisions of s 5B allow the Court to make an order, being an ESO and, relevantly, an ISO, if the Court, apart from being satisfied as to the validity and regularity of the application for such an order, is satisfied "to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order". [9] Notwithstanding the requirement that the Court be satisfied "to a high degree of probability", the Court is not required to determine that the risk of the offender committing a serious offence is "more likely than not". [10] 2. As stated on other occasions, there is, in my view, no tension between those two provisions. The Court must be satisfied to a high degree of probability of the posing of an unacceptable risk. A risk is unacceptable when the commission of a serious offence is likely, meaning, in that context, that the likelihood is not insignificant, and the Court, evaluating the likelihood of the commission of another serious offence with the consequences or likely consequences of the commission of that serious offence, comes to the view, with a high degree of probability, that the risk is unacceptable. 3. As stated on a number of occasions, a not insignificant risk of the commission of a serious offence in circumstances where the commission of that offence is not more likely than not, may, in circumstances where the level of harm that is likely to be occasioned by the commission of the offence is great, nevertheless, allow satisfaction to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. 4. It is for the Court to evaluate the unacceptability of the risk by weighing both the likelihood of the commission of an offence with the degree of harm to the safety of the community that is likely to be occasioned by any offence, if committed. If the commission of an offence, although not more probable than not, would result in significant harm, then there may exist an unacceptable risk. On the other hand, a high likelihood of the commission of an offence may not result in the offender posing an unacceptable risk if the degree of harm that would be caused by such an offence is insignificant. 5. In determining whether a risk is unacceptable, the Court has no regard to the degree to which the ISO or ESO interferes with the liberty of the defendant. Such a consideration is only relevant, if at all, to the determination of whether to make an order under s 9(1) of the Act. Matters Alleged and Evidence 1. It is necessary to deal with the matters alleged in the supporting documentation to determine whether, if those matters were proved, they would justify the making of an ESO. If the Court were of that view, which it was, then the Court would have the jurisdiction to issue an ISO. 2. Before dealing with the evidence briefly, it goes without saying, in the circumstances already identified, that the plaintiff submits, in this case, that it is in the interests of the safety of the community that an ESO be granted (and, for that matter, an ISO be granted) and also submits that the Court can be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. It follows from what has already been stated in these reasons that the defendant does not, for the purposes of the ISO, dispute that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. 3. On 21 September 2007, the defendant was sentenced by Cogswell SC DCJ in relation to two instances of sexual offences committed against two female victims approximately two years apart. The brief circumstances of that offending has already been recited, but need expansion. 4. On 13 March 2004, when the defendant was 20 years' of age, he committed sexual offences against a 52-year-old female stranger. The defendant entered the victim's home, punched her in the face several times and engaged in penile-vaginal intercourse and penile-anal intercourse with the victim without her consent. 5. The defendant then demanded money from the victim before leaving. The defendant was not detected as the perpetrator of this offence until DNA evidence from the second sexual offence linked him to the first offence. 6. On 20 May 2006, the defendant committed the second set of sexual offences, being part of the index offences, against a 15-year-old girl, who was also unknown to him. The victim was walking alone on a street, near her home, after midnight, when the defendant grabbed her, dragged her into grass and bushes, removed her clothing, punched her three times to the side of the head and engaged in penile-vaginal intercourse with her. 7. The defendant then forced his penis into the victim's mouth and ejaculated. This was followed by further penile-vaginal penetration. 8. The victim was able to identify the defendant to police on the same night and the defendant was arrested. The defendant was sentenced, as a result of those offences, to an overall sentence of 15 years' imprisonment, with a non-parole period of 11 years. 9. The plaintiff also relies upon the defendant's substance abuse history, which commenced at about the age of 14. The defendant first tried alcohol when he was 15 years' old and engaged in binge drinking patterns until he would pass out. 10. The plaintiff also relies upon the defendant recently reporting that he was a paranoid schizophrenic. The Risk Assessment Report, which is Tab 4 of Exhibit HRO-1 to the Affidavit of Ms Olivier of 26 March 2021, recites an assessment of the defendant. 11. The author identified the following dynamic risk factors as potentially relevant when considering the defendant's risk of sexual re-offending: problems with substance use; general criminality; impulsivity; social influences; problems with intimate and non-intimate relationships and general social rejection; problems with employment; negative emotionality, problems with stress and coping; problems with planning, treatment, supervision and problem-solving; deviant sexual interests; problems resulting from child abuse; and sexual violence history. 12. The author of the Risk Assessment Report expresses the opinion that the defendant's most likely scenario for further sexual offending would involve contact sexual offending (i.e. rape). Further, that offending would be likely to be against an unknown female adult, and most likely be opportunistic and impulsive. 13. As has been recited on a number of occasions, the nature of the risk must be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. [11] 14. The Risk Assessment Report and other documentation assess the defendant as posing "above-average risk" for future sexual offending. In part, this is based upon the serious nature of the sexual assaults that are the index offences in these proceedings and the commission of those offences against different victims, on separate occasions, in circumstances when neither victim was known to the defendant. 15. In each case the offence was committed while the defendant was under the influence of drugs and alcohol. The defendant has not yet resolved his substance abuse issues. As a consequence, the risk of re-offending is extremely high and continues until such matters have been resolved. The effect of drugs and alcohol is to increase the risk of further sexual offending because of the disinhibition caused by the substances. 16. The Risk Assessment Report and other documentation also note that the defendant has unresolved grief issues relating to the death of his brother and a history of sexual abuse. A view was expressed that the defendant is in need of therapy in relation to these issues. 17. Over and above the foregoing, the defendant lacks significant support in the community. The foregoing statement is not intended to be critical. 18. The evidence or material before the Court shows that the defendant has the support of his family, but that support has not, thus far, been positive and supportive in effecting change in the behaviour of the defendant, the control of his urges and the risk of his re-offending. There is no pro-social network in the community of which the defendant can avail himself. 19. Lastly, the plaintiff submits that the defendant's abuse of substances, even while on parole, and within a short time of his release on parole, augments the risk associated with re-offending and renders the likelihood of re-offending even greater. During the period of parole, the defendant engaged in further non-sexual offences. 20. Bearing in mind the considerations in s 9(3) of the Act, in particular the offender's criminal history and the assessment reports already prepared and admitted into evidence for the purposes of the proceedings, together with the history of non-compliance both under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) and otherwise with parole requirements, the Court has no doubt, and certainly is satisfied to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence, if not kept under supervision under the order. 21. In reaching that conclusion, the Court has had regard to all the material that has been tendered and the not insignificant likelihood that the defendant, on the material tendered, would commit another serious sexual offence together with the harm that would be occasioned by the commission of that offence against, in all likelihood, a stranger to the defendant. 22. For the foregoing reasons, the Court made the orders that it issued on 10 May 2021, which were in the following terms: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): 1. Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of these examinations by a date to be fixed; and 2. Directing the defendant to attend those examinations. 1. An order pursuant to ss 10A and 10C(1) of the Act that the defendant be subject to an Interim Supervision Order ("the Interim Supervision Order") from midnight on 8 June 2021 for a period of 28 days. 2. An order pursuant to s 11 of the Act, directing that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to these Orders. 3. Access to the Supreme Court file is restricted in respect of this proceeding so that access will only be permitted to a non-party with the leave of a Judge of the Court, and only after the parties have had notice of the non-party's application for access and have been afforded an opportunity to be heard with respect to the application for access. 4. The matter be listed before Bellew J for directions at 9:15 AM on 13 May 2021. ********** 210510 - Schedule - State of NSW v Sittczenko (21-84890) (154359, pdf) Endnotes 1. Crimes (High Risk Offenders) Act 2006 (NSW), s 10C(1A). 2. Exhibit HRO-1. 3. Crimes (High Risk Offenders) Act 2006 (NSW), s 5H. 4. Ibid, s 5I. 5. Ibid, s 6. 6. Ibid, s 10A. 7. Ibid, s 9(1). 8. Ibid, s 9(2). 9. Ibid, s 5B(d). 10. Ibid, s 5D. 11. Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 at [126] (Basten JA). Amendments 18 May 2021 - Schedule annexed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2021