Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Russell [2021] NSWSC 702 Hearing dates: 15 June 2021 Date of orders: 18 June 2021 Decision date: 18 June 2021 Jurisdiction: Common Law Before: Harrison J Decision: (1) Order pursuant to s 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 that Mr Russell be the subject of a continuing detention order for a period of 12 months from 6 July 2021. (2) Order pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 that a warrant issue for the committal of Mr Russell to a correctional centre for the period specified in Order (1) above. Catchwords: HIGH RISK OFFENDER – serious sex offender – application for continuing detention order – availability of program in custody – safety of community – long history of incarceration and institutionalisation – history of failure to comply with supervision – high risk of future violent and sexual offending Legislation Cited: Crimes (High Risk Offenders) Act 2006 Cases Cited: 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 State of New South Wales v Russell (Final) [2020] NSWSC 396 State of New South Wales v Russell (Preliminary) [2021] NSWSC 361 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Brett Russell (Defendant) Representation: Counsel: A Mykkeltvedt (Plaintiff) S Orman-Hales (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Voros Lawyers (Defendant) File Number(s): 2021/57800 Publication restriction: Nil Judgment 1. 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. 2. By way of final relief, the State now seeks the following orders: 6. An order pursuant to s 5C and s 17(1)(b) of the Act that Mr Russell be the subject of a continuing detention order for a period of 12 months from the date of the order. 7. An order pursuant to s 20(1) of the Act that a warrant issue for the committal of Mr Russell to a correctional centre for the period specified in Order 6 above. 8. An order: (a) pursuant to s 5B, s 9(1)(a) and s 25B of the Act that Mr Russell be subject to an extended supervision order commencing at the expiration of the continuing detention order and expiring 5 years after its commencement; and (b) pursuant to s 11 of the Act, directing Mr Russell, for the period of the extended supervision order, to comply with the conditions set out in the Schedule to the Summons. 1. 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. 2. 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: 1. Mr Russell is an offender who is serving or who has served a sentence of imprisonment for a "serious offence" as defined in s 4 of the Act. 2. Mr Russell is a "detained sex offender" within the meaning of s 13B of the Act. 3. The present application has been made in accordance with s 13B of the Act. 1. 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. 2. 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: "It is difficult to see a viable/successful pathway for Mr Russell in the community that does not involve him breaching supervision requirements and/or re-offending. Based on previous episodes when released to the community on parole, dating back to 1986, it is likely that he would 'survive' somewhere in the order of several weeks, possibly several months at best, before breaching his ESO [if ordered] and returning to custody. I do not believe an ESO, or any other supervision order the court could contemplate, short of ongoing incarceration, would be sufficient to keep Mr Russell offence free." (Emphasis added.) 1. 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: "This is now the third application before the NSW Supreme Court since 2018 in relation to a CDO, with previous applications/hearings in 2018 and 2020 emphasising his need to complete CUBIT, HISOP or other specified programs, including an attempt to provide individual counselling on an ongoing basis. He has now resumed HISOP, with the anticipated time to complete the program being forecast in March 2021 being 6-8 months, but this time is likely to be extended, as he had already had two sanctions/exclusions from HISOP since re-entering the program in January. I would respectfully suggest that the focus on Mr Russell completing such programs is misguided, as the assumption seems to be, at least according to Corrective Services NSW and perhaps the NSWSC, that completing such programs will somehow reduce his risk of and make management under an ESO safer for the community, whereas the scientific evidence in this respect is lacking. Therefore, the time recommended for a CDO for Mr Russell should, in my opinion, turn more on the competing issues of community protection, incapacitation and prevention of future offending on the one side and Mr Russell's desire/legal right to return to the community on the other side, accepting that he will never been [sic] successfully 'rehabilitated' or 'treated' and will always be a dangerous and unpredictable individual, as he has proven since his childhood. Based on this paradigm, which ultimately turns on risk tolerance/acceptance and the wisdom of Justice Wood [sic, Woods QC DCJ] in 2009, I believe that Mr Russell has had sufficient opportunities to live in the community already and that there would be much less potential of injury, grief, trauma or other suffering amongst unsuspecting members of the community if Mr Russell remains incapacitated, detained and controlled in custody indefinitely, initially subject of 5-year Continuing Detention Order." 1. 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: "Mr Russell will need to complete the HISOP and RUSH programs previously outlined in this report. I consider that a period of 12 months to complete these programs is appropriate. If he were to not complete the programs within 12 months, in my opinion, a further CDO should be explored." 1. 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: "He has completed a number of programs (EQUIPS-Foundation and EQUIPS-Aggression) and is completing HISOP for his sexual offending. Although these programs are suitable for addressing these problem behaviours, in my opinion, an evaluation as to his knowledge and understanding of his risk factors should take place at the end of HISOP or any other program completed. From the interview, Mr Russell seems to have an understanding of his risk factors for violence and sexual offending, such as relapsing into substance abuse. His substance abuse history and his proneness to use violence to address interpersonal issues is of significant concern. He is in the early stages of gaining some insight into these problems and in the embryonic stages of using strategies learned in such programs. Longitudinal reviews and interventions will be required to consolidate on his knowledge and promote strategies to avoid re-offending." (Emphasis added.) 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. Accordingly, I will make the following orders: 1. An order pursuant to s 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 that Mr Russell be the subject of a continuing detention order for a period of 12 months from 6 July 2021. 2. An order pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 that a warrant issue for the committal of Mr Russell to a correctional centre for the period specified in Order (1) above. ********** 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 June 2021