Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Russell (Preliminary) [2022] NSWSC 843 Hearing dates: 22 June 2022 Decision date: 28 June 2022 Jurisdiction: Common Law Before: Button J Decision: (1) An order pursuant to s 15(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 those examinations by a date to be fixed by the Court; and (b) Directing the defendant to attend those examinations. (2) An order pursuant to s 18A of the Act that the defendant be subject to an interim detention order for a period of 28 days commencing from midnight on 5 July 2022. (3) An order pursuant to s 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 order (2). Catchwords: HIGH RISK OFFENDER – application for mandatory psychiatric and psychological examinations and interim detention order pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – counsel for the defendant conceded the making of an interim supervision order but opposed an interim detention order – extensive history of incarceration for sexual offences and other violence, and breaches of conditional liberty – inevitable institutionalisation of older prisoner - recent allegation of violence in gaol awaiting resolution – plaintiff amended summons to interim detention order from interim supervision order in response – mandatory examinations and interim detention order imposed Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Cases Cited: State of New South Wales v Russell (Preliminary) [2018] NSWSC 1396 State of New South Wales v Russell (Final) [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 State of New South Wales v Russell (Final) [2021] NSWSC 702 Category: Procedural rulings Parties: State of New South Wales (Plaintiff) Brett Thomas Russell (Defendant) Representation: Counsel: A Mykkeltvedt (Plaintiff) J Lucy (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Voros Lawyers (Defendant) File Number(s): 2022/74102 Publication restriction: Nil Judgment Background 1. The State of New South Wales (the plaintiff) has sought a number of interim orders against Mr Brett Thomas Russell (the defendant) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). None of them were resisted, except for the imposition of an interim detention order (IDO) of 28 days. Counsel for the defendant submitted that I would not be satisfied that the liberty of the defendant should be extinguished in that way, and that, in the alternative, I should impose an interim supervision order (ISO). If I were to accept that proposition, her further submission was that I would decline to impose some of the conditions of that ISO sought by the plaintiff. 2. The defendant has been the subject of orders pursuant to the Act on many occasions, and there have been many judgments in support of them. The digital version of my judgment provides hyperlinks to all of those available on NSW Caselaw, as follows: 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; State of New South Wales v Russell [2021] NSWSC 702. Because of that, and because of the need for a reasonably speedy decision about this circumscribed dispute (bearing in mind the current release date of 5 July 2022), and with the agreement of the parties, I shall not traverse old ground in this judgment. 3. To recap for the convenience of the reader: the defendant is a 59-year-old Aboriginal man. He has spent the vast majority of his adult life in custody, as a result of his convictions for serious violence, including serious sexual violence. To expand on that, since 1985, when he was in his early 20s, he has spent a total of approximately 6 years and 10 months in the community constituted by 18 separate occasions of being at liberty, the longest of them being for twenty months. He has failed on parole many times, often within a matter of months or even weeks of release. In 2008, the very experienced District Court judge who imposed sentences upon the defendant for two counts of sexual intercourse without consent and two counts of indecent assault painted a bleak picture of institutionalisation even then. Since that time, the defendant has been continuously incarcerated, first by way of serving the entirety of that sentence (after its reduction on appeal to a total head sentence of 9 years), and thereafter by way of three consecutive continuing detention orders (CDOs) of one year's duration, imposed in chronological order by me, N Adams J, and Harrison J. Prior to the imposition of the last of those, a report was received from an eminent forensic psychiatrist that was adverse indeed, and concluded with the proposition that only a CDO of a duration of five years, in all likelihood requiring repeated renewal, would give effect to the purposes of the Act. 4. On the other hand, a psychological report from the same time opined that the defendant could be managed on an extended supervision order (ESO) after completing the therapeutic programs in which he was enrolled. This was despite the opinion that the defendant was at high to "well above average" risk level of re-offending. 5. More recently, the defendant has completed a number of therapeutic courses in custody, albeit after some false starts. There have also been a number of signs of maturity, and mellowing, and self-reflection that were not present in the past. Because of those factors, and because of the generally reducing effect upon criminality of the simple passage of years of one's life, the plaintiff commenced these proceedings in March 2022 by way of an original summons seeking a five year ESO. Included in the documentation placed before me was a risk assessment report of December 2021 that spoke with cautious optimism in support of such an order. 6. What led the plaintiff to change its position from seeking a five year ESO (preceded by an ISO) to seeking a one year CDO to be followed by a five year ESO (the first of which to be preceded by the IDO currently under consideration) is the following. 7. There is, to my mind, a reasonably strong case that, in April 2022, the defendant inflicted actual bodily harm on a fellow prisoner. That harm was allegedly inflicted by way of a punch and a kick to the victim's head, and constituted a brief loss of consciousness, bruising to the mouth, a minor scratch on the lip, and a bump on the head. 8. There is also, to my mind, a reasonable case that the motivation for those actions on the part of the defendant was a refusal by that other prisoner to continue to provide him with sexual satisfaction. 9. The point was soundly made by counsel for the defendant that there has been no conviction in that regard, and that the defendant has entered a plea of not guilty to the charge. Even so, she did not resist the proposition that I could take the allegation into account as I saw fit, adopting suitable caution. 10. I have done so. And I have reflected upon it in the context of there being some earlier incidents of violence committed by the defendant in custody that have resulted in convictions, albeit over many years. 11. And I have also reflected upon it – again with caution, because of the absence of convictions in the following regard – bearing in mind that there is a reasonably strong suggestion in the evidence placed before me that, as recently as 2020, the defendant has been a person who will threaten or inflict severe violence against other prisoners if they do not accede to his sexual demands. Submissions for the defendant 1. Counsel for the defendant submitted that the Act reposes in me a broad evaluative judgment or "discretion" as to whether or not to impose an IDO or an ISO. 2. She submitted that all "mechanistic" statutory preconditions for the making of either order had been established, and it was simply a matter for my determination as to whether liberty should be conditioned or extinguished for a short period. 3. She adopted my initial thought that, speaking generally and leaving aside unusual or difficult cases, I would not impose an IDO if I felt that an ISO would be sufficient to give effect to the purposes of the Act (accepting that that word has inevitably contestable normative aspects to it). 4. She emphasised that progress has been made in receiving the benefits of therapeutic courses, perhaps for the first time in the life of her client. 5. She also pointed to a number of signs of insight and maturing. 6. Counsel submitted that a rigorous and constructive regime is in place for the conditional release of the defendant, including living in structured accommodation, receiving psychological help, and addressing any difficulties with regard to alcohol or prohibited drugs. She identified a significant amount of supervision to forestall further offending and to advance important treatment plans, all of which is foreshadowed in a risk management report of early January of this year. 7. She submitted that rehabilitation is undoubtedly one of the purposes of the Act, and that removal from the harsh and unnatural prison environment would further the rehabilitation of her client, and ultimately his reintegration into the community, in the interests of everyone. 8. Counsel for the defendant submitted that I should exercise my discretion to impose an ISO to allow the defendant to demonstrate, within a short period of time, that he can comply with a rigorous form of conditional liberty, before the question of final orders is put before the Court. 9. Finally, she submitted that, within the confines of the Act, one would shy away from the prospect of any person being indefinitely detained, years after the expiry of their sentence of imprisonment. Determination 1. Turning to my determination, I respectfully think that much that counsel for the defendant has said has force. Nevertheless, in general accordance with the submissions for the plaintiff, I propose to impose an IDO, for the following reasons. 2. First, the defendant is unquestionably thoroughly institutionalised. Readjustment to life in the community will be an enormous challenge. 3. Secondly, I accept that progress has been made, and that the defendant has come to see that there will need to be a change in his behaviour, and thinking and feeling, otherwise he runs a serious risk of being detained, perhaps until the end of his life or earlier enfeeblement. 4. Thirdly, I respectfully agree that, whatever outcome strict or theoretical application of the Act might countenance, speaking generally one would do one's best responsibly to avoid the result whereby a person is detained for a very extended period without conviction. To do otherwise ignores the secondary purpose of the Act. 5. Fourthly, even so, the latest allegation is very troubling: as I have said, there is a reasonably strong case that physical violence was inflicted, and a case of some strength that it was inflicted with an underlying sexual motivation. 6. Fifthly, that having allegedly occurred after the defendant had completed a therapeutic program directed towards preventing that kind of violence, and after there had been signs of mellowing, and in the context of the prior convictions of the defendant, and – perhaps most concerning of all – when the defendant was well aware that his then CDO was coming to an end, and the question of his liberty would be raised again – is troubling indeed. So is the seeming insouciance of the defendant about it affecting his prospects of release: that suggests, I think, that the prospect of re-incarceration for breaching an ISO would not powerfully deter the defendant from doing so. 7. Sixthly, I appreciate that a constructive regime of conditional liberty is proposed. Even so, there will surely be times when the defendant would be out and about completely unsupervised in the community. Bearing in mind the catastrophic impact that any offence of serious violence or sexual violence could have on another member of that community, as things currently stand the realisation of that risk is not something that I am prepared to accept. 8. Seventhly and finally, the latest psychiatric report to hand is, as I have said, bleak indeed. It predicts failure within a matter of weeks. Indeed, on one view it could be said that the recent allegation constitutes a failure before the defendant was even released. I am not prepared to take the step of releasing the defendant to conditional liberty with the latest psychiatric opinion providing that prognosis, bearing in mind the immediate context that I have sketched. 9. Whether a mandatory report pursuant to my interim orders could lead to a different conclusion is, of course, a completely separate question. Conclusion 1. For all of those reasons, I consider that the appropriate order for me to make is to impose a short IDO. 2. It follows that I am not required to determine any dispute about the conditions of the putative ISO. Orders 1. I make the following orders: 1. An order pursuant to s 15(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 those examinations by a date to be fixed by the Court; and 2. Directing the defendant to attend those examinations. 1. An order pursuant to s 18A of the Act that the defendant be subject to an interim detention order for a period of 28 days commencing from midnight on 5 July 2022. 2. An order pursuant to s 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 order (2). ********** 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: 28 June 2022