The State of New South Wales v Winters [2008] NSWSC 1474

New South Wales Supreme Court

CITATION : The State of New South Wales v Winters [2008] NSWSC 1474

HEARING DATE(S) : 6 November 2008 JURISDICTION : Civil

JUDGMENT OF : McClellan CJatCL

EX TEMPORE JUDGMENT DATE : 6 November 2008

DECISION : 1. Pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 I make an extended supervision order in respect of the defendant for a period of five years to commence at 4.00 pm today, 6 November 2008, and pursuant to s 11 of the Act, I direct the defendant to comply with the conditions set out in the schedule which will be attached to my reasons for judgment and which, when the order is taken out, should be attached to the order. 2. I will further order that the interim order which I made on 7 October will terminate at 4.00 pm today when the order which I have made today will take effect.

CATCHWORDS : CRIMINAL LAW - extension of supervision order - order made

LEGISLATION CITED : Crimes (Serious Sex Offenders) Act 2006

PARTIES : The State of NSW (Pltf) Christopher Paul Winters (Def)

FILE NUMBER(S) : SC 14521/08

COUNSEL : D Kell (Pltf) D Dalton SC (Def)

SOLICITORS : NSW Crown Solicitor's Office (Pltf) Legal Aid Commission of NSW (Def)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCLELLAN CJ at CL

THURSDAY 6 NOVEMBER 2008

14521/08 THE STATE OF NEW SOUTH WALES v WINTER

JUDGMENT 1 HIS HONOUR: The plaintiff filed a summons on 29 August 2008 seeking an order that the defendant, Christopher Paul Winters, be subject to an extended supervision order pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 for a period of five years. 2 I have previously considered applications by the plaintiff in relation to Mr Winters. The first of those applications sought a continuing detention order which I made last year for a period of 12 months. The 12 month period has now expired and, as I understand it, by reason of Mr Winters' progress in effective treatment programs, the plaintiff no longer seeks his continued detention. 3 The continuing detention order has now expired and on 9 September 2008 I made an order for his release under supervision on an interim basis pursuant to s 8(1) of the Act. I renewed that order on 7 October 2008. 4 There is agreement between the parties that it is now appropriate for me to make an extended supervision order pursuant to s 9(1)(a) of the Act. To this end, the parties have also agreed to the conditions which should be imposed by the court on that order which have been effectively included in a document headed "Risk Management Plan Applicable to Christopher Paul Winters". The terms of that plan have been settled in court this morning and the document which carries amendment in my handwriting is the document which now reflects the agreement between the parties. 5 The plaintiff's application is supported by a considerable volume of affidavit material including evidence from Darelle Williams, Professor David Greenberg, Viviane Fahs, Naomi Malhotra and Adam Simon. The State has also tendered and relies upon reports from Dr Jeremy O'Dea dated 15 October 2008 and Dr Stephen Allnutt dated 9 October 2008, who are psychiatrists appointed by the court under the Act to consult the defendant and provide assistance to the court. 6 The affidavit of Ms Malhotra affirmed on 6 November 2008 also annexes a report from Dr Andrew Ellis of Justice Health dated 4 November 2008 relating to the defendant's anti-libidinal dosage. 7 The scheme of the legislation has been discussed in many judgments, including my first judgment in relation to the present defendant. The defendant is a serious sex offender within the meaning of the Act and was, at the time the application was made, in custody pursuant to a continuing detention order. 8 The court's power to make an extended supervision order is provided, as I have indicated, by s 9(1)(a) of the Act. The test which the Act prescribes is in s 9(2) and is in the following terms: "An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision." 9 As I have already indicated, the defendant does not oppose the making of an extended supervision order. This, of course, does not foreclose the court's consideration of the matter. However, having regard to the evidence, in particular, from the psychologists and psychiatrists who have considered the defendant's situation, I am satisfied that the statutory test is fulfilled and it is appropriate for me to make the order. In particular, the evidence of Prof David Greenberg and Dr Jeremy O'Dea satisfies me that the test is made out in this case. 10 Professor Greenberg said, inter alia: "I am of the view that Mr Winters is at high risk to commit further serious sexual offences if he is not provided with adequate ongoing maintenance, support, supervision and treatment including adequate dosages of anti-libidinal medication and ongoing psychological treatment." 11 Dr O'Dea has provided the following opinion: "It would appear that Mr Winters' psychiatric status, and clinical and actuarial risk assessment and risk management issues, have not changed significantly from my assessment detailed in my report dated 9 July 2000 … Mr Winters would still fall in the category of sex offenders with a significantly high risk of engaging in further sex offending behaviours in the community in the long term." 12 I am also mindful of the evidence of Dr Allnutt in reaching the conclusion which I have. 13 The parties are agreed that the court should make the order for a five year period and I propose to do this. Section 10(1) provides that maximum term for any order is a period of five years, although s 10(3) allows for further orders to be made upon the application of the plaintiff. 14 I should also indicate that the parties have given careful and extensive consideration to the appropriate conditions incorporated into the management plan. I am satisfied that those conditions are appropriate. 15 Accordingly, I make the following order: