New South Wales Supreme Court CITATION : Attorney General v Jamieson [2007] NSWSC 465 HEARING DATE(S) : Wednesday 9 May 2007, Thursday 10 May 2007 JUDGMENT DATE : 11 May 2007 JURISDICTION : Common Law Division JUDGMENT OF : Hidden J at 1 DECISION : Interim detention order for 7 days CATCHWORDS : CRIMINAL LAW: - Crimes (Serious Sex Offenders) Act - application for interim detention order - sufficiency of supporting documentation - defendant likely to be deported upon release - fresh charges LEGISLATION CITED : Crimes (Serious Sex Offenders) Act 2006 Dangerous Sexual Offenders Act 2006 (WA). Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340 Attorney General for the State of New South Wales v Tillman [2007] NSWSC 356 CASES CITED : Attorney General for the State of New South Wales v Quinn [2007] NSWSC 456 Director of Public Prosecutions for Western Australia v Mangolamara [2007] WASC 71 Director of Public Prosecutions for Western Australia v Mangolamara [2006] WASC 172 Briginshaw v Briginshaw (1938) 60 CLR 336 PARTIES : Attorney General for the State of New South Wales (plaintiff) Keith Royce Jamieson (defendant) FILE NUMBER(S) : SC 2007/11984 COUNSEL : L Babb with A Mitchelmore (plaintiff) A P Cook (defendant) SOLICITORS : Crown Solicitor (plaintiff) Legal Aid Commission (defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Friday 11 May 2007 2007/11984 Attorney General for the State of NSW v Keith Jamieson JUDGMENT 1 HIS HONOUR: By summons filed in this Court the Attorney General, as plaintiff, seeks orders against the defendant, Keith Jamieson, under the Crimes (Serious Sex Offenders) Act 2006. These include an order under s17 of the Act for his continued detention for five years or, alternatively, an order under s9 for his extended supervision for the same period. In the immediate term, however, the Attorney sought an interim detention order under s16 or an interim supervision order under s8. 2 That interim application was before me two days ago, on 9 May 2007. It was made because the expiry of the sentences which the defendant is currently serving was imminent, that is, today. Yesterday, I made an interim order for the detention of the defendant for 7 days from today. These are my reasons for that decision. 3 The defendant, who was represented before me, does not dispute that he is a sex offender to whom the Act applies: see the definition of "sex offender" in s4 and of "serious sex offence" in s5. He did not oppose an interim supervision order for the period sought, that is, 28 days. However, the Attorney pressed his application for an interim detention order, also for 28 days. 4 The legislation, of course, is recent. I was referred in argument to two previous applications for interim orders which have been decided by this Court. In Attorney General v Gallagher [2006] NSWSC 340, McClellan CJ at CL made an interim detention order. In Attorney General v Tillman [2007] NSWSC 356, Hoeben J declined to make an interim detention order but did make an interim supervision order. The Attorney appealed against Hoeben J's decision, and the Court of Appeal set that decision aside and made an interim detention order. The Court's reasons have yet to be published. 5 The machinery of the Act and the policy behind it were examined by McClellan CJ at CL in Gallagher at [20]-[41], and by Hoeben J in Tillman at [7]-[17]. To their Honours' observations I should add those of Hall J in a decision handed down on 9 May 2007, after I heard argument in the present application: Attorney General v Quinn [2007] NSWSC 456 at [8]–[25]. I need not repeat what their Honours said, but for the purposes of the present application it is necessary to refer to some relevant provisions. 6 By s9 this Court is empowered to make an extended supervision order, but it may do so only if it 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: subs(2). Provision for the making of continuing detention orders is to be found in s17. By s17(1), on an application for a continuing detention order the Court may make that order or, instead, an extended supervision order. A continuing detention order may be made only if the Court is satisfied, again 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 and that adequate supervision will not be provided by an extended supervision order: subs(3). 7 Sections 9 and 17, of course, deal with final orders. The present application for an interim detention order is brought under s16(1), which provides: (1) If, in proceedings on an application for a continuing detention order, it appears to the Supreme Court; (a) that the offender's current custody will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court may make an order for the interim detention of the offender. 8 The expression "supporting documentation" is defined in s4. For present purposes, it means the material supplied to me by the Attorney in this application. Clearly, for the purpose of subs(1)(a), the defendant's current custody would have expired before the proceedings on the application for a continuing detention order could be determined. Of importance, however, are the terms of subs(1)(b). As I have said, s17(3) provides that a final continuing detention order cannot be made unless the Court is satisfied that adequate supervision of the offender would not be provided by an extended supervision order. However, the effect of s16(1)(b) is that an interim detention order may be made if it appears that the matters alleged in the supporting documentation would, on their face, justify the making either of a continuing detention order or an extended supervision order. 9 As McClellan CJ at CL observed in Gallagher at [45], an application such as this must be approached upon the assumption that the matters in the supporting documentation are proved, with the result that "there is little or no opportunity for the defendant to bring evidence or test the evidence of the Attorney General". No evidence was led by the defendant in the present application. 10 If the test in s16(1)(b) is satisfied, the question remains whether the expression "may make an order" in the subsection leaves the Court with a residual discretion to refuse the application. That, I am told, was argued before the Court of Appeal in Tillman. Hall J did not find it necessary to resolve the question in Quinn: see the judgment at [21]. As will be seen, nor did I. The evidence 11 The central question which I had to determine was whether the material before me is capable of satisfying the test for a continuing detention order under s17 or an extended supervision order under s9. Both sections set out, effectively in the same terms, a series of matters which the Court must consider in applying that test: see ss17(4) and 9(3). Those matters fell to be examined in the light of the evidence, to which I now turn. 12 The defendant has completed an aggregate sentence of ten-and-a-half years, dating from 13 November 1996, for a series of sexual offences committed against boys or youths of ages ranging from nine to seventeen. There is no need to list the offences. It is sufficient to say that they embraced a variety of sexual activity, including anal penetration. Some were committed over a period between 1981 and 1983, but most were committed between 1988 and 1996. In relation to two of the victims, the offences charged were representative of a wider pattern of abuse. 13 The defendant enticed his victims into sexual activity by what is referred to in the psychological reports before me as "grooming" behaviour. He met and befriended them through his association with a Christian church, he afforded them hospitality, he showed them pornographic magazines and videos, and frequently he plied them with alcohol or drugs. 14 In 1973 he was convicted of offences of indecent assault male and buggery, with two further offences of a similar kind taken into account on a schedule, and was sentenced to a term of imprisonment. The offences had been committed earlier in that year, and the victim was a fourteen- year-old youth. In 1986 he was sentenced to imprisonment for a charge of committing an act of indecency with a person under sixteen years of age. This offence was committed shortly before he was dealt with, the victim was thirteen years old, and he had supplied the youth with alcohol and drugs. 15 In 1988 he was convicted of a charge of soliciting a male for an indecent act, and yet again sentenced to a term of imprisonment. That offence had been committed in the previous year. He had asked a fifteen-year-old youth, whom he had known for several years and to whom he had offered alcohol and marijuana on a number of occasions, to engage in sexual activity with him. The offence was committed while he was on parole for the sentence imposed in 1986. Similarly, some of the offences leading to his current sentence were committed while he was on parole for the sentences imposed in 1986 and 1988. 16 He has also been convicted of other offences, which are not particularly serious and which I do not consider material for present purposes. He was eligible for release on parole in respect of his present aggregate sentence in November 2005, but has remained in custody. 17 He is fifty-six years old. He was born in England and came to this country when he was twenty. He is not an Australian citizen and may well be deported when he is able to be released. That is a matter to which I shall return. He was married in his early twenties, but his homosexual activity put an end to that relationship. 18 I had before me material from three psychologists: a risk assessment report by Ms Kristy Murphy, employed by the Department of Corrective Services, a report of Ms Jenny Howell, a private practitioner, and an affidavit of Dr Roger Blake, now in private practice but formerly employed by Australasian Correctional Management at Junee Correctional Centre. Dr Blake had contact with the defendant in 1999 and 2000 in the course of two sex offender programs, to which I shall refer in a moment. Ms Murphy, whose comprehensive report was prepared for these proceedings, had a lengthy interview with him in December 2006. She also had access to a volume of background material, including psychiatric and psychological reports presented to the court in the proceedings which led to his present sentence. Ms Howell has not interviewed the defendant, but she supplied a report in response to certain questions put to her by the State Crown solicitor on behalf of the Attorney. 19 Dr Blake was involved at Junee in two programs known as SORT (Sex Offender Redirection Training) and NETT SORT ("NETT" standing for Normalisation, Education, Treatment and Training). The defendant participated in a preparatory psycho-educational treatment program known as Pre-SORT, as an introduction to the NETT SORT program. The latter was an extensive seventeen weeks program, which the defendant completed. It seems that his response was satisfactory. In April 2000 he was supplied with a certificate of graduation in the program, in which Dr Blake expressed pleasure in seeing "the new and positive Keith emerge, whereby defensiveness and negativity could be challenged". The doctor also observed that he was prepared to see his victim "as a victim" and to relinquish the "relationships status" to which he had previously clung. 20 Using the statistical test known as STATIC-99, Dr Blake assessed the risk of the defendant's re-offending as medium to high. For that reason, he considered that he needed the additional treatment provided by the familiar program known as CUBIT (Custody Based Intensive Treatment). The defendant was willing to participate in that program, and in July 2001 he was placed on the waiting list for it. Dr Blake's letter of referral to the program noted that the defendant "does display reasonable insight into his cycle of offending and has shown a real commitment within treatment". 21 There, it seems, the matter rested for the best part of three years. Whether that is because of the length of the waiting list or for some other reason does not appear from the material. In March 2004 the defendant told another psychologist that he was willing to undertake the CUBIT program provided it did not extend into his parole period. However, when he was finally offered a place in July of that year he declined it. He wrote in a prescribed form that he was waiting to see if further charges against him arising from events many years ago might be laid and, for that reason, did not wish to take a place that someone else might have. He added that he would undertake the program after Christmas "if still here". No further charges were laid at that time but, as will be seen, fresh charges have been laid recently. 22 In the following year he did not seek reconsideration for the program, although he was told that he would need to "re-refer" if he wished to participate in it. On two occasions in late 2005 the Parole Authority considered his release on parole but refused it. His declining to participate in CUBIT was given as one of the reasons for refusal on the first occasion, and appears to have been relevant to the second refusal. He was later noted by his case management team to be unwilling to do sex offender programs and resigned to serving the whole of his sentence. In his interview with Ms Murphy, he told her that he believed he had participated in enough sex offending treatment and that the CUBIT program would not teach him "anything different". 23 In applying the STATIC-99 test, which is an actuarial risk assessment, Ms Murphy had regard to his long history of sexual offending, the nature of the offences, and the fact that some were committed while subject to conditional liberty. She placed him in the "high risk category relative to other adult male sexual offenders". She also considered a number of dynamic risk factors, that is, matters peculiar to the defendant. 24 She observed that he suffers from "intimacy deficits", that is, an emotional identification with children and a limited capacity to relate to adults. She noted that he had had no contact with his family for many years, and that he has few adult friends. He was able to identify only two friends who might support him upon his release, one of those an untreated child sex offender. 25 She referred to what she described as his "distorted attitudes". While acknowledging that he appeared to have developed some sense of responsibility for his sexual offending, she found that he displayed "limited understanding of the harm caused to the victims", that he still appeared to view children as "sexually inquisitive", and that he believed that his "grooming" attempts were generally successful only with victims who were "curious". Under the heading "General Self Regulation", she found that his plans for his lifestyle upon his release were "vague" and displayed "limited understanding of anticipated difficulties". Noting that he had chosen not to participate in CUBIT, she concluded that he had "not provided himself with the opportunity to rectify his problematic behaviours or to formulate meaningful and effective self-management plans to manage his risk in the future". 26 Finally, in considering "sexual self-regulation", she noted his "strong history" of sexual preoccupation and sexually inappropriate behaviour, together with his "use of sex as a coping strategy". He told her that he no longer viewed sex as a "core component of his life" and that, in particular, his thoughts and fantasies about his victims and about children generally had reduced. However, he also said that "he was not very interested in establishing an appropriate and intimate sexual relationship upon release." 27 She wrote: Whilst Mr Jamieson reported that he longer engages in deviant sexual fantasies, he is not sexually pre-occupied and no longer uses sex as a coping strategy, the likelihood of such a significant change occurring, given the limited treatment Mr Jamieson has received, is questionable. 28 Her conclusion was as follows: Previous methods of supervising Mr Jamieson in the community have proven unsuccessful in preventing him from sexually reoffending. Mr Jamieson has consistently refused to enter treatment which is specific to his sexual offending behaviour and which is appropriate for his high level of risks/needs. Mr Jamieson's risk may be managed or reduced if he were to agree to participate in a suitable treatment program so as to allow him to identify the risk factors associated with his sexual offending behaviour, formulate meaningful and effective management strategies and to allow for the practice of these strategies. In custody, CUBIT offers a treatment program appropriate to Mr Jamieson's high risk/needs. Currently, there are no community based treatment programs of sufficient intensity which could expect to meet Mr Jamieson's high risk/needs. Participation in such treatment programs is voluntary and Mr Jamieson would need to consent to participate. 29 It is not necessary to refer in any detail to the report of Ms Howell. After examining relevant Corrective Services material, she arrived at much the same conclusion as Ms Murphy. The dynamic risk factors led her to find that the defendant "continues to require treatment for his sexual offending behaviour, and has not yet developed adequate strategies to manage his risk in the community". She saw it as desirable that he complete the CUBIT program, noting that there are no funded programs of that intensity available in the community. The alternative, she wrote, would be individual treatment with an accredited sex offender counsellor during an extended period of post release supervision, but she added that it was difficult "to provide the intensity of treatment that Mr Jamieson appears to require". The application 30 I have had the benefit of written submissions, developed orally, by the Crown Advocate, Mr Babb and Ms Mitchelmore of counsel, for the Attorney, and oral submissions by Mr Cook, counsel for the defendant. As I have said, it is necessary for the material produced by the Attorney to address the matters set out in sections 17(4) and 9(3) of the Act. Those relevant to this interim application are: (a) the safety of the community, … (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 sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, … (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, (f) 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, … (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, … 31 Clearly, all those matters have been addressed. The basal consideration is the first of them, the safety of the community. As is spelt out in ss9 and 17, a final order for continued detention or extended supervision requires proof "to a high degree of probability that the offender is likely to commit a further serious sex offence …". The standard of proof encompassed by those words was examined briefly by McClellan CJ at CL in Gallagher at [33]-[36], and by Hall J in Quinn at [24]-[25]. I need say no more than that it appears to be a high standard, although falling short of the criminal standard, appropriate for the gravity of the matter at issue, that is, the detention or supervision in the community of a man whose sentence has expired: cf Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J (as he then was) at 361 – 2. 32 As I have said, by s16(1)(b) the question to be decided in the present application was whether the material before me, untested and unrebutted, could meet that standard of proof. Clearly, it could. As Hoeben J observed in Tillman at [16], the test on an interim application is "similar to the requirement for a prima facie case to be made out in committal proceedings". 33 In so saying, I am mindful of the fact that the preponderance of the material I have is the expert evidence of psychologists. In proceedings for a final order evidence of that kind would be valuable but, most likely, would not be determinative of the question to be decided. No doubt, there would be additional evidence, perhaps from the defendant himself, perhaps from other experts. The reports I have leave unanswered questions such as the effect upon the likelihood of the defendant's re-offending of his more advanced age and his lengthy period of incarceration. However, as Mr Babb pointed out in argument, there is nothing before me touching on matters of that kind. Nor, it seems, could there be. I have had no choice but to decide this interim application on the limited material I have. 34 There is nothing to suggest that the long delay between the defendant's referral to CUBIT and his being offered a place in the program is attributable to any conduct on his part. If that is so, it is most disturbing. More importantly, it is regrettable that an intensive course such as CUBIT is not available to the defendant in the community. (One wonders whether he would maintain his opposition to such a program if it were.) That, however, is not a matter germane to my decision, for the reasons articulated by McClellan CJ at CL in Gallagher at [77]. 35 Mr Cook submitted that I should not make an interim detention order unless I was persuaded that it was the only option, and that the community would not be adequately protected by an interim supervision order. He referred to s17(3) of the Act, and the decision of Hasluck J in Director of Public Prosecutions for Western Australia v Mangolamara [2007] WASC 71 at [178] ff. That was an application for a continued detention order or a supervision order under the Dangerous Sexual Offenders Act 2006 (WA). What Hasluck J there said is valuable but, putting aside the fact that his Honour was considering different legislation from that with which I am concerned, he was dealing with an application for a final order. An interim detention order had previously been made by Blaxell J: [2006] WASC 172. 36 As I have said, an interim detention order may be made under s16(1)(b) where the Attorney's material, if proved, would justify the making of a continuing detention order or an extended supervision order. In any event, the fact that the form of treatment said to be most appropriate for the defendant is not available outside the prison system is a matter of concern, although that does not necessarily mean that he could not effectively be supervised in the community. Mr Cook put no other discretionary matter, such as delay, in opposition to an order. 37 All that said, it is in the light of very recent developments that I decided that a short interim detention order was appropriate. As I have said, when I heard argument two days ago I was informed that the defendant is likely to be deported upon his release. That position was confirmed yesterday but, in addition, counsel became aware only then that he has recently been charged with further sexual offences. These may well be the charges which he foreshadowed in 2004. 38 I took the view that, interim detention being available on the evidence, a period of 7 days was desirable and would allow further information about the defendant's position to be gleaned. If fresh charges are to proceed, the question of bail will arise. He would not oppose deportation and, if the charges do not proceed, it seems that he would be promptly returned to his country of origin. 39 Mr Babb submitted that I should, nevertheless, make an interim detention order for the period of 28 days sought by the Attorney. He noted that, by s19(1) of the Act, such an order could be varied or revoked in the light of developments. However, I was unwilling to make an order of such significance in circumstances where it might prove unnecessary. I directed that the matter be listed before me on Thursday next, 17 May, to review the situation and entertain any further application which might be made. ********** 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.