New South Wales Supreme Court CITATION : Attorney General for the State of New South Wales v Tillman [2007] NSWSC 528 HEARING DATE(S) : 25/5/07 JUDGMENT DATE : 29 May 2007 JUDGMENT OF : Bell J at 1 DECISION : 1. Pursuant to s 16(3) of the Crimes (Serious Sex Offenders) Act 2006 renew the interim detention order to take effect on and from Wednesday 30 May 2007 for a period of 28 days or until the determination of the plaintiff's claim for final orders whichever is the shorter period; 2. Pursuant to s20(1) of the Crimes (Serious Sex Offenders) Act 2006 a warrant issue for the committal of Kenneth Davison Tillman to a correctional centre for the period specified in the order. CATCHWORDS : Renewal interim detention order LEGISLATION CITED : Crimes (Serious Sex Offenders) Act 2006 CASES CITED : Attorney General for New South Wales v Tillman [2007] NSWCA 119 PARTIES : ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES (Plaintiff) Kenneth Davidson TILLMAN (Defendant) FILE NUMBER(S) : SC 11830/07 COUNSEL : L. Babb / A Mitchelmore (Plaintiff) A P Cook (Defendant) SOLICITORS : I V Knight Crown Solicitor's Office (Plaintiff) Aboriginal Legal Service (NSW/ACT) Limited (Respondent) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BELL J Tuesday 29 May 2007 11830/07 Attorney General for the State of New South Wales v Kenneth Davidson Tillman JUDGMENT 1 BELL J: These proceedings were commenced by summons filed on 11 April 2007. The plaintiff, the Attorney General for New South Wales, claimed orders including an order pursuant to s 17(1)(b) of the Crimes (Serious Sex Offenders) Act 2006 (the Act) that the defendant be detained in a correctional centre for five years from the date of the order. The plaintiff also claimed on order pursuant to s 16(1) that the defendant be detained in a correctional centre on an interim basis for a period of 28 days, in the alternative, pursuant to s 8(1) that he be subject to interim supervision for a period of 28 days. 2 On 17 April 2007 Hoeben J made on order pursuant to s 8 that the defendant be subjected to extended supervision for a period of 28 days: Attorney-General for the State of New South Wales v Tilman [2007] NSWSC 356. His Honour ordered that two qualified psychiatrists conduct separate psychiatric examinations of the defendant and furnish reports to the Court on the results of those examinations. 3 The defendant was serving a sentence of imprisonment at the Long Bay Correctional Centre at the date the matter came before Hoeben J. His sentence was due to expire on 18 April 2007. At the expiration of his sentence it appears that he was released subject to the orders made by Hoeben J. 4 The plaintiff appealed against Hoeben J's order. On 3 May the Court of Appeal made orders allowing the appeal, setting aside the order made by Hoeben J and, in lieu thereof, ordering that the respondent be detained at a correctional centre on an interim basis for a period of 28 days from 3 May. The Court ordered that a warrant issue for the committal of the respondent to a correctional centre for the period specified in the interim detention order: Attorney General for New South Wales v Tillman [2007] NSWCA 119. 5 The order made by the Court of Appeal will expire on Wednesday 30 May 2007. 6 By notice of motion the plaintiff claims orders including an order pursuant to s 16(3) of the Act that the interim detention order made by the Court of Appeal on 3 May 2007 be renewed for a period of 28 days on and from 30 May 2007. 7 On 25 May 2007 I heard the plaintiff's motion. I gave the plaintiff leave to file an amended summons in the form of the draft annexed to the affidavit of Bradley Dean. In the amended summons the plaintiff maintains his claim for an order under s 17(1)(b) that the defendant be detained in a correctional centre for five years. Thursday 31 May 2007 was fixed for the hearing of the amended summons. 8 The plaintiff read the affidavits of Sophie Genevieve Callan (affirmed on 13 April 2007); Victoria Bel (sworn on 13 April 2007); David Bright (sworn on 13 April 2007); and Christopher Lenning (sworn on 13 April 2007). The reports and other documents exhibited to the deponents at the time of swearing/affirming their affidavits are also in evidence. This is the same evidence as was before Hoeben J. 9 The plaintiff also tendered the reports of the two psychiatrists, Dr Allnutt and Professor Greenberg, who carried out assessments of the defendant pursuant to the orders made by Hoeben J. 10 Mr Cook, who appeared for the defendant, tendered a document under the hand of Michael Criston, Executive Manager of MJM Investigations (Australia), described as a "Highly Confidential Surveillance Report", which is dated 8 May 2007. The report details the results of physical surveillance carried out on the defendant by staff of MJM Investigations in the period between 6.00 am on 22 April and 6.30 pm on 3 May 2007. This covers much of the time when the defendant was at liberty subject to the conditions imposed by Hoeben J. 11 The Crown Advocate, who appeared on the plaintiff's behalf, objected to the tender of the MJM report on the ground of relevance. Mr Cook submitted that the fact and extent of the physical surveillance carried out on the defendant was relevant to the assessment of the adequacy of any interim supervision order to protect the community: cf Tillman at [121]). The factual basis upon which the Court of Appeal proceeded was that the supervision of the defendant was limited to the conditions imposed by Hoeben J. Mr Cook submitted that the evidence demonstrated that the authorities had in place a regime of extensive physical surveillance of the defendant such that the opportunity for him to re-offend without timely preventative intervention by the police was remote. I was invited to infer that if the defendant was released on an interim supervision order under s 8(3) the Commissioner of Corrective Services would continue to engage the services of MJM Investigations or some other agency to carry out physical surveillance of the defendant. 12 The Crown Advocate submitted that the power conferred by s 16(3) to renew an interim detention order does not extend to making an extended supervision order under s 8(3). In his submission the plain wording of subsections 16(3) and 8(3) is that the power to renew is confined to renewal of an interim detention or supervision order as the case may be. In the view that I have come to, it is not necessary to determine the scope of the power to renew interim detention orders. Accepting without deciding, that the Act permits the Court in determining an application under s 16(3) for the renewal of an interim detention order to impose an interim supervision order, in my opinion, it would not be appropriate to do so in this case. 13 The evidence upon which the plaintiff principally relies is summarised in the judgment of the Court of Appeal at [64] to [81]. It is more fully set out in the judgment of Hoeben J (as their Honours noted at [61]). It is not necessary to repeat the material in these reasons. The opinions of Dr Allnutt and Professor Greenberg are broadly consistent with the opinions expressed by Ms Bel, Mr Bright and Dr Lenning concerning the risk of re-offending. 14 Professor Greenberg observes that the defendant falls in the high-risk category by reference to the STATIC 99 measure, the most commonly and widely used instrument used for assessing risk for sexual re-offence. Professor Greenberg assessed the defendant on 24 April. He considers that the defendant's risk factors include substance abuse. He notes that the defendant has had difficulties with alcohol and other substances during his periods of freedom in the community. 15 Dr Allnutt also assessed the defendant on 24 April. He saw him again at the Long Bay complex on 10 May. Dr Allnutt expresses concerns based among other things on the defendant's history of coping with stressors by the use of alcohol. Dr Allnutt, by reference STATIC 99 measure, considers the defendant to be in the higher risk group of sex offenders. He considers that there is reason to be concerned about the defendant's capacity to adhere to a compliance regime. 16 The Court of Appeal discussed the approach to the making of interim detention orders at [43] – [46]. I proceed upon the basis that there is no presumption in favour of maintaining the status quo and equally that there is no warrant for discounting the unchallenged evidence which in this case points to risk-avoidance at the interim stage. I do not draw the inference that if the defendant were released on an interim supervision order he would be subject to constant physical surveillance. I do not know what, if any, measures the Commissioner of Corrective Services would implement in this respect. 17 Section 11 of the Act provides that an interim supervision order may direct an offender to comply with such conditions as the Court considers appropriate, including (but not limited to) directions requiring the offender to do or refrain from doing the things specified in subparas (a) to (j). It was not suggested that the Court's powers to impose conditions on an interim supervision order would extend to a condition having the effect of subjecting the offender to 24-hour physical surveillance. 18 There was no issue that the plaintiff had satisfied the threshold test of s16(1)(b). The supporting documentation on which the plaintiff relies has been strengthened by the opinions of the two psychiatrists. The expert opinion taken in association with the defendant's history of criminal offending, which includes the commission of sexual offences while on parole, are significant matters weighing in favour of the application for the renewal of an interim order. 19 In deciding whether to renew an interim detention order a relevant consideration is the length of time that the person may be held in custody pending the determination of the principal application. In this case the hearing of the application for final orders will commence the day after the expiry of the order made by the Court of Appeal. Taking into account the protective nature of the legislation in light of the principles explained by the Court of Appeal, I am of the opinion that the plaintiff has established that the interim detention order should be renewed. I propose to renew the order for a period of 28 days or until the determination of the application for final orders, whichever is the shorter period. ORDERS 1. Pursuant to s 16(3) of the Crimes (Serious Sex Offenders) Act 2006 renew the interim detention order to take effect on and from Wednesday 30 May 2007 for a period of 28 days or until the determination of the plaintiff's claim for final orders whichever is the shorter period; 2. Pursuant to s20(1) of the Crimes (Serious Sex Offenders) Act 2006 a warrant issue for the committal of Kenneth Davison Tillman to a correctional centre for the period specified in the order. ********** 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.