New South Wales Supreme Court CITATION : State of New South Wales v Hill (No 2) [2009] NSWSC 1138 HEARING DATE(S) : 13 May 2009, 14 May 2009 JUDGMENT DATE : 14 May 2009 JURISDICTION : Common Law JUDGMENT OF : Rothman J CATCHWORDS : SERIOUS SEX OFFENDER – Interim Supervision Order – variation sought – breach of current order – arrest – variation refused – Bail granted – no issues of principle LEGISLATION CITED : Bail Act 1978 Crimes (Serious Sex Offenders) Act 2006 CATEGORY : Principal judgment CASES CITED : R v Newby (Supreme Court of New South Wales, Sully J, 27 January 2006, unreported) PARTIES : State of New South Wales (Plaintiff) Allan Troy Hill (Defendant) FILE NUMBER(S) : SC 11422/2009 COUNSEL : C Adamson SC / D T Kell (Plaintiff) P Strickland SC (Defendant) SOLICITORS : Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ROTHMAN J 14 MAY 2009 11422/2009 State of New South Wales v Allan Troy Hill (No 2) JUDGMENT 1 HIS HONOUR: On 26 March 2009, the Court made orders, reflecting reasons for decision given ex tempore, which were orders under s 8(1) of the Crimes (Serious Sex Offenders) Act 2006 ("the Act"), establishing Interim Supervision Orders relating to Mr Hill. Those Interim Supervision Orders included a term that Mr Hill not possess or consume illicit drugs. On 12 April 2009 (at approximately 3.00pm), Mr Hill was required, pursuant to the Supervision Orders, to submit a urine sample, which, in results provided on 25 April 2009, demonstrated a positive return for cocaine metabolites. 2 On Saturday 25 April 2009, when Mr Hill reported, in accordance with the Interim Supervision Orders, to the Police, he was arrested for the breach of the Supervision Order. A breach of a Supervision Order is an offence under s 12 of the Act for which an offender is liable to a maximum of 2 years' imprisonment. 3 The State of New South Wales applies for a variation to the Interim Supervision Orders, essentially to require Mr Hill to wear an electronic monitoring device. Mr Hill applies for bail in relation to the offence under s 12 of the Act. For obvious reasons the two matters are related and the Court has, with the consent of the parties in both matters, treated the evidence in the variation application as evidence in the application for bail. However, the bail application is a criminal proceeding and the variation is not. Mr Hill has made clear, and the Court accepts, that if the Court were minded not to grant bail in relation to the offence, then a variation to the Interim Supervision Orders would be futile. 4 Mr Hill was convicted of offences relating to adult women, which, in common parlance, would be called rape offences, being various sexual assault offences in circumstances of aggravation. In each case, the offence was committed while Mr Hill was under significant influence of alcohol. It seems that the offences relate to a pattern of anger towards women, which fits with domestic violence offences that have occurred in other relationships. Importantly, on past history, it is the consumption of alcohol that has been the catalyst for the offences, and not, it seems, the consumption of illicit drugs. Notwithstanding the foregoing comment, it is clear that disinhibiting or mind-altering substances are a significant factor in the conduct of Mr Hill and are matters of some concern. 5 However, no particular location seems to be more conducive to the commission of an offence. In particular, unlike offenders convicted of paedophilia offences, there are no issues relating to prohibiting Mr Hill from being in or near particular places or locations in order to lessen the risk of offence. It seems clear, on the material before the Court, including what are now significant psychiatric assessments, that the major issue in Mr Hill's offending is alcohol, and a risk factor, albeit in the absence of any previous history of it being related to offending, is the use of disinhibiting or mind-altering substances. 6 Mr Hill was released pursuant to the orders issued by the Court on or about 27 March 2009. He was arrested on 25 April 2009 and committed the offence (if it were committed) some time between 9 and 12 April 2009. The offence in question is the use of illicit drugs (cocaine), which is inconsistent with the requirement of the Supervision Order, namely, that he not use illicit drugs. 7 The particulars of the charge contained in the Court Attendance Notice, with which Mr Hill has been served, and which forms the basis of the arrest and incarceration, are plainly wrong. The offence was not committed on 25 April 2009. That is the date of the arrest. On the material before the Court, cocaine metabolites, found in the urine sample provided by Mr Hill are the product of cocaine and no other substance. Cocaine is an illicit drug. Cocaine metabolites can be found in the urine up to 72 hours from the consumption of cocaine. As a consequence, the offence, if it occurred, would have been committed between 9 and 12 April 2009. This is approximately two weeks' after his release. 8 Nevertheless, during the entirety of his period of liberty and supervision in accordance with the orders of the Court, Mr Hill was tested for drugs and alcohol on a number of occasions. This is the only positive test and the tests disclosed no evidence of the consumption of alcohol and, in relation to the period immediately before such testing, evidence of no consumption of alcohol. 9 The Interim Supervision Orders allow the supervising officer to assess and approve the accommodation in which Mr Hill is to reside. Further, it allows the supervising officer to require psychological intervention and rehabilitation treatment, presumably for drug and alcohol abuse. On the material before the Court, it seems that the supervising officers have not directed participation in any intervention program or in any rehabilitation program and, except for the psychiatric assessment required by Court order, have not required the defendant to undergo any psychological intervention. However, it seems that psychological assessments have occurred regularly (but not an intervention program) and the supervising officer has encouraged Mr Hill to attend a counselling program in relation to drug and alcohol (see Exhibit A, pages 14 and 31-32). 10 The orders originally sought by the State of New South Wales included the requirement to wear an electronic monitoring device and included permission for the Department or a supervising officer to inform any person, with whom Mr Hill was having or was to have a sexual relationship, of his criminal history. Further, the orders originally sought required Mr Hill to specify his movements 48 hours in advance (subject to emergent or urgent variations thereof). 11 The Court did not order an electronic monitoring device. The orders that the Court made also qualified the information that could be provided to any person with whom the defendant proposed to enter into a sexual relationship. It required (as proposed by the State of New South Wales) Mr Hill to notify a supervising officer at the earliest opportunity of any person with whom he intended to enter a sexual relationship and allowed the supervising officer to disclose to such person "that the defendant as a result of domestic violence offences is not permitted to drink alcohol". The officer was permitted to disclose such information if satisfied that to do so is necessary or desirable in the interests of the safety of that person. Leave was granted to apply to the Court at short notice, if the supervising officer considered it necessary to disclose any other matter. 12 The State of New South Wales, during the course of the proceedings for the variation, has relied on a significant amount of material including psychiatric assessments and case notes, some of which have been marked confidential (i.e. not for publication beyond the parties to the proceedings except on an order of a Judge). Those case notes disclose the fact that a supervising officer disclosed to the female partner of the person with whom Mr Hill resided that the offences for which Mr Hill were convicted were "sexual by nature and that alcohol appears to be a contributing factor". There is, on the face of the orders issued by the Court, no warrant to disclose these matters to this person. The information goes beyond that permitted in the order issued by the Court. 13 Indeed, on one view, even those matters, referred to in the Order, could be disclosed only to a person with whom Mr Hill proposed to enter a sexual relationship. This person was not in that category. I do not, by the foregoing, assert mala fides in the supervising officer. It is clear that the supervising officer took the view that it was important that a person, who would reside, from time-to-time, in the same residence as Mr Hill, know of the information because the person's safety may be compromised. However, the conversation has created significant problems. First, the State of New South Wales had leave on short notice to approach the Court to vary the orders, to the extent that a supervising officer considered it appropriate. Permission to disclose this information could easily have been sought and granted. Secondly, there can be little doubt that the conversation in question, and a subsequent telephone conversation, which occurred on or about the same date, were part of the stressor factors that gave rise to a reaction in Mr Hill and possibly led to the offending behaviour. 14 The Court has not been given the benefit of any reason why the safety of the person to whom these matters were disclosed was improved by her knowledge. Consent to undergoing risk factors, while it may be an important matter to the supervising officer and to the State, does not, in the end, improve Mr Hill's risk factors or the woman's safety. Nevertheless, the fact of the reaction by Mr Hill, if it be the fact, is, itself, a factor in determining the issues in his variation application. 15 Ultimately, the issue is whether this offence, if it has occurred, or this breach of the conditions, warrants the alterations to the regime imposed by the original Interim Supervision Orders. Dr Samuels, one of the psychiatrists, upon whose report the State of New South Wales relies (Exhibit C), makes clear that he has "no strong view" about the need to utilise electronic monitoring equipment as a factor in ameliorating the risk of Mr Hill re-offending. Certainly Dr Samuels does not suggest that it is necessary or desirable for electronic monitoring to occur. Ultimately, I am not persuaded that electronic monitoring will decrease the risk of re-offending. 16 This offender is in a category of persons covered by the provisions of the Act for which whereabouts, simpliciter, is not a significant risk factor. The major risk factors associated with his re-offending are the consumption of alcohol and, to a lesser extent, the consumption of illicit drugs. The difficulty is that a monitoring device will put the Department in no better position to preclude the possession by Mr Hill of illicit drugs or alcohol. 17 Mr Hill plays, coaches and referees football. It is notorious that illicit drugs (and alcohol) may be obtained at some sports ovals and certainly if pre-arranged. The fact that the Department would know that he was attending football training at a sports oval would not engender any greater or lesser risk associated with the consumption of either alcohol or drugs. And the added fact that the Department were aware 48 hours beforehand that he was coaching or playing football at the oval would not assist in that process. 18 The material adduced by the State of New South Wales also includes some comment, which I accept, that the reporting requirements imposed by the Court may, in some respects, add to, rather than detract from, the risk of re-offending. In particular the State of New South Wales raises the issue of the reporting requirement twice daily, one of which must occur between the hours of 8.00pm and 10.00pm. It would seem to me that there is much merit in the statement and submission of the State in that regard. The power of the Supreme Court to vary or revoke an Interim Supervision Order is confined to a variation on the application of the State or the offender. No application is currently before the Court for a variation of the order in that regard, unless I, somewhat perversely, treat the application for variation by the State of New South Wales to delete the reporting requirements and insert the requirement for an electronic monitoring device as including an order to vary the reporting requirements. I am not prepared so to do surreptitiously, but the parties have liberty to apply in that regard. 19 Nevertheless, the risk factors to which the State refers in that regard are matters that I take into account in determining the bail application and/or the conditions of bail. I turn then to the issues of bail, before coming back to the final determination of the variation application. 20 The application for bail is governed by the terms of s 8F of the Bail Act 1978, which requires the applicant for bail to satisfy the Court that bail should be granted. In that respect it is similar in operation to the provisions of s 8D, which were inserted for the purposes of dealing with riot matters and were the subject of consideration by R v Newby (Supreme Court of New South Wales, Sully J, 27 January 2006, unreported). In those proceedings his Honour said: "Before considering in any particular sense what s 8D(3) says, it might be useful to pause for a moment and to observe some things that it does not say. Sub-section (3) does not say that a person accused of an offence to which this section applies is not to be granted bail. If I might respectfully say so, I entirely agree with the observation put by learned Senior Counsel for the Crown during the course of his submissions, to the effect that one would hope never to see the day when a democratic legislature would take away in that kind of peremptory way the right of any citizen in custody to seek his release on properly conditioned bail. It is occasionally, at least, worth remembering that the right of the citizen - not the privilege of the citizen, the right of the citizen - to seek his liberty, even if conditionally, from custody in which he is at present held is a right which does not issue out of some judicial whimsy or caprice. It is a right which is rooted in the legal and constitutional conventions that marked the history of the United Kingdom in the seventeenth century…. It is to be assumed, that is to say, that Parliament intended that even in a case governed by s 8D [or, as I interpose, s 8F] there should continue to repose in a Court of competent jurisdiction a judicial discretion, - not a judicial whim or a judicial fancy or a judicial idiosyncrasy, but a judicial discretion, - to be exercised judicially according to proper principle, in aid of ensuring that the liberty of any subject is not put at risk except for good cause and in the absence of any other just way of dealing with the particular offender in the particular relevant context." 21 The Bail Act outlines four general classes of bail: those for which there is a statutory presumption in favour of bail; those for which there is no statutory presumption, but otherwise the Bail Act is silent; those for which there is a presumption against the grant of bail; and, those for which the grant of bail is subject to a finding that there are either special or extraordinary circumstances (or both) that warrant the grant of bail. 22 The provisions of s 8F of the Bail Act are in the third category, namely, requiring the applicant for bail to satisfy the Court that bail is warranted. The factors to which the Court is required to have regard in dealing with the bail application are those contained in s 32 of the Bail Act. The applicant is a person with significant community ties, is a person of Aboriginal decent and is a person who does not disclose any history of non-appearance in any matters before the courts. I am satisfied that the applicant does not pose a serious flight risk. 23 Further, I consider that it is in the interests of the applicant that he be at liberty. Those interests are based upon a number of factors. Those factors include the requirement for him to defend the case against him; the necessity for him to seek to adjust to community life and to deal with the issues associated with his previous offending. Further, I consider that the particular offence with which he is charged is not a matter that requires the protection of a victim, nor does it require the protection of the community. The particular breach is not one which, on the material before the Court, can be said to be anything other than a minimal inhaling of cocaine and may have quite innocent explanations. It is unnecessary for me to deal with those aspects. It is sufficient for my purposes to note that the offence is not in the worst category of offences within the range of offences covered by s 12 of the Crimes (Serious Sex Offenders) Act and it is unlikely that the result would be a full-time custodial sentence. 24 Notwithstanding the foregoing, it is appropriate to take into account in dealing with a bail application for an offence under s 12 of the Act, the protection of the community associated with the sexual offences, which gave rise to the Supervision Order said to have been breached. However, given the State's position that it is appropriate for Mr Hill to be subject to an Extended Supervision Order (as distinct from a Continuing Detention Order) and given the terms upon which that Supervision Order will be made, I do consider that the risk to the community can be adequately accommodated by the terms of that order. 25 In the circumstances, the Court makes the following orders: (1) In relation to the application for variation of the Interim Supervision Order, the Court makes no order as to any variation of the order and grants the parties liberty to apply on two working days' notice to the other party and the Court. (2) In relation to the bail application, the Court makes the following orders: In R v Allan Troy Hill in relation to the charge of breach of Supervision Order, bail is granted subject to the following conditions: (i) the applicant enter into an agreement to observe the following requirements as to conduct while at liberty on bail. (a) The applicant is to abide by the terms of the Interim Supervision Order of the Court made 23 March 2009. (b) Further and over and above the aforesaid condition, the applicant will not be absent from the residential premises provided to the supervising officer of the Probation and Parole Service between the hours of 9.00pm and 5.00am, except as approved by the supervising officer or for the purpose of attending football training, playing or refereeing, notice of which shall have been given to the supervising officer no less than 48 hours' before the time of that attendance, or for the purpose of attending work, notice of which also shall have been given to the supervising officer no less than 48 hours' before such attendance. On any day in which any one or both of the foregoing exceptions apply, the applicant may be absent from the premises for the purpose of reporting to the police station before or after the said football or work as the case may be. (c) The applicant is to appear at Central Local Court on 15 May 2009 and on any other dates to which the proceedings may be remanded. (d) Bail is to be entered into before any person authorised under the Bail Act 1978. (e) Bail is to be automatically revoked in the event of any breach of any one of these conditions and the applicant may thereupon be arrested by any police officer. (f) In the case of any breach of bail, the applicant is to be brought before Justice Rothman at the Supreme Court, Sydney. ********** 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.