State of New South Wales v Hill (No 3) [2009] NSWSC 1139

New South Wales Supreme Court

CITATION : State of New South Wales v Hill (No 3) [2009] NSWSC 1139

HEARING DATE(S) : 22 June 2006, 23 June 2006, 24 June 2006, 26 June 2006.

JUDGMENT DATE : 28 October 2009

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

CATCHWORDS : SERIOUS SEX OFFENDER – application for extended supervision order – statutory requirement is satisfied – no issue of principle – extended supervision order made for 3 years with restrictions on electronic monitoring

LEGISLATION CITED : Crimes Act 1900 Crimes (Serious Sex Offenders) Act 2006

CATEGORY : Principal judgment

CASES CITED : Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327

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

28 OCTOBER 2009

11422/2009 State of New South Wales v Allan Troy Hill (No 3)

JUDGMENT 1 HIS HONOUR: The State of New South Wales applied for an extended supervision order against Allan Troy Hill. The Court granted Interim Supervision Orders against Mr Hill, firstly, on 26 March 2009, and the Court had continued Interim Supervision Orders from that date until 26 June 2009, when an Extended Supervision Order issued. These are the reasons for the grant of the Extended Supervision Order and for the conditions imposed therein. 2 The originating process was filed on or about 13 March 2009 and an amended summons was filed, in Court, on 22 June 2009. The Extended Supervision Order issued under s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 ("the Act") and, pursuant to s 11 of the Act, the Court ordered that the defendant be directed to comply with certain conditions. 3 Mr Hill did not oppose the making of an Extended Supervision Order, but did oppose some of the conditions sought by the State of New South Wales. Facts 4 The offences upon which the State of New South Wales relies to found the Extended Supervision Order were committed in 1998 in Dubbo. The victim was an adult female and Mr Hill was convicted of five offences of aggravated sexual assault, in contravention of s 61J of the Crimes Act 1900 for which Mr Hill was sentenced to a total term of imprisonment of 10 years, with a 7 year non-parole period. The circumstance that gave rise to aggravation was the threatened infliction of actual bodily harm by the use of a knife. At the time of the offences, Mr Hill was 32 years of age. 5 The 1998 offences were committed while Mr Hill was on parole for a sentence imposed in respect of other sexual offences that were committed in 1993, and for which Mr Hill was convicted in 1994. These earlier offences were committed in Wellington, NSW. Again, the victim was an adult female. 6 Mr Hill was released on parole on 2 September 2008. This parole was in relation to the 1998 offences. Mr Hill relapsed into the use of drugs and alcohol and otherwise failed to comply with some other conditions of his parole (namely, obey reasonable directions) and the State Parole Authority revoked his parole on 6 February 2009, whereupon Mr Hill returned into custody. As recorded in the ex tempore judgment of 26 March 2009, Mr Hill's sentence expired at midnight at the conclusion of 26 March 2009. 7 Abuse of alcohol was a significant factor in each of the sexual offences with which Mr Hill has been charged over the years. It is generally accepted that, in the absence of alcohol or alcohol abuse, Mr Hill does not pose a significant threat of the kind with which the Act seeks to deal. Nevertheless, Mr Hill does pose a significant and dangerous threat, if and when Mr Hill imbibes alcohol. Fundamentally, the issue in these proceedings is whether there is, overall, a high degree of probability that Mr Hill is likely to commit a further serious sex offence, if he were not kept under supervision: see s 9(1)(a) of the Act. Necessarily, that depends upon the risk, if any, that Mr Hill will drink alcohol. 8 As earlier stated, Mr Hill's last day in prison was 26 March 2009, from which time, with one exception to which I will shortly refer, he was complying with the terms of an Interim Supervision Order to which he was subject. During that time, on 12 April 2009, Mr Hill supplied one of many random urine samples. However, this sample displayed a very small amount of cocaine metabolites. There is a reasonable hypothesis consistent with innocence in relation to the presence of cocaine metabolites in Mr Hill's urine. The small amount involved may have been the result of an accidental or incidental indigestion of the drug, when another person was using it, or an innocent ingestion from the consumption of contaminated legal substances. Each of the foregoing possibilities is available on the evidence before the Court in these proceedings. On the other hand, Mr Hill may have used the cocaine. 9 While I accept that the mere presence of the metabolites in such small amounts may not be sufficient, because there is a reasonable hypothesis consistent with innocence, to convict Mr Hill of a criminal offence, or, if separately actionable, a breach of the conditions of the Interim Supervision Order, I also accept that, on the balance of probabilities, Mr Hill used cocaine. In other words, I accept that, even though the ingestion of cocaine was in small quantities, it is more likely than not that it was taken knowingly. As such, it is a fact to which consideration may be given in determining the risk that Mr Hill will re-offend in the relevant sense. It is also a factor that the Court may take into account in determining the conditions that it ought to impose upon Mr Hill. 10 On the other hand, if the consumption of cocaine were, as submitted on Mr Hill's behalf, wholly innocent, then there are significant issues relating to the persons with whom he keeps company. Each scenario, whether or not innocent, arising from the urine sample and the necessary inferences that arise therefrom, raises issues of concern that must be considered in determining the questions that are before the Court on this application. Apart from the relevance of each scenario to the question of the likelihood of re-offending, each is relevant to the determination of whether Mr Hill requires supervision that identifies his whereabouts at any particular time. Legislation 11 The legislative requirements for the making of an extended supervision order are prescribed by ss 9, 10 and 11 of the Act, and, relevantly, are in the following terms: