New South Wales Supreme Court CITATION : State of New South Wales v Hill (No 4) [2010] NSWSC 1504 HEARING DATE(S) : 23 July 2010, 18 August 2010, 3 September 2010, 15 December 2010, 21 December 2010 JURISDICTION : Common Law JUDGMENT OF : Rothman J EX TEMPORE JUDGMENT DATE : 21 December 2010 DECISION : The Court directs the plaintiff to file and serve an amended Extended Supervision order. CATCHWORDS : SERIOUS SEX OFFENDER – extended supervision order – variation to terms – no issue of principle LEGISLATION CITED : Crimes (Serious Sex Offenders) Act 2006 CATEGORY : Principal judgment CASES CITED : State of New South Wales v Hill (No 1) [2009] NSWSC 1137 State of New South Wales v Hill (No 3) [2009] NSWSC 1139 PARTIES : State of New South Wales (Plaintiff) Allan Troy Hill (Defendant) FILE NUMBER(S) : SC 293269/2009 COUNSEL : 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 21 DECEMBER 2010 293269/2009 State of New South Wales v Allan Troy Hill (No 4) EX TEMPORE JUDGMENT 1 HIS HONOUR: On 26 March 2009 the court issued orders under the Crime (Serious Sex Offenders) Act 2006 (hereinafter "the Act") for interim supervision orders: State of New South Wales v Hill (No 1) [2009] NSWSC 1137. A variation to those orders was refused on 14 May 2009 and final orders (hereinafter "the orders"), issued on 28 October 2009: State of New South Wales v Hill (No 3) [2009] NSWSC 1139. To the extent necessary I will refer to the various judgments just described as the first judgment, the second judgment and the third judgment, respectively. 2 The State of New South Wales, hereinafter the State, now seeks a further variation pursuant to s 13 of the Act. It is necessary to recount some of the history of this matter. 3 The jurisdiction to issue orders arises from offences committed by Mr Hill in 1998 in Dubbo. The victim was an adult female and the offence was aggravated sexual assault. The aggravation was the threatened infliction of actual bodily harm by use of a knife. Mr Hill was sentenced to 10 years' imprisonment with a 7 years non-parole period. 4 The 1998 offences were committed while Mr Hill was on parole for sexual offences committed in 1993. Again, the victim was an adult female. Each of the above offences were committed while Mr Hill was heavily intoxicated and/or under the influence of drugs. 5 Mr Hill was granted bail in 2008 and relapsed into use of drugs and alcohol, for which his parole was revoked. As was made clear in the third judgment at [7], abuse of alcohol was a significant factor in each of Mr Hill's sexual offences, and I quote: "[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." 6 I add that the reference should also have been to the participation in illegal drugs. 7 During the proceedings for the making of the orders and giving rise to the third judgment, psychiatric evidence was adduced. Mr Hill did not oppose the making of the orders, but opposed certain conditions sought by the State. All of the conditions sought by the State were not imposed. Further, the orders were not imposed for the length of time for which the State contended, and the conditions that were imposed were, to some significant extent, different from those sought by the State. However, the Court made clear that, if circumstances warranted it, each of Mr Hill or the State could vary the orders. In particular the order imposing conditions for GPS satellite monitoring were made applicable for only 12 months from the day that the orders were made. 8 Mr Hill has breached the extended supervision orders on a number of occasions. First, he objected as a matter of principle to the wearing of GPS monitoring. He refused to wear the GPS unit and he was charged with a breach. I will not recount all of the details of that breach, which are summarised in the chronology presented and relied upon by Mr Hill in these proceedings. It is sufficient to say that the GPS unit was either removed from power and/or, if it be different, allowed to run down in terms of its battery. For that Mr Hill was sentenced, at Downing Centre Local Court, to 18 months' imprisonment. 9 He was also sentenced on the same day for failing to comply with a reasonable direction, namely, the signing of a bail undertaking. 10 On 27 April 2010 Solomon DCJ upheld the conviction for failing to comply with the ESO, being the condition relating to the GPS monitoring system, but allowed an appeal relating to the failure to sign the bail undertaking. Solomon DCJ quashed the sentences and imposed a sentence of a total of 12 months with a non-parole period commencing 27 June 2009 and expiring 25 March 2010. Mr Hill was released forthwith. 11 The breach for which he was sentenced was a breach, as already stated, essentially relating to an in-principle protest against the wearing of the GPS monitoring system. 12 As I understand it, the circumstances of the breach are not directly relevant. The circumstances were that he attended a police station, told them he refused to wear the GPS monitoring system and requested that he be arrested. 13 On 28 April 2010, a case note before the Court reportsthat Mr Hill had been drug free for five to six years. There is no suggestion that Mr Hill has partaken of alcohol in the whole of the time since the making of the interim supervision orders on or about 26 March 2009, however, other offences have been committed. 14 The last set of offences involved an act of threatened violence. Mr Hill, who is residing at a community offender support programme, COSP, is subject to a curfew at that residence. That curfew is more restrictive than the curfew imposed by the Court. Further, breach of the COSP curfew is, it seems, a breach of the direction issued under condition 3 of the orders which allows the departmental supervising officer to give reasonable directions with which Mr Hill is required to comply. A direction was given, which is Exhibit 4 in the proceedings, inter alia that Mr Hill abide by the rules of the COSP at which he was residing, including a curfew time between 6.00pm and 6.00am. 15 The offence in question, that is the one on 15 September 2010, occurred when it is alleged Mr Hill notified Corrective Services of his intention to attend his uncle's funeral in Forbes. A Corrective Services officer attended the COSP for, apparently, independent and irrelevant reasons, and while there indicated to Mr Hill that permission to attend the funeral had not yet been granted. Events occurred, the report of which events was the basis for charges being laid against Mr Hill, which charges occasioned his further imprisonment. 16 The basis of the charges was, inter alia, a report, which is Exhibit 5 in the proceedings, or part of Exhibit 5, and is to the following effect: The particular Corrective Services officer attended at approximately 5.25pm on 15 September 2010. Mr Hill was standing in the kitchen area preparing a meal. The Corrective Services officer, or both of them that were in attendance, spoke with Mr Hill as to his attendance at the funeral . There was a difference of opinion as to whether permission had been granted to allow attendance at the funeral in Forbes. The Corrective Services officer is reported to have said: "That is not the information I have. I have been told to let you know your attendance has not been approved as of yet. I will call you later on tonight to inform you of the decision." 17 Mr Hill replied, "I don't care. I'm not going to wait for your phone call. I'm going anyway". The Corrective Services officer responded, "I hear what you're saying but I'm just here to convey the information I have". Mr Hill responded, repeatedly, "I don't want to hear it. I'm going anyway". The Corrective Services officer said, "I'm just here to let you know the information I have. I'm going now. I'll call you later tonight". 18 Mr Hill apparently then walked from behind the bench in the kitchen, put down the kitchen utensils that he had in his hands, in a manner which is described by the Corrective Services officer as "slammed", walked towards the Corrective Services officer and stopped within inches, it is said, of the Corrective Services officer's face. Mr Hill said words to the following effect, "You're fucking playing mind games with me. You're trying to stop me from going to the funeral. I'm not going to fucking allow it". His hands were then clenched. The Corrective Services officer apparently said, "I'm feeling threatened and intimidated by you. I'm ending this discussion and I'm walking away," and Mr Hill then said, "Just try and get past me," and further said: "Just try and get past me you fucking white cunt. I will bash your fucking head in. Just try and get past me. If I'm going to gaol I'm going to gaol for good this time." 19 A security officer was, during the course of the last comments, standing between Mr Hill and the Corrective Services officer. 20 That was the basis for the charges which gave rise to the last round of imprisonment. 21 As has been conceded by the State, on questioning by the Court, Mr Hill is, on the conditions imposed under the orders, free to travel anywhere within New South Wales, unless prohibited by a reasonable direction issued pursuant to condition 3 of the order. However, if Mr Hill is to be absent overnight, that is during the curfew hours, the Department is required to approve another place of residence: see condition 17. 22 The exchange between the Corrective Services officer and Mr Hill shows that the orders made by the Court need some clarification, both as to the effect of the inconsistency in the curfew hours and the capacity of the Corrective Services Department to issue orders inconsistent with matters dealt with by the Court. 23 I am assisted greatly by the response to certain questions posed by me last week. The State has said, as to whether or not it takes the view that directions can be made under condition 3 that deal with a matter with which the Court has expressly dealt, that such directions cannot be made under condition 3 and, for example, given the lapse of time, to which I will come, subject to an express order of this Court, Corrective Services staff could not make a reasonable direction under condition 3 that Mr Hill wear GPS monitoring. 24 The incident in question, or its report, also gives rise to some need to clarify the position in relation to condition 17. Plainly there is an inconsistency between the curfew times expressed by the Court and the curfew times imposed by COSP. Similarly, there seems to be a lack of clarity as to the way in which a request by Mr Hill to attend - by that I mean reside temporarily elsewhere in New South Wales as his approved residence - should be dealt with. 25 Nevertheless, Mr Hill has, since June 2009, been in prison for offences, or alleged offences, arising from the foregoing conduct, and other conduct that is before the Court, and those imprisonment periods have been between 27 June 2009 and 27 April 2010, 8 May 2010 and 19 April 2010, 27 August 2010 and 3 September 2010 and, finally, 15 September 2010 and 17 December 2010. Mr Hill has spent approximately 15 months and 20 days in custody, since the making of the orders on 26 June 2009. 26 At the very least, the effect of the foregoing is that Mr Hill has been imprisoned for almost the entire 12-month period during which the Court had imposed a condition to enable a direction to be given for GPS monitoring. 27 It is that inability of the State to monitor, by GPS system, the movements of Mr Hill that has, in effect, occasioned the application for variation that is now before the Court. 28 The State seeks to vary the orders by extending its capacity, through the Corrective Services officers, to require the wearing of GPS monitoring for a period of 12 months or such further time that Mr Hill may be incarcerated during that period from Mr Hill's release, and also seeks certain extensions to ancillary conditions. 29 Mr Hill was last released on 17 December 2010, that is, Friday of last week. The Crown concedes, quite appropriately (and if it did not it would be the Court's view in any event), that it is necessary for the alterations to an extended supervision order, to give effect to the purposes for which the extended supervision orders are made. In order to deal with that it is necessary, to some degree at least, to revisit the basis for the orders and to reiterate the psychiatric evidence, or some of it, upon which the orders were based. 30 At [20] of the third judgment, the Court recited an extract from the evidence of Dr Roberts, upon whom the State relied for its orders. That extract is in the following terms: "Mr Hill's acts of sexual violence are driven not only by a desire for sexual gratification, but by a desire to dominate, control and instil fear as a means of demonstrating masculinity. Whilst antilibidinal medication is expected to reduce libido and potentially mitigate aspects of his [Mr Hill's] offending behaviour related to his sex drive, it would not be expected that other aspects, which drive his violent offending, would be significantly altered." (Exhibits C, Report 4 May 2009, page 40.) 31 At [27] the Court, in the third judgment, referred to the evidence of Dr Westmore, who was qualified by Mr Hill, or those representing him, and who referred, as it is stated at [27], to the desirability of setting a time frame that would enable Mr Hill to continue to modify his behaviour and maintain the conditions. In the process of his evidence, Dr Westmore said: "People don't go from problematic drinking psychologically to non-drinking psychologically overnight, it's a process. And he's already describing that process; they move towards sobriety. You can influence behavioural changes in them by saying you mustn't drink and that happens. But the most important changes, the psychological changes, he's already describing that process." This is a reference in the judgment to the transcript of those proceedings at page 126. 32 The third judgment, at [28] states "Dr Westmore was asked, by counsel appearing for Mr Hill, about whether Mr Hill would be able to comply, practically, with the conditions of reporting and electronic monitoring, to which Dr Westmore replied, in part: 'All I can say about this is that restrictions of this type will obviously impact significantly on his life-style particularly in terms of preventing or reducing any spontaneity in his life-style. I think it could be quite difficult to organise your life 48 hours in advance, not for all things but obviously for some things particularly activities of spontaneity. So there would be those restrictions. But that's really I think all I can say about that. It would impact on his life-style to a degree.' In cross-examination, Dr Westmore conceded that the foregoing opinion as to difficulty was ameliorated by the availability of an officer to approve any proposed changes to Mr Hill's regime on a seven day a week 24-hour a day basis. He also agreed that Mr Hill would benefit from and needed structure in his life. And, if Mr Hill were able to obtain approval for changing his schedule immediately, or fairly soon thereafter, such a condition would be appropriate." 33 Dr Westmore also is reported, in the third judgment, as agreeing that the provision of a schedule may go some way to reducing impulsive activity and providing the structure of which he spoke. 34 Mr Hill, on the evidence before the Court, has remained alcohol free now for a substantial period. He has not committed any sexual offence. To some degree, the displayed violence, on 15 September 2010, was a result of misunderstanding and, from Mr Hill's perspective, some provocation. I do not condone the displayed violence to which I have referred. On the contrary, it is an aspect which discloses the continuing risk of which the Court has already spoken. Even so, Mr Hill threatened, but did not engage in, violence. Partly that may be because of the intervention of others. Nevertheless, his conduct, while not being condoned, discloses, to some degree, an alteration in the behaviour and attitude of Mr Hill towards violence. 35 I add this. Racism and racist remarks are abhorrent, even when initiated by groups, or members of groups, who have been traditionally disempowered by racism. 36 I reiterate my comments in the third judgment, at [32] and [33]: "[32] Some of the cases in this area relate to the competing goals of rehabilitation of the offender, on the one hand, and, on the other hand, protection of the community. In this case, there is no tension between the two goals. As has been stated in other proceedings, the rehabilitation of the offender is, if it could be assured, the best means of protecting the community. The difficulty is always that evidence of rehabilitation is no guarantee that rehabilitation will be effective or continuing. As earlier stated, Mr Hill is an unusual, if not exceptional, example of an offender against whom an order is sought and/or against whom an order is to be made. Firstly, except in the most general sense, Mr Hill's offences do not relate to a particular class of person, from whose vicinity Mr Hill should be restricted. A typical example of the last mentioned type of offender would be paedophiles, who make up something in the order of 85% of those persons against whom an Extended Supervision Order has been made. [33] The Court is satisfied that, if Mr Hill were to remain sober and/or abstemious, he would not re-offend. As Dr Westmore has attested, the difficulty (and the risk) is that there is a likelihood that he will not remain abstemious, and, in order to protect the community, an Extended Supervision Order is required that would provide the structure to ensure the continuation of his current attitude and cement the alterations to his lifestyle. I also accept Dr Westmore's opinion that a finite period during which Mr Hill is required to answer to the Department (and be monitored in that compliance) would assist. If, as even the Department would not expect, Mr Hill were not able to maintain his current attitude to alcohol, it would be open to the Department to apply for a variation of the order beyond its initial short-term duration." 37 Orders of the Supreme Court are not made lightly. They are made for a purpose, and to effect a purpose. Likewise, regardless of the political beliefs of persons who are bound by those orders, orders of the Supreme Court are required to be obeyed. Indeed, orders of any Court are required to be obeyed. 38 But the imposition of the conditions contained in the orders was the imposition of conditions for the purpose of providing the structure of which Dr Westmore spoke and which would provide a framework by which the State, through the Corrective Services Department and its officers, could minimise the risk that Mr Hill would engage in conduct that provided such a risk, namely, the consumption of alcohol and/or illegal drugs. 39 The imposition of a condition for the wearing of electronic monitoring equipment, which is and has been described as a GPS monitoring system, is a condition that does not guarantee and probably does not ameliorate the risk of the consumption of alcohol. What it does do is provide a structure for Mr Hill's life and, as a consequence, enshrine the conduct that he had been undertaking, namely to cease the imbibing of alcohol. 40 The application that is before the Court seeks to implement the GPS monitoring for a period that I will loosely describe as 12 months from the end of his period of incarceration. What it does not take account of is the fact that there has been a further 18 months, approximately, in which Mr Hill has been alcohol and drug free. 41 To some extent, the alteration in his behaviour that was sought to be effected has been continued or achieved. At this stage, other than the fact that the original orders were not effective because of his incarceration, there is little evidence upon which it would seem to the Court that the imposition of a further period of GPS monitoring equipment would be appropriate. That is not to say that the Court does not consider that there is good reason to include conditions which continue to encourage the structure in the life of Mr Hill, of which Dr Westmore spoke. 42 There is an interesting question as to the power of the Court in relation to the matters that are now before it. Section 13 of the Act allows the Court to make a variation or revocation of an extended supervision order on the application of the State or, relevantly, Mr Hill. An application for variation has been made. Plainly, the Court is not confined to the grant or refusal of the application as made, but may make the variation, if it is so minded, on a basis that implements and/or clarifies the manner in which the orders should be operating. That is the basis upon which I now act. 43 The Court will make the following variations: Firstly, the Court will vary order 3 of the orders made on 26 June 2009, and entered on 29 June 2009, to add a proviso in the following terms: "Provided that no direction so given will be inconsistent with an express term of these conditions or impose a condition sought by the State and refused by the Court." 44 That variation implements the answer to the question asked of the State and contained in Exhibit E. 45 Secondly, the Court will vary order 4. It will vary order 4 to make the following orders: 46 In the last sentence of order 4, it will vary the number and words "12 months" and insert, in lieu thereof, the term "18 months". It will also add a proviso, at the end of the condition, to the following effect: "Provided that this latter condition does not apply while Mr Hill resides at a COSP centre." 47 The Court will also vary condition 5 by adding in the word "substantial" between the word "proposed" and the word "change" in the second last line of that condition. 48 It would seem to me that the application by the State, understandably, is that the requirement to file a schedule is intended to be coextensive, and my original intention was that it be co-extensive with the curfew provisions. I would order that 24 months in condition 5 read 30 months. 49 Further, the Court will amend condition 17 in two ways: Firstly, the condition will be amended so as to delete the words in brackets, and the brackets themselves, "or such other hours as may be specified". The Court understands that this alteration is an agreed alteration. 50 Secondly, the Court will add a further proviso in the following terms: "Further provided that any refusal of alternative accommodation will be reasonable and communicated, together with the basis thereof, within 48 hours of the request therefor." 51 Those are the orders the Court will make and the reasons therefor. The Court directs the plaintiff to file and serve an amended Extended Supervision order to reflect the foregoing. ********** 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.