STATE OF NEW SOUTH WALES v ALI [2010] NSWSC 1386

New South Wales Supreme Court

CITATION : STATE OF NEW SOUTH WALES v ALI [2010] NSWSC 1386 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 11-12 November 2010

JUDGMENT DATE : 6 December 2010

JUDGMENT OF : Hulme J at 1

DECISION : I order pursuant to s 9 (1) of the Crimes (Serious Sex Offenders) Act 2006, the Defendant be subject to an extended supervision order for a period of 3 years from the date hereof and, pursuant to s 11 of that Act, direct that the Defendant comply with conditions - see paragraph 38 of Judgment.

PARTIES : State of New South Wales Raizail Ali

FILE NUMBER(S) : SC 2010/252548

COUNSEL : Plaintiff: DT Kell Defendant: M Johnston

SOLICITORS : Plaintiff: IV Knight Crown Solicitor Defendant: Legal Aid Commission

- 17 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

RS HULME J Monday 6 December 2010

2010/252548

THE STATE OF NEW SOUTH WALES v RAIZAIL ALI

JUDGMENT 1 RS HULME J: By Summons filed on 29 July 2010 the Plaintiff sought orders pursuant to the Crimes (Serious Sex Offenders) Act (2006). On 9 September 2010 Johnson J made orders in accordance with the first two prayers for relief being orders that the Defendant be examined by two psychiatrists and be subject to an interim supervision order from 19 September 2010 for a period of 28 days. 2 On 14 October Hislop J extended that order until 13 November and on 12 November, I further extended the order until 10 December next. 3 The issue before me concerns the third prayer for relief whereby the Plaintiff seeks an extended supervision order for a period of 3 years. During the hearing, counsel for the Defendant indicated that the making of a supervision order was not opposed. However, objection was taken to two of the conditions the Crown sought, viz:- 5. The defendant must wear such electronic monitoring equipment as may from time to time be directed by the Departmental supervising officer and comply with all instructions given by a CCG [Community Compliance Group] officer in relation to the operation of such equipment, and must not tamper with or remove such equipment. 6. If directed by the Departmental supervising officer, the defendant must inform the Departmental supervising officer of his movements 48 hours in advance by providing a schedule in writing (or as otherwise directed by the Departmental supervising officer) and must obtain prior approval from the Departmental supervising officer for any proposed change. 4 In addition to the general objection to these conditions, it was said that 3 years was unnecessarily long and it was submitted that the 48 hours in condition 6 should be reduced to 24 hours. 5 Pursuant to s 6 of the Act, there are condition precedents to the making of an application, viz. that the person against whom such orders are sought is a serious sex offender serving the last 6 months of his custody or supervision at the time the application is made. In the case of the Defendant these conditions have been satisfied. 6 In reasons for the decision he made Johnson J summarised in some detail the Defendant's history. Having regard to the limited issues before me it is unnecessary for me to repeat that process. I adopt his Honour's summary and I can confine my reference to that history to a minimum. 7 On 20 October 2000 the Defendant committed three offences of sexual intercourse without consent in circumstances of aggravation. The circumstances of aggravation were the infliction of grievous bodily harm before each act of intercourse. The victim was an 18 years old female whom the Defendant met at a nightclub. The offences constituted a breach of a s 9 bond given on 9 June 2000. 8 On 30 September 2001 while on bail for the offences mentioned in the immediately preceding paragraph the Defendant committed another offence of sexual intercourse without consent and also one of attempted sexual assault. The victim was a 17 year old female staying at a youth hostel. The Defendant broke into her room and them imposed himself upon her. 9 On 26 March 2003 O'Reilly DCJ convicted and sentenced the Defendant for the sexual intercourse offences. The effective total sentence was imprisonment for 9 years including a non-parole period of 5½ years, both such periods commencing on 20 September 2001. 10 On 3 September 2008 the Defendant was released on parole. Conditions of his parole included:- 1. The offender must be of good behaviour and must not, while on release on parole, commit any offence. 4. The offender must, until the order ceases to have effect or for a period of 3 years from the date of release (whichever is the lesser), submit to the supervision and guidance of the Probation and Parole Officer and/or Compliance and Monitoring Officer (hereafter referred to as "the Officer") assigned to the supervision of the offender for the time being and obey all reasonable directions of that Officer. 14. The offender is not to use prohibited drugs, obtain drugs unlawfully or abuse drugs lawfully obtained. 15. The offender must, if so directed by the Officer, seek assistance in controlling his or her abuse of drugs and/or alcohol and must authorise in writing that his or her medical and other professional and/or technical advisers or consultants make available to the Officer a report on his or her medical, and/or other conditions at all reasonable times. 16. The offender must undertake and maintain a program directed towards controlling his or her abuse of drugs and/or alcohol arranged by the Officer (Smart Maintenance). 17. The offender must not use, or be in possession of, a prohibited drug or substance. 11 Urine samples taken from the Defendant on 17 May, 21 July, and 20 December 2009 tested positive for methyl-amphetamine. Samples taken on 1 July, 21 July, 28 August and 9 September 2009 tested positive for cannabis. On 31 August 2009 the Defendant admitted to his parole officer that he had taken amphetamine. Initially the Defendant said this was about a week and a half earlier. Later the Defendant asserted it had been about 4 weeks earlier. The Defendant admitted to Dr Roberts that following his release on parole, which occurred in September 2008, he engaged in the use of ice and speed, a usage that escalated until it was daily. "Dirty" urines were insufficient to prevent him persisting. 12 From 5 September 2008 to 9 December 2009 the Probation and Parole Officer responsible for supervising the Defendant was Simione Kama. In consequence of reports that the Defendant had not been at his residence when officers of the Community Compliance Group had visited those premises and had been cruising the city at night, on 14 January 2009 Mr Kama gave the Defendant a direction that he be at home by 10pm each night. On 4 May the time of 10pm was changed to 9pm. I am satisfied that the Defendant breached the curfew on all or most of the following dates - 29 and 30 April, 1 and 6 May, 8 June, 20 July 2009, and 31 October 2009. The circumstances indicate that the strong probability is that the breaches were at least in the main, deliberate or the result of a "don't care" attitude to the curfew. 13 The Defendant's attendance at rehabilitation sessions was also poor. A report to the State Parole Authority of 21 January 2010 recorded that the Defendant had attended only two out of four SMART sessions and only fifteen out of twenty-seven sessions with the Forensic Psychology Service and such participation as had occurred was unsatisfactory. 14 The Defendant's parole conditions did not impose on him conditions that in terms restricted his consumption of alcohol. Nevertheless it is clear that during the currency of his parole he had issues in this area:- (i) On 13 and 20 October 2009, he was observed by police in the street to be affected by alcohol and driven home; (ii) On 31 October he was observed at the Penrith Railway Station to be walking unsteadily and stumbling towards the platform edge. Asked how much he had had to drink, he replied, "A shit load. I'm pissed as"; (iii) On 20 December 2009 he was given a written direction by the Community Compliance Group of the Department of Corrective Services to participate in various ways in programs or strategies directed to reducing his alcohol intake; (iv) On 20 August 2010 he informed his MERIT counsellor that during the previous evening he had had 18 standard drinks; and (v) On 12 September 2010 the Defendant, in an intoxicated state and in a public place, attracted the attention of police on 2 occasions.