Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Cruse [2013] NSWSC 1733 Hearing dates: 5 December 2013 Decision date: 05 December 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. That, pursuant to s. 7(4) of the Crimes (High Risk Offenders) Act 2006, Dr Jeremy O'Dea and Dr Andrew Ellis be appointed to conduct separate psychiatric examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by 6 January 2014. 2. That the defendant be directed to attend an appointment with Dr Jeremy O'Dea on Friday 19 December at 12.00pm at Suite 17, Level 8, 235 Macquarie Street, Sydney. 3. That the defendant be directed to attend an appointment with Dr Andrew Ellis on Monday 23 December 2013 at 4.00pm at Nunyara COSP. 4. An order pursuant to s. 10A of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to interim supervision from 9 December 2013 (the time at which the defendant's parole expires) for a period of 28 days. 5. An order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 that the defendant comply with conditions 1-59 as set out in Schedule A to the summons filed on 11 November 2013. 6. The matter be listed on 3 January 2014 at 10.00am for the plaintiff to apply for a renewal of orders that the defendant be subject to interim supervision for a period of 28 days. 7. The plaintiff to file and serve any affidavit evidence on which he relies by 10 January 2014. 8. The defendant to file and serve any affidavit evidence on which he relies by 24 January 2014. 9. The matter be listed on 30 January 2014 at 10.00am for the plaintiff to apply for a renewal of orders that the defendant be subject to interim supervision for a period of 28 days. 10. The plaintiff to file and serve submissions on which he relies by 6 February 2014. 11. The defendant to file and serve submissions on which he relies by 20 February 2014. 12. The matter be listed for hearing on 26 February 2014 with an estimate of 1 - 2 days. 13. Liberty to apply to re-list the matter with 3 days notice. Catchwords: CRIMINAL LAW - serious sex offender - application for interim supervision order - test for interim order - evidence if proven justifies making of extended supervision order Legislation Cited: Crimes (High Risk Offenders) Act 2006 Cases Cited: Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 993 Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; 198 A Crim R 149 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; 176 A Crim R 110 State of New South Wales v Brookes [2008] NSWSC 150 State of New South Wales v Richardson (No. 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 Category: Interlocutory applications Parties: State of New South Wales (Plaintiff) Edward Frances Cruse (Defendant) Representation: Counsel: H Bennett (Plaintiff) G Scragg (Defendant) Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2013/339906 Judgment 1This is the preliminary hearing of proceedings which seek an order under s 9 Crimes (High Risk Offenders) Act 2006. The Plaintiff seeks an interim supervision order for 28 days under ss 10A and 10C with the conditions set out in Schedule 8 of the Summons. The Plaintiff also seeks an order pursuant to s 7(4) of the Act for the appointment of two qualified psychiatrists to conduct separate psychiatric examinations of the Defendant and directing the defendant to attend those examinations. 2The Defendant does not oppose the orders that are sought today but does not thereby accept that he will agree to orders being made on a final basis. The application and the preliminary hearing 3On 9 November 2007 the Defendant was sentenced in respect of three serious sex offences being two counts of assault with an act of indecency and sexual intercourse without consent. The victim of these offences was a female known to him who was 16 years old at the time. He was sentenced overall to a non-parole period of four years commencing 10 December 2007 and concluding 9 December 2011 with an additional term of two years expiring 9 December 2013. He did not seek, and has not been granted, parole and his overall sentence is due to expire on 9 December 2013. 4The Defendant's conviction for these offences means that he is a sex offender within the meaning of s 4 of the Act. Since the Defendant remains in custody at the present time he is a supervised sex offender - s 5I. That enables the State to make the present application - see s 5H. 5Section 7(4) of the Act provides that if, following the preliminary hearing, the court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order the Court must make orders for examination of the Defendant by (inter alia) two qualified psychiatrists. In addition under ss 10A and 10C, if the Defendant's current custody will conclude before these proceedings are determined, the Court may make an interim supervision order for a period not exceeding 28 days. 6The task of the Court at the preliminary hearing stage is not to predict the ultimate result. Rather the test is one similar to the prima facie test applied by magistrates in committal proceedings: Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119; Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 993 and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]. 7In State of New South Wales v Brookes [2008] NSWSC 150 Fullerton J discussed the requirements when an interim order is sought and drew attention to the fact that because two of the objects of the Act are to ensure the safety and protection of the community and to facilitate the rehabilitation of serious sex offenders it is appropriate to give weight to risk avoidance. 8The test that must be satisfied was formerly found in s 9(2) of the Act but is now to be found within the definition of a high risk offender in s 5B(2). Nevertheless, the wording is identical and the learning which had developed in relation to s 9(2) is equally applicable under the amended form of the Act. 9Section 5B provides that if and only if the offender is a high risk sex offender can an extended supervision order be made. Section 5B(2) of the Act provides: An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. 10In Director of Public Prosecutions (WA) v Williams [2007] WASC 206; 176 A Crim R 110 Wheeler JA (with whom Le Miere AJA agreed) said at [63]: In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention. 11In Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; 198 A Crim R 149 Steytler P and Buss JA said at [27]: The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk - A return to basics (2006) 20 AJFL 249, 252), the advantage of the phrase 'unacceptable risk' is that 'it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case ... '. 12In State of New South Wales v Richardson (No. 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 I said at [90]: Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. ... Background 13The Defendant has had earlier convictions for sexual offences. On 14 February 1975 he was convicted of carnal knowledge and committed to the care of a children's home for two years and six months. This offence involved a 15 year old girl who was severely mentally retarded. 14On 15 September 1980 he was convicted of attempted rape in the Port Augusta Criminal Court and sentenced to nine months hard labour. 15On 5 November 1984 he was convicted of sexual intercourse without consent and assault person with act of indecency. On each charge he was sentenced to three years and six months penal servitude to be served concurrently with a non-parole period of nine months. These offences involved a three year old boy. 16On 30 April 1993 he was convicted of three counts of aggravated sexual assault. On each count he was sentenced to a minimum term of five years and six months with an additional term of two years and six months. At the same time he was sentenced for another aggravated sexual assault to a fixed term of three years. In relation to the last group of offences he was refused parole in 1998 and released at the expiry of the full term of his sentence in January 2001. These offences involved two females, one ten and one 16 years of age. 17A number of the offences occurred whilst the Defendant claimed he was intoxicated. Supporting documentation 18Section 9(3) sets out matters to which the Court must have regard when considering whether to make an extended supervision order. It is necessary to have regard to those matters to decide on a prima facie case basis whether the supporting material, if proved, would justify the making of such an order. Many of the matters in s 9(3) are dealt with in the supporting documentation. I make specific reference to the following matters. 19The Defendant was examined at the request of the Commissioner of Corrective Services by a senior psychologist with the Department, Narci Sutton. She prepared a report dated 8 October 2013. 20A useful starting point is the Executive Summary of that report which relevantly says this: Mr Cruse has a documented history of childhood trauma, as a member of the Stolen Generation, and has suffered frequent periods of clinical depression leading to suicidal ideation and behaviour. He also has a significant history of alcohol abuse, and there is evidence that the majority of his offences have been committed while heavily intoxicated. Until his current period of incarceration Mr Cruse had been reluctant to participate in the Custody Based Intensive Treatment (CUBIT) Sex Offender Programme. He is now in the final stages of completing CUBIT and his participation appears to have been consistently conscientious. His written work, and his discussion of the dynamics of his offence behaviour demonstrate significant gains in insight. Actuarial assessment of sexual offence risk, based on his offending history, places Mr Cruse in the high risk category relative to other sexual offenders. His therapeutic gains and reported family support may attenuate this risk level, as long as Mr Cruse remains abstinent from alcohol and committed to an offence-free life style. However in my view the stability of these gains is a yet unproven, thus his risk remains high and on-going supervision from Community Corrections would be essential to monitor his progress and assist with his goals. Mr Cruse stated that he is aware of his need for on-going assistance to maintain his treatment gains, and welcomes the added support an ESQ might provide. 21Ms Sutton carried out a series of tests and assessments on the Defendant. Two of those which concern the likelihood of sexual re-offending are the Static - 99R instrument and the Risk of Sexual Violence Protocol (RSVP). 22The Defendant's total score on the Static - 99R was 7 which places him in the high risk category relevant to other male offenders. The recidivism rate for those who score 7 is around 5.25 times higher than the recidivism rate expected for "typical" sex offenders (those scoring a two on the instrument). Around 96% of the sexual offenders in the routine sample scored below the Defendant's score. 23The Static - 99R instrument has limitations which Ms Sutton acknowledges. 24The RSVP was developed to assist in the identification and management of a comprehensive range of factors identified by the literature as related to sexual offending. It includes a total of 22 both static and dynamic factors grouped into five domains, sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. These factors are not mutually exclusive. 25It is not necessary to detail all of the sub-categories of the five domains and how the Defendant fits into those categories and meets the criteria. It is sufficient to note that Ms Sutton concludes that the Defendant presents with risk factors in all but one of the domains covered by the RSVP. That, she said, suggests that the high risk score on the Static - 99R is an accurate reflection of his risk. 26She concluded that when the Defendant is likely to re-offend it would most likely be while intoxicated. It is likely to be spontaneous rather than be preceded by the grooming of the victim. The offence is likely to unfold quickly and the victim is more likely to be an adolescent girl. 27Ms Sutton also said that the Defendant's long history of sexual re-offending suggests that without ongoing support to implement the skills learnt in therapy, at least in the early stages after his release, he was likely to return to the high risk behaviours associated with his offending. 28Ms Sutton examined various documents made available to her dealing with the Defendant's response to supervision at various times including when he had been on parole. His record in that regard was somewhat mixed although the most recent conditional liberty in 2005 was completed satisfactorily. 29A risk management report prepared by the Community Corrections Extended Supervision Team dated 25 October 2013 demonstrates that the Defendant is capable of being managed within the community in a way that minimises any risk of further offending. This plan involves a referral of the Defendant to the Nunyara Community Offender Support Program for transitional accommodation. The report notes that electronic monitoring could be utilised for the Defendant if the Court considered that was desirable. 30I have also read what is contained in the affidavit of Zouhier Abedine which provides greater detail concerning what would be proposed, bearing in mind the conditions that the State asks to be imposed upon the Defendant. 31The report by the Community Corrections Extended Supervision Team and, to some extent, the affidavit of Mr Abedine, deal with such other matters as the Defendant's drug and alcohol issues, his mental health issues, employment and access to children as well as possible pharmacological intervention. It proposed a review of his conditions on a six-monthly basis. 32Case notes from the High Risk Offenders Review Group tend to show a positive change in attitude towards dealing with his sexual offending. An example of this occurred in October/November 2012 when the Defendant was enrolled in the CUBIT program commencing 24 October. He was then keen to complete the program and did not wish to apply for parole until he had done so. Reports subsequent to that time were positive about his progress. Ms Sutton made a similar assessment. Determination 33I note the proposed conditions in Schedule A to the Summons. I note also that those conditions are agreed to on an interim basis by the Defendant. Without preventing argument at the final hearing about the suitability of any of those conditions, I consider that those conditions are suitable to be imposed for any interim order including the proposal for electronic monitoring. 34In the present case the evidence put forward by the Plaintiff is sufficient, if proved, to justify the making of an extended supervision order. In those circumstances I will make orders in terms of paragraphs 1 to 11 contained in the Order provided. 35The matter is listed for hearing on 26 February 2104 with an estimate of 1 to 2 days. There will be liberty in the meantime to re-list on 3 days' notice. ********** 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. Decision last updated: 18 December 2013