Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Baker [2014] NSWSC 699 Hearing dates: 12 March 2014 Decision date: 12 March 2014 Jurisdiction: Common Law Before: Adams J Decision: 1. The plaintiff has leave to rely on the submissions filed and served on 11 March 2014. 2. The defendant has leave to file and serve any affidavit evidence on which he relies by 14 March 2014. 3. The plaintiff has leave to file and serve further submissions arising from any evidence filed by the defendant in accordance with order 2 above. 4. Pursuant to sections 10A and 10C of the Crimes (High Risk Offenders) Act 2006 ("the Act"), a further interim supervision order is made, commencing from midnight on 14 March 2014, for a period of 28 days or until judgment is delivered, whichever is sooner, and pursuant to section 11 of the Act, direct that, for the period of the interim supervision order, the defendant comply with the conditions as set out in the schedule to the Amended Summons filed in Court on 17 January 2014 and attached to these short minutes of order. 5. Liberty to apply to relist the matter on one day's notice. Catchwords: CRIMINAL LAW - Crimes (High Risk Offenders) Act 2006 - serious sex offender - unacceptable risk of committing a serious sex offence if not supervised - interim supervision order Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 4, 5B, 5I, 9, 10A, 10C Crimes Act 1900 (NSW), s 61J Cases Cited: State of New South Wales v Richardson (No 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 Category: Interlocutory applications Parties: State of New South Wales (Plaintiff) Ley Thomas Baker (Defendant) Representation: Solicitors: Crown Solicitors Office (Plaintiff) File Number(s): 2013/371842 Judgment 1The plaintiff by amended summons is seeking an extended supervision order in respect of the defendant pursuant to s 9 of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). On 17 January 2014, Fullerton J made an interim supervision order for a period of 28 days pursuant to ss 10A and 10C of the Act. On 12 February 2014, Campbell J made a further interim supervision order for a period of 28 days. The plaintiff now seeks a renewal of the orders that the defendant be subject to interim supervision for a period of 28 days or until judgment is delivered, whichever is the sooner. The matter is set down for final hearing on 21 March 2014, at which time final orders will be sought. 2My task is made easier by the fact that the earlier orders were made as I have described. The change, however, being that I now have the benefit of two psychiatric reports which were made pursuant to the orders of Fullerton J. They confirm the appropriateness of the orders made by Fullerton J and Campbell J, and provide an adequate basis for my making the supervision order sought. 3I should mention that, perhaps not surprisingly, the making of the present interim order is not opposed. Nevertheless, it is necessary for the Court to be satisfied that such an order is appropriate. 4The defendant was convicted of sexual intercourse without consent in circumstances of aggravation under s 61J of the Crimes Act 1900 (NSW) and sentenced on 5 April 2000 to 16 years with a non-parole period of 12 years. He was released to parole on 4 June 2012 and his parole ended on 17 January 2014. It follows that the defendant is a sex offender within the meaning of s 4 of the Act. 5Section 10A of the Act provides that an interim supervision order may be made by the Court if it is satisfied that the defendant's current custody will expire before the proceedings are to be determined and that the matters alleged in the supporting documentation, if proved, justify the making of a high risk sex offender extended supervision order. The decision to make an interim supervision order is discretionary, and it is open for the Court to refuse to make such an order even if the conditions specified in the relevant section are satisfied. I have mentioned that Fullerton J and Campbell J made orders, and thus were satisfied that the requirements of the Act were established. 6The defendant's sentence ended on 17 January 2014 and since that date he has been subject to interim supervision orders, so that he continues to be a supervised sex offender within the meaning of s 5I and therefore the present application may be considered. 7The current supervision order expires on 14 March 2014, and if a further order is not made supervision of the defendant will expire before the final hearing. In that event the defendant would not be a supervised sex offender and an application for an extended supervision order cannot be made. The renewal of the interim supervision order sought is capable of being made as it does not exceed the time period allowed, being three months in total, under s 10C(2) of the Act. 8It is not necessary for present purposes to predict the ultimate result of the proceedings; merely to find prima facie that the matters alleged, if proved, justify the making of the final extended supervision order. Amongst other things, it does not involve the weighing up of documentation or the consideration of evidence which will be called at the final hearing. 9It is necessary before a high risk sex offender extended supervision order is made that the Court be satisfied that the offender is a "high risk sex offender" within the meaning of s 5B of the Act. Section 5B provides - "(2) 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." [Emphasis original]. 10The meaning of the important element of the definition that there be a high degree of probability that the offender poses an unacceptable risk has been considered, amongst others, by Davies J in State of New South Wales v Richardson (No 2) [2011] NSWSC 276; (2011) 210 A Crim R 220. Essentially it involves a balancing exercise between the likelihood of the commission of a serious sex offence by the defendant, on the one hand, and, on the other, serious consequences for him by way of significant limitations on his freedom as a citizen. These requirements are relevant also to the making of an interim order. 11The Act specifies the matters to which the Court must have regard when considering whether to make an extended supervision order, see s 9(3). These include the safety of the community; the reports of the psychiatrists and other persons appointed to conduct examinations of the offender; the results of assessments; the results of statistical analysis; reports prepared by Corrective Services New South Wales; the outcome of treatment or rehabilitation programs in which the offender has been involved; his level of compliance with parole obligations, or any earlier extended supervision order, or any other obligations to which he or she has been subject; his criminal history; the views of the sentencing court at the time of his being sentenced; and other information that pertains to the likelihood of future offending. 12I do not intend, and it is not necessary for present purposes, to detail the criminal history and patterns of offending behaviour of the defendant. It is enough to say that I have read the material which is relied on by the plaintiff in that regard. He has a lengthy criminal record. He has committed serious sexual offences against five victims, as well as offences against seven other victims. These offences were committed against victims aged between 14 and 26, each victim being a female who did not know him. These offences were committed in the period between 1972 to 1974, 1981, 1986 and 1998. He was sentenced to substantial terms of imprisonment on each occasion. Some of the offences were committed whilst he was on parole for other sexual offences. 13Two court appointed psychiatrists, Dr Andrew Ellis and Dr Jeremy O'Dea, have diagnosed him with sexual sadism disorder and have concluded that he has a high risk of committing a further serious sexual offence if he is not kept under supervision. 14The risk reports provided by the Department of Corrective Services, prepared by psychologists with the department, confirm the risk which the offender represents, and describe the extent to which the defendant can reasonably and practicably be managed in the community. 15When the defendant was sentenced on 5 April 2000 to 16 years imprisonment with a non-parole period of 12 years on one count of aggravated sexual intercourse without consent the sentencing judge said: "the repeated pattern of similar sexual offences of great seriousness and committed by the [defendant] over a period of twenty-five years clearly indicates the primary function I have to perform is to protect the female members of the public from him principally removing him from society, that period cannot be other than a very lengthy one. The protection of the community requires it and the seriousness of the offence demands it.... There can be no doubt that the prisoner presents a danger to females alone on streets and may well do so for the rest of his life unless he continues to receive treatment for a very considerable period. ... [T]he offence is so grave and danger [the defendant] poses to the community is so significant and his risk of re-offending is so high, that this factor seems to be a matter which ... can only be reflected if at all in the determination of whether he should be able to be released before the expiration of that sentence." 16I have mentioned the other reports, but I do not propose to set out their conclusions. It is enough to say they show that the making of the orders to which no objection is taken is entirely justified. 17I should mention, of course, that a supervision order is in no sense punishment. It is designed, so far as it may reasonably do so, bearing in mind the civil rights of all citizens, including the defendant, to protect the community from the risk of further serious offences being committed by him who has demonstrated in the most direct way the tendency to commit such offences. 18I am satisfied in the present case from the material provided and the reports supplied that the matters alleged, if proved, justify the making of an extended supervision order. Accordingly, it is appropriate to make the further order subject to the conditions pursuant to the schedule attached to the short minutes of order. 19Accordingly, I make the orders set out in the short minutes of order signed by me, dated today and placed with the papers. ********** 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: 29 May 2014